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Gache v. Hill Realty Associates, LLC

United States District Court, S.D. New York

September 22, 2014

HILL REALTY ASSOCIATES, LLC, WINTERHILL REALTY, LLC, MICHAEL T. TOKARZ, individually, DAVID L. GOLDRICH, individually and as Manager of Hill Realty Associates, LLC, PHILLIP A. MARRACCINI, individually and in his capacity as Supervisor of the Town of Harrison, N.Y., RONALD B. BIANCHI, individually and in his capacity as Supervisor of the Town of Harrison, N.Y., STEPHEN MALFITANO, individually and in his capacity as Supervisor of the Town of Harrison, N.Y., JOHN DOES, I-X and JANE DOES, I-X, Defendants.

Peter D. Gache Beverly Hills, California Plaintiff Pro Se.

Eric Lewis Gordon, Esq., Keane & Beane, P.C., White Plains, New York, Counsel for Defendants Hill Realty, Winterhill Realty, Michael Tokarz and David Goldrich.

Steven Jay Harfenist, Esq., Friedman, Harfenist, Kraut & Perlstein, LLP, Lake Success, New York, Counsel for Defendants Phillip Marraccini, Ronald Bianchi and Stephen Malfitano.


CATHY SEIBEL, District Judge.

Before the Court are Defendants' Motions to Dismiss the Second Amended Complaint, (Docs. 29, 32), and Plaintiff's Motion to Withdraw the Reference to the Bankruptcy Court, (Doc. 47). For the reasons set forth below, Defendants' Motions are GRANTED and Plaintiff's Motion is DENIED.


For purposes of the instant Motions, I accept as true the facts, but not the conclusions, as set forth in the Second Amended Complaint ("SAC"). (Doc. 23.) In addition, because Plaintiff is pro se, I will - despite his lengthy litigation experience and obvious skill at and familiarity with legal matters - "interpret the factual allegations of [his] complaint to raise the strongest arguments that they suggest." Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (internal quotation marks omitted).

Plaintiff is a resident of Los Angeles, California. (SAC ¶ 1.) Hill Realty and Winterhill Realty are limited liability corporations organized under New York law. ( Id. ¶¶ 2-3.) Michael Tokarz is a principal in the entity that owns Hill Realty and Winterhill Realty, and is a New York resident. ( Id. ¶ 4.) David Goldrich is an attorney and the manager of Hill Realty, and is a Georgia resident. ( Id. ¶ 5.)[1] All of the other defendants are New York residents and were Supervisors of the Town of Harrison (the "Town") at various points between 1994 and 2008. ( Id. ¶¶ 6-8.)[2]

In August 1985, Plaintiff purchased 104 acres of vacant development land on Barnes Lane in Harrison, New York (the "Barnes Lane Lot"). ( Id. ¶¶ 12-13.) After Plaintiff purchased the Barnes Lane Lot, a landfill operated by the Town of Harrison was discovered on a portion of the property. ( Id. ¶¶ 16-17.) The presence of the landfill resulted in significant contamination and adversely affected Plaintiff's development plans for the property. ( Id. ¶ 17.) In September 1990, Plaintiff filed a lawsuit against the Town seeking damages and an order that the Town remove the landfill and remediate the resulting contamination. ( Id. ¶ 18.)

In July 1991, Plaintiff filed for Chapter 11 bankruptcy protection. ( Id. ¶ 21.) On August 1, 1995, the Bankruptcy Court involuntarily converted the Chapter 11 proceeding to a Chapter 7 proceeding and appointed a Chapter 7 trustee (the "Trustee"). ( Id. ¶ 24.)

On September 30, 1996, the Trustee and the Town settled the lawsuit Plaintiff had filed regarding the Town's contamination of the Barnes Lane Lot. ( Id. ¶ 25.) Among other things, the settlement required the Town to begin cleaning up the property by May 9, 1997 and to complete the remediation by May 8, 1998. ( Id. ¶¶ 26-34.) The settlement also required the Trustee to transfer title to a portion of the property to the Town. (Gordon Decl. Ex. C ¶ 4(b).)[3] On November 14, 1996, the Bankruptcy Court approved the settlement, (SAC ¶¶ 25-35), after which Plaintiff moved to have the Bankruptcy Court reject the settlement under Fed.R.Civ.P. 60(b), alleging that he uncovered evidence of fraud, ( see Gordon Decl. Ex. D ("4/1/97 Transcript"), at 7-22). On April 1, 1997, the Bankruptcy Court rejected Plaintiff's motion. ( Id. at 24.)[4]

Between March 1997 and December 1997, the Bankruptcy Court rejected several attempts to market and sell the property because the proffered sale prices were too low. ( See SAC ¶ 36.) The bids rejected by the Bankruptcy Court included a $4.7 million offer by the Town, ( see id. ¶ 37), that the Bankruptcy Court later described as "offensive to the court, " (Gordon Decl. Ex. K ("6/17/98 Transcript"), at 58). Plaintiff's appraiser, Eugene Albert, submitted multiple affidavits to the Bankruptcy Court asserting that the value of the Barnes Lane Lot after the cleanup would be at least $11.5 million. ( See id. Ex. E ¶¶ 10, 34; id. Ex. F ¶ 43; id. Ex. G ¶ 12; id. Ex. H ¶ 9.)

In April 1998, the Trustee noticed a sale hearing for the property. (SAC ¶ 44.) On May 22, 1998, the Bankruptcy Court held the Town in contempt for failing to complete the cleanup. ( Id. ¶ 47.) Also on May 22, 1998, the Bankruptcy Court denied Plaintiff's motion to compel enforcement of the settlement and to stay the Barnes Lane Lot auction until the Town completed the cleanup. ( See id. ¶¶ 47-48.)

On May 27, 1998, an auction sale for the property took place before the Bankruptcy Court. ( Id. ¶ 48.) Although the SAC states that "Hill Realty [was] the only bidder to show up, " ( id. ), the Bankruptcy Court transcript reveals that other potential bidders attended and at least one other bidder actively bid on the Barnes Lane Lot, ( see Gordon Decl. Ex. J ("5/27/98 Transcript"), at 11-19). Hill Realty offered the winning bid of $8.95 million. ( Id. at 19-23; SAC ¶ 48.)

On June 17, 1998, the Bankruptcy Court held a hearing at which it confirmed Hill Realty's bid. (SAC ¶ 50.) At the June 17, 1998 hearing, the Bankruptcy Court wanted to be sure "that there [was] no agreement between [the Hill Defendants] and the town of Harrison, " (6/17/98 Transcript 7), and Hill Realty's attorney, David Goldrich (who is a Defendant in this action), averred that there were no dealings between Hill Realty and the Town prior to Hill Realty's offer, ( id. at 7-8; SAC ¶ 59). The Bankruptcy Court then stated its reasons for confirming the sale. ( See 6/17/98 Transcript 59-66, 77-89.) In response to Plaintiff's argument that the sale price was depressed because the land was still contaminated and the buyer might have to sue the Town to get it cleaned up, the Bankruptcy Court noted that "it will retain jurisdiction to enforce its orders, " including its order that the Town "clean up the property." ( Id. at 59.) Because the land came with a court-enforceable guarantee that the Town would remediate it, the Bankruptcy Court found Plaintiff's argument that the sale price was depressed to be "spurious, salacious, [and] bogus." ( Id. ) The Bankruptcy Court found that $8.95 million was sufficient value for the property, because that price was 81% of Plaintiff's expert's valuation of the Barnes Lane Lot once remediated, and other courts had held 75% of a property's appraised value to be a sufficient bankruptcy auction price. ( See id. at 84-87.) Finally, the Bankruptcy Court denied Plaintiff's motion to stay the sale of the property pending appeal, reasoning that "Mr. Gache's argument that the purchase price was not adequate because the property was not cleaned up before it was sold shows no likely success on the merits." ( Id. at 84; see id. at 66, 67, 77-89.) The Bankruptcy Court, however, stated it would not sign the order confirming the sale until the next day, so that Plaintiff could petition the District Court for a stay. ( See id. at 91-92.) The Bankruptcy Court also rejected Plaintiff's argument that the Court should have investigated the auction process due to Plaintiff's suspicion of bid-rigging, stating, "There is no suggestion before this court that there was collusion between the bidders in the auction process." ( Id. at 78.) On June 18, 1998, the Bankruptcy Court entered an order confirming the sale to Hill Realty. (Gordon Decl. Ex. L.)

Following the Bankruptcy Court's approval of the sale, the Town began the cleanup process. (SAC ¶ 62.) On March 30, 1999, the Bankruptcy Court held a hearing at which Plaintiff sought another contempt order and damages against the Town based on his belief that the Town intentionally delayed its cleanup and failed to obey the Bankruptcy Court's May 22, 1998 contempt order. ( Id. ¶¶ 64-65.) In connection with the March 30, 1999 hearing, Jonathan Kraut, the Town's attorney, affirmed that the "clean up of the Property is substantially complete, " and that "the removal of all debris... was 99% complete, " (Gordon Decl. Ex. M ¶ 64; see SAC ¶ 68), and Mr. Goldrich affirmed that Hill Realty had been informed that the cleanup was "largely completed, " ( see Gordon Decl. Ex. N ¶ 5; id. Ex. O ¶ 7; SAC ¶ 67). At the hearing, the Bankruptcy Court denied Plaintiff's contempt motion and vacated the May 22, 1998 contempt order, because it found that the cleanup was "substantially completed, " and the Town had failed to abide only by the "purely ministerial aspects of the settlement." (Gordon Decl. Ex. P ("3/30/99 Transcript"), at 28-29, 31.) Also at this hearing, the Bankruptcy Court observed that "[t]he record is further fraught with Mr. Gache's bold-face [ sic ] assertions that the town acted in bad faith, '" ( id. at 29), and that through his contempt motion, Mr. Gache was, after exhausting all of his appeals, "trying to relitigate the sale of the property, " ( id. at 33).

On May 21, 1999, Plaintiff settled his bankruptcy case with the Trustee. (SAC ¶ 72.) The settlement provided for the validity of all court orders and judgments, including the 1996 settlement and the 1998 sale of the property to Hill Realty. ( Id. ) By the end of June 1999, all of Plaintiff's creditors were paid ("some by settlements negotiated with the Trustee for a partial disallowance of their claims"); Plaintiff received the cash surplus that remained in the bankruptcy estate; and Plaintiff's bankruptcy case was closed. ( Id. ¶ 74.)

On April 15, 2003, Hill Realty filed a motion to reopen the bankruptcy case, alleging that the Town had not yet completed the cleanup. (Gordon Decl. Ex. Q.) According to affidavits submitted in conjunction with the motion to reopen, the cleanup would have been complete by November 1998, "but for unforeseen circumstances, " ( id. Ex. R ¶ 51), such as fuel seepage from underground fuel storage tanks on an adjacent parcel of land, ( id. ¶ 52). On August 7, 2003, the Bankruptcy Court awarded Hill Realty $971, 000 in contractual damages. (SAC ¶ 80; Gordon Decl. Ex. U.) Plaintiff was unaware that his bankruptcy case had been reopened until a filing in this case was submitted on May 16, 2013. (SAC ¶ 76.)

On February 9, 2006, the Town approved the sale to Winterhill Realty, for $2.4 million, of a four-acre parcel of property that had previously been transferred by the Trustee to the Town pursuant to the September 1996 settlement. ( Id. ¶¶ 96-98.) Plaintiff alleges that this sale was in fact a payment by Hill Realty to the Town pursuant to a secret agreement entered into prior to the May 1998 auction, to compensate the Town for the cost of the cleanup of the landfill and as repayment of the contractual damages paid by the Town to Hill Realty in 2003. ( See id. ¶¶ 99, 152, 157.) Pursuant to the secret deal, Plaintiff alleges the price at which Hill Realty purchased the Barnes Lane Lot was lower than it otherwise would have been because Hill Realty deducted the anticipated cleanup expense from the sale price. ( Id. ¶¶ 120-121, 136.) Under Plaintiff's theory, Mr. Goldrich and others lied to the Bankruptcy Court when they averred that there was no deal between Hill Realty and the Town prior to the May 27, 1998 Bankruptcy Court auction. ( Id. ¶¶ 128-132.) Had Mr. Goldrich not made these assertions, the Bankruptcy Court would not have approved the sale and the sale would have been postponed until after the Town completed the cleanup, which would have resulted in a higher price for the Barnes Lane Lot. ( Id. ¶¶ 137, 139-143, 145-146.)

Plaintiff now brings two claims, each of which relates to Defendants' purportedly fraudulent conduct during the bankruptcy proceedings. The first cause of action is a Rule 60 motion, asserting that Defendants' conduct constituted a fraud on the Bankruptcy Court that requires this Court to vacate the Bankruptcy Court's orders approving the sale of the property and dismissing Plaintiff's contempt motion. ( See id. ¶¶ 173-176.) The second claim is for common law fraud and alleges that Defendants' conduct during the bankruptcy proceedings deprived Plaintiff of receiving the fair value for the Barnes Lane Lot and contempt sanctions against the Town. ( See id. ¶¶ 177-181.) Plaintiff demands $41.2 million in compensatory and punitive damages for the second claim. ( See id. ¶ 181.)

Plaintiff claims that he did not bring this action until March 12, 2013 because he could not have discovered the 2006 transaction between the Town and Winterhill Realty (which was approved at a Town board meeting eight years after Plaintiff left New York), or the pre-existing collusion between the Hill Defendants and the Town, until he read an article on June 5, 2011. ( Id. ¶¶ 92-93, 104.) Plaintiff contends he found the article, which was posted on May 24, 2011, "during a random Internet search of his name." ( Id. ¶¶ 92-93.) Plaintiff's name was mentioned in the comments section. ( Id. ) The article does not mention the 2006 transaction between the Town and Winterhill Realty, nor do the comments, ( see Gordon Decl. Ex. V), but they still prompted Plaintiff to "start[] investigat[ing] circumstances surrounding the Town's actions after his settlement in 1999, " (SAC ¶ 95).

All Defendants moved to dismiss the SAC, arguing that this Court lacks jurisdiction, the claims are not sufficiently pleaded under Fed.R.Civ.P. 8(c) and 9(b), and the claims are barred by res judicata, issue preclusion and the relevant statutes of limitations. ( See Hill Ds' Mem. 9-30; Town Ds' Mem. 13-25.)[5] Plaintiff opposed Defendants' motions and cross-moved to withdraw the reference to the Bankruptcy Court. ( See P's Mem. 15-34.)[6]


A. Legal Standard for Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)

"A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause' pressed in the complaint." Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (quoting Sinochem Int'l Co. v. Malay Int'l Shipping Corp., 549 U.S. 422, 425 (2007)), rev'd en banc on other grounds, 585 F.3d 559 (2d Cir. 2009). "Determining the existence of subject matter jurisdiction is a threshold inquiry, and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.'" Id. (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). "When jurisdiction is challenged, the plaintiff bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists, and the district court may examine evidence outside of the pleadings to make this determination." Id. (internal quotation marks and citations omitted); see Rajamin v. Deutsche Bank Nat'l Trust Co., 757 F.3d 79, 84 (2d Cir. 2014) ("The plaintiff bears the burden of establishing [] standing.").

B. Standing

"The doctrine of standing asks whether a litigant is entitled to have a federal court resolve his grievance. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.'" Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, Nat'l Ass'n, 747 F.3d 44, 48 (2d Cir. 2014) (quoting Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004)). "The prudential standing rule... normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.'" Rajamin, 757 F.3d at 86 (quoting Warth v. Seldin, 422 U.S. 490, 509 (1975)).[7] Rather, the "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Id. (quoting Warth, 422 U.S. at 499). A court need not consider both constitutional standing and prudential standing if it concludes the plaintiff does not have prudential standing. See Hillside Metro., 747 F.3d at 48.

Unless property of a bankruptcy estate is administered by the bankruptcy trustee or abandoned in one of the ways outlined in 11 U.S.C. § 554, it remains property of the bankruptcy estate even after the bankruptcy case is closed. 11 U.S.C. § 554(d) ("Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate."); see Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116, 122 (2d Cir. 2008) (per curiam); Neely v. RMS Residential Mortg. Solution, L.L.C., No. 12-CV-1523, 2013 WL 752636, at *5 (E.D.N.Y. Feb. 26, 2013); Kotbi v. Hilton Worldwide, Inc., No. 11-CV-3550, 2012 WL 914951, at *3 (S.D.N.Y. Mar. 19, 2012); EDP Med. Computer Sys., Inc. v. United States, No. 03-CV-3619, 2005 WL 3117433, at *4 (E.D.N.Y. Nov. 22, 2005), aff'd on other grounds, 480 F.3d 621 (2d Cir. 2007); Tilley v. Anixter Inc., 332 B.R. 501, 508 (D. Conn. 2005); Rosenshein v. Kleban, 918 F.Supp. 98, 102-03 (S.D.N.Y. 1996); see also In re Lopez, 283 B.R. 22, 31 (B.A.P. 9th Cir. 2002) (estate property that is not abandoned in line with § 554 "remains property of the estate forever (until administered or formally abandoned by the trustee)") (Klein, Bankr. J., concurring).[8] Because only the bankruptcy trustee can bring a cause of action on behalf of a bankruptcy estate, In re Arana, 456 B.R. 161, 169 (Bankr. E.D.N.Y. 2011) (citing 11 U.S.C. §§ 323, 704), a debtor does not have standing to bring a claim that was property of the bankruptcy estate and was not abandoned or administered by the bankruptcy trustee, Chartschlaa, 538 F.3d at 123; Neely, 2013 WL 752636, at *5; Kotbi, 2012 WL 914951, at *3; EDP Med., 2005 WL 3117433, at *4-5; Tilley, 332 B.R. at 508-11; Rosenshein, 918 F.Supp. at 103. This applies even if a trustee believes a claim lacks merit. See Chartschlaa, 538 F.3d at 124 ("Absent an unambiguous intent to abandon estate property, the proposed abandonment is not effective.").

1. Bankruptcy Estate Property

After an individual files for bankruptcy, "the property of the [bankruptcy] estate is distinct from the property of the debtor." Bell v. Bell ( In re Bell ), 225 F.3d 203, 215 (2d Cir. 2000). Estate property includes, with exceptions not relevant here, "all legal or equitable interests of the debtor in property as of the commencement of the case, " 11 U.S.C. § 541(a)(1), as well as all "[p]roceeds, product, offspring, rents, or profits of or from property of the estate, " id. § 541(a)(6), and "[a]ny interest in property that the estate acquires after the commencement of the case, " id. § 541(a)(7). It is "well-established that property' under [§ 541] includes, as here, a civil lawsuit for damages." EDP Med., 2005 WL 3117433, at *4 (citing Seward v. Devine, 888 F.2d 957, 963 (2d Cir. 1989)). Property acquired after the bankruptcy case commences "will vest in the estate if it is derived from property that was part of the estate as of the commencement of the bankruptcy." Chartschlaa, 538 F.3d at 122; see Neely, 2013 WL 752636, at *8 ("A postpetition claim belongs to the estate if it is sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupts' ability to make an unencumbered fresh start.'") (quoting Segal v. Rochelle, 382 U.S. 375, 380 (1966)).

Plaintiff's claims - for fraud surrounding the sale of the Barnes Lane Lot and fraud during the March 30, 1999 contempt hearing - are property of his bankruptcy estate.[9] The Barnes Lane Lot became estate property when Plaintiff filed his bankruptcy petition. See 11 U.S.C. § 541(a)(1). One of Plaintiff's claims is, in essence, that the price Hill Realty paid for the Barnes Lane Lot was reduced by collusion between Hill Realty and the Town before and during the May 27, 1998 Bankruptcy Court auction. Because this claim derives from the process of selling the Barnes Lane Lot (which was estate property), relates to the proceeds or profits from that property, and accrued before the bankruptcy case was closed, the claim became estate property. See 11 U.S.C. §§ 541(a)(6), (7); In re Acton Foodservices Corp., 39 B.R. 70, 72 (Bankr. D. Mass. 1984) (fraud cause of action arising from post-petition sale of asset that belonged to estate was estate property); see also Chartschlaa, 538 F.3d at 123 (claims that arose from pre-filing property were property of the bankruptcy estate); Bogdan v. JKV Real Estate Servs. ( In re Bogdan ), 414 F.3d 507, 512 (4th Cir. 2005) ("[T]he unconditional assignments acquired by [the] trustee from the mortgage lenders after commencement of this bankruptcy case constitute property of the estate...."); O'Dowd v. Trueger ( In re O'Dowd ), 233 F.3d 197, 204 (3d Cir. 2000) ("because the Sevack Action belonged to the estate, including the claims that could have been but were not asserted, a malpractice suit in connection with those omitted claims likewise belongs to the estate and the estate's creditors" even though malpractice claim accrued after bankruptcy filing); cf. Spenlinhauer v. O'Donnell, 261 F.3d 113, 118 (1st Cir. 2001) ("Since title to property of the estate no longer resides in the chapter 7 debtor, the debtor typically lacks any pecuniary interest in the chapter 7 trustee's disposition of that property."); Carter v. Rodgers, 220 F.3d 1249, 1253-54 (11th Cir. 2000) (action "related to" bankruptcy estate, such that debtor needed bankruptcy court's permission to bring it, although claim "arose after the date of the bankruptcy petition, [and the] suit turns solely on allegations of wrongdoing in the sale of property belonging to the bankruptcy estate").

Plaintiff's other claim is, in essence, that Mr. Goldrich and others lied at the March 30, 1999 contempt hearing when they claimed the Town had substantially completed the cleanup, in order to shield the Town from a contempt fine, which deprived Plaintiff of the contempt sanctions the Town would have otherwise paid. Even if the Bankruptcy Court granted Plaintiff's motion, however, the sanctions - if they went to any party - would have gone to the bankruptcy estate or Hill Realty, because the only harm caused by the delayed remediation would have been to estate property ( i.e., the depressed price received from the Barnes Lane Lot sale due to the Town dragging its feet in the cleanup, see 11 U.S.C. § 541(a)(6)), or Hill Realty (which owned the Barnes Lane Lot after the auction). Accordingly, this claim belongs to either Plaintiff's bankruptcy estate or Hill Realty, not Plaintiff.

2. Abandonment

Because the Trustee did not administer the causes of action Plaintiff asserts here - by, e.g., bringing them in the Bankruptcy Court or elsewhere - Plaintiff would only have standing to pursue the claims if the trustee abandoned them. See 11 U.S.C. § 554(d). Section 554 provides three methods by which unadministered property can be abandoned:

(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(c) Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.

11 U.S.C. § 554. Here, §§ 554(a) and (b) are inapplicable because there has been neither notice nor a hearing regarding abandonment of these claims. See Ayazi v. N.Y.C. Bd. of Educ., No. 98-CV-7461, 2006 WL 1995134, at *4-5 (E.D.N.Y. July 14, 2006), rev'd on other grounds, 315 F.Appx. 313 (2d Cir. 2009) (summary order). Indeed, there could be no meaningful hearing unless Plaintiff's bankruptcy estate is reopened and a new trustee assigned, because the estate's interests - whatever they might be - would otherwise not be represented.[10] Likewise, Plaintiff never scheduled these claims, ( see Gordon Decl. Ex. B), and thus § 554(c) is inapposite, see Rosenshein, 918 F.Supp. at 102-03.


Accordingly, Plaintiff does not have standing, Neely, 2013 WL 752636, at *5; Kotbi, 2012 WL 914951, at *3; EDP Med., 2005 WL 3117433, at *4; Tilley, 332 B.R. at 508, and his claims are dismissed, see Chartschlaa, 538 F.3d at 124; Tilley, 332 B.R. at 511.[11] Plaintiff's motion to withdraw the reference is denied as moot.

C. Leave to Amend

Leave to amend a complaint should be freely given "when justice so requires." Fed.R.Civ.P. 15(a)(2). It is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Leave to amend, though liberally granted, may properly be denied for: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

In this case, a pre-motion conference was held at which Plaintiff was fully informed of Defendant's arguments regarding defects in Plaintiff's Complaint. ( See Minute Entry 5/28/2013.) Plaintiff amended his complaint in response to the arguments raised during the premotion conference. Plaintiff's failure to fix deficiencies in his previous pleadings, after being provided full notice of the deficiencies, is alone sufficient ground to deny leave to amend sua sponte. See In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y. 2005) (denying leave to amend because "the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by the defendants and given a chance to amend their Consolidated Amended Complaint, " and "plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects"), aff'd sub nom. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) ("[P]laintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies.") (internal quotation marks omitted); see also Ruotolo, 514 F.3d at 191 (affirming denial of leave to amend "given the previous opportunities to amend"). Further, Plaintiff has not requested leave to file a Third Amended Complaint or suggested that he is in possession of facts that would cure the deficiencies identified in this opinion. A plaintiff need not be given leave to amend if he fails to specify how amendment would cure the pleading deficiencies in his complaint. See TechnoMarine, 758 F.3d at 505. Accordingly, I decline to grant Plaintiff leave to amend sua sponte.


For the reasons stated above, Defendants' Motions to Dismiss are GRANTED and Plaintiff's Motion to Withdraw the Reference is DENIED. The Clerk of Court is respectfully directed to close the case and terminate the pending Motions. (Docs. 29, 32, 47.)


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