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Ajamian v. Nimeh

United States District Court, E.D. New York

June 1, 2017

ROBERT H. AJAMIAN, Plaintiff,
v.
KINAN NIMEH, J.P. TURNER & COMPANY, ALI SABETYHADEN, Defendants.

          MEMORANDUM AND ORDER

          JOAN M. AZRACK, District Judge:

         On March 9, 2017, pro se plaintiff Robert H. Ajamian (“plaintiff”) has filed another in forma pauperis complaint against Kinan Nimeh (“Nimeh”), as well as J.P. Turner & Co. (“Turner”) and Ali Sabetyhaden (“Ali” and collectively, “defendants”) purporting to allege claims of securities fraud based on events alleged to have occurred during the period from April 2011 to October 2012.[1] Upon review of plaintiff's request to proceed in forma pauperis, the Court finds that plaintiff is qualified by his financial status to commence this action without prepayment of the filing fee. Accordingly, plaintiff's application to proceed in forma pauperis is granted. However, for the reasons that follow, the complaint is sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii) and the Clerk of the Court is directed to mark this case closed.

         BACKGROUND[2]

         Like plaintiff's earlier complaints, plaintiff's brief, handwritten complaint is difficult to understand. Although the sparse allegations are difficult to discern, plaintiff describes that conduct underlying his claims “took place from 4/2011 - 10/2012.” (Compl. ¶ III.B.) Plaintiff alleges that “Nimeh was told to invest in C Citigroup when it was $2 a share and to buy $3000 worth of this stock. By Jan. 2012 the stock went to $40 a share.” (Id. ¶ III.C.) Nimeh is described to have not purchased those shares and thus plaintiff claims to have been damaged in the amount of “$57, 000 in lost income.” (Id.) Plaintiff claims that Nimeh was “grossly negligent and deliberately ignored me” and acted with “scienter” and “malice with criminal fraudulent intent.” (Id.) Plaintiff further claims that the shares he had asked Nimeh to purchase “today would be worth $100, 000.” (Id. ¶ V.) As a result of the foregoing, plaintiff brings claims pursuant to 28 U.S.C. § 1254(i) and Section 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78(a) for unspecified relief. (Id. ¶ II.B.)

         DISCUSSION

         I. Standard of Review

         Pursuant to the in forma pauperis statute, 28 U.S.C. §1915, a court must dismiss an action if it determines that it “(i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss the action as soon as it makes such a determination.

         Pro se submissions are afforded wide interpretational latitude and should be held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In addition, the court is required to read the plaintiff's pro se complaint liberally and interpret it as raising the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011) (per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

         The Supreme Court has held that pro se complaints need not even plead specific facts; rather the complainant “need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks and citations omitted); cf. Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as to do justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. While “‘detailed factual allegations'” are not required, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. at 678 (quoting Twombly, 550 U.S. at 555).

         II. Pleading Requirements of Rules 8 and 9 of the Federal Rules of Civil Procedure

         As the Court has made clear to plaintiff in its prior orders in his earlier cases, (see the April 19, 2016 Memorandum and Order in 16-CV-00145 and 15-CV-7442), Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8's pleading requirements are intended to give the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled in part on other grounds by Twombly, 550 U.S. 544). A “plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted).

         Because plaintiff's complaint involves allegations sounding in fraud, the pleading requirements set forth in Federal Rule of Civil Procedure 9(b) must also be met. When a complaint alleges fraud, “Rule 9(b) requires that allegations of fraud be pleaded with particularity.” Harsco Corp. v. Segui, 91 F.3d 337, 347 (2d Cir. 1996); see also Fed.R.Civ.P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.”). This means that a complaint “must (1) detail the statements (or omissions) that the plaintiff contends are fraudulent; (2) identify the speaker; (3) state where and when the statements (or omissions) were made; and (4) explain why the statements (or omissions) are fraudulent.” Segui, 91 F.3d at 347; see also Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006).

         Rule 8's general pleading requirement and Rule 9(b)'s particularity requirement must be read together. Ouaknine v. MacFarlane, 897 F.2d 75, 79 (2d Cir. 1990) (stating that “Rule 9(b) . . . must be read together with Rule 8(a) which requires only a ‘short and plain statement' of the claims for relief”); Credit & Fin. Corp. v. Warner & Swasey Co., 638 F.2d 563, 566 (2d Cir. 1981) (same). These two rules have been read together to mean that a plaintiff need not plead evidentiary details. See, e.g., In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 72 (2d. Cir. 2001). However, “[t]o pass muster under rule 9(b), the complaint must allege the time, place, speaker, and sometimes even the content of the alleged misrepresentation.” Ouaknine, 897 F.2d at 79 (citing DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987) (additional citation omitted). Although scienter need not be alleged with great specificity, Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987), there must be some factual allegations in support of intent.

         This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se litigants somewhat loosens the procedural rules governing the form of pleadings, it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Federal Rules of Civil Procedure 8 and 9. See Vega v. Artus, 610 F.Supp.2d 185, 196 & n. 8-9 (N.D.N.Y. 2009) (citing Second Circuit cases); Wilson v. Dalene, 699 F.Supp.2d 534 (E.D.N.Y. 2010) ...


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