12‐3204‐cv Oorah, Inc. v. Jewish Foundation School et al.

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of January, two thousand fourteen.

PRESENT: RICHARD C. WESLEY, PETER W. HALL, DENNY CHIN, Circuit Judges.

OORAH, INC.,

Plaintiff‐Appellant,

‐v.‐ 12‐3204‐cv

MARVIN SCHICK,

Defendant, JEWISH FOUNDATION SCHOOL, RABBI JACOB JOSEPH SCHOOL,

Defendants‐Appellees.*

FOR APPELLANTS: FREDERICK L. WHITMER, Kilpatrick Townsend & Stockton LLP, New York, NY (Ronald D. Coleman, Goetz Fitzpatrick LLP, New York, NY, on the brief).

FOR APPELLEES: ELI FEIT, Heller, Horowitz & Feit, P.C., New York, NY (Stuart A. Blander, Heller, Horowitz & Feit, P.C., New York, NY; Avi Schick, Dentons US LLP, New York, NY, on the brief).

Appeal from the United States District Court for the Eastern District of New York (Frederic Block, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the United States District

Court for the Eastern District of New York is AFFIRMED.

Plaintiff‐appellant Oorah, Inc. (“Oorah”) appeals from a judgment entered

on March 13, 2012 and an August 6, 2012 Memorandum and Order of the United

States District Court for the Eastern District of New York (Block, J.) denying

Oorah’s post‐trial motions for judgment as a matter of law and, in the alternative,

a new trial. In denying Oorah’s post‐trial motions, the district court upheld the

* The Clerk of the Court is directed to amend the official caption as noted above.

2 judgment rejecting Oorah’s claim for injunctive relief and awarding defendants‐

appellees Jewish Foundation School (“JFS”) and Rabbi Jacob Joseph School

(“RJJ”) (collectively, the “Schools”) $357,100.00 plus interest on the Schools’

breach of contract counterclaim.1

Although we assume the parties’ familiarity with the underlying facts,

procedural history, and issues for review, we outline the facts relevant to our

disposition of this appeal. In 2006, a dispute arose between JFS and Oorah

concerning the parties’ agreement that Oorah would fund a portion of the tuition

for each student that Oorah referred to JFS. Unable to resolve the dispute, Oorah

and the Schools pursued arbitration before a rabbinical panel (the “bais din”).

During the arbitration, one of the rabbis on the bais din requested that the parties

draft handwritten notes addressed to the panel. The Schools’ note states, in

pertinent part:

This is to acknowledge that the Rabbi Jacob Joseph School and the Jewish Foundation School shall fully accept the psak of the beth din. Furthermore, subsequent to the Din Torah, we will not write or transmit in any form charges against Oorah.

1 JFS is a division of RJJ.

3 The bais din ultimately found Oorah in breach of the parties’ tuition

agreement for the 2006‐2007 school year – the only year at issue before the bais din

– and ordered Oorah to pay the Schools the sum of $2,700 per child minus the

parents’ tuition payments.

In November 2007, the Schools circulated a newsletter that cast Oorah in a

negative light. When the Schools refused to retract the statements, Oorah

initiated the instant suit seeking to enforce the alleged non‐disparagement

agreement that the Schools had signed before the bais din. The Schools

counterclaimed for breach of contract, and, in the alternative, unjust enrichment.2

The district court bifurcated Oorah’s non‐disparagement claim (to proceed

before the court in a bench trial) and the Schools’ breach of contract counterclaim

(to proceed before a jury). In order to avoid confusing the jury, the district court

ordered the parties not to refer to each other as “plaintiff” or “defendant.” The

court also prohibited the parties from making any reference to, or admitting

documents concerning, the bais din’s ruling.

2 Oorah initially brought claims for breach of contract, promissory estoppel, and confirmation and enforcement of the arbitration award. The Schools counterclaimed for breach of contract, quantum meruit, and unjust enrichment. Only Oorah’s breach of contract claim and the Schools’ breach of contract and unjust enrichment counterclaims survived summary judgment. Oorah subsequently clarified that it sought injunctive relief only for the alleged breach of the non‐disparagement agreement.

4 We review the district court’s evidentiary rulings and decision to bifurcate

the trial for abuse of discretion. See United States v. Contorinis,

(2d Cir. 2012); Amato v. City of Saratoga Springs, N.Y.,

(2d Cir.

1999).

The district court did not abuse its discretion in prohibiting the parties

from referencing, or admitting evidence relating to, the bais din’s ruling. The

arbitration concerned the 2006‐2007 school year only. Because the bais din’s

ruling did not terminate Oorah’s obligation to make tuition payments for the

2007‐2008 and 2008‐2009 school years, the time periods relevant to the Schools’

counterclaim, the district court was within its discretion to exclude the subject

evidence.

Bifurcating the parties’ claim was also well within the district court’s

discretion. Pursuant to Fed. R. Civ. P. 42(b), a federal district court may, “[f]or

convenience, to avoid prejudice, or to expedite and economize, . . . order a

separate trial of one or more separate issues, claims, crossclaims, counterclaims,

or third‐party claims.” Because Oorah’s claim was predicated on different factual

and legal issues than the Schools’ counterclaims, bifurcation was proper. See

Katsaros v. Cody,

(2d Cir. 1984). And unlike the Schools, Oorah

5 never requested a jury trial on its breach of contract/non‐disparagement claim;

seeking equitable relief only, Oorah had no right to a jury trial. See Robinson v.

Metro‐N. Commuter R.R. Co.,

, 157‐58 (2d Cir. 2001), abrogated on other

grounds by Wal‐Mart Stores, Inc. v. Dukes,

(2011).

The district court also properly determined that the non‐disparagement

agreement was unenforceable. “A court cannot decree performance of an

agreement unless it can discern with reasonable certainty and particularity what

the terms of the arrangement are.” Brookhaven Hous. Coal. v. Solomon,

, 593 (2d Cir. 1978). Even assuming that the handwritten notes at issue were

intended to create a binding agreement, the Schools’ commitment not to “write or

transmit in any forum charges” is overly vague and therefore unenforceable. See

id.

And even were the agreement sufficiently discernable, Oorah is not

entitled to forward‐looking injunctive relief. Under “well‐established principles

of equity,” a plaintiff seeking a permanent injunction must demonstrate, inter alia,

“that remedies available at law, such as monetary damages, are inadequate to

compensate for th[e] injury.” eBay Inc. v. MercExchange, L.L.C.,

(2006). Oorah has failed to demonstrate the inadequacy of that remedy.

6 The Schools’ unjust enrichment claim and evidence of Oorah’s fundraising

relevant to that claim were properly before the jury. Unjust enrichment is a

quasi‐contractual claim; it exists only in the absence of a valid contract. See

Goldman v. Metro. Life Ins. Co.,

(2005). To establish unjust

enrichment, the Schools had the burden of proving that Oorah was unjustly

enriched at the Schools’ expense and that in equity and good conscience Oorah

should return the money. See Bradkin v. Leverton,

(1970); In re

First Cent. Fin. Corp.,

(2d Cir. 2004).

The Schools premised their unjust enrichment claim on the theory that

Oorah publicized its philanthropic relationship with the Schools to further its

own development goals, yet the Schools were burdened with covering the entire

cost of tuition. So long as the Schools demonstrated that they covered the tuition

payments that Oorah claimed to be making, they could establish that Oorah’s

enrichment came at their expense. And because the claim was properly before

the jury, the district court did not err in admitting documentation of Oorah’s

fundraising, which was largely redacted and probative of Oorah’s enrichment.

7 We have considered Oorah’s remaining arguments and find them to be

without merit. For the foregoing reasons, the judgment of the district court is

affirmed.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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