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Saveria JFK, Inc. v. Flughafen Wien, AG

United States District Court, E.D. New York

March 30, 2017

SAVERIA JFK, INC.; SAVERIA USA, INC.; and RAKESH SARDANA, Plaintiffs,
v.
FLUGHAFEN WIEN, AG a/k/a VIENNA INTERNATIONAL AIRPORT PLC, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND REMANDING THIS ACTION TO STATE COURT

          ROSLYNN R. MAUSKOPF, United States District Judge.

         Plaintiffs Saveria JFK, Inc. (“Saveria JFK”), Saveria USA Inc. (“Saveria USA”), and Rakesh Sardana (“Sardana”) (collectively, “plaintiffs”) commenced this action in the Supreme Court of the State of New York, Queens County on September 9, 2015. (See Notice of Removal Ex. A-1 (“Compl.”) (Doc. No. 1-1).) Plaintiffs assert three New York common-law claims: (1) fraudulent concealment; (2) tortious interference with prospective economic advantage regarding business at JFK; and (3) tortious interference with prospective economic advantage regarding business at the Aruba, Miami, and Dublin airports. (See Id . at 22-28.)[1] On October 28, 2015, defendant Flughafen Wien, AG, a/k/a Vienna International Airport PLC (“VIE”), removed the case from state court to this Court. (See Notice of Removal (Doc. No. 1).) Although the complaint does not reflect complete diversity of citizenship, VIE contends that Sardana - the lone diversity-destroying plaintiff - should be disregarded under the doctrine of fraudulent joinder. (See Notice of Removal at 2-6.)

         Plaintiffs seek to remand this action to state court, arguing that VIE has not met the high burden required for establishing fraudulent joinder. (Pls.' Mot. Remand (Doc. No. 21).) VIE opposes plaintiffs' motion and seeks leave to move to dismiss based on lack of personal jurisdiction, failure to state a claim, and forum non conveniens. (Def.'s Opp'n to Mot. Remand (Doc. No. 23).) By Order entered February 23, 2016, this Court referred those motions to the assigned Magistrate Judge, the Honorable Roanne L. Mann, for a Report and Recommendation (“R&R”). Chief Magistrate Judge Mann received full briefing on the issues and heard extensive oral arguments from the parties on March 4, 2016. (See 3/4/16 Tr. of Proceedings (Doc. No. 22).)

         On May 3, 2016, Chief Magistrate Judge Mann issued an R&R recommending that plaintiffs' motion to remand be granted and VIE's motions to dismiss be denied without prejudice. (R&R (Doc. No. 27) at 20.) Chief Magistrate Judge Mann found that VIE has not shown by clear and convincing evidence that the complaint - when properly viewed in the light most favorable to the non-diverse Sardana - fails to assert at least one cause of action brought by Sardana, suing in his personal capacity. (See R&R at 11-16.) Chief Magistrate Judge Mann further found that VIE's statute of limitations defense does not provide a basis for disregarding the non-diverse Sardana because VIE has not met its heavy burden of showing that every claim that Sardana has arguably asserted would be time-barred. (See R&R at 16-20.) On May 20, 2016, VIE filed timely objections to the R&R. (Def.'s Obj. (Doc. No. 28).) On June 1, 2016, plaintiffs filed a memorandum in opposition to VIE's objections. (Pls.' Opp'n to Obj. (Doc. No. 29).)

         The Court has reviewed de novo Magistrate Judge Mann's thorough and well reasoned R&R, as well as VIE's objections and Sardana's opposition to those objections, and reasons set adopts the R&R in its entirety for all of the reasons set forth in the R&R.

         STANDARD OF REVIEW

         When reviewing an R&R, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party raises an objection to an R&R, the district court “shall make a de novo determination of those portions of the Report and Recommendation to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985); Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). However, if a party “simply reiterates [its] original arguments, the Court reviews the Report and Recommendation only for clear error.” Libbey v. Vill. Of Atl. Beach, 982 F.Supp.2d 185, 199 (E.D.N.Y. 2013) (internal quotation marks and citation omitted). Moreover, portions to which no party has objected are reviewed for clear error. See Morritt v. Stryker Corp., 973 F.Supp.2d 177, 181 (E.D.N.Y. 2013); Price v. City of New York, 797 F.Supp.2d 219, 223 (E.D.N.Y. 2011). The Court will find clear error only where, upon a review of the entire record, it is left with the definite and firm conviction that a mistake has been committed. See Fed. R. Civ. P. 72(a); Regan v. Daimler Chrysler Corp., No. 07-CV-1112 (RRM) (JO), 2008 WL 2795470, at *1 (E.D.N.Y. July 18, 2008); Nielsen v. New York City Dep't of Educ., No. 04-CV-2182 (NGG) (LB), 2007 WL 1987792, at *1 (E.D.N.Y. July 5, 2007).

         DISCUSSION

         The Court assumes familiarity with the facts, procedural history, and background of this matter as set forth in the R&R, none of which is in dispute. (See R&R at 2-8.) At the outset, it is important to note that neither party objects to the Magistrate Judge's articulation of the applicable fraudulent joinder standards. (See R&R at 8-13.) Moreover, the Court notes VIE's objections are largely a “second bite at the apple, ” as they merely reiterate the arguments made before and rejected by the Magistrate Judge. (See generally Def.'s Opp'n Mot. to Remand; Def.'s Obj.)

         VIE asserts the following objections: (1) the R&R erroneously found that the complaint alleges a personal injury to Sardana, because any injury to Sardana's ability to do business “using any entity” would be a derivative injury belonging to the entity; (2) the R&R erroneously applied the common defense rule to find that it could not consider VIE's statute of limitations argument because it was not specific to Sardana; (3) the R&R erroneously found that the one-year defamation statute of limitations might not apply to Sardana's claims or that tolling or estoppel might apply; and (4) the R&R erroneously declined to consider VIE's proposed motions to dismiss for lack of personal jurisdiction and forum non conveniens. (See Def.'s Obj. 8-9.) Here, the Court briefly addresses each objection in turn.

         I. Whether the Complaint Alleges an Injury to Sardana Personally

         First, VIE rehashes its argument that Sardana has “no possibility of stating a claim” because the complaint does not allege an injury to Sardana personally, but rather an injury to Saveria JFK or other entities. (See Def.'s Obj. at 18-19.) Under the applicable standards of fraudulent joinder applied by the magistrate judge - standards that the parties do not dispute - VIE has the heavy burden of showing by clear and convincing evidence that the complaint, when properly viewed in the light most favorable to Sardana, and under the liberal pleading standards of New York's Civil Practice Law and Rules, fails to “colorably assert” at least one cause of action brought by Sardana, suing in his personal capacity. See Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998); see also Intershoe, Inc. v. Filanto S.P.A., 97 F.Supp.2d 471, 474 (S.D.N.Y. 2000). As the Magistrate Judge properly concluded, the complaint alleges facts that, if taken to be true, create the possibility that Sardana may recover in his individual capacity for tortious interference with prospective economic advantage. (See R&R at 11-16.) Specifically, the complaint alleges that Sardana had business relationships with various airport partners - including a relationship with JFKIAT that began before Saveria JFK was created - and those relationships were founded on Sardana's own reputation as an entrepreneur. (See Compl. at ¶¶ 31-32, 64, 67, 70, 76.) The complaint further alleges that VIE and its agents knew of Sardana's relationships and intentionally undertook a campaign - motivated by animus against Sardana's Indian ethnicity - to destroy Sardana's ability to do any business with these partners through any entity, including entities that Sardana might hope to form in the future. (See Compl. at ¶¶ 42, 50-60, 97-99, 115-18.) Finally, the complaint alleges that Sardana was personally injured by VIE's actions, in that he was unable to enter into business relationships of any kind - irrespective of whether he might wish to enter into those relationships using a corporate vehicle or in a personal capacity. (See Id . ¶¶ 108-12, 114-17, 125.)

         Contrary to VIE's objection, and as the magistrate judge properly concluded, the mere fact that Sardana may choose to use one or more corporate vehicles to pursue business opportunities does not mean that his personal business opportunities belonged to those future entities; Sardana was free to pursue those opportunities, which he developed based on his personal reputation as a businessman, “using any entity” or none at all. In any event, even if Sardana pursued his personal business opportunities through Saveria JFK or another entity, claims of tortious interference with prospective economic advantage do not require the existence of a contractual relationship. See NBT Bancorop Inc. v. Fleet/Norstar Fin. Grp., Inc., 87 N.Y.2d 614, 621 (1996); see also Brown v. AXA RE, No. 02-CV-10138 (LTS) (AJ), 2004 WL 941959, at *8 (S.D.N.Y. May 3, 2004) (finding that the plaintiff film producers who had negotiated financing to pursue their film suffered a personal injury of tortious interference even though their names did not appear on the face of the interfered with contract).

         VIE's objection that the complaint does not contain specific allegations about future entities or even the possibility of such entities being formed is immaterial. (See Def.'s Obj. at 21.) Even assuming that is true, the complaint specifically alleges that various airports rejected Sardana's business proposals because they believed Sardana “was deceitful and untrustworthy” after reading about his disputes with VIE, thereby denying Sardana personally the ...


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