Carl v. Edwards et al

Motion to Dismiss for Failure to State a Claim

E.D.N.Y.August 18, 2016

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ================================== BERNARD CARL, : Civil Action NO.. 2:16-cv-03863-ADS-AKT : : Plaintiff, : : vs. : : RICHARD EDWARDS, JOHN HAWKINS, : SPECIALIST CARS OF MALTON : MOTION TO DISMISS LIMITED, GRAEME SCHOLES, LEFT : HAND DRIVE LTD., PAUL SWEENEY, : PHS CONSULTANTS, ANDREW : HOWARTH, CHRISTOPHER WILLIAMS, : TREVOR SMITH, FOOS CHINA TRADING, : VIKASH LIMBANI, LANDMARK CAR CO., : JEFFREY PATTINSON, THOMAS HAMANN, : and JOHN DOES 1-5, : : Defendants. : =================================== Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(2), Thomas Hamann, hereby moves the Court to dismiss this case for Plaintiff’s failure to state a legally sufficient cause of action against him. In addition, the defendant Hamann moves to dismiss this case for lack of personal jurisdiction. The defendant submits the attached memorandum of law stating the reasons why plaintiff's complaint against him should be dismissed. Dated: August 18, 2016 GEORGE W. KRAMER Attorney for Defendant, Thomas Hamann BY:/s/ George W. Kramer George W. Kramer Federal Bar No. ct 07982 30 Clemens Court Rocky Hill, CT 06067 Telephone (860) 529-5105 Facsimile: (860) 529-5104 E-mail: gkramerlaw@gmail.com   Case 2:16-cv-03863-ADS-AKT Document 20 Filed 08/18/16 Page 1 of 2 PageID #: 294 CERTIFICATION I hereby certify that on the 18th day of August 2016, the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system, and notice of this filing will be sent to all attorneys of record by operation of the Court’s electronic filing system. /s/ George W. Kramer George W. Kramer Case 2:16-cv-03863-ADS-AKT Document 20 Filed 08/18/16 Page 2 of 2 PageID #: 295 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ================================== BERNARD CARL, : Civil Action NO.. 2:16-cv-03863-ADS-AKT : : Plaintiff, : : vs. : : RICHARD EDWARDS, JOHN HAWKINS, : MEMORANDUM IN SPECIALIST CARS OF MALTON : SUPPORT OF MOTION LIMITED, GRAEME SCHOLES, LEFT : TO DISMISS HAND DRIVE LTD., PAUL SWEENEY, : PHS CONSULTANTS, ANDREW : HOWARTH, CHRISTOPHER WILLIAMS, : TREVOR SMITH, FOOS CHINA TRADING, : VIKASH LIMBANI, LANDMARK CAR CO., : JEFFREY PATTINSON, THOMAS HAMANN, : and JOHN DOES 1-5, : : Defendants. : =================================== A. BACKGROUND The plaintiff has brought a seven count complaint against the above named individuals, for violation of racketeer influenced and corrupt organizations (RICO) ACT, 18 U.SC. §§ 1962(C) and 1962(d), conspiracy to violate Rico, violation of 18 U.S.C. § 1962(d),civil conspiracy, fraudulent misrepresentation, fraud, trespass to chattels, and unjust enrichment. The allegations center around the theft by Richard Edwards of millions of dollars worth of vehicles from the plaintiff. The defendant Hamann is and for over forty years has been in the classic car business and owns a company in Connecticut known as of 1 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 1 of 11 PageID #: 296 Hamann Classic Cars. Hamann had nothing to do with the thefts, and the complaint is devoid of a single factual allegation against Hamann in connection with the thefts. The allegations against Hamann are purely conclusory. The only factual allegation against Hamann is that he allegedly marketed a Porsche belonging to the plaintiff after being advised it was stolen and belonged to plaintiff. This sole factual allegation is insufficient to maintain any of plaintiff’s legal theories against Hamann. Hamann never marketed a Porsche Carrera RS 2.7 Lightweight belonging to the plaintiff, but did market a Porsche Carrera RS 2.7, which belonged to an Italian citizen introduced to Hamann through a mutual friend, and which was part of his estate sale. There have been a total production of 1,560 Porsche Carrera RS2.7 Touring and Lightweight built. Plaintiff at best made a good faith mistake, but more probably, for the reasons set forth below, is acting willfully and maliciously against Hamann. On September 1, 2015, Hamann and his wife Maria, made a direct loan to Carl in the amount of $150,000.00, and Carl has refused to repay said loan. Said funds were wired directly into Carl’s account with Ferrari Financial Services and were to be repaid within a week. Hamann and his wife Maria have initiated a lawsuit in Connecticut against Carl for recovery of said loan and for treble damages. It is more likely that plaintiff has included Hamann in this action to gain some kind of leverage in the Connecticut lawsuit. Carl’s allegations that Hamann advertised said Porsche, or any other of his cars are at best based solely on Carl’s unsupported and self serving beliefs. Hamann has never advertised a car owned by Carl, but he has been in the classic car business for a very long time and does advertise classic cars on his website. That does not mean any of those cars on the website belonged to Carl, including said Porsche. of 2 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 2 of 11 PageID #: 297 The allegations against the Hamann are as follows: 167. Defendant, HAMANN, has marketed for sale certain of the Missing Cars for the benefit of Defendant, EDWARDS, including the “Porsche 959,” even after being warned that these cars had been stolen from Plaintiff. 384. Defendant, HAMANN, continued to advertise the “Porsche Lightweight” for sale at the behest and for the benefit of Defendant, EDWARDS, despite having been warned that a Court had ordered the return of the “Porsche Lightweight” to Plaintiff. See “Exhibit S.” 385. Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, WILLIAMS, HOWARTH, LIMBANI, HAMANN, SMITH and FOOS, conspired to commit overt acts to defraud Plaintiff out of the value of the “Porsche Lightweight” through wire fraud, mail fraud and additional criminal/illegal activities. 386. Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, WILLIAMS, HOWARTH, LIMBANI, HAMANN, SMITH and FOOS, committed overt acts to defraud Plaintiff out of the value of the “Porsche Lightweight” through wire fraud, mail fraud and additional criminal/illegal activities. 487. Defendant, HAMANN, has continued to advertise the “Porsche 959" for sale at the behest and for the benefit of Defendant, EDWARDS, despite having been warned that a Court had ordered the return of the “Porsche 959” to Plaintiff. See “Exhibit S.” 488. Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, HOWARTH, LIMBANI, HAMANN, SMITH and FOOS, conspired to commit overt acts to defraud Plaintiff out of 3 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 3 of 11 PageID #: 298 of the value of the “Porsche 959” through wire fraud, mail fraud and additional criminal/illegal activities. 489. Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, HOWARTH, LIMBANI, HAMANN, SMITH and FOOS, committed overt acts to defraud Plaintiff out of the value of the “Porsche 959” through wire fraud, mail fraud and additional criminal/ illegal activities. 643. The RICO Enterprise is an associated-in-fact enterprise, consisting of, at a minimum, Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, SCHOLES, LEFT HAND, SWEENEY, PHS, HOWARTH, WILLIAMS, LIMBANI, HAMANN, SMITH, FOOS, PATTINSON, LANDMARK CAR, DOE 1, DOE 2 and UNKNOWN CO-CONSPIRATORS (the “Enterprise”). 647. At all relevant times, on information and belief, Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, SCHOLES, LEFT HAND, SWEENEY, PHS, HOWARTH, WILLIAMS, LIMBANI, PATTINSON, LANDMARK CAR, HAMANN, SMITH, FOOS, DOE 1, DOE 2 and the UNKNOWN CO-CONSPIRATORS, were aware of each other’s conduct in furtherance of the scheme, and were knowing and willing participants in that conduct. 653. The racketeering activities of Defendants, EDWARDS, HAWKINS, SPECIALIST CARS, SCHOLES, LEFT HAND, SWEENEY, PHS, HOWARTH, LIMBANI, WILLIAMS, PATTINSON, LANDMARK CAR, HAMANN, SMITH, FOOS, DOE 1, DOE 2 and their UNKNOWN CO-CONSPIRATORS, amounted to a common course of conduct, with similar pattern and purpose. Each separate criminal act and/or use of the U.S. mails of 4 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 4 of 11 PageID #: 299 and/or interstate wire facilities employed by the co-conspirators was related, had similar intended purposes, involved similar participants and methods of execution, and had the same results affecting the same victim/victims, including Plaintiff. “ B. LEGAL ANALYSIS In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id. When presented [5] with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F. of 5 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 5 of 11 PageID #: 300 3d 147, 153 (2d Cir. 2002); see also Kerik v. Tacopina, 64 F. Supp. 3d 542, 549-50 (S.D.N.Y. 2014). The plaintiff has brought a seven count complaint against the above named individuals, for violation of racketeer influenced and corrupt organizations (RICO) ACT, 18 U.SC. §§ 1962(C) and 1962(d), conspiracy to violate Rico, violation of 18 U.S.C. § 1962(d),civil conspiracy, fraudulent misrepresentation, fraud, trespass to chattels, and unjust enrichment. The plaintiff’s claims must be dismissed under Rule 12(b)(6) because they fail to state a claim. The RICO statute provides in relevant part: "It shall be unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity . . . ." 18 U.S.C. § 1962(c). To state a claim under § 1962(c), a plaintiff must allege "(1) that the defendant (2) through the commission of two or more acts (3) constituting a 'pattern' (4) of 'racketeering activity' (5) directly or indirectly . . . participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce." Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983); see R.C.M. Executive Gallery Corp. v. Rols Capital Co., 901 F. Supp. 630, 639 (S.D.N.Y. 1995); see also Fisher v. Offerman & Co., No. 95cv2566 (JGK), 1996 U.S. Dist. LEXIS 14560, 1996 WL 563141, at *2 (S.D.N.Y. Oct. 2, 1996). To establish a pattern of racketeering activity, a "plaintiff must plead at least two predicate acts, and must show that the predicate acts are related and that they amount to, or pose a threat of, continuing criminal activity." GICC Capital Corp. v. Tech. Fin. Grp., Inc., 67 F.3d 463, 465 (2d Cir. 1995) (internal citation omitted). In this case that the plaintiff has failed to allege sufficient predicate acts. The factual allegation as to Hamann “continued to advertise the “Porsche 959" on behalf of Edwards is insufficient to sustain any of plaintiff’s legal theories. Even that sole allegation is false and based on plaintiff’s self serving belief. There are no other factual allegations against Hamann, other than purely conclusory allegations. There are no factual allegations that Hamann was involved in a scheme scheme or artifice to defraud the plaintiff of money or property. of 6 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 6 of 11 PageID #: 301 In addition, plaintiff’s sole factual allegation against Hamann does not establish a direct causal link between Hamann and the other defendants' predicate acts. Under RICO, "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court . . . ." 18 U.S.C. § 1964(c). Therefore, "[t]o satisfy RICO’s standing requirements, a plaintiff must demonstrate, '(1) a violation of section 1962; (2) injury to business or property; and (3) causation of the injury by the violation.'" Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135 (2d Cir. 2003) (quoting Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir. 1990)); see also Sergeants Benevolent Ass'n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 806 F.3d 71, 86 (2d Cir. 2015). The plaintiff bringing a civil RICO claim must demonstrate that the plaintiff suffered an injury proximately caused by the defendant's violation of § 1962. See 18 U.S.C. § 1964(c). "[W]here a RICO violation is predicated on acts sounding in fraud, a plaintiff must allege that the defendant's acts were not only the 'but-for' cause of plaintiff's injury, but the proximate cause as well, necessitating 'some direct relation between the injury asserted and the injurious conduct alleged'; '[a] link that is too remote, purely contingent, or indirect is insufficient.'" Petrosurance, Inc. v. Nat'l Ass'n of Ins. Comm'rs, 888 F. Supp. 2d 491, 503-04 (S.D.N.Y. 2012) (quoting and citing Hemi Grp., LLC v. City of N.Y., 559 U.S. 1, 9, 130 S. Ct. 983, 175 L. Ed. 2d 943 (2010)), aff'd, 514 F. App'x 51 (2d Cir. 2013); see also Kerik, 64 F. Supp. 3d at 556. In this case the complaint fails to satisfy these requirements. It does not contain sufficient allegations that Hamann's alleged act caused personal harm to the plaintiff. of 7 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 7 of 11 PageID #: 302 Accordingly, the plaintiff has failed to satisfy his burden to establish Hamann’s alleged advertising of said Porsche was a proximate cause of his injuries. The complaint is devoid of any factual allegation of how or when, Hamann agreed to engage in the predicate acts or how he allegedly joined the conspiracy. To establish a RICO conspiracy claim pursuant to § 1962(d) a plaintiff must establish "as to each alleged co-conspirator: (1) an agreement to join the conspiracy; (2) the acts of each co-conspirator in furtherance of the conspiracy; (3) that the co-conspirator knowingly participated in the same." Nasik Breeding & Research Farm Ltd. v. Merck & Co., 165 F. Supp. 2d 514, 541 (S.D.N.Y. 2001) (internal citation and quotation marks omitted). The Court of Appeals for the Second Circuit has explained that, in a civil RICO conspiracy case, the plaintiff must establish that each defendant "knew about and agreed to facilitate the scheme." Baisch v. Gallina, 346 F.3d 366, 377 (2d Cir. 2003) (internal quotation marks and citation omitted); see also Valenti v. Penn Mut. Life Ins. Co., 850 F. Supp. 2d 445, 450-51 (S.D.N.Y. 2012), aff'd, 511 F. App'x 57 (2d Cir. 2013). The Complaint contains absolutely no details as to Hamann’s participation in the broader alleged criminal conspiracy and his respective role in the RICO enterprise. New York’s long arm statute states as follows: “§ 302. Personal jurisdiction by acts of non-domiciliaries (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he of 8 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 8 of 11 PageID #: 303 (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state.” As recited in Hamann’s affidavit, none of the long arm statutes provisions apply. Personal jurisdiction over Hamann is also inappropriate under a due process analysis. International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) established a minimum contacts test which Carl has failed to allege in this case. In International Shoe, the Supreme Court held that due process required that the defendant have "certain minimum contacts" with the forum in order for a state to assert jurisdiction, and that such jurisdiction may not offend "traditional notions of fair play and substantial justice.” Since International Shoe, the Supreme Court has set forth several well known criteria to be used in analyzing whether jurisdiction over a nonresident is proper. These criteria require (1) that the defendant has purposefully availed himself or herself of the benefits of the state so as to reasonably foresee being haled into court in that state; (2) that the forum state has sufficient interest in the dispute; and (3) that haling the defendant into court does not offend notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz 471 US 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) of 9 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 9 of 11 PageID #: 304 C. CONCLUSION The plaintiff’s complaint contains insufficient factual allegations to support the federal law claims as they pertain to Hamann. The allegations of the complaint as to Hamann do not allege sufficient facts to state a claim to relief that is plausible on its face. The Complaint summarily states without any supporting factual detail that Hamann “conspired to commit overt acts to defraud Plaintiff out of the value of the Porsche Lightweight through wire fraud, mail fraud and additional criminal/illegal activities.” The Complaint's state law allegations against Hamann are equally conclusory and lack a factual basis can survive a motion to dismiss. The plaintiff’s pleading as to Hamann contains conclusions and a formulaic recitation of the elements of a cause of action. Based on the foregoing analysis, the motion to dismiss the Complaint brought by Hamann should be granted. Dated: August 18, 2016 GEORGE W. KRAMER Attorney for Defendant, Thomas Hamann BY:/s/ George W. Kramer George W. Kramer Federal Bar No. ct 07982 30 Clemens Court Rocky Hill, CT 06067 Telephone (860) 529-5105 Facsimile: (860) 529-5104 E-mail: gkramerlaw@gmail.com   of 10 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 10 of 11 PageID #: 305 CERTIFICATION I hereby certify that on the 18th day of August 2016, the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system, and notice of this filing will be sent to all attorneys of record by operation of the Court’s electronic filing system. /s/ George W. Kramer George W. Kramer of 11 11 Case 2:16-cv-03863-ADS-AKT Document 20-1 Filed 08/18/16 Page 11 of 11 PageID #: 306 Case 2:16-cv-03863-ADS-AKT Document 20-2 Filed 08/18/16 Page 1 of 4 PageID #: 307 Case 2:16-cv-03863-ADS-AKT Document 20-2 Filed 08/18/16 Page 2 of 4 PageID #: 308 Case 2:16-cv-03863-ADS-AKT Document 20-2 Filed 08/18/16 Page 3 of 4 PageID #: 309 Case 2:16-cv-03863-ADS-AKT Document 20-2 Filed 08/18/16 Page 4 of 4 PageID #: 310