Opinion
650617/2019
11-12-2020
Alexander MOSKOVITS, Plaintiff, v. Calvin B. GRIGSBY, Bank Of America Merrill Lynch, Federal Republic Of Brazil, State Of Santa Catarina, Brazil, State Of Mato Grosso, Brazil, State Of Maranhao, Brazil, Raimundo Colombo, Jorge Siega, and Does 1 Through 100, Inclusive, Defendants.
Plaintiff Alexander Moskovits appeared pro se Defendant Calvin Grigsby was represented by Roger Bernstein, 535 Fifth Avenue, 35th Floor, New York, NY 10017 (212) 227-8383
Plaintiff Alexander Moskovits appeared pro se
Defendant Calvin Grigsby was represented by Roger Bernstein, 535 Fifth Avenue, 35th Floor, New York, NY 10017 (212) 227-8383
Barry Ostrager, J.
Plaintiff Alexander Moskovits commenced this action by filing a pro se summons and complaint in New York Supreme Court, New York County, on December 26, 2018 (NYSCEF Doc. No. 1). On May 6, 2019, this action was removed to the Southern District of New York by Defendant Federal Republic of Brazil under 28 U.S.C. § 1441(d) (NYSCEF Doc. No. 12). On May 7, 2019, Plaintiff filed a notice of voluntary dismissal dismissing the removing party Federal Republic of Brazil; the State of Santa Catarina, Brazil; the State of Maranhao, Brazil; and the State of Mato Grosso, Brazil. The parties remaining in the action are Plaintiff Moskovits, a resident of Brazil; and Defendants Grigsby, a citizen of California; Bank of America , a citizen of North Carolina; Jorge Siega, a citizen of Brazil; and Raimundo Colombo, a citizen of Brazil. On May 14, 2019, Plaintiff filed a motion to remand the action to state court, which was granted by the Honorable Vernon S. Broderick on June 9, 2020. See Moskovits v. Grigsby, No. 19-CV-3991 (VSB), 2020 WL 3057754 (S.D.NY June 9, 2020) ; see also NYSCEF Doc. No. 72.
improperly sued as "Bank of America Merrill Lynch"
Presently before the Court are two motions to dismiss the Complaint pursuant to CPLR 3211. Motion 003 is by defendant Bank of America and Motion 004 is by defendant Grigsby.
Background
The Complaint alleges two causes of action (1) unjust enrichment/quantum meruit and, alternatively, (2) breach of contract. The Complaint alleges $7 million in compensatory damages plus additional punitive damages. The Complaint cites a series of e-mails between plaintiff Moskovits and defendant Grigsby between February 2011 and January 2013, summarized below.
On February 18, 2011, defendant Grigsby contacted plaintiff to discuss potential business opportunities relating to oil in Brazil. (Compl. ¶¶ 18—20.) Plaintiff, a resident of Brazil, alleges he provided Grigsby with a loan structure that would allow Grigsby and Bank of America ("BoA") to secure credit for sub-sovereign state transactions guaranteed by the Brazilian Government, and plaintiff also allegedly provided Grigsby with potential clients for such transactions. (Compl. ¶¶ 21—29.) For plaintiff's work, Grigsby allegedly promised compensation, valued at 35% of 1% of the transaction value for a transaction value over $500 million, or 35% of 2% for a transaction value under $500 million. (Compl. ¶¶ 33, 53—54.) The parties frequently corresponded about the potential transactions by email. Between August 1 and 3, 2011, Grigsby traveled to Brazil to meet with the potential borrowers. (Compl. ¶ 44.) Plaintiff alleges that he arranged for meetings with public officials and representatives of the public utility companies. (Compl. ¶¶ 39—44.) These meetings were attended by, among others, plaintiff, Grigsby, and defendant Siega. (Compl. ¶¶ 45—46.)
In the weeks following Grigsby's visit, plaintiff alleges that he continued to work on the deal, including offering to deliver the Memorandum of Understanding from Grigsby to CELESC, the state-owned electric utility in Santa Catarina. (Compl. ¶ 55.) However, Grigsby became confrontational in his responses and evaded signing any compensation agreement with Moskovits. (Compl. ¶¶ 59—62, 64—65, 67, 71—72). Grigsby also allegedly warned Moskovits against contacting CELESC and cut off plaintiff's @grigsbyinc email address. (Compl. ¶¶ 59.)
Plaintiff attempted to discuss the potential CELESC deal, valued at $400 million, with defendant Siega, who purportedly denied any knowledge of the deal, despite his presence at the meetings and his presence on many of the emails between Grigsby and plaintiff discussing the deal. (Compl. ¶ 57.) Plaintiff alleges that he was purposefully cut out of the deal.
BoA and the State of Santa Catarina signed a $726 million credit agreement on December 27, 2012, allegedly using plaintiff's finance structure. (Compl. ¶ 73.) Plaintiff further alleges that three deals totaling $1.9 billion were consummated by Grigsby and BoA, using his financial structure. (Compl. ¶¶ 92—93). Plaintiff alleges that he has not received any compensation in relation to these deals.
Bank of America's Motion to Dismiss
Defendant BoA moves to dismiss the Complaint on several grounds: (1) there is no contract between plaintiff and BoA; (2) the Complaint fails to plead that Grigsby was BoA's agent; (3) the Complaint fails to state a cause of action for unjust enrichment against BoA; (4) the Statute of Frauds bars all of plaintiff's claims. For the reasons that follow, the motion is granted.
There is No Contract between Plaintiff and BoA and Grigsby was not BoA's Agent
The Court finds that the Complaint fails to allege a contract between plaintiff and BoA. The e-mails cited in the Complaint show plaintiff's repeated requests that a finder's fee agreement be entered into between him and defendant Grigsby—not with defendant BoA—so that plaintiff would be compensated for his services and for allegedly providing a financing strategy. As the Court will discuss below, no agreement was ever reached or executed by plaintiff and defendant Grigsby. However, even if there was an agreement between plaintiff and Grigsby, the Complaint fails to state a claim against BoA.
Defendant BoA argues that no representative or employee of BoA is included on the emails cited in the Complaint or even referred to in them. Plaintiff's claim against BoA relies entirely on the conclusory allegation that Grigsby was an agent of BoA. Specifically, plaintiff alleges only that Grigsby had a "long-term relationship with [BoA]" (Compl. ¶ 88). There are no allegations that BoA did anything to assert that Grigsby was its agent or that it gave Grigsby any apparent authority to act as an agent.
In opposition, plaintiff argues that BoA should be held liable as a principal in this case because Grigsby acted as the bank's "de facto" agent with alleged long-term ties to BoA entities. Plaintiff argues that BoA downplays the repeated allegations that Grigsby acted as BoA's "agent" and the "clear inference that can be readily drawn from Grigsby's alleged long-term business relationship with BoA entities." See Opp. at 12 (NYSCEF Doc. No. 144). The Court disagrees.
"Essential to the creation of the apparent authority are words or conduct of the principal communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction." Wood v. William Carter Company , 273 AD2d 7 (1st Dept. 2000). An alleged agent cannot, by his own acts, imbue himself with authority. Id. The existence of apparent authority depends upon a factual allegation that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent. Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable.
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the Court must accept the facts as alleged in the complaint as true and determine whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez , 84 NY2d 83, 87-88 (1994). However, this "does not apply to legal conclusions or to factual claims which are either inherently incredible or flatly contradicted by documentary evidence." W. Branch Conservation Ass'n, Inc. v. Cty. of Rockland, 227 AD2d 547, 547 (2nd Dept. 1996).
Plaintiff fails to allege any action on the part of BoA from which Grigsby's authority may be inferred, and the reasonableness of plaintiff's reliance therefore is never reached. The Complaint alleges no words or conduct on the part of BoA that would vest authority in Grigsby as its purported agent. The conclusory allegation that Grigsby had "a long-term relationship" with BoA, without more, is insufficient to sustain a claim that Grigsby was BoA's agent. (Compl. ¶¶86, 88.) See The Moore Charitable Foundation, et al. v. PJT Partners, Inc. , 178 AD3d 433 (1st Dept. 2019) (dismissing claim for fraud based on apparent authority because complaint did not identify words or conduct of defendants that would give rise to a belief on plaintiff's part that the alleged agent had authority to enter into the transaction). Where an alleged agent has neither actual nor apparent authority conferred by his alleged principal, the principal is not liable to third parties. Accordingly, the Complaint fails to state a claim for breach of contract against BoA.
The Complaint Fails to State a Claim for Unjust Enrichment against BoA
The Court finds that the Complaint fails to state a claim for unjust enrichment against BoA. To assert a claim for unjust enrichment, a plaintiff must allege (1) a direct relationship with the defendant; (2) that the defendant was enriched at the plaintiff's expense; and (3) that it is against equity and good conscience to permit the other party to retain the benefits. Georgia Malone & Co. v. Rieder , 19 NY3d 511, 516 (2012).
BoA argues that here, plaintiff does not allege that he had any contact with BoA, let alone sufficient direct contact, and he therefore cannot avoid dismissal of his unjust enrichment claim. See id. at 518, (dismissing unjust enrichment claim because plaintiff's alleged contact with defendant was too attenuated). BoA argues that as in Georgia Malone , the relationship between BoA and plaintiff here is too attenuated because they "simply had no dealings with each other." Id.
BoA further argues that plaintiff fails to allege that BoA benefitted at plaintiff's expense, or, if there was a benefit, that it is against equity and good conscience to permit BoA to retain the benefit. BoA relies on IDT Corp. v. Morgan Stanley Dean Wittier & Co. , 12 NY3d 132, 142 (2009). In IDT, plaintiff IDT alleged that Morgan Stanley had been unduly enriched by the profits Morgan Stanley had obtained from third parties. The Court of Appeals found that IDT did not and could not allege that Morgan Stanley had been unjustly enriched at IDT's expense when Morgan Stanley received fees from a third-party in connection with its services, because IDT did not pay those fees. Id. Thus, there was no property of IDT that Morgan Stanley was enriched by, at IDT's expense. Likewise, here, the Complaint does not allege that BoA received the finder's fee to which plaintiff claims he is entitled.
In opposition, plaintiff relies heavily on Judge Broderick's remand decision. However, as Judge Broderick made clear, he did not determine whether plaintiff had stated a claim for unjust enrichment. See Moskovits v. Grigsby, No. 19-CV-3991 (VSB), 2020 WL 3057754 (S.D.NY June 9, 2020) at FN 6 ("I note that no party or subsequent court should read this decision as ruling that Plaintiff has properly pleaded a cause of action under Rule 12(b)(6). Rather, I make my ruling solely on the question of whether Defendants were fraudulently joined to the action, a much lower legal standard than on a motion to dismiss.") Plaintiff further argues that a claim for unjust enrichment may be based on circumstantial evidence.
The Court finds that, even accepting as true plaintiff's allegation that BoA closed transactions using plaintiff's allegedly novel financing structure, the Complaint fails to state a claim because (1) there is no relationship between plaintiff and BoA and (2) there is no allegation that BoA was enriched at plaintiff's expense. First, as discussed above with respect to the breach of contract claim, plaintiff does not allege a relationship with BoA beyond his purported dealings with Grigsby, and the Court has already determined above that the allegations in the Complaint are insufficient to sustain a claim that Grigsby was BoA's agent. Plaintiff therefore had no direct or even indirect relationship with BoA. Second, there is no allegation that BoA was enriched at plaintiff's expense. Even if the Court were to accept that Grigsby provided BoA with a "novel" financing structure told to Grigsby by plaintiff, and BoA used that financing structure in subsequent transactions, BoA would not be benefitting at plaintiff's expense . Plaintiff sought and is seeking a finder's free allegedly promised to him by Grigsby, not by BoA.
Plaintiff's Unjust Enrichment Claim against BoA is Barred by the Statute of Frauds
While the Court did not reach the Statute of Frauds argument in the context of the breach of contract claim because the Court found that the Complaint had failed to state a claim for breach of contract, the Statute of Frauds applies also to quasi-contract claims where, as here, the relief sought is identical to the relief requested on the contract claims. The Court finds that plaintiff's first cause of action for "unjust enrichment/quantum meruit" is barred by the Statute of Frauds.
Under General Obligations. Law ("GOL") § 5-701(a)(10), "a contract to pay compensation for services rendered in negotiating a ... business opportunity" must be made in writing. The Court of Appeals has defined "business opportunity" to encompass agreements that contemplate one party's use of his or her " ‘know-how’ or ‘know-who’ in bringing about between principals an enterprise of some complexity or an acquisition of a significant interest in an enterprise." See Freedman v. Chemical Constr. Corp. , 43 NY2d 260, 267 (1977). The New York Court of Appeals has also held that "unjust enrichment and quantum meruit are, in this context, essentially identical claims, and both are claims under a contract implied in law to pay reasonable compensation, which will be barred by the statute of frauds where the compensation sought is for services rendered in negotiating a business opportunity." Snyder v. Bronfman , 13 NY3d 504, 508 (2009).
Here, the basis for plaintiff's claim is an alleged promise by Grigsby to compensate plaintiff for "work product" and "business introduction services" that plaintiff allegedly provided to Grigsby. (Compl. ¶¶ 1, 6, 7.) Thus, plaintiff's allegations fit squarely within the business transactions contemplated by GOL § 5-701(a)(10), and the absence of a written agreement would bar plaintiff's unjust enrichment claim, even assuming one had been stated (which is not the case). See Freedman, 43 NY2d at 267.
BoA did Not Use Plaintiff's Alleged Financing Structure in the Cited Transactions
Finally, the documentary evidence plaintiff submitted in connection with the Complaint shows that plaintiff's alleged financing structure was not used in the cited transactions. Moreover, the Court takes judicial notice that plaintiff's alleged "novel financing structure" was not in fact novel or proprietary.
Plaintiff's allegations are refuted by plaintiff's own documents. Plaintiff's allegedly novel idea was not used in the transactions cited in the Complaint. As shown by plaintiff's own documents annexed to the Complaint, the Brazilian government's loan guarantees in the BoA loan documents did not include an oil royalties pledge. See Compl. Exhibit B (NYSCEF Doc. No. 2). The guarantees simply provide: "The Guarantor hereby absolutely, irrevocably and unconditionally guarantees, as primary obligor and not as a surety, to the Administrative Agent and the Lender and their respective successors and assigns the prompt payment when due ... of all amounts owing by the borrower under this Agreement ...." See Compl. Exhibit B, ¶ 12.01 (BoA loan to Santa Catarina).
Finally, the Court takes judicial notice that a pledge of oil royalties as security for a loan was not a new concept and is no different than any other pledge of assets as security for a loan. See, e.g., Anglo-Pac. Oil & Gas, Ltd. v. Transcontinental Oil Corp. , 34 Misc 2d 528, 530 (Sup. Ct. NY Cty. 1961) ("Transcontinental was insisting on obtaining certain rights in the Rangely royalties to make sure that plaintiff would discharge all of the obligations it was assuming"); Morello v. Metzenbaum , 25 Cal.2d 494, 496, 154 P.2d 670, 671 (1944) (interest in oil royalties pledged as "security for the payment of the note").
Grigsby's Motion to Dismiss
The Complaint must also be dismissed against defendant Grigsby for several reasons. First, plaintiff fails to meet his burden to demonstrate that this Court has jurisdiction over defendant Grigsby, a resident of California. Second, even assuming arguendo that this Court did have jurisdiction over Grigsby, both causes of action against Grigsby fail on substantive grounds, explained below.
Plaintiff Fails to Show that this Court has Jurisdiction Over Grigsby
Turning first to the threshold issue of jurisdiction, Grigsby argues that this Court lacks jurisdiction over him because he is a California resident with insufficient contracts in New York.
The party asserting jurisdiction, here plaintiff, bears the burden of establishing personal jurisdiction as to California resident Grigsby. Kforce Inc. v. Foote , 33 Misc 3d 1201(A), 2011 WL 4444182 at *1 (Sup. Ct. NY Cty. 2011), citing O'Brien v. Hackensack Univ. Med. Ctr. , 305 AD2d 199 (1st Dept. 2003). Plaintiff must allege facts demonstrating that Grigsby has purposefully transacted business within New York, and facts demonstrating that there was "a substantial relationship between the transaction and the claim asserted." Coast to Coast Energy, Inc. v. Gasarch , 149 AD3d 485, 486 (1st Dept. 2017), citing Paterno v. Laser Spine Inst. , 24 NY3d 370 (2014).
Here, it is undisputed that Grigsby is a California resident and that plaintiff's communications with Grigsby concerning the subject transactions took place while Grigsby was in California. See Compl. at ¶¶ 15, 54 & 73 and Aff. of Calvin Grigsby (NYSCEF Doc. No. 36) ¶ 14 (attesting on personal knowledge that he is a California resident and was in California when communicating with plaintiff via email).
In opposition, plaintiff appears to rely on one email from March 2011 which indicates Grigsby suggested Moskovits' business cards use a New York City address. See Opp. Affirmation at p. 20. However, the email does not concern the transactions at issue in the Complaint. See Compl. ¶ 30 (quoting entire email). Further, plaintiff does not allege that the business cards were created and Grigsby attests that he does not recall the business cards ever being made. Aff. of Calvin Grigsby ¶ 15. A request to prepare business cards with a New York City address is insufficient to demonstrate that Grigsby had purposefully transacted business within New York and that those transactions bear a substantial relationship to the transactions described in the Complaint.
As discussed in detail above, the Court rejects plaintiff's contention that Grigsby was BoA's agent, and thus there is no basis to confer jurisdiction over Grigsby in New York based on BoA's ties to New York.
Even if there were Jurisdiction in New York, there is No Enforceable Contract Between Plaintiff and Grigsby
Even assuming arguendo that this Court did have jurisdiction over Grigsby, plaintiff's claim for breach of contract against Grigsby fails for two independent reasons. First, the Complaint fails to allege that there is a contract between plaintiff and defendant Grigsby, because the emails cited in the Complaint do not demonstrate material terms or that there was ever a meeting of the minds. Second, to the extent that the Complaint seeks to allege an oral contract between plaintiff and defendant Grigsby, enforcement of that contract would be barred by the Statute of Frauds.
There was no contract between plaintiff and defendant Grigsby. The Complaint alleges that in March of 2011 defendant Grigsby made an oral promise to plaintiff to pay plaintiff "35 basis points of all closed deals exceeding a threshold value of $500 Million dollars." Compl, ¶ 33. However, plaintiff's second cause of action does not allege an oral agreement; it alleges that "[t]he emails provided herein may be assembled to constitute a binding agreement." Compl, ¶ 6, 96. In any event, this alleged promise was rejected by plaintiff when he counter-proposed different compensation terms in a subsequent writing. See Compl. ¶ 58 (email from plaintiff proposing "35 points of anticipated deals exceeding $500 Million and 75 basis points of any transactions below that value"). According to the Complaint, Grigsby observed in an August 22, 2011 email that the relevant compensation measure would be "in the 35% of what we make range", not 35 basis points of all closed deals. Compl. ¶ 52. Here, the e-mail exchanges cited show plaintiff's requests to Grigsby to be compensated through a finder's fee agreement but fail to indicate a meeting of the minds as to any terms of the contract. Thus, the allegations in the Complaint show that the parties never reached any agreement, oral or written.
Further, the Complaint fails to allege any of the essential terms of the alleged contract such as what services plaintiff would provide, when he would provide them, when he would be paid, how much he would be paid, or that defendant Grigsby accepted. A contract must be sufficiently definite in its material terms to be enforceable. See Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher , 52 NY2d 105, 109 (1981). "A mere agreement to agree, in which a material term is left for future negotiations, is unenforceable." Id.
While an exchange of emails may constitute a binding agreement where the writings include all of the agreement's essential terms, including the fee, or other cost, involved ( Kasowitz, Benson, Torres & Friedman, LLP v. Read , 98 AD3d 403, 404 (1st Dept. 2012) ), here the emails upon which plaintiff relies are insufficient to establish any such contract.
Even if the Complaint could be read to allege that plaintiff and Grigsby formed an oral agreement, any such agreement is barred by the Statute of Frauds. As discussed above with respect to defendant BoA, GOL § 5-701(a)(10) requires "a contract to pay compensation for services rendered in negotiating a ... business opportunity" to be made in writing. "It is well settled that the Statute of Frauds applies to claims for finder's fees." Springwell Corp. v. Falcon Drilling Co., 16 F. Supp. 2d 300, 304 (S.D.NY 1998). Thus, to the extent that the Complaint attempts to allege an oral contract between plaintiff and defendant Grigsby, enforcement of that contract is barred by GOL § 5-701(a)(10).
The Complaint Fails to State a Claim for Unjust Enrichment against Grigsby
The first cause of action for unjust enrichment against Grigsby must also be dismissed on several grounds. First, the Complaint fails to adequately allege that defendant Grigsby received a benefit at plaintiff's expense. Second, plaintiff's unjust enrichment claim is barred by the Statute of Frauds.
Turning to the first issue, the Complaint does not allege that defendant Grigsby received any revenue related to the financing structure plaintiff allegedly shared with defendant Grigsby. After defendant Grigsby moved to dismiss on this ground (NYSCEF Doc. No. 33, at 7-8), plaintiff supplemented his pleading with an affidavit alleging that Grigsby "paid [Moskovits'] promised basis points of the closed deal to himself and his Brazilian partners." Moskovits Supp. Affidavit, ¶ 15 (NYSCEF Doc. 160). Plaintiff does not offer any basis for this allegation. As noted above, conclusory allegations are not taken as true on a motion to dismiss. See Melito v. Interboro Mut. Indem. Ins. Co. , 73 AD2d 819, 820 (4th Dept. 1979) "[a] complaint is insufficient if based solely on conclusory statements, unsupported by factual allegations."
Finally, the Court again considers the Statute of Frauds. As discussed above in connection with BoA's motion to dismiss, the Statute of Frauds applies to quasi-contract claims where, as here, the relief sought is identical to the relief requested on the contract claims. Thus, for the reasons stated above, plaintiff's claim for unjust enrichment is also barred by GOL § 5-701(a)(10) and must be dismissed.
The Action Must be Dismissed Against the Defaulting Defendants
Having dismissed the action as against defendants BoA and Grigsby, the Court now turns to the only two remaining defendants, Jorge Siega and Raimundo Colombo (referred to in the Complaint as "Governor" Raimundo Colombo). Like plaintiff Moskovits, defendants Siega and Colombo are residents of Brazil (Compl. ¶¶ 16 and 17). Neither defendant has appeared in this action, despite alleged service by delivery to a person of suitable age and discretion in Brazil followed by a mailing to defendants in Brazil on March 28, 2019 (NYSCEF Doc. Nos. 7 and 8). It further appears that neither Siega nor Raimundo appeared in federal court, as Judge Broderick in his remand decision discusses only the application of plaintiff to remand the matter to state court following plaintiff's voluntary dismissal of the foreign entities, which motion was granted over opposition by defendants Grigsby and BoA with no submissions by either Siega or Raimundo mentioned (NYSCEF Doc. No. 72).
Plaintiff's first substantive allegation regarding Siega and Colombo is in paragraph 3 of the Complaint, which states:
On December 27, 2012, BOA closed a $726 Million contract with the State of Santa Catarina executed by Governor Raimundo Colombo (COLOMBO) at BOA's headquarters in Manhattan. On March 22, 2013, a relative of Governor COLOMBO's Director of Accounting involved in the $726 Million transaction attempted to murder the Plaintiff, five days after Plaintiff complained to defendant Jorge Siega (SIEGA) that his work product and services were misappropriated to close the credit transaction.
The Complaint goes on to allege that Siega, working from Brazil, participated in various communications regarding the financial transactions with the Brazilian entities at issue in this case and that Governor Colombo executed certain documents in his representative capacity for a Brazilian authority or entity.
Under these circumstances, the Court finds no basis to continue this action against a plaintiff and two defaulting defendants, all of whom are residents of Brazil. Were the Court to consider retaining jurisdiction, the next step would be for plaintiff to move for a default judgment. However, the time for such a motion has long passed. Pursuant to CPLR 3215(c), plaintiff's action became subject to dismissal after the passing of one year from the time of defendants' default. See Perricone v. City of New York, 62 NY2d 661 (1984). As indicated above, service was made on March 28, 2019, and proof of such service was timely filed on April 7, 2019. Service of an answer was required "within twenty days after service of the pleading to which it responds." CPLR 3012(a). As Siega and Colombo defaulted in their obligation to serve an Answer to the Complaint about eighteen months ago, and as plaintiff has made no effort to seek a default judgment against either of the defaulting defendants, such a motion now would be untimely. Further, the Court sees no reasonable basis to exercise its discretion to grant a Brazilian plaintiff an extension of time to move for a default judgment against two Brazilian defendants under the scenario presented here.
Accordingly, the Clerk is directed to sever and dismiss all claims against defendants Jorge Siega and Raimundo Colombo, without prejudice to an action in Brazil or another forum, if appropriate.
Conclusion
For the reasons stated above, the Complaint is dismissed in its entirety against the moving defendants BoA, and Grigsby and is also dismissed without prejudice against the defaulting defendants Siega and Colombo.
The Court notes that both moving defendants argue that the statute of limitations bars the claims in the Complaint. While there are serious and substantial arguments in support of that contention, the Court does not reach the issue because, as stated above, there are multiple independent grounds to dismiss the Complaint.
Accordingly, it is hereby,
ORDERED that defendant Bank of America's motion to dismiss the Complaint is granted and the Complaint is dismissed as to defendant Bank of America; and it is further
ORDERED that defendant Calvin Grigsby's motion to dismiss the Complaint is granted and the Complaint is dismissed as to defendant Calvin Grigsby; and it is further
ORDERED that the Clerk is directed to sever and dismiss all claims against defendants Jorge Siega and Raimundo Colombo, without prejudice to an action in Brazil or another forum, if appropriate.