United States District Court, D. New Jersey
OPINION & ORDER
STANLEY R. CHESLER, UNITED STATES DISTRICT JUDGE.
matter comes before this Court on Plaintiffs' motion for
leave to file an amended Complaint. For the reasons stated
below, the motion will be denied.
versions of the Complaint had asserted claims against
Defendant Gary Martucci. After this Court received notice
that Gary Martucci had filed for bankruptcy, it entered the
Order of November 15, 2016, which stayed all claims against
Gary Martucci. Plaintiffs have now moved to amend the
Complaint to reassert the claims against Gary Martucci, and
point to an order of the Bankruptcy Court, dated June 30,
2017, dismissing Gary Martucci's bankruptcy petition.
After Plaintiffs filed this motion, Gary Martucci filed a
letter which stated that he is “totally confused”
by the motion. (Docket Entry No. 497.)
Rule of Civil Procedure 15(a)(2) states: “a party may
amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Under Third
Futility is also a sufficient ground to deny leave to amend.
“Futility” means that the complaint, as amended,
would fail to state a claim upon which relief could be
In re Merck & Co. Sec., Derivative & ERISA
Litig., 493 F.3d 393, 400 (3d Cir. 2007) (citations
omitted). Because the Court finds that the proposed Fifth
Amended Complaint could not withstand a motion to dismiss for
failure to state a claim upon which relief could be granted,
the Court concludes that amendment is futile, and the motion
for leave to amend will be denied.
Court has, on several occasions, issued decisions that
various versions of the Complaint in this case have failed to
plead sufficient facts to raise the right to relief above the
speculative level, as required by Iqbal. This
remains true of the proposed Fifth Amended Complaint. The
Fifth Amended Complaint alleges, in brief, that, on
unspecified occasions, dismissed Defendants William Martucci,
Barbara Queen, and Yamel Gonzalez transferred at least $8
million to Gary Martucci. Plaintiffs' brief states that
this is the factual basis for their claims against Gary
Martucci. (Pls.' Br. 6.) The proposed Fifth Amended
Complaint asserts these claims against Gary Martucci: 1)
tortious interference with economic interest; 2) conspiracy
to conceal assets to avoid recovery of a judgment; 3)
fraudulent conveyance; 4) fraudulent conveyance; 5) unjust
enrichment; 6) RICO violation; and 7) RICO violation.
proposed Fifth Amended Complaint does not meet the pleading
standard established by the Supreme Court in
Twombly: a Rule 12(b)(6) motion to dismiss should be
granted only if the plaintiff is unable to articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Federal Rule
of Civil Procedure 8(a)(2) requires only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Twombly,
127 S.Ct. at 1964 (quoting Conley v. Gibson, 355
U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “While
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Id. at
1964-65 (internal citations omitted); see also Fed.R.Civ.P.
8(a)(2). “Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 1965 (internal
citations omitted). Factual allegations must be well-pleaded
to give rise to an entitlement to relief:
[A] court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).
factual allegations in the proposed Fifth Amended Complaint
do not plausibly give rise to an entitlement to relief. This
Court finds that the proposed Fifth Amended Complaint could
not withstand a motion to dismiss for failure to state a
valid claim for relief, and that amendment is futile. The
motion for leave to amend will be denied.
these reasons, IT IS on this 22nd day of
that Plaintiffs' motion for leave to amend the Complaint