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COLE, SCHOTZ, MEISEL,

FORMAN & LEONARD, P.A.


A Professional Corporation
Court Plaza North
25 Main Street
P.O. Box 800
Hackensack, New Jersey 07602-0800
201-489-3000
201-489-1536 Facsimile
Attorneys for Defendants, Lehigh Acquisition
Corp. and Yorkville Advisors, LLC
WOODMONT PROPERTIES, LLC,
Plaintiff(s),
v.
LEHIGH ACQUISITION CORP. and
YORKVILLE ADVISORS, LLC,
Defendant( s).
Fl lED
MAY 1 2 20H
JOHN F. MALONE
J.S.C.
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION: UNION COUNTY
DOCKETNO. UNN-C-15-11
Civil Action
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED
Of Counsel and On the Brief:
Steven R. Klein, Esq.
On the Brief:
Neoma M. Ayala, Esq.
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TABLE OF AUTHORITIES
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMWARY STATEMENT .................................................................................................... 1
STATEMENT. OF FACTS ............................................................................................................. 4
LEGAL ARGUMENT .............................................................
1
.............................. 9
I. RULE 4:6-2(E) MANDATES DISMISSAL WHERE THE
CHALLENGED PLEADWG DOES NOT SET FORTH A LEGALLY
ADEQUATE BASIS FOR RELIEF ....................................................................... 9
II. THE FIRST COUNT OF PLAWTIFF'S COMPLAWT FOR BREACH
OF CONTRACT/SPECIFIC PERFORMANCE MUST BE DISMISSED .......... 10
III. THE SECOND COUNT OF PLAWTIFF'S COMPLAWT FOR
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND
FAIR DEALWG MUST ALSO BE DISMISSED ............................................... 14
IV. PLAWTIFF'S CLAIM FOR PROMISSORY ESTOPPEL FAILS TO
STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED .................... 16
V. PLAWTIFF'S FRAUD CLAIM IS NOT PLEAD WITH THE
REQUISITE SPECIFICITY REQUIRED BYLAW AND SHOULD BE
DISMISSED ......................................................................................................... 18
VI. PLAWTIFF'S COUNT FOR UNJUST ENRICHMENT/QUASI
CONTRACT MUST BE DISMISSED BECAUSE DEFENDANTS
HAVE NOT BEEN UNJUSTLY ENRICHED BY PLAWTIFF'S
PERFORMANCE ................................................................................................. 21
CONCLUSION ............................................................................................................................. 24
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TABLE OF AUTHORITIES
Page(s)
CASES
Ballantyne House Assocs. v. City ofNewark, 269 N.J. Super. 322 (App. Div. 1993) ................ 11
Banco Popular N.A., v. Gandi, 184 N.J. 161 (2005) ................................................................... 6, 9
Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210
(2005) ........................................................................................................... \' .......................... 14
Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105 (App. Div. 1966) ............................ 22
Camden County Energy Recovery Assoc., L.P. v. New Jersey Dep't ofEnv. Prot., 320
N.J. Super. 59 (App. Div. 1999) .............................................................................................. 10
Centex Homes Corporation v. Boag, 128 N.J.Super. 385 (Ch.Div.1974) ..................................... 11
Dechtman v. Sidpaul Corporation, 89 N.J. 547 (1982) ................................................................. 11
Evangelista v. Pub. Serv. Coordinated Transp., 7N.J. Super. 164 (App. Div. 1950) ................... 18
Faces, Inc. v. Kennedy, 185 N.J. Super. 113,124 (Law Div. 1981), affd, 185 N.J. Super.
77 (App. Div. 1982) ................................................................................................................. 18
Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3rd Cir. 2004) .......................................... .15
Fleischer v. James Drug Stores, 1 N.J. 138 (1948) ................................................... : .................... 11
Gennari v. Weichert Co. Realtors, 148 N.J. 582 (1997) ................................................................ 19
GFS/Morristown Limited Partnership v. Vector Whippany Associates, 2009 WL 857002
(N.J. Super. App. Div.) ............................................................................................................ 16
Henderson v. The Hertz Corp., 2005 WL 4127090 (N.J. Super. App. Div.) (June 22,
2006) ...... .................................................. 13, 16
Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105 (App. Div. 2009) ............................. 19, 21
Houseman v. Dare, 405 N.J.Super 538 (App.Div.2009) ............................................................... 11
Hyland v. Kirkman, 157 N.J. Super. 565 (Ch. Div. 1978) ............................................................ 18
Jones v. Intelli-Check, Inc., 274 F. Supp.2d 615 (D.N.J. 2003) ...................................................... 6
K-T Corp. v. JB Associates, 2009 WL 2365970 (App. Div.)(Aug. 4, 2009) .......................... 12, 13
11
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TABLE OF AUTHORITIES- CONTINUED
Page(s)
Karl's Sales and Svc., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487 (App. Div.), certif.
denied, 127 N.J. 548 (1991) ..................................................................................................... 14
Levinson v. D' Alfonso & Stein, 320N.J. Super. 312 (App. Div. 1999) ...................................... 19
Lobiondo v. O'Callaghan, 357 N.J. Super. 488 (App. Div. 2003) ............................................. ( . .17
Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat. Bank, 163 N.J. Super.
463 (App. Div. 1978), certif denied, 79 N.J. 488 (1979) ......................................................... 17
Mariani v. 94 Broadway, Inc., 374 N.J. Super 588 (App. Div. 2005) ..................................... 11, 12
McQuittyv. General Dynamics Corp., 204 N.J. Super. 514 (App. Div. 1985) ............................. 15
Morales v. Santiago, 217 N.J. Super. 496 (App. Div. 1987) ......................................................... 12
Noye v. Hoffman La-Roche, Inc., 238 N.J. Super. 430 (App. Div. 1990), cert. denied 122
N.J. 146 (1990) ........................................................................................................................ 15
Printing Mart-Morristown v. Sharp Electronics, 116 N.J. 739 (1989) .......................................... 10
R. & J. Auto Body v. Miller, 72 N.J. Super. 207 (App. Div. 1962) ................................................ 9
Rieder v. State Dep't ofTransp., 221 N.J. Super. 547 (App. Div. 1987) ........................................ 9
State ofNew Jersey v. Qwest Communications, 387 N.J. Super. 469 (App. Div. 2006) .............. 19
Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388 (App. Div. 1989) ...................... 20
TCBY Yogurt v. Resorts International Hotel, Inc., 307 N.J. Super. 461,469 (App. Div.
1998) ........................................................................................................................................ 17
Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237 (App. Div. 2007) ................ 19, 21
U.S. Bank Nat. Ass'n v. Hylton, 403 N.J. Super. 630 (2008) ....................................................... 22
Wade v. Kessler Institute, 172 N.J. 327 (2002) ............................................................................. 15
Wanaque Borough Sewerage Auth. v. Township of West Milford, 144 N.J. 564 (1996) ............. 22
Washington Constr. Co., Inc. v. Spinella, 8 N.J. 212 (1951) ........................................................ 14
Washington Savings Bank v. First Fidelity Bank, N.A.,268, N.J. Super. 597 (App. Div.
1993) ........................................................................................................................................ 13
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TABLE OF AUTHORITIES- CONTINUED
Page(s)
RULES
R. 4:5-8 .............................................................................................................................. 18, 19,24
R. 4:6-2 .......................................................................................................................... 9, 10, 16,24
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PRELIMINARY STATEMENT
This Memorandum of Law is submitted on behalf of Defendants, Lehigh Acquisition
Corp. ("Lehigh") and Yorkville Advisors, LLC ("Y arkville") (collectively Lehigh and Yorkville
are the "Lehigh Entities"), in support of their motion, in lieu of an Answer, to dismiss the
Complaint of Plaintiff, Woodmont Properties, LLC ("Plaintiff' or "Woodmont"), for failure to
state a claini upon which relief can be granted and for failure to plead fraud with the requisite
specificity. Plaintiffs five (5) count Complaint against the Lehigh Entities fails to state a single
cause of action. While Plaintiff may be unhappy that it was unable to close on the sale of a piece
of real property with Lehigh, Plaintiff has no basis to assert any contract and/or tort claims
against the Lehigh Entities. Fortunately for the Lehigh Entities, Plaintiffs allegations are belied
by the facts
1
including the language of the operative documents in this case, and Plaintiffs
retaliatory and malicious Complaint unquestionably should be summarily dismissed by the Court
at this juncture.
Plaintiff has absolutely no basis or theory upon which to assert any contract and/or tort
claims against the Lehigh Entities. As an initial matter, Plaintiffs claim for breach of
contract/specific performance must fail. Plaintiffs request for specific performance is untenable
because there is simply no underlying contractual obligation to enforce. The operative letter of
intent in this case expired according to its own terms and specific performance cannot be granted
where there is no underlying enforceable agreement warranting such extraordinary relief. Thus
Plaintiffs first count should be dismissed.
Plaintiffs claim for breach of the implied covenant of good faith and fair dealing also
fails as a matter of law. As a threshold matter, there is no contract here pursuant to which an
1
All the "facts" are taken from Plaintiffs Complaint and are deemed true only for purposes of
this motion.
48687/0003-7584451 v4
implied covenant can arise. There also is absolutely no evidence presented by Plaintiff to
demonstrate that Lehigh acted in bad faith during the negotiation period. Rather, the objective
evidence shows that Lehigh was negotiating with Plaintiff in good faith after the letter of intent
had been signed and throughout the month ofNovember and was ready, willing and able to sell
the property to Plaintiff. After the letter of intent terminated according to its own terms, and a"
final purchase and sale agreement had not been signed, Lehigh opted to confirm termination of
the deal. Given the foregoing, there is absolutely no evidence of bad faith on the part of the
Lehigh Entities and the second count of Plaintiffs Complaint must also be dismissed.
Plaintiffs claims for promissory estoppel and unjust enrichment/quasi contract also fail
as a matter of law and should be dismissed by this Court. In its Complaint, Plaintiff alleges that
Lehigh breached alleged promises by failing to sell the property and further alleges that the
Lehigh Entities were unjustly enriched as a result of services rendered by Plaintiff. In reality,
however, Plaintiff cannot succeed on either of these claims. All services provided by Plaintiff, as
referenced in ~ ~ 1 7 and 91 of its Complaint, were provided in connection with a joint venture that
resulted in the LOI, which was subsequently terminated. Contrary to Plaintiffs allegations,
therefore, Plaintiffs claims, if any, would arise under the letter of intent-but it was properly
terminated. Thus, Plaintiffs allegations fail to state the elements of promissory estoppel and/or
unjust enrichment/quasi contract claims, and the Court therefore should dismiss counts three and
five of the Complaint.
Lastly, Plaintiffs fourth count for fraud also cannot survive the within motion to dismiss.
Plaintiff fails to allege any concrete misrepresentations by the Lehigh Entities that would support
a claim of fraud. Moreover, Plaintiffs fraud claim has not been plead with the specificity
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required by law to place the Lehigh Entities on notice of the allegations against them. As such,
count four of Plaintiffs Complaint should be dismissed.
In sum, Plaintiffs claims in this matter are fictitious and without merit. The Complaint is
fraught with pleading deficiencies and does not set forth any legal foundation upon which relief
can be granted. For all of the reasons set forth above, and those discussed more fully in detail
below, the Lehigh Entities respectfully submit that the Court should dismiss Plaintiffs
Complaint in its entirety, with prejudice, for failure to state a claim upon which relief may be
granted.
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STATEMENT OF FACTS
2
Plaintiff filed the within Complaint on or about February 3, 2011, approximately six (6)
weeks after the Lehigh Entities' provided written confirmation that the parties' deal had expired.
Plaintiffs Complaint alleges five causes of action, entitled breach of contract/specific
performance, breach of the implied covenant of good faith and fair dealing, promissory estoppel,
fraud and unjust enrichment/quasi contract.
According to the Complaint, on or about July 8, 2009, Plaintiff met with the Lehigh
Entities in their Jersey City, New Jersey office to discuss a potential joint venture concerning real
property owned by Lehigh. Cmplt. The real property was located at 555 South Street,
Cranford, New Jersey (the "Property"). Cmplt. At that time, the Lehigh Entities were
seeking a joint venture partner to help obtain approvals for development of the Property, which
was located in an area in need of redevelopment. Cmplt. 17. The parties, however,
ultimately decided to form a limited liability company and agreed to draft an operating
agreement to define the parties' rights and responsibilities. Cmplt.
Ultimately, however, the parties' were unable to reach agreement on the terms of the
operating agreement and instead the Lehigh Entities (more specifically Lehigh, the Property
owner) offered to sell the Property to Woodmont. Cmplt. This culminated in a letter of
intent between the parties dated November 3, 2010 (the "LOI"). A true copy ofthe LOI is
attached to the Klein Cert. as Exhibit A The LOI was non-binding. See Klein Cert. Ex. A
Pursuant to the LOI, Plaintiff was to purchase the Property from Lehigh for a total of four
million dollars ($4,000,000). Cmplt. Klein Cert. Ex. A The LOI also set forth specific
2
The Statement of Facts contains a summary of the pertinent facts set forth in Plaintiffs
Complaint and the documents referenced in the Complaint, which are attached as exhibits to the
Certification of Steven R. Klein, Esq. (the "KleinCert.").
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obligations for both parties and terms anticipated to be memorialized in a formal purchase and
sale agreement. The LOI stated: "The purpose of this non-binding Letter oflntent is to set forth
the key provisions under which the Seller makes an offer to sell the Property." Klein Cert. Ex.
A.
The LOI addressed various issues relating to the Property including the purchase price,
termination of the agreement, closing matters, approvals related to the Property, conditions
precedent to closing and risk of loss. See Klein Cert. Ex. A. Specifically, the LOI also
established a fifty-five (55) day due diligence period for Woodmont to inspect the Property and
also explicitly stated that a formal purchase and sale agreement was to be executed within
twenty-five (25) days ofthe signing of the non-binding LOI. See Klein Cert. Ex. A.
The LOI expressly provided that:
The Parties recognize and understand that a formal Purchase
Agreement is intended to be drafted and executed within twenty-
five (25) days from the date this Letter of Intent is fully executed.
If a binding Purchase Agreement has not been executed within
twenty-five (25) days, neither party shall have any further
obligation to the other party.
Klein Cert. Ex. A (emphasis added).
The LOI also provided that both parties are to negotiate in "good faith" and that the terms
in the LOI "shall not be binding until such time a formal, written Purchase Agreement is
negotiated and executed by the parties." Klein Cert. Ex. A; Cmplt. ~ 3 2 .
On or about November 9, 2010, pursuant to the LOI, Plaintiff circulated a draft purchase
and sale agreement (the "Purchase Agreement") to the Lehigh Entities for review. Cmplt. ~ 3 5 .
The parties held multiple telephone conferences, which are referenced in Plaintiff's Complaint,
to discuss changes to the proposed Purchase Agreement. Cmp1t. ~ 3 7. As a result of those
telephonic conferences, on or about November 15, 2010, William Gardner, Esq., an in-house
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attorney for the Lehigh Entities, forwarded an email to Steve Santola of Woodmont, providing
that the draft Purchase Agreement was unacceptable because it failed to accurately reflect the
terms and conditions set forth in the LOI. A true copy of Mr. Gardner's November 15,2010
email is attached to the Klein Cert. as Exhibit B.
3
The email described conflicts between the LOI
and the Purchase Agreement. For example, the Purchase Agreement drafted by Plaintiff required
the deposit be paid to Plaintiffs attorney, while the LOI explicitly provided that the deposit be
paid to Lehigh. See Klein Cert. Ex. B. Additionally, the draft Purchase Agreement did not
accurately reflect the termination period that was clearly spelled out in the LOI. See Klein Cert.
Ex. B. The draft Purchase Agreement also failed to incorporate the tolling provisions in the LOI
with respect to the appeals process and did not include a provision requiring the payment of the
purchase price to Lehigh. See Klein Cert. Ex. B. The parties, however, continued their
negotiations as may be seen from the Complaint, ~ ~ 3 7 , 38, 40.
In furtherance ofthe parties' negotiations, on or about November 18,2010 Mr. Santola of
Plaintiff sent a second draft Purchase Agreement to Mr. Gardner and Louis Karp, outside counsel
to Lehigh. Cmplt. ~ 3 7 . A true copy ofthe November 18,2010 email referenced in the
Complaint is attached to the Klein Cert. as Exhibit C.
4
The email indicated that the draft
Purchase Agreement had been revised "utilizing additional provisions from the LOI." Klein
Cert., Ex. C. Upon receipt of the second draft Purchase Agreement, Lehigh immediately
3
It is well settled that on a motion to dismiss, a court may consider a document that is integral to
or explicitly referenced in a complaint without converting the motion into a motion for summary
judgment. Jones v. Intelli-Check, Inc., 274 F. Supp.2d 615, 625 (D.N.J. 2003). See also Banco Popular
N.A., v. Gandi, 184 N.J. 161, 183 (2005). Since Plaintiff explicitly references the.conference calls it had
with the Lehigh Entities after the draft Purchase Agreement was circulated, documents reflecting the
parties' discussions can and should be considered in support of the Lehigh Entities' motion to dismiss.
4
See fn 3 infra.
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reviewed the document and identified areas of concern that were subsequently addressed in
multiple conference calls between the parties. Cmplt. ~ 3 8 .
As of November 23, 2010, just five (5) days before the LOI was set to terminate, Lehigh
and Plaintiff were still negotiating the terms of the Purchase Agreement and trying to resolve the
outstanding issues in the second draft provided by Mr. Santola on November 18,2010. As
Plaintiff indicates in its Complaint, the parties had'issues including the deposit to be provided
under the Purchase Agreement. Cmplt. ~ 3 8 . On November 23, 2010, Mr. Gardner sent David
Bernhaut, the broker, an email discussing one of the business issues Lehigh had with the
Purchase Agreement regarding which party would hold the deposit. A true copy of the
November 23,2010 email from Mr. Gardner is attached hereto as Exhibit D.
5
The parties thereafter were able to resolve the deposit issues, but additional issues still
needed to be resolved before the Purchase Agreement could be signed. Mr. Gardner confirmed
this fact in an email to Mr. Santola dated November 24, 2010, which is referenced in Paragraph
43 of Plaintiffs Complaint, and provides, in pertinent part, that, "[w]e have not yet provided
written comments because the drafts circulated by Woodmont contain terms and conditions that
differ materially from the terms and conditions set forth in the LOI. We have had several calls to
discuss these differences." A true copy ofthe November 24, 2010 email from Mr. Gardner is
attached to the Klein Cert. as Exhibit E. However, by November 28,2010, the LOI had expired
according to its terms. Reinstatement of the LOI was always a possibility, but the LOI was never
reinstated.
Plaintiffs Complaint brazenly alleges that the parties agreed to extend the twenty-five
(25) day period by which a formal Purchase Agreement was to be executed (Cmplt. ~ ~ 4 0 , 41 ),
5
See fn 3 infra.
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but no evidence memorializing the phantom extension has been proffered by Plaintiff in the
Complaint or otherwise. In fact, an email from Mr. Santola on December 3, 2010 confirms quite
the opposite--that Amir Elbaz of Lehigh had not consented to an extension of the twenty-five day
period provided for in the LOI. A true copy of the December 3, 2010 email from Mr. Santola is
attached hereto as Exhibit F.
Tlie two draft Purchase Agreements and exchange of e-mails and telephone calls
concerning those drafts, as a matter of law, demonstrate the parties-including Defendants-
were engaged in good faith negotiations. Despite these negotiations, the parties were unable to
negotiate and execute an acceptable Purchase Agreement within twenty-five (25) days of the
execution of the LOI. Three weeks after the LOI terminated by its own terms, there was still no
Purchase Agreement executed, and on December 20, 2010, Lehigh elected to confirm
termination of the deal and notified Plaintiff that the LOI had expired according to its terms.
Cmplt. ~ 4 9 . A true copy of Lehigh's December 20, 2010 letter is attached to the Klein Cert. as
Exhibit G.
Plaintiff filed its five (5) count Complaint and Notice of Lis Pendens six weeks after
Lehigh notified Plaintiff that the LOI had expired according to its own terms.
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LEGAL ARGUMENT
I. RULE 4:6-2(E) MANDATES DISMISSAL WHERE THE
CHALLENGED PLEADING DOES NOT SET FORTH A
LEGALLY ADEQUATE BASIS FOR RELIEF.
Rule 4:6-2 allows a party, on motion, to seek the dismissal of a pleading on specifically
enumerated grounds. The motion must be made solely on the information contained in the
pleading in question or else it will be d e e m e d ~ t o be a motion for summary judgment.
6
Specifically, R. 4:6-2 provides, in pertinent part, as follows:
Every defense, legal or equitable, in law or fact, to a claim for
relief in any complaint, counterclaim, cross-claim, or third-party
complaint shall be asserted in the answer thereto, except that the
following defenses, unless otherwise provided by R. 4:6-3, may at
the option ofthe pleader be made by motion, with briefs: (a) lack
of jurisdiction over the subject matter, (b) lack of jurisdiction over
the person, (c) insufficiency of process, (d) insufficiency of service
of process, (e) failure to state a claim upon which relief can be
granted, (f) failure to join a party without whom the action cannot
proceed, as provided by R. 4:28-1. If a motion is made raising any
of these defenses, it shall be made before pleading if a further
pleading is to be made.
R. 4:6-2 (emphasis added).
On a motion made pursuant toR. 4:6-2(e), the court looks at the complaint, confining its
inquiry "to a consideration of the legal sufficiency of the alleged facts apparent on the face of the
challenged claims." Rieder v. State Dep't ofTransp., 221 N.J. Super. 547, 552 (App. Div. 1987)
(quoting R. & J. Auto Body v. Miller, 72 N.J. Super. 207,211 (App. Div. 1962)). Thus, where
the pleading does not set forth an adequate basis for relief on its face, R. 4:6-2( e) mandates
dismissal. Banco Popular North America v. Gandi 184 N.J. 161, 166 (2005) (stating that "[i]f
the complaint states no basis for relief and discovery would not provide one, dismissal is the
appropriate remedy.") In determining whether or not a plaintiff's complaint sets forth an
6
But see fn. 3, infra.
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adequate basis for relief, the Court should "search in depth and with liberality to ascertain
whether the fundament of a cause of action may be gleaned even from an obscure statement of
claim." Printing Mart-Morristown v. Sharp Electronics, 116 N.J. 739, 746 (1989) (internal
citations omitted). That said, dismissal under R. 4:6-2(e) should not be denied or delayed to
allow the moving party the opportunity to establish a claim as "[ d]iscovery is intended to lead to
facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of
1
a legal theory." Camden County Energy Recovery Assoc., L.P. v. New Jersey Dep't ofEnv.
Prot., 320 N.J. Super. 59, 64 (App. Div. 1999).
As set forth in detail below, Plaintiffs Complaint fails to state a claim for which relief
can be granted as against the Lehigh Entities. When, as here, "no matter how 'generously' or
'indulgently' the [counts at issue] are scrutinized," the conclusion is inescapable that they are
simply not cognizable at law, dismissal is warranted. Id. at 65. No amount of discovery can cure
this patent defect. As set forth in detail below, dismissal of the Complaint as against the Lehigh
Entities, with prejudice, is appropriate.
7
II. THE FIRST COUNT OF PLAINTIFF'S COMPLAINT FOR
BREACH OF CONTRACT/SPECIFIC PERFORMANCE
MUST BE DISMISSED.
In the first count of its Complaint, Plaintiff alleges that the Lehigh Entities are liable for
breach of contract/specific performance. However, Plaintiffs count for breach of
7
If this Court is inclined to deny the Lehigh Entities' motion to dismiss Plaintiffs Complaint,
this Court should, alternatively, grant the motion to dismiss Plaintiff's Complaint as to Yorkville.
Plaintiff has plead absolutely no viable facts that would lead to Yorkville's liability. The operative
agreement in this case, the LOI, was signed only by Plaintiff and Lehigh (because Lehigh is the owner of
the Property), and negotiations therefore were between those two parties only for the Purchase
Agreement. It would be inequitable to hold Yorkville responsible for some alleged breach by Lehigh.
Accordingly, in the event this Court will not grant the motion to dismiss as to both Defendants, the
Lehigh Entities respectfully request that the motion to dismiss be granted in its entirety as to the
Complaint against Yorkville.
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contract/specific performance is untenable because there is simply no underlying contractual
obligation that exists to be breached or enforced. The LOI expired according to its own terms
and neither a breach nor specific performance can be found where there is no underlying
enforceable agreement warranting such extraordinary relief. Accordingly, Plaintiffs first count
for breach of contract/specific performance should be dismissed with prejudice.
"Specific performance is !!.Q! an automatic remedy for a breach of contract ... "
Ballantyne House Assocs. v. City ofNewark, 269 N.J. Super. 322, 334 (App. Div. 1993)
(emphasis added) (finding that specific performance should not have been ordered without
reference to equitable considerations.) Rather, it is a "discretionary remedy". Marioni v. 94
Broadway, Inc., 374 N.J. Super 588, 599 (App. Div. 2005). Under New Jersey law, a party
seeking specific performance must demonstrate that: (1) there is a valid enforceable agreement,
(2) the essential elements of the agreement must be clear, definite, certain and complete, (3) the
moving party has no adequate remedy at law, and (4) "an order requiring performance of the
contract will not result in inequity to the offending party, reward the recipient for unfair dealing
or conflict with public policy." Houseman v. Dare, 405 N.J.Super 538, 542-543
(App.Div.2009); see also Dechtman v. Sidpaul Corporation, 89 N.J. 547, 552 (1982). A court
should not order specific performance if "the remedy at law is adequate and complete and as
efficient as the remedy of specific enforcement." Fleischer v. James Drug Stores, 1 N.J. 138,
146 (1948); see also Centex Homes Corporation v. Boag, 128 N.J.Super. 385,389 (Ch.Div.1974)
(denying specific performance because damages were readily measurable and remedy at law was
wholly adequate).
In order to establish a right to specific performance "a plaintiff must demonstrate that the
contract in question is valid and enforceable at law" and "that the terms of the contract are
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expressed in such fashion that the Court can determine, with reasonable certainty the duties of
each party and the conditions under which performance is due." Marioni, 374 N.J. Super. at
598-99 (internal citations omitted). The Court in Marioni went on to note that "the right to
specific performance turns not only on whether the plaintiff has demonstrated a right to legal
relief but also whether the performance of the contract represents an equitable result." Id. at 599.
In the c a ~ e ofK-T Corp. v. JB Associates, 2009 WL 2365970 *4 '(App. Div.)(Aug. 4,
2009), the Appellate Division was considering whether a letter of intent relating to the separation
of several businesses constituted a valid contract between the parties such that specific
performance was appropriate. The Court stated that "[w]hether a preliminary agreement such as
a letter of intent is 'binding is a matter of the parties' intent.'" I d. (citing Morales v. Santiago,
217 N.J. Super. 496, 501 (App. Div. 1987)(finding that where agreement lacked essential terms
of agreement and expressly contemplated later signing of contract there was evidence that parties
did not intend to be bound by agreement.) The Appellate Division continued that "if the parties
intend that their preliminary agreement be subject to the terms of their later contract, they are not
bound by their preliminary agreement." Id. at 4. (internal citations omitted)
The Appellate Division in K-T Corp. ultimately found that the letter of intent at issue
clearly indicated that it did not intend to be a binding agreement. Id. at 5. The letter opened with
the phase "[t]he purpose of this Letter oflntent ... is to set forth certain non-binding
understandings and agreements between" the parties. Id. The letter of intent also specified that
until the "realignment" of the companies was complete, nothing would change between the
parties. Id. The Court found that the drafter made "a concerted effort to foreclose any argument
that the parties intended the letter to be a binding agreement even if no formal contract was
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subsequently executed." Id. at 6. The Appellate Division thus found that the trial court erred in
granting specific performance of the letter of intent and reversed. I d. at 7.
Applying the foregoing legal and equitable principles to this case, specific performance is
not an available remedy for Lehigh's alleged breach of the LOI. The LOI, the only operative
signed contract between Lehigh and Plaintiff, was a non-binding term sheet that offered terms
and conditions under which Leliigh would sell the Property if the terms provided for in the LOI
were met, just like the LOI inK-T Corp. The LOI specifically proviqed that:
The Parties recognize and understand that a formal Purchase
Agreement is intended to be drafted and executed within
twenty-five (25) days from the date this Letter of Intent is fully
executed. If a binding Purchase Agreement has not been
executed within twenty-five (25) days, neither party shall have
any further obligation to the other party.
Klein Cert. Ex. A (emphasis added). The parties' intent not to be bound by the LOI could not be
more clear.
Lehigh endeavored, in good faith, to negotiate the terms of a Purchase Agreement with
Plaintiff. This Court need simply review the draft Purchase Agreements and exchange of
electronic mail concerning these drafts to reach this inescapable conclusion.
8
Ultimately,
however, an acceptable Purchase Agreement was not negotiated by the parties within the twenty-
five day period provided for in the LOI. Subsequently, more than three weeks after the LOI
8
This Court can and should find as a matter of law that Defendants acted in good faith. See
generally Henderson v. The Hertz Corp., 2005 WL 4127090 *10 (N.J. Super. App. Div.) (June 22,
2006)(finding that as a matter oflaw plaintiffs claim failed to set forth claim for breach of the covenant
of good faith and fair dealing, as well as other claims, and trial court properly granted defendant's motion
to dismiss); Washington Savings Bank v. First Fidelity Bank, N.A.,268 N.J. Super. 597, 602 (App. Div.
1993 )(finding that conduct of plaintiff and employee was so egregious as to allow court to conclude that
as a matter of law plaintiff did not pay checks in good faith and summary judgment was proper on
plaintiffs claim.)
13
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terminated by its own terms (because a Purchase Agreement had not been executed within 25
days), on December 20, 2010 Lehigh confirmed termination ofthe deal. See Klein Cert. Ex. G.
As the Complaint, LOI and related documents confirm, the LOI terminated according to
its own terms. Thus there is no underlying contractual obligation that could be breached and/or
upon which specific performance can or should be granted by this Court. Plaintiff is, in effect,
asking this Court to revive the parties' obligatiohs under the LOI and then to award specific
performance. However, "[c]ourts generally should not tinker with a finely drawn and precise
contract entered into by experienced business people that regulates their financial affairs."
Brunswick Hills RacguetClub, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005)
Thus, Lehigh cannot be held to the terms of a bargain that expired according to its own terms
before complete performance was achieved. See Karl's Sales and Svc., Inc. v. Gimbel Bros.,
Inc., 249 N.J. Super. 487,493 (App. Div.), certif. denied, 127 N.J. 548 (1991) ("Where the
terms of a contract are clear and unambiguous, there is no room for interpretation or
construction, and the courts must enforce those terms as written."); Washington Constr. Co., Inc.
v. Spinella, 8 N.J. 212,217 (1951) (noting that courts will not create a better agreement for either
party than the parties themselves have created).
Given the foregoing, Plaintiffs claim for breach of contract/specific performance as
against Lehigh must be dismissed.
III. THE SECOND COUNT OF PLAINTIFF'S COMPLAINT
FOR BREACH OF THE IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING MUST ALSO BE DISMISSED.
The second count of Plaintiffs Complaint alleging breach of the implied covenant of
good faith and fair dealing must also be dismissed against Lehigh. Plaintiff has presented no
objective credible evidence of bad faith conduct on the part of Lehigh that might entitle it to
damages or specific performance. To the contrary, the exhibits attached to the Complaint and
14
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referenced therein (and attached to the Klein Cert.) demonstrate manifest good faith in the
attempt to agree upon a Purchase Agreement. Given this fatal flaw in the Complaint,
Defendants' motion to dismiss count two of the Complaint should be granted.
In New Jersey, there is an implied covenant of good faith and fair dealing read into all
contracts. See Wade v. Kessler Institute, 172 N.J. 327, 340 (2002). Thus, to sustain a claim for
breach the implied covenant of good faith and fair dealing, tliere must be a contract, whether
express or implied, upon which such a claim is premised. See Noye v. Hoffman La-Roche, Inc.,
238 N.J. Super. 430, 434 (App. Div. 1990), cert. denied 122 N.J. 146 (1990) (stating "in the
absence of a contract, there can be no b:reach of an implied covenant of good faith and fair
dealing"); see also McQuitty v. General Dynamics Corp., 204 N.J. Super. 514, 520 (App. Div.
1985). "Under the implied covenant of good faith and fair dealing, neither party shall do
anything which will have the effect of destroying or injuring the right of the other party to
receive the fruits of the contract." Fields v. Thompson Printing Co., Inc., 363 F.3d 259, 270 (3rd
Cir. 2004). Here, the contract (i.e. LOI) terminated and any implied covenant terminated with it.
As to the express covenant in the LO I prior to termination, the factual evidence
demonstrates that Lehigh complied with the good faith requirement both under applicable New
Jersey law and the LOI. This may be plainly seen from a review of the draft Purchase
Agreements and electronic mail exchange. Lehigh attempted to negotiate the terms of a final
Purchase Agreement with Plaintiff, but the negotiations bore no fruit in the time period the
parties allotted themselves for the negotiation. This is reflected in the conference calls and
discussions between the parties that Plaintiff references in its pleading. See Cmplt.
In fact, the evidence shows that Lehigh was negotiating in good faith with Plaintiff throughout
the month of November and was ready, willing and able to sell the Property to Plaintiff at that
15
48687/0003-7584451 v4
time. However, three weeks after the LOI terminated according to its own terms, and a final
Purchase Agreement still had not been signed, Lehigh opted to confirm termination of the deal.
Given the foregoing, there is absolutely no evidence of bad faith on the part of Lehigh proffered
by Plaintiff in the Complaint and the second count of Plaintiff's Complaint therefore must be
dismissed pursuant to R. 4:6-2( e) because it fails to state a claim upon which relief can be
granted. See Limited Partnership v. Vector Whippany Associates, 2009 WL
857002 * 17 (N.J. Super. App. Div.) (finding that where there was "no pattern of evasion" and
the parties were "merely engaged in negotiations that never bore fruit" and were actively trying
to reach an agreement, there was no evidence of bad faith.); Henderson v. The Hertz Corp., 2005
WL 4127090 *10 (N.J. Super. App. Div.) (June 22, 2006)(finding that as a matter oflaw
plaintiffs claim failed to set forth claim for breach of the covenant of good faith and fair dealing,
as well as other claims, and trial court properly granted defendant's motion to dismiss).
Given the foregoing, Lehigh respectfully submits that the Court should dismiss the
second count of Plaintiff's Complaint for breach of the implied covenant of good faith and fair
dealing as against Lehigh.
IV. PLAINTIFF'S CLAIM FOR PROMISSORY ESTOPPEL
FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED.
In addition to dismissing the foregoing claims, this Court should also dismiss Plaintiffs
claim for promissory estoppel against the Lehigh Entities because there were no clear and
definite promises made by the Lehigh Entities that are actionable.
To establish a claim for promissory estoppel, a plaintiff must show:
(1) a clear and definite promise by the promisor; (2) the promise
was made with the expectation that the promise would rely
thereon; (3) the promisee must in fact reasonably rely on the
promise, and ( 4) detriment of a definite and substantial nature must
be incurred in reliance on the promise.
16
48687/0003-7584451 v4
Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat. Bank, 163 N.J. Super. 463
(App. Div. 1978), certif denied, 79 N.J. 488 (1979); accord Pop's Cones, Inc. t/a TCBY Yogurt
v. Resorts International Hotel, Inc., 307 N.J. Super. 461,469 (App. Div. 1998). The rationale
behind the doctrine of promissory estoppel is to avoid substantial injustice if a promise is not
enforced. Resorts International Hotel, Inc., 307 N.J. Super. at 469. However, "[t]oo liberal an
application of the copcept will result in' unwitting and unintended undermining of the traditionai
rule requiring consideration for a contract." Malaker Corp. Stockholders Protective Comm.,l63
N.J. Super. at 484. Application of the foregoing legal principles to Plaintiffs Complaint,
warrants dismissal of Plaintiffs third count for promissory estoppel.
The only allegations Plaintiff makes in support of its claim for promissory estoppel are
that the Lehigh Entities promised to make Plaintiff its joint venture partner and that the Lehigh
Entities agreed to sell Plaintiff the Property. However, Plaintiff and Lehigh entered into the LOI
that then governed those parties' relationship. Any prior promises merged into the LOI. The
reality here further is that Plaintiff and Lehigh were in active negotiations to sell the Property
pursuant to the LOI, but the parties ultimately could not agree on the terms of the Purchase
Agreement necessary to close the transaction. Once the LOI terminated according to its own
terms, no party was left with any binding obligations or affirmative duty to the other party. That
is what the LOI states. A claim for promissory estoppel cannot possibly be sustained under these
irrefutable facts. See Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 500 (App. Div. 2003)
(finding that where plaintiff was attempting to utilize the doctrine of promissory estoppel to
obtain specific performance of contract and no clear and convincing evidence was presented at
trial, judgment for specific performance must be reversed.) Given the foregoing, count three of
17
48687/0003-758445lv4
Plaintiffs Complaint against the Lehigh Entities must be dismissed for failure to state a claim
upon which relief can be granted.
V. PLAINTIFF'S FRAUD CLAIM IS NOT PLEAD WITH THE
REQUISITE SPECIFICITY REQUIRED BYLAW AND
SHOULD BE DISMISSED.
Plaintiffs Complaint is filled with bluster and flowery prose regarding the strength and
1 conviction of its claims, but those allegations fall far short of the legal and factual bases
necessary to support a fraud claim. Plaintiff fails to offer any misrepresentations or
concealments by the Lehigh Entities that would support a claim of fraud. Moreover, Plaintiffs
fraud claim has not been plead with the specificity required by law to place the Lehigh Entities
on notice of the allegations against them. As such, count four of Plaintiffs Complaint should be
dismissed.
Rule 4:5-8 states, "[in] all allegations of misrepresentation, fraud, mistake, breach of
trust, willful default, or undue influence, particulars of the wrong, W!th dates and items if
necessary, shall be stated insofar as practicable. Malice, intent, knowledge, and other conditions
of mind of a person may be alleged generally." R. 4:5-8. Stated otherwise, "fraud is a
conclusion of law and may not be charged in general terms; the pleadings must state the facts
relied on as constituting fraud." Hyland v. Kirkman, 157 N.J. Super. 565, 584 (Ch. Div. 1978).
The purpose of this rule is "to require the pleader to state the facts which are relied on as
constituting the wrong with enough particularity to enable the person charged to deny or
disprove or explain these facts." Evangelista v. Pub. Serv. Coordinated Transp., 7 N.J. Super.
164, 168-69 (App. Div. 1950); see also Faces, Inc. v. Kennedy, 185 N.J. Super. 113,124 (Law
Div. 1981), affd, 185 N.J. Super. 77 (App. Div. 1982) (holding that plaintiffs complaint was
procedurally insufficient because it failed to allege intent on the part of defendant to have
plaintiff rely on alleged misrepresentations). This rule generally requires the plaintiffto state the
18
48687/0003-7584451 v4
"who, what, when and where" of the alleged misrepresentation, as well as how it caused injury to
the plaintiff. See generally State ofNew Jersey v. Qwest Communications, 387 N.J. Super. 469,
484-85 (App. Div. 2006). Accordingly, courts may dismiss a pleading based on failure to
sufficiently plead a claim pursuant toR. 4:5-8. See Levinson v. D' Alfonso & Stein, 320 N.J.
Super. 312 (App. Div. 1999) (dismissing a fraud claim with prejudice because the particulars of
the alleged fraud were not properly plead).
To prove a cause of action for common law fraud, a plaintiff must establish "(1) a
material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the
defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance
thereon by the other person; and (5) resulting damages." Triffin v. Automatic Data Processing,
Inc., 394 N.J. Super. 237, 246 (App. Div. 2007) (citing Gennari v. Weichert Co. Realtors, 148
N.J. 582, 610 (1997); accord Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App.
Div. 2009) Here, Plaintiff fails to set forth facts with particularity as to these elements and
therefore cannot support a cause of action for fraud.
In this case, with few exceptions, Plaintiff has provided only the "who", and not the
"what, when and where" to support its fraud claim. Plaintiffs major factual allegation in support
of its fraud claim is that the Lehigh Entities made alleged representations to Plaintiff that the
parties would enter into a joint venture with respect to the Property. Of course, as stated
previously, the parties' discussions resulted in a LOI and as such no fraud claim can be based on
these pre-LOI discussions. See generally Triffin, 394 N.J. Super. at 246.
The Complaint concedes that the parties tried to consummate an operating agreement for
a joint venture, but no such agreement was ever reached. Instead, the parties agreed and opted to
enter into the LOI. Thus, any past representations by the Lehigh Entities about the joint venture
19
48687/0003-758445lv4
cannot form the basis of a fraud claim because there were no material misrepresentations made
by the Lehigh Entities, nor was there an intent to deceive on the part of the Lehigh Entities. As
set forth in the Complaint, the parties jointly opted to pursue a different investment vehicle and
the Lehigh Entities should not subsequently be punished for these business decisions made by
the parties.
The second basis for Plaintiffs fraud claim is premised on the fact that the Lehigh
Entities made alleged misrepresentations to Plaintiff that led Plaintiff to believe that Lehigh
would sell the Property to Plaintiff. Casting aside the fact that Plaintiff fails to identify with
specificity any of the misrepresentations it alleges the Lehigh Entities made, Plaintiff cannot
establish the core elements of a fraud claim. Plaintiff cannot show the existence of a material
misrepresentation of a present or past fact or that such statements were made knowing they were
false and with the intent they be relied on. See Stochastic Decisions, Inc. v. DiDomenico, 236
N.J. Super. 388, 395 (App. Div. 1989).
Indeed, when the parties negotiated and executed the LOI, the parties (Lehigh and
Woodmont) agreed the sale would occur pursuant to a purchase and sale agreement negotiated
and executed within the 25 day period prescribed by the LOI. Both parties agreed, in writing,
that the terms contained in the LO I would "not be binding until such time a formal, written
Purchase Agreement is negotiated and executed by the parties." See Klein Cert. Ex. A. During
the time the parties were endeavoring to negotiate the Purchase Agreement, Lehigh's intent to
sell the Property to Plaintiff was manifest. Lehigh even continued to pursue reinstatement of the
transaction with Plaintiff for approximately three weeks after the expiration of the twenty-five
(25) day period provided for in the LOI.
20
48687/0003-758445lv4
Lehigh's representations to Plaintiff that it intended to sell the Property were true at the
time they were made to Plaintiff. There is no contrary evidence. Plaintiff does not identify any
specific representations made by the Lehigh Entities that it now alleges were false and that were
intended to mislead Plaintiff. Accordingly, facts establishing the element of scienter are lacking
from the Complaint, and the fraud count fails as a result. See Triffin, 394 N.J. Super. at 246;
Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009) (finding that a
complaint lacking specific facts to establish defendants had knowledge of the falsity of their
statements fails to state a claim for fraud.) Given this inescapable deficiency in the pleading and
the absence of any legal basis for Plaintiffs fraud claim, the Lehigh Entities' motion to dismiss
count four should be granted.
In sum, Plaintiff has in no way placed the Lehigh Entities on notice of the claims against
them such that an adequate defense can be prepared. As a result, Plaintiff has not met the
heightened pleading requirements for a fraud claim and has not alleged facts demonstrating the
elements of its fraud claim. Given the foregoing, count four of Plaintiffs Complaint should be
dismissed with prejudice.
VI. PLAINTIFF'S COUNT FOR UNJUST
ENRICHMENT/QUASI CONTRACT MUST BE DISMISSED
BECAUSE DEFENDANTS HAVE NOT BEEN UNJUSTLY
ENRICHED BY PLAINTIFF'S PERFORMANCE.
Plaintiffs claim for unjust enrichment/quasi contract fails because the Lehigh Entities
have received no tangible benefit from Plaintiffby which the Lehigh Entities have been unjustly
enriched. It would be patently absurd to allow Plaintiff to proceed on its claim for unjust
enrichment where there is no evidence that the Property or Defendants have been enhanced by
Plaintiffs services. As alleged, the parties in questions pursued a joint venture, LLC and then
sale of the Property. Lehigh and Woodmont's agreement to pursue a sale of the Property was
21
48687/0003-7584451 v4
evidenced by the LOI. They did not agree that Woodmont could pursue an unjust enrichment
claim for past services. Thus Plaintiff cannot properly plead a cause of action for unjust
enrichment/quasi contract and this count too should be dismissed with prejudice.
Quasi contractual obligations rest on a "legal fiction and are not contract obligations at
all .... " Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 108 (App. Div. 1966)
Generally speaking courts "employ the fiction of [q]uasi or contract with caution."
Callano, 91 N.J. Super. at 108. Under New Jersey law, "[t]o recover under [the doctrine of
unjust enrichment], the plaintiff must prove that the defendant received a benefit, and that
retention of the benefit without payment therefor[ e) would be unjust." U.S. Bank Nat. Ass'n v.
Hylton, 403 N.J. Super. 630, 642 (2008) (citations omitted). In fact, the "key element of a quasi-
contract claim is that one party has been unjustly enriched at the expense of another." W anague
Borough Sewerage Auth. v. Township of West Milford, 144 N.J. 564, 575 (1996). The recovery
ofthe plaintiff thus is typically measured by the amount defendant has been enriched by
plaintiffs performance. See Wanaque Borough Sewerage Auth., 144 N.J. at 575. Applying
these elements to the case at bar, Plaintiff cannot successfully prove its quasi contract claim.
Plaintiffs allegation of the Lehigh Entities' purported liability for quasi contract rests on
Plaintiffs baseless assertions that it was never paid for services rendered to the Lehigh Entities
with respect to the Property. However, Plaintiff cannot proverbially have its cake and eat it too.
Plaintiff alleges that Lehigh breached its contractual obligations by failing to sell the Property
under the LOI. Now, Plaintiff attempts to get a second bite at the apple by holding the Lehigh
Entities liable under a quasi contractual theory. In reality, however, Plaintiff cannot succeed on
either its breach of contract claim or its quasi-contract claim. All of the services provided by
Plaintiff, as referenced in '1!'1!17 and 91 of its Complaint, were provided in connection with a joint
22
48687/0003-7584451 v4
CONCLUSION
For all of the foregoing reasons, the Court should grant the Lehigh Entities' motion to
dismiss the Complaint, in its entirety, with prejudice, for failure to state a claim for which relief
can be granted pursuant toR. 4:6-2(e) and for failure to plead fraud with the requisite specificity
required by R. 4:5-8.
.-
DATED: May 12,2011
24
48687/0003-758445Iv4
Respectfully submitted,
COLE, SCHOTZ, MEISEL,
FORMAN & LEONARD, P.A.
Attorneys for The Lehigh Entities Lehigh
Acquisition Corp. and Y arkville
Advisors, LLC
v J.l . yr;e
By: __ _____ _
STEVEN R. KLEIN

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