The opinion of the court was delivered by: ROBERT W. SWEET
Defendants Stuart Becker and Stuart Becker & Co., P.C. (collectively "SBC") have moved to dismiss all claims in the Third Amended Complaint pursuant to Rules 12(b)(6) and 9(b), F.R.Civ.P. For the reasons given below, the motion is granted.
The Plaintiffs in this action and in its companion actions, Morin v. Trupin and Alberti v. Trupin, are investors in limited partnerships organized and offered by Barry Trupin ("Trupin") and companies controlled by him, particularly Rothschild Realty. Familiarity with the underlying disputes and principal parties in these actions is assumed. See, e.g., Ahmed v. Trupin, 781 F. Supp. 1017 (S.D.N.Y. 1992); Ahmed v. Trupin, 809 F. Supp. 1100 (S.D.N.Y. 1993); Morin v. Trupin, 711 F. Supp. 97 (S.D.N.Y. 1989) (filed April 13, 1989); Morin v. Trupin, 728 F. Supp. 952 (S.D.N.Y. 1989) (filed December 13, 1989); Morin v. Trupin, 738 F. Supp. 98 (S.D.N.Y. 1990) (filed May 4, 1990); Morin v. Trupin, 747 F. Supp. 1051 (S.D.N.Y. 1990) (filed September 29, 1990); Morin v. Trupin, 778 F. Supp. 711 (S.D.N.Y. 1991) (filed November 18, 1991); and Morin v. Trupin, 799 F. Supp. 342 (S.D.N.Y. 1992) (filed July 28, 1992). The plaintiffs in Aquino are represented by different counsel, but the underlying substantive claims are essentially the same as in Morin and Alberti.
The Aquino action, originally filed on November 16, 1989 under the caption Ahmed v. Trupin, concerns interests in Sarasota Plaza Associates ("Sarasota Associates"), a limited partnership organized under the laws of New York, and in a series of interlocking real estate partnerships organized under the laws of Florida.
Defendants the Rothschild Group consist of companies and limited partnerships allegedly controlled by Trupin, including Rothschild Registry International, Inc., Rothschild Reserve International, and RRI Realty Corporation. Defendants also alleged to be controlled by Trupin include Tru Management Corp., a Delaware corporation with its principal place of business in Florida and North American Associates ("North American"), a New York limited partnership.
SBC is a New York corporation which served as accountants for the Sarasota Associates and had served as accountants for at least three other Trupin-controlled limited partnership syndications, all offered in 1984 and structured in the same fashion as the partnership syndications at issue here.
The original complaint in Aquino was filed November 16, 1989, under the caption Ahmed v. Trupin.1 Certain defendants' motions to dismiss for failure to plead fraud with particularity were granted twice, on January 9, 1992, and January 7, 1993. On March 8, 1993, this Court reinstated plaintiffs whose securities fraud claims had expired due to the retroactive effect of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 115 L. Ed. 2d 321, 111 S. Ct. 2773 (1991), and the Third Amended Complaint was filed.
The plaintiffs have alleged six claims for relief in the Third Amended Complaint: violations of Section 10(b) of the 1934 Securities Exchange Act (15 U.S.C. § 78(j)(b)) against all defendants, the aiding and abetting of such violations against SBC, three counts under the Racketeering Influenced and Corrupt Organizations Act (18 U.S.C. § 1964)(a)-(d)) (RICO), one count of civil theft under Florida law, and a common-law claim for breach of fiduciary duty. SBC has moved again to dismiss the complaint against it for failure to plead the securities fraud claims with particularity.
SBC has moved to dismiss on two grounds: first, that the plaintiffs have not actually alleged that Zukoff was employed by SBC on or before the actual date of the Sarasota offerings, and second, that the Plaintiffs have not pleaded loss causation since the Plaintiff have not alleged that the promised tax benefits were not realized.
On a motion to dismiss, all of the factual allegations in a complaint are accepted as true, and all allegations must be considered in the light most favorable to the movant. Weiss v. Wittcoff, 966 F.2d 109, 112 (2d Cir. 1992). The facts below, therefore, are taken from the plaintiffs' complaint and do not represent factual findings by the Court.
Sarasota Associates offered interests in an office building referred to as the "United First Federal Plaza" (the "Property") through private placement memoranda dated September 18, 1984. The general partner in Sarasota Associates was Sarasota Management Corp., ("SMC"), a New York corporation with its principle place of business in New York City.
Three Florida limited partnerships known as Rothschild Realty Partners 118, Rothschild Realty Partners 119, and Rothschild Realty Partners 119M (the "118-119 Investor Partnerships") packaged different interests in commercial real estate among the partnerships, including interests in Sarasota Plaza Associates, which otherwise were structured precisely the same way. Limited partnership interests in the ...