The opinion of the court was delivered by: Glasser, United States District Judge:
On December 8, 2006, the Plaintiffs commenced an action against the Defendants by filing a 90-page Complaint containing 500 numbered paragraphs and 27 counts and references to 124 pages of exhibits. The Defendants, Amboy National Bank ("Amboy") and George Scharpf ("Scharpf") moved this Court for an Order dismissing the Complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. In a Memorandum and Order dated June 10, 2008, this Court granted that motion with leave to amend, coupled with the admonition that scrupulous attention be paid to Rule 8 at the risk of dismissal if it is not. A 14-page Amended Complaint was thereafter filed on June 27, 2008 containing 93 numbered paragraphs with an attached RICO Case Statement of 26 pages.
The Amended Complaint alleges eight causes of action. The first and second allege RICO violations on behalf of Infanti International, Inc. (the "Corporation") and Vittorio Infanti ("Infanti" or "plaintiff") individually, respectively; the third and fourth allege interference with contract on behalf of the Corporation and Infanti, respectively; the fifth and sixth allege breach of fiduciary duty to the Corporation and Infanti, respectively; the seventh and eighth allege negligence by the Board of Directors of Amboy National Bank (the "Amboy Board") on behalf of the Corporation and Infanti, respectively. On August 14, 2009, the Corporation stipulated to the dismissal of all its claims against all of the defendants. Stip. Of Dismissal (Dkt. No. 41). Surviving, therefore, are Infanti's second, fourth, sixth, and eighth causes of action.
The Amended Complaint, although considerably shorter than the original version, is still far from the "short and plain" statement Rule 8 requires. The pared-down version is unredeemed by a motion for partial summary judgment filed by Infanti, individually, on his sixth cause of action, consisting of a 75-page Memorandum of Points and Authorities and 78 pages of exhibits. Pl.'s Mot. for Partial Summ. J. (Dkt. No. 43). The motions pending before the Court are motions for summary judgment on behalf of all the defendants, except Elizabeth Kavlakian, and Infanti's motion for partial summary judgment.
The precursor of this case was commenced more than 23 years ago by George Gasser and the Gasser Chair Company against Vittorio Infanti and the Infanti Chair Company. That action resulted in a judgment in excess of 15 million dollars against Infanti and his company for trade dress infringement. That judgment was sought to be assiduously undermined and evaded by Infanti and the Company, who were joined in that tenacious endeavor by George Scharpf and others, giving rise to litigation which spanned fifteen years. That case, Gasser v. Infanti, et. al, 03 Civ. 6413, is documented in a docket sheet of 486 entries and, even now, is pending before the Second Circuit Court of Appeals. The backdrop for this action, pieces of which are referenced in the Amended Complaint, can be fully understood by reading just two of the many opinions written in that case, which can be found referenced in 2008 WL 2323367 (E.D.N.Y. June 2, 2008) and 2011 WL 2183549 (E.D.N.Y. June 3, 2011).
Reduced to its essence, this Complaint alleges a violation of 18 U.S.C. §§ 1962(a)-(d) and 1964. The RICO claim is based upon alleged predicate acts of wire fraud and mail fraud. As near as the Court can discern, the wire fraud predicate allegation is based upon a telephone call made in 1999 by Scharpf to Infanti, who was then in Argentina, inducing him to return to Staten Island by allegedly falsely representing that he, Scharpf, would return to Infanti the building and the chair manufacturing business, the Infanti Chair Company, he conducted there. This, Infanti alleges, was in furtherance of Scharpf's scheme to appropriate that business for himself. The mail fraud predicate is allegedly based upon an application for a Certificate of Incorporation mailed by Scharpf to the New Jersey Secretary of State in 2001. The alleged "fraud" is Scharpf's withholding from the Secretary of State that the corporation he formed would be the indispensable piece of his plan to deceive Infanti.
The interference with contract, the fourth cause of action -- again, as near as the Court can discern -- is alleged to be the prevention of the consummation of an oral agreement Infanti allegedly had with Gasser that would result in the satisfaction of the judgment against him held by Gasser. The sixth cause of action alleges a breach of fiduciary duty arising out of the "special relationship" between Infanti and Amboy National Bank and its officers. The eighth cause of action alleges the negligence of the Bank's Board of Directors in failing to exercise their duty of reasonable care to prevent Scharpf from causing the bank to aid and abet his fraudulent scheme. On August 18, 2008, Defendant George Scharpf filed a Counterclaim against Infanti, seeking repayment of $1,355,000 of unpaid loans made to the Corporation and personally guaranteed by Infanti. Scharpf Def.'s Ans. and Countercl. (Dkt. No. 19). Neither party seeks summary judgment as to the counterclaim.
The irony of this lawsuit, as a reading of the two opinions of this Court in Gasser v. Infanti will reveal in detail, is that Infanti was a willing and knowing conspirator together with Scharpf in dismantling, removing, and concealing essential pieces of machinery for the manufacture of chairs from the premises of the Company, thus excluding them from and sabotaging the public auction sale ordered by the Court. That machinery was subsequently restored to the premises, together with the entire inventory purchased at that sale by Scharpf, and the chair manufacturing business was once again operational. It was Infanti's candid and persuasively credible testimony that revealed that brazen hijacking of the Corporation by him and Scharpf, in the additional litigation compelled by that revelation. This lawsuit is the classic affirmation of an adaptation of the proverb that there is no honor among malefactors.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986). As an initial matter, the moving party has the burden of demonstrating that no genuine dispute of material fact exists for trial. Matsushita, 475 U.S. at 586. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The Court will also take judicial notice of judgments in the prior, related proceedings before this Court that involved the same parties. Joseph v. HDMJ Rest., Inc., 685 F. Supp. 2d 312, 315 (E.D.N.Y. 2009) ("Even if not incorporated in a complaint, the Court may take judicial notice of judgments entered in prior proceedings").
Once the moving party has met this burden, the opposing party "'must do more than simply show that there is some metaphysical doubt as to the material facts. . . .
[T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita, 475 U.S. at 586--87 (emphasis in original)). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed. R. Civ. P. 56(e).
The Court is compelled to draw all reasonable inferences in favor of the nonmoving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a reasonable jury could find in favor of the non-moving party. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "A court faced with cross-motions for summary judgment need not 'grant judgment as a matter of law for one side or the other,' but 'must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" U.S. ...