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Robert Nissen, et al v. Theodor Rozsa

October 31, 2011

ROBERT NISSEN, ET AL., PLAINTIFFS,
v.
THEODOR ROZSA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hammer, UnitedStates Magistrate Judge

OPINION

I. INTRODUCTION

This matter comes before the Court on Plaintiffs' motion for leave to file a Second Amended Complaint. For the reasons set forth herein, Plaintiffs' motion is denied.

II. BACKGROUND

A. Factual Background

Plaintiffs allege that Defendants failed to pay their fair share of a commission following the sale of one pharmaceutical company to another. (Proposed 2d Am. Compl. ¶¶ 27--29, 34--36, Aug. 15, 2011, ECF No. 72.) In July 2005, Sagmel, a pharmaceutical company, contracted Defendant TR Strategic Group, LLC, under a six-month term of representation to find a buyer. (Id. ¶¶ 9, 12.) TR Strategic Group's sole member and owner is Defendant Theodor Rozsa. (Id. ¶ 5.) In August 2005, Rozsa and Plaintiff Arthur Blumenthal orally agreed to equally split any commission from the sale of Sagmel (hereinafter, the "50/50" share or agreement). (Id. ¶ 11.) In November 2005, Blumenthal introduced Rozsa to Plaintiff Robert Nissen to assist with the sale of Sagmel. (Id. ¶ 14.) Around that time, Nissen learned that the TR Strategic/Sagmel representation agreement would expire at the end of 2005. (Id.) In March 2006, Nissen agreed to assist with the sale of Sagmel. (Id. ¶ 15.) In late July 2006, Rozsa, Blumenthal, and Nissen orally agreed to share the proceeds as follows: each would receive thirty percent of any commission or proceeds, and the remaining ten percent would go to the persons most involved in consummating the sale (hereinafter, the "30/30/30/10" share or agreement). (Id. ¶ 17.) Also in July 2006, Rozsa advised Blumenthal and Nissen that he had negotiated a verbal fee agreement with Sagmel, such that TR Strategic Group could continue to represent Sagmel. (Id. ¶ 19.)

Through 2006 and 2007, Blumenthal and Nissen attempted to find a buyer for Sagmel. (See id. ¶¶ 18, 20--21.) In August 2007, Nissen approached Bayer Health Care Consumer Care Division ("Bayer") and arranged for meetings between Bayer and Sagmel in October and November 2007. (Id. ¶¶ 20--22.)

In March 2008, Bayer agreed to purchase Sagmel and consummated the transaction in June 2008. (Id. ¶ 27.) TR Strategic Group received an initial payment $3,240,000 as part of a commission totaling $4,320,000. (Id. ¶¶ 28--29.) Following the Sagmel-Bayer closing, Rozsa allegedly reneged on the 30/30/30/10 agreement and claimed that he was entitled to a substantially greater percentage of the commission. (Id. ¶¶ 31--33.)

B. Procedural History

On November 12, 2008, Nissen and Blumenthal (collectively "Plaintiffs") filed a Complaint against Rozsa alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. (Verified Compl. ¶¶ 30, 32, 36, Nov. 12, 2008, ECF No. 1.) Plaintiffs demanded "at least $2,592,00.00 (60% of $4,320,000)" and requested that the commission monies be placed in a constructive trust. (Id. at 6--8, ¶¶ 38--41.)

On February 19, 2009, Plaintiffs filed a motion to impose a constructive trust on the proceeds from the commission or have the commission deposited with the Court. (Mot. to Impose Constructive Trust, Feb. 12, 2009, ECF No. 12.)

On April 27, 2009, the Court held a scheduling conference and thereafter set a May 29, 2009, deadline to move to add new parties or amend the pleadings and an October 30, 2009, deadline for the completion of fact discovery. (Pretr. Sched. Order, May 19, 2009, ECF No. 16.)

On August 4, 2009, the Court denied the motion to impose a constructive trust. (Order, Aug. 4, 2009, ECF No. 22.) Notably, in the underlying opinion, the Court recited the causes of action and summarized the allegations of the case. In pertinent part, the Court stated "Plaintiffs' Complaint asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment," and further stated that "Plaintiffs assert that they entered into an oral agreement with Defendant to split the commission from any sale: thirty percent each, with the remaining ten percent to be 'paid to the individual(s) who were most involved in consummating the transaction.'" (Opinion 1--2, Aug. 4, 2009, ECF No. 21 (quoting Verified Compl. ¶¶ 9, 15).)

On August 10, 2009, Plaintiffs moved for leave to file an Amended Complaint. (Mot. to Amend, Aug. 10, 2009, ECF No. 23), which the Court granted on September 4, 2009. (Order, Sept. 4, 2009, ECF No. 24.) On September 10, 2009, Nissen and Blumenthal filed an Amended Complaint that added TR Strategic Group as a defendant and a cause of action based on fraud. (Am. Compl. ΒΆΒΆ 36, 38, 42, ...


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