Pincus Law Group, PLLC v. Springer et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PINCUS LAW GROUP, PLLC,
Plaintiff,
MEMORANDUM
v. 	AND ORDER
23-CV-5528-SJB-JMW
MJ CONNECTIONS, INC.,
Defendant.
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BULSARA, United States District Judge:
This action concerns a creditors’ rights law firm that contracted with a legal
services company for referrals several years ago. Following a breakdown in their
relationship, Pincus Law Group, PLLC (“Pincus”) sued MJ Connections, Inc. (“MJC”)
for breach of their agreement. In response, MJC brought its own counterclaims for
breach of contract, attorney’s fees, and quantum meruit/unjust enrichment. Pincus has
moved for summary judgment on the counterclaims. (Pl.’s Mem. in Supp. of Mot. for
Summ. J. dated May 30, 2025 (“Pl.’s Mot.”), Dkt. No. 57). Because almost all the
counterclaims are untimely under Texas law, which governs the contract, the motion is
granted in part and denied in part.
LEGAL STANDARD
A “court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable
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jury could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v. Progressive
Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “In determining whether summary judgment is appropriate, [the
Court] must resolve all ambiguities and draw all reasonable inferences against the
moving party.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the burden of “demonstrat[ing] the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” in one of two ways. Fed. R. Civ. P.
56(c)(1). It may cite to portions of the record “including depositions, documents,
electronically stored information, affidavits or declarations, . . . admissions,
interrogatory answers, or other materials.” Id. R. 56(c)(1)(A). Alternatively, it may
show that “the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988).
In moving for summary judgment or answering such a motion, litigants are
required by the Local Rules to provide a statement (a Rule 56.1 statement) setting
forth purported undisputed facts or, if controverting any fact, responding to each
assertion. See Loc. Civ. R. 56.1(a)–(b). In both instances, the party must support its
position by citing to admissible evidence from the record. Id. R. 56.1(d); see also Fed. R.
Civ. P. 56(c) (requiring reliance on admissible evidence in the record in supporting or
controverting a purported material fact). “The purpose of Local Rule 56.1 is to
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streamline the consideration of summary judgment motions by freeing district courts
from the need to hunt through voluminous records without guidance from the
parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).
Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the
Court will consider the evidentiary sources of the claims. Halberg v. United Behav.
Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and recommendation).
In evaluating the sources of claims made in dueling Rule 56.1 statements, the Court
cannot—as is true for the summary judgment motion as a whole—weigh evidence or
assess the credibility of witnesses. See United States v. Rem, 38 F.3d 634, 644 (2d Cir.
1994). “Legal arguments are impermissible in any Rule 56.1 Statement and are to be
disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL 1501777, at *2
(E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont’l Cas. Co., No. 12-CV-412, 2013 WL 4458755, at
*1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted Local Rule 56.1 statements
and responses to each other’s statements that mix factual assertions with legal argument
and therefore fail to meet the requirements of Local Rule 56.1. The facts . . . are taken
from those assertions contained in the Local Rule 56.1 statements that comply with
Local Rule 56.1[.]” (citations omitted)). The court may not grant summary judgment
based on a fact in a Rule 56.1 statement—even if undisputed—not supported by
admissible evidence. E.g., Giannullo v. City of New York, 322 F.3d 139, 142–43 (2d Cir.
2003) (vacating grant of summary judgment to defendants based on facts enumerated in
Rule 56.1 statement supported only by arguments in briefs rather than admissible
evidence). The Court must also disregard conclusory denials that lack citations to
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admissible evidence. Rodriguez v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3
(S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument. They should contain
factual assertions, with citation to the record. They should not contain conclusions[.]”),
aff’d, 56 F. App’x 27, 29 (2d Cir. 2003). Also, where the opposing party fails to
specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement
by the moving party “will be deemed to be admitted.” Loc. Civ. R. 56.1(c). The Court
also does not give any consideration to hearsay, speculation, or inadmissible evidence
in evaluating declarations or affidavits. Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d
Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary
judgment stage[.]”); Crawford v. Dep’t of Investigation, No. 05-CV-5368, 2007 WL 2850512,
at *2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific facts
showing that there is a genuine issue for trial;’ he or she ‘may not rely on mere
conclusory allegations nor speculation, but instead must offer some hard evidence
showing that its version of the events is not wholly fanciful.’” (quoting Woodman v.
WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff’d, 324 F. App’x 139, 143 (2d Cir.
2009).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court finds the following facts relevant to its decision—drawn from the
pleadings, the parties’ respective Rule 56.1 statements, and supporting affidavits and
exhibits attached thereto—are undisputed unless otherwise noted. Where a relevant
genuine dispute exists, the court highlights both parties’ versions of the facts. The
Court does not consider portions of the parties’ Rule 56.1 statements that are legal
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conclusions, irrelevant, or merely objections to inferences drawn from the opposing
party’s statements.1
Pincus is a creditors’ rights law firm. (Pl.’s Rule 56.1 Statement dated May 30,
2025 (“Pl.’s 56.1 Stmt.”), Dkt. No. 56 ¶ 1; Def.’s Resp. 56.1 Statement dated June 27, 2025
(“Def.’s 56.1 Stmt.”), Dkt. No. 58-45 ¶ 1). MJC is a Texas company headed by Majenica
Springer (“Springer”), that provides business development and marketing services to
law firms. (Id. ¶¶ 2–3; Pl.’s 56.1 Stmt. ¶¶ 2–3). On November 28, 2017, Pincus and MJC
entered into the MJ Connections Limited Business Development Agreement (the
“Agreement”). (Id. ¶ 9; Def.’s 56.1 Stmt. ¶ 9; see also Agreement, attached to Pl.’s Mot. as
Ex. A, Dkt. No. 55-1 at 1). The Agreement was not set for a fixed term; it was valid
“until either party terminat[ed] [the] Agreement by giving sixty (60) days written notice
to the other party.” (Agreement at 1). Under the Agreement, MJC was to “provide
business development consulting services to PINCUS” which consisted of “assistance
with developing new business, developing and advising the client on a strategic
business plan, and assisting with further developing relationships with existing clients.”
(Id.).
1 MJC responds to several facts in Pincus’s 56.1 Statement as “undisputed,” but
then objects to them on some other ground such as the fact’s materiality or
characterization. (E.g., Def.’s 56.1 Stmt. ¶ 1). Such a response is improper under the
Local Rules. In any event, the Court limits the facts here to those that are not opposed
in any way, or where opposed, not through admissible evidence which places the fact in
actual dispute.
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The Agreement included a Remuneration provision requiring Pincus to pay MJC
“10% of the amount billed to the Client/Servicer on all new referrals” directed to Pincus
by MJC. (Id.). In the event the Agreement was terminated, Pincus agreed:
to continue to pay this 10% fee on any monies received in conjunction with
business secured by MJ[C] during the contract period on existing files upon
termination for a period of three (3) years from the termination of the
contract. If PINCUS receives payment for services rendered during those 3
years, after the 3-year period expires, PINCUS will still disburse those
monies to MJ[C] within thirty (30) days of receiving said payment.
(Id. (the “Tail Fee Provision”) (italicized portion added by hand and initialed by
parties)).
The Agreement also required that Pincus provide “a monthly accounting of
referrals billed to each Servicer and payments received from each Servicer for referrals
received in the prior month . . . by the 15th of the following month.” (Id.). Pincus was
to “work with MJ[C] to reconcile payments received on referrals secured by MJ[C] on a
monthly basis” and MJC would in turn “provide PINCUS with an invoice . . . payable
within (30) days of PINCUS’s receipt of each invoice.” (Id.). The Agreement is
“governed by and construed under the laws of the State of Texas governing contracts
made and to be performed in that state.” (Agreement at 3).
The parties ultimately discontinued their relationship on December 18, 2019.
(Pl.’s 56.1 Stmt. ¶ 56; Def.’s 56.1 Stmt. ¶ 56). The parties had no further contact until
February 1, 2023 when MJC demanded a financial reconciliation from Pincus pursuant
to the Agreement’s Tail Fee Provision. (Id. ¶ 58; Pl.’s 56.1 Stmt. ¶ 58).
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Pincus commenced this action on June 14, 2023 in the Supreme Court of New
York, Nassau County against MJC and Springer.2 (Notice of Removal dated July 20,
2023, Dkt. No. 1 at 1; see also Compl., attached to Notice of Removal as Ex. B, Dkt. No. 1-
2). MJC and Springer removed the case to federal court on July 20, 2023. (Notice of
Removal at 5).
Pincus filed an amended complaint on January 26, 2024. (Am. Compl., Dkt. No.
21). The Amended Complaint asserted a variety of breaches arising out of MJC’s
alleged prohibited interactions with clients listed in the Agreement. (Id. ¶¶ 57–66).3
On February 16, 2024, MJC filed an Answer and asserted three counterclaims: (1)
breach of contract—failure to provide accounting, (MJC’s Answer & Countercls. (“MJC
Countercls.”), Dkt. No. 22 ¶¶ 99–106); (2) breach of contract—failure to make payments,
(id. ¶¶ 107–13); and (3) attorney’s fees under Texas law, (id. ¶¶ 114–25).
Both parties were granted leave to file amended answers. (Orders dated Mar. 6,
2025). In its Amended Answer filed on March 13, 2025, MJC added a fourth
counterclaim: quantum meruit and/or unjust enrichment. (MJC’s Am. Answer &
Countercls. (“MJC Am. Countercls.”), Dkt. No. 45 ¶¶ 134–47). MJC alleges that it
provided valuable consulting, marketing, and business development services to Pincus
from the inception of the Agreement through its termination on December 18, 2019. (Id.
¶ 140). MJC provided those services with the expectation that it would be
2 Springer was later terminated after the Amended Complaint omitted her as a
defendant. (See Am. Compl. filed Jan. 26, 2024, Dkt. No. 21).
3 Pincus omitted a claim for breach of the covenant of good faith and fair dealing
it had previously asserted in its state court complaint. (Compl. ¶¶ 48–54).
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compensated, as evidenced by the Agreement. (Id. ¶ 141). Pincus requested and
benefited from these services but failed to compensate MJC for them. (Id. ¶¶ 142–43).
As such, MJC claims it is entitled to recover the reasonable value of its services
provided to Pincus in quasi-contract under quantum meruit and/or unjust enrichment.
(Id. ¶ 147).
DISCUSSION
I. 	Breach-of-Contract Counterclaims
MJC raises two breach-of-contract counterclaims against Pincus for (1) failure to
make contractually agreed to payments and (2) failure to provide contractually agreed
to accounting.4 (MJC Am. Countercls. ¶¶ 108–22).
A. Choice of Law
“As a general matter in diversity cases,” like the present lawsuit, the Court will
“follow the substantive law of the state in which the district court sits, including its
choice of law rules.” Valley Juice Ltd., Inc. v. Evian Waters of France, Inc., 87 F.3d 604, 607
(2d Cir. 1996) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). That
is, “in cases where jurisdiction is based on the diversity of the parties’ citizenship, a
federal court will apply the choice-of-law rules of the forum state, which is New York in
this instance.” Bigio v. Coca–Cola Co., 675 F.3d 163, 169 (2d Cir. 2012).
4 A breach of contract claim requires proof of four elements: “(1) the existence of
a valid contract; (2) performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages to the plaintiff resulting from that breach.” Houle v.
Casillas, 594 S.W.3d 524, 556 (Tex. App. 2019).
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Subject to certain exceptions, New York choice-of-law rules honor parties’
decisions to choose one jurisdiction’s law to govern a contract. Freedman v. Chem. Const.
Corp., 43 N.Y.2d 260, 265 n.* (1977) (“As a general matter, the parties’ manifested
intentions to have an agreement governed by the law of a particular jurisdiction are
honored. It is as though the law of the selected jurisdiction were incorporated into the
agreement by reference.” (citations omitted)); Turtur v. Rothschild Registry Int’l, Inc., 26
F.3d 304, 310 (2d Cir. 1994) (recognizing and following Freedman). And “New York law
is clear in cases involving a contract with an express choice-of-law provision: Absent
fraud or violation of public policy, a court is to apply the law selected in the contract as
long as the state selected has sufficient contacts with the transaction.” Hartford Fire Ins.
Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 556 (2d Cir. 2000).
Here, the parties’ Agreement stipulates that Texas law shall govern. (Agreement
at 3 (“This Agreement shall be governed by and construed under the laws of the State of
Texas governing contracts made and to be performed in that state.”)). And neither side
suggests application of the choice-of-law provision violates New York public policy or
constitutes fraud. Therefore, the Court applies Texas law to the two counterclaims
alleging breach of the Agreement. See, e.g., Petróleos de Venezuela S.A. v. MUFG Union
Bank, N.A., 51 F.4th 456, 472 (2d Cir. 2022) (“Th[e] general rule [that New York courts
enforce choice-of-law clauses] applies even to issues of contract validity and the parties’
ability to execute the agreement containing the choice-of-law clause.”).
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B. Statute of Limitations
Under Texas law, “the party asserting that a claim is barred by the statute of
limitations bears the burden of proof on this issue.” Capital One, N.A. v. Custom Lighting
& Elec., Inc., No. 09-CV-3614, 2010 WL 4923470, at *3 (S.D. Tex. Nov. 29, 2010) (citing
KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).
A party seeking summary judgment on a limitations defense must establish: “(1) when
the cause of action accrued, and (2) that the [non-movant] brought its suit later than the
applicable number of years thereafter—i.e., that the statute of limitations has run.”
Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021) (quotations omitted).5
“Under Texas law, a breach-of-contract claim is subject to a four-year statute of
limitations.” Sheet Pile, LLC v. Plymouth Tube Co., USA, 98 F.4th 161, 166 (5th Cir. 2024)
(citing Tex. Civ. Prac. & Rem. Code § 16.051). A cause of action accrues when “facts
come into existence that authorize a party to seek a judicial remedy.” Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). If the terms of an agreement
call for periodic payments, a separate cause of action for each payment accrues at each
interval for which payment is due. Lyle v. Jane Guinn Revocable Tr., 365 S.W.3d 341, 355
(Tex. App. 2010). This is generally a question of law, not fact. Provident Life & Accident
Ins. Co., 128 S.W.3d at 221. “It is well-settled law that a breach of contract claim accrues
when the contract is breached.” Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002).
5 The non-movant can avoid summary judgment by “raising a genuine issue of
material fact on any equitable defense that its suit should not be barred even though the
limitations period has run.” Draughon, 631 S.W.3d at 89. MJC has not raised such a
defense.
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There are two breach-of-contract counterclaims: one alleging failure to make
payments under the Agreement, and the second failure to provide the accounting
required by the Agreement.
As for the failure to make payments, MJC alleges that Pincus began to fall behind
on its payments in early 2019, (see MJC Am. Countercls. ¶ 100; see also Decl. of Majenica
Lynn Springer (“Springer Decl.”), Dkt. No. 58-43 ¶ 36), and also alleges a breach for the
failure to provide the Tail Fee demanded on February 1, 2023, (see MJC Am. Countercls.
¶¶ 105, 120). MJC first alleged breach on February 16, 2024. (See MJC Countercls.
¶¶ 107–13). Therefore, recovery for payments more than four years overdue—i.e.,
payments due on or before February 16, 2020—is barred by the limitations period. See,
e.g., Hollander v. Capon, 853 S.W.2d 723, 726–28 (Tex. App. 1993). However, to the extent
MJC claims breach for failure to make payments due after February 2020—namely the
Tail Fee payments—those claims are not barred by the statute of limitations and
Pincus’s motion for summary judgment on those claims is denied.
As to the failure to provide accounting, MJC does not allege specific dates for this
breach in its Counterclaim, other than to say that it requested a final accounting on
February 1, 2023, related to the Tail Fee payments. (MJC Am. Countercls. ¶ 105). The
parties do not dispute that as early as July 17, 2019, Pincus was several months behind
in providing the monthly accountings under the Agreement. (Pl.’s 56.1 Stmt. ¶ 40;
Def.’s 56.1 Stmt. ¶ 40). Additionally, MJC does not contest that the parties ended their
relationship on December 18, 2019. (Id. ¶ 56 (“It is undisputed that the parties’
relationship ended on December 18, 2019. Disputed to the extent that the
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discontinuance of the parties’ relationship constituted a termination of the
Agreement.”)). MJC does not allege a failure to provide interim accountings between
the date of termination and its demand for a final accounting. Except for the final
accounting demand, the last day an accounting claim could have been asserted is
December 18, 2023, four years after the last possible breach. Consequently, except for
the final accounting demand, which was made on February 1, 2023, (Pl.’s 56.1 Stmt.
¶ 58; Def.’s 56.1 Resp. Stmt. ¶ 58), all other accounting claims are barred because MJC
did not assert breach until February 16, 2024. (See MJC Countercls. ¶¶ 99–106); e.g.,
Cont’l Cas. Co. v. Dr. Pepper Bottling Co. of Tex., Inc., 416 F. Supp. 2d 497, 504 (N.D. Tex.
2006) (granting summary judgment where “there [were] no genuine material fact issues
pertaining to the running of the statute of limitations”).
The Court, therefore, turns to Pincus’s other two arguments to determine
whether either would lead to dismissal of the Tail Fee breach counterclaim or the
counterclaim for failure to conduct the final accounting demanded in February 2023.
As discussed below, there are issues of fact.
C. Abandonment and Unenforceability
Pincus raises two arguments for why the counterclaims for breach should be
dismissed: (1) the parties abandoned the Agreement; and (2) the Agreement is
unenforceable because it contemplates payment for client referrals, which is prohibited
under Texas law. Pincus appears not to recognize the boomerang effect of these
arguments: if true, they would disable its affirmative claims for breach of the
Agreement. (In reverse, MJC, which did not move for summary judgment, appears not
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to recognize that the statute of limitations bar would apply equally to Pincus.). There
are issues of fact about both abandonment and unenforceability. Nonetheless, Pincus
appears to be engaging in pyrrhic warfare that will lead only to mutually-assured-
destruction: a trial where its arguments invalidating the Agreement apply with equal
measure to claims and counterclaims, leaving both sides with no recovery and a pile of
legal fees.6
1. 	Abandonment
Under Texas law, abandonment of a contract “must be established by clear and
satisfactory evidence” and any conduct relied upon must be “positive, unequivocal and
inconsistent with the existence of the contract.” Dall./Ft. Wor. Int’l Airport Bd. v. INet
Airports Sys., Inc., 819 F.3d 245, 255 (5th Cir. 2016) (quotations omitted). Pincus asserts
that the parties mutually abandoned the Agreement after Pincus asked MJC to modify
the Agreement’s financial terms to switch to a monthly billing arrangement: “Are you
open to converting our contractual structure to mirror to that of your other firms?”
(Pl.’s Mot. at 11 (citing July 2019 Emails, attached to Pl.’s Mot. as Ex. S, Dkt. No. 55-19 at
2541)). MJC responded: “I’m sure we can figure something out.” (July 2019 Emails at
2541). Pincus assumes that the parties’ professed intention to renegotiate demonstrates
an unequivocal intent to abandon the Agreement. But it cites no evidence for that
position, and MJC points to evidence suggesting the renegotiation was the opposite of
abandonment: Springer testifying that the parties understood the transition to a
6 Nor does Pincus appear to realize that prevailing on the unenforceability
argument would mean that it entered into an agreement—and paid monies pursuant to
that contract—in violation of Texas disciplinary rules.
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monthly fee was a “band-aid” to ensure some revenue “in order to continue working.”
(Springer Decl. ¶ 44).
Pincus argues that the parties then actually abandoned the Agreement by
entering into a “New Monthly Marketing Fee,” citing to invoices reflecting a flat $ 5000
consulting fee for the months of August to December 2019. (Pl.’s Mot. at 12; e.g., Invoice
due 10/12/2019, attached to Pl.’s Mot. as Ex. X, Dkt. No. 55-24 at 952). But MJC
contends that the adjusted fee did not itself constitute a new agreement: the monies
were payments owed under the existing Agreement. (Def.’s 56.1 Stmt. ¶ 43 (citing Aug.
13, 2019 Springer Email, attached to Def.’s Mem. in Opp’n to Pl.’s Mot. as Ex. 14, Dkt.
No. 58-14 (“I would like to have another discussion with you about our structure going
forward. I went ahead and sent this month’s invoice with a $5,000/mo. Consulting
Rate.”)); see also Aug. 29, 2019 Pincus Email, attached to Def.’s Opp’n as Ex. 37, Dkt. No.
58-36 (“Sending you another $5K today so that we don’t add to the monthly aging
meanwhile we’re waiting to discuss.”)). Relatedly, though the parties do not dispute
that MJC circulated a revised contract with a monthly marketing fee on October 18,
2019, the agreement was never signed, (Pl.’s 56.1 Stmt. ¶¶ 51–52; Def.’s 56.1 Stmt.
¶¶ 51–52). The fact that a proposed agreement was circulated does not in itself prove
an abandonment of the original Agreement. 7
7 Pincus also itself shifts the date of abandonment, asserting that the claims were
abandoned in August 2019 in the 56.1 Statement, (Pl.’s 56.1 Stmt. ¶ 59), but Pincus
testified that the date was September 2019, (Dep. of Caryn Pincus, attached to Def.’s
Opp’n as Ex. 36, Dkt. No. 58-35 at 40:20–41:14).
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Given these disputes and contradictions, the Court is unable to determine
whether the parties unequivocally intended to abandon the Agreement as a matter of
law.
2. 	Unenforceability
Under Texas law, the “sharing of fees with a layman by a lawyer is prohibited by
statute, as well as by disciplinary rule.” Plumlee v. Paddock, 832 S.W.2d 757, 759 (Tex.
App. 1992) (citing Tex. R. Prof. Cond. 5.04(a)). “A lawyer may pay others for generating
client leads, such as Internet-based client leads, as long as the lead generator does not
recommend the lawyer, any payment to the lead generator is consistent with Rule
5.04(a),” Tex. R. Prof. Cond. 7.03 cmt. 13, but “[a] lawyer shall not . . . pay or give
anything of value to a person not licensed to practice law for soliciting or referring
prospective clients for professional employment.” Tex. R. Prof. Cond. 7.03(e). And a
court may consider the Rules of Professional Conduct as an expression of Texas public
policy, which renders a contract violating them unenforceable. See Plumlee, 832 S.W.2d
at 758–59. Pincus argues that because the Agreement tied MJC’s compensation to the
legal fees that Pincus received, the Agreement is an impermissible legal-referral fee
contract. (Pl.’s Mem. in Further Supp. of its Mot. (“Pl.’s Reply”), Dkt. No. 60 at 3–4).
There is a material issue of fact in dispute about this question. Rule 7.03
provides an exception for attorneys paying “reasonable fees for advertising and public
relations services or the usual charges of a lawyer referral service that meets the
requirements of Texas law.” Tex. R. Prof. Cond. 7.03(e)(1); see also id. cmt. 11 (“A lawyer
may compensate . . . agents, and vendors who are engaged to provide marketing or
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client development services, such as . . . business-development staff.”). Here, the
Agreement compensated MJC for its service in “provid[ing] advice, assistance and
consultation with respect to business development needs.” (Agreement at 1).
MJC contends the services it provided under the Agreement did not constitute
the solicitation or referral of clients, but rather marketing services. (Def.’s Mem. in
Opp’n to Pl.’s Mot. dated June 27, 2025 (“Def.’s Opp’n”), Dkt. No. 58-46 at 6). And it
supplies evidence in support of this position. In her deposition, Springer testified that
she generally provides “marketing” services in the mortgage space. (Dep. of Majenica
Springer (“Springer Dep.”), attached to Pl.’s Mot. as Ex. B, Dkt. No. 55-2 at 36:5-17; see
also Springer Decl. ¶ 29 (“MJC markets its network law firms’ legal services to various
mortgage servicers; assists these law firms by creating introductions and arranging face-
to-face meetings with potential mortgage servicer clients; and assists these law firms
regarding how to demonstrate to the mortgage servicers that they will be able to
provide legal services meeting industry standards.”)). And these were the services
provided to Pincus under the Agreement. (Springer Decl. ¶ 33). This evidence is
sufficient to establish an issue of fact as to the nature of the work required and
performed by MJC under the Agreement and whether that work constituted
impermissible fee sharing under Texas law.8
8 Pincus also argues that the referral provision is impermissible under Texas Rule
of Professional Conduct 1.04(f)(2), which prohibits sharing legal fees between lawyers
who are not in the same firm. (Pl.’s Mot. at 8). Pincus, citing to no authority, assumes
this provision automatically bars fee sharing with another lawyer in Texas. But even if
Rule 1.04(f) applies, there remains the threshold issue of whether the parties expected
Springer to provide legal services pursuant to the Agreement and whether monies paid
were actually legal fees.
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II. 	Quasi-Contract Counterclaim
MJC’s quasi-contract counterclaim alleges “quantum meruit and/or unjust
enrichment.”9 (MJC’s Am. Countercls. ¶¶ 134–47). For the same reasons—namely the
statute of limitations—the claim is dismissed. (MJC does not allege accounting failures
in this counterclaim, just a failure to provide compensation.) (See id.).
A. Choice of Law
As noted, this Court is obligated to apply New York’s conflict-of-law rules, supra
pp. 8–9, which generally require following parties’ contractual choice-of-law election. It
appears that no New York court has authoritatively decided whether that election also
determines the law to be applied to quasi-contract (non-tort) claims.10 Although there
appears to be a split of authority, see 2002 Lawrence R. Buchalter Alaska Tr. v. Phila. Fin.
Life Assur. Co., 96 F. Supp. 3d 182, 233–34 (S.D.N.Y. 2015) (collecting cases), this Court
opts to follow those cases using the same law for contract and quasi-contract claims
alike and not conducting a new conflict-of-law analysis (as MJC urges, in order to have
9 MJC does nothing to explain the difference between its use of the two terms,
which typically affects the measure of damages. Paffhausen v. Balano, 708 A.2d 269, 271
(Me. 1998) (“Damages in unjust enrichment are measured by the value of what was
inequitably retained. In quantum meruit, by contrast, the damages are not measured by
the benefit realized and retained by the defendant, but rather are based on the value of
the services provided by the plaintiff.” (citation omitted)).
10 If these were tort claims, a different analysis would apply. Fin. One Pub. Co. v.
Lehman Bros. Special Fin. Inc., 414 F.3d 325, 335 (2d Cir. 2005) (“Under New York law,
then, tort claims are outside the scope of contractual choice-of-law provisions that
specify what law governs construction of the terms of the contract, even when the
contract also includes a broader forum-selection clause.”); Klock v. Lehman Bros. Kuhn
Loeb Inc., 584 F. Supp. 210, 215 (S.D.N.Y. 1984) (“[I]t has been held in New York that a
contractual choice of law provision governs only a cause of action sounding in
contract.”).
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New York law apply, (Def.’s Opp’n at 9–11)). E.g., Beatie & Osborn LLP v. Patriot Sci.
Corp., 431 F. Supp. 2d 367, 381 (S.D.N.Y. 2006) (“[T]he Court finds that New York law,
not California law, governs B & O’s contract claims arising from the Retainer
Agreement, viz., its claim for breach of the Retainer Agreement and its claims for
damages under quantum meruit and unjust enrichment.”); cf. Eiess v. USAA Fed. Sav.
Bank, 404 F. Supp. 3d 1240, 1255 (N.D. Cal. 2019) (applying agreement’s election of
Texas law to both contract and unjust enrichment claims). To do otherwise would
permit a party to ignore the bargained for provisions of an agreement, by simply
reframing their contract claim as a quasi-contractual allegation.11 Notably, in those
cases where different law has been applied, the quasi-contract claim alleged “extra-
contractual” obligations. Tropical Sails Corp. v. Yext, Inc., No. 14-CV-7582, 2017 WL
1048086, at *12 (S.D.N.Y. Mar. 17, 2017) (“If anything can be gleaned from the
conflicting case law . . . , it is that the more an unjust enrichment claim relates to an
enforceable contract, the more likely it is to be considered contractual in nature for the
purposes of New York’s choice-of-law analysis.”).
But here, the quasi-contract claims arise out of the same conduct governed by the
Agreement. (See, e.g., MJC Am. Countercls. ¶¶ 140–41 (“MJC provided valuable
consulting, marketing and business development services to Pincus Law from the
11 Doctrines that preclude pleading quasi-contract claims when there is an
enforceable agreement may dull the impact of such an effort, and that may explain the
dearth of cases analyzing the conflict-of-law question. And while Pincus does allege
that the counterclaim is duplicative of the breach-of-contract counterclaim, (Pl.’s Mot. at
15), it is premature to dismiss on that ground, because Pincus contends that the
Agreement is unenforceable. And as noted, enforceability cannot be decided at
summary judgment.
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inception of the Agreement through its termination by Pincus Law on December 18,
2019. MJC provided these services with the reasonable expectation that it would be
compensated for the services provided, as evidenced by the Agreement.”); id. ¶ 145
(“Pincus Law has been unjustly enriched at the expense of MJC by retaining the benefit
of MJC’s services without providing the agreed upon compensation.”)). As such, the
Court applies Texas law to the unjust enrichment/quantum meruit counterclaim. E.g.,
Tropical Sails Corp., 2017 WL 1048086, at *13 (“The Court . . . applies [the] contractual
choice-of-law provision’s selection of New York law to the unjust enrichment claim
here, because the unjust enrichment claim arises from the payment conferred on Yext
for its PowerListings service, which sounds more in contract than in tort.”).12
12 The same result—the application of Texas law—would result even if the
choice-of-law provision in the Agreement did not control, and the Court simply applied
New York’s conflict-of-law principles. Under those New York rules, “when a
nonresident plaintiff sues upon a cause of action that arose outside of New York, the
court must apply the shorter limitations period, including all relevant tolling
provisions, of either: (1) New York; or (2) the state where the cause of action accrued.”
Thea v. Kleinhandler, 807 F.3d 492, 497 (2d Cir. 2015) (citing N.Y. C.P.L.R. 202). Here,
MJC is the nonresident “plaintiff” bringing the quasi-contract counterclaim, and this
cause of action accrued in Texas which is where MJC is located and sustained the
economic loss. Id. at 498 (“Where the injury is purely economic, the place of injury
usually is where the plaintiff resides and sustains the economic impact of the loss.”
(quotations omitted)); Elavon, Inc. v. Katz, No. 23-1259, 2025 WL 1202075, at *3 (2d Cir.
Apr. 25, 2025) (“The New York Court of Appeals has explained that, under New York
law, the place of a purely economic injury to a corporation is typically limited to two
options: the corporation’s principal place of business or its state of incorporation.”).
And although New York provides for a longer statute of limitations for unjust
enrichment and quantum meruit (six years), Nwoye v. Obama, No. 23-1178, 2024 WL
911753, at *1 (2d Cir. Mar. 4, 2024), compared to Texas (two or four years respectively),
N.Y. C.P.L.R. 202 requires the application of the Texas rule which has the shorter
limitations period.
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B. Statute of Limitations
Under Texas law, unjust enrichment claims are governed by a two-year statute
of limitations. Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 871 (Tex.
2007) (citing Tex. Civ. Prac. & Rem. Code § 16.003). Quantum meruit claims are
governed by a four-year statute of limitations. Quigley v. Bennett, 256 S.W.3d 356, 361
(Tex. App. 2008).
An unjust enrichment claim accrues “when facts come into existence that
authorize a claimant to seek a judicial remedy.” Mayo v. Hartford Life Ins. Co., 354 F.3d
400, 410 (5th Cir. 2004) (quoting Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 514 (Tex. 1998)). Here, MJC’s claim for unjust enrichment is rooted in the
services it provided from the inception of the Agreement to its termination on
December 18, 2019. (See MJC Am. Countercls. ¶ 140). Therefore, the latest date of
accrual is the date of termination of the Agreement, when MJC asserts it ceased
providing its services, (Springer Decl. ¶ 59). As such, any unjust enrichment claim
accrued on December 18, 2019, making the deadline to bring this claim December 18,
2021—well before MJC asserted its quasi-contract counterclaim on March 13, 2025.
Similarly, a claim for quantum meruit accrues when the services are performed.
See Quigley, 256 S.W.3d at 361; see also W. Power, Inc. v. TransAmerican Power Prod., Inc.,
316 F. Supp. 3d 979, 987 (S.D. Tex. 2018) (“A claim of quantum meruit accrues on the
date the defendant accepts the services at issue. But, [w]hen a provider is to be paid
multiple times as services are provided, a quantum meruit claim accrues when the
services are performed.” (quotations and citations omitted)). MJC ceased providing
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services on December 18, 2019, (see MJC Am. Countercls. ¶ 140), making the statute of
limitations deadline December 18, 2023. Again, given that MJC did not assert the claim
until March 13, 2025, it is similarly time-barred. 13 The Court, therefore, grants Pincus’s
motion for summary judgment as to dismissal of the quasi-contract counterclaim. 14
III. 	Counterclaim for Attorney’s Fees
Pincus also moves for summary judgment on MJC’s counterclaim for attorney’s
fees under Texas law. Under Texas law, the successful party in a contract dispute may
recover reasonable attorney’s fees. Tex. Civ. Prac. & Rem. Code § 38.001(b)(8). But such
a claim may only be brought by a prevailing party. See Green Int’l, Inc. v. Solis, 951
S.W.2d 384, 390 (Tex. 1997). As noted, at least a portion of two counterclaims survive,
which leaves open the possibility for attorney’s fees recovery. Therefore, the motion for
summary judgment on this counterclaim is denied.
CONCLUSION
For the reasons explained above, Pincus’s motion for summary judgment is
granted in part and denied in part. Pincus’s motion is granted as to MJC’s breach-of-
contract counterclaim for failure to make payments to the extent MJC claims any
payment due on or before February 16, 2020. Pincus’s motion as to any claim for
13 The Tail Fee obligation is one arising out of the Agreement, not services
rendered. In any event, to the extent the Court were to consider the Tail Fee request an
obligation for services rendered—if it were to be framed as a quasi-contractual
obligation—it would have to have been asserted by December 2023 (as a quantum
meruit claim) or February 2025 (as an unjust enrichment claim), but here it was alleged
as a counterclaim in March 2025.
14 MJC did not make any relation-back argument in its opposition to summary
judgment.
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payment due after this date is denied. Pincus’s motion is granted as to MJC’s breach-of-
contract counterclaim for failure to provide accounting, except for the final accounting
demand made on February 1, 2023. The Court also grants Pincus’s motion as to
dismissal of MJC’s quasi-contract counterclaim as time-barred. Given the survival of
portions of the breach-of-contract counterclaims, Pincus’s motion for summary
judgment as to the attorney’s fees counterclaim is denied.15 The parties are directed to
submit a joint proposed pretrial order by March 30, 2026, consistent with the
undersigned’s Individual Practices.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	February 26, 2026
Central Islip, New York
15 Pincus seeks, in the guise of an “even if” argument, summary judgment on its
affirmative claims. (See Pl.’s Mot. at 17–19). But that motion assumes that the
Agreement is enforceable—about which there remains an issue of fact. (There is also
the related question of whether the statute of limitations bar would rebound to bar
these claims.) Since the issue of enforceability will proceed to trial, and the Court does
not issue hypothetical rulings, Pincus’s motion on its claims is denied.
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