Opinion

Javino v. Denton

Court: District Court, E.D. New York
Filed: Sep 13, 2024
Cited by: 0 cases
Authority: More cited than 31.6%

“[W]here … a plaintiff alleges that a defendant engaged in a single frivolous, fraudulent, or baseless lawsuit, such litigation activity alone cannot constitute a viable RICO predicate act.”

How later courts described this case

“[W]here … a plaintiff alleges that a defendant engaged in a single frivolous, fraudulent, or baseless lawsuit, such litigation activity alone cannot constitute a viable RICO predicate act.”
“The problem with [the pro se -- --- plaintiff’s] causes of action is substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile request to replead should be denied.”
granting motion to dismiss where plaintiffs’ conclusory allegation of defendants’ knowledge of the alleged fraud was insufficient to meet the 9(b) pleading requirements
“In this Circuit, a movant’s failure to comply with a district court’s relevant local rules on a motion for summary judgment permits, but does not require, a court to dispose of that motion.”

Written by the judges who cited it.

The opinion

EASTERN DISTRICT OF NEW YORK (For Electronic Publication Only)

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DALE ROBERT JAVINO,

Plaintiff, MEMORANDUM & ORDER

22-cv-01072-JMA-ARL

-against-

FILED

CLERK

RANEE DENTON et al.,

9/13/202 4 10:58 am

Defendants. U.S. DISTRICT COURT

----------------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

AZRACK, United States District Judge:

On February 28, 2022, Pro Se Plaintiff Dale Robert Javino filed a complaint asserting

claims (1) under the substantive provisions of the Racketeer Influence and Corrupt Organizations

Act; (2) for bank fraud; (3) for money laundering; (4) for computer privacy violations; and (5) for

civil conspiracy to defraud. (ECF No. 1 (“Compl.”).) Each of the named defendants move to

dismiss Plaintiff’s complaint. Specifically, Defendants Julie Pratt and Bridgehampton National

Bank (“BNB Defendants”) move to dismiss Plaintiff’s complaint under Federal Rule of Civil

Procedure 12(b)(6). (ECF No. 45 (“BNB Defs.’ Mot.”).) Defendants Alan B. Rosen and Bi-Yech

Enterprise, Inc. (“Rosen Defendants”) move to dismiss Plaintiff’s complaint under Federal Rules

of Civil Procedure 12(b)(2), 12(b)(5), and 12(b)(6). (ECF No. 46 (“Rosen Defs.’ Mot.”).)

Defendants Ranee Denton, Craig Purcell, Timothy B. Glynn, and Glynn, Mercep & Purcell LLP

(“Denton Defendants”) move to dismiss Plaintiff’s complaint under Federal Rule of Civil

Procedure 12(b)(6). (ECF No. 48 (“Denton Defs.’ Mot.”).) In response, Plaintiff cross-moves for

summary judgment. (ECF No. 42 (“Pl.’s Cross. SJ Mot.”).)

For the below reasons, the Court GRANTS each defendants’ motions to dismiss, DENIES

Plaintiff’s cross-motion for summary judgment, and DISMISSES the Plaintiff’s pro se complaint

without prejudice with leave to file an amended complaint within 45 days of entry of this Order.

A. Factual Background

This matter concerns Plaintiff’s interest in limited liability companies associated with the

ownership and operation of a marina. (Compl. ¶ 13.) Plaintiff and Defendant Denton were

involved in a personal relationship beginning around 2012. (Ex. A, at 7, ECF No. 40-1 (“NYS

Decision”).) On August 30, 2013, Defendant Denton loaned Plaintiff $400,000 dollars, and on

June 12, 2014, she extended another loan to Plaintiff for $50,000 dollars. (Id.) During this time,

the two entered a business relationship with the intent to purchase Senix Marina. (Id.)

In May 2014, Plaintiff and Defendant Denton entered into an operating agreement to share

in the ownership of Senix Acquisitions LLC, which governed the management and operation of

the marina. (Compl. ¶ 14.) The operating agreement designated the two as sole members with

equal shares and management rights. (NYS Decision at 7.) Thereafter, Plaintiff and Defendant

Denton purchased the Senix Marina. (Compl. ¶ 15.) Defendant Denton provided all the funds for

the purchase of the marina which totaled $1.1 million dollars, and Plaintiff’s ownership interest

was conditioned upon the execution of a promissory note in favor of Defendant Denton for

$550,000, plus one-half of all closing costs that she advanced. (NYS Decision at 7.) Moreover,

the agreement explicitly provided the promissory note to “be executed at the time of closing,” and

that “failure” to do so would subject Plaintiff’s shares to forfeiture. (NYS Decision at 8.) The

agreement also required Plaintiff to execute an assignment of ownership at the closing to ensure

1 This Memorandum and Order draws its facts from Plaintiff’s complaint (ECF No. 1 (“Compl.”)); Plaintiff’s

Memorandum of Law in Support of his Cross-Motion for Summary Judgment (ECF No. 42 (“Pl.’s Cross. SJ Mot.”));

Defendant Pratt and Defendant BNB’s Memorandum of Law in Support of their Motion to Dismiss (ECF No. 45

(“BNB Defs.’ Mot.”)); Defendant Rosen and Bi-Tech Enterprises, Inc.’s Memorandum of Law in Support of their

Motion to Dismiss (ECF No. 46 (“Rosen Defs.’ Mot.”)); Defendant Denton, Defendant Purcell, Defendant Glynn, and

Defendant Glynn, Mercep & Purcell LLP’s Memorandum of Law in Support of their Motion to Dismiss (ECF No. 48

(“Denton Defs.’ Mot.”)); Defendant Denton, Defendant Purcell, Defendant Glynn, and Defendant Glynn, Mercep &

Purcell LLP’s Memorandum of Law in Opposition to Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 57

(“Denton Defs.’ Opp.”)); Plaintiff’s Memorandum of Law in Reply to his Cross-Motion for Summary Judgment (ECF

No. 58 (“Pl.’s Cross. SJ Rep.”)), and the declarations and exhibits attached to all the above-mentioned filings.

did not satisfy either condition, nor did he repay either of the loans from Defendant Denton,

resulting in a judgment in the amount of $527,749.55 filed in Suffolk County, New York, on

September 28, 2016, and Defendant Denton commencing litigation against Plaintiff. (Id.)

Evidence adduced at the trial of the matter in New York state court indicated that Plaintiff formed

Senix Yacht Co. in direct competition with the marina and in violation of the operating agreement’s

non-compete clause. (Id.) The evidence further showed, among other things, that Plaintiff barely

worked or made any meaningful contribution to the marina’s business. (Id.) In its trial decision,

the court held that Defendant Denton established that her business would suffer serious and

irreparable harm absent an injunction, thereby granting the permanent injunctive relief as asserted

in her complaint dated January 8, 2015. (Id.)

Plaintiff tells a different story. In October 2014, Plaintiff suspected Defendant Denton was

misappropriating funds from Senix Acquisitions LLC and hired a forensic accountant to

investigate the situation. (Compl. ¶ 18.) In December 2014, Plaintiff alleges Defendant Denton

retained legal counsel and began to “concoct[] and put together a strategy to permanently enjoin

[Plaintiff] from the marina and the companies [he] formed.” (Compl. ¶ 19.) In January 2015,

Plaintiff alleges he was served with a preliminary injunction to keep him off the marina property.

(Id.) As mentioned, Plaintiff and Defendant Denton have continued to litigate their dispute in New

York state court since January 2015.

B. Procedural History

On February 28, 2022, Plaintiff commenced this action in federal court contending that

Defendant Denton, her attorneys, and several others violated various substantive sections of

Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–68. (Compl.

¶¶ 32–49.) Read liberally, Plaintiff’s complaint further asserts claims for (1) bank fraud; (2) money

64.)

On May 18, 2022, before any party had been served or joined, Plaintiff filed a motion by

order to show cause seeking a preliminary injunction and temporary restraining order. (ECF No.

6.) This Court denied that motion on the same day. (Elec. Order dated May 18, 2022.) On July

19, 2022, this Court stayed this matter due to the underlying state court litigation between Plaintiff

and Defendant Denton. (Elec. Order dated Jul. 19, 2022.) The Court lifted that stay on October

20, 2023. (Elec. Order dated Oct. 20, 2023.) Each defendant named in this action eventually

moved to dismiss Plaintiff’s complaint. (ECF Nos. 40, 45, 46, 48.) Plaintiff never opposed any

of the defendants’ motions to dismiss, but he did cross-move for summary judgment on his claims.

(ECF No. 42.)

II. DISCUSSION

A. Motions to Dismiss

Each of the named defendants move to dismiss Plaintiff’s complaint. Specifically,

Defendants Julie Pratt and BNB move to dismiss Plaintiff’s complaint under Federal Rule of Civil

Procedure 12(b)(6). (BNB Defs.’ Mot.) Defendants Alan B. Rosen and Bi-Yech Enterprise, Inc.’

move to dismiss Plaintiff’s complaint under Federal Rules of Civil Procedure 12(b)(2), 12(b)(5),

and 12(b)(6). (Rosen Defs.’ Mot.) And Defendants Ranee Denton, Craig Purcell, Timothy B.

Glynn, and Glynn, Mercep & Purcell LLP move to dismiss Plaintiff’s complaint under Federal

Rule of Civil Procedure 12(b)(6). (Denton Defs.’ Mot.) For the below reasons, the Court grants

each defendant’s motion to dismiss the claims against it.

1. Applicable Law.

The Court begins with a brief discussion of relevant legal principles before addressing each

of the defendants’ claims in turn.

12(b)(2).

Federal Rule of Civil Procedure 12(b)(2) governs motions to dismiss for lack of personal

jurisdiction. See generally FED. R. CIV. P. 12(b)(2). On a Rule 12(b)(2) motion, “the plaintiff bears

the burden of showing that the court has jurisdiction over the defendant.” Metro. Life Ins. Co. v.

Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). At the pleading stage, a plaintiff need

only make “legally sufficient allegations of jurisdiction.” Ball v. Metallurgie Hoboken-Overpelt,

S.A., 902 F.2d 194, 197 (2d Cir. 1990). In assessing whether this standard is met, a court will

construe a plaintiff’s allegations “in the light most favorable to the plaintiff,” and resolve all doubts

“in the plaintiff’s favor[.]” Elsevier, Inc. v. Grossman, 77 F. Supp. 3d 331, 341 (S.D.N.Y. 2015)

(quoting A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79–80 (2d Cir. 1993)). But the court will

neither “draw argumentative inferences in the plaintiff’s favor” nor “accept as true a legal

conclusion couched as a factual allegation.” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d

659, 673 (2d Cir. 2013) (internal quotation marks and citations omitted); accord Licci ex rel. Licci

v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012).

District courts deciding a motion to dismiss for lack of personal jurisdiction engage in a

two-part analysis. See generally Bailon v. Pollen Presents, 2023 WL 5956141, at *4 (S.D.N.Y.

Sept. 13, 2023). First, the court “must establish whether there is ‘a statutory basis for exercising

personal jurisdiction’” over the defendant. Elsevier, 77 F. Supp. 3d at 341 (quoting Marvel

Characters, Inc. v. Kirby, 726 F.3d 119, 128 (2d Cir. 2013)). In a federal-question case, as here,

this statutory basis is typically provided by the forum state’s long-arm statute, unless the federal

statute under which the case arises “specifically provide[s] for national service of process.”2 PDK

2 New York’s long-arm statute authorizes courts to exercise personal jurisdiction “over any non-domiciliary ...

who in person or through an agent ... transacts any business within the state,” so long as the cause of action “aris[es]

from” that transaction. N.Y. C.P.L.R. § 302(a)(1). Accordingly, a court may exercise personal jurisdiction over a

non-domiciliary if two conditions are met: “first, the non-domiciliary must transact business within the state; second,

Second, the court “must decide whether the exercise of jurisdiction comports with due process,”

that is, it must ensure that the exercise of jurisdiction does not offend the Due Process Clause of

the U.S. Constitution. Elsevier, 77 F. Supp. 3d at 341 (citing Sonera Holding B.V. v. Çukurova

Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014)). The due process inquiry requires the court to

further establish both that (i) the nonresident defendant has sufficient contacts with the forum state

to justify the court’s exercise of personal jurisdiction and (ii) the court’s exercise of jurisdiction

does not offend “traditional notions of fair play and substantial justice.” International Shoe

Company v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).

b) Motions to Dismiss Under Federal Rule of Civil Procedure

12(b)(5).

“Before a federal court may exercise personal jurisdiction over a defendant, the procedural

requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff

& Co., Ltd., 484 U.S. 97, 104 (1987). Under Rule 12(b)(5), “[o]nce a defendant raises a challenge

to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy.”

Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).

“When a court considers a motion to dismiss pursuant to Rule 12(b)(5), it must consider

information outside the complaint to determine whether service was sufficient.” Hernandez v.

Mauzone Home Kosher Prods. of Queens, Inc., 2013 WL 5460196, at *4 (E.D.N.Y. Sept. 30,

2013).

“In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the

content, issuance, and service of a summons.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54,

the claims against the non-domiciliary must arise out of that business activity.” Aquiline Capital Partners LLC v.

FinArch LLC, 861 F. Supp. 2d 378, 386 (S.D.N.Y. 2012) (quoting CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365

(2d Cir. 1986)).

complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss

the action without prejudice against that defendant or order that service be made within a specified

time.” FED. R. CIV. P. 4(m). If the plaintiff can demonstrate good cause, however, a district court

must grant a plaintiff an extension of time for service. See id.

Even where a plaintiff does not show good cause, district courts may exercise discretion to

grant an extension of time to effect adequate service. See Zapata v. City of New York, 502 F.3d

192, 196 (2d Cir. 2007); -se-e -al-so- -G-eo-r-g-e -v.- P-r-of-’l- D-i-sp-o-s-ab-l-es- I-n-t’-l,- In-c-., 221 F. Supp. 3d 428, 433

(S.D.N.Y. 2016). In determining whether to grant a discretionary extension, courts look to “[i]

whether any applicable statutes of limitations would bar the action once refiled; [ii] whether the

defendant had actual notice of the claims asserted in the complaint; [iii] whether defendant

attempted to conceal the defect in service; and [iv] whether defendant would be prejudiced by

extending plaintiff’s time for service.” DeLuca, 695 F. Supp. 2d at 66.

c) Motions to Dismiss Under Federal Rule of Civil Procedure

12(b)(6).

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.’” Allco Fin. Ltd.

v. Klee, 861 F.3d 82, 94–95 (2d Cir. 2017) (quoting Iqbal, 556 U.S. at 678). “[A]lthough a court

must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal

conclusions, and threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal

quotations and citation omitted, and alterations adopted); see also Rolon v. Henneman, 517 F.3d

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conclusions masquerading as factual conclusions”) (internal citation omitted).

When—as here—the plaintiff is proceeding pro se, his complaint is “held to [a] less

stringent standard[ ] than formal pleadings drafted by lawyers.” Boykin v. KeyCorp, 521 F.3d 202,

214 (2d Cir. 2008) (internal quotations omitted). A district court must actively “interpret [his

complaint] ‘to raise the strongest arguments that [it] suggest[s].’” McPherson v. Coombe, 174

F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Unless

it is “beyond doubt” that a pro se plaintiff may “prove no set of facts in support of his claim[s]

which would entitle him to relief,” his complaint should not be dismissed. Thomas & Agnes Carvel

Found. v. Carvel, 736 F. Supp. 2d 730, 756 (S.D.N.Y. 2010) (quoting Leibowitz v. Cornell Univ.,

445 F.3d 586, 590 (2d Cir. 2006)). “That said, the liberal pleading standard accorded to pro se

litigants is not without limits, and all normal rules of pleading are not absolutely suspended.” Hill

v. City of N.Y., No. 13-cv-8901 (KPF), 2015 WL 246359, at *2 (S.D.N.Y. Jan. 20, 2015) (internal

quotations and citation omitted). A pro se plaintiff’s factual allegations still must at least “be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

A court adjudicating a motion to dismiss under Rule 12(b)(6) “may review only a narrow

universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). This narrow

universe includes the “facts stated on the face of the complaint, documents appended to the

complaint or incorporated in the complaint by reference, and matters of which judicial notice may

be taken.” Id. (internal citation omitted and alternations adopted); see also United States ex rel.

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Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021). That said, the Court “may also look to public

records, including complaints filed in state court, in deciding a motion to dismiss” under Rule

12(b)(6). Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts, 369 F.3d 212, 217

(2d Cir. 2004); see also Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (holding

-- --- -------------------

by law). “In the motion to dismiss context, however, a court should generally take judicial notice

‘to determine what statements [the documents] contain[ ] ... not for the truth of the matters

asserted.’” Schubert v. City of Rye, 775 F. Supp. 2d 689, 698 (S.D.N.Y. 2011) (alterations in

original) (quoting Kramer, 937 F.2d at 774).

Additionally, “[a]lthough the statute of limitations is ordinarily an affirmative defense that

must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6)

motion if the defense appears on the face of the complaint.” Thea v. Kleinhandler, 807 F.3d 492,

501 (2d Cir. 2015) (quoting Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d

Cir. 2014)).

d) Heightened Pleading Requirements for Fraud Claims Under

Federal Rule of Civil Procedure 9(b).

Plaintiffs alleging fraud claims face additional, heightened pleading requirements beyond

those enumerated above. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.

2007). These heightened requirements are circumscribed by Federal Rule of Civil Procedure Rule

9(b). Compare FED. R. CIV. P. 8 (describing “General Rules of Pleading”), with FED. R. CIV. P.

9(b) (setting forth requirements of “alleging fraud or mistake”). Rule 9(b) requires a plaintiff

alleging fraud to “state with particularity the circumstances constituting [the] fraud,” FED. R. CIV.

P. 9(b); namely, “[i] specify the statements that the plaintiff contends were fraudulent, [ii] identify

the speaker, [iii] state where and when the statements were made, and [iv] explain why the

statements were fraudulent,” ATSI, 493 F.3d at 99 (citation omitted). While Rule 9(b) demands

specificity as to the circumstances of an alleged fraud, it allows a plaintiff to “allege[ ] generally”

any requisite state of mind, e.g., “[m]alice, intent, [or] knowledge[.]” FED. R. CIV. P. 9(b).

a) The Court Grants Defendant Pratt and Defendant BNB’s Motion to

Dismiss.

Defendants Julie Pratt and BNB (“BNB Defendants”) move to dismiss Plaintiff’s

complaint under Federal Rule of Civil Procedure 12(b)(6). For the below reasons, the Court grants

their motion and dismisses the claims against them.

(1) Plaintiff’s Claims are Barred by the Statute of Limitations.

As a preliminary matter, Plaintiff’s purported claims against the BNB Defendants are

barred by the applicable statutes of limitations.

“Although the statute of limitations is ordinarily an affirmative defense that must be raised

in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the

defense appears on the face of the complaint.” Ellul, 774 F.3d at 798 n.12 (citation omitted); see

also Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989) (“Where the dates in a

complaint show that an action is barred by a statute of limitations, a defendant may raise the

affirmative defense in a pre-answer motion to dismiss.”). “Because the statute of limitations is an

affirmative defense, the defendant bears the burden of establishing by prima facie proof that the

limitations period has expired since the plaintiff’s claims accrued.” Overall v. Estate of Klotz, 52

F.3d 398, 403 (2d Cir. 1995); -se-e -al-so- -G-o-nz-a-le-z- v-. -H-a-st-y, 651 F.3d 318, 322 (2d Cir. 2011) (“[T]he

burden is on the defendant to establish when a federal claim accrues.”). If it appears from the face

of a complaint that the claims are prima facie time-barred, the burden is on the plaintiff to

“plausibly alleg[e] that they fall within an exception to the applicable statute of limitations.”

Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429, 436 (S.D.N.Y. 2014), aff’d, 579 F. App’x 7 (2d

Cir. 2014) (summary order) (citing cases).

when the plaintiff discovers or should have discovered the RICO injury,” such that the plaintiff

has “actual or inquiry notice of the injury.” In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56,

58, 60 (2d Cir. 1998). A plaintiff need not have known of the cause of action for the limitations

period to begin; instead, the four-year period begins upon “discovery of the injury, not discovery

of the other elements of the claim.” Koch v. Christie’s Int’l PLC, 699 F.3d 141, 148 (2d Cir. 2012)

(quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)). Accordingly, “[t]he first step in the statute

of limitations analysis is to determine when the [parties] sustained the alleged injury for which

they seek redress.” Merrill Lynch, 154 F.3d at 59. The Court “then determine[s] when they

discovered or should have discovered the injury and begin[s] the four-year statute of limitations

period at that point.” Id.

Under New York law, “an action based upon fraud” must be commenced within “the greater

of six years from the date the cause of action accrued or two years from the time the plaintiff ...

discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. §

213(8). Under N.Y. C.P.L.R. § 213(8), “the six year prong of this limitations period begins to run

from the time that a plaintiff actually suffers a loss as a result of the fraudulent conduct.”

Hemmerdinger Corp. v. Ruocco, 976 F. Supp. 2d 401, 408 (E.D.N.Y. 2013). Thus, the standard

for determining when a Plaintiff is on inquiry notice sufficient to trigger the statute of limitations

for a civil RICO claim is like that for fraud under New York law. See Cohen, 711 F.3d at 361.

It is Plaintiff’s burden to show “that the fraud could not have been discovered before the

two-year period prior to the commencement of the action.” Hemmerdinger, 976 F. Supp. 2d at 408

(quoting Guilbert v. Gardner, 480 F.3d 140, 147 (2d Cir. 2007)). A plaintiff’s duty to inquire “is

triggered by information that relates directly to the misrepresentations and omissions the

Plaintiff[ ] later allege[s] in [its] action against the defendants.” Cohen, 711 F.3d at 361 (internal

have “knowledge of the fraudulent act.” Sargiss v. Magarelli, 12 N.Y.3d 527, 532 (2009). “Where

it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could

reasonably be inferred, a complaint should not be dismissed on motion and the question should be

left to the trier of the facts.” Id. However, “[t]he triggering information need not detail every

aspect of the subsequently alleged fraudulent scheme,” and “the date on which knowledge of a

fraud will be imputed to a plaintiff can depend on the plaintiff’s investigative efforts.” Cohen, 711

F.3d at 361 (internal quotation marks and editing omitted). Therefore, “[i]f the plaintiff makes no

inquiry once the duty to inquire arises, knowledge will be imputed as of the date the duty arose.”

Id. (internal quotation marks and citation omitted).

Here, Plaintiff alleges that the “conspiracy” and scheme which underlies his claims against

the BNB Defendants “commenced on or about July 2014.” (Compl. ¶ 59.) Plaintiff also alleges

that Defendant Pratt “at the time of 2014 to 2016 ... opened bank accounts for Ranee Denton,”

which Plaintiff purports was part of the scheme to defraud him. (Compl. ¶ 52.) Plaintiff

acknowledges that he first became aware the possible fraud in October 2014 when he questioned

Defendant Denton about the loss of money and hired a forensic accountant. (Compl. ¶ 18.) Thus,

Plaintiff was aware of any allegedly fraudulent scheme in 2014. Moreover, Plaintiff has

purportedly been shut out of the LLCs and the marina since January 2015. (Compl. ¶ 19.) He has

also consistently been involved in litigation regarding these issues since January of that year. (Id.)

As such, Plaintiff’s civil RICO, fraud, and civil conspiracy causes of action all accrued, at the

latest, in 2015. Because Plaintiff did not file this action until February 2022, his civil RICO, fraud,

and civil conspiracy claims against the BNB Defendants are barred by the applicable statutes of

limitations.

Even if Plaintiff’s causes of action against the BNB Defendants were not time barred,

Plaintiff nonetheless fails to state a viable cause of action.

(a) Civil RICO

Plaintiff fails to plead the elements of a civil RICO claim. To sustain a private right of

action under RICO, a plaintiff must plead “[i] the defendant’s violation of [18 U.S.C] § 1962, [ii]

an injury to the plaintiff’s business or property, and [iii] causation of the injury by the defendant’s

violation.” Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380 (2d

Cir. 2001). To plead a substantive civil RICO claim under 18 U.S.C. § 1962(c), “a plaintiff must

show that a person engaged in [i] conduct [ii] of an enterprise [iii] through a pattern [iv] of

racketeering activity.” Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (internal

quotation marks omitted); see generally In re Tether & Bitfinex Crypto Asset Litig., 576 F. Supp.

3d 55, 114–27 (S.D.N.Y. 2021).

As to RICO claims predicated on alleged fraud, as here, “Federal Rule of Civil Procedure

9(b) imposes a heightened pleading standard.” Black v. Ganieva, 619 F. Supp. 3d 309, 342

(S.D.N.Y. 2022). Such claims must “state with particularity the circumstances constituting fraud.”

FED. R. CIV. P. 9(b). To satisfy Rule 9(b), a complaint must “allege facts that give rise to a strong

inference of fraudulent intent.” Berman v. Morgan Keegan & Co., 455 F. App’x 92, 95 (2d Cir.

2012) (summary order) (quoting Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52 (2d Cir. 1995)).

Specifically, “the complaint must: (1) specify the statements that the plaintiff contends were

fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4)

explain why the statements were fraudulent,” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292–93

(2d Cir. 2006) (internal quotation marks omitted). See also United States ex rel. Ladas v. Exelis,

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Inc., 824 F.3d 16, 25–26 (2d Cir. 2016) (“The purpose of Rule 9(b) is threefold—it is designed to

from improvident charges of wrongdoing, and to protect a defendant against the institution of a

strike suit.” (quoting O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991))).

Here, among other deficiencies, Plaintiff’s complaint does not adequately plead that the

BNB Defendants were part of a RICO enterprise. “The Supreme Court has explained that a RICO

enterprise is ‘a group of persons associated together for a common purpose of engaging in a course

of conduct,’ the existence of which is proven ‘by evidence of an ongoing organization, formal or

informal, and by evidence that the various associates function as a continuing unit.’” First Cap.

Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004) (quoting United States v.

Turkette, 452 U.S. 576, 583 (1981)). It is well settled that merely providing professional services,

including general banking services, that are also provided to the public at large, are insufficient to

establish that an entity has participated in a RICO enterprise. See Rosner v. Bank of China, 528

F. Supp. 2d 419, 429 (S.D.N.Y. 2007) (holding that plaintiff insufficiently established that bank

was part of a RICO enterprise where bank merely provided “indispensable banking services”); see

also Flexborrow LLC v. TD Auto Fin. LLC, F. Supp. 3d 406, 416 (E.D.N.Y. 2017) (similar). Here,

Plaintiff’s only allegations regarding the BNB Defendants are that they assisted Defendant Denton

in opening, updating, and maintaining bank accounts—services banks commonly provide to any

of their customers. Thus, without more, Plaintiff has failed to establish that the BNB Defendants

participated in a RICO enterprise. See First Cap. Asset Mgmt., Inc., 385 F.3d at 174 (concluding

that plaintiffs did not allege an enterprise where they “failed to provide ... solid information

regarding the ‘hierarchy, organization, and activities’ of this alleged association-in-fact enterprise,”

from which the court “could fairly conclude that its ‘members functioned as a unit’” (quoting

United States v. Coonan, 938 F.2d 1553, 1560–61 (2d Cir. 1991))). Because Plaintiff’s Complaint

does not plausibly allege the BNB Defendants were a part of a RICO enterprise, its RICO claim

Mar. 11, 2014) (“The heart of any civil RICO claim is the enterprise. There can be no RICO

violation without one.”), aff’d, 587 F. App’x 663, 2014 WL 5293242 (2d Cir. Oct. 16, 2014)

(summary order).

(b) Bank Fraud

Plaintiff also fails to set forth allegations with sufficiently particularity to state a claim for

fraud against the BNB Defendants as is required under Federal Rule of Civil Procedure 9(b). To

state a claim for fraud, including bank fraud, a plaintiff must “(1) specify the statements that the

plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements

were made, and (4) explain why the statements were fraudulent.” Nakahata v. New York-

Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197 (2d Cir. 2013) (quoting Mills v. Polar

Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993) (citation omitted)). “Although scienter need

not be alleged with great specificity, plaintiffs are still required to plead the factual basis which

gives rise to a ‘strong inference’ of fraudulent intent.” Wexner v. First Manhattan Co., 902 F.2d

169, 172 (2d Cir. 1990) (quoting Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d

Cir. 1987), cert. denied, 484 U.S. 1005 (1988)).

Here, Plaintiff states—in conclusory fashion—that the BNB Defendants are “liable for a

million dollars in damages for assisting in the fraudulent transactions” of Defendant Denton.

(Compl. ¶ 53.) Such allegations, without more, are insufficient to state a claim for fraud against

3 For similar reasons, Plaintiff also fails to establish that the BNB Defendants participated in a RICO scheme.

“A person may not be held liable merely for taking directions and performing tasks that are ‘necessary and helpful to

the enterprise,’ or for providing ‘goods and services that ultimately benefit the enterprise.’” U.S. Fire Ins. Co. v.

United Limousine Serv., Inc., 303 F. Supp. 2d 432, 451–52 (S.D.N.Y. 2004) (citations omitted). Instead, “‘the RICO

defendant must have played ‘some part in directing [the enterprise’s] affairs.’” Moss v. BMO Harris Bank, N.A., 258

F. Supp. 3d 289, 306 (E.D.N.Y. 2017) (internal citation omitted). Here, Plaintiff entirely fails to plead that the BNB

Defendants played any part in “directing” the alleged enterprises’ affairs. Plaintiff merely alleges that the BNB

Defendants provided basic banking services to Defendant Denton. As such, Plaintiff’s civil RICO claim could be

dismissed on this ground as well.

LLC v. Iskander, 2022 WL 784520, at *4 (E.D.N.Y. Mar. 15, 2022). Plaintiff’s allegations are

deficient because he does not allege that the BNB Defendants themselves ever made any fraudulent

statements regarding Plaintiff. See id. Indeed, courts routinely find complaints run afoul of Rule

9(b) when a plaintiff fails to “state where and when” any of the allegedly fraudulent statements

were made. Nakahata, 723 F.3d at 197; see also Star Auto Sales of Queens LLC, 2022 WL 784520,

-------------------------

at *4. Moreover, Plaintiff does not allege that the BNB Defendants were aware of any purported

fraud by Defendant Denton. Plaintiff has therefore failed to plead fraud with the requisite

specificity.

Finally, Plaintiff’s cause of action for civil conspiracy and civil RICO conspiracy must be

dismissed.

Although civil conspiracy is not an independent tort, but rather a means for imposing

liability on non-actors, a plaintiff seeking to impose liability under this theory must, in addition to

alleging an underlying tort, allege the following elements: “(1) a corrupt agreement between two

or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional

participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” Cagan

v. Gadman, 2012 WL 1071275, at *4 (E.D.N.Y. Mar. 28, 2012); see also Bigio v. Coca–Cola Co.,

---------------------

675 F.3d 163, 176 (2d Cir. 2012). As such, to the extent Plaintiff attempts to bring a separate cause

of action for civil conspiracy, that cause of action must be dismissed. See Douyon v. NY. Med.

Health Care, P.C., 894 F. Supp. 2d 245, 273 (E.D.N.Y. 2012).

To the extent Plaintiff is attempting to plead a cause of action for a civil RICO conspiracy,

that cause of action also fails. “To plead such a conspiracy, a complaint must allege that a

defendant agreed to participate in the affairs of the enterprise through a pattern of racketeering

a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy

complaint, at the very least, must allege specifically such an agreement.” Hecht v. Com. Clearing

House, Inc., 897 F.2d 21, 25 (2d Cir. 1990). And where a RICO conspiracy claim does not

adequately plead an agreement to conduct which, if completed, would satisfy the elements of the

substantive RICO statute, “the conspiracy claim under § 1962(d) also fails.” BWP Media USA

Inc. v. Hollywood Fan Sites, LLC, 69 F. Supp. 3d 342, 363 (S.D.N.Y. 2014) (citation omitted).

However, “the existence of a RICO enterprise is not a required element of a RICO conspiracy

claim.” City of New York v. Bello, 579 F. App’x 15, 17 (2d Cir. 2014) (summary order) (citing

United States v. Applins, 637 F.3d 59, 76 (2d Cir. 2011)).

“A failure to plead any element of a claim, of course, requires its dismissal.” Black, 619

F. Supp. 3d at 330. Here, Plaintiff has not pleaded that the BNB Defendants ever agreed to

participate in any racketeering activity. As explained above, the BNB Defendants only provided

basic banking services to Defendant Denton. Indeed, Plaintiff does not allege that the BNB

Defendants were even aware of some larger RICO conspiracy. As such, the Court dismisses

Plaintiff’s civil conspiracy claims against the BNB Defendants.

* * *

Accordingly, the Court GRANTS Defendant Pratt and Defendant BNB’s motion to dismiss

the claims against them.

b) The Court Grants Defendant Denton, Defendant Purcell, Defendant

Glynn, and Defendant Glynn, Mercep & Purcell LLP’s Motion to Dismiss.

Defendants Ranee Denton, Craig Purcell, Timothy B. Glynn, and Glynn, Mercep & Purcell

LLP (“Denton Defendants”) move to dismiss Plaintiff’s complaint under Federal Rule of Civil

against them.

(1) Plaintiff’s Claims are Barred by the Statute of Limitations.

Although not raised by the Denton Defendants specifically, “a court may raise [a statute of

limitations defense] sua sponte when ‘the facts supporting the statute of limitations defense are set

forth in the papers plaintiff himself submitted.’” Weaver v. Boriskin, 751 F. App’x 96, 98–99 (2d

Cir. 2018) (quoting Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d

Cir. 2011)).

As mentioned, civil RICO claims are governed by a four-year statute of limitations which

“begins to run when the plaintiff discovers or should have discovered the RICO injury,” such that

the plaintiff has “actual or inquiry notice of the injury.” Merrill Lynch Ltd., 154 F.3d at 58, 60. A

plaintiff need not have known of the cause of action for the limitations period to begin; instead,

the four-year period begins upon “discovery of the injury, not discovery of the other elements of

the claim.” Koch, 699 F.3d at 148 (quoting Rotella, 528 U.S. at 555). Accordingly, “[t]he first

step in the statute of limitations analysis is to determine when the [parties] sustained the alleged

injury for which they seek redress.” Merrill Lynch, 154 F.3d at 59. The Court “then determine[s]

when they discovered or should have discovered the injury and begin[s] the four-year statute of

limitations period at that point.” Id.

Under New York law, “an action based upon fraud” must be commenced within “the greater

of six years from the date the cause of action accrued or two years from the time the plaintiff ...

discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. §

213(8). Under N.Y. C.P.L.R. § 213(8), “the six year prong of this limitations period begins to run

from the time that a plaintiff actually suffers a loss as a result of the fraudulent conduct.”

Hemmerdinger, 976 F. Supp. 2d at 408. Thus, the standard for determining when a Plaintiff is on

fraud under New York law. See Cohen, 711 F.3d at 361.

It is Plaintiff’s burden to show “that the fraud could not have been discovered before the

two-year period prior to the commencement of the action.” Hemmerdinger, 976 F. Supp. 2d at 408

(quoting Guilbert, 480 F.3d at 147). A plaintiff’s duty to inquire “is triggered by information that

relates directly to the misrepresentations and omissions the Plaintiff[ ] later allege[s] in [its] action

against the defendants.” Cohen, 711 F.3d at 361 (internal quotation marks and citation omitted).

Mere suspicion will not suffice; rather, a plaintiff must have “knowledge of the fraudulent act.”

Sargiss, 12 N.Y.3d at 532. “Where it does not conclusively appear that a plaintiff had knowledge

of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed

on motion and the question should be left to the trier of the facts.” Id. However, “[t]he triggering

information need not detail every aspect of the subsequently alleged fraudulent scheme,” and “the

date on which knowledge of a fraud will be imputed to a plaintiff can depend on the plaintiff’s

investigative efforts.” Cohen, 711 F.3d at 361 (internal quotation marks and editing omitted).

Therefore, “[i]f the plaintiff makes no inquiry once the duty to inquire arises, knowledge will be

imputed as of the date the duty arose.” Id. (internal quotation marks and citation omitted).

Here, Plaintiff alleges that the “conspiracy” and scheme which underlies his claims against

the Denton Defendants “commenced on or about July 2014.” (Compl. ¶ 59.) Plaintiff

acknowledges that he first became aware the possible fraud in October 2014 when he questioned

Defendant Denton about the loss of money and hired a forensic accountant. (Compl. ¶ 18.)

Plaintiff further alleges that, “in early December 2014[,] [Defendant] Denton retained

[Defendants] Timothy B. Glynn and A. Craig Purcell in lieu of my threats to open up a financial

can of works on [Defendant] Denton’s illegal activities.” (Compl. ¶ 19.) Thus, Plaintiff was aware

of any allegedly fraudulent scheme involving the Denton Defendants in 2014. Moreover, Plaintiff

has also consistently been involved in litigation regarding these issues since January of that year.

(Id.) As such, Plaintiff’s civil RICO, fraud, and civil conspiracy causes of action all accrued, at

the latest, in 2015. Because Plaintiff did not file this action until February 2022, his civil RICO,

fraud, and civil conspiracy claims against the Denton Defendants are barred by the applicable

statutes of limitations.

(2) Plaintiff Fails to State a Claim Under Rule 12(b)(6).

The Denton Defendants marshal three arguments for why Plaintiff’s complaint should be

dismissed against them on the merits. First, the Denton Defendants argue Plaintiff lacks standing

to file a civil RICO claim because his complaint fails to establish a tangible injury to his business

or property. (Denton Defs.’ Mot. 7.) Second, the Denton Defendants argue that Plaintiff’s

complaint fails to state a civil RICO claim against them because it does not allege at least two

predicate acts of racketeering activity within a ten-year period. (Denton Defs.’ Mot. 8.) Third, the

Denton Defendants argue Plaintiff’s complaint must be dismissed because it fails to set forth

allegations with sufficiently particularity to state a claim for fraud against them under Federal Rule

of Civil Procedure 9(b). (Denton Defs.’ Mot. 9.) The Court agrees with the Denton Defendants

on the latter two scores.

As for standing, to sustain a private right of action under RICO, a plaintiff must plead “[i]

the defendant’s violation of [18 U.S.C] § 1962, [ii] an injury to the plaintiff’s business or property,

and [iii] causation of the injury by the defendant’s violation.” Commercial Cleaning Servs.,

L.L.C., 271 F.3d at 380. While this Court “may also look to public records, including complaints

filed in state court, in deciding a motion to dismiss” under Rule 12(b)(6), Blue Tree Hotels Inv.

(Canada), Ltd., 369 F.3d at 217, “[i]n the motion to dismiss context, … a court should generally

take judicial notice ‘to determine what statements [the documents] contain[ ] ... not for the truth of

937 F.2d at 774). Although Justice Beasley in his New York State Supreme Court trial decision

held that Plaintiff neither paid a single cent for his purported interest in the marina nor even worked

at the marina to fulfill what he says were his obligations under the Operating Agreement, see NYS

Decision, the Court cannot take such statements for their truth. See Schubert, 775 F. Supp. 2d at

698. And Plaintiff alleges in his complaint—albeit conclusorily—that he and his business suffered

a tangible harm. (Compl. ¶¶ 38–40, 43–47.) Affording Plaintiff’s complaint the very liberal

construction that it is due, the Court concludes that he has standing to bring a civil RICO claim.

See Commercial Cleaning Servs., L.L.C., 271 F.3d at 380.

As for predicate acts of racketeering activity, however, Plaintiff fails to sufficiently allege

them to state a civil RICO claim. To sustain a civil RICO claim under 18 U.S.C. § 1962(c), a

plaintiff must show “(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 invests in, or

maintains and interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect

interstate or foreign commerce.” Williams v. Affinion Grp., LLC, 889 F.3d 116, 123–24 (2d Cir.

2018) (quoting Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983)). Section 1961(1) sets

forth an exhaustive list of predicate “acts” that can constitute a pattern of “racketeering activity.”

18 U.S.C. § 1962(1). The Plaintiff’s complaint alleges no such predicate acts against the Denton

Defendants. Rather, Plaintiff alleges that the defendants filed false declarations in the prior state

court action, concealed material facts, (Compl. ¶ 37), and were in a conspiracy “to hide money,

cause a no profit situation in the business and pay them with proceeds from the business for their

legal fees,” and “steal [his] interest,” (Compl. ¶ 39.) Even if Plaintiff’s contentions were true,

“[a]ll of the alleged fraudulent conduct forming the basis of Plaintiff[‘s] RICO claim occurred in

the process of the State Court Action and therefore cannot serve as a predicate act for a RICO

Nov. 30, 2020) (citing Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (“[W]here … a plaintiff

alleges that a defendant engaged in a single frivolous, fraudulent, or baseless lawsuit, such

litigation activity alone cannot constitute a viable RICO predicate act.”)); Rajaratnam v. Motley

Rice, LLC, 449 F. Supp. 3d 45, 72 (E.D.N.Y. 2020) (“A civil RICO action in a neighboring federal

district is not the appropriate mechanism to seek redress for false statements made in court filings

by a litigation adversary.”). Accordingly, the Court concludes that Plaintiff’s failure to allege a

pattern of racketeering activity, among other deficiencies, is fatal to his civil RICO claim against

the Denton Defendants.4 See Williams, 889 F.3d at 123–24.

Moreover, Plaintiff’s complaint must be dismissed as to the Denton Defendants for the

separate reason that it fails to set forth allegations with sufficiently particularity to state a claim for

fraud against them under Federal Rule of Civil Procedure 9(b). As to claims alleging fraud, Federal

Rule of Civil Procedure 9(b) imposes a heightened pleading standard. Such claims must “state

with particularity the circumstances constituting fraud.” FED. R. CIV. P. 9(b). To satisfy Rule 9(b),

a complaint must “allege facts that give rise to a strong inference of fraudulent intent.” Berman v.

Morgan Keegan & Co., 455 F. App’x 92, 95 (2d Cir. 2012) (summary order) (quoting Acito v.

IMCERA Grp., Inc., 47 F.3d 47, 52 (2d Cir. 1995)). Specifically, “the complaint must: (1) specify

the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where

and when the statements were made, and (4) explain why the statements were fraudulent,” Lerner

4 In fact, Plaintiff manifestly fails to allege any of the elements of a civil RICO claim with any particularity

against the Denton Defendants. Among other deficiencies, Plaintiff’s complaint does not adequately plead that the

Denton Defendants were part of a RICO enterprise. See First Cap. Asset Mgmt., Inc., 385 F.3d at 173 (quoting

Turkette, 452 U.S. at 583). Plaintiff’s complaint also fails to plead any legally cognizable predicate acts. See

Kalimantano GmbH v. Motion in Time, Inc., 939 F. Supp. 2d 392, 405 (S.D.N.Y. 2013) (quoting 18 U.S.C. § 1961(5))

(citing DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001)). Plaintiff’s complaint also fails to adequately plead

continuity, and for that reason too does not allege a pattern of racketeering activity. See id. 406 (quoting H.J. Inc. v.

Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)).

also United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 25–26 (2d Cir. 2016) (“The purpose

of Rule 9(b) is threefold—it is designed to provide a defendant with fair notice of a plaintiff’s

claim, to safeguard a defendant’s reputation from improvident charges of wrongdoing, and to

protect a defendant against the institution of a strike suit.” (quoting O’Brien v. Nat’l Prop. Analysts

Partners, 936 F.2d 674, 676 (2d Cir. 1991))). Moreover, “[a]lthough scienter need not be alleged

with great specificity, plaintiffs are still required to plead the factual basis which gives rise to a

‘strong inference’ of fraudulent intent.” Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir.

1990) (quoting Beck v. Mfrs. Hanover Tr. Co., 820 F.2d 46, 50 (2d Cir. 1987)). “Despite 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.” Id. The

Second Circuit has emphasized, however, that “[t]his exception to the general rule must not be

mistaken for license to base claims of fraud on speculation and conclusory allegations.” Id.

Instead, “[w]here pleading is permitted on information and belief, a complaint must adduce

specific facts supporting a strong inference of fraud or it will not satisfy even a relaxed pleading

standard.” Id.

Here, Plaintiff neither pleaded fraud with sufficient particularity, nor alleged facts to

support a strong inference of fraud, to satisfy the Rule 9(b) standard. That is fatal to Plaintiff’s

fraud claims against the Denton Defendants.

* * *

For the above reasons, the Court GRANTS Defendants Ranee Denton, Craig Purcell,

Timothy B. Glynn, and Glynn, Mercep & Purcell LLP’s motion to dismiss the claims against them.

Enterprises, Inc.’s Motion to Dismiss.

Plaintiff has not made any civil RICO allegations against Defendants Alan B. Rosen and

Bi-Yech Enterprise, Inc.’ (“Rosen Defendants”). Plaintiff’s sole allegation against them is for

“computer privacy” violations. (Compl. ¶¶ 55–56.) The Rosen Defendants move to dismiss

Plaintiff’s complaint under Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and 12(b)(6).5 For

the below reasons, the Court grants their motion and dismisses the claims against them.

(1) Plaintiff Fails to Properly Serve Under Rule 12(b)(5).

The Rosen Defendants argue that Plaintiff’s complaint should be dismissed against them

for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). (Rosen Defs.’

Mot. 4.) The Court agrees.

Under Rule 12(b)(5), “[o]nce a defendant raises a challenge to the sufficiency of service of

process, the plaintiff bears the burden of proving its adequacy.” Darden, 191 F. Supp. 2d at 387.

“When a court considers a motion to dismiss pursuant to Rule 12(b)(5), it must consider

information outside the complaint to determine whether service was sufficient.” Hernandez, 2013

WL 5460196, at *4. “In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which

governs the content, issuance, and service of a summons.”6 DeLuca, 695 F. Supp. 2d at 64. Under

5 The Court need not, and does not, address the Rosen Defendants’ personal jurisdiction argument because it

dismisses Plaintiff’s claims against them under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6).

6 Pursuant to Fed. R. Civ. P. 4(e), Plaintiff could effectuate service by any of the following means: (1)

following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the

district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the

summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or

usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each

to an agent authorized by appointment or by law to receive service of process. See FED. R. CIV. P. 4(e). A corporation

can be served “(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of

the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by

appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so

requires—by also mailing a copy of each to the defendant.” FED. R. CIV. P. 4(h). Under New York law, service upon

a corporation requires delivery of the summons “to an officer, director, managing or general agent, or cashier or

assistant cashier or to any other agent authorized by appointment or by law to receive service.” N.Y. C.P.L.R. §

on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice

against that defendant or order that service be made within a specified time.” FED. R. CIV. P. 4(m).

If the plaintiff can demonstrate good cause, however, a district court must grant a plaintiff an

extension of time for service. See id.

Here, Plaintiff’s Affidavit of Service states “I personally served a true copy of Civil RICO

Complaint on Alan B. Rosen and Bi-Tech Enterprises, Inc.” (Ex. B, ECF No. 46-2 (“Aff. of

Service”).) As a preliminary matter, Plaintiff’s service was defective because his complaint was

served without a copy of the summons. See FED. R. CIV. P. 4(e); -se-e -al-so- -B-lo-o-m- v-. -D-e-m-o-c-ra-ti-c

Nat’l Comm., 2002 WL 31496272, at *2 (S.D.N.Y. Nov. 6, 2002) (“Because no summons was

served ... [plaintiff’s] attempted service of process was fatally defective.”); Trs. of the United Plant

& Prod. Workers Local 175 Benefits Fund v. Mana Constr. Grp., Ltd., 2021 WL 4150803, at *3

(E.D.N.Y. July 30, 2021) (collecting cases), report and recommendation adopted, 2021 WL

4147421 (E.D.N.Y. Sept. 13, 2021); Boahen v. Trifiletti, 2019 WL 688412, at *5 (D. Conn. Feb.

19, 2019). Even setting aside the failure to serve the summons, Plaintiff’s Affidavit of Service of

the complaint is separately deficient as to Defendant Rosen because it fails to identify who was

served on his behalf; indeed, it does not contain a description of the person or corporation allegedly

served with a copy of the complaint. (See Aff. of Service.) Against that backdrop, the Court

concludes that Plaintiff has failed to properly serve the Rosen Defendants.

“Good cause is generally found only in exceptional circumstances where the plaintiff’s

failure to serve process in a timely manner was the result of circumstances beyond [plaintiff’s]

control.” Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 597 (E.D.N.Y. 2013)

311(a)(1). Service is also permitted by personally serving a registered agent or the secretary of state. See N.Y. Bus.

Corp. Law §§ 306, 307.

the diligence and reasonableness of the plaintiff’s efforts to serve, and (2) prejudice to the

defendants from the delay.” Tolchin v. Cnty. of Nassau, 322 F. Supp. 3d 307, 311 (E.D.N.Y. 2018),

aff’d, 768 F. App’x 60 (2d Cir. 2019). Plaintiff has not shown good cause for his delay here.

“[A] district court may grant an extension in the absence of good cause, but it is not required

to do so.” Zapata v. City of N.Y., 502 F.3d 192, 197 (2d Cir. 2007) (emphasis omitted); see Counter

Terrorist Grp. U.S. v. N.Y. Mag., 374 F. App’x 233, 234–35 (2d Cir. 2010) (summary order). To

benefit from a discretionary extension, “the plaintiff must ordinarily advance some colorable

excuse for neglect.” Zapata, 502 F.3d at 198. At that point, “courts in this Circuit generally

consider four factors: (1) whether any applicable statutes of limitations would bar the action once

re-filed; (2) whether the defendant[s] had actual notice of the claims asserted in the complaint; (3)

whether defendant[s] attempted to conceal the defect in service; and (4) whether defendant[s]

would be prejudiced by extending plaintiff’s time for service.” Vaher v. Town of Orangetown, 916

F. Supp. 2d 404, 420 (S.D.N.Y. 2013) (quotations omitted).

Here, the Court declines to exercise its discretion to grant an extension without good cause.

Plaintiff has not offered a colorable excuse for his neglect. Cf. Zapata, 502 F.3d at 199 (affirming

denial of extension of time to serve where plaintiff “neglected to ask for an extension within a

reasonable period of time, and ha[d] advanced no cognizable excuse for the delay”). Further,

Plaintiff never effected proper service on the Rosen Defendants or asked for an extension of time

to do so. Cf. Carl v. City of Yonkers, 2008 WL 5272722, at *7 (S.D.N.Y. Dec. 18, 2008) (declining

to extend time to serve in part because plaintiff’s pro se attempt was unsuccessful and he failed to

seek any extension of time), aff’d, 348 F. App’x 599 (2d Cir. 2009); Bogle-Assegai v. Connecticut,

470 F.3d 498, 508–09 (2d Cir. 2006); Stewart v. City of New York, 2008 WL 1699797, at *7

(S.D.N.Y. Apr. 9, 2008). Moreover, Plaintiff has not argued or provided evidence that the Vaher

Defendants would be futile, as discussed further below. See Hahn v. Office & Pro. Emps. Int’l

Union, AFL-CIO, 107 F. Supp. 3d 379, 382 (S.D.N.Y. 2015) (declining to allow extension of time

for service based on futility) (citing Zapata, 502 F.3d at 196).

Considering the factors commonly weighed in deciding whether to grant a discretionary

extension, the Court declines to extend Plaintiff’s time to serve the Rosen Defendants and

dismisses the complaint under Federal Rule of Civil Procedure 4(m).

(2) Plaintiff’s Claims are Barred by the Statute of Limitations.

Even if the Court looked past Plaintiff’s failure to properly serve the Rosen Defendants,

Plaintiff’s purported civil RICO and computer privacy claims against the Rosen Defendants fail

for the additional reason that they are barred by the applicable statutes of limitations.

“Although the statute of limitations is ordinarily an affirmative defense that must be raised

in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the

defense appears on the face of the complaint.” Ellul, 774 F.3d at 798 n.12 (citation omitted); see

also Ghartey, 869 F.2d at 162 (“Where the dates in a complaint show that an action is barred by a

statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to

dismiss.”). “Because the statute of limitations is an affirmative defense, the defendant bears the

burden of establishing by prima facie proof that the limitations period has expired since the

plaintiff’s claims accrued.” Overall, 52 F.3d at 403; -se-e -al-so- -G-o-n-za-l-e-z, 651 F.3d at 322 (“[T]he

burden is on the defendant to establish when a federal claim accrues.”). If it appears from the face

of a complaint that the claims are prima facie time-barred, the burden is on the plaintiff to

“plausibly alleg[e] that they fall within an exception to the applicable statute of limitations.”

Twersky, 993 F. Supp. 2d at 436, aff’d, 579 F. App’x 7 (summary order) (citing cases).

when the plaintiff discovers or should have discovered the RICO injury,” such that the plaintiff

has “actual or inquiry notice of the injury.” Merrill Lynch, 154 F.3d at 58, 60. A plaintiff need not

have known of the cause of action for the limitations period to begin; instead, the four-year period

begins upon “discovery of the injury, not discovery of the other elements of the claim.” Koch, 699

F.3d at 148 (quoting Rotella, 528 U.S. at 555). Accordingly, “[t]he first step in the statute of

limitations analysis is to determine when the [parties] sustained the alleged injury for which they

seek redress.” Merrill Lynch, 154 F.3d at 59. The Court “then determine[s] when they discovered

or should have discovered the injury and begin[s] the four-year statute of limitations period at that

point.” Id.

Under New York law, “an action based upon fraud” must be commenced within “the greater

of six years from the date the cause of action accrued or two years from the time the plaintiff ...

discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. §

213(8). Under N.Y. C.P.L.R. § 213(8), “the six year prong of this limitations period begins to run

from the time that a plaintiff actually suffers a loss as a result of the fraudulent conduct.”

Hemmerdinger, 976 F. Supp. 2d at 408. Thus, the standard for determining when a Plaintiff is on

inquiry notice sufficient to trigger the statute of limitations for a civil RICO claim is like that for