Spicer

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GLITZ TRADING, LLC,

Plaintiff,

MEMORANDUM & ORDER

- against - 25-CV-4668 (PKC) (RML)

BRENT SPICER, et al.,

Defendants.

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PAMELA K. CHEN, United States District Judge:

This case arises out of a dispute among former business partners in the tattoo industry, who

marketed and sold products under the trade name “Ink Beetle.” (See generally Compl., Dkt. 1.)

Plaintiff Glitz Trading, LLC (“Glitz”) is a New York limited liability company that owns 40% of

the alleged “Ink Beetle Partnership.” (Id. ¶¶ 3, 9.) Defendants are Rebel Tattoo Company, LLC

(“Rebel Tattoo”), Brent Spicer (“Brent”), and Christian Spicer (“Christian”), who collectively own

the other 60% of the partnership. (Id. ¶¶ 4–6, 9.) Defendants have moved to dismiss the action in

its entirety for failure to state a claim upon which relief can be granted. (See Mot. to Dismiss,

Dkt. 24.) For the reasons explained below, Defendants’ motion is denied.

BACKGROUND1

I. Factual Background

The parties here are all “active in the tattoo industry.” (Compl., Dkt. 1, ¶ 10.) Rebel Tattoo

is an Ohio limited liability company that is owned and operated by Brent Spicer (and, possibly,

1 The following allegations are taken from the Complaint and documents attached to the

Complaint as exhibits. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)

(“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district

court may consider the facts alleged in the complaint, documents attached to the complaint as

exhibits, and documents incorporated by reference in the complaint.” (citations omitted)). For

purposes of this Memorandum & Order, the Court assumes that all facts alleged in the Complaint

Christian Spicer). (See id. ¶¶ 6–7, 12–18.) Rebel Tattoo marketed and sold a line of tattoo

aftercare products called “Ink Beetle.” (See id. ¶¶ 6–7, 12–13, 32.)

In January 2024, “a distribution company with common ownership of” Plaintiff Glitz

reached out to Brent to “offer to be a distributor for Ink Beetle,” but Brent declined. (Id. ¶ 12.)

Later that month, however, Brent reached out to Glitz to ask for “assistance with marketing and

distributing Ink Beetle products.” (Id. ¶ 13.) In February 2024, Brent met with Glitz’s team2 to

discuss a possible collaboration, and Brent agreed to move forward with the venture. (See id.

¶¶ 14–15.)

In March 2024, Glitz began promoting Ink Beetle products, although the parties had not

yet executed a formal written agreement. (See id. ¶¶ 16–22.) Later that month, one of Glitz’s

principals “drove from New York to Ohio to meet with the Spicers,” and the parties began

communicating about the terms of the written agreement. (See id. ¶ 18.) A draft Memorandum of

Understanding (“MOU”), drafted by Brent, was circulated on March 20, 2024; it was finalized and

fully executed on or about March 28, 2024. (See id. ¶¶ 21, 25.)

The MOU reads as follows (relevant portions excerpted):

MEMORANDUM OF UNDERSTANDING

This Memorandum of Understanding (“MOU”) by and between Brent Spicer,

Christian Spicer, and Rebel Tattoo Company LLC (collectively, “Rebel”), [and]

Glitz LLC (“Glitz”) (altogether, the “Parties”) . . . is for the purpose of aligning

intent and achieving objectives related to the development of Ink Beetle LLC, and

any other form, name, trade name or d/b/a that may be elected (the “Company”).

are true and draws all reasonable inferences in Glitz’s favor. See Peretti v. Authentic Brands Grp.

LLC, 33 F.4th 131, 133 n.1 (2d Cir. 2022) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145

(2d Cir. 2012)).

2 Glitz, a limited liability corporation, has four members: Austin Werner, Qing Zhang, Sean

Liao, and David Gutierrez. (See Compl., Dkt. 1, ¶ 3.)

WHEREAS, Rebel has established the Company for the purposes of providing

tattoo paraphernalia and other related goods and services;

AND WHEREAS, Glitz approached Rebel about providing business development

services to the Company in the capacity of a managing, minority Member in the

Company;

THEREFORE, let this correspondence serve as a Memorandum of Understanding

(“MOU”) and bind the Parties in principal according to the following terms:

INTENT

Glitz shall provide business development, business management, social media

management, consulting, market analysis, and any other related services for the

Company, more specifically outlined as follows (altogether, the “Services”):

• Manage Company online sales platforms and seller pages (including but not

limited to Shopify);

• Manage, handle, and ship sales inventory;

• Manage Company social media pages (including but not limited to

Facebook, Instagram, and Tik Tok); . . .

• Consult and manage day-to-day business operations; . . . [and]

• Any other related or ancillary services necessary to carry out the above

functions or as agreed upon by the Parties now or in the future.

In addition, Glitz[] shall fund forty percent (40%) of any new Company cost for

obtaining a patent over specific commercially valuable product developments (the

“Patent”), with an initial ten-thousand-dollar ($10,000.00) investment (altogether,

the “Patent Investment”). The Parties shall both hold patent rights to any future

Patent 60/40 in favor of Rebel.

As consideration for the above listed Services and Patent Investment, Rebel will

provide Glitz sweat equity in the form of forty percent (40%) of the outstanding

shares of the Company. . . . [3]

With respect to the Patent: the Patent shall be owned solely and exclusively by the

Company, and all Parties hereto agree not to utilize, sell, license, or otherwise cloud

or encumber Patent rights for personal benefit or for any other purpose other than

in furtherance of the Company and its best interests. Any new patent(s) developed

by any Party hereto after the effective date of this Agreement and in furtherance of

3 The MOU also includes a “sweat equity transfer” provision stating that 20% of Glitz’s

equity would be guaranteed and the other 20% would be subject to total or partial clawback over

a period of three years if the Company did not meet certain benchmarks for gross increases in

sales. (See MOU, Dkt. 1-3, at 2.) The details of the sweat equity transfer/clawback provision are

not relevant for purposes of this Memorandum & Order.

the Company’s business and best interests shall belong to each Party on a pro rata

basis according to each Party’s ownership percentage of the Company.

SIGNATURES

INTENDING TO BE BOUND, the Members have executed this MOU and this

Agreement is effective as of the date of its first writing:

REBEL TATTOO COMPANY, LLC:

3/28/24 Date By:

€ Authorized Representative Authorized Representative

GLITZ LL©:

Date Cake Representative

CHARLES TINEO

NOTARY PUBLIC, STATE OF NEW YORK

Registration No. 01716444675

ualified in Queens,Co

Commission Expires “e[e8]eoee

(MOU, Dkt. 1-3.)

Along with Glitz’s signature on the MOU, Glitz sent Defendants $10,000 for the cost of

obtaining a patent. (Compl., Dkt. 1, § 21.) Glitz also paid a $4,000 charge to register the patent.

(See id. § 25.) Around March 28, 2024, Glitz “invested 40% [in] the first order of inventory . . . to

start the relationship and begin selling”; Glitz’s investment in that order was $7,906. (/d.)

Although the MOU states that Defendants “ha[d] established” an entity called “Ink Beetle

LLC,” they had not in fact established any formal entity prior to the MOU, and they did not create

such an entity at any point after the MOU was executed. (See id. Jj 20, 26, 34.) Glitz therefore

contends that the parties’ relationship was a “de facto partnership” for legal purposes (the

“Partnership”). (See id. ¶¶ 9, 26, 70.) In May 2024, the parties opened a joint bank account for

the Partnership. (See id. ¶¶ 36–37.)

Between March 2024 and June or July 2025, Glitz performed according to its obligations

in the MOU, marketing and selling Ink Beetle products. (See id. ¶¶ 35–63.) Glitz explains that

the Ink Beetle product line had gross sales of approximately $50,000 total over the seven months

of its existence prior to Glitz’s involvement. (See id. ¶ 65.) Over the 15–16 months Glitz

participated in marketing and selling Ink Beetle, the product had gross sales of approximately

$500,000. (Id.) However, beginning around May 2024, the relationship between the parties began

to deteriorate. (See, e.g., id. ¶¶ 38–41.) In addition to not establishing an LLC, Defendants never

transferred the patent(s) associated with Ink Beetle to the Partnership. (See id. ¶¶ 41, 45, 51.)

Defendants also “participated very little” in the operation of the Partnership, and Defendants

(Brent specifically) did not communicate much with Glitz. (See id. ¶¶ 34, 38, 40, 44, 47, 49–52.)

Glitz alleges that, around December 2024, Defendants began “actively impeding

operations.” (See id. ¶ 54.) In January 2025, Brent accused Glitz of “unclear expense reporting,”

but, in fact, it was Brent himself being “messy and disorganized.” (See id. ¶ 56.) Around May

2025, “[i]t became clear that Defendants planned to change [their] shipping location” from Glitz’s

warehouse in New York to Texas, where Brent and Christian were residing. (See id. ¶¶ 4–5, 8, 20,

58.) Brent also “suggested that [Defendants’] need for [Glitz] was waning.” (Id. ¶ 58.) Around

the same time, Brent accused Glitz of “making improper charges of over $5,000” to the debit card

for the Partnership bank account, which Glitz claims were actually “for advertising set up by

[Brent] himself.” (Id. ¶ 59.)

On June 13, 2025, Brent called a video meeting between the parties, at which Glitz claims

Brent “made many false allegations and false claims about [Glitz],” and “seemed predisposed to

accusing [Glitz] of wrongdoing.” (Id. ¶ 61.) Glitz disputed Brent’s claims. (Id.) After this

meeting, “Defendants went silent, did not respond to communications[,] and did not help with any

issues relating to proximate inventory deliveries.” (Id.) Finally, in July 2025, Defendants

“unilaterally revoked all of [Glitz’s] account access” without warning, “blocked [Glitz’s] access

to account portals and records,” and “emptied the [Partnership] bank account.” (Id. ¶ 63.) Glitz

contends that these actions “made the breaches of the MOU irrevocable and constituted a wrongful

dissolution of the Partnership.” (Id.) Glitz estimates that Defendants took in excess of

approximately $300,000 that belonged to Glitz, including profits, investments, and cash from the

Partnership bank account. (See id. ¶ 65.)

On July 19, 2025, Defendants sent Glitz a “cease and desist” letter, “alleging general and

unusually nonspecific malfeasance,” which Glitz claims was “entirely incorrect.” (Id. ¶ 66.)

Nonetheless, Glitz complied with Defendants’ request to return the Ink Beetle inventory that was

in its possession and to cease marketing. (See id.)

II. Procedural History

Glitz filed this action on August 22, 2025. (See generally Compl., Dkt. 1.) Glitz brings

the following claims:

(1) Breach of contract, alleging that Defendants violated the terms of the MOU, (see

id. ¶¶ 71–75);

(2) Breach of duties under New York Partnership Law Article 4, Sections 40–44,

alleging that Defendants wrongfully terminated the Partnership, misappropriated

Partnership assets, and engaged in other misconduct and mismanagement, (see id.

¶¶ 76–82, 83–93);

(3) Breach of duties under common law for the same conduct, (see id. ¶¶ 83–93);

(4) Constructive fraud for the same conduct, (see id. ¶¶ 94–98);

(5) Unjust enrichment for inequitably retaining the Partnership’s funds, (see id. ¶¶ 99–

102);

(6) Wrongful termination of the Partnership, (see id. ¶¶ 103–115);

(7) Denial of an accounting of Partnership assets, (see id. ¶¶ 116–22);

(8) Trademark infringement under the Lanham Act, 15 U.S.C. § 1114, alleging that

Defendants are wrongfully using the “Ink Beetle Mark,” (see id. ¶¶ 123–150); and

(9) Dilution of trademark under the Lanham Act, 15 U.S.C. § 1125, alleging the same,

(see id. ¶¶ 151–61).

Glitz seeks damages, disgorgement of funds, the imposition of a constructive trust over

Partnership proceeds held by Defendants, a judicial determination that Defendants wrongfully

terminated the Partnership and that Glitz has the sole right to continue the business of the

Partnership, an accounting of the Partnership, an order enjoining Defendants from infringing the

Ink Beetle Mark, and an award of attorneys’ fees and costs. (See generally id. ¶¶ 71–161.)

Defendants filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure

(“Rule”) 12(b)(6) on October 9, 2025. (See Mot. to Dismiss, Dkt. 24.) The motion is now fully

briefed. (See id.; Mem. Supp. Mot. to Dismiss (“Mem.”), Dkt. 24-1; Opp’n to Mot. to Dismiss

(“Opp’n”), Dkt. 27; Reply Supp. Mot. to Dismiss (“Reply”), Dkt. 28.)

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility 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

same at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting same).

Determining whether a complaint states a plausible claim for relief is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679

(citation omitted).

DISCUSSION

Defendants move to dismiss the Complaint on three grounds. First, Defendants argue that

the Complaint should be dismissed entirely because the MOU and evidence annexed to

Defendants’ motion refutes Glitz’s factual claims. (See Mem., Dkt. 24-1, at 3–4.) Second,

Defendants argue that the Court should dismiss the claims against Defendant Christian Spicer

because he did not sign the MOU and was never a member of Rebel, and that the Court should

dismiss the claims against Defendant Brent Spicer because he did not sign the MOU in his

individual capacity and the Complaint does not adequately identify how Brent was personally

involved in the acts that form the basis for Glitz’s claims. (See id. at 4–5.) Third, Defendants

argue that the Court should dismiss Glitz’s claims for “constructive fraud[,] . . . unjust

enrichment[,] and quantum meruit,” because quasi-contract claims are not available when a valid

contract—here, the MOU—governs the same events, and because “[c]onstructive fraud must be

pleaded with particularity under [Rule] 9(b).” (Id. at 6.) As set forth below, the Court disagrees

with each argument.

I. The MOU and Factual Evidence Regarding Glitz’s Claims

Defendants first argue, in effect, that the Court should dismiss this action because Glitz’s

factual allegations are not true. (See Mem., Dkt. 24-1, at 4; Reply, Dkt. 28, at 2–3.) They point to

the MOU attached to the Complaint and claim that it does not establish “that it [was] Rebel

Tattoo’s obligation to form a new LLC.” (Mem., Dkt. 24-1, at 1, 4.) But only one of Glitz’s nine

claims—the breach of contract claim—relies on Defendants’ alleged failure to create the LLC, and

even there, it is just one of ten different alleged breaches of the MOU. (See Compl., Dkt. 1, ¶ 72

(alleging that Defendants breached the MOU by failing to create the LLC, in addition to failing to

render performance of services set forth in the MOU, failing to register the intellectual property in

the name of the LLC or the Partnership, wrongfully terminating the Partnership, exercising

wrongful control over Partnership assets, etc.).) Thus, even if Defendants are correct that they

were not contractually obligated to create an LLC under the MOU, that would not warrant the

dismissal of any of Glitz’s claims.

The Court also disagrees with Defendants’ contention that the MOU unambiguously shows

that they were not obligated to create an LLC. “For a defendant to prevail on a motion to dismiss

for breach of contract, the contract must unambiguously support the defendant’s position.” Prof.

Fighters League, LLC v. Takeover Indus., Inc., 770 F. Supp. 3d 718, 724 (S.D.N.Y. 2025) (quoting

Trireme Energy Dev., LLC v. RWE Renewables Ams., LLC, No. 22-CV-7439 (JLR), 2023 WL

5469662, at *12 (S.D.N.Y. Aug. 24, 2023)). A contract is unambiguous under New York law4 “if

the language it uses has a definite and precise meaning, as to which there is no reasonable basis

for a difference of opinion.” Lockheed Martin Corp. v. Retail Holdings, N.V., 639 F.3d 63, 69 (2d

Cir. 2011) (citing White v. Cont’l Cas. Co., 848 N.Y.S.2d 603, 605 (2007)).

4 The MOU lacks a choice-of-law clause. Although neither party briefed the issue of the

proper law to be applied to the breach of contract claim, both parties seem to assume that New

York law applies to this dispute. (See, e.g., Compl., Dkt. 1, ¶ 70 (Glitz alleging that New York

partnership law applies and governs the “Company” defined in the MOU); Mem., Dkt. 24-1, at 4

(Defendants arguing that “New York follows the well established contra proferentem principle”

(citation omitted)).) Additionally, a substantial amount of the conduct at issue occurred in New

York. (See Compl., Dkt. 1, ¶¶ 8, 20 (explaining that the Partnership work was performed from

Glitz’s offices and warehouses in Queens, New York).) The Court therefore assumes that New

York law governs. See Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 31–32 (2d Cir. 2017)

(explaining that where the parties briefs assumed that a certain state’s law applied, “such implied

consent is . . . sufficient to establish the applicable choice of law” (ellipses in original) (quoting

Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 39 (2d Cir. 2009))); Vacold LLC v. Cerami,

545 F.3d 114, 122–23 (2d Cir. 2008) (assuming that New York law governed where district court

had done the same and neither party objected, and where a substantial amount of the conduct at

issue underlying the dispute occurred in New York).

Here, the MOU states that it is “for the purpose of aligning intent and achieving objectives

related to the development of Ink Beetle LLC . . . (the ‘Company’).” (MOU, Dkt. 1-3, at 1.) It

then includes the following statement: “WHEREAS, Rebel has established the Company for the

purposes of providing tattoo paraphernalia and other related goods and services . . . .” (Id.) Glitz’s

position is that this provision, though phrased in the past tense, establishes that it was Rebel

Tattoo’s obligation to create Ink Beetle LLC. (See Opp’n, Dkt. 27, at 3–4.) Glitz supports this

interpretation with extrinsic evidence that Brent “represented that he would form a New York LLC

and register it,” (Compl., Dkt. 1, ¶ 20 (citing Compl. Ex. 4 (“Text Messages”), Dkt. 1-4)), and that

he later told Glitz that he would set up the LLC in Texas instead, (id. ¶ 34). Defendants claim that,

to the contrary, the MOU expresses “an intention that [Glitz] oversee the logistics of new LLC

formation” because it provided that Glitz would “[c]onsult and manage [day-to-day] business

operations” and provide “[a]ny other related or ancillary services necessary to carry out the above

functions or as agreed upon by the Parties now or in the future.” (Mem., Dkt. 24-1, at 4–5 (quoting

MOU, Dkt. 1-3, at 1–2).)

The Court finds that the MOU does not “unambiguously support” Defendants’ position.

See Prof. Fighters League, 770 F. Supp. 3d at 724 (citation omitted). The statement that “Rebel

has established the Company” might not be an explicit promise for Rebel Tattoo to establish the

LLC, but it could reasonably be interpreted as a promise implied in fact. See 13 Williston on

Contracts § 38:14 (4th ed. May 2026) (“Not only may promises exist . . . when the language is in

the form of a promise but also when the agreement, according to its terms and context, shows that

the parties must have intended an obligation even though they failed to set this forth in clear

terms.”); see also Cordero v. Transamerica Annuity Serv. Corp., 190 N.Y.S.3d 274, 281 (2023)

(explaining that, under New York law, courts will “infer that contracts include any promises which

a reasonable person in the position of the promisee would be justified in understanding were

included at the time the contract was made” (citation and internal quotation marks omitted)). Since

it is reasonable to interpret the MOU to include a promise by Defendants to create the LLC, the

Court denies Defendants’ motion to dismiss that portion of the breach of contract claim. See also

Prof. Fighters League, 770 F. Supp. 3d at 724 (“While courts are not obliged to accept the

allegations of the complaint as to how to construe a contract, they should resolve any contractual

ambiguities in favor of the plaintiff on a motion to dismiss.” (citation and internal quotation marks

omitted)).

Defendants also claim that “text messages annexed” to Defendants’ motion to dismiss

“show that [Glitz], not [D]efendants, thwarted the filing of the LLC paperwork.” (Mem.,

Dkt. 24-1, at 2.) The Court “do[es] not consider matters outside the pleadings in deciding a motion

to dismiss for failure to state a claim.” Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723

F.3d 192, 202 (2d Cir. 2013) (citing Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d

150, 154–55 (2d Cir. 2006)). The Court therefore disregards this argument.

II. Claims Against Christian and Brent Spicer

Next, Defendants argue that the Court should dismiss the claims against Defendants

Christian and Brent Spicer. As to Christian, Defendants argue that he “never signed the MOU,

and never was a member of Rebel Tattoo or any entity that is or was involved in executing the

MOU[’]s terms.” (Mem., Dkt. 24-1, at 2.) Defendants contend that, under principles of New York

contract law, Glitz “cannot demonstrate that Christian accepted the agreement,” and therefore he

is not bound by the contract. (See id. at 4–5.) As to Brent, Defendants argue that he only signed

the MOU in his official capacity on behalf of Rebel Tattoo. (Id. at 5.) Again, these arguments

relate only to Glitz’s breach of contract claim and would not, in any case, warrant dismissing either

Christian or Brent from this action, which alleges eight other non-contract causes of action,

entirely.

The Court also disagrees with Defendants on the merits. The New York Court of Appeals

“has long held that a contract may be valid even if it is not signed by the party to be charged” as

long as there is “objective evidence establishing that the parties intended to be bound.” 10 Ellicott

Square Ct. Corp. v. Mt. Valley Indem. Co., 634 F.3d 112, 124 (2d Cir. 2011) (alterations adopted)

(quoting Flores v. Lower E. Side Serv. Ctr., Inc., 795 N.Y.S.2d 491, 494–95 (2005)); see also

Coliseum Park Apartments Co. v. Coliseum Tenants Corp., 742 F. Supp. 128, 133 n.4 (S.D.N.Y.

1990) (explaining that, under New York law, “parties may be fully and completely bound to a

contract even if they do not sign it, if they act pursuant to it, or otherwise assent to it” (citing N.Y.

Jur. 2d, Contracts, § 16)). When “differing inferences may be drawn” about the parties’ intent,

there is a question of fact, see Flores, 795 N.Y.S.2d at 495 (quoting Brown Bros. Elec. Constr. v.

Beam Constr. Corp., 393 N.Y.S.2d 350, 352 (1977)), which cannot be resolved on a motion to

dismiss.

That is the situation here. The MOU, which Glitz alleges was drafted by Brent, (see

Compl., Dkt. 1, ¶ 21), identifies both Christian and Brent as parties to the agreement in addition to

Rebel Tattoo, (see MOU, Dkt. 1-3, at 1 (“This Memorandum of Understanding (‘MOU’) by and

between Brent Spicer, Christian Spicer, and Rebel Tattoo Company LLC (collectively, ‘Rebel’),

[and] Glitz LLC (‘Glitz’) (altogether, the ‘Parties’) . . . .” (emphasis added))). That makes it more

than plausible to infer that Brent and Christian intended to be bound by the agreement in their

individual capacities. Whether that is actually true or not must be determined at a later stage, based

on the evidence produced in discovery. See Flores, 795 N.Y.S.2d at 495 (citation omitted).

Defendants also argue that the Complaint “fails to specifically identify what the

participation by Brent was in the acts that form the basis for [Glitz’s] claims,” and that,

“[c]onsequently, the Court should dismiss all claims as against Brent.” (Mem., Dkt. 24-1, at 5.)

That argument is frivolous because the Complaint clearly sets forth detailed allegations regarding

Brent’s personal involvement. (See, e.g., Compl., Dkt. 1, ¶¶ 19–22, 34, 41, 48, 52, 54, 59, 61.)

The Court therefore denies Defendants’ motion to dismiss the breach of contract claim, or

any of the other eight claims in this action, against either Christian or Brent Spicer.

III. Constructive Fraud and Unjust Enrichment Claims

Finally, Defendants argue that the Court should dismiss Glitz’s claims for constructive

fraud and unjust enrichment. (See Mem., Dkt. 24-1, at 6.)5 The Court disagrees.

Starting with constructive fraud, Defendants state that “[c]onstructive fraud must be

pleaded with particularity under [Rule] 9(b).” (Mem., Dkt. 24-1, at 6.) They do not elaborate or

even attempt to apply that rule to Glitz’s claim. The argument is therefore waived, and Defendants’

motion to dismiss the constructive fraud claim is denied. See Evans v. Select Portfolio Servicing,

Inc., 827 F. Supp. 3d 422, 448 n.24 (E.D.N.Y. 2026) (“Where a party refers to an issue in only a

perfunctory manner, unaccompanied by any effort at developed argumentation, it must be deemed

waived—or, more precisely, forfeited.” (citations omitted)); Malik v. City of New York, 841 F.

App’x 281, 284 (2d Cir. 2021) (summary order) (explaining that “when a party fails to adequately

present arguments in a brief” before the court, the court “may properly consider those arguments

abandoned,” especially in cases where a party is represented by counsel (citation modified));

United States v. Fuentes, No. 09-CR-0143 (RJA) (JJM), 2012 WL 4754736, at *3 (W.D.N.Y. Apr.

5 Defendants also state that the Court should dismiss Glitz’s claim for “quantum meruit,”

(see Mem., Dkt. 24-1, at 6), but there is no independent claim for quantum meruit in the Complaint,

(see generally Compl., Dkt. 1, ¶¶ 71–161).

25, 2012) (finding arguments waived where they were “largely conclusory, boilerplate,

undeveloped[,] and bereft of any supporting case authority” (collecting cases)), report and

recommendation adopted, 2012 WL 4754744 (W.D.N.Y. Oct. 4, 2012).

Defendants argue that Glitz’s unjust enrichment claim should be dismissed because it is

duplicative of Glitz’s breach of contract claim. (Mem., Dkt. 24-1, at 6.) “A court may allow a

breach of contract and an unjust enrichment claim to proceed past the motion to dismiss stage

when the validity or scope of the contract is difficult to determine.” Nat’l Convention Servs.,

L.L.C. v. Applied Underwriters Captive Risk Assurance Co., 239 F. Supp. 3d 761, 795 (S.D.N.Y.

2017) (collecting cases); see also id. (explaining that, “even though [p]laintiffs 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” (quoting Transcience Corp. v.

Big Time Toys, LLC, 50 F. Supp. 3d 441, 452 (S.D.N.Y. 2014))). Here, Defendants contend that

“[t]he 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,”

and that “the parties do not dispute that the MOU exists and governs their relationship.” (Mem.,

Dkt. 24-1, at 6 (citations omitted).) However, Defendants plainly do dispute the scope of the

MOU—for example, they argue that it does not include an obligation to create an LLC, and that it

does not bind Brent or Christian as individuals. (See generally id.) Thus, “[b]ecause the scope of

the contractual obligations and further factual developments regarding the conduct of the parties

have yet to be determined, dismissing [Glitz’s] unjust enrichment claim at this stage would be

premature.” See Nat’l Convention Servs., 239 F. Supp. 3d at 795 (citation omitted). Defendants’

motion to dismiss Glitz’s unjust enrichment claim is therefore also denied.

CONCLUSION

For all of the foregoing reasons, Defendants’ motion to dismiss, (Dkt. 24), is denied in its

entirety.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 14, 2026

Brooklyn, New York