The opinion of the court was delivered by: Garaufis, United States District Judge
Defendants EBI, Inc. ("EBI"), Tricia Yoo Matuszak ("Matuszak"), Yoo Chang Han Immigration Service ("YCH"), and Chang Han Yoo ("Yoo", collectively "Defendants") have moved to dismiss the Complaint brought by Plaintiff Yong Guo Jin ("Plaintiff") on the grounds that (1) subject matter jurisdiction is lacking pursuant to Fed. R. Civ. P. 12(b)(1); (2) the court lacks personal jurisdiction over Defendants under Fed. R. Civ. P. 12(b)(2); (3) YCH should be dismissed as a Defendant since it is not a legal entity that has the capacity to be sued; (4) there has been insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(4) and 12(b)(5); and (5) Plaintiff has failed to state a claim pursuant to Rule 12(b)(6). For the reasons set forth below, the Defendants' motion is GRANTED in part and DENIED in part.
As this is a motion to dismiss under Fed. R. Civ. P. 12(b), I recite the facts as set forth by Plaintiff in his Complaint and supporting documents.
In January 2002, Plaintiff asked Defendants whether they could help him adjust his immigration status to become a lawful permanent resident and obtain a lawful resident card ("green card"). (Compl. ¶¶ 11, 15.) Assured by Defendants that they could assist Plaintiff in securing a green card, Plaintiff signed a contract with Defendants on March 8, 2002 in which Defendants agreed to help Plaintiff obtain a green card in consideration for Plaintiff's payment to Defendants of $30,000 and some additional fees. (Id. ¶¶ 15, 16.) Plaintiff contends that he was induced into signing the contract by Defendants' misrepresentation that he could receive a green card despite the fact that changes in immigration law foreclosed his ability to receive a green card.*fn1 (Id. ¶ 15.)
Defendants filed the Immigrant Petition for Alien Worker ("Form I-140") on March 30, 2002 and an Application to Register Permanent Residence or Adjust Status ("Form I-485" or "I-485") on July 3, 2003 on Plaintiff's behalf. (Id. ¶ 17.) The I-485 application was denied by the government after Plaintiff paid a $1,305.00 filing fee for the application, which Plaintiff contends included a $1,000 filing penalty that should have put Defendants on notice that his application was futile. (Id. ¶¶ 17, 18.)
Plaintiff authorized Defendants to refile Form I-485 after Defendants told Plaintiff that the government had made a mistake. He again paid the $1,305.00 filing fee, and his application was again denied. (Id. ¶¶ 19, 20.) Plaintiff then asked Defendants for a refund of the fees he had paid and hired an attorney who sent a letter to Defendants on June 20, 2005 alleging that Defendants fraudulently induced Plaintiff to sign the contract and insisting that the fees be refunded to Plaintiff. (Id. ¶ 21.)
As a result of believing he had been cheated out of more than $30,000, Plaintiff became upset, sick and disabled, and continues to be unable to perform his regular job as a truck driver because he cannot concentrate and his hands shake continuously. (Id. ¶ 21, 22.) Plaintiff now suffers from depression, anxiety, insomnia, impotence, has attempted suicide, and he has lost his wife. (Id. ¶ 23.) Plaintiff has been diagnosed with adjustment disorder with mixed anxiety and depression, for which he is under medical treatment. (Id. ¶ 24, Ex. 10.) Plaintiff alleges that Defendants are liable for the amount he paid them and fees paid to file the immigration applications, and for his physical condition resulting from his mental distress. Plaintiff seeks compensatory, incidental, and punitive damages in the amount of $3,000,000.
Defendants move to dismiss Plaintiff's claims under Fed. R. Civ. P. 12(b)(1), (2), (4), (5), and (6). Some of these grounds are frivolous, but others require this court to dismiss the Plaintiff's complaint without prejudice to provide Plaintiff the opportunity to amend the complaint. This court shall first address to what extent each of Plaintiff's causes of action state a claim upon which relief can be granted under 12(b)(6). I shall then assess whether the surviving claim is subject to dismissal under 12(b)(1), (2), (4), and (5).
A. Legal Standard for Motion to Dismiss Under 12(b)(6)
Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) "is inappropriate unless it appears beyond doubt that the plaintiff can prove no sets of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). To survive a motion to dismiss, a complaint must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory. See Connolly v. Havens, 763 F. Supp. 6, 9 (S.D.N.Y. 1991). Although Fed. R. Civ. P. 8 requires only that a complaint contain a short and plain statement of the claim that will give the defendant fair notice of a plaintiff's claim and the ground upon which it rests, "the District Court has no obligation to create, unaided by plaintiff, new legal theories to support a complaint." Id. at 6 (quoting District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081-82 (D.C. Cir. 1984)).
In the instant case, Plaintiff states three causes of action. This court will consider each in turn.
1. Fraudulent Misrepresentation
To prove fraudulent representation under New York law, "a plaintiff must show that (1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance." Banque Arabe et Internationale D'Investissement v. Maryland Nat'l Bank, 57 F.3d 146, 153 (2d Cir. 1995). In cases that allege fraud by concealment, a plaintiff must also prove that the defendant had a duty to disclose the material information. Brass v. American Film Technologies, Inc., 987 F.2d 142, 152 (2d Cir. 1993); Gurnee v. Hasbrouck, 195 N.E. 683 (N.Y. 1935). Each element of a fraud claim must be ...