RIACHI v. THE PROMETHEUS GROUP et al
Filing
46
LETTER OPINION. Signed by Judge Susan D. Wigenton on 4/5/18. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF
MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
973-645-5903
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
April 5, 2018
Ronald T. Nagle
52 South Street
Morristown, NJ 07960
Attorney for Plaintiff
Michael J. Lauricella, Esq.
Archer & Greiner, P.C.
21 Main Street
Hackensack, NJ 07601
Attorney for Defendant
LETTER OPINION FILED WITH THE CLERK OF THE COURT
Re:
Riachi v. The Prometheus Group
Civil Action No. 17-00811 (SDW) (LDW)
Counsel:
Before this Court is Defendant First Choice For Continence, Inc.’s (“First Choice” or
“Defendant”) Motion to Dismiss Plaintiff Labib Riachi’s (“Riachi” or “Plaintiff”) Amended
Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6). (Dkt. No. 38.) Because this is the third time this Court has
ruled on motions involving Plaintiff’s claims, this Court assumes the parties are familiar with the
factual issues in this matter and references only those facts relevant to the current motion. 1
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On October 25, 2016, this Court issued an Opinion dismissing nearly identical claims Plaintiff brought against
First Choice and co-defendant The Prometheus Group (“Prometheus”) in another case. See Riachi v. Prometheus
Grp., Civ. No. 16- 2749-SDW-LDW, 2016 WL 6246766 (D.N.J. Oct. 25, 2016). Four months later, Plaintiff filed
the instant suit raising the same claims, but only against Prometheus. (Dkt. No. 1.) Prometheus moved to dismiss
the Complaint on March 26, 2017, and this Court granted the motion in part on June 6, 2017. (Dkt. Nos. 7, 16, 17.)
Plaintiff amended his complaint to add First Choice on October 27, 2017. (Dkt. Nos. 30, 31, 33.)
As he has previously, Plaintiff contends that Defendant is liable under the following
theories: common-law fraud (“Count II”), 2 negligent misrepresentation (“Count III”), and
negligence (“Count IV”). Defendant filed the instant Motion to Dismiss on January 25, 2018.
(Dkt. No. 38.) Plaintiff filed his opposition on February 19, 2018, and Defendant replied on
February 26, 2018. (Dkt. Nos. 43, 44.) For the reasons stated herein, Defendant’s Motion to
Dismiss is GRANTED.
DISCUSSION
A. Legal Standard for Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)
The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a
complaint allege “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). This Rule “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[.]” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than a blanket assertion,
of an entitlement to relief”).
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must “accept all
factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.” Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)) (internal quotation marks omitted). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
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Count One, for breach of contract, is brought only against Prometheus.
2
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether the allegations
in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint
should be dismissed for failing to “show[] that the pleader is entitled to relief” as required by Rule
8(a)(2). Id.
B. Counts II, III – Common Law Fraud and Negligent Misrepresentation
In Counts II and III of the Amended Complaint, Plaintiff alleges Defendant is liable for
making fraudulent and negligent misrepresentations. (Am. Compl. ¶¶ 33-47.) As this Court has
explained before, these claims must satisfy the heightened pleading standard of Rule 9(b). See
Riachi, 2016 WL 6246766, at *3-5; Dkt. No. 16 at 5. Although Plaintiff appears to have made an
effort to conform his Amended Complaint to this standard by providing additional information as
to the alleged misrepresentations, clarifying that the statements were made between February 2005
through April, 2012 and including the names of four people he claims made the statements, (see
Am. Compl. ¶¶ 36, 37, 43, 44), Plaintiff still fails to plead with specificity who made each of the
representations, when exactly the representations were made, and how each of the representations
were made. See In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999) (holding that
Rule 9(b) “requires plaintiffs to plead ‘the who, what, when, where, and how: the first paragraph
of any newspaper story.’” (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990))).
Sweeping generalizations about alleged misrepresentations made by a group of people over a
seven-year period without greater detail is insufficient to satisfy Rule 9(b). Accordingly, Counts
II and III are dismissed.
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C. Count IV- Negligence
In Count IV of the Amended Complaint, Plaintiff alleges Defendant is liable for giving
“negligent and reckless advice.” (Am. Compl. ¶¶ 48-55.) Plaintiff, however, has failed to
sufficiently plead the elements of a negligence claim under New Jersey law, which requires that:
1) defendant owed Plaintiff a duty of care, 2) defendant knowingly breached that duty, 3) actual
and proximate causation, and 4) damages. See Fernandes v. DAR Dev. Corp., 222 N.J. 390, 404
(2015); Riachi, 2016 WL 6246766 at *6. Although Plaintiff generally alleges that “[a]s
professionals[,] First Choice had an absolute duty of [c]are to Dr. Riachi to give him proper and
correct advice and training,” (Dkt. No. 33 ¶ 54), he nowhere pleads facts that establish the basis
for that duty. Rather, Plaintiff pleads only that Prometheus “engaged First Choice to provide
training and advice to Plaintiff” and that First Choice, as “professionals with exclusive knowledge
on how to train, use and bill procedures” owed Plaintiff a duty. (Am. Compl. ¶¶ 11, 49.) Absent
something more, Plaintiff has failed to provide sufficient factual details for this Court to reasonably
infer that First Choice owed Plaintiff a duty of care. See Kernan v. One Wash. Park Urban
Renewal Assoc., 713 A.2d 411, 415 (N.J. 1998) (“To recover under a negligence theory, it is
paramount that a defendant first owe the plaintiff a duty.”) Even if such a duty existed, Plaintiff
has pled not a single fact that supports a finding that First Choice knowingly breached that duty.
Merely repeating the statement that First Choice provided “false and fraudulent advice,” (Am.
Compl. ¶¶ 12, 36, 37, 39, 43, 44, 51, 52), does nothing to show that First Choice knew that its
statements were false. Having failed to sufficiently plead the necessary elements of negligence,
Count IV must be dismissed. 3
3
Even if Count IV were not dismissed on this basis, Plaintiff’s claim is arguably barred by the economic loss
doctrine. Courts in this District regularly dismiss negligence claims which are based on purely economic losses (i.e.,
not physical injury to person or property). See, e.g., Rao v. Anderson Ludgate Consulting, LLC, Civ. No. 153126SRC-CLW, 2016 WL 3647998, at *2 (D.N.J. July 7, 2016). The doctrine applies for tort actions between parties to
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CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED. An
appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig:
cc:
Clerk
Leda D. Wettre, U.S.M.J.
Parties
a contract, and as Plaintiff alleges it had a contract with Prometheus, which then “engaged First Choice to provide
training and advice to Plaintiff,” (Am. Comp. ¶ 11), all of Plaintiff’s alleged harm flows from contractual
obligations. Consequently, the economic loss doctrine precludes Plaintiff’s negligence claim.
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