Rosa v. TCC Communications, Inc. et al
| Joseph Rosa |
| TCC Communications, Inc., TCC Wireless, Inc., TCC Holdco, Inc., Shaher Ismail and Javed Malik |
| 1:2015cv01665 |
| March 6, 2015 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Suffolk |
| William H. Pauley |
| Other Contract |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
114
OPINION AND ORDER re: 78 MOTION to Dismiss Third Amended Complaint, filed by TCC Wireless, Inc.; 76 MOTION to Dismiss the Third Amended Complaint, filed by TCC Holdco, Inc., Javed Malik. For the foregoing reasons, TCC Wireless and Holdco's motions to dismiss Counts One and Four are denied. Malik's motion to dismiss Count Four, and TCC Wireless and Holdco's motions to dismiss Count Six are granted. Malik's motion to dismiss Count Six is dismisse d as moot in view of Rosa's voluntary withdrawal of the claim. (Plaintiff's Memo. of Law in Opposition to Defendants' Motions to Dismiss at 21 (ECF No. 82).) The Clerk of Court is directed to terminate motions pending at ECF Nos. 76 and 78. (Signed by Judge William H. Pauley, III on 3/13/2017) (cla)
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Filing
53
MEMORANDUM & ORDER terminating 29 Letter Motion for Extension of Time; granting in part and denying in part 35 Motion to Dismiss; granting in part and denying in part 37 Motion to Dismiss. Plaintiff Joseph Rosa sues Defendants TCC C ommunications, Inc. ("TCCC"); TCC Wireless, LLC1 ("TCC Wireless"); and TCC Holdco, Inc. ("Holdco") (collectively, the "Corporate Defendants"), along with individuals Shaher Ismail and Javed Malik for: breach of contract; unjust enrichment; fraud; breach of the covenant of good faith and fair dealing (against the individual defendants); tortious interference (against the individual defendants); violation of New York Labor Law ("NYLL") § ; 190 et seq.; and an accounting. Defendants TCCC and Ismail move to dismiss the fraud, breach of the covenant of good faith and fair dealing, tortious interference, and NYLL claims pursuant to Fed. R. Civ. P. 12(b)(6), and to strike Rosa 9;s punitive damages and attorney's fees requests. Defendants Wireless, Holdco and Malik move to dismiss all claims against them. Holdco also seeks dismissal for lack of personal jurisdiction pursuant to Rule 12(b)(2). Lastly, TCCC and Ismail move pursuant to Rule 36(b) to withdraw an admission made in response to Plaintiff's Request for Admissions. Defendants' motions to dismiss are granted in part and denied in part. TCCC and Ismail's request to withdraw their admiss ion is denied. For the foregoing reasons, Rosa's common-law fraud and tortious interference claims are dismissed against all Defendants with prejudice. Further, Rosa's accounting claim against Defendants Malik, TCC Wireless and Hold co is dismissed with prejudice. His breach of the Subscription Agreement and unjust enrichment claims against TCC Wireless and Holdco are also dismissed with prejudice. TCCC and Ismail's motion to withdraw their admission pursuant t o Fed. R. Civ. P. 36(b) is denied. Plaintiff's request for punitive damages is stricken. Within 21 days of this Memorandum & Order, Plaintiff may file a Third Amended Complaint pleading claims for fraudulent conveyance and successor liability for TCC Wireless and Holdco (with respect to the Partnership Agreement). Plaintiff may not replead a New York Labor Law claim to the extent Plaintiff is seeking discretionary and/or incentive-based pay allegedly owed under the Contracts. Moreover, any amended complaint should make specific allegations regarding this Court's personal jurisdiction over Holdco. Counsel are directed to submit a proposed discovery schedule for this Court's consideration, including a d ate for submission of a joint pretrial order, within 28 days of this Order. Moreover, this Court encourages the parties to consider a settlement conference with the magistrate judge or mediation through the Southern District's Mediation Progr am. Any such request can be made jointly by the parties in a single-sentence letter to this Court. The Clerk of Court is directed to terminate all pending motions. (As further set forth in this Memorandum & Order.) (Signed by Judge William H. Pauley, III on 1/5/2016) (mro)
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