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NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

________________________________________ 

MARCO MINUTO : 

 : Civil Action No. 11-3391 (ES) 

 Plaintiff, : 

 v. : 

 : 

GENESIS ADVISORY SERVICES, INC. : OPINION 

and BRUCE FIXELLE : 

 : 

 Defendants. : 

________________________________________ : 

SALAS, District Judge 

Now pending before this Court is Defendant Bruce Fixelle (“Fixelle”) and Defendant 

Genesis Advisory Services, Inc.’s (“Genesis”) (collectively, “Defendants”) joint motion to 

dismiss Plaintiff Marco Minuto’s (“Plaintiff”) Complaint (D.E. 1) pursuant to Fed. R. Civ. P. 

12(b)(6) for failure to state a claim upon which relief can be granted. (D.E. 4). The Court has 

considered the briefs submitted in support of and in opposition to the present motion, and decides 

the matter without oral argument pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth 

below, Defendants’ motion to dismiss is GRANTED in part and DENIED in part. 

I. Jurisdiction 

 The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because the 

parties are completely diverse, and the amount in controversy exceeds $75,000.00, exclusive of 

interests and costs. 

II. Background

Plaintiff is a resident of New Jersey. (Compl. ¶ 1). Defendant Genesis is a Florida 

corporation with its principal place of business in Naples, Florida. (Id.). Defendant Bruce 

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Fixelle is a resident of Florida. He is the sole managing member of Genesis. (Id.). 

Minuto was hired by Genesis to start and manage a hedge fund with the assets of 

Genesis. (Id. ¶ 6). Minuto was to establish a limited liability company (LLC) of which he would 

be the sole managing member. (Id.). On behalf of the LLC, Minuto was to establish broker 

relationships at large “bracket” banks on Wall Street. (Id.). Through those relationships, Minuto 

was to exclusively trade shares of initial public offerings (“IPO”). (Id.). In short, the Genesis 

business model was to generate large commissions for the brokers by trading large volumes of 

shares in exchange for access to IPO allocations. (Id. ¶ 12). The more shares that are traded 

with a broker, the larger the broker’s commission. (Id.). In turn, as the broker-trader 

relationship strengthens, the size of IPO allocations from the broker increases. (Id.). Genesis 

would purchase shares from a broker at one price and immediately sell them to another broker at 

the same price. (Id.). A commission of six cents per share, however, is paid to each the buying 

and selling broker. (Id.). Hence, a new trader attempting to build multiple relationships can 

quickly lose money waiting for the next IPO. (Id.). Once the broker/trader relationship reaches 

the point where sizable allocations are received on each IPO that is underwritten, however, the 

relationship becomes profitable. (Id.). An initial $7,000 draw was given to Minuto to cover the 

initial stage of the relationship-building process. (Id. ¶ 13). 

Minuto’s employment with Genesis began on February 3, 2011. (Id. ¶ 6). As 

compensation for his employment, Minuto received a “draw,” or an advance on his future 

earnings, of $7,000 per month. (Id. ¶ 10). Fixelle had estimated that depending on Minuto’s 

progress, it would take between three and six months before Minuto would earn money equal to 

or in excess of this draw. (Id.). Once Minuto reached the $7,000 threshold, he was to be paid, 

on a monthly basis, the higher of the draw or forty percent of the net profit and loss (“P&L”) of 

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his transactions for the month. (Id.). Fixelle represented to Minuto that the other sixty percent of 

the P&L was kept by Genesis to pay for rent, salaries to office administrators, licensing fees, 

trading platform fees, back office fees, and other expenses. (Id. ¶ 11). Fixelle further explained, 

it was also kept as capital to purchase and sell stock, and was warranted because Genesis took 

sixty percent of the risk in connection with trading transactions. (Id.). Minuto was responsible 

for forty percent of the losses. (Id.). 

One of the largest investors in Genesis is the Wolfson Family, which entrusts Genesis to 

manage a large amount of family assets. (Id. ¶ 7). In connection with his employment, and at 

the direction and approval of Fixelle, Minuto created Wolfson Capital Management, LLC. (Id. ¶ 

8). That company served as the vehicle through which Minuto executed his trades. (Id.). 

Within several weeks of starting at Genesis, Minuto established broker relationships at 

Goldman Sachs, JP Morgan, Deutsche Bank, Credit Suisse and Bank of America Merrill Lynch. 

(Id. ¶ 12). Minuto was able to open broker accounts at these banks and obtain IPO shares, called 

“allocations”, because of his personal contacts within the banks. (Id.). Minuto claims that his 

personal contacts were one of the principal reasons he was hired by Genesis. (Id. ¶ 9). Minuto 

was able to open a trading account at Goldman Sachs, “a notoriously difficult bank with which to 

establish a trading relationship.” (Id.). Minuto was the only Genesis employee who had 

coverage at Goldman Sachs. (Id.). Minuto later learned that Fixelle had been blacklisted by 

Goldman Sachs many years earlier. (Id.). Fixelle told Minuto in a text message: “My name is 

no good there.” (Id.). 

On March 10, 2011, the Hospital Corporation of America (“HCA”) issued an IPO which, 

according to Minuto, was to be “the largest private equity backed IPO in history.” (Id. ¶ 15). 

Michael Coticchio (“Coticchio”), a “de facto” manager of Genesis, told Minuto that Senator 

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Frist’s family owned HCA, and suggested jokingly that Minuto should ask the family for IPO 

stock. (Id.). It appears that Coticchio was unaware that Minuto actually knew the Frist family. 

(Id.). 

Minuto contacted Senator Frist’s speech writer. (Id.). As a result of that contact, Minuto 

was able to secure 200,000 shares of HCA IPO stock through Bank of America Merrill Lynch. 

Fixelle and Minuto’s coworkers were elated. (Id. ¶¶ 16, 17). According to Minuto, Genesis was 

not accustomed to receiving such a large block of IPO shares. (Id. ¶ 18). 

On March 1, Fixelle asked Minuto to attempt to acquire an additional 100,000 HCA IPO 

shares, for a total of 300,000. Minuto succeeded. (Id. ¶ 19). The next day, Fixelle informed 

Minuto that he would be taking the additional 100,000 shares for his son, Coticchio, and himself. 

Minuto responded by e-mailing Fixelle’s son to tell him that he did not agree to be excluded 

from the additional 100,000 shares. (Id.). 

The next day, Fixelle told Minuto that if he wanted to remain employed at Genesis he 

would have to learn to “give a little back.” (Id. ¶ 21). Minuto responded that he was unaware of 

any other instances in the office where an employee gave shares he acquired to another coworker 

and alleges that, in his experience, coworkers typically did not give each other a portion of their 

earnings. (Id.). Fixelle “threw Minuto out of his office, but then almost immediately apologized 

and agreed that Minuto should keep the 100,000 shares.” (Id.). Fixelle then asked whether 

Minuto could increase the IPO allocation to 500,000 shares. (Id.). The next day Minuto was 

successful, bringing his total allocation to 700,000 IPO shares. (Id.). 

The morning on which HCA was to trade, Minuto acquired additional shares, putting the 

total allocation at 1 million shares. (Id. ¶ 22). The shares were purchased at $30 per share, and 

sold at $31.20 per share. (Id.). Minuto’s gross profit on the IPO offering was $1,120,000. This 

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was in addition to the profit on other trades that he executed in March 2011. (Id.). 

The day after the HCA IPO closed, Fixelle and Minuto travelled to Chicago for business 

meetings. (Id. ¶ 24). During that trip, Fixelle attempted to convince Minuto that the Wolfson 

Family was partly responsible for Minuto being allocated a large block of HCA IPO shares. 

(Id.). Minuto assured Fixelle that the shares were received solely because of Minuto’s 

relationship with Senator Frist’s office. (Id.). “Fixelle was compelled to agree, because he had 

been privy to several conversations between Minuto and Senator Frist’s speech writer, in which 

she agreed to ‘open the right doors’ for Minuto.” (Id.). 

Several days after the HCA IPO traded, Coticchio asked Minuto for $100,000 for having 

mentioned the HCA IPO to Minuto. (Id. ¶ 26). Coticchio then suggested Minuto give Coticchio 

$50,000 and the other $50,000 would come from Fixelle. (Id.). Minuto did not agree to make 

the payment to Coticchio. (Id.). 

“In April, Fixelle called Minuto into his office for a meeting.” (Id. ¶ 25). Fixelle once 

again told Minuto that if he expected to remain at Genesis he would have to “give back.” (Id.). 

Fixelle again asked Minuto if he thought that the Wolfson Family was responsible for his HCA 

IPO allocation. (Id.). Minuto answered “no.” (Id.). Fixelle then suggested that the Wolfson 

Family was ten percent responsible for the allocation. (Id.). Minuto disagreed. (Id.). 

Nevertheless, Fixelle dictated that Minuto would have to give the family ten percent of the total 

net profit from the HCA deal. (Id.). When Minuto protested, Fixelle told Minuto that he needed 

to at least give $75,000. (Id.). 

On or about April 5, 2011—after all trades for the month of March had been executed, 

booked and settled—Minuto requested his March P&L statement. (Id. ¶ 27). Minuto alleges 

that, according to his P&L statement, his P&L for the month of March was $448,899.77. (Id.). 

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Minuto alleges that Fixelle and Genesis improperly deducted $75,000 to be paid to the Wolfson 

Family. (Id.). 

At Genesis, paychecks are distributed to employees on the fifteenth of each month for the 

past month’s P&L. (Id. ¶ 28). On April l4th, Fixelle suggested to Minuto that he leave his 

money in the company. (Id.). Minuto had never heard of this being done at Genesis, and did not 

understand how leaving the money in Genesis could benefit him. (Id.). Minuto refused to keep 

his money in the company. (Id. ¶ 29). 

On April 14, 2011, Minuto called his broker at Goldman Sachs, Sara Naison-Russell, to 

inquire about opening a cash account with approximately $250,000. (Id. ¶ 30). The broker 

allegedly told Minuto that she would love to do more business with him. (Id.). When Minuto 

told Fixelle about the good news, he alleges that Fixelle said that he would not allow Minuto to 

open the cash account. (Id. ¶ 31). 

April 15, 2011 was payday at Genesis. (Id. ¶ 33). By 3:00 p.m. Minuto had not received 

his check. (Id.). Later that afternoon, Fixelle called Minuto into his office, and he handed 

Minuto an “adjusted” P&L statement showing a payment amount of $432,017.1l. (Id.). As 

previously stated, Minuto alleges that his March P&L was $448,899.77. (Id. ¶ 27). Minuto 

alleges that the P&L was “fraudulently doctored to reduce the true compensation to which 

Minuto was entitled.” (Id.). During that same meeting, Fixelle further stated that he did not 

have the money to pay the full check, but that he would give Minuto $150,000 and the rest would 

be paid the following Monday or Tuesday. (Id.). 

The following Tuesday, Fixelle provided Minuto with another check—but only for 

$100,000 (id. ¶ 34); as opposed to $150,000. As of that day, Minuto had only received $250,000 

of the total compensation allegedly due him. (Id.). Minuto assumed that Fixelle did not have the 

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remaining money but that it would be paid him the next day. (Id.). 

On that same day or some time soon after, Minuto recalled Coticchio’s earlier request for 

$50,000. Minuto wondered whether Fixelle had given Coticchio the $50,000 even though 

Minuto had never agreed to it. (Id. ¶ 35). Minuto sent a text message to Fixelle, asking to 

discuss Coticchio so that “they could get Coticchio ‘squared away.’” (Id.). Thereafter, allegedly 

under pressure from Fixelle and Coticchio, Minuto decided to pay Coticchio $25,000 “for 

nothing.” (Id.). When he later told Coticchio that he would pay him $25,000 rather than the 

$50,000 Coticchio requested, Coticchio informed Minuto that Fixelle had already earmarked 

Minuto’s $50,000 to pay for Coticchio’s $50,000 investment in an upcoming IPO. (Id.). 

When Minuto confronted Fixelle about the supposed $50,000 agreement, Minuto alleges 

that Fixelle “falsely stated” that Minuto had agreed that Minuto would “match whatever Fixelle 

gave Coticchio.” (Id. ¶ 37). Minuto alleges that he never agreed to such an arrangement. (Id.). 

Fixelle then stated that he was going to make an “executive decision.” (Id.). Fixelle stated: 

“‘Here is whats gonna happen, [Coticchio] is gonna get the $50,000.’” (Id.). Minuto responded 

“No, he’s not.” (Id.). When Minuto continued to refuse to pay Coticchio $50,000 of Minuto’s 

compensation, Fixelle told Minuto: “‘Well then get out, you’re not getting your money, you’re 

fired.’” (Id.). 

As Minuto gathered his belongings, Fixelle allegedly shouted profanities and told Minuto 

that he would never see any of his money and the money he was already paid would be spent on 

attorney’s fees. (Id. ¶ 38). Subsequent to the firing, Fixelle allegedly contacted most if not all of 

Minuto’s brokers “and falsely denigrated Minuto to them.” (Id. ¶ 55). 

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III. Legal Standards 

A. Rule 12(b)(6) 

On a motion to dismiss pursuant to Rule 12(b)(6), “courts are required to accept all well 

pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the 

non-moving party.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008); Burrell v. 

DFS Servs., LLC, 753 F. Supp. 2d 438, 440 n.1 (D.N.J. 2010) (holding that contradictory factual 

assertions on the part of defendants must be ignored). Courts must “determine whether, under 

any reasonable reading of the complaint, the Plaintiff may be entitled to relief.” Pinker v. Roche 

Holding Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). But, a complaint “must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). Determining whether the allegations in a 

complaint are “plausible” is “a context-specific task that requires the reviewing court to draw on 

its judicial experience and common sense.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). 

“Courts are not required to credit bald assertions or legal conclusions draped in the guise of 

factual allegations.” McCargo v. Hall, No. 11-553, 2011 WL 6725613, *1 (D.N.J. 2011) (citing 

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997)). A pleading that 

offers “labels and conclusions” or a “formulaic recitation of the elements of a cause of action 

will not do.” Iqbal, 129 S. Ct. at 1949 (citations omitted). Additionally, in evaluating a 

plaintiff’s claims, generally “a court looks only to the facts alleged in the complaint and its 

attachments without reference to other parts of the record.” Jordan v. Fox, Rothschild, O’Brien 

& Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). 

 “As a general matter, a district court ruling on a motion to dismiss may not consider 

matters extraneous to the pleadings. However, an exception to the general rule is that a 

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document integral to or explicitly relied upon in the complaint may be considered without 

converting the motion [to dismiss] into one for summary judgment.” DiFronzo v. Chiovero, 406 

F. App’x 605, 607 (3d Cir. 2011) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d at 

1426 (alteration and emphasis in original)). Any further expansion beyond the pleading, 

however, may require conversion of the motion into one for summary judgment. 

In Twombly, the Supreme Court set forth the “plausibility” standard for overcoming a 

motion to dismiss. It refined this approach in Iqbal. A complaint satisfies the plausibility 

standard when the factual pleadings “allow[] the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 

U.S. at 556). This standard requires showing “more than a sheer possibility that a defendant has 

acted unlawfully.” Id. A complaint that pleads facts “‘merely consistent with a defendant’s 

liability, stops short of the line between possibility and plausibility of entitlement of relief.’” Id.

(quoting Twombly, 550 U.S. at 557). 

With this standard in mind, the Court analyzes the parties’ arguments on dismissal. 

IV. Analysis 

Defendants move to dismiss the following claims: Count One (alleging common law 

fraud); Count Two (alleging breach of contract); Count Three (alleging breach of the implied 

covenant of good faith and fair dealing); Count Four (alleging intentional interference with 

prospective economic advantage); Count Five (alleging defamation); and Count Six (alleging 

unjust enrichment). The Court will now address each claim in turn. 

1. Count One: Fraud 

 Even accepting the facts of Plaintiff’s Complaint as true, the Court finds that Plaintiff has 

failed to sufficiently allege a plausible claim for fraud. The five elements of common law fraud 

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are: “(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief 

by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable 

reliance thereon by the other person; and (5) resulting damages.” Gennari v. Weichert Co. 

Realtors, 691 A.2d 350, 367 (N.J. 1997). 

Defendants argue that Minuto has failed to sufficiently allege facts to support the 

existence of a material misrepresentation, fraudulent intent, reliance, and damages. (Moving Br. 

at 6-10). Plaintiff responds that he has sufficiently alleged a plausible claim for common law 

fraud and points to several specific allegations in the Complaint for support. (Pl. Opp. Br. at 2-

4). 

Here, Minuto offers allegations from the Complaint that satisfy every element of the 

claim except the second element—“knowledge or belief by the defendant of its falsity.” For the 

first element, he alleges the misrepresentation (“he would be paid forty percent of his P&L”), 

who made it (Fixelle) and when it happened (at the time he was hired). (See Compl . ¶¶ 10, 40). 

He also provides sufficient facts to support the third element—“an intention that the other person 

rely on it”—because it is reasonable to infer that Fixelle would intend for Minuto to rely on the 

promise of the terms of employment when considering and ultimately accepting the offer of 

employment. Indeed, this inference is supported by Minuto’s allegation that he was hired partly 

because of his extensive personal contacts. (Id. ¶ 9). As to the fourth element, Minuto clearly 

relied on the statement because he became an employee of Genesis and traded IPO shares on its 

behalf. Finally, the alleged damages include, at the very least, his remaining compensation. (Id.

¶ 44). However, Minuto has failed to demonstrate that Fixelle had knowledge of the statement’s 

falsity. See Gennari, 691 A.2d at 367 (the second element of common law fraud requires the 

speaker’s knowledge of the statement’s falsity). There are no clear allegations that Fixelle knew 

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that he would not pay Minuto forty percent of his P&L. Moreover, the Complaint does not 

include allegations from which the Court could plausibly infer that the practice at Genesis is to 

promise a particular compensation package and then not perform on that promise. Indeed, even 

if such an inference could be made, it would conflict with Minuto’s allegation that he is unaware 

of anyone else at the office who had been asked to “give back” to Genesis or share with 

coworkers. (Id. ¶ 21, 28). In other words, as currently plead, the Complaint suggests that it is 

not Genesis’s common practice to promise a particular compensation structure and then not 

perform on that promise. Therefore, as the currently drafted, the Complaint fails to allege that 

Fixelle or Genesis had knowledge or belief of the falsity of Minuto’s compensation package. 

Based on the foregoing analysis, Count One for common law fraud is dismissed without 

prejudice. Plaintiff is granted leave to file an amended complaint within thirty days to cure the 

deficiencies identified above or by motion to amend the complaint if discovery reveals facts 

relevant to the deficiencies identified above.1

 

2. Count Two: Breach of Contract 

Accepting the facts of Plaintiff’s Complaint as true, the Court finds that Plaintiff has 

sufficiently alleged a plausible claim for breach of contract. To state a claim for breach of 

contract, a plaintiff must allege sufficient facts to demonstrate that (1) the parties entered into a 

valid contract; (2) defendant failed to perform his obligations under the contract; and (3) that 

plaintiff sustained damages as a result of the breach. Murphy v. Implicito, 920 A.2d 678, 689 

(N.J. Super. Ct. App. Div. 2007) (citation omitted). 

Defendants argue that Count Two should be dismissed because Plaintiff has failed to 

demonstrate that there was a valid and enforceable contract. (Moving Br., D.E. 4-1, at 10). 

 

1

 Plaintiff should be cognizant of the fact that any future pleadings will be subjected to scrutiny under Federal Rule 

of Civil Procedure 9(b), which imposes a heightened pleading requirement concerning allegations of fraud over and 

above that required by Rule 8(a). 

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Specifically, Defendants contend that Plaintiffs do not allege the form of the contract (written or 

oral), the term of employment, Minuto’s responsibilities, how or when Plaintiff would perform 

tasks, and how his work would be evaluated. (Id. at 11). Plaintiff argues that he does not have to 

provide such specificity at this stage of the litigation and, even so, an essential term—

compensation—was present and clearly defined in the Complaint. (Pl. Opp. Br., D.E. 5, at 5). 

 “Parties create an enforceable contract when they agree on essential terms and manifest 

an intent to be bound to those terms.” Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284 (N.J. 

1992) (internal quotes and cites omitted). The Third Circuit has held that the form of a contract 

need not be pled in the Complaint to withstand 12(b)(6) scrutiny, even when a written contract is 

statutorily required, if subsequent actions indicate the existence of a contract. Jame Fine 

Chemicals Co., Inc. v. Hi-Tech Pharmacal Co., Inc., 44 F. App’x. 602 (3d Cir. 2002). 

Here, Plaintiff alleges that “Genesis contracted with Minuto and agreed to pay him forty 

percent of his monthly P&L.” (Compl. ¶ 46). As to his responsibilities, he clearly states that he 

was hired by Genesis “to start and manage a hedge fund with the assets of Genesis.” He was “to 

establish a limited liability company (LLC) in which he was the sole, managing member.” 

Through the LLC, he “was to acquire broker relationships at large bracket banks on Wall Street . 

. . [through which he] was to exclusively trade shares of [IPOs].” (Id. ¶ 6). 

Throughout the Complaint, Minuto describes in detail his work as an employee of 

Genesis. And, tellingly, Defendants do not deny that such employment existed. Therefore, his 

subsequent work for and interactions with Genesis and Fixelle sufficiently indicate the existence 

of an agreement. Finally, as to the term of employment, Minuto alleges that Fixelle estimated 

that, depending on Minuto’s progress, it would take Minuto between three and six months before 

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Minuto would earn money “equal to or in excess of the draw.” (Id. ¶ 10). At the very least, this 

indicates that Fixelle envisioned that Minuto would remain with Genesis for at least six months. 

Defendants’ reliance on Baer v. Chase, 392 F.3d 609 (3d Cir. 2004) and Leibholz v. 

Hariri, No. 05-5148, 2011 WL 1466139 (D.N.J. Apr. 15, 2011) to support their contention that 

Minuto must plead with significantly more specificity is unpersuasive because both of those 

cases dealt with summary judgment, which imposes a higher standard on proving factual 

allegations than Rule 12(b)(6). 

For the foregoing reasons, the Court finds that Plaintiff has alleged sufficient facts to 

state a claim for breach of contract that is plausible on its face. 

3. Count Three (Breach of the Implied Covenant of Good Faith and Fair Dealing) 

Accepting the facts of Plaintiff’s Complaint as true, the Court finds that Plaintiff has 

sufficiently alleged a claim for breach of the implied covenant of good faith and fair dealing. 

Every contract entered into under the laws of New Jersey contains an implied covenant of good 

faith and fair dealing. Kalogeras v. 239 Broad Ave., L.L.C., 997 A.2d 943, 953 (N.J. 2010). 

“Good faith entails adherence to community standards of decency, fairness or reasonableness, 

and requires a party to refrain from destroying or injuring the right of the other party to receive 

its contractual benefits.” Iliadis v. Wal–Mart Stores, Inc., 922 A.2d 710, 722 (N.J. 2007) 

(internal citations and quotations omitted). “The party claiming a breach of the covenant of good 

faith and fair dealing ‘must provide evidence sufficient to support a conclusion that the party 

alleged to have acted in bad faith has engaged in some conduct that denied the benefit of the 

bargain originally intended by the parties.’” Brunswick Hills Racquet Club, Inc. v. Route 18 

Shopping Ctr. Assocs., 864 A.2d 387, 396 (N.J. 2005) (citation and internal quotations omitted). 

“A plaintiff may be entitled to relief in an action under the covenant if the defendant acts with ill 

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motives and without any legitimate purpose to destroy the plaintiff's reasonable expectations.” 

Wilson v. Amerada Hess Corp., 773 A.2d 1121, 1130 (N.J. 2001). However, “bad motive or 

intention is essential,” and “an allegation of bad faith or unfair dealing should not be permitted to 

be advanced in the abstract and absent improper motive.” Id.

 Defendants argue that Plaintiff has failed to allege sufficient facts to indicate the 

existence of a contract and therefore Minuto’s argument about the implied covenant is moot. 

(Moving Br. at 12). Alternatively, even assuming the existence of a contract, Defendants argue 

that Plaintiff has failed to sufficiently allege that Defendants had “bad motive or intention.” 

Plaintiff argues that he has sufficiently alleged “bad motive or intention” and points to several 

specific allegations in the Complaint for support. (Pl. Opp. Br. at 5-6). 

 The Court has already determined that Plaintiff sufficiently pled facts to support the 

plausible existence of a contract. Therefore, the Court need only address whether Plaintiff has 

sufficiently alleged Defendants’ bad motive or intention. Minuto states that the essential term of 

the agreement was that, once he reached the $7,000 threshold, he was to be paid the higher of the 

draw ($7,000) or forty percent of his net P&L. (Compl. ¶ 10). Thus, he had a reasonable 

expectation that he would receive one of the two amounts on a monthly basis. Defendants’ ill 

motives and purpose to destroy Minuto’s reasonable expectations are demonstrated by Plaintiff’s 

allegations that Fixelle (1) told Minuto he would have to give some of his money back to the 

company if he wanted to remain at Genesis, (id. ¶¶ 21, 25); (2) attempted to force Minuto into 

paying $75,000 to the Wolfson Family, (id. ¶ 25); (3) attempted to force Minuto into paying a 

part of his compensation to Coticchio, (id. ¶ 36); (4) attempted to take 100,000 shares of the 

HCA IPO from Minuto, (id. ¶ 20); (5) paid Minuto less than his expected P&L, (id. ¶¶ 33-34); 

and (6) “doctor[ed]” Minuto’s P&L so as to reduce the true compensation to which he was 

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entitled, (id. ¶ 32). Further, as Minuto explains, the improper requests for shares or money were 

not common to the office culture. (Id. ¶¶ 21, 28). Each of the foregoing allegations is sufficient 

to demonstrate Defendant’s ill motive or intent to destroy Minuto’s expectations as to his 

income, i.e., forty percent of his net P&L. 

 Based on the foregoing, the Court finds that Plaintiff has sufficiently pled Count Three of 

the Complaint. 

4. Count Four (Intentional Interference with Prospective Economic Advantage) 

Accepting the facts of Plaintiff’s Complaint as true, the Court finds that Plaintiff has 

sufficiently alleged a claim for intentional interference with prospective economic advantage. 

The elements of an intentional interference claim are: “(1) a plaintiff's reasonable expectation of 

economic benefit or advantage, (2) the defendant’s knowledge of that expectancy, (3) the 

defendant’s wrongful, intentional interference with that expectancy, (4) in the absence of 

interference, the reasonable probability that the plaintiff would have received the anticipated 

economic benefit, and (5) damages resulting from the defendant’s interference.” Printing Mart–

Morristown v. Sharp Elec. Corp., 563 A.2d 31, 36-37 (N.J. 1989); Central Lewmar, L.P. v. 

Gentilin, No. 03-4671, 2005 WL 1308235, *4 (D.N.J. June 1, 2005) (citation omitted). 

In support of Count Four, Plaintiff alleges that “subsequent to Fixelle firing Minuto, 

Fixelle contacted most if not all of [the] brokers and falsely denigrated Minuto to them.” (Compl. 

¶ 55). “In contacting the brokers and falsely denigrating Minuto to them, Fixelle intended to 

destroy Minuto’s relationships with these brokers in an effort to commandeer them for his 

benefit and that of Genesis.” (Id. ¶ 56). As a result, Minuto has been damaged “in that Minuto 

no longer is able to do business with these brokers. He has lost all future business that he would 

otherwise have been able to generate with them.” (Id. ¶ 57). 

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Defendants argue that Plaintiff has failed to sufficiently allege the following three 

elements of intentional interference with prospective economic advantage: (1) a reasonable 

expectation of economic benefit or advantage; (2) the defendant’s wrongful, intentional 

interference with that expectancy; and (3) damages resulting from the defendant’s interference. 

(Moving Br. at 15). Specifically, Defendants argue that Plaintiff’s allegation of a reasonable 

expectation of economic benefit or advantage is at most speculative because Plaintiff does not 

name the specific brokers with whom he expected to have relationships in the future, the nature 

of those relationships and to what extent he could be certain of the expected economic benefit. 

(Id. at 15-16). Further, Defendants contend that Plaintiff cannot prove that Fixelle’s conduct was 

wrongful because Minuto does not provide specificity as to what Fixelle said to denigrate 

Plaintiff’s reputation. (Id. at 16-17). Finally, Defendants argue that Minuto does not sufficiently 

allege damages. Plaintiff replies that he has sufficiently pled these elements and points to 

specific allegations in the Complaint for support. (Pl. Opp. Br. at 7-8). 

Taking all of the allegations in the Complaint as true, the Court finds that Plaintiff has 

sufficiently alleged “a reasonable expectation of economic benefit or advantage.” Plaintiff 

alleges that he “established broker coverage at Goldman Sachs, JP Morgan, Deutsche Bank, 

Credit Suisse and Bank of America Merrill Lynch.” (Compl. ¶ 9). He was able to open broker 

accounts at these banks because of his “significant personal contacts within the banks.” (Id.). 

These personal contacts “were one of the principal reasons he was hired by Genesis.” (Id.). 

Thus, he identifies the specific banks with which he had relationships and which relationships 

Genesis recognized. In addition, he identifies a specific person at Goldman, Sara NaisonRussell, with whom he set up a $250,000 account and who “told Minuto that she would love to 

do more business with him.” (Id. ¶ 30). That allegation alone indicates a prospective economic 

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relationship with at least one bank and broker. Solutions Partners, Inc. v. Thomas, No. 09-4778, 

2010 WL 2036139, at *3 (D.N.J. 2010) (“In this case, although Thomas does not allege 

explicitly that he has a contractual relationship with South Jersey Healthcare, he does allege that 

he has a working relationship with it, sufficient for him to reasonably expect economic 

advantages.”). The cases on which Defendants rely are inapposite. See, e.g., Novartis 

Pharmaceuticals Corp. v. Bausch & Lomb, Inc., No. 07-5945, 2008 WL 4911868, at *7 (D.N.J. 

November 13, 2008) (dismissing claim where plaintiff failed to “identify one physician, 

company, or other entity, with whom it currently does business, or has the reasonable 

expectation of doing business in the future”); Valentine v. Bank of America, No. 09-262, 2010 

WL 421087, at *3-4 (D.N.J. Feb. 1, 2010) (dismissing bank tellers claims as “speculative” where 

plaintiff could not point to specific relationships or contracts). 

As to whether Minuto has pled “wrongful, intentional interference,” the Court is unaware 

of any case in the Third Circuit or District of New Jersey that requires the actual content of the 

statements to be pled at this stage in the litigation. The Third Circuit case on which Defendants 

rely does not appear to stand for that proposition. See, e.g., American Millennium Ins. Co. v. 

First Keystone Risk Retention Group, Inc., 332 Fed.Appx. 787, 790-791 (3d Cir. 2009) (“AMI 

makes only a bald assertion that the RRG’s conduct was intentional, and does not allege facts 

that could substantiate the necessary existence of malice.”). Indeed, this particular element only 

requires some allegation that Defendant’s conduct was wrongful and intentional. Id. Here, 

Plaintiff alleges that “Fixelle contacted most if not all of [the] brokers and falsely denigrated 

Minuto to them,” (Compl. ¶ 55), because “Fixelle intended to destroy Minuto’s relationships 

with these brokers in an effort to commandeer them for his benefit and that of Genesis,” (id. ¶ 

56). These allegations are sufficient because they allege wrongful and intentional conduct (i.e.

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lying in order to usurp a broker relationship). The Court notes that the case on which Plaintiff 

relies—In re Prudential Ins. Co. of Am. Sales Practices Litig., 975 F. Supp. 584 (D.N.J. 1996)—

dealt with fraud and is therefore inapplicable here. (Pl. Opp. Br. at 8). 

Finally, Defendants’ argument that Minuto must allege damage with specificity is 

incorrect. The cases on which Defendants rely are inapposite. In Solutions Partners, the 

plaintiff did not identify what past or future opportunities had been impaired. See Solutions 

Partners, 2010 WL 2036139, at *3 (“In other words, Thomas is responsible to plead what, if 

any, opportunities have already been impaired or what future assignments he may lose on 

account of SPI’s interference.”). In Koger, the plaintiff failed to identify specific business 

relationships and defendant’s specific alleged conduct. Koger, Inc. v. Klco, No. 08-4175, 2009 

WL 905061, at *5 (D.N.J. Mar. 9, 2009) (“Count I makes no factual allegations identifying what 

business relationships were interfered with nor specifying the conduct of Defendants that has 

injured Plaintiff.”). Here, as discussed earlier, Plaintiff has identified several banks and at least 

one person with whom he had a prospective business relationship. 

Accordingly, the Court finds that Plaintiff has pled sufficient facts to state a plausible 

claim for intentional interference with prospective economic advantage under Count 4. 

5. Count 5 (Defamation) 

Even accepting the facts of Plaintiff’s Complaint as true, the Court finds that Plaintiff has 

failed to sufficiently allege a plausible claim for defamation. The elements of defamation are: 

“(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged 

publication of that statement to a third party; and (3) fault amounting at least to negligence by the 

publisher[;]” and (4) damages. DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004). A 

plaintiff must plead special damages, which are defined as “harm of a material or pecuniary 

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nature.” Ward v. Zelikovsky, 643 A.2d 972, 984 (N.J. 1994). The Court may not infer damages. 

Id. at 984. 

Defendant argues that Plaintiff has failed to sufficiently allege (a) a false and defamatory 

act and (b) damages. (Moving Br. at 18-20). Plaintiff argues that he has plead the existence of a 

false and defamatory statement, and that details such as what specifically was said and where it 

was said will be revealed through discovery and need not be pled here. (Pl. Opp. Br. at 8-9). 

Plaintiff alleges the following as to defamation: 

In an effort to commandeer Minuto’s business relationships with Goldman Sachs 

and other brokers, Fixelle defamed Minuto by uttering false statements about him 

to brokers. Minuto has been damaged as a result of this defamation, in that 

Minuto no longer is able to do business with these brokers. He has lost all future 

business that he would otherwise have been able to generate with them. 

(Compl. ¶¶ 58-60). 

 The Court finds that Plaintiff has failed to allege a false and defamatory act. While a 

Plaintiff “is not required to plead every element of a prima facie case,” he “must plead facts 

sufficient to identify the defamatory words, their utterer and the fact of their publication.” 

Zoneraich v. Overlook Hosp., 514 A.2d 53, 63 (N.J. Super. Ct. App. Div. 1986). In other words, 

he must identify the “when, where, by which defendants and by what words ... [he] was 

defamed.” Id. at 62. Here, Defendant has pled when he was defamed—in the time after he was 

fired. He has also pleads who defamed him—Fixelle. Finally, he pleads where the defamatory 

statements were made—at the specific banks. He does not, however, plead what specific 

statements were made. For that reason, Plaintiff’s defamation claim is dismissed without 

prejudice. Foy v. Wakefern Food Corp., No. 09-1683, 2010 WL 147925, at *6 (D.N.J. Jan. 7, 

2010) (dismissing claim where plaintiff alleged only the following: “[Defendant] did and 

continues to make defamatory statements about [Plaintiff] that are false, i.e. [Plaintiff] was a 

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criminal that stole goods. Those false statements and documents are published to third parties, 

and [Plaintiff] continues to be harmed by such defamatory statements.”); Zoneraich v. Overlook 

Hosp., 514 A.2d 53, 62 (N.J. Super. Ct. App. Div. 1986) (dismissing claim where plaintiff 

alleged: “The defendants have tortiously interfered with plaintiff in the exercise of her profession 

and they have slandered and defamed her and willfully, unlawfully and maliciously exposed her 

to public ridicule.”). Plaintiff’s reliance on In re Prudential Ins. Co. of Am. Sales Practices Litig. 

for the proposition that Plaintiff need not plead the contents of the statements here because that 

content is within the knowledge and control of Defendants, is inapposite. The court in 

Prudential was discussing the heightened pleading standard governing fraud and the need to 

plead every element with particularity in the Complaint. In re Prudential Ins. Co. of Am. Sales 

Practices Litig., 975 F. Supp. at 584 (citation omitted). 

 Based on the foregoing analysis, Count 5 for defamation is dismissed without prejudice. 

Plaintiff is granted leave to file an amended complaint within thirty days to cure the deficiencies 

identified above or by motion to amend the complaint if discovery reveals facts relevant to the 

deficiencies identified above. 

6. Count 6 (Unjust Enrichment) 

Accepting the facts of Plaintiff’s Complaint as true, the Court finds that Plaintiff has 

sufficiently alleged a plausible claim for unjust enrichment. In New Jersey, a plaintiff claiming 

unjust enrichment must show that (1) that the defendant received a benefit from the plaintiff; and 

(2) the defendant’s retention of that benefit without payment would be unjust. Cameco, Inc. v. 

Gedicke, 690 A.2d 1051, 1059 (N.J. Super. Ct. App. Div. 1997) (citation omitted). “The unjust 

enrichment doctrine requires that the plaintiff show that [he] expected remuneration from the 

defendant at the time [Plaintiff] performed or conferred a benefit on [the] defendant and that the 

failure of remuneration enriched [the] defendant beyond its contractual rights.” Id. 

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Defendants argue that Plaintiff must do more than merely allege that Defendants were 

“unjustly enriched.” According to Defendants, Minuto must provide substantive allegations 

demonstrating why the enrichment was “unjust” and “beyond Defendant’s contractual rights.” 

(Moving Br. at 22) (citations omitted). Defendants argue that Plaintiff has failed to sufficiently 

plead “enrichment” or that it would be “unjust” to allow them to retain that benefit. Specifically, 

Defendants contend that Plaintiff claims that the HCA trade resulted in $1,120,000, but does not 

take into consideration the commissions, transaction costs, or the cost of the capital required to 

complete the transactions. Nor does Plaintiff address whether the gross profit was fair 

compensation for the risk Defendants took in purchasing one million shares. (Moving Br. at 22). 

Plaintiff argues that he has sufficiently pled the elements of unjust enrichment and points to 

allegations in the Complaint for support. (Pl. Opp. Br. at 9-10). 

The Court finds that Plaintiff has sufficiently pled unjust enrichment. The Court has 

already determined that Plaintiff has sufficiently pled facts that suggest the the existence of a 

valid and enforceable contract. An essential term of that contract was that once “Minuto reached 

the $7,000 threshold, he was [to] be paid, monthly, the higher of the [$7,000] draw or . . . forty 

percent of the net P&L regarding his transactions.” During and in the scope of his employment, 

Minuto claims to have brokered a deal involving one million HCA shares which produced a 

gross profit of $1,120,000 on the IPO offering. This was in addition to the profit on other trades 

he executed during March 2011. (Compl. ¶ 22). Further, he claims that the paycheck he 

received on April 5, 2011 indicated less than he believed he was entitled to under the terms of his 

agreement and in light of the HCA trade. (Id. ¶ 27). A revised paycheck given to him on April 

15, 2011 indicated an even smaller amount. (Id. ¶ 32). He alleges that he was not paid the full 

amount of what he is entitled to under his agreement with Genesis. (Id. ¶¶ 34, 38). Indeed, 

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Plaintiff alleges that Fixelle told him “you’re not getting your money” and that Fixelle would 

make sure that Minuto would never see any of his money.” (Id. ¶¶ 37, 38). The preceding 

allegations plausibly suggest that Minuto conferred a benefit on Genesis—high profits from the 

HCA trade—through his own work, and that Genesis and Fixelle were unjustly enriched in that 

they kept a portion of the forty percent of P&L from that trade that Minuto was entitled to under 

the terms of his employment agreement with Genesis. Therefore, the Court finds that Plaintiff 

has sufficiently pled unjust enrichment. Defendants’ argument that Plaintiff does not take into 

account the costs and risks that went into his executing the HCA does nothing to diminish the 

allegation that he conferred a benefit on Defendants. 

Accordingly, the Court finds that Plaintiff has sufficiently pled Count 6 of the Complaint. 

V. Conclusion 

 Based on the foregoing, Defendants’ motion to dismiss (D.E. 4) is GRANTED in part 

and DENIED in part. An appropriate Order shall follow. 

s/Esther Salas 

 Esther Salas, U.S.D.J.

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