MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

In this action, plaintiffs assert a single cause of action for breach of contract. Defendants move to dismiss the complaint for failure to state a claim under Rule 12(b)(6). For the reasons stated below, we grant defendants' motion and dismiss plaintiffs' complaint in its entirety with prejudice.

BACKGROUND1

Plaintiffs Aron Marderosian and Robert Marderosian are California-based song writers, musicians, and producers of musical recordings who are professionally known as "Heavy Young Heathens." Compl. ¶ 10. They own and operate plaintiff Twelve Sixty LLC, a California limited liability company, for purposes of licensing their music. Id. ¶¶ 1, 11. In January 2014, plaintiffs entered into a loanout agreement ("Agreement") with defendant On-Site Productions Inc. ("On-Site"), a subsidiary entity of defendant Viacom International Inc. ("Viacom"). Id. ¶ 12.

Under the Agreement, plaintiffs agreed to create and deliver a theme song for defendants' television show called "Are You the One?". Id. ¶ 13. In exchange, On-Site agreed to pay plaintiffs $10,000. Id. ¶ 14. Plaintiffs were also entitled to receive their "writer's share" of public performance income ("PPI"), "which may be payable directly" from plaintiffs' performing rights society ("PRO") that collects and distributes royalties for public performances of musical works.2 Id. Ex. A ¶ 6(b). Plaintiffs' receipt of their share of PPI "shall be the sole responsibility of [plaintiffs] and shall occur solely through the efforts and at the expense of [plaintiffs]." Id. In the Agreement, plaintiffs designated Broadcast Music, Inc. ("BMI") as their PRO. Id. ¶ 14. Plaintiffs produced a song titled "Smooth Hand" ("the song"), which was accepted by defendants.3 Id. ¶ 16. According to plaintiffs, defendants used the song "domestically and internationally as a theme song for the television program `Are You the One?' and its related Viacom distributed spinoff series."4 Id.

Plaintiffs allege that defendants breached the Agreement by "failing to file cue sheets and/or require the filing of cue sheets in order for plaintiffs to properly collect their royalties," id. ¶ 17, even though they used the song as a theme song for the show and its multiple "spinoff series, commercials, teasers, and promos" that aired domestically and internationally, id. ¶ 23.5 Because of defendants' alleged failure, plaintiffs claim that they were deprived of their proper share of PPI.6 Id. ¶ 22-23.

PROCEDURAL HISTORY

Plaintiffs filed their complaint on January 5, 2018, see ECF No. 1, and defendants filed a motion to dismiss for failure to state a claim on May 25, 2018, see ECF No. 20. After the motion was fully briefed, plaintiffs requested leave to file under seal a supplemental declaration in opposition to defendants' motion. See July 31, 2018 Letter from Michael G. Marderosian to the Court ("Pls.' Request to File Supp. Decl."), ECF No. 27. The declaration attached an email designated as confidential by a third party in another action7 in this District brought by plaintiffs and still pending. Id. The email included cue sheets that defendants submitted to BMI with respect to broadcasts of the song in Brazil. Id. According to plaintiffs, the cue sheets confirm that defendants "have the obligation to submit the cue sheets and are now attempting to do so to correct their previous misconduct." Id. Opposing plaintiffs' request, defendants argued that the proposed submission should not be considered by this Court because: (1) it was irrelevant to determining whether defendants had a contractual obligation to submit cue sheets; and (2) it was not included in plaintiffs' complaint.8 See Aug. 3, 2018 Letter from Wook Hwang to the Court ("Defs.' Opp. to Pls.' Supp. Decl."), ECF No. 29. We reserved our ruling on plaintiffs' request until our consideration of defendants' motion to dismiss.

After reviewing the parties' briefs in response to defendants' motion, we held a telephone conference on February 14, 2019, to discuss defendants' factual challenge to plaintiffs' allegations that defendants had failed to properly submit cue sheets for some domestic broadcasts. At the conference, we instructed plaintiffs to go through the cue sheets they had received from defendants and to identify specific domestic broadcasts for which they asserted defendants had not submitted cue sheets. After a flurry of letters, see ECF Nos. 33, 34, 35, the parties agreed at the subsequent oral argument that defendants had only failed to submit cue sheets for two domestic broadcasts.9 See Mar. 4, 2019 Hr'g Tr., ECF No. 40, 10:7-19. Shortly after the oral argument, defendants submitted an affidavit stating that they had submitted cue sheets for the two broadcasts on March 6, 2019. See Mar. 8, 2019 Decl. of Anita Chinkes-Ratner, ECF No. 36-1, ¶ 3. Thus, plaintiffs' claims as to domestic broadcasts of the song are moot, and only claims related to defendants' alleged failure to submit cue sheets for foreign broadcasts of the song remain.

DISCUSSION

Given that plaintiffs' claims with respect to domestic broadcasts are now moot, it would usually be unnecessary to discuss our analysis of the claims as if they were still alive. However, in this case, our analysis of the domestic claims informs our analysis of defendants' obligation, if any, to provide cue sheets for foreign broadcasts.

In their motion to dismiss, defendants asserted that plaintiffs' cause of action is meritless because the payment of plaintiffs' share of PPI was "exclusively a matter between Plaintiffs and BMI." Mem. of Law in Supp. of Defs.' Mot. to Dismiss, ECF No. 22, at 3. Defendants also correctly noted that the Agreement clearly states that the writer's share was to "be payable directly from Composer's [PRO]" and that the receipt of these royalties "shall be the sole responsibility of Composer and shall occur solely through the efforts and at the expense of Composer." Compl., Ex. A ¶ 6(b). Nonetheless, under New York law,10 all contracts imply a covenant of good faith and fair dealing in the course of performance. See, e.g., Smith v. General Acc. Ins. Co., 697 N.E.2d 168, 170 (N.Y. 1998); Dalton v. Educational Testing Serv., 663 N.E.2d 289, 291 (N.Y. 1995). This covenant embraces a pledge that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Dalton, 663 N.E.2d at 291. According to BMI (plaintiffs' designated PRO), it cannot pay royalties to song composers if cue sheets are not submitted properly by the song's publisher or broadcaster (i.e., defendants).11 See Feb. 20, 2019 Decl. of Robert Marderosian, ¶ 4. Since plaintiffs cannot receive "the fruits of the contract" — their entitled share of PPI under the Agreement — without defendants' proper submission of cue sheets to BMI, we would have found that defendants had an implied obligation to take such affirmative steps to ensure plaintiffs' receipt of royalties for domestic broadcasts.

However, defendants' implied obligation exists only as to domestic broadcasts of the song because the Agreement references only BMI, which "licenses public performances in the United States only."12 Defs.' Opp. to Pls.' Supp. Decl. As plaintiffs admitted at oral argument, the Agreement does not contain: (1) any reference to a foreign PRO; (2) any provision requiring defendants to make payments to foreign PROs; or (3) any provision that entitles plaintiffs to receive their share of PPI from PROs other than BMI.13 See Hr'g Tr. 19:5-22. Since the implied covenant of good faith and fair dealing "cannot be used to impose an obligation that is inconsistent with express contractual terms," see, e.g., Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 91 (N.Y. 1983), there is no basis to extend defendants' implied obligation to submit cue sheets for domestic broadcasts to broadcasts occurring outside of the United States.

CONCLUSION

For the reasons set forth above, defendants' motion to dismiss is granted. The Clerk of Court is respectfully directed to terminate this case and any motions pending therein.

SO ORDERED.