Rusyniak v. Gensini

• Decision Date: 05 May 2009
• Docket Number: No. 5:07-CV-0279 (GTS/RFT).,5:07-CV-0279 (GTS/RFT).
• Citation: 629 F.Supp.2d 203
• Parties: Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs, v. Ena Paola GENSINI; Gunila De Montaigu; and Concha Futura, S.A., Defendants.
• Court: U.S. District Court — Northern District of New York

629 F.Supp.2d 203

Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs, v. Ena Paola GENSINI; Gunila De Montaigu; and Concha Futura, S.A., Defendants.

No. 5:07-CV-0279 (GTS/RFT).

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

May 5, 2009.

Costello, Cooney & Fearon, PLLC, Robert M. Smith, Esq., Kristen L. Pickard, Esq., of Counsel, Syracuse, NY, for Plaintiffs.

Hiscock & Barclay, LLP, Robert A. Barrer, Esq., of Counsel, Syracuse, NY, for Defendants Gunila De Montaigu and Concha Futura, S.A.

Greene, Hershdorfer & Sharpe, Victor J. Hershdorfer, Esq., of Counsel, Syracuse, NY, for Defendant Ena Paola Gensini.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Walter Rusyniak and Anthony Rusyniak ("Plaintiffs") commenced this action against Ena Paola Gensini, Gunila De Montaigu, and Concha Futura, S.A. ("Defendants"), asserting claims of (1) fraud, (2) breach of fiduciary duty, (3) civil conspiracy, (4) breach of contract, and (5) violation of Panamanian corporate law. (Dkt. No. 16, at 9-17 [Plf.'s Am. Compl.].)

Currently before the Court are Defendants' motion to dismiss Plaintiffs' Amended Complaint, and Plaintiffs' cross-motion to amend their Amended Complaint. (Dkt. Nos. 24, 41.) Plaintiffs seek to amend their Amended Complaint to (1) allege newly discovered facts regarding the various causes of action asserted in their Amended Complaint, and (2) add, as a party Defendant, Ena Paola Gensini's daughter and attorney in fact, Gioia Gensini. (Dkt. No. 41, Part 1, at 1.) For the reasons set out below, Defendants' motion to dismiss is granted in part and denied in part, and Plaintiffs' cross-motion to amend is granted in part and denied in part.

I. BACKGROUND

A. Relevant Procedural History

Plaintiffs commenced this action on March 16, 2007. (Dkt. No. 1.) On July 12, 2007, Plaintiffs filed an Amended Complaint. (Dkt. No. 16.) On August 3, 2007, Defendants jointly filed a motion to dismiss Plaintiff's Amended Complaint based upon Fed.R.Civ.P. 12(b)(2) and 12(b)(6). (Dkt. No. 24.) Both before and after the filing of Defendants' motion to dismiss, Plaintiffs sought initial disclosure pursuant to Fed.R.Civ.P. 26. (Dkt. No. 41, Part 2, at 1.) As a result, in September 2007, Defendants produced initial disclosure documents Fed.R.Civ.P. 26. (Dkt. No. 41, Part 2, at 2.) Subsequently, Plaintiffs sought, and were granted, a thirty (30) day adjournment of the deadline by which they had to respond to Defendants' motion to dismiss. (Dkt. No. 40 and Text Order of Sept. 19, 2007.) Plaintiffs now assert that these disclosures form the basis of their cross-motion to amend their Amended Complaint. (Dkt. No. 41, Part 2, at 2.)

B. Factual Allegations of the Proposed Second Amended Complaint

Because Plaintiffs' proposed Second Amended Complaint may cure certain deficiencies asserted by Defendants (in their motion to dismiss) with regard to Plaintiffs' Amended Complaint, and because an amended pleading supersedes a prior pleading in all respects (see N.D.N.Y. L.R. 7.1[a][4]), the Court will review the allegations of Plaintiffs' proposed Second Amended Complaint, rather than the allegations of their Amended Complaint. Liberally construed pursuant to Fed.R.Civ.P. 8(e), Plaintiffs' proposed Second Amended Complaint (Dkt. No. 41, Part 9) alleges as follows.

On or about May 27, 1980, Plaintiff Walter Rusyniak, in a partnership with Geoffredo Gensini, established a corporation in the Republic of Panama under the name of Concha Futura, S.A. On or about August 6, 1980, Geoffredo Gensini sold two parcels of land located in the Republic of Panama to Concha Futura, S.A., for thirty-seven thousand dollars ($37,000) in exchange for a twenty-five (25) percent ownership interest in Concha Futura, S.A. On or about August 6, 1980, Plaintiff Walter Rusyniak purchased a twenty-five (25) percent ownership interest in Concha Futura, S.A.¹ The investments of Geoffredo Gensini and Walter Rusyniak provided the initial capitalization for Concha Futura, S.A.² Two other shareholders, Roland De Montaigu and Guido Bezzera, were to invest in Concha Futura, S.A., within close proximity to the initial capitalization.³

On or about January 10, 1981, the four shareholders of Concha Futura, S.A., held a meeting in which they amended the Articles of Incorporation.⁴ At the meeting on January 10, 1981, the Board accepted the resignation of Guido Bezzera and accepted the nomination of Theodore Venners as his replacement. In the Articles of Incorporation, the shareholders set forth numerous provisions, most notably (1) a provision that the President of the Board (and, in his absence or defection, the Vice-President of the Board) will be the legal spokesperson of the company, and (2) a provision that only the existing officers actually in office could elect new officers to fill vacancies. The shareholders also established that Geoffredo Gensini would serve as President, Walter Rusyniak as Vice-President, Ronald De Montaigu as Secretary/Treasurer, and Theodore Venners as a member at large. In the event that Geoffredo Gensini passed away, Walter Rusyniak would take on Geoffredo Gensini's role as the legal spokesperson for the company.

Following the meeting on January 10, 1981, an extended period of time passed with no communication between the shareholders.⁵ On October 15, 1986, Geoffredo Gensini passed away, which, according to Plaintiffs, resulted in Walter Rusyniak becoming the President of Concha Futura, S.A., under the Corporate Bylaws.⁶ In 1995, Plaintiffs traveled to Panama to determine the status of the corporation and its members. Plaintiffs confirmed that there had been no activity in the corporation, that the corporation remained in good standing despite its inactivity, that the land held by Concha Futura, S.A., remained in good standing despite its inactivity, and that the land held by Concha Futura, S.A., remained in the name of the corporation. It was also clear to Plaintiffs, from a review of the records of Concha Futura, S.A., that no ongoing annual meetings or duties were being undertaken by the corporation.

In early 1996, a meeting was conducted in New York City by the spouse of the late Geoffredo Gensini, Defendant Ena Paola Gensini, who claimed to be acting as President "ad hoc" in her husband's place.⁷ Defendant Gensini was accompanied by the wife of the deceased Roland De Montaigu, Defendant Gunila De Montaigu, who claimed to be acting as Vice-President "ad hoc." Also present were Alberto A. Tile, acting as Secretary/Director, and Laurent De Montaigu, acting as Treasurer/Director. These new directors and officers were elected to the Board by Defendants Gensini and De Montaigu.⁸ No notice was given to Plaintiffs regarding this meeting, by publication or otherwise.⁹ Defendants used this meeting to usurp Plaintiff Walter Rusyniak's authority and to take over the corporation and its assets.¹⁰

In January 1997, another meeting was held during which "ad hoc" directors made numerous changes to the Corporate Bylaws and Agreements without any notice to Plaintiff Walter Rusyniak.¹¹ One of the changes made at this meeting was to reduce the majority vote required to sell, lease, exchange or dispose of property or assets from seventy percent (70%) to sixty percent (60%).¹² Another decision made at this meeting was that Plaintiff Walter Rusyniak had forfeited his shares because several letters of collection were sent to him, with no payment having been credited, and the Board therefore annulled his Certificate of Shares.¹³

After this meeting, Defendants conducted the business of Concha Futura, S.A., as if they were the legitimate officers.¹⁴ Up until January 2006, Defendant Ena Gensini lived in Manlius, New York, Defendant De Montaigu held property in Paris, France, and Alberto Tile, as well as Concha Futura, S.A., were based in Panama.¹⁵ As a result, the parties coordinated meetings and conducted their affairs through written correspondence and telephone conversations between New York, Panama and/or France.¹⁶ Part of this correspondence included discussions of selling Concha Futura assets. Plaintiff Walter Rusyniak was never included in any of the aforementioned communications.

On or about June 14, 2002, Defendant Ena Gensini granted her daughter, Gioia Gensini, a Power of Attorney over her banking.¹⁷ This Power of Attorney also conferred on Gioia Gensini the authority to represent Ena Paola Gensini's interest in Concha Futura, S.A.¹⁸

In June 2005, the "ad hoc" Board met in Syracuse, New York.¹⁹ At that meeting, the "ad hoc" group voted to enter into a promise to sell the two parcels of land owned by Concha Futura, S.A., through Alberto Tile. No notice of this meeting was provided to Plaintiff Walter Rusyniak, despite the fact that he resided in close proximity to the meeting location. On or about July 11, 2005, in the Republic of Panama, Alberto Tile, as representative of the "ad hoc" officers of Concha Futura, S.A., entered into a promise to sell the parcels of land owned by the corporation to Atahualpa Panama Incorporated.²⁰

In May 2006, Plaintiff Anthony Rusyniak flew back to Panama to again confirm the status of the corporation's assets,²¹ assuming that they were in the same state they had been in from 1981 to 1995, when he and his father duly confirmed the corporation was in good standing.²² During his investigation, Plaintiff Anthony Rusyniak discovered that there were investors poised to purchase the land originally sold to Concha Futura, S.A., by Geoffredo Gensini in his efforts to capitalize the corporation some twenty-five (25) years earlier.²³ Defendants were aware that Plaintiff Anthony Rusyniak was investigating the status of the corporation and had heard about a potential sale of the land.²⁴

After an extended effort, Plaintiffs obtained, from Panamanian officials, information relating to Concha Futura, S.A. This information consisted of minutes of alleged "shareholder meetings" held by Defendants. Plaintiff Walter Rusyniak had no...