Mercator Corp. v. Windhorst
| Decision Date | 10 February 2016 |
| Docket Number | 15–cv–02970 (JGK) |
| Citation | 159 F.Supp.3d 463 |
| Parties | The Mercator Corporation, Plaintiff, v. Lars Windhorst, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Judd Benjamin Grossman, Lindsay Elizabeth Hogan, Grossman LLP, Stanley Merrill Grossman, Pomerantz LLP, New York, NY, for Plaintiff.
Christopher Allegaert, Lauren Jill Pincus, Allegaert Berger & Vogel LLP, New York, NY, for Defendants.
JOHN G. KOELTL
, District Judge:
The plaintiff, the Mercator Corporation (“Mercator”), sued Lars Windhorst and Sapinda Holding B.V. (“Sapinda Holding”) for breach of contract. The defendants now move to dismiss the Amended Complaint on the grounds that the plaintiff failed to sue the proper parties, that the claim is barred by the statute of frauds, and that the Court lacks personal jurisdiction over the defendants. For the reasons explained below, the Amended Complaint is dismissed without prejudice.
The defendants move to dismiss the plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2)
() and 12(b)(6) ().
On a motion to dismiss for lack of personal jurisdiction, “ ‘the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.’ ” Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y.2003)
(quoting Kernan v. Kurz–Hastings, Inc., 175 F.3d 236, 240 (2d Cir.1999). When the Court does not hold an evidentiary hearing and but will “construe jurisdictional allegations liberally and take as true uncontroverted factual allegations.” Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994) (internal citations and footnotes omitted); see also
In deciding a motion to dismiss pursuant to Rule 12(b)(6)
, the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id.
; see also
Springer v. U.S. Bank Nat'l Ass'n, No. 15–cv–1107 (JGK), 2015 WL 9462083, at *1 (S.D.N.Y. Dec. 23, 2015). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)
; see also
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) (); Springer, 2015 WL 9462083, at *1.
The following facts alleged in the Amended Complaint are accepted as true for the purposes of the defendant's motion to dismiss.
Mercator is a New York corporation and merchant bank headquartered in Manhattan and owned and operated by its founder and CEO, James H. Giffen, a New York resident. Amended Compl. ¶¶ 2, 9.
Lars Windhorst, is the co-founder and Chairman of the Board of Sapinda Holding, a Dutch Company. Amended Compl. ¶¶ 3, 10. Windhorst is a German citizen residing in London, and his office is located at the London office of one of Sapinda's subsidiaries, Sapinda UK Limited (“Sapinda UK”). Amended Compl. ¶ 11. The plaintiff filed an original complaint naming Sapinda UK Limited, a British company headquartered in London, as a defendant. Compl. ¶ 10. Sapinda UK Limited was dropped as a named defendant from the Amended Complaint.1
On or about January 31 and February 1, 2014, Windhorst and Giffen met aboard Windhorst's yacht in waters off the Virgin Islands, after being introduced by a mutual acquaintance. Amended Compl. ¶¶ 4–5, 20. The defendants were exploring investment opportunities across Europe, Africa, the Middle East, and Asia, and Giffen came recommended as knowledgeable of and connected to opportunities in Kazakhstan. Amended Compl. ¶¶ 3–4, 18.
The plaintiff alleges that during this meeting at sea, “the essential terms of a collaboration” were “negotiated and agreed upon” and Mr. Windhorst, on behalf of Sapinda, agreed to hire Mercator to “provide consulting and advisory services to Mr. Windhorst and Sapinda in connection with investment opportunities.” Amended Compl. ¶ 5.
After this meeting, Giffen sent an email to Windhorst suggesting they “open a Sapinda office in New York which could be a communication point for all of Sapinda Holding activities.” Amended Compl. ¶ 23. He added that he “look[ed] forward to your [Windhorst's] summary of the agreements we reached today.” Pincus Decl. Ex. 3; see also Amended Compl. 23.
On February 2, 2014, Windhorst sent an email response “on behalf of Sapinda,” Amended Compl. ¶ 25, upon which the plaintiff bases its claims for breach of contract. The email states:
Pincus Decl., Ex. 3; see also Amended Compl. ¶ 25.
The plaintiff contends that this email established a binding contract between Mercator and both Sapinda Holding and Windhorst individually. See Amended Compl. ¶ 6.
The plaintiff alleges that “[t]he parties commenced performance under the Contract almost immediately.” Amended Compl. ¶ 28. The plaintiff alleges that Windhorst sent Giffen emails related to potential investments in Kazakhstan and Ukraine, Amended Compl. ¶¶ 29–30, and that Giffen traveled to London for meetings with some of Windhorst's colleagues on February 27–28, 2014 and on May 20, 2014. Amended Compl. 31, 33–34.
In May and June 2014, Giffen submitted to Sapinda UK Limited invoices, which were paid, for reimbursement of expenses for Giffen's travel to London. The invoices referred to “the agreement reached between Mr. Lars Windhorst and Mr. J.H. Giffen on February 1, 2014 for Mr. Giffen to assist Mr. Windhorst in the strategic development of Sapinda UK Limited.” Pincus Decl. Exs. 6–7; Amended Compl. ¶ 36.
On May 22, 2014, Giffen emailed Windhorst to express disappointment “with the reaction of some of your colleagues with respect to our agreement to work together.” Pincus Decl. Ex. 4. Giffen wrote that he respected Windhorst's “commitment to stand personally behind the agreement we made,” and that he wanted to work with Windhorst “from both a personal and professional standpoint.” He added that he “will very shortly send you a draft document incorporating our agreement” and expressed a willingness to discuss and incorporate “any mutual[ly] acceptable concepts in the draft agreement.” Id.
On May 29, 2014, Giffen sent Windhorst another email. He stated that he and Windhorst “reached agreement on February 1, 2014 that we would work together in the strategic development of Sapinda for a five year period.” Giffen wrote that he “accepted [Windhorst's] offer for our agreement to begin on March 1, 2014.” See Pincus Decl., Ex. 8; see also Amended Compl. ¶ 38. Giffen added that, “[o]ver the last four months, I have done everything in my power to begin executing our agreement” but was “prepared to consider your offer to terminate our agreement to work together” for “a one-time settlement payment of the net present value of only the five year compensation we had agreed upon for me and my staff.” Pincus Decl. Ex. 8.
On June 23, 2014, the plaintiff sent a third invoice to Sapinda UK Limited for $250,000 for a “consultant fee” for the period March 1, 2014 to May 31, 2014. Pincus Dec. Ex. 7; see also Amended Compl. ¶ 39. The invoice referred only to Sapinda UK, not Sapinda Holding.
On April 16, 2015, the plaintiff filed the original complaint against Windhorst and Sapinda UK. The original complaint alleged that Windhorst and Sapinda UK hired Mercator to provide consulting and advisory services “to assist Mr....
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