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Jordan (berm.) Inv. Co. v. Hunter Green Invs.

Jordan (berm.) Inv. Co. v. Hunter Green Invs.

United States District Court for the Southern District of New York

June 19, 2002, Decided ; June 25, 2002, Filed

00 Civ. 9214 (RWS)

Opinion

 [*245] Sweet, D.J.,

The defendants Investment Management Services, Inc. ("IMS"), International Fund Services (Ireland) ("IFSI"), International Fund Services, Inc. ("IFS"), European [**2]  Fund Services Limited ("EFS") and Thomas Grizzetti ("Grizzetti") (collectively, the "IMS defendants"), defendant Jonathan Vinnik ("Vinnik"), and defendants Rosenman & Colin LLP and Fred M. Santo ("Santo") (collectively the "Rosenman defendants"), have moved pursuant to Rules 9(b) and 12(b) 6, Fed. R. Civ. P. to dismiss the Amended Complaint of plaintiff The Jordan (Bermuda) Investment Company, Ltd. ("Jordan"). For the reasons set forth below, the motion is granted.

The Amended Complaint

The initial complaint in this action (the "Complaint") was dismissed by opinion of this Court on July 18, 2001 (the "July 18 Opinion"), The Jordan (Bermuda) Investment Co., Ltd. v. Hunter Green Investments Ltd., 154 F. Supp. 2d 682 (S.D.N.Y. 2001), and the issue presented is whether or not Jordan has cured the previously held defects. The parties and the background of the litigation, including the prior proceedings, were set forth in the July 18 Opinion and will not be repeated here since familiarity with that opinion is presumed.

Count I of the Amended Complaint alleges a Racketeer Influenced and Corrupt Organization ("RICO") claim under 18 U.S.C. 1962 [**3]  (b) only against "the Investment Manager Defendants, Administrator Defendants and Director Defendants," which include Vinnik and each of the IMS Defendants, but not the Rosenman defendants. 1 The Amended Complaint asserts that Vinnik and the IMS Defendants "maintained, directly or indirectly, an interest in" Beacon Emerging Debt Fund, Ltd. ("Beacon" or the "Fund") and Beacon Emerging Growth Fund LP ("Beacon Growth") "through a pattern of racketeering activity." (Am. Compl. at P 71).

 [**4]  The Amended Complaint repeats the allegations in the Complaint that there existed a scheme to induce The Jordan Trust 2 to invest $ 5,000,000 through Beacon by  [*246]  misrepresenting that Beacon Class J common stock (the "Class J shares") existed and that all potential investments would be presented to The Jordan Trust for its consideration and its written approval; by misleading The Jordan Trust as to the types of investments Beacon would make with the Trust's monies; and by omitting to disclose that the Trust's monies would be subjected to the claims and liens of Beacon's creditors. Like the original Complaint, the Amended Complaint also alleges that the defendants refrained from withdrawing the $ 5,000,000 by continuing to misrepresent the existence of the Class J shares and by concealing the fact that prohibited investments were being made with The Jordan Trust's monies.

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205 F. Supp. 2d 243 *; 2002 U.S. Dist. LEXIS 10913 **

THE JORDAN (BERMUDA) INVESTMENT COMPANY, LTD., Plaintiff, - against - HUNTER GREEN INVESTMENTS LTD., HUNTER GREEN INVESTMENTS LLC, JOHN SHILLING, ILYA KAMINSKY, JONATHAN VINNIK, INTERNATIONAL FUND SERVICES (IRELAND), INTERNATIONAL FUND SERVICES, INC., INVESTMENT MANAGEMENT SERVICES INC., THOMAS F. GRIZZETTI, MARK WILLIAM SOLLY, WILLIAM JAMES COWELL, EUROPEAN FUND SERVICES LIMITED, SUSANA BYRNE, ROSENMAN & COLIN LLP and FRED M. SANTO, Defendants.

Subsequent History: Motion granted by, in part, Motion denied by, in part Jordan (Berm.) Inv. Co. v. Hunter Green Invs. Ltd., 2003 U.S. Dist. LEXIS 5182 (S.D.N.Y., Mar. 31, 2003)

Prior History: Jordan (Berm.) Inv. Co. v. Hunter Green Invs. Ltd., 154 F. Supp. 2d 682, 2001 U.S. Dist. LEXIS 9958 (S.D.N.Y., 2001)

Disposition:  [**1]  Defendants motions to dismiss amended complaint granted, and amended complaint dismissed with costs and with prejudice.

CORE TERMS

allegations, shares, predicate act, fraudulent, investor, commonality, continuity, diversity, invest, stock, investment contract, pattern of racketeering activity, foreign state, particularity, enterprise, mail, account statement, induce, original complaint, wire fraud, non-existent, conspiracy, asserts, pled

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Dismissal, Involuntary Dismissals, Failure to State Claims, Pleadings, Heightened Pleading Requirements, Fraud Claims, General Overview, Antitrust & Trade Law, Private Actions, Racketeer Influenced & Corrupt Organizations, Criminal Law & Procedure, Racketeering, Racketeer Influenced & Corrupt Organizations Act, Elements, Claims, Fraud, Securities Law, Elements of Proof, Pattern, Fraud as Predicate Act, Civil Liability Considerations, Securities Litigation Reform & Standards, RICO Actions, Blue Sky Laws, Offers & Sales, Business & Corporate Compliance, Contracts Law, Types of Contracts, Investment Contracts, Scope of Provisions, Definitions, Securities Exchange Act of 1934 Actions, Investment Schemes, Crimes Against Persons, Coercion & Harassment, Copyright Law, Scope of Copyright Protection, Publication, Copyright Act of 1976, Group Published Information, Securities Act Actions, Civil Liability, Diversity Jurisdiction, Alienage Jurisdiction, Citizenship, Amount in Controversy, Determination, Citizenship, Subject Matter Jurisdiction, Jurisdiction Over Actions, Business & Corporate Law, Foreign Corporations, Business Entities, Corporate Formation, Place of Incorporation, Principal Office