Cerny v. Rayburn

972 F. Supp. 2d 308, 2013 WL 5295299
CourtDistrict Court, E.D. New York
DecidedAugust 20, 2013
DocketNo. 11-cv-3263 (SLT)(VVP)
StatusPublished
Cited by8 cases

This text of 972 F. Supp. 2d 308 (Cerny v. Rayburn) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cerny v. Rayburn, 972 F. Supp. 2d 308, 2013 WL 5295299 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

TOWNES, District Judge:

Charles M. Cerny (“Plaintiff’), proceeding pro se, brings this action against FTI Consulting (“FTI”), Gregory F. Rayburn, and Michael Tucker, (together, the “FTI Defendants”), Greenberg Traurig and Nancy A. Mitchell (together, the “Green-berg Traurig Defendants”), and Silver Point Finance (“Silver Point”) (collectively, “Defendants”). The amended complaint also identifies twenty unnamed defendants listed as John Does 1-20. Plaintiff, asserting state and federal claims, alleges that Defendants engaged in various acts of fraud that caused the loss of his investment in Syntax-Brillian Corporation (“SBC”). The FTI Defendants, the Green-berg Traurig Defendants, and Silver Point [311]*311have all filed separate motions to dismiss Plaintiffs amended complaint. For the reasons that follow, Defendants’ motions to dismiss are all granted.

I. Standards of Review

In considering a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, a court must accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs favor. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint must allege sufficient facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. If a party does not “nudge[ his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id.

Because “a Rule 12(b)(6) motion challenges the facts alleged on the face of the complaint ... or, more accurately, the sufficiency of the statements in the complaint,” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (internal citations omitted), materials outside the four corners of the complaint are “generally not considered on a motion to dismiss unless the court treats it as one for summary judgment, giving all the parties a reasonable opportunity to present relevant evidence under Rule 56.” Nicholls v. Brookdale Univ. Hosp. Med. Ctr., 2004 WL 1533831, at *2 (E.D.N.Y. July 9, 2004). However, a court can consider “documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or ... documents either in plaintiffs possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993) (citing Cortec Indus., Inc., 949 F.2d at 47-48). The Second Circuit has clarified, however, that mere notice or possession of a document is not enough, and a plaintiff must have relied on the document in drafting the complaint. See U.S. v. Int’l Longshoremen’s Ass’n, 518 F.Supp.2d 422, 452 (E.D.N.Y.2007) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)).

Moreover, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). A court must “read the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the strongest arguments that they suggest.’ ” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). If a liberal reading of the complaint “gives any indication that a valid claim might be stated,” the court must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).

II. Background

Except where indicated, the following facts are drawn from the amended complaint (“AC”), documents attached to that complaint, and relevant filings in the related bankruptcy court proceedings. All facts are construed in a light most favorable to Plaintiff, the party opposing dis[312]*312missal.1

In 2005, a merger between Syntax Groups Corporation and Brillian Corporation resulted in a new corporate entity, SBC. In re Syntax-Brillian Corp., 2011 WL 3101809, at *1 (Bankr.D.Del. July 25, 2011). SBC was a public company engaged in the manufacture and distribution of high-definition televisions under the “Olevia” brand name, although Plaintiff asserts that the company was established solely to perpetrate fraud. (Plaintiffs Affidavit attached to the AC at 7.) Plaintiff was an investor-shareholder in SBC. (AC ¶ 1.) Although the exact date is unclear, at some point prior to filing its petition for bankruptcy, SBC retained FTI to provide business advice and crisis management. In re Syntax-Brillian Corp., 400 B.R. 21, 23 (Bankr.D.Del.2009). In connection with SBC’s arrangement with FTI, Gregory Rayburn, a partner with FTI, was appointed to serve as SBC’s Chief Restructuring Officer. Id.

A. The Bankruptcy Proceedings

On July 8, 2008, SBC and its affiliates filed a petition for Chapter 11 bankruptcy in the U.S. Bankruptcy Court in the District of Delaware.2 (Bankruptcy Case No. 08-11407 (“Bankr. Dkt.”) No. 1.) That same day, Rayburn filed an affidavit (the “Rayburn Affidavit”) with the bankruptcy court in support of SBC’s petition. In that affidavit, Rayburn assessed SBC’s financial state, described certain factors that gave rise to SBC’s bankruptcy filing, and moved for the court’s approval of a proposed sale of SBC assets. (Bankr. Dkt. No. 3; AC Ex. C ¶ 5.) The Rayburn Affidavit provided the evidentiary predicate for various motions and applications filed by SBC in the bankruptcy proceedings. In re Syntax-Brillian Corp., 400 B.R. at 24. SBC was represented in the bankruptcy proceedings by Greenberg Traurig. Id. at 22.

1. Allegations of Fraud Regarding the Asset Purchase Agreement

Prior to SBC filing its petition for bankruptcy, SBC and Olevia International Group, (“OIG”) entered into an Asset Purchase Agreement (“APA”), whereby SBC agreed to sell substantially all of its assets to OIG. (AC ¶¶ 22-24); In re Syntax-Brillian Corp., 400 B.R. at 22. FTI, Rayburn, and Silver Point participated in the negotiations of the APA. (AC Ex. K. at 4, 8.) Greenberg Traurig advised on the APA and participated in its preparation. (Id.

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