GRAGG v. INTERNATIONAL MGMT. GROUP (UK), INC.

Full title: VIET GRAGG, Plaintiff, v. INTERNATIONAL MANAGEMENT GROUP (UK), INC.…

Court: United States District Court, N.D. New York

Date published: Feb 4, 2004

No. 5:03-CV-904 (N.D.N.Y. Feb. 4, 2004)

Opinion

No. 5:03-CV-904.

February 4, 2004

ROBERT C. KILMER, ESQ., Binghamton, NY, Attorney for Plaintiff.

HANCOCK ESTABROOK, JOHN G. POWERS, ESQ., Syracuse, NY, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

NEAL McCURN, Senior District JudgePage 2

Background

This action arises from the business dealings between plaintiff Viet Gragg, "an independent producer, performer and promoter of entertainment properties[,] . . . engaged in a contractual course of dealing" and defendant IMG, "the world's largest licensing agency for entertainers and entertainment companies." Declaration of Lisa K. Levine (Aug. 29, 2003), exh. A thereto (complaint ("Co.")) at 1, ¶¶ 1-2. Those dealings took place "[f]rom April 19, 2001 through May 2002[.]" Id. at 1, ¶ 3. Gragg alleges that as a result of negotiations between he and IMG they "agreed, . . . to launch a joint venture known as 'IMG Artchives'[.]"Id. at 1-2, ¶ 3. In the end, however, this purported business arrangement between Gragg and IMG never came to fruition.

To place the present motions in context, it is necessary to review in some detail the history of this relationship between Gragg and IMG. Prior to contacting IMG, plaintiff "Gragg [had] obtained rights agreements with music publishers, raised investment capital and marketed Lyricatures." Id. at 6, ¶ 15. This Lyricatures business which "Gragg had developed a decade earlier . . . was to create and administer a branding program that would merchandise the music archives of famous songs by recreating lyrics as greeting cards, limited edition prints, apparel, jewelry and other merchandise." Id. As Gragg envisioned it, "he and IMG would jointly work together in acquiring additional rights to . . . song lyrics for use in Lyricature products through their joint venture[.]" Id. Gragg further anticipated that he and IMG "would . . . secure production and distribution of the products by licensing third parties who in turn would pay a royalty on their sales." Id. at 6, ¶ 16. The royalties would "would then be shared between Gragg, IMG and the rights holders of the lyrics."Id.

After several months of negotiating through "numerous meetings[,] . . . conference calls and . . . extensive . . . e-mail[s,] on October 5, 2001, id. at 7, ¶ 17, the parties executed a document entitled "Consultancy Agreement," wherein plaintiff was "appoint[ed] to act as a consultant to IMG Artists." Levine Decln, exh. B thereto at 1.¹ Among other things, that agreement provides that it " shall be governed by English law and the parties hereby submit to the non-exclusive jurisdiction of English courts." Id. at 3, ¶ 12 (emphasis added).

1 This document is unnumbered. For ease of reference, the court took the liberty of numbering these pages.

Evidently as a result of further negotiations, a document entitled "IMG Artchives Deal memo" was drafted. See id., exh. D thereto at 2.² The stated purpose of that memo was for "IMG Artists and Artchives [to] form a joint venture known as IMG Artchives which will function as an archival branding agency for the Arts." Id. at 2, ¶ 2. Nearly two months later, in an e-mail dated March 28, 2002, from Stephen Wright, the Managing Director of the European office of IMG Artists[,]" Levine Decln at ¶ 4, it indicates that in the meantime discussions ensued between the parties as to a "deal" regarding "[t]he basic concept . . . of an archive branding agency." Id. at ¶¶ s 5 and 1.

2 Again, the court has taken the liberty of numbering this unnumbered document.

Based primarily upon these claimed "agreements," plaintiff asserts 17 separate causes of action against defendant IMG, each of which will be more fully discussed below. IMG is seeking dismissal of two causes of action based upon the doctrine of forum non conveniens, and dismissal of the remaining causes of action for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). IMG also seeks to consolidate counts II and III.

Discussion

Before turning to IMG's substantive arguments, there are procedural points which must be clarified.

I. Rule 12(b)(6) A. Governing Legal Standard

It has long been recognized that a motion to dismiss under Rule 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957) (emphasis added). Consistent with that liberal rule, "[w]hen deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor."The Dweck Law Firm, L.L.P. v. Mann, 02 Civ. 8481, 2003 WL 22480042, at *2 (S.D.N.Y. Nov. 3, 2003) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). "Nonetheless, the Court is not required to accept as true "'conclusions of law or unwarranted deductions of fact.'" Sobel Co. v. Fleck, 03 Civ. 1041, 2003 WL 22839799, at *2 (S.D.N.Y. Dec. 1, 2003) (quoting First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994)) (other citation omitted)), adopted in its entirety, 2004 WL 48877 (S.D.N.Y. Jan. 8, 2004). "'This principle applies with even greater force in a fraud case governed by the more stringent pleading requirements of Fed.R.Civ.P. 9(b)).'" Id.

As the Second Circuit has recognized on more than one occasion, however "[t]he fundamental issue at the dismissal stage is 'not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that recovery is very remote and indeed unlikely but that is not the test.'" Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). "A court's task in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Official Committee v. Coopers Lybrand, 322 F.3d 147, 158 (2d Cir. 2003) (internal quotation marks and citation omitted).

The Second Circuit has cautioned, however, that "[d]espite the pressures to weed out apparently meritless cases at the earliest point, courts must take care lest judicial haste [in dismissing a complaint] in the long run makes waste. . . . Untimely dismissal may prove wasteful of the court's limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts." Phelps, 308 F.3d at 185 (internal quotation marks and citations omitted).

There is one last procedural issue which the court must briefly address, and that is the scope of the documents which it may examine in deciding this Rule 12(b)(6) motion. Plainly, on a motion such as this the court may only consider the allegations in the complaint. There is an exception to that rule, however. On a Rule 12(b)(6) motion the court is "also free to consider documents that are incorporated into the complaint by reference or attached to the complaint as exhibits, or whose terms and effect are relied upon by plaintiff in drafting the complaint."Gryl ex rel. Shire Pharmaceuticals Group PLC v. Shire Pharmaceuticals Group PLC, 298 F.3d 136, 140 (2d Cir. 2002),cert. denied, 537 U.S. 1191, 123 S.Ct. 1262 (2003) (citation omitted).

As part of his opposition to this motion, plaintiff has submitted four documents, which although not attached to his complaint are referenced therein. One of the documents is entitled "consultancy agreement[.]" Levine Decl'n, exh. B thereto at 1. The other three documents are a "deal memo[,]" a "revised version of the Deal Memo[,]" and an e-mail from J. Stephen Wright, the Managing Director of the European office of IMG Artists,³ to plaintiff. See id., exhs. C-D thereto. As IMG notes in the accompanying declaration of one of its attorneys, each of these four documents is referred to in the complaint. See id. at 3, ¶¶ 13-15. Consequently, IMG urges the court to consider these documents in resolving this motion to dismiss. Given the case law just recited, as well as the fact that plaintiff is not objecting to the court's consideration of same, in resolving IMG's motion to dismiss the court will take these four outside documents into account.

3 Levine Decl'n at 2, ¶ 4.

B. Choice of Law

The next issue is which law applies — New York State law, English law, or perhaps a combination of both depending upon the cause of action. To show that there is a choice-of-law issue the party claiming the same, here, IMG, should address the issue of whether there is an actual conflict. See Fieger v. Pitney Bowes Credit Corporation, 251 F.3d 386, 392 (2d Cir. 2001) (internal quotation marks and citation omitted) ("In New York, the forum state in this case, the first question to resolve in determining whether to undertake a choice of law analysis is whether there is an actual conflict of laws.") IMG did not do that, however. For purposes of this analysis only the court will assume that there is "an actual conflict of laws" between New York and English law, at least as to the law governing plaintiff's causes of action based upon the claimed "consultancy agreement," i.e. ("counts" I-III).

Relying upon the plain language of the consultancy agreement which specifically states that "it shall be governed by English law[,]" IMG contends that English law should govern the first three causes of action, which all relate to this purported agreement. See Levine Decl'n, exh. B thereto at ¶ 12 (emphasis added). Plaintiff takes no position with respect to which law applies to those three causes of action.

In this diversity action, the court must apply the choice of law rules of the forum state, which is New York. See PPI Enterprises (U.S.), Inc. v. Del Monte Foods Company, 99 Civ. 3794, 2003 22118977, at *17 (S.D.N.Y. Sept. 11, 2003) (citing, inter alia, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020 (1941)). "'New York courts generally defer to the choice of law made by the parties to a contract[.]'"CAP Gemini Ernst Young, U.S., L.L.C. v. Nackel, 346 F.3d 360, 365 (2d Cir. 2003) (quoting Cargill, Inc. v. Charles Kowsky Res., Inc., 949 F.2d 51, 55 (2d Cir. 1991)) (other citation omitted). Indeed, "New York law is clear in cases involving a contract with an express choice-of-law provision: Absent fraud or a violation of public policy, a court is to apply the law selected in the contract as long as the state selected has sufficient contacts with the transaction." Fieger, 251 F.3d at 393 (internal quotation marks and citation omitted). In the present case, there are no allegations of fraud, bad faith or unfavorable public policy aspects to the parties' choice-of-law provision in the "consultancy agreement."

Furthermore, as the record shows, England has ample contacts with the consultancy agreement so as to justify application of its law to counts I through III, which are directed at that agreement. To illustrate, IMG "is registered to do business in Great Britain and headquartered in London, England[;]" the "Artists" division of IMG "has its headquarters in London," as well. See Levine Decl'n at 1, ¶¶ 2 and 3. The consultancy agreement was signed by plaintiff and by IMG's managing director of the European office of IMG Artists who works and resides in London. See id. at 2, ¶ 4. The allegations in the complaint, which the court must accept as true for purposes of this motion, further show that in negotiating the various agreements at issue herein, there were numerous e-mails and conference calls back and forth between plaintiff in New York and IMG employees in England Therefore, as to counts I-III, alleging breaches of the consultancy agreement, the court will enforce the parties' choice-of-law provision in that agreement.

In contrast to plaintiff's alleged breaches of the consultancy agreement, IMG is ambivalent as to which law should apply to the remaining causes of action (counts IV-XVII). IMG accurately explains that in New York the tests for determining which law applies are different depending upon the nature of the cause of action. To illustrate, with respect to contract claims where no actual written contract exists, New York uses a "'center of gravity' or 'grouping of contacts', with the purpose of establishing which state has 'the most significant relationship to the transaction and the parties.'" Fieger, 251 F.3d at 394 (quoting, inter alia, Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 618 N.Y.S.2d 609, 612 (1994)). There are some similarities between the choice-of-law analysis for a contract claim and that for a tort claim, but they are not identical. "With respect to . . . tort claims, under New York law, 'the relevant analytical approach to choice of law . . . is the 'interest analysis.'" The Mark Andrew of the Palm Beaches, Ltd. v. GMAC Commercial Mortgage Corporation, 265 F. Supp.2d 366, 377 (S.D.N.Y. 2003) (quoting Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 n. 5 (2d Cir. 1997)). "Under the interest analysis, 'the law of the jurisdiction having the greatest interest in the litigation will be applied.'" Id. (other citation omitted).

Rather than arguing for the application of one or the other of those tests, IMG equivocally states that "[u]nder either standard, arguments could be made for the application of either New York law or English law to the remainder of Plaintiff's claims[.]" Defendant's Memo. at 8-9. Either law could be applied, IMG reasons, because "the transactions that form the basis for the Plaintiff's allegations generally took place by e-mail and correspondence between England and New York." Id. at 9. However, relying upon the rule that "'[i]n the absence of a strong countervailing public policy, the parties to litigation may consent by their conduct to the law applied[,]'" Premier Mountings, Inc. v. Clyde Duneier, Inc., 02 Civ. 4897, 2003 WL 21800082, at *2 (S.D.N.Y. Aug. 6, 2003) (quoting Mentor Ins. Co. v. Brannkasse, 996 F.2d 506, 513 (2d Cir. 1993) (other citation omitted)), IMG states that because plaintiff chose "to bring this action and New York and rely on New York law as the basis for some of his claims . . .; . . . [he] can not be heard to complain if New York law is applied to Claims 4-17." Defendant's Memo. at 9. And, in fact, plaintiff is not complaining with respect to the application of New York law to those claims. See Plaintiff's Memo. at 2.

Acknowledging that he did chose to commence this action in New York and that he "is relying on New York law as the basis for certain claims[,]" plaintiff "agrees . . . that New York law should be applied to claims 4 through 17." Id. Consequently, the court will apply New York law to those claims and English law to the first three claims. There is no obstacle to applying the law of two different jurisdictions in the same action. This is especially so considering that "under New York's choice of law rules, the law of different jurisdictions can apply to the tort claims and the contract claims in a given suit." See Lazard, 108 F.3d at 1540 (citation omitted).

C. Contract Claims (IV, V, VIII, IX X) 1. Statute of Frauds

IMG contends that the court should dismiss four of the 17 counts alleged in the complaint because plaintiff cannot satisfy New York's Statute of Frauds with respect thereto. That Statute provides, among other things, that an oral agreement is void if "by its terms if [it] is not to be performed within one year from the making thereof" and there is no written "note or memorandum" of the agreement "subscribed by the party to be charged therewith, or by his lawful agent[.]" N.Y. GEN. OBLIG. LAW § 5-701(a)(1) (McKinney Supp. 2003). IMG is taking the position that the joint venture agreements alleged in counts IV, V, VIII and X violate the Statute of Frauds because they are incapable of performance within a year. Likewise, those claimed agreements do not meet the writing and subscription requirements of that Statute. Plaintiff's responses vary depending upon the count. Therefore the court will separately address counts IV, V, VIII and X and the parties' respective arguments thereto.

a. Count IV

As IGM reads count IV it alleges "an oral two year joint venture agreement (Deal Memo No. 1)." Defendant's Reply at 1. The complaint is not entirely clear on this point, but it appears that an undated document entitled "Deal Memo" and "New Text Document" pertain to the alleged oral agreement which is the subject of count IV. See Co. at 9-10, ¶¶ 26-27 and Levine Decln, exh. C thereto at 1. That particular "Deal Memo" states, among other things that "[t]he term of the joint venture begins on February 1, 2002 and continues for 2 years with an option to extend[.]" Levine Decln, exh. C thereto at 1, ¶ 3. Based upon the foregoing, IGM contends that count IV is deficient under the Statute of Frauds because it is not in writing; nor, by its terms, is that agreement capable of being performed within one year. To further support its argument that count IV does not satisfy the Statute of Frauds, IGM notes that plaintiff's alleged damages "are based on a contemplated multi-year joint venture." Id. (emphasis added) (citing Co. ¶¶ 38, 77 and 88).

Plaintiff responds that count IV, as its heading denotes, is based upon a "disclosure agreement[,]" see Co. at 17 — not upon any of the written joint venture agreements which form the basis for some of the other causes of action. Plaintiff points to the fact that in count IV he specifically alleges that he and IMG " agreed orally that IMG would undertake projects with [plaintiff] in exchange for [him] disclosing proprietary information." Plaintiff's Memo. at 2 (emphasis added) (citing Co. at ¶¶ 54-58). Plaintiff argues that because this oral "agreement could certainly have been met within one year of the date the agreement was made[,]" it does not violate the Statute of Frauds.See id. at 3.

Before determining whether the agreement described in count IV must comport with the Statute of Frauds, the court needs to decide the nature of that agreement. As it must on this Rule 12(b)(6) motion, the court will read the "complaint generously, accepting all the alleged facts as true and drawing all reasonable inferences in favor of the plaintiff." Hochroth v. William Penn Life Insurance Co. of New York, No. 03Civ. 7286, 2003 WL 22990105, at *1 (S.D.N.Y. Dec. 19, 2003) (citations omitted). Reading count IV in that way, and accepting plaintiff's denotation of this claim as one based upon "breach of [a] disclosure agreement[,]" the court interprets that count as alleging a breach of that January 24, 2002 oral disclosure agreement. To read count IV as IMG suggests, i.e. alleging the breach of a two year joint venture agreement, would be contrary to the liberal construction which complaints are to be accorded on Rule 12(b)(6). Moreover, if the court reads count IV as IMG urges, "the venerated rule declaring the plaintiff to be master of the complaint would cease to have any meaning." Deats v. Joseph Swantak, Inc., 619 F. Supp. 973, 978 (N.D.N.Y. 1985).

Having found that count IV alleges the breach of an oral disclosure agreement, the next issue is whether the Statute of Frauds applies to this alleged agreement. "It is well-settled that for a contract to fall within [section 5-701(a)(1)] of the Statute of Frauds, there must be absolutely no possibility of performance of the contract within one year." Thin Film Lab, Inc. v. Comito, 218 F. Supp.2d 513, 529 (S.D.N.Y. 2002) (emphasis added) (internal quotation marks and citation omitted). "The test, then, is possibility or impossibility, rather than probability or improbability, of performance within the statutory period." Canet v. Gooch Ware Travelstead, 917 F. Supp. 969, 988 (E.D.N.Y. 1996) (internal quotation marks and citations omitted). "In other words, a contract that is capable of being performed within one year of its making is outside the Statute." Thin Film Lab, 218 F. Supp.2d at 529 (internal quotation marks and citations omitted).

Applying that rule to the present case, clearly the January 24, 2002 oral agreement is not capable of being performed within one year. Plaintiff is attempting to have the court view this claim as separate and distinct from the alleged breaches of the written agreements also identified in his complaint. These agreements cannot be viewed separately, however, because the alleged breach of the disclosure agreement in count IV is predicated upon the existence of a joint venture agreement. In particular, in count IV plaintiff alleges, inter alia, that the parties had an oral agreement "whereby IMG promised to undertake projects as a joint venture partner with [him] in exchange for [plaintiff] disclosing proprietary information." See Co. at 17, ¶ 55 (emphasis added). Plaintiff is correct that his obligation to provide proprietary information is capable of performance within a year.

The court's inquiry cannot end there however. The court must also consider IMG's reciprocal obligation, as count IV alleges, wherein IMG "promised to undertake projects as a joint venture with [plaintiff.]" Id. Ordinarily New York's Statute of Frauds does not apply to joint ventures. See Canet, 917 F. Supp. at 988. The logic underlying that rule is that "joint ventures are usually not for a stated term but for a stated purpose, and the implicit assumption that, however unlikely, this purpose could be achieved within one year.'" See id. at 989 (internal quotation marks and citation and footnoted omitted). Plaintiff Gragg cannot rely upon this assumption, however, because the joint venture agreement upon which count IV evidently is predicated is "for two years with an option to extend[.]" Levine Decln, exh. C thereto at 1, ¶ 3.⁴ Clearly then, IMG's obligations vis-a-vis plaintiff's disclosure obligations cannot possibly be performed within one year. Thus, plaintiff must satisfy the Statute of Frauds with respect to the oral disclosure agreement alleged in count IV. He has not done that however.

4 As will be seen, even if other alleged agreements between plaintiff and IMG are the predicate for count IV, none of them are capable of performance within one year.

Given plaintiff's allegation that the January 24, 2002 disclosure agreement was oral (which the court accepts as true for purposes of this motion), obviously it could not have been in writing. Thus there is no writing as the Statute of Frauds requires. It is equally clear that this alleged oral agreement does not meet the subscription requirements of section 5-701(a)(1). It is readily apparent that where there is no writing, there can be no subscription. Accordingly, the court grants IMG's motion to dismiss count IV of the complaint for failure to state a claim upon which relief may be granted because the oral agreement alleged therein is unenforceable under the Statute of Frauds.

b. Counts V, VIII and X

The foregoing analysis applies with equal force to the February 1, 2002 and March 28, 2002 "agreements" as alleged in counts V, VIII and X. Count V alleges the breach of a February 1, 2002 "joint venture agreement," which according to plaintiff "was memorialized in the Deal Memo [#1] dated February 1, 2002." Co. at 18, ¶ 60. Paragraph two of that Deal Memo explicitly states: "The term of the joint venture will begin on 1 February 2002 and will continue for an initial period of five years." Levine Decln, exh. D thereto at ¶ 2 (emphasis added). Count VIII alleges the breach of a February 1, 2002 non-competition agreement, which is part of Deal Memo #1. Consequently, the term of that non-competition agreement also is for at least five years.

In count X plaintiff alleges the breach of a joint venture agreement, which purportedly was "memorialized" in a March 28, 2002 e-mail from an IMG employee to plaintiff. See Co. at 22, ¶ 82. That e-mail states that this "deal should be over five years[.]" Levine Decln, exh. E thereto at ¶ 5. Clearly because the agreements alleged in each of counts V, VIII and X are for at least five years, they are incapable of performance within a year. As such those agreements must conform to New York's Statute of Frauds, requiring a "written memorandum" of the agreement "subscribed by the party to be charged." See N.Y. GEN. OBLIG. LAW § 5-701(a)(1). IMG is taking the position, however, that plaintiff has not satisfied either of those requirements insofar as counts five, eight and ten are concerned.

Plaintiff alleges the existence of a "joint venture contract that was memorialized in the Deal Memo dated February 1, 2002." Co. at 18, ¶ 60 and at 20, ¶ 76. In nearly identical language, plaintiff alleges "a joint venture agreement that was memorialized in [IMG's] March 28, 2002 e-mail to [plaintiff]."Id. at 22, ¶ 82.⁵ Assuming arguendo that the two Deal Memos are written memoranda for purposes of section 5-701(a)(1), those documents still do not satisfy he Statute of Frauds subscription requirement.

5 The complaint contains two sets of paragraphs numbered 81-84, but they are for different counts. The above cite is referring to paragraph 82 as alleged in count X.

Subscription for Statute of Fraud purposes is not synonymous with signature. "In applying th[at] statute, one should not overlook the significance of the use . . . of the word 'subscribed'." Scheck v. Francis, 33 A.D.2d 91, 94, 305 N.Y.S.2d 217, 221 (1^st Dep't 1969), aff'd, 26 N.Y.2d 466, 311 N.Y.S.2d 841 (1970). "The subscription which th[at] statute demands is a writing at the end of the memorandum[,]" which "should not be confused with" the writing requirement for a sale of goods, i.e. "that the writing be 'signed'[.]" Steinberg v. Universal Machinenfabrick GMBH, 24 A.D.2d 886, ___ 264 N.Y.S.2d 757, 759-60 (2^nd Dep't 1965), aff'd, 18 N.Y.2d 943, 277 N.Y.S.2d 142 (1966) (citations omitted) (emphasis added). "[T]he statutory provision for a subscription requires a signature made with an intent to authenticate statements in existing writings as a note or memorandum of the alleged agreement." Scheck, 33 A.D.2d at 94 (citations omitted).

Despite plaintiff's assertion to the contrary, Deal Memo No. 1, which is the basis for counts V and VIII, does not have the requisite subscription. The document entitled "IMG Artchives Deal Memo[,]" which is a part of what has been designated Deal Memo #1, has a place at the end for plaintiff and defendant each to sign, but IMG did not do so. See Levine Decl'n, exh. D thereto at 4. Nor, for that matter, did plaintiff. See id. Obviously then, this Deal Memo does not satisfy the Statute of Frauds' subscription requirement.

Moreover, the February 1, 2002 e-mail which is included with that Deal Memo, and which IMG describes as a "cover letter,"see Levine Decl'n at ¶ 14, does not contain a subscription either. That e-mail was from an IMG employee, Claire Dacam, id. at ¶¶ 6 and 14, but it is unsigned and hence not in conformity with the Statute of Frauds. See Sel-Lab Marketing, Inc. v. Dial Corp., No. 01 CIV. 9250, 2002 WL 1974056, at *8 (S.D.N.Y. Aug. 27, 2002) (several e-mails purportedly memorializing an oral agreement insufficient to satisfy statute of frauds partly because they were not signed by the party to be charged); see also G.R. Toghiyany v. Amerigas Propane, Inc., 309 F.3d 1088, 1091 (8th Cir. 2002) (citation omitted) (declining to infer enforceable contract because, among other reasons, various e-mails and draft agreements were unsigned). Even if Ms. Dacam's name on the "from" line of that e-mail is deemed her "signature," nonetheless, the Statute of Frauds is not met as to this February 1^st e-mail because her name is at the top, not at the bottom of that document. Thus, her name at the top does not serve the underlying purpose of subscription which "is to prevent fraud through additions to a writing subsequent to its execution."See Seidman v. Dean Witter Co., Inc., 70 A.D.2d 845, ___, 418 N.Y.S.2d 6, 8 (1^st Dep't 1979).

Likewise Deal Memo #2, which is in the form of an e-mail dated March 28, 2002, is not subscribed by IMG (or plaintiff), and in and of itself does not satisfy the Statute of Frauds subscription requirements. See S S Textiles International v. Steve Weave, Inc., No. 00 CIV. 8391, 2002 WL 1837999, at *6 (S.D.N.Y. Aug. 12, 2002) (emphasis added) (citations omitted) ("emails are not sufficient to constitute a confirmation of an agreement that would satisfy the Statute of Frauds").

Despite the foregoing, plaintiff counters that IMG has "waived" the Statute of Frauds defense as to Deal Memos #1 and #2. This purported waiver arises from plaintiff's belief that the foregoing memos are "written, subscribed agreements." See Pl. Memo. at 3. For the reasons just set forth, however, Deal Memos #1 and #2 are not subscribed documents. Thus, plaintiff's waiver argument is unavailing.

i. Partial Performance

Plaintiff also tries to circumvent the Statute of Frauds with respect to the February 1, 2002 Deal Memo, claiming that he partially performed as to that "agreement." See id. at 6. Both parties recognize that "[f]or partial performance to overcome the Statute of Frauds it must be unequivocally referable to the [alleged agreement]." See Jones v. Whelan, No. 99 CIV. 11743, 2002 WL 485729, at *8 (S.D.N.Y. March 29, 2002) (internal quotation marks and citation omitted) (emphasis added). Plaintiff maintains that he has met this high standard by meeting with Wright, the Managing Director of the European office of IMG ARitsts,⁶ "to prepare a presentation of the venture for top IMG executives[;]" and by "enhanc[ing] the original business plan for the joint venture, provid[ing] further proprietary information, identif[ying] additional clients and me[eting] with distributors, consultants and other companies that [plaintiff] and IMG felt could support the venture." Co. at 11, ¶ 30. Based upon the foregoing, plaintiff claims that "[i]t is absolutely clear that [his] actions subsequent to February 1, 2002 were undertaken in furtherance of the parties' agreement [ i.e. Deal Memo #1] and for no other reason." Plaintiff's Memo. at 6. Thus plaintiff concludes, the Statute of Frauds is not a bar to counts V and VIII, which are based upon Deal Memo #1.

6 Levine Decln at ¶ 4.

Plaintiff fails to consider the meaning of the partial performance standard though. "This standard means that the actions alone must be unintelligible or at least extraordinary, explainable only with reference to the oral agreement." Id. (internal quotation marks and citation omitted) (emphasis added). Therefore, "[w]hen the party's conduct is equally consistent with an explanation other than the alleged oral agreement, the doctrine of partial performance does not apply." Mobile Data Shred, Inc. v. United Bank of Switzerland, No. 99 Civ. 10315, 2000 WL 351516, at *3 (S.D.N.Y. April 5, 2000) (emphasis added).

IMG contends that plaintiff is improperly relying upon the partial performance exception to the Statute of Frauds because his activities, as just described, "were performed to secure IMG . . . approval of the contemplated agreement and [were not] . . . clearly referable to an existing agreement!" Def. Reply at 3 (emphasis added). The court agrees. Plaintiff's activities easily "could . . . be explained as preparatory steps taken with a view toward consummation of an agreement in the future[,]" and [c]ourts have rejected claims of partial performance" under those circumstances. See Mobile Data, 2000 WL 351516, at *3 (internal quotation marks and citation omitted). So, too, will this court.

The plain language of Deal Memo #1 supports the conclusion that as of February 1, 2002 the parties still had not reached a final joint venture agreement, and that they were working "toward consummation of an agreement in the future." See id. In two separate places that Deal Memo indicates that it is "subject to contract." See Levine Decln, exh. D thereto at 2.⁷ Further, the February 1, 2002 e-mail to which Deal Memo #1 is attached is replete with comments showing that a future agreement was a "contemplated" agreement. To illustrate, that e-mail advises plaintiff that "the exact details" of "a reference to a right on the part of IMG to receive an accelerated return of its capital investment out of Net Profits . . . will need to be discussed." Id. at 1. On that same issue, the e-mail also suggests that plaintiff "could give [IMG] further details when you meet next week." Id. That future meeting is mentioned again in the last line of this e-mail. It states that unless plaintiff advises the e-mail's author, Claire Dacam, "International Vice President — Legal and Director of Legal Affairs for IMG Artists[,]" Levine Decln at ¶ 6, of "any issues in the attached Deal Memo [#1,]" she would "leave [those details] for [plaintiff] and [Wright] to discuss on Tuesday." Id., exh. D thereto at 1. IMG also notes that "there is one other point which we didn't discuss by phone which relates to the prohibition of IMG Artists competing with Words of Art after expiry of the joint venture." Id. (emphasis added). Placed in that context, clearly plaintiff's activities are not "unintelligible."

7 The document itself is unnumbered. For ease of reference, though, the court has taken the liberty of numbering it.

Furthermore, the plaintiff's alleged activities in connection with Deal Memo # 1 were equally consistent with consummation of a future joint venture agreement with IMG. Consequently, plaintiff's reliance upon the partial performance doctrine to excuse non-compliance with the Statute of Frauds is misplaced. Because plaintiff's waiver and partial performance arguments are without merit, as with count IV, the court finds that the purported agreements in counts V, VIII and X do not satisfy the Statute of Frauds and thus are unenforceable. This lack of enforceability supports the court's decision to grant IMG's motion to dismiss counts V, VIII and X for failure to state a claim upon which relief may be granted.

In addition to arguing that the court should dismiss counts IV, V, VIII and X based upon failure to comply with the Statute of Frauds, IMG argues that the court should dismiss those counts because plaintiff has "fail[ed] to plead facts that would establish a binding agreement." Defendant's Memo. at 12. Plaintiff counters that it would be improper to dismiss counts IV, V, VIII and X "at this early stage," based upon a supposed lack of a binding agreement between he and IMG. See Plaintiff's Memo. at 6. As the preceding section makes clear, however, there is no need for the court to become mired down in the sufficiency of plaintiff's contract claims because the court has already held that the Statute of Frauds bars the same.

c. Count IX

In count IX of his complaint, plaintiff alleges that "[a]t a minimum, the Deal Memo dated February 1, 2002 represented a preliminary binding commitment by and between the parties." Co. at 21, ¶ 82. IMG contends that this count fails to state a claim upon which relief may be granted because there is no such commitment as a matter of law. To support its contention, IMG points to several aspects of that Deal Memo which will be discussed below.

Plaintiff responds that the February 1, 2002 Deal Memo does "represent a preliminary binding commitment" because it "manifested that the parties intended to be bound retroactive to the night before ." Plaintiff's Memo. at 11. As does IMG, plaintiff is relying upon the language in the Deal Memo that "[t]he parties will as soon as practicable enter into a legally binding joint venture agreement reflecting the terms set out in this Deal Memo[.]" Levine Decln, exh. D thereto at 4, ¶ 10. Plaintiff Gragg also is relying upon allegations that he and IMG "worked together in earnest from [February 1, 2002] forward developing the business plan, contacting prospective clients, calculating prospective profits, and preparing a presentation that was jointly made to other IMG executives on March 20, 2002." Id. (citing Co. ¶¶ 29-32).

The parties agree on the legal test to be applied, but disagree as to the result. In this Circuit, the test to determine the existence of a preliminary agreement is well-settled. For a claimed agreement such as this, "which is binding only to a certain degree[,]" "'[t]he key, of course, is the intent of the parties: whether the parties intended to be bound, and if so, to what extent.'" Cohen v. Lehman Brothers Bank, FSB, 273 F. Supp.2d 524, 528 (S.D.N.Y. 2003) (quoting Adjustrite Sys., Inc. v. GAB Business Servs., Inc., 145 F.3d 543, 547-48 (2d Cir. 1998)). "Generally, courts look solely at objective signs of intent, and do not consider subjective evidence of intent." Id. (internal quotation marks and citation omitted). There are four factors which a court must consider "[t]o determine whether the parties intended to be bound:

(1) whether there has been an express reservation of the right not to be bound in the absence of a final writing; (2) whether there has been partial performance of the alleged contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to a final writing."

Id. (citation omitted). The Second Circuit has made clear that "[t]he first factor, the language of the agreement, is 'the most important.'" Id. (emphasis added) (quotingArcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 71-72 (2d Cir. 1989)). So important is this factor that "if the language of the agreement is clear that the parties did not intend to be bound, the Court need look no further." Id. (citations omitted).

Here, the court agrees with IMG that the language of the February 1, 2002 Deal Memo is clear: the parties did not intend to be bound by that document. First it notes, as previously mentioned, that that Deal Memo explicitly states in bold type at the top of the first page that it is " Subject to contract[.]" Levine Decln, exh. D thereto at 2. That Memo also starts by reiterating, "The following sets out the terms agreed, subject to contract, between IMG Artists and Artchives in relation to IMG Artchives." Id. (emphasis added). Finally, the last paragraph of this Deal Memo states that "[t]he parties will as soon as practicable enter into a legally binding joint venture agreement reflecting the terms set out in this Deal Memo[.]"Id. at 4, ¶ 10.

In addition, the accompanying e-mail contains explicit language showing that the parties had "further" and "exact details" to be negotiated as to several issues regarding this Deal Memo. See id. at 1. To illustrate, that e-mail closes by stating that the author, an IMG employee, is leaving it to plaintiff and another IMG employee to discuss that Deal Memo another day. See Levine Decl'n, exh. D thereto at 1. The fact that neither party signed this document lends further credence to the view that this Deal Memo is not a preliminary binding commitment. Further, a finding that Deal Memo #2 is not a preliminary binding commitment is consistent with the policy against enforcing such agreements absent an objective intent to be bound. As Judge Leval, who first articulated the analytical framework pertaining to preliminary agreements, stated, "'[a] primary concern for courts in such disputes is to avoid trapping parties in surprise contractual obligations that they never intended.'" Arcadian Phospates, 884 F.2d at 72 (quoting Teachers Insurance Annuity Association v. Tribune Co., 670 F. Supp. 491, 497 (S.D.N.Y. 1987)). In light of the foregoing, the court grants IMG's motion to dismiss count IX of the complaint. The court will next discuss plaintiff's promissory estoppel count.

D. Promissory Estoppel (Counts VI and XVI)

In count VI plaintiff is asserting a promissory estoppel claim, arguing that IMG should be estopped from denying the existence of the "February 1, 2002 agreement[.]" Co. at 10, ¶ 65. In count XVI, plaintiff asserts a second promissory estoppel claim based upon the purported consultancy agreement of October 5, 2001.

As previously discussed, the February 1, 2002 agreement, i.e., Deal Memo #1 does not satisfy New York's Statute of Frauds. The Second Circuit has recognized, however, that promissory estoppel may be used to circumvent that Statute. See Merex A.G.V. Fairchild Weston Systems, Inc., 29 F.3d 821, 825 (2d Cir. 1994). By the same token though, there is a significant limitation on the use of promissory estoppel in that way. "To invoke the power that equity possesses to trump the Statute of Frauds, plaintiff must demonstrate 'unconscionable' injury, i.e., injury beyond that which flows naturally (expectation damages) from the non-performance of the unenforceable agreement." Id. at 826 (citing Philo Smith Co. v. USLIFE Corp., 554 F.2d 34, 36 (2d Cir. 1977)). IMG describes plaintiff's alleged damages as those "based on the benefit he believes he would [have] reaped had the parties gone forward with the agreement." See Defendant's Memo. at 16. Viewing plaintiff's damages in that way, IMG reasons that he has not alleged unconscionable injury and thus has failed to state a claim for promissory estoppel.

Plaintiff acknowledges the Merex rule set forth above, but claims that "IMG's naked appropriation of the joint venture for its own use and benefit, (Compl. ¶ 35) is not an injury that flows naturally from the non-performance of an unenforceable agreement." Plaintiff's Memo. at 10. Plaintiff relies upon the following two allegations to withstand IMG's motion to dismiss his promissory estoppel causes of action. First, he points to the allegation that beginning February 1, 2002 the parties began to "operate under" Deal Memo #1. Co. at 11, ¶ 30. Second, he alleges that on April 19, 2002 IMG "advise[d] [plaintiff] that 'IMG Artchives is a division of IMG Artists[.]" Id. at 13, ¶ 35. At the very least plaintiff contends that he should be allowed to offer evidence to support his promissory estoppel claim. Plaintiff cites no case law to support this assertion, however.

On the other hand, IMG responds that plaintiff has not alleged unconscionable injury. In count VI he simply alleges that he "suffered injury/damage[.]" Id. at 19, ¶ 69. Likewise in count XVI, with no elaboration, plaintiff states that he "suffered damages[.]" Id. at 27, ¶ 119. Obviously those broad, generic damage claims do not rise to the level of unconscionable injury. Nor do the allegations in paragraph 35 of the complaint set forth above, constitute unconscionable injury so as to allow recovery on a theory of promissory estoppel.

The insufficiency of those allegations is made all the more clear by examining the relevant case law. To illustrate, inWeissman v. Seiyu, Ltd., No. 98 Civ. 6976, 2000 WL 42205 (S.D.N.Y. Jan. 18, 2000), the court held that "plaintiff's loss of his commission and purported damage to his reputation" were "not enough to rise to the level of unconscionability." Id. at *10. In a similar vein, inPrecise-Marketing Corporation v. Simpson Paper Co., No. 95 CIV 5629, 1999 WL 259518 (S.D.N.Y. April 30, 1999), the court held that alleged lost profit damages did "not amount to unconscionable injury" because "they are exactly the kind of damages that flow naturally from the breach of a contract for the sale of goods." Id. at *10. Even under the most liberal reading of plaintiff's promissory estoppel damage allegations, the court cannot find that the same rise to the level of unconscionable injury. In so holding, the court is cognizant that "'[t]he strongly held public policy reflected in New York's Statute of Frauds would be severely undermined if a party could be estopped from asserting it every time a court found that some unfairness would otherwise result.'" North American Knitting Mills, Inc. v. International Women's Apparel, Inc., No. 99 Civ. 4643, 2000 WL 1290608, at *3 (S.D.N.Y. Sept. 12, 2000) (quoting Phil Smith Co. v. USLIFE Corp., 554 F.2d 34, 36 (2d Cir. 1977) (other citation omitted)). Yet essentially that is plaintiff Gragg's argument here. "'[T]he doctrine of promissory estoppel is properly reserved for the limited class of cases where the circumstances are such as to render it unconscionable to deny the promise upon which the plaintiff has relief." Id. Obviously plaintiff Gragg's promissory estoppel claims do not fall into that "limited class of cases." Accordingly, the court grants IMG's motion to dismiss counts VI and XVI of plaintiff's complaint.

E. Quantum Meruit (Count XV)

As another means of avoiding IMG's Statute of Frauds argument, plaintiff is asserting a claim based upon quantum meruit. Like the doctrine of promissory estoppel, a plaintiff "cannot circumvent the statute of frauds simply by styling its breach of oral contract claim instead as a claim in quantum meruit." Rosen Colin LLP v. Sandler, No. 01 Civ. 7123, 2002 WL 83657, at *5 (S.D.N.Y. Jan. 18, 2002) (citations omitted); see also Zeising v. Kelly, 152 F. Supp.2d 335, 345 (S.D.N.Y. 2001) (dismissing quantum meruit claim under Rule 12(b)(6) where there was "a complete absence of a memorandum supporting "plaintiff's contract claims, and [he] [was] merely attempt[ing] to overcome the bar of the Statute of Frauds by seeking recovery in quantum meruit"). Plaintiff Gragg is attempting to do precisely that however. Thus, according to IMG the court also should dismiss count XV of the complaint.

In that count plaintiff is asserting a quantum meruit claim "in the event the parties' conduct is determined to constitute neither a joint venture contract nor an agreement to negotiate a joint venture agreement." Co. at 26, ¶ 108. In other words if the court finds, as it has, that the claimed joint venture agreements are unenforceable under the Statute of Frauds, plaintiff is seeking "to recover in quantum meruit to assure a just and equitable result." See Zeising, 152 F. Supp.2d at 344 (internal quotation marks and citation omitted). As the case law just recited establishes, plaintiff's claim that "he formulated an enhanced a business plan and conveyed it to IMG only to have IMG appropriate the joint venture for which the business plan had been drafted," Plaintiff's Memo. at 14, is nothing more than an effort to avoid the Statute of Frauds. Plaintiff cannot do that, however. Thus, the court also grants IMG's motion to dismiss count XV of the complaint.

F. Breach of Fiduciary Duties (Counts VII and XI)

In count VII and XI of his complaint, plaintiff alleges a breach of fiduciary duty by IMG. Count VII is based upon the purported February 1, 2002 joint venture agreement and count XI is based upon the purported March 28, 2002 joint venture agreement. In the former, plaintiff specifically alleges that "IMG breached its fiduciary duty to [plaintiff] by failing to negotiate in good faith and/or by appropriating [his] property for its exclusive use and profit." Co. at 20, ¶ 72. Count XI alleges the same, along with a claimed breach of IMG's fiduciary duty to plaintiff "by terminating the relationship with [him]." Id. at 23, ¶ 87.

IMG contends that it was not under any fiduciary duty to plaintiff because an "ordinary business relationship," such as that which plaintiff alleges as to the October 5, 2001 consultancy agreement, is insufficient to create such a duty.See Defendant's Memo. at 17. IMG acknowledges that a joint venture agreement creates a fiduciary relationship. See Bronx Legal Services v. Legal Services for New York City, No. 02 Civ. 6199, 2003 WL 145558, at *8 (S.D.N.Y. Jan. 17, 2003) (citation omitted). IMG reasons, however, that if the court concludes that there was not an enforceable joint venture agreement between the parties, then necessarily plaintiff's breach of fiduciary duty claims must fail. Contra Kidz Cloz, Inc. v. Officially for Kids, Inc., No. 00 CIV. 6270, 2002 WL 392291, at *5 (S.D.N.Y. March 13, 2002) (denying motion to dismiss breach of fiduciary duty claim where plaintiffs "adequately alleged the existence of a . . . joint venture").

Plaintiff's breach of fiduciary duty claims are legally insufficient. First of all, as previously discussed, plaintiff has failed to alleged the existence of a viable joint venture agreement. And while a fiduciary duty may arise from a "special relationship," such as where there is a "special account for plaintiff's benefit]" or a "long enduring relationship," Sony Music Entertainment Inc. v. Robison, 01 CIV. 6415, 2002 WL 272406, at *3 (S.D.N.Y. Feb. 26, 2002) (citations omitted), plaintiff does not allege any such special relationship. In fact, he unequivocally states that the sole basis for his breach of fiduciary duty claims is the existence of a joint venture. See Pl.Memo. at 24-25 ("IMG completely overlooks the fact that this claim for breach of fiduciary duty arises from the joint venture.") At the most, plaintiff has alleged "a conventional business relationship [which] generally does not create a fiduciary relationship."See Maalouf v. Salomon Smith Barney, Inc., No. 02 Civ. 4770, 2003 WL 1858153, at *5 (S.D.N.Y. April 10, 2003) (citations omitted).

The cases upon which plaintiff Gragg relies do not advance his fiduciary duty argument. In Blue Chip Emerald LLC v. Allied Partners, 299 A.D.2d 291, ___, 750 N.Y.S.2d 291 (1^st Dep't 2002), the issue was not the existence of a fiduciary duty based upon a joint venture, but rather how long that duty exists. The court held that defendants were fiduciaries "until the moment the buy-out transaction closed[.]" Id. at 294. Wiener v. Lazard Freres Co., 241 A.D.2d 114, ___, 672 N.Y.S.2d 8 (1^st Dep't 1998), likewise is distinguishable. The court there held that "it is not mandatory that a fiduciary relationship be formalized in writing," where the "ongoing conduct between parties may give rise to [such] a . . . relationship." Id. at ___; 672 N.Y.S.2d at 14 (citation omitted). Again, however, plaintiff Gragg is not relying upon ongoing conduct to establish a fiduciary duty and indeed has not pled the same as a basis for these causes of action. He is relying only upon the joint venture agreements, which the court has found unenforceable, to establish such a duty. Moreover, plaintiff conveniently overlooks the fact that "being a party to a contract does not itself impose a fiduciary duty." Banco Espirito Santo De Investimento, S.A. v. Citibank, N.A., No. 03 Civ. 1537, 2003 WL 23018888, at *15 (S.D.N.Y. Dec. 22, 2003); see also Regal International (BVI) Holdings Limited v. CDL Hotels USA, Inc., No. 02 CV 8581, 2003 WL 21511926, at *2 (S.D.N.Y. July 1, 2003) (dismissing fiduciary duty claims where plaintiff "pointed to nothing to show that this relationship was anything beyond an ordinary arms-length business relationship under a contract"). Consequently, the court grants IMG's motion to dismiss counts VII and XI for failure to state a claim based upon breach of a fiduciary relationship.

G. Fraud (Counts XII, XIII and XIV)

In each of his three fraud causes of action, plaintiff alleges that the same "is made independently of the contractual causes of action." Co. at 23, ¶ 91, at 24, ¶ 96; and at 25, ¶ 103. As to count XII, plaintiff alleges that " IMG falsely represented to [him] an intention to bargain in good faith[.]" Id. at 23, ¶ 92 (emphasis added). In count XIII plaintiff further alleges that " IMG falsely represented to [him] that internal approval had been obtained to go forward with the joint venture[.]" Id. at 24, ¶ 97 (emphasis added). Lastly, in count XIV plaintiff alleges that " IMG's counsel falsely represented to [plaintiff] that 'formal corporate approval' for the joint venture had not been obtained." Id. at 25, ¶ 104 (emphasis added).

1. Failure to Plead with Sufficient Particularity

Under Fed.R.Civ.P. 9(b), there is a heightened pleading standard for fraud claims. That Rule mandates that all fraud claims be pleaded with particularity:

In all averments of fraud or mistake, the circumstances constituting fraud . . . shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

Fed.R.Civ.P. 9(b) (emphasis added). Relying upon City of New York v. Joseph L. Balkan, Inc., 656 F. Supp. 536 (E.D.N.Y. 1987), plaintiff maintains that "[i]t is sufficient under Rule 9(b) if plaintiffs provide an adequate basis for their allegations and give defendants enough information to put them on notice of the nature of the claim."Id. at 545 (citation omitted). Further, according to plaintiff, "[r]ule 9(b)'s requirements may be relaxed as to matter particularly within the opposing party's knowledge." Id. (citations omitted).

In arguing for this relatively lax standard for pleading fraud, plaintiff fails to take into account the evolving state of the law in this area. The Second Circuit has expressly held that to state a fraud claim, "a complaint . . ., . . . must (1) detail the statements . . . that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements . . . were made, and (4) explain why the statements are fraudulent." H.W.Olsen v. Pratt Whitney Aircraft, 136 F.3d 273, 275 (2d Cir. 1998) (internal quotation marks and citation omitted) (emphasis added). Given that unequivocal language, this court will apply to plaintiff Gragg's complaint the test articulated in Pratt Whitney. When that is done, it becomes clear that plaintiff has not plead fraud with the requisite particularity.

None of the three counts of fraud identify the speaker. Even if count XIV, which alleges a false representation by "IMG (UK)'s counsel[,]" sufficiently identified the speaker (and that is questionable), still there are no allegations as to where that statement was made and why it was fraudulent. Counts XII and XIII suffer from the same infirmity. Further, there is nothing in those two counts even hinting at who the speakers were, let alone specifically identify them. See Mills v. Polar Molecular Corporation, 12 F.3d 1170, 1175 (2d Cir. 1993) (internal quotation marks and citations omitted) ("Rule 9(b) is not satisfied where the complaint vaguely attributes the alleged fraudulent statements to 'defendants.'") Nor do any of the three fraud counts "state with particularity 'why the statements were fraudulent.'" Duncan v. Pencer, No. 94 Civ. 0321, at *8 (S.D.N.Y. Jan. 18, 1996) (quoting Mills, 12 F.3d at 1174). It is simply not enough to plead, as does plaintiff Gragg's complaint, "'conclusory allegations of fraud[.]'" Id. (quotingAcito v. IMCERA Group, Inc., 47 F.3d 47, 53 (2d Cir. 1995)). In light of the foregoing, the court hereby grants IMG's motion to dismiss counts XII, XII and XIV for failure to plead fraud with sufficient particularity. In so holding, obviously the court disagrees with plaintiff's assertion that the allegations which are missing from his complaint in this regard are nothing more than "classic evidentiary material to be produced in initial disclosures or other discovery." See Pl. Memo. at 29. Rather, the missing allegations are essential pleading components of any fraud claim.

2. Failure to State a Claim

As an additional basis for seeking dismissal of plaintiff's fraud counts, IMG asserts that he has failed to state a fraud claim because counts XII, XIII and XIV are "merely attempts to repackage Plaintiff's contract claims in the form of a fraud claim." Def. Memo. at 19.

As IMG correctly states, "[m]ost courts that have considered the issue have held that, under New York law, a contract claim cannot be converted into a fraud claim merely by adding an allegation that the promisor intended not to perform when he made the promise." MDCM Holdings, Inc. v. Credit Suisse First Boston Corporation, 216 F. Supp.2d 251, 258 (S.D.N.Y. 2002) (internal quotation marks and citations omitted). "Rather, to sustain a fraud claim arising out of a contractual relationship plaintiff must:

(I) demonstrate a legal duty separate from the duty to perform under the contract;

(ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or

(iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages."

Id. (citations omitted).

Plaintiff Gragg is attempting to do that which courts have prohibited — relying upon the same facts to support his fraud claim as he is to support his contract claims. In this regard, IMG points out that count I for "breach of consultancy agreement," Co. at 15, is "factually identical" to count XII, alleging fraud as to IMG's representation that it intended to bargain with plaintiff in good faith. See Defendant's Memo. at 19. While not identical, those two counts are substantially similar, both focusing upon IMG's alleged failure to bargain in good faith. What the court finds more troubling, however, is plaintiff's failure to allege a legal duty separate from the duty to perform under the contract. Plaintiff claims that he has alleged such duty based upon a purported "fiduciary duty arising out of the joint venture, and that fiduciary duty imposes an independent duty to speak honestly, independent of any other contract." Plaintiff's Memo. at 29-30. As previously discussed however, the court has found that there was no joint venture and hence no fiduciary duty arising therefrom. Given that finding, plaintiff's reliance upon such a fiduciary duty to support a "legal duty separate from the duty to perform under the contract" is misplaced. Accordingly, plaintiff's failure to sufficiently plead a fraud cause of action separate and apart from his contract causes of action forms another basis for granting IMG's motion to dismiss counts XII, XIII and XIV of the complaint.

H. Breach of Consultancy Agreement (Count I)

IMG is seeking dismissal of count I, alleging breach of the October 5, 2001 "consultancy agreement." IMG concedes that that agreement "is the only actual contract between [it] and [plaintiff] Gragg." Defendant's Memo. at 20 (citation omitted). Plaintiff alleges, "IMG breached its obligation [under that consultancy agreement] by failing to negotiate in good faith as evidence by its refusal to adhere to agreed-upon terms." Co. at 15, ¶ 42. IMG is taking the position however that by failing to specify the "agreed-upon terms[,]" plaintiff has not "identified" the manner in which the consultancy agreement supposedly was breached. Thus, IMG reasons that plaintiff has failed to state a viable breach of contract claim and hence the court should dismiss count I.

Plaintiff did not bother to address this argument. The court finds this omission somewhat troubling. Nonetheless, given the liberal pleading Fed.R.Civ.P. 8(a) allows, along with the generous standard which applies in deciding Rule 12(b)(6) motions, the court finds that plaintiff Gragg should at least be allowed to offer evidence to support count I. "'Under New York law, an action for breach of contract requires proof of (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages." Banco Espirito Santo De Investimento, S.A. v. Citibank, N.A., No. 03 Civ. 1537, 2003 WL 23018888, at *4 (S.D.N.Y. Dec. 22, 2003) (quoting First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998) (other citation omitted)). Plaintiff Gragg has alleged these four essential elements, albeit not in great detail. Consequently, the court denies IMG's motion to dismiss count I of the complaint.

I. Consolidation (Counts II and III)

Based upon the fact that in counts II and III plaintiff is alleging a breach of paragraph five of the consultancy agreement, IMG suggests that "these claims may be combined." Defendant's Memo. at 20 (emphasis added). Plaintiff is taking no position. There is a great deal of similarity between counts II and III. However because IMG offers no compelling reason to "combine" the two, the court declines to do so, at least at this juncture.

J. Unfair Competition (Count XVII)

In count XVII plaintiff alleges unfair competition. More specifically, plaintiff alleges that "IMG has unfairly competed with [him] by utilizing for its own benefit [plaintiff's] business plan in commerce with customers that it agreed to share with [plaintiff] in exchange for [his] participation in the joint venture, without remuneration to [plaintiff.]" Co. at 28, ¶ 112. IMG concedes that count XVII states a claim upon which relief may be granted. See Def. Memo. at 21. As will be discussed, IMG is seeking dismissal of this count, among others, based upon the doctrine of forum non conveniens. K. Forum Non Conveniens (Counts II and XVII)

Assuming that the court consolidates counts II and III, based upon the doctrine of forum non conveniens, IMG seeks dismissal of that combined count as well as of count XVII.⁸ IMG argues that this action should be dismissed in "favor of an English court." Defendant's Memo. at 21. Plaintiff counters that "New York is the appropriate forum[,]" and IMG has not met its burden of proof demonstrating otherwise; hence the court should deny IMG's motion to dismiss on this basis. See Plaintiff's Memo. at 14 (emphasis added). Resolution of this forum non conveniens issue requires the court to engage in a multi-level inquiry, examining a host of factors.

8 Because the court is not combining counts II and III, it will continue to separately address the same.

1. Governing Legal Standard

In the seminal case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839 (1947), the Supreme Court explained that "[t]he principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Id. at 507, 67 S.Ct. at 842. "'Through a discretionary inquiry, the court determines where litigation will be most convenient and will serve the ends of justice.'" Varnelo v. Eastwind Transport, Ltd., No. 02Civ. 2084, 2003 WL 230741, at *5 (S.D.N.Y. Feb. 3, 2003) (quoting PT United Can Co. v. Crown Cork Seal Co., 138 F.3d 65, 73 (2d Cir. 1998) (other citations omitted)), adhered to, 2004 WL 103428 (S.D.N.Y. Jan. 23, 2004).

This inquiry is three steps. See Iragorri v. United Tech. Corp., 274 F.3d 65, 73 (2d Cir. 2001) ( en banc). First, the court must determine "the degree of deference to be accorded the plaintiff's choice of forum[.]" Varnelo, 2003 WL 230741, at *5. "The Court must then engage in an additional two-step process[,]" asking first "if there is an alternative forum that has jurisdiction to hear the case[.]" Id. at *6 (internal quotation marks and citations omitted). Second, the court must "determine the forum that will be most convenient and will best serve the ends of justice." Id. "In making the second determination, the court weighs a variety of private and public considerations, as set out in. . . . Gilbert[.]" Id. (internal quotation marks, citations and footnote omitted). As the Supreme Court has emphasized, however, "no one factor is determinative: '[i]f central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.'" Id. (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252 (1981)). "In the last analysis, it always must be borne in mind that there is no algorithm that assigns precise weights to the factors that inform forum non conveniens determinations."First Union National Bank v. Paribas, 135 F. Supp.2d 443, 448 (S.D.N.Y. 2001).

In this Circuit, "'[t]he decision to dismiss a case on forum non conveniens grounds' lies wholly within the broad discretion of the district court and may be overturned only when . . . that discretion has been clearly abused." Id. (quoting Iragorri, 274 F.3d at 72 (quoting in turn Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir. 1996) (footnote omitted)). A clear abuse of discretion can result "only if a court fails to carefully consider the Gilbert factors."Id. (internal citations, quotation marks and footnote omitted). With the foregoing in mind, the court will "carefully consider the Gilbert factors" as they apply to the particular facts of this case.

a. Degree of Deference to be Accorded Plaintiff's Choice of Forum

"[A] plaintiff's choice of forum is entitled to substantial deference and should only be disturbed if the factors favoring the alternative forum are compelling." Wiwa v. Royal Dutch Petroleum Company, 226 F.3d 88, 101 (2d Cir. 2000) (citations omitted) (emphasis added). Not surprisingly, "that deference increases as the plaintiff's ties to the forum increase." Id. (citations omitted). The Supreme Court has cautioned, however "that ' unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'" Gulf Oil, 330 U.S. at 508 (emphasis added). The Second Circuit has instructed that "a court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiff's choice of forum will stand unless the defendant meets the burden of demonstrating" that "trial in the chosen forum would be unnecessarily burdensome for the defendant or the court." Iragorri, 274 F.3d at 71 (internal quotation marks and citations omitted).

In "Iragorri . . ., the Second Circuit en banc synthesized recent precedent to hold that the degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on several relevant considerations[.]" Varnelo, 2003 WL 230741, at *8 (internal quotation marks and citations omitted). "[T]he greater the degree of deference to which the plaintiff's choice of forum is entitled, the stronger a showing of inconvenience the defendant must make to prevail in securing forum non conveniens dismissal. At the same time, a lesser degree of deference to the plaintiff's choice bolsters the defendant's case but does not guarantee dismissal. . . . The action should be dismissed only if [plaintiff's] chosen forum is shown to be genuinely inconvenient and [ defendant's] selected forum significantly preferable." Id. (internal quotation marks and citation omitted) (emphasis added). Stated somewhat differently, there are two guiding principles to resolve a motion to dismiss based upon the doctrine of forum non conveniens: (1) there is a "strong presumption" favoring a United State's plaintiff's choice of his home forum; and (2) there is the demanding requirement that a defendant show "oppressiveness and vexation . . . out of all proportion to plaintiff's convenience." See Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, ___ (1947) (emphasis added). Examining the present record in light of those strict principles convinces the court that plaintiff's remaining causes of action should not be dismissed on forum non conveniens grounds.

First of all, IMG has not overcome the strong presumption favoring plaintiff Gragg's choice of forum. IMG contends that even though he is New York resident, plaintiff's choice of forum is "greatly diminished" because he "actively sought entry into the international business market by seeking to contract with IMG (UK), . . ., and made multiple trips to London and France in an effort to negotiate a deal between the parties." Defendant's Memo. at 23 (citation omitted). IMG also points to the fact that the claim for breach of the consultancy agreement, which the parties both signed, explicitly provides that it "shall be governed by English law and the parties hereby submit to the non-exclusive jurisdiction of the English courts." See Levine Decln, exh. B thereto at 3, ¶ 12 (emphasis added). Given that unequivocal language, IMG asserts that "Gragg explicitly agreed to the possibility of litigating issues arising under the agreement in England" Def. Memo. at 23-24. IMG points to no law, however, supporting the assertion that a choice-of-law clause necessarily means that a plaintiff has agreed to litigation in a foreign forum, especially where, as here, the possibility is left open that jurisdiction will properly lie in another forum. In addition, "[t]he need to apply foreign law is not in itself a reason to apply the doctrine of forum non conveniens." See Manu Int'l, S.A. v. Avon Prods., Inc., 641 F.2d 62, 67 (2d Cir. 1981)).

Second, "[d]eference to plaintiff's forum becomes a stronger consideration where plaintiff is an American citizen, especially in cases in which the underlying claims arose under United States law or seek to enforce or promote significant American policy interests." Victoriatea.Com, Inc. v. Cott Beverages Canada, 239 F. Supp.2d 377, 381 (S.D.N.Y. 2003) (citations omitted). Plaintiff Gragg falls into this category where he should be accorded more deference in his choice of forum. He is an American citizen seeking to enforce or promote American policy interests of insuring that American business people are treated fairly when negotiating "deals" in the international market place, such as those at issue here. Obviously, there is a significant American interest, and in this case a significant New York interest, in policing these sorts of transactions when a defendant such as IMG "conducts substantial business in New York[.]" See Co. at 4, ¶ 8.

Third, the court cannot disregard the fact that "the reason we give deference to a plaintiff's choice of her home forum is because it is presumed to be convenient." Varnelo, 2003 WL 230741, at *8 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252 (1981)). At the same time, the court is cognizant that plaintiff's "interest in litigating the suit in [his] home forum "'is not outcome-determinative in the weighing of relevant factors[.]'" See Telephone Systems International, Inc. v. Network Telecom PLC, No. 02 Civ. 89727, 2003 WL 23018884, at *3 (S.D.N.Y. Nov. 25, 2003) (quoting DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 28 (2d Cir.), cert. denied, 537 U.S. 1028, 123 S.Ct. 556 (2002)). In any event, IMG has not come forth with any proof to overcome the presumption favoring plaintiff's choice of forum.

Another factor which favors plaintiff's choice of forum is the lack of any suggestion that plaintiff had an improper motive, such as forum shopping, for choosing the Northern District of New York. See Telephone Systems, 2003 23018884, at *3 (citation omitted) (according "significant deference" to plaintiff, an American corporation's choice of forum where no evidence that it had an improper motive in bringing suit in the United States). In light of the foregoing, IMG "must show that the Gilbert factors strongly favor [it], or [plaintiff's] choice of forum will not be disturbed." Id. (citing, inter alia, Gilbert, 330 U.S. at 508).

b. Adequacy of Alternative Forum

Having determined that plaintiff Gragg's choice of forum should be accorded a significant degree of deference, the court must next decide whether an adequate alternative forum exits. See Telephone Systems, 2003 WL 23018884, at *2 (citing Aguinda v. Texaco, Inc., 303 F.3d 470, 476 (2d Cir. 2002)). "'The requirement of an alternative forum is ordinarily satisfied if the defendant is amenable to process in another jurisdiction, except in 'rare circumstances' when 'the remedy offered by the other forum is clearly unsatisfactory.'" Varnelo, 2003 WL 230741, at *13 (quoting, inter alia, Murray v. British Broad. Corp., 81 F.3d 287, 292 (2d Cir. 1996) (other quotation marks and citations omitted)). IMG bears the burden of proof as to the issue of the adequacy of an alternative forum. See Aguinda, 303 F.3d at 476 (citation omitted).

As to service of process in England, IMG has not come forth with any evidence or applicable law pertaining to that issue. Nonetheless, purposes of this analysis only, the court will assume that IMG is amenable to process in England Also, because there has been no showing to the contrary, the court will further assume that the remedy offered in England is satisfactory. This assumption is not unfounded given that "it is well-established that British courts are an adequate alternative forum for resolving disputes that may impact American corporations or citizens." See Telephone Systems, 2003 WL 23018884, at *4 (citations omitted). Therefore, despite some deficiencies in IMG's proof as to the adequacy of England as an alternative forum, given the likelihood of amenable service, as well as the likely availability of a satisfactory remedy in England, the court finds that England would be an adequate alternative forum. The parties' declaration in the consultancy agreement that they will submit to the "non-exclusive jurisdiction" of the English courts further bolsters this conclusion. See Varnelo, 2003 WL 230741, at *13 (citations omitted) ("[a]n agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy [the adequate alternative forum] requirement"). Based upon the foregoing, it is incumbent upon the court to proceed to the next level of inquiry — "'balanc[ing] a series of factors involving the private interests of the parties in maintaining the litigation in the competing fora and any public interests at stake[,]'" See Aguinda, 303 F.3d at 476 (citations omitted). IMG has the burden as to this issue as well. Id. (citation omitted). To meet this burden, "defendants mut provide enough information to enable the District Court to balance the parties' interests." Id. (quoting Piper Aircraft, 454 U.S. at 258, 102 S.Ct. at 267). "'The amount of information that the defendant must provide, in supporting affidavits or other evidence, depends on the facts of the individual case." Id. (quoting El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 677 (D.C. Cir. 1996)). IMG has provided meager evidence in this regard. IMG relies primarily upon the declaration of Lisa Levine, Associate Counsel for IMG Worldwide Inc. and International Management Group (UK), a Inc. See Levine Decln at ¶ 1. That declaration is not particularly useful in terms of analyzing the relevant private and public interests.

c. Private Interests

"Private interests include 'the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.'" Aguinda, 303 F.3d at 478 (quoting Gilbert, 330 U.S. at 508). "'In considering these factors, the court is necessarily engaged in a comparison between the hardships defendant would suffer through the retention of jurisdiction and the hardships the plaintiff would suffer as the result of dismissal and the obligation to bring suit in another country.'" Varnelo, 2003 WL 230741, at *18 (quoting Iragorri, 274 F.3d at 74). The court will address each of these factors in turn.

i. Access to Sources of Proof

IMG notes that all of its files "related to this matter are necessarily kept in its offices in England[;]" but if offers no proof to support this bald assertion. See Def. Memo. at 22. Indeed, there is no mention of this factor in the Levine Declaration. Assuming the relevant documents are in England, IMG has not shown whether it would be burdensome for it to transport those documents to this District. In this electronic age, that seems unlikely, especially where it appears that a number of the relevant documents were created by e-mail. See Base Metal Trading SA v. Russian Aluminum, 253 F. Supp.2d 681, 712 (S.D.N.Y. 2003) (citation omitted) ("technological advances have lessened the burden of transporting documentary evidence, leading courts to afford this consideration less weight in the forum non conveniens analysis").

What is more, this does no appear to be a document-intensive case, especially given the court's rulings herein. The consultancy agreement which forms the basis for the remaining claims is only three pages and has already been produced as part of this record. The present record stands in sharp contrast toParibas, where "tens of thousands of pages of documents of likely relevance, including documents seized by British authorities in a raid on . . . [a] London office and other materials obtained in [another] proceeding in an English court" were in London and few in the United States. See Paribas, 135 F. Supp.2d at 449. Thus, the court finds that insofar as access to sources of proof is concerned, this factor is neutral at best.See Varnelo, 2003 WL 230741, at *24.

ii. Witnesses

As to potential witnesses, based upon the Levine declaration, aside from plaintiff it appears that nearly all of the individuals named in the complaint as having knowledge of the relevant facts and circumstances work and reside in England There is no indication, however, that those individuals will be called as witnesses. Moreover, IMG has not explained what particular evidence might be obtained from the individuals listed in the Levine declaration. See id. at *23 (footnote and citation omitted) ("because the Court may not base its decision on speculation that New York-based witnesses may possess relevant information, the alleged existence of any [such] witnesses will be deemed at best a neutral factor"). Nor has IMG come forth with any evidence as to "availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses[.]" See Aguinda, 303 F.3d at 479. By the same token, even though plaintiff does not have the burden of proof on this issue, he does suggest that some if not all of his witnesses reside in New York. See Plaintiff's Memo. at 21. Accordingly, IMG has not persuaded this court that it would be a hardship for IMG to produce its witnesses in New York.

iii. Viewing of Premises

The court agrees with IMG that this factor is "neutral" in that there is no need to view a premises given the nature of the claims — essentially breach of contract claims. See Defendant's Memo. at 24.

iv. "Practical Problems"

IMG asserts that this factor "also favors an English forum." Defendant's Memo. at 24. It then goes on to baldly assert, "[W]eighing all the relative expense, travel, location of the evidence and witnesses, and the parties' contractual agreement to litigate in England under English law, the clear 'center of mass' of this action is in England not in New York." Id. The practical hardship to IMG is difficult to see, especially given the obvious difference in resources between plaintiff, a sole business person and IMG, purportedly the "world's largest private licensing agency for entertainers and entertainment companies." See Co. at ¶ 2. As in Wiwa, IMG ha[s] not demonstrated that these costs are excessively burdensome, especially in view of [IMG's] vast resources, . . ., and . . . the additional cost and inconvenience to [IMG] of litigating in New York is fully counterbalanced by the cost and inconvenience to . . . plaintiff of requiring [him] to reinstitute the litigation in England — especially given the plaintiff['s] minimal resources in comparison to the vast resources of [IMG]." Wiwa, 226 F.3d at 107 (citation omitted).

Practical problems for IMG in litigating the present action in this District are also diminished, in the court's view, given IMG's relatively significant presence in New York. Evidently IMG is an Ohio corporation with its principal place of business in Cleveland See Co. at 4, ¶ 8. It is also "registered to do business in . . . New York and conducts substantial business [here.]" Id. Therefore, because IMG has not pointed to any specific, compelling "practical problems" which might ensue if this litigation proceeds in this District, IMG has not shown that the private interest factors favor dismissal based upon forum non conveniens ground.

d. Public Interests

Likewise, IMG has not met its burden of showing that on balance the public interests weigh in its favor.

i. Administrative Difficulties

IMG did not discuss this interest and the court declines to speculate as to the relative administrative difficulties of litigating this action here or in England Therefore, this factor does not figure into the court's analysis herein.

ii. Local Disputes Decided at Home

IMG recognizes that "New York may have an interest in the resolution of this case by virtue of Gragg's residence." Defendant's Memo. at 24 (emphasis added). IMG is equally quick to point out, however, that New York's interest is no greater than England, "which has a significant interest in the resolution of these claims because it will affect the standard of business conducted within its territory." Id. In light of the foregoing, this factor does not favor either New York or England

iii. Foreign Law Issues

Once again, IMG tries to place great significance on the fact that the consultancy agreement seems to be governed by English law. As noted earlier, however, "the need to apply foreign law is not in itself a reason to apply the doctrine of forum non conveniens." See Varnelo, 2003 WL 230741, at *27 (internal quotation marks, citation and footnote omitted). This is all the more so where, as here, in the end nearly all of the forum non conveniens factors weigh against dismissal on the basis of that doctrine.

To conclude, the court denies IMG's motion to dismiss counts II, III and XVII on forum non conveniens grounds. There are several reasons for this holding. First is the deference which should be accorded plaintiff Gragg's choice of forum based upon the particular facts of this case. That, combined with the court's finding that the private factors do not strongly favor IMG, leads to the inescapable conclusion that IMG has not established "'oppressiveness and vexation . . . out of all proportion to plaintiff['s] convenience[.]'" See DiRienzo, 294 F.3d at 33 (quoting Koster, 330 U.S. at 524, 67 S.Ct. at ___). Clearly, for the reasons set forth above, IMG has not met that heavy burden. "Consequently, although [IMG] may have shown [England] to be an appropriate forum, [it] ha[s] not met [its] burden of proving that litigation in the United States is unnecessarily inconvenient for them to a degree much greater than the convenience that would be afforded plaintiff by trial in the [Northern] District of New York." Id. (citing, inter alia, Piper Aircraft, 454 U.S. at 256 n. 23).

Conclusion

For the reasons set forth above, the court hereby GRANTS defendant, International Management Group (UK), Inc.'s, motion to dismiss counts IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, and XVI of the complaint for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). However, the court DENIES defendant's motion to dismiss count I of the complaint for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). Likewise, the court hereby DENIES defendant's motion to dismiss count XVII of the complaint for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). The court also denies defendant's motion to consolidate counts II and III of the complaint. Finally, the court hereby DENIES defendant's motion to dismiss counts II, III and XVII of the complaint based upon the doctrine of forum non conveniens.

IT IS SO ORDERED.