United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D.J.
Stardust Monte-Carlo, S.A.R.L. (“Stardust”)
brings this motion to dismiss the three counterclaims
asserted by Defendant Diamond Quasar Jewelry, Inc.
(“Diamond Quasar”). Doc. 17. For the reasons set
forth below, Plaintiff's motion is GRANTED in part and
DENIED in part.
FACTUAL AND PROCEDURAL BACKGROUND
operates a jewelry boutique at the Hermitage Hotel in Monaco.
Answer to Complaint and Counterclaims
(“Countercl.”) (Doc. 10) ¶¶ 30-31.
Diamond Quasar is a New York corporation that creates and
sells timepieces and jewelry. ¶¶ 6, 24.
2011, Stardust has assisted Diamond Quasar in a jewelry
exhibition held annually in Monaco. Id. ¶ 25.
In 2016, the annual exhibition was to be held in August in
the ballroom of the Hermitage Hotel, and Stardust agreed to
assist Diamond Quasar again. Id. ¶¶ 28-29.
Stardust has alleged that its contract with Diamond Quasar
entitled it to a portion of Diamond Quasar's proceeds
from the August exhibition with a minimum commission of $300,
000.00. See Compl. (Doc. 1) ¶ 11. Stardust further
alleged that Diamond Quasar's sales during the exhibition
were sufficiently voluminous that it is owed more than $300,
000.00; despite this, it alleged that it received no
remuneration whatsoever from Diamond Quasar. Id.
December 23, 2016, Stardust filed its Complaint in this
matter, alleging breach of contract. See Compl. On January
27, 2017, Diamond Quasar filed its Answer and Counterclaims,
seeking damages for breach of the implied covenant of good
faith and fair dealing, breach of fiduciary duty, and
tortious interference with prospective business relations.
See Countercl. ¶¶ 24-48. According to Diamond
Quasar, during the August 2016 exhibition, one of
Stardust's principals approached Diamond Quasar
customers, escorted them from the hotel ballroom, and brought
them to Stardust's boutique in the hotel so that he could
make sales to those customers on behalf of Stardust rather
than Diamond Quasar. Id. ¶¶ 30-31. Diamond
Quasar alleges that it lost sales to those customers and
other potential customers, damaging the company by at least
$1 million. Id. ¶¶ 32-33. The company also
denied Stardust's allegations and stated that it made no
payment to Stardust because “no payments are due or
owing to it.” Id. ¶¶ 12-13.
March 28, 2017, Plaintiff filed this motion to dismiss
Diamond Quasar's counterclaims. See Doc. 17.
applicable standard for a motion to dismiss a claim pursuant
to Rule 12(b)(6) also applies to a motion to dismiss a
counterclaim pursuant to Rule 12(b)(6). Aspex Eyewear,
Inc. v. Clariti Eyewear, Inc., 531 F.Supp.2d 620, 622
(S.D.N.Y. 2008); Revonate Mfg., LLC v. Acer Am. Corp.,
No. 12 Civ. 6017 (KBF), 2013 WL 342922, at *2 (S.D.N.Y.
Jan. 18, 2013). When ruling on a motion to dismiss pursuant
to Rule 12(b)(6), the court must accept all factual
allegations in the counterclaim as true and draw all
reasonable inferences in the non-moving party's favor.
Koch v. Christie's Int'l PLC, 699 F.3d 141,
145 (2d Cir. 2012). However, the court is not required to
credit “mere conclusory statements” or
“threadbare recitals of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)); see also Kirch v. Liberty Media
Corp., 449 F.3d 388, 398 (2d Cir. 2006)
(“Conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to
defeat a motion to dismiss.”) (quoting Smith v.
Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d
Cir. 2002)) (internal quotations omitted).
support of its motion to dismiss, Stardust relies on two
arguments. First, Stardust argues, the counterclaims are
governed by Monégasque law. Stardust argues that the
counterclaims should be dismissed because Diamond Quasar did
not provide evidence showing that Monaco recognizes claims
for breach of the implied covenant of good faith and fair
dealing, breach of fiduciary duty, and tortious interference
with prospective business relations. See Memorandum of Law in
Support of Plaintiff's Motion to Dismiss
(“Pl.'s Mem.”) (Doc. 19) at 3- 5. Second, and
in the alternative, Stardust argues that each of Diamond
Quasar's three counterclaims fails to state a claim under
New York law. Id. at 5-7.
Failure to State a Claim under Monégasque Law
argues that Diamond Quasar “has failed to state any
claim under Monaco law as [D]efendant failed to establish
that the counterclaims exist under the law of Monaco.”
Pl.'s Mem. at 4. Stardust's position is that Federal
Rule of Civil Procedure 44.1, which allows a court to
consider “any relevant material or source . . . whether
or not submitted by a party” in determining the
substance of foreign law, also requires a party in its
pleading to state the law that applies to each claim and to
prove that its allegations state a claim under that law.
Id. at 4-5. Stardust offers no citation for this
in this District have routinely held that when “parties
fail to provide information as to the content of applicable
foreign law, the law of the forum determines how the
[substantive] issue should be resolved.” Dar
El-Bina Engineering & Contracting Co. v. Republic of
Iraq,79 F.Supp.2d 374, 383 (S.D.N.Y. 2000); see also
Shtofmakher v. David, No. 14 Civ. 6934 (AT), 2015 WL
5148832, at *7 n.10 (S.D.N.Y. Aug. 17, 2015) (“Although
Defendants' motion papers may suffice as evidence of
intent to rely on foreign law, Defendants have provided no
evidence concerning the substance of French or Swiss law from
which the court could conclude that Plaintiff has failed to
adequately plead her claims.”); Wujin Nanxiashu
Secant Factory v. Ti-Well Int'l Corp., No. 01 Civ.
8871 (JCF), 2002 WL 1144903, at *2 (S.D.N.Y. May 29, 2002)
(same). Here, Stardust does not point to any way in which
Diamond Quasar's claims would fail under
Monégasque law and offers only the unsupported
proposition that “it is unclear that [Monaco] ...