21-1021-cv

Grasso v. Donnelly-Schoffstall

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 TO 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 for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 11th 3 day of March, two thousand twenty-two.

4

5 PRESENT:

6 JOHN M. WALKER, JR.,

7 PIERRE N. LEVAL,

8 MICHAEL H. PARK,

9 Circuit Judges.

10 __________________________________________

11

12 BARBARA GRASSO, individually, DBA 

13 DeGrasso’s Bernese Mountain Dogs,

14

15 Plaintiff-Appellant,

16

17 v. 21-1021

18

19 JENNIFER DONNELLY-SCHOFFSTALL, 

20 individually, DBA Blue Ribbon Acres, DBA 

21 Anatar’s Bernese Mountain Dogs, DBA Blue 

22 Ribbon Acres Kennels, DBA Aces Canine,

23

24 Defendant-Appellee.

25

26 __________________________________________

27

28

29 FOR PLAINTIFF-APPELLANT: Barbara Grasso, pro se, Stratford, NY.

30

31 FOR DEFENDANT-APPELLEE: Stephanie M. Campbell, Bond, Schoeneck

32 & King PLLC, Syracuse, NY.
2

1 Appeal from a judgment of the United States District Court for the Northern District of 

2 New York (Kahn, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

4 DECREED that the judgment of the district court is AFFIRMED in part and VACATED and 

5 REMANDED in part.

6 Appellant Barbara Grasso, who was represented by counsel in the district court and is 

7 proceeding pro se on appeal, sued Jennifer Donnelly-Schoffstall for breach of contract and unjust 

8 enrichment under New York law, based on the dissolution of an alleged agreement to jointly breed 

9 and sell Bernese Mountain Dogs. The district court dismissed the complaint with prejudice under

10 Federal Rule of Civil Procedure 12(b)(6), reasoning that Grasso had not alleged an agreement in 

11 sufficiently definite terms to establish the existence of a contract; that any contract would in any 

12 event be barred by the New York statute of frauds because, by its terms, it could not be performed 

13 within one year; and that Grasso could not avoid the statute of frauds by relabeling her contractual 

14 claim as a claim for unjust enrichment. Grasso challenges those rulings and argues that the district 

court erred in denying her request for leave to amend.1 15 We assume the parties’ familiarity with 

16 the underlying facts, the procedural history of the case, and the issues on appeal.

17 “We review a district court’s grant of a motion to dismiss de novo, accepting as true all 

18 factual claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” 

19 Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147 (2d Cir. 2021) (citation omitted). 

1 Donnelly-Schoffstall moves to strike exhibits to Grasso’s complaint that are not part of the district 

court record. Grasso has not argued that the exhibits were omitted from the record due to “error or 

accident.” See Fed. R. App. P. 10(e)(2). Thus, the motion to strike is GRANTED. 
3

20 “We review a district court’s denial of leave to amend for abuse of discretion, unless the denial 

21 was based on an interpretation of law, such as futility, in which case we review the legal 

22 conclusion de novo.” Empire Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d 132, 139 (2d 

23 Cir. 2018) (citation omitted). 

24 I. Breach of Contract

25 “To state a claim for breach of contract under New York law, the complaint must allege: 

26 (i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure of 

27 defendant to perform; and (iv) damages.” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 

28 F.3d 107, 114 (2d Cir. 2017) (cleaned up). As to the first element, “[i]t is well settled that a 

29 contract must be definite in its material terms in order to be enforceable.” Clifford R. Gray, Inc.

30 v. LeChase Constr. Servs., LLC, 31 A.D.3d 983, 985 (3d Dep’t 2006) (citation omitted). This 

31 requirement is satisfied where there is “an objective method for supplying a missing term.” Id. at 

32 986 (citation omitted). 

33 We affirm the district court’s conclusion that the vague and internally inconsistent 

34 allegations in Grasso’s complaint failed to provide an objective method for determining Donnelly35 Schoffstall’s obligations under the alleged contract. For example, Grasso alleged both that 

36 Donnelly-Schoffstall was required to pay Grasso’s credit card bills and also that she was required 

37 only to “assist” in paying those bills. She also alleged that Donnelly-Schoffstall was required to 

38 “shar[e]” the profits from the sale of puppies without specifying whether there was a specific 

39 percentage or amount to which Grasso was entitled. Such vague allegations are not sufficiently 

40 definite to be enforceable. 

41 We also agree with the district court that, as pleaded, the alleged contract would be barred 
4

42 by the New York statute of frauds. A contract is void under New York law unless it is reduced 

43 to a writing if it “[b]y its terms is not to be performed within one year from the making thereof.” 

44 N.Y. Gen. Oblig. L. § 5-701(a)(1). A contract of indefinite duration, lacking a provision for a 

45 party to terminate the contract other than by breaching it, cannot be performed within one year of 

46 its making. See D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 457 (1984) (“The 

47 possibility of . . . wrongful termination is not, of course, the same as the possibility of performance 

48 within the statutory period.” (cleaned up)). Here, Grasso did not plead that there was a written 

49 contract, that the parties’ agreement had any durational element, or that there was any termination 

50 provision. 

51 The statute of frauds is “generally inapplicable” to agreements to form a joint venture. 

52 Unicorn Enters., Ltd. v. Stonewall Contracting Corp., 232 A.D.2d 404, 405 (2d Dep’t 1996); see 

53 also F.S. Intertrade Off. Prods., Inc. v. Babina, 199 A.D.2d 95, 96 (1st Dep’t 1993). This is true 

54 even if the joint venture is of indefinite duration “because, absent any definite term of duration, an 

55 oral agreement to form a partnership or joint venture for an indefinite period creates a partnership 

56 or joint venture at will.” Foster v. Kovner, 44 A.D.3d 23, 27 (1st Dep’t 2007). But Grasso did 

57 not plead the existence of any provision in the parties’ agreement for sharing losses, which is an 

58 “essential element[]” of a joint venture. Ackerman v. Landes, 112 A.D.2d 1081, 1082 (2d Dep’t 

59 1985). The district court thus properly dismissed Grasso’s breach of contract claim, both for lack 

60 of sufficiently definite material terms and because any contract would be void under the statute of 

61 frauds. 

62 We also affirm the district court’s dismissal of the contract claim without affording Grasso 

63 the opportunity to move for leave to replead. But we do so not with respect to what happened in 
5

64 the district court, but what happened on appeal. In the district court, in briefing the motion to 

65 dismiss, Grasso had expressly requested leave to replead if the motion were granted, the complaint 

66 had not previously been amended, and our precedents favor that “leave [to amend] . . . be freely

67 given when justice so requires,” Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990) (citing 

68 Fed. R. Civ. P. 15(a)(2)), the district court ought to have offered the opportunity to show, in support 

69 of a motion for leave to replead, that an amended pleading would cure the defects. Instead, the 

70 court stated in the ruling that found the pleading insufficient that the suit was dismissed with 

71 prejudice and entered judgment the same day, effectively denying Grasso an opportunity to move 

72 for leave to amend. 

73 We nonetheless affirm the grant of judgment with prejudice based upon what happened on 

74 appeal. Grasso had ample opportunity on briefing this appeal, protesting the district court’s 

75 failure to allow an amended pleading, to explain how she could cure the defects. She has not done 

76 so. We accordingly conclude that grant of leave to replead would be futile and affirm the district 

77 court’s dismissal with prejudice of the contract claim. See In re Tamoxifen Citrate Antitrust Litig., 

78 466 F.3d 187, 220 (2d Cir. 2006) (“[W]here amendment would be futile, denial of leave to amend 

79 is proper.”). 

80 II. Unjust Enrichment

81 Unjust enrichment is a quasi-contractual claim arising in “equity to prevent injustice, in the 

82 absence of an actual agreement between the parties concerned.” IDT Corp. v. Morgan Stanley

83 Dean Witter & Co., 12 N.Y.3d 132, 142 (2009). “The essence of such a cause of action is that 

84 one party is in possession of money or property that rightly belongs to another.” Clifford R. Gray,

85 Inc., 31 A.D.3d at 988. To prevail on an unjust enrichment claim, a plaintiff must show “that (1) 
6

86 the defendant was enriched, (2) at the expense of the plaintiff, and (3) that it would be inequitable 

87 to permit the defendant to retain that which is claimed by the plaintiff.” Id. Where “the existence 

88 of the contract is in dispute, the plaintiff may allege causes of action to recover for unjust 

89 enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract.” 

90 Thompson Bros. Pile Corp. v. Rosenblum, 121 A.D.3d 672, 674 (2d Dep’t 2014).

91 Where a contractual claim is barred by the statute of frauds, a plaintiff may not avoid that 

92 bar by relabeling the same claim under a quasi-contractual theory. See Grappo v. Alitalia Linee

93 Aeree Italiane, S.p.A., 56 F.3d 427, 433 (2d Cir. 1995) (citing Farash v. Sykes Datatronics, Inc., 59 

94 N.Y.2d 500, 503 (1983)) (discussing quantum meruit claim). An unjust enrichment claim can 

95 proceed, however, where the claim “is used to seek recovery of the amount by which a defendant 

96 was enriched at a plaintiff’s expense, rather than as an attempt to enforce an oral contract.” 

97 Litvinoff v. Wright, 150 A.D.3d 714, 715 (2d Dep’t 2017).

98 To the extent that Grasso sought, through her unjust enrichment claim, to recover damages 

99 arising from Donnelly-Schoffstall’s breach of their alleged agreement, her claim is barred by the 

100 statute of frauds. See Grappo, 56 F.3d at 433. But Grasso also alleged that Donnelly-Schoffstall

101 was in possession of Grasso’s property (including breeding dogs), refused to return it, and was 

102 profiting from its unauthorized use. To the extent that Grasso sought to rectify Donnelly103 Schoffstall’s withholding of her property or Donnelly-Schoffstall’s profits from its exploitation

104 based on these allegations, Grasso’s claim is not barred by the statute of frauds because it could 

105 be proven without the existence of a contract, and the measure of damages would be “distinct from 

106 the contract price.” Id.; accord Litvinoff, 150 A.D.3d at 715. Accordingly, we vacate the 

107 dismissal of Grasso’s unjust enrichment claim and remand for further consideration of this claim. 
7

108 On remand, the district court shall allow Grasso to replead alleging conversion, unjust enrichment, 

109 or both, within the limits described above. 

110 For the foregoing reasons, we GRANT Donnelly-Schoffstall’s motion to strike, AFFIRM 

111 the district court’s judgment as to the breach of contract claim, VACATE the district court’s 

112 judgment as to the unjust enrichment claim, and REMAND the case for further proceedings 

113 consistent with this order. 

114

115 FOR THE COURT: 

116 Catherine O’Hagan Wolfe, Clerk of Court