SWIFT v. PANDEY et al

Filing 93

OPINION fld. Signed by Judge Jose L. Linares on 9/8/15. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 13-650 (JLL)

ROBERT SWIFT,
Plaintiff,

OPINION

V.

RAMESH PANDEY et al.,
Defendants.

LINARES, District Judge.

In this action Plaintiff alleges that, as a result of the Defendants' actions to cover up the
true ownership ofXechem India, Xechem lent money to Xechern India that it otherwise would not
have, and that the Defendants used the money for their own personal gain. Presently before the
Court is Defendants Ramesh Pandey and Bhuwan Pandey's Motion to Dismiss Plaintiffs Third
Amended Complaint. (ECF No. 87). 1 The Court decides the motions without oral argument
pursuant to Federal Rule of Civil Procedure 78(b).

The Court has considered the parties'

submissions and decides this matter without oral argument pursuant to Rule 78 of the Federal
Rules of Civil Procedure. For the reasons set forth below, the Court denies Defendants' Motion
to Dismiss Plaintiffs Third Amended Complaint.

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The Court notes that Defendants failed file the motion in accordance with the Local Civil Rules (e.g., they did not
include a notice of motion). However, given Defendants' pro-se status, the Court construes the brief as a motion in
and of itself and issues this Order accordingly. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (noting
obligation to liberally construe pro-se filings).

PROCEDURAL BACKGROUND2

On January 31, 2013, Plaintiff filed a Complaint against Defendants Abhilasha Pandey,
Bhuwan Pandey, and Ramesh Pandey. (ECF No. 1, Compl.) The Complaint included twelve
causes of action, including unjust enrichment. (Id.) On March 28, 2013, Defendants Bhuwan
Pandey and Ramesh Pandey filed a Motion to Dismiss Plaintiff's Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). (ECF No. 9.) On July 1, 2013, the Court granted Defendants'
Motion to Dismiss, and dismissed Counts Six and Seven with prejudice and the remaining Counts
without prejudice, and terminated the civil case. (ECF No. 16.)
On August 5, 2013, Plaintiff filed an Amended Complaint. (ECF No. 17.) On August 23,
2013, the Court issued an Order reopening the civil case. (ECF No. 19.) On September 13, 2013,
Defendants Bhuwan Pandey and Ramesh Pandey filed a Motion to Dismiss Plaintiff's Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 20.) On November
13, 2013, the Court granted the Motion to Dismiss and dismissed Counts Five, Ten, and Fifteen of
the Amended Complaint with prejudice, and the remaining Counts without prejudice. (ECF No.
27.) Additionally, the Court directed Plaintiff to file a Second Amended Complaint by December
13, 2015 to cure the pleading deficiencies identified. (Id.)
On December 13, 2015, Plaintiff filed a Second Amended Complaint. (ECF No. 28.) On
January 24, 2014, Defendants Bhuwan Pandey and Ramesh Pandey filed a Motion to Dismiss
Plaintiff's Second Amended Complaint. (ECF No. 36.) On April 30, 2014, the Court granted in
part and denied in part Defendants' Motion to Dismiss. (ECF No. 45, Order.) Specifically, the
Court dismissed the tort-based claims as barred by the applicable statute oflimitations, but allowed

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The underlying facts of this case are well known to the parties and so the Court hereby incorporates the factual
background from the Opinion dated April 30, 2014. (ECF No. 46 ("Apr. 30, 2014 Op.") at 1-4.)

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the claims for unjust enrichment against Bhuwan Pandey, Ramesh Pandey, and Xechem India to
proceed. (See Apr. 30, 2014 Op. at 19-21.) On May 30, 2014, Plaintiff moved for reconsideration
of this Court's Opinion and Order granting in part and denying in part Defendants' Motion to
Dismiss Plaintiff's Second Amended Complaint. (ECF No. 50.) On July 8, 2014, this Court
denied Plaintiff's Motion for Reconsideration. (ECF No. 55.)
On November 13, 2014, the Court entered a Pretrial Scheduling Order permitting Plaintiff
time to file any motion to amend pleadings by February 15, 2015. (ECF No. 70.) On February
17, 2015, Plaintiff filed an unopposed Motion to File a Third Amended Complaint pursuant to
Federal Rule of Civil Procedure 15( a)(2) in order to remove the tort claims that had been dismissed
and to add a quantum meruit claim. (ECF No. 83.) On March 24, 2015, the Court granted
Plaintiff's Motion to File Third Amended Complaint. (ECF No. 84.)
On March 27, 2015, Plaintiff filed a Third Amended Complaint against Bhuwan Pandey,
Ramesh Pandey, and Xechem India alleging quantum meruit (Counts One, Two, and Three) and
unjust enrichment (Counts Four, Five, and Six). (ECF No. 85.) On May 14, 2015, Defendants
filed the instant Motion to Dismiss Plaintiff's Third Amended Complaint. (ECF No. 87 ("Mov.
Br.").) On May 21, 2015, Plaintiff filed a brief in opposition to the motion. (ECF No. 89 ("Opp.
Br.").) A review of the docket shows that Defendants did not file a reply brief. The motion is now
ripe for resolution.

LEGAL STANDARD
To withstand a motion to dismiss for failure to state a claim, "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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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."
Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it

asks for more than a sheer possibility that a defendant has acted unlawfully." Id. To determine
the sufficiency of a complaint under Twombly and Iqbal in the Third Circuit, the court must take
three steps: first, the court must take note of the elements a plaintiff must plead to state a claim;
second, the court should identify allegations that, because they are no more than conclusions, are
not entitled to the assumption of truth; finally, where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief. See Burtch v. Mi/berg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011)
(citations omitted).
ANALYSIS

Defendants first argue that Plaintiff's claims are time-barred.

(Mov. Br. at 10-14.)

Alternatively, Defendants assert that the quantum meruit claims should be dismissed because the
ownership ofXechem India was known to Xechem all along, the terms of the loans did not contain
limitations on how the proceeds could be used, and the issue is better left to the jurisdiction of
courts in lndia. (Id. at 14-19.) Defendants similarly move to dismiss the unjust enrichment claims
on the grounds that the Third Amended Complaint fails to demonstrate how Xechem India's use
of the loan proceeds was legally wrongful or how Plaintiff could successfully pierce Xechem
India's corporate veil. (Id. at 20-25.) In response, Plaintiff argues that Defendants are merely
rehashing already decided issues of law that were ruled on by this Court in the April 30, 2014
Opinion. (Opp. Br. at 2-3.) Plaintiff also asserts that his claims are not time-barred and that he

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has sufficiently met the pleading requirements of Rule 8. (Id. at 3-7.)
The Court denies Defendants' motion to dismiss the unjust enrichment claims as moot.
The Court has already expressly determined that the unjust enrichment claims are sufficient to
proceed. (See Apr. 30, 2014 Op. at 19-21.) Any arguments not raised by Defendants in the
previous motion with respect to the unjust enrichment claims are deemed waived. See Flora v.
Cnty. of Luzerne, 776 F.3d 169, 174 n.8 (3d Cir. 2015) (noting that failure to raise argument in
12(b)(6) motion constitutes waiver); see also In re 2435 Plainfield Ave., Inc., 72 F. Supp. 2d 482,
485 (D.N.J. 1999) aff'd, 213 F.3d 629 (3d Cir. 2000) ("Judge Stripp found that defendant waived
the [an argument] by failing to raise it in its original motion to dismiss."). Furthermore, "[t]he law
of the case doctrine limits relitigation of an issue once it has been decided in an earlier stage of the
same litigation." Hamilton v. Leavy, 322 F.3d 776, 786 (3d Cir. 2003) (internal quotation omitted).
"Courts apply the law of the case doctrine when their prior decisions in an ongoing case either
expressly resolved an issue or necessarily resolved it by implication." United Artists Theatre
Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392, 397-98 (3d Cir. 2003) (quotation omitted).
Thus, because Defendants have not demonstrated why the law-of-the-case doctrine should not
apply, the Court denies Defendants' motion to dismiss the unjust enrichment claims as moot.
The Court also denies Defendants' motion to dismiss the quantum meruit claims. Although
the quantum meruit claims were plead for the first time outside of the applicable six-year statute
of limitations,3 the Court finds that they sufficiently relate back to the original complaint. "The
applicable statute oflimitations in New Jersey is N.J.S.A. 2A:14-1 which, in part, provides: Every

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The parties do not dispute that New Jersey law applies to the quantum meruit claims. See generally Am. Cyanamid
Co. v. Fermenta Animal Health, 54 F.3d 177, 180 (3d Cir. 1995).

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action at law for ... recovery upon a contractual claim or liability, express or implied, not under
seal, or upon account other than one which concerns the trade or merchandise between merchant
and merchant, their factors, agents and servants, shall be commenced within 6 years next after the
cause of any such action shall have accrued." Kopin v. Orange Products, Inc., 297 N.J. Super.
353, 374 (App. Div. 1997) (internal quotation marks omitted). "The issue for statute oflimitations
purposes is when the last service-regardless of its value-was rendered or performed in good
faith." Baer v. Chase, 177 F. App'x 261, 264 (3d Cir. 2006). Here, Plaintiff alleges that the last
transaction occurred in April 2007. (Third Am. Compl. if 14 ("Between July 1, 2000 and April 16,
2007, Xechem sent by wire transfer or check $977,394 to Xechem India.")) Unlike the claims for
unjust enrichment which were plead in the original complaint on January 13, 2013, Plaintiff raised
claims of quantum meruit for the first time with the filing of the Third Amended Complaint on
March 27, 2015. Thus, the claims for quantum meruit clearly fall outside the time period allowable
under New Jersey law.
However, under Federal Rule of Civil Procedure 15(c)(l)(B), an amendment to a pleading
relates back to the date of the original pleading where "the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out-in the
original pleading." Fed. R. Civ. P. 15(c)(l)(B). "Where an amendment relates back, Rule 15(c)
allows a plaintiff to sidestep an otherwise-applicable statute of limitations, thereby permitting
resolution of a claim on the merits, as opposed to a technicality." Glover v. F.D.I.C., 698 F.3d
139, 145 (3d Cir. 2012) (citation omitted).
"[I]t is well-established that the touchstone for relation back is fair notice,
because Rule 15(c) is premised on the theory that a party who has been
notified of litigation concerning a particular occurrence has been given
all the notice that statutes of limitations were intended to provide. Thus,
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only where the opposing party is given fair notice of the general fact
situation and the legal theory upon which the amending party proceeds
will relation back be allowed."

Glover v. F.D.lC., 698 F.3d 139, 146 (3d Cir. 2012) (internal quotation marks and citation
omitted). Here, a review of the Third Amended Complaint shows that the claims for quantum
meruit are practically identical to the unjust enrichment claims: both claims are premised on
allegations that, as a result of the Defendants' actions to cover up the true ownership of Xechern
India, Xechem lent money to Xechem India that it otherwise would not have, and that the
Defendants used the money for their own personal gain. (Compare Third Arn. Compl.
(quantum meruit claim against Ramesh Pandey), with id.

ifif

ifif 46-61

84-103 (unjust enrichment claim

against Ramesh Pandey).) Thus, the Court is satisfied that Defendants had fair notice of the general
fact situation and the legal theory surrounding the quantum meruit claims so that they sufficiently
relate back to the filing of the original complaint and are not time-barred.
Furthermore, the Third Amended Complaint sufficiently alleges a claim for quantum
meruit. "Quantum meruit is a form of quasi-contractual recovery and rests on the equitable
principle that a person shall not be allowed to enrich himself unjustly at the expense of another.
Courts generally allow recovery in quasi-contract when one party has conferred a benefit on
another, and the circumstances are such that to deny recovery would be unjust." Starkey, Kelly,

Blaney & White v. Estate ofNicolaysen, 172 NJ. 60, 68 (2002) (quoting Weichert Co. Realtors v.
Ryan, 128 N.J. 427, 437, 608 A.2d 280 (1992) (internal quotation marks and citation omitted).
"To recover under a theory of quantum meruit, a plaintiff must establish: (1) the performance of
services in good faith, (2) the acceptance of the services by the person to whom they are rendered,
(3) an expectation of compensation therefor, and (4) the reasonable value of the services." Id.

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(quoting Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994) (internal quotation marks
omitted). The Court has thoroughly reviewed the Third Amended Complaint and finds that
Plaintiff has sufficiently plead the quantum meruit claims and met his burden under Rule 8 in that
the allegations plausibly give rise to an entitlement for relief. See Burtch, 662 F .3d at 221.

CONCLUSION

For the reasons above, the Court denies Defendants' Motion to Dismiss Plaintiffs Third
Amended Complaint. (ECF No. 87.) An appropriate Order accompanies this Opinion.

DATED: September

2015
JOpE L. LINARES
. JtfNITED STATES DISTRICT JUDGE

ii'

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