Boardakan Rest. LLC v. Atl. Pier Assocs., LLC
| Decision Date | 02 October 2013 |
| Docket Number | CIVIL ACTION NO. 11-5676 |
| Parties | BOARDAKAN RESTAURANT LLC, et al., Plaintiffs, v. ATLANTIC PIER ASSOCIATES, LLC, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................... 1
II. BACKGROUND ..................................................................................................................... 1
III. DEFENDANTS' MOTION FOR RECONSIDERATION.......................................................6
A. Standard of Review..............................................................................6
IV. DEFENDANTS' MOTIONS TO DISMISS WILL BE DENIED.........................................12
A. Standard Of Review............................................................................12
B. The Motions To Dismiss Will Be Denied Because Plaintiffs' Claims Are Sufficiently Pled, Timely, and Not Barred By Res Judicata..............................13
V. CONCLUSION ..................................................................................................................... 24
I. INTRODUCTION
Pending before the Court are Defendants' Joint Motion for Reconsideration and Motions to Dismiss. (Doc. Nos. 12, 17, 18, 19, 20, 22.) Defendants ask this Court to reconsider an Order entered by the late Honorable Albert W. Sheppard, Jr. of the Philadelphia Court of Common Pleas. Judge Sheppard's Order struck a discontinuance filed by Plaintiffs and reinstated their case. Defendants contend that if the motion for reconsideration is denied, then the Amended Complaint should be dismissed. Plaintiffs submit that the case should be allowed to proceed. For reasons that follow, the Court denies Defendants' Joint Motion for Reconsideration and Motions to Dismiss. The case will go forward.
II. BACKGROUND
At the heart of this case lies a dispute over a lease. Plaintiffs Boardakan Restaurant, LLC and Oceanental Restaurant, LLC ("Plaintiffs") own two upscale restaurants in "The Pier at Ceasar's" ("The Pier") in Atlantic City, New Jersey. Plaintiffs lease space from Defendant Atlantic Pier Associates, LLC ("APA"), a limited liability company owned and operated by the Gordon Group Defendants1 and the Taubman Defendants.2 Plaintiffs originally entered into lease agreements with Defendants in 2004 when The Pier was still undergoing construction with a scheduled opening date of March 2006. Under the terms of the leases, if The Pier did not open on time then Plaintiffs' leases would automatically become null and void. (Doc. No. 20-1 at ¶ 51.)
In 2004, two other upscale restaurants, RumJungle and English Is Italian, also entered into lease agreements with Defendants. It soon became apparent that The Pier would open laterthan scheduled. Knowing they would be able to walk away from the project, Plaintiffs sent a letter to Defendants asking for further assurances. (Id. at ¶85.) Specifically, Plaintiffs asked if RumJungle and English Is Italian maintained binding leases with Defendants. Plaintiffs then met with Defendant Peter Fine, who informed them that RumJungle and English Is Italian would "definitely" be opening at The Pier, when in fact they had both already terminated their leases. (Id. at ¶ 103.) Plaintiffs allege that Defendants sent emails, letters, and press releases, all confirming the participation of RumJungle and English Is Italian. (Id. at ¶ ¶ 96, 99, 109.) Plaintiffs argue that Defendants conspired to keep them in the dark, knowing that they would not continue with the project without the other restaurants on board. One month before their lease was set to expire, Plaintiffs entered into amended lease agreements with Defendants, investing substantial sums of money in the properties. Plaintiffs claim that they would not have made the investment but-for Defendants' misrepresentations. (Id.)
On June 25, 2008, Plaintiffs filed a Writ of Summons in the Court of Common Pleas of Philadelphia County alleging fraud against APA and two of its members, Gordon Group Holdings, LLC and Taubman Centers, Inc. ("Boardakan I")3 Plaintiffs also named several "John Doe" entities and individuals as defendants in the Writ (Doc. No. 17-11 at 5-6). Plaintiffs then began pre-Complaint discovery. (Doc. 12 at 12.)
On July 23, 2008, Defendants removed Boardakan I to the United States District Court for the Eastern District of Pennsylvania. (Doc. No. 53 at 7.) Thereafter, Plaintiffs moved to have the case remanded back to state court on the grounds that a Writ of Summons is not a removable pleading under 28 U.S.C. § 1446. (Id.) In September 2008, during the pendency of Boardakan Iin federal court, one of the Defendants in Boardakan I filed a separate suit in federal court for unpaid rent against Plaintiffs. ("Boardakan II") (Doc. No. 53 at 7.)
On September 19, 2008, the Honorable Eduardo C. Robreno of this Court held a hearing on the Motion to Remand in Boardakan I. (Doc. 53 at 8.) Plaintiffs allege that Judge Robreno made it clear that he intended to remand Boardakan I to the Court of Common Pleas and suggested that if the parties wished to consolidate the case with Boardakan II, then they must agree on an efficient way to do so. (Doc. No. 53 at 8.) Plaintiffs further allege that in response to this suggestion they came to an oral agreement with Taubman Defendants' counsel, Jeffrey Meyers. (Doc. No. 53 at 8-9.) Under the terms of this agreement, Plaintiffs would complete their pre-Complaint discovery in Boardakan I after it was remanded to the Court of Common Pleas, then file a complaint in federal court covering the allegations relating to the Writ and have it consolidated with Boardakan II. (Doc. No. 53 at 9.) On September 24, 2008, Judge Robreno remanded Boardakan I to the Court of Common Pleas. (Doc. No. 53 at 9.)
On April 16, 2009, pursuant to the alleged agreement between counsel, Plaintiffs filed another action in the Eastern District of Pennsylvania ("Boardakan III"). In this new case, Plaintiffs asserted claims of fraud, negligent misrepresentation, civil conspiracy, and promissory estoppel against APA and all Gordon Group and Taubman Defendants.4 The following day, Plaintiffs voluntarily discontinued Boardakan I in the Court of Common Pleas and Judge Robreno entered an Order consolidating Boardakan III with Boardakan II. (Doc. Nos. 12 at 12-13; 53 at 9.) After these cases were consolidated, Taubman Defendants terminated Jeffrey Meyers as their counsel. (Doc. No. 53 at 19.)
In September 2009, Judge Robeno recused himself from the case, and the action was assigned to the late Honorable Louis H. Pollak. (Doc. No. 53 at 10.) On September 23, 2010, Taubman Defendants filed a Motion to Dismiss the Complaint filed in Boardakan III, arguing that Plaintiffs had run afoul of the statute of limitations when they discontinued Boardakan I. Specifically, Defendants argued that the Writ of Summons did not toll the statute of limitations on the claims raised in Boardakan III. (Doc. No. 53 at 11.) On July 27, 2011, Judge Pollak issued an Opinion and Order granting Taubman Defendants' Motion to Dismiss on the statute of limitations ground. (Doc. No. 53 at 11.) In the Opinion, Judge Pollak explained: "[I]t is undisputed that, if the Plaintiffs had filed a complaint in the state court action, and if the defendants had successfully removed that case to federal court, the claims would not be barred by the statute of limitations." (Doc. No. 53 at 11.)
On August 4, 2011, Plaintiffs filed a Petition to Strike Off the Discontinuance in Boardakan I in the Court of Common Pleas. (Doc. No. 53-1.) Plaintiffs argued that they had filed the discontinuance based on an agreement with Taubman Defendants' former counsel, Jeffrey Meyers, which they had reached after the September 19, 2008 hearing before Judge Robreno and with Judge Robreno's endorsement. (Doc. 12-2 at 8-10.) On August 16, 2011, Defendants filed an Answer and Memorandum in opposition. (Doc. No. 12 at 17.) Two days later, the late Honorable Albert W. Sheppard Jr. of the Court of Common Pleas heard oral argument on Plaintiffs' Petition. (Doc. No. 53 at 12.) On August 22, 2011, Judge Sheppard granted Plaintiffs' petition and entered the following Order:
That same day, Plaintiffs filed a Complaint in state court alleging fraud, negligent misrepresentation, civil conspiracy, promissory...
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