11-2813-cv
United Mobile v. Pegaso

                            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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
30th day of January, two thousand thirteen.

Present:         AMALYA L. KEARSE,
                 CHESTER J. STRAUB,
                 ROSEMARY S. POOLER,

                        Circuit Judges.
_____________________________________________________

UNITED MOBILE TECHNOLOGIES, LLC, KARGO, INC.,
ACK VENTURES HOLDINGS, LLC

                                Plaintiffs-Appellants,

                          -v-                                               11-2813-cv

PEGASO PCS, S.A. DE C.V., PEGASO
TELECOMMUNICACIONES S.A. DE C.V., TELEFONICA
MOVILES MEXICO S.A. DE C.V., TELEFONICA MOVILES,
S.A., TELEFONICA S.A.,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Plaintiffs-Appellants:           Alan M. Grayson, (Victor A. Kubli, on the brief),
                                               Grayson Law Center, P.C., Germantown, M.D.

Appearing for Defendants-Appellees:            Shand Stephens, (Lawrence S. Hirsh, Steven J.
                                               Young, on the brief), Dewey & LeBoeuf LLP, New
                                               York, N.Y.
       Appeal from the United States District Court for the Southern District of New York
(Haight, J. & Preska, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiffs appealing from the district court’s judgment dated June 27, 2011, amended on
November 10, 2011, argue that 1) defendants-appellees were subject to general and specific
personal jurisdiction under N.Y. C.P.L.R. § § 301 and 302(a)(3)(ii), 2) summary judgment was
improperly granted because a genuine issue of material fact existed as to defendants’ breach of
contract executed under New York law, and 3) the district court erred in calculating the
reasonable value under a theory of quantum meruit. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues on review.

        We review the grant of a motion to dismiss for want of personal jurisdiction de novo.
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Under N.Y.
C.P.L.R. § 301, general jurisdiction is established if the defendant is shown to have “engaged in
continuous, permanent, and substantial activity in New York.” Wiwa v. Royal Dutch Petroleum
Co., 226 F.3d 88, 95 (2d Cir. 2000) (internal quotations omitted). In general, lower courts have
discretion to determine the time-period for the jurisdictional analysis but typically include
circumstances “up to and including the date the suit was filed.” Metro. Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 569-70 (2d Cir. 1996). Here, the district court correctly
found no general jurisdiction given the limited number of contacts at the time of the filing of the
complaint.

        Alternatively, N.Y. C.P.L.R. § 302(a)(3)(ii) permits a court to exercise long-arm
jurisdiction over a foreign defendant for a cause of action arising out of the defendant’s “tortious
act,” leading to a reasonable expectation of jurisdictional “consequences.” N.Y. C.P.L.R. §
302(a)(3)(ii). In such cases, New York courts apply the “situs-of-injury” test which asks where
the “original event which caused the injury” occurred. Whitaker v. Am. Telecasting, Inc., 261
F.3d 196, 209 (2d Cir. 2001). Courts usually find the situs of the injury, in tortious interference
actions, is where the company “lost business,” not the location from which the company
primarily operates. Cosmetech Int’l, LLC v. Der Kwei Entm’t. & Co., 943 F. Supp. 311, 319
(S.D.N.Y. 1996). In contrast, in cases of unlawful termination, this court has located the situs of
the injury at the place of employment. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84-85 (2d
Cir. 2001). In this case of tortious interference, the lower court properly found a lack of personal
jurisdiction in New York, when the loss of business occurred in Mexico.

        We review de novo a district court’s grant of summary judgment with the view that
“[s]ummary judgment is appropriate only if the moving party shows that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a matter of law.”
Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

         Under New York contract law, it is well established that even if the parties have agreed
upon all the terms of a proposed contract, if they do not intend to be bound by an agreement until
it is in writing and signed, then there is no contract until the written instrument is executed. R.G.
Grp, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir. 1984). Where an agreement, such as

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this one, (i) was 25-pages, (ii) contained several detailed components, (iii) included a
termination fee of $112.6 million, according to plaintiffs, and (iv) required approval by both
parties’ attorneys, we conclude that the parties intended to be bound only upon execution.
Therefore no genuine issue of material fact exists as to a breach of a contract, because the
contract was never executed.

        Although no contract existed, courts in some circumstances will prevent unjust
enrichment under the doctrine of quantum meruit, to compensate the claimant for the
“reasonable value of services rendered.” Longo v. Shore & Reich, Ltd., 25 F.3d 94, 97 (2d Cir.
1994). In general, reasonable value is based on an hourly rate, but courts will, in certain
instances, provide additional compensation “[w]here a business appropriates an invention or
project devised by another and would be unjustly enriched by the appropriation . . . .” Carlino v.
Kaplan, 139 F.Supp. 2d 563, 565 (S.D.N.Y. 2001). In this case, plaintiffs did not prove
appropriation because their invention (i) was not designed for defendants’ unique use, (ii) was
designed prior to the start of the parties’ relationship, and (iii) was only intended to be licensed.
Cf. Matarese v. Moore-McCormack Lines, 158 F.2d 631, 635 (2d Cir. 1946) (finding
appropriation where plaintiff created a loading apparatus explicitly made for defendant’s unique
dock, benefitting defendant with extensive, proved savings).

       We have considered plaintiffs remaining claims and find them to be without merit
substantially for the reasons articulated by the district court in its well-reasoned orders.


       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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