United States District Court, S.D. New York
DAVID A. COHEN and JORDCAM REALTY, LLC, Plaintiffs,
LEE MAHER and SOLARBLUE, LLC, Defendants.
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
David A. Cohen and JORDCAM Realty, LLC
(“JORDCAM”), bring this action for breach of
contract against defendants Lee Maher and SolarBlue, LLC
the Court is defendants' motion to dismiss the amended
complaint (Doc. #20) based on (i) lack of personal
jurisdiction under Fed.R.Civ.P. 12(b)(2); (ii) forum non
conveniens, which the Court construes as a motion to
transfer venue under 28 U.S.C. § 1404(a); and (iii)
failure to state a claim under Fed.R.Civ.P. 12(b)(6). (Doc.
reasons set forth below, the motion is DENIED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
deciding the pending motion, the Court accepts as true all
well-pleaded allegations in the amended complaint, along with
“any documents attached to that pleading or
incorporated into it by reference, any documents that are
integral to the plaintiff's allegations even if not
explicitly incorporated by reference, and facts of which the
court may take judicial notice.” BLT Rest. Grp. LLC
v. Tourondel, 855 F.Supp.2d 4, 15 (S.D.N.Y. 2012)
(internal quotation marks omitted).
Cohen is a New York citizen and the sole member of plaintiff
JORDCAM. Defendant Maher and his wife Mary Maher, a
non-party, are Florida citizens and are the sole members of
defendant SolarBlue, which is registered in Florida and
organized under Florida law.
2008, SolarBlue began securing long-term contracts, known as
Energy Savings Agreements (“ESAs”), with various
vacation properties, including Wyndham and Hilton vacation
properties, whereby “SolarBlue would implement energy
saving systems at the . . . properties in exchange for
monthly payments.” (Am. Compl. ¶ 16). Pursuant to
these ESAs, SolarBlue would install systems to generate
renewable energy for the property in exchange for monthly
payments for as long as twenty years.
2014, SolarBlue sought to monetize the Wyndham ESAs by
selling the rights to the monthly payments for a lump sum of
cash. Defendants sought plaintiffs' assistance in this
effort, and “Cohen agreed to assist Maher and SolarBlue
. . . in monetizing the revenue stream from the Wyndham ESA
Contracts.” (Am. Compl. ¶ 33). As a condition,
Cohen insisted on exclusivity, meaning that “he would
be compensated in the event SolarBlue . . . entered into any
transaction monetizing the revenue stream from the Wyndham
ESA Contracts, regardless of whether or not Cohen was the
procuring source of the transaction.” (Id.).
20, 2014, after weeks of negotiation, JORDCAM through Cohen
and SolarBlue through Maher entered into a written agreement
(the “Agreement”), which provided for Cohen to
receive a fee of eight percent of the value of the monetized
ESAs from the Wyndham and Hilton properties, and for Cohen to
be engaged on an exclusive basis. “The Agreement
recited that ‘the Company [defined to include Maher,
SolarBlue, and its affiliates] seeks to monetize the cash
flows of Wyndham and Hilton properties for which they have,
or shall enter into, energy savings or other lease
agreements, leases, and/or other contracts (the
“Contracts”) throughout the United States and
other territories and countries (the
“Properties”).'” (Am. Compl. ¶ 41,
quoting Cohen Decl. Ex. 5). The Agreement provides, in
1 . In consideration of Cohen to assist the Company to
arrange the Financing,  the Company will pay to Cohen an amount
equal to eight percent (8.00%) of the total commitments of
the Financings for all or any portion of the Properties,
which shall be earned and paid by the Company upon the
closing of a Financing (the “Fee”). Cohen shall
be paid the Fee by the Company via wire transfer from escrow
in certified U.S. Dollars to the designated bank account
coordinates designated by Cohen. This Agreement shall be an
exclusive arrangement granted to Cohen, except with respect
to Energy Savings Agreements entered into between Solar Blue
and a lessee after the date hereof and the Company's
obligation to pay the Fee shall survive with respect to any
Financing arranged by the Company or otherwise. Cohen shall
act solely as the Company's agent under this Agreement
and as an independent contractor, and not as the
Company's partner or joint venturer.
(Cohen Decl. Ex. 5 ¶ 1 (footnote added)).
the parties came to realize Cohen could assist SolarBlue in
monetizing other ESAs, and Cohen recognized that SolarBlue
might enter into Financings regarding new ESAs with parties
Cohen had previously introduced to SolarBlue and Maher and
the Agreement did not provide for Cohen to receive the Fee
for those Financings, the parties sought to amend the
3, 2014, the parties agreed to an amendment (the
“Amendment”), which provides, in relevant part:
2. Section 1 of the Agreement is hereby amended and replaced
to read as follows:
In consideration of Cohen to assist the Company to arrange
the Financing, the Company will pay to Cohen an amount equal
to eight percent (8.00%) of the total commitments of the
Financings for all or any portion of the Contracts,
Properties or other Financings, which shall be earned and
paid by the Company upon the closing of a Financing (the
“Fee”). Cohen shall be paid the Fee by the
Company via wire transfer from escrow in certified U.S.
Dollars to the designated bank account coordinates designated
by Cohen. This Agreement shall be an exclusive arrangement
granted to Cohen. The terms of this Agreement shall be
applicable to any future Financings of the Company or its
affiliates, with or without involving the Contracts,
Properties or otherwise, which involves financing sources or
parties that are or were introduced by Cohen to the Company,
and the Company's obligation to pay the Fee shall survive
with respect to any Financing arranged by the Company or
otherwise. Cohen shall act solely as the Company's agent
under this Agreement and as an independent contractor, and
not as the Company's partner or joint venturer.
(Cohen Decl. Ex. 8 ¶ 2).
in 2014, SolarBlue negotiated with both Lance Capital LLC
(“Lance Capital”) and TowPath Renewables
(“TowPath”) to monetize the Wyndham ESAs. Cohen
introduced Lance Capital, but not TowPath, to SolarBlue, but
he was involved in the negotiations with both. Through 2014
and early 2015, “Cohen continued to provide SolarBlue
with services for both potential transactions.” (Am.
Compl. ¶ 58).
SolarBlue was still negotiating with both TowPath and Lance
Capital, defendants sought to renegotiate the relationship
with Cohen. “[I]n early July 2015, [d]efendants asked
Cohen to accept $95, 500 (or roughly three percent (3%) of
the transaction value) as his compensation for the closing of
the TowPath transaction, which [d]efendants advised Cohen was
the transaction most likely to close at that point in
time.” (Am. Compl. ¶ 61). Defendants informed
Cohen they would not pay him any compensation unless he
agreed to the reduced fee, but Cohen refused to renegotiate
to the lower fee. In response, defendants stopped
communicating with Cohen about the Wyndham ESAs or otherwise,
despite Cohen's repeated attempts to correspond.
October 2015, defendants agreed to a Financing for the
Wyndham ESAs with TowPath for approximately $3, 200, 000.
Defendants refused to pay plaintiffs anything.
allege defendants had many contacts related to New York
throughout the course of these events. Specifically,
plaintiff alleges “[t]he Agreement and the Amendment
were made in New York, and were executed by Cohen while he
was located in New York.” (Am. Compl. ¶ 52).
Moreover, plaintiffs allege “Maher, in his individual
capacity and on behalf of SolarBlue . . . came to New York
for several meetings in connection with the Agreement and the
efforts to monetize the Wyndham ESA Contracts, including
meetings with Cohen, Lance Capital, ” and other
companies. (Id. ¶ 57). Finally, the Agreement
includes a choice of law clause designating New York's as
the governing law.
Rule 12(b)(2) Motion to Dismiss for Lack of Personal
motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2), “plaintiff[s] bear the burden of
showing that the court has jurisdiction over [each]
defendant.” In re Magnetic Audiotape Antitrust
Litig., 334 F.3d 204, 206 (2d Cir. 2003). Prior to
conducting discovery, plaintiffs may defeat a motion to
dismiss “by pleading in good faith legally sufficient
allegations of jurisdiction.” Ball v. Matallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990). Plaintiffs can also make this showing through their
own affidavits and supporting materials containing an
averment of facts that, if credited, would suffice to
establish jurisdiction over defendants. Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001).
“[W]here the issue is addressed on affidavits, all
allegations are construed in the light most favorable to the
plaintiff[s] and doubts are resolved in the plaintiff[s']
favor.” A.I. Trade Fin., Inc. v. Petra Bank,
989 F.2d 76, 79-80 (2d Cir. 1993). ...