United States District Court, E.D. New York
Naidich Wurman LLP Attorneys for the Plaintiff Richard S.
Naidich, Esq. Of Counsel
Bressler Amery & Ross, P.C. Attorneys for the
DefendantsBy: Robert Novack, Esq., Christina D. Gallo, Esq.,
Michael D. Margulies, Esq., Of Counsel
DECISION & ORDER
D. SPATT United States District Judge
March 24, 2016, the Plaintiff Power Up Lending Group, Ltd.
commenced this action against the Defendants Alan Murphy and
D. Grant Seabolt, Jr., seeking to recover amounts allegedly
due under a financing agreement between the Plaintiff and STW
Resources Holding Corp. (“STW”), a corporation
controlled by the Defendants. The complaint, which invokes
the Court's diversity jurisdiction, alleges causes of
action sounding in New York State fraudulent inducement and
tortious interference with a contract.
20, 2016, the Defendants, acting pro se, filed
motions under Federal Rule of Civil Procedure (“Fed. R.
Civ. P.”) 12(b)(2), seeking to dismiss the complaint on
the ground that they were not subject to personal
jurisdiction in New York.
the Plaintiff failed to respond to those motions, in a
Memorandum of Decision & Order dated October 18, 2016,
the Court denied the relief sought. See Power Up Lending
Grp, Ltd. v. Murphy, No. 16-cv-1454, 2016 U.S. Dist.
LEXIS 144268 (E.D.N.Y. Oct. 18, 2016) (Spatt, J.).
doing so, the Court held that, notwithstanding the assertedly
limited personal contacts that the Defendants, both Texas
residents, had with the State of New York, the contract
between their corporation and the Plaintiff contained a forum
selection clause that provided an alternative basis for the
Court's exercise of jurisdiction.
motions to dismiss having been denied, on November 1, 2016,
the Defendants filed answers to the complaint.
same date, the Defendants, still acting pro se, also
each filed a second motion to partially dismiss the
complaint. This time, the Defendants sought dismissal of the
Plaintiff's fraud-based claim on the ground that the
complaint failed to allege a theory of fraudulent inducement
with the level of specificity required under the heightened
pleading standard found in Fed.R.Civ.P. 9(b).
since “Rule 9(b) does not explicitly provide for a
dismissal motion”; and since the Defendants have
already interposed answers; the Court construes this motion
as one for judgment on the pleadings under Rule 12(c).
See Patel v. Contemporary Classics of Beverly Hills,
259 F.3d 123, 126 (2d Cir. 2001).
the Court notes that the Plaintiff has again failed to
respond to the Defendants' motions.
as was true of the Defendants' prior motions,
“[e]ven when a motion for judgment on the pleadings is
unopposed, ‘[w]here . . . the pleadings are themselves
sufficient to withstand dismissal, a failure to respond to a
12(c) motion cannot constitute ‘default' justifying
dismissal of the complaint.' ” James v.
Comm'r of Soc. Sec., No. 13-cv-2492, 2014 U.S. Dist.
LEXIS 135594, at *3-*4 (E.D.N.Y. Sept. 24, 2014) (quoting
McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)).
“[a]lthough the non-moving party's failure to
respond ‘may allow the district court to accept the
moving party's factual assertions as true, the moving
party must still establish that the undisputed facts entitle
[her] to a judgment as a matter of law.' ”
Lucius v. Colvin, No. 12-cv-6531, 2014 U.S. Dist.
LEXIS 43980, at *21 (W.D.N.Y. Mar. 31, 2014) (quoting Vt.
Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d
241, 246 (2d Cir. 2004)).
this backdrop, the Court turns to the Defendants' current
Court presumes the parties' familiarity with the
underlying factual allegations, which were set forth in
detail in the October 18, 2016 Memorandum of Decision &
Order. See Power Up Lending Grp, Ltd., 2016 U.S.
Dist. LEXIS 144268, at *2-*9. As the Court may not consider
any additional evidence in resolving these motions, see
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