Censor v. ASC Technologies of Connecticut, LLC (900 F. Supp. 2d 181, 2012)

United States District Court for the District of Connecticut 2012-09-28

Citations

Full opinion text

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [Dkts. 83, 84]; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND REQUEST FOR AN ACCOUNTING [Dkt. 79]; AND DENYING DEFENDANTS’ MOTION TO AMEND [Dkt. 81]

VANESSA L. BRYANT, District Judge.

I. Introduction

Plaintiff Martin Censor (“Censor”), an attorney specializing in human resources and employment law, brings this suit against ASC Technologies of CT, LLC (“ASC”), agents of ASC Thomas Ceconi (“Ceeoni”) and Lillian Shapiro (“Shapiro”), and HR 360, Inc. (“HR 360”). Censor brings claims against the Defendants stemming from his contractual relationship with ASC governing the inception and operation of the website Benefits Essentials, including claims for breach of contract, breach of fiduciary duty and fraud under Connecticut law, and copyright infringement in violation of the Federal Copyright Act of 1976, 17 U.S.C. § 101, et seq. Currently pending before the Court are (1) Plaintiffs Motion for Partial Summary Judgment Directing an Accounting, (2) Defendant ASC’s Motion for Summary Judgment, (3) Defendants Shapiro’s, Ceconi’s and HR 360’s Motion for Summary Judgment, and (4) Defendants’ Motion to Amend their Answer and file additional counterclaims.

II. Factual Background

As an initial matter, the Court notes that Fed.R.Civ.P. 56(c)(1) requires that

[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing 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 that fact.

Rules 56(c)(2) and (c)(3) declare that a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence” and that “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Additionally, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ... [or] grant summary judgment if the motion and supporting materials — -including the facts considered disputed — show that the movant is entitled to it ...” Fed.R.Civ.P. 56(e)(2), (e)(3).

Further, Local Rules of this district impose several specific requirements on the parties when arguing a summary judgment motion. Local Rule 56 requires that a party filing a summary judgment motion annex a “concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried.” D. Conn. L. Civ. R. 56(a)(1). “All material facts set forth in said statement and supported by the evidence will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party ...” Id. Local Rule 56(a)(2) requires that the papers opposing a motion for summary judgment shall include a document which states “whether each of the facts asserted by the moving party is admitted or denied” and must also include a “list of each issue of material fact as to which it is contended there is a genuine issue to be tried.” Each statement of material fact in a Local Rule 56(a)(1) or Local Rule 56(a)(2) statement, as well as each denial in a summary judgment opponent’s Local Rule 56(a)(2) statement, “must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.” D. Conn. L. Civ. R. 56(a)(3).

In the present case, Defendants have submitted Local Rule • 56(a)(1) statements in support of their Motions for Summary Judgment, along with Declarations in support thereof by Lillian Shapiro and Defendants’ attorney Michael Cicero. [See Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements; Dkt. 83-3, Shapiro Decl.; Dkt. 83-4, Cicero Deck] Plaintiff, however, has failed to include a 56(a)(2) statement with his Memorandum in Opposition to Defendants’ Motions for Summary Judgment. Plaintiff has, though, submitted a Declaration in support of his Opposition to Defendants’ Motion for Summary Judgment. [Dkt. 89-1, Censor Deck] Additionally, Plaintiff has filed a defective 56(a)(1) statement in support of his Motion for Partial Summary Judgment, in that the statement neither lists the material facts to which there is no genuine issue to be tried, nor cites to affidavits or evidence admissible at trial. Censor has also submitted an unsworn “Declaration” signed by his attorney who appears to have no personal knowledge of the facts to which he purportedly avers. In support of his Motion for Partial Summary Judgment Directing an Accounting, the Plaintiff submitted a signed and notarized affidavit. Defendants submitted a 56(a)(2) statement responding to Plaintiffs purported 56(a)(1) statement. Thus, although Plaintiff broadly fails to cite to “particular parts of materials in the record” under Fed.R.Civ.P. 56(c)(1) in his opposition to Defendants’ motions and in his own Motion for Partial Summary Judgment, he has presented an affidavit and his attorney’s declaration of unsupported factual and legal assertions in support of his positions. The Court therefore will consider Censor’s declaration and the admissible evidence attached to it, as well as Censor’s affidavit supporting his Motion for Partial Summary Judgment and the admissible evidence attached thereto. The Court will also consider Defendants’ appropriately submitted 56(a)(1) Statements and the evidence in support thereof. Where Censor, in his declaration opposing summary judgment, either admits or does not oppose or object to the facts contained in those documents the Court will accept them as true. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding that Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ”).

The Court also notes that notwithstanding Plaintiffs defective or nonexistent Local Rule 56 statements, Plaintiff claims he filed this action by way of verified complaint. “[A] party opposing a properly supported motion for summary judgment is not entitled to rely solely on the allegations of her pleading, but must show that there is admissible evidence sufficient to support a finding in her favor on the issue that is the basis for the motion.” Fitzgerald v. Henderson, 251 F.3d 345, 360-61 (2d Cir.2001). Verification of a complaint by the plaintiff is the equivalent of the oath that would be given with respect to an affidavit submitted in opposition to a motion for summary judgment under Fed.R.Civ.P. 56(c)(1)(A). See id. at 361 (reliance on a verified complaint is proper in support of an opposition to sum mary judgment); Dzugas-Smith v. Southold Union Free School Dist., 2012 WL 1655540, at *15 (E.D.N.Y. May 9, 2012) (“Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves ... unless the pleadings are verified in a manner equivalent of the oath that would be given with respect to an affidavit”) (internal quotation marks and citations omitted). The complaint — while it does contain a signed certification that the matters contained therein are true to Plaintiffs own knowledge — is neither notarized nor sworn under penalty of perjury. Thus, Plaintiff may not rely on this unverified complaint in opposing Defendants’ properly supported motions for summary judgment.

It is undisputed that on April 11, 2003, Plaintiff Martin Censor and Defendant ASC entered into a contract governing the parties’ relationship in running a subscription website business called Benefits Essentials. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at ¶¶ 1-2] The terms of the agreement — entitled the “Joint Venture Agreement” (the “Agreement”) — are likewise not in dispute. Article II of the Agreement sets forth the “Obligations of the Joint Venturers” as follows:

All parties share equally in the operations and decisions of the Joint Venture. The parties agree to a split of duties between themselves as follows:

Martin Censor is primarily responsible for updating the content.

ASC is primarily responsible for marketing and technology (i.e., site development and maintenance). ASC will host the site on its servers and/or at its expense.

[Dkt. 79-1, Censor Aff. at Exh. C, Article II; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article II] Article III of the Agreement, “Allocations,” states as to profits and losses that

Commencing on the date hereof and ending on the termination of the business of the Joint Venture, all profits, losses and other allocations to the Joint Venture shall be allocated quarterly, as follows: Fifty percent (50%) to ASC and fifty percent (50%) to Censor. In the event of the sale of the partnership, Censor will receive 50% of the sale price and ASC will receive 50% of the sale price.

[Dkt. 79-1, Censor Aff. at Exh. C, Article III; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article III] The Agreement also addresses copyright issues, in that

[t]he parties stipulate that Censor is the sole owner of the copyright to the site content; Censor shall retain such rights during the life of this venture and in the event of termination of dissolution of the venture.

[Dkt. 79-1, Censor Aff. at Exh. C, Article IV; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article IV] The Agreement entitles the parties to dissolve their relationship pursuant to the following provision:

The Joint Venture shall be dissolved upon the happening of any of the following events: (a) The adjudication of bankruptcy, filing of a petition pursuant to a Chapter of the Federal Bankruptcy Act, withdrawal, removal or insolvency of either of the parties, (b) The sale or other disposition, not including an exchange of all, or substantially all, of the Joint Venture assets, (c) Mutual agreement of the parties. Upon dissolution, other than the sale of the partnership including the partnership property (BenefitsEssentials), the parties agree that the content of BenefitsEssentials shall remain the property of Censor.

[Dkt. 79-1, Censor Aff. at Exh. C, Article VI; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article VI] Lastly, the Agreement provides the method in which it may be amended by the parties:

[t]he parties hereto covenant and agree that they will execute each such other and further instruments and documents as are or may become reasonably necessary or convenient to effectuate and carry out the purposes of this Agreement.

[Dkt. 79-1, Censor Aff. at Exh. C, Article VII; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article VII]

The parties do not dispute that Censor and ASC exercised differing responsibilities in the creation, maintenance and growth of Benefits Essentials. ASC maintained control over the subscription business while Censor took on content-related and editorial responsibilities. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at ¶¶ 2, 4] ASC took an administrative and technological role; ASC owned the domain name for the website, hosted the website on its servers, maintained the website, and provided office space for the operations of the website [Dkt. 83-3, Shapiro Dec. at If 11]. ASC also marketed subscriptions to the website and collected all subscription fees, managed all client issues and customer support, and “over[saw] all non-editorial staff and some editorial staff.” [Dkt. 83-3, Shapiro Dec. at If 11]. Censor, on the other hand, edited and updated the website’s content and corresponded directly with customers through a link on the website from which customers could pose questions and offer feedback and corrections [Dkt. 83-4 Exh. 5, Censor Depo. at 56, 63], marketed the website by contacting potential subscribers, entered Benefits Essentials into various contests for best website, maintained contact with large subscribers (who Censor contends he originally brought to the joint venture), prepared webinars for dissemination on the website, answered “Ask-the-Experts” questions posed by subscribers, developed and maintained a monthly newsletter and blog, and prepared press releases. [Dkt. 89-1, Censor Dec. at If 4] Benefits Essentials was itself a product and not a separate business entity; it had no bank accounts and no Employer Identification Number on file with the IRS, and Benefits Essentials itself did not grant any licenses for use of the website. [Dkt. 83-3, Shapiro Dec. at ¶ 10]

Although the Agreement called for an equal split of the profits from Benefits Essentials, the parties revised this breakdown — evidenced by an email exchange between Censor and Shapiro on December 23, 2008 — to reduce Censor’s percentage of profits. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at ¶ 10] In this email exchange, the subject of which was “summary of our deal,” Shapiro wrote:

I feel confident we can all make this work. To summarize, Tom [Ceconi] and I will get an additional 15% from existing sales and 15% from new sales commissions. I will prepare a commission report monthly. You will get a minimum of $6,000 a month from the business or we will recalculate our increased percentage to make this work for your needs. If any issues arise about making this work, I will call to discuss but I hope and pray we can meet these obligations successfully. I feel very energized and filled with hope for the future.

[Dkt. 83-3, Shapiro Decl. at Exhibit 3; see also Dkt. 1, Comp, at Exh. B] Twelve minutes later, Censor replied:

OK. But (there’s always a “but”) ...

Can we please agree to cut out (or cut down on) any “outside” expenses during the next two months’ trial period. By that I mean no new editorial projects or new technology. Of course, whatever is required for “maintenance” or ongoing projects should continue. In this way, we can truly focus on the product, and gauge if this new arrangement is working out.

[M] On January 2, 2009, Shapiro responded: “will do-maintenance as you mentioned is necessary to make sure everything stays working and accurate.” [M]

Censor and Shapiro again corresponded by email about the split of profits four months later. On May 2, 2010 Censor questioned Shapiro: “Any money in the till? I’m not sure any more what the split is these days but I cannot afford to give up my share. I have a mortgage and tuitions to pay.” [Dkt. 83-3, Shapiro Decl. ¶ 18, Exhibit 4; see also Dkt. 1, Comp, at Exh. C] Two days later, Shapiro responded:

This month’s check will have an extra $1,500 due to the quarterly payment from [a client].

At this time, HR & Benefits Essentials site requires fulltime management of content. No longer can this job be done part-time. The attached content management policy which you wrote years ago is a good guideline which we are following. To get the job done, we have a full-time editor at $50,000 a year plus benefits, a part-timer who does link checking and review of all the links on ours [sic] site. The site has thousands of links that break/change regularly and have to be maintained. We also average payment to Ken of about $1,000 a month ■for ask the experts questions.

If you want to come and work in Stamford for 9 + hours a day for about $6,000 a month, we can consider terminating Tim and Kim but all that work would fall to you and it must be done in a timely basis, all day, every day.

[Id.]

ASC contends and Censor does not dispute that by late 2010 it was no longer able to continue its business relationship with Censor “because the quantity and quality of Censor’s editorial work had declined significantly, and because Censor had, despite repeated requests, refused to provide evidence that he held copyright assignments to materials of third parties that had appeared on the Benefits Essentials Website.” [Dkt. 83-3, Shapiro Deck at ¶ 19] By letter from defendant Ceconi— ASC’s President — to Censor dated December 10, 2010, ASC withdrew from the Agreement effective December 17, 2010. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at ¶ 9; see also Dkt. 89, P’s Opposition to Ds’ MSJ, at p. 5 and Exh. B] The letter, in relevant part, reads:

We now understand that the mediation will cost us a substantial sum in attorneys’ fees, as well as any litigation if we are unsuccessful in finding a resolution. Therefore, after considerable thought, ASC Technologies of CT, LLC is terminating the joint venture with you as of 5:00 pm EST on December 17, 2010, and we wish to commence the process of winding up.

Pursuant to Article VI of the Joint Venture Agreement dated April 11, 2003 we are in the process of gathering the HTML files for transmission to you.

We would like now to turn our discussion with you to complete the winding up of the joint venture. Among other things, of course, we will want to execute appropriate releases for our mutual benefit.

We suggest beginning those discussions no later than early next week ...

This obviates the need for mediation and it is being cancelled.

On December 22, 2010 Ceconi sent Censor a letter regarding the winding up of the relationship, reading in relevant part:

I am sure you are aware, in the absence of specific limitations, joint ventures are terminable at will. With regards to the legal issues you raised, it is our position that we have the absolute right to withdraw from the joint venture ...

Connecticut law is clear that a joint venturer can withdraw from a joint venture, absent specific limitations, at any time. Here is how we propose to wind up the joint venture:

1. Content. Under the Joint Venture Agreement, you are entitled to all of the content of Benefits Essentials upon dissolution. Enclosed, we have placed all content in HTML format on a CD.

2. Accounting. We are in the process of completing all accounting for calendar 2010 and it is expected to be complete on or about January 15th.

3. Clients. We are prepared to provide you a list of all subscribers served by Benefits Essentials. However, these clients have entered into a licensing agreement with ASC pursuant to which ASC is obligated to keep all information related to their subscription confidential. Consequently, delivering this list to you is conditioned upon your agreement to the terms of a confidentiality agreement.

4. Continued Operation While Winding Up. We cannot, of course, simply turn off the switch to the website and leave clients out in the cold. We also need to work out the financial elements of this transaction. Therefore, ASC is willing to host the website benefitsessentials.com for the next 45 days at no cost to you. With regard to revenues received during that period, they will be addressed in the forthcoming accounting and are subject to negotiation.

5. Finally, after the above has been competed [sic], we can attempt to determine an arrangement which is fair and equitable.

[Dkt. 79-1, Censor Aff., at ¶ 4 and Exh. C]

ASC provided Censor with a compact disk containing the content of the Benefits Essentials website in December, 2010. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at ¶ 13; Dkt. 83-4 Exh. 5, Censor Deposition at 74] The disk contained content authored by Censor, by ASC, by government sources, and by other third parties. [Dkt. 83-3, Shapiro Decl. at ¶ 26] Defendants contend that ASC was in the process of preparing the updated accounting contemplated in Ceconi’s December 22, 2010 letter when Censor filed suit. [Dkt. 83-3, Shapiro Dec. at ¶ 27] Censor contends that the requisite accounting has not occurred. [Dkt. 79-1, Censor Aff., at ¶ 10]

Shapiro and Ceconi formed HR 360 on December 9, 2010. [Dkt. 83-3, Shapiro Decl. at ¶ 21; dkt. 36, Answer at ¶¶ 26, 28] As of 2012 the HR 360 website contained more than 4,500 pages of content. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at If 19; Dkt. 83-3, Shapiro Decl. at If 24]

On December 20, 2010 Censor registered a copyright with the United States Copyright Office. [Dkt. 79-1, Censor Aff., at If 6 and Exh. G, Certificate of Registration] The Certificate of Registration contains the following relevant specifications regarding the copyright:

Title of Work: Benefits Essentials

Previous or Alternative Title: HR & Benefits Essentials

Date of 1st Publication: November 20, 2010

Author: Martin Censor

Author Created: new and revised text and editing

Material excluded from this claim: previously published versions of website

New material included in claim: new and revised text and editing

[Dkt. 79-1, Censor Aff., at Exh. G, Certificate of Registration]

Censor registered five pages of the Benefits Essentials website with the Copyright Office. [Dkts. 83-2 & 84-2, Ds’ 56(a)(1) Statements at ¶ 23; Dkt. 83-4, Cicero Decl. at Exh. 8 (Certificate of Copyright) ] These introductory pages, provided with the Certificate of Copyright obtained from the U.S. Copyright Office on February 15, 2012 by Defendants, include those titled “Welcome to HR & Benefits Essentials, Information Every Business Needs to Know,” and “Welcome to the HR and Benefits Library an Award-Winning Business Compliance Resource Center.” The Certificate certifies that “the attached color photocopies are a true representation of the work entitled BENEFITS ESSENTIALS deposited in the Copyright Office with claim of copyright registered under TX 7-354-094.” [Dkt. 83-4, Cicero Decl. at Exh. 8 (Certificate of Copyright) ]

III. Standard of Review

a. Motion for Summary Judgment

Summary judgment should be granted “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). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury’s verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir.2006) (internal quotation marks and citation omitted).

“A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No. 3:03cv481, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F.Supp.2d 28, 37-38 (D.Conn.2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712 (2d Cir.2010).

IV. Discussion

a. Breach of Contract

Censor alleges that ASC breached the Joint Venture Agreement by (1) unilaterally terminating the agreement without providing an accounting [Dkt. 1, Comp, at ¶¶ 36]; (2) failing to pay Censor his fifty per cent share of the profits derived from Benefits Essentials [Dkt. 1, Comp, at ¶ 44(a) ]; (3) diverting income from the joint venture in violation of ASC’s obligation to host the site on its servers and/or at its expense, and diverting income to Ceconi and Shapiro [Dkt. 1, Comp, at ¶¶ 38, 39, 44(b) ]; (4) failing to pay Censor fifty per cent of the profits of the transfer of Benefits Essentials to HR 360 [Dkt. 1, Comp, at ¶ 44(c) ]; and (5) infringing his copyright in the contents of Benefits Essentials. [Dkt. 1, Comp, at ¶¶ 39, 44] Defendant ASC has moved for summary judgment on the basis that (1) the plain language of the Joint Venture Agreement gave ASC the right to unilaterally withdraw [Dkt. 83-1 ASC MSJ at pp. 16-17]; and (2) Censor was not entitled to fifty per cent of the profits of the joint venture [Dkt. 83-1 ASC MSJ at pp. 17-20]. Defendants Shapiro, Ceconi and HR 360 have moved for summary judgment on the argument that they were not parties to the contract between ASC and Censor and Censor has provided no evidence to suggest that Shapiro, Ceconi or HR 360 were alter egos of ASC. Defendants have counterclaimed for breach of contract, alleging that beginning in 2008 Censor failed to update the website regularly, forcing ASC to hire additional employees and outside contractors to update the content of the website. The parties do not dispute the existence of a valid contract in this action, nor that both parties satisfactorily performed under the contract until around 2008.

In Connecticut, a breach of contract action requires the plaintiff to show (1) a valid agreement, (2) performance by . one party, (3) breach of the agreement by the opposing party and (4) damages directly and proximately caused by the breach. McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 504, 890 A.2d 140 (Conn.App.Ct.2006). In determining whether breach has occurred, the court must ascertain the contractual rights and obligations of the parties.

In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction.... Where the language is unambiguous, we must give the contract effect according to its terms.... Where the language is ambiguous, however, we must construe those ambiguities against the drafter.... [A] contract is unambiguous when its language is clear and conveys a definite and precise intent.... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.... Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.... In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself.... [A]ny ambiguity in a contract must emanate from the language used by the parties.... The contract must be viewed in its entirety, with each provision read in light of the other provisions ... and every provision must be given effect if it is possible to do so.... If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.

Harbour Pointe, LLC v. Harbour Landing Condominium Ass’n, Inc., 300 Conn. 254, 260-61, 14 A.3d 284 (Conn.2011) (quoting Cantonbury Heights Condominium Ass’n, Inc. v. Local Land Dev., LLC, 273 Conn. 724, 734, 873 A.2d 898 (Conn.2005)). Where a contract term is ambiguous, the court may properly discern the intent of the parties as to the meaning of the contract by considering extrinsic evidence. United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 675, 791 A.2d 546 (Conn.2002). “[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries.” Gurguis v. Frankel, 93 Conn.App. 162, 168, 888 A.2d 1083 (Conn.App.Ct.2006). “Proximate cause is ordinarily a question of fact.” Id. “[I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation ... militates against interpreting a contract in a way that renders a provision superfluous.” Connecticut Nat’l Bank v. Rehab Assocs., 300 Conn. 314, 322, 12 A.3d 995 (Conn.2011) (internal quotation marks and citation omitted).

i. Withdrawal

Defendant ASC moves for summary judgment as to Censor’s claim that ASC breached the Joint Venture Agreement by unilaterally withdrawing from the joint venture. ASC notified Censor of its intent to withdraw from the joint venture by letter from ASC dated December 10, 2010 which stated that, “after considerable thought, ASC Technologies of CT, LLC is terminating the joint venture with you as of 5:00 pm EST on December 17, 2010, and we wish to commence the process of winding up.” [Dkt. 89, P’s Opposition to Ds’ MSJ, Exh. B] ASC contends that its withdrawal was sanctioned under the third term of Article VI of the Joint Venture Agreement which reads, in relevant part:

The Joint Venture shall be dissolved upon the happening of any of the following events: (a) The adjudication of bankruptcy, filing of a petition pursuant to a Chapter of the Federal Bankruptcy Act, withdrawal, removal or insolvency of either of the parties, (b) The sale or other disposition, not including an exchange of all, or substantially all, of the Joint Venture assets, (c) Mutual agreement of the parties.

[Dkt. 79-1, Censor Aff. at Exh. C, Article VI; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article VI] Censor argues that the entirety of section (a) relates to bankruptcy proceedings only (“Those [terms] are all in relation to a bankruptcy of the joint venture”). [Dkt. 83-4 Exh. 5, Censor Depo. at 69] however, Censor misreads the Joint Venture Agreement. Article VI is unambiguous on its face, and thus the Court must give the contract effect according to its terms. The plain language of the article allows for withdrawal in any one of five situations: (1) the adjudication of bankruptcy of either of the parties; (2) the filing of a petition pursuant to a Chapter of the Federal Bankruptcy Act by either of the parties; (3) the withdrawal of either of the parties; (4) the removal of either of the parties; or (5) the insolvency of either of the parties. There is nothing in the Agreement which makes a petition pursuant to or the adjudication of bankruptcy a precursor to dissolution by withdrawal nor does the Agreement restrict a party from withdrawing from the joint venture. The plain language of the Agreement makes each of the bases for dissolution independent of each other. Additionally, Censor has produced no evidence in the record to contradict the plain language of the contract allowing either party to withdraw at will. The Court thus concludes that ASC was entitled to unilaterally withdraw from the joint venture by the plain terms of the Joint Venture Agreement and grants summary judgment for ASC as to Censor’s breach of contract claim as it relates to withdrawal.

ii. Profits Split

Article III — “Allocations” clearly and unambiguously provides that profits, losses and other allocations are to be divided equally between Censor and ASC:

Commencing on the date hereof and ending on the termination of the business of the Joint Venture, all profits, losses and other allocations to the Joint Venture shall be allocated quarterly, as follows: Fifty percent (50%) to ASC and fifty percent (50%) to Censor.

[Dkt. 79-1, Censor Aff. at Exh. C, Article III; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article III] ASC and Censor rethought this split of profits in late 2008 as a result of, ASC contends and Censor does not dispute, ASC’s assumption of expanded editorial duties due to subscribers’ demand for expanded content on the website, ne: cessitating increased maintenance of the site, and Censor’s reduction in time spent updating and editing its contents. [Dkt. 83-1, ASC MSJ at p. 18; Dkt. 83-3, Shapiro Decl. at ¶ 14] Shapiro emailed Censor on December 23, 2008 summarizing a deal they had worked out regarding the profits split whereby Ceconi and Shapiro would receive “an additional 15% from existing sales and 15% from new sales commissions” and Censor would receive “a minimum of $6,000 a month from the business or we will recalculate our increased percentage to make this work for your needs.” [Dkt. 83-3, Shapiro Decl. at Exhibit 3; see also Dkt. 1, Comp, at Exh. B] Censor replied to Shapiro’s email by stating “OK. But (there’s always a “but”) ...” and subsequently proposing that the parties agree to cut down on any outside expenses “during the next two months’ trial period,” allowing the parties to “focus on the product, and gauge if this new arrangement is working out.” [Id.] On January 2, 2009 Shapiro assented to Censor’s proposal: “will do — maintenance as you mentioned is necessary to make sure everything stays working and accurate.” [Id.]

ASC argues that this email chain constituted a change in the terms of the Joint Venture Agreement. Censor denies this and contends that he never agreed to a change in the profit split and that a rider to the Agreement would have been required to change the percentage of profits due to him. The Court finds that, as a matter of law, this writing constitutes a change in the profits split between thé parties. The Agreement specifically provides for its amendment by “such other and further instruments and documents as are or may become reasonably necessary or convenient to effectuate and carry out the purposes of this Agreement.” [Dkt. 79-1, Censor Aff. at Exh. C, Article VII; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article VII] Although Article III clearly divides the profits due to Censor and ASC equally, Article VII effectively allows the parties to amend the Agreement as necessary or convenient to carry out the purposes of the Joint Venture Agreement. The Agreement does not require such amendments to be written, nor does it require formalization in a rider to the Agreement. Per the plain language of Article VII, Censor and ASC could modify the Joint Venture Agreement by email if they so chose.

Accordingly, the Court now looks to the December 2008 email chain to determine if it constituted an amendment to Article III of the Joint Venture Agreement. The Court concludes that it did. The subject line of Shapiro’s first email to Censor is “summary of our deal.” The text that follows proposes a modified split of profits whereby ASC would receive a larger percentage of existing sales and sales commissions, and Censor would receive a minimum of $6,000 per month. Censor’s contention that his reply to this proposal (“OK. But (there’s always a ‘but’) ... ”) does not constitute his consent is not credible. His response — “OK”—plainly indicates assent to the new terms of the profits split on a trial basis. It also, as indicated by the presence of the “But,” proposes a condition under which Censor consents to the new terms: that the parties cut down on outside expenses during the two month trial period. Nowhere in the response does Censor reject the terms of the proposed profits split. Shapiro subsequently responded by email and agreed to Censor’s condition.

Censor maintains that he later rejected the reduced split in his profits perhaps by email or by discussion. [Dkt. 83-^4 Exh. 5, Censor Depo. at 90] He points to an email chain between him and Shapiro on May 2, 2010, in which he asked if there was any money to be distributed and stated that he had a mortgage and tuitions to pay. [Dkt. 83-3, Shapiro Deck If 18, Exhibit 4; see also Dkt. 1, Comp, at Exh. C] Two days later, Shapiro responded that an extra $1,500 was forthcoming, but that the HR & Benefits Essentials website required full-time management of content and could no longer rely on part-time content staff, referring to the content management policy which the Plaintiff wrote. She told Censor that Benefits Essentials needed a full-time editor and a part-time link checker. She also noted that the venture was paying about $1,000 per month for a person to respond to ask the experts questions. She went on the state that if Censor was willing to devote 9+ hours a day for about $6,000 a month, they could consider terminating the two employees who performed that work, noting that the work would have to be done on a timely basis, all day, every day. [Id.] This email exchange confirms that Censor agreed to a change in the profits split and suggests that there was more than one change. Censor explicitly states that he is “not sure any more what the split is these days,” which tacitly acknowledges that he had agreed to an earlier reduction of his profits distribution. Moreover, his statement that he had lost track of the current split can only be interpreted as an admission that he had previously agreed to a reduction in his share of profits. Censor’s comment that he cannot afford to give up his share does not constitute an objection to reduction in his profits percentage; rather, it simply states his inability to afford any further reductions. Even Shapiro’s response supports this conclusion as it offers Censor a means of increasing his share of the profits, namely by performing the essential functions he agreed to perform when the joint venture was formed, but which were being performed by paid staff of the joint venture. Further, Censor admitted in his deposition that he has no recollection and no evidence to refute his admission that he had agreed to a reduction in his split:

Q. When did you object to [the proposed change in the 50-50 split of profits]?

A. I don’t recall offhand.

Q. In what form did you object? In writing?

A. I don’t recall. I, it may have been emails, there may have been discussions

Q. Do you have any emails in your possession that would indicate an objection subsequent to the date relating to the proposed change in the 50-50 split in profits ... ?

A. I don’t know. I would have to check.

[Dkt. 83-4 Exh. 5, Censor Depo. at 89-90]

After this exchange and during the deposition ASC’s counsel formally requested “any written materials that would indicate an objection to the proposal to the December 23rd [2008] email,” and further requested such information in follow up discussion with Censor’s counsel. [Dkt. 83^4 Exh. 5, Censor Depo. at 93; Dkt. 83-4, Cicero Dec. at 6-8]. Censor produced no written evidence. [Dkt. 83-4, Cicero Dec. at 8] Defendants also served Interrogatory No. 11 on Censor, requesting that Censor “identify any documents or other evidence which support your contention” that the “revised 80%-20% split did not continue in full force and effect through December 2010.” [Dkt. 83 — 4 Exh. 1, Cicero Decl. at p. 9; Dkt. 83-1, ASC’s MSJ at 19] Censor responded that the December 23, 2008 email chain

specifically state[s] that the ‘new arrangement’ IF APPROVED would be on a trial basis, and would be revisited. I objected thereto, subsequent to the emails on many occasions and demanded my 50%.Obviously, as a matter of law, if there were any such approval, it would require a RIDER to the Joint Venture Agreement. The emails do not state that the purported ‘New Arrangement’ was ever finalized, nor was there any proof that the ‘trial’ was resolved, one way or another.

[Dkt. 83-4 Exh. 3, Censor Interrog. Responses at ¶ 11]

The Plaintiffs response is a legal conclusion and does not provide any factual support for his claim. Moreover, the Plaintiff fails to identify any evidence amounting to more than eonclusory assertions and his deposition testimony admits that he is not aware of the existence of any evidence to support this claim. Finally, Censor failed to take depositions of any of the parties involved in this action, including of Ceconi or Shapiro, with whom he likely would have raised his objections as to the reduction of his profits percentage, nor did he serve any document requests on Defendants. [Dkt. 83-2, Ds’ 56 Statement at ¶ 17; Dkt. 83 — 4] Nor did Censor address his objection to the profit split in his Declaration in Opposition to Motion of Defendants for Summary Judgment. [Dkt. 89-1, Censor Dec.] In all, the total evidence on the record supporting Censor’s claim for breach of contract due to ASC’s failure to pay his fifty per cent profits percentage are the December 23, 2008 and May 2, 2010 email chains between Censor and Shapiro, and Censor’s contentions during deposition and in his response to Defendants’ interrogatory that he objected to the profits split (but does not remember when or in what form).

For the foregoing reasons, the Court concludes that Censor and ASC agreed to reduce Censor’s share of the profits as of the December 23, 2008 email chain between Censor and Lillian Shapiro. The Court must credit all factual inferences in favor of Plaintiff, but Censor is obligated at the summary judgment stage to present admissible evidence in support of his allegations, which he has failed to do. “A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on eonclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No. 3:03cv481, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712 (2d Cir.2010). The Court finds that Censor has produced no evidence upon which a jury could properly proceed to find a verdict for Plaintiff on his profits split claim. Therefore, the Court grants summary judgment for ASC as to the allegation of breach of contract for failure to pay Plaintiff his fifty per cent profits from Benefits Essentials, only as relates to the parties’ amendment of the Joint Venture Agreement pursuant to the December 23, 2008 email chain between Censor and Lillian Shapiro.

However, there remains a material issue of disputed fact as to the numerical percentage of profit to which Censor was entitled per the December 23, 2008 email chain and subsequent to that date. Plaintiff contends that his portion was reduced to 35 per cent of the profits [Dkt. 1, Comp, at ¶ 24(a) ], while ASC contends that plaintiff agreed to and did receive twenty per cent of the profits, as reflected in payments from ASC to Censor after December 23, 2008. [Dkt. 83-2, Ds’ MSJ 56 Statement, at ¶¶ 10, 11] While the Court believes it likely based on the December 23, 2008 email that the split became 80/20, there is no evidence in the record to indicate which calculation is correct; the email exchange is ambiguous as to the exact reduced percentage, and neither party has provided additional evidence of the actual reduced percentages involved in the profit split. Therefore, because a disputed issue of material fact exists as to whether the profits split was 65/35 or 80/20, the Court reserves this question for an accounting hearing or, alternatively, for trial. The Court also declines to rule on any further profits reduction after the reduction agreed to in the December 23, 2008 email chain, and thus denies summary judgment as to a further reduction of profits.

iii. Breach of Contract as to Ceconi, Shapiro, and HR 360

Defendants Ceconi, Shapiro, and HR 360 move for summary judgment to the extent that Censor asserts breach of contract claims against them. The Court notes that Censor alleges his breach of contract claims specifically against Defendant ASC. However, the Complaint is unclear and thus sufficiently vague as to be construed to assert breach of contract claims against Ceconi, Shapiro and HR 360. To the extent that Censor alleges these claims against these defendants, the Court concludes that summary judgment is proper as to Defendants Ceconi, Shapiro and HR 360 as individuals, as Censor has failed to allege facts sufficient to pierce the corporate veil.

In Connecticut,

[w]hen determining whether piercing the corporate veil is proper, our Supreme Court has endorsed two tests: the instrumentality test and the identity test. The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of ... The identity rule has been stated as follows: If [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise....

Breen v. Judge, 124 Conn.App. 147, 152-53, 4 A.3d 326 (Conn.App.Ct.2010) (internal quotation marks omitted) (affirming trial court’s decision not to pierce the corporate veil where plaintiff had failed to provide sufficient evidence that defendant individual and limited liability corporation were one and the same).

Here, Censor has failed to allege that Ceconi and Shapiro exerted such influence over ASC that it had no independent existence. Censor alleges and Defendants concede that Shapiro and Ceconi were agents of ASC. However, Censor utterly fails to provide any proof on the record that Ceconi or Shapiro exercised complete dominion over ASC such that ASC had no separate mind, will, or existence of its own, or that there was “such unity of interest and ownership” that ASC was not in fact its own independent entity. At the summary judgment stage, Censor must present admissible evidence in support of his allegations and allegations alone are not sufficient to defeat summary judgment. Welchr-Rubin, 2004 WL 2472280, at *1. Plaintiff has failed to present any evidence beyond his conclusory allegations in the complaint that would support piercing ASC’s corporate veil and holding Ceconi and Shapiro personally liable. Thus, Defendants Shapiro’s, Ceconi’s and HR 360’s Motion for Summary Judgment as to Plaintiffs breach of contract claim is granted.

b. Breach of Fiduciary Duty and Action for an Accounting

Censor’s claim of breach of fiduciary duty by Defendants ASC, Shapiro and Ceconi stems directly from his claims of breach of contract, copyright infringement, and fraud: he claims that by infringing his copyright, failing to pay him his portion of the profits of the joint venture, and diverting joint venture assets to HR 360 and to the personal accounts of Ceconi and Shapiro, defendants have violated their fiduciary duties in order to “coerce [Censor] to consent to dissolution [of the joint venture] without an accounting.” [Dkt. 1, Comp, at ¶ 52] Censor bases his claim for breach of fiduciary duty and his demand for an accounting on the existence of a joint venture as memorialized in the Joint Venture Agreement signed April 11, 2003. Censor has filed a Motion for Partial Summary Judgment Directing an Accounting. [Dkt. 79-3]

As an initial matter, the Court notes that the record reflects that ASC attempted to provide Censor with an accounting prior to the commencement of this action, together with other customary concessions incident to the winding-up of the joint venture. Censor preempted those submissions by filing this action.

Defendants counter-move for summary judgment on the breach of fiduciary duty claim, contending that the relationship between ASC and Censor is not a joint venture. Defendants argue that Censor failed to exercise the requisite control over the enterprise, Censor did not intend to form a joint venture, and Censor and ASC did not form a separate business entity; therefore ASC owes Censor neither fiduciary duties nor an accounting. Censor counters that he exercised enough control to have been a member of a joint venture, that the intent of the parties was clear, and that a separate business entity is unnecessary to form a joint venture. Defendants Ceeoni, Shapiro and HR 360 additionally move for summary judgment on the basis that, because they were not parties to the Joint Venture Agreement and because Censor presented no evidence that they were alter egos of ASC, they are not fiduciaries and may not be liable for breach.

The Court holds that based on the plain language of the Joint Venture Agreement and the conduct of the parties, a joint venture existed between Censor and ASC. Therefore, as a matter of law, ASC and Censor owe to one another fiduciary duties akin to those in a common law partnership, including the right to an accounting. Consequently, the Court grants in part and denies in part Plaintiffs Motion for Summary Judgment Directing an Accounting, granting to the extent it seeks an accounting of the Benefits Essentials joint venture only. The Court further grants in part and denies in part Defendants’ Motions for Summary Judgment as to Plaintiffs claim for breach of fiduciary duty,

i. Joint Venture

Under Connecticut law, a joint venture “exists where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking.” Doe v. Yale Univ., 252 Conn. 641, 673, 748 A.2d 834 (Conn.2000). See also Lenoble v. Best Temps, Inc., 352 F.Supp.2d 237, 249 (D.Conn.2005) (quoting same); Elec. Assoc., Inc. v. Automatic Equip. Dev. Corp., 185 Conn. 31, 35, 440 A.2d 249 (Conn.1981) (“A joint venture is a special combination of two or more persons who combine their property, money, effects, skill, and knowledge to seek a profit jointly in a single business enterprise without any actual partnership or corporate designation.”). “Although regarded as an informal partnership, joint ventures are generally governed by the same principles that govern common-law partnerships.” Doe, 252 Conn. at 673-74, 748 A.2d 834. See also R.S. Silver Enters. Co., Inc. v. Pascarella, No. FSTCV065002499S, 2010 WL 3259869, at *28 (Conn.Super.Ct. Jul. 14, 2010) (“The relations and obligations in a joint venture are generally governed by the principles of common law partnership”) (quoting Travis v. St. John, 176 Conn. 69, 72, 404 A.2d 885 (1978)). Thus, “[a]s a matter of law, parties to joint ventures undertake fiduciary duties to each other concerning matters within the scope of the joint venture.” Elec. Assocs., 185 Conn. at 35, 440 A.2d 249. See also RS Silver, 2010 WL 3259869, at *27 (quoting same).

To constitute a joint venture, courts in Connecticut prescribe a five part test that requires that (1) two or more persons must enter into a specific agreement to carry on an enterprise for profit, (2) an agreement must evidence their intent to be joint venturers, (3) each must contribute property, financing, skill, knowledge or effort, (4) each must have some degree of joint control over the venture, and (5) there must be a provision for the sharing of both profits and losses. RS Silver, 2010 WL 3259869, at *28 (citing 46 Am.Jur.2d, Joint Ventures, § 8); Schlierf v. Abercrombie & Kent, Inc., No. X02CV055003467, 2011 WL 2418571, at *6 (Conn.Super.Ct. May 19, 2011); Mahoney v. Sylvester, No. 363585, 1993 WL 426082, at *2 (Conn.Super.Ct. Oct. 13, 1993). The Second Circuit has affirmed a practically identical test for joint venture under New York law. Thus, the Second Circuit’s affirmation constitutes controlling precedent for this Court. See SCS Commc’ns, Inc. v. Herrick Co., Inc., 360 F.3d 329, 341 (2d Cir.2004); Itel Containers Int’l Corp. v. Atlanttrafik Exp. Serv. Ltd., 909 F.2d 698, 701 (2d Cir.1990).

1. Common Enterprise and Joint Control

Defendants contend that the relationship between Censor and ASC does not meet the first or fourth prongs of the joint venture test because Benefits Essentials was not a separate business entity, the relationship between Censor and ASC was that of author to publisher, and because Censor did not exercise joint control over the enterprise. Defendants’ contentions, though, are without merit.

ASC argues without citation to any case law or other authority that because no separate entity was established to operate the business of Benefits Essentials the parties did not create a “common enterprise” as required under the first prong of the joint venture test. [Dkt. 83-1, ASC MSJ at p. 4] This interpretation, however, holds no sway under the definitions of joint venture as formulated by the Connecticut Supreme Court above. Neither definition, on its face, contemplates that a joint venture must be formed as a separate business entity; rather, the definitions suggest that a joint venture occurs where two or more parties combine to carry out a single project for profit. Here, Censor and ASC contracted to carry out a single project— the Benefits Essentials website — for profit.

Nor is it correct as a matter of law to classify the relationship between Censor and ASC as that of an author to a publisher and thus preclude finding a joint venture, as ASC contends, again without citation to any case law or other authority. Although Connecticut law is scant on the subject, other courts have ruled that an author/publisher relationship may not necessarily satisfy the test for a joint venture. For example, in a tax action by the famous author against the New York City Comptroller, the Court of Appeals of New York ruled in Steinbeck v. Gerosa that, where Steinbeck’s agents had negotiated contracts for the licensing of certain rights to his literary works,

The sums payable to petitioner by way of royalties were merely the price for the licensing of certain of his literary rights. The sales made by the publishers and the gross receipts from the motion pictures were simply the means by which the price for the licensing of Mr. Steinbeck’s literary rights were ultimately to be determined. On the contrary, it must be said that the source of Mr. Steinbeck’s income was not the sales made by the publisher, but the contracts made between him and his publisher in New York City.

4 N.Y.2d 302, 318, 175 N.Y.S.2d 1, 151 N.E.2d 170 (N.Y.1958). Although defendants have characterized the relationship between Censor and ASC as one of author to publisher (and Censor agreed with this classification during his deposition by responding that “the shorthand, if you will” classification of his arrangement with ASC was that he was an author and ASC a publisher), the Court disagrees with this characterization as a matter of law and therefore distinguishes the author/publisher cases denying a joint venture. [Dkt. 83-1, ASC MSJ at p. 3; Dkt. 83^ Exh. 5, Censor Depo. at 54]

Censor and ASC enjoyed a much more in depth business relationship than classifies the typical author/publisher relationship, such as the one described in Steinbeck. ASC and Censor entered into a contract to develop, maintain, and grow a dynamic and ongoing product. Censor provided written content for the website, but also agreed to edit and update that content, provide new analysis and insight, respond as an expert to questions about the content from subscribers, and “share equally in the operations and decisions of the joint venture.” [Dkt. 79-1, Censor Aff. at Exh. C, Article II; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article II] The share of profits that Censor collected from Benefits Essentials was not “merely the price for the licensing of certain of his literary rights” as royalties payments were for Steinbeck; it was the price for Censor’s ongoing work on and development of a single project undertaken by both ASC and Censor for profit. The relationship between Censor and ASC was not akin to the author/publisher relationship at its inception.

Closely related to the above contention is ASC’s argument that Censor did not exercise joint control over the venture and thus the parties’ relationship must fail the fourth prong of the joint venture test. [Dkt. 83-1, ASC MSJ at p. 4] ASC submits the following evidence to support its contention that it exercised sole control over the Benefits Essentials website: ASC most recently owned the domain name for the Benefits Essentials website, hosted the website on its servers, maintained the website, and provided office space for the operations of the website [Dkt. 83-3, Shapiro Dec. at ¶ 11]; ASC performed “the entire business of marketing subscriptions” to the website, managed all client issues and customer support, and “over[saw] all non-editorial staff and some editorial staff,” and collected all subscrip-, tion fees [Dkt. 83-3, Shapiro Dec. at ¶ 11], In fact, Censor testified during deposition that he was not involved with customer billing or bookkeeping or with customer technical support, and was not involved in administration of the website other than making editorial changes to its content. [Dkt. 83-4 Exh. 5, Censor Depo. at 55-57]

Crucially, though, the plain language of the Joint Venture Agreement and the conduct of the parties evidences that Censor exercised joint control over Benefits Essentials and therefore, as a matter of law, has met prong four of the joint venture test. Article II, entitled “Obligations of the Joint Venturers,” states that

All parties share equally in the operations and decisions of the Joint Venture. The parties agree to a split of duties between themselves as follows:

Martin Censor is primarily responsible for updating the content.

ASC is primarily responsible for marketing and technology (i.e., site development and maintenance).

ASC will host the site on its servers and/or at its expense.

[Dkt. 79-1, Censor Aff. at Exh. C, Article II; Dkt. 83-3, Shapiro Dec. at Exh. 1, Article II] The unambiguous language of the Agreement provides for equal control of the joint venture by both ASC and Censor; the Article on its face is not susceptible to differing interpretations and thus the Court credits its terms as valid. Furthermore, the Agreement divides the operations and decisions of the Joint Venture equally while specifically taking into account the differing roles that ASC and Censor would play. Notably, the third prong of the joint venture test prescribes that joint venturers must each contribute either property, financing, skill, knowledge, or effort. RS Silver, 2010 WL 3259869, at *28 (citing 46 Am.Jur.2d, Joint Ventures, § 8); Schlierf, 2011 WL 2418571, at *6; SCS Commc’ns, Inc., 360 F.3d at 341. Case law is clear that differing contributions among parties may constitute a joint venture. For example, Connecticut courts and the Second Circuit have found joint ventures in situations where one party contributes financing to establish the common enterprise of the joint venture, while the other party manages or runs the enterprise or business operation. See, e.g., Durante v. Martinez, No. NNHCV084043410S, 2012 WL 3517592 (Conn.Super.Ct. Jul. 12, 2012) (recognizing a joint venture to build a house between a home builde