After reading the case below, please answer the following:

(1) What were the plaintiff's allegations?

(2) What were the defendant's arguments?

(3) Do you believe the court reached the right and equitable decision? Why or why not?

S.D.N.Y.,2010. Gutkowski v. Steinbrenner 680 F.Supp.2d 602 United States District Court, S.D. New York. Robert M. GUTKOWSKI, Plaintiff, v. George STEINBRENNER III, Defendant. No. 09 Civ. 7535(RJS).

Jan. 26, 2010.

Background: Sports television professional brought diversity action against owner of major league baseball team,

asserting common laws claims under New York law for breach of contract, unjust enrichment, quantum meruit, and

fraud in the inducement, stemming from an alleged oral agreement relating to the creation of a television network

owned and operated by the baseball team. Owner moved to dismiss.

Holdings: The District Court, Richard J. Sullivan, J., held that: (1) television professional failed to allege an enforceable oral agreement; (2) television professional was precluded from bringing claim for compensation for alleged services under New

York's statute of frauds; and (3) television professional's claims were untimely.

Motion granted.

West Headnotes

[1] Federal Civil Procedure 170A 833

170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak833 k. Liberality in allowing amendment. Most Cited Cases

Federal Civil Procedure 170A 834

170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak834 k. Injustice or prejudice. Most Cited Cases

Federal Civil Procedure 170A 851

170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak851 k. Form and sufficiency of amendment. Most Cited Cases In the absence of any apparent or declared reason, such as undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the oppos-

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

ing party by virtue of allowance of the amendment, futility of amendment, etc., the leave to amend should be freely

given. Fed.Rules Civ.Proc.Rule 15(a), 28 U.S.C.A.

[2] Federal Civil Procedure 170A 851

170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak851 k. Form and sufficiency of amendment. Most Cited Cases Where it appears that granting leave to amend is unlikely to be productive, it is not an abuse of discretion to deny

leave to amend. Fed.Rules Civ.Proc.Rule 15(a), 28 U.S.C.A.

[3] Contracts 95 9(1)

95 Contracts 95I Requisites and Validity 95I(A) Nature and Essentials in General 95k9 Certainty as to Subject-Matter 95k9(1) k. In general. Most Cited Cases In New York, a contract must be sufficiently definite to be enforceable.

[4] Contracts 95 9(1)

95 Contracts 95I Requisites and Validity 95I(A) Nature and Essentials in General 95k9 Certainty as to Subject-Matter 95k9(1) k. In general. Most Cited Cases Under New York law, a court cannot enforce a contract unless it is able to determine what in fact the parties have

agreed to; if an agreement is not reasonably certain in its material terms, there can be no legally enforceable con-

tract.

[5] Contracts 95 9(1)

95 Contracts 95I Requisites and Validity 95I(A) Nature and Essentials in General 95k9 Certainty as to Subject-Matter 95k9(1) k. In general. Most Cited Cases Under New York law, the consideration to be paid under a contract is a material term.

[6] Contracts 95 9(1)

95 Contracts 95I Requisites and Validity 95I(A) Nature and Essentials in General 95k9 Certainty as to Subject-Matter 95k9(1) k. In general. Most Cited Cases Under New York law, the failure to fix a sum certain is not necessarily fatal to a contract.

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

[7] Contracts 95 9(2)

95 Contracts 95I Requisites and Validity 95I(A) Nature and Essentials in General 95k9 Certainty as to Subject-Matter 95k9(2) k. Services and compensation therefor. Most Cited Cases

Copyrights and Intellectual Property 99 107

99 Copyrights and Intellectual Property 99II Intellectual Property 99k107 k. Contracts. Most Cited Cases

Customs and Usages 113 16

113 Customs and Usages 113k9 Application and Operation 113k16 k. Adding to terms of contract. Most Cited Cases Under New York law, allegations of sports television professional that the owner of major league baseball team

promised that he would be "compensated fairly" or "fairly compensated" for his ideas and efforts related to the crea-

tion of a television network owned and operated by the baseball team, in conjunction with television professional's

allegation that "one measure" to calculate this "fair and reasonable value" was a two to three percent equity interest

"traditionally paid to persons providing the kind of services provided by Plaintiff to Defendant," were insufficiently

definite as a matter of law to allege an enforceable oral agreement; television professional failed to allege the parties

actually agreed to look to any extrinsic event, commercial practice, or trade usage to ascertain the price, or the exist-

ence of a plausible "fixed and invariable" industry standard.

[8] Customs and Usages 113 16

113 Customs and Usages 113k9 Application and Operation 113k16 k. Adding to terms of contract. Most Cited Cases Under New York law, custom and usage evidence must establish that an omitted contract term is "fixed and invaria-

ble" in the industry in question.

[9] Brokers 65 43(1)

65 Brokers 65V Compensation 65k43 Necessity of Contract in Writing 65k43(1) k. Under statute of frauds in general. Most Cited Cases Alleged services provided by sports television professional to the owner of major league baseball team, in identify-

ing and analyzing the creation of a television network owned and operated by the baseball team, identifying and

analyzing potential business partners, and being a "major contributor" to the eventual formation of the network con-

stituted "negotiating the purchase of a business opportunity" under New York's statute of frauds, such that television

professional was precluded from bringing claims for compensation for such services based on an alleged oral

agreement. N.Y.McKinney's General Obligations Law 5-701(a)(10).

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[10] Implied and Constructive Contracts 205H 3

205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust enrichment. Most Cited Cases

Implied and Constructive Contracts 205H 30

205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(C) Services Rendered 205Hk30 k. Work and labor in general; quantum meruit. Most Cited Cases Under New York law, claims for unjust enrichment and quantum meruit are analyzed together as a single quasi-

contract claim.

[11] Frauds, Statute Of 185 138(1)

185 Frauds, Statute Of 185IX Operation and Effect of Statute 185k138 Contracts Implied by Law on Part Performance 185k138(1) k. In general. Most Cited Cases Under New York law, quasi-contract claims are barred by the statute of frauds. N.Y.McKinney's General Obliga-

tions Law 5-701(a)(10).

[12] Fraud 184 32

184 Fraud 184II Actions 184II(A) Rights of Action and Defenses 184k32 k. Effect of existence of remedy by action on contract. Most Cited Cases Under New York law, where a fraud claim arises out of the same facts as plaintiff's breach of contract claim, with

the addition only of an allegation that defendant never intended to perform the precise promises spelled out in the

contract between the parties, the fraud claim is redundant and plaintiff's sole remedy is for breach of contract; in

other words, simply dressing up a breach of contract claim by further alleging that the promisor had no intention, at

the time of the contract's making, to perform its obligations thereunder, is insufficient to state an independent tort

claim.

[13] Limitation of Actions 241 21(1)

241 Limitation of Actions 241I Statutes of Limitation 241I(B) Limitations Applicable to Particular Actions 241k21 Contracts in General 241k21(1) k. In general. Most Cited Cases

Limitation of Actions 241 28(1)

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241 Limitation of Actions 241I Statutes of Limitation 241I(B) Limitations Applicable to Particular Actions 241k28 Implied Contracts and Debts and Obligations Not Evidenced by Writing 241k28(1) k. In general. Most Cited Cases

Limitation of Actions 241 46(6)

241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k46 Contracts in General 241k46(6) k. Breach of contract in general. Most Cited Cases

Limitation of Actions 241 49(1)

241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k49 Implied Contracts 241k49(1) k. In general. Most Cited Cases New York's statute of limitations for contract and quasi-contract claims is six years, and it accrues upon breach.

N.Y.McKinney's CPLR 213(2).

[14] Limitation of Actions 241 46(6)

241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k46 Contracts in General 241k46(6) k. Breach of contract in general. Most Cited Cases

Limitation of Actions 241 49(2)

241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k49 Implied Contracts 241k49(2) k. Liability for services rendered. Most Cited Cases

Limitation of Actions 241 99(1)

241 Limitation of Actions 241II Computation of Period of Limitation 241II(F) Ignorance, Mistake, Trust, Fraud, and Concealment or Discovery of Cause of Action 241k98 Fraud as Ground for Relief 241k99 In General 241k99(1) k. In general. Most Cited Cases

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Common law breach of contract, unjust enrichment, quantum meruit, and fraud in the inducement claims of sports

television professional against owner of major league baseball team, stemming from an alleged oral agreement relat-

ing to the creation of a television network owned and operated by the baseball team, accrued, under New York law,

no later than the day that the network debuted, where, as of that date, neither of the conditions of the purported oral

agreement, television professional running the network, or television professional being significantly involved in the

network, had been satisfied. N.Y.McKinney's CPLR 213(2, 8).

[15] Limitation of Actions 241 13

241 Limitation of Actions 241I Statutes of Limitation 241I(A) Nature, Validity, and Construction in General 241k13 k. Estoppel to rely on limitation. Most Cited Cases Under New York law, a defendant may be estopped from pleading the statute of limitations where the plaintiff was

induced by fraud, misrepresentations, or deception to refrain from filing a timely action. Neal Brickman, Ethan York Leonard, and Melinda May Dus, The Law Office of Neal Brickman, New York, NY,

for Plaintiff.

Christopher Emmanuel Duffy and Michael Philip Favretto, Boies, Schiller & Flexner LLP, New York, NY, for De-

fendant.

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge:

Plaintiff Robert M. Gutkowski ("Plaintiff" or "Gutkowski") brings this diversity action against Defendant George

Steinbrenner III ("Defendant" or "Steinbrenner"). Plaintiff alleges that after presenting Defendant with the idea of

creating what ultimately became the Yankees Entertainment and Sports Network (the "YES Network" or "YES"),

Defendant failed to abide by the terms of an oral agreement under which Plaintiff would "have a role in the network

as long as it existed, or, otherwise[ ] be compensated for his efforts and contributions." (Compl. 1.) Plaintiff fur-

ther alleges that Defendant "knowingly lied" to Plaintiff "in order to induce Plaintiff to give his unique idea." (Id.)

Pursuant to these allegations, Plaintiff asserts common law claims under New York law for breach of contract, un-

just enrichment, quantum meruit, and fraud in the inducement.

Before the Court is Defendant's motion to dismiss, with prejudice, Plaintiff's complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. For the reasons that follow, the Court grants Defendant's motion.

I. BACKGROUND

A. Facts FN1

FN1. Plaintiff's factual allegations are assumed to be true and all reasonable inferences are drawn in his fa-

vor. See In re Ades & Berg Group Investors, 550 F.3d 240, 243 n. 4 (2d Cir.2008).

Plaintiff describes himself as a "distinguished professional in the field of sports television, marketing, and manage-

ment with many years of experience." (Id. 1.) Defendant is the "owner and the former principal owner and execu-

tive" of the New York Yankees ("the Yankees"). (Id. 3.)

1. The December 1996 Meeting with Defendant

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Plaintiff first met with Defendant in December 1996. (Id. 8.) At that time, the Yankees had an agreement with the

Madison Square Garden Network (the "MSG Network"), pursuant to which the MSG Network possessed the local

television and cable rights to Yankees games. (Id. 5 & n. 1.) The MSG Network, however, had been purchased by

Cablevision in 1995, "meaning that Cablevision had, through its ownership of the MSG Network, a 100% ownership

of Yankees local television broadcast and cable rights." (Id. 6.)

Plaintiff alleges that, "[a]s an industry insider, [he] correctly foresaw that this deal would have serious negative fi-

nancial consequences to Steinbrenner and the Yankees and their future local television rights negotiation." (Id. 8.)

At the December 1996 meeting, Plaintiff "explained the situation" to Defendant and also "presented to Steinbrenner

the idea of starting a Yankees owned and operated network as a means of gaining negotiating leverage over Cablevi-

sion." (Id. 9, 10.) Defendant was "very intrigued by the idea," and "asked that Plaintiff work with the Yankees to

figure out the viability of starting a new network." (Id. 10, 11.) Plaintiff alleges that Defendant:

told Plaintiff that he would be compensated fairly for his efforts and that if, in fact, using Gutkowski's ideas, the

Yankees did a network, Plaintiff would be the one to build it and, afterward, would either run the network

or, at a minimum, have a senior management position or be fairly compensated for his idea and efforts.

(Id. 11.)

2. The February 1997 Meeting with David Sussman

In February 1997, Plaintiff met with David Sussman ("Sussman"), general counsel of the Yankees. (Id. 11, 12.)

Plaintiff reiterated his concerns regarding Cablevision and his idea of creating a Yankees-owned network. (Id. 12.)

Plaintiff alleges that "Sussman was also very interested in the idea, though he, like Steinbrenner, did not know how

to go about creating a television network." (Id.)

3. The May 1997 Meeting with Defendant

Plaintiff met with Defendant a second time in May 1997. (Id. 13.) Plaintiff alleges that, during this meeting, De-

fendant "was becoming more and more interested in starting a Yankees television network." (Id.) Plaintiff and De-

fendant, however, "decided to hold off discussing further development of a Yankees network until they could get an

idea of the bargaining position Cablevision would adopt." (Id.)

4. The March 1998 Memorandum

In February 1998, Defendant "called upon Gutkowski's industry expertise and requested that he a memo to

list and explain all of the local television broadcast and cable options available to the Yankees after the year 2000."

(Id. 15.) On or about March 5, 1998, Plaintiff provided Defendant with a memorandum providing seven "detailed

Yankees local television broadcast and cable options for the future." (Id. 16.) The first of these options "was the

creation of a Yankees owned and operated television network." (Id.) "Included with this option were thorough five

(5) and ten (10) year business plans laying out network creation and operations including specifics such as produc-

tion, cable and advertiser sales, and marketing." (Id.)

5. The March 1998 Presentation by The Marquee Group

On or about March 10, 1998, Plaintiff and two of his partners at The Marquee Group made a presentation entitled

"The New York Yankees & The Marquee Group: Maximizing Television Revenues" to Defendant and other Yan-

kees executives. (Id. 17.) "The presentation explained, in depth, how to build a Yankees television network," and

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"Plaintiff, as architect of the network's model, covered all the facets of the implementation and management of the

proposed Yankees network." (Id.)

Plaintiff alleges that Defendant "was impressed and asked Plaintiff to move forward on Phase One of Plaintiff's pro-

posed plan," which "included developing viable local television broadcast and cable options." (Id. 18, 19.) For

performing this service, "The Marquee Group would charge twenty-five thousand dollars ($25,000) per month for a

minimum of six (6) months." (Id. 19.) "While Steinbrenner never signed the proposal he specifically requested that

Plaintiff proceed under the terms-namely Phase One-of the contract." (Id.) Defendant, however, "only paid The

Marquee Group for one month's worth of compensation-or $25,000-for its work." (Id.)

Plaintiff alleges that "[a]t the time, Steinbrenner claimed that he was uncertain if he would ultimately choose to cre-

ate a Yankees network, but told Plaintiff that if he did decide to start a network, Plaintiff would be the one to build it

and either run it or be significantly involved in it." (Id.) Defendant "also promised that, in any event, Gutkowski

would be compensated for his idea and efforts," and "said to Plaintiff and his partners, 'You are my guys, if it goes

forward, I will do it with you.' " (Id.) "Plaintiff and his partners [in The Marquee Group] shook Steinbrenner's hand

and departed to begin work on Phase One." (Id.) Plaintiff alleges that based on this agreement and Defendant's

promises, Plaintiff "began laying the groundwork for the creation of a Yankees owned and operated television net-

work." (Id. 20.)

6. The March 1998 Letter

On or about March 23, 1998, Plaintiff sent Defendant a letter "describing the duties he was then performing on be-

half of a potential Yankees network." (Id. 21.) These duties included: (1) "analyzing potential strategic and finan-

cial media companies as equity and distribution partners"; (2) "identifying key decision-makers at such companies

with whom Steinbrenner should meet"; and (3) "continuing to develop a detailed financial pro forma for a Yankees

owned and operated television network, including calculations for advertising and affiliate revenues, organization[,]

and staffing." (Id.) Plaintiff's letter also "suggested and detailed certain specific steps to be taken next, including a

press release-with a suggested date of April 1, 1998-to announce a partnership between the Yankees and The Mar-

quee Group, which would enable Gutkowski to conduct meetings on the Yankees' behalf." (Id.)

Although Defendant "declined to create or issue such a press release," Plaintiff alleges that Defendant "repeatedly

assured Plaintiff that he would build the network with Plaintiff and that Plaintiff would run the network, or else be,

and stay, significantly involved in the network." (Id. 22.) "Based upon these specific representations, Plaintiff con-

tinued diligently working for the benefit of Steinbrenner and the New York Yankees toward the creation of what

ultimately became the YES [N]etwork." (Id.)

7. The May 1998 Consulting Agreement

On or about May 31, 1998, Plaintiff received a consulting agreement from the Executive Vice President of the Ya n-

kees, which provided that Plaintiff would consult for the Yankees regarding "all matters pertaining to the Yankees'

future television rights." (Id. 23.) The term of this consulting agreement was six months. (Id. 24.) Plaintiff alleg-

es that, notwithstanding the fact that he "was assured that this consulting agreement was merely the beginning of a

much deeper involvement with the new Yankees network," he "was not contracted or hired to work for the network

he created before it debuted several years later despite repeatedly contacting Defendant and requesting to be in-

volved with building the network that he had created and then designed, as he was specifically promised." (Id. 23,

25.)

8. The October 2003 Consulting Agreement

Defendant ultimately started the YES Network with the financial assistance of several private equity groups. (Id.

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26.) The YES Network first aired on or about March 19, 2002, with Leo Hindery, Jr. ("Hindery"), as its Chief Exec-

utive Officer. (Id. 28.) In April 2002, the YES Network filed suit against Cablevision. (Id. 30.) From approxi-

mately October 2003 through March 2004, Plaintiff was retained by the YES Network to act as a consultant in the

lawsuit. (Id.) Plaintiff alleges that, to elicit his aid in the lawsuit, Randy Levine ("Levine"), President of the Yan-

kees, "gave Plaintiff assurances that Plaintiff was Steinbrenner's choice to replace Mr. Hindery as CEO of YES."

(Id. 30, 31.)

Hindery resigned as CEO of the YES Network in early 2004. (Id. 32.) At that time, "Steinbrenner and Levine re-

peatedly spoke with Plaintiff about his assuming the CEO position at YES." (Id.) "Despite such discussions, in Sep-

tember 2004 Tracy Dolgin replaced Leo Hindery, Jr. as the Chief Executive Officer of YES." (Id. 33.)

9. The November 2004 Consulting Agreement

On or about November 1, 2004, Plaintiff received a two-year consulting agreement from the YES Network, which

expired on or about November 1, 2006. (Id. 34.) At that time, "Levine again reiterated his wish that Plaintiff be

CEO of YES." (Id. 35.) Plaintiff alleges that, notwithstanding these statements, "[o]ver the course of the latest

consulting agreement, it became clear to Plaintiff that no one at YES was making even the pretense of considering

his suggestions." (Id.) Specifically, Plaintiff alleges that "[n]o one from YES sought out his counsel or in any way

used Plaintiff in any substantive manner as contemplated by the consulting agreement." (Id. 36.) On or about Feb-

ruary 10, 2005, Plaintiff "instigated a buyout" of the November 2004 consulting agreement. (Id.)

10. The 2007 Meeting with Levine

In 2007, Plaintiff met with Levine. (Id. 37.) During this meeting, Plaintiff asked that, "in accordance with past

promises and assurances, that he be fairly compensated, in light of both Plaintiff's agreement with Steinbrenner and

the fact that Plaintiff was the architect for YES." (Id.) Plaintiff alleges that Levine responded that Defendant would "

'look to make something happen' " and " 'do the right thing.' " (Id.) Defendant, however, "never again contracted,

hired, or otherwise involved Plaintiff in any way with the network [Plaintiff] conceived of and created the model for,

nor did they ever compensate Gutkowski for the reasonable value of his contribution to the creation and implemen-

tation of the YES [N]etwork." (Id.)

Plaintiff now alleges that "[o]ne measure of the fair and reasonable value of Plaintiff's service is the 2-3% equity

interest traditionally paid to persons providing the kind of services provided by Plaintiff to Defendant." (Id. 38.)

B. Procedural History

Plaintiff filed his complaint on August 28, 2009. (Doc. No. 1.) Defendant filed his motion to dismiss Plaintiff's

complaint on November 6, 2009. (Doc. No. 16.) On December 1, 2009, Plaintiff filed his memorandum of law in

opposition to Defendant's motion (Doc. No. 20), and on December 8, 2009, Defendant filed his reply memorandum

of law (Doc. No. 21). Although Plaintiff has not filed a motion to amend his complaint, he does argue, in his memo-

randum of law in opposition to Defendant's motion, that any dismissal of his complaint should be without prejudice.

(Doc. No. 20.)

II. LEGAL STANDARDS

A. Motion to Dismiss

On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must draw all reason-

able inferences in Plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007);

Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). Nonetheless, "[f]actual allegations must be

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the co m-

plaint are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation

omitted). "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior

era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft

v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Therefore, this standard "demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949.

Ultimately, Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550

U.S. at 570, 127 S.Ct. 1955. "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." Iqbal, 129 S.Ct. at

1949. On the other hand, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements

of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further

factual enhancement.' " Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Applying this standard, if Plaintiff

"ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed."

Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

B. Motion to Amend

[1] Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend its pleadings by leave of the court,

and further directs that "[t]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). "In the

absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the mo-

vant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party

by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require,

be 'freely given.' " Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); accord McCarthy v.

Dun & Bradstreet Corp., 482 F.3d 184, 200-02 (2d Cir.2007).

[2] "Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discre-

tion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). See Health-Chem

Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) ( "[W]here ... there is no merit in the proposed amendments, leave

to amend should be denied.").

III. DISCUSSION

Plaintiff's complaint alleges common law claims under New York law for breach of contract, unjust enrichment,

quantum meruit, and fraud in the inducement. Defendant moves pursuant to Rule 12(b)(6) to dismiss all of these

claims with prejudice.

The Court finds that Plaintiff's claims are inadequately pleaded in numerous respects. First, Plaintiff fails to plead

adequately the compensation term of the putative agreement, which precludes Plaintiff from asserting his claim for

breach of contract. Second, the purported oral agreement is unenforceable under New York's statute of frauds, which

bars Plaintiff's breach of contract and quasi-contract claims. Third, Plaintiff's claim for fraudulent inducement fails

to state a cause of action independent from Plaintiff's breach of contract claim. Fourth, all of Plaintiff's claims are

untimely pursuant to New York's statute of limitations. Finally, insofar as Plaintiff purports to make a motion to

amend his complaint, this motion is denied as futile.

The Court will discuss each of these deficiencies in turn. For the reasons stated below, Defendant's motion to dis-

miss Plaintiff's complaint is granted, Plaintiff is denied leave to amend, and judgment shall be entered in favor of

Defendant, closing this case.

A. Definiteness

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1. Applicable Law

[3][4] In New York, a contract must be sufficiently "definite" to be enforceable. See generally Dreyfuss v. eTelecare

Global Solutions-US, Inc., No. 08 Civ. 1115(RJS), 2008 WL 4974864, at *4 (S.D.N.Y. Nov. 19, 2008). FN2 "The

doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce

a contract unless it is able to determine what in fact the parties have agreed to.... [I]f an agreement is not reasonably

certain in its material terms, there can be no legally enforceable contract." 166 Mamaroneck Ave. Corp. v. 151 E.

Post Rd. Corp., 78 N.Y.2d 88, 91, 571 N.Y.S.2d 686, 575 N.E.2d 104 (1991) (citation and internal quotation marks

omitted); accord Carruthers v. Flaum, 450 F.Supp.2d 288, 309 (S.D.N.Y.2006) ("If the parties have not reached a

final agreement on the fundamental terms of the deal, no contract has been formed." (emphasis in original)).

FN2. Both parties rely solely on New York law in their moving papers. Where the parties' briefs assume

that New York law controls, such "implied consent" is sufficient to establish choice of law. Nat'l Utility

Serv., Inc. v. Tiffany & Co., No. 07 Civ. 3345(RJS), 2009 WL 755292, at *6 n. 6 (S.D.N.Y. Mar. 20, 2009).

Accordingly, the Court applies New York law throughout this Memorandum and Order.

[5] "The consideration to be paid under a contract is a material term." GEM Advisors, Inc. v. Corporacion Sidenor,

S.A., 667 F.Supp.2d 308, 326 (S.D.N.Y.2009); accord Major League Baseball Props., Inc. v. Opening Day Prods.,

Inc., 385 F.Supp.2d 256, 271 (S.D.N.Y.2005) ("Price or compensation are material terms in a contract requiring

definiteness."); Cleveland Wrecking Co. v. Hercules Constr. Corp., 23 F.Supp.2d 287, 293-94 (E.D.N.Y.1998) (col-

lecting cases); Cooper Square Realty, Inc. v. A.R.S. Mgmt. Ltd., 181 A.D.2d 551, 581 N.Y.S.2d 50, 51 (1st Dep't

1992) ("As price is an essential ingredient of every contract for the rendering of services, an agreement must be def-

inite as to compensation.").

[6] In this case, Plaintiff alleges that Defendant "told Plaintiff that he would be compensated fairly for his efforts,"

and, similarly, that Plaintiff would "be fairly compensated for his idea and efforts." (Compl. 11.) It is therefore

undisputed that the purported oral agreement lacks a specifically alleged price or compensation term. "The failure to

fix a sum certain, however, is not necessarily fatal to a contract." GEM Advisors, 667 F.Supp.2d at 326. The New

York Court of Appeals has held that:

[A] price term is not necessarily indefinite because the agreement fails to specify a dollar figure, or leaves fixing

the amount for the future, or contains no computational formula. Where at the time of agreement the parties have

manifested their intent to be bound, a price term may be sufficiently definite if the amount can be determined ob-

jectively without the need for new expressions by the parties; a method for reducing uncertainty to certainty

might, for example, be found within the agreement or ascertained by reference to an extrinsic event, commercial

practice or trade usage. A price so arrived at would have been the end product of agreement between the parties

themselves.

Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 483, 548 N.Y.S.2d 920, 548 N.E.2d 203

(1989) (citations and internal quotation marks omitted).

2. Analysis

[7] Plaintiff fails to allege adequately the compensation term, and as a result, the purported oral agreement is indefi-

nite as a matter of law.

Plaintiff's complaint states that "[o]ne measure of the fair and reasonable value of Plaintiff's service is the 2-3% eq-

uity interest traditionally paid to persons providing the kind of services provided by Plaintiff to Defendant." (Compl.

38.) Plaintiff, in his opposition memorandum of law, provides a second "alternative," arguing that "[a]n alternative

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measure is the compensation typically paid to a senior management executive in the cable television business per-

forming the duties that Gutkowski did, in part, perform, and that the parties' agreement envisioned Gutkowski would

perform." (Pl.'s Opp'n at 10.)

As an initial matter, these allegations are insufficient to plead the existence of an enforceable contract for the simple

reason that Plaintiff fails to allege that the parties actually agreed to look to any extrinsic event, commercial prac-

tice, or trade usage to ascertain the price. Cf. Rule v. Brine, Inc., 85 F.3d 1002, 1010 (2d Cir.1996) ("[A]n enforcea-

ble contract may be created if the parties agree that a contract term, such as price, is to be set by reference to prevail-

ing industry standards." (emphasis added)); In re Maxwell Commc'n Corp., 198 B.R. 63, 68 (S.D.N.Y.1996)

("Without an agreement as to the amount of compensation, such an agreement is unenforceable."). Thus, neither of

the two alternative compensation measures offered by Defendant constitute "the end product of agreement between

the parties themselves." Cobble Hill, 74 N.Y.2d at 483, 548 N.Y.S.2d 920, 548 N.E.2d 203.

[8] In any event, Plaintiff's proposed "alternative measures" for compensation are insufficient as a matter of law.

Both measures look to custom or usage-the first figure stems from an allegation that a two to three percent equity

interest is "traditionally paid to persons providing the kind of services provided by Plaintiff to Defendant" (Compl.

38 (emphasis added)), while the second figure is drawn from an argument that Plaintiff should be paid "the compen-

sation typically paid to a senior management executive in the cable television business performing the duties that

Gutkowski did, in part, perform, and that the parties' agreement envisioned Gutkowski would perform" (Pl.'s Opp'n

at 10 (emphasis added)). Under New York law, however, "custom and usage evidence must establish that the omit-

ted term is 'fixed and invariable' in the industry in question." Hutner v. Greene, 734 F.2d 896, 900 (2d Cir.1984);

accord Cooper Square Realty, 581 N.Y.S.2d at 51 ("Where no fee is stated, courts may not calculate a fee without

custom and usage evidence to establish an extrinsic standard which is 'fixed and invariable' in the industry in ques-

tion."); see Argent Elec., Inc. v. Cooper Lighting, Inc., No. 03 Civ. 9794(RMB), 2005 WL 2105591, at *5 (S.D.N.Y.

Aug. 31, 2005); Cleveland Wrecking, 23 F.Supp.2d at 294.

Plaintiff fails to allege the existence of a plausible "fixed and invariable" industry standard here. Indeed, Plaintiff's

proposal of two alternative compensation measures renders implausible the existence of any one "fixed and invaria-

ble" industry standard. And each proposal, taken alone, does not rise to the requisite level of a "fixed and invariable"

industry custom. The first measure provides for a two to three percent equity interest, which, by definition, is not

fixed and invariable, and in this case, may speak to a difference of tens of millions of dollars. The second measure is

merely an argument (as it is not found in Plaintiff's complaint) that Plaintiff wants to be paid the amount typically

paid to people performing the duties that he performed here, an argument that likewise fails to render plausible the

existence of any "fixed and invariable" industry standard.

In sum, the Court finds that Plaintiff's allegations that Defendant promised that Plaintiff would be "compensated

fairly" or "fairly compensated," in conjunction with the allegation that "one measure" to calculate this "fair and rea-

sonable value" is a two to three percent equity interest "traditionally paid to persons providing the kind of services

provided by Plaintiff to Defendant," are insufficiently definite as a matter of law. Cf. Deluca v. Bank of Tokyo-

Mitsubishi UFJ, Ltd., No. 06 Civ. 5474(JGK), 2008 WL 857492, at *15 (S.D.N.Y. Mar. 31, 2008) ("New York

courts ... will not give contractual effect to vague generalizations about compensation."). Such a holding is con-

sistent with the many courts that have applied New York law to find similarly vague compensation terms to be in-

definite and therefore unenforceable as a matter of law. See, e.g., United Res. Recovery Corp. v. Ramko Venture

Mgmt. Inc., No. 07 Civ. 9452(RWS), 2009 WL 2746232, at *6 (S.D.N.Y. Aug. 28, 2009) ("Gutierrez's vague and

ambiguous statement that Kohut would be 'taken care of' is too indefinite to form a legally enforceable contract.");

Major League Baseball Props., 385 F.Supp.2d at 271-72 (finding statement "we'll compensate you" too indefinite to

establish a meeting of the minds between the parties); Glanzer v. Keilin & Bloom LLC, 281 A.D.2d 371, 722

N.Y.S.2d 540, 541 (1st Dep't 2001) (finding that a promise to pay the plaintiff "substantial income," "market rate,"

and "equity interest" was too indefinite to support claim for breach of contract); Freedman v. Pearlman, 271 A.D.2d

301, 706 N.Y.S.2d 405, 408 (1st Dep't 2000) (finding alleged promises of "fair compensation" and to "equitably

divide the draw" too indefinite to be enforced); Marraccini v. Bertelsmann Music Group Inc., 221 A.D.2d 95, 644

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N.Y.S.2d 875, 877 (3d Dep't 1996) (finding "that the terms allegedly agreed to were far too indefinite to constitute

an enforceable contract" where the plaintiff "agreed to disclose the details of her proposal in return for an indefinite

payment, confidentiality, an undefined job[,] and an undefined equity stake").

Accordingly, Plaintiff's breach of contract claim, predicated on the existence of an indefinite and therefore une n-

forceable oral agreement, is dismissed.

B. Statute of Frauds

1. Applicable Law

An unwritten agreement "to pay compensation for services rendered ... in negotiating the purchase [of] ... a business

opportunity ... or an interest therein" is void under New York's statute of frauds. N.Y. Gen. Oblig. L. 5-701(a)(10).

"Negotiating" is statutorily defined to include both "procuring an introduction to a party to the transaction" and "as-

sisting in the negotiating or consummation of the transaction." Id.

In Freedman v. Chemical Construction Corp., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 372 N.E.2d 12 (1977), the New

York Court of Appeals held that the statute applied when the services rendered were limited to the provision of

"connections," "ability," and "knowledge" to arrange, in that case, for the defendant "to meet 'appropriate persons'

and somehow to procure for it the opportunity to build [a] multimillion dollar plant." Id. at 267, 401 N.Y.S.2d 176,

372 N.E.2d 12 (internal quotation marks omitted); see also id. (holding that 5-701(a)(10) applies if the "intermedi-

ary's activity is so evidently that of providing 'know-how' or 'know-who,' in bringing about between principals an

enterprise of some complexity or an acquisition of a significant interest in the enterprise").

More recently, in Snyder v. Bronfman, 13 N.Y.3d 504, 893 N.Y.S.2d 800, 921 N.E.2d 567 (2009), the New York

Court of Appeals held that 5-701(a)(10) applied where the plaintiff alleged "that he devoted years of work to find-

ing a business to acquire and causing an acquisition to take place-efforts that ultimately led to [the] defendant's ac-

quisition of his interest in Warner Music." Id. Specifically, the plaintiff in Snyder alleged that he "developed ... a

series of business relationships with key figures in the corporate and investment banking communities," "met with

[the] defendant and [the] defendant's other business associates to discuss possible acquisitions," "worked on several

aborted deals," and "was a major contributor" to the defendant's eventual successful acquisition of Warner Music.

Id. (internal quotation marks omitted). The plaintiff "identified the opportunity, persuaded defendant of its merits,

helped to get debt financing[,] and obtained financial information from the target company [Warner Music.]" Id. The

New York Court of Appeals held that "[i]n seeking reasonable compensation for [these] services, [the] plaintiff ob-

viously seeks to be compensated for finding and negotiating the Warner Music transaction," and that such a "claim

is of precisely the kind the statute of frauds describes." Id. So finding, the court affirmed the Appellate Division's

dismissal of the plaintiff's claims.

2. Analysis

Plaintiff's alleged services fall squarely within the purview of New York's statute of frauds as codified in 5-

701(a)(10) and interpreted by the New York Court of Appeals in Freedman and, more relevantly, in Snyder. "Courts

interpreting section (a)(10) have generally held that where the transaction results in the acquisition of an existing

enterprise or the formation of a new one, it is a business opportunity." Mgmt. Recruiters of Boulder v. Nat'l Econ.

Research Assocs. Inc., No. 02 Civ. 3507(BSJ), 2006 WL 2109478, at *6 (S.D.N.Y. July 24, 2006). Clearly, the for-

mation of the YES Network constitutes a "business opportunity" as contemplated by 5-701(a)(10).

[9] In the face of this clear authority, Plaintiff nevertheless argues that the "services" that he provided to Defendant

went beyond the "services" contemplated by 5-701(a)(10). (See Pl.'s Opp'n at 12-14.) This argument fails under

the clear statutory definition of "negotiating," which, as noted, includes both "procuring an introduction to a party to

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the transaction" and "assisting in the negotiating or consummation of the transaction." N.Y. Gen. Oblig. L. 5-

701(a)(10). Here, as in Snyder, Plaintiff is seeking compensation for services that are easily encompassed by this

definition, such as: (1) identifying and analyzing the business opportunity; (2) identifying and analyzing potential

business partners; (3) and being a "major contributor" to the eventual formation of the YES Network. (See, e.g.,

Compl. 41 ("Plaintiff labored diligently toward the creation of YES. Plaintiff formulated detailed business plans

covering each and every aspect of YES' [s] implementation and management. He cultivated contacts and developed

viability schemes and options.").) Accordingly, Plaintiff's "claim is of precisely the kind the statute of frauds de-

scribes," Snyder v. Bronfman, 13 N.Y.3d 504, 921 N.E.2d 567, and as such, the alleged oral agreement is unenforce-

able under 5-701(a)(10) of New York's statute of frauds. Cf. Zeising v. Kelly, 152 F.Supp.2d 335, 343

(S.D.N.Y.2001) (finding that "[c]ourts in this district have interpreted [similar] activities to fall squarely within the

Statute of Frauds").

[10][11] This deficiency is also fatal to Plaintiff's claims for unjust enrichment and quantum meruit. Under New

York law, such claims are analyzed together as a single quasi-contract claim. Nat'l Utility Serv., Inc. v. Tiffany &

Co., No. 07 Civ. 3345(RJS), 2009 WL 755292, at *9 (S.D.N.Y. Mar. 20, 2009). New York law is equally clear in

holding that "[q]uasi-contract claims are barred by ... 5-701(a)(10)," Sugerman v. MCY Music World, Inc., 158

F.Supp.2d 316, 326 (S.D.N.Y.2001). See Prescient Acquisition Group, Inc. v. MJ Pub. Trust, No. 05 Civ.

6298(PKC), 2006 WL 2136293, at *5 (S.D.N.Y. July 31, 2006) ("In New York, a plaintiff may not assert an action

under a theory of unjust enrichment in order to circumvent the writing requirement of the Statute of Frauds.").

Accordingly, the Court dismisses Plaintiff's claims for breach of contract, unjust enrichment, and quantum mer u-

it.FN3

FN3. Plaintiff, in his opposition memorandum, argues that "New York courts allow part performance to

cure any deficiencies of an oral contract." (Pl.'s Opp'n at 15.) Although New York law provides that certain

oral agreements may be removed from the statute of frauds by the equitable doctrine of partial perfor-

mance, the New York Court of Appeals has "firmly stated" that there is no part performance exception to

5-701(a)(10) of New York's statute of frauds. Belotz v. Jefferies & Co., Inc., 213 F.3d 625, at *2 (2d

Cir.2000) (unpublished summary order) (collecting cases); accord Alliance Media Group, Inc. v. Mogul

Media, Inc., No. 02 Civ. 5252(SLT), 2005 WL 1804473, at *3 n. 1 (E.D.N.Y. July 28, 2005) (collecting

cases); Sea Trade Co. Ltd. v. FleetBoston Fin. Corp., No. 03 Civ. 10254(JFK), 2004 WL 2029399, at *5

(S.D.N.Y. Sept. 9, 2004) (collecting cases).

C. Fraudulent Inducement

[12] Plaintiff's claim for fraudulent inducement likewise fails as a matter of law. "[U]nder New York law, where a

fraud claim arises out of the same facts as plaintiff's breach of contract claim, with the addition only of an allegation

that defendant never intended to perform the precise promises spelled out in the contract between the parties, the

fraud claim is redundant and plaintiff's sole remedy is for breach of contract." Telecom Int'l Am. Ltd. v. AT & T

Corp., 280 F.3d 175, 196 (2d Cir.2001) (citation and internal quotation marks omitted). "In other words, simply

dressing up a breach of contract claim by further alleging that the promisor had no intention, at the time of the co n-

tract's making, to perform its obligations thereunder, is insufficient to state an independent tort claim." Id. (citation

and internal quotation marks omitted) (collecting cases).

Plaintiff alleges no plausible facts in support of his claim for fraudulent inducement other than that "Defendant had

no intention of fulfilling the agreement with Plaintiff, as his subsequent behavior demonstrates [and that] Defendant

knew that his promises and assurances were false when he made them." (Compl. 46; see also id. 1 ("[I]n order to

induce Plaintiff to give his unique idea, and render services otherwise unavailable to Defendant, Defendant kno w-

ingly lied to Plaintiff.... Even at that time, Defendant had no intention of fulfilling his promise.").) Under the law

just stated, these allegations are insufficient, and accordingly, Plaintiff's claim for fraudulent inducement is dis-

missed. Cf. Ebusinessware, Inc. v. Tech. Servs. Group Wealth Mgmt. Solutions, LLC, No. 08 Civ. 9101(PKC), 2009

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WL 5179535, at *10 (S.D.N.Y. Dec. 29, 2009) ("Under New York law, a fraud claim that mirrors a breach of con-

tract claim will not ordinarily stand."); Poon v. Roomorama, LLC, No. 09 Civ. 3224(RMB), 2009 WL 3762115, at

*5 (S.D.N.Y. Nov. 10, 2009) ("[The][p]laintiff's fraud claims are dismissed because 'none of [the plaintiff's fraud]

allegations are distinct from those giving rise to the breach of contract claim [or] relate to facts collateral and extra-

neous to the contract.' " (quoting Metro. Transp. Auth. v. Triumph Adver. Prod., 116 A.D.2d 526, 497 N.Y.S.2d

673, 675 (1st Dep't 1986))); Miller v. Holtzbrinck Publishers, LLC, No. 08 Civ. 3508(HB), 2009 WL 528620, at *4

(S.D.N.Y. Mar. 3, 2009) ("Plaintiff's cause of action for fraudulent inducement sounds in breach of contract and

constitutes an improper effort to circumvent the Statute of Frauds."); Papa's-June Music, Inc. v. McLean, 921

F.Supp. 1154, 1162 (S.D.N.Y.1996) ("Because the only fraud alleged arises out of the same facts that serve as the

basis for the breach of contract claim, [the plaintiff's] fraud claim fails to state a claim for fraud on which relief can

be granted."). FN4

FN4. The Court rejects Plaintiff's argument that he has alleged facts sufficient to implicate the Second Cir-

cuit's opinion in Bridgestone/Firestone, Inc. v. Recovery Credit Servs., 98 F.3d 13 (2d Cir.1996). In that

case, the Second Circuit held that, to maintain a claim sounding in fraud alongside a breach of contract

claim, a party must "(i) demonstrate a legal duty separate from the duty to perform under the contract; or

(ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special

damages that are caused by the misrepresentation and unrecoverable as contract damages." Id. at 20 (cita-

tions omitted) (collecting cases). Plaintiff's complaint fails to allege facts sufficient to satisfy any of these

conditions.

D. Statute of Limitations

[13] New York's statute of limitations for contract and quasi-contract claims is six years, and it accrues upon breach.

See N.Y. C.P.L.R. 213(2); see also ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 360 (2d Cir.1997)

("[I]n New York it is well settled that the statute of limitation for breach of contract begins to run from the day the

contract was breached, not from the day the breach was discovered, or should have been discovered."). New York's

statute of limitations for fraud claims is the longer of six years from the date on which the fraud occurred, or two

years from discovery or the time when the plaintiff should have, with reasonable diligence, discovered the fraud. See

N.Y. C.P.L.R. 213(8).

[14][15] In this case, all of Plaintiff's claims are barred by New York's statute of limitations. As the complaint itself

alleges, Defendant agreed that, in the event he "decide[d] to start a [Yankees] network, Plaintiff would be the one to

build it and either run it or be significantly involved in it." (Compl. 19.) Accordingly, the breach of contract and

fraud could have occurred no later than March 19, 2002, the day that the YES Network debuted. As of that date,

neither of the conditions of the purported oral agreement-that is, Plaintiff (1) running the network, or (2) being sig-

nificantly involved in the network-had been satisfied. Plaintiff did not file this complaint until August 28, 2009,

more than six years later. Accordingly, all of Plaintiff's claims are dismissed as untimely under New York's statute

of limitations.FN5

FN5. A defendant may be estopped from pleading "the Statute of Limitations where [the] plaintiff was in-

duced by fraud, misrepresentations [,] or deception to refrain from filing a timely action." Simcuski v. Saeli,

44 N.Y.2d 442, 448-49, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978). In light of the fact that, according to

Plaintiff's complaint, Plaintiff did not even meet with Defendant after March 1998, the Court finds no equi-

table basis for ignoring New York's statute of limitations.

E. Leave to Amend

Plaintiff, in his opposition memorandum, argues that any dismissal of his complaint should be without prejudice.

(See Pl.'s Opp'n at 24-25.)

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As an initial matter, Plaintiff's argument is procedurally inappropriate, as Plaintiff has failed to make a proper mo-

tion to amend his complaint. Cf. In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006) ("It is

within the court's discretion to deny leave to amend implicitly by not addressing the request when leave is requested

informally in a brief filed in opposition to a motion to dismiss."). In any event, construing Plaintiff's argument as a

motion to amend his complaint, the Court denies the motion on the grounds of futility, as the statute of frauds and

the statute of limitations infirmities discussed above render futile any proposed amendment. See Brady v. Lynes, No.

05 Civ. 6540(DAB), 2008 WL 2276518, at *14 (S.D.N.Y. June 2, 2008) ("Because each of [the][p]laintiff's causes

of actions are deficient for a number of reasons, including the statute of limitations, it would be futile to replead any

part of this Complaint."); Sel-Leb Marketing, Inc. v. Dial Corp., No. 01 Civ. 9250(SHS), 2002 WL 1974056, at *6

(S.D.N.Y. Aug. 27, 2002) ("[I]t is clear that any amendment of the complaint would be futile because of the statute

of frauds infirmity as discussed infra."). These deficiencies, which are fatal to all of Plaintiff's claims, cannot be

cured by amendment.

Furthermore, Plaintiff's opposition memorandum fails to identify any new plausible allegations-absent in the current

complaint, but that would be present in any putative amended complaint-that might remedy the numerous deficien-

cies identified in this Memorandum and Order. This defect also renders futile any amendment of Plaintiff's co m-

plaint. As this Court has held before, "Rule 15(a) [of the Federal Rules of Civil Procedure] is not a shield against

dismissal to be invoked as either a makeweight or a fallback position in response to a dispositive motion." DeBlasio

v. Merrill Lynch & Co., Inc., No. 07 Civ 318(RJS), 2009 WL 2242605, at *41 (S.D.N.Y. July 27, 2009). "At the

very least, a party seeking leave to amend must provide some indication of the substance of the contemplated

amendment in order to allow the Court to apply the standards governing Rule 15(a)." Id. Plaintiff has failed to do so

here, and as such, his leave to amend is denied. Accordingly, all of the claims contained in Plaintiff's complaint are

dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, Defendant's motion is granted and Plaintiff's complaint is dismissed with prejudice. The

motion located at docket number 16 shall be terminated. The Clerk of the Court shall enter judgment accordingly,

and this case shall be closed.

SO ORDERED.

S.D.N.Y.,2010. Gutkowski v. Steinbrenner 680 F.Supp.2d 602

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