Opinion
01-CV-4568 (DRH) (WDW)
October 8, 2003
Barry A Weprin, Esq., Paul D. Young, Esq., Kirk E. Chapman, Esq., MILBERG WEISS BERSHAD HYNES LERACH LLP, New York, New York, for Plaintiffs,
Lenard Leeds, Esq., Jeffrey Brown, Esq., LEEDS MORELLI BROWN, P.C., Carle Place, New York, for Plaintiffs
Richard I. Scheyer, Esq., SCHEYER JELLENIK, Nesconset, New York, for Toussie Defendants,
WILLIAM D. WEXLER, ESQ., North Babylon, New York, for Toussie Defendants
Robert M. Calica, Esq., ROSENBERG CALICA BIRNEY LLP, Garden City, New York, for Defendant PMCC Mortgage Corp.
Barbara M. Pizzolato, Esq., Fort Myers, Florida, BARBARA M. PIZZOLATO, P.C., for Defendant Mutual of North America,
Anthony C. Acampora, Esq., Jericho, New York, SILVERMAN PERLSTEIN ACAMPORA LLP, for Defendant First West Mortgage Bankers Ltd.
Alison J. Besunder, Esq., Hunter T. Carter, Esq., Gary C. Tepper, Esq., New York, New York, ARENT FOX KITNER PLOTKIN KAHN, PLLC, for Defendant Chase Manhattan Mortgage Corporation,
Kenneth Pasquale, Esq., Michele L. Pahmer, Esq., Jacob Miota, Esq., New York, New York, STROOCK STROOCK LAVAN LLP, for Defendant Fleet Mortgage Corporation and its successor in interest
MEMORANDUM ORDER
Plaintiffs have filed a renewed motion to amend the complaint. Certain Defendants have opposed this motion and filed cross-motions. For the reasons discussed infra, the Court grants Plaintiffs' motion and denies Defendants' cross-motion.
I. BACKGROUND
In relevant part, the procedural history of this case is as follows. Plaintiffs initiated this action on July 10, 2001, by filing a complaint. On November 21, 2001, Defendant First West Mortgage Bankers, Ltd. filed an answer. On February 5, 2002, Plaintiffs filed a motion for leave to amend the complaint. In connection with this motion, Plaintiffs provided a first proposed amended complaint. On September 6, 2002, the Court issued a memorandum and order denying the motion for leave to amend the complaint without prejudice to renew. In the context of the instant motion, the Court presumes familiarity with this September 6, 2002, order.
On November 18, 2002, Plaintiffs' submitted a motion for reconsideration of the Court's September 6, 2002., order. At a hearing held on January 6, 2003, the Court granted reconsideration of the prior order but ultimately stood by the conclusions reached in the September 6, 2002, order.
Thereafter, Plaintiffs submitted a renewed motion for leave to amend the complaint. Plaintiffs submitted a second proposed amended complaint in connection with this renewed motion. On April 25, 2003, the Court issued a written order denying Plaintiffs' renewed motion for leave to amend the complaint. The Court also presumes familiarity with this written order.
Currently before the Court is Plaintiffs third motion for leave to amend the complaint, which is supplemented by a third proposed amended complaint. Among the allegations contained in the third proposed amended complaint, Plaintiffs alleged the following causes of action: (1) violation of 42 U.S.C. § 3601, et seq.; (2) violation of 42 U.S.C. § 1981; (3) violation of 42 U.S.C. § 1982; (4) violation of 42 U.S.C. § 1985(3); (5) violation of 42 U.S.C. § 1986; (6) violation of 15 U.S.C. § 1691; (7) mail fraud in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962(c); (8) conspiracy to commit mail fraud in violation of the RICO Act, 18 U.S.C. § 1962(d); (9) violation of New York Executive Law § 296; (10) violation of New York General Business Law § 349; (11) violation of Title 8 of the Administrative Code of the City of New York; (12) breach of contract; (13) breach of express warranty and (14) breach of implied warranty of habitability. See third proposed amended complaint ¶¶ 101-171.
The Court refers to this submission as the "third proposed amended complaint" rather than the "proposed third amended complaint" because, other than the original complaint, no later complaints have been accepted by the Court. Accordingly, the former description is more accurate than the latter.
Defendant PMCC Mortgage Corp. ("PMCC") and the Toussie Defendants (referred to as such since the Court's September 6, 2002, order) oppose this motion and have filed cross-motions. These papers were received in chambers on August 26, 2003.
II DISCUSSION
A. Plaintiffs' Motion for Leave to Amend.
By way of review, a responsive pleading has been filed in this case. Under these circumstances, Plaintiffs must obtain leave from the Court to effectively amend the complaint. See Fed.R.Civ.P. 15(a). Rule 15(a) provides that a motion for leave to amend a complaint "shall be freely given when justice so requires." Id. Nonetheless, the Court need not grant a motion for leave to amend the complaint in all circumstances. Instead, "'[w]here it appears that granting leave to amend is unlikely to be productive [due to futility], . . . it is not an abuse of discretion to deny leave to amend.'" Lucente v. International Business Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (quoting Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam)). For example, a proposed complaint that fails to satisfy the pleading requirements of Fed.R.Civ.P. 9(b), if applicable, would be considered futile. See In re Boesky Securities Litigation, 882 F. Supp. 1371, 1384 (S.D.N.Y. 1995). Likewise, a proposed amended complaint that would not withstand a Rule 12(b)(6) motion to dismiss would also be considered futile. See Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). In their opposition to Plaintiffs' motion for leave to amend the complaint, Defendants have raised both species of futility. The Court begins by discussing the arguments that Rule 9(b) renders the third proposed amended complaint futile.
The Court notes that PMCC and the Toussie defendants have technically filed cross-motions to dismiss the third proposed amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). However, as this third proposed amended complaint has not yet been accepted, the Court initially interprets these separate motions as an opposition to Plaintiffs' pending Rule 15(a) motion for leave to amend the complaint. Since the Court ultimately concludes that this Rule 15(a) motion should be granted, the Court also separately considers the motions to dismiss infra
1. Rule 9(b) and RICO Fraud.
The Court extensively discussed Rule 9(b) and the RICO fraud allegations levied against Defendant PMCC in the April 25, 2003, order. To the extent that PMCC seeks reconsideration of that order, this request is untimely under Local Civil Rule 6.3 (stating that a motion for reconsideration must be filed within ten days after docketing of the targeted order). Moreover, the Court has reviewed PMCC's arguments thoroughly. After that review, even assuming arguendo that the reconsideration request is timely — which it is not — PMCC has failed to proffer any persuasive reason why the Court should reconsider its April 25, 2003, order. As such, the Court limits its discussion to the arguments raised for the first time in connection with the instant motion for leave to amend the complaint.
This narrowed focus does not mean that the Court has disregarded PMCC's arguments. As a new underlying proposed complaint has been submitted in connection with the instant motion, all of the presented arguments, to the extent that they reference that proposed complaint, are technically novel. In light of that observation, although no reconsideration has been granted, the Court will address PMCC's arguments against the altered backdrop of the third proposed amended complaint.
PMCC first argues that the third proposed amended complaint fails to provide adequate particularity regarding fraud allegations. See PMCC's Mem. at 6. Specifically, PMCC contends that "[t]he proposed complaint does not assert that all of the loans made by PMCC contained fraudulent statements, and completely fails to particularize which, if any, of the loans allegedly contained fraudulent statements." Id., at 8 (emphasis in original). The Court is not persuaded by PMCC's argument.
As an initial matter, the Court notes that Plaintiffs' exhibit A, which is attached to the third proposed amended complaint, provides a list of the loans for which PMCC acted as an "originator bank." Furthermore, the third amended complaint alleges that it was "PMCC's regular practice to submit loan applications to HUD while aware that the applications contained falsehoods and that the subject properties were over-appraised." See third proposed amended complaint ¶ 68; see also Id. ¶ 72. Therefore, viewing this exhibit and the allegations of the complaint together, PMCC is on notice of the loans that are the subject of Plaintiffs' claims. Still, as indicated by PMCC, Plaintiffs have not indicated the precise nature of the misrepresentations made in connection with each individual loan. Contrary to PMCC's contentions, however, this omission does not render the third proposed amended complaint futile.
As pointed out by Plaintiffs, see Plaintiffs' Reply Mem. at 5, 7, where the "'nature and mechanics of the underlying scheme is sufficiently detailed, it is enough to plead the general content of the misrepresentation. . . .'" Colony at Holbrook, Inc. v. Strata G.C. Inc., 928 F. Supp. 1224, 1232 (E.D.N.Y. 1996) (quoting Center Cadillac. Inc. v. Bank Leumi Trust Co. of New York, 808 F. Supp. 213, 229 (S.D.N.Y. 1992)). Paragraph 41 of the third proposed amended complaint contains a specific and detailed explanation of the underlying scheme. Further detail with regard to the alleged fraudulent scheme is provided in paragraphs 55 through 67. Specific information about the role of PMCC in the alleged fraudulent scheme was discussed in paragraphs 68 through 75 of the third proposed amended complaint. These paragraphs provide adequate particularity with regard to the "general content of the misrepresentation." Moreover, Plaintiffs have indicated that the guilty pleas by PMCC's own officers have formed the basis for this "information and belief' style of pleading. See third amended complaint ¶ 72; Plaintiffs' Reply Mem. at 7. Accordingly, for the purposes of the instant Rule 15(a) motion these allegations are sufficient to establish a RICO scheme. See Colony. 928 F. Supp. at 1232.
Furthermore, Plaintiffs allege that any additional detail as to the precise amount and nature of the fraudulent statements underlying the RICO fraud claims is peculiarly within Defendants' knowledge. As noted in the Court's April 25, 2003, order, '[d]espite the generally rigid requirement that fraud be pleaded with particularity, allegations may be based on information and belief when facts are peculiarly within the opposing party's knowledge." Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990). As indicated supra, Plaintiffs based this contention upon the criminal pleas entered by PMCC's own officers and employees. See third amended complaint ¶ 72; Plaintiffs' Reply Mem. at 7. The Court concludes, despite PMCC's contentions to the contrary, that Plaintiffs' "information and belief allegations" are proper. As such, with regard to PMCC, the allegations of fraud contained in the third proposed amended complaint are sufficient, in light of the other factors noted supra, to provide the required level of particularity under Fed.R.Civ.P. 9(b).
The Toussie Defendants allege similar defects in the particularity of the complaint. Specifically, the Toussie Defendants contend that "[t]here is not a single connection drawn in this [third proposed amended] complaint between an allegedly false statement and any particular plaintiff who suffered harm or relied upon such statement." See Toussie Defendants' Mem. at 12. According to the Toussie Defendants, this purported flaw renders the relevant RICO fraud allegations insufficient. See Id. The Court disagrees.
As with PMCC, the Toussie Defendants' argument fails to account for the specific circumstances of the instant pleading. It is true that Plaintiffs must, pursuant to the requirements of Rule 9(b), "specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." Moore v. Paine Webber, Inc., 189 F.3d 165, 172 (2d Cir. 1999) (quotation omitted). However, in the instant case, Plaintiffs claim that many of the details of the purported scheme are peculiarly within the knowledge of the Defendants. See Wexner, 902 F.2d at 172. As discussed supra, this situation permits pleading upon information and belief. Upon that basis, Plaintiffs have alleged an extensive scheme in which the Toussie Defendants played a prominent role. The Court therefore considers the Toussie Defendants' role in the alleged scheme.
As an initial matter, the Court notes that Plaintiffs have alleged that the Toussie Defendants acted together and were indistinguishable for the purposes of the scheme. See third proposed amended complaint ¶¶ 23-24. As such, the Court is not persuaded by the Toussie Defendants' argument that Plaintiffs are required to identify a specific entity from among the Toussie Defendants for each individual allegation of RICO fraud. See Toussie Defendants' Mem. at 13. Moreover, the Court has reviewed the purported scheme as it relates to the Toussie Defendants. Even forgetting the extensive undisputed criminal activities by the employees, officer and directors of the legal entities embraced by the "Toussie Defendant" rubric, see third proposed amended complaint ¶¶ 62-68, these allegations provide sufficient particularity under Fed.R.Civ.P. 9(a). For example, the third proposed amended complaint alleges that the Toussie Defendants "have made it their regular practice to falsify the prospective buyers' loan applications." See third proposed amended complaint ¶ 59. The third proposed amended complaint also states that the Toussie defendants fraudulently represent the amount of the first-year payments. See third proposed amended complaint ¶¶ 76, 78. Elsewhere, the third proposed amended complaint extensively references the false and misleading advertisements that were issued on behalf of the Toussie Defendants. See third proposed amended complaint ¶¶ 79-85. This scheme, given the allegation that the specific content of the individual fraudulent acts are alleged to be peculiarly within the knowledge of the Defendants, provides sufficient particularity as to the Toussie Defendants. See Colony, 928 F. Supp. at 1232.
2. Rule 9(b) and RICO Conspiracy.
PMCC contends that "this Court can and should reconsider the sufficiency of [Plaintiffs'] RICO conspiracy claim." PMCC Mem. at 10-11. The Court disagrees. This reconsideration request is untimely under Local Civil Rule 6.3. Moreover, even assuming arguendo that the instant opposition constitutes a timely reconsideration request, PMCC has failed to proffer a persuasive legal argument why the Court should reconsider its earlier decision on this subject. As such, the Court declines to grant reconsideration with regard to Plaintiffs' RICO conspiracy claim. 3. Rule 12(b)(6) and the Non-RICO Claims.
Both PMCC and the Toussie Defendants contend that the third proposed amended complaint fails to properly allege the other, non-RICO, claims.See PMCC's Mem. at 12; Toussie Defendants' Mem. at 8. The Court disagrees. The other claims alleged in the third proposed amended complaint are not held to the strict pleading standards enunciated by Rule 9(b). Rather, "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Since those exceptions are not triggered in the context of Plaintiffs' non-RICO claims, Rule 8(a) applies to those claims.
The third proposed amended complaint will survive a motion to dismiss on Rule 8(a) grounds if it gives "fair notice of . . . [P]laintiff[s'] claim . . . and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation omitted). The Court has reviewed these claims and concludes that the liberal Rule 8(a) pleading requirements have been met. For each non-RICO claim, PMCC and the Toussie defendants are provided with adequate notice of the nature and grounds for that specific claim. As such, the Court cannot conclude that the third proposed amended complaint is futile due to violation of Rule 8(a).
B. The Defendants' Motions to Dismiss
1. Rule 9(b) and Rule 12(b)(6).
As discussed supra at footnote 2, Defendants' cross-motions to dismiss are untimely. However, as the Rule 9(b) and Rule 12(b)(6) portions of those motions dovetailed well with the futility grounds relevant to a motion for leave to amend the complaint, the Court initially considered those motions as oppositions to the pending Rule 15(a) motion. Now, since the Court ultimately decides to accept the third proposed amended complaint, it is appropriate to address the independent merits of Defendants' cross-motions. After thorough review, and for substantially the same reasons discussed supra, the Court declines to dismiss the newly amended complaint for the grounds of insufficient particularity and failure to state a claim as they are advanced by PMCC and the Toussie Defendants.
2. Misjoinder Under Rule 20(a).
The Toussie Defendants also argue that they have been improperly joined under Fed.R.Civ.P. 20(a). See Toussie Defendants' Mem. at 14. In support of this allegation, the Toussie Defendants contend that "[t]he broad nature of the alleged conspiracy and the number of purported 'class members[,'] combined with the lack of particular factual allegations, not only renders a response by the Toussie [Defendants] impossible, but it also underscores a flagrant violation of Rule 20(a)." Id. at 16. The Court has previously addressed the Toussie Defendants' arguments regarding particularity supra and found them unpersuasive. With regard to the new arguments relating to improper joinder of Plaintiffs, the Court finds the Toussie Defendants' arguments similarly unavailing.
Rule 20(a) permits the joinder of plaintiffs:
if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.
Courts have interpreted the phrase "same transaction or occurrence" in Rule 20(a) to include all "logically related claims by or against different parties to be tried in a single proceeding." Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1421 (S.D.N.Y. 1989) (internal quotation omitted). This formulation is consistent with the fact that Rule 20(a) is designed to encourage joinder so long as such joinder would be "consistent with fairness to the parties." Wyant v. National Railroad Passenger Corp., 881 F. Supp. 919, 921 (S.D.N.Y. 1995) (internal quotation omitted). The Court therefore turns to whether the joinder of Plaintiffs in the third proposed amended complaint is consistent with fairness to all parties.
Contrary to the Toussie Defendants' contentions, see Toussie Defendants' Mem. at 15-16, the Court has not previously addressed the discrete issue of plaintiff joinder. Instead, the Court's September 6, 2002, order focused upon the propriety of joining the various defendants that were named in the first proposed amended complaint. With that said, many of difficulties noted by the Court in that September 6, 2002, order spring from the varied and differentiable experiences of the named Plaintiffs. See September 6, 2002, order at 45.
Many of those concerns may persist in the third proposed amended complaint. However, this third proposed amended complaint, for better or for worse, does not contain the level of detail alleged in the 573 page first proposed amended complaint. Therefore, on the face of this specific proposed pleading, the Court cannot ascertain whether the experiences of the Plaintiffs are so disparate that the requirements of Rule 20(a) are not satisfied. To the contrary, compared to the first proposed amended complaint, the instant third proposed amended complaint contains a robust description of the factual circumstances that are common to all Plaintiffs. See, e.g., third proposed amended complaint ¶¶ 41, 48, 76, 162. The common elements create a logical relation between the Plaintiffs. Thus, for the limited purpose of the instant Rule 15(a) motion for leave to amend the complaint, these allegations sufficiently establish the quantum of relatedness contemplated by Rule 20(a). As such, the Court does not conclude that the joinder of Plaintiffs in the proposed third amended complaint necessitates dismissal.
3. Nonjoinder Under Rule 19.
The Toussie Defendants also contend that the third proposed amended complaint should be dismissed for failure to join the municipal inspectors of Plaintiffs' homes. See Toussie Defendants' Mem. at 17. This failure, according to the Toussie Defendants, violates the requirements of Fed.R.Civ.P. 19. This argument fails to persuade the Court.
"Fed.R.Civ.P. 19 sets forth a two-step test for determining whether the court must dismiss an action for failure to join an indispensable party."Viacom Int'l, Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir. 2000). The first step requires the Court to determine if the party sought to be joined "belongs in the suit, i.e., whether the party qualifies as a 'necessary' party under Rule 19(a)." Id. In relevant part, Rule 19(a) states that a party is necessary if "in the person's absence complete relief cannot be accorded among those already parties. . . ." Fed.R.Civ.P. 19(a)(1). If the Court makes the threshold determination that a party is necessary under Rule 19(a), and joinder is not feasible, the court must proceed to the second step and determine whether the party is "indispensable" under Rule 19(b). See Viacom, 212 F.3d at 725. However, as the Court concludes that the first step in this analysis — necessity of joinder — has not been satisfied, the Court does not reach the second step.
In conclusory manner the Toussie Defendants state that "it is apparent that full relief to plaintiffs — under their conspiracy theory — could not be achieved without the interpleading of municipal defendants who certified that the constructed homes met minimal standards." Toussie Defendants' Mem. at 17. The Toussie Defendants also advance an argument that "absent those entities and individuals from the various building departments of the various locales, the scheme could not possibly have transpired as alleged in the complaint." Id. Without reaching the propriety of this interpretation at the pleading stage of litigation, it is unclear how these proposed municipal defendants are necessary to afford complete relief.
Plaintiffs primarily seek monetary relief for the injuries allegedly rising from this scheme. The Toussie Defendants have provided the Court with no persuasive argument why this monetary relief cannot be fully satisfied by the current defendants. To the extent that other collateral claims may also be cognizable against certain unnamed municipal officials, this potential liability does not provide an adequate ground for dismissal of the action. Rather than being bound by the limitations enunciated in Rule 19, "[a]s potential joint tortfeasors with" the named Defendants, the unnamed municipal officials are "merely permissive parties" governed by Rule 20(a). Temple v. Synthes Corp., 498 U.S. 5, 7 (1990) (per curiam); see also Philip Morris Capital Corp. v. Century Power Corp., 788 F. Supp. 794, 796 (S.D.N.Y. 1992). Thus, dismissal is not appropriate under that Rule 19 theory.
To the extent that injunctive relief is sought, this relief would not implicate the proposed municipal defendants. The theory underlying the injunctive relief is unclear at this stage in the litigation. However, on the face of the complaint, Plaintiffs predicate their prayer for injunctive relief upon the breach of express warranty claim. See third proposed amended complaint ¶ 165. This cause of action would not factually implicate the proposed municipal defendants. Moreover, the specific form of the injunctive relief, reformation of the underlying mortgages, see id. at page 42, has nothing to do with the proposed municipal defendants.
After review of the third proposed amended complaint the Court cannot find, and the Toussie Defendants have not provided, any persuasive reason why complete relief cannot be effected without joinder of these unnamed municipal officials. Accordingly, the Court cannot see how the failure to join certain municipal officials, against whom causes of action may possibly be cognizable, mandates the dismissal of this action pursuant to Rule 19.
4. Class Certification.
PMCC argues that the Court should reconsider its April 25, 2003, order to the extent that it declined to consider whether class certification would be futile in the instant case. Even assuming that this request is timely, which it was not, see Local Civil Rule 6.3, the Court concludes that PMCC has failed to proffer a persuasive argument why the Court should consider the merits of a motion that has not yet been made by Plaintiffs. As such, PMCC's class certification argument fails to persuade the Court that amendment of the complaint in the manner contemplated by the third proposed amended complaint would be futile. See In re Blech Sec. Litig., 928 F. Supp. 1279, 1296 (S.D.N.Y. 1996) (holding that any questions regarding the sufficiency of class allegations are "more appropriately considered in the context of a motion for class certification. . . .").
III CONCLUSIONS
In light of the foregoing discussion, Plaintiffs' Rule 15(a) motion for leave to amend the complaint is GRANTED. The submitted third proposed amended complaint is hereby accepted by the Court. This amended complaint alters the list of Defendants. Pursuant to this amendment, the Clerk of Court is hereby ordered to note Plaintiffs' implicit voluntary dismissal as to the following specific Defendants, all of whom are omitted from the new complaint: Chase Manhattan Mortgage Corporation; Fleet Mortgage Corporation; Washington Mutual Home Loans; Mutual of North America; Star Bank, N.A.; Firstar Corporation; Mortgage Catalog Store, Inc.; HSBC Bank USA; First West Mortgage Bankers, Ltd.; Community Homer Mortgage Corporation and Flagstar Bancorp, Inc. Due to this voluntary dismissal, Defendant Chase Manhattan Corporation's pending motion to dismiss the complaint, which was administratively closed on September 3, 2003, is DENIED as academic.
The Clerk of Court is similarly directed to note on the docket that the following specific Defendants have been added to this cause of action: East Coast Land Developers Corporation, Fiend Corporation, Housing Corporation of America, Toussie Family Enterprises, Toussie Group Ltd., Your Long Island Home Corp. and Your Staten Island Home Corp. If not already accomplished, service of this newly amended complaint should be effect upon these new Defendants in accordance with Fed.R.Civ.P. 4 and 5.
Finally, the Clerk of Court is directed to note the joinder of the following named Plaintiffs: Leiticia Quintanilla, Cheryl Adams, Narene Stoute, Arlington Agard, Jennifer Agard, Lorenzo Alexander, Stephanie Alexander, Victor Alicea, Giselle Alicea, Robert Alleyne, Egbert Bennett, Wilder Bennett, Alfred Boozer, Mary Boozer, Albert Burton, Sharon Miller, Kathleen Crossen, Virginia Cuff, Ricardo Flores, Angela Grant, Walter Hurtado, Noreen Hurtado, Alvin Montero, Dawn Morgan, James Thomas, and Theresa Thomas.
Also, for the reasons discussed supra, the Court DENIES PMCC's and the Toussie Defendants' cross-motions to dismiss this newly filed complaint. This denial shall not be construed to prevent any later motions to dismiss.
SO ORDERED.
Central Islip, New York