Hollander v. Flash Dancers Topless Club

• Decision Date: 28 October 2004
• Docket Number: No. 03 Civ. 2717(PKC).,03 Civ. 2717(PKC).
• Citation: 340 F.Supp.2d 453
• Parties: Roy Den HOLLANDER, Plaintiff, v. FLASH DANCERS TOPLESS CLUB, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

340 F.Supp.2d 453

Roy Den HOLLANDER, Plaintiff, v. FLASH DANCERS TOPLESS CLUB, et al., Defendants.

No. 03 Civ. 2717(PKC).

United States District Court, S.D. New York.

September 28, 2004.

Order Amending Memorandum and Order and Denying Reconsideration October 28, 2204.

Roy Den Hollander, New York City, for Plaintiff.

Edward S. Rudofsky, Zane & Rudofsky, Bradley Evan Dubin, McManus, Collura & Richter, P.C., Nelson Michael Stern, Nelson M. Stern, Attorney, Vikrant Pawar, Corporation Counsel of the City of New York, Bruce Alan Claugus, Claugus & Mitchell, Michael Davis Valasco, New York City, for Defendants.

MEMORANDUM AND ORDER

CASTEL, District Judge.

Plaintiff Roy Den Hollander ("Den Hollander") brings this action pro se against what he alleges to be a criminal enterprise that spans the globe, from New York to Russia to Chechnya to Cyprus to Mexico. The defendants are alleged to be members of the enterprise and include plaintiff's former wife, her mother, associates and divorce lawyers, various exotic dancing clubs, members of alleged organized crime groups, modeling and escort agencies, a Cypriot bank and New York City police detective. Various other actors are identified by partial name or by fictitious appellation ("Maria — Prostitute Recruiter for Julia Heart Agency," "Krasnodar Briber 1," "California Pimp," "Mexican Organized Criminal Gang 1," "Chechen Criminal Gangs 1 to 2"). Plaintiff's Complaint, some 90 pages and over 900 paragraphs in length, spins a tale of a dark netherworld of international intrigue and deception, detailing an alleged criminal enterprise among the defendants (the "Enterprise") that engaged in extensive criminal activities, including, but by no means limited to, drug trafficking, money laundering, immigration fraud, prostitution, pornography, extortion and fraud, in an effort "to infiltrate and expand its illegal and ancillary legal activities into hard currency markets, especially the United States" (the "Scheme"). (Complaint ¶¶ 1-2, 13, 15) Plaintiff asserts claims under the civil enforcement provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, in order to redress the alleged injury to plaintiff arising out of his discovery of this Scheme. Plaintiff also asserts various state law causes of actions.

Defendants Kuba, Mundy & Associates, Nicholas J. Mundy (together, "Mundy"), Peter Petrovich ("Petrovich"), Cybertech Internet Solutions, Inc. ("Cybertech"), Detective Robert W. Henning ("Henning"), Bank of Cyprus, Ltd. ("Bank of Cyprus"), Dr. Marc Paulsen ("Paulsen"), and Alina Shipilina ("Shipilina"), together with Flash Dancers Topless Club, Jay-Jay Cabaret, Inc., Lynn Lepofsky, "Barry-Night Manager Flash Dancers" and "Flash Dancers Managers 1 to 5" (collectively, "Flash Dancers defendants"), now move to dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P.¹ Defendants also move to dismiss the Complaint for failing to plead fraud with the particularity required by Rule 9(b), Fed.R.Civ.P. Defendants seek to dismiss the state law claims either because they fail to state a claim or because the Court, in their view, ought not exercise supplemental jurisdiction.² For the reasons set forth herein, defendants' motion is granted, and plaintiff's Complaint is dismissed with prejudice.

Factual Background

Because the Complaint includes some 900 paragraphs of allegations against the Enterprise and its members, many of which are not necessary to my decision on the motion, I will not detail all of the alleged criminal activities and predicate acts outlined in the Complaint.³ I note that a large number of the allegations are made on information and belief. For purposes of deciding this motion, I have, as required by the dictates of Rule 12(b)(6), accepted the well-pleaded allegations as true.

In brief plaintiff, a lawyer, member of the bar of this Court and former consultant for Kroll Associates in Moscow, alleges that the Enterprise has damaged his business, and that in the process he has been "drugged, defrauded, coerced and threatened... with severe bodily harm." (Complaint ¶ 3) According to the Complaint, plaintiff was lured into the web of the Enterprise in July 1999 when he met, and eventually married, his former wife, defendant Shipilina. (Complaint ¶¶ 128-140) Plaintiff alleges that his former wife is "a lucrative member of the Enterprise," and details the criminal activities that he asserts she has engaged in as part of the Enterprise, including "running prostitution, aiding pornography rings, laundering money, smuggling drugs and building relationships among Russian, Chechen and American organized crime groups." (Complaint ¶ 36) He also alleges, on information and belief, that Ms. Shipilina and another member of the Enterprise "decided to target the plaintiff as part of the Enterprise's ongoing Scheme to infiltrate and expand its operations in the U.S." (Complaint ¶ 135), and that, by "win[ning] the devotion and cloud[ing] the mind of plaintiff by secretly feeding him narcotics" (¶ 137), they would "use the plaintiff as an unwitting means for ... Shipilina to fraudulently enter America where she would participate in expanding the Enterprise's activities" (¶ 136). To that end, plaintiff and defendant Shipilina were married on March 11, 2000 in Krasnodar. (Complaint ¶ 36) The couple chose the March date because, according to the Complaint, it "would follow the end of plaintiff's consultantcy with Kroll Associates." (Complaint ¶ 173) Plaintiff subsequently became suspicious of his wife's activities and motives, and in August 2000, "launched an investigation that continues to the present day and ended up diverting [plaintiff] from his law and consulting business for two years." (Complaint ¶ 217)

As a result of his initial investigation and continued suspicion of the Enterprise's Scheme, plaintiff sought a divorce from defendant Shipilina. Plaintiff alleges, in considerable detail, that, as a result of his desire to divorce Ms. Shipilina, defendants Kuba, Mundy & Associates (his wife's lawyers), New York Police Department Detective Henning, and others filed false documents and reports with the INS and the NYPD, and engaged, with the help of other defendants (including the "Baraev Islamic Terror and Crime Clan," the "Asypyan Criminal Association" and other "gangsters"), in a campaign of intimidation and threats of violence (aided by the payment of bribes to public officials in the Untied States and Krasnodar) to prevent plaintiff from "providing testimony to any U.S. authorities, including the New York divorce court" and the INS about Ms. Shipilina's immigration status and the Enterprise's illegal activities. See Complaint ¶¶ 220-319.

Plaintiff alleges that the defendants' actions outlined above, along with numerous other acts set forth in the Complaint, constitute, inter alia,"white slavery" in violation of 18 U.S.C. § 2421, misuse of visas in violation of 18 U.S.C. § 1546, concealment of prostitution activities in violation of 18 U.S.C. § 1341, unlawful procurement of nationality in violation of 18 U.S.C. § 1425, intimidation and witness tampering in violation of 18 U.S.C. § 1512, bribing of Russian public officials in violation of 18 U.S.C. § 1952, murder for-hire in violation of 18 U.S.C. § 1958, counterfeiting of visas in violation of 18 U.S.C. § 1546, importing pornography for distribution in violation of 18 U.S.C. §§ 1462 and 1465, foreign travel in aid of a racketeering enterprise in violation of 18 U.S.C. § 1952 and intimidating plaintiff in violation of 18 U.S.C. § 1343, and constitute sufficient predicate acts to create a "pattern of racketeering activity" and give rise to a RICO violation.

By letter dated August 23, 2004, in accordance with this Court's individual practices, plaintiff sought leave to file a motion to supplement his Complaint. Attached to that letter was a proposed "Supplemental Complaint," which purports to "update the earlier Complaint ... with subsequent occurrences and events that relate to the original Complaint...." The Supplemental Complaint, drafted with defendants' motions to dismiss in hand, consists of allegations of additional "predicate acts," including the continued harassment of and interference with plaintiff as a result of his investigation of the Enterprise and its Scheme, and defendant Shipilina's obstruction of justice by filing false and misleading documents in this case. The only allegation in the Supplemental Complaint relating to causation and damages is that "[t]he Enterprise's additional illegal activities recounted in this supplemental complaint have increased the harm to the plaintiff's business and property by causing loss of profits, business interruption expenses, loss of business opportunities and damage to the plaintiff's reputation and good will in the amount of $100,000." (Supplemental Complaint ¶ 77)⁴

Rule 15(d) provides that the court may permit a party to supplement his pleadings to set forth "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Rule 15(d), Fed.R.Civ.P. Although defendants object to the proposed Supplemental Complaint on the grounds that few, if any, of the events set forth in the Supplemental Complaint every really happened (see Letter from Jack Sachs dated August 30, 2004 at 1), it is not the Court's role at this stage of the litigation to assess the truth or validity of plaintiff's allegations, no matter how fanciful they appear or how difficult they may be to prove. I grant plaintiff leave to file the Supplemental Complaint and, in reviewing the adequacy of plaintiff's pleadings on these motions to dismiss, I will consider the Complaint and Supplemental Complaint.

Legal Standard

It is axiomatic that in deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations as true and draw all inferences in...