Boykin et al v. 1 Prospect Park ALF, L.L.C. et al

Filing 33

MEMORANDUM AND ORDER, The Motions to Dismiss on the Pleadings are denied but converted to a Motion for Summary Judgment by defendants against all plaintiffs. Pltffs are given leave to file an Amended Complaint within fifteen days of the docketing of this order. A hearing on the motion for summary judgment and all other open issues will be held on August 29, 2013 at 10:00.. Ordered by Judge Jack B. Weinstein on 5/29/2013. (Piper, Francine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MEMORANDUM AND ORDER

SAMUEL BOYKIN, as adillinistrator of the
Estate of JOHN L. PHILLIPS, and MELVIN
DOZIER and KEVIN DOZIER, as CoGuardians ofIRENE DOZIER, an
Incapacitated Person, and MELVIN DOZIER
and KEVIN DOZIER, Individually and on
behalf of all others silllilarly situated,

12-CV-6243

"'~LEO

IN CLERK'SOl'Flce

J.S. DISTRrCTrXlllRTE.O.N.'I.

* NAf!;1 Z013

Plaintiffs,

*

BROOKLYN OFFICE

- against1 PROSPECT PARK ALF, LLC, PROSPECT
PARK RESIDENCE HOME HEALTH CARE,
INC., PROSPECT PARK RESIDENCE LLC,
KOHL ASSET MANAGEMENT, INC., and
KOHL PARTNERS, LLC
Defendants.

JACK B. WEINSTEIN, Senior United States District Judge:

For reasons stated orally on the record and in this lllelllorandUill and order, the Illotions to
disilliss on the pleadings are denied but converted to a Illotion for SUllllllary judgillent by
defendants against all plaintiffs. See Carione v. United States, 368 F. Supp. 2d 186, 191
(E.D.N.Y. 2005) ("Federal courts have cOlllplete discretion to detefilline whether or not to accept
the submission of any material beyond the pleadings offered in conjunction with a ... motion [to
dismiss], and thus complete discretion in detefillining whether to convert the motion to one for
sununary judgment." (quotation marks and citations omitted)). Notice to the parties that a
motion to dismiss is being converted into one for sununary judgment is required. See Fed. R.
Civ. P. 12(d) (conversion of motion to dismiss to one for sununary judgment requires that "[a]1I
parties be given a reasonable opportunity to present all the material that is pertinent to the
I

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motion"); Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991). The complaint is poorly
drafted, but there is enough in it to allow the case to go forward with expedited discovery and
summary judgment briefing.
The focus at the summary judgment stage shall be on, inter alia, issues related to class
action certification, subject matter jurisdiction, and the statute of limitations. A core issue will
be whether the plaintiffs can show a compensable injury caused by defendants' conduct as
required under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § I 964(c), or
any other cause of action they assert. Cj, Anza v. Ideal Steel Supply Co., 547 U.S. 451 (2006).
The plaintiffs are given leave to file an amended complaint within fifteen days of the
docketing of this order. Any amended complaint will be deemed denied by defendants. Mere
lack of licenses, if services rendered were not affected, appears to be insufficient to support a
private right of action.
The parties shall conduct expedited discovery and arrange a briefing schedule. Any
disputes related to discovery or the briefing schedule are respectfully referred to the assigned
magistrate judge.
A hearing on the motion for summary judgment and all other open issues will be held on
August 29,2013, at 10:00 a.m.

SO ORDERED.

ack B. Weinstein
enior United States District Judge
Dated: May 29,2013
Brooklyn, New York
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