RAMOS, District Judge:
Plaintiffs Transcience Corporation and Yolanda Von Braunhut (collectively, "Plaintiffs") bring this action against Big Time Toys, LLC ("Defendant"), alleging, inter alia, breach of contract and trademark and copyright infringement. Plaintiffs are the owners of the "Sea-Monkeys" product: hybrid brine shrimp that hatch from eggs into "live micro-crustaceans." Am. Compl. ¶ 16. Plaintiffs allege that Big Time Toys, inter alia, breached a contract relating to the licensing of the "Sea-Monkeys" product.
Pending before the Court are Defendant's motion to dismiss the Amended Complaint (Doc. 16), and Plaintiffs' motion for a preliminary injunction (Doc. 19). For the reasons discussed below, Defendant's motion to dismiss is GRANTED in part and DENIED in part, and Plaintiffs' motion for a preliminary injunction is DENIED. Plaintiffs are granted leave to replead the breach of contract claim within thirty (30) days of the date of this Order.
Transcience Corporation and its Chief Executive Officer, Yolanda Von Braunhut, are the sole and exclusive owners of methods,
In June 2007, Plaintiffs entered into a license agreement with Big Time Toys (the "2007 Agreement"), that granted Defendant the right to produce, market, and sell Sea-Monkeys. Id. ¶¶ 29, 30. Under the 2007 Agreement, Defendant agreed to pay Transcience a royalty of ten percent (10%) of the gross sales of Sea-Monkeys. Id. ¶ 31.
The 2007 Agreement also gave Defendant the right to purchase the Sea-Monkeys product for an amount not to exceed $10 million. Id. ¶ 41. The Agreement provided that the purchase price would be made in two segments: (i) an initial lump sum payment of $5 million, and (ii) payments of a five percent (5%) annual royalty from merchandising sales and a percentage of entertainment-related revenue, until the remaining $5 million sum was achieved. Id. ¶ 42. Under the 2007 Agreement, upon payment of the first $5 million, Plaintiffs would turn over to Defendant the production and manufacture of the pouches, as well as the related trade secrets. Id. ¶ 43.
In May 2009, the parties modified the 2007 Agreement (the "2009 Agreement"). Id. ¶ 45. The 2009 Agreement, which modified the 2007 Agreement only where expressly indicated, increased the percentage of royalties owed to Plaintiffs. Id. ¶ 46. Specifically, the 2009 Agreement required Big Time Toys pay to Plaintiffs a royalty of twenty percent (20%) of gross sales. Id. ¶ 47. The 2009 Agreement also modified the procedure by which Big Time Toys could purchase the Sea-Monkeys product. First, the 2009 Agreement specified that the total purchase price for the Sea-Monkeys product would be $10 million, as opposed to an amount not to exceed $10 million. Id. ¶ 48. The 2009 Agreement further provided that the initial purchase price of $5 million would be realized through: (i) a $500,000 lump sum payment upon execution of the agreement, and (ii) the payment of $4,500,000 from the royalties discussed above. Id. ¶ 50.
Under the 2009 Agreement, in the event of a failure to make a royalty payment, Big Time Toys would have 15 days from the receipt of notice of its failure to cure the default. Id. ¶ 59. The 2009 Agreement further provided that Plaintiffs could, in the event of Big Time Toys' failure to cure any default relating to royalty payments, (1) declare the agreement terminated; (2) commence an action for equitable relief, including injunctive relief, prohibiting any continued use of licensed trademarks and copyrights; and (3) require that Defendant immediately cease selling, marketing, or producing the licensed products. Id. ¶ 78. Additionally, any rights granted under the contract would be deemed null and void. Id. Accordingly, on December 20, 2012, Transcience sent to Defendant a notice of default. Id. ¶ 60. After Big Time Toys failed to cure the default, Transcience sent a letter to Defendant, dated January 18, 2013, declaring that the parties' agreements were "null and void and of no further force or effect." Id. ¶ 61.
The Amended Complaint further alleges that, despite the breach of the agreements, Big Time Toys continued to "prominently feature[]" the Sea-Monkeys product on the homepage of its website from January 18, 2013 through November 25, 2013. Id. ¶¶ 81, 82.
Plaintiffs allege that Big Time Toys breached its obligations under the agreements and infringed certain of their trademarks and copyrights by continuing to sell Sea-Monkeys without Plaintiffs' authorization. In addition to the breach of contract and intellectual property claims, Plaintiffs bring the following causes of action: breach of the implied covenant of good faith and fair dealing; unjust enrichment; breach of the implied contract; conversion; and tortious interference with business relationships.
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.2012); see also, e.g., Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008). However, the Court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also id. at 681, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 551, 127 S.Ct. 1955). "To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to `state a claim to relief that is plausible on its face.'" Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). More specifically, the plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully." Id. Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79, 129 S.Ct. 1937. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
Plaintiffs allege that Defendant's continued use of their copyrights for the Sea-Monkeys product constitutes copyright infringement. To state a claim for copyright infringement, a plaintiff must demonstrate ownership of a valid copyright and infringement of that copyright by the defendant. Am. Broad. Cos. v. Flying J, Inc., 06 Civ. 2967(DAB), 2007 WL 583176, at *4 (S.D.N.Y. Feb. 22, 2007). Courts in the Southern District of New York have held that to meet the requirements of Rule 8(a), a complaint must plead with specificity the acts by which a defendant has committed copyright infringement. Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225,
Plaintiffs have adequately pleaded each of these elements. Plaintiffs state that they are the owners of all copyrights for the Sea-Monkeys product and specifically identify each copyright. See Am. Compl. ¶ 168. The Amended Complaint further alleges that all such copyrights are registered with the United States Copyright Office. Id. ¶ 169. And Plaintiffs plead that Big Time Toys featured the copyrighted Sea-Monkeys on their website from at least January 18, 2013 to November 25, 2013, thus "present[ing] to the world an assumed right and/or authorization to sell the copyrighted [products]." Id. ¶¶ 172, 173. Accordingly, Defendant's motion to dismiss the copyright infringement claim is DENIED.
Plaintiffs allege that Defendant's continued use of the trademarks for Sea-Monkeys constitutes trademark infringement. To prevail on a trademark infringement claim for registered trademarks, a plaintiff must establish that (1) it has a valid mark that is entitled to protection under the Lanham Act; and that (2) the defendant used the mark, (3) in commerce, (4) in connection with the sale or advertising of goods or services, (5) without the plaintiff's consent. See 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 406-07 (2d Cir.2005). "In addition, the plaintiff must show that defendant's use of that mark `is likely to cause confusion ... as to the affiliation, connection, or association of [defendant] with [plaintiff], or as to the origin, sponsorship, or approval of [the defendant's] goods, services, or commercial activities by [plaintiff].'" Id. (quoting 15 U.S.C. § 1125(a)(1)(A)). However, the likelihood of confusion test is a fact-intensive analysis that ordinarily does not lend itself to a motion to dismiss. Merck & Co., Inc. v. Mediplan Health Consulting, Inc., 425 F.Supp.2d 402, 412 (S.D.N.Y.2006); see also Deere & Co. v. MTD Prods, Inc., No. 00 Civ. 5936(LMM), 2001 WL 435613, at *1 (S.D.N.Y. Apr. 30, 2001) (noting that likelihood of confusion is not an appropriate inquiry on a motion to dismiss because the court must accept the allegations in the complaint as true).
Here, Plaintiffs have pleaded that they own all trademarks for the Sea-Monkeys product, and have specified the trademarks registered with the United States Trademark and Patent Office. See Am. Compl. ¶¶ 148-49. Plaintiffs further allege that Big Time Toys prominently featured the trademarked products on its website following the termination of the license agreements, and "continues to present to the world an assumed right and/or authorization to sell [the products] on [its] website."
Plaintiffs claim that Big Time Toys breached the parties' contracts when it failed to cure its default on the royalty payments. Am. Compl. ¶ 88. As an initial matter, the continued use of a licensed trademark after termination of a license agreement can be actionable as both breach of contract and trademark infringement. See, e.g., Baskin-Robbins Ice Cream Co. v. D & L Ice Cream Co., 576 F.Supp. 1055, 1060 (E.D.N.Y.1983) (holding that the continued use of licensed trademark after termination of franchise agreement constituted trademark infringement and breach of contract); Ryan v. Volpone Stamp Co., 107 F.Supp.2d 369, 381 (S.D.N.Y.2000) (denying motion to dismiss trademark infringement claim based on continued use of licensed products where breach of contract claim was also pleaded).
Under New York law, the elements of a cause of action for breach of contract are (1) the existence of a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages suffered as a result of the breach.
"A claimant's failure to plead the performance of its own contractual obligations is fatal to a breach of contract claim even if the other requisite elements are properly pleaded." Comfort Inn Oceanside v. Hertz Corp., No. 11-CV-1534 (JG)(JMA), 2011 WL 5238658, at *3 (E.D.N.Y. Nov. 1, 2011); see also R.H. Damon & Co., Inc. v. Softkey Software Prods., Inc., 811 F.Supp. 986, 991 (S.D.N.Y.1993) (noting that a breach of contract claim must contain some allegation that plaintiffs actually performed their obligations under the contract); CreditSights, Inc. v. Ciasullo, No. 05 Civ. 9345(DAB), 2008 WL 4185737, at *11 (S.D.N.Y. Sept. 5, 2008) (ruling that counterclaim plaintiff could not state a claim for breach of contract because he did not allege adequate performance). Accordingly, Plaintiffs' breach of contract claim is DISMISSED without prejudice.
Plaintiffs allege that Big Time Toys breached the implied covenant of good faith and fair dealing. Am. Compl. ¶ 110. Defendant contends that this claim must be dismissed because New York law bars implied covenant claims when they are insufficiently distinct from contractual claims. See Def. Mem. L. 9. Indeed, New York law does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing
Plaintiffs claim that Big Time Toys has been unjustly enriched by the now quasicontractual nature of the parties' relationship. See id. ¶ 126. In particular, Plaintiffs contend that Defendant has been unjustly enriched by the unauthorized sales of Sea-Monkeys since Big Time Toys' final royalty payment in November 2012. See id. ¶¶ 125, 126. Defendant claims that the unjust enrichment claim must be dismissed as insufficiently distinct from the breach of contract claim. Def. Mem. L. 11.
"[W]here there is an enforceable written contract governing the particular subject matter, claims based on quasi-contract theories like unjust enrichment do not provide a distinct basis for recovery." Vitrano v. State Farm Ins. Co., No. 08 Civ. 00103(JGK), 2008 WL 2696156, at *3 (S.D.N.Y. July 8, 2008); see also Spanierman Gallery, PSP v. Love, No. 03 Civ. 3188(VM), 2003 WL 22480055, at *4 (S.D.N.Y. Oct. 31, 2003) ("The New York Court of Appeals has held that the `existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter.'" (quoting ClarkFitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 656, 516 N.E.2d 190 (1987))). However, even though Plaintiffs may not ultimately recover under both the breach of contract and unjust enrichment claims, courts in this Circuit routinely allow plaintiffs to plead such claims in the alternative. See Maalouf v. Salomon Smith Barney, Inc., No. 02 Civ. 4770(SAS), 2003 WL 1858153, at *7 (S.D.N.Y. Apr. 10, 2003) (noting that plaintiff is allowed to plead both contract and quasi-contract claims even though he may only recover on one such ground); Orange Cnty. Choppers, Inc. v. Olaes Enters., Inc., 497 F.Supp.2d 541, 557 (S.D.N.Y.2007) (citing Maalouf and Rule 8(a) of the Federal Rules of Civil Procedure for the principle that plaintiff may plead breach of contract and unjust enrichment claims alternatively despite defendant's contention that a valid and enforceable contract governed the dispute);
To state a claim for unjust enrichment under New York law, a plaintiff must provide 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. v. Phx. Pictures, Inc., 373 F.3d 296, 306 (2d Cir.2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1704, 161 L.Ed.2d 525 (2005). "The `essence' of such a claim `is that one party has received money or a benefit at the expense of another.'" Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.2000) (quoting City of Syracuse v. R.A.C. Holding, Inc., 258 A.D.2d 905, 685 N.Y.S.2d 381, 381 (4th Dep't 1999)).
Here, Plaintiffs claim that Big Time Toys was unjustly enriched at their expense through the unauthorized sales of the previously licensed Sea-Monkeys product, and that Plaintiffs were harmed accordingly. Am. Compl. ¶¶ 126, 127. Because Plaintiffs have alleged that Defendant unjustly benefited from unauthorized sales of Sea-Monkeys, the Amended Complaint states a claim for unjust enrichment under New York law. Cf. C=Holdings B.V. v. Asiarim Corp., 992 F.Supp.2d 223, 248 (S.D.N.Y.2013) (dismissing unjust enrichment claim because plaintiff failed to allege that defendant received gains from enrichment by actually selling plaintiff's products). However, the unjust enrichment claim is preempted to the extent it seeks to protect Plaintiffs' copyrights.
Section 301 of the Copyright Act preempts state law actions that seek to vindicate rights equivalent to those protected under the Copyright Act. See 17 U.S.C. § 301(a); Berry v. Deutsche Bank Trust Co. Ams., No. 07 Civ. 7634(WHP), 2008 WL 4694968, at *6 (S.D.N.Y. Oct. 21, 2008), aff'd, 378 Fed.Appx. 110 (2d Cir. 2010). The Copyright Act preempts claims when: (1) the particular work to which the claim is being applied falls within the type of works protected by the Copyright Act, and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law. Id. (quoting Briarpatch, 373 F.3d at 305). In order for a state cause of action to survive preemption, it must "have an `extra element' beyond reproduction, preparation of derivative works, distribution, performance or display, which `changes the nature of the action so that it is qualitatively different from a copyright infringement claim.'" Gusler v. Fischer, 580 F.Supp.2d 309, 316 (S.D.N.Y.2008) (emphasis added) (quoting Computer Assocs. Int'l Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992)). "An action `will not be saved from preemption by elements such as awareness or intent, which alter the action's scope but not its nature.'" Id. (quoting Computer Assocs., 982 F.2d at 717).
In Briarpatch, the Second Circuit ruled that the Copyright Act preempted an unjust enrichment claim relating to adaptation
Despite the conclusion reached in Briarpatch, the Copyright Act does not fully preempt state law claims where the claims also seek to protect trademark rights.
Plaintiffs explicitly state that the unjust enrichment claim is premised on Big Time Toys' "continuing and ongoing unauthorized sales of the previously licensed Sea-Monkeys product." Am. Compl. ¶ 126. Accordingly, the unjust enrichment claim is preempted, but only to the extent it relies on Plaintiffs' copyrighted works;
Plaintiffs allege that an implied contract formed "by implication of fact" after Big Time Toys' willful termination of the parties' express contract. See Am. Compl. ¶ 110. Under New York law, absent a written agreement between the parties, a contract may be implied where inferences may be drawn from the facts and circumstances of the case and the intention of the parties as indicated by their conduct. Bader v. Wells Fargo Home Mortg. Inc., 773 F.Supp.2d 397, 413 (S.D.N.Y.2011) (quoting Bear Stearns Inv. Prods., Inc. v. Hitachi Auto. Prods. (USA), Inc., 401 B.R. 598, 615 (S.D.N.Y. 2009)). "An implied-in-fact contract is `just as binding as an express contract arising from declared intention, since in law there is no distinction between agreements made by words and those made by conduct.'" Ellis v. Provident Life & Accident Ins. Co., 3 F.Supp.2d 399, 409 (S.D.N.Y.1998), aff'd, 172 F.3d 37 (2d Cir. 1999) (quoting Jemzura v. Jemzura, 36 N.Y.2d 496, 369 N.Y.S.2d 400, 408, 330 N.E.2d 414 (1975)). However, a contract may not be implied in fact from the conduct of the parties where it appears that they intended to be bound only by a formal written agreement. Missigman v. USI Ne., Inc., 131 F.Supp.2d 495, 513 (S.D.N.Y. 2001) (citing Valentino v. Davis, 270 A.D.2d 635, 703 N.Y.S.2d 609, 612 (3d Dep't 2000)); see also Bader, 773 F.Supp.2d at 413 (stating the principle that a contract cannot be implied in fact where the facts are inconsistent with its existence or where there is an express contract covering the subject matter involved). "Thus, the theories of express contract and of contract implied in fact ... are mutually exclusive.'" Id. at 414 (quoting Bowne of N.Y. Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991)).
While the Amended Complaint alleges that there was a valid express contract, Plaintiffs have not pleaded facts and circumstances from which inferences may be drawn that the parties actually intended to be bound by an implied contract after the alleged breach. Instead, Plaintiffs allege that the express contract was terminated by the breach, and have not provided any suggestion that there was mutual assent between the parties following Big Time Toys' failure to cure its default. See Nadel v. Play-By-Play Toys & Novelties, 208 F.3d 368, 382 (2d Cir.2000) (noting that mutual assent is an element required for both express and implied contracts).
Plaintiffs bring a claim for conversion based on their "clear and unequivocal title to the intellectual property that formed the basis for the contractual relationship" between the parties. Am. Compl. ¶ 134. Under New York law, conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d Cir.2006) (quoting Vigilant Ins. Co. v. Hous. Auth., 87 N.Y.2d 36, 637 N.Y.S.2d 342, 347, 660 N.E.2d 1121 (1995)). "For an action in conversion to lie when the original possession of the property is lawful, a plaintiff must make a demand for the allegedly converted property and the possessor must refuse." AD Rendon Commc'ns, Inc. v. Lumina Ams., Inc., No. 04 Civ. 8832(KMK), 2007 WL 2962591, at *4 (S.D.N.Y. Oct. 10, 2007).
Whereas courts in this Circuit allow for alternative pleading of unjust enrichment and contract claims, conversion claims are routinely dismissed on Rule 12(b)(6) motions where duplicative of breach of contract claims. See Kalimantano GmbH v. Motion in Time, Inc., 939 F.Supp.2d 392, 416 (S.D.N.Y.2013) (granting motion to dismiss conversion claim as not qualitatively different from breach of contract claim); Prudential Inv. Mgmt. Servs. LLC v. Forde, No. 12 Civ. 5168(LAP), 2013 WL 3199098, at *4 (S.D.N.Y. June 25, 2013) (granting motion to dismiss conversion claim where it arose from the same facts as those underlying the breach of contract claim); Jain v. T & C Holding Inc., No. 10 Civ. 1006(RMB), 2011 WL 814659, at *6 (S.D.N.Y. Mar. 3, 2011) (granting motion to dismiss conversion claim as a "mere duplication" of the contract cause of action); see also Zhao v. Wang, 558 Fed.Appx. 41, 43 (2d Cir.2014) (affirming dismissal of conversion claim on summary judgment because the claim "turns entirely on the issue of breach" and therefore sounds in contract, not conversion); Wolf v. Nat'l Council of Young Isr., 264 A.D.2d 416, 694 N.Y.S.2d 424, 425 (2d Dep't 1999) (stating that conversion counterclaim was properly dismissed because it did not stem from a wrong independent of the alleged breach of contract). Accordingly, because Big Time Toys' possession of Plaintiffs' property here would have been lawful if not for the alleged breach of contract, the conversion claim cannot be sustained. Defendant's motion to dismiss the conversion claim is therefore GRANTED.
Plaintiffs further allege that Big Time Toys has tortiously interfered
Plaintiffs request a preliminary injunction prohibiting any continuing use of Plaintiffs' trademarks or copyrights by Big Time Toys, its agents, or assignees for the duration of the instant litigation. See Pls. Mem. L. 27. To obtain a preliminary injunction, the moving party must demonstrate (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the movant's favor; and (3) that the public's interest weighs in favor of granting an injunction. Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir.2011) (quoting Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir. 2010)). Plaintiffs do not meet this standard.
First, as Defendant notes, Plaintiffs' delay in moving for injunctive relief is "compelling evidence" that there is no irreparable harm. Def. Opp. Mem. L. 11. Indeed, "[u]nreasonable delay in bringing suit is strong evidence that immediate injunctive relief is not required to prevent irreparable harm." Andersen Consulting LLP v. Am. Mgmt. Sys., Inc., No. 95 Civ. 5428(KTD), 1995 WL 510042, at *4 (S.D.N.Y. Aug. 28, 1995). It is well-established in this Circuit that delays in moving for injunctive relief to protect copyrights and trademarks from further unauthorized use weigh heavily against the movant. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir.1985) (noting
In Union Cosmetic Castle, Inc. v. Amorepacific Cosmetics USA, Inc., 454 F.Supp.2d 62, 70 (E.D.N.Y.2006), the court denied a preliminary injunction motion in an antitrust action because, inter alia, plaintiffs were aware of defendants' alleged misconduct seven months before the filing of the litigation. The court found that this delay, especially in light of the fact that the defendants terminated the distributorship contract five months before the commencement of the action, "negat[ed] the alleged urgency of the plaintiffs' financial conditions...." Id. The court concluded that the plaintiffs were therefore unable to demonstrate irreparable harm as a matter of law. Id. Here, Plaintiffs were on notice of Big Time Toys' alleged breach as early as December 2012. However, they waited nine months — until September 19, 2013 — to commence the instant litigation. And it was not until January 2014 — more than four months after the filing of the original complaint, and more than one year after the alleged breach — that Plaintiffs requested leave to file a motion for injunctive relief. See January 31, 2014 Letter of William Timmons. This delay — if not dispositive — weighs strongly in Defendant's favor.
Second, the Second Circuit has concluded that "[a] harm that can be remedied by a money judgment or at the end of trial is not an irreparable harm." Lee v. Choi, 140 Fed.Appx. 299, 300 (2d Cir.2005) (emphasis added); see also Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir.2005) ("At the preliminary injunction stage, the only cognizable harms are those that cannot be remedied at the end of trial if the movant were to prevail."); Polymer Tech. Corp. v. Mimran, 37 F.3d 74, 82 (2d Cir.1994) (finding no irreparable injury because plaintiff could be adequately compensated with money damages). Here, however, it is clear that the harm alleged is monetary in nature. Indeed, according to Plaintiffs, "[t]he sudden abbreviation of compensation [in December 2012] severely compromised the financial posture of both Transcience and its CEO, Yolanda Von Braunhut." Pls. Mem. L. 9-10.
Therefore, even if Plaintiffs could prove a likelihood of success on the merits,
For the reasons set forth above:
The Clerk of the Court is respectfully directed to terminate the motions. Docs. 16, 19.
It is SO ORDERED.
Plaintiffs' request is improper because it assumes liability has been established. As the Second Circuit has expressed, "[t]o avoid a possible tendency to seek declaratory judgments or advisory opinions on matters hypothetical, the role of the courts under Article III is confined to passing upon an actual `case or controversy.'" Evans v. Lynn, 537 F.2d 571, 596 (2d Cir.1975), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977); see also North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (stating that a lawsuit must be definite and concrete and involve "a real and substantial controversy" in order to be cognizable in federal court). "An advisory opinion constitutes a decision of law concerning a set of facts which are hypothetical or speculative, facts which do not now exist and whose existence is not imminent." Guttmacher Inst. v. McPherson, 616 F.Supp. 195, 200 (S.D.N.Y. 1985), aff'd as modified, 805 F.2d 1088 (2d Cir.1986). Because Plaintiffs' claim requires analysis of the four elements of a breach of contract under New York law to determine liability — a determination that, based on Plaintiffs' demand, would need to be made by a jury — any analysis of damages at this stage would be premature.
Similarly, in Asher Associates, L.L.C. v. Baker Hughes Oilfield Operations, Inc., No. 07-cv-01379-WYD-CBS, 2009 WL 1468709, at *2 (D.Colo. May 20, 2009), the defendant requested on summary judgment that the court prohibit plaintiffs from seeking certain categories of damages on their contract claims. The court dismissed the defendant's motion as raising a "hypothetical scenario" and noted that the defendant was "essentially asking [the court] make an advisory opinion." Id. The court observed that if the defendant were to prevail at trial on the issue of liability, it would be unnecessary for the court to address the issue of damages. Id. So too here, Plaintiffs' request for an adjudication of damages only is improper. See also Cummings v. Allstate Ins. Co., Civ. No. 11-02691, 2011 WL 4528366, at *9 (E.D.Pa. Sept. 30, 2011) (ruling that an assessment of the extent of damages available on breach of contract claim "would be purely speculative at this juncture (on a motion to dismiss), given that it has yet to be determined that a breach occurred").
