13-3440-cv

Lois Turner v. Temptu Inc., et al.

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 23rd 4 day of September, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges

LEWIS A. KAPLAN,* 9

10 District Judge.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 LOIS TURNER, 

14 Plaintiff-Appellant,

15

16 -v.- 13-3440-cv

17

18 TEMPTU INC., TEMPTU MARKETING INC.,

19 MICHAEL BENJAMIN, 

20 Defendants-Appellees.

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22

* The Honorable Lewis A. Kaplan, of the United

States District Court for the Southern District of New York,

sitting by designation.

1
1 FOR APPELLANT: DAVID G. EBERT (with Mioko C.

2 Tajika and Alissa G. Friedman on

3 the brief), Ingram Yuzek Gainen

4 Carroll & Bertolotti, LLP, New

5 York, New York.

6

7 FOR APPELLEES: JUSTIN M. SHER, Sher Tremonte

8 LLP, New York, New York.

9

10 Appeal from a judgment of the United States District

11 Court for the Southern District of New York (Furman, J.).

12

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14 AND DECREED that the judgment of the district court be

15 AFFIRMED. 

16

17 Lois Turner appeals from the judgment of the United

18 States District Court for the Southern District of New York

19 (Furman, J.), granting summary judgment in favor of

20 defendants-appellees. We assume the parties’ familiarity

21 with the underlying facts, the procedural history, and the

22 issues presented for review. 

23

24 This action arises out of a failed business

25 relationship between Turner and defendants Temptu Inc.,

26 formerly known as Temptu Marketing Inc. (“Temptu”), and

27 Michael Benjamin (collectively, “Defendants”). Turner

28 alleges that after she entered into a partnership agreement

29 with them, Defendants stole her concept of a home-use

30 airbrush makeup system, thereby breaching the parties’

31 contract. Turner’s complaint asserts eight causes of action

32 under New York law. On August 15, 2013, the district court

33 granted Defendants’ motion for summary judgment and

dismissed all of Turner’s claims. This appeal followed.1 34

35

36 “We review the district court’s grant of summary

37 judgment de novo, applying the same standards that govern

38 the district court’s consideration of the motion.” Summa v.

39 Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013) (internal

1 Turner does not appeal the dismissal of her claims

for breach of fiduciary duty, fraudulent inducement,

fraudulent concealment, and negligent misrepresentation. 

Remaining are her causes of action for breach of contract

(express and implied), misappropriation of ideas, unjust

enrichment, and unfair competition. 

2
1 quotation marks omitted). “The court shall grant summary

2 judgment if the movant shows that there is no genuine

3 dispute as to any material fact and the movant is entitled

4 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

5 fact is material if it “might affect the outcome of the suit

6 under the governing law.” Anderson v. Liberty Lobby, Inc.,

7 477 U.S. 242, 248 (1986). A dispute concerning a material

8 fact is genuine “if the evidence is such that a reasonable

9 jury could return a verdict for the nonmoving party.” Id.

10 On a motion for summary judgment, “[w]e resolve all

11 ambiguities and draw all reasonable inferences in the light

12 most favorable to the nonmoving party.” Summa, 708 F.3d at

13 123.

14

15 A. Breach of Partnership / Joint Venture Agreement 

16

17 Turner’s first claim is that she and Benjamin “were

18 joint venturers by express and implied contract,” and that

19 Benjamin breached the parties’ agreement when he terminated

20 their partnership and marketed the airbrush system through

Temptu.2 21 Compl. ¶¶ 45-47. Under New York law, the elements

22 of a cause of action for breach of contract are: (1) the

23 existence of a contract, (2) performance of the contract by

24 one party, (3) breach by the other party, and (4) damages

25 suffered as a result of the breach. Johnson v. Nextel

26 Commc’ns, Inc., 660 F.3d 131, 142 (2d Cir. 2011).

27

28 The requirements for a joint venture under New York law

29 include (1) that the parties’ agreement “evidence their

30 intent to be joint venturers,” (2) that each party “have

31 some degree of joint control over the venture,” and (3) that

32 there be “a provision for the sharing of both profits and

33 losses.” Dinaco, Inc. v. Time Warner, Inc., 346 F.3d 64,

34 67-68 (2d Cir. 2003) (quoting Itel Containers Int’l Corp. v.

35 Atlanttrafik Express Serv. Ltd., 909 F.2d 698, 701 (2d Cir.

36 1990)); see also Steinbeck v. Gerosa, 4 N.Y.2d 302, 151

37 N.E.2d 170, 178 (1958) (“An indispensable essential of a

38 contract of partnership or joint venture, both under common

39 law and statutory law, is a mutual promise or undertaking of

2 Under New York law, “joint ventures are governed

by the same legal rules as partnerships because a joint

venture is essentially a partnership for a limited purpose.” 

Scholastic, Inc. v. Harris, 259 F.3d 73, 84 (2d Cir. 2001). 

Accordingly, this summary order, like Turner’s briefing,

will use both terms.

3
1 the parties to share in the profits of the business and

2 submit to the burden of making good the losses.”).

3

4 Turner argues that a blog edited by herself, Benjamin,

5 and Roger Braimon constituted a binding joint venture

6 agreement. Turner testified that this blog--an “editable”

7 working document that was "constantly changing and

8 modifying,” Turner Dep. at 93:4-94:11--contained the terms

9 of their oral partnership agreement and “served as a living

10 document for [them] to write, edit, and memorialize [their]

11 discussions.” Turner Aff. ¶ 28. Having reviewed the

12 evidence in the light most favorable to Turner, we agree

13 with the district court that no rational juror could find

14 that Turner and Benjamin had finalized an agreement to which

15 they manifested an intent to be bound. 

16

17 The key question whether a binding contract exists can

18 be answered only by looking to “the objective manifestations

19 of the intent of the parties as gathered by their expressed

20 words and deeds.” Brown Bros. Elec. Contractors, Inc. v.

21 Beam Constr. Corp., 361 N.E.2d 999, 1001 (N.Y. 1977). “In

22 doing so, disproportionate emphasis is not to be put on any

23 single act, phrase or other expression, but, instead, on the

24 totality of all of these, given the attendant circumstances,

25 the situation of the parties, and the objectives they were

26 striving to attain.” Id. at 1001. 

27

28 Although the parties’ blog contained a number of

29 possible contract terms, Turner admitted at her deposition

30 that many of these had not been finalized, see Turner Dep.

31 at 99:24-100:12, indeed, several of them were marked “to be

32 determined.” Turner also acknowledged her understanding

33 that the alleged agreement was not finalized as late as

34 April 2007, when “still some discussion [] needed to take

35 place with respect to the contents of [their] contract.” 

36 Turner Dep. at 126:23-127:2; see also Turner Aff. Exs. 20,

37 21 (Turner stating that she could “bring a suggestion for a

38 contract/agreement” to the parties’ meeting)). Also in

39 April, Braimon sent an e-mail to a lawyer, stating that the

40 parties had yet to “establish a contract” and were still

41 “undecided” even on the “actual product” they would develop

42 together. Sher Decl. Ex. 14. Perhaps most telling is that,

43 when asked at her deposition if the parties had ever

44 finalized their agreement, Turner responded, “No. I would

45 have loved to.” Turner Dep. at 99:24-25. Given this

46 record, no reasonable jury could find that the parties

4
1 manifested the requisite intent to enter into a binding

partnership agreement.3 2 

3

4 Accordingly, we affirm the dismissal of Plaintiff’s

breach of contract claim.4 5 

6

3 Defendants also argue (and the district court

held) that there was no agreement to form a joint venture,

because Turner, Benjamin, and Braimon never discussed--let

alone agreed on--how the parties would share any losses. 

See Turner Dep. at 131:11-13 (“Did you ever discuss what

would happen if the company lost money?” “No.”)). There is

some authority for Turner’s proposition that courts will

imply an equal division of losses where the parties have

agreed to share equally in profits, see, e.g., Penato v.

George, 383 N.Y.S. 2d 900, 904 (N.Y. App. Div. 2d Dep’t

1976); but such cases “are inconsistent with more recent

Appellate Division, Second Department authority,” Mawere v.

Landau, 39 Misc. 3d 1229(A), 1229A (N.Y. Sup. Ct. 2013)

(collecting cases). Judicially implied loss sharing would

seem to be particularly inappropriate where, as here, a

plaintiff risks losing only the value of services she has

invested while her putative partners stand to lose cash. 

Id. We decline to reach this issue, however, having found

that the parties did not manifest a mutual assent to

contract. 

4 In the alternative, Turner argues that the

parties’ communications and conduct created an

implied-in-fact contract. See Leibowitz v. Cornell Univ.,

584 F.3d 487, 506-07 (2d Cir. 2009) (internal quotation

marks and alterations omitted) (“Under New York law, a

contract implied in fact may result as an inference from the

facts and circumstances of the case, although not formally

stated in words, and is derived from the presumed intention

of the parties as indicated by their conduct.”). Like any

contract, an implied-in-fact contract “requires such

elements as consideration, mutual assent, legal capacity and

legal subject matter.” Id. at 507. As explained above, the

parties never finalized their agreement and never consented

to its terms. Thus, no implied contract was formed. Id. at

507.

5
1 B. Misappropriation of Ideas

2

3 Next, Turner alleges that Defendants misappropriated

4 her idea to develop a new cosmetic airbrush system. “In

5 order for an idea to be susceptible to a claim of

6 misappropriation, two essential elements must be

7 established: the requisite legal relationship must exist

8 between the parties, and the idea must be novel and

9 concrete.” McGhan v. Ebersol, 608 F. Supp. 277, 284

10 (S.D.N.Y. 1985) (citing Vantage Point, Inc. v. Parker Bros.,

11 Inc., 529 F. Supp. 1204, 1216 (E.D.N.Y.), aff’d without op.

12 sub. nom. Vantage Point, Inc. v. Milton Bradley, 697 F.2d

13 301 (2d Cir. 1982)). “The legal relationship between the

14 plaintiff and defendant may be either a fiduciary

15 relationship, or based on an express contract, an implied16 in-fact contract, or a quasi-contract.” Id. 

17

18 Turner argues that the legal relationship between her

19 and Benjamin is a contract or quasi-contract. As discussed

20 above, Turner fails to establish a contractual relationship;

21 and because the theory of quasi-contract is not distinct

22 from the theory of unjust enrichment, her quasi-contract

23 arguments fails for the reasons stated below. See Beth

24 Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of

25 N.J., Inc., 448 F.3d 573, 587 (2d Cir. 2006); Goldman v.

26 Metro. Life Ins. Co., 841 N.E.2d 742, 746 (N.Y. 2005). 

27

28 Accordingly, we affirm the district court’s dismissal

29 of this claim as well. 

30

31 C. Unjust Enrichment & Unfair Competition

32

33 Plaintiff’s claims for unjust enrichment and unfair

34 competition allege that Benjamin tricked her into working to

35 develop a novel airbrush system, only to steal it and take

36 the idea to Temptu, with which he was working all the while. 

37

38 To establish unjust enrichment, a plaintiff must show

39 that the defendant was unjustly enriched at plaintiff’s

40 expense and should in equity and good conscience return the

41 money. See In re First Cent. Fin. Corp., 377 F.3d 209, 213

42 (2d Cir. 2004); Bradkin v. Leverton, 257 N.E.2d 643 (N.Y.

43 1970). To sustain a claim for unfair competition, a

44 plaintiff must show that the defendant misappropriated the

45 plaintiff’s labors or expenditures and that the defendant

46 displayed some element of bad faith in doing so. See, e.g.,

6
1 Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58

2 F.3d 27, 34-35 (2d Cir. 1995). 

3

4 Both these claims fail. Temptu hired an independent

5 and highly trained engineer, Gennadi Fedorov, to develop and

6 design a new airbrush. There is no evidence that Fedorov

7 used any information or ideas from Turner, a graphic artist. 

8 On the contrary, despite her awareness of Temptu’s

9 application to patent the airbrush, Turner never objected. 

10 The evidence demonstrates only that Turner and Benjamin

11 negotiated for a possible business venture that was never

12 formalized. That does not constitute unjust enrichment or

13 unfair competition. Accordingly, we affirm the dismissal of

14 these claims as well.

15

16 For the foregoing reasons, and finding no merit in

17 Turner’s other arguments, we hereby AFFIRM the judgment of

18 the district court.

19

20 FOR THE COURT:

21 CATHERINE O’HAGAN WOLFE, CLERK

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