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METRO FURNITURE RENTAL, INC. v. ALESSI

August 14, 1991

METRO FURNITURE RENTAL, INC., PLAINTIFF,
v.
MICHAEL ALESSI, DAVID JACOBSON, BUCHBINDER STEIN TUNICK & PLATKIN, CHEMICAL BANK, AND JOHN DOES NO. 1-10, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

BACKGROUND

From January 1988 through July 1990 Alessi was president of Metro Furniture Rental, Inc. ("Metro"), a New York corporation. The complaint alleges that during this period Alessi conspired with David Jacobson ("Jacobson"), allegedly employed not as a teller, cashier or officer but as a vault manager at a Chemical Bank branch located in Forest Hills, Queens (Complaint ¶ 10), to defraud Metro of over $430,000. Alessi allegedly wrote hundreds of checks drawn on Metro's accounts at the Bank of New York and Manufacturer's Hanover Trust Company. As Metro's president, Alessi was an authorized signatory for these accounts. The checks were made payable to cash and to Alessi himself, Jacobson and other persons including fictitious parties. Plaintiff claims none of the checks represented actual obligations owed to the payees and that the proceeds of these checks were never paid to those persons. Over several years, Alessi allegedly hand-delivered checks at regular intervals to Jacobson at Chemical Bank. Jacobson is alleged to have given the messenger envelopes containing cash in return. Complaint ¶¶ 20-22.

The complaint also alleges that Alessi wrongfully charged Metro over $24,000 for the cost of a car and monthly parking expenses. Complaint ¶¶ 24-25.

Plaintiff further claims that Buchbinder, retained by Metro in January 1989 to audit Metro's management-prepared financial statements for 1988, negligently failed to detect Alessi's scheme, which at that time had resulted in the embezzlement of over $80,000. Plaintiff claims that as a result of Buchbinder's negligence, Alessi's scheme continued undetected until July 1990 allowing Alessi to embezzle an additional $350,000.

DISCUSSION

1.  Motion to Remand

In support of his motion to remand this action to state court, defendant Alessi claims he did not join in the removal petition filed by Buchbinder and never consented to the removal. The unanimous consent of all defendants in a multiparty case is normally a precondition to removal. See Nannuzzi v. King, 660 F. Supp. 1445, 1447 (S.D.N.Y. 1987). However, when a nonconsenting defendant seeks by motion to remand the action to state court due to a defect in the removal procedure, he must do so within 30 days of the filing of the notice of removal. 28 U.S.C. § 1447(c) (1988).

Buchbinder filed its notice of removal on November 15, 1990.*fn1 Alessi filed an answer on December 26, 1990 and filed his motion to remand on December 27, 1990. Because Alessi's motion to remand was brought more than 30 days after the notice of removal was filed, the motion to remand is denied as untimely.

2.  Motions to Dismiss

A complaint should not be dismissed under Rule 12(b)(6) for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).*fn2

a.  RICO (Count I)

Plaintiff's RICO claim suffers from a number of deficiencies. The claim rests on predicate acts of mail and wire ...


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