The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is an action alleging violations of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961
et seq., with pendent claims for breach of contract,
accountant malpractice, breach of
fiduciary duty, fraud and conversion. The action, filed in
state court on October 26, 1990, was removed to this Court in
November 1990 by defendant Buchbinder Stein Tunick & Platkin
("Buchbinder"), an accounting firm, with the consent of
defendant Chemical Bank. Defendant Michael Alessi ("Alessi")
now moves to remand the action to state court. Chemical Bank
("Chemical") and Buchbinder move pursuant to Rules 9(b) and
12(b)(6) of the Federal Rules of Civil Procedure to dismiss the
complaint. For the reasons set forth below, Alessi's motion is
denied and Chemical's and Buchbinder's motions are granted in
part. The pendent claims are remanded sua sponte.
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 ¶¶
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.
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
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
Plaintiff's RICO claim suffers from a number of deficiencies.
The claim rests on predicate acts of mail and wire ...