Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cohen v. Maher

United States District Court, S.D. New York

February 17, 2017

DAVID A. COHEN and JORDCAM REALTY, LLC, Plaintiffs,
v.
LEE MAHER and SOLARBLUE, LLC, Defendants.

          OPINION AND ORDER

          VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.

         Plaintiffs David A. Cohen and JORDCAM Realty, LLC (“JORDCAM”), bring this action for breach of contract against defendants Lee Maher and SolarBlue, LLC (“SolarBlue”).

         Before 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. #47).

         For the reasons set forth below, the motion is DENIED.

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a).

         BACKGROUND

         In 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).

         Plaintiff 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.

         In 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.

         In 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.).

         On May 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 relevant part:

1 . In consideration of Cohen to assist the Company to arrange the Financing, [1] 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)).

         Because 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 Agreement.

         On June 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).

         Beginning 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).

         While 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.

         Around October 2015, defendants agreed to a Financing for the Wyndham ESAs with TowPath for approximately $3, 200, 000. Defendants refused to pay plaintiffs anything.

         Plaintiffs 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.

         DISCUSSION

         I. Legal Standards

         A. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

         On a 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). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.