Gotlin v. LedermanGotlin v. Lederman
- Reporters:
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- Before:
- Glasser
MEMORANDUM AND ORDER
GLASSER, District Judge.
This action is brought on behalf of Italian nationals, all but one of whom are now deceased due to their infliction with various types of cancer, against the physicians who treated them and their employers in the United States. Plaintiffs and their representatives allege that defendants unlawfully induced them through misrepresentations to undergo a radiation procedure developed by defendants and that they forewent other treatment options as a result. Pending before the Court is the motion of defendants
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to dismiss the complaint for lack of subject matter jurisdiction pursuant to
FACTS
The following facts taken from plaintiffs’ complaint are assumed to be true for purposes of this motion. The estates of the deceased plaintiffs are represented by Gary D. Gotlin, the New York State Richmond County Public Administrator. Compl. ¶ 2. Plaintiffs sue the hospitals where they were treated, Staten Island University Hospital (“SIUH”), North Shore-Long Island Jewish Healthcare, Inc. (“North Shore LIJ”), and North Shore-Long Island Jewish Health System, Inc. (“North Shore Health System”),
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and various individuals who are the administra
Plaintiffs allege that in late 2001 or early 2002, defendants created an International Patient Program through which they marketed the Fractionated Stereotactic Radio-surgery (“FSR”) cancer treatment method to Europeans and, in particular, Italian nationals. Id. ¶ 31. FSR involves “precision radiation using multiple, finely contoured beams from many different angles directed at the cancer, minimizing radiation to normal healthy tissue. A non-invasive stereotactic frame maintains the body in a stable, reproducible position. A stereotactic body frame secures this position which is painlessly and non-invasively custom-molded about the body.” Id. ¶ 32. Plaintiffs allege that defendant physicians and hospitals treated them and hundreds of Italian nationals using this method. Id. ¶ 33. The FSR method was discontinued in late 2003 or early 2004.
Defendants marketed FSR to plaintiffs and the public at large in various ways, including literature, television, radio, in-person seminars and the Internet. Id. ¶ 36. Plaintiffs allege that those advertisements contained “misleading, fraudulent, deceitful, and shocking claims, statements, and information.” Id. ¶ 40. For example, the “Fractionated Stereotactic Body Ra-diosurgery” marketing booklet stated, “the vast majority of cancer treatments at [SIUH] with Body Radiosurgery — 90 percent — are successful in the targeted area.” The booklet also declared success rates for particular cancers such as primary liver cancer and lung carcinomas. Id. ¶ 40. In addition to indicating inaccurate and misleading success rates, literature that defendants disseminated to plaintiffs represented that SIUH had performed “one hundred thousand radiosurgeries!” and its “group of expert physicians has the greatest experience worldwide.” Id. ¶ 41(a), (b). Defendants represented FSR therapy as effective in cases “when normal radiation has not been successful.” Id. ¶ 41(d). Moreover, the literature stated that the FSR had minimal side effects. Id. ¶ 42. These written materials were translated into Italian and disseminated to plaintiffs through the mail and electronically. Id. ¶ 43.
In addition to literature, defendants created video advertisements of their product that also contained false and misleading statements about the success rate of FSR. In one video, Lederman, the Director of Radiation Oncology for defendant hospitals, stated, “Many people call [FSR] a treat, not a treatment because of the effectiveness and the lack of toxicity in general.” Id. ¶46. Defendants issued similar messages about the treatment in Italian television broadcasts and on Internet web sites. Id. ¶¶ 50-54. Plaintiffs allege that they relied on these representations and were induced to seek treatment at defendant hospitals. Id. ¶¶ 56-59.
Defendants also organized conferences throughout Italy to market the treatment, which the plaintiffs attended. Defendants Lederman, Salvatore Conte, and Gelmi-Nourbaha spoke at the conferences. At those events and elsewhere, Salvatore Conte, who worked at a Naples, Italy office established by defendants, falsely represented himself as a medical doctor and oncologist.
Id.
¶¶ 66, 69, 78. Plaintiffs allege that defendants knew or should
Plaintiffs allege they relied on these representations to their detriment and that defendants “preyed upon the plaintiffs’ fears and hopes at their most vulnerable time, when stricken with cancer.” Id. ¶ 81. Plaintiffs were deceived into visiting the United States for FSR treatment based on promises that the procedure would help them. Such representations deprived plaintiffs of the opportunity to seek other necessary care and the FSR treatment caused plaintiffs pain and worsened their medical conditions. Id. ¶ 179. Most died shortly after receiving the treatment in a matter of weeks or months. Id. ¶ 85.
On August 27, 2004, plaintiffs and their representatives filed a complaint alleging violation of New York Business Law §§ 349 and 350; common law fraud; unjust enrichment; hospital and medical negligence; negligent misrepresentation; breach of warranty; medical malpractice; violation of New York State Public Health Law § 2805-d; wrongful death; loss of consortium; violation of
Defendants move to dismiss the complaint for lack of subject matter jurisdiction pursuant to
DISCUSSION
When deciding a motion to dismiss for failure to state a claim for relief under
I. Subject Matter Jurisdiction
Defendants contend that this Court lacks diversity jurisdiction over this action. The requirements of
II.
Lanham Act Claim Pursuant to
Plaintiffs assert a cause of action under
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
Defendants argue that plaintiffs lack standing to pursue that claim in light of
Colligan v. Activities Club of N.Y., Ltd.,
442 F.2d 686 (2d Cir.1971). That case involved a class action brought by school children, through their parents and next friends, based on false descriptions and representations made by defendant ski tour company. In considering standing to sue in view of the congressional intent behind the Act, the Court held that its purpose “is exclusively to protect the interests of a purely commercial class against unscrupulous commercial conduct.”
Id.
at 692. Moreover, the Court declined to find that in enacting the Lanham Act, Congress
Plaintiffs in this case concede that under the
Colligan
ruling, they, as consumers, do not have standing to sue defendants. PI. Opp. at 37. They urge this Court, however, to create an exception to the bar against consumer standing “where the false advertising is especially reprehensible and patientsf] lives are placed in imminent jeopardy as a result.”
Id.
at 38. Specifically, they advocate adopting a literal reading of the phrase “any person” in
III. RICO Claim (Count XII)
Plaintiffs assert a cause of action against defendants under
In order to establish standing to sue under § 1964(c), a plaintiff must demonstrate: (1) a violation of substantive RICO,
i.e.,
“The requirement that the injury be to the plaintiffs business or property means that the plaintiff must show a proprietary type of damage.”
Bankers Trust Co. v. Rhoades,
741 F.2d 511, 515 (2d Cir.1984),
vacated on other grounds,
473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985). In that case, the Court explained what is meant by “proprietary type of damage” as follows: “For example, a person physically injured in a fire whose origin was arson is not given a right to recover for his personal injuries; damage to his business or his building is the type of injury for which § 1964(c) permits suit.” 741 F.2d at 515. The Second Circuit has adopted a narrow reading of this requirement.
Town of W. Hartford v. Operation Rescue,
915 F.2d 92 (2d Cir.1990), involved claims of RICO violations by plaintiff town against anti-abortion protestors for allegedly preventing the abortion center from performing abortions by extortion and harassment of clinic clients. The Second Circuit dismissed the RICO claim, holding that plaintiffs failed to adequately allege “injury to business or property” by alleging that defendants’ conduct diverted police activities in the town, the town incurred increased manpower and equipment costs in responding to the
In this complaint, plaintiffs allege that the corporate and individual defendants were part of an enterprise in fact under
Plaintiffs’ allegations are personal in nature, notwithstanding their incidental economic loss of $17,500 as payment for defendants’ service. In analogous cases, courts routinely dismiss RICO claims in which plaintiffs allege personal injury as a result of alleged RICO violations. For example, in GAUSE, 2000 WL 34016343, at *1, plaintiff brought a RICO claim against a tobacco company alleging that she suffered “economical injuries due to smoking related disease and illness,” including loss of employment and loss of income. The court held that plaintiff alleged merely personal injuries and that loss of income due to an inability to work was not a loss of property sufficient to maintain a RICO claim. Significantly, the court noted that allegations of a financial loss incidental to a personal injury such as loss of earnings or pain and suffering are not considered injury to property or business. Id. at *4 (citing Doe v. Roe, 958 F.2d 763, 770 (7th Cir.1992)). The court dismissed the claim for lack of standing. See also Le Paw v. Bat Indus. P.L.C., 1997 WL 242132, at *2 (E.D.N.Y. Mar. 6, 1997) (Gleeson, J.) (dismissing RICO claim against tobacco company where core injury alleged by plaintiffs was physical injury resulting from addiction, despite allegations that they only sought recovery on those claims for expenses incurred in purchasing cigarettes). Accordingly, because plaintiffs fail to adequately allege injury to their business or property pursuant to § 1964(c), the Court dismisses the RICO claim in Count XII.
IV. Fraud (Count II)
In Count II of the complaint, plaintiffs assert a cause of action for common law fraud, alleging that from 2002 to 2003 defendants made various intentional and knowing misrepresentations regarding the FSR treatment, such as its success rate generally (for example, that it had “tremendous results”), and in particular for those who had exhausted other treatment options.
See
Compl. ¶¶ 151-54. Additionally, plaintiffs claim that defendants inten
Defendants argue that plaintiffs’ fraud claim should be dismissed because plaintiffs do not plead that claim separate and apart from their medical malpractice claim. See Def. Mem. at 16-19. “The rule is well established that concealment by a physician or failure to disclose his own malpractice does not give rise to a cause of action in fraud or deceit separate from the customary malpractice action. It is only when the alleged fraud occurs separately from and subsequent to the malpractice that a plaintiff is entitled to allege and prove a cause of action for intentional tort and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice.” Coopersmith v. Gold, 172 A.D.2d 982, 984, 568 N.Y.S.2d 250 (3d Dep’t 1991) (citations omitted). In Simcuski v. Saeli, 44 N.Y.2d 442, 451-52, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978), the Court held that the defendant was estopped to plead the statute of limitations as a bar to the plaintiffs malpractice claim when she was induced to refrain from filing timely by the defendant’s post-operative fraud, misrepresentation and deception. In the course of the opinion, the Court recognized and approved the “cases which hold that, without more, concealment by a physician or failure to disclose his own malpractice does not give rise to a cause of action in fraud or deceit separate and different from the customary malpractice action.... ” Id. at 452, 406 N.Y.S.2d 259, 377 N.E.2d 713. The “rule” applied in Coopersmith and recognized and approved in Simcuski is the rule plainly applicable to this complaint.
The Court finds that plaintiffs’ fraud allegations on the whole are sufficiently distinct from their allegations of medical malpractice. Plaintiffs’ fraud allegations are that defendants intentionally misrepresented the success rate of FSR repeatedly in both materials advertising the treatment and directly to the plaintiffs at conferences. Plaintiffs allege that in reliance on these representations, they were induced to seek treatment in the United States and to forego other treatment. While there is at least one allegation common to the two claims, for example, that Conte misrepresented himself as a medical doctor and oncologist, see Compl. ¶¶ 155, 212, plaintiffs’ fraud claim does not rest merely on “concealment by a physician or failure to disclose his own malpractice.” See Coopersmith, 172 A.D.2d at 984, 568 N.Y.S.2d 250. Moreover, as in Spinosa v. Weinstein, 168 A.D.2d 32, 42, 571 N.Y.S.2d 747 (2d Dep’t 1991), plaintiffs’ allegation that defendants failed to obtain informed consent from them advising them of “benefits, risks, and alternatives” to FSR is distinct from a fraud claim for intentional misrepresentation. Compl. ¶ 219.
Notwithstanding the sufficiency of those allegations, plaintiffs fail to sufficiently allege a distinct injury flowing from the fraud. In connection with their medical malpractice cause of action plaintiffs allege serious physical injuries and death.
Id.
¶¶ 224-32. Plaintiffs’ contention,
see
PI. Opp. at 24, that the separate injury underlying their fraud claim is the $17,500 defendants induced them to pay for the treatment is belied by the complaint in which they allege that in reliance on defendants’ misrepresentations they were “enticed to leave Italy and undergo treatment by the defendants in Staten Island, but the majority of patients treated, including the deceased plaintiffs, died shortly after the treatment, sometimes within weeks, sometimes within months.” Compl. ¶ 85. They
V. Negligent Misrepresentation (Count V)
Plaintiffs assert a cause of action for negligent misrepresentation in Count V of the complaint. As with plaintiffs’ fraud claim, the negligent misrepresentation claim must be based on allegations separate and distinct from the medical malpractice claim. See Bellera v. Handler, 284 A.D.2d 488, 490, 727 N.Y.S.2d 137 (2d Dep’t 2001); McClurg v. State, 204 A.D.2d 999, 1000, 613 N.Y.S.2d 71 (4th Dep’t 1994) (affirming dismissal of negligent misrepresentation claim that was based on same misconduct underlying medical malpractice claim). Here, plaintiffs’ negligent misrepresentation claim is inextricably linked to the defendants’ medical malpractice. They allege that “defendants were careless, reckless, and otherwise grossly and wantonly negligent in failing to take reasonable care by not conducting a simple review to determine whether the representations made in their marketing media devices were accurate, knowing full well that the claims were made for the benefit and purpose of inducing other persons, including the plaintiffs, to rely thereon.” Compl. ¶ 186. Moreover, plaintiffs fail to allege an injury apart from the injury flowing from the alleged medical malpractice. Compare id. ¶ 187 ‘with id. ¶ 233 (seeking compensatory damages and punitive damages for injury and death). Accordingly, plaintiffs’ claim for negligent misrepresentation in Count V is dismissed.
VI. Unjust Enrichment (Count III)
Plaintiffs assert a cause of action for unjust enrichment in which they allege that they paid defendants $17,500 to enter the treatment program. Compl. ¶ 165.
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Further, plaintiffs allege that the hospital defendants were unjustly enriched by receiving gross annual fees between
Defendants move to dismiss plaintiffs’ claim for failure to state a cause of action upon which relief can be granted. Def. Mem. at 23-24. In order to state a claim for unjust enrichment, a plaintiff must allege “that the defendant was enriched, that such enrichment was at plaintiffs expense, and that the circumstances were such that in equity and good conscience the defendant should return the money or property to plaintiff.” Steinmetz v. Toyota Motor Credit Corp., 963 F.Supp. 1294, 1307 (E.D.N.Y.1997) (citations and internal quotations omitted). Defendants cite N.Y. Central Mutual Fire Insurance Co. v. 563 Grand Med., P.C., 2004 WL 2008605, at *1, 4 Misc.3d 1020 (2004), in which plaintiff, an insurance provider, sued professional corporations owned by medical doctors who provided acupuncture treatment to persons insured under plaintiffs policies. The complaint sought refunds for payments plaintiff made for services provided by the acupuncturists based on the theory that defendants unlawfully employed the acupuncturists. Id. The court dismissed plaintiffs unjust enrichment claim because “defendants rendered services, billed for those services and were paid for the services rendered.” Id. at *5, 4 Misc.3d 1020.
In this case, plaintiffs adequately allege that they conferred a benefit on defendants by paying them the $17,500 fee for the radiostatic surgery. As in 563 Grand Med., P.C., however, the defendants rendered the service for which plaintiffs paid. “In general, New York courts are reluctant to require the return of sums previously paid....’’ Universal Acupuncture Pain Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 196 F.Supp.2d 378, 387 (S.D.N.Y.2002) (dismissing unjust enrichment counterclaim for benefits paid by insurance company for acupuncture services provided by plaintiff because “while [t]he law may at times refuse to aid a wrongdoer in getting that which good conscience permits him to receive!,] it will not for that reason aid another in taking away from him that which good conscience entitles him to retain”). Moreover, as with plaintiffs’ claims for fraud and negligent misrepresentation, their cause of action for unjust enrichment is encompassed by their allegations of medical malpractice. See Karlin v. IVF America, Inc., 239 A.D.2d 560, 562, 658 N.Y.S.2d 73 (2d Dep’t 1997) (affirming dismissal of unjust enrichment claim that was “merely [a] reformulation!]” of the cause of action to recover damages for medical malpractice). Consequently, the court finds that equity does not compel restitution to plaintiffs of the fee paid and thus this claim is dismissed.
YII. Breach of Warranty (Count VI)
Plaintiffs assert a cause of action for breach of warranty in which they allege: “The defendants, retained by the plaintiffs in reliance on the defendants’ representations for the predominant purpose of rendering services, to wit, Fractionated Stereotactic Radiosurgery, breached their express and/or implied warranties to cure or control cancer, thereby making the defendants strictly liable to the plaintiffs.” Comph ¶ 189. . In moving to dismiss this claim, defendants correctly assert,
see
Def. Mem. at 24, that New York law does not recognize a cause of action for breach of warranty based on the provision of personal services such as medical treatment.
See Sala v. Tomlinson,
73 A.D.2d 724, 725, 422 N.Y.S.2d 506 (3d Dep’t 1979) (affirming dismissal of breach of warranty claim against physicians and hospital alleging that defendants warranted to plaintiffs that sterilization procedure
Unlike in Robins, plaintiffs here do not allege the existence of a special contract pursuant to which defendants warranted they would cure plaintiffs. In the absence of such an agreement, plaintiffs’ claim for breach of warranty based on the medical treatment they received must be dismissed. See Dobisky v. Rand, 248 A.D.2d 903, 905, 670 N.Y.S.2d 606 (3d Dep’t 1998); Owen v. Appelbaum, 205 A.D.2d 976, 978, 613 N.Y.S.2d 504 (3d Dep’t 1994); Monroe v. Long Island Coll. Hosp., 84 A.D.2d 576, 443 N.Y.S.2d 433 (2d Dep’t 1981); Verra v. Koluksuz, 74 A.D.2d 932, 932-33, 426 N.Y.S.2d 151 (3d Dep’t 1980).
VIII. New York State Public Health Law § 2805-d (Count VIII)
In Count VIII of the complaint, plaintiffs assert a cause of action for lack of informed consent under New York Public Health Law § 2805-d(l), which provides:
Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.
Plaintiffs allege that “the defendants” failed to disclose to plaintiffs the “reasonably foreseeable benefits, risks and alternatives” of FSR as reasonable physicians acting under the circumstances would have done and that had they revealed the information, plaintiffs could have made an informed choice about whether to consent to the treatment. Compl. ¶¶ 235-36. Moreover, they allege that they relied upon misrepresentations by defendants and could therefore not make informed choices regarding the treatment. Id. ¶ 241. The lack of informed consent proximately caused plaintiffs’ injuries, including aggravation of their illnesses and loss of opportunity to seek alternative treatment. Id. ¶ 242.
The hospital defendants move to dismiss this claim arguing that § 2805-d(l) applies only to health care providers that •treated or diagnosed plaintiffs, rather than to hospitals or-persons who did not treat plaintiffs such as hospital administrators. Def. Mem. at 25. The text of § 2805-d(l) indicates that it applies to the “person providing the professional treatment or diagnosis” and “practitioner[s].” Here, defendants Lederman, Silverman and Grosman are alleged to have “attended [] patients, including the plaintiffs”
IX. Failure to Effect Service of Process
Defendants Americo Varone, Joseph R. Pisani and Dale Tait move for dismissal pursuant to
X. Motion to Strike Portions of the Complaint
Defendants move to strike paragraphs 134(a)-(d) and 361(a)-(d)
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of the complaint pursuant to
Defendants argue that the allegations contained in paragraphs 134 and 361 are prejudicial to them, inflammatory, have no bearing on the subject matter of the action and would be inadmissible at trial. See Def. Mem. at 29. In opposition, plaintiffs contend that those allegations “reveal ... unflattering things about” defendants and, while not directly pertinent to defendants’ alleged misrepresentations concerning FSR treatment, they are “relevant to a complete exposition of the defendants’ fraudulent deceptions.” PI. Opp. at 35.
Paragraph 134 states: “During the period of time from 2001 to 2003 the defendants ... concealed material facts from the plaintiffs and the public at large, including non-disclosure to the plaintiffs: (a) that in 1999 the New York State Attorney General secured an agreement from the defendant SIUH to pay $45 million (plus additional $39 million dollars in free services to indigent patients) to settle a Medicaid fraud case which included among the fraudulent acts the over billing of SIUH patients.” Allegations about a Medicaid fraud case are not relevant to this action. Moreover, courts hold that references in pleadings to agreements with state or federal agencies may properly be stricken on a
Section (b) states “that since 1996 the Office of the Inspector General of the United States Department of Health and Human Services had been investigating the defendant SIUH for misrepresentations overstating the number of residents on staff studying at SIUH, thereby resulting in an overfunding by the federal government of the hospital’s graduate medical education program.” Allegations about investigations of misrepresentations regarding the number of SIUH medical residents are irrelevant to this action. Moreover, even if those allegations were relevant, courts hold that references in pleadings to administrative investigations that do not result in adjudication of underlying issues are immaterial and can properly be stricken under
Section (c) alleges “that in 2000 the defendants GROSSMAN, LEDERMAN and SIUH were sued for malpractice for unnecessarily administering Fractionated Stereotactic Radiosurgery to a patient (in 2004 the jury awarded $5.5 million for the unnecessary radiosurgery).” Defendants move to dismiss this allegation because the jury verdict against defendants would be inadmissible at trial. Def. Mem. at 31. The Second Circuit cautioned that motions to strike resting on evidentiary decisions at this early stage of the proceedings should be “denied, unless it can be shown that no evidence in support of the allegation would be admissible.”
Lipsky,
551 F.2d at 893. With respect to this allegation, however, the Court will grant the motion to strike given that its probative value is likely to be outweighed by prejudice to defendants if this case proceeds to trial.
See
Finally, section (d) alleges “[t]hat in November 2003 the defendant LEDERMAN entered into an agreement with the New York State Department of Health, which had investigated allegations of professional misconduct in connection with the defendant’s treatment of George Harrison, the Beatle, for releasing information about Mr. Harrison, without Mr. Harrison’s consent, resulting in a censure and a $5,000.00 fíne to the defendant LEDERMAN (notwithstanding the defendants’ earlier express and implicit oral representations to the plaintiffs that the Fractionated Stereotactic Radiosurgery had be[e]n chosen by Mr. Harrison, a world famous entertainer, who could afford any treatment, an[y] where, any time).” The Court finds that this allegation should be stricken for the reasons stated above with respect to paragraph 134(a). Moreover, plaintiffs’ attempt to manufacture relevance’ of Mr. Harrison’s treatment to this action by alleging that defendants told plaintiffs Harrison received the treatment is unavailing. Plaintiffs allege that the agreement with the New York State Department of Health concerned Lederman’s disclosure of confidential information about a patient. That is not the subject of this action. Accordingly, the Court strikes section (d) from paragraphs 134 and 361.
CONCLUSION
For the reasons stated above, the Court: (1) denies defendants’ motion to dismiss for lack of subject matter jurisdiction; (2) dismisses the Lanham Act claim (Count XI); (3) dismisses the RICO claim (Count XII); (4) dismisses the fraud claim (Count II); (5) dismisses the negligent misrepresentation claim (Count V); (6) dismisses the claim for unjust enrichment (Count III); (7) dismisses the claim for breach of warranty (Count VI); (8) denies the motion to dismiss the claim for violation of
SO ORDERED.
Notes
. Unless otherwise noted, all defendants move to dismiss the complaint, except Salvatore Conte and Annamaria Pérsico who were voluntarily dismissed from this action.
. SIUH is alleged to be a “wholly owned subsidiary of, or joint venture with” North Shore LIJ. Compl. ¶ 12. North Shore LIJ owns, or operates SIUH. Id. ¶ 13. North Shore Health System owns or operates or was a joint venturer with SIUH and North Shore LIJ. Id. ¶ 14.
. On December 13, 2004, plaintiffs filed a Notice of Dismissal pursuant to
. In light of the Court‘s finding that diversity jurisdiction exists, it does not reach defendants’ argument that this Court has no federal question subject matter jurisdiction over plaintiffs’ complaint. See Def. Mem. at 7.
. Standing is a requirement of the plaintiff at the RICO pleading stage. “To state a claim for damages under RICO a plaintiff has two pleading burdens.... First, the plaintiff must assert that the defendant has .violated
. The Court declines to reach the other grounds for dismissal advanced by defendants, namely, that plaintiffs failed to plead their fraud cause of action with particularity as against each defendant and that plaintiffs are precluded from seeking compensatory and punitive damages under the rule limiting recovery for fraud to pecuniary losses. See Def. Mem. at 20-22.
. Of that amount, plaintiffs paid a 10% fee ($1,750) directly to Salvatore Conte’s personal banking account by wire transfer and wired the balance of the charge to S.IUH in New York. Compl. ¶1¶ 165-70. Plaintiffs wired a separate sum (20% of the “overall fee“) directly to defendant Lederman pursuant to defendants’ instructions. Id. ¶¶ 171-73.
. Defendant Andrew Passeri also moved to dismiss for plaintiffs’ failure to serve him. On November 2, 2004, plaintiffs served Pas-seri. Thus, defendants’ motion to dismiss Passeri is denied.
. Because these two paragraphs are identical, ■the Court will cite only paragraph 134 in the discussion that follows.
. Defendants Silverman and Grosman do not move to strike paragraphs 134 and 361 from the complaint pursuant to