RIAD v. SMITH et al

Filing 34

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 8/28/2013. 8/30/2013 ENTERED AND COPIES MAILED TO PRO SE AND UNREPS, E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH RIAD,
Plaintiff,

CIVIL ACTION

v.
VANNIPA SMITH, et al.,
Defendants.
NO. 13-2696
MEMORANDUM AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS AND
GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT
AND NOW, this 28th day of August, 2013, after review of Plaintiff’s Amended
Complaint (ECF 5); Defendants Andrew Alexis’s, Michael Fastman’s, and Tischer Autopark,
Inc.’s (the “Moving Defendants”) Motion to Dismiss (ECF 19); Plaintiff’s Response thereto (ECF
25); and Moving Defendants’ Reply (ECF 27), it is hereby ORDERED that:
1. Moving Defendants’ Motion to Dismiss is GRANTED;
2. Plaintiff’s Amended Complaint is DISMISSED, without
prejudice, with respect to Moving Defendants; and
3. Plaintiff is granted leave to file a Second Amended Complaint
within twenty-one (21) days of this order.
The reasons are as follows:
1. Plaintiff alleges that he gave approximately $58,000 to one of the
Defendants, Vannipa Smith, based on Smith’s representation that she could
purchase Plaintiff a BMW model X5 automobile at a favorable price. Smith,
however, used Plaintiff’s money to purchase the car for resale to a buyer in China
for a much higher price and kept all the proceeds from the resale.
2. Plaintiff’s First Amended Complaint sets forth various claims against
not only Smith, but two corporations allegedly controlled by her, 1 as well as the
1

These corporate defendants are not represented by counsel, and, therefore, Plaintiff
should, assuming they were properly served, seek a default as to them or drop them as defendants.

dealership where Smith allegedly purchased the BMW X5 and two of the
dealership’s employees/agents who allegedly participated in Smith’s resale
scheme.
3. Plaintiff sues Smith for breach of contract, and Smith and the Moving
Defendants in tort.
4. Plaintiff’s allegations as to the facts are confusing and contradictory.
This is particularly true regarding Defendant Smith.
For example, at one point, Plaintiff alleges that Smith admitted to receiving
$168,000 for two of Plaintiff’s cars (Am. Compl. ¶ 53); but Plaintiff also submitted
an affidavit from Smith stating that she was “double-crossed” by, among others,
one of her co-defendants, and she “never got any of the profits” from her alleged
resale scheme. (Smith Aff. ¶ 12, Ex. N to Pl.’s Resp.)
Plaintiff also alleges that Smith never intended to secure him a BMW X5, (Am.
Compl. ¶¶ 61-62) but Smith’s affidavit states that she intended to use some of the
profits from the aforementioned resale to the Chinese buyer to purchase Plaintiff a
“replacement x5 BMW.” (Smith Aff. ¶¶ 12, 18.)
5. The Court also notes that it previously held hearings in this case on June
13 and 26, 2013 regarding Plaintiff’s now withdrawn motion for a preliminary
injunction against Defendant Smith, which Plaintiff filed to prevent dissipation of
her assets. Based in part on Smith’s admissions at those hearings that she owed
money to Plaintiff, the Court allowed limited discovery into her finances, in
particular, her bank records. As of the date of this Order, Plaintiff has taken no
action regarding Smith’s admissions in open court. Plaintiff should consider
whether he would be well-served by securing a judgment based on Smith’s
admissions and pursuing enforcement of that judgment. The Court further notes
that Smith has not responded to the Amended Complaint, but Plaintiff has not
secured a default. This Order is without prejudice to Plaintiff taking further action
as to Smith.
6. As to Plaintiff’s tort claims, Plaintiff alleges that the various Defendants
conspired, but his Amended Complaint does not provide the level of factual
allegation required by Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), to satisfy Fed. R. Civ. P. 8.
As explained in Iqbal, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” 556 U.S. 678 (quotation omitted).
Plaintiff’s Amended Complaint, however, contains hardly more than the kind of
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements” that “do not suffice”; it lacks the requisite “factual content
that [would] allow[] the court to draw the reasonable inference that the defendant[s]

[are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555-56); accord Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d
Cir. 2008) (“We caution that without some factual allegation in the complaint, a
claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’
but also the ‘grounds’ on which the claim rests.” (citing Twombly, 550 U.S. at 556
n.3)).
7. Plaintiff’s claims for conversion and tortious interference appear to rely
entirely on the legal theory of conspiracy; but the Court holds that Plaintiff did not
plead facts sufficient to satisfy Iqbal’s and Twombly’s requirements with respect to
these torts.
8. As to damages, Plaintiff states a claim for damages against Smith of
approximately $58,000; it is unclear, however, why Plaintiff would have a claim
for anything greater from Smith. Additionally, in order to recover damages from
the Moving Defendants, Plaintiff must plead facts sufficient to support his tort
claims against them.
9. The relevant conduct in this case took place in both Maryland and
Pennsylvania; the UCC may apply, but Plaintiff does not state any UCC claim.
10. Finally, in view of the apparently complex web of allegations and
admissions that will need to be sorted out in resolving this case – which may
portend, in addition, knotty legal tangles – the parties may wish to explore
settlement before further engaging in this potentially complex and expensive
litigation.
BY THE COURT:
Lawrence F. Stengel, for
_______________________________
MICHAEL M. BAYLSON, U.S.D.J.
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