Levista, Inc. v. Ranbaxy Pharmaceuticals, Inc. , 450 F. App'x 54 ( 2011 )

10-5288-cv
LeVista, Inc. v. Ranbaxy Pharms., Inc.
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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of December, two thousand eleven.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
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LEVISTA, INCORPORATED,
Plaintiff-Appellant,
v. No. 10-5288-cv
RANBAXY PHARMACEUTICALS, INCORPORATED,
Defendant-Appellee.
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APPEARING FOR APPELLANT: ROBERT S. ARBEIT, Pinks, Arbeit, Boyle &
Nemeth, Hauppauge, New York.
APPEARING FOR APPELLEE: DAVID W. PHILLIPS, LeClairRyan, New York,
New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Sandra J. Feuerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on December 7, 2010, is
AFFIRMED.
LeVista, Inc., appeals from the dismissal of its amended complaint for breach of
contract. See Fed. R. Civ. P. 12(b)(6).1 In reviewing the dismissal de novo, we assume the
truth of all facts alleged in the amended complaint, as well as in documents attached to the
original pleading on which LeVista continues to rely, and we draw all reasonable inferences
in LeVista’s favor. See Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany, 615
F.3d 97, 113-14 (2d Cir. 2010), cert. denied, 131 S. Ct. 1502 (2011); Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). To avoid dismissal, a complaint must
contain sufficient factual matter to “state a claim to relief that is plausible on its face,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which means that the plaintiff must plead
sufficient factual content to allow a court to draw the “reasonable inference that the
defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949-50 (2009). Where, as here, the misconduct alleged is breach of a contract for the
sale of goods, liability under New York’s Uniform Commercial Code, which the parties
agree controls this action, depends on (1) the existence of an agreement, (2) adequate
1
Plaintiff’s amended complaint was filed after the district court dismissed the initial
complaint, and granted leave to replead the breach of contract claim. Insofar as the district
court also dismissed with prejudice initial claims for tortious interference with business
relations and specific performance, plaintiff does not appeal, and therefore we do not discuss
these claims further.
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performance by plaintiff, (3) breach by defendant, and (4) damages. See N.Y. U.C.C. § 2-
102; Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177
(2d Cir. 2004). In applying these principles, we assume the parties’ familiarity with the facts
and record of prior proceedings, which we reference only as necessary to explain our
decision to affirm.
With respect to the first element, LeVista alleged that in May 2008, it entered into an
agreement with defendant Ranbaxy Pharmaceuticals, Inc. (“Ranbaxy”) whereby it agreed to
purchase and Ranbaxy agreed to sell 25,000 bottles of the drug Cephalexin for $19/bottle less
a cash discount of 2%, the sale to be effected through two deliveries as initially reflected in
two purchase orders numbered 241 and 242. There is no question that Ranbaxy made the
first delivery. Nevertheless, Ranbaxy disputes whether the parties ever reached an agreement
as to the second delivery. Because the Statute of Frauds requires that a contract for the sale
of goods in an amount over $500 be in a writing signed by the party against whom
enforcement is sought, see N.Y. U.C.C. § 2-201, LeVista alleges that a June 16, 2008 email
by Ranbaxy agent Tim Gustafson demonstrates defendant’s acceptance of the alleged
unilateral agreement for the sale of 25,000 bottles of Cephalexin. In that email, Gustafson
implicitly acknowledges receipt of LeVista’s two purchase orders as well as a $134,231.58
part payment for the first purchase order, and expresses an intent to “finalize the first half of
the deal” in the future. Am. Compl. ¶ 10. We need not here decide whether these statements
are sufficient plausibly to indicate Ranbaxy’s agreement to both purchase orders as two
halves of a single “deal,” because even if we were to resolve that question favorably to
LeVista, its contract claim would fail on the second element: its own performance.
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Both the express terms of the parties’ alleged agreement and their course of
performance, see N.Y. U.C.C. § 2-208(2), demonstrate that Ranbaxy’s delivery obligation
under the second purchase order was not triggered because LeVista did not pay Ranbaxy any
amount due under the purchase order in advance. The purchase orders purportedly agreed
to by Ranbaxy were pre-printed forms, prepared by LeVista, stating that 50% of the purchase
price for the order placed therein was to be paid upfront and 50% on receipt of the goods.
The parties’ course of performance, at least with respect to each shipment made under the
first purchase order, in fact indicates full payment in advance. We need not here decide
whether LeVista was obligated to pay 50% or 100% of the second purchase order in advance
because LeVista does not—and apparently cannot—allege that it ever paid Ranbaxy anything
with respect to the second purchase order.
In an effort to excuse its own failure of performance, LeVista alleges that Ranbaxy
failed to provide it with the lot numbers and expiration dates required for the second part of
the purchase agreement. It submits that Ranbaxy’s agreement to this requirement is
evidenced by the fact that, in response to LeVista’s request for this information, Gustafson
sent email replies on September 18, 2008, indicating that he would talk to LeVista’s agent
in the following days. Because Ranbaxy never supplied the information, LeVista maintains
that defendant breached the agreement, and argues further that defendant never stated that
it viewed plaintiff in breach of its agreement to pay. Like the district court, we conclude that
the argument fails on the merits.
Nothing in the purchase orders or any other written document required Ranbaxy to
provide LeVista with the lot numbers and expiration dates of drugs. Rather, the purchase
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orders prepared by LeVista stated the lot numbers and expiration dates of the drugs at issue
and required Ranbaxy to notify LeVista “immediately” if defendant could not ship the
specified items. With respect to the first purchase order, Ranbaxy performed this obligation
and advised LeVista that it would substitute a different lot number. Thus, while it may have
been understandable that LeVista would seek Ranbaxy’s confirmation that the lot numbers
on the second order were to be as specified in the second purchase order, and while Ranbaxy
may have indicated a willingness to discuss the point further, it was under no contractual
obligation to provide such confirmation, so as to make its failure to follow up on its
September 18 email a breach of contract absolving plaintiff of its performance obligation to
make payment before shipment.
For the first time on appeal, LeVista argues that even if Ranbaxy is not in breach of
its delivery obligations, it is in breach of the 2% cash discount provision of the contract with
respect to the drugs it did deliver, making it liable to LeVista for $6,620.04 in damages. On
appeal, Ranbaxy argues, as it did below, that these allegations in the amended complaint
contradict LeVista’s allegation in its original complaint that Ranbaxy “sold and delivered to
the plaintiff 14,618 bottles,” and that LeVista paid “$19.00 per bottle, less the cash discount
of 2%.” Compl. ¶ 10. While the district court did not address the issue in its opinion
dismissing the amended complaint, see LeVista, Inc. v. Ranbaxy Pharms., Inc., No. 09-CV-
0569 (SJF) (ARL), 2010 WL 5067843 (E.D.N.Y. Dec. 2, 2010), LeVista never argued to the
district court that it was contractually entitled to the cash discount and damages for
overpayment, and raises this claim for the first time before this court in the last three
sentences of its brief. Accordingly, LeVista has waived this argument on appeal. See In re
Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008).
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We have considered LeVista’s remaining arguments on appeal and have concluded
that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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