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Power Up Lending Group, Ltd. v. Murphy

United States District Court, E.D. New York

April 26, 2017

POWER UP LENDING GROUP, LTD, Plaintiff,
v.
ALAN MURPHY and GRANT SEABOLT, JR., Defendants.

          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

          ARTHUR D. SPATT United States District Judge

         I. Background

         On 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.

         On May 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.

         Although 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.).

         In 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.

         Their motions to dismiss having been denied, on November 1, 2016, the Defendants filed answers to the complaint.

         On that 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).

         However, 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).

         Also, the Court notes that the Plaintiff has again failed to respond to the Defendants' motions.

         Nevertheless, 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)).

         Rather, “[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)).

         Against this backdrop, the Court turns to the Defendants' current contentions.

         II. Discussion

         The 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 Jureli, LLC v. ...


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