United States District Court, N.D. New York
[Copyrighted Material Omitted]
For Plaintiff: JEANETTE N. SIMONE, ESQ., OF COUNSEL, HINMAN, HOWARD & KATTELL, LLP, Binghamton, New York.
For Defendant: ALAN J. POPE, ESQ., OF COUNSEL, POPE & SCHRADER, LLP, Binghamton, New York.
Mae A. D'Agostino, U.S. District Judge.
MEMORANDUM-DECISION AND ORDER
On March 27, 2013, Plaintiff commenced this action in diversity alleging claims for common law breach of contract, constructive trust, and indemnification arising out of Defendant's alleged breach of a commercial lease. See Complaint, Dkt. No. 1 (" Compl." ). Presently before the Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Dkt. No. 10. Plaintiff has opposed the motion to dismiss. See Dkt. No. 20.
Plaintiff Islip U-Slip LLC (" Islip" ) is a Delaware limited liability company with its principal place of business in Huntington, New York. Defendant Gander Mountain Company (" Gander Mtn." ) is a Minnesota corporation with its principal place of business in St. Paul, Minnesota. Gander Mtn. operates the nation's largest network of retail stores for hunting, fishing, camping, and marine products and accessories.
In 2004, Gander Mtn. entered into negotiations to lease a building located at 428 Harry L. Drive Johnson City, New York (the " Premises" ), for operation as a retail store. At the time, the Premises were owned by Pathmark Stores, Inc. On April 16, 2004, Gander Mtn. entered into a fifteen-year lease, which included terms regarding, inter alia, the payment of rent, property taxes, and utilities, the maintenance of certain insurance, the duty to repair and restore the Premises in the event of damage or destruction, and indemnification (the " Lease" ).
On December 3, 2007, Pathmark and its assets, including the Premises, were acquired by Great Atlantic and Pacific Tea Company (" A& P" ). A& P then sold the Premises to Islip on July 8, 2010. Prior to that sale, on July 7, 2010, Gander Mtn. executed a Tenant Estoppel certificate to Islip, confirming notice of the sale of the Premises to Islip.
In June of 2006, an extraordinary flood event caused the Premises to flood. Gander Mtn. closed the Premises for approximately three months to conduct repairs and restoration. During that time, Gander Mtn. continued to pay rent and otherwise complied with its obligations under the Lease. In September 2011, another extraordinary flood event took place, once again causing the Premises to flood. On October 19, 2011, Gander Mtn. publicly announced that it would not reopen its Johnson City store. Islip alleges that although Gander Mtn. was not obligated to continue to operate a retail store at the Premises, it was nevertheless required to repair and restore the Premises. Gander Mtn. was also required to place any insurance proceeds, along with any deductible carried by Gander Mtn., in an escrow account. Finally, Islip contends that, the closure of its store notwithstanding, Gander Mtn. was obligated to continue to pay rent. For some time following the 2011 flood event, Gander Mtn. complied with its obligations under the Lease.
On May 11, 2012, Gander Mtn. informed Islip that it believed the Lease was terminated and that, effective May 1, 2012, Gander Mtn. would no longer comply with its obligations under the Lease. Gander Mtn. thereafter ceased paying rent and complying with its other Lease obligations. Gander Mtn. claimed, as the basis for this position, that at the time it entered into the Lease, Pathmark had failed to disclose adequate information regarding historical flood events affecting the Premises. Moreover, Gander Mtn. claimed that, as a result of 2006 and 2011 flood events, it was no longer able to obtain an all-risk insurance policy, as required under the Lease.
Thereafter, Gander Mtn. filed a complaint in this Court seeking a declaratory judgment that the Lease was either terminated or rescinded. Islip sent a letter to Gander Mtn. on June 26, 2012, stating its view that Gander Mtn.'s litigation position was frivolous and requesting that the complaint be withdrawn. Gander Mtn. declined to withdraw its complaint, and Islip filed a pre-answer motion to dismiss. As noted above, Islip's motion to dismiss was granted and Gander Mtn.'s complaint was dismissed in its entirety.
In the instant Complaint, Islip claims that Gander Mtn. has breached the terms of the Lease by failing to pay rent, failing to pay additional rent (property taxes), failing to pay late fees, failing to repair and restore the Premises, failing to maintain the Premises, and failing to maintain the requisite insurance. Islip also claims that it is entitled to all insurance proceeds and deductibles related to the Premises for claims covering, inter alia, repair and restoration, rent, and store contents. Finally, Islip claims that Gander Mtn. is obligated to indemnify Islip for its attorney's fees and costs for its defense of the earlier action instituted by Gander Mtn. and dismissed by this Court.
A. Legal Standard
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief and pleadings without considering the substantive merits of the case. See Global Network Commc'ns v. City of New
York, 458 F.3d 150, 155 (2d Cir. 2006); Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). " Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself" unless all parties are given a reasonable opportunity to submit extrinsic evidence. Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). " In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a district court generally must confine itself to the four corners of the complaint and look only to the allegations contained therein." Robinson v. Town of Kent, No. 11 Civ. 2875, 2012 WL 3024766, *4 (S.D.N.Y. July 24, 2012) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)).
To survive a motion to dismiss, a party need only plead " a short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2), with sufficient facts " to sho[w] that the pleader is entitled to relief[,]" Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). Under this standard, the pleading's " [f]actual allegations must be enough to raise a right of relief above the speculative level," id. at 555, and present claims that are " plausible on [their] face," id. at 570. " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). " Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, " when the allegations in a complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has " not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be dismissed," id. at 570.
In considering a motion to dismiss, the Court may consider documents attached as an exhibit thereto or incorporated by reference, documents that are " integral" to plaintiff's claims, even if not explicitly incorporated by reference, and matters of which judicial notice may be taken. Thomas v. Westchester County Health Care Corp., 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002) (citations omitted). To incorporate a document by reference, " the Complaint must make a clear, definite and substantial reference to the document[ ]." Id. at 275-76 (citations omitted). Moreover, " when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure." Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (on a motion to dismiss, a court may consider " documents attached to the complaint as an exhibit or incorporated in it by reference, [ ] matters of which judicial notice may be taken, or [ ] documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." ).
Notably, " a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Chambers, 282 F.3d at 153.
" Rule 12(b) gives district courts two options when matters outside the pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material." Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000). Thus, while a court must convert a motion to dismiss for failure to state a claim into a motion for summary judgment if " matters outside the pleadings are presented to and not excluded by the court," Fed.R.Civ.P. 12(d), conversion is not required if the court disregards the extrinsic material. Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006) (matters outside the pleadings presented to the court were " excluded" within the meaning of Rule 12(d) by the district court's explicit refusal to consider the outside materials).
Gander Mtn. argues that Islip's claims are deficient in several respects. First, as to Islip's breach of contract claim, Gander Mtn. argues that the Lease expressly prohibits rent acceleration and, therefore, Islip cannot bring a claim for future rents. See Dkt. No. 10 at 10-11. Gander Mtn. further argues that Islip cannot bring a claim based upon Gander Mtn.'s alleged failure to repair and restore the Premises when Islip has proof that such repairs have been made and because Islip has, by its own conduct, impeded the issuance and cashing of insurance proceeds. Id. at 11-12. Gander Mtn. also contends that Islip's breach of contract claim based upon Gander Mtn.'s purported failure to insure the Premises fails because it is impossible for Gander Mtn. to obtain an all-risk policy and the Premises are, in fact, insured as an empty space. Id. at 12-13.
Second, Gander Mtn. argues that Islip has not stated a claim for constructive trust because it has failed to allege the existence of a fiduciary or confidential relationship and that it has no adequate remedy at law. Gander Mtn. also argues that there has been no transfer of funds, and ...