Elnenaey v. JP Morgan Chase Bank, N.A.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AHMED ELNENAEY,

Plaintiff, MEMORANDUM AND ORDER

v. 20-CV-5430 (RPK) (LB)

JP MORGAN CHASE BANK, N.A., YORAM

NACHIMOVSKY, PLLC, YORAM

NACHIMOVSKY ESQ., 2939 AVENUE Y

TENANTS CORPORATION, ROSICKI,

ROSICKI & ASSOCIATES, P.C.,

PARAMOUNT LAND, INC., and JAMES L.

DIMON a/k/a JAMIE DIMON,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Pro se plaintiff Ahmed Elnenaey brings claims for violating civil RICO and conspiracy to

violate RICO against JPMorgan Chase Bank, N.A., Jamie Dimon (“Chase Defendants”), Yoram

Nachimovsky, PLLC, 2939 Avenue Y Tenants Corporation, Yoram Nachimovsky, Esq.

(“Nachimovsky Defendants”), Rosicki, Rosicki & Associates, P.C., Paramount Land, Inc.,

Cynthia G. Rosicki, Esq., and Thomas Peter Rosicki, Esq. (“RRA Defendants”). Defendants move

to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim. For the

reasons stated below, defendants’ motions to dismiss for failure to state a claim are granted, and

the Court declines to exercise supplemental jurisdiction over plaintiff’s state-law claims.

BACKGROUND

The following factual allegations are taken from plaintiff’s complaint, documents integral

to plaintiff’s complaint, and documents amenable to judicial notice.

A. Factual Background

In 2005, plaintiff bought the title to stock in a cooperative apartment unit (the “Unit”). See

Compl. ¶ 65 (Dkt. #1). Defendant Nachimovsky represented the co-op as attorney and transfer

agent during the closing. Id. ¶ 66.

The next year, plaintiff took out a $100,000 home equity line of credit (“HELOC”) from

Chase to renovate the unit. Id. ¶ 70. He refinanced his Chase HELOC with Washington Mutual

(“WaMu”) on October 19, 2007. Id. ¶¶ 43, 72. Under the terms of plaintiff’s agreement with

WaMu, the loan was converted into a $168,000 fixed-rate loan. Id. ¶¶ 45, 48.

WaMu later sold its interest in plaintiff’s loan to Chase. Id. ¶ 73. Chase then allegedly

made various changes to the loan arrangement, including closing the existing loan, establishing a

new loan (the “4294 Fixed Loan”), and attempting to collect on the new loan in a manner that

plaintiff challenges as unlawful. In particular, plaintiff alleges that Chase charged him an usurious

interest rate and failed to extend credit to which he was entitled. Id. ¶¶ 51, 53, 54, 56-57. That

behavior began on January 1, 2009 and continued until April 2011, when plaintiff defaulted on his

loan. Id. ¶¶ 56, 121, 123.

Plaintiff also alleges irregularities in the procedures that defendants used in connection

with plaintiff’s default and the sale of the Unit. In the months immediately after plaintiff’s default,

Chase sent plaintiff letters with information on how to remedy his delinquency. See id. ¶¶ 84-85.

These letters referred to plaintiff’s account as “Account: 000000010726568” (the “6568

Account”). Ibid. According to plaintiff, Chase created the 6568 Account to disguise the fact that

it was seeking to collect an unlawful debt. Id. ¶ 128. Plaintiff further claims that Chase’s creation

of the 6568 Account amounts to money laundering or honest-services fraud. Id. ¶¶ 126-28, 134-

36.

Plaintiff replied to these notices with a letter stating he did not recognize the account and

asking to have it closed. Id. ¶¶ 84-86. In response, Chase demanded payment and threatened to

foreclose on the Unit. Id. ¶ 87. Chase then hired RRA as a third-party debt collector. Id. ¶ 88.

RRA sent plaintiff a series of letters about the 6568 Account to collect the debt. Id. at ¶¶ 88-89.

Plaintiff sent RRA a reply disputing the existence of the debt, requesting verification of the 6568

Account, and informing RRA that there was no such loan. Id. ¶ 91. RRA then sent plaintiff a

letter stating that his security interest in the stock and lease of the Unit would be put up for auction

on September 20, 2012. Id. ¶ 89.

Plaintiff alleges that the auction resulted in “Chase liquidat[ing] invisible collateral to a

non-existent loan.” Id. ¶ 93. He further states that he lost title to his stock in the Unit on September

20, 2012. Id. ¶¶ 92-93.

On July 25, 2016, Nachimovsky bought the Unit from Chase for $50,000. Id. ¶¶ 79, 81,

103. Plaintiff alleges that in making this transaction, Chase and Nachimovsky dealt in property

derived from specified unlawful activities for purposes of the RICO statute. Id. ¶¶ 129-32.

At the time of closing, plaintiff still lived in the Unit. Id. ¶¶ 79, 81. On September 2, 2016,

Nachimovsky brought eviction proceedings in Housing Court to obtain possession of the unit. Id.

at Ex. 3 (Dkt. #1-4).

Plaintiff then filed suit in New York Supreme Court against Nachimovsky, alleging,

amongst other things, fraud. Id. at Ex. 20 at 4, 8 (Dkt. #1-21). In 2018, the court directed plaintiff

to pay Nachimovsky monthly for his occupancy. See Chase Mot. to Dismiss, Ex. I (Dkt. #17-11).

Later, the court granted Nachimovsky’s motion to have plaintiff removed from the Unit. Id. at

Exs. M, P (Dkt. ##17-15, 17-18). As of the start of this litigation, plaintiff had not yet been

removed from the Unit. See id. at Ex. Q (Dkt. #17-19).

B. Procedural History

On November 3, 2020, plaintiff filed suit against the defendants in federal court. Plaintiff

alleges that defendants are liable to him for violating civil RICO and conspiracy to commit civil

RICO. He seeks damages, a declaratory judgment, and injunctive relief. See Compl. ¶¶ 139, 153-

61.

The defendants have filed motions to dismiss for lack of subject-matter jurisdiction and

failure to state a claim. See Chase Mot. to Dismiss (Dkt. #17); Nachimovsky Mot. to Dismiss

(Dkt. #24); RRA Mot. to Dismiss (Dkt. #26). Plaintiff filed a motion to strike evidence submitted

by RRA from the record. Pl.’s Letter Mot. to Strike (Dkt. #32).

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) directs a court to dismiss a complaint that “fail[s]

to state a claim upon which relief can be granted.” To survive a motion to dismiss, a complaint

must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The facial “plausibility standard is not akin to a probability requirement,” but it requires

a plaintiff to allege sufficient facts to allow “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ibid. (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556-57 (2007)) (internal quotation marks omitted). “A well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof [of the facts alleged] is improbable, and that a

recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks

omitted).

At the motion-to-dismiss stage, a court may consider only (i) the complaint itself,

(ii) documents either attached to the complaint or incorporated in it by reference, (iii) documents

the plaintiff relied on and knew of when bringing suit, and (iv) matters in the public record that

are subject to judicial notice. See, e.g., ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98

(2d Cir. 2007); Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004); Leonard F. v. Israel Disc. Bank of

New York, 199 F.3d 99, 107 (2d Cir. 1999). When reviewing the complaint on a motion to dismiss,

the court must accept all facts alleged in a complaint as true. Iqbal, 556 U.S. at 678. The court,

however, is not obligated to adopt “mere conclusory statements” or “threadbare recitals of the

elements of a cause of action” that are not “supported by factual allegations.” Id. at 678-79.

The complaint of a pro se plaintiff must be “liberally construed, and . . . however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations

omitted). Pro-se status, however, does not “exempt a party from compliance with relevant rules

of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d

Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)) (internal quotation marks

omitted).

DISCUSSION

Although the Court has subject-matter jurisdiction to consider plaintiff’s complaint, the

statute of limitations bars his federal claims. The Court declines to exercise supplemental

jurisdiction over any of plaintiff’s state-law claims.

I. The Court has Subject-Matter Jurisdiction Over Plaintiff’s Claims.

This Court has subject-matter jurisdiction over plaintiff’s complaint.

a. Standing

The RRA Defendants’ argument that plaintiff lacks standing to bring his RICO claims is

without merit. See RRA Mem. of L. in Supp. of Mot. to Dismiss 6-7 (Dkt. # 26-1) (“RRA Mem.”).

To demonstrate standing, “a plaintiff must show (i) that he suffered an injury in fact that is

concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the

defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC

v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citation omitted). Here, plaintiff alleges that defendants

unlawfully charged him usurious interest rates and ultimately deprived him of his property interest

in the Unit, among other harms. Compl. ¶¶ 51, 53, 54, 56-57. While the RRA defendants argue

that plaintiff lacks standing to challenge the assignment of the Unit from one party to another, see

RRA Mem. 6-7 (citing Compl. ¶¶ 38-39), plaintiff’s RICO claim does not depend on challenging

the validity of such an assignment.

b. The Rooker-Feldman Doctrine

Defendants err in contending that the Court lacks jurisdiction over plaintiff’s claims under

the Rooker-Feldman doctrine. See Nachimovsky Mem. of L. in Supp. of Mot. to Dismiss 16-18

(Dkt. #24-1) (“Nachimovsky Mem.”); RRA Mem. 7-9; Chase Mem. of L. in Supp. of Mot. to

Dismiss 10-12 (Dkt. #17-1) (“Chase Mem.”). That doctrine establishes “that federal district courts

lack jurisdiction over suits that are, in substance, appeals from state-court judgments.” Sung Cho

v. City of New York, 910 F.3d 639, 644 (2d Cir. 2018) (quoting Hoblock v. Albany Cnty. Bd. of

Elections, 422 F.3d 77, 84 (2d Cir. 2005)) (internal quotation marks omitted). But it is “confined

to . . . cases brought by state-court losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005). In contrast, it does not bar a plaintiff from “present[ing an] independent claim . . . that

denies a legal conclusion that a state court has reached in a case to which he was a party.” Id. at

293 (citation and internal quotation marks omitted).

Accordingly, for a claim to be barred, “four requirements must be met: (1) the federal-court

plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-

court judgment; (3) the plaintiff must invite district court review and rejection of that judgment;

and (4) the state-court judgment must have been rendered before the district court proceedings

commenced.” Sung Cho, 910 F.3d at 645 (citing Hoblock, 422 F.3d at 85). Because Rooker-

Feldman applies only when a plaintiff challenges injuries “caused by the state-court judgment,”

id. at 647 (citation and internal quotation marks omitted), the doctrine lacks any application when

the injury of which the plaintiff complaints preceded the state-court litigation at issue, see

McKithen v. Brown, 481 F.3d 89, 98 (2d Cir. 2007).

Rooker-Feldman does not apply here because plaintiff complains of injuries that were not

caused by a state-court judgment. Plaintiff alleges that Chase’s usurious loan rates and failure to

extend him credit resulted in him defaulting on his loan, Compl. ¶¶ 121-124, 139, and that Chase

then unlawfully sold (and Nachimovsky unlawfully acquired) the Unit, id. ¶¶ 79, 81, 103, 129-32.

Plaintiff further states that he lost title to his stock in the Unit on September 20, 2012. Id. ¶¶ 92-

93. These asserted injuries occurred before any state-court case began. Id. ¶ 93.

Defendants err in suggesting that Rooker-Feldman applies because plaintiff previously

challenged the validity of the Unit’s sale in state court litigation. Nachimovsky Mem. 17-18; RRA

Mem. 8-9; Chase Mem. 12. Rooker-Feldman does not “stop a district court from exercising

subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter

previously litigated in state court.” Saudi Basic Indus. Corp., 544 U.S. at 293. When, as here “a

federal plaintiff presents some independent claim,” even if it is “one that denies a legal conclusion

that a state court has reached in a case to which he was a party, then there is jurisdiction and state

law determines whether the defendant prevails under principles of preclusion.” Ibid. (citation,

alterations, and ellipses omitted).

c. Colorado River Abstention

Abstention under Colorado River Water Conservation District v. United States, 424 U.S.

800 (1976), is not appropriate because plaintiff’s state and federal lawsuits are not parallel. See

Chase Mem. 12-14. Under Colorado River, federal courts may abstain from exercising jurisdiction

“due to the presence of a concurrent state proceeding.” Colorado River, 424 U.S. at 818. Colorado

River abstention is “an extraordinary and narrow exception to the duty . . . to adjudicate a

controversy.” Id. at 813. Such abstention is only appropriate if the state and federal proceedings

are parallel, see Dittmer v. Cnty of Suffolk, 146 F.3d 113, 117-18 (2d Cir. 1998), meaning that the

parties are “substantially the same, litigating substantially the same issues in both actions,” Royal

and Sun Alliance Ins. Co. of Canada v. Century Int’l Arms, Inc., 466 F.3d 88, 94 (2d Cir. 2006)

(citation and internal quotation marks omitted).

Plaintiff’s federal-court action is not parallel to his state lawsuit. Simply put, “the issues

and relief sought” are not the same, E. Fordham DE LLC, 804 F. App’x at 107 (citation omitted),

because plaintiff’s state case simply sought a declaratory judgment concerning title to the Unit,

see Pl.’s Consolidated Mem. of L. in Opp’n to Defs.’ Mots. to Dismiss 23-24, 26 (Dkt. #68) (“Pl.’s

Opp’n”), while plaintiff’s federal case seeks damages under RICO and challenges conduct beyond

the Unit’s sale and transfer, see Compl. ¶¶ 109-138. As several other courts have concluded,

circumstances like these do not present parallel proceedings for purposes of Colorado River. See,

e.g., Simmons v. Reich, No. 19-CV-3316 (EK) (ST), 2020 WL 7024345, at *7 (E.D.N.Y. Nov. 30,

2020), aff’d, No. 20-4114, 2021 WL 5023354 (2d Cir. Oct. 29, 2021); Sterling v. Deutsche Bank

Nat’l Tr. Co. as Tr. for Femit Tr. 2006-FF6, Mortg. Pass Through Certificates, Series 2006-F6,

No. 19-CV-205 (GBD) (KNF), 2019 WL 4686549, at *3 (S.D.N.Y. Sept. 26, 2019).

d. Younger Abstention

Contrary to defendants’ suggestions, abstention under Younger v. Harris, 401 U.S. 37

(1971) is not appropriate. RRA Mem. 9-10. The Supreme Court has explained that under Younger,

federal courts must refrain from exercising jurisdiction over a lawsuit that seeks to enjoin “state

criminal prosecutions, civil enforcement proceedings, and civil proceedings involving certain

orders that are uniquely in furtherance of the state courts’ ability to perform their judicial

functions.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013) (citation and internal

quotation marks omitted). But those “exceptional” cases, ibid. (citation and internal quotation

marks omitted), are the extent of the Younger doctrine: “Younger mandates abstention only when

the plaintiff seeks to enjoin ongoing state proceedings and only in the three instances identified

in Sprint,” Disability Rts. New York v. New York, 916 F.3d 129, 134 (2d Cir. 2019).

Younger abstention is unavailable here. Plaintiff is not seeking to enjoin an ongoing state

proceeding. Instead, plaintiff seeks money damages under RICO, a declaratory judgment related

to his loan agreement with Chase and his ownership of the Unit, and a permanent injunction

preventing Chase from conducting certain future sales. Compl. ¶¶ 139, 156, 161. While the federal

and state lawsuits involve overlapping issues, courts may not abstain under Younger “simply

because a pending state-court proceeding involves the same subject matter” as a federal dispute.

Sprint, 571 U.S. at 73.1

1 I decline to dismiss plaintiff’s lawsuit for want of subject matter jurisdiction on the theory that plaintiff’s claims are

so wholly insubstantial and obviously frivolous. See RRA Mem. 6-7 (citing Gallego v. Northland Grp. Inc., 814 F.3d

123, 126 (2d Cir. 2016)). When a federal claim is “immaterial and made solely for the purpose of obtaining

jurisdiction,” or “wholly insubstantial” or “obviously frivolous,” it will not give rise to federal-question jurisdiction.

Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)). But

II. Plaintiff’s Federal Claims are Time-Barred.

Plaintiff claims that defendants violated the RICO statute, Compl. ¶¶ 109-41 and conspired

to violate the RICO statute, id. ¶¶ 142-53.2 These claims are time-barred, and plaintiff has not

demonstrated an entitlement to equitable tolling.

a. Statute of Limitations

Plaintiff’s claims were not timely filed. Civil RICO and civil RICO conspiracy claims are

subject to a four-year statute of limitations. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 361 (2d

Cir. 2013) (citations omitted) (civil RICO); World Wrestling Entertainment, Inc. v. Jakks Pacific,

Inc., 530 F. Supp. 2d 486, 530 (S.D.N.Y. 2007) (citation omitted) (RICO conspiracy), aff’d, 328

F. App’x 695 (2d Cir. 2009).

These claims are governed by an “injury discovery” rule of accrual. Under that rule, “a

plaintiff’s action accrues against a defendant for a specific injury on the date that plaintiff discovers

or should have discovered that injury.” In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 60

(2d Cir. 1998) (internal quotation marks omitted) (quoting Bankers Tr. v. Rhoades, 859 F.2d 1096,

1103 (2d Cir. 1988)). In other words, “the limitations period does not begin to run until [the

plaintiff has] actual or inquiry notice of the injury.” Ibid. Under the “separate-accrual rule,” if a

the Supreme Court and Second Circuit have instructed that the adverbs “wholly” and “obviously” are “no mere

throwaways,” and that courts must not “collaps[e] the distinction ‘between failing to raise a substantial federal question

for jurisdictional purposes and failing to state a claim for relief on the merits.’” Gallego, 814 F.3d at 126 (quoting

Shapiro v. McManus, 136 S. Ct. 450, 455 (2015)) (internal quotation marks and alteration omitted). Here, plaintiff

may well fail to state a claim, but he has alleged the existence of a RICO enterprise and various RICO predicate acts.

See Compl. ¶¶ 56-57, 122-24. The asserted deficiencies that the RRA defendants raise, see RRA Mem. 6-7, are more

appropriately raised under Federal Rule of Civil Procedure 12(b)(6) than through a motion to dismiss on jurisdictional

grounds.

2 While plaintiff styles his requests for a declaratory judgment and for a permanent injunction as separate counts, these

requests do not amount to separate causes of action. See Chevron Corp. v. Naranjo, 667 F.3d 232, 244-45 (2d Cir.

2012) (“[T]he [Declaratory Judgment Act] is procedural only . . . and does not create an independent cause of action.”)

(citations and internal quotation marks omitted); KM Enterprises, Inc. v. McDonald, No. 11-CV-5098 (ADS) (ETB),

2012 WL 4472010, at *20 (E.D.N.Y. Sept. 25, 2012) (“[A] request for injunctive relief is not a separate cause of

action.”) (citation and internal quotation marks omitted), aff’d, 518 F. App’x 12 (2d Cir. 2013).

plaintiff “[a]t a later date” suffers “a new and independent injury” from a RICO violation, “his

right to sue for damages from that injury accrues at the time he discovered or should have

discovered that injury.” Rhoades, 859 F.2d at 1103. As a result, under the civil RICO statute, “a

plaintiff may sue for any injury he discovers or should have discovered within four years of the

commencement of his suit.” Ibid. To implement these principles, “[t]he first step in the statute of

limitations analysis is to determine when the [plaintiff] sustained the alleged injury for which [he]

seek[s] redress.” In re Merrill Lynch, 154 F.3d at 59 (citation omitted). A court should “then

determine when [the plaintiff] discovered or should have discovered the injury and begin the four-

year statute of limitations period at that point.” Ibid. (citation omitted).

Plaintiff’s claims are untimely under this framework. Plaintiff alleges two groups of

injuries: (1) his loss of business income and property and (2) his loss of title to the Unit. Compl.

¶ 139. Plaintiff lost his business income and property by October 2011, ibid, and lost title to the

Unit by September 20, 2012, id. ¶¶ 92-93, 139. Accordingly, the statute of limitations for all of

his RICO injuries had started running by October 2011 and had expired by October 2016. Because

plaintiff did not file this lawsuit until November 2020, his claims are time-barred.

Plaintiff errs in contending that his RICO claim only accrued in May 2018, when plaintiff

allegedly discovered that Chase closed his WaMu loan and created a new account. Pl.’s Opp’n

29. As explained above the statute of limitations accrues upon discovery of an injury—not when

plaintiff learns the mechanism of an allegedly fraudulent scheme. See Koch v. Christie’s Int’l

PLC, 699 F.3d 141, 149 (2d Cir. 2012); e.g., Williams v. Long Beach Mortg. Co., No. 19-CV-970

(NSR), 2020 WL 4735354, at *8 (S.D.N.Y. Aug. 14, 2020) (holding that a plaintiff’s RICO claim

accrued once she moved to vacate a foreclosure action, even though she did not learn of

defendant’s allegedly fraudulent scheme until eight years later). Given that all potential accrual

dates occurred more than four years before plaintiff filed suit in federal court, plaintiff’s RICO

claims are time-barred in the absence of tolling.

b. Equitable Tolling

Plaintiff’s claims cannot be resurrected through equitable tolling. “Equitable tolling is only

appropriate in rare and exceptional circumstances in which a party is prevented in some

extraordinary way from exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d

74, 80 (2d Cir. 2003) (citations, alterations, and internal quotation marks omitted). The party

seeking such tolling bears the burden of showing “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way.” Watson v. United

States, 865 F. 3d 123, 132 (2d Cir. 2017) (quoting Mottahedeh v. United States, 794 F.3d 347, 352

(2d Cir. 2015)) (internal quotation marks omitted). He may do so by demonstrating that a

defendant “wrongfully concealed material facts relating to defendant’s wrongdoing,” but only if

“the concealment prevented plaintiff’s discovery of the nature of the claim within the limitations

period” and “plaintiff exercised due diligence in pursuing the discovery of the claim during the

period plaintiff seeks to have tolled.” Koch, 699 F.3d at 157 (internal quotation marks omitted)

(quoting Corcoran v. N.Y. Power Auth., 202 F.3d 530, 543 (2d Cir. 1999)).

Plaintiff falls short of meeting these standards. Plaintiff suggests that Chase engaged in

fraudulent concealment because the bank hid the fact that his original WaMu loan had been closed

and replaced with the 4294 Fixed Loan by making the last four digits of the 4294 Fixed Loan

match the last four digits of the old WaMu loan. See Pl.’s Opp’n 29; Compl. ¶ 78. In making this

argument, plaintiff appears to acknowledge that he received documents from Chase showing that

he had a new loan account number. See Pl.’s Opp’n 29; Compl. ¶ 78. But he suggests that he was

misled about his account’s status because he examined only the last four digits of the account

number on his bank documents. Even assuming that plaintiff’s description of Chase’s conduct

met the requirements for fraudulent concealment, plaintiff’s efforts would not be consistent with

the “[r]easonable diligence” that “is a prerequisite to the applicability of equitable tolling,” Koch,

699 F.3d at 157 (citation omitted), because there is no question that plaintiff could have discovered

the allegedly concealed facts through a more-than-cursory review of his bank documents, see, e.g.,

Vayani v. 146 W. 29th St. Owners Corp., No. 16-CV-1774 (JGK), 2017 WL 3476046, at *9

(S.D.N.Y. Aug. 11, 2017) (refusing to equitably toll a claim because defendants did not

fraudulently conceal information when the plaintiff should have known the information on his

own), aff’d, 726 F. App’x 71 (2d Cir. 2018); cf. Simmons, 2020 WL 7024345, at *12 (declining to

toll based on fraudulent concealment by banks when plaintiffs did not plead facts that would

support a finding of diligence on their part, such as by alleging “that they requested mortgage

statements or balance information from Defendants, or took any steps to investigate the interest

rates they were being charged or precise balances they owed”) (citation omitted).

Plaintiff alternatively argues that the statute of limitations should be tolled because Chase

“lulled”’ him into believing that it was not necessary to file a lawsuit in order to stay in the Unit.

See Pl.’s Opp’n 27-29; Compl. ¶ 103. He relies on the fact that more than four years passed

between the 2012 auction of the Unit and the 2016 lawsuit seeking his eviction. Ibid. But plaintiff

attests that Nachimovsky served him with a 10-day notice to vacate around July 31, 2016, see Pl.’s

Opp’n 31-32, and Nachimovsky brought eviction proceeding in Housing Court on September 2,

2016, see Compl. Ex. 3 (Dkt. #1-4). Even if plaintiff were entitled to tolling during a period in

which defendants lulled him into believing he would be allowed to stay in the Unit, that period

had ended more than four years before plaintiff filed his suit in November 2020. Plaintiff’s claims

therefore cannot be saved through equitable tolling.

c. Plaintiff’s Remaining Arguments

Plaintiff’s remaining arguments pertaining to the statute of limitations are meritless.

Plaintiff argues that the law-of-the-case doctrine bars defendants from bringing a statute-

of-limitations defense because a state court found that the statute of limitations for plaintiff’s state

fraud claim against Nachimovsky had not expired. Pl.’s Opp’n 28. The law-of-the-case doctrine,

which “counsels a court against revisiting its prior rulings in subsequent stages of the same case

absent cogent and compelling reasons,” In re Peters, 642 F.3d 381, 386 (2d Cir. 2011) (citations

and internal quotation marks omitted), has no application here. First, this federal lawsuit is not a

“subsequent stage[]” of plaintiff’s state case. Ibid. (citation omitted). Second, the statute-of-

limitations question presented in this case is entirely distinct from the one presented in plaintiff’s

state lawsuit. The New York court appears to have determined that plaintiff’s 2016 lawsuit relating

to Nachimovsky’s 2015 purchase of the Unit was timely under New York’s six-year statute of

limitations for fraud claims. Pl.’s Req. to Take Judicial Notice 19 (Dkt. #29) (citing N.Y. C.P.L.R.

§ 213(8) (McKinney)). The timeliness of plaintiff’s earlier state lawsuit pressing a fraud claim

does not control the timeliness of plaintiff’s later federal lawsuit pressing a RICO claim.

For similar reasons, plaintiff errs in arguing that defendants are collaterally estopped from

raising a statue-of-limitation defense because the state court decided that the statute of limitations

did not bar his fraud claim. Pl.’s Opp’n 28. Collateral estoppel “bars the relitigation of an issue

that was raised, litigated, and actually decided by a judgment in a prior proceeding.” Postlewaite

v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. 2003). As explained above, the state court did not decide

the statute of limitations for the federal RICO claims brought in this separate lawsuit. Collateral

estoppel therefore does not bar the defendants from raising a statute-of-limitations defense.

III. The Court Declines to Exercise Supplemental Jurisdiction.

The Court declines to exercise supplemental jurisdiction over any state-law claims plaintiff

brings. In his complaint, plaintiff “reserved” the right to bring a litany of state-law claims. See

Compl. ¶ 162. Under 28 U.S.C. § 1367(c)(3), “a district court may decline to exercise

supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction.”

Schaefer v. Town of Victor, 457 F.3d 188, 210 (2d Cir. 2006) (citations omitted). Although

declining to exercise supplemental jurisdiction in such a case is not “absolutely mandatory,”

Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (citation and internal quotation marks

omitted), in “the usual case in which all federal-law claims are eliminated before trial, the balance

of factors to be considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state-law claims,” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see

also Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 118 (2d Cir. 2013) (citation

omitted) (“Once all federal claims have been dismissed, the balance of factors will usually point

toward a declination” of supplemental jurisdiction.). Indeed, in some cases, particularly “where

the federal claims ha[ve] been dismissed at a relatively early stage and the remaining claims

involve[] issues of state law that [are] unsettled,” the Second Circuit has “concluded that the

exercise of supplemental or pendent jurisdiction [is] an abuse of discretion.” Valencia ex rel.

Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003). Accordingly, as district courts frequently do in

similar circumstances, this Court shall remand plaintiff’s remaining claims to New York state

court. See, e.g., Amador v. City of New York, No. 20-CV-956 (RA), 2021 WL 2809541, at *2

(S.D.N.Y. July 6, 2021).

CONCLUSION

Because plaintiff’s claims are time-barred, defendants’ motions to dismiss under 12(b)(6)

are granted. Plaintiff’s motions to strike are denied as moot. Because claims barred by the statute

of limitations cannot be resurrected through “better pleading,” Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000), leave to amend is denied as futile. Plaintiff’s claims are accordingly dismissed

with prejudice. The Clerk of Court is respectfully directed to enter judgment and close the case.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: September 28, 2022

Brooklyn, New York