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Capital Access Services Inc. v. Direct Source Seafood, LLC

United States District Court, S.D. New York

June 22, 2018


          Leon B. Borstein Avram S. Turkel Ranadeb R Mukherjee Borstein Turkel, P.C. New York, New York Counsel for Plaintiff

          Geri S. Krauss Krauss PLLC New York, New York Counsel for Defendants Direct Source Seafood, LLC and Roman Tkachenko

          Craig L. Steinfeld Anthony J. Sylvester Sherman Wells Sylvester & Stamelman LLP New York, New York Counsel for Defendant EverBank Financial Corp.



         Plaintiff Capital Access Services (“CAS” or “Plaintiff) brings this action against Defendants Direct Source Seafood, LLC (“DSS”), Roman Tkachenko (“Tkachenko”), and EverBank Financial Corp. (“EverBank”) (collectively, “Defendants”) asserting claims for breach of contract against DSS and tortious interference with contract against Tkachenko and EverBank. Defendants move to dismiss Plaintiffs Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Because (1) DSS did not breach its contract with Plaintiff; (2) Tkachenko acted in his representative rather than personal capacity in causing DSS to enter into an agreement with EverBank; and (3) Plaintiff fails to allege intentional conduct on the part of EverBank or Tkachenko in causing an alleged breach, Defendants' motions are GRANTED.

         I. Background[1]

         Plaintiff CAS is a broker specializing in obtaining financing for ongoing businesses. (Am. Compl. ¶ 7.)[2] Ned Gelband is the President of CAS. (Id. ¶ 8.) Tkachenko is an officer of DSS. (Id. ¶ 3.) In August 2014, Gelband and Tkachenko “were introduced to each other by telephone, ” after which they negotiated the terms of a “brokerage agreement” whereby DSS retained CAS to seek out lenders to extend credit to DSS. (Id. ¶¶ 9-12.)

         CAS negotiated with several lenders in New York to seek out financing on behalf of DSS. (Id. ¶ 13.) As part of its work, CAS found Hudson Valley Bank (“HVB”), which had the potential to extend credit to DSS. (Id. ¶ 15.) CAS began negotiating with HVB and informed Tkachenko of its negotiations. (Id. ¶ 16.) In August and September 2014, CAS negotiated a term sheet with HVB through Ken Murphy, who at the time was vice president of HVB's asset-based lending group. (Id. ¶¶ 17-19, 22.)

         On September 25, 2014, CAS organized a meeting at HVB's office in New York City attended by Tkachenko on behalf of DSS; Gelband on behalf of CAS; and three members of HVB's asset-based lending group-Murphy, Mark Fagnani (senior executive of HVB's asset-based lending group), and Matthew Owings (senior underwriter of HVB's asset-based lending group) (collectively, the “Murphy Team”)-on behalf of HVB. (Id. ¶¶ 20-22, 25.) At the meeting, HVB presented the term sheet for the credit facility to DSS, which HVB, DSS, and CAS continued to refine after the September 25, 2014 meeting. (Id. ¶¶ 23, 27.)

         In addition, at the September 25, 2014 meeting, Tkachenko and Gelband discussed a brokerage fee arrangement between CAS and DSS with HVB. (Id. ¶ 24.) During that meeting, Gelband provided Tkachenko with a proposed written memorialization of the fee arrangement, which Tkachenko did not sign at the meeting. (Id. ¶¶ 25-26.) On October 1, 2014, CAS and DSS agreed by letter to the fee arrangement proposed by Gelband (the “Brokerage Agreement”).[3] (Id. ¶¶ 28-29.) The Brokerage Agreement states that DSS “retained [CAS] to assist [DSS] in delivering an acceptable financing facility to DSS.” (Brokerage Agreement 1.) It further provides that “[s]hould CAS succeed in the placement of such financing on behalf of DSS, ” CAS would receive a commission based on certain terms, including, among other things, that: (1) DSS would pay CAS an amount equal to 1% of the total credit facility upon the closing of such financing, (id. ¶ 1); (2) the payment would be due and owing to CAS at the time of such closing, (id. ¶ 2); and (3) CAS would be entitled to a deposit of $15, 000 upon the signing of an acceptable term sheet, (id. ¶ 3). The Brokerage Agreement also provides that:

DSS agrees to compensate CAS at the same rates and terms as those described above, for a period of twenty four months from the date of such initial closing, should any lender involved in such original funding/closing, or have been introduced to DSS through the efforts of CAS, lend to, and/or invest in any subsequent financing on behalf of DSS.

(Id. ¶ 4.)

         On October 1, 2014, HVB sent DSS a final deal letter extending DSS $15, 000, 000 in a senior secured revolving loan facility, to which DSS agreed (the “HVB Loan”). (Am. Compl. ¶¶ 32-33.) DSS wired CAS a $15, 000 deposit pursuant to the Brokerage Agreement on the next day. (Id. ¶ 34.) After additional meetings at which CAS and HVB further negotiated the HVB Loan and Gelband showed the Murphy Team the Brokerage Agreement between CAS and DSS and discussed its enforceability, HVB closed and funded the HVB Loan on December 9, 2014. (Id. ¶¶ 35-37.) Pursuant to the Brokerage Agreement, DSS wired CAS $135, 000 on December 11, 2014 for a total commission of $150, 000, or 1% of the $15, 000, 000 HVB Loan. (Id. ¶ 38.) After the closing of the HVB Loan, Murphy and Gelband continued to meet in New York City and discussed, among other things, additional financing for DSS. (Id. ¶ 40.)

         In March 2015, the Murphy Team and other members of HVB's asset-based lending group moved to EverBank's asset-based lending group. (Id. ¶ 41.) Around the time of the move, Murphy called Gelband to inform him that the Murphy Team had relocated to EverBank and that the HVB Loan would be owned and serviced by EverBank. (Id. ¶ 42.) EverBank currently owns and services the HVB Loan. (Id. ¶ 43.)

         In the summer of 2016, DSS contacted Murphy while he was at EverBank to request EverBank's extension of a $45, 000, 000 credit facility to DSS. (Id. ¶ 44.) In November 2016, nearly two years after the closing of the HVB Loan, Murphy informed Gelband that EverBank was working to complete a $45, 000, 000 credit facility to DSS and that the financing would likely close shortly. (Id. ¶¶ 45-46.) EverBank-through the work of the Murphy Team-closed and funded the $45, 000, 000 credit facility for DSS on November 29, 2016 (the “EverBank Loan”), less than twenty-four months after the closing of the HVB Loan. (Id. ¶ 47.) Plaintiff believes “EverBank created and allowed closing documents for the [EverBank Loan] to state that there was no broker even though it had knowledge of the [Brokerage Agreement] and that CAS was the broker on this transaction.” (Id. ¶ 48.) DSS paid no commission to CAS in relation to the EverBank Loan, despite CAS's demand for payment at some point after the EverBank Loan closed and was funded. (See id ¶¶ 47, 49-52.)

         II. Procedural History

         CAS filed its Complaint in New York State Supreme Court, New York County on January 26, 2017. (Doc. 1 ¶ 1.) It filed the Amended Complaint on February 15, 2017 alleging that DSS breached the Brokerage Agreement by failing to pay CAS a commission on the EverBank Loan and that Tkachenko and EverBank tortuously interfered with the terms of the Brokerage Agreement. (Id. ¶ 2.) On February 24, 2017, the case was removed to this court, on the consent of all parties, on the basis of diversity jurisdiction. (Id. ¶¶ 10-19)

         On May 12, 2017, Defendants DSS and Tkachenko (the “DSS Defendants”) and Defendant EverBank filed separate motions to dismiss.[4] (Docs. 21, 22.) Plaintiff filed its opposition to Defendants' motions to dismiss on June 13, 2017. (Doc. 25.) EverBank filed its reply on June 28, 2017, (Doc. 29), and the DSS Defendants filed their reply on June 29, 2017, (Doc. 31).

         III. Legal Standard

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly,550 U.S. 544, 570 (2007)). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. ‚ÄúPlausibility . . . depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of ...

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