Jordan v. Mirra
MEMORANDUM. Signed by Judge Gerald A. McHugh on 11/28/2017. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RAYMOND A. MIRRA, et al.
NOVEMBER 28, 2017
This is a diversity action referred to Magistrate Judge Sherry R. Fallon for a Report and
Recommendation (“R & R”) on a Motion to Dismiss. Judge Fallon has prepared a
comprehensive and well-reasoned report (D.I. 199) and for the reasons that follow I will adopt it
in its entirety.
The vast majority of Judge Fallon’s conclusions are not challenged, and are therefore
reviewed only for clear error. 28 U.S.C. § 636(b)(1). I find none.
My endorsement includes Judge Fallon’s conclusions that:
1. the Mutual General Release Document (D.I. 200-2) [hereinafter “the Release”], if
accepted as valid, bars all claims except Plaintiff Gigi Jordan’s breach of warranty claim
(Count VII) and her claim for declaratory relief (Count X);
2. the statute of limitations does not bar Plaintiff’s breach of warranty claim; but
3. the surviving warranty claim cannot serve as a legal predicate for her declaratory
My endorsement further extends to Judge Fallon’s alternative bases for her conclusion:
4. that, even if the Release were deemed inapplicable, New York’s six-year statute of
limitations bars Plaintiff’s breach of contract on promissory notes claim (Count I), much
of her accounting claim (Count II) as to all Defendants, and her fraudulent inducement
claim (Count V) as to Defendants Troilo, Tropiano, and Kolleda;
5. New York’s three-year statute of limitations bars Plaintiff’s common law fraud claims
(Count III) as to Defendant’s Troilo, Kolleda, Kovinsky, and Tropiano, her breach of
fiduciary duty claim (Count VI) as to Defendants Mirra, Troilo, and Kolleda, and her
unjust enrichment claim (Count VIII) as to all Defendants; and
6. her aiding and abetting fraud claim (Count IV) is time-barred under either statute of
Finally, as an additional alternative basis for dismissal of Plaintiff’s common law fraud
claim based on alleged forgeries, Judge Fallon concluded that it was insufficiently pleaded
because only third parties relied on the purportedly forged documents. As the controlling
standard, Judge Fallon properly applied Pasternack v. Lab Corp., 2014 WL 4832299 (S.D.N.Y.
Turning to Plaintiff’s objections, Defendants rightly point out that those objections
principally rely on arguments that were not before Judge Fallon, and Plaintiff makes no effort to
show good cause (D.I. 200-2). This is contrary to this Court’s Standing Order for Objections,
and the Magistrate’s Act, and could therefore be considered waived. 2 I will nonetheless address
Pasternack actually resolved a conflict between federal and state decisions, as the Second Circuit
certified the issue to the New York Court of Appeals, which definitively resolved the issue. See
Pasternack v. Lab. Corp. of Am. Holdings, 839 F.3d 151, 152 (2d Cir. 2016), and Pasternack v. Lab.
Corp. of Am. Holdings, 27 N.Y.3d 817, 827, 59 N.E.3d 485, 491, reargument denied, 28 N.Y.3d 956, 60
N.E.3d 421 (2016) (“We hold that under New York law, such third-party reliance does not satisfy the
reliance element of a fraud claim.”).
Indeed, “[t]he purpose of the Magistrate’s Act would be frustrated if we were to require a district court
to consider a claim presented for the first time after the party has fully litigated his claims before the
magistrate judge and found that they were unsuccessful.” See Turner v. Pennsylvania Bd. of Prob. &
Parole, No. CIV.A. 13-33, 2013 WL 5970338, at *1 (W.D. Pa. Nov. 8, 2013) (quoting Bolar v. Blodgett,
29 F.3d 630 (Table), 1994 WL 374194, *1 (9th Cir.1994)); Masimo Corp. v. Philips Elec. N. Am.
Corp., 62 F. Supp. 3d 368, 377 (D. Del. 2014) (“[I]t is new arguments that are problematic.”) (citing
Standing Order ¶ 5).
Plaintiff’s objections are threefold: that it was improper (a) to dismiss all her claims
except for breach of warranty on the basis of the Release, because the Release does not cover her
fraud and fraudulent inducement claims (Counts III and V, respectively); (b) to dismiss her fraud
and fraudulent inducement claims against defendant Mirra for lack of justifiable reliance because
justifiable reliance cannot be determined at the pleading stage; and (c) to dismiss her fraud and
fraudulent inducement claims, otherwise subject to a six-year statute of limitations, as incidental
to her conversion claims, and thereby subject to a three-year statute of limitations.
First, Plaintiff’s argument that her fraudulent inducement claims are beyond the scope of
the Release fails because the principal case upon which she relies, E.I. DuPont de Nemours &
Co. v. Florida Evergreen Foliage, 744 A.2d 457, 461 (Del. 1999), is limited to situations where
the fraud alleged is separate from and not barred by the terms of the agreement. Here, any fraud
claim advanced under such a theory would be barred by paragraph 6 of the Release, which states,
in sufficiently specific language: “[n]either [party] will assert any Claims against the other . . .
arising from or relating to negotiation, execution, and delivery of [this] Agreement.” See D.I.
200-2, ¶ 6.
As to Plaintiff’s second objection about reliance, I agree with Judge Fallon that any
misrepresentations would have been obvious, and Plaintiff made no reasonable inquiry. R & R
at 40. Plaintiff’s reliance argument ultimately calls this Court to take certain language in the
Agreement out of context. Paragraph 4 of the Release states in part, “[t]he Parties deny any
wrongdoing in connection with these matters,” D.I. 200-2, ¶ 4, leading Plaintiff to argue that the
“express terms and conditions” of the Release create a warranty under which she can sue. In
context, however, paragraph 4 conveys the exact opposite of what Plaintiff argues, because the
preceding sentence states: “Each Party hereby agrees that this Release Agreement shall not be
construed as an admission by any Party.” Id. Defendants persuasively argue that accepting
Plaintiff’s interpretation of the Release would convert documents meant to end litigation into
documents that foment litigation. See Seven Investments, LLC v. AD Capital, LLC, 32 A.3d 391,
400 (Del. Ch. 2011) (concluding that the DuPont decision does not prevent parties from
executing general releases that extinguish claims for fraud, including claims for fraud in the
inducement, particularly where the party granting the release is on notice of potential fraud
Nor do I find error in Judge Fallon’s refusal to embrace a lower standard of reliance. 3
The non-precedential Second Circuit case on which Plaintiff relies applied California law, L-3
Communications Corp. v, OSI Systems, Inc., 283 F. App’x 830 (2d Cir. 2008), and the New York
cases involved an agreement between an attorney and clients who were not represented by
independent counsel in their dealings with said attorney, Swift v. Ki Young Choe, 242 A.D. 2d
188 (N.Y. App. Div 1998). Neither is the case here.
Finally, I am persuaded that Judge Fallon properly found Plaintiff’s common law fraud
claims incidental to her conversion claims, and therefore subject to a three-year statute of
limitations that renders them untimely. Plaintiff’s objection to this conclusion relies on cases
with significantly different facts, where victims were not represented by independent counsel,
and pleaded underlying misrepresentations of a much different nature. In those cases, the
plaintiffs pleaded all of the elements of an independent fraud claim. Plaintiff here did not. Thus,
the statute of limitations for conversion properly applies.
In sum, I accept the R & R in whole. Accordingly, Defendants’ Motions to Dismiss are
Plaintiff, a sophisticated party represented by independent counsel, needed only to review a three-page
document before signing. Plaintiff’s footnote objection to Judge Fallon’s refusal to apply equitable
tolling also fails for the same reason: Plaintiff could have discovered the alleged misrepresentations or
omissions if she exercised due diligence. R & R at 36–7.
GRANTED. Plaintiff’s Amended Complaint will be DISMISSED with prejudice as to Counts I
through VI and VIII through X. Plaintiff may proceed on Count VII only.
/s/ Gerald Austin McHugh
United States District Judge
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