Sulieman v. Igbara

599 F.Supp.3d 113

Amer SULIEMAN, Plaintiff,

v.Jebara IGBARA, Motashem R. Khalil, and Joumana Danoun, Defendants.

20-CV-6032 (DG)(MMH)

United States District Court, E.D. New York.

Signed April 20, 2022

Jeremy M. Iandolo, J. Iandolo Law, PC, Brooklyn, NY, for Plaintiff.

ORDER ADOPTING REPORT AND RECOMMENDATION

Diane Gujarati, Judge

The Court has reviewed Magistrate Judge Henry's Report and Recommendation (R&R) of March 31, 2022. See R&R, ECF No. 24. Judge Henry recommends that the Court deny in part and grant in part Defendant Motashem R. Khalil's 17 Motion to Dismiss the four claims against him in the 13 Amended Complaint, with leave to replead. See R&R at 1. Specifically, Judge Henry recommends (1) granting Khalil's motion to dismiss the fraud claim in Count II of the Amended Complaint; (2) granting Plaintiff Amer Sulieman leave to file a Second Amended Complaint to cure the pleading deficiencies against Khalil as to Count II; and (3) granting Khalil's motion to dismiss the unjust enrichment, conversion, and accounting claims with prejudice. See id. at 18.

No objection to the R&R has been filed, and the time for doing so has passed. See id. A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; see also Fed. R. Civ. P. 72(b). To accept those portions of an R&R to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (quotation marks omitted). The Court, having reviewed Judge Henry's R&R, and, having found no clear error, adopts the R&R in its entirety. Accordingly, Khalil's 17 Motion to Dismiss is granted in part and denied in part as follows: the Court grants Khalil's motion to dismiss the fraud claim in Count II of the Amended Complaint; grants Plaintiff leave to file a Second Amended Complaint to cure the pleading deficiencies against Khalil as to Count II; and (3) grants Khalil's motion to dismiss the unjust enrichment, conversion, and accounting claims with prejudice. Plaintiff is directed to file any Second Amended Complaint consistent with Judge Henry's R&R by May 18, 2022.

REPORT AND RECOMMENDATION

MARCIA M. HENRY, United States Magistrate Judge:

Plaintiff Amer Sulieman ("Sulieman") brings this action against Defendants Jebara Igbara ("Igbara"), Motashem R. Khalil ("Khalil"), and Joumana Danoun ("Danoun") (collectively, "Defendants") asserting fraud, breach of contract, conversion, and unjust enrichment claims. Sulieman alleges that Igbara and Danoun defrauded him of $290,000 by requesting a cash loan they had no intention of repaying, and Khalil furthered the scheme by issuing fake checks and sending him misleading text messages. (See generally Am. Compl., ECF No. 13.) Before the Court is Khalil's motion to dismiss the four claims against him in the Amended Complaint, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) : Count II (Fraud), Count IV (Unjust Enrichment), Count V (Conversion), and Count VI (Accounting).¹ He also seeks to dismiss Count II pursuant to Rule 9(b). The Honorable Diane Gujarati referred the Motion to me for a Report and Recommendation. For the reasons set forth below, I respectfully recommend denying the motion in part and granting in part, with leave to replead.

I. BACKGROUND

A. Factual Background

The following asserted facts are taken from the Amended Complaint and are accepted as true for the purposes of this Motion. Gregory v. Daly , 243 F.3d 687, 691 (2d Cir. 2001).

Sulieman and Igbara² are family friends who invested in businesses together. (Am. Compl., ECF No. 13 ¶¶ 2, 4.) Igbara used social media accounts to depict himself as a successful entrepreneur living a luxurious lifestyle—for example, driving expensive cars, wearing watches, hobnobbing with celebrities, and giving away cash and expensive items. (Id. ¶¶ 1, 16.) Igbara often got funds from his family, Sulieman, close friends, and the general public to fund this lifestyle. (Id. ¶ 2.) Danoun, Igbara's wife, assisted Igbara with his use of social media enterprises to promote his business interests. (Id. ¶ 3.) Khalil³ was one of Igbara's business associates. (Id. ¶ 15.)

Sometime before August 30, 2019, Sulieman, through one of his business entities, entered into an investment contract ("the Investment") with Igbara in which Igbara promised "a certain rate of return" over a "prescribed one-year period." (Id. ¶ 4.) After the Investment, Igbara requested additional funds from Sulieman, even though Igbara had not paid Sulieman pursuant to the Investment. (Id. ) The circumstances of that transaction form the basis of the instant lawsuit. (Id. )

Specifically, on or about the evening of August 29, 2019, Igbara and Danoun contacted Sulieman requesting cash. (Id. ¶ 5.) At 1:40 a.m. on August 30, 2019, Igbara and Danoun met Sulieman at his home. (Id. ) Igbara told Sulieman he needed money immediately to pay for a real estate transaction, and that while he had sufficient assets to pay for the transaction, he could not access them for a few days. (Id. ¶¶ 6–7.) Based on their families’ relationship and Igbara's depiction of his lavish lifestyle on social media, Sulieman agreed to lend Igbara $290,000 in cash ("the Loan"). (Id. ¶¶ 2, 6.) Igbara promised to pay Sulieman back within 48 hours. (Id. ¶¶ 38, 46.) At some point (it's unclear when), Igbara gave Sulieman three checks in the amounts of $240,000, $128,500, and $15,000, respectively, ostensibly to repay Sulieman for past monies owed⁴ and for the Loan, and said that the checks could be "immediately deposited." (Id. ¶¶ 8–9.)

According to Sulieman, Igbara never intended to pay the Loan. For example, the next morning, Plaintiff attempted to cash the checks, but only the $15,000 check cleared. (Id. ¶ 9.) Immediately after the deposit, Igbara contacted Sulieman and asked why Sulieman "moved so quickly."⁵ (Id. ¶ 9.) The next day, Igbara drove past Sulieman's place of business with a "convoy" of luxury vehicles driven by bodyguards, which Sulieman believed was meant to intimidate him. (Id. ¶¶ 10–11.)

A few days after Sulieman attempted to deposit the checks, he received insufficient fund notices for the checks. (Id. ¶ 12.) Sulieman contacted Igbara, who told him that he would draft new checks when he had the money. (Id. ) Igbara assured Sulieman that he would repay Sulieman and sent Sulieman screenshots of monies (nearly $500,000) in an account to which Igbara had access. (Id. ¶ 13.) On "September 11,"⁶ Igbara sent a text message to Sulieman stating that a wire was sent to Sulieman, but Sulieman never received any money via wire. (Id. ¶ 14.)

Subsequently, Khalil participated in the fraudulent scheme in three ways. First, Khalil wrote two checks to Sulieman at Igbara's behest: (1) a check for $250,000, for which Khalil immediately obtained a stop payment order and (2) on September 25, 2020, a check for $118,500 that was returned for insufficient funds. (Id. ¶¶ 15, 18.)⁷ Second, Khalil gave Igbara access to Khalil's account to reassure Sulieman that the money was available to cover the checks and to prevent Plaintiff from contacting law enforcement or filing suit to obtain his money. (Id. ¶¶ 16–17.) Third, Khalil sent text messages in which he "attempted to push Sulieman off." For example, on October 2, 2020, Sulieman sent a text message⁸ to Khalil to notify him about the returned check, stating:

Yo wats going on wit my money bro ya think this is a game ya gave me checks and ya stopped one and now I don't got my bread stop thinking this is a game ya don't know how bad this is.

(Id. ¶ 19.) When Khalil responded to Sulieman's text messages, he only attempted to push Sulieman off to a later date—for example, at least once telling Sulieman that he was leaving town. (Id. ¶¶ 19–20.)

Sulieman has never been repaid for the loan except for the $15,000 check he was able to cash. (Id. ¶¶ 54, 57.) Sulieman believes that Khalil's actions are similar to Igbara's in that Khalil used his fame to defraud others. (Id. ¶ 21.)

B. Procedural History

Sulieman filed the Complaint on December 10, 2020, alleging fraudulent inducement against Igbara and Danoun (Count I), breach of contract against Igbara (Count III), and the remaining claims against all Defendants: fraud (Count II), unjust enrichment (Count IV), conversion (Count V), and accounting (Count VI). (Compl., ECF No. 1.) Khalil, the only defendant to appear in this case,⁹ requested a pre-motion conference for an anticipated motion to dismiss the Complaint. (Def.’s Ltr. Mot., ECF No. 8.) Judge Gujarati granted Sulieman leave to amend. (Mar. 31, 2021 Minute Entry.)

Sulieman filed the Amended Complaint on April 6, 2021, but it remained largely unchanged from the Complaint. Defendant again moved to dismiss and was granted permission to file the instant motion. (Def.’s 2d Ltr. Mot., ECF No. 14; May 11, 2021 Order; Def.’s Mot., ECF No. 17.)¹⁰ Judge Gujarati referred the motion to me for Report and Recommendation. (Oct. 8, 2021 Order.)

II. STANDARD FOR MOTION FOR DISMISS

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must "plead enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint need not contain " ‘detailed factual allegations,’ but it must contain ‘more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’ " Id. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). While considering the motion, the court will "accept as true the facts alleged in the complaint, consider...