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.
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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