UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 8th day of November , two thousand.

PRESENT:

HON. ROGER J. MINER, HON. ROBERT D. SACK, Circuit Judges, HON. REENA RAGGI,*

District Judge.

JOHN W. BERGIN, doing business as The John Bergin Group, Plaintiff-Appellant, -v- No. 00-7381

CENTURY 21 REAL ESTATE CORPORATION, Defendant-Appellee.

Appearing for Appellant: Eugene L. Girden, Pollack &

Greene, LLP, New York, NY.

Appearing for Appellee: James E. Daniels, Hall Dickler Kent Goldstein & Wood, LLP, New York, NY.

Appeal from United States District Court for the Southern District Court (John J. Koeltl, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said District Court be, and it hereby is, AFFIRMED.

We review the district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the appellant, who was the non-moving party below. See Tenenbaum v. Williams, 193 F.3d 581, 583 (2d Cir. 1999).

Plaintiff John W. Bergin is an advertising consultant and principal in The John Bergin Group. In July 1997, Charles Murphy, also of The John Bergin Group, wrote to a Century 21

marketing executive regarding a "creative idea" Bergin had for Century 21. In two subsequent telephone conversations, the Century 21 executive expressed interest in meeting Bergin and allegedly said, "We'll pay for [the idea], of course," and "If we like [the idea], we will buy it." Bergin contends that after these conversations, "Century 21 had a binding agreement with Bergin Group." In August 1997, Bergin met twice with Century 21 executives to pitch his idea for an advertising campaign centered on presenting Century 21 as "The Powerhouse of Real Estate." Century 21 told Bergin that they liked his presentation. Also in August 1997, although the precise date is unclear, representatives of an advertising agency known as Arnold Communications ("Arnold") met with Century 21

executives to pitch an advertising campaign featuring the slogan "More Power to You." Century 21 subsequently hired Arnold as its advertising agency, and in late 1997, began producing advertisements based on the "More Power to You"

slogan.

Century 21 had used the word "power" in several prior advertisements, including in a 1986 television commercial featuring the phrase "Power to Move" and a 1993 campaign using the phrase "Discover the Power of Number 1." Bergin was involved in production of the "Power to Move" commercial when he worked for Century 21's then-advertising agency, McCann-

Erickson.

Bergin initiated this action in November 1998, asserting, among other things, claims for breach of contract, breach of implied-in-fact contract, and quasi-contract. In an opinion and order dated February 23, 2000, the Southern District of New York (Koeltl, J.) granted Century 21's motion to dismiss these claims pursuant to Fed. R. Civ. P. 56. See Bergin v. Century 21 Real Estate Corp., No. 98 Civ. 8075 (JGK), 2000 WL 223833, (S.D.N.Y. Feb. 25, 2000). On appeal, Bergin challenges only the dismissal of the implied-in-fact contract and quasi-contract claims.

Under New Jersey law, which the parties agree governs this dispute, a contract implied in fact "must be sufficiently definite that the performance to be rendered by each party can be ascertained with reasonable certainty." Weichert Co.

Realtors v. Ryan, 608 A.2d 280, 284 (N.J. 1984) (citations and internal quotations omitted). Courts will, if possible, "attach a sufficiently definite meaning to the terms of a bargain to make it enforceable," Paley v. Barton Savings and Loan Association, 196 A.2d 682, 685 (N.J. App. Div. 1964), and in doing so may refer to "commercial practice or other usage or custom." Lynch v. New Deal Delivery Serv. Inc., 974 F.

Supp. 441, 458 (D.N.J. 1997). But an implied-in-fact contract is "unenforceable for vagueness when its terms are too indefinite to allow a court to determine with reasonable certainty what each party has promised to do." Lynch, 974 F.

Supp. at 457.

The district court concluded that the parties' alleged agreement was too vague to constitute an enforceable implied-

in-fact contract. We agree. At the most basic level, it is unclear whether Century 21 agreed to pay for the idea if they "like[d]" it or only if they "use[d]" it. Given such uncertainty, it seems unlikely that there was a meeting of the minds among the parties at the time the alleged contract was formed. Moreover, neither version of the alleged agreement would be sufficiently definite to create an enforceable contract. A commitment to pay for an idea if one "likes" it is, in the district court's words, "much too vague and subjective a basis to give rise to any contractual obligations." Bergin, 2000 WL 223833, at *6, *8; cf. Action Eng'g v. Martin Marietta Aluminum, 670 F.2d 456, 460-61 (3d Cir. 1980). Insofar as Century 21 promised to pay for using of the idea, nothing in the record indicates that the parties agreed on how, where, or for what period Century 21 could "use" the "Powerhouse" idea.

There is also no evidence of an implicit agreement on the price of the idea. Bergin, 2000 WL 223833, at *5, *8.

Bergin's argument, in essence, is that advertisers commonly purchase a concept with the price to be determined later with reference to a standard measure such as a percentage of either the buyer's total advertising budget or the increase in sales attributable to the idea. Bergin correctly notes that courts sometimes read a missing price into a contract term with reference to "external criteri[a]" such as the parties' prior dealings or industry custom. See Leitner v. Braen, 143 A.2d 256, 260-61 (N.J. Super. Ct. App. Div. 1958). But Bergin concedes that he never discussed any measure of compensation with anyone from Century 21. As the district court found, "there is no evidence that the parties agreed to an amount of payment based upon usual fees, or by looking to external criteria, or based upon anything else that might be relied upon to specify the amount of compensation that the defendant agreed to pay the plaintiff." Bergin, 2000 WL 223833, at *6; see also Windsor Card Shops, Inc. v. Hallmark Cards, Inc., 957

F. Supp. 562, 572 (D.N.J. 1998). Moreover, "with regard to contracts for services in return for a percentage of some yet-to-be-determined number, such as profits, sales, etc., the courts [of and in New Jersey] look to whether there are certain dates of commencement and termination." Lo Bosco v. Kure Eng'g Ltd., 891 F. Supp. 1020, 1026 (D.N.J. 1995). As noted, there is no evidence of any agreement as to such terms.

As an independent basis for granting summary judgment, the court concluded that Century 21 did not breach the alleged contract, that is, that Century 21 did not use Bergin's "Powerhouse" proposal. Bergin, 2000 WL 223833, at *8. We agree. Bergin claims that his "Powerhouse" idea was the genesis for Century 21's "More Power to You" campaign. But the record reveals that Arnold presented a fully-developed proposal for the "More Power to You" campaign at around the same time that Bergin pitched the "Powerhouse" concept. There is no evidence to support Bergin's assertion that Century 21

disclosed the "Powerhouse" concept to Arnold, who repackaged it as "More Power to You," or in some other way used Arnold as a ruse to mask Century 21's misappropriation of Bergin's idea.

Bergin also appeals from the district court's dismissal of the claim that Century 21 is liable in quasi-contract for his idea. Under New Jersey law, a plaintiff seeking relief in quasi-contract for alleged misappropriation of an idea "is required to establish as a prerequisite for relief that: (1)

the idea was novel; (2) it was made in confidence; and (3) it was adopted and made use of." Flemming v. Ronson Corp., 258

A.2d 153, 156-57 (N.J. 1969). Novelty under this standard "is more important for its evidentiary value than for substantive quality." Id. at 157. Thus, the more novel the plaintiff's idea and the closer its resemblance to the defendant's finished product, the stronger the inference that the defendant copied it. See id. Summary judgment is appropriate where the defendant knew of the idea or the idea was "[a]

matter[] in the domain of public knowledge" before the plaintiff disclosed it to the defendant. Id. at 158 (citing Boop v. Ford Motor Co., 177 F. Supp. 522 (S.D. Ind. 1959)); see also Nadel v. Play-By-Play Toys & Novelties, Inc., 208

F.3d 368, 375 (2d Cir. 2000); Downey v. General Foods Corp., 31 N.Y.2d 56, 477, 334 N.Y.S.2d 874, 286 N.E.2d 257 (1972).

We agree with the district court's conclusion that Bergin's "'Powerhouse' idea is a mere variation on Century 21's past campaigns." Bergin, 2000 WL 223833, at *10. The idea is therefore neither novel to the buyer nor original in an absolute sense. See Nadel, 208 F.3d at 378-80. Moreover, as noted, Century 21's "More Power to You" slogan simply does not contain the element that Bergin claims made his idea novel -- its "use of the word 'power' with the word 'house.'"

Summary judgment under these circumstances is warranted.

For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.

[*]-. Of the United States District Court for the Eastern District of New York, sitting by designation.