The opinion of the court was delivered by: Leisure, District Judge:
This is an action for conversion of property, and for
violation of the Racketeer Influenced and Corrupt Organizations
Act ("RICO"), 18 U.S.C. § 1961, et seq. Defendant Rene Norrell
has now moved to dismiss the complaint in this action, pursuant
to Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(6)
and 12(c). For the reasons set forth below, defendant's motion
is granted in part and denied in part.
Plaintiff in this action is a New York corporation with its
principal place of business in the Southern District of New
York. Plaintiff is in the business of selling, at the wholesale
and retail level, various consumer items, in particular cameras
and camera equipment. Complaint ¶ 1. Defendant is a resident
and citizen of New Jersey. Complaint ¶ 2. Plaintiff alleges
that for several years, and at all times relevant to this
action, one Solomon Bornfreund ("Bornfreund") was employed by
plaintiff, engaged primarily in receiving merchandise in
plaintiff's storeroom. Complaint ¶ 5. Commencing at a time
unknown to plaintiff, Bornfreund and defendant allegedly
entered into "a common plan, scheme, design and business
pursuant to which Bornfreund stole merchandise from plaintiff's
storeroom, removed it from plaintiff's premises, and sold it to
cash." Complaint ¶ 6. The complaint further alleges that
"defendant, knowing the merchandise had been stolen from
plaintiff, resold the merchandise at a profit," Complaint ¶ 6,
"transmitt[ing] the same in interstate commerce." Complaint ¶
15. The value of the merchandise said to have been stolen by
Bornfreund and subsequently purchased by defendant is alleged
to be in excess of $750,000. Complaint ¶ 7.
This action was filed on January 22, 1990. Defendant filed
his answer on March 5, 1990, and an amended answer on June 25,
1990. Defendant thereafter brought the instant motion to
1) Sufficiency of Plaintiff's Conversion Claim
Defendant first attacks the sufficiency of plaintiff's
conversion claim, arguing that plaintiff has failed to plead
with the particularity required by Fed.R.Civ.P. 9(b). Rule 9(b)
provides, in relevant part, that "[i]n all averments of fraud
or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity," and thus, by its own
terms, is explicitly limited to averments of fraud or mistake,
neither of which is found in plaintiff's conversion claim.
Accordingly, the Court will not apply the heightened
particularity standard of Rule 9(b) to plaintiff's conversion
claim, but rather the liberal standard applicable to a motion
brought pursuant to Fed.R.Civ.P. 12(b)(6).*fn1
"The court's function on a Rule 12(b)(6) motion is not to
weigh the evidence that might be presented at a trial but
merely to determine whether the complaint itself is legally
sufficient." Festa v. Local 3 International Brotherhood of
Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990); see also
Ryder Energy Distribution Corp. v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984) ("The function of a
motion to dismiss `is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof.'" (quoting Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980))).
Thus, a motion to dismiss must be denied "unless it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40
L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)); see also Morales v.
New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.
1988). In deciding a motion to dismiss, the Court must limit
its analysis to the four corners of the complaint, see Kopec v.
Coughlin, 922 F.2d 152, 155 (2d Cir. 1991), and must accept the
plaintiff's allegations of fact as true, together with such
reasonable inferences as may be drawn in his favor. Papasan v.
Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209
(1986); Murray v. Milford, 380 F.2d 468, 470 (2d Cir. 1967);
Hill v. Sullivan, 125 F.R.D. 86, 90 (S.D.N.Y. 1989) ("all
allegations in plaintiffs' amended complaint must be accepted
as true and liberally construed."); see also Scheuer, supra,
416 U.S. at 236, 94 S.Ct. at 1686. Federal Rule of Civil
Procedure 8(a) requires only a "`short and plain statement of
the claim' that will give the defendant fair notice of what
plaintiff's claim is and the ground upon which it rests."
Conley, supra, 355 U.S. at 47, 78 S.Ct. at 102
(quoting Fed.R.Civ.P. 8(a)).*fn2
Applying this standard to plaintiff's claim for conversion,
the Court finds that plaintiff has adequately pled that claim.
"Under New York law, to establish a conversion action, a
plaintiff must show legal ownership of, or a superior
possessory right in, the disputed property, and `that the
defendant exercised an unauthorized dominion over that
property, . . . to the exclusion of the plaintiff's rights.'"
Middle East Banking Co. v. State Street Bank International,
821 F.2d 897, 906 (2d Cir. 1987) (quoting Meese v. Miller,
79 A.D.2d 237, 242, 436 N.Y.S.2d 496, 500 (4th Dep't 1981)).
"Conversion does not require the defendant's wrongful intent .
. . [and a] rightful owner need only be deprived of his
property, partially or temporarily." Pittston Warehouse Corp.
v. American Motorists Insurance Co., 715 F. Supp. 1221, 1225
(S.D.N.Y. 1989) (citations omitted). In the case at bar,
plaintiff's allegations that defendant knowingly received
property stolen from plaintiff, and then resold that property
at a profit, sufficiently pleads a claim for conversion under
New York law. Defendant's motion to dismiss that claim is,
2) Sufficiency of Plaintiff's RICO Claim
Section 1964(c) of Title 18 United States Code provides a
civil remedy for "[a]ny person injured in his business or
property by reason of a violation of section 1962 of this
chapter. . . ." 18 U.S.C. § 1964(c). To state a claim for
violation of § 1962, 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 invests in, or maintains an interest in,
or 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), cert. denied,
465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); see also
Clapp v. Greene, 743 F. Supp. 273, 277 (S.D.N.Y. 1990) (quoting