Opinion
6:18-CV-06414 EAW
2020-11-02
Jacob GRICE, Plaintiff, v. Phil MCMURDY and Doe Defendants 1-25, Defendants.
Michele M. Betti, Betti & Associates, Encinitas, CA, for Plaintiff.
Michele M. Betti, Betti & Associates, Encinitas, CA, for Plaintiff.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Plaintiff Jacob Grice ("Plaintiff") commenced this action on June 7, 2018, asserting claims for breach of contract, fraud, actual fraudulent transfers, constructive fraudulent transfers, unjust enrichment and imposition of constructive trust, intentional infliction of emotional distress, and punitive damages against defendants Phil McMurdy ("McMurdy") and Doe Defendants 1-25. (Dkt. 1). Because he has not appeared in this action, upon Plaintiff's request (Dkt. 7), the Clerk of Court entered default as to McMurdy on April 18, 2019 (Dkt. 9). Currently before the Court is Plaintiff's motion for default judgment. (Dkt. 15). For the reasons set forth below, the motion is denied.
The Complaint names 25 "Doe Defendants," which Plaintiff alleges are "individuals and/or business or corporate entities incorporated in and/or doing business in New York and/or other states whose true names and capacities are unknown to Plaintiff who therefore sues such defendants by such fictitious names, and who will amend the Complaint to show the true names and capacities of each such Doe defendant when ascertained." (Dkt. 1 at ¶ 3). Plaintiff further alleges that "[e]ach such Doe Defendant is legally responsible in some manner for the events, happenings and/or tortious and unlawful conduct that caused the injuries and damages alleged in this Complaint." (Id. ). The Doe Defendants are named in the causes of action for actual and constructive fraudulent transfers, unjust enrichment, intentional infliction of emotional distress, and punitive damages. (Id. at 24-27). To date, Plaintiff has not identified any of the Doe Defendants.
BACKGROUND
I. Factual Background
The following facts are taken from Plaintiff's Complaint and motion papers and are accepted as true in light of McMurdy's default. See Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc. , 699 F.3d 230, 234 (2d Cir. 2012) ("[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability....").
Plaintiff, a citizen of Oregon, and McMurdy, a citizen of New York residing in Monroe County, entered into a contract on June 10, 2012 and June 11, 2012, whereby McMurdy (the "Seller") agreed to sell Plaintiff's (the "Consignee") collectible sports memorabilia merchandise on consignment. (Dkt. 1 at ¶¶ 1, 2, 11). A copy of the contract is attached to the Complaint as Exhibit 1. (Dkt. 1-1). The contract provides that it shall "be governed by the laws of the State of New York in Monroe County and any applicable Federal Law." (Dkt. 1-1 at 3).
On June 10, 2012 and June 11, 2012, Plaintiff delivered to McMurdy two pallet loads of the memorabilia, which included several baseball and basketball cards ("the sports cards"). (Dkt. 1 at ¶ 12(a)-(zzzzzzz)). Pursuant to the contract, McMurdy agreed to "place on display at and the mutually agreed upon item or items in a prominent area that is of his place of business on Ebay or at Sports Card Shows and Conventions as well as sales with other Sports Card Dealers/Card Shops." (Id. at ¶ 13(A)). McMurdy was entitled to retain 25 percent of the purchase price for each sale, and then "submit a check for the full amount of the purchase price, less the previously mentioned agreed upon 75% to the Consignee within 30 business days of receipt of the sale." (Id. at ¶ 13(B), (C)). Consignment checks were to be "issued monthly after the 15th for the prior whole month." (Id. at ¶ 13(K)). Under the contract, McMurdy was to maintain insurance with Collectibles Insurance Services LLC, for any damage or theft occurring to the sports cards. (Id. at ¶ 13(D)). The contract further provided that the consignment agreement was renewable once only, and that the maximum consignment length was one year. (Id. at ¶ 13(J)). The consignment agreement went into "full effect upon delivery of items ... and expire[ed] 1 year later to the day." (Id. at ¶ 13(N)). The contract also provided that "the Applicable Law shall be governed by the laws of the State of New York in Monroe County and any applicable Federal Law." (Id. at ¶ 13(O)).
Plaintiff alleges that McMurdy knowingly took possession of the sports cards "by making false representations as to his insurance coverage as set forth in the contract, and by representing that he would pay Plaintiff under the terms of the contract," and that McMurdy "never maintained a policy of insurance with Collectibles Insurance Services LLC, and never paid Plaintiff anything for any of Plaintiff's sports collectible memorabilia merchandise." (Id. at ¶ 14). When Plaintiff attempted to contact McMurdy and ask that he comply with the contract, McMurdy refused to pay under the terms of the contract and refused to return Plaintiff's sports cards. (Id. at ¶ 15).
Plaintiff alleges breach of contract and fraud against McMurdy, and actual fraudulent transfers, constructive fraudulent transfers, unjust enrichment and imposition of constructive trust, intentional infliction of emotional distress, and punitive damages against both McMurdy and the Doe Defendants. (Id. at 23-27).
II. Procedural Background
Plaintiff commenced this action on June 7, 2018. (Dkt. 1). McMurdy was served with the Summons and Complaint on August 21, 2018. (Dkt. 3). Accordingly, he was required to answer or otherwise respond to the Complaint on or before September 11, 2018. See Fed. R. Civ. P. 12(a)(1)(A)(i).
Thereafter, on April 8, 2019, the Honorable Michael A. Telesca, United States District Judge, issued an Order to Show Cause, ordering that Plaintiff show cause in writing why his case should not be dismissed for failure to prosecute. (Dkt. 6). Plaintiff filed a response to the Order to Show Cause on April 17, 2019. (Dkt. 8). Plaintiff explained that since June 2018, he had been further investigating his case, including that he was making efforts to determine where his merchandise was sold, quantify the debt owed to him, and obtain the opinion from an expert in the field of sports collectible memorabilia as to the value of each item, and that his expert was "in the process of providing the necessary calculations to obtain a certain dollar amount for the default judgment." (Id. at ¶¶ 6-8). Plaintiff further asserted that continuance of the action was necessary so that he could "continue with the default judgment motion and recover damages, attorneys’ fees and costs due from the Defendant under the terms of the contract." (Id. at ¶ 9). Plaintiff also filed a request for clerk's entry of default against McMurdy on April 17, 2019 (Dkt. 7), and the Clerk of Court entered default against McMurdy on April 18, 2019 (Dkt. 9).
On July 31, 2019, Plaintiff filed a request for entry of default judgment for sum certain, requesting that the Clerk of Court enter a default judgment against McMurdy. (Dkt. 10). Plaintiff also included an affidavit of his expert appraiser Austin Neale, I.S.A., AM., who offered an opinion as to the fair market value of the sports cards. (See Dkt. 10-2; Dkt. 12; Dkt. 13). Plaintiff filed a certificate of service, confirming that he served a copy of his motion on McMurdy via a postage-paid envelope at his last-known address. (Dkt. 10-4). McMurdy did not respond to the motion.
On January 8, 2020, Judge Telesca issued a Decision and Order denying Plaintiff's request for a default judgment without prejudice, explaining that Plaintiff had improperly filed his request for a default judgment pursuant to Fed. R. Civ. P. 55(b)(1), which allows the Clerk of Court to enter default against a party when the plaintiff's claim is for a "sum certain." (Dkt. 14). Specifically, the Court found that the value of Plaintiff's sports cards was not a "sum certain," but rather "an estimation of the converted value of property," and that "a default judgment cannot be entered until the Court has engaged in a factual evaluation regarding the amount owed." (Id. at 6). Because Plaintiff had not addressed any of the factors relevant to entry of a default judgment by the Court pursuant to Fed. R. Civ. P. 55(b)(2), the Court denied Plaintiff's motion without prejudice and directed him to re-file his motion within 30 days. (Id. at 8-9). The Court also included language warning McMurdy that failure to respond to any additional motions made by Plaintiff may result in entry of a default judgment against him. (Id. at 9). Further, the Court directed Plaintiff to serve on McMurdy a copy of the Decision and Order and file proof of service of the same (see Dkt. 14 at 9 ("Plaintiff is directed to serve a copy of this Decision and Order on Defendants, and file proof of service of the same.")). However, Plaintiff has not filed a certificate of service confirming that he served a copy of the Decision and Order on McMurdy.
Plaintiff re-filed his motion on February 7, 2020, requesting that the Court enter a default judgment. (Dkt. 15). Plaintiff also attached an affidavit and report authored by Mr. Neale. (Dkt. 15-2). The Court set a scheduling order, requiring that responses be filed by February 24, 2020, and replies be filed by March 2, 2020. Plaintiff has filed certificates of service, confirming that he served McMurdy via post-paid envelope at his last-known address, with a copy of the renewed motion for a default judgment and the scheduling order set by the Court for the motion. (Dkt. 16; Dkt. 17). McMurdy has not filed a response to date. On March 19, 2020, the case was transferred to the undersigned.
DISCUSSION
I. Legal Standard
Federal Rule of Civil Procedure 55 sets forth the procedural steps for entry of a default judgment. First, a plaintiff must seek entry of default where a party against whom it seeks affirmative relief has failed to plead or defend in the action. Fed. R. Civ. P. 55(a). Plaintiff has obtained entry of default against McMurdy. (Dkt. 9). "Having obtained a default, a plaintiff must next seek a judgment by default under Rule 55(b)." New York v. Green , 420 F.3d 99, 104 (2d Cir. 2005) ; see also Fed. R. Civ. P. 55(b). "Once found to be in default, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability." Philip Morris USA Inc. v. 5 Brothers Grocery Corp. , No. 13-CV-2451 (DLI)(SMG), 2014 WL 3887515, at *2 (E.D.N.Y. Aug. 5, 2014) (citation omitted).
"As the Second Circuit has noted, when determining whether to grant a default judgment, the Court is guided by the same factors which apply to a motion to set aside entry of default." Krevat v. Burgers to Go, Inc. , No. 13-CV-6258, 2014 WL 4638844, at *5 (E.D.N.Y. Sept. 16, 2014) (citing Pecarsky v. Galaxiworld.com, Ltd. , 249 F.3d 167, 170-71 (2d Cir. 2001) ). The three factors include: (1) "whether the defendant's default was willful"; (2) "whether the defendant has a meritorious defense to plaintiff's claims"; and (3) "the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment." Id. "[P]rior to entering default judgment, a district court is required to determine whether the [plaintiff's] allegations establish the [defendant's liability] as a matter of law." City of New York v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 137 (2d Cir. 2011) (internal quotations and citation omitted). Ultimately, "[t]he decision whether to enter default judgment is committed to the district court's discretion." Greathouse v. JHS Sec. Inc. , 784 F.3d 105, 116 (2d Cir. 2015).
II. Willfulness
The Court finds that McMurdy's default is willful. Plaintiff has submitted proof of service demonstrating the Summons and Complaint were personally served on McMurdy on August 21, 2018. (Dkt. 3). Moreover, both of Plaintiff's motions for default judgment were served on McMurdy via mail at his last known address (Dkt. 10-4; Dkt. 16), and McMurdy failed to respond to Plaintiff's Complaint, as well as both motions for default judgment. "Defendant's failure to appear, failure to respond to the Complaint, and failure to respond to the instant motion sufficiently demonstrate willfulness." Krevat , 2014 WL 4638844, at *6 (citation omitted); see also S.E.C. v. McNulty , 137 F.3d 732, 738-39 (2d Cir. 1998) ("willful" default found when "the conduct of counsel or the litigant was egregious and was not satisfactorily explained," such as "for flimsy reasons, [failure] to comply with scheduling orders," or failing to answer a complaint after evading service for months); Mason Tenders Dist. Council v. Duce Const. Corp. , No. 02Civ.9044(LTS)(GWG), 2003 WL 1960584, at *2 (S.D.N.Y. April 25, 2003) ("Defendants, having failed to respond in any way to the Summons and Complaint or otherwise make any appearance in this action and having failed to provide any explanation for its failure to defend, have defaulted willfully.").
III. Meritorious Defenses
The Court next considers whether McMurdy has a meritorious defense to Plaintiff's claims. "A defense is meritorious if it is good at law so as to give the factfinder some determination to make." Am. Alliance Ins. Co. v. Eagle Ins. Co. , 92 F.3d 57, 61 (2d Cir. 1996) (citation omitted). "While a defendant need not establish his defense conclusively, he must ‘present evidence of facts that, if proven at trial, would constitute a complete defense.’ " Krevat , 2014 WL 4638844, at *6 (citation omitted).
"[W]here a defendant fails to answer the complaint, a court is unable to make a determination whether the defendant has a meritorious defense to the plaintiff's claims, which circumstance weighs in favor of granting a default judgment." Id.
The fact that a complaint stands unanswered does not, however, suffice to establish liability on [the] claims: a default does not establish conclusory allegations, nor does it excuse any defects in the plaintiff's pleading. With respect to liability, a defendant's default does no more than concede the complaint's factual allegations; it remains the plaintiff's burden to demonstrate that those uncontroverted allegations, without more, establish the defendant's liability on each asserted cause of action.
Said v. SBS Electronics, Inc. , No. CV 08-3067(RJD)(JO), 2010 WL 1265186, at *2 (E.D.N.Y. Feb. 24, 2010) ; see also Krevat , 2014 WL 4638844, at *7 ("Even if a plaintiff's claims are deemed admitted, a plaintiff must demonstrate that the allegations set forth in the complaint state valid claims."). Consequently, the Court must assess whether Plaintiff's allegations, accepted as true, demonstrate McMurdy's liability as to each of Plaintiff's causes of action.
A. Breach of Contract
Plaintiff's first cause of action is for breach of contract. (Dkt. 1 at 23). The Court initially observes that the allegations contained at paragraphs 13(B) and 13(C) of the Complaint, which pertain to the amount owed to Plaintiff following a sale of his sports cards, are not consistent. While paragraph 13(B) provides that McMurdy, as the seller, was entitled to "retain 25 [percent] of the purchase price of each sale," paragraph 13(C) states that McMurdy, as the seller, was to "submit a check for the full amount of the purchase price, less the previously mentioned agreed upon 75 [percent] , to [Plaintiff] within 30 business days of receipt of the sale," which suggests that McMurdy was entitled to retain 75 percent of each sale for himself (emphasis added). The contract, which is attached as Exhibit 1-1 to the Complaint, does not provide any clarity, as it also states that "[t]he Seller is entitled to retain 25% of the purchase price of each sale for such display," but also that "[t]he Seller shall submit a check for the full amount of the purchase price, less the previously mentioned agreed upon 75% to the Consignee within 30 business days of receipt of the sale." (Dkt. 1-1 at 1). Accordingly, the contract is not clear as to what McMurdy's obligations were under the contract, at least as they pertain to the payment he was required to remit to Plaintiff following a sale of the sports cards. Plaintiff's moving papers do not address this inconsistency, and therefore the Court is not able to ascertain McMurdy's obligations pursuant to the contract.
Even putting this inconsistency aside, the Complaint does not sufficiently allege a claim for breach of contract. "The elements of a breach of contract claim in New York are: (1) the existence of a contract, (2) performance by the party seeking recovery, (3) non-performance by the other party, and (4) damages attributable to the breach." RCN Telecom Servs., Inc. v. 202 Ctr. St. Realty LLC. , 156 F. App'x 349, 350-51 (2d Cir. 2005). Regarding the first element, Plaintiff alleges that he entered into a contract with McMurdy in June 2012, for McMurdy to sell on consignment Plaintiff's sports cards. As to the second element, Plaintiff alleges that he provided the sports cards to McMurdy, as required by the contract. As to the third element, Plaintiff alleges that McMurdy breached the contract, by failing to pay Plaintiff pursuant to the contract and for failing to maintain insurance. Finally, as to the fourth element, Plaintiff alleges that, as a result of the breach, he suffered damages due to McMurdy's failure to perform under the contract.
As a federal court sitting in diversity jurisdiction, the Court "appl[ies] the substantive law of the forum state," which is the state of New York. See Omega Eng'g, Inc. v. Omega, S.A. , 432 F.3d 437, 443 (2d Cir. 2005). Further, as explained above, the contract provides that it is governed by the laws of New York and applicable federal law.
The allegations contained in the Complaint are not sufficient to support a claim for breach of contract. Pursuant to the contract, McMurdy was required to pay to Plaintiff a portion of the proceeds following the sale Plaintiff's sports cards (see Dkt. 1 at ¶ 13(B), (C)), and McMurdy was also required to maintain insurance (id. at ¶ 13(D)). While Plaintiff does allege that McMurdy failed to maintain insurance (id. at ¶ 14), he does not allege how this failure caused him to sustain damages. Further, although Plaintiff alleges that McMurdy "never paid Plaintiff anything for any of Plaintiff's sports collectible memorabilia merchandise" (id. at ¶ 14), Plaintiff does not allege an actual sale of the sports cards by McMurdy thereby triggering his obligation to pay, nor does Plaintiff identify which sports cards he believes McMurdy sold. Instead, Plaintiff alleges that when he attempted to contact McMurdy and asked him to "comply with the terms of the contract," McMurdy "refused to pay under the terms of the contract," and "refused to return Plaintiff's sports collectible memorabilia merchandise." (Id. at ¶ 15). Although the contract provides that Plaintiff could elect to remove his merchandise at the end of the consignment period (one year), Plaintiff does not allege when he contacted McMurdy and demanded his sports cards be returned. In other words, the Complaint lacks specific allegations substantiating Plaintiff's claim that McMurdy breached the agreement. Accordingly, Plaintiff is not entitled to a default judgment on this basis.
B. Fraud
Plaintiff's second cause of action is for fraud. (Dkt. 1 at 23). To state a claim for fraud under New York law, a plaintiff must allege: "(1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff." Wynn v. AC Rochester , 273 F.3d 153, 156 (2d Cir. 2001). Further, pursuant to the Federal Rules of Civil Procedure, a "party must state with particularity the circumstances constituting [the] fraud...." Fed. R. Civ. P. 9(b). "To satisfy this requirement, a plaintiff should specify the time, place, speaker, and content of the alleged misrepresentations. In addition, the complaint should explain how the misrepresentations were fraudulent and plead those events which give rise to a strong inference that the defendant had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth." Caputo v. Pfizer, Inc. , 267 F.3d 181, 191 (2d Cir. 2001) (internal quotations, citation, and alterations omitted).
Plaintiff has not adequately pleaded a cause of action for fraud which, as explained above, must be pleaded with particularity. Rather, Plaintiff simply lists the elements of a fraud claim without any additional supporting allegations, such as when the alleged fraud occurred, when or how he discovered the fraud, or the extent of the fraud. (See Dkt. 1 at ¶¶ 16-21, 27-32). Further, the Complaint contains no allegations differentiating Plaintiff's fraud claim from his breach of contract claim—rather, Plaintiff's fraud claim is based on the same misrepresentations Plaintiff alleges McMurdy made in connection with the contract. (See, e.g., id. at ¶ 18 ("Had Plaintiff known the Defendant's true intentions [to not fulfill his obligations under the contract], he would have never agreed to enter into the contract and given his collection of sports memorabilia merchandise to Defendant to sell."); id. at ¶ 19 ("Plaintiff actually, justifiably and reasonably relied on the Defendant's false statements about his ability and experience selling sports memorabilia merchandise. Furthermore, the overall impression the Defendant left by his statements was that he was in a position to discharge his duties favorably under the terms of the contract.")). "New York law requires that a fraud claim, raised in a case that stems from breach of contract, be ‘sufficiently distinct’ from the breach of contract claim. To be ‘sufficiently distinct’ from a breach of contract claim, fraud claims must be based on more than a defendant's false statements indicating an intention to perform his or her obligations under a contract." Karsch v. Blink Health Ltd. , 291 F. Supp. 3d 503, 507 (S.D.N.Y. 2018) (internal quotations, citations, and alterations omitted); see also see Telecom Int'l Am., Ltd. v. AT & T Corp. , 280 F.3d 175, 196 (2d Cir. 2001) ("[U]nder New York law, where a fraud claim arises out of the same facts as plaintiff's breach of contract claim, with the addition only of an allegation that defendant never intended to perform the precise promises spelled out in the contract between the parties, the fraud claim is redundant and plaintiff's sole remedy is for breach of contract.") (internal quotations and citations omitted). Accordingly, "[w]hen a plaintiff brings a fraud claim in tandem with a contract claim, the fraud claim may only proceed where the plaintiff (i) can ‘demonstrate a legal duty separate from the duty to perform under the contract’; (ii) can ‘demonstrate a fraudulent misrepresentation collateral or extraneous to the contract’; or (iii) ‘seek[s] special damages that are caused by the misrepresentation and unrecoverable as contract damages.’ " TN Metro Holdings, I, LLC v. Commonwealth Ins. Co. , 51 F. Supp. 3d 405, 410 (S.D.N.Y. 2014) (quoting Bridgestone/Firestone, Inc. v. Recovery Credit Svcs., Inc. , 98 F.3d 13, 20 (2d Cir. 1996) ).
Plaintiff does not allege that McMurdy owed him a duty separate from his duty to perform under the contract. The alleged fraudulent misrepresentations Plaintiff identifies—including McMurdy's failure to perform under the contract and failure to maintain insurance—are the same allegations serving as the basis for the breach of contract claim. See id. at 410 (finding the plaintiffs failed to allege a fraud-based claim independent from the breach of contract claim because they "d[id] not allege that [defendant] owed them a duty separate from [defendant's] duty to perform under the contract," nor did they "seek relief distinct from that which they claim they are due as a result of Defendant's alleged breach of contract."); see also Kriegel v. Donelli , No. 11 Civ. 9160(ER), 2014 WL 2936000, at *13-14 (S.D.N.Y. June 30, 2014) (plaintiff's fraud claim was duplicative of his breach of contract claim, where he made no allegation that the defendant owed a duty to him except as set forth in the contract; the defendant's alleged misrepresentation was not collateral to the contract; and relief sought for both fraud and breach of contract claim was identical).
In sum, Plaintiff's fraud claim fails because it is not pleaded with particularity, and as they are alleged in the Complaint, the allegations do not demonstrate that Plaintiff's fraud claim is independent of the breach of contract claim. Accordingly, Plaintiff has failed to adequately allege a claim for fraud, and he is not entitled to a default judgment on this basis.
C. Actual Fraudulent Transfers and Constructive Fraudulent Transfers
Plaintiff's third and fourth claims are for actual and constructive fraudulent transfers. (Dkt. 1 at 24-26). Claims for actual and constructive fraudulent transfers arise under both the federal bankruptcy laws and New York State Debtor and Creditor Law, NYDCL § 270, et seq. See American Tissue, Inc. v. Donaldson, Lufkin & Jenrette Secs. Corp. , 351 F. Supp. 2d 79, 105-06 (S.D.N.Y. 2004) ; see also In re Dreier LLP , 452 B.R. 391, 423-45 (Bkrtcy.S.D.N.Y. 2011) (evaluating the plaintiff's claims for actual fraudulent conveyance and constructive fraudulent conveyance under the Bankruptcy Code and under New York Debtor and Creditor Law). Further, a claim for actual fraudulent transfers must satisfy the heightened pleading requirement included in Fed. R. Civ. P. 9(b). Id. at 423.
Plaintiff's claims for actual and fraudulent transfers do not appear to be applicable to his case which, as explained above, stems from McMurdy's alleged breach of contract. Plaintiff's claims plainly do not arise under the Bankruptcy Code. Further, under New York law, claims for actual or constructive fraudulent transfers concern situations in which a debtor makes a transfer of property with the intent to hinder the collection of a debt. See, e.g., id. at 428 ("to prove actual fraud under [NYDCL] § 276, a creditor must show intent to defraud on the part of the transferor. Where actual intent to defraud is proven, the conveyance will be set aside regardless of the adequacy of the consideration given." (citation omitted)); id. at 440-41 (transfer is deemed "constructively fraudulent" when it is made without "fair consideration," and one of the following conditions is met: "(i) the transferor is insolvent or will be rendered insolvent by the transfer in question ... (ii) the transferor is engaged in or is about to engage in a business transaction for which its remaining property constitutes unreasonably small capital, ... or (iii) the transferor believes that it will incur debt beyond its ability to pay[.]").
The Complaint does not sufficiently allege that McMurdy is a debtor who engaged in fraudulent transfers of property. To the extent the Complaint suggests that the sports cards were fraudulently transferred to and by the Doe Defendants (see Dkt. 1 at ¶¶ 3-8, 33-52), Plaintiff has failed to identify any of these individuals. The Complaint contains only general language that Plaintiff is a "creditor" and that Defendants made transfers with the intent to hinder Plaintiff, without any supporting factual information, such as identifying specific fraudulent transfers and/or when the transfers occurred. Without additional information, Plaintiff has failed to state a claim for actual or constructive fraudulent transfers, and he is not entitled to default judgment on this basis.
D. Unjust Enrichment
Plaintiff's fifth cause of action is for unjust enrichment and imposition of constructive trust. (Dkt. 1 at 26). "The basic elements of an unjust enrichment claim in New York require proof that (1) defendant was enriched, (2) at plaintiff's expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover." Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc. , 373 F.3d 296, 306 (2d Cir. 2004). New York imposes a three-year statute of limitations for unjust enrichment claims seeking monetary damages, which "begins to run upon the occurrence of the wrongful act giving rise to a duty of restitution ... or when a defendant accepts the benefits bestowed upon him." See Lia v. Saporito , 909 F. Supp. 2d 149, 167 (E.D.N.Y. 2012) (internal quotations and citations omitted), aff'd , 541 F. App'x 71 (2d Cir. 2013). However, Oregon imposes a six-year statute of limitations for unjust enrichment claims grounded in contract. See The Hoag Living Trust dated Feb. 4, 2013 v. Hoag , 292 Or.App. 34, 424 P.3d 731, 737 (2018) ("the six-year limitation period serves as the appropriate reference for such claims of unjust enrichment and quantum meruit "). For the reasons explained below, New York's statute of limitations applies, and Plaintiff's unjust enrichment claim—which accrued in 2012—is time-barred.
"A federal court sitting in diversity jurisdiction must apply the choice-of-law principles of the forum state, in this case New York." Fargas v. Cincinnati Mach., LLC , 986 F. Supp. 2d 420, 423 (S.D.N.Y. 2013) (citing Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ). However, "[c]hoice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right." Morson v. Kreindler & Kreindler, LLP , 814 F. Supp. 2d 220, 225 (E.D.N.Y. 2011) (quoting Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410, 416, 901 N.Y.S.2d 575, 927 N.E.2d 1059 (2010) ). "Further, ‘[s]ince under common-law rules matters of procedure are governed by the law of the forum, it has generally been held that the Statute of Limitations of the forum rather than that of the jurisdiction where the cause of action accrued governs the timeliness of a cause of action.’ " Id. (quoting Martin v. Julius Dierck Equip. Co., 43 N.Y.2d 583, 588, 403 N.Y.S.2d 185, 374 N.E.2d 97 (1978) ). Accordingly, "[a]s a general rule, New York's statute of limitations will apply, even when the injury giving rise to the law suit occurred outside the state.... One notable exception to this rule, however, is New York's ‘borrowing’ statute." Williams v. Infra Commerc Anstalt , 131 F. Supp. 2d 451, 455 (S.D.N.Y. 2001) (citing C.P.L.R. § 202 ). "Under this statute, when a nonresident sues based upon a cause of action that accrued outside of New York, ‘the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.’ " Id. (quoting Stuart v. American Cyanamid Co. , 158 F.3d 622, 627 (2d Cir. 1998) ).
"In New York, economic injuries ordinarily accrue where the plaintiff resides and sustains the economic impact of the loss." Lehman Bros. Holdings, Inc. v. Universal Am. Mortg. Co., LLC , 660 F. App'x 554, 563 (10th Cir. 2016) (internal quotations and citation omitted); see also Gorlin v. Bond Richman & Co. , 706 F. Supp. 236, 240 (S.D.N.Y. 1989) ("For purposes of the New York borrowing statute, a cause of action accrues where the injury is sustained.... In cases involving economic harm, that place is normally the state of plaintiff's residence."). Plaintiff's alleged injury is economic and therefore his claim accrued in Oregon, where he resides. Accordingly, Plaintiff, a non-resident, is suing based on a cause of action that accrued outside of New York. Applying New York's borrowing statute, the Court must apply the shorter of the two statutes of limitations at issue—in this case, New York's three-year statute of limitations.
Plaintiff does not specifically allege when the first "wrongful act" by McMurdy occurred, but the Complaint alleges that Plaintiff delivered the sports cards to McMurdy on June 10 and 11, 2012. (Dkt. 1 at ¶ 12). Running the statute of limitations from when McMurdy received the sports cards in June 2012, Plaintiff's claim for unjust enrichment expired in June 2015, three years after McMurdy received the sports cards, i.e. , "accept[ed] the benefit[ ] bestowed upon him." Lia , 909 F. Supp. 2d at 167. Accordingly, Plaintiff's unjust enrichment claim is time-barred, and he is not entitled to a default judgment on this basis.
E. Intentional Infliction of Emotional Distress
Plaintiff's sixth cause of action is for intentional infliction of emotional distress. (Dkt. 1 at 27). "The New York state law tort of intentional infliction of emotional distress ‘has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress.’ ... Furthermore, ‘New York sets a high threshold for conduct that is "extreme and outrageous" enough to constitute intentional infliction of emotional distress.’ " A.M. ex rel. J.M. v. NYC Dep't of Educ. , 840 F. Supp. 2d 660, 690 (E.D.N.Y. 2012) (quoting Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996) ), aff'd sub nom. , 513 F. App'x 95 (2d Cir. 2013). The conduct at issue must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Stuto v. Fleishman , 164 F.3d 820, 827 (2d Cir. 1999) (quoting Howell v. New York Post Co. , 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993) ).
Here, the Complaint falls woefully short of pleading sufficient allegations to support a claim for intentional infliction of emotional distress. First, while McMurdy's conduct in allegedly breaching the contract may have caused Plaintiff to experience stress, the alleged breach, standing alone and without additional allegations, does not rise to the level of a claim for intentional infliction of emotional distress. See MaGee v. Paul Revere Life Ins. Co. , 954 F. Supp. 582, 587 (E.D.N.Y. 1997) (finding that the plaintiff's claim for intentional infliction of emotional distress failed because, "this case, at its core, is one for breach of contract based on a failure to pay insurance benefits with an extra twist insofar as the defendant's investigation practices are concerned. There are no allegations contained in the complaint which, if true, would constitute conduct so outrageous to give rise to a claim for intentional infliction of emotional distress."); see also Seifts v. Consumer Health Sols. LLC , 61 F. Supp. 3d 306, 324 (S.D.N.Y. 2014) ("an intentional breach of contract is not ‘extreme and outrageous’ conduct."); Nwagboli v. Teamwork Transp. Corp. , No. 08 Civ. 4562(JGK)(KNF), 2009 WL 4797777, at *5 (S.D.N.Y. Dec. 7, 2009) ("The facts present a routine contract dispute, where one contracting party breached the agreement intentionally. Without more, this conduct cannot be deemed ‘truly egregious.’ ").
In addition, the Complaint does not contain factual allegations detailing McMurdy's intent to cause severe emotional distress, or any information pertaining to the nature of Plaintiff's alleged severe emotional distress. Rather, the Complaint lists, in conclusory fashion, the elements of a claim for intentional infliction of emotional distress, and Plaintiff's allegation that he was "injured and suffered damages" is identical to those injuries resulting from the alleged breach of contract. (See Dkt. 1 at ¶¶ 60-64). Accordingly, Plaintiff has failed to adequately allege a claim for intentional infliction of emotional distress, and he is not entitled to a default judgment on this basis.
F. Punitive Damages
Plaintiff's seventh and final claim is for punitive damages. (Dkt. 1 at 27). However, "punitive damages are a remedy and not a separate cause of action." Nielsen v. City of Rochester , 58 F. Supp. 3d 268, 280 (W.D.N.Y. 2014) (quoting Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546, 563 (W.D.N.Y. 2013) ). Accordingly, Plaintiff's claim for punitive damages cannot serve as a basis for granting him a default judgment.
IV. Prejudice
Having determined that Plaintiff has failed to state a claim entitling him to a default judgment, the Court need not evaluate the level of prejudice that would be suffered by Plaintiff. See J & J Sports Prods., Inc. v. Muwwakkil , No. CV 17-5341 (ADS)(AKT), 2019 WL 2435788, at *7 (E.D.N.Y. Feb. 25, 2019) ("Because the Court has found that Plaintiff has failed to sufficiently allege a violation of either Section 605 or Section 553, it is not necessary to determine whether Plaintiff would be prejudiced if the Court declined to grant its motion for default judgment. Without an adequately pleaded entitlement to relief, the issue of prejudice becomes moot.").
CONCLUSION
For the foregoing reasons, Plaintiff's motion for default judgment (Dkt. 15) is denied.
SO ORDERED.