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Max Pincione v. Luciano D'alfonso

September 13, 2011

MAX PINCIONE, PLAINTIFF,
v.
LUCIANO D'ALFONSO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #: _________________

OPINION & ORDER

Plaintiff Max Pincione ("Pincione"), a New York resident, brings this action against nine individuals (Luciano D'Alfonso, Guiseppe Paolone, Guiliano Milia, Berardo Ambrosi, Dario Mancini, Claudio DiGiacomo, Angelo Renzetti, Stefano Caravaggio, and Andrea Iacone*fn1

("Individual Defendants"); Banca Caripe S.p.A. ("Banca Caripe"); and a soccer team's fan club ("Ultras") (collectively, "Defendants"), all of whom are residents and domiciles of Italy or Switzerland. Pincione asserts claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO") and various common-law claims, arising out of his investments and subsequent fraudulent ouster as a part-owner of the Italian football club, Pescara Calcio. He does not allege that any Defendant was physically present in New York, but rather that, individually and through agents, they transacted business in New York, committed torts within New York, and committed torts outside New York that they reasonably should have expected to, and did, cause injury in New York.

Defendants D'Alfonso, Paolone, Milia, Ambrosi, Mancini, and Banca Caripe, appearing specially for this purpose, move to dismiss under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction.*fn2 They argue, inter alia, that none of them lives, works, owns property, or transacts business in New York, and that all alleged torts and damages occurred in Italy.

Plaintiff asserts jurisdiction based principally on his conduct here in the United States, but personal jurisdiction over foreign defendants is determined by their conduct. Here, these defendants' conduct in the forum state is not sufficient for jurisdiction. Accordingly, Defendants' motions to dismiss are GRANTED.

BACKGROUND

I.Pincione's Investments in Pescara Calcio

Pincione is a businessman, investor, and former majority owner of Pescara Calcio, S.p.A., a club that competes among the B-level flight of Italian soccer ("Pescara Calcio" or "soccer club"). (Am. Compl. ¶¶ 1, 2, 91.) He claims that the Individual Defendants used the soccer club as a racket; and that when he became part owner and refused to participate in their schemes, they intentionally bankrupted the club to secure his ouster and devalue his investment in the club. The Individual Defendants all reside in Italy or Switzerland and, directly or indirectly, have participated in the soccer club's operations. (Id. ¶¶ 4-6, 8-9, 11.) Banca Caripe, a bank headquartered in Pescara, Italy, and Pescara Calcio's fan club, the Ultras, comprise the remainder of the Defendants. (Id. ¶¶ 7, 10.)

According to Pincione, in December 2006, he began speaking with nonparty Massimiliano Naddeo about purchasing an interest in Pescara Calcio. (Id. ¶ 33.) At that time, Pincione alleges that Naddeo was working on behalf of nonparty Massimo d'Ambrosio and defendant Renzetti, (id. ¶ 32), who eventually became a co-owner of Pescara Calcio. (Id. ¶ 4). Pincione contends that at the time Naddeo solicited his investment with Pescara Calcio, he was conspiring with the Defendants "in an ongoing enterprise [to] direct[] and conduct[] the affairs of the soccer club for their own personal and fraudulent gain." (Id. ¶ 30.)

From December 2006 through January 2007, Pincione fielded dozens of phone calls and emails from Naddeo and the Individual Defendants regarding his possible investment in the soccer club. (Id. ¶¶ 32-82.) For the most part, both sides conducted the negotiation from their respective countries. (Id.) In mid-January, Pincione told Renzetti that he was interested in buying a portion of the club. (Id. ¶ 45.) The next day, Renzetti's lawyer, Stefano Ilari, emailed Pincione a formal offer to buy at least twenty percent of an entity, Pescara 70, that the investors planned to form in order to purchase Pescara Calcio. (Id. ¶ 46.). In his email, Ilari also made certain representations about the soccer club's financial strength. (Id.) Later that month, Ilari emailed Pincione the soccer club's balance sheet ("January 2007 balance sheet"), which Pincione claims "fraudulently represented the revenues and value of the soccer club." (Id. ¶ 64.) The balance sheet, which showed revenues of 1,462,915 Euros as of December 31, 2006, (id. ¶ 67), was approved by defendants Paolone, Milia, and Ambrosi-members of the soccer club's board of auditors (Id. ¶ 65). Pincione further alleges that Renzetti instructed others to send him the balance sheet, knowing it was fraudulent. (Id. ¶ 66.)

A few weeks later, Pincione, relying upon the financial information in the January 2007 balance sheet, (id. ¶ 80), transferred 414,000 Euros from a New York bank account to an account controlled by Pescara 70. (Id. ¶ 81). This investment allowed Pescara 70 to purchase Pescara Calcio, in mid-February 2007, and gave Pincione a twenty percent stake in both. (Id. ¶¶ 81, 84).

He became the chairman of the board of directors, a position he carried out from New York via phone or video conference. (Id. ¶ 86).

Pincione claims that Pescara 70's partners, including Renzetti and defendant DiGiacomo, called a meeting that April, and threatened to "destroy" Pincione's interest in the soccer club unless he "bought out" the other partners. (Id. ¶ 87.) At a subsequent meeting, Pincione alleges, in order to intimidate him into buying them out, DiGiacomo "physically charged Pincione [and] pushed Pincione's wife down," after which Pincione's lawyer put DiGiacomo in a headlock to subdue him. (Id. ¶ 88.)

Around the same time, Pescara Calcio's accountant, nonparty Alessandro Felizzi, valued Renzetti's twenty percent share of the soccer club at 400,000 Euros-an amount Pincione claims is "absurd" because the club was 7,000,000 Euros in debt. (Id. ¶ 89.) Renzetti, unable to come up with more money to invest into the then-failing business, lost his interest in Pescara 70. (Id. ¶¶ 89-90.) "In fear of losing his half-million dollar investment," Pincione purchased 42.08 ...


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