Nastasi et al v. Lari
ORDER denying DE 45 , Motion to Amend the Complaint. For the reasons set forth in the attached written order, Plaintiffs' present motion to amend the Complaint is denied in its entirety. So Ordered by Magistrate Judge Steven I. Locke on 3/9/2017. (Perri, Anthony)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ASSOCIATES, INC., JACKSON AVENUE
SUPPLY, LLC, 511 JACKSON REALTY LLC,
240 MADISON STREET REALTY, LLC,
LOCKE, Magistrate Judge:
Presently before the Court on diversity grounds in this tort and breach of
contract litigation is the Plaintiffs’ – Anthony Nastasi; Nastasi and Associates, Inc.;
Jackson Avenue Supply, LLC; 511 Jackson Realty, LLC; and 240 Madison Street
Realty, LLC (“Plaintiffs” or “Nastasi”) – motion to amend the Complaint pursuant to
Federal Rule of Civil Procedure 15(a) (“Rule 15a”). 1 See Plaintiffs’ October 4, 2016
The parties consented to the Court’s jurisdiction on October 14, 2016, pursuant to 28 U.S.C.
§ 636(c). See DE . Accordingly, this matter was referred to the Court for all further proceedings.
Letter Motion (“Pl. Mot. to Amend”), Docket Entry (“DE”) .
Michelle Lari (“Defendant” or “Lari”), opposes. See Defendant’s Reply in Opposition
to Plaintiffs’ Motion to Amend the Complaint to Add New Parties (“Def. Opp.”), DE
. For the reasons set forth herein, Plaintiffs’ motion is denied in its entirety.
A. The Parties
From 2011 through 2014, Plaintiff Anthony Nastasi, a New York resident, was
a close associate of and romantically interested in Lari, a current resident of Los
See Complaint (“Compl.”), DE , ¶ 1; Proposed Amended
Complaint (“Amend. Compl.”), DE , ¶¶ 12-13, 29-30. He is the sole principal and
owner of all the other named plaintiffs, which are New York State limited liability
companies operating and headquartered in New York. See Compl. ¶ 1. Jacobo Piwko
and Gricelda Piwko (collectively, the “Piwkos”), whom the Defendant seeks to join in
this action, are the Defendant’s parents and Florida residents. See Amend. Compl. ¶
B. The Allegations
Plaintiffs allege that Defendant’s affection for Plaintiff Anthony Nastasi was a
confidence scheme in that Lari feigned romantic interest in him to gain access to
Plaintiffs’ wealth and assets. See Amend. Compl. ¶¶ 76-80. Over the course of their
relationship, Plaintiffs made transfers to Defendant totaling approximately
$477,436.55 that they assert were multiple six-month, no-interest, renewable loans
that all have since come due and are presently still in default. See id. ¶ 78. During
this same time, Plaintiffs also made gifts to Defendant totaling $299,977.96 in
jewelry, clothing, pocketbooks, shoes, and concert tickets. See id. ¶ 76.
In response to Defendant’s alleged refusal to repay the outstanding loans,
Plaintiffs assert causes of action for breach of oral agreement and unjust enrichment.
See Compl. ¶¶ 27-56. On September 26, 2016, the Court granted Plaintiffs’ motion
for leave to amend the Complaint to include additional claims against Lari of fraud
and conversion, but denied without prejudice their application to add causes of action
against the Piwkos. See DE .
On October 4, 2017, Plaintiff renewed their application to amend the complaint
to include a cause of action against the Piwkos for unjust enrichment. See Pl. Mot. to
Amend; Amend. Compl. ¶¶ 94-103. 2 In the Proposed Amended Complaint, Plaintiffs
allege that Nastasi wired $50,000 into Defendant’s bank account on February 25,
2013 as part of an oral agreement to loan Lari that money and that Defendant later
gave $35,000 of that money to her parents, the Piwkos. See Amend. Compl. ¶¶ 95,
98. Plaintiffs also assert that because Lari did not give Nastasi authorization to make
the deposits into her accounts and because she denies that there ever was a loan
agreement, she had no right to any part of the money at issue. See id. ¶¶ 96-97, 10001. Based upon the foregoing, Plaintiffs demand that the Piwkos repay the $35,000
with interest under a theory of unjust enrichment. See id. In support of this relief,
Both Plaintiffs and Defendant reference an additional cause of action for “Money had and
received.” See Pl. Mot. to Amend at 1; Def. Opp. § I.C. The Proposed Amended Complaint, however,
contains only one additional claim for unjust enrichment. See Amend Compl. ¶¶ 94-103. Accordingly,
the Court here addresses the only amendment that Plaintiffs have actually articulated in the Proposed
Nastasi argues that it is immaterial that the Piwkos are “innocent of wrongdoing in
receiving [P]laintiffs’ monies” because unjust enrichment does not require
substantiating prior dealings or malice, only that the money at issue has been
“transferred directly from [P]laintiffs’ account to theirs (albeit by a third
party/defendant Michelle Lari).” Pl. Mot. to Amend at 2 (citing T.D. Bank, N.A. v. JP
Morgan Chase Bank, N.A., 10-CV-2843, 2010 WL 4038826, at *5 (E.D.N.Y. Oct. 14,
2010) (finding elements of unjust enrichment properly pled where plaintiff was
fraudulently induced to transfer $2.09 million into a bank account that was otherwise
empty and created for the sole purpose of receiving the funds, after which, within
days approximately 99 percent of those funds had been transferred out of the HSBC
account into defendant’s account)). Were the Court to determine that it is necessary
for Plaintiffs to demonstrate a more direct relationship between the Piwkos and
Nastasi, Plaintiffs offer in their papers additional facts they could plead including
that the Piwkos used Nastasi’s skybox at Madison Square Garden to attend a Rangers
NHL hockey game, that Plaintiffs purchased tickets to the Jersey Boys musical and
the Christmas Spectacular at Radio City Music Hall for the Piwkos, and that Nastasi
paid for them to eat Thanksgiving dinner at Scotto. Id at 3. Additionally, Plaintiffs
assert that Griselda Piwko was aware of Lari’s ongoing relationship with Plaintiff
Anthony Nastasi and, finally, that Defendant requested a $250,000 loan to purchase
a new house for her parents. See id.
In opposition, Defendant initially argues that the amendments regarding the
Piwkos are futile due to a lack of both subject matter and personal jurisdiction. See
Def. Opp. § I.A. Alternatively, Lari argues that the Proposed Amended Complaint
must be dismissed because Plaintiffs failed to plead enough facts as could
substantiate the requisite nexus between the Piwkos and Plaintiffs to sustain a
charge of unjust enrichment. See id. at I.B-C. Finally, Lari urges the Court to deny
Nastasi’s application because it is made in bad faith, with undue delay, and would
cause prejudice to accrue to the Defendant. See id. at § I.D-F.
Motions to amend pleadings are governed by Rule 15(a), which provides that
“[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ.
P. 15(a)(2); see Amaya v. Roadhouse Brick Oven Pizza, Inc., 285 F.R.D. 251, 253
(E.D.N.Y. 2012) (“A court should freely give leave [to amend] when justice so requires
and such leave is in the court’s discretion.”) (internal quotation omitted); Assam v.
Deer Park Spring Water, Inc., 163 F.R.D. 400, 404 (E.D.N.Y. 1995) (“Federal Rule of
Civil Procedure 15(a) dictates that motions to amend complaints be liberally granted
absent a good reason to the contrary . . . .”). Motions to add parties are governed by
Federal Rule of Civil Procedure 21 (“Rule 21”) and are afforded the “same standard
of liberality afforded to motions to amend pleadings under Rule 15.” Addison v.
Reitman Blacktop, Inc., 283 F.R.D. 74, 79 (E.D.N.Y. 2011); see Fed. R. Civ. P. 21;
Amaya, 285 F.R.D. at 253 (“There is . . . little practical difference between Rule 15
and Rule 21 since they both leave the decision whether to permit or deny an
amendment to the district court’s discretion.”).
Therefore, leave to amend a complaint should only be denied “if there is delay,
bad faith, futility, or prejudice to the non-moving party.” Hosking v. New World
Mortg., Inc., 602 F. Supp. 2d 441, 445 (E.D.N.Y. 2009) (citing Foman v. Davis, 371
U.S. 178, 182, 83 S. Ct. 227, 230 (1962)). An amendment is futile if “the proposed
claim could not withstand a … motion to dismiss.” Salazar v. Browne Realty Assocs.,
L.L.C., 796 F. Supp. 2d 378, 383 (E.D.N.Y. 2011). Therefore, a proposed amended
complaint must “contain enough allegations of fact to state a claim for relief that is
‘plausible on its face.’” Mendez v. U.S. Nonwovens Corp., 2 F. Supp. 3d 442, 451
(E.D.N.Y. 2014) (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974 (2007)).
When a party opposes a motion to amend on futility grounds,
“the moving party must merely show that it has at least colorable grounds for relief.”
Copantitla v. Fiskardo Estiatorio, Inc., 09 Civ. 1608, 2010 WL 1327921, at *3
(S.D.N.Y. Apr. 5, 2010) (internal quotation omitted). The party opposing a motion to
amend bears the burden of establishing that the amendment should be denied. See
Joinnides v. Floral Park–Bellerose Union Sch. Dist., 12-CV-5682, 2015 WL 1476422,
at *9 (E.D.N.Y. Mar. 31, 2015) (“With respect to the Rule 15(a) factors, ‘[t]he party
opposing the motion for leave to amend has the burden of establishing that an
amendment would be prejudicial or futile.’”) (quoting Cummings–Fowler v. Suffolk
Cty. Cmty. Coll., 282 F.R.D. 292, 296 (E.D.N.Y. 2012)). Accordingly, on a motion to
amend, “the Court is required to accept the material facts alleged in the amended
complaint as true and draw reasonable inferences in the plaintiff’s favor.” Mendez, 2
F. Supp. 3d at 451 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937,
In examining the alleged futility of the Proposed Amended Complaint, before
considering its the factual sufficiency, the Court first turns to whether jurisdiction
over the new claim and the new parties the amendment seeks to join is proper. See
Certain Underwriters, Subscribing To Policy Numbers DG055707, DG061908,
4N65010001, RMP201072954 & PCA9002942-00 v. LLC Doncasters, Inc., 3:10-CV00915, 2011 WL 1217169, at *4 (D. Conn. Mar. 30, 2011) (noting that the motion to
amend cannot be considered until the motion to dismiss on jurisdictional grounds has
A. Subject Matter Jurisdiction
As the amount in controversy alleged against the Piwkos is below $75,000, the
Court lacks subject matter jurisdiction over the claims against them and thus cannot
grant Plaintiffs’ motion to amend because such an amendment would rightly be
subject to a motion to dismiss. Preliminarily, a cause of action “is properly dismissed
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
(“Rule 12(b)(1)”) when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When a
court reviews a motion to dismiss for lack of subject-matter jurisdiction, it “must
accept as true all material factual allegations in the complaint, but [it is] not to draw
inferences from the complaint favorable to [the] plaintiff[ ].” J.S. ex rel. N.S. v. Attica
Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). In this context, the plaintiff “bears the
burden of proving subject matter jurisdiction by a preponderance of the evidence.”
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
When applied to the present matter, where the diversity of the parties is
undisputed, the only question remaining as to subject matter jurisdiction is whether
the “amount in controversy” exceeds the statutory threshold of $75,000, exclusive of
interests and costs. See 28 U.S.C. § 1332(a). A plaintiff may satisfy this jurisdictional
minimum by aggregating claims against multiple defendants, but only when their
liability is common, undivided, or joint. Esmilla v. Cosmopolitan Club, 09 CIV. 10169,
2011 WL 814007, at *4 (S.D.N.Y. Mar. 3, 2011) (citing E.R. Squibb & Sons, Inc. v.
Accident & Cas. Ins. Co., 160 F.3d 925, 933–35 (2d Cir. 1998) (finding that, in
diversity actions, “several liabilities of different defendants to the same plaintiff
cannot be aggregated to satisfy the jurisdictional minimum) (internal quotation
omitted)). By contrast, when defendants’ liabilities are several and distinct, the
amount in controversy threshold must be met with respect to each and every
individual defendant regardless of whether the claims are temporally proximate or
factually interrelated. See Green v. Doukas, 97 CIV. 8288, 2001 WL 767069, at *2
(S.D.N.Y. June 22, 2001) (quoting 1 J.W. Moore, Federal Practice ¶ 0.97 (2d ed.
1995) (“‘[A]ggregation is allowed when the defendants’ liability to the plaintiff is
common, undivided, or joint. It is not allowed when the defendants’ liability is
several, or if the claims against them are separate and distinct from one another.’”);
Congram v. Giella, 91 Civ. 1134, 1992 WL 349845, at *3 (S.D.N.Y. Nov. 10, 1992)
(quoting J.W. Moore, Federal Practice ¶ 0.97) (holding that plaintiff could not
aggregate claims against co-defendants that relied on different bases of liability, as
“‘[a]ggregation depends upon the nature of the defendants’ liability to the plaintiff
rather than on the source of the right to sue or transactional relatedness of the
Plaintiffs allege that Defendant transferred to the Piwkos $35,000 that
rightfully belongs to Nastasi and, thus, seek to assert a claim of unjust enrichment
against them. See Amend. Compl. ¶¶ 95-98. As set forth by Plaintiff, the sole basis
for the Court’s jurisdiction over this additional state law claim is diversity. See
Amend. Compl. ¶ 9. Additionally, there is no assertion that the Piwkos are jointly
liable for any of the damages attributed to Lari beyond the $35,000 that she allegedly
transferred to them.
There are no allegations that the Piwkos acted
affirmatively, with malice, or had any meeting of the minds with Defendant regarding
the transfer of the funds or any of Lari’s other allegedly tortious conduct. See Amend.
Compl. ¶¶ 93-103. Therefore, there is no support for a contention that they and
Defendant were jointly liable for any amount in excess of the $35,000 that they
purportedly received from their daughter. See id. Accordingly, Plaintiffs cannot
aggregate this amount with the much larger sum they seek from Defendant directly
on their other claims for fraud, conversion, breach of oral agreement, and unjust
enrichment because these claims do not give rise to common, undivided or joint
liability with the Piwkos for an amount exceeding $75,000. See Esmilla, 2011 WL
814007, at *5 (on a diversity matter, denying motion to amend the complaint where
liability with otherwise joinable defendants was several and state-law claims failed
to exceed the statutory minimum).
Although supplemental jurisdiction, as set forth in 28 U.S.C. § 1367, often
allows a court with original jurisdiction over at least one claim to hear other, related
claims, section 1367 does not allow a plaintiff to circumvent the jurisdictional limit
in a diversity matter. Congram, 1992 WL 349845, at *3 (noting that, in a case where
original jurisdiction is grounded solely in section 1332, the aggregation rules of
section 1332 apply in determining whether the Court has supplemental jurisdiction
under section 1367 over claims by a plaintiff). For, although section 1367(a) provides,
in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution,
the exception created by section 1367(b) is applicable here. See 28 U.S.C. § 1367(a).
Section 1367(b) clearly states that when subject matter jurisdiction is founded solely
“the district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made parties
under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or
over claims by persons proposed to be joined as plaintiffs under Rule 19
of such rules, or seeking to intervene as plaintiffs under Rule 24 of such
rules, when exercising supplemental jurisdiction over such claims would
be inconsistent with the jurisdictional requirements of section 1332.
28 U.S.C. § 1367(b).
Here, Plaintiffs’ proposed unjust enrichment claim against the Piwkos would
sufficiently relate to the other claims against Lari, which fall within the Court’s
original jurisdiction, to be considered part of the same case or controversy under
Article III. See Esmilla, 2011 WL 814007, at *5 (noting that corporate officers’
individual roles in plaintiff’s termination were properly related to the original cause
of action against employer as to make them joinable).
However, as original
jurisdiction in this case is based solely on diversity and as the Piwkos would be made
defendants as permissive parties under Rule 20, see Fed. R. Civ. P. 20(a)(2), “the
Court may not exercise supplemental jurisdiction over Plaintiff[s’] proposed claim, if
doing so would be inconsistent with the jurisdictional requirements of Section 1332,”
specifically the $75,000 threshold. Esmilla, 2011 WL 814007, at *5; Green, 2001 WL
767069, at *2 (dismissing claims against proposed additional diverse parties over
whom the court would not have had original jurisdiction because the amount in
controversy with respect to each of them was under $75,000 and liability was several).
As explained above, Plaintiffs’ proposed claim against the Piwkos does not
meet the amount-in-controversy requirement of Section 1332. See supra at 8-10.
Accordingly, Section 1367 cannot provide a basis for jurisdiction. See Green, 2001 WL
767069, at *2 (citing Am. Bldg. Maint. Co. v. 1000 Water Street Condo. Assoc., 9 F.
Supp. 2d 1028, 1031–32 (E.D. Wisc. 1998) (holding that the district court could not
exercise supplemental jurisdiction over diverse party permissibly joined as a
defendant, unless the plaintiff’s claims against this party independently satisfied the
Based on the foregoing, the Court denies
Plaintiffs’ motion for leave to amend as it lacks subject matter jurisdiction over the
proposed unjust enrichment claim against the Piwkos, rendering the amendment
subject to a motion to dismiss and thus futile.
B. Personal Jurisdiction
Even were the amount in controversy to surpass the statutory requirement of
$75,000, Plaintiffs’ motion would nevertheless be denied because the Court lacks
personal jurisdiction over the Piwkos. Personal jurisdiction in a diversity case is
determined by the law of the state in which the district court sits so long a state’s
assertion of jurisdiction does not violate a party’s due process rights under the United
States Constitution. See SAS Grp., Inc. v. Worldwide Inventions, Inc., 245 F. Supp.
2d 543, 547-48 (S.D.N.Y. 2003) (citing Kernan v. Kurz–Hastings, Inc., 175 F.3d 236,
240 (2d Cir. 1999); Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d
Cir. 1996) (quoting Arrowsmith v. United Press Int’l, 320 F.2d 219, 223 (2d Cir.1963))
(“‘[T]he amenability of a foreign corporation to suit in a federal court in a diversity
action is determined in accordance with the law of the state where the court sits, with
federal law entering the picture only for the purpose of deciding whether a state’s
assertion of jurisdiction contravenes a constitutional guarantee.’”).
As it is not disputed that the Piwkos are neither residents nor domiciliaries of
New York; see Amend. Compl. ¶¶ 9, 93-103; Def. Opp.; a claim of personal jurisdiction
over them must be premised on Section 302(a) of New York’s long-arm statute. That
statute provides that a court may obtain jurisdiction over a non-domiciliary
defendant if it:
1. transacts any business within the state or contracts anywhere to
supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of
action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or
property within the state, except as to a cause of action for
defamation of character arising from the act, if it
i. regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered, in the
ii. expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue
from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the state.
N.Y. C.P.L.R. 302(a).
Plaintiff has not pled any facts as would support a finding of personal
jurisdiction under subsections 1, 2, 3, or 4 above. Subsections 1 and 4 are wholly
inapplicable to the present case as the Piwkos are individuals and no specific facts
regarding their businesses, employment, or holdings have been raised in the
pleadings. See Amend. Compl. ¶¶ 9, 94-103. Additionally, Plaintiffs’ claim for unjust
enrichment cannot satisfy the requirements of subsections 2 or 3 because unjust
enrichment is not properly classified as a tortious act. Unlike a tort, which is founded
in law, unjust enrichment is a claim rooted in equity. See Miller v. Schloss, 218 N.Y.
400, 407, 113 N.E. 337 (1916) (holding the claim to be based on “the equitable
principle that a person shall not be allowed to enrich himself unjustly at the expense
of another”). Unjust enrichment is “a ‘quasi-contract claim’ and contemplates ‘an
obligation imposed by equity to prevent injustice, in the absence of an actual
agreement between the parties.’” Campione v. Campione, 942 F. Supp. 2d 279, 283
(E.D.N.Y. 2013) (quoting Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516,
950 N.Y.S.2d 333, 336, 973 N.E.2d 743, 746 (2012) (internal quotation marks and
citations omitted)). As Plaintiffs properly contend, the elements of unjust enrichment
do not require any proof regarding the mens rea of or acts by the liable party.
Compare Pl. Mot. at 1-2 with Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173,
182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 (2011) (brackets and internal quotation
marks omitted) (holding that adequately pleading unjust enrichment requires a
plaintiff to allege “that (1) the other party was enriched, (2) at that party’s expense,
and (3) that it is against equity and good conscience to permit the other party to retain
what is sought to be recovered”). Regarding the Piwkos, Nastasi has pled only that
they are in possession of funds that belong to Plaintiffs and not that they have
committed any other acts either within or outside the State of New York. See Amend.
Compl. ¶¶ 99-103. As a consequence, neither subsection 2 nor subsection 3 provide
any basis to assert personal jurisdiction over the Piwkos, because the cause of action
asserted against them does not constitute a tortious act.
Accordingly, as this Court lacks personal jurisdiction over the parties that
Plaintiffs seek to add through the Proposed Amended Complaint, the Court again
denies the motion as the amendment is subject to dismissal and thus futile. See Fed.
R. Civ. P. 12(b)(2). 3
the Defendant also disputes Plaintiffs’ argument that the Proposed Amended
Complaint properly articulates a cause of action for unjust enrichment against the Piwkos, because
the Court lacks both subject matter jurisdiction over the proposed claim and personal jurisdiction over
the proposed parties, the Court declines to examine the factual sufficiency of the pleadings themselves.
Cf. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”); Manway Constr. Co. v. Housing Auth. of Hartford,
711 F.2d 501, 503 (2d Cir. 1983) (“It is common ground that in our federal system of limited jurisdiction
any party or the court sua sponte, at any stage of the proceedings, may raise the question of whether
the court has subject matter jurisdiction; and, if it does not, dismissal is mandatory.”); Jackson v.
AFSCME Local 196, 3:07–CV–471, 2008 WL 544730, at *2-3 (D. Conn. Feb. 25, 2008) (holding that a
For the reasons set forth herein, Plaintiffs’ present motion to amend the
Complaint is denied in its entirety.
Central Islip, New York
March 9, 2017
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
court must deny a motion to amend the complaint if the Court lacks subject matter jurisdiction over
the claims set forth in the proposed amended complaint).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?