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Kitzen v. Hancock

United States District Court, E.D. New York

October 27, 2017

IRA KITZEN, individually, and on behalf of PISA CONTRACTING, INC. d/b/a HANCOCK CONTRACTING & DESIGN, and on behalf of ENTERPRISE HOLDINGS, LTD., Plaintiff,
v.
PETER HANCOCK, LAND AND SEA CONSTRUCTION CORP., HCD CONSTRUCTION MANAGEMENT AND PLANNING CORP., BLUE GATE CONSULTING CORP., SUSAN HANCOCK, ELIZABETH HANCOCK, JODI TARSHIS, and “JOHN” and JANE DOEs 1-10, ” said names being fictitious as such names are unknown at this time, Defendants, PISA CONTRACTING, INC. d/b/a HANCOCK CONTRACTING & DESIGN, and on behalf of ENTERPRISE HOLDINGS, LTD. Nominal Defendants,

          LEVITT LLP Counsel for the Plaintiff James E. Brandt, Esq., Steven L. Levitt, Esq., Of Counsel.

          FORCHELLI CURTO DEEGAN SCHWARTZ MINEO & TERRANA LLP Counsel for the Defendants Land and Sea Construction Corp., Blue Gate Consulting Corp., Susan Hancock, Elizabeth Hancock and Jodi Tarshis Jeffrey G. Stark, Esq., Gregory S. Lisi, Esq., Michael Ciaffa, Esq., Danielle B. Gatto, Esq., Of Counsel.

          LAW OFFICES OF E. MICHAEL ROSENSTOCK P.C. Counsel for the Defendants Peter Hancock and HCD Construction Management and Planning Corp. E. Michael Rosenstock, Esq., Of Counsel.

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT UNITED STATES DISTRICT JUDGE.

         This action began when the Plaintiff, Ira Kitzen (“Kitzen” or the “Plaintiff”), commenced this action individually and derivatively on behalf of Pisa Contracting, Inc. d/b/a Hancock Contracting & Design (“Pisa”), and Enterprise Holdings, Ltd. (“Enterprise”) against the Defendants, Land and Sea Construction Corp. (“Land and Sea”), HCD Construction Management and Planning Corp. (“HCD”), Blue Gate Consulting Corp. (“Blue Gate”), Susan Hancock, Elizabeth Hancock, Peter Hancock and Jodi Tarshis (“Tarshis”), (collectively the “Defendants”) for damages stemming from twenty-seven independent causes of action. This case arises from allegations by the Plaintiff that the Defendants engaged in a conspiracy to steal and ultimately destroy Pisa. The Plaintiff asserts this Court's jurisdiction under 28 U.S.C. § 1332.

         Presently before the Court is a motion by Defendants Land and Sea, Blue Gate, Susan Hancock, Elizabeth Hancock and Tarshis (together, the “Moving Defendants”), joined by Defendants HCD and Peter Hancock, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 12(b)(1) to dismiss the Plaintiff's entire complaint or alternatively to stay this matter to await the resolution of a pending state proceeding.

         Prior to its ruling, the Court notes that the Plaintiff's memorandum uses footnotes, which is contrary to this Court's Individual Rule II.A. Notwithstanding this infraction, the Court will consider the Plaintiff's papers in rendering its decision. However, the Court advises the Plaintiff's counsel that any future filings that contain footnotes will not be considered by this Court.

         For the following reasons, the Moving Defendants' motion to dismiss the complaint pursuant to Rule 12(b)(1) is granted.

         I. BACKGROUND

         A. The Factual Background

         The Plaintiff is a resident of the State of Florida, residing at 2317 Palm Harbor Drive, West Palm Beach, Florida 33410 at the time the complaint was filed. Kitzen is the owner of 50% of the authorized, issued and outstanding shares of capital stock of Pisa and Enterprise.

         Peter Hancock is a resident of the State of New York, residing at 44 Jetmore Place, Massapequa, New York 11758 at the time the complaint was filed. Peter Hancock is married to Susan Hancock.

         Susan Hancock is a resident of the State of New York, residing at 44 Jetmore Place, Massapequa, New York 11758 at the time the complaint was filed. She is married to Peter Hancock.

         Tarshis is Susan Hancock's daughter from an earlier marriage. She is a resident of the State of New York, residing at 3777 Clark Street, Seaford, New ...


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