by plaintiff. Indeed, recognizing that defendant had appeared in
numerous actions in the Liberian courts and even appeared as the
plaintiff in several of those actions, plaintiff had a
reasonable basis to believe that the Liberian courts were a
proper and acceptable forum for this dispute. Cf. Carnegie v.
Miller, No. 86 Civ. 8658(KMW), 1991 WL 221102, at *3 (S.D.N.Y.
Oct. 16, 1991) (reasoning that because "this case is based on
excusable ignorance, and . . . that all the litigants in this
case were party to this misunderstanding, this court finds it
appropriate to exercise it broad discretion under
Moreover, denial of plaintiffs Rule 60(b)(6) motion would
certainly work an undue hardship on plaintiff. Plaintiff has not
had an opportunity to have its underlying claims considered by
this Court. My March 31, 1999, order was limited solely to
plaintiffs motion for summary judgment to enforce the Liberian
judgment. I did not consider, nor did either party ask me to
consider, the claims underlying that decision. Thus, "[t]o allow
the judgment to stand would deny [plaintiff] the opportunity to
have its allegations tested under appropriate standards."
Faberge, Inc. v. Wyman, No. 82 Civ. 6915(JMC), 1987 WL 16279,
at *2 (S.D.N.Y. Feb. 25, 1987) (granting plaintiffs
Rule 60(b)(6) motion); cf. DeWeerth v. Baldinger, 38 F.3d 1266,
1272 (2d Cir. 1994) (reversing a district court's granting of a
60(b)(6) because it "inappropriately disturbed a final judgment
in a case that had been fully litigated and was long since
closed"); Petersen v. Valenzano, 803 F. Supp. 875, 877
(S.D.N.Y. 1992) (denying a 60(b)(6) motion because plaintiff was
repeating arguments that were previously before the court and
"given the full weight of consideration").
Accordingly, because of the extraordinary circumstances of
this case and the undue hardship that plaintiff would suffer,
plaintiffs motion to be relieved from this Court's March 31,
1999, judgment is granted.
B. Rule 15(a)
Rule 15(a) provides that pleadings may be amended "by leave of
court . . . ; and leave shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a); see also Manhattan Cable
Television, 824 F. Supp. at 36. Defendant argues that plaintiff
should not be granted leave to amend because the claims
contained therein are time-barred and do not "relate back" to
the original complaint, as set forth under Rule 15(c).
Specifically, defendant asserts that "Bridgeway's prior
pleadings fail to give sufficient notice of the facts essential
to its new claims of breach of contract, fraud and unjust
enrichment" — the claims that formed the basis of the Liberian
judgment. (Def. Opp. Mem., at 15).
Rule 15(c)(2) reads: "An amendment of a pleading relates back
to the date of the original pleading when . . . (2) the claim
. . . asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set
forth in the original pleading. . . ." Fed.R.Civ.P. 15(c)(2).
"[T]he rationale of Rule 15 . . . is, quite simply, to
ameliorate the effect of the statute of limitations." Siegel v.
Converters Transp., Inc., 714 F.2d 213, 216 (2d Cir. 1983).
Under Rule 15(c), "the essential inquiry in determining whether
the new allegations relate back is whether the defendant was
given adequate notice that such claims might be made upon
examining the facts alleged in the original pleading."
Ainbinder v. Kelleher, No. 92 Civ. 7315(SS), 1997 WL 420279,
at *9 (S.D.N.Y. July 25, 1997) (internal quotation and citation
Here, there is no doubt that defendant had "adequate notice"
that plaintiff might seek to recover the $186,376.66 it claims
defendant did not return. The original complaint, filed in this
Court in February 1998, sought the enforcement of the Liberian
judgment and was based on precisely the same "conduct,
transaction[s], [and] occurrence[s]" now raised in the amended
complaint. Although it did not delve into
the specifics of the claims underlying the Liberian judgement,
the original complaint provided a brief outline of them (see
Nevling Decl., A3-4, ¶¶ 4-9 (stating that plaintiff deposited
money in defendant's branch in Liberia, plaintiff demanded
return of the money, and defendant failed and refused to return
the money)), making clear that plaintiff sought recovery for all
money it deposited in defendant's branch in Liberia. Accord
Tiller v. Atlantic Coast Line R.R. Co., 323 U.S. 574, 581, 65
S.Ct. 421, 89 L.Ed. 465 (1945) ("There is no reason to apply a
statute of limitations when, as here, [defendant] has had notice
from the beginning that [plaintiff] was trying to enforce a
claim against it because of the [underlying] events. . . ."). To
allow defendant to interpose a statute of limitations defense,
on the theory that the underlying claims were not raised in the
original complaint, would ignore the fact that the parties fully
litigated these precise issues before the courts of Liberia, and
that the original complaint was based on the Liberian courts'
adjudication of these issues. See Siegel, 714 F.2d at 216.
That the original complaint did not specify the causes of
action under which plaintiff now seeks to recover its money does
not mean that defendant did not have sufficient notice that the
claims might be made. The Second Circuit has warned that,
"[w]hen a suit is filed in federal court under the Rules, the
defendant knows that the whole transaction described in it will
be fully sifted, by amendment if need be." Id. (quotation
omitted). The "gist of both the original suit and the amended
complaint" was the return of money that plaintiff had deposited
with defendant. Id.; see also White v. White Rose Food,
128 F.3d 110, 116 (2d Cir. 1997) ("Provided the amended pleading is
based on the same series of transactions and occurrences alleged
in the original pleading, the revised pleading will relate back
to the original pleading, even where the revised pleading
contains legal theories not included in the original.").
Accordingly, because defendant had sufficient notice of the
claims raised in plaintiff's amended complaint, the amended
complaint relates back to the original complaint and plaintiffs
motion to amend the complaint is granted.*fn3 I will now
consider the merits of plaintiffs claims.
II. Motion to Dismiss
Defendant moves to dismiss the amended complaint on four
grounds: (1) plaintiff's claims are time-barred by the
applicable statutes of limitations; (2) plaintiff failed to
state a claim for breach of contract; (3) plaintiff failed to
plead its fraud claim with particularity; and (4) plaintiff
failed to state a claim for unjust enrichment. The Court holds
that (1) the statutes of limitations should be equitably tolled;
(2) plaintiff has failed to plead fraud with particularity; (3)
plaintiff has stated a claim for breach of contract; and (4)
plaintiffs unjust enrichment claim survives solely as an
alternative to the breach of contract claim.
A. Legal Standard for Motion to Dismiss
In reviewing a motion to dismiss, I must accept the factual
allegations set forth in the complaint as true, and draw all
reasonable inferences in favor of the plaintiff. See Bernheim
v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). A complaint may not
be dismissed under Rule 12(b)(6) 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." Id. (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)). In other words, the issue before the Court on
these motions to dismiss "is not whether . . . plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Villager Pond., Inc. v. Town
of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (citation omitted).
On a motion to dismiss, while a court generally may not consider
documents that the plaintiff has neither attached to nor
incorporated by reference in the complaint in deciding a
Rule 12(b)(6) motion, "an exception to this aspect of Rule 12(b) has
developed, however, for documents submitted by defendants in
connection with a 12(b)(6) motion where: (1) plaintiffs have
undisputed notice of the contents of such documents; and (2)
such documents are integral to the plaintiffs' claim." R.H.
Damon & Co. v. Softkey Software Prods., Inc., 811 F. Supp. 986,
989 (S.D.N.Y. 1993) (citing Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991)).
B. Statute of Limitations
Defendant asserts that plaintiffs claims for breach of
contract, fraud, and unjust enrichment are all barred by the
statutes of limitations under both New York and Liberian law.
Given plaintiff's diligence and care in pursuing its claims
against defendant, and the circumstances surrounding this case,
the Court will equitably toll the limitations period.
The Second Circuit "has applied the doctrine [of equitable
tolling] as `a matter of fairness' where a plaintiff has been
`prevented in some extraordinary way from exercising his rights,
or has asserted his rights in the wrong forum.'" Johnson v.
Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (quoting Miller v.
International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir.
1985)). Equitable tolling permits a party to sue after the
passing of the statute of limitations if the party has acted
with reasonable care and diligence. See id. (citations
omitted); accord Irwin v. Department of Veterans Affairs,
498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ("We have
allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective
pleading during the statutory period.").
Here, plaintiff has certainly acted with reasonable care and
diligence in pursuing its claims against defendant. Plaintiff
first filed a petition for a declaratory judgment against
defendant on November 21, 1992. (Nevling Decl. A376). The trial
court rendered judgment in favor of defendant in August 1993.
Plaintiff appealed, and on July 28, 1995, the Supreme Court of
Liberia reversed the trial court and entered judgment for
plaintiff. Defendant then made a number of requests to the
Supreme Court of Liberia and the National Bank of Liberia to
avoid or satisfy the judgment. These efforts failed.
On October 20, 1997, plaintiff filed suit against defendant in
New York State Supreme Court, seeking to enforce the Liberian
judgment. Defendant removed the action on December 2, 1997, and
I granted summary judgment, sua sponte, for defendant on March
31, 1999. The Second Circuit affirmed on January 3, 2000, and
plaintiff filed its Rule 60(b)(6) motion on May 26, 2000. Thus,
since November 1992, both parties have actively pursued their
judicial remedies, litigating in two continents and appearing
before trial courts and appellate courts. Cf. Clymore v. United
States, 217 F.3d 370, 376 (5th Cir. 2000) (noting that
plaintiff "timely filed his motion in the wrong venue and then
promptly refiled it in the right venue after the statute of
limitations had run" and, thus, equitably tolling the
limitations period); Meyer v. Frank, 550 F.2d 726, 729 (2d
Cir. 1977) ("The plaintiffs conduct particularly his diligence
in pressing his claim . . . is taken into account.").
Moreover, as already discussed, enforcement of the statutes of
limitations would prevent plaintiff from having its day in
court. This Court has already refused to enforce the judgment
plaintiff received from the Liberian Supreme Court. The
Court declines to penalize plaintiff by denying plaintiff its
opportunity to be heard on the merits of its case against
defendant. Accord Wilson v. Marchington, 127 F.3d 805, 815 n.
10 (9th Cir. 1997) ("[E]quitable tolling would prevent the
assertion of a statute of limitations defense against
[plaintiff] based on the passage of time litigating in tribal
and federal court if [plaintiff] elects to refile her complaint
in state or federal court following remand."). Accordingly, the
statutes of limitations for plaintiffs claims of breach of
contract, fraud, and unjust enrichment are equitably tolled.
C. Plaintiff's Claims
Plaintiff alleges that it was:
induced to enter into its contract with [defendant],
and to deposit U.S. dollars in account No. B35677,
upon the representations of [defendant] that these
monies were to be repaid in U.S. dollars, and would
not have entered into this contract nor deposited
this money but for [defendant]'s fraudulent
withholding of the fact that it intended to repay the
amounts in local currency if that proved more
beneficial to [defendant].
(Am.Compl. ¶ 23). Defendant argues that plaintiff has failed to
satisfy the heightened pleading requirements of Rule 9(b) for
claims of fraud. I agree.
Rule 9(b) of the Federal Rules of Civil Procedure requires
that "[i]n all averments of fraud . . ., the circumstances
constituting fraud . . . shall be stated with particularity."
Fed.R.Civ.P. 9(b). To plead fraud with "particularity," the
amended complaint must: (1) specify the statements that
plaintiff contends were fraudulent; (2) identify the speaker;
(3) state where and when the statements were made; and (4)
explain why the statements were fraudulent. See Acito v. IMCERA
Group, Inc., 47 F.3d 47, 51 (2d Cir. 1995) (citations omitted).
Plaintiff must also allege facts that give rise to a strong
inference of fraudulent intent. Id. at 52; see also Shields
v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
Here, plaintiff has not satisfied any of these elements. (See
Am. Compl. ¶¶ 19-26).
The amended complaint does not specify what statements were
fraudulent. It does not allege who made the allegedly fraudulent
statements or who was involved in the allegedly fraudulent
conduct. There is no allegation of where or when the statements
were made, and plaintiff does not allege facts that give rise to
a strong inference of defendant's fraudulent intent.
Moreover, it is well settled under New York law that a
plaintiff cannot convert a breach of contract claim into a fraud
claim merely by adding "an allegation that defendant never
intended to uphold [its] end of the deal." Sudul v. Computer
Out-sourcing Services, Inc., 868 F. Supp. 59, 62 (S.D.N.Y.
1994). As Judge Martin explained in Sudul:
where a fraud claim arises out of the same facts as
plaintiffs breach of contract claim, with the
addition only of an allegation that defendant never
intended to perform the precise promises spelled out
in the contract between the parties, the fraud claim
is redundant and plaintiff's sole remedy is for
breach of contract.
Id. (citing New York cases).