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STRATAVEST LTD. v. ROGERS

June 8, 1995

STRATAVEST LTD., JOSEPH CERVIN and SUZANNE B. CHERVIN, Plaintiffs, against WALTER L. ROGERS, BASIL VASILIOU, BELGRAVE INVESTMENT TRUST N.V., ST. JEAN FINANCIAL, INC., VASILIOU & COMPANY, INC., CAMBRIDGE PHASE II CORP. and TRIANGLE ACQUISITION INC., Defendants.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 Defendants Walter L. Rogers ("Rogers"), Belgrave Investment Trust, N.V. ("BIT"), St. Jean Financial, Inc. ("St. Jean") and Cambridge Phase II Corp. ("Cambridge"). (collectively the "Rogers Defendants") and Defendants Basil Vasiliou ("Vasiliou") and Vasiliou & Company, Inc. ("VCI") (collectively the "Vasiliou Defendants") and Triangle Acquisition Inc. ("Triangle"), have moved for an order pursuant to Fed. R. Civ. P. 12(b)(6) dismissing the second, fourth, fifth, seventh and eighth causes of action alleged in the Amended Complaint on the grounds that until there has been an accounting they fail to state a claim upon which relief can be granted, and dismissing or remanding the remaining claims for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b) (1). For the reasons discussed below, the motion to dismiss the seventh claim brought under 18 U.S.C. ยง 1961 et seq. (hereinafter "RICO") is denied, and the motion to dismiss the second, fourth, and fifth and eighth claims is granted.

 Parties

 Plaintiff Stratavest Ltd. ("Stratavest") is a New York corporation with its place of business in Roslyn, New York. Plaintiff Joseph Chervin ("Joseph") is managing director of Stratavest. According to the Complaint, Plaintiff Suzanne B. Chervin ("Suzanne") caused Stratavest to be organized in September of 1992 for the purpose of participating in a joint venture with Defendants Rogers, BIT and St. Jean.

 BIT is a foreign corporation doing business in New York with an office at 500 Park Avenue, New York, New York.

 St. Jean is foreign corporation doing business in New York with a place of business at 500 Park Avenue New York, New York. The Complaint asserts that Rogers is a principal who manages its affairs and controls its activities.

 VCI is a New York Corporation with its place of business at 600 Madison Avenue, New York, New York and Vasiliou is a principal who manages its affairs and controls its activities.

 Cambridge is a foreign corporation doing business in New York which owns and operates an office in New York for Defendants Rogers, Vasiliou, VCI, and St. Jean.

 Prior Proceedings

 The Complaint in this action was originally filed in state court. It was removed to this Court by Defendants on December 29, 1994.

 The Complaint alleges that Plaintiffs were fraudulently induced to part with time, information, professional skills and overhead in consideration of a share in a joint venture with Defendants whose object was to engage in profitable investments and transactions identified and developed by Plaintiffs and funded by Defendants. Plaintiffs alleged that the venture agreement provided that the respective profit shares of the participants were to be agreed upon in each instance. Plaintiffs allege that they worked on and brought to the Defendants over 100 opportunities in six of which the Defendants placed funds. Defendants never agreed with Plaintiffs on their respective shares in the venture, paid Plaintiffs only $ 197,000 with respect to transactions involving many millions of dollars, took for themselves all of the assets of the venture, and refused to account to, communicate with or otherwise deal with Plaintiffs as participants in the venture.

 The Complaint which sets forth eight causes of action arising out of these facts seeks: 1) an accounting; 2) damages for breach of contract; 3) the imposition of a constructive trust upon the assets of the venture in the hands of the Defendants; 4) damages against the Defendants for their breach of their fiduciary duties to Plaintiffs; 5) damages against each of the Defendants for their respective participation in a breach of fiduciary duty; 6) a declaratory judgment that certain promissory notes signed by Plaintiffs totaling $ 195,000 are void and unenforceable; 7) treble damages and attorneys' fees under RICO, pleading that the various false statements made by the Defendants to the Plaintiffs were made through the mails and the international telephone and constituted mail fraud and wire fraud; and 8) damages from Defendant ...


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