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Inc. v. Bluefin Media, Inc.

United States District Court, W.D. New York

July 13, 2017

ADSON5TH, INC., d/b/a CLICKPAYZ, Plaintiff,




         This action is premised on a contract “[b]etween ClickPayz (Payzonline Inc.) and Bluefin Media (Bluefin).” Docket Item 1-2 at 14.[1] The question now before this Court is simple: Is plaintiff AdsOn5th, Inc., (“AdsOn5th”) a party to this contract? In other words, are the plaintiff and “ClickPayz (Payzonline Inc.)” the same entity?

         The defendants, in a motion to dismiss supported by extrinsic evidence, argue that “ClickPayz (Payzonline Inc.)” is a Canadian corporation called Payz Online Inc., [2]which is not a party to this action. According to the defendants, AdsOn5th is a different corporation, and it therefore lacks standing to enforce the contract. AdsOn5th, by contrast, argues that it must be the “ClickPayz (Payzonline Inc.)” entity named in the contract because it does business under the name “ClickPayz.” For the reasons set forth below, the defendants' motion to dismiss (Docket Item 2) for lack of standing is GRANTED.



         The plaintiff originally commenced this action in New York State Supreme Court, County of Erie, on January 13, 2016. See Docket Item 1-2. In its complaint, the plaintiff alleged, among other things:

● that it, “Adson5th, Inc. d/b/a ClickPayz[, ] . . . is a corporation organized under the laws of the State of Florida . . . with its principal place of business located in Orchard Park, County of Erie, State of New York, ” id. at 4 (¶ 1);
● that it “and Defendant Bluefin Media entered into an Agreement, ” whereby the plaintiff “agreed to sell internet traffic to Bluefin Media, and Bluefin Media agreed to buy internet traffic from [the plaintiff], ” id. at 7 (¶ 14); and
● that the defendants “breached the Agreement when [they] failed to provide payment to Plaintiff . . . in accordance with the terms of the Agreement.” Id. at 7-8 (¶¶ 19, 23).

         On February 18, 2016, the defendants filed a Notice of Removal to this Court, alleging diversity of citizenship as the basis for this Court's subject-matter jurisdiction. See Docket Item 1. Shortly thereafter, on February 25, 2016, the defendants filed the pending motion, which seeks an “Order of this Court pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) dismissing Plaintiff's Complaint in its entirety, with prejudice.” Docket Item 2 at 1. According to the defendants:

[T]he Plaintiff lacks standing to sue on the contract at issue, which is between Defendant Brand Technologies, Inc., doing business as Bluefin Media, and a non-party Canadian corporation, Payzonline Inc. The named Plaintiff here is mentioned nowhere in the contract and cannot assert the rights of the Canadian corporation that is [a] party to [the] contract.

Docket Item 2-1 at 2.

         The plaintiff submitted responding papers on March 11, 2016, arguing that it “clearly is a named party to the Agreement at issue and therefore has standing to assert its claims.” Docket Item 3 at 2. On March 22, 2016, the defendants replied. Docket Item 5. And on March 29, 2016, this Court heard oral argument on the motion.


         In support of their motion to dismiss, the defendants submitted evidence outside the complaint, including two declarations from a corporate officer who signed the contract. See Docket Items 2-2 & 5-1. The defendants argued that this Court may consider evidence outside the complaint because their motion is based on the plaintiff's “lack of standing, which establishes a lack of subject matter jurisdiction under Rule 12(b)(1).” Docket Item 5 at 2 (citing Europe & Overseas Commodity Traders, S.A. v. Banque Paribas London, 147 F.3d 118, 121 n.1 (2d Cir. 1998) and R & B Realty Grp. v. Heiser, 322 F.Supp.2d 206, 208-09 (D. Conn. 2004)).

         At least at first, the plaintiff wholly disagreed with the defendants on that point, arguing that this Court “must limit its consideration to facts stated in the complaint” or to documents integral to the complaint. See Docket Item 3 at 2-3. Nevertheless, the plaintiff also attached some evidence to its responding papers, presumably in an abundance of caution. See, e.g., Docket Item 3-1.

         At oral argument, this Court solicited further briefing from the plaintiff on the issue of which documents outside the complaint, if any, may be considered in connection with the defendants' motion. See Docket Item 6. But a short time later, the plaintiff instead requested permission to submit additional evidence. See Docket Item 7. This Court granted that request. So on April 5, 2016, the plaintiff submitted its additional evidence along with some additional briefing. See Docket Item 8, with attachments. According to that briefing, the plaintiff had revised its position on the submission of evidence and now agreed that this Court may consider competent evidence outside the pleadings “to assure itself of the existence of standing.” See Docket Item 8 at 2-3 (quoting Al-Owhali v. Ashcroft, 279 F.Supp.2d 13, 21 (D.D.C. 2003)).[3] On April 12, 2016, the defendants submitted another memorandum of law-but no additional evidence-in response to the new materials that the plaintiff had submitted. See Docket Item 10.


         The two-page contract at issue is attached to the complaint. See Docket Item 1-2 at 14-15. According to the first line, it is an agreement “[b]etween ClickPayz (Payzonline Inc.) and Bluefin Media (Bluefin).” Id. at 14. After that first line, the contract uses the shortened names “ClickPayz” and “Bluefin” to refer to the parties. Id. at 14-15. The name of the Florida corporation that is the plaintiff in this action-AdsOn5th-does not appear anywhere.

         Most of the substantive provisions of the contract address Bluefin's agreement to “buy traffic”-presumably internet traffic-from ClickPayz. See id. at 14. In other provisions, Bluefin agrees to make payments on an outstanding $150, 000 debt owed to ClickPayz. See id. at 14-15. The contract concludes with a paragraph on choice of law and venue, in which the parties agree that the contract should be “construed and enforced in accordance with the laws of the State of New York.” Id. at 15.

         The only signatures on the contract are those of two individuals, Steve Mandell and Stas Balanevsky, dated May 22, 2015. Id. The signature lines do not indicate which entities, if any, on whose behalf Mandell and Balanevsky signed the contract. But the declarations submitted by the parties reveal that Mandell is “the chairman of Brand Technologies Inc., which does business as Bluefin Media . . . as well as the chairman of Bluefin Media, Inc., ” Docket Item 2-2 at ¶ 1; and that Balanevsky is “the President of AdsOn5th, Inc. d/b/a Clickpayz.” Docket Item 3-1 at ¶ 1. In other words, the contract appears to have been signed by an officer of the plaintiff (Balanevsky) and an officer of the defendants (Mandell).



         The defendants contend that the complaint should be dismissed “with prejudice” because they contracted with a Canadian entity, Payz Online Inc., not with the plaintiff, AdsOn5th. Because the plaintiff is a “non-party to a contract governed by New York law, ” the defendants argue, the plaintiff “lacks standing to enforce the agreement in the absence of terms that ‘clearly evidence[ ] an intent to permit enforcement by the third party' in question.” Docket Item 2-1 at 5 (alteration in original) (quoting Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir. 2009)). Here, they observe, there are ...

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