Base One Technologies, Inc. v. Ali ( 2015 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    BASE ONE TECHNOLOGIES, INC.,
    Plaintiff,
    v.                                         Civil Action No. 14-1520 (JEB)
    MOHAMMED ALI, et al.,
    Defendants.
    MEMORANDUM OPINION
    One reason that companies insert non-compete provisions in their employment contracts
    is to prevent their workers from stealing their clients. That, claims Plaintiff Base One
    Technologies, is precisely what happened here.
    Base One is an information-technology support firm that provides recruiting and staffing
    services to its clientele. Several years ago, it hired Defendants Mohammed Ali and Hossein
    Beyzavi and designated them to provide IT assistance to International Business Machines
    Corporation, one of Base One’s bread-and-butter clients. According to Plaintiff, however,
    Defendants did more than assist: they exploited the access they had been granted and – while still
    employed with Base One – offered their services to IBM for full-time employment. That
    company ultimately hired both Defendants directly, thereby ousting Plaintiff from the picture
    and depriving it of potential revenue from continuing to staff those two positions.
    Aggrieved by this abrupt turn of events, Base One turned to the courts. Its Complaint
    presents a veritable cornucopia of claims, including, inter alia, breach of contract, breach of
    fiduciary duty and the duty of loyalty, tortious interference with business relations, and unjust
    enrichment. Defendants have now filed a Motion to Dismiss. Although some of Plaintiff’s
    1
    allegations are facially deficient, others pass the relatively undemanding Rule 12(b)(6) bar. As a
    result, the Court will grant Defendants’ Motion in part and deny it in part.
    I.     Background
    According to its Complaint – which at this juncture the Court must credit – Plaintiff Base
    One Technologies is a “technology engineering services and support firm,” which recruits and
    staffs “a variety of IT disciplines,” including “network infrastructure support, software
    development and application services, information security, enterprise databases and
    warehousing, backup and recovery strategies, and project management.” Compl., ¶¶ 7-8. Its
    client base is principally comprised of companies operating within the telecommunications and
    financial spheres. See 
    id., ¶ 9.
    The firm is incorporated under Delaware law and headquartered
    in New York. See 
    id., ¶ 1.
    Plaintiff’s business model is fairly straightforward: it is essentially a matchmaker. Base
    One first confers with its clients to “determine their IT needs” and “the qualifications of the ideal
    candidate to provide those services.” 
    Id., ¶ 9.
    It then recruits, vets, and hires – as its own
    employees – appropriately credentialed individuals who possess the requisite technical ability.
    See 
    id., ¶¶ 9-12.
    As the final step, the newly hired employees are then matched to specific client
    projects, earning revenue for Base One for the length of their placements. See 
    id. Plaintiff’s “continued
    relationship with its clients, as well as [its] continued relationship with its
    employees,” are thus of “critical importance” to its success. 
    Id., ¶ 17.
    In December 2009, IBM engaged the firm to provide staffing assistance on a certain
    “Project.” See 
    id., ¶ 12.
    The Project is ongoing and fully funded through June 2015, with a total
    value of over $10 million. See 
    id. To date,
    approximately 32 Base One employees have worked
    for IBM in connection with the Project. See 
    id. 2 In
    February 2012, Plaintiff hired Defendant Mohammed Ali to provide engineering
    assistance for the Project in the District of Columbia. See 
    id., ¶ 13.
    Over a year and a half later,
    in December 2013, Defendant Hossein Beyzavi was hired to do the same. See 
    id., ¶ 14.
    As a
    condition of employment with Base One, Defendants signed identical “Confidence and Non-
    Compete Agreement[s].” See 
    id., ¶¶ 15,
    27; see also 
    id., Exhs. A
    & B (Ali and Beyzavi
    Agreements).
    Pursuant to Section 1 of the Agreements, each Defendant “acknowledge[d]” the
    “substantial time, effort and money” expended by Plaintiff in identifying potential client business
    and qualified employees. See Agreements, § 1(B). The Agreements further spelled out Base
    One’s concern that
    the Employee will frequently be the principal intermediary and
    personal contact between [Base One] and its customers and it is,
    therefore, anticipated that because of the Employee’s knowledge of
    the business of said persons or entities and the fact that personal
    loyalties may develop between the Employee and said persons or
    entities, such persons or entities might desire to place their IT
    business directly with the Employee rather than the Company at
    such time as the Employee is no longer employed by the Company.
    
    Id., § 1(E).
    Against that backdrop, Section 3 set forth certain restrictions that operate for the duration
    of an employee’s tenure with Base One and for a one-year period thereafter. In relevant part,
    each Defendant agreed not to “market any Competitive type services directly or indirectly to any
    Base One clients” that had been assigned to him. See 
    id., § 3(A).
    They also consented to refrain
    from
    solicit[ing], contact[ing], represent[ing], or offer[ing] to represent
    the Company’s Full-Time Employees and/or Independent
    Contractors, whether or not such solicitation, contact, or offer was
    initiated, prompted or in any other way developed by the
    3
    Employee or by the other Full-Time Employee or Independent
    Contractor . . . .
    
    Id., § 3(B).
    The parties further stipulated that, in the event of breach, Base One would be entitled
    to equitable and injunctive relief in addition to any other available remedies. See 
    id., § 6.
    Finally, Section 10 dictated that each Agreement would “be governed by and construed in
    accordance with the laws of the State of New York.”
    All was quiet amongst the parties until June 2014. Base One claims that, around that
    time, it learned that Ali and Beyzavi had “conspired with one another to approach, and
    subsequently approached, IBM to market their own services for full-time employment with
    IBM.” Compl., ¶ 23. According to the Complaint, Defendants took these steps “while working
    for Base One on the Project” – that is, during the course of their employment with Base One.
    
    Id. “As a
    result of their overtures,” alleges Plaintiff, “Defendants were hired by IBM to . . .
    perform[] materially the same services they had been providing to IBM through their
    employment with Base One and their assignment to the Project.” 
    Id., ¶ 24.
    Ali and Beyzavi
    began employment with IBM on or around June 10, 2014, thus “depriving Base One of
    substantial revenue it would have received for the continued placement of Defendants to IBM
    through the Project end date of June 2015.” 
    Id., ¶ 25.
    Dismayed at this perceived betrayal, Base One filed suit in this Court on September 5,
    2014, asserting sundry contractual, tort, and fiduciary causes of action. Defendants have now
    filed virtually identical Motions to Dismiss. For the sake of simplicity, the Court refers to the
    two submissions jointly as “Defendants’ Motion” or “MTD.”
    II.    Legal Standard
    Under Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss a claim for relief
    when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
    4
    motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must
    grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow
    v. United Air Lines, Inc., 
    216 F.3d 1111
    , 1113 (D.C. Cir. 2000) (citation and internal quotation
    marks omitted); see also Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009). A court need not accept as
    true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported
    by the facts set forth in the complaint. Trudeau v. FTC, 
    456 F.3d 178
    , 193 (D.C. Cir. 2006)
    (quoting Papasan v. Allain, 
    478 U.S. 265
    , 286 (1986)). Although “detailed factual allegations”
    are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to
    state a claim to relief that is plausible on its face.” 
    Iqbal, 556 U.S. at 678
    (internal quotation
    omitted). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and
    unlikely,” but the facts alleged in the complaint “must be enough to raise a right to relief above
    the speculative level.” 
    Twombly, 550 U.S. at 555-56
    (quoting Scheuer v. Rhodes, 
    416 U.S. 232
    ,
    236 (1974)).
    III.   Analysis
    Plaintiff’s Complaint advances eight distinct claims, each of which Defendants dispute:
    (1) breach of Section 3(A) of the Non-Compete Agreement; (2) breach of Section 3(B) of the
    same Agreement; (3) breach of fiduciary duty; (4) unfair competition; (5) tortious interference
    with prospective business relations; (6) unjust enrichment; (7) faithless servant; and (8) a count
    styled “injunctive relief.” Base One has since conceded the infirmity of the fourth and fifth
    causes of action. See Opp. at 13 n.3. The Court will take up each of the remaining counts
    seriatim, ultimately concluding that Counts Two and Eight should be dismissed, but that the rest
    survive Defendants’ Motion.
    5
    At the outset, the Court notes that federal jurisdiction in this case is based on diversity of
    citizenship, see 28 U.S.C. § 1332, and that, accordingly, state law provides the substantive rules
    of law with regard to all claims. See Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938). Here,
    the Non-Compete Agreement executed by Defendants contains a choice-of-law provision stating
    that “it shall be governed by and construed in accordance with the laws of the State of New
    York.” Agreements, § 10. Although a contractual choice-of-law provision does not bind parties
    with respect to non-contractual causes of action, see Minebea Co. v. Papst, 
    377 F. Supp. 2d 34
    ,
    38 (D.D.C. 2005), the parties in this case rely solely on New York law with respect to all of the
    counts. The Court, therefore, follows suit. See Piedmont Resolution, LLC v. Johnston, Rivlin &
    Foley, 
    999 F. Supp. 34
    , 39 (D.D.C. 1998) (“The parties have not raised any choice of law issues
    and, in their arguments in support of and in opposition to [the] motion for summary judgment, all
    parties have relied solely on District of Columbia law. Accordingly, the Court will resolve the
    motion under District of Columbia law.”).
    A. Count I: Breach of Section 3(A)
    Plaintiff’s first claim is premised on Section 3(A) of the Non-Compete Agreement, which
    prohibits a Base One employee from “market[ing] any Competitive type services” to any Base
    One clients assigned to him. The restriction, by its terms, extends throughout the duration of
    employment with Base One and for a year following termination. The Complaint alleges that
    Defendants breached this restrictive covenant by marketing their services to IBM while still
    employed by Base One. See Compl., ¶¶ 27-32.
    To state a claim for breach of contract under New York law, a plaintiff must allege “(1)
    the existence of a valid, enforceable agreement; (2) performance of the contract by one party; (3)
    breach of the contract by the other party; and (4) damages.” Bridgeport Music, Inc. v. Universal
    6
    Music Grp., Inc., 
    440 F. Supp. 2d 342
    , 344-45 (S.D.N.Y. 2006). Defendants argue that Base
    One’s claim is doubly flawed. They first assert that Plaintiff has not set forth sufficient factual
    allegations to establish that they marketed their services to IBM in breach of Section 3(A).
    Alternatively, they contend that the restrictive covenant is unreasonable – and, therefore,
    unenforceable. Neither argument proves persuasive.
    1. Breach
    In maintaining that no breach occurred, Defendants assert that Section 3(A)’s prohibition
    on the “market[ing]” of services does not prohibit the mere “offering” of services. See MTD at
    4-6. According to Ali and Beyzavi, marketing requires “advertis[ing] or engag[ing] in other
    activities designed to either promote a competitive business or [one’s] own services,” and Base
    One failed to allege that they engaged in such activities. See 
    id. at 4;
    see also Rep. at 2
    (marketing “requires the advertising and running of a competing business”). They likewise
    stress that the Complaint fails to establish a link between IBM’s decision to hire Defendants and
    their alleged wrongful acts. See MTD at 4.
    The distinction Defendants attempt to draw between marketing and offering is untenable.
    Indeed, the dictionary defines “market” as “[t]o offer for sale.” American Heritage Dictionary
    1075 (5th ed. 2011) (emphasis added); see also Merriam-Webster Online Dictionary (online ed.
    2014) (defining market as “to do things that cause people to know about and want to buy
    (something); to offer (something) for sale in a market”). And that is precisely what Base One
    alleged: that “Defendants approached IBM to offer their services to IBM as employees on a full-
    time basis.” Compl., ¶ 30 (emphasis added). Plaintiff further bolstered this count by claiming
    that IBM hired Ali and Beyzavi “as a result of their overtures.” 
    Id., ¶ 24.
    Nothing more is
    needed. Regardless of whether Defendants “advertised” their services, Plaintiff has alleged
    7
    sufficient facts (taken as true) to suggest that they “marketed” their services to IBM in violation
    of Section 3(A).
    In rejoinder, Ali and Beyzavi stress that neither one held a “marketing position” within
    Base One. The Court is somewhat mystified as to why Defendants’ titles at Base One would
    have any bearing on whether they marketed competitive services to IBM, regardless of how
    narrowly or broadly the term “market” is construed. Any employee – no matter his job
    description within Base One – could wrongfully engage in the marketing of competitive services
    to customers, thereby breaching the restrictive covenant contained in Section 3(A).
    2. Enforceability
    Defendants’ second contention – to wit, that Section 3(A) is unenforceable if read to
    prohibit the conduct alleged here – fares no better. Specifically, they assert that “Base One is
    asking the court to interpret ‘market’ as synonymous with the accepting of a position with IBM,”
    and that the non-compete provision, so construed, is unreasonable. See Rep. at 3.
    To begin with, Plaintiff is not asking the Court to read Section 3(A) in the expansive
    manner touted by Defendants. (Nor could such interpretation be squared with any legitimate
    definition of the term “market.”) Instead, the facts presented in the Complaint suggest that Ali
    and Beyzavi actively induced IBM to hire them for full-time employment. As previously noted,
    Plaintiff alleged that Ali and Beyzavi “approached” IBM to offer their services as full-time
    employees, and that IBM hired them “as a result of their overtures.” Compl., ¶¶ 24, 30. Such
    conduct cannot be described as mere acceptance of an open job position, and it is this conduct
    that Plaintiff justifiably maintains violated Section 3(A).
    Setting aside Defendants’ overreaching, the Court turns to the enforceability of Section
    3(A) under an appropriate construction. Agreements “that restrict an employee’s ability to
    8
    compete” are disfavored in New York, B.O. Tech., LLC v. Dray, 
    970 N.Y.S.2d 668
    , 673 (N.Y.
    Sup. Ct. 2013), but they are not per se unenforceable. See Installed Bldg. Products, LLC v.
    Cottrell, No. 13-1112, 
    2014 WL 3729369
    , at *6 (W.D.N.Y. July 25, 2014). In determining the
    validity of such restrictive covenants, courts are guided by a tripartite “reasonableness” standard.
    See BDO Seidman v. Hirshberg, 
    93 N.Y.2d 382
    , 388-89 (N.Y. 1999). Under the governing test,
    a restraint is reasonable if it “(1) is no greater than is required for the protection of the legitimate
    interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not
    injurious to the public.” 
    Id. (emphasis in
    original). This analysis “focuses on the particular facts
    and circumstances giving context to the agreement,” see 
    id. at 390,
    and, unless a provision is
    impermissibly vague or plainly overbroad, often necessitates full development of the record. See
    Installed Bldg., 
    2014 WL 3729369
    , at *6-8. Consequently, a determination of unenforceability
    upon a motion to dismiss will often be premature. See 
    id. As an
    initial foray, Plaintiff points out that BDO Seidman and its progeny concerned
    post-employment restrictive covenants – i.e., covenants that “tend to prevent an employee from
    pursuing a similar vocation after termination of employment.” B.O. 
    Tech., 970 N.Y.S.2d at 673
    .
    Because the “vast majority” of Defendants’ allegedly wrongful conduct occurred during their
    employment with Base One, Plaintiff emphatically declares the three-pronged reasonableness
    test inapposite here. See Opp. at 6; see also Compl., ¶¶ 24, 30 (asserting that Defendants
    approached IBM during their employment with Base One). The Court is not so certain. Section
    3(A) – as written – restricts the post-employment conduct of its employees in addition to their
    actions during employment. New York law is not entirely clear as to whether employers can
    circumvent the reasonableness inquiry ordinarily applicable to such clauses by seeking to hold
    employees liable only for their pre-termination conduct. That question need not be definitively
    9
    resolved here, however, as Section 3(A) survives dismissal even if the inquiry outlined above is
    assumed to be germane.
    Base One has sufficiently alleged that Section 3(A) is properly tailored to address its
    legitimate business interest, satisfying the first prong of the BDO Seidman test. As a staffing and
    recruiting firm, Plaintiff’s relationships with its clientele comprise its most valuable assets. See
    Opp. at 2. It invests considerable time, money, and effort to recruit and staff IT personnel in
    accordance with its clients’ needs. See 
    id. A Base
    One employee who offers his services
    directly to his assigned client “undercuts the core of Base One’s business by stealing [its] time
    and energy spent, and business advantage built, on its unique skill of recruiting.” 
    Id. Base One
    thus has a legitimate interest in protecting against its employees’ “competitive use of client
    relationships” that Base One enabled them to acquire through their work with and access to the
    firm’s customers. BDO 
    Seidman, 93 N.Y.2d at 392
    ; see also B.O. 
    Tech, 970 N.Y.S.2d at 673
    (recognizing “legitimate interest in preventing former employees from exploiting or
    appropriating the goodwill of a client or customer that has been created and maintained at the
    employer’s expense to the employer’s competitive detriment”); DeWitt Stern Grp., Inc. v.
    Eisenberg, No. 13-3060, 
    2014 WL 1388652
    , at *5 (S.D.N.Y. Apr. 9, 2014) (noting “employer’s
    legitimate interest in client relationships it was instrumental in creating and fostering”).
    Section 3(A), moreover, is narrow in both time and scope. It restricts Defendants’
    conduct for only one year post-employment, see Natsource LLC v. Paribello, 
    151 F. Supp. 2d 465
    , 471 (S.D.N.Y. 2001), and its prohibition on marketing applies only to those customers to
    whom they were personally assigned. See BDO 
    Seidman, 93 N.Y.2d at 391-92
    . Ali and Beyavi
    have proffered no reason to reach a contrary conclusion.
    10
    With regard to the second prong – hardship on the employee – Defendants remain on
    shaky ground. Although they accuse Base One (with some exaggeration) of leaving them
    “penniless” and “prevent[ing] them from pursuing a similar vocation,” MTD at 4, the narrowness
    of Section 3(A) cuts against their position. Ali and Beyzavi are free to offer their IT and
    engineering expertise to any company other than IBM, the only client either was assigned to, and
    they are free to market their services even to IBM only one year after the termination of their
    employment with Base One.
    As to the third prong of the reasonableness test, Defendants have not attempted to make
    any showing that Section 3(A) is injurious to the public. Nor is the Court convinced that such an
    argument, if asserted, could gain any traction. See BDO 
    Seidman, 93 N.Y.2d at 393
    (finding no
    injury to the public where the restraint would not “seriously impinge” on the availability of
    certain services in a region or “cause any significant dislocation in the market”). As the above
    discussion makes manifest, the Court cannot hold at this juncture that Section 3(A) is
    unenforceable as a matter of law.
    B. Count II: Breach of Section 3(B)
    In the second count of its Complaint, Plaintiff contends that Beyzavi and Ali breached
    Section 3(B) of the Agreement, which restricted them from “solicit[ing], contact[ing],
    represent[ing], or offer[ing] to represent the Company’s Full-Time Employees and/or
    Independent Contractors.” Specifically, Plaintiff claims that Defendants solicited each other “by
    coordinating their departure to work for IBM.” Compl., ¶ 38. Defendants, on the other hand,
    maintain that “one[-]on[-]one contact between two similarly situated employees does not rise to
    the level of solicitation.” Rep. at 4. According to them, the clause should apply only where a
    11
    violator “represent[s] a competitive business” and gains “some benefit . . . from the act of
    solicitation.” 
    Id. at 5.
    This back and forth over the proper interpretation of Section 3(B) calls attention to a
    more fundamental problem: its wording is so vague and ambiguous as to render it unenforceable.
    The provision prohibits soliciting or contacting Base One employees and independent
    contractors. But solicit or contact for what? The Agreement never says. Is an employee
    prohibited from contacting another employee about health insurance? From soliciting another
    employee to attend a political fundraiser? Although the Court can perhaps guess that Plaintiff
    meant to prohibit solicitation or contact for the purpose of employment elsewhere, the provision
    does not so specify. Particularly in light of New York’s general hostility toward restrictive
    covenants in the context of employment, the Court will not redraft a poorly written, overbroad
    restraint in order to render it enforceable. See Pure Power Boot Camp, Inc. v. Warrior Fitness
    Boot Camp, LLC, 
    813 F. Supp. 2d 489
    , 507 (S.D.N.Y. 2011) (finding “imprecise” and
    “ambiguous” non-compete provision “unenforceable as a matter of law”); Samy & Irina, Inc. v.
    Berezentseva, 
    899 N.Y.S.2d 63
    (N.Y. Sup. Ct. 2009) (dismissing claim for violation of “unclear
    and ambiguous” non-compete provision). Base One’s second contractual cause of action comes
    up short.
    C. Count III: Breach of Fiduciary Duty
    Plaintiff next charges that “[b]y virtue of their employment with Base One,” Ali and
    Beyzavi owed the firm a fiduciary duty, which they breached by marketing themselves to IBM
    for full-time employment. See Compl., ¶¶ 43-46. Asserting that they were merely “low level IT
    employees” with an “arms-length business relationship” with Base One, and that a fiduciary duty
    requires more, Defendants move to dismiss this claim. See MTD at 6; Rep. at 5.
    12
    They are wrong on the law. In New York, “an employee-employer relationship is
    fiduciary,” even vis-à-vis low-level employees. Fairfield Fin. Mortgage Grp., Inc. v. Luca, 
    584 F. Supp. 2d 479
    , 485 (E.D.N.Y. 2008) (agreeing with plaintiff there “that all employees have a
    fiduciary duty to their employers, regardless of their rank and the level of their position”); accord
    Amphenol Corp. v. Paul, 
    993 F. Supp. 2d 100
    , 113 (D. Conn. 2014) (interpreting New York
    law); Gluco Perfect, LLC v. Perfect Gluco Products, Inc., No. 14-1678, 
    2014 WL 4966102
    , at
    *22 (E.D.N.Y. Oct. 3, 2014); Design Strategies, Inc. v. Davis, 
    384 F. Supp. 2d 649
    , 659-60
    (S.D.N.Y. 2005). Defendants’ objection thus stumbles right out of the gate.
    D. Count VI: Unjust Enrichment
    Moving now to Count VI, Plaintiff alleges that Ali and Beyzavi were unjustly enriched at
    its expense, and that “equity and good conscience militate against permitting [them] to retain the
    attendant benefits.” Compl., ¶ 9. Defendants respond that the existence of the Non-Compete
    Agreement precludes Base One’s quasi-contractual claim for unjust enrichment, and that, in any
    event, the Complaint failed to proffer a sufficient factual basis for this claim. The Court
    disagrees on both points.
    Unjust enrichment is “an amorphous cause of action, but one which falls under the
    umbrella of quasi-contract, or contract implied-in-law.” Michele Pommier Models, Inc. v. Men
    Women N.Y. Model Mgmt., Inc., 
    14 F. Supp. 2d 331
    , 338 (S.D.N.Y.1998), aff’d,173 F.3d 845
    (2d Cir. 1999). It “contemplates an obligation imposed by equity to prevent injustice, in the
    absence of an actual agreement between the parties.” Georgia Malone & Co. v. Rieder, 
    973 N.E.2d 743
    , 746 (N.Y. 2012) (internal quotation marks omitted); Maalouf v. Salomon Smith
    Barney, Inc., No. 02-4770, 
    2003 WL 1858153
    , at *6 (S.D.N.Y. Apr. 10, 2003) (“Unjust
    enrichment is premised on the notion that where principles of contract law are inadequate to
    13
    compensate an unjustly deprived party, a court should resort to principles of equity.”).
    Defendants’ contention thus has some foundation: it is widely recognized that a plaintiff may not
    recover on a claim for unjust enrichment where there exists a governing contract between the
    parties. See Magi XXI, Inc. v. Stato Della Citta Del Vaticano, No. 07-2898, 
    2014 WL 2212021
    ,
    at *8 (E.D.N.Y. May 23, 2014) (“[T]he existence of a contract between parties to a dispute
    ordinarily precludes recovery for unjust enrichment for events arising out of the same subject
    matter as the contract.”) (internal quotation marks omitted).
    That Base One “may only recover on one claim, either contract or quasi-contract,”
    however, “certainly does not preclude [it] from pleading unjust enrichment in the alternative.”
    Maalouf, 
    2003 WL 1858153
    , at *7. “Both Fed. R. Civ. P. 8(e)(2) and the pleading rules of New
    York State law permit the pleading of contradictory claims alleging both breach of a contract or,
    in the alternative, a quasi contract.” Seiden Associates, Inc. v. ANC Holdings, Inc., 
    754 F. Supp. 37
    , 39 (S.D.N.Y. 1991). Particularly where the validity and scope of the underlying contractual
    agreement is disputed, as here, Plaintiff is not “required to guess” – at the pleading stage –
    “whether it will be successful on its contract . . . claims.” St. John’s Univ., New York v. Bolton,
    
    757 F. Supp. 2d 144
    , 183 (E.D.N.Y. 2010); see also Net2Globe Int’l, Inc. v. Time Warner
    Telecom of New York, 
    273 F. Supp. 2d 436
    , 466 (S.D.N.Y. 2003).
    Defendants have one more arrow left in their quiver. They argue that even if Base One is
    permitted to plead quasi-contract in the alternative, the facts alleged do not “form a basis for an
    unjust enrichment claim.” Rep. at 6. In other words, if Section 3(A) is ultimately found invalid
    or otherwise inapplicable to Ali’s and Beyzavi’s conduct, they claim there would be “no
    equitable basis” for recovery. 
    Id. 14 “To
    prevail on a claim of unjust enrichment, a [p]laintiff must establish (1) that the
    defendant benefitted; (2) at the [p]laintiff’s expense; and (3) that equity and good conscience
    require restitution.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of New Jersey,
    Inc., 
    448 F.3d 573
    , 586 (2d Cir. 2006) (quoting Kaye v. Grossman, 
    202 F.3d 611
    , 616 (2d Cir.
    2000)). “The ‘essence’ of this claim ‘is that one party has received money or a benefit at the
    expense of another.’” 
    Kaye, 202 F.3d at 616
    (quoting City of Syracuse v. R.A.C. Holding, Inc.,
    
    685 N.Y.S.2d 381
    , 381 (N.Y. App. Div. 1999)).
    Drawing all reasonable inferences in Base One’s favor, the Court concludes that it has set
    forth a cognizable claim. According to the Complaint, Defendants intentionally misappropriated
    the relationship and good will between IBM and Base One in a manner that inured to their
    personal benefit via their new contract with IBM. See Compl., ¶¶ 22-25, 30-31, 49, 60; see N.
    Shipping Funds I, LLC v. Icon Capital Corp., 
    998 F. Supp. 2d 301
    , 330 (S.D.N.Y. 2014)
    (“Unjust enrichment claims are not limited to tangible monetary enrichment, but also include the
    receipt of an intangible benefit at the expense of another.”). This benefit was clearly acquired at
    Plaintiff’s expense: it had invested a great deal of time and effort in cultivating its relationship
    with IBM and providing it with qualified IT staff to satisfy its needs. See 
    id., ¶¶ 9-12.
    Defendants’ actions, moreover, resulted in the loss of substantial revenue for the firm. See 
    id., ¶¶ 9,
    61. Inasmuch as Plaintiff, at this juncture, need only provide a short and plain statement
    articulating a plausible claim for unjust enrichment, see 
    Twombly, 127 S. Ct. at 1975
    ; Fed. R.
    Civ. P. 8, the Court finds it has met that burden.
    E. Count VII: Faithless Servant
    Count VII invokes the faithless-servant doctrine. Although seemingly plucked from the
    mouldering pages of a Victorian novel, that cause of action appears alive and well in 21st century
    15
    New York. See Webb v. Robert Lewis Rosen Associates, Ltd., No. 03-4275, 
    2003 WL 23018792
    , at *6 (S.D.N.Y. Dec. 23, 2003) (“Defendants’ attempt to demonstrate that the
    faithless servant doctrine is no longer recognized or is inapposite is unavailing.”), aff’d, 128 F.
    App’x 793 (2d Cir. 2005). Under that state’s law, an employee “is obligated ‘to be loyal to his
    employer and is prohibited from acting in any manner inconsistent with his agency or trust and is
    at all times bound to exercise the utmost good faith and loyalty in the performance of his
    duties.’” Phansalkar v. Anderson Weinroth & Co., LP, 
    344 F.3d 184
    , 200 (2d Cir. 2003)
    (quoting W. Elec. Co. v. Brenner, 
    41 N.Y.2d 291
    , 295 (N.Y. 1977)). A faithless employee
    forfeits the right to compensation during the period of disloyalty. See Henry v. Concord
    Limousine, Inc., No. 13-0494, 
    2014 WL 297303
    , at *4 (E.D.N.Y. Jan. 24, 2014).
    Plaintiff contends that Ali and Beyzavi acted “in direct contravention of their duty of
    loyalty” by offering their own competitive services to IBM during their employment with Base
    One, thereby exploiting the access Plaintiff had given them to its customers. See Compl., ¶ 64.
    Defendants, for their part, maintain that Base One cannot successfully make out a faithless-
    servant claim – for one reason only. According to them, such claims require an allegation that
    the employee used the employer’s “time, facilities, or proprietary secrets in commission of
    offensive acts,” and Base One did not so allege. See Rep. at 6; see also MTD at 8. Ali and
    Beyzavi rest their theory of the doctrine on a single case, Fada Int’l Corp. v. Cheung, 
    57 A.D.3d 406
    (N.Y. App. Div. 2008).
    Fada International does, on its face, provide some support for Defendants’ view. There,
    the court affirmed the dismissal of a claim for breach of the duty of loyalty since there was no
    allegation that “defendants used plaintiff’s time, facilities or proprietary secrets in setting up their
    new business.” 
    Id. at 406.
    But the faithless-servant doctrine is robustly applied in New York,
    16
    and many decisions expounding on the doctrine make no mention of this alleged imperative at
    all. See, e.g., Carco Grp. v. Maconachy, 383 F. App’x 73, 77 (2d Cir. 2010); 
    Phansalkar, 344 F.3d at 200-04
    ; Sanders v. Madison Square Garden, LP, No. 06-589, 
    2007 WL 1933933
    , at *3
    (S.D.N.Y. July 2, 2007); Webb, 
    2003 WL 23018792
    , at *6; W. Elec. Co. v. 
    Brenner, 41 N.Y.2d at 295
    ; Feiger v. Iral Jewelry, Ltd., 
    41 N.Y.2d 928
    , 928, 394 (1977) (citing Restatement (Second)
    of Agency (1958), § 469); see also 52 N.Y. Jur. 2d Employment Relations § 148 (expounding
    upon faithless-servant doctrine with no reference to these requirements).
    Even decisions that do specifically refer to misuse of time, facilities, or proprietary
    secrets cannot, as a general matter, be read to create an inflexible pleading prerequisite. Rather,
    courts appear to invoke this triumvirate as illustrative of the sort of breaches of loyalty that might
    be deemed faithlessness. In Pure Power Boot Camp, for example, the court emphasized that an
    employee “is forbidden from obtaining an improper advantage at the principal’s 
    expense.” 813 F. Supp. 2d at 521
    . Continuing, the court stated:
    Although an employee may, of course, make preparations to
    compete with his employer while still working for the employer,
    he or she may not do so at the employer’s expense, and may not
    use the employer’s resources, time, facilities, or confidential
    information; specifically, whether or not the employee has signed
    an agreement not-to-compete, the employee, while still employed
    by the employer, may not solicit clients of his employer . . . .
    
    Id. at 521-22;
    see also Derven v. PH Consulting, Inc., 
    427 F. Supp. 2d 360
    , 371 (S.D.N.Y. 2006)
    (“It is well established that an employee is prohibited from acting in any manner inconsistent
    with his or her employment and must exercise good faith and loyalty in performing his or her
    duties and may not use his or her principal’s time, facilities or proprietary secrets to build a
    competing business.”) (internal quotation marks omitted and emphasis added).
    17
    This Court will not superimpose a rigid gloss on the faithless-servant doctrine that the
    New York courts have not, in the mine run of cases, seen fit to require. Defendants’ sole
    objection thus fails, and Plaintiff’s claim survives dismissal.
    F. Count VIII: Injunctive Relief
    Base One advances a claim for “injunctive relief” as its final cause of action. See
    Compl., ¶¶ 66-70. Injunctive relief, however, is not a freestanding cause of action, but rather –
    as its moniker makes clear – a form of relief to redress the other claims asserted by Plaintiff. See
    Guttenberg v. Emery, No. 13-2046, 
    2014 WL 1989564
    , at *6 (D.D.C. May 16, 2014) (“Count II
    of plaintiffs’ amended complaint is not a separate cause of action or claim; rather, it is a request
    that the Court grant a particular form of relief (an injunction) . . . .”). The Court will thus dismiss
    Count VIII as a separate claim. See Fitts v. Fed. Nat. Mortgage Ass’n, 
    44 F. Supp. 2d 317
    , 330
    (D.D.C. 1999) (“[T]he court strikes Count Five of the complaint as it states a form of relief and
    not a cause of action.”), aff’d, 
    236 F.3d 1
    (D.C. Cir. 2001).
    This revision, however, is procedural rather than substantive – that is, it does not preclude
    Base One from seeking injunctive relief in the event that it ultimately prevails on one or more of
    its claims. See Guttenberg, 
    2014 WL 1989564
    , at *6 & n.5. Insofar as Defendants attack the
    substantive basis for such relief, it is premature at this stage to consider the propriety of any
    particular remedy. Should that question become relevant at a later point in the litigation, the
    Court will consider the parties’ arguments at that time.
    18
    IV.    Conclusion
    For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss as to
    Counts Two, Four, Five, and Eight of Plaintiff’s Complaint, but deny it as to the remaining
    counts. An Order consistent with this Opinion shall issue this day.
    /s/ James E. Boasberg
    JAMES E. BOASBERG
    United States District Judge
    Date: January 20, 2015
    19