ALLEN v. DEVINE
| Decision Date | 24 July 2010 |
| Docket Number | No. 09-cv-668 (ADS).,09-cv-668 (ADS). |
| Parties | C. Robert ALLEN, III, by Luke ALLEN, as Guardian for the Property Management of C. Robert Allen III, Plaintiff, v. Christopher DEVINE, Bruce Buzil, Lakeshore Media, LLC, Milcreek Broadcasting LLC, College Creek Media LLC, Marathon Media Group, LLC, 3 Point Media-Salt Lake City, LLC, 3 Point Media Delta, LLC, 3 Point Media-Utah, LLC, 3 Point Media-Franklin, LLC, 3 Point Media-Prescott Valley, LLC, 3 Point Media-Coalville, LLC, 3 Point Media-Arizona, LLC, 3 Point Media-Florida, LLC, 3 Point Media-Kansas, LLC, 3 Point Media-Ogden, LLC, 3 Point Media-San Francisco, LLC, Midvalley Radio Partners, LLC, D & B Towers LLC, Superior Broadcasting of Nevada, LLC, Superior Broadcasting of Denver, LLC, Wackenburg Associates, LLC, Portland Broadcasting LLC, Desert Sky Media LLC, Sky Media LLC, Devine Racing Management, LLC, ACB Consulting Co., Richard Davis, Excelsior Capital, LLC, Superior Broadcasting Co., and John Does 1-50, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
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Cohen & Gresser LLP, by Lawrence T. Gresser, Esq., Alexandra Sarah Wald, Esq., Nathaniel P.T. Read, Esq., Alexis Gena Stone, Esq., Harvey B. Silikovitz, Esq., of Counsel, New York, NY, for plaintiffs.
Peckar & Abramson, P.C., by Daniel E. Budorick, Esq., David Scriven-Young, Esq., Edward Pacer, Esq., Kevin Joseph O'Connor, Esq., Thomas Jerome Curran, Esq., of Counsel, New York, NY, for all defendants, except defendants Superior Broadcasting Co., D & B Towers LLC, Richard Davis, and Excelsior Capital, LLC.
Allyn & Fortuna, LLP, by Nicholas J. Fortuna, Esq., of Counsel, New York, NY, for defendant D & B Towers LLC.
Callister Nebeker & McCullough, P.C., by Mark L Callister, Esq., of Counsel, Salt Lake City, UT, for defendant D & B Towers LLC.
Judd Burstein, P.C., by Judd Burstein, Esq., of Counsel, New York, NY, for defendants Richard Davis and Excelsior Capital, LLC.
No Appearance, for Defendant Superior Broadcasting, Co.
Plaintiff C. Robert Allen, III, by and through his Guardian for Property Management, Luke Allen, alleges in this case that the defendants defrauded him out of tens of millions of dollars over several years. Presently before the Court are four motions:
1) a motion to dismiss for failure to state a claim by defendants Lakeshore Media, LLC, College Creek Media LLC, Marathon Media Group, LLC, 3 Point Media-Salt Lake City, LLC, 3 Point Media Delta, LLC, 3 Point Media-Prescott Valley, LLC, 3 Point Media-Coalville, LLC, 3 Point Media-Arizona, LLC, 3 Point Media-Florida, LLC, 3 Point Media-Kansas, LLC, 3 Point Media-Ogden, LLC, 3 Point Media-San Francisco, LLC, Midvalley Radio Partners, LLC, Superior Broadcasting of Nevada, LLC, Superior Broadcasting of Denver, LLC, Wackenburg Associates, LLC, Portland Broadcasting LLC, Desert Sky Media LLC, and Sky Media LLC, (collectively, the “Devine/Buzil LLCs”) and ACB Consulting Co. (“ACB”) and Christopher Devine (collectively with the Devine/Buzil LLCs, the “Devine Moving Defendants”);
2) a motion to dismiss for lack of personal jurisdiction by defendant Bruce Buzil;
3) a motion to dismiss for failure to state a claim by defendants Richard Davis and Excelsior Capital, LLC (collectively, the “Davis Moving Defendants”); and
4) a motion to dismiss for lack of personal jurisdiction by defendant D & B Towers LLC (“D & B Towers”).
For the reasons set forth below, the Court (1) denies in part and grants in part the motion to dismiss by the Devine Moving Defendants, (2) grants the motion to dismiss by defendant Buzil, (3) deems the motion to dismiss by the Davis Moving Defendants to be moot, and (4) denies the motion to dismiss by defendant D & B Towers.
The Court set forth the details of the plaintiff's allegations in this matter in its previous decision in this case, Allen ex rel. Allen v. Devine, 670 F.Supp.2d 164 (E.D.N.Y.2009) (“ Allen I ”), issued November 19, 2009. Familiarity with that decision is assumed. After the Court issued Allen I, the plaintiff amended his complaint, adding to and modifying certain of his allegations. However, the gravamen of both complaints is the same: the plaintiff alleges that the defendants, led by Christopher Devine and assisted by Bruce Buzil, convinced the plaintiff to loan approximately $70 million to defendant Superior or related entities, based on false representations of Superior's financial status. The defendants then illegally diverted this money for their own benefit.
In Allen I, the Court decided three motions: (1) a motion by the Devine Moving Defendants (except for ACB, who was not a party at the time) to dismiss pursuant to Fed.R.Civ.P. 19 for failure to join an indispensable party, (2) a motion by these same defendants in the alternative to transfer the case to the Northern District of Illinois, and (3) a motion by defendant D & B Towers to dismiss for lack of personal jurisdiction and failure to state a claim. The Court denied all three of these motions, but ordered additional action with respect to the Rule 19 motion. Specifically, the Court found in addressing the defendants' Rule 19 motion that Richard Davis and Bruce Buzil were necessary parties with respect to the plaintiff's claims for constructive trust and injunctive relief. The Court also found that Superior Broadcasting Co. (“Superior”) was a necessary party with respect to the plaintiff's claim for constructive trust. The Court therefore ordered these parties to be joined to the case.
On December 15, 2009, prior to any of the defendants answering the original complaint, the plaintiff filed an amended complaint. Pursuant to the Court's directive, the amended complaint joined Superior, Davis, and Buzil with respect to the plaintiff's claim for a constructive trust. However, the amended complaint also asserted claims against Buzil for violation of the Racketeering Influenced and Corrupt Organizations Act (“RICO”), fraud, civil conspiracy, unjust enrichment, conversion, and breach of fiduciary duty. In addition, the plaintiff named for the first time Devine Racing Management, LLC (“Devine Racing”), ACB, and Excelsior Capital, LLC as defendants, asserting a constructive trust claim against each entity, while also asserting civil conspiracy, conversion, and unjust enrichment against ACB and Devine Racing.
Now, each of the defendants, except Superior, moves for dismissal of the amended complaint. First, the Devine Moving Defendants move to dismiss the plaintiff's RICO claims against Devine for failure to state a claim, and also assert that the Court should not exercise supplemental jurisdiction over the would-be remaining state law claims. Second, defendant Bruce Buzil asserts that the Court's exercise of personal jurisdiction over him is precluded by a previous holding in a related proceeding in New York state court. Third, the Davis Moving Defendants move to dismiss based on separate related New York state case. Fourth, defendant D & B Towers renews its previous motion to dismiss for lack of personal jurisdiction. The Court addresses each of these motions in turn.
[1] As a threshold matter, a number of the defendants challenge the plaintiff's filing of an amended complaint without leave from the Court. While the Court directed the plaintiff to join Davis, Buzil, and Superior with respect to certain limited claims, the amended complaint advances other claims against some of these defendants, and also joins three previously-unnamed defendants. The plaintiff neither requested nor was granted leave from the Court to assert these additional claims.
Fed.R.Civ.P. 15(a), as amended December 1, 2009, provides in pertinent part:
Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: ... (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
Pursuant to Rule 15, the right to amend the complaint once without leave from the Court does not terminate until 21 days after the filing of either (1) an answer or (2) a motion pursuant to Rule 12(b), (e), or (f). Neither of these bars the plaintiff's amendment of his complaint by right. Presently, no party in this case has yet filed an answer, and as of the filing of the amended complaint, only D & B Towers had filed a motion pursuant to Rule 12. However, none of the amendments to the complaint affect D & B Towers, and thus the previous motion to dismiss by D & B Towers does not bar the plaintiff's amendment of the complaint. See, e.g., W.B. David & Co., Inc. v. De Beers Centenary AG, No. 04-cv-5203, 2005 WL 3704690, at *2 (S.D.N.Y. Sept. 2, 2005) (). The Court therefore accepts the amended complaint in its entirety.
The plaintiff has asserted federal RICO claims against Devine, as well as state common law claims against all of the Devine Moving Defendants. The Devine Moving Defendants now contend that (1) the plaintiff has not stated any valid RICO claim against Devine, and that (2) the Court should not exercise supplemental jurisdiction over the remaining state law claims asserted against the Devine Moving Defendants. The Court addresses these contentions in turn.
Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that,...
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