KEY ITEMS, INC. v. ULTIMA DIAMONDS, INC. (S.D.N.Y. 8-17-2010)

rt of Defendant Ultima 2008, Ltd.'s Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6), dated Aug. 11, 2009 (Docket Item 15), ("Defs' Mem."), at 5).

"To form a valid contract under New York law, there must be an offer, acceptance, consideration, mutual assent and intent to be bound." Leibowitz v. Cornell Univ., 584 F.3d 487, 507 (2d Cir. 2009), citing Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004). Under the Uniform Commercial Code, "[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." N.Y. U.C.C. § 2-204(a). The Global Defendants contend that Key Items does not adequately plead the existence of a contract because it does not annex a contract to its complaint or include "details about any parties, terms, dates or provisions of any contract" (Defs' Mem. at 5).

Both parties rely on New York law and do not claim that the law of any other forum applies; "such `implied consent . . . is sufficient to establish choice of law.'" Motorola Credit Corp. v. Uzan, 388 F.3d 39, 61 (2d Cir. 2004), quoting Krumme v. West Point Stevens, Inc., 238 F.3d 133, 138 (2d Cir. 2000). Accordingly, New York law applies to this matter.

Drawing all inferences in Key Items' favor, however, the complaint alleges that Ultima Diamonds ordered goods from Key Items which Key Items delivered, that the parties agreed on the quantity, pricing method, product specifications and delivery dates for the jewelry and that this agreement was confirmed via e-mail by Key Items. Key Items has, thus, alleged all the essential elements of a breach of contract claim — offer, acceptance, consideration, and mutual assent. See McFadden v. Clarkeson, CV 09-0112, 2010 WL 2076001 at *4 (E.D.N.Y. May 18, 2010) (mutual assent exists where "there has been a meeting of the minds between the parties on all essential terms of the agreement."); Lomaglio Assocs. Inc. v. LBK Mktg. Corp., 94 Civ. 3208 (KTD), 1999 WL 705208 at *6 (S.D.N.Y. Sept. 10, 1999) (Duffy, D.J.), citing Fakhoury Enters., Inc. v. J.T. Distribs., 94 Civ. 2729 (PKL), 1997 WL 291961 at *3 (S.D.N.Y. June 2, 1997) (Leisure, D.J.) ("In a contract for a sale of goods, the essential terms are quantity, price, and time and manner of delivery. The fact that one or more of these terms is left open is not fatal"). Key Items has also properly alleged an intent to be bound to the oral agreement. The factors relevant to such a determination are: "(1) any explicit statement that only a writing shall be binding; (2) partial performance; (3) complete negotiation of all terms; and (4) whether the subject matter of the contract is one that normally requires a written agreement."Pearce v. Manhattan Ensemble Theater, Inc., 528 F. Supp. 2d 175, 179 (S.D.N.Y. 2007) (Wood, D.J.), citing R.G. Grp., Inc. v. Horn Hardart Co., 751 F.2d 69, 75-76 (2d Cir. 1984). In this case, there was no statement that the parties would not be bound absent a written agreement, Key Items alleges that it delivered goods pursuant to the alleged contract, and, as noted above, nearly all essential terms were negotiated. Key Items has, therefore, properly alleged the existence of a contract. See Bazak Int'l Corp. v. Tarrant Apparel Grp., 378 F. Supp. 2d 377, 389-90 (S.D.N.Y. 2005) (Marrero, D.J.) (e-mail confirming oral agreement created issues of fact concerning whether parties intended to be bound).

Although Key Items does properly allege the existence of a contract, it does not allege that either or both of the Global Defendants were parties to the contract. Although the complaint states generally that all corporate defendants "were involved in the transactions described herein" (Compl. ¶ 6) and alleges that the Global Defendants were involved in the return of the goods at issue (Compl. ¶ 17), it alleges that Ultima Diamonds placed the initial order, that the confirmation of the order was sent to Maierovitz, and annexes invoices for the jewelry that are addressed to Ultima Diamonds (Compl. ¶¶ 10-12 and Exs. A — B). Furthermore, although Key Items alleges that "Maierovitz agreed that Defendants would accept the remaining portion of the [November 15, 2008] Order" (Compl. ¶ 14) and that "Defendants had previously agreed to pay for" the 100 rings returned on February 9, 2009 (Compl. ¶ 18), these vague statements are insufficient to properly allege the existence of a contract between Key Items and the Global Defendants. See Rodriguez v. It's Just Lunch, Int'l, 07 Civ. 9227 (SHS) (KNF), 2010 WL 685009 at *10 (S.D.N.Y. Feb. 23, 2010) (Fox, M.J.) (Report Recommendation) (in order to withstand dismissal, "a claimant must demonstrate the existence of an enforceable contract, through specific allegations about the parties to the agreement, the date of the contract's formation, and the contract's `major terms.'"); Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 416 (S.D.N.Y. 2009) (Scheindlin, D.J.) (allegation that "[plaintiff] agreed to pay for [defendant's] services on an hourly basis" was insufficient to properly allege the existence of a binding contract); Lehman v. Garfinkle, 08 Civ. 9385 (SHS), 2009 WL 2973207 (S.D.N.Y. Sept. 16, 2009) (Stein, D.J.) (plaintiff did not properly allege the existence of a contract between plaintiff and certain individual defendants where the complaint alleged that "`the Defendants' made various promises to him" and the exhibits attached to plaintiff's complaint showed that promises were made by other defendants).

a. Alter Ego

Key Items contends that it has, nonetheless, adequately alleged that the Global Defendants are parties to the contract because the Global Defendants are the alter egos of Ultima Diamonds and Maierovitz (Pl's Opp. at 3). Key Items does not expressly allege this theory in the complaint, nor do the allegations in the complaint support such a theory.

The doctrine of alter ego or "piercing the corporate veil" liability permits the owner of a corporation or a corporate affiliate, under certain limited circumstances, to be held liable for the corporation's obligations. See, e.g., Morris v. N.Y.S. Dep't of Taxation Fin., 82 N.Y.2d 135, 140-41, 623 N.E.2d 1157, 1160, 603 N.Y.S.2d 807, 810 (1993); accord Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933 F.2d 131, 138 (2d Cir. 1991) ("The doctrine . . . is invoked `to prevent fraud or to achieve equity.'"), quoting Int'l Aircraft Trading Co. v. Mfrs. Trust Co., 297 N.Y. 285, 292, 79 N.E.2d 249, 252 (1948); see also JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. Trade Servs., Inc., 306 F. Supp. 2d 482, 485 (S.D.N.Y. 2004) (Koeltl, D.J.), quoting Walkovszky v. Carlton, 18 N.Y.2d 414, 417, 223 N.E.2d 6, 7, 276 N.Y.S.2d 585, 587 (1966) ("New York courts will pierce the corporate veil `whenever necessary to prevent fraud or achieve equity.'").

In order to pierce the corporate veil, a party must establish that "(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury." JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. Trade Servs., Inc.,supra, 306 F. Supp. 2d at 485; see also, e.g., Freeman v. Complex Computing Co., Inc., 119 F.3d 1044, 1052 (2d Cir. 1997); Thrift Drug, Inc. v. Universal Prescription Adm'rs, 131 F.3d 95, 97 (2d Cir. 1997); Am. Fuel Corp. v. Utah Energy Dev. Co., Inc., 122 F.3d 130, 134 (2d Cir. 1997); Am. Protein Corp. v. AB Volvo, 844 F.2d 56, 60 (2d Cir. 1988); TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339, 703 N.E.2d 749, 751, 680 N.Y.S.2d 891, 893 (1998); Morris v. N.Y.S. Dep't of Taxation Fin., supra, 82 N.Y.2d at 141, 623 N.E.2d at 1160-61, 603 N.Y.S.2d at 810-11; Lowendahl v. Balt. Ohio R.R. Co., 247 A.D. 144, 156-57, 287 N.Y.S. 62, 75-76 (1st Dep't 1936), aff'd, 272 N.Y. 360, 6 N.E.2d 56 (1936). There is a corollary of the doctrine referred to as "reverse" piercing under which a corporation, in some circumstances, may be liable for the obligations of its owners. See Am. Fuel Corp. v. Utah Energy Dev. Co., supra, 122 F.3d at 134.

The determination of whether the corporate veil should be pierced requires a fact-specific inquiry; there are no bright-line rules. See MAG Portfolio Consultant, GMBH v. Merlin Biomed Group LLC, 268 F.3d 58, 63 (2d Cir. 2001); Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., supra, 933 F.2d at 139, quoting Am. Protein Corp. v. AB Volvo, supra, 844 F.2d at 60 ("Applying [the relevant] factors to the infinite variety of situations that might warrant disregarding the corporate form is not an easy task because disregarding corporate separateness is a remedy that `differs with the circumstances of each case.'"),

New York courts consider the following factors in deciding whether the requisite domination is present:

(1) the absence of the formalities and paraphernalia that are part and parcel of the corporate existence, i. e., issuance of stock, election of directors, keeping of corporate records and the like, (2) inadequate capitalization, (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes, (4) overlap in ownership, officers, directors, and personnel, (5) common office space, address and telephone numbers of corporate entities, (6) the amount of business discretion displayed by the allegedly dominated corporation, (7) whether the related corporations deal with the dominated corporation at arms length, (8) whether the corporations are treated as independent profit centers, (9) the payment or guarantee of debts of the dominated corporation by other corporations in the group, and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own.

JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. Trade Servs., Inc., supra, 306 F. Supp. 2d at 486, quoting Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., supra, 933 F.2d at 139; see also MAG Portfolio Consultant, GMBH v. Merlin Biomed Group LLC, supra, 268 F.3d at 63.

In addition, a court will pierce the corporate veil only when a "fraud or wrong" has been committed. Am. Fuel Corp. v. Utah Energy Dev. Co., Inc., supra, 122 F.3d at 134 n. 2, citing Morris v. N.Y.S. Dep't of Taxation Fin., supra, 82 N.Y.2d at 141, 623 N.E.2d at 1160-61, 603 N.Y.S.2d at 810-11 ("[T]he New York Court of Appeals held that a conjunctive test was applicable and required a showing of both domination and fraud or wrong to justify the piercing of a corporate veil."); EED Holdings v. Palmer Johnson Acquisition Corp., 228 F.R.D. 508, 512 (S.D.N.Y. 2005) (Sweet, D.J.); Smoothline Ltd. v. N. Am. Foreign Trading Corp., 00 Civ. 2798 (DLC), 2002 WL 31885795 at *9 (S.D.N.Y. Dec. 27, 2002) (Cote, D.J.). However, proof of the five elements of common law fraud is not required to satisfy the "fraud or wrong" requirement. See Rotella v. Derner, 283 A.D.2d 1026, 1027, 723 N.Y.S.2d 801, 802 (4th Dep't 2001), quoting Lederer v. King, 214 A.D.2d 354, 354, 625 N.Y.S.2d 149, 150 (1st Dep't 1995) ("A plaintiff is `not required to plead or prove actual fraud in order to pierce the corporate defendant's corporate veil, but [must prove] only that the individual defendant's control of the corporate defendant was used to perpetrate a wrongful or unjust act toward plaintiff.'"); see generally JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. Trade Servs., Inc., supra, 306 F. Supp. 2d at 486; Smoothline Ltd. v. N. Am. Foreign Trading Corp., supra, 2002 WL 31885795 at *11.

As an initial matter, Key Items does not allege that Ultima Diamonds is owned by either of the Global Defendants or that Maierovitz owns any of the corporate defendants.

Moreover, even if I construe Key Items' allegation that the corporate defendants are "singularly controlled and dominated by" Maierovitz as an allegation that he owned the three corporations and that Key Items has, therefore, adequately alleged the first element — domination and control of the corporation — it has not alleged any facts suggesting that Maierovitz or the Global Defendants used the corporate form to perpetrate a fraud or other tort. Freeman v. Complex Computing Co., supra, 119 F.3d at 1053 (even where defendant completely controlled corporation, "New York law will not allow the corporate veil to be pierced in the absence of a showing that this control was used to commit wrong, fraud, or the breach of a legal duty, or a dishonest and unjust act in contravention of plaintiff's legal rights. . . ." (inner quotes omitted)); see Badian v. Elliott, 165 F. App'x 886, 889-90 (2d Cir. 2006) (second element adequately alleged where plaintiff claimed individual defendant transferred corporate assets without consideration to render corporation unable to perform contractual obligations owed to plaintiff). Although Key Items alleges that Ultima Diamonds breached its contract, there are no allegations that Maierovitz or the Global Defendants used the corporate form to breach the contract or to frustrate contractual obligations. Use of the corporate form to avoid personal liability is not improper, see Gartner v. Snyder, 607 F.2d 582, 586 (2d Cir. 1979); Walkovszky v. Carlton, supra, 18 N.Y.2d at 417, 223 N.E.2d at 7, 276 N.Y.S.2d at 587; Bartle v. Home Owners Cooperative, 309 N.Y. 103, 106, 127 N.E.2d 832, 833 (1955); see generally LeBoeuf, Lamb, Greene MacRae, L.L.P. v. Worsham, 185 F.3d 61, 66 (2d Cir. 1999), and even if that were Maierovitz's sole reason for doing business through Ultima Diamonds, that fact would not justify imposing personal liability on him.

Key Items argues that it is entitled to additional discovery before its alter ego claim is dismissed. The cases cited in support of this proposition, however, are distinguishable. In Bd. of Mgrs of Arches at Cobble Hill Condominium v. Hicks Warren, LLC, 18 Misc.3d 1103(A) at *6-*7, 856 N.Y.S.2d 22 (Table) (Sup. Ct. 2007), the court declined to grant summary judgment dismissing plaintiff's alter ego claim because plaintiff was entitled to certain discovery in order to "prove the factual allegations in its complaint;" the plaintiff was not seeking discovery in order to draft an allegation. Although pre-dismissal discovery was ordered in First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 177 (2d Cir. 1998), that case involved a challenge to plaintiff's theory of subject matter jurisdiction. In resolving such a motion, facts and evidence outside the pleadings are routinely considered and a plaintiff must establish subject matter jurisdiction by a "preponderance of the evidence." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (emphasis added). Limited discovery, thus, may be appropriate prior to dismissal for lack of subject matter jurisdiction. See Filus v. Lot Polish Airlines, 907 F.2d 1328, 1332 (2d Cir. 1990). These standards are not applicable to this motion under Fed.R.Civ.P. 12(b)(6), which is directed only to the sufficiency of the pleadings. Indeed, courts routinely dismiss alter ego claims pursuant to Fed.R.Civ.P. 12(b)(6). See White v. Nat'l Home Prot., Inc., 09 Civ. 4070 (SHS), 2010 WL 1706195 at *4-*5 (Apr. 21, 2010) (Stein, D.J.); Koninkliike Philips Elecs N.V. v. The ADS Group, 694 F. Supp. 2d 246, 252 (S.D.N.Y. 2010) (Stearns, D.J.); Two Kids From Queens, Inc. v. J S Kidswear, Inc., 09-3690 (DRH) (AKT), 2010 WL 475319 at *3 (E.D.N.Y. Feb. 8, 2010).

Plaintiff actually cites First City, Texas-Houston, N.A. v. Rafidain Bank, 281 F.3d 48 (2d Cir. 2002). The cited portion of that decision, however, is a quoted passage from First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172 (2d Cir. 1998) that appears in a section describing the procedural background of the case.

b. De Facto Merger

Key Items also claims that, although it did not have a contract with the Global Defendants, the Global Defendants are responsible for Ultima Diamonds' obligations under a theory of de facto merger. "The de facto merger doctrine creates successor liability when the transaction between the purchasing and selling companies is in substance, if not in form, a merger." New York v. Nat'l Serv. Indus., Inc., 460 F.3d 201, 205 (2d Cir. 2006); Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 45 (2d Cir. 2003).

Courts consider the following factors in determining whether ade facto merger has occurred: "(1) continuity of ownership; (2) cessation of ordinary business and dissolution of the acquired corporation as soon as possible; (3) assumption by the purchaser of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and (4) continuity of management, personnel, physical location, assets, and general business operation." New York v. Nat'l Serv. Indus., supra, 460 F.3d at 209; accord Cargo Partner AG v. Albatrans, Inc., supra, 352 F.3d at 46; Barrack, Rodos Bacine v. Ballon Stoll Bader Nadler, P.C., 08 Civ. 02152 (PKL), 2008 WL 759353 at *7 (S.D.N.Y. Mar. 20, 2008) (Leisure, D.J.). Except for the first factor, "[n]ot all of these elements are necessary to find a de facto merger." Cargo Partner AG v. Albatrans, Inc., supra, 352 F.3d at 46, citing Fitzgerald v. Fahnestock Co., 286 A.D.2d 573, 574-75, 730 N.Y.S.2d 70, 71 (1st Dep't 2001); TMS Entm't Ltd. v. Madison Green Entm't Sales, Inc., 03 Civ. 0517 (GBD), 2005 WL 476663 at *3 (S.D.N.Y. Feb. 28, 2005) (Daniels, D.J.). Indeed, "the Court should consider the factors `in a flexible manner that disregards mere questions of form and asks whether, in substance, it was the intent of the successor to absorb and continue the operation of the predecessor.'" Barrack, Rodos Bacine v. Ballon Stoll Bader Nadler, P.C., supra, 2008 WL 759353 at *7, quoting AT S Transp., LLC v. Odyssey Logistics Tech. Corp., 803 N.Y.S.2d 118, 119, 22 A.D.3d 750, 752 (2d Dep't 2005).

Nevertheless, the first factor — continuity of ownership — is essential to a finding of a de facto merger. New York v. Nat'l Serv. Indus., supra, 460 F.3d at 214; Cargo Partner AG v. Albatrans, Inc., supra, 352 F.3d at 46; see also Barrack, Rodos Bacine v. Ballon Stoll Bader Nadler, P.C., supra, 2008 WL 759353 at *8; Colon v. Multi-Pak Corp., 477 F. Supp. 2d 620, 626 (S.D.N.Y. 2007) (Sweet, D.J.); In re New York City Asbestos Litig., 15 A.D.3d 254, 256, 789 N.Y.S.2d 484, 487 (1st Dep't 2005) ("[B]ecause continuity of ownership is the essence of a merger, it is a necessary element of any de facto merger finding. . . .") (internal quotation marks omitted).

Key Items does not allege that Maierovitz owned Ultima Diamonds, Ultima 2008 or Global Jewellery Solutions. As noted above, it alleges only that the three companies "are singularly controlled and dominated by" Maierovitz (Compl. ¶ 6). In the absence of an allegation of continuity of ownership, Key Items has not stated a claim for de facto merger. In addition, although Key Items alleges that the Global Defendants had the same business address as Ultima Diamonds, that all three entities are Ontario corporations, and that Maierovitz controlled all three entities, it does not allege that Ultima Diamonds ceased operating, or that the Global Defendants assumed Ultima Diamonds' liabilities. Thus, even if continuity of ownership were alleged, the paucity of allegations concerning the other relevant factors defeats any de facto merger claim.

Accordingly, because Key Items does not allege the existence of a contract between itself and the Global Defendants and because it does not adequately allege a basis for piercing the corporate veil or the existence of a de facto merger, Key Items' breach of contract claim against the Global Defendants is dismissed.

2. Account Stated

Key Items next alleges that the Global Defendants are responsible for the price of jewelry delivered to Ultima Diamonds on a theory of account stated. Specifically, they allege that because the invoice for $112,917.96 annexed to the complaint "represents a valid and accurate account stated," all defendants are responsible for this amount (Compl. ¶¶ 27-28). The Global Defendants argue that because Key Items never sent this invoice to them, Key Items' account stated claim against them must be dismissed (Defs' Mem. at 8).

An account stated "is an agreement, express or implied, . . . independent of the underlying agreement, as to the amount due on past transactions." Leepson v. Allan Riley Co., Inc., 04 Civ. 3720 (LTS), 2006 WL 2135806 at *4 (S.D.N.Y. July 31, 2006) (Swain, D.J.) (internal quotations marks omitted); LLT Int'l, Inc. v. MCI Telecomms. Corp., 69 F. Supp. 2d 510, 516 (S.D.N.Y. 1999) (Sweet, D.J.) ("an account stated refers to an express or implied promise by a debtor to pay a stated sum of money which the parties have agreed is the amount due"); Kirk v. Heppt, 532 F. Supp. 2d 586, 594 (S.D.N.Y. 2008) (Sweet, D.J.), quoting LeBoeuf, Lamb, Greene MacRae, LLP v. Worsham, supra, 185 F.3d at 64 ("An account stated is `an agreement between the parties to an account based upon prior transactions between them . . .'"). "To state a claim for an account stated, the plaintiff must plead that: `(1) an account was presented; (2) it was accepted as correct; and (3) debtor promised to pay the amount stated.'" IMG Fragrance Brands, LLC v. Houbigant, Inc., 679 F. Supp. 2d 395, 411 (S.D.N.Y. 2009) (Preska, D.J.), quoting The Haskell Co. v. Radiant Energy Corp., 05-CV-4403, 2007 WL 2746903 at *12 (E.D.N.Y. Sept. 19, 2007); Air Atlanta Aero Eng'g Ltd. v. SP Aircraft Owner I, LLC, 637 F. Supp. 2d 185, 198 (S.D.N.Y. 2009) (Marrero, D.J.); Leepson v. Allan Riley Co., Inc., supra, 2006 WL 2135806 at *4; see Sony Music Entm't Inc. v. Kall, 01 Civ. 3530 (NRB), 2001 WL 1356201 at *2 (S.D.N.Y. Nov. 2, 2001) (Buchwald, D.J.) ("In order to prove a prima facie case for an account stated, plaintiffs must show that they sent invoices to the defendant to which defendant never objected but never paid.").

"The second and third requirements . . . may be implied if `a party receiving a statement of account keeps it without objecting to it within a reasonable time or if the debtor makes partial payment.'" IMG Fragrance Brands, LLC v. Houbigant, Inc.,supra, 679 F. Supp. 2d at 411, quoting LeBoeuf, Lamb, Greene MacRae, L.L.P. v. Worsham, supra, 185 F.3d at 64; Air Atlanta Aero Eng'g Ltd. v. SP Aircraft Owner I, LLC, supra, 637 F. Supp. 2d at 199; see White Diamond Co., Ltd. v. Castco, Inc., 436 F. Supp. 2d 615, 624 (S.D.N.Y. 2006) (Sweet, D.J.) ("Both partial payment and assurances of payment after receipt of an account stated are evidence of assent to the account stated").

The complaint does not allege that any statement was delivered to the Global Defendants. Although Key Items alleges that "[p]laintiff sent Defendants an itemized statement of monies due and owing" (Compl. ¶ 21), the document to which this paragraph refers is annexed to the complaint and addressed to Ultima Diamonds (Compl. Ex. D). See Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002) (Marrero, D.J.) ("If a plaintiff's allegations are contradicted by [an exhibit to the complaint], those allegations are insufficient to defeat a motion to dismiss"); 2 Broadway LLC v. Credit Suisse First Boston Mortg. Capital LLC, 00 Civ. 5773 (GEL), 2001 WL 410074 at *9 (S.D.N.Y. Apr. 23, 2001) (Lynch, D.J.) ("Plaintiff's conclusory allegations . . . are contradicted by the documents attached to the Complaint, and are therefore insufficient to defeat the motion to dismiss."). Because there is no allegation that the statement was sent to the Global Defendants, any failure to object to its terms cannot impose liability on a theory of account stated. See Newburgh Winnelson Co. v. Baisch Mech., Inc., 30 A.D.3d 495, 496, 817 N.Y.S.2d 359, 360 (2d Dep't 2006) (granting summary judgment dismissing plaintiff's account stated claim where "plaintiff had not sold any goods to [defendant], nor had it submitted any invoices and/or statements to [defendant]").

Furthermore, even if Key Items had sent the account to the Global Defendants, there can be no liability because, as noted above, there was no underlying promise to pay by the Global Defendants. See Air Atlanta Aero Eng'g Ltd. v. SP Aircraft Owner I, LLC, supra, 637 F. Supp. 2d at 198 (plaintiff "cannot use the mechanism of an account stated claim to circumvent the lack of a contract between the parties. Without an express agreement or some other form of indebtedness between [defendant] and [plaintiff], a cause of action for an account stated is unavailable."); White Diamond Co., Ltd. v. Castco, Inc., supra, 436 F. Supp. 2d at 623 ("an `account stated' . . . must be founded upon previous transactions creating the relationship of debtor and creditor"); see LeBoeuf, Lamb, Greene MacRae, L.L.P. v. Worsham, supra, 185 F.3d at 64-66 (denying law firm's motion for summary judgment on their account stated claims where material issues of fact existed with respect to whether defendant was the "client for whom all the legal services were performed or that he had agreed to pay for all such services rendered . . .").

Thus, Key Items does not allege that they delivered any statement to the Global Defendants or that the Global Defendants had any underlying obligation to pay Key Items. Furthermore, as noted above, Key Items does not allege a basis for the Global Defendants' liability for Ultima Diamonds' debts under alter ego or de facto merger theories. Key Items' account stated claims against the Global Defendants are, therefore, dismissed.

C. Motion to Amend

Key Items requests that it be granted leave to amend if the Global Defendants' motion to dismiss is granted (Pl's Opp. at 14-15). It has not, however, submitted a proposed amended pleading. The Global Defendants contend that granting leave to amend would be futile because the allegations in plaintiff's opposition papers do not state a claim upon which relief can be granted (Defs' Reply at 10).

Generally, "a complete copy of the proposed amended complaint must accompany the motion [to amend] so that both the Court and opposing parties can understand the exact changes sought." Segatt v. GSI Holding Corp., 07 Civ. 11413 (WHP), 2008 WL 4865033 at *4 (S.D.N.Y. Nov 3, 2008) (Pauley, D.J.); accord In re Refco Capital Mkts., Ltd. Brokerage Customer Sec. Litig., 06 Civ. 643 (GEL), 07 Civ. 8686 (GEL), 07 Civ. 8688 (GEL), 2008 WL 4962985 at *3 (S.D.N.Y. Nov. 20, 2008) (Lynch, D.J.); 6 Charles A. Wright, Arthur R. Miller Mary K. Kane, Federal Practice Procedure § 1485 at 688 (2d ed. 1990). As discussed above, Key Items' complaint lacks certain essential allegations necessary to state a claim against the Global Defendants. Without the benefit of a proposed amended pleading, it is not possible to know whether Key Items could make these allegations consistent with Fed.R.Civ.P. 11. Because I cannot determine whether an amended complaint could cure the deficiencies identified above, I conclude that the more efficient course is to defer any assessment of an amended pleading until Key Items submits a definite proposed amended pleading.

Key Items' application to amend its complaint is, thus, denied without prejudice to renewal upon the submission of a formal motion pursuant to Fed.R.Civ.P. 15.

IV. Conclusion

Accordingly, for all the foregoing reasons, the Global Defendants' motion to dismiss the claims against them is granted and Key Items' application to amend its complaint is denied without prejudice to renewal by way of formal motion.

SO ORDERED