Brandr Grp. v. Port Auth. of N.Y. & N.J., 1:19-cv-000974 (ALC)

THE BRANDR GROUP, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,JANE & JOHN DOE, AND ABC CORP., Defendants.

1:19-cv-000974 (ALC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 26, 2020

OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge:

INTRODUCTION

Plaintiff The Brandr Group ("TBG" or "Plaintiff") brings suit against The Port Authority of New York and New Jersey ("The Port Authority" or "Defendant"), Jane and John Doe, and ABC Corp., seeking a declaratory judgment (count VI) and alleging claims of unjust enrichment (count I), promissory estoppel (count II), quantum meruit (count III), fraudulent misrepresentation (count IV), and misrepresentation (count V). After careful consideration, Defendant's motion to dismiss is GRANTED. However, Plaintiff is GRANTED leave to amend its Complaint.

BACKGROUND

Unless otherwise indicated, the following facts are drawn from Plaintiff's Complaint and are assumed as true for the purposes of this motion to dismiss. In 2016, the Parties drafted, but did not sign, a Term Sheet for the "Development and Management of Port Authority's Digital Platforms for the World Trade Center" ("Term Sheet"). Compl. ¶ 15, ECF No. 3. Related to this Term Sheet, Plaintiff also created a World Trade Center Digital Strategy and Plan ("WTC Plan"). Id. ¶ 16.

In developing WTC Plan, Plaintiff took several actions including: creating websites, engaging third party vendors and social media platforms, writing computer code, developing tourism programs, and investing in cloudhosting and security functions. Id. ¶ 17-19. Throughout the Parties' relationship, Defendant encouraged or requested Plaintiff perform such work and make said investments. Id. ¶ 20. Defendant also orally provided Plaintiff with assurances that the WTC Plan was approved and that the project would move forward. Id. ¶ 21. On at least one occasion, Defendant's staff introduced Plaintiff as Defendant's "Digital Agent" or "Digital Partner." Id. ¶ 24. Specifically, in January of 2016, Microsoft executives toured the WTC with the Parties' employees. Id. Following the tour, the Parties had a meeting with the executives, where the Defendant's staff referred to Plaintiff as it "Digital Agent" and "Digital Partner." Id. A few months later, in April of 2016, Defendant recommended Plaintiff hire a specific contractor to further develop the WTC Plan. Id. ¶ 26. Plaintiff then used its funds to hire said contractor. Id.

On two separate occasions in June of 2016, a General Manager at Defendant assured Plaintiff that the Defendant's Executive Director would be signing the Term sheet shortly. Id. ¶ 28-29. Thereafter, on November 1, 2016, the Parties met to discuss digital strategy, digital design review and social media strategy. Id. ¶ 30. During this meeting, the Defendant approved Plaintiff's Strategy/Purpose Plan. Id. ¶ 31. Then, in December of 2016, a company entitled Quint Events emailed the Parties, requesting to become the WTC's official travel and tour partner. Id. ¶ 32. Defendant's General Manager gave Plaintiff the authorization to act as its agent and to enter into an agreement with Quint Events. Id. ¶ 33-35. Similarly, Plaintiff requested authorization, and was ultimately granted permission by the Defendant's General Manager, to engage Google and social media platforms on behalf of the Defendant. Id. ¶ 38-44. In total, Plaintiff spent over $2 million on developing the WTC Plan. Id. ¶ 14.

In June of 2017, Defendant informed Plaintiff that it would need to submit a proposal through the Requests for Expressions of Interest ("RFEI") process. Id. ¶ 45. Defendant assured Plaintiff that the process would be expeditious and perfunctory. Id. ¶ 46. On February 6, 2018, after Plaintiff's repeated attempts to formalize the Parties' relationship, Defendant wrote Plaintiff a letter stating that because no executed contract existed, it did not owe Plaintiff anything. Id. ¶ 49. The Parties then met on March 6, 2018. Id. ¶ 50. Afterwards, on March 28, 2018, Defendant sent Plaintiff correspondence that stated "[u]pon further investigation and review of the documents relating to [TBG's] unsolicited proposal, it is clear that these preliminary and informal discussions between [Defendant] and [Plaintiff] were not binding on either party." Id. ¶ 51.

LEGAL STANDARD

When considering a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6), a court should "draw all reasonable inferences in [the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). Thus, "[t]o survive a motion to dismiss, 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)). 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." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleadsfactual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Moreover, "the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Id. at 663.

DISCUSSION

As a preliminary matter, Plaintiff's count seeking a declaratory judgment is dismissed. Plaintiff makes no arguments supporting this claim in its opposition brief. Accordingly, the Court deems this claim abandoned. See Black Lives Matter v. Town of Clarkstown, 354 F. Supp. 3d 313, 328 (S.D.N.Y. 2018) (quoting Johnson v. City of New York, 15-CV-8195, 2017 WL 2312924, at *18 (S.D.N.Y. May 26, 2017)) ("The failure to oppose a motion to dismiss a claim is deemed abandonment of the claim."); see also Simpson v. Wells Fargo Bank, No. 15-CV-1487, 2016 WL 10570967, at *2 (S.D.N.Y. Dec. 15, 2016).

I. Contract based claims

a. Quasi/Implied Contract

"Under New York law, a contract implied in fact may result as an inference from the facts and circumstances of the case, though not formally stated in words, and is derived from the presumed intention of the parties as indicated by their conduct." Sackin v. TransPerfect Glob., Inc., 278 F. Supp. 3d 739, 750 (S.D.N.Y. 2017) (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 506-07 (2d Cir. 2009)). An implied contract is "as binding as one that is express, and similarly 'requires such elements as consideration, mutual assent, legal capacity and legal subject matter.'" Leibowitz, 584 F.3d at 507 (quoting Maas v. Cornell Univ., 94 N.Y.2d 87 (N.Y.1999)); see also Carter v. Katz, Shandell, Katz and Erasmous, 465 N.Y.S.2d 991, 996 (Sup. Ct.1983) (citations omitted) ("The only difference between an express contract and a contract implied infact is that in the former the parties arrive at their agreement by words, while in the latter their agreement is arrived at by a consideration of their acts and conduct; in both cases there is, in fact, a contract between the parties, the only difference being the character of the evidence necessary to establish it."). Additionally, to survive a motion to dismiss a plaintiff must allege "sufficient specific, concrete, factual representations such that they could be interpreted to supply the terms of an implied contract." Hudson & Broad, Inc. v. J.C. Penney Corp., Inc., No. 12 Civ. 3239, 2013 WL 3203742, at *3 (S.D.N.Y. June 18, 2013) (quoting Sang Lan v. Time Warner, Inc., No. 11-cv-2870, 2013 WL 1703584, at *5 (S.D.N.Y. Apr. 19, 2013)).

Here, Defendant argues Plaintiff has not adequately pled the elements of mutual assent or consideration. Further, Defendant asserts the Complaint fails to allege the existence of definite terms concerning compensation and the scope of its responsibilities. In response, Plaintiff argues that the term sheet, assurances from the Defendant's General Manager, the approval of the "Strategy/Purpose Plan," and Defendant's authorization of Plaintiff acting as its agent are sufficiently pled to demonstrate mutual assent. Plaintiff further asserts its investment of $2 million in the project constitutes consideration. Lastly, Plaintiff argues the Term Sheet, the WTC Plan, the Strategy/Purpose Plan, and correspondence between the Parties were sufficiently definite. The Court will address each argument in turn.

"For a contract to exist, there must be 'a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.'" Werner v. Selene Fin., LLC, No. 17-CV-06514, 2019 WL 1316465, at *8 (S.D.N.Y. Mar. 22, 2019) (quoting Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 715 N.E.2d 1050, 1053 (N.Y. 1999)). Although Plaintiff plausibly alleges the Parties reached an agreement as to several terms, Plaintiff's Complaint fails to address the material termof compensation. As a result, Plaintiff has neither sufficiently demonstrated mutual assent to this term nor consideration. See Werner, 2019 WL 1316465, at *8 (quoting Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362, 372 (2d Cir. 2003)) ("[A]n enforceable contract requires mutual assent to the essential terms and conditions thereof."); Freydl v. Meringolo, No. 09 CIV. 7196, 2013 WL 1285286, at *5 (S.D.N.Y. Mar. 29, 2013) (quoting GEM Advisors, Inc. v. Corporacion Sidenor, S.A., 667 F.Supp.2d 308, 326 (S.D.N.Y. 2009)) ("The consideration to be paid under a...