United States District Court, W.D. New York
DECISION AND ORDER
LAWRENCE J. VILARDO, UNITED STATED DISTRICT JUDGE
action is premised on a contract “[b]etween ClickPayz
(Payzonline Inc.) and Bluefin Media (Bluefin).” Docket
Item 1-2 at 14. 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
defendants, in a motion to dismiss supported by extrinsic
evidence, argue that “ClickPayz (Payzonline
Inc.)” is a Canadian corporation called Payz Online
Inc., 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.
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).
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
[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]
Docket Item 2-1 at 2.
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.
SUBMISSION OF EVIDENCE OUTSIDE THE COMPLAINT
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)).
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.
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)). 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.
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.
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.
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
THE PARTIES' ARGUMENTS
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 ...