BRANDON BRADY FARMS INC v. EDF RENEWABLES DEVELOPMENT INC LLC LLC (2026)

DECISION AND ORDER

INTRODUCTION

Plaintiff Brandon M. Brady Farms, Inc. (“Plaintiff”) brings this action for breach of contract and related claims for breach of the covenant of good faith and fair dealing, conversion, and unjust enrichment related to the extraction of soil and stone from a leased property. (Dkt. 12). Defendants EDF Renewables Development, Inc. (“EDF”), Morris Ridge Solar Energy Center, LLC (“Morris Ridge”), and Blattner Energy, LLC (“Blattner”) (collectively “Defendants”) move to dismiss the amended complaint (Dkt. 14) and to seal documents filed in connection with their motion (Dkt. 9; Dkt. 15). For the reasons that follow, the motion to dismiss (Dkt. 14) is granted in part and denied in part; and the motions to seal (Dkt. 9; Dkt. 15) are denied without prejudice.¹

BACKGROUND

I. FACTUAL BACKGROUND

The following facts are drawn from Plaintiff's amended complaint. As required on a Rule 12(b)(6) motion to dismiss, Plaintiff's well-pleaded factual allegations are taken as true.

In 2018, Brandon M. Brady (“Brady”) and Tyrye Real Estate Holdings, LLC (“Tyrye”) jointly entered into a land lease agreement with Brownfield Group, LLC (“Brownfield”), which permitted Brownfield to install a “solar energy facility” on property owned by Brady and Tyrye. (Dkt. 12 at ¶ 5). The lease agreement was amended shortly thereafter and assigned to EDF as the successor-in-interest to Brownfield. (Id. at ¶ 6). In 2019, Brady and Tyrye executed two separate Amended and Restated Solar Land Leases (the “Solar Land Leases”) with EDF involving the same property in the original lease agreement. (Id. at ¶ 7). The leased property included four parcels of land, with the first lease comprising approximately 482 acres and the second lease totaling approximately 806 acres (the “Property”). (Id. at ¶ 10). On August 25, 2021, EDF assigned its interest in the Solar Land Leases to Morris Ridge, a wholly owned subsidiary of EDF. (Id. at ¶¶ 8-9). Brady and Tyrye transferred the Property to Plaintiff in 2022, and as a result, the Solar Land Leases are currently between Plaintiff as lessor and Morris Ridge as lessee. (Id. at ¶¶ 11-12).

The Solar Land Leases provide specific provisions regarding permissible use of the Property for the operation of a solar energy system (the “Project”). (Id. at ¶ 13). While the Solar Land Leases give the lessee the right to “extract soil samples ․ as Lessee deems necessary, useful, and appropriate,” the contracts do not expressly permit lessee to outright remove soil and stone from the Property. (Id. at ¶¶ 18, 23). In 2024, Plaintiff discovered that Defendants were removing “thousands of cubic feet of soil and stone” in violation of the Solar Land Leases and brought this action. (Id. at ¶¶ at 21-22). Plaintiff believes the impermissible soil extraction began in February 2024. (Id. at ¶ at 22).

II. PROCEDURAL BACKGROUND

Defendants removed this action from state court on April 14, 2025, on the basis of diversity jurisdiction. (Dkt. 1). Defendants moved to dismiss the complaint shortly after removal and submitted a motion to seal exhibits attached to the motion to dismiss. (Dkt. 8; Dkt. 9). Thereafter, Plaintiff filed an amended complaint (Dkt. 12), which remains the operative pleading. Defendants moved to dismiss the amended complaint (Dkt. 14) and submitted another motion to seal exhibits attached to the second dismissal motion (Dkt. 15). Plaintiff opposes the second motion to dismiss (Dkt. 17) but joins in Defendants’ request to seal the exhibits (Dkt. 18). Defendants have replied in further support of the motion to dismiss. (Dkt. 19).

DISCUSSION

I. LEGAL STANDARDS

A. Motion to Seal

“In considering a motion to seal, the court undertakes a three-part analysis. First, the court must determine whether the document is in fact a judicial document․ Second, once the Court finds that the document is a judicial document, the court must determine the weight of the presumption [of public access] that attaches․ Third, once the Court has determined the weight to accord the presumption of public access, it must determine whether competing considerations outweigh the presumption.” Spectrum Dynamics Med. Ltd. v. Gen. Elec. Co., No. 18CV11386(VSB)(KHP), 2023 WL 7126251, at *1 (S.D.N.Y. Oct. 30, 2023) (citation modified). To overcome the presumption of public access to judicial documents, the Court must make “specific, on-the-record findings that sealing is necessary to preserve higher values” and any sealing order must be “narrowly tailored to achieve that aim.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006).

B. Motion to Dismiss

“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). This consideration also includes “documents upon which the complaint relies and which are integral to the complaint.” Subaru Distributors Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005). A court should evaluate the motion by “accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N. Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

II. ANALYSIS

A. Motion to Seal

Defendants submitted two motions to seal exhibits submitted in connection with their motions to dismiss the complaint and amended complaint. (Dkt. 9; Dkt. 15). Both motions seek to seal the same exhibits attached to the respective dismissal motions, which are the first amended solar land lease agreement (“Exhibit A”) (Dkt. 8-2; Dkt. 14-2); the second solar land lease agreement (“Exhibit C”) (Dkt. 8-4; Dkt. 14-4); and the second amendment to the first solar land lease (“Exhibit H”) (Dkt. 8-9; Dkt. 14-9).

The Court must first consider whether the exhibits requested to be sealed are judicial documents. “In order to be designated a judicial document, ‘the item filed must be relevant to the performance of the judicial function and useful in the judicial process.’ ” Lugosch, 435 F.3d at 119 (quoting United States v. Amodeo, 71 F.3d 1044, 1045 (2d Cir. 1995)).

The exhibits proposed to be sealed are the Solar Land Leases at issue in this matter and Plaintiff explicitly “incorporate[s] by reference” these agreements into the amended complaint. (Dkt. 12 at ¶ 7). Indeed, Plaintiff does not oppose the Court's consideration of the Solar Land Leases on the motion to dismiss the amended complaint. (See Dkt. 17 at 10).² Although a Court may not ordinarily review documents outside the complaint on a Rule 12(b)(6) motion to dismiss, a Court may consider extrinsic documents that are “incorporated into the complaint by reference” or “integral to the complaint.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010).

Because the lease agreements are explicitly incorporated by reference into the amended complaint and Plaintiff relies on the terms of the agreements as the basis for its claims, thus rendering the leases integral to the complaint, the Court will consider Exhibit A, Exhibit C, and Exhibit H in resolving the underlying motion to dismiss. Therefore, these exhibits are judicial documents and there is a “strong presumption” in favor of public disclosure. See Bernsten v. O'Reilly, 307 F. Supp. 3d 161, 166 (S.D.N.Y. 2018) (“Just as with documents submitted in connection with a Motion for Summary Judgment, documents filed in connection to a Motion to Compel Arbitration or Dismiss ‘are judicial documents to which a presumption of immediate public access attaches under both the common law and the First Amendment.’ ” (quoting Lugosch, 435 F.3d at 126)).

Defendants contend that the Court should seal these exhibits in their entirety because there are confidentiality provisions in the lease documents and disclosing the contents of the lease agreements, including payment terms, project size, insurance coverage information, and negotiated tax obligations, will harm their business interests and hurt their competitive status by providing insight into its negotiations. The Court must consider whether these reasons outweigh the presumption in favor of public access.

As noted, to overcome the presumption of public access to judicial documents, sealing must be “necessary to preserve higher values” and any sealing order must be “narrowly tailored to achieve that aim.” Lugosch, 435 F.3d at 124. As an initial matter, it is well-established that “[c]onfidentiality agreements alone are not an adequate basis for sealing.” Metcalf v. TransPerfect Translations Int'l, Inc., No. 19CV10104AJNKHP, 2022 WL 2116686, at *1 (S.D.N.Y. June 13, 2022); see also Under Seal v. Under Seal, 273 F. Supp. 3d 460, 471 (S.D.N.Y. 2017) (“[C]ourts in this district have repeatedly found that the preservation of such bargained-for confidentiality does not overcome the presumption of access to judicial documents.”). But exhibits that “include sensitive client information and proprietary business information, including inter alia, the company's billing rates and project pricing, as well as details of specific projects completed for several clients” should be sealed. Hesse v. SunGard Sys. Int'l, No. 12 CIV. 1990 CM JLC, 2013 WL 174403, at *2 (S.D.N.Y. Jan. 14, 2013). Indeed, “courts ‘routinely permit parties to redact sensitive financial information’ from public filings.” Delta Air Lines, Inc. v. Bombardier, Inc., 462 F. Supp. 3d 354, 358 (S.D.N.Y. 2020) (quoting Graczyk v. Verizon Commc'ns, Inc., No. 18 Civ. 6465 (PGG), 2020 WL 1435031, at *9 (S.D.N.Y. Mar. 24, 2020)). Sensitive insurance coverage information may also be entitled to sealing. See BAE Sys. Ship Repair Inc. v. Puglia Eng'g, Inc., No. 17-CV-1287 (RJS), 2017 WL 11568796, at *2 (S.D.N.Y. May 2, 2017) (agreeing to seal “information concerning [a party's] insurance coverage”).

The Court concludes that Defendants have overcome the presumption of public access regarding pricing and other sensitive financial information contained in the exhibits, but the request to seal the entire documents is not narrowly tailored to protect those interests. See Metcalf, 2022 WL 2116686, at *2 (“A narrowly tailored request would propose limited redactions of only the commercially sensitive information.”). Because Defendants seek to seal the entirety of Exhibit A, Exhibit C, and Exhibit H, the motion to seal is denied without prejudice. Defendants may file a more narrowly tailored motion to seal within fourteen (14) days of issuance of this Decision and Order. Any renewed motion to seal must be narrowly tailored to redact only the financial and other commercially sensitive information Defendants seek to protect. In the event a renewed motion is not filed within this deadline, the entirety of the documents will be publicly filed.

B. Consideration of Extrinsic Documents on Motion to Dismiss

Defendants contend that the amended complaint must be dismissed because the Solar Land Leases expressly permit Morris Ridge to remove subsoil and rock from the Property and New York law does not recognize separate quasi-contract claims duplicative of a breach of contract action. (Dkt. 14-19 at 8-9). In support of their motion, Defendants attach several exhibits, including copies of the Solar Land Leases (Dkt. 14-2; Dkt. 14-4), which as discussed above, the Court will consider on this motion because they are expressly incorporated by reference into the amended complaint by Plaintiff and otherwise integral to the amended complaint. Although Plaintiff expressly states that only the exhibits filed at Docket 14-2 and Docket 14-4, which are the first and second amended lease agreements, may be considered by the Court on this motion, (see Dkt. 17 at 10), the Court also considers the amendments to those agreements (Dkt. 14-7; Dkt. 14-9; Dkt. 14-12; Dkt. 14-14) to be integral to the amended complaint as well. Plaintiff does not directly address the lease amendments, but the Court concludes that because the amended complaint relies on the terms of the Solar Land Leases, that the amendments to those agreements are also integral to the amended complaint. See Caren v. Collins, No. 115CV0864GTSDJS, 2016 WL 5360875, at *11 n.6 (N.D.N.Y. Sept. 23, 2016) (holding that contract amendment was integral to the amended complaint in breach of contract action), aff'd, 696 F. App'x 19 (2d Cir. 2017).

But the Court agrees with Plaintiff that the other documents, including a New York State Office of Renewable Energy (“ORES”) Siting Permit (“ORES Permit”) (Dkt. 14-15); New York State Department of Agriculture and Markets construction guidelines, revised October 18, 2019 (“2019 NYSDAM Guidelines”) (Dkt. 14-16);³ a minor modification request submitted to ORES and approval (Dkt. 14-17; Dkt. 14-18); and the recorded versions of the lease agreements (Dkt. 14-3; Dkt. 14-5; Dkt. 14-8; Dkt. 14-10; Dkt. 14-11; Dkt. 14-13) and contract assignment agreement between EDF and Morris Ridge (Dkt. 14-6); are not integral to the complaint and therefore will not be considered by the Court in resolving the motion to dismiss.

C. Motion to Dismiss Breach of Contract Claim

1. Defendant EDF

Defendants contend that the breach of contract claim must be dismissed against EDF because EDF is not in privity of contract with Plaintiff as it assigned its interest in the Solar Land Leases to Morris Ridge. (Dkt. 14-19 at 21-22). Plaintiff indeed alleges that EDF assigned the Solar Land Leases to Morris Ridge on August 25, 2021. (Dkt. 12 at ¶ 8). But Plaintiff also alleges that Morris Ridge is a “wholly owned subsidiary of EDF” and that “[u]pon information and belief, Morris Ridge is an agent of EDF,” is “dominated and controlled by EDF to accomplish EDF's purpose of operating the Project at the Property to deliver renewable energy,” and that EDF makes payments to Plaintiff under the terms of the Solar Land Leases. (Id. at ¶¶ 9, 14-16). Plaintiff argues that these allegations are sufficient to “demonstrat[e] the requisite control by EDF over Morris Ridge such that EDF can be held liable as a party to its subsidiary's contract.” (Dkt. 17 at 17-18). The Court concludes that these allegations are insufficient to hold EDF liable for its subsidiary's breach of contract.

“It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation ․ is not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (citation modified).

But there is an equally fundamental principle of corporate law, applicable to the parent-subsidiary relationship ․ that the corporate veil may be pierced and the shareholder held liable for the corporation's conduct when, inter alia, the corporate form would otherwise be misused to accomplish certain wrongful purposes, most notably fraud, on the shareholder's behalf.

Id. at 62, 118 S.Ct. 1876

“The choice of law rules of the forum state determine which state's law governs a veil piercing claim.” In re Extended Stay, Inc., No. 09-13764-JLG, 2020 WL 10762310, at *35 (Bankr. S.D.N.Y. Aug. 8, 2020). “Under New York choice of law principles, ‘[t]he law of the state of incorporation determines when the corporate form will be disregarded and liability will be imposed on shareholders[.]’ ” Id. (quoting Kalb, Voorhis & Co. v. Am. Fin. Corp., 8 F.3d 130, 132 (2d Cir. 1993)). Plaintiff alleges that Morris Ridge is a Delaware entity (Dkt. 12 at ¶ 3) and therefore the Court will look to Delaware law to determine whether the corporate veil may be pierced to hold EDF liable for the alleged breach of contract.⁴ See Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (“Because Atex was a Delaware corporation, Delaware law determines whether the corporate veil can be pierced in this instance.”).

Delaware law provides that “a court can pierce the corporate veil of an entity where there is fraud or where a subsidiary is in fact a mere instrumentality or alter ego of its owner.” Geyer v. Ingersoll Publ'ns Co., 621 A.2d 784, 793 (Del. Ch. 1992). “To prevail under the alter-ego theory of piercing the veil, a plaintiff need not prove that there was actual fraud but must show a mingling of the operations of the entity and its owner plus an ‘overall element of injustice or unfairness.’ ” NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 176 (2d Cir. 2008) (quoting Harco Nat. Ins. Co. v. Green Farms. Inc., No. CIV. A. 1131, 1989 WL 110537, at *4 (Del. Ch. Sept. 19, 1989)). The “injustice or unfairness” element requires a plaintiff to “allege injustice or unfairness that is a result of an abuse of the corporate form. In other words, the corporation effectively must exist as a sham or shell through which the parent company perpetrates injustice.” Nat'l Gear & Piston, Inc. v. Cummins Power Sys., LLC, 975 F. Supp. 2d 392, 406 (S.D.N.Y. 2013); see also In re Sunbeam Corp., 284 B.R. 355, 366 (Bankr. S.D.N.Y. 2002) (“There must be an abuse of the corporate form to effect a fraud or an injustice—some sort of ‘elaborate shell game.’ ” (quoting Outokumpu Eng'g Enters., Inc. v. Kvaerner EnviroPower, Inc., 685 A.2d 724, 729 (Del. Super. Ct. 1996))). “Moreover, it is well established that a plaintiff's underlying cause of action alone is insufficient to satisfy the injustice requirement.” Id.; see also Outokumpu Eng'g Enters., Inc., 685 A.2d at 729 (“The ‘injustice’ must be more than the breach of contract alleged in the complaint․”).

The amended complaint does not make allegations sufficient to pierce the corporate veil. While Plaintiff alleges that Morris Ridge is a “wholly owned subsidiary” that is “dominated and controlled by EDF to accomplish EDF's purpose of operating the Project at the Property”⁵ (Dkt. 12 at ¶¶ 9, 15), “[m]ere dominion and control of the parent over the subsidiary will not support alter ego liability,” Outokumpu Eng'g Enters., Inc., 685 A.2d at 729. Plaintiff does not allege any fraud, injustice, or abuse regarding the corporate formation of Morris Ridge, and therefore Morris Ridge cannot be considered the alter ego of EDF.

EDF cannot be held liable for the breach of contract because it was not a party to the Solar Land Leases at the time of the alleged breach. EDF assigned its interest in the Solar Land Leases to Morris Ridge on August 25, 2021. (Dkt. 12 at ¶ 8). Plaintiff believes the breach of the agreement began, at the earliest, in February 2024. (Id. at ¶ 22). Moreover, the Solar Land Leases state that “[i]n the event of an assignment of Lessee's entire interest in this Lease, Lessee ․ shall be released of all further liability under this Lease, provided that the assignee shall assume all of Lessee's obligations under this Lease.” (Dkt. 14-2 at 15; Dkt. 14-4 at 15). As EDF was not a party to the contract at the time of the alleged breach, and the amended complaint does not contain allegations necessary to pierce the corporate veil, EDF may not be held liable for any breach of the agreement. See CDJ Builders Corp. v. Hudson Grp. Const. Corp., 67 A.D.3d 720, 722, 889 N.Y.S.2d 64 (2d Dep't 2009) (“Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties” (quoting Hamlet at Willow Creek Dev. Co., LLC v. Ne. Land Dev. Corp., 64 A.D.3d 85, 104, 878 N.Y.S.2d 97 (2d Dep't 2009))). Accordingly, the motion to dismiss is granted to the extent it seeks dismissal of the breach of contract claim against EDF.

2. Defendant Morris Ridge

Defendants also request that the Court dismiss Plaintiff's breach of contract action as asserted against Morris Ridge, contending that the removal of soil and stone from the Property was permitted by the Solar Land Leases. (Dkt. 14-19 at 17). To support their argument, Defendants make several factual assertions and rely on the extrinsic documents submitted with their motion. (Id. at 17-21). Because the Court must accept the well-pleaded allegations in the amended complaint as true, the Court denies Defendants’ request to dismiss the breach of contract claim against Morris Ridge.

Defendants contend that under the Solar Land Leases they were required to comply with the 2018 NYSDAM Guidelines, which they contend required the removal of rock and subsoil from the Property. Defendants point to section 5.7 of the Solar Land Leases, which is entitled “Removal and Restoration,” and provides:

No later than ninety (90) days prior to the expiration of the Term, Lessee shall present a decommissioning plan for the Solar Energy System. The decommissioning plan shall include the removal of all physical material related to the Solar Energy System to a depth of thirty-six inches (36″) and restoration of the surface of the land to substantially the same condition it was in at the Effective Date․ Lessee shall materially comply with the [2018 NYSDAM Guidelines] ․ which guidelines are attached hereto as Exhibit B.

(Dkt. 14-2 at 11; Dkt. 14-4 at 11). Defendants argue that in order to fulfil this provision, they had to comply with the 2018 NYSDAM Guidelines requirement to remove “all excess subsoil and rock from the site.” (Dkt. 14-19 at 17; see Dkt. 14-2 at 42; Dkt. 14-4 at 35). Defendants similarly contend that the ORES Permit compelled the removal of the rock and subsoil. (Dkt. 14-19 at 19-20). Defendants also point to the minor modification request submitted to ORES (Dkt. 14-17) and the subsequent approval (Dkt. 14-18), arguing that “[t]he fact that Morris Ridge sought and obtained ORES approval to remove subsoil and stone from the subject parcels further establishes that this conduct was lawful and not a breach of contract.”⁶ (Id. at 20). Defendants further argue that the soil extraction was permissible because it was “incidental to the permitted uses under the Solar Lease Agreements.” (Id. at 20-21).

None of Defendants’ arguments are persuasive. Each argument makes a factual assertion not included in the amended complaint, which is inappropriate on a Rule 12(b)(6) motion to dismiss. See, e.g., Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (noting that it is reversible error for a district court to consider “factual allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to dismiss” (internal citation omitted)). For example, Defendants’ argument based on section 5.7 of the Solar Land Leases requires factual resolution to determine if that section is applicable. Section 5.7 provides that the restoration of the property must be completed within nine months after a decommissioning plan is presented to the lessor. (Dkt. 14-2 at 11; Dkt. 14-4 at 11). The amended complaint does not address whether a decommissioning plan was presented.⁷ Furthermore, the 2018 NYSDAM Guidelines provide that the “[r]emoval [of] all excess subsoil and rock from the site” should be done during construction, whereas section 5.7 requires compliance with the guidelines for restoration of the Property, and that such removal “is only allowed if approved by the landowner.” (See Dkt. 14-2 at 42; Dkt. 14-4 at 35). Defendants’ other arguments rely upon documentary exhibits that the Court cannot consider on this motion. Defendants do not otherwise contend that the allegations in the amended complaint fail to state a claim for breach of contract. Accordingly, the breach of contract claim against Morris Ridge may proceed.⁸

D. Breach of Implied Covenant of Good Faith and Fair Dealing

Plaintiff also claims that Defendants breached the implied covenant of good faith and fair dealing. Defendants contend that this claim must be dismissed as duplicative of the breach of contract claim because “New York law does not recognize a separate cause of action for breach of the implied covenant of good faith and a breach of contract on the same facts.” (Dkt. 14-19 at 26 (quoting McDowell Rsch. Corp. v. Tactical Support Equip., Inc., No. 08-CV-6499, 2009 WL 2901594, at *9 (W.D.N.Y. Sept. 4, 2009))). Plaintiff argues in response that it may plead a breach of the implied covenant of good faith and fair dealing in the alternative to its breach of contract claim. (Dkt. 17 at 18). The Court agrees with Plaintiff.

“Under New York law, a duty of good faith and fair dealing is implied in every contract.” Nat'l Mkt. Share, Inc. v. Sterling Nat. Bank, 392 F.3d 520, 525 (2d Cir. 2004). “The duty comprises ‘any promises which a reasonable person in the position of the promisee would be justified in understanding were included [in the contract].’ ” Id. (quoting Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995)). To state a claim for a breach of this covenant, a plaintiff must allege that “a party acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under the agreement.” Violet Realty, Inc. v. Affiliated FM Ins. Co., 267 F. Supp. 3d 384, 388 (W.D.N.Y. 2017) (quoting Williamson Acquisition, Inc. v. PNC Equity Mgmt. Corp., No. 03-CV-6666T, 2010 WL 276199, at *7 (W.D.N.Y. Jan. 15, 2010), aff'd sub nom. Argilus, LLC v. PNC Fin. Servs. Grp., Inc., 419 F. App'x 115 (2d Cir. 2011)).

Although “[a] party certainly cannot succeed on claims for both breach of an express contract term and breach of the implied covenant based on the same facts,” a plaintiff is free to pursue the alternative claims if “there is a dispute over the meaning of the contract's express terms.” Spinelli v. Nat'l Football League, 903 F.3d 185, 206 (2d Cir. 2018); see also Courtien Commc'ns, Ltd. v. Aetna Life Ins. Co., 193 F. Supp. 2d 563, 571 (E.D.N.Y. 2002) (“The law in New York is that a party ‘may assert causes of action in both breach of contract and quasi-contract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue․’ ” (quoting Randall v. Guido, 238 A.D.2d 164, 164, 655 N.Y.S.2d 527 (1st Dep't 1997))). That is the circumstance here. It is clear that the parties dispute the amount of rock, soil, and subsoil that Defendants were permitted to remove from the Property based on the terms of the Solar Land Leases. In the amended complaint, Plaintiff alleges that the Solar Land Leases permitted Defendants to “drill, dig and excavate one or more wells on the Property for the purposes of servicing, operating and maintaining the solar energy system” and gave Defendants a “a non-exclusive right to extract soil samples” (Dkt. 12 at ¶ 18), but did not provide Defendants with “unfettered rights” to the Property beyond the uses enumerated in the agreements, such as the right to remove “thousands of cubic feet of soil and stone” (id. at ¶¶ 19, 22). The amended complaint does not point to a specific provision of the Solar Land Leases that Defendants allegedly violated, but states that “[t]he Solar Land Leases do not grant Defendants the right to remove soil and/or stone from the Property.” (Id. at ¶ 23). Defendants meanwhile contend that the Solar Land Leases required them to remove the soil and rock. (See Dkt. 14-19 at 17-20).

Furthermore, the Federal Rules of Civil Procedure expressly permit the pleading of alternative or inconsistent claims. Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims or defenses as it has, regardless of consistency.”). Plaintiff may therefore proceed on its alternative claim of a breach of the implied covenant of good faith and fair dealing against Morris Ridge. See Saggio v. Select Portfolio Servicing, Inc., No. 15-CV-04300 JG RER, 2015 WL 6760132, at *6 (E.D.N.Y. Nov. 5, 2015) (permitting breach of contract and breach of implied covenant of good faith and fair dealing claims to proceed in the alternative on a motion to dismiss because there was a “a dispute over the existence [or] scope” of the contract at issue.). But because the covenant of good faith and fair dealing is premised on the agreement of the parties to the Solar Land Leases, this claim may not proceed against EDF or Blattner. See TransformaCon, Inc. v. Vista Equity Partners, Inc., No. 15-CV-3371 SAS, 2015 WL 4461769, at *6 (S.D.N.Y. July 21, 2015) (“[The plaintiff] cannot state a claim for breach of contract as to [a defendant], thus it follows that [the plaintiff] cannot state a claim for breach of the implied covenant.”).

E. Conversion

Defendants also seek to dismiss Plaintiff's third cause of action for conversion of the soil and stone on the Property. (Dkt. 14-19 at 27). The Court concludes that the conversion claim may proceed against all Defendants.

Defendants first argue that the conversion claim must be dismissed because Morris Ridge had a right to remove the rock and subsoil. (Id.). As discussed above, whether Defendants had a right to remove the quantity of rock and subsoil at issue is an outstanding question of fact that cannot be resolved on this motion.

Next, Defendants contend that the conversion claim is “impermissibly vague” in violation of Federal Rule of Civil Procedure 8(a)(2) because Plaintiff “lumps” all Defendants together and fails to give each defendant fair notice of the grounds upon which the claim rests. (Id.). This argument is also unpersuasive.

Rule 8 requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, “the complaint must merely ‘give the defendant fair notice of what plaintiff's claim is and the grounds upon which it rests.’ ” Appalachian Enters., Inc. v. ePayment Sols., Ltd., No. 01 CV 11502 (GBD), 2004 WL 2813121, at *7 (S.D.N.Y. Dec. 8, 2004) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). The amended complaint plainly meets this standard as it alleges that each Defendant “intentionally ․ misappropriated the soil and stone from the Property, which rightfully belonged to Brady Farms, and which they converted for their own use.” (Dkt. 12 at ¶¶ 38-40).

Defendants further argue that Plaintiff's failure to plead that it “demanded return of the converted property, and that defendant refused” is fatal to its conversion claim. (Dkt. 14-19 at 28). But a conversion claim does not require such allegations and Defendants’ singular reliance on Hoffman v. Unterberg, 9 A.D.3d 386, 780 N.Y.S.2d 617 (2d Dep't 2004), abrogated on other grounds by Tzolis v. Wolff, 10 N.Y. 3d 100, 855 N.Y.S.2d 6, 884 N.E.2d 1005 (2008), is misplaced.

“According to New York law, ‘[c]onversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights.’ ” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d Cir. 2006) (quoting Vigilant Ins. Co. of Am. v. Hous. Auth., 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 (1995)), certified question accepted, 7 N.Y.3d 837, 824 N.Y.S.2d 207, 857 N.E.2d 528 (2006), and certified question answered, 8 N.Y.3d 283, 832 N.Y.S.2d 873, 864 N.E.2d 1272 (2007). “This includes a ‘denial or violation of the plaintiff's dominion, rights, or possession’ over [the owner's] property.” Id. at 404 (quoting Sporn v. MCA Recs., Inc., 58 N.Y.2d 482, 487, 462 N.Y.S.2d 413, 448 N.E.2d 1324 (1983)). “It also requires that the defendant exclude the owner from exercising [its] rights over the goods.” Id. (citing New York v. Seventh Regiment Fund, Inc., 98 N.Y.2d 249, 259, 746 N.Y.S.2d 637, 774 N.E.2d 702 (2002)). As Hoffman v. Unterberg states, “where possession of the property is initially lawful, conversion occurs when there is a refusal to return the property after a demand.” 9 A.D.3d at 388, 780 N.Y.S.2d 617 (emphasis added). Here, the amended complaint states that “Defendants had and continue to have no right to possess the misappropriated soil and stone from the Property.” (Dkt. 12 at ¶ 42). Plaintiff did not need to plead that Defendants failed to return the property after a demand because, according to the amended complaint, Defendants never had a lawful right to the misappropriated rock and soil.

Finally, Defendants’ argument that the conversion claim fails because it is duplicative of the breach of contract claim must also be denied as Plaintiff may plead theories of liability in the alternative. “Whereas courts in this Circuit allow for alternative pleading of [equitable claims] and contract claims, conversion claims are routinely dismissed on Rule 12(b)(6) motions where duplicative of breach of contract claims.” Transcience Corp. v. Big Time Toys, LLC, 50 F. Supp. 3d 441, 456 (S.D.N.Y. 2014) (collecting cases). That is because in order to maintain a breach of contract claim and a conversion claim, “the contracting party must also allege ‘a breach of duty distinct from, or independent of, the breach of contract.’ ” Generation Next Fashions Ltd. v. JP Morgan Chase Bank, NA., 698 F. Supp. 3d 663, 680 (S.D.N.Y. 2023) (quoting Conn. N.Y. Lighting Co. v. Manos Bus. Mgmt. Co., Inc., 171 A.D.3d 698, 98 N.Y.S.3d 101 (2019)).

Plaintiff provides such an independent basis, alleging it has “an immediate superior right of possession to the soil and stone on the Property that was misappropriated by Defendants.” (Dkt. 12 at ¶ 37). It may well be the case that Defendants’ conduct did not breach the terms of the Solar Land Leases nor the covenant of good faith and fair dealing, but that Plaintiff's right to the extracted soil was superior to that of Defendants’ rights. Further factual development is necessary. But at this stage of the proceeding, Plaintiff may assert alternative claims in the amended complaint and the Court must construe its allegations in a light most favorable to the non-moving party. While Plaintiff may not prevail on both the breach of contract and conversion claims, Rule 8 permits Plaintiff to pursue these alternative theories of liability at this stage. See R.B. Dev., Co. v. Tutis Cap. LLC, No. 12CV01460CBASMG, 2013 WL 12358006, at *20 (E.D.N.Y. Sept. 27, 2013) (permitting breach of contract and conversion claims to proceed in the alternative on a motion to dismiss).

F. Unjust Enrichment

Defendants make similar arguments in favor of dismissing Plaintiff's claim for unjust enrichment as they did for the breach of implied covenant of good faith and fair dealing claim and conversion claim. (Dkt. 14-19 at 29-30).

For the same reasons that the Court rejected Defendants’ argument to dismiss the breach of the implied covenant of good faith and fair dealing as duplicative of the breach of contract claim, the Court must also reject Defendants’ argument that the unjust enrichment claim is duplicative of the breach of contract claim. “A plaintiff can plead unjust enrichment as an alternative claim to breach of contract, but only if there is ‘a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue.’ ” Trahan v. Lazar, 457 F. Supp. 3d 323, 360 (S.D.N.Y. 2020) (quoting MF Glob. Holdings Ltd. v. PricewaterhouseCoopers LLP, 43 F. Supp. 3d 309, 317 (S.D.N.Y. 2014)). As discussed above, there is a dispute whether the terms of the Solar Land Leases govern the amount of rock and soil Defendants were permitted to extract from the Property. Defendants’ request to dismiss the unjust enrichment claim as duplicative is therefore denied as Plaintiff may proceed at this stage on alternative theories of liability. See id. (permitting unjust enrichment and breach of contract claim to proceed on a motion to dismiss).

Defendants also contend that the unjust enrichment claim as asserted against Blattner must be dismissed because the amended complaint does not “plausibly allege any misconduct by Blattner․”⁹ (Dkt. 14-19 at 29). An unjust enrichment claim under New York law requires “the plaintiff to establish: ‘(1) that the defendant benefitted; (2) at the plaintiff's expense; and (3) that equity and good conscience require restitution.’ ” Myun-Uk Choi v. Tower Rsch. Cap. LLC, 890 F.3d 60, 69 (2d Cir. 2018) (quoting Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000)). Plaintiff alleges that Blattner contracted with Morris Ridge to perform “construction activities associated with the Project” and that it “misappropriated the soil and stone from the Property” that otherwise belonged to Plaintiff. (Dkt. 12 at ¶¶ 20, 40). The amended complaint further alleges that all Defendants benefitted from this misappropriation by “retain[ing] ․ sums payable to” Plaintiff. (Id. at ¶ 49). Construed in a light most favorable to Plaintiff, the amended complaint plausibly asserts an unjust enrichment claim against Blattner and Defendants provide no caselaw nor fulsome argument to the contrary.

The Court also rejects Defendants’ single-sentence argument—also unsupported by citations to caselaw—that the unjust enrichment claim is “impermissibly vague.” (Dkt. 14-19 at 29). Rule 8 “does not demand that a complaint be a model of clarity or exhaustively present the facts alleged, [but] it requires, at a minimum, that a complaint give each defendant ‘fair notice of what the plaintiff's claim is and the ground upon which it rests.’ ” Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001) (quoting Ferro v. Ry. Express Agency, Inc., 296 F.2d 847, 851 (2d Cir. 1961)). For the reasons discussed, the Court concludes that standard has been met here.

CONCLUSION

For the foregoing reasons, Defendants’ motions to seal (Dkt. 9; Dkt. 15) are denied without prejudice. Defendants may file a more narrowly tailored motion to seal within fourteen (14) days of issuance of this Decision and Order. Any renewed motion to seal must be narrowly tailored to redact only the financial and other commercially sensitive information Defendants seek to protect. In the event a renewed motion is not filed within this deadline, the entirety of the documents will be publicly filed.

In addition, Defendants’ motion to dismiss (Dkt. 14) is granted in part and denied in part. Plaintiff's breach of contract and breach of the implied covenant of good faith and fair dealing are dismissed to the extent those claims are asserted against EDF and Blattner, but the motion is otherwise denied.

SO ORDERED.

FOOTNOTES

1.   Because the Court declines to dismiss this action in its entirety, the Court denies without prejudice Defendants’ request for an award of reasonable attorneys’ fees based on the attorneys’ fees provision in the Solar Land Leases.

2.   Plaintiff states that “the Court may not consider the extrinsic evidence submitted in support of their motion ․ with the sole exception of the Solar Land Leases” and cites to Exhibit A and Exhibit C but does not include a citation to Exhibit H. (See Dkt. 17 at 10). As an amendment to Exhibit A, the Court will consider Exhibit H in resolving the underlying motion to dismiss the amended complaint.

3.   The first and second amended lease agreements both include a copy of the 2018 New York State Department of Agriculture and Markets construction guidelines (“2018 NYSDAM Guidelines”), attached as an exhibit to the contracts. (See Dkt. 14-2; Dkt. 14-4). Because the Solar Land Leases are expressly incorporated by reference, the Court will also consider all exhibits annexed to the Solar Land Leases, including the 2018 NYSDAM Guidelines in resolving this motion.

4.   Plaintiff contends that the corporate veil analysis should be governed by New York law, pointing to a choice of law provision in the Solar Land Leases that states that the contract “shall be governed and construed in accordance with the laws of the State in which the Property is located,” which is New York. (Dkt. 17 at 16 (quoting Dkt. 14-2 at ¶ 27)). But by the terms of the agreement, the choice of law provision applies only to the construction and interpretation of the Solar Land Leases. It does not apply to collateral claims. See Impulse Mktg. Grp., Inc. v. Nat'l Small Bus. All., Inc., No. 05-CV-7776 (KMK), 2007 WL 1701813, at *7 (S.D.N.Y. June 12, 2007) (holding that a contract's choice of law provision that provided the contract “shall be governed by, construed and interpreted according to the laws of the State of New York” did not govern the court's alter ego analysis, which required the application of California law.).That said, even if the Court applied New York law, the amended complaint does not plausibly allege EDF's liability as the alter ego of Morris Ridge. Similar to the Delaware standard, a plaintiff proceeding under New York law must allege “that such domination [by the parent company] was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury.” In re Digital Music Antitrust Litig., 812 F. Supp. 2d 390, 418 (S.D.N.Y. 2011) (quoting Morris v. N.Y. State Dep't of Tax'n & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157 (1993)). “In neither state may liability be imposed merely based on a parent's ownership of a controlling interest in the subsidiary.” Id. “Indeed, a showing that a fraud would be ‘perpetrated through misuse of the corporate form’ generally is required in both states.” Id. (quoting Medi-Tec of Egypt Corp. v. Bausch & Lomb Surgical, No. Civ. A. 19760, 2004 WL 415251, at *7 (Del. Ch. Mar. 4, 2004)); see also Miami Prods. & Chem. Co. v. Olin Corp., 449 F. Supp. 3d 136, 173 (W.D.N.Y. 2020) (holding that allegations that a corporation is a “wholly-owned subsidiary” is “insufficient to allege a basis to pierce the corporate veil.”).

5.   “The Twombly plausibility standard, which applies to all civil actions, does not prevent a plaintiff from ‘pleading facts alleged “upon information and belief’ ” where the facts are peculiarly within the possession and control of the defendant or where the belief is based on factual information that makes the inference of culpability plausible.” Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal citations omitted).

6.   Defendants contend that the Court may take judicial notice of the minor modification request and approval in considering this motion as “Defendants do not offer these documents to prove the truth of any matters asserted in the documents, but merely to establish the requirements of the Siting Permit, and that the modification request was both submitted and granted.” (Dkt. 14-19 at 19-20). Even if the Court considered this document, regulatory approval for Defendants’ actions would not foreclose Plaintiff's claim that they breached the terms of the Solar Land Leases.

7.   Indeed, Plaintiff contends that the decommissioning of the solar energy system has not occurred yet, rendering this section inapplicable. (See Dkt. 17 at 14 n.1).

8.   It is unclear if the amended complaint asserts a breach of contract claim against Blattner. According to the amended complaint, Blatter contracted with Morris Ridge “to plan and execute engineering, procurement and construction activities associated with the Project.” (Dkt. 12 at ¶ 20). The amended complaint contains no allegations that Blattner was a party to the Solar Land Leases and the parties do not address a breach of contract claim against Blattner in their motion papers. To the extent the amended complaint states a breach of contract claim against Blattner, that claim is dismissed.

9.   Defendants only mention Blattner in their memorandum of law in relation to the unjust enrichment claim. (See Dkt. 14-19 at 29). Devoting two sentences to Blattner, Defendants assert that “all claims against Blattner must be dismissed” because the amended complaint does not plausibly allege Blattner engaged in misconduct. (Id.). As noted above, the Court dismisses the breach of contract and breach of the covenant of good faith and fair dealing claims to the extent they are asserted against Blattner. The amended complaint explicitly asserts a conversion claim against Blattner (Dkt. 12 at ¶ 40) and asserts the unjust enrichment claim against all Defendants (id. at ¶¶ 47-50). The Court disagrees with Defendants’ conclusory assertion that the amended complaint alleges no misconduct by Blattner as it states that Blattner contracted with Morris Ridge to perform construction work on the Property and participated in the misappropriation of the rock and soil with the other Defendants. (Id. at ¶¶ 20, 40, 48). At this stage, and in the absence of a more fulsome argument from Defendants concerning Blattner, these allegations are sufficient for Plaintiff to proceed on the conversion and unjust enrichment claims against Blattner.

ELIZABETH A. WOLFORD, Chief Judge