United States District Court, S.D. New York
Christopher E. Dervan, Plaintiff,
Gordian Group LLC, Defendant.
MEMORANDUM & ORDER
J. NATHAN United States District Judge
Christopher E. Dervan ("Plaintiff or "Dervan")
brings this diversity action against his former employer,
Gordian Group LLC ("Defendant" or
"Gordian"), asserting claims for breach of the
parties' December 2010 severance agreement (the
"Agreement") and unjust enrichment. On February 28,
2017, the Court, granted Defendant's motion to dismiss in
part, and denied the motion in part. See Dervan v.
Gordian Group LLC, No. 16-CV-1694 (AJN), 2017 WL 819494
(S.D.N.Y. Feb. 28, 2017). Before the Court is Plaintiffs
motion for leave to file a Third Amended Complaint
("TAC"), which purports to cure the defects that
resulted in partial dismissal. Dkt. No. 29.
reasons set forth below, Dervan's motion is GRANTED.
Court assumes the parties' familiarity with the matter,
the background of which is more fully described in the
Court's February 28 Opinion & Order. See
Dervan, 2017 WL 819494. For the purposes of the present
motion, a brief summary of the underlying action, its
procedural history, and the Court's previous disposition
was employed by Gordian, an investment bank, as an Associate
and then a Vice President from July 24, 2006 to December 17,
2010. Second Amended Complaint ("SAC"), Dkt. No.
17, ¶ 5. In connection with Dervan's departure from
the firm, the parties entered into an agreement by which
Gordian would continue to provide Dervan with certain
monetary compensation and benefits following the termination
of his employment. SAC Ex. 1("Agreement"), at 1. As
relevant here, Paragraph 2 of the Agreement provides:
If you [(Dervan)] choose to continue to work with us
[(Gordian)] as an outside consultant in regards to Thermacell
through the closing of any transaction that generates a fee,
then you will be entitled to 25% of any such fees received by
SAC ¶ 7; Agreement ¶ 2. The Agreement does not
expressly require Dervan to maintain or acquire any license
or other regulatory authority or clearance in connection with
performing any of the "work" referenced in
Paragraph 2. See generally Agreement; see
also SAC ¶ 15.
the termination of his employment, Dervan did in fact choose
to work as an outside consultant to Gordian with regard to
"Thermacell, " which is alleged to refer to
"certain technology and related products and businesses
using that technology then owned by The Schawbel
Corporation." Id. ¶¶ 7-8. Dervan
alleged that in his capacity as an outside consultant he
provided "valuable services, as appropriate and as
requested by Defendant." Id. ¶¶ 8-9.
The SAC does not otherwise describe Dervan's services in
any great detail.
the course of his post-termination work for Gordian, Dervan
was not registered as a broker-dealer under Section 15(a) of
the Securities Exchange Act of 1934 (the "Exchange
Act") or otherwise registered in any way with the
Financial Industry Regulatory Authority ("FINRA").
Id. ¶ 16.
work ultimately helped Gordian to close a transaction related
to Thermacell in approximately July 2014 by which an entity
affiliated with the private equity firm Kinderhook Industries
acquired The Schawbel Corporation's "Thermacell
Mosquito business" (the "Thermacell
Transaction"). Id. ¶¶ 9-10. Dervan
demanded that Gordian pay him twenty-five percent of the
alleged $1.25 million fee Gordian received upon closing of
the transaction, but Gordian refused. Id.
¶¶ 11, 13.
initiated this action on March 5, 2016, asserting claims for
breach of contract and unjust enrichment. Dkt. No. 1.