Scherie Murray for Congress v. Andrew Shannon

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SCHERIE MURRAY FOR CONGRESS,

Plaintiff, MEMORANDUM & ORDER

20-CV-2285(EK)(RLM)

-against-

ANDREW SHANNON, SOUTHERN CHRISTIAN

LEADERSHIP CONFERENCE (SCLC)

PENINSULA CHAPTER, and DEAN NELSON,

Defendants.

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ERIC KOMITEE, United States District Judge:

Scherie Murray sought a seat in the U.S. House of

Representatives for the 14th Congressional District (covering

parts of the Bronx and Queens) in 2020. The Plaintiff here, the

Scherie Murray for Congress Campaign, hired Andrew Shannon to

help the candidate secure a spot on the Republican primary

ballot for that election. Ultimately, however, the New York

City Board of Elections excluded Murray from the ballot because

the campaign submitted a petition that failed to comply with New

York State election law.

Plaintiff sues three defendants: Shannon personally;

Shannon’s organization, the Southern Christian Leadership

Conference — Peninsula Chapter (“SCLC”); and an individual named

Dean Nelson, who allegedly introduced the campaign to Shannon.

Defendants move to dismiss the complaint pursuant to Rules

12(b)(2) and (b)(6). For the following reasons, I grant

Defendants’ motions to dismiss. I also deny Plaintiff’s latest

motion to amend the complaint.

I. Factual Background

The following factual allegations are drawn from the

second amended complaint filed on July 2, 2021 (“complaint” or

“Compl.”). ECF No. 36. I accept these allegations as true for

purposes of the instant motion, and draw all reasonable

inferences in the plaintiff’s favor. E.g., Lundy v. Catholic

Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir.

2013).

A. New York Ballot Requirements

To appear on the ballot for a primary election in New

York State, a candidate must submit a “designating petition”

pursuant to New York State election law. Compl. ¶ 11; New York

Election Law § 6-118. The designating petition must be signed

by a specified number of individuals registered to the

candidate’s political party and entitled to vote in the primary

in the relevant district. N.Y. Elec. Law § 6-132. Each

signature sheet of the designating petition must also be signed

by what is known as a “subscribing witness.” N.Y. Elec. Law

§ 6-132(2); Maslow v. Bd. of Elections in City of New York, 658

F.3d 291, 294 (2d Cir. 2011). The subscribing witness must be

“a duly qualified voter of the state, who is an enrolled voter

of the same political party as the voters qualified to sign the

petition and who has not previously signed a petition for

another candidate for the same office.” N.Y. Elec. Law § 6-

132(2).

B. The Campaign Engages Shannon as Consultant

At the outset of her campaign, Plaintiff sought to

hire a vendor to provide “field operations” including securing

petition signatures, and who could help it comply with election-

law requirements in the process. Compl. ¶ 14. Murray connected

with defendant Dean Nelson through his “associate,” Kevrick

McKain, who worked with Nelson at something called the Douglas

Leadership Institute. Id. Nelson is an ordained minister. Id.

¶ 4. He and McKain offered to connect Murray to defendant

Andrew Shannon. Id. ¶ 14. Plaintiff had “multiple”

conversations with Nelson, McKain, and Shannon in January and

February of 2020. Id. ¶¶ 16-17.

Specifically, on February 13, McKain texted Murray to

say “that he would be connecting her campaign ‘to Andrew

[Shannon] today. He has some folks that are a part of SCLC

Network that live [] in the city.’” Id. ¶ 14. Shannon bills

himself as a “consultant” and maintains an office in Newport

News, Virginia. Id. ¶ 3; see also id. ¶ 18. McKain represented

that Shannon “could assist the Murray for Congress campaign in

field operations to comply with New York state election laws and

fulfilling its corresponding petition/signature obligations.”

Id. ¶ 14. Plaintiff had “several” other “conversations with

Nelson and Shannon about their experience and expertise in

collecting signatures in the State and City of New York,” and

they “represented . . . on multiple occasions” that Shannon

“had the requisite skills and resources necessary to comply with

New York State election law requirements and to obtain

qualifying signatures . . . .” Id. ¶¶ 16-17.

On February 18, 2020, Plaintiff and Shannon executed a

“Contract for Consulting” (the “Consulting Agreement”).1 Exhibit

A to Compl., ECF No. 36 at 15. The agreement is brief and is

not a model of clarity. It refers to the Murray campaign as the

“Client” and Shannon as the “Consultant,” and describes the

“Services” to be rendered as follows: “The Consultant will

perform Field work and obtain Petitions activities [sic] for the

Client.” Consulting Agreement ¶ 1. The contract called for

Plaintiff to pay Shannon $65,000 for his services; Plaintiff

wired this amount to Shannon’s account, designated “c/o SCLC

Peninsula Chapter,” on February 20, 2020. Compl. ¶ 41;

Consulting Agreement ¶ 3. The Consulting Agreement provides

that “This Agreement shall be governed by the laws of the

Commonwealth of Virginia.” Consulting Agreement ¶ 9(c).

1 The document also carries the title “CONFIDENTIALITY AGREEMENT” — in

an even larger font than the “Contract for Consulting” title.

Shannon updated the campaign on his progress in a

March 1, 2020 letter, stating that his team had “canvassed

neighborhoods of qualified voters in The Bronx, Brooklyn,

Manhattan, Queens and Staten Island”; and “obtained signatures

for petitions of qualified Republican voters.” Compl. ¶ 20. He

reported that “1,200 Petitions printed by Andrew Shannon . . .

are being signed by registered Republican voters in New York in

the 14th Congressional District.” Id.

C. Murray is Excluded from the Primary Ballot

The effort to get Murray on the ballot was

unsuccessful. Shannon delivered approximately 900 signatures to

Plaintiff on March 17, 2020. Id. ¶ 23. Plaintiff filed the

designating petition with the New York City Board of Elections

on March 20, the last eligible day. Id. ¶ 24. On March 23,

two people filed “specifications of objections” with the Board

of Elections, and one later initiated an “invalidation petition”

in New York State court, seeking to block Murray’s inclusion on

the ballot. Id. ¶¶ 27-28. This petition alleged that Murray’s

designating petition’s “cover sheet contain[ed] a subscribing

witness [Ms. Tonya Brathwaite] that was a registered Democrat.”

Id. ¶ 28.

On April 16, Murray contacted Nelson by phone to

discuss this allegation; Nelson “represented that Ms. Brathwaite

was a registered Republican.” Id. ¶ 30. Nelson and Murray also

exchanged text messages “between April 17 and April 22.” Id.

¶ 31. Nelson “texted Ms. Murray that he spoke with Defendant

Shannon ‘over the weekend’ and that Defendant Shannon ‘[told

him] for certain that the woman you were inquiring about was

indeed R [Republican].’” Id. (quoting text messages). Murray

also spoke directly to Shannon, who “represented to Murray that

the subscribing witness for Murray’s petition (Tonya Brathwaite)

was a registered Republican.” Id. ¶ 46.

On April 23, the Board of Elections ruled that Murray

would not appear on the primary ballot because the petition

contained “zero valid signatures.” Id. ¶ 33. On May 4, the

court found that the petition included “signatures out of the

14th Congressional District . . . [and] signatures of those not

enrolled in the Republican party” and was signed by a

subscribing witness who was a registered Democrat. Id. ¶ 34.

Plaintiff commenced this action on May 20, 2020.

Plaintiff alleges breach of contract and breach of the covenant

of good faith and fair dealing against Shannon; unjust

enrichment against Shannon and SCLC; and fraud and negligent

misrepresentation against Shannon and Nelson. Shannon and SCLC

move to dismiss the claims against them under Rule 12(b)(6).

Nelson moves to dismiss under Rule 12(b)(2), for lack of

personal jurisdiction, and also under Rule 12(b)(6).

II. Legal Standards

A. Federal Rule of Civil Procedure 12(b)(6)

In reviewing a Rule 12(b)(6) motion, a court must

accept all factual allegations in the complaint as true and draw

all reasonable inferences in the plaintiff’s favor. E.g., Lundy

v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113

(2d Cir. 2013). Only “a plausible claim for relief survives a

motion to dismiss.” LaFaro v. N.Y. Cardiothoracic Grp., PLLC,

570 F.3d 471, 476 (2d Cir. 2009). A claim is 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.” Matson v. Bd. of Educ., 631 F.3d 57,

63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). Courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.” Iqbal, 556 U.S. at

678. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

B. Federal Rule of Civil Procedure 12(b)(2)

To overcome a motion to dismiss under Rule 12(b)(2),

Plaintiff must establish a prima facie case that personal

jurisdiction is proper under both the Federal Rules of Civil

Procedure and the U.S. Constitution. Licci ex rel. Licci v.

Lebanese Canadian Bank, SAL, 732 F.3d 161, 167-68 (2d Cir.

2013). Fed. R. Civ. P. 4(k) allows a federal district court to

exercise personal jurisdiction to the extent allowed by the law

of the state in which it sits.

The relevant section of New York’s “long-arm” statute

provides, in turn, that a defendant is subject to personal

jurisdiction when he “commits a tortious act without the state

causing injury to person or property within the state,” so long

as he “expects or reasonably should expect the act to have

consequences in the state and derives substantial revenue from

interstate or international commerce.” N.Y. C.P.L.R.

302(a)(3)(ii). The plaintiff’s prima facie showing “must

include an averment of facts that, if credited by the ultimate

trier of fact, would suffice to establish jurisdiction over the

defendant.” In re Terrorist Attacks on September 11, 2001, 714

F.3d 659, 673 (2d Cir. 2013) (citing Chloe v. Queen Bee of

Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)). “Because

the New York long-arm statute is more restrictive than the

federal due process requirements, by virtue of satisfying the

long-arm statute the minimum contacts and reasonableness

requirements of due process have similarly been met.” Noval

Williams Films LLC v. Branca, 128 F. Supp. 3d 781, 788 (S.D.N.Y.

2015).

III. Discussion

A. Breach of Contract Claim against Defendant Shannon

Plaintiff alleges that Shannon breached the Consulting

Agreement by failing to comply with New York election rules in

compiling the designating petition. The complaint recites that

Shannon “failed to properly perform the field work and petition

activities prescribed in the Agreement,” specifically by

“failing to properly collect the signatures/petitions that were

required and by using a subscribing witness that was not a

registered Republican.” Compl. ¶ 37.

The contract calls for the application of Virginia law

to any dispute, as noted above, and the parties agree that the

question of Shannon’s alleged breach is to be answered by

reference to Virginia contract law.2 To state a claim for breach

of contract under Virginia law, Plaintiff must allege: “(1) a

legally enforceable obligation of a defendant to a plaintiff;

(2) the defendant’s violation or breach of that obligation; and

(3) injury or damage to the plaintiff caused by the breach of

obligation.” Filak v. George, 267 Va. 612, 619 (2004)

(citations omitted).

2 This agreement was somewhat belated, in that the parties’ initial

briefs invoked New York authorities almost exclusively on the contract

question. The Court then called for supplemental briefing. ECF Order dated

June 29, 2021.

As noted above, Shannon’s obligations under the

Consulting Agreement are expressed at a very high level of

generality. Some of the relevant language appears in the

contract’s preliminaries: the introduction provides that “The

Client has offered to retain the Consultant to provide Field

Director activities; and to perform field services as directed

by Client.” Consulting Agreement at 1. This text appears prior

to the contract’s enumerated undertakings, however, and prior to

the statement that “NOW, THEREFORE, the parties hereby agree as

follows.” See id. The contract defines the “Services” to be

provided in the first numbered paragraph, which says simply:

“SERVICES. The Consultant will perform Field work and obtain

Petitions activities [sic] for the client.” Id. at ¶ 1. The

contract does not say that Shannon will provide the requested

services according to a given standard of quality or care, and

it does not explicitly obligate Shannon to obtain petition

signatures in compliance with applicable election law.

Plaintiff has pressed two arguments why the failure to

comply with New York’s election law constitutes a breach:

First, the contract carried an implied promise to perform the

services in accordance with applicable law (namely, New York

election law). This promise is implied under Virginia’s

contract law, according to Plaintiff.

Second, Plaintiff invokes the contract’s introductory

language, which states that the “Client (i.e. the campaign) has

offered to retain the Consultant (Shannon) . . . to perform

field services as directed by Client.” Consulting Agreement at

1 (emphasis added). As noted above, this language is prefatory;

it is recited before the statement that “the parties hereby

agree as follows.” Id. In its brief, Plaintiff argues that it

“directed” Shannon to comply with applicable law, and this

direction became part of the contract. Pl.’s July 7, 2021

Letter at 3, ECF No. 40. (This “directive” is not, however,

alleged in the complaint.)

As set forth below, neither of these arguments has

merit.

1. Did the Contract Incorporate an Obligation to Comply with

New York’s Election Law?

Like most states, Virginia does not impose an implied

duty to perform a contract in a manner comporting with

applicable law. Indeed, Virginia’s contract law recognizes no

implied warranties at all. See Goddard v. Protective Life

Corp., 82 F. Supp. 2d 545, 556-57 (E.D. Va. 2000) (noting that

Virginia law does not recognize any “implied warranty in the

provision of services” outside of the construction context and

dismissing a contract claim that “seems to be no more than a

negligence claim dressed up in a contract claim’s

clothing”). Thus, the contract will not be read to carry an

implied duty to comply with New York election law.

Virginia does, however, allow contracting parties to

incorporate a statute — and the obligation to comply with its

terms — into a contract. See Wilkins v. Wells Fargo Bank, N.A.,

No. 2:15CV566, 2016 WL 6775692, at *3 (E.D. Va. Nov. 15, 2016)

(parties may “incorporate statutes into contracts” under

Virginia law). To do so, however, the parties must invoke —

with specificity — the particular statute as to which they are

contracting for compliance.

In Jennings v. RoundPoint Mortgage, for example, the

plaintiff (a homeowner) alleged that the defendant (a mortgage

servicer) breached the terms of a “deed of trust.”3 No. 17-CV-

427, 2017 WL 8893606, at *3 (E.D. Va. Dec. 22, 2017), report and

recommendation adopted, 17-CV-427, 2018 WL 1065107 (E.D. Va.

Feb. 27, 2018). The plaintiff pointed to no express contract

provision. Id. Instead, the plaintiff argued that the

defendant breached the contract by its failure to service the

loan transaction in accordance with certain regulations issued

by the U.S. Department of Housing and Urban Development (H.U.D.)

under the Real Estate Settlement Procedures Act (RESPA). Id. at

3 A deed of trust is used in certain states in lieu of a mortgage

contract to facilitate secured loans in real-estate transactions. Hunt v.

Springfield Fire & Marine Ins. Co., 196 U.S. 47, 49 (1904).

*4. Plaintiff contended that the parties had made compliance

with those regulations a term of the deed of trust. Id.

This argument was predicated on the deed of trust’s

“Governing Law” provision, which read: “This Security Instrument

shall be governed by Federal law and the law of the jurisdiction

in which the Property is located.” Jennings, 2018 WL 1065107,

at *4. Given this language, according to the plaintiff, “when

[defendant] failed to comply with applicable law in the form of

regulations under RESPA,” the defendant “breached the Deed [of

Trust].” Id. at *2.

The district court rejected the argument that the

contract incorporated H.U.D. regulations and made compliance

with them a term of performance. This holding was predicated on

the deed of trust’s failure to specify the H.U.D. regulations by

name and provide that the violation of such laws would be a

breach of the contract. Id. at *3 (“[T]he contract’s reference

to ‘Applicable Law’ was insufficiently precise to become

incorporated as a contract term . . . .” (citing Lubitz v. Wells

Fargo Bank, N.A., 85 Va. Cir. 379, 379 (2012)). The Jennings

court distinguished the case of Mathews v. PHH Mortg. Corp., 724

S.E.2d 196 (Va. 2012), relied upon by Jennings, because the

Mathews contract’s language had “encompassed a more specific

range of laws” and “also, and more importantly, specified those

laws as limits upon the lender’s authority” to do the thing

complained of. Id. at *4.

In this case, the Consulting Agreement does not refer

to New York election law at all, let alone provide that the

failure to comply with such law in performing the “Petitions

activities” would constitute a breach. In that regard, the

Scherie Murray campaign makes out an even weaker case than the

one rejected by the Virginia court in Jennings: at least there,

the contract had referred generally to “federal law” governing

the contract. Therefore, Shannon’s alleged failure to comply

with New York election law cannot support a breach of contract

claim.

The complaint also invokes the implied covenant of

good faith and fair dealing, though it provides no clear

statement of how the covenant was allegedly breached. Compl.

¶ 37. Shannon argues, briefly, that the implied covenant does

not give rise to a valid claim for breach here. Plaintiff does

not address this argument anywhere in its briefs; but in any

event, Plaintiff’s reliance on the implied covenant is

unavailing.

The covenant of good faith and fair dealing is implied

in every Virginia contract. Enomoto v. Space Adventures, Ltd.,

624 F. Supp. 2d 443, 450 (E.D. Va. 2009) (applying Virginia

law). It “prevent[s] a party from doing anything that will have

the effect of injuring or frustrating the right of the other

party to receive the fruits of the contract between them.”

Morris v. Wilmington Sav. Fund Soc’y, 360 F. Supp. 3d 363, 371

(W.D. Va. 2018) (applying Virginia law). It is not, however, a

basis to write affirmative provisions in a contract that the

parties have left out — especially where the applicable state

law requires those provisions to be set forth with specificity,

as Virginia law does with the obligation to comply with

specified statutory provisions. Drummond Coal Sales, Inc. v.

Norfolk S. Ry. Co., 3 F.4th 605, 611 (4th Cir. 2021) (under

Virginia law, the good faith and faith dealing “duty does not

permit us to write into the Agreement obligations that do not

exist”). Indeed, the plaintiff in Jennings argued that the

implied covenant required compliance with applicable law, and

the court (applying Virginia state law) rejected this

contention. Jennings, 2017 WL 8893606, at *3; see also Buford

v. Ocwen Loan Servicing, LLC, No. 18-CV-154, 2018 WL 6790656, at

*10 (E.D. Va. Nov. 2, 2018), report and recommendation adopted,

No. 18-CV-154, 2018 WL 6617646 (E.D. Va. Dec. 18, 2018) (“The

implied covenant of good faith and fair dealing cannot be used

to graft such rights onto the deed of trust and create duties

that do not otherwise exist. Nor can the implied covenant be

used to disguise a claim for violation of Regulation X.”

(internal citations omitted)).

2. Does the Consulting Agreement Incorporate the Campaign’s

Subsequent “Directions”?

Plaintiff points to the provision in the contract’s

preliminary recitals stating that the campaign had “offered” to

retain Shannon to “perform field services as directed by” the

campaign. Plaintiff alleges that the campaign “directed”

Shannon to comply with applicable law; that this direction

became, in effect, a term of the contract; and that Shannon’s

failure to comply therefore worked a breach. Plaintiff’s July

7, 2021 Letter at 3.

Language appearing in a contract’s preliminary

recitals, however, is not binding under Virginia law. Virginia

Fuel Corp. v. Lambert Coal Co., 291 Va. 89, 101 n.5 (2016)

(“Recitals in a contract are not binding on the parties. . . . .

Instead, recitals are merely explanations of ‘the reasons for

entering into [the contract] or the background of the

transaction . . . .’” (citing Black’s Law Dictionary 1462 (10th

ed. 2014)). Such language can only inform the contract to

clarify ambiguity. Wells Fargo Bank, N.A. v. Highland Constr.

Mgmt. Servs., L.P., 807 F. App’x 246, 250 (4th Cir. 2020) (under

Virginia law, “contract recitals are not binding absent

ambiguity”).

Here, the Consulting Agreement cannot be said to be

“ambiguous” on the subject of whether compliance with law is

required. Instead, the contract is totally silent on that

issue, as described above. And the impact of this silence is

equally unambiguous: it means (per Jennings, supra) that the

contract incorporates no compliance-with-law obligation. Given

this, the “as directed” language in the recitals cannot be

invoked to clarify ambiguity, and it is not binding on the

parties. Virginia Fuel, 291 Va. At 101 (2016).

In any event, Plaintiff has not alleged that it

“directed” Shannon to comply with New York election law —

despite the Court expressly having invited Plaintiff to amend

the complaint to make such an allegation. June 29, 2021 Minute

Order, ECF No. 35. There is no factual assertion in the

operative complaint — the third one that Plaintiff has filed —

specifying any instructions the campaign gave, the person who

gave them, the date on which they were given, the person to whom

they were directed, or the medium of communication. This, too,

merits dismissal. E.g., Southwick Clothing LLC v. GFT (USA)

Corp., No. 99-CV-10452, 2004 WL 2914093, at *6 (S.D.N.Y. Dec.

15, 2004) (“A complaint cannot be amended merely by raising new

facts and theories in plaintiffs’ opposition papers, and hence

such new allegations and claims should not be considered in

resolving the motion.”) (collecting cases).4

4 “In actions where the rights of the parties are grounded upon the law

of jurisdictions other than the forum, it is a well-settled conflict-of-laws

B. Unjust Enrichment Claim against Shannon and SCLC

Plaintiff alleges that it wired $65,000 to Shannon’s

personal bank account — “c/o SCLC’s Peninsula Chapter” — in

February 2020. Plaintiff claims that Shannon and SCLC were

unjustly enriched by retaining the payment despite not

delivering a petition in compliance with New York election law.

This claim also fails.

New York law applies to Plaintiff’s unjust enrichment

claim. Under New York law, “[a] contractual choice-of-law

provision [in a contract] . . . does not bind the parties with

respect to non-contractual causes of action.” Plymack v. Copley

Pharm., Inc., No. 93-CV-2655, 1995 WL 606272, at *5 (S.D.N.Y.

Oct. 12, 1995) (citing Fustok v. Conticommodity Servs., Inc.,

618 F. Supp. 1082, 1089 (S.D.N.Y. 1985)). New York’s choice of

law rules instead apply an “interest analysis” to claims arising

in equity, such as claims for unjust enrichment. Burns v.

Delaware Charter Guarantee & Tr. Co., 805 F. Supp. 2d 12, 22 n.

4 (S.D.N.Y. 2011). Under this doctrine, the law of the

jurisdiction with the greatest interest in the litigation

applies. Id. Here, New York has the greater interest because

it is “where performance was to occur” and where Plaintiff

“suffered losses.” Id. at 22 n.4.

rule that the forum will apply the foreign substantive law, but will follow

its own rules of procedure.” Bournias v. Atlantic Maritime Co., 220 F.2d

152, 154 (2d Cir. 1955).

“To prevail on a claim for unjust enrichment in New

York, a plaintiff must establish (1) that the defendant

benefitted; (2) at the plaintiff’s expense; and (3) that ‘equity

and good conscience’ require restitution.” E.g., Kaye v.

Grossman, 202 F.3d 611, 616 (2d Cir. 2000). “The existence of a

valid and enforceable written contract governing a particular

subject matter,” however, “ordinarily precludes recovery in

quasi-contract for events arising out of the same subject

matter.” Valley Juice Ltd., Inc. v. Evian Waters of France,

Inc., 87 F.3d 604, 610 (2d. Cir. 1996) (quoting Clark–

Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 388

(1987)). Here, neither party disputes that the Consulting

Agreement is a valid contract governing the subject matter at

issue — namely, payment to Shannon for his services.

Plaintiff argues that it can still sustain an unjust

enrichment claim against SCLC, however, because SCLC was not a

party to that contract. Pl.’s Opp. Br. at 18, ECF No. 30. New

York law provides otherwise. Unjust enrichment claims are still

barred by the existence of a valid contract “even if one of the

parties to the lawsuit is not a party to the contract.”

Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc.,

837 F. Supp. 2d 162, 202 (S.D.N.Y. 2011). “[A] nonsignatory to

a contract” thus “cannot be held liable where,” as here, “there

is an express contract covering the same subject matter.”

Feigen v. Advance Cap. Mgmt. Corp., 150 A.D.2d 281, 283 (1st

Dep’t 1989); Vitale v. Steinberg, 307 A.D.2d 107, 111 (1st Dep’t

2003) (“[T]he existence of the plan agreement, an express

contract governing the subject matter of plaintiff’s claims,

also bars the unjust enrichment cause of action as against the

individual defendants, notwithstanding the fact that they were

not signatories to that agreement.” (internal citations

omitted)). The unjust enrichment claims are dismissed.

C. Fraud and Negligent Misrepresentation Claims against Shannon

and Nelson

1. Personal Jurisdiction over Nelson

Plaintiff brings fraud and negligent misrepresentation

claims against Nelson. Nelson, who lives in Maryland, moves to

dismiss these claims under Rule 12(b)(2) for lack of personal

jurisdiction. Plaintiff argues that this Court has personal

jurisdiction over Nelson under Section 302(a)(3)(ii) of New

York’s “long-arm” statute. Section 302(a)(3) states that a

defendant is subject to personal jurisdiction when the defendant

“commits a tortious act without the state causing injury to

person or property within the state . . . if he: . . .

(ii) expects or reasonably should expect the [allegedly

tortious] act to have consequences in the state and derives

substantial revenue from interstate or international commerce.”

Nelson is the Chairman of the Douglas Leadership

Institute (“DLI”), which is also apparently located in Maryland.

Plaintiff points to a quote from DLI’s website in support of the

assertion that DLI derives revenue from interstate commerce: the

website says DLI is “a national education and public policy

501(c)(3) organization that works across the United States” and

that “influence[s] policy on the local, state, and national

level.” Pl.’s Mem. in Opp. to Nelson’s Mot. to Dismiss at 24,

ECF No. 31.

Plaintiff does not allege, however, that Nelson

personally derived any revenue from this charitable

organization’s endeavors. In some instances a plaintiff can

allege that a corporate defendant derives the requisite

“substantial revenue” through allegations that its website

advertises its participation in interstate commerce. See, e.g.,

Local 875 I.B.T. Pension Fund v. Pollack, 992 F. Supp. 545, 557

(E.D.N.Y. 1998). Allegations that an individual defendant’s

employer participates in interstate commerce, however, do not

suffice.

Because New York’s long-arm statute does not reach

Nelson, this Court lacks personal jurisdiction over him. The

fraud and negligent misrepresentation claims against Nelson are

dismissed.

2. Fraud and Negligent Misrepresentation Claims Against

Shannon

Plaintiff also brings fraud and negligent

misrepresentation claims against Shannon under New York law.

The complaint alleges, in this regard, that Shannon deceived

Plaintiff into “believing that Shannon had the required

expertise and trustworthiness concerning the field of canvassing

for signatures in compliance with New York election law.”

Compl. ¶ 46.

Claims for fraud and negligent misrepresentation must

meet the heightened pleading standard of Rule 9(b), which

provides that “a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ. P.

9(b); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d

566, 583 (2d Cir. 2005). To comply with Rule 9(b), the

complaint must “(1) specify the statements that the plaintiff

contends were fraudulent, (2) identify the speaker, (3) state

where and when the statements were made, and (4) explain why the

statements were fraudulent.” Acito v. IMCERA Group, Inc., 47

F.3d 47, 51 (2d Cir. 1995). “Group” pleading is impermissible:

“Where multiple defendants are asked to respond to allegations

of fraud, the complaint should inform each defendant of the

nature of his alleged participation in the fraud.” DiVittorio

v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d

Cir. 1987).

I consider the fraud claims and the negligent

misrepresentation claims separately below.

i. Fraud

The elements of common-law fraud are “[1] a material

misrepresentation of a fact, [2] knowledge of its falsity, [3]

an intent to induce reliance, [4] justifiable reliance by the

plaintiff and [5] damages.” Eurycleia Partners, LP v. Seward &

Kissel, LLP, 12 N.Y.3d 553, 559 (2009).

Plaintiff alleges three categories of

misrepresentations. First, Plaintiff claims that “in or about

February 2020, Nelson, his agents and Shannon represented to

Murray’s campaign . . . that Shannon had the requisite skills

and resources necessary to comply with New York State election

law requirements and to obtain qualifying signatures.” Compl.

¶ 17; see also id. ¶46 (invoking representations by “Nelson, his

agents and Shannon” about Shannon’s “experience and expertise”

and “skills and resources”). This is classic group pleading.

“Sweeping references to the collective fraudulent actions of

multiple defendants will not satisfy the particularity

requirements of Rule 9(b).” Aetna, 404 F.3d at 579-80 (2005).

In addition, general statements of skill and expertise

— such as Shannon’s alleged ability to “comply with New York

State election law requirements” — are insufficient to state a

claim for fraud under New York law. “[R]epresentations

constituting ‘mere opinion or puffery’ are ‘not actionable

representations of fact.’” Greenberg v. Chrust, 282 F. Supp. 2d

112, 120 (S.D.N.Y. 2003) (citing Reich v. Mitrani, 268 A.D.2d

256 (1st Dep’t 2000)). “General positive statements” about

one’s professional “abilities” fall into this category. Barilli

v. Sky Solar Holdings, Ltd., 389 F. Supp. 3d 232, 252 (S.D.N.Y.

2019); Sudul v. Computer Outsourcing Services, Inc., 917 F.

Supp. 1033, 1044 (S.D.N.Y.1996) (job applicant’s statements

regarding “abilities” and previous “managerial role” was

puffery); Leonard v. Abbott Lab’ys, Inc., No. 10-CV-4676, 2012

WL 764199, at *22 (E.D.N.Y. Mar. 5, 2012) (“A broadly stated

goal to comply with the laws of 130 countries is puffery . . .

.”). Shannon’s alleged representations are also too nonspecific

to constitute a misstatement of fact or to comply with Rule

9(b). Basquiat ex rel. Estate of Basquiat v. Sakura

International, No. 04-CV-1369, 2005 WL 1639413, at *5 (S.D.N.Y.

July 5, 2005) (“Courts have found statements to be puffery as a

matter of law when the statements do not provide any concrete

representations.”).

Second, Plaintiff alleges that Shannon sent him a

letter on March 1, 2020 that stated, among other things, that

Shannon and a “team” of “seasoned veterans” were canvassing

“neighborhoods of qualified voters” and “obtain[ing] signatures

for petitions of qualified Republican voters.” Compl. ¶ 20.

These allegations fall short under Rule 9(b) and 12(b)(6)

because the complaint does not say why they were false. See

Acito, 47 F.3d at 51. There is no suggestion in the complaint

that Shannon and his team were not, in fact, canvassing

neighborhoods. Indeed, the complaint acknowledges that Shannon

“delivered approximately 900” signatures to the campaign —

signatures from “people who supported Ms. Murray’s candidacy.”

Compl. ¶ 23. Even if these signatures were ultimately “non-

qualifying,” id., the complaint suggests no reason to believe

they were not the product of meaningful “canvassing” efforts by

Shannon’s operation.

Likewise, the complaint fails to allege with

specificity the reasons that Shannon’s statement about obtaining

signatures of “qualified Republican voters” was false.

Plaintiff alleges that the New York State Supreme Court’s

invalidation of Murray’s petition was based on a “multitude” of

factors, one of which was “obtaining signatures of those not

enrolled in the Republican party.” Id. ¶ 34. But this passing

reference says nothing about how many of the approximately 900

signatures were invalidated for this reason. On the contrary,

the complaint focuses overwhelmingly on Shannon’s engagement of

the non-Republican witness, as opposed to the party affiliation

of the signatories. See id. ¶¶ 13, 25, 28-34, 46, 53.

Third, Plaintiff claims that in “April 2020,” Shannon

“represented to Murray that the subscribing witness for Murray’s

petition (Tonya Brathwaite) was a registered Republican.” Id.

¶ 46. This misrepresentation cannot be the basis of a fraud

claim because the complaint does not (and cannot) plead reliance

on it. “Fraud premised upon misrepresentations that occur after

[the alleged] detrimental reliance has occurred do not permit a

rational inference of reasonable reliance.” Keles v. Yale

Univ., 889 F. Supp. 729, 734 (S.D.N.Y. 1995), aff'd, 101 F.3d

108 (2d Cir. 1996). Here, the alleged detrimental reliance

occurred when Plaintiff paid the $65,000, on February 20, 2020,

and certainly ended when the campaign submitted the designating

petition to the Board of Electors (at the latest). The April

2020 conversation happened after the deadline for submitting

qualifying signatures had passed, when the contract price had

been paid in full and there was nothing to be done about the

party affiliation of the witness. See Compl. ¶¶ 22, 27

(Plaintiff learned of allegation that subscribing witness was a

Republican on April 1, after the March 17 deadline to circulate

petitions). Accordingly, Plaintiff cannot demonstrate

detrimental reliance on it. Cf. Long Island R. Co. v.

Natperisk, Inc., 183 A.D.2d 437, 438 (1st Dep’t 1992) (“If the

fraud occurred after contract formation, it is completely

irrelevant, since the contractual undertaking could not have

been made in reliance on the misrepresentation.”).

For the foregoing reasons, the fraud claims against

Shannon are dismissed.

ii. Negligent Misrepresentation

Plaintiff also brings a negligent misrepresentation

claim against Shannon, alleging that the consultant “imparted

incorrect and false information to Plaintiff concerning

Shannon’s expertise and trustworthiness concerning the field of

canvassing for signatures and compiling petitions in compliance

with New York election law, and that the subscribing witness for

Plaintiff’s petition (Tonya Brathwaite) was a registered

Republican.” Compl. ¶ 53. Negligent misrepresentation requires

“(1) the existence of a special or privity-like relationship

imposing a duty on the defendant to impart correct information

to the plaintiff; (2) that the information was incorrect; and

(3) reasonable reliance on the information.” J.A.O. Acquisition

Corp. v. Stavitsky, 8 N.Y.3d 144, 148 (2007). “New York courts

do not recognize a cause of action for negligent

misrepresentation in the absence of some special relationship of

trust or confidence between the parties.” Accusystems, Inc. v.

Honeywell Info. Sys., Inc., 580 F. Supp. 474, 480 (S.D.N.Y.

1984). An arms’ length contractual relationship does not

suffice. Amusement Indus., Inc. v. Stern, 786 F. Supp. 2d 758,

779 (S.D.N.Y. 2011) (collecting cases).

This claim also suffers from the “group pleading”

deficiency. The negligent-misrepresentation count asserts that

“Defendants Shannon and Nelson,” collectively, “imparted” the

alleged “incorrect and false information to Plaintiff.” This

does not satisfy the requires of Rule 9(b), as discussed supra.

Additionally, Plaintiff has alleged no “special or

privity-like” relationship between the campaign and Shannon.

The Consulting Agreement and the resulting relationship between

the parties are alleged to be an arm’s length business

relationship where “the parties on both sides were operating

independently, with no prior existing relationship and with no

reason to repose trust in the other.” Amusement Indus., 786 F.

Supp. 2d at 779 (citing M & T Bank Corp. v. Gemstone CDO VII,

Ltd., 68 A.D.3d 1747, 1747 (4th Dep’t 2009).

The closest Plaintiff comes to addressing this

requirement is the complaint’s allegation that Shannon

advertised “special expertise” in the form of his “political,

religious and civil rights background and his many years of

leading the SCLC in Virginia, which was founded by Dr. Martin

Luther King, Jr.” Def. Opp. Br. at 25-26. Dr. King’s SCLC

unquestionably has a “special” history (though its ties to

Shannon’s operation remains unclear), but that history is of

course a different subject entirely from the relationship

between the parties here. In any event, the political expertise

to which Plaintiff points is not alleged in the complaint, but

in a declaration submitted by Shannon in support of his motion

to dismiss. See id. (citing Shannon Declaration at ¶¶ 5-6, ECF

No. 26). “Declarations and affidavits submitted in support of a

motion to dismiss, however, are not . . . [usable] to advance

factual averments or legal arguments.” E.g., BankUnited, N.A.

v. Merritt Env’t Consulting Corp., 360 F. Supp. 3d 172, 184

(S.D.N.Y. 2018). Plaintiff thus fails to state a claim for

negligent misrepresentation.

IV. Motion to Amend

Following oral argument, Plaintiff moved (for the

third time) to amend the complaint. That motion does not state

what facts or parties Plaintiff seeks to add. (Plaintiff’s

counsel stated at oral argument that he wanted to amend to add

DLI as a party, presumably to address the personal jurisdiction

issue. Transcript of Oral Argument at 42:10-14, ECF No. 48.

The motion also fails to comply with Rule III.A.1 of the Court’s

Individual Practices and Rules, which requires that a motion to

amend the complaint attach as exhibits the proposed amended

complaint in both a clean version and a version blacklined

against the operative complaint.

In any event, Plaintiff has had a chance to amend to

address the particular problems cited above, with notice that

each of these problems could be fatal, and has not availed

himself of that opportunity. At a pre-motion conference, the

Court allowed Plaintiff to file a first amended complaint to

address, among other things, any financial benefit Nelson

derived from the agreement and “the question of which individual

defendant made which . . . alleged misrepresentations.”

Transcript of Oct. 20, 2020 Pre-Motion Conference 16:9-19:17,

25:18-22, ECF No. 50.

After Defendants moved to dismiss the first amended

complaint, the Court held another conference, and again

permitted Plaintiff to amend the complaint to allege fraud with

greater specificity. Transcript of June 29, 2021 Conference

20:6-15, ECF No. 49. The Court deemed the Defendants’ moving

papers to be directed at the second amended complaint, and

allowed additional briefing. Plaintiff still failed to cure the

deficiencies the Court identified. Plaintiff may not amend a

third time as of right, especially in light of this context. “A

court may deny a plaintiff leave to replead when that party has

‘has been given ample prior opportunity to allege a claim.’” In

re Merrill Lynch Ltd. Partnerships Litig., 7 F. Supp. 2d 256,

276 (S.D.N.Y. 1997), aff'd, 154 F.3d 56 (2d Cir. 1998) (citing

De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 72 (2d Cir.

1996)). Plaintiff’s motion to amend is denied.

V. Conclusion

For the foregoing reasons, I grant the Defendants’

motions to dismiss. The Clerk of Court is respectfully directed

to enter judgment and close this case.

SO ORDERED.

_/s Eric Komitee____________

ERIC KOMITEE

United States District Judge

Dated: September 30, 2021

Brooklyn, New York