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Rivero v. Intl Fcstone, Inc.

United States District Court, S.D. New York

March 20, 2015

MARIO RIVERO, Plaintiff,
INTL FCStone, Inc., Defendant.


PAUL A. CROTTY, District Judge.

Plaintiff Mario Rivero sued Defendant INTL FCStone, Inc. ("INTL") for breach of contract, quantum meruit, unjust enrichment, and promissory estoppel, arising out of INTL's alleged failure to compensate Plaintiff for his services in helping INTL obtain Mercon Coffee Corporation ("Mercon"), as a client for INTL's financial services. Plaintiff also seeks a declaration that he is entitled to future compensation. INTL moves to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, and Fed.R.Civ.P. 12(b)(6)) for failure to state a claim. For the reasons set forth below, INTL's 12(b)(1) motion is DENIED, and its 12(b)(6) motion is GRANTED.


Plaintiffs Complaint alleges that in 2012) INTL, a financial advisory firm, sought an engagement to provide banking and advisory services to non-party Mercon, in connection with the "planned sale of one or more of Mercon's businesses." Compln. ¶ 2. Plaintiff entered into a "binding agreement" with INTL, pursuant to which Plaintiff agreed to assist INTL in procuring Mercon as a client. ld. ¶¶ 2, 22. In return, INTL agreed to pay Plaintiff: (1) 10% of INTL's "initial and subsequent retainer fees" from Mercon, (2) 10% of INTL's success fee up to 2% of its total transaction with Mercon, and (3) 50% of any success fee earned by INTL in excess of 2% of the total transaction. ld. ¶ 3.

In February 2012, Plaintiff"initiated the relationship" between INTL and Mercon and "effectuated an introduction" between Mercon's CFO and INTL representatives. ld. ¶ 11. He also facilitated the execution of a non-disclosure agreement and the exchange of information between INTL and Mercon. Id. ¶ 12. In March 2012, Plaintiff attended in-person meetings with INTL in New York, and arranged and participated in teleconferences between INTL and Mercon. ld. ¶ 13. In February and March 2012, and "throughout the third quarter of 2012, " Plaintiff participated in meetings with INTL and Mercon in Florida. ld. Plaintiff "forewent employment opportunities" in order to perform services for INTL. Id. ¶ 38.

In April-May 2013, Mercon retained INTL in connection with the sale of Mercon securities. Id. ¶ 15. Mercon has "paid retainer fees to INTL" and has agreed to pay INTL a success fee "upon the consummation of a transaction." ld. ¶ 16. On June 21, 2013, Plaintiff's counsel sent a letter to INTL demanding payment of"[Plaintiffs] portion of the retainer fees" that Mercon had paid INTL. Plaintiff also sought INTL's acknowledgement that it would honor its "payment obligations to [Plaintiff] going forward." ld. ¶ 17. INTL refused Plaintiffs demands. Id. ¶ 18. On "numerous subsequent" occasions, Plaintiff sought payment from INTL, but INTL continued to "withhold [Plaintiff's] compensation." ld. ¶ 19.


I. Subject Matter Jurisdiction

To invoke federal diversity jurisdiction, the amount in controversy must exceed $75, 000. See 28 U.S.C. § 1332(a). The party invoking federal jurisdiction bears "the burden of proving that it appears to a reasonable probability' that the claim is in excess of the statutory jurisdictional amount." TongkookAm., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (citation omitted). The burden is "hardly onerous, " however, because there is "a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy." Scherer v. Equitable Life Assurance Soc'y, 347 F.3d 394, 397 (2d Cir. 2003) (citation omitted).

To overcome this presumption, the party opposing jurisdiction must show "to a legal certainty" that the amount recoverable is less than $75, 000. Id. "[E]ven where [the] allegations leave grave doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted." Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982). Moreover, an anticipatory commission may satisfy the amount-in-controversy requirement, even if it is unlikely that the commission will be realized. See Models Nw., Inc. v. Muse Model Mgmt., Inc., 2014 U.S. Dist. LEXIS 124444, at *8 (S.D.N.Y. Sept. 4, 2014).

II. Failure to State a Claim

To survive a motion to dismiss for failme to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A facially plausible claim contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. At the motion to dismiss stage, the court "assess[es] the legal feasibility of the complaint, " but does not "assay the weight of the evidence which might be offered in support thereof." Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011).


I. Subject Matter ...

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