Michael Bandler & MB & Co. v. BPCM Nyc, Ltd.
| Decision Date | 28 September 2014 |
| Docket Number | 12 Civ. 3512 (PGG) |
| Parties | MICHAEL BANDLER and MB & CO. LTD. d/b/a Bandler and Company, Plaintiffs, v. BPCM NYC, LTD., BPCM WORLDWIDE, LTD., BPCM LA, LTD., BLUE STRIPE, LTD., CARRIE ELLEN PHILLIPS, VANESSA VON BISMARCK, ALI FROLEY and LAURA WOODWARD, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Michael Bandler and MB & Co. Ltd., d/b/a Bandler and Company, bring this action against Defendants BPCM NYC, Ltd., BPCM Worldwide, Ltd., BPCM LA Ltd., and Blue Stripe, Ltd. (the "BPCM Entities"), as well as BPCM principals Carrie Ellen Phillips, Vanessa von Bismarck, Ali Froley, and Laura Woodard (the "Individual Defendants"), in connection with accounting and other financial services that Plaintiffs provided to the BPCM Entities between 2006 and 2012. Plaintiffs assert claims for "services rendered and not paid," breach of contract, unjust enrichment, conversion, and civil conspiracy. Jurisdiction is based on diversity of citizenship. (Am. Cmplt. (Dkt. No. 33) ¶ 2)
Defendants have moved for summary judgment on all of Plaintiffs' claims, except for the Amended Complaint's "First Cause of Action" for "services rendered but not paid." (Dkt. No. 41) Defendants have also moved for sanctions under Fed. R. Civ. P. 11 and 28 U.S.C. § 1927, based on Plaintiffs' conversion and civil conspiracy claims. (Dkt. Nos. 47, 58) For thereasons stated below, Defendants' motion for summary judgment will be granted in part and denied in part, and Defendant's motion for sanctions will be denied.
On January 10, 2006, Plaintiff Michael Bandler and the BPCM Entities entered into an agreement in which Bandler agreed to provide accounting services to BPCM. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 1) The agreement states that Bandler will be paid "a fee for part 1 work of $3,750, a quarterly fee of $795, an annual corporate tax compliance fee of $795 and an annual personal tax compliance fee of $295 per individual." (Id. ¶ 2) The total fees to be paid to Bandler under the agreement amount to $8,315. (Id. ¶ 3) The agreement - which was signed by Bandler and Defendant Carrie Phillips "on behalf of Bismarck Phillips Communication & Media" ("BPCM") - provided that "[e]ither of us may conclude this arrangement upon 60 days written notice to the other." (Id. ¶ 4; Bandler Aff. (Dkt. No. 55), Ex. 30)
Plaintiffs claim that they entered into a second agreement with Defendants in August 2006. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶¶ 45-46) Plaintiffs allege that they agreed to take over "basic bookkeeping" responsibilities for the BPCM Entities beginning on September 1, 2006, and that Defendants agreed to pay Plaintiffs $595 per week for their services through the end of 2006, and then $695 per week beginning on January 1, 2007. (Id.)Basic bookkeeping included client invoicing, client payment posting and deposit, payroll, payroll taxes, vendor bill processing, check preparation and bank reconciliation. (See id. ¶ 44)
The only copy of the alleged August 2006 contract produced during discovery is an unsigned hard copy version that Bandler created on his home office computer. (Pltf. R. 56.1 Stmt. (Dkt. No. 53) ¶¶ 8, 10; see Dec. 23, 2013 Krakowsky Decl. (Dkt. No. 44), Ex. 5) This document is dated August 24, 2006, and states that "[e]ither of us may conclude this arrangement upon 90 days written notice to the other." (Dec. 23, 2013 Krakowsky Decl. (Dkt. No. 44), Ex. 5) Plaintiffs allege that this document reflects the agreed-upon terms of the August 2006 contract. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 47) According to Plaintiffs, Bandler brought this document to BPCM's New York City office in August 2006, where he and Phillips executed it. (Id. ¶¶ 48-49) Phillips kept the original hard copy of the signed document, and a copy was scanned to the "Finance Drive" of the Corporate BPCM computer system.2 (Id. ¶¶ 11, 49) The BPCM Entities and Individual Defendants state that they have no record or recollection of this alleged contract, and no copy of it has been produced in this litigation. (See Def. R. 56.1 Stmt. (Dkt. No. 42) ¶ 9)
Plaintiffs claim that they entered into a third agreement with Defendants in April 2010. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 53) According to Plaintiffs, the April 2010 contract - like the August 2006 contract - was executed by Bandler and Phillips at BPCM's New York City office, and was scanned to the BPCM computer system. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 54) Philips again kept the original executed hard copy of the contract. (Id.) According to Plaintiffs, the third agreement contains the following terms:
3. A written termination notice provision (the "Third Written Notice Termination Provision") of 120 days.
(Id. ¶ 55) Bandler claims that he drafted this contract on his home office computer. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 10) No copy of the alleged April 2010 contract has been produced. (See id. ¶ 11)
Bandler's description of the pre-termination notice period that the parties allegedly agreed to has changed wildly and repeatedly during this litigation. In his initial complaint, Bandler states that the parties entered into an agreement in January 2006 that provided for a pre-termination notice period of 90 days. (Cmplt. (Dkt. No. 1) ¶¶ 15, 17) Bandler further represents in the Complaint that "[a]t no time between 2006 and 2011 did either party change, or request a change to the 90-day notice provision in the initial agreement." (Cmplt. (Dkt. No. 1) ¶ 19) In response to Defendants' interrogatories, however, Bandler stated that the January 2006 contract contained a 60-day notice provision, while the April 2010 contract contained a 90-day notice provision. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶¶ 16-17) At his October 9, 2013 deposition, however, Bandler testified that the April 2010 contract requires "something more than 90 days." (Bandler Aff. (Dkt. No. 55), Ex. 22 ("Bandler Dep. Tr.") at 70-71) Finally, the Amended Complaint - which was filed on October 31, 2013 -alleges that the April 2010 agreement requires 120 days' notice. (Am. Cmplt. (Dkt. No. 33) ¶ 23)
Adding to the confusion, Defendants claim that they never entered into the alleged August 2006 and April 2010 contracts (See Philips Decl. (Dkt. No. 43) ¶¶ 2, 4-5; see also Krakowsky Decl. (Dkt. No. 44) ¶ 6), and - as noted above - no copy of these alleged agreements has been produced in this case. Defendants further claim that Plaintiffs unilaterally changed their fees and overcharged Defendants without Defendant's knowledge for "several years." (See Bandler Aff. (Dkt. No. 55), Ex. 44; Bandler Aff. (Dkt. No. 55), Ex. 15 ("Phillips Dep. Tr.") at 13-14, 17-18)
In a February 27, 2012 conference call, Phillips and von Bismarck informed Bandler that Defendants would no longer be using Plaintiffs' services. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶¶ 5, 60) According to Phillips, Plaintiffs were terminated as a result of complaints about Bandler's aggressive behavior with BPCM clients and employees. (Bandler Aff. (Dkt. No. 55), Ex. 15 ("Phillips Dep. Tr.") at 18) Plaintiffs did not perform any further services for Defendants after the February 27, 2012 conference call. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 6)
In an April 2, 2012 letter to Bandler, Defendants' attorney stated that "to the extent it has not already been made clear, any relationship between [Plaintiffs] and BPCM has been terminated as of February 29, 2012." (Bandler Aff. (Dkt. No. 55), Ex. 44; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 53) ¶ 69)
While Plaintiffs were performing accounting services for Defendants between 2006 and 2012, they purchased two laptop computers that were kept at BPCM's New York office. (Pltf. Resp. R. 56.1 Stmt. (Dkt. No. 53) ¶ 40) One computer was purchased in or about 2006, while the other was purchased in 2009 or 2010, (Id. at ¶ 28) The computers were connected to BPCM's computer servers - where Plaintiffs stored certain files - and Defendants permitted Plaintiffs to access these servers remotely. (Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 50) at ¶¶ 41, 62; see Bandler Aff. (Dkt. No. 55), Ex. 22 ("Bandler Dep. Tr.") at 163) Defendants also provided Bandler with a BPCM email account for Plaintiffs' use. (Id. at ¶ 41)
During the February 27, 2012 phone call - after Bandler was told that his services would no longer be needed - Bandler claims that he "asked for . . . the return of Plaintiffs' [computers and data, which Defendants agreed to." (Id. at ¶¶ 60-61)
Shortly after the call, Bandler sent Phillips and von Bismarck a "confirmation" email, stating:
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