Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Patric Kilkenny v. Law Office of Cushner & Garvey

May 8, 2012


The opinion of the court was delivered by: Kenneth M. Karas, District Judge:


Patric Kilkenny ("Plaintiff), proceeding pro se, brings this action against the Law Office of Cushner & Garvey, LLP ("C&G"), Todd S. Cushner ("Cushner"), Tarrytown Management Group, Inc. ("TMG"), Lawrence A. Garvey ("Garvey"), and John Does #1 and 2 (collectively, "Defendants"), alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and New York Banking Law § 660 et seq. Defendants move to dismiss all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, Defendants' motion is granted in part and denied in part.

I. Background

A. Facts The Court assumes the following facts, as alleged in the Amended Complaint, to be true for purposes of this motion.*fn1 Plaintiff was hired by Cushner and Garvey to work for both C&G and TMG on February 6, 2006. (Am. Compl. ¶¶ 42-43.)*fn2 Plaintiff was hired to perform secretarial work, and his job responsibilities included "answering phones [60% of his work], filing, typing, cleaning, making coffee, drafting letters[,] and general office work." (Id. ¶¶ 43, 45.)*fn3 Plaintiff's work hours were Monday through Friday from 9:00 a.m. to 5:30 p.m., including a half-hour lunch break. (Id. ¶ 44.) Plaintiff alleges that he was required to work many hours of overtime starting from the time he commenced working for Defendants (February 2006) until the time his employment was terminated (October 2007), and that his overtime wages have been illegally withheld by Defendants in violation of the FLSA. (Id. ¶¶ 34-35, 46, 55-59.)

Plaintiff also alleges that he was aware of, or forced to participate in, a variety of racketeering activities in which Defendants were engaged. Specifically, Plaintiff alleges that: (1) he was repeatedly instructed to sign attorneys' names using their notary stamps on legal documents; (2) he was aware of Defendants' improper co-mingling of personal and client funds in C&G's Interest On Lawyers Account ("IOLA"); (3) he was instructed to alter legal documents at the behest of Cushner and Garvey; (4) Cushner and Garvey "implemented [their] various fraudulent schemes" by funneling money through C&G "into and through" TMG; (4) Cushner and Garvey made deposits and payments through TMG with funds from the IOLA in furtherance of their racketeering activities; and (5) Cushner and Garvey used IOLA funds to "transfer, deposit and otherwise manipulate funds for" transactions in furtherance of their racketeering activities. (Id. ¶¶ 47-48, 50, 52-54.)

B. Procedural History

Plaintiff filed the original Complaint on January 23, 2008. (Dkt. No. 1.) On June 2, 2008, Plaintiff filed his Amended Complaint. (Dkt. No. 12.) On September 10, 2008, Defendants filed a Notice of Motion indicating that they were seeking dismissal of a cause of action that had not been asserted by Plaintiff (Dkt. No. 14), and an Amended Notice of Motion correcting this error was filed on October 23, 2008, (Dkt. No. 18). Plaintiff thereafter sought dismissal of Defendants' motion for failure to comply with Fed. R. Civ. P. 7(b), but the Court excused Defendants' defective Notice of Motion and accepted their Amended Notice of Motion by Order dated April 30, 2009. (Dkt. No. 24.) Plaintiff requested that the Court dispense with oral argument on the Motion, and so the Court did not hold oral argument. (Mem. of Law in Opp'n to Defs.' Mot. to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) ("Pl.'s Mem.") 1.)

II. Discussion

A. Standard of Review

"On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor." Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) ("We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." (internal quotation marks omitted)). In adjudicating a Rule 12(b)(6) motion, a district court "'confines its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Meisel v. Grunberg, 651 F. Supp. 2d 98, 107 (S.D.N.Y. 2009) (alteration omitted) (quoting Leonard F. v. Isr. Disc. Bank of N.Y.,199 F.3d 99, 107 (2d Cir. 1999)). "The court may . . . consider matters of which judicial notice may be taken, even if the corresponding documents are not attached to or incorporated by reference in the complaint." Munno v. Town of Orangetown, 391 F. Supp. 2d 263, 268 (S.D.N.Y. 2005); see also Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (holding that district court properly took judicial notice of public documents filed with the SEC). However, a court should take judicial notice "to determine what statements [the documents] contain[] . . . not for the truth of the matters asserted." Kramer, 937 F.2d at 774.

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration, citations, and internal quotation marks omitted). Instead, the Supreme Court has emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level," id., and that "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563. A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. If a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" (alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))).

Finally, "[i]t is well-established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted). However, even a pro se party is not exempt from "compliance with relevant rules of procedural and substantive law." Id. at 477.

B. Analysis

1. FLSA ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.