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MCCORMACK INTL. CORP. v. VOHRA

July 21, 1994

McCORMACK INTERNATIONAL CORP., Plaintiff,
v.
SATINDER VOHRA, SUNIL VOHRA a/k/a "SUNNY" VOHRA, SUNIL BHASIN a/k/a "LUCKY" BHASIN, WALJI RAGHVANI, WILLIAM CAPPARELLI, THE SAROVA GROUP, EMPAT ENTERPRISES, INC., M.R.N. & S., INC., M.D. CONTRACTORS (N.Y.) CORP., SERVICE PLUS DEMOLITION, INC., OD&P, INC., 304 EAST 42ND STREET CORP., BANK OF TOKYO TRUST CO., HONG KONG BANK, LTD., and JAMES CAPEL BANKERS, LTD., Defendants.


Edelstein


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 This action was brought by plaintiff McCormack International Corp. pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968 (1988). Plaintiff's complaint also includes supplemental state law claims to foreclose a lien, impress a trust, and for conversion. Defendants Satinder Vohra, Sunil Vohra, *fn1" Sunil Bhasin, Walji Raghvani, the Sarova Group, Empat Enterprises, Inc., M.R.N. & S., Inc., and M.D. Contractors (N.Y.) Corp. move to dismiss the complaint, pursuant to Federal Rule of Civil Procedure ("Rule") 9(b) and Rule 12(b)(6), and also move for the imposition of sanctions, pursuant to Rule 11, 28 U.S.C. § 1927, and this Court's inherent power. Defendants Service Plus Demolition, Inc., and William Capparelli filed a separate motion to dismiss the complaint. These motions were referred to Magistrate Judge Leonard Bernikow for report and recommendation. In his Report and Recommendation, Magistrate Bernikow recommended that the motions to dismiss be granted and that the motion for the imposition of sanctions be denied. In a Supplemental Report and Recommendation, *fn2" Magistrate Bernikow recommended that leave to amend the complaint be denied. For the reasons discussed below, this Court adopts both the original and the supplemental Report and Recommendation in their entirety.

 BACKGROUND

 The following account of the background of this litigation is derived from the complaint, as well as the parties' motion papers. As noted below, defendants *fn3" dispute many of the facts alleged in the complaint. For the purpose of evaluating defendants' motions to dismiss this action, however, the Court treats the facts alleged in the complaint as true. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 112 S. Ct. 1561 (1992).

 This action arises out of a contract under which plaintiff McCormack International Corp. ("McCormack" or "plaintiff") acted as contractor for the renovation of the Tudor Hotel ("the Hotel"), located in Manhattan. McCormack is a construction contractor that was founded for the purpose of undertaking the Tudor Hotel renovations.

 Service Plus Demolition, Inc. ("Service Plus") is engaged in the business of demolition and waste removal. Plaintiff alleges that Service Plus is under the direction and control of defendant William Capparelli ("Capparelli"), whose son Carmine Capparelli is president of the company. OD&P, Inc. ("OD&P") is engaged in the business of general contracting and construction management, and is alleged to be also under the control of Capparelli. The complaint avers that Capparelli is a member of the Bonanno organized crime family who, either directly or through his associates, controls Service Plus and OD&P; the complaint refers to these three defendants collectively as the "Organized Crime Defendants."

 Defendants Bank of Tokyo Trust Co., Hong Kong Bank, Ltd., and James Capel Bankers, Ltd. are financial institutions that are either mortgagees of the Tudor Hotel or have a secured interest in the Hotel. These defendants have been dismissed by stipulation and are no longer involved in this action. 304 East 42nd Street Corp. is alleged to be the owner of the real property on which the Tudor Hotel is situated.

 In August 1989, defendant MRN&S purchased the net lease for the Tudor Hotel, while defendant Empat purchased the furniture, fixtures, equipment, and personalty of the Hotel. MRN&S then entered into an agreement with Empat whereby Empat was to manage the Hotel. The complaint alleges that, around this time, the Sarova defendants developed plans for an extensive renovation of the Hotel, and negotiated an agreement with plaintiff to have McCormack act as the prime contractor for those renovations. McCormack commenced work on the Hotel in August 1989.

 On or around May 9, 1990, McCormack signed a second agreement whereby M.D. Contractors became the general contractor and McCormack became a subcontractor on the renovations; the complaint alleges that this was a mere formality undertaken for "financing purposes" only, and that McCormack remained the real general contractor on the job.

 The original budget for the renovations was approximately nineteen million dollars. This subsequently was increased to approximately thirty-five million dollars as a result of requests by the Sarova defendants for additional renovations. Plaintiff avers that McCormack rendered full and timely performance of the renovation work and related services under the terms of the contract.

 According to the complaint, the Sarova defendants devised a scheme to replace McCormack as general contractor mid-way through the project and to bring in a substitute that could finish the job at a reduced cost. This scheme was allegedly implemented in two phases. During the first phase, of the series of checks issued over a period of several months by the Sarova defendants to cover installment payments due McCormack under the terms of the contract, six were returned for insufficient funds. The complaint alleges that the Sarova defendants intentionally provided McCormack with "bad checks" in order to induce McCormack to incur expenses that it would be unable to cover, forcing plaintiff to withdraw from the project. *fn4" The complaint further alleges that these checks were issued after McCormack had completed the bulk of the renovations, including work that required McCormack's special expertise, such that the Sarova defendants would receive the benefit of this work without having to pay for it.

 According to the complaint, when these initial attempts to induce McCormack to withdraw from the project proved unsuccessful, the Sarova defendants enlisted the aid of the Organized Crime Defendants to help force McCormack off the job. The complaint alleges that during this second phase of the Sarova defendants' alleged scheme, defendant Capparelli undertook a pattern of extortionate acts in order to intimidate McCormack employees and ultimately induce McCormack to withdraw from the Tudor Hotel renovations. It should be noted that Service Plus, represented by Capparelli, was originally hired by plaintiff to undertake certain demolition work at the Hotel, as well as to assist plaintiff in avoiding "labor troubles." Nonetheless, the complaint alleges, it was the Sarova defendants who subsequently enlisted the aid of Capparelli in furtherance of their alleged conspiracy.

 The complaint alleges that in February 1991, after repeated attempts to remove McCormack from the project through the issuance of bad checks, the Sarova defendants conspired with Capparelli to remove plaintiff from the job by means of threats, violence, and extortion and to substitute defendant OD&P as general contractor. *fn5" According to the complaint, Capparelli had made it known to both plaintiff and the Sarova defendants that he was a member of the Mafia. The Sarova defendants took advantage of Capparelli's particular "skills" to remove plaintiff from the project and invited Capparelli to engineer the substitution of his own company for McCormack.

 According to the complaint, Capparelli immediately commenced a campaign of terror. On March 24, 1991 Capparelli met with McCormack's president, Sean McCormack, and warned him that he, his son, and a fellow McCormack employee would be murdered if McCormack did not immediately withdraw as general contractor for the Tudor Hotel renovations. On March 29, 1994, Capparelli allegedly assaulted a McCormack employee at the Hotel and threatened him with death if he did not leave New York. Capparelli returned to the Hotel on April 5, 1994, and assaulted and/or threatened several McCormack employees in an effort to force McCormack off the job through intimidation of its employees. The complaint alleges that the Sarova defendants ignored plaintiff's requests for help in fending off Capparelli's forays, and instead kept Capparelli fully apprised of the financial details of the project.

 On April 8, 1991, during separate meetings with Capparelli and defendant Walji Raghvani, president of M.D. Contractors, Sean McCormack learned that the Sarova defendants had agreed with Capparelli that OD&P, under Capparelli's direction, would assume primary management of the Tudor Hotel renovations. Furthermore, McCormack was to be given no money to meet its commitments, and subcontractors were thereafter to be paid through OD&P, not McCormack. On April 12, 1991, plaintiff abandoned the project and undertook no further work on the Tudor Hotel renovations. This action ensued.

 DISCUSSION

 Two groups of defendants move, pursuant to Rule 12(b)(6), to dismiss plaintiff's claims. In evaluating a Rule 12(b)(6) motion, the Court looks to the four corners of the complaint and evaluates the legal feasibility of the allegations contained therein. See Cortec Indus., 949 F.2d at 47; Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). As the Second Circuit has stated, the Court's function "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." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); see Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 In evaluating whether a complaint will withstand a Rule 12(b)(6) motion, the Court must assume the truth of plaintiff's well-pleaded factual allegations. See Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). In addition, the Court will read the complaint "generously, and draw all reasonable inferences in favor of the pleader." Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); see LaBounty, 933 F.2d at 123 (allegations in complaint must be "construed favorably to the plaintiff"). The complaint cannot be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of this claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984) ...


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