Amto, LLC v. Bedford Asset Mgmt., LLC

168 F.Supp.3d 556

Amto, LLC, Plaintiff,

v.Bedford Asset Management, LLC, Defendant.

Bedford Asset Management, LLC, Third-Party Plaintiff,

v.Energokom, LLC and Ivan Kuznetsov, Third-Party Defendants.

Case No. 14-CV-9913 (KMK)

United States District Court, S.D. New York.

Signed March 10, 2016

Candice D. Aiken, Esq., Bronx, NY, Counsel for Plaintiff.

Daniel F. McGuire, Esq., Harold F. McGuire, Jr., Esq., D.F. McGuire & Associates, LLC, White Plains, NY, Counsel for Defendant, Third-Party Plaintiff.

Kenneth J. Katz, Esq., Katz Melinger PLLC, New York, NY, Counsel for Third-Party Defendants.

OPINION & ORDER

KENNETH M. KARAS, United States District Judge

Plaintiff AMTO, LLC (“Plaintiff” or “AMTO”) brings this Action against Defendant Bedford Asset Management, LLC (“Defendant” or “Bedford”), seeking to collect on two unpaid loans on the grounds of breach of contract, account stated, and unjust enrichment. Bedford has asserted two counterclaims against AMTO, alleging a fraudulent conveyance, in violation of N.Y. Debt. and Cred. Law § 276, and a claim of civil conspiracy to commit tortious interference. Bedford also filed a Third-Party Complaint against Energokom, LLC (“Energokom”) and Ivan Kuznetsov (“Kuznetsov” and, collectively with Energokom, “Third-Party Defendants”), alleging the same claims. Before the Court is AMTO's Motion for Partial Summary Judgment, seeking summary judgment on its First and Fourth Causes of Action, the breach of contract claims. (Notice of Mot. (Dkt. No. 42).) AMTO's Motion also seeks to strike Bedford's affirmative defenses and to dismiss Bedford's counterclaims. (Id. ) Also before the Court is Third-Party Defendants' Motion To Dismiss Bedford's Third-Party Complaint in its entirety. (Notice of Mot. (Dkt. No. 39).) For the following reasons, Plaintiff's Motion for Summary Judgment is denied, without prejudice. Plaintiff's Motion To Strike Defendant's Affirmative Defenses is granted in part and denied in part, and its Motion To Dismiss Defendant's Counterclaims is granted. Finally, Third-Party Defendant's Motion to Dismiss the Third-Party Complaint is granted.

I. Background

A. The Facts

1. The Parties

AMTO is a limited liability company existing under the Republic of Latvia. (Def.'s Resp. to Pl.'s Statement of Material Facts Pursuant to Local Civil Rule 56.1 (“Def.'s 56.1”) ¶ 1 (Dkt. No. 50).)¹ Bedford is a domestic limited liability company organized under the laws of the State of Delaware. (Id. ¶ 2.) Energokom is a limited liability company existing under the Republic of Latvia. (Id. ¶ 3.) Bedford asserts that Kuznetsov, through intermediate entities, is the 100% owner of AMTO, (Decl. of Alexander Altman in Opp'n to Third-Party Def.'s Mot. To Dismiss (“Altman Decl. I”) ¶ 3 (Dkt. No. 46)), and that Kuznetsov controls Energokom through indirect majority ownership, (id. ¶ 2).

2. The Bedford Loans

On or about May 29, 2009, Energokom loaned Bedford $100,000 (the “$100,000 Loan”) pursuant to a loan agreement. (Def.'s 56.1 ¶ 4; see also Aff. of Leonid Krizhanovsky in Supp. of Pl.'s Mot. (“Krizhanovsky Aff.”) ¶ 4 (Dkt. No. 43); id. at Ex. 2.) The agreement required that the $100,000 Loan be repaid by May 28, 2010. (Krizhanovsky Aff. Ex. 2, at 1.) Bedford entered into a subsequent agreement with Energokom dated May 28, 2010 regarding the $100,000 Loan, (Def.'s 56.1 ¶ 5), which extended the repayment date for the $100,000 Loan to May 28, 2012, (Krizhanovsky Aff. Ex. 3). Bedford accepted the $100,000 Loan but has not repaid it. (Def.'s 56.1 ¶ 6.)

On or about October 20, 2009, Energokom loaned Bedford an additional $54,000 (the “$54,000 Loan” and, collectively with the $100,000 Loan, the “Bedford Loans”), pursuant to a loan agreement. (Def.'s 56.1 ¶ 7; see also Krizhanovsky Aff. ¶ 9; id. at Ex. 5.) The agreement required that the $54,000 Loan be repaid by December 31, 2010. (Krizhanovsky Aff. Ex. 5, at 1.) Bedford entered into a subsequent agreement with Energokom dated December 31, 2010 regarding the $54,000 Loan, (Def.'s 56.1 ¶ 8), which extended the repayment date for the $54,000 Loan to December 31, 2012, (Krizhanovsky Aff. Ex. 6). Bedford accepted the $54,000 Loan but has not repaid it. (Def.'s 56.1 ¶ 9.)

The loan agreements underlying each of the Bedford Loans contained the following section, entitled “Governing Law”:

This Agreement will be construed in accordance with and governed by the Latvian law and the competent courts of Latvian Republic shall have exclusive jurisdiction to hear all matters arising from or in connection with this Agreement.

(See Krizhanovsky Aff. Exs. 2, 5; see also Altman Decl. I ¶ 5.)

Energokom demanded payment of the Bedford Loans by letter dated July 13, 2012. (Decl. of Leonid Krizhanovsky (“Krizhanovsky Decl.”) ¶ 8 (Dkt. No. 53); Decl. of Alexander Altman in Opp'n to Pl.'s Mot. for Summ. J. (“Altman Decl. II”) ¶ 13 (Dkt. No. 48); id. at Ex. D.)² AMTO and Third-Party Defendants assert that just over a month later, on August 20, 2012, Energokom assigned its rights under the Bedford Loans to AMTO. (See Krizhanovsky Aff. ¶¶ 6, 11; id. at Ex. 4; see also Krizhanovsky Decl. ¶ 9; id. at Ex. 5.) Bedford denies that Energokom “effectively assigned to Plaintiff any of its rights” with respect to the Bedford Loans. (Answer with Counterclaims (“Answer”) ¶¶ 8, 25 (Dkt. No. 4).) Specifically, Bedford's owner, Alexander Altman (“Altman”), contends that the assignment “occurred without fair consideration and was not in the regular course of Energokom's business.” (Altman Decl. II ¶ 11.) Bedford further questions whether the assignment was valid under Latvian law. (Def.'s 56.1 ¶ 13; Decl. of Daniel F. McGuire in Opp'n to (1) Pl.'s Mots. for Summ. J. and Dismissal of Defenses and Countercls., and (2) Third-Party Def.'s Mot. for Dismissal of Third-Party Claims (“McGuire Decl.”) ¶ 10 (Dkt. No. 49); see also id. at Ex. 3.)

AMTO and Third-Party Defendants claim that on August 29, 2012, AMTO sent a letter to Bedford informing it of the assignment of the Bedford Loans from Energokom to AMTO. (See Krizhanovsky Decl. ¶ 10; id. at Ex. 6.)³ Altman vigorously disputes the authenticity of the letter, insisting that he never received, and has never seen, it. (Sur-Reply Decl. of Alexander Altman in Opp'n to Third-Party Defs.' Mot. To Dismiss (“Altman Sur-Reply Decl.”) ¶¶ 4–6 (Dkt. No. 61).)

3. The Tomkins Loan

On or around February 10, 2010, non-party Tomkins Ltd. (“Tomkins”) loaned $300,000 to Energokom (the “Tomkins Loan”), pursuant to a loan agreement. (Krizhanovsky Decl. ¶ 5; id. at Ex. 3; Altman Decl. I ¶ 6; Answer ¶ 44.) The loan agreement contained the following section, entitled “Governing Law”:

This Agreement will be construed in accordance with and governed by English law and the High Court in London shall have exclusive jurisdiction to hear all matters arising from or in connection with this Agreement.

(Krizhanovsky Decl. ¶ 5; id. at Ex. 3.)

On or around June 15, 2012, Tomkins assigned its rights under the Tomkins Loan to UNIX, s.r.o. (“UNIX”). (Krizhanovsky Decl. ¶ 7; Altman Decl. I ¶ 7.) Altman asserts that both he and UNIX are “well known to Kuznetsov and Energokom through prior business dealings,” and that he informed Kuznetsov of the assignment of the Tomkins Loan at or around the time that the assignment occurred. (Altman Decl. I ¶¶ 8–9.) By letter dated September 6, 2012, UNIX sent a demand letter to Energokom. (Id. ¶ 9.) The letter is entitled “1st reminder” and informs Energokom that UNIX acquired the Tomkins Loan. (Id. at Ex. A.) On October 1, 2012, Altman caused Bedford to acquire the Tomkins Loan from UNIX “for fair value.” (Altman Decl. I ¶ 10; see also Krizhanovsky Decl. ¶ 13.)⁴ On October 15, 2012, Bedford notified Energokom that Bedford had acquired the rights under the Tomkins Loan from UNIX. (Altman Decl. II ¶ 14; id. at Ex. E; Krizhanovsky Decl. ¶¶ 15–16.)

4. Prior Proceedings in New York and Latvia

On October 2, 2012, AMTO instituted an action against Bedford in New York State Supreme Court to collect on the Bedford Loans. (Altman Decl. I ¶ 11; Krizhanovsky Decl. ¶ 11; id. at Ex. 7.) The complaint was signed and verified by AMTO's counsel on September 26, 2012. (Krizhanovsky Decl Ex. 7, at 4.) Third-Party Defendants aver that at the time the original complaint was filed, Kuznetsov and Energokom were “entirely unaware that Bedford intended to acquire the rights to the Tomkins Loan from UNIX.” (Krizhanovsky Decl. ¶ 14; Decl. of Ivan Kuznetsov (“Kuznetsov Decl.”) ¶ 2 (Dkt. No. 52).)

AMTO served Bedford with process through the New York Secretary of State on December 24, 2012. (Altman Decl. I ¶ 12; id. at Ex. C.)⁵ Relying on the Latvian choice-of-forum clauses discussed above, Bedford moved to dismiss AMTO's claims on the basis of forum non conveniens and to have the case transferred to Latvian courts. (McGuire Decl. ¶ 3.) On October 7, 2013, Justice Robert DiBella granted Bedford's motion and dismissed the complaint without prejudice, providing AMTO the opportunity to re-commence the action if the Latvian court dismissed the case for lack of jurisdiction. (Id. at Ex. 1.)

On July 7, 2014, a Latvian court issued a decision that apparently refused to accept AMTO's claims against Bedford for adjudication because “the case does not fall within the jurisdiction of th[e] court” and appears to have held that “the claim should be brought in the competent court of the United States of America.” (McGuire Decl. ¶¶ 6–7; id. at Ex. 2.) Bedford's attorney, Daniel McGuire, (“McGuire”), asserts that Bedford never appeared in the Latvian court and that the proceedings there appear to have been entirely ex parte, as Bedford never received copies of any of the papers. (McGuire Decl. ¶ 5.) McGuire also avers that AMTO's current counsel provided a copy of the Latvian opinion to his firm well after the allotted time for an appeal of the decision had passed. (Id. ¶ 6.)⁶

B. Procedural History

AMTO brought the instant Action in New York State Supreme Court, Westchester County, by complaint dated October 6, 2014. (See ...