United States District Court, S.D. New York
For DeWitt, Plaintiff: Peter J. Biging, Esq., GOLDBERG SEGALLA LLP, New York, NY.
For Eisenberg, Defendant: Aaron Warshaw, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., New York, NY.
ROBERT W. SWEET, U.S.D.J.
Plaintiff DeWitt Stern Group Inc. (" DeWitt" or " Plaintiff" ) moves for permission to amend its First Amended Complaint (" FAC" ) to add a claim of unjust enrichment against Defendant Eisenberg (" Eisenberg" or " Defendant" ) and Arthur J. Gallagher & Co. (" Gallagher" ) (collectively, the " Defendants" ).
For the reasons set forth below, Plaintiff's motion is granted with respect to Eisenberg and denied as to Gallagher.
Procedural History & Facts
The procedural history and facts underlying this action were previously set forth in opinions by this Court dated October 29, 2013. ( See Docket No. 39.) Knowledge of the general background of this case is assumed. Certain facts are repeated in part as relevant to the instant motions.
DeWitt is a privately held insurance brokerage and risk management firm, specializing (in part) in insurance for the entertainment industry, with its primary place of business operations and senior management located in New York.
Eisenberg is an established insurance broker. (Affidavit of Richard Eisenberg (" Eisenberg Aff." ); ¶ 2-8.) From 2007 until May 6, 2013, Eisenberg was employed by DeWitt as a Senior Vice President and producer, with his primary responsibility to sell film insurance products and oversee the handling of client accounts. Eisenberg is currently employed by Gallagher.
Prior to Eisenberg's employment at DeWitt, he worked at Aon/Albert G. Reuben Insurance Services, Inc. (" Aon/AGRIS" ) from 2001 until 2007. (Eisenberg Aff. ¶ ¶ 3, 10.) When he joined Aon/AGRIS, he was purportedly compensated for the sale of his business, client accounts and goodwill in the amount of $400,000. (Declaration of Charles Johnson, (" Johnson Decl." ); ¶ 5.) Eisenberg was also subject to a covenant not to compete with regard to the business accounts he had sold to Aon/AGRIS. (Eisenberg Aff. ¶ 10.)
In 2007, Eisenberg left Aon/AGRIS and joined DeWitt. In light of Eisenberg's non-competes, DeWitt detailed in his contract that his employment would include " the purchase of [his] present and future book of business related to the insurance business," (see Eisenberg-DeWitt October 9, 2007 Agreement (" DeWitt Initial Contract" )), and provided that DeWitt would
assume the obligation to indemnify and defend Eisenberg against any claims that might be asserted by Aon/AGRIS resulting from Eisenberg's " servicing or accepting new insurance applications for, and/or placing insurance on behalf ...