# Scherie Murray for Congress v. Andrew Shannon

> District Court, E.D. New York · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10306943

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306943

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

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.

------------------------------------x

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306943. Public record. Not legal advice.