United States District Court, E.D. New York
February 17, 2004.
HENRY W. MATHON, Plaintiff, -against- NEIL FELDSTEIN, VICTORIA LOMAX, DIANE HENSON, ARTHUR SALM, JAMES A. BRADLEY, ESQ., LESLIE LEVINE, ESQ., MARK S. REICH, ESQ., THE LAW FIRM OF ACKERMAN, LEVINE, CULLEN & BRICKMAN, LLP, WORLDWIDE AUTOMOTIVE, LLC, WORLDWIDE AUTOMOTIVE, LLC d/b/a NEIL HONDA & NEIL TOYOTA NEIL BUICK CORP., NEIL LINCOLN MERCURY CORP., "JOHN DOE" ONE, "JOHN DOE" TWO, "JOHN DOE" THREE, "JOHN DOE" FOUR, Jointly and Severally, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
Henry W. Mathon ("Mathon" or the "plaintiff"), proceeding pro se,
commenced this action alleging, among other things, that the defendants
violated 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt
Organizations Act ("RICO"). Presently before the Court is a motion to
dismiss the amended complaint by all of the defendants for failure to
state a claim pursuant to Federal Rules of Civil Procedure ("Fed.R. Civ.
P.") 12(b)(6). The defendants also request that the Court decline to
exercise supplemental jurisdiction causes of action over the remaining
causes of action which arise under state law pursuant to
28 U.S.C. § 1367(c)(3).
A. Factual Background
The facts are taken from the amended complaint and are taken as true
for the purposes of this motion.
From 1999 through 2000, Mathon was employed by Neil Feldstein
("Feldstein") and Arthur Salm ("Salm") in various capacities at
Feldstein's car dealerships. Sometime in the year 2000, Mathon resigned
from his employment due to "abuse" by "Feldstein and Salm's right hand
man." Am. Compl. ¶ 34.
In early 2001, while Mathon was employed elsewhere, Feldstein contacted
Mathon by phone and requested that Mathon return to working for him.
Mathon agreed to work as a used car manager at Feldstein's Honda
From mid-March, 2001 through the end of September, 2001, Mathon earned
gross profits for the used car department in excess of $2 million and
Mathon earned $90,000 in salary and commission. Despite his success,
Feldstein, Salm and Diane Henson ("Henson"), removed Mathon from the used
car department for reasons unknown to Mathon. Feldstein, Salm and Henson
replaced Mathon with other individuals and Mathon became a showroom
After subsequent conversations with Feldstein and Henson by phone and
in person, Mathon presented a plan relating to "Special Finance" in the
automotive industry that he had been working on for the past three years.
Feldstein and Mathon subsequently told Mathon to put together a business
plan for the "Special Finance Entity" in which Mathon would be a 40%
The plaintiff claims that he entered into a "valid oral contract" with
Feldstein, Henson and Salm by which the plaintiff would receive 40% and
Feldstein, Salm and Honda would receive 60% of the newly created "Special
Finance Entity." Feldstein represented by phone and in person that the
"Special Finance Entity" would be implemented into Toyota, Buick, and
Lincoln and would result in Mathon earning more than $500,000 per year.
On or about November 8, 2001, Mathon, on his own time, began developing a
business plan, advertising copy and layout, and a budget and estimate of
start up costs which he subsequently presented to Feldstein, Henson and
Honda on December 12, 2001.
During this time, the plaintiff was upset by some "rumblings" about
him, namely that "individuals who were under the control of the
enterprise a/k/a Feldstein, Salm, Henson, Lomax, Honda, Toyota, Buick,
Lincoln and John Does were using the wire to discredit [his] reputation."
Am. Compl. ¶ 51. Feldstein and Henson told Mathon to disregard what he
had heard and instead "put his efforts into a new business that would
benefit him as partner." Am. Compl. ¶ 53.
Feldstein and Honda agreed to the timing and directed Mathon to hire
employees to implement the "Special Finance Entity." The "Special Finance
Entity" produced gross sales in excess of $1 million with $120,000 in
gross profit by February, 2002. However, Lomax, Feldstein, Henson, Salm
and Honda took out 100% of the "expenses" out of the "Special Finance
Entity" instead of the 60% originally agreed. Am. Compl. ¶ 70.
In mid-February, 2002, Lomax presented Mathon with a promissory note
and threatened Mathon that if he did not sign the note, Mathon would not
receive 40% of the "Special Finance Entity." Am. Compl. ¶ 71. Lomax used
"coercion and constraint," Am. Compl. ¶ 72, and Feldstein used "undue
influence with persuasion, pressure and short of actual force, but
stronger than mere advice that so overpowered Mathon's free will," Am.
Compl. ¶ 73, to force Mathon sign the promissory note. The plaintiff
claims that Feldstein and Lomax used "extortion by obtaining . . . the
promissory note as it was induced by wrongful use of actual and threatened
force, and fear under color of official right." Am.
Compl. ¶ 77.
After coercing the plaintiff to sign the promissory note, the
defendants systematically "looked to push Mathon out from the profitable
[Special Finance] Entity," Compl. ¶ 79, by cutting the budget and
terminating key employees who were of "varied ethnicities, female and
age." Am. Compl. ¶ 82. The plaintiff was subsequently fired "[b]y wire."
Am. Compl. ¶ 84. Mathon wanted to "take action," Am. Compl. ¶ 86, but
was warned by various people that Feldstein would "destroy him," id., in
the automobile industry. Mathon indicates that he was also fearful of
Feldstein because Feldstein owned a firearm.
On or about June, 2002, Lomax demanded payment of the promissory note
by phone and mail. Mathon refused and maintained that he did not owe any
money to Feldstein.
In mid-October, 2002, Worldwide Automotive, LLC, d/b/a Neil Honda
served the plaintiff with a summons and complaint to collect on the
promissory note. See Worldwide Automotive, LLC d/b/a Neil Honda v.
Henry W. Mathon, Index No. 02/014206 (Sup.Ct. Nassau County 2002)
(J. Raab) (the "State Court Action"). That summons and complaint were
prepared by the defendant Ackerman, Levine, Cullen & Brickman, LLP
("ALC&B") and signed by James A. Bradley ("Bradley), an attorney with
Thereafter, Mathon spoke to Bradley and Levine, another attorney at
ALC&B, by telephone about settling the case. Mathon claims that
Bradley represented to and gave
Mathon the impression that such telephone conversations served as
an answer to the State Court Complaint. Because Mathon had not filed an
answer, Neil Honda entered a default judgment and Mathon was served with
a subpoena in aid of the enforcement of judgment. Mathon then moved by
order to show cause to vacate the judgment. Several court appearances
followed, where, outside the courtroom, Bradley allegedly threatened
Mathon about "what Feldstein was capable of." Compl. ¶ 115. Bradley
sent a letter to Justice Raab, who was then the presiding Justice,
requesting that he rule on Mathon's motion to vacate the default
judgment. Mathon immediately responded to Bradley's letter.
Mathon claims that "[b]y strong armed tactics and outright coercion,
threats, extortion and collection of an unlawful debt by the practices of
the employees and associates of the Enterprise through a pattern of
racketeering activities," Am. Compl. ¶ 122, the defendants have
failed and refused to honor any and all contracts with regard to the
"Special Finance Entity." Mathon further claims that the defendants'
pattern is "an effort to destroy Mathon at any cost." Am. Compl. ¶
The complaint sets forth eight causes of action, including the
following which arise under federal law: (1) civil RICO; (2) extortion
and (3) employment discrimination. Presently before the Court is the
defendants' motion to dismiss the above mentioned federal causes of
action pursuant to Rule 12(b)(6) for failure to state a claim. The
defendants also request that, pursuant to 28 U.S.C. § 1367(c)(3), the
Court declines to exercise
supplemental jurisdiction causes of action over the remaining causes of
action for breach of contract, ethical violations, emotional distress and
harassment, and "intentional interference with a prospective business
advantage" which purport to arise under state law.
A. The Standard
1. Rule 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the Court should dismiss the complaint only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his complaint which would entitle him to relief. King v. Simpson,
189 F.3d 284, 287 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d
Cir. 1996). The court must accept as true all of the factual allegations
set out in the complaint, draw inferences from those allegations in the
light most favorable to the plaintiff, and construe the complaint
liberally. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000)
(citing Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198,
202 (2d Cir. 1999)). The issue is not whether a 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
In addition, the Court must liberally interpret the complaint of a pro
se plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594
(1972); Williams v. Smith,
781 F.2d 319, 322 (2d Cir. 1986). Nevertheless, pro se status "does not
exempt a party from compliance with relevant rules of procedural and
substantive law." Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983)
B. Civil RICO
Under civil RICO, it is unlawful to participate in the conduct of an
enterprise's affairs through a pattern of racketeering or to conspire to
violate any of the substantive provisions of Section 1962. See
18 U.S.C. § 1962(c) &(d). 18 U.S.C. § 1964 creates a private right of
action for individuals to enforce the RICO statute. Under this section, a
plaintiff must prove an injury resulting from "(1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering activity." Sedima,
S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 491, 105 So. Ct. 3292 (1985);
see also Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229,
242 (2d Cir. 1999).
1. Pattern of Racketeering Activity
As stated above, a plaintiff must prove an injury resulting from, among
other things, "a pattern of racketeering activity." "Racketeering
activity" is defined as certain acts indictable under Federal law,
including the predicate mail and wire fraud, 18 U.S.C. § 1341, 1343, and
violations of the Hobbs Act, 18 U.S.C. § 1951. See 18 U.S.C. § 1961(1)(B).
These predicate acts must be crimes under state or federal law, United
States v. Angelilli, 660 F.2d 23 (2d Cir. 1981), cert. denied,
455 U.S. 910,
102 S.Ct. 1258, rehearing denied, 456 U.S. 939, 102 S.Ct. 1998 (1982); Mathon v.
Marine Midland Bank, N.A., 875 F. Supp. 986, 995 (E.D.N.Y. 1995).
To establish "a pattern of racketeering activity, "a plaintiff must
plead at least two predicate acts, show that the acts are related and that
they amount to, or pose a threat of, continuing criminal activity." H.J.
Inc. v. Northwestern Bell and Telephone Co., 492 U.S. 229, 239,
109 S.Ct. 2893 (1989); 18 U.S.C. § 1961(5) (A "pattern" requires at least two
acts of "racketeering activity" occurring within ten years of each
other.); United States v. Alkins, 925 F.2d 541, 551 (2d Cir. 1991)
(predicate acts must be related and amount to or pose a threat of
continued criminal activity). Thus, an allegation of two acts of
"racketeering activity," without more, is not sufficient to establish a
pattern. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. at 238-44,
109 S.Ct. 2893; United States v. Indelicato, 865 F.2d 1370, 1381 (2d
The plaintiff alleges the predicate acts of mail fraud, wire fraud, and
extortion. However, as set forth below, the plaintiff fails to properly
plead these predicate acts.
a. Mail and Wire Fraud
Claims of mail and wire fraud must comply with Fed.R.Civ.P. 9(b). This
rule provides that "[i]n all averments of fraud . . . the circumstances
constituting fraud . . . shall be stated with particularity. Malice,
intent, knowledge, and other conditions of mind of a person may be
averred generally." When the predicate acts of a civil RICO claim are
fraud, the concerns associated with pleading fraud with particularity
take on even greater importance. Plount v. Amer. Home Assur. Co.,
668 F. Supp. 204, 206 (S.D.N.Y. 1987). Accordingly, a claim of mail or
wire fraud must specify the content, date and place of any alleged
misrepresentation and the identity of the persons making them. Wexner v.
First Manhattan Co., 902 F.2d 169, 172-73 (2d Cir. 1990).
i. Mail Fraud
As stated above, allegations of mail fraud must be made with the
particularity required by Federal Rule of Civil Procedure 9(b). In
discussing the predicate act of mail fraud, the Second Circuit has stated
Pursuant to this higher pleading standard, the
"complaint must adequately specify the statements it
claims were false or misleading, give particulars as
to the respect in which the plaintiff contend the
statements were fraudulent, state when and where the
statements were made, and identify those responsible
for the statements." . . . Plaintiffs asserting mail
fraud must also identify the purpose of the mailing
within the defendant's fraudulent scheme.
McLaughlin v. Anderson, 962 F.2d 187
, 191 (2d Cir. 1992) (citations
The crux of mail fraud and wire fraud is "an intent to defraud." United
States v. Bouyea, 152 F.3d 192, 194 (2d Cir. 1998); U.S. v. Gabriel,
125 F.3d 89, 96 (2d Cir. 1997). To establish an intent to defraud, the
plaintiffs must adequately allege that the "defendants contemplated some
actual harm or injury to their victims. Only a showing of intended harm
will satisfy the element of fraudulent intent." United States v. Dinome,
86 F.3d 277, 283 (2d Cir. 1996).
The amended complaint alleges three acts by which mail was used: (1) In
June, 2002, Lomax sent a demand for payment on the promissory note; (2)
the summons and complaint for payment on the promissory note was sent by
mail; and (3) the ALC&B law firm sent a letter to Justice Raab requesting
that he rule on the plaintiff's order to show cause. Each of these
mailings are directed to the defendants desire to be paid on the
promissory note and relates to the State Court Action. In the Court's
view, none of these mailings constitute a fraudulent representation.
Moreover, the plaintiff fails to satisfy the heightened pleading
requirement set forth in Fed.R.Civ.P. 9(b) as the plaintiff fails to set
forth "the content of the items mailed and specify how each of the items
were false and misleading." Official Publications, Inc., v. Kable News
Co., 692 F. Supp. 239, 245 (S.D.N.Y. 1988) aff'd in part and rev'd in
part, 884 D.2d 664 (2d Cir. 1989).
Accordingly, the plaintiff fails to allege the predicate act of mail
fraud. ii. wire fraud
The elements of wire fraud are (1) a scheme to defraud and (2) use of
interstate wire communication to further that scheme. United States
v. Lemire, 720 F.2d 1327 (C.A.D.C. 1983) (noting that the requisite
elements of wire fraud 18 U.S.C. § 1343 are identical to those of
mail fraud 18 U.S.C. § 1341). To plead wire fraud with particularity
required by Fed.R.Civ.P. 9(b), the plaintiff must identify the number of
telephone calls that were made, the dates on which they were made, the
identity of the persons making them, and the nature of the alleged
misrepresentation. Quantel Corp. v. Niemuller, 777 F. Supp. 1361, 1369
(S.D.N.Y. 1991); see also Wexner v. First Manhattan Co., 902 F. D2 169,
172-73 (2d Cir. 1990).
With regard to the plaintiff's reliance on wire fraud as a predicate
criminal act, the amended complaint sets forth telephone conversations in
which: (1) Feldstein contacted Mathon to return to work at Feldstein's
car dealership; (2) the parties had conversations regarding the "Special
Finance Plan"; (3) the plaintiff's employment with Feldstein's car
dealership was terminated; (4) Lomax demanded payment on the promissory
note; and (5) the plaintiff spoke with Bradley and Levine about settling
the State Court case.
However, the plaintiff fails to identify the dates that these alleged
conversations take place, where the phone calls took place and that
during these phone calls, the defendants knowingly made false
representations to the plaintiff. In addition, where, as here "all
parties are New York residents, `all telephone calls are presumed to be
intrastate and, absent any indication otherwise, the predicate act of
wire fraud is not stated.'" Id. (quoting McCoy v. Goldberg,
748 F. Supp. 146, 154 (S.D.N.Y. 1990); see also DiFiore v. DiLorenzo, No.
91-420, 1997 WL 722697 at *4 (E.D.N.Y. Sept. 19, 1997); United States v.
Paredes, 950 F. Supp. 584, 587 n. 3 (S.D.N.Y. 1996). Invocation of the
wire fraud statute requires
an interstate telephone call. Bernstein v. Misk, 948 F. Supp. 228, 239
(E.D.N.Y. 1997). Because all of the defendants are New York residents,
and no interstate calls are alleged in the complaint, "it is unreasonable
to assume that interstate use of the wires occurred." Id. Therefore the
jurisdictional prerequisite has not been satisfied.
Given that any claims of fraud, including RICO claims based on mail and
wire fraud, must be plead with particularity under Rule 9(b), Center
Cadillac, Inc. v. Bank Leumi Trust Co. of New York, 808 F. Supp. 213,
228 (S.D.N.Y. 1992), Mathon's reliance on the predicate acts of mail
and wire fraud must fail.
A plaintiff claiming a Hobbs Act violation, 18 U.S.C. § 1951, as a
predicate act in a civil RICO claim must establish that the defendant
"obstruct[ed], delay[ed], or affect[ed] commerce or the movement of any
article or commodity in commerce, by . . . extortion or attempt[ed] or
conspire[d] so to do, or commit[ted] or threaten[ed] physical violence to
any person or property in furtherance of a plan or purpose to do [so]."
18 U.S.C. § 1951; see also McLaughlin v. Anderson, 962 F.2d 187 (2d Cir.
1992). To prove extortion under the Hobbs Act or New York law, Mathon has
to show "wrongful means and wrongful objective." See Andrea Doreen, Ltd.
v. Building Material Local Union 282, No. 98 Civ. 4838, 2004 WL 200157,
at * 17 (E.D.N.Y. Jan. 27, 2004); Viacom Int'l Inc. v. Icahn,
747 F. Supp. 205, 210 (S.D.N.Y. 1990); United States v. Enmons,
410 U.S. 396. 419 n.
16 (1973) (Extortion requires an intent to obtain that which in justice
and equity the party is not entitled to receive.) (internal quotation
omitted)); see also New York Penal Law § 155.05(2)(e).
Mathon claims that Lomax presented Mathon with a promissory note and
threatened Mathon that if he did not sign the note, Mathon would not
receive 40% of the "Special Finance Entity." Am. Compl. ¶ 71. The
plaintiff further claims in conclusory language that Feldstein and Lomax
used "extortion by obtaining . . . the promissory note as it was induced
by wrongful use of actual and threatened force, and fear under color of
official right" Am. Compl. ¶ 77, and that through "extortion, "strong
armed tactics and outright coercion [and] threats," the defendants
refused to honor the contracts with regard to the "Special Finance
Entity." Am. Compl. ¶ 122.
Mathon's conclusory allegations concerning the conduct of Feldstein and
Lomax conduct with respect to the promissory note do not properly allege
the predicate act of extortion. Rather, Mathon's allegations seem to
demonstrate "hard bargaining" by Lomax and Feldstein. See Center
Cadillac, Inc. v. Bank Leumi Trust Co., 859 F. Supp. 97, 105 (S.D.N.Y.
1994), aff'd, 99 F.3d 401 (2d Cir. 1996) ("the use of economic fear as
leverage to drive a hard bargain in an ordinary commercial relationship
will not support a RICO claim based on extortion.").
The amended complaint fails to allege the date the alleged "extortion"
nature of the alleged threats and coercion, an effect on interstate
commerce, and the purpose of the defendants alleged actions. Zito v.
Leasecomm Corp., No. 02 Civ. 8074, 2003 WL 22251352, at *11 (S.D.N.Y.
Sept. 30, 2003).
Because the amended complaint fails to allege a "pattern of
racketeering activity," the plaintiff fails to set forth a cause of
action under civil RICO. See Agency Holding Corp. v. Malley-Duff &
Assoc., Inc., 483 U.S. 143, 154, 107 S.Ct. 2759 (1987) ("[T]he heart of
any RICO complaint is the allegation of a pattern of racketeering.").
Accordingly, the defendants' motion to dismiss the civil RICO cause of
action is granted.
In addition to the above mentioned alleged predicate acts of
extortion, see B(1)(b), the plaintiff also asserts a separate cause of
action for extortion under 18 U.S.C. § 871. Similarly, Mathon's cause of
action under 18 U.S.C. § 871 must also fail as "extortion is a federal
crime . . . [and] there is no federal statute creating a private civil
cause of action for extortion." Schwartz v. Adler, No. 84 Civ. 2891, 1985
WL 2188, at *4 (S.D.N.Y. July 29, 1985). Therefore, this cause of action
is also dismissed.
D. Employment Discrimination
In Count Eight of the amended complaint, the plaintiff alleges that the
defendants "in malicious, discriminatory actions violated Mathon's rights
secured by Federal Employment." Am Compl. ¶ 171. In particular, the
amended complaint also alleges that the defendants
terminated "key employees" who were of "varied ethnicities, female and
age." Compl. ¶ 82. Although an employment discrimination complaint need
not contain specific facts establishing a prima facie case under the
framework of McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973), see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122,
S.Ct. 992 (2002), "a complaint that contains only vague and conclusory
claims with no specific facts supporting the allegations may not give the
defendant fair notice of the claims against him and thus would not allow
the defendant to devise a competent defense." Hilska v. Jones,
217 F.R.D. 16, 21 (D.D.C. 2003) (citing Swierkiewicz, 534 U.S. at 514).
Thus, without more, these bare allegations cannot support a claim for
employment discrimination under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000(e) et seq. or any other federal or New
York State Statute. See Hilska, 217 F.R.D. at 21; Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988) (stating that "the principal function of
pleadings under the Federal Rules is to give the adverse party fair notice
of the claim asserted so as to enable him to answer and prepare for
trial." (citations omitted)); see also Fed.R.Civ.P. 8(a)(2) (requiring
that a complaint contain "a short and plain statement of the claim
showing that the pleader is entitled to relief. . . ."). Accordingly,
this cause of action is also dismissed.
E. New York State Law Causes of Action
The amended complaint includes New York State common law causes of
action for breach of contract, ethical violations, emotional distress and
harassment, and "intentional interference with a prospective business
advantage." Am. Compl. p. 25. Having dismissed all of the plaintiff's
federal claims, the Court declines to exercise supplemental jurisdiction
over the plaintiffs state law claims. See Arroyo v. City of New York, et
al., No. 99 Civ. 1458, 2003 WL 22211500, at * 3 (S.D.N.Y. Sept. 25, 2003)
(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130
F. Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure states that a party
shall be given leave to replead when justice so requires. Branum v.
Clark, 927 F.2d 698, 705 (2d Cir. 1991); see also Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (it is the usual
practice upon granting a motion to dismiss to allow leave to replead).
Leave to amend should be freely granted, "especially where dismissal of
the complaint [is] based on Rule 9(b)." Acito v. IMCERA Group, Inc.,
47 F.3d 47, 54-55 (2d Cir. 1995); Luce v. Edelstein, 802 F.2d 49, 56-57
(2d Cir. 1986) ("Complaints dismissed under Rule 9(b) are `almost always'
dismissed with leave to amend." (citation omitted)). Here, the plaintiff
already filed an amended complaint. However, because the amended
complaint was filed pursuant to Fed.R.Civ.P. 15(a) ("amendment as of
right"), the Court will grant the plaintiff leave to file a second
amended complaint to correct the above mentioned pleading
The Court notes with approval Judge Leisure's thoughtful comments in
Spier v. Erber, No. 89 Civ. 1657, at *10, n. 8 (S.D.N.Y. May 24,
It has become an all too common practice for litigants
granted leave to replead to make only minor changes in
the original complaint based on an overly restrictive
reading of the dismissing court's order, prompting a
second motion to dismiss. An amended complaint which
fails to replead with sufficient particularity after a
finding of lack of specificity may well be regarded by
the Court as a frivolous filing in violation of
Fed.R.Civ.P. 11. Conversely, a renewed Rule 9(b)
motion after an adequate and thorough repleading can
also be viewed as frivolous.
Based on the foregoing, it is hereby
ORDERED, that the defendants motion to dismiss the amended complaint is
granted in its entirety; and it is further
ORDERED, that the plaintiff is granted leave to file an amended
complaint within thirty days from the date of this order and that the
failure to file within this time period will render the dismissal of all
of the plaintiff's claims with prejudice, and it is further
ORDERED, that the Clerk of the Court is directed to serve a copy of
this Order on the plaintiff, Henry W. Mathon, by regular first class mail
and by certified mail, return receipt requested at the address Mathon
indicated on his amended complaint: 830 Anthony
Drive, Lindenhurst, New York 11757.
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