10-5288-cv
LeVista, Inc. v. Ranbaxy Pharms., Inc.


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of December, two thousand eleven.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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LEVISTA, INCORPORATED,
                                 Plaintiff-Appellant,

                                  v.                                     No. 10-5288-cv

RANBAXY PHARMACEUTICALS, INCORPORATED,
                                 Defendant-Appellee.
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APPEARING FOR APPELLANT:                          ROBERT S. ARBEIT, Pinks, Arbeit, Boyle &
                                                  Nemeth, Hauppauge, New York.

APPEARING FOR APPELLEE:                           DAVID W. PHILLIPS, LeClairRyan, New York,
                                                  New York.

           Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sandra J. Feuerstein, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on December 7, 2010, is

AFFIRMED.

       LeVista, Inc., appeals from the dismissal of its amended complaint for breach of

contract. See Fed. R. Civ. P. 12(b)(6).1 In reviewing the dismissal de novo, we assume the

truth of all facts alleged in the amended complaint, as well as in documents attached to the

original pleading on which LeVista continues to rely, and we draw all reasonable inferences

in LeVista’s favor. See Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany, 615

F.3d 97, 113-14 (2d Cir. 2010), cert. denied, 131 S. Ct. 1502 (2011); Chambers v. Time

Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). To avoid dismissal, a complaint must

contain sufficient factual matter to “state a claim to relief that is plausible on its face,” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which means that the plaintiff must plead

sufficient factual content to allow a court to draw the “reasonable inference that the

defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.

1937, 1949-50 (2009). Where, as here, the misconduct alleged is breach of a contract for the

sale of goods, liability under New York’s Uniform Commercial Code, which the parties

agree controls this action, depends on (1) the existence of an agreement, (2) adequate



       1
         Plaintiff’s amended complaint was filed after the district court dismissed the initial
complaint, and granted leave to replead the breach of contract claim. Insofar as the district
court also dismissed with prejudice initial claims for tortious interference with business
relations and specific performance, plaintiff does not appeal, and therefore we do not discuss
these claims further.

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performance by plaintiff, (3) breach by defendant, and (4) damages. See N.Y. U.C.C. § 2-

102; Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177

(2d Cir. 2004). In applying these principles, we assume the parties’ familiarity with the facts

and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

       With respect to the first element, LeVista alleged that in May 2008, it entered into an

agreement with defendant Ranbaxy Pharmaceuticals, Inc. (“Ranbaxy”) whereby it agreed to

purchase and Ranbaxy agreed to sell 25,000 bottles of the drug Cephalexin for $19/bottle less

a cash discount of 2%, the sale to be effected through two deliveries as initially reflected in

two purchase orders numbered 241 and 242. There is no question that Ranbaxy made the

first delivery. Nevertheless, Ranbaxy disputes whether the parties ever reached an agreement

as to the second delivery. Because the Statute of Frauds requires that a contract for the sale

of goods in an amount over $500 be in a writing signed by the party against whom

enforcement is sought, see N.Y. U.C.C. § 2-201, LeVista alleges that a June 16, 2008 email

by Ranbaxy agent Tim Gustafson demonstrates defendant’s acceptance of the alleged

unilateral agreement for the sale of 25,000 bottles of Cephalexin. In that email, Gustafson

implicitly acknowledges receipt of LeVista’s two purchase orders as well as a $134,231.58

part payment for the first purchase order, and expresses an intent to “finalize the first half of

the deal” in the future. Am. Compl. ¶ 10. We need not here decide whether these statements

are sufficient plausibly to indicate Ranbaxy’s agreement to both purchase orders as two

halves of a single “deal,” because even if we were to resolve that question favorably to

LeVista, its contract claim would fail on the second element: its own performance.

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       Both the express terms of the parties’ alleged agreement and their course of

performance, see N.Y. U.C.C. § 2-208(2), demonstrate that Ranbaxy’s delivery obligation

under the second purchase order was not triggered because LeVista did not pay Ranbaxy any

amount due under the purchase order in advance. The purchase orders purportedly agreed

to by Ranbaxy were pre-printed forms, prepared by LeVista, stating that 50% of the purchase

price for the order placed therein was to be paid upfront and 50% on receipt of the goods.

The parties’ course of performance, at least with respect to each shipment made under the

first purchase order, in fact indicates full payment in advance. We need not here decide

whether LeVista was obligated to pay 50% or 100% of the second purchase order in advance

because LeVista does not—and apparently cannot—allege that it ever paid Ranbaxy anything

with respect to the second purchase order.

       In an effort to excuse its own failure of performance, LeVista alleges that Ranbaxy

failed to provide it with the lot numbers and expiration dates required for the second part of

the purchase agreement. It submits that Ranbaxy’s agreement to this requirement is

evidenced by the fact that, in response to LeVista’s request for this information, Gustafson

sent email replies on September 18, 2008, indicating that he would talk to LeVista’s agent

in the following days. Because Ranbaxy never supplied the information, LeVista maintains

that defendant breached the agreement, and argues further that defendant never stated that

it viewed plaintiff in breach of its agreement to pay. Like the district court, we conclude that

the argument fails on the merits.

       Nothing in the purchase orders or any other written document required Ranbaxy to

provide LeVista with the lot numbers and expiration dates of drugs. Rather, the purchase

                                               4
orders prepared by LeVista stated the lot numbers and expiration dates of the drugs at issue

and required Ranbaxy to notify LeVista “immediately” if defendant could not ship the

specified items. With respect to the first purchase order, Ranbaxy performed this obligation

and advised LeVista that it would substitute a different lot number. Thus, while it may have

been understandable that LeVista would seek Ranbaxy’s confirmation that the lot numbers

on the second order were to be as specified in the second purchase order, and while Ranbaxy

may have indicated a willingness to discuss the point further, it was under no contractual

obligation to provide such confirmation, so as to make its failure to follow up on its

September 18 email a breach of contract absolving plaintiff of its performance obligation to

make payment before shipment.

       For the first time on appeal, LeVista argues that even if Ranbaxy is not in breach of

its delivery obligations, it is in breach of the 2% cash discount provision of the contract with

respect to the drugs it did deliver, making it liable to LeVista for $6,620.04 in damages. On

appeal, Ranbaxy argues, as it did below, that these allegations in the amended complaint

contradict LeVista’s allegation in its original complaint that Ranbaxy “sold and delivered to

the plaintiff 14,618 bottles,” and that LeVista paid “$19.00 per bottle, less the cash discount

of 2%.” Compl. ¶ 10. While the district court did not address the issue in its opinion

dismissing the amended complaint, see LeVista, Inc. v. Ranbaxy Pharms., Inc., No. 09-CV-

0569 (SJF) (ARL), 2010 WL 5067843 (E.D.N.Y. Dec. 2, 2010), LeVista never argued to the

district court that it was contractually entitled to the cash discount and damages for

overpayment, and raises this claim for the first time before this court in the last three

sentences of its brief. Accordingly, LeVista has waived this argument on appeal. See In re

Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008).

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       We have considered LeVista’s remaining arguments on appeal and have concluded

that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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