United States District Court, S.D. New York
JOSEPH EBIN, YERUCHUM JENKINS, individually and on behalf of all others similarly situated, Plaintiffs,
KANGADIS FAMILY MANAGEMENT LLC, ARISTIDIS KANGADIS, ANDROMAHI KANGADIS, and THEMIS KANGADIS, Defendants
For Joseph Ebin, individually and on behalf of all others similarly situated, Yeruchum Jenkins, individually and on behalf of all others similarly situated, Plaintiffs: Joseph Ignatius Marchese, Neal Jamison Deckant, Scott A. Bursor, Yitzchak Kopel, Bursor & Fisher, P.A., New York, NY.
For Kangadis Family Management LLC, Aristidis Kangadis also known as Mr. Aris, Andromahi Kangadis, also known as Mrs. Mahi, Themis Kangadis, Defendant: John Evans Jureller, LEAD ATTORNEY, Klestadt & Winters, LLP, New York, NY; George J. Krueger, Fox Rothschild LLP (PA), Philadelphia, PA; Ryan Thomas Becker, Fox Rothschild LLP, Warrington, PA.
JED S. RAKOFF, United States District Judge.
Plaintiffs Joseph Ebin and Yeruchum Jenkins bring this putative consumer class action against defendants Kangadis Family Management LLC, Aristidis Kangadis, Andromahi Kangadis, and Themis Kangadis, asserting six causes of action relating to the alleged practice of selling containers of Capatriti-brand " 100% Pure Olive Oil" tat actually contain a substance known as " olive-pomace oil." The six claims are (1) breach of express warranty under New Jersey law, (2) breach of implied warranty of merchantability under New Jersey law, (3) deceptive acts or practices under New York General Business Law (" NYGBL" ) § 349, (4) violation of the New Jersey Consumer Fraud Act (" NJCFA" ), (5) negligent misrepresentation, and (6) fraud. Each cause of action is asserted against Aristidis Kangadis and Themis Kangadis individually on a theory of direct liability for their personal actions, and against all defendants through veil piercing and alter ego theories. The applicable complaint asserting these claims (the " Second Complaint" ) was filed after an earlier Complaint against the related entity, Kangadis Food Inc. (" KFI" ) was automatically stayed upon the entity's filing for bankruptcy on June 6, 2014. See In re Kangadis Food Inc., No. 14-72649 (REG) (Bankr. E.D.N.Y. filed June 6, 2014).
Defendants now seek to dismiss the Second Complaint, alleging that the bankruptcy stay precludes any veil piercing or alter ego claims in this court, that the state law of New York precludes any veil piercing or alter ego claims in this court, and that the direct claims against Themis and Aristidis Kangadis are insufficiently pled. Plaintiffs, for their part, not only oppose the motion but also now move to certify a nationwide class of all persons in the United States who purchased Capatriti 100% Pure Olive Oil packed before March 1, 2013, a subclass of Class Members who purchased in New York during the time period above, and a subclass of Class Members who purchased in New Jersey during the time
above. Defendants, in turn, oppose certification principally on the grounds of predominance and ascertainability. After full consideration of the parties' papers and oral arguments on both the motion to dismiss and the motion for class certification, the Court dismisses the direct claims against Themis and Aristidis Kangadis, holds that all claims against all defendants may go forth under the veil piercing and alter ego theories, and grants plaintiff's motion for class certification.
All the alleged misconduct in this case is ultimately grounded in the alleged misrepresentation made concerning the products sold by KFI. It follows that, barring exceptional circumstances not here present, there can be no individual liability for Aristidis Kangadis and Themis Kangadis except on an alter ego or veil piercing theory. At oral argument, plaintiffs conceded as much. See, e.g., Transcript dated 09/11/14 (" Tr." ) at 53-54. Thus, the claims of personal or direct liability of Aristidis Kangadis and Themis Kangadis must be dismissed. Furthermore, although defense counsel argued at oral argument that the veil piercing claim had not been sufficiently pled as a factual matter, Tr. at 32, this argument was noticeably absent from both their moving and reply papers, Tr. at 51, and thus is untimely and will not be considered by the Court.
Thus the critical question for this Court is whether anything in bankruptcy law or in New York State law precludes this case from proceeding, on veil piercing and alter ego theories of liability. With respect to New York State law, the courts of that state have held, in analogous contractual disputes where one of the parties to the contract was not joined in an action as a defendant, that failure to join did not warrant dismissal of the action against a third party on an alter-ego theory of liability. See, e.g., Baby Phat Holding Co., LLC v. Kellywood Co., 120 A.D.3d 428, 991 N.Y.S.2d 592, 2014 WL 4098533 at *1 (1st Dep't 2014). New York courts have held that this is especially true in instances where it has become difficult to proceed against the non-joined party because of, for example, dissolution rendering the party judgment proof. Id. Although the defendants point to ambiguous dicta in New York law stating
that an attempt " to pierce the corporate veil does not constitute a cause of action independent of that against the corporation," Morris v. New York State Dep't of Taxation and Finance, 82 N.Y.2d 135, 141, 623 N.E.2d 1157, 603 N.Y.S.2d 807 (1993), the case cited does not discuss whether an attempt to pierce the veil can be made without joining the underlying corporation, but rather whether sufficient domination and control has been shown, id. at 143, and thus is not relevant to the issue before this Court.
With respect to the bankruptcy stay, it is well established that stays pursuant to Section 362 " are generally limited to debtors and do not encompass non-bankrupt co-defendants." Gucci America, Inc. v. Duty Free Apparel, Ltd., 328 F.Supp.2d 439, 441 (S.D.N.Y. 2004); see, e.g., Teachers Ins. & Annuity Ass'n v. Butler, 803 F.2d 61, 65 (2d Cir. 1986). " Consistent with that guideline, courts in this Circuit have regularly refused to extend a debtor corporation's § 362(a) stay to its non-debtor officers and principals." Gucci America, Inc., 328 F.Supp.2d at 441; see also Gray v. Hirsch, 230 B.R. 239, 242 (S.D.N.Y. 1999). A non-debtor can claim the protection of a debtor's stay only in very unusual circumstances, where to do otherwise would immediately and necessarily deplete the assets of the debtor's estate. See, e.g., Queenie, Ltd. v. Nygard International, 321 F.3d 282, 287 (2d Cir. 2003) (" The automatic stay can apply to non-debtors, but normally does so only when a claim against the non-debtor will have an immediate adverse economic consequence for the debtor's estate." ). This is of no concern here, as the damages sought are entirely against the non-debtor defendants.
Defendant argues that at the August 16, 2014 bankruptcy hearing for KFI, the bankruptcy court stayed the veil piercing claims in this action by stating that " [t]o the extent [plaintiffs'] claims rely on piercing the corporate veil of the Debtor, the Class Action Plaintiffs are aware of the consequences as they have appear to have read, and have cited to this Court's In re Pitts decision in their brief." Declaration of John E. Jureller, Jr. dated 08/12/14 (" Jureller Decl." ), Exhibit (" Ex." ) F, at 13. However, In re Pitts holds merely that in the unusual circumstance that plaintiffs pierce the corporate veil of a non-debtor corporate defendant, such an action would have an immediate economic impact on the debtor defendant, triggering the automatic stay's application to the non-debtor corporate defendant. 2009 WL 4807615 at *8 (Bankr. E.D.N.Y. 2009). ...