United States District Court, S.D. New York
Joshua R. Elias, Esq., Gibbons P.C., New York, NY, for Plaintiffs.
Robert J. Tolchin, Esq., The Berkman Law Office, LLC, Brooklyn, NY, for Defendant.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Maple Leaf Foods ("Maple Leaf') brings this diversity action against Ultra Green Energy Services ("UGES") for multiple causes of action, including: (1) common law breach of contract; (2) Uniform Commercial Code breach of contract; (3) breach of covenant of good faith and fair dealing; (4) action for accounting; (5) unjust enrichment; (6) promissory estoppel; and (7) punitive damages. UGES now moves to dismiss the entire Complaint for lack of personal jurisdiction or improper venue, or alternatively to transfer venue. UGES also moves to dismiss the following causes action for failure to state a claim: (1) common law breach of contract; (2) breach of covenant of good faith and fair dealing; (3) unjust enrichment; and (4) punitive damages. For the following reasons, UGES's motion to transfer venue is GRANTED.
A. The Parties
Maple Leaf is a publicly-traded corporation organized and existing under the laws of Canada, with its principal place of business in Toronto, Ontario, Canada. Rothsay is a former division of Maple Leaf. UGES is a limited liability company existing under the laws of the State of Delaware, with its principal business address in Chicago, Illinois. Maple Leaf and UGES have contracted with one another for the provision of Biodiesel ("Methyl Esters") since 2009,  and UGES maintained substantial operations in New York for a number of years.
Maple Leaf alleges that UGES ceased all business operations in both Chicago and the New York metropolitan area well before the Complaint was filed. UGES closed its New York City offices in November 2012, and surrendered its registration as a foreign limited liability company to New York State on January 11, 2013. UGES vacated its office space in Chicago in July 2013, and was no longer in good standing in the State of Illinois as of January 1, 2014. UGES argues that, "[w]hile [UGES] is winding down its operations, it continues to be headquartered and domiciled in the jurisdiction in which it was always headquartered and domiciled: Illinois."
B. The Sales Order and Alleged Breach
By a sales order dated September 10, 2012 (the "Contract"), Rothsay agreed to sell UGES roughly 500, 000 gallons of Methyl Esters for $4.22 per gallon. The Contract was negotiated and executed in Canada by Rothsay and in Chicago by UGES. The Contract provided that Rothsay would deliver five railcars of Methyl Esters to UGES per month for a total of four months. UGES would pay either in advance or within ten days of each shipment. The Contract listed the origin of the shipments as Sainte-Catherine, Canada, and the final destination as New Hyde Park, New York. It further established that the risk of loss would shift from Rothsay to UGES at the transfer point in Laurenco, Canada.
From mid-September 2012 through mid-October 2012, Rothsay sent six railcars to UGES through four separate shipments. Although UGES accepted all of the shipments, it only paid $39, 000 of the total amount due, leaving $590, 121.80 outstanding.
On or before November 6, 2012, Jay Pierce, a former co-managing member of UGES, admitted by email that UGES owed Rothsay approximately $590, 000 for the six railcars. Pierce also advised Rothsay by telephone that UGES was insolvent and would be unable to pay the balance due or to accept further shipments under the Contract.
In addition to the $590, 121.80 owed on the six railcars, Rothsay claims damages of $9, 669 in storage costs and $163, 599.48 in lost profits, yielding total ...