Marsala v. Mayo et al

Filing 90

ORDER & REASONS granting 72 Motion to Dismiss for Failure to State a Claim. Party Gerald Gabet and Jacksonville Dining Concepts, LLC dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 10/6/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES MARSALA

CIVIL ACTION

V.

NO. 13-6800

JERRY L. MAYO, ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court is a motion by the defendants Gerald (Jerry)
Gabet and Jacksonville Dining, LLC, to dismiss the claims against
them pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons that follow, the defendants' motion to dismiss is GRANTED.
Background
This facts underlying this case arise out of the same failed
business venture, Profitable Dining, LLC, involved in related
litigation pursued unsuccessfully by Mr. Marsala in 2006.

In that

case, Mr. Marsala sued Jerry Mayo and Jay Lanners for fraud, breach
of fiduciary duty, and contribution, and Profitable Dining, LLC on
a debt allegedly owed pursuant to a promissory note. All claims in
that lawsuit were dismissed on summary judgment, or settled and
dismissed with prejudice in late 2007 and early 2008.

See Marsala

v. Mayo, No. 06-3846, 2007 WL 3245434 (E.D. La. Nov. 2, 2007);
Order granting motion to dismiss case, No. 06-3846 (Jan. 24, 2008).
Over five years later, Mr. Marsala moved to reopen the 2006
case under Federal Rule of Civil Procedure 60.

This Court denied

that motion as untimely, and the Fifth Circuit affirmed.

1

Marsala

v. Mayo, 55 F. App'x 181 (5th Cir. 2014) (per curium).
A few months later, Mr. Marsala nevertheless filed this case
pro se against Mr. Mayo, Mr. Gray, A&S Recovery, SCIBMATT, LLC, Mr.
Gabet, and Jacksonville Dining, LLC.

In a complaint that overlaps

with his 2006 lawsuit, Mr. Marsala alleges that the $200,000 he
invested in 1998 and the $250,000 he loaned in 2001 to Profitable
Dining were transferred without his knowledge to SCIBMATT, LLC, A&S
Recovery, "and other companies owned by Jerry Mayo, Mike Gray, and
Jerry Gabet, plus his funds ($65,000) directly paid to GE Finance
in 2005 were used to pay for the FF&E in Jacksonville Dining
Concepts'
claims,

Copeland
including

Restaurant."
claims

for

Mr.

Marsala

securities

asserts

fraud,

various

conspiracy,

fraudulent concealment, unjust enrichment, and constructive trust.
On August 11, 2014, this Court granted a motion to dismiss the
claims against Michael Gray, A&S Recovery, and SCIBMATT, LLC.
Mr. Gabet and Jacksonville Dining did not appear before the
Court, and Mr. Marsala obtained a default against them, which this
Court subsequently set aside.

Mr. Gabet and Jacksonville Dining

now move to dismiss the case against them under 12(b)(6).

The

Court grants these defendants' motion for the reasons it granted
the other defendants' motion to dismiss.

All the relevant legal

standards are set forth in the Court's previous Order and Reasons
dated August 11, 2014.

For the sake of brevity and because the

Court is evaluating essentially the same claims here, they will not

2

be repeated.
I. Collateral Estoppel
Just

as

this

Court

found

with

respect

to

the

other

defendants,1 the Court agrees with Mr. Gabet and Jacksonville
Dining that Mr. Marsala is precluded from re-litigating issues
relating to his fraud and promissory note claims because those
issues were previously resolved.

A point Mr. Marsala seems

dedicated to overlook.
Mr. Marsala alleges that Mr. Gabet "facilitated" the fraud
alleged

in

the

2006

lawsuit,

and

that

Jacksonville

Dining

eventually obtained some of the funds he invested in Profitable
Dining, which he sought to recover in the 2006 lawsuit.

It is not

clear whether he seeks relief from Mr. Gabet or Jacksonville Dining
regarding his promissory note claims.

In any event, Mr. Marsala's

fraud and promissory note claims are identical to those asserted in
his 2006 lawsuit, and there are no special circumstances meriting
ignoring the doctrine of collateral estoppel.

See Winters v.

Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998).

To

the extent that Mr. Marsala seeks to re-litigate issues decided in
the 2006 litigation, he is barred from doing so.
II. Failure to State a Claim
Just as Mr. Marsala failed to state a plausible claim for

1

Throughout the Court's discussion, see the previous Order and
Reasons in this case dated August 11, 2014, for a more detailed
analysis.
3

relief against the other defendants, he has failed to do so with
respect to Mr. Gabet and Jacksonville Dining as well.
1. Fraud/Fraudulent Concealment
The Court agrees with the defendants that Mr. Marsala has
failed to plead facts with sufficient particularity to state a
claim for fraudulent concealment.

Mr. Marsala asserts that Mr.

Gabet "facilitated" and that Jacksonville Dining benefitted from
the "Jay and Jerry Business Plan"/Profitable Dining "scheme" that
is the basis of his fraud claims.

These claims have already been

litigated, and Mr. Marsala does not allege facts in his complaint
supporting the elements of fraud against Mr. Gabet or Jacksonville
Dining.

See Ga. Code Ann. § 23-2-53; Hanlon v. Thornton, 462

S.E.2d 154, 156 (Ga. App. 1995); Order and Reasons, 08/11/14, pp.
12-14.
2. Breach of Fiduciary Duty
Mr. Marsala alleges that Mr. Gabet was part of a conspiracy
with defendants Mr. Mayo and Mr. Gray to "breach[] their fiduciary
duty owed to plaintiff . . . ."

Mr. Marsala's claim fails for two

reasons: (1) he fails to allege any fiduciary duty owed to him by
Mr. Gabet or Jacksonville Dining, and (2) even if he did, he fails
to offer anything other than conclusory allegations of any breach
of such a duty.
3. RICO–Mail Fraud
It does not appear that Mr. Marsala asserts his Racketeering

4

Influenced and Corrupt Organization Act claims against Mr. Gabet
and Jacksonville Dining, but to the extent that he does, these
claims are dismissed for the same reasons stated by this Court in
its previous Order and Reasons, pp. 15-16.

Mr. Marsala fails to

allege any of the elements necessary for a plausible mail fraud
claim.
4. Conspiracy
Mr. Marsala alleges that Mr. Gabet was part of a conspiracy to
commit fraud and breach fiduciary duties by participating in acts
leading up to the formation of Profitable Dining and through the
buy-out of Mr. Marsala's interests in early 2004.

As previously

explained by this Court, Mr. Marsala fails to state a plausible
claim for conspiracy.

Order and Reasons, p. 17.

Mr. Marsala also

fails to allege any facts plausibly suggesting that an agreement
existed

between Mr. Gabet or Jacksonville Dining and any other

defendants to conspire to commit a tort against him.

Thus, his

conspiracy claims fail.
5.

Unjust Enrichment/Constructive Trust

Mr. Marsala also asserts an unjust enrichment claim against
Mr. Gabet and seeks a constructive trust against Jacksonville
Dining. But Mr. Marsala's claim is time-barred, as previously held
by this Court, because he "discovered" the funds that are the basis
of his claim in September 2007.

As for the constructive trust

"claim," it is, of course, not a separate cause of action but

5

rather a remedial device.

St. Paul Mercury Ins. Co. v. Meeks, 508

S.E.2d 646, 648 (Ga. 1998).

Both Mr. Marsala's unjust enrichment

and constructive trust claims are dismissed.
6. Conversion
Finally,

Mr.

Marsala

against the defendants.

also

alleges

"theft

by

conversion"

Again, he contends that he discovered the

transfer of funds that is the basis of his conversion claim in
September 2007.

Thus, his claim is time-barred under the Georgia

four-year statute of limitations on conversion claims.

See Ga.

Code Ann. § 9-3-32.
Accordingly,
IT IS ORDERED that the defendants' motion to dismiss is
GRANTED,

and

the

plaintiff's

claims

against

Mr.

Gabet

and

Jacksonville Dining are hereby DISMISSED WITH PREJUDICE.2

New Orleans, Louisiana, October 6, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

2

Should Mr. Marsala's pattern of conduct regarding his
attempts to resurrect previously dismissed claims against other
parties continue, the Court is obliged to urge Mr. Marsala to
obtain the advice of counsel, and to encourage him to become
familiar with the sanction provisions of 28 U.S.C. § 1927.
6