United States District Court, E.D. New York
ANTHONY NASTASI, NASTASI & ASSOCIATES, INC., JACKSON AVENUE SUPPLY, LLC, 511 JACKSON REALTY LLC, 240 MADISON STREET REALTY, LLC, Plaintiffs,
MICHELLE LARI, Defendant. MICHELLE LARI, C ounterclaim ant,
ANTHONY NASTASI, Counterdefendant.
I. LOCKE UNITED STATES MAGISTRATE JUDGE
before the Court on diversity grounds in this tort and breach
of contract litigation is the Plaintiffs' - Anthony
Nastasi; Nastasi and Associates, Inc.; Jackson Avenue Supply,
LLC; 511 Jackson Realty, LLC; and 240 Madison Street Realty,
LLC ("Plaintiffs" or "Nastasi") - motion
to amend the Complaint pursuant to Federal Rule of Civil
Procedure 15(a) ("Rule 15a"). See
Plaintiffs' October 4, 2016 Letter Motion (“Pl.
Mot. to Amend”), Docket Entry (“DE”) .
The Defendant, Michelle Lari (“Defendant” or
“Lari”), opposes. See Defendant's
Reply in Opposition to Plaintiffs' Motion to Amend the
Complaint to Add New Parties (“Def. Opp.”), DE
. For the reasons set forth herein, Plaintiffs'
motion is denied in its entirety.
2011 through 2014, Plaintiff Anthony Nastasi, a New York
resident, was a close associate of and romantically
interested in Lari, a current resident of Los Angeles,
California. See Complaint (“Compl.”), DE
, ¶ 1; Proposed Amended Complaint (“Amend.
Compl.”), DE , ¶¶ 12-13, 29-30. He is the
sole principal and owner of all the other named plaintiffs,
which are New York State limited liability companies
operating and headquartered in New York. See Compl.
¶ 1. Jacobo Piwko and Gricelda Piwko (collectively, the
“Piwkos”), whom the Defendant seeks to join in
this action, are the Defendant's parents and Florida
residents. See Amend. Compl. ¶ 9.
allege that Defendant's affection for Plaintiff Anthony
Nastasi was a confidence scheme in that Lari feigned romantic
interest in him to gain access to Plaintiffs' wealth and
assets. See Amend. Compl. ¶¶
76-80. Over the course of their relationship, Plaintiffs made
transfers to Defendant totaling approximately $477, 436.55
that they assert were multiple six-month, no-interest,
renewable loans that all have since come due and are
presently still in default. See Id. ¶ 78.
During this same time, Plaintiffs also made gifts to
Defendant totaling $299, 977.96 in jewelry, clothing,
pocketbooks, shoes, and concert tickets. See Id.
response to Defendant's alleged refusal to repay the
outstanding loans, Plaintiffs assert causes of action for
breach of oral agreement and unjust enrichment. See
Compl. ¶¶ 27-56. On September 26, 2016, the Court
granted Plaintiffs' motion for leave to amend the
Complaint to include additional claims against Lari of fraud
and conversion, but denied without prejudice their
application to add causes of action against the Piwkos.
See DE .
October 4, 2017, Plaintiff renewed their application to amend
the complaint to include a cause of action against the Piwkos
for unjust enrichment. See Pl. Mot. to Amend; Amend.
Compl. ¶¶ 94-103. In the Proposed Amended
Complaint, Plaintiffs allege that Nastasi wired $50, 000 into
Defendant's bank account on February 25, 2013 as part of
an oral agreement to loan Lari that money and that Defendant
later gave $35, 000 of that money to her parents, the Piwkos.
See Amend. Compl. ¶¶ 95, 98. Plaintiffs
also assert that because Lari did not give Nastasi
authorization to make the deposits into her accounts and
because she denies that there ever was a loan agreement, she
had no right to any part of the money at issue. See
Id. ¶¶ 96-97, 100-01. Based upon the
foregoing, Plaintiffs demand that the Piwkos repay the $35,
000 with interest under a theory of unjust enrichment.
See Id. In support of this relief, Nastasi argues
that it is immaterial that the Piwkos are “innocent of
wrongdoing in receiving [P]laintiffs' monies”
because unjust enrichment does not require substantiating
prior dealings or malice, only that the money at issue has
been “transferred directly from [P]laintiffs'
account to theirs (albeit by a third party/defendant Michelle
Lari).” Pl. Mot. to Amend at 2 (citing T.D. Bank,
N.A. v. JP Morgan Chase Bank, N.A., 10-CV-2843, 2010 WL
4038826, at *5 (E.D.N.Y. Oct. 14, 2010) (finding elements of
unjust enrichment properly pled where plaintiff was
fraudulently induced to transfer $2.09 million into a bank
account that was otherwise empty and created for the sole
purpose of receiving the funds, after which, within days
approximately 99 percent of those funds had been transferred
out of the HSBC account into defendant's account)). Were
the Court to determine that it is necessary for Plaintiffs to
demonstrate a more direct relationship between the Piwkos and
Nastasi, Plaintiffs offer in their papers additional facts
they could plead including that the Piwkos used Nastasi's
skybox at Madison Square Garden to attend a Rangers NHL
hockey game, that Plaintiffs purchased tickets to the Jersey
Boys musical and the Christmas Spectacular at Radio City
Music Hall for the Piwkos, and that Nastasi paid for them to
eat Thanksgiving dinner at Scotto. Id. at 3.
Additionally, Plaintiffs assert that Griselda Piwko was aware
of Lari's ongoing relationship with Plaintiff Anthony
Nastasi and, finally, that Defendant requested a $250, 000
loan to purchase a new house for her parents. See
opposition, Defendant initially argues that the amendments
regarding the Piwkos are futile due to a lack of both subject
matter and personal jurisdiction. See Def. Opp.
§ I.A. Alternatively, Lari argues that the Proposed
Amended Complaint must be dismissed because Plaintiffs failed
to plead enough facts as could substantiate the requisite
nexus between the Piwkos and Plaintiffs to sustain a charge
of unjust enrichment. See Id. at I.B-C. Finally,
Lari urges the Court to deny Nastasi's application
because it is made in bad faith, with undue delay, and would
cause prejudice to accrue to the Defendant. See Id.
at § I.D-F.
to amend pleadings are governed by Rule 15(a), which provides
that “[t]he court should freely give leave [to amend]
when justice so requires.” Fed.R.Civ.P. 15(a)(2);
see Amaya v. Roadhouse Brick Oven Pizza, Inc., 285
F.R.D. 251, 253 (E.D.N.Y. 2012) (“A court should freely
give leave [to amend] when justice so requires and such leave
is in the court's discretion.”) (internal quotation
omitted); Assam v. Deer Park Spring Water, Inc., 163
F.R.D. 400, 404 (E.D.N.Y. 1995) (“Federal Rule of Civil
Procedure 15(a) dictates that motions to amend complaints be
liberally granted absent a good reason to the contrary . . .
.”). Motions to add parties are governed by Federal
Rule of Civil Procedure 21 (“Rule 21”) and are
afforded the “same standard of liberality afforded to
motions to amend pleadings under Rule 15.” Addison
v. Reitman Blacktop, Inc., 283 F.R.D. 74, 79 (E.D.N.Y.
2011); see Fed. R. Civ. P. 21; Amaya, 285
F.R.D. at 253 (“There is . . . little practical
difference between Rule 15 and Rule 21 since they both leave
the decision whether to permit or deny an amendment to the
district court's discretion.”).
leave to amend a complaint should only be denied “if
there is delay, bad faith, futility, or prejudice to the
non-moving party.” Hosking v. New World Mortg.,
Inc., 602 F.Supp.2d 441, 445 (E.D.N.Y. 2009) (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230
(1962)). An amendment is futile if “the proposed claim
could not withstand a … motion to dismiss.”
Salazar v. Browne Realty Assocs., L.L.C., 796
F.Supp.2d 378, 383 (E.D.N.Y. 2011). Therefore, a proposed
amended complaint must “contain enough allegations of
fact to state a claim for relief that is ‘plausible on
its face.'” Mendez v. U.S. Nonwovens
Corp., 2 F.Supp.3d 442, 451 (E.D.N.Y. 2014) (quoting
Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570, 127
S.Ct. 1955, 1974 (2007)). When a party opposes a motion to
amend on futility grounds, “the moving party must
merely show that it has at least colorable grounds for
relief.” Copantitla v. Fiskardo Estiatorio,
Inc., 09 Civ. 1608, 2010 WL 1327921, at *3 (S.D.N.Y.
Apr. 5, 2010) (internal quotation omitted). The party
opposing a motion to amend bears the burden of establishing
that the amendment should be denied. See Joinnides v.
Floral Park-Bellerose Union Sch. Dist., 12-CV-5682, 2015
WL 1476422, at *9 (E.D.N.Y. Mar. 31, 2015) (“With
respect to the Rule 15(a) factors, ‘[t]he party
opposing the motion for leave to amend has the burden of
establishing that an amendment would be prejudicial or
futile.'”) (quoting Cummings-Fowler v. Suffolk
Cty. Cmty. Coll., 282 F.R.D. 292, 296 (E.D.N.Y. 2012)).
Accordingly, on a motion to amend, “the Court is
required to accept the material facts alleged in the amended
complaint as true and draw reasonable inferences in the
plaintiff's favor.” Mendez, 2 F.Supp.3d at
451 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79,
129 S.Ct. 1937, 1949 (2009)).