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CADLE COMPANY v. ROCHFORT ENTERPRISES

United States District Court, Southern District of New York


March 31, 2003

THE CADLE COMPANY, PLAINTIFF,
v.
ROCHFORT ENTERPRISES (BAHAMAS) LIMITED, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge

ORDER

Defendants move to dismiss for lack of personal jurisdiction or, in the alternative, for failure to allege fraud with particularity as required by Fed.R.Civ.P. 9(b).

The personal jurisdiction motion raises issues of fact that cannot be resolved without an evidentiary hearing, at least given the present record. Defendant Salcman, for example, claims that he "did not and do[es] not conduct business in New York." Salcman Aff. at 4. In papers submitted in an action in California, however, he averred that he had conducted business in New York an average of two to four days per month over the then-preceding two years. While there may be some mismatch of time periods covered by the assertions here and in the California case, Salcman certainly has not shown the absence of a genuine issue of material fact. No showing of lack of personal jurisdiction of any kind has been made with respect to defendant Newhouse. And the determination of the existence of jurisdiction over Atead Consulting S.A. and Rochfort Enterprises (Bahamas) Limited would be inappropriate on this record.

Defendants' contention the complaint fails to allege fraud with the requisite particularity is well taken insofar as it is address to the first claim for relief, which depends upon wholly conclusory allegations of a series of transfers allegedly made with actual intent to hinder and defraud creditors. The complaint simply fails to set out the circumstances with particularity, much less a factual basis for inferring actual intent to defraud.

Accordingly, the motion to dismiss is granted to the extent that the first claim for relief is dismissed for failure to allege fraud with particularity and denied in all other respects. This ruling is without prejudice to the filing by plaintiff, on or before April 15, 2003, of an amended complaint (a) curing the pleading defect in the first claim for relief and, (b) if plaintiff is so advised, amplifying the jurisdictional allegations.

SO ORDERED.

20030331

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