Federal Indictment: James Burke, Former Suffolk Co PD Chief, December 2015

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The Feds have had six months to do whatever they do and nothing is happening.
 
hawkshaw said:
Burke, a longtime Spota protégé, already has been convicted of violating the civil rights…"
Thanks
Post 458/Marble: I think we must first truly identify who is the PROTEGE and who is the MENTOR. I always believed the twisted relationship began when Jimmy met Tommy back in the days of Pius. Little Jimmy was a cute kid. Who knows what happens after that.
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Back to Pius case........one of the police first suspects was a local kid called Robert Burke who told Tommy McCort and James McCort that he was responsible...that he had stuck his penis down his throat -...is that right? ......Is there any indication that this Robert Burke is related to James Burke? Cousin?.......

Were James Burkes family in anyway connected to the police?.......special favors??......

Having read some of the court transcripts..... how they got those boys sentenced is beyhond me.....and it was pretty much the bicycle resting on the tree info that sealed it for me that these were false confessions...

By the way Hawk can you share any other info about the previous owner of the questionable house sale.....

I found it strangely interesting what details I could find.....Father in Florida also nabbed...importing. Then this guy distributes around long island...BUT what caught my eye was the cop that busted him apparently had xray vision and could see the drugs (which were out of view)...ordering a car search.....and low behold COCAINE.....nicely wrapped in BURLAP.....

Probs just a coinky dink...
 
Hey pug, what are you referring to about the burlap drug arrest? Is this the guy "harry" i think from Oak Beach who was arrested on OP (i think?) with drugs in a burlap sack?
 
LindsayLohan6 said:
Hey pug, what are you referring to about the burlap drug arrest? Is this the guy "harry" i think from Oak Beach who was arrested on OP (i think?) with drugs in a burlap sack?
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Yep.....

Just interested to know what become of him....if its the same guy Hawk has referred to in the past..the last I could find was he was trying to do a reality show ..Can You be a *advertiser censored* star...or something like that...never got off the ground as far as I can tell.

Hawk was suggesting the possibility the extra sales funds went back into some political coffer....Im just curious if there was another angle ....what extra funds could be used for... just exploring!!!
 
Harry Fein....what was it? Berg..stein? Was it coke and weed in the burlap? If so was he alive in 2010? (I thought he kicked the bucket) If he's actually a coke dealer who lived in OB in 2010...could be connected to that 15 m drive Brewer n Shannan took
 
LindsayLohan6 said:
Harry Fein....what was it? Berg..stein? Was it coke and weed in the burlap? If so was he alive in 2010? (I thought he kicked the bucket) If he's actually a coke dealer who lived in OB in 2010...could be connected to that 15 m drive Brewer n Shannan took
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Feingold...

Yeah he moved out in 2010 and sold his house to Mr Stricoff.....Democrat money collector. This is the possible Loan fraud case Hawk mentions....the house was sold at a HIGHLY overvalued price. ...lots of questions there...

Not sure where he lives now though...
 
LindsayLohan6 said:
Do you what month in 2010? Was he still there in May that night
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Oops...maybe wrong about the year it was sold...dont want to set that year in stone unless Im 100%...will have to check that out...

If Hawk sees this mzybe he can comment. ..he knows far more about the house than me.... Im still backreading on those pages you mentioned about the drifter....ohhh...and the footy has just started...so I may be MIA for a bit...
 
I want to make one thing very clear. If there is any connection between Harry Feingold and LISK, etc., I was NOT the one that uncovered it. It was some one that no longer posts on this Board. I believe he was one of the most important Websleuthers on WS. He doesn't post and I will not reveal his name. Everything I have written about Feingold and the purchase of his house by a Bellone operative came from this fellow.
 
deedee21 said:
What is known about Harry Feingold?
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If I can dig up my notes on him I'll post them- there's some stuff out there but not nearly as much as you'd think given his foray into reality tv pron. Also his company name overlaps with another (I believe unrelated) company's name involved in the very same kind of business, so that got confusing. I was way down the rabbit hole on some false leads so I'll have to double check all of my notes once I find them to separate out useful from not useful. May be a while, sorry :(

Link to his reality show attempt coverage in USA Today circa 2003: http://usatoday30.usatoday.com/life/television/news/2003-11-04-*advertiser censored*-reality_x.htm
 
Here's something interesting: "
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Bucky Turco
‏@buckyturco
My prediction for who the Oak Island killer is/was: Harry Feingold. Former drug dealer from West Islip who recently died of a heart attack.

Now who remembers who Bucky Turco is? He wrote this article, the one with the info about the missing tenants: http://animalnewyork.com/2010/west-islip-man-was-only-guilty-of-maybe-banging-a-hooker/

and he's friends with Brewer on FB
 
Apparently Feingold controlled and operated a company called Savannah Developments
http://www.leagle.com/decision/In FDCO 20120531D30/NORTHWESTERN CONSULTANTS, INC. v. BLOOM

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OPINION AND ORDER

SANDRA J. FEUERSTEIN, District Judge.

On November 3, 2010, plaintiffs Northwestern Consultants, Inc. ("Northwestern"), a Nevada corporation, and Russell V. Lugli ("Lugli") (collectively "plaintiffs"); Bay Shore Joint Venture ("BSJV"); John M. Loeffler ("Loeffler") and Neal Zamil ("Zamil") commenced this action against defendants Eliot F. Bloom ("Bloom"), Eliot F. Bloom, P.C., a professional corporation, and Elizabeth A. Bloom (collectively, "the Bloom defendants"); Harry Feingold ("Feingold") and Fire Island Seashell Company, Inc. ("FIS Co."), a New York corporation d/b/a Savannah Development Co. (collectively, "the Feingold defendants"); Louis LaDonna ("LaDonna"); All Shores Development Co. ("All Shores"), a New York corporation; and "Doe Defendants 1-10,"1 alleging claims, inter alia, for "unlawful sale of securities," conspiracy, breach of contract, fraud, negligent misrepresentation, rescission, unjust enrichment, breach of fiduciary duty and "financial elder abuse." The Bloom defendants filed their answer to the complaint on November 23, 2010 and Feingold filed a pro se motion to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on December 30, 20102.

On April 15, 2011, plaintiffs moved pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to amend the complaint, inter alia, (1) to withdraw the claims (a) asserted on behalf of Loeffler and Zamil, both of whom indicated that they did not wish to prosecute the claims asserted on their behalf in this action, without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure,3 and (b) asserted on behalf of BSJV without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure; and (2) to substitute the Estate of Harry Feingold for Feingold, deceased, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure. Thereafter, the Bloom defendants cross-moved to dismiss the complaint (1) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction or, (2) in the alternative, pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure for failure to join an indispensable party. This action was reassigned to me on January 9, 2012, after Judge Bianco recused himself and before any determination on the pending motions. For the reasons set forth below, plaintiffs' motion is granted in its entirety and the Bloom defendants' cross motion is denied in its entirety.

I. Background4

A. Factual Background

1. The Parties

a. Plaintiffs

Northwestern is a Nevada corporation with its principal place of business in the State of California. (Compl., ¶ 2.1). Lugli is the CEO and president of Northwestern who, at all relevant times, resided in the State of California. (Compl., ¶ 2.2).

BSJV is a Nevada partnership between Northwestern and Bloom created for the purpose of undertaking the "financing, land development, construction, and sale of 24 entry level housing style housing units" on property owned by Northwestern and designated as lots 59A and 59B Second Avenue, Bay Shore, New York ("the subject property"). (Compl., ¶¶ 2.4, 3.1, Ex. A).

b. Defendants

Bloom is a resident of the State of New York and an attorney admitted to practice in the State of New York with a principal place of business in the State of New York. (Bloom Ans., ¶ 3). Plaintiffs allege: (1) that between March 22, 2006 and May 10, 2006, Bloom undertook to represent the interests of Northwestern and BSJV as their attorney in the State of New York, (Compl., ¶ 2.5); and (2) that Bloom is the sole shareholder and officer of the Law Offices of Eliot F. Bloom, P.C., and is the "control" person of that entity as defined in Section 20 of the Securities Act of 1934 ("the Securities Act"). (Compl., ¶ 2.6).

Elizabeth Bloom is Bloom's wife and is also a resident of the State of New York. (Compl., ¶ 2.7; Bloom Ans., ¶ 5).

Plaintiffs allege, inter alia: (1) that at all relevant times, Feingold was (a) a resident of the State of New York, (b) the sole shareholder and officer of FIS Co. and the "control" person of FIS Co. as defined in Section 20 of the Securities Act, (Compl., ¶ 2.8), (c) the vice president and forty-nine percent (49%) shareholder of Northwestern, (Compl., ¶¶ 5.3, 7.2.B(2), 8.4, 19.7), and (d) Lugli's investment advisor, (Compl., ¶¶ 19.5-19.6, 20.2-20.18); (2) that LaDonna is a resident of the State of New York who, at all relevant times, did business under the name of "LaDonna Properties," (Compl., ¶ 2.11); and (3) that Snider is a resident of the State of New York who, on or about October 5, 2007, purchased an interest in BSJV, (Compl., ¶ 2.12).

2. The Securities Sales

Plaintiffs allege that in March 2005 and on September 6, 2005, respectively, Bloom, as attorney for Loto World, Inc. ("LWI") and Raven Global Security, Inc. ("Raven"), both Nevada corporations, caused those companies to file articles of incorporation with the Secretary of State for the State of Nevada. (Compl., ¶¶ 5.1, 8.7). According to plaintiffs, both LWI and Raven were also authorized to do business, and had their principal places of business, in the State of California. (Compl., ¶¶ 5.1, 8.13).

Plaintiffs allege, inter alia: (1) that in March or April 2006, Feingold introduced Lugli to Bloom with the intent to persuade Lugli, through Northwestern, to invest in the common stock of LWI, (Compl., ¶¶ 8.1, 8.10, 19.8); (2) that from March or April 2006 until June 2009, Bloom acted as plaintiffs' attorney, (Compl., ¶ 8.6); and (3) that Bloom and Feingold participated in a "scheme" relating to the sale of securities pursuant to which, inter alia, (a) they advised Lugli that Bloom "had a very unique investment opportunity to purchase stock in [LWI and Raven]," (Compl., ¶¶ 5.1, 5.4-5.5, 7.2), (b) they made certain representations and misrepresentations to plaintiffs about LWI and Raven in order to induce them to purchase securities in those companies, (Compl., ¶¶ 8.11-8.12, 8.14.A-8.15, 8.18-8.20, 12.2), and (c) they agreed to split the proceeds of plaintiffs' investments and to conceal the true facts of the securities sales from plaintiffs, (Compl., ¶¶ 7.2(4) and (7), 8.16, 8.20). According to plaintiffs, Lugli, on behalf of Northwestern and in reliance upon Bloom's and Feingold's representations: (1) purchased six hundred thousand (600,000) shares of LWI's common stock for a total amount of three hundred thirty thousand dollars ($330,000.00) between April 28, 2006 and July 19, 2006; and (2) purchased one million shares (1,000,000) of common stock in Raven for the total amount of one hundred fifteen thousand dollars ($115,000.00) on August 14, 2006. (Compl., ¶¶ 5.2, 8.16, 12.3-12.6).

Plaintiffs further allege, inter alia: (1) that Bloom (a) had been issued "promotional stock" i.e., shares of LWI's common stock, in consideration for his promise to provide legal services for LWI and Raven, (b) had paid no other consideration to receive that promotional stock and (c) had informed them that he would sell them some of his promotional shares at a mutually agreeable price, but had actually "intended at all times * * * [to] simply issue new certificates from the stock books of the corporations and keep the proceeds realized from sale of the common stock of either corporation," (Compl., ¶¶ 5.8-5.9, 7.2(5), 8.20); (2) that none of the shares of common stock issued by LWI or Raven had ever been registered with any federal or state jurisdiction, (Compl., ¶ 5.10); and (3) that Bloom and Feingold had advised them (a) that such registration was not required and (b) that Bloom was under no restriction in selling his promotional stock. (Compl., ¶¶ 7.2(6), 8.20). According to plaintiffs, they did not discover Bloom's misrepresentations until April or May of 2009. (Compl., ¶ 8.22).

3. The Property Sale and Joint Venture Agreement

Plaintiffs allege that pursuant to a May 2006 oral joint venture agreement between Northwestern and Bloom: (1) Northwestern was (a) to purchase the subject property in its own name for the purpose of developing it into a condominium property for sale to the general public by BSJV and (b) to be the borrower for the construction loan related to the development of the subject property; and (2) Bloom was to be given a forty percent (40%) interest in BSJV. (Compl., ¶¶ 3.1, 7.2.B). According to plaintiffs, Bloom and Feingold participated in a "scheme" relating to the sale of the subject property, pursuant to which, inter alia: (1) they made certain representations to Northwestern upon which it relied in agreeing to form BSJV, including, inter alia, the Bloom had connections which would enable him to facilitate the purchase of the subject property, (Compl., ¶¶ 3.2, 7.2.B(1), 19.8); (2) they agreed (a) to conceal the facts about the initial purchase of the subject property by LaDonna and their involvement therein from plaintiffs5, (Compl., ¶ 7.2.B(4)), and (b) to divide any money raised, but not required to actually effect the purchase of the subject property, between themselves, (Compl., ¶ 7.2B(5)); and (3) Feingold had advised Lugli that Northwestern needed to wire Bloom the sum of three hundred fifty thousand dollars ($350,000.00) for the purchase of the subject property, (Compl., ¶ 4.3). Northwestern wired the amount of three hundred fifty thousand dollars ($350,000.00) to the trust account of Bloom on or about May 5, 2006. (Compl., ¶¶ 4.4, 10.2; Bloom Ans., ¶ 25).

Plaintiffs allege that some time prior to May 10, 2006, Bloom arranged with LaDonna to assign all of his contract rights to the subject property to Northwestern. (Compl., ¶ 4.5). According to plaintiffs: (1) on May 10, 2006, LaDonna executed an assignment of his interests in the subject property to Northwestern; (2) on or about May 12, 2006, Bloom, as attorney for Northwestern, paid LaDonna the sum of three hundred thousand dollars ($300,000.00) from the trust funds of Northwestern as consideration for the LaDonna assignment; and (3) shortly before August 1, 2006, Feingold and Bloom advised Lugli that Northwestern was required to deposit an additional four hundred thousand dollars ($400,000.00) to complete the purchase of the subject property.

Plaintiffs allege that on or about August 3, 2006: (1) Northwestern wired (a) the additional four hundred thousand dollars ($400,000.00) to the trust account of Bloom and (b) an additional seventeen thousand five hundred dollars ($17,500.00) to Bloom's trust account, upon Bloom's request, as purported reimbursement to "the original buyer" for his down-payment on the subject property, (Compl., ¶¶ 4.5-4.7,10.2); and (2) LaDonna executed a Bargain & Sale Deed to Northwestern, which was not recorded until September 5, 2006, (Compl., ¶ 4.8, Ex. G; Bloom Ans., ¶ 28). In addition, plaintiffs allege that in reliance upon advice by Feingold and Bloom that the purchase of a lot adjacent to the subject property ("Lot 26") would be beneficial to the development and sale of the subject property, Northwestern delivered fifty thousand dollars ($50,000.00) to the seller of Lot 26 in exchange for title to that property. (Compl., ¶ 4.9). Thus, plaintiffs allege that they acquired the subject property, inclusive of Lot 26, for a total price of seven hundred sixty-two thousand five hundred dollars ($762,500.00), (Compl., ¶ 4.10).

Plaintiffs allege that Bloom prepared a written Joint Venture Agreement establishing BSJV, (Compl., ¶ 3.1), which was signed by Bloom and on behalf of Northwestern on August 15, 2006. (Compl., Ex. A). Pursuant to the written Joint Venture Agreement, inter alia: (1) Northwestern was granted a fifty-five percent (55%) interest and Bloom was granted a forty-five percent (45%) interest in BSJV and in BSJV's "equity ownership interest" in the subject property, and the profits and losses of BSJV were to be allocated in accordance with those percentages; and (2) Northwestern agreed to hold its one hundred percent (100%) ownership interest in the subject property in trust for BSJV. (Compl., Ex. A).

The written Joint Venture Agreement was amended, effective February 5, 2007, to provide Johnston with half of Northwestern's interest, i.e., twenty-seven and a half percent (27.5%), in BSJV ("the Johnston Amendment"). (Compl., ¶ Ex. C). According to plaintiffs, Bloom prepared the Johnston Amendment as counsel for Northwestern. (Compl., ¶ 3.7). Plaintiffs allege, inter alia, that Feingold had made certain misrepresentations to Lugli upon which he relied in agreeing to and signing the Johnston Amendment. (Compl., ¶¶ 3.5-3.6; 7.2.C and 11.2-11.3).

Plaintiffs allege that between February 5, 2007 and October 5, 2007: (1) Feingold, Bloom and Johnston recommended to Lugli that Snider be permitted to buy-in to BSJV, (Compl., ¶ 3.8); and (2) Feingold advised Lugli that Bloom wanted to withdraw from BSJV in order to raise capital to fund his wife's political campaign, (Compl., ¶ 3.10). On September 28, 2007, Bloom prepared an agreement ("the Withdrawal Amendment") transferring his forty-five percent (45%) interest in BSJV to plaintiffs in consideration for Northwestern's promise to pay Bloom four hundred fifty thousand dollars ($450,000.00) in three (3) installments, with the first installment of one hundred thousand dollars ($100,000.00) due on the date the Withdrawal Amendment was signed and the last installment due on or before October 1, 2008. (Compl., ¶¶ 3.10, 7.2.D, Ex. E). Plaintiffs allege that Bloom signed the Withdrawal Amendment on October 5, 2007, but Lugli, individually and on behalf of Northwestern, did not sign it until December 5, 2007. (Compl., ¶ 3.11). Although Bloom received the initial installment of one hundred thousand dollars ($100,000.00) contemplated in the Withdrawal Amendment, (Compl., ¶ 3.15), plaintiffs never paid the remaining two (2) installments, totaling three hundred fifty thousand dollars ($350,000.00), to Bloom under the Withdrawal Amendment.

On December 12 and 18, 2007, respectively, Lugli, on behalf of Northwestern, and Snider,6 executed a "First Amended and Restated Joint Venture Agreement" ("the Snider Buy-In Amendment"), indicating that it became effective on November 1, 2007, which had been prepared by Bloom. (Compl., ¶ 3.8, Ex. D). Pursuant to the Snider Buy-In Amendment, inter alia: (a) Northwestern was to be granted a sixty-two and a half percent (62.5%) interest, Johnston was to retain his twenty-seven and a half percent (27.5%) interest and Snider was to be granted a ten percent (10%) interest in BSJV; and (b) the parties acknowledged that as of the date the Snider Buy-In Amendment was signed, BSJV was obligated to pay Bloom the amount of three hundred fifty thousand dollars ($350,000.00). (Compl., Ex. D). According to plaintiffs: (1) Feingold informed Lugli that Snider agreed to pay one hundred thousand dollars ($100,000.00) in consideration for the Snider Buy-In Amendment; (2) Snider delivered the consideration for the Snider Buy-In Amendment to Feingold on October 6, 2007; (3) Feingold deposited the entire amount paid by Snider into the account of FIS Co., without the knowledge or consent of Lugli; and (4) between October 9, 2007 and October 11, 2007, Feingold, acting on Bloom's instruction, wired part of the amount received from Snider into the Washington Mutual account of Bloom's wife and kept the remainder for himself. (Compl., ¶¶ 3.9, 3.13, 7.2.D).

B. Procedural Background

On or about June 28, 2009, plaintiffs commenced an action relating to the claims asserted in this action in the Superior Court of the State of California ("the California state court action").7 Although plaintiffs subsequently filed an amended complaint in the California state court action, they thereafter voluntarily dismissed the California state court action8 and commenced this action on November 3, 2010. In this action, plaintiffs allege, inter alia: (1) that Bloom and Feingold made material misrepresentations in the issuance and sale of securities to Northwestern, resulting in damages to it in the amount of four hundred forty-five thousand dollars ($445,000.00), (first cause of action)9; (2) that Bloom, Feingold and FSI Co. entered into a conspiracy to illegally issues securities to plaintiffs (second cause of action)10 (3) that Bloom breached the Joint Venture Agreement and Withdrawal Amendment (third cause of action)11 (4) that Bloom and Feingold, with the active participation of LaDonna, fraudulently induced (fifth cause of action), or made negligent misrepresentations to (seventh cause of action), plaintiffs (i) to purchase the subject property, (ii) to enter into the Joint Venture Agreement and the Johnston Amendment, the Snider Buy-In Amendment and the Withdrawal Amendment (collectively, "the related Amendments"), and/or (iii) to purchase securities in LWI and Raven;12 (5) (a) that Bloom and Feingold entered into a conspiracy to commit fraud with respect to the sale of securities and (b) that Bloom, Feingold and LaDonna entered into a conspiracy to commit fraud with respect to the Joint Venture Agreement (sixth cause of action)13; (6) that Bloom, his wife, Feingold and LaDonna were unjustly enriched in the amount of all funds received by them under false pretenses and/or in breach of their fiduciary duties to plaintiffs (ninth cause of action)14; (7) that Feingold breach of a promissory note to Lugli (eleventh cause of action)15; (8) that Feingold and Bloom "took undue advantage of LUGLI's age and trust in them and enriched themselves through the operation of the frauds * * * alleged" (twelfth cause of action)16; and (9) that Feingold breached his fiduciary duty as Lugli's investment advisor (thirteenth cause of action).17 Plaintiffs seek: (1) compensatory damages (first, second, third, fifth, sixth, seventh, eleventh, twelfth and thirteenth causes of action); (2) punitive damages in the amount of five million dollars ($5,000,000.00) (fifth and sixth causes of action); (3) rescission (a) of the Joint Venture Agreement and related Amendments and (b) of the securities transactions (third and eighth causes of action)18; (4) disgorgement of all funds by which defendants were unjustly enriched (ninth cause of action); (5) a declaration of the rights and duties of the parties under the Withdrawal Amendment (tenth cause of action)19; (6) referral of Bloom and Feingold for criminal prosecution with respect to Lugli's claims of elder abuse (twelfth cause of action); and (7) costs and attorney's fees.

Pending before the Court are: (1) plaintiffs' motion seeking to amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, inter alia, (a) to dismiss the claims asserted on behalf of BSJV without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure and (b) to substitute the Estate of Harry Feingold for Feingold, deceased, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure; and (2) the Bloom defendants' cross motion to dismiss the complaint (a) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction or (b), in the alternative, pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure for failure to join an indispensable party.

II. Discussion

A. Standard of Review

1. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction, see Mims v. Arrow Financial Services, LLC, 132 S.Ct. 740, 747, 181 L. Ed. 2d 881 (2012); Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005), and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil, 545 U.S. at 552, 125 S.Ct. 2611 (holding that federal courts may not exercise jurisdiction absent a statutory basis); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L. Ed. 2d 391 (1994) (holding that federal courts "possess only that power authorized by Constitution and statute * * *."); County of Nassau, N.Y. v. Hotels.com. LP, 577 F.3d 89, 91 (2d Cir. 2009) (holding that federal courts lack power to disregard the limits on their jurisdiction imposed by the Constitution or Congress). Lack of subject matter jurisdiction cannot be waived or forfeited and may be raised at any time by a party or by the court sua sponte. See Gonzalez v. Thaler, 132 S.Ct. 641, 648, 181 L.Ed. 2d 619 (2012); see also Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) ("[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press. * * * Objections to subject matter jurisdiction * * * may be raised at any time.") If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62-3 (2d Cir. 2009).

2. Rule 12(b)(7)

Rule 12(b)(7) authorizes dismissal of a pleading for "failure to join a party under Rule 19 [of the Federal Rules of Civil Procedure]." "Before dismissing a complaint under Rule 12(b)(7), a district court must determine whether the missing party is necessary within the meaning of Fed. R. Civ. P. 19." Johnson v. Smithsonian Institute, 189 F.3d 180, 188 (2d Cir. 1999).

B. Subject Matter Jurisdiction

Plaintiffs allege in the original complaint that jurisdiction is based upon both the Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331 and the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Compl., ¶ 1.0).

I. Federal Question Jurisdiction

28 U.S.C. § 1331, which provides the basis for federal question jurisdiction, states that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The "well-pleaded complaint" rule determines whether an action arises under the Constitution, laws, or treaties of the United States. See Vaden v. Discover Bank, 556 U.S. 49, 60, 129 S.Ct. 1262, 173 L. Ed. 2d 206 (2009); Franchise Tax Bd. of State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Romano v. Kazacos, 609 F.3d 512, 518 (2d Cir. 2010). Pursuant to the "well-pleaded complaint" rule,

Whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, * * * must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance or defenses which it is thought the defendant may interpose.
Franchise Tax Bd., 463 U.S. at 10, 103 S.Ct. 2841 (citing Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed.2d 1218 [1914]); see also Vaden, 556 U.S. at 60, 129 S.Ct. 1262 (holding that under the well-pleaded complaint rule, "a suit `arises under' federal law only when the plaintiffs statement of his own cause of action shows that it is based upon federal law. * * * Federal jurisdiction cannot be predicated on an actual or anticipated defense * * * [or] counterclaim." (quotations, alterations and citations omitted)). Even in cases in which state law creates the plaintiffs causes of action, the case "might still `arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. 2841: see also Bracey v. Board of Education of City of Bridgeport, 368 F.3d 108, 113 (2d Cir. 2004) ("If the plaintiffs statement of his or her state-law claim in a well-pleaded complaint necessarily depends on resolution of a substantial question of federal law * * *, then the case may * * * arise under federal law within the meaning of Section 1331." (quotations and citations omitted)). In other words, federal courts have original federal question jurisdiction only where "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law." Empire Healthchoice Assurance. Inc. v. McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (5-4 decision) (quoting Franchise Tax Bd., 463 U.S. at 27-28, 103 S.Ct. 2841); Perpetual Securities. Inc. v. Tang, 290 F.3d 132, 137 (2d Cir. 2002).

Although plaintiffs reference the Securities Act in their complaint, they do not allege that any defendant violated that, or any other, federal statute or the United States Constitution, nor is a substantial question of federal law implicated in this action. Indeed, in the proposed amended complaint, plaintiffs effectively concede that this Court lacks federal question jurisdiction insofar as they allege jurisdiction only "under 28 U.S.C. § 1331(a) [sic] in that the amount in controversy exceeds $75,000.00 and is among citizens of different states." (Proposed Amended Complaint ["Amend. Compl."], ¶ 1). Since it is clear from the face of the complaint that none of the causes of action asserted therein arise under the United States Constitution or federal law, this Court does not have federal question jurisdiction under 28 U.S.C. § 1331.

2. Diversity of Citizenship

Thus, this Court only has jurisdiction over this action if there is diversity of citizenship under 28 U.S.C. § 1332(a).

"[T]he jurisdiction of the court depends upon the state of things at the time of the action brought." Grupo Dataflux v. Atlas Global Group. L.P., 541 U.S. 567, 570,124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (quoting Mollan v. Torrance, 22 U.S. 537, 6 L.Ed. 154, 9 Wheat. 537, 539 (1824)): see also Rockwell Intern. Corp. v. U.S., 549 U.S. 457, 473, 127 S.Ct. 1397, 167 L. Ed. 2d 190 (2007). This "time-of-filing" rule "measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing [of the complaint]—whether the challenge [to jurisdiction] be brought shortly after filing, after the trial, or even for the first time on appeal." Grupo, 541 U.S. at 570-571, 124 S.Ct. 1920; see also Herrick Co., Inc. v. SCS Communications. Inc., 251 F.3d 315, 329 (2d Cir. 2001) ("The existence of federal jurisdiction over a case initially filed in federal court ordinarily depends on the facts as they stood when the complaint was filed.") Since jurisdiction is measured as of the time the complaint was filed, events occurring subsequently are irrelevant to a determination of subject matter jurisdiction.

Section 1332 "require complete diversity between all plaintiffs and all defendants." Lincoln Property Co. v. Roche, 546 U.S. 81, 89, 126 S.Ct. 606, 163 L. Ed. 2d 415 (2005); see also Herrick Co., 251 F.3d at 322 ("[Diversity jurisdiction is available only when all adverse parties to a litigation are completely diverse in their citizenships.") "t is well established that the party seeking to invoke jurisdiction under 28 U.S.C. § 1332 bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete." Herrick Co., 251 F.3d at 322-323; see also Universal Licensing Corp. v. Paola del Lungo S.p.A., 293 F.3d 579, 581 (2d Cir. 2002) ("[T]he party invoking federal jurisdiction bears the burden of proving facts to establish that jurisdiction," (quotations and citation omitted)).

a. Citizenship of Individuals

"An individual's citizenship * * * is determined by his domicile. * * * Domicile is the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). Thus, it is clear that for purposes of diversity jurisdiction, at the time this action was commenced, Lugli, the sole remaining individual plaintiff, was a citizen of California and all of the individual defendants were citizens of New York.

b. Citizenship of Corporations

A corporation is "deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business * * *." 28 U.S.C. § 1332(c)(1); see also In re Balfour MacLaine International Ltd., 85 F.3d 68, 76 (2d Cir. 1996) ("A corporation has dual citizenship for purposes of a federal court's diversity jurisdiction under 28 U.S.C. § 1332; namely, it is a citizen of the state of its incorporation and of the state where it has its principal place of business.") Accordingly, in order for there to be complete diversity of citizenship, a corporate plaintiff cannot be incorporated, nor have its principal place of business, in the same state in which any defendant is a citizen at the time the action is filed. Drake v. Laboratory Corp. of America Holdings, 323 F.Supp.2d 449, 451 (E.D.N.Y. 2004); see also IGY Ocean Bay Properties, Ltd. v. Ocean Bay Properties I Ltd., 534 F.Supp.2d 446, 449 (S.D.N.Y. 2008) (holding that "[t]here is no warrant for the Court, no more than there is for either side of the parties, to pick and choose and to look solely at the principal place of business or solely at the state of incorporation to determine that diversity exists.") Thus, for purposes of diversity jurisdiction, at the time this action was commenced, Northwestern, the corporate plaintiff, was a citizen of the States of Nevada, where it was incorporated, and California, where it had its principal place of business, and Eliot F. Bloom, P.C. and FIS Co., the remaining corporate defendants, were citizens of the State of New York, where they were incorporated and had their principal places of business.

c. Citizenship of Joint Ventures

Unlike corporations, the citizenship of an unincorporated association, e.g., a partnership or joint venture, is the citizenship of all of its members. See Grupo Dataflux, 541 U.S. at 569, 124 S.Ct. 1920 (holding that a partnership "is a citizen of each State * * * of which any of its partners is a citizen."); Schiavone Construction Co. v. City of New York, 99 F.3d 546, 548 (2d Cir. 1996) ("For diversity purposes, the citizenship of a joint venture is the citizenship of each of its members."); Keith v. Black Diamond Advisors. Inc., 48 F.Supp.2d 326, 329 (S.D.N.Y. 1999) (holding that joint ventures "are not citizens at all and therefore a court must look to the citizenship of each partner or member of the [venture]."); Varlotta Construction Corp. v. Carta Development Corp., 886 F.Supp. 315, 317 (E.D.N.Y. 1995) ("[Unincorporated associations such as joint ventures are citizens of every State in which their members are citizens.") Neither the principal place of business of an unincorporated association, nor the State in which that association was formed, are relevant for purposes of diversity jurisdiction. See, e.g. Woodward v. D.H. Overmver Co., 428 F.2d 880, 883 (2d Cir. 1970); Mackason v. Diamond Financial LLC, 347 F.Supp.2d 53, 55 (S.D.N.Y. 2004); Bamco 18 v. Reeves, 675 F.Supp. 826, 831 (S.D.N.Y. 1987). Accordingly, for purposes of diversity jurisdiction, at the time this action was commenced, BSJV was a citizen of the State of California, in which Lugli was a citizen, and the State of New York, in which Snider, an undisputed member of BSJV at the time this action was commenced, was a citizen20. Thus, the presence of BSJV as a plaintiff in this action defeats this Court's diversity jurisdiction. See, e.g. Herrick Co., 251 F.3d at 329 (holding that, generally, federal jurisdiction over a case would be invalid ab initio if the plaintiff fails to demonstrate that complete diversity existed at the time it filed its initial complaint).

d. Exceptions to "Time-of-Filing" Rule

Two (2) exceptions exist to the "time-of-filing" rule, which "allow federal courts, under certain circumstances to cure defects of federal jurisdiction." Herrick Co., 251 F.3d at 329; see also Newman-Green. Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L. Ed. 2d 893 (1989). The first exception allows a plaintiff to cure a jurisdictional defect in his complaint "by establishing ex post the original existence of the required jurisdictional facts." Herrick Co., 251 F.3d at 329. The second exception allows the court to dismiss "jurisdictional spoilers, nunc pro tunc, pursuant to Fed. R. Civ. P. 21." Id.

Plaintiffs invoke only the second exception in seeking to amend their complaint, inter alia, to drop BSJV, the "jurisdictional spoiler," as a plaintiff in this action. The Bloom defendants oppose such an amendment on the basis, inter alia: (1) that this action was pending, first in state court, then in this Court, for almost two (2) years prior to plaintiffs seeking the amendment and plaintiffs have failed to provide a reasonable explanation for their delay; and (2) that BSJV is the real party in interest because the "majority" of plaintiffs' causes of action, i.e., their third through eighth causes of action, are merely derivative in nature.21

Rule 21 of the Federal Rules of Civil Procedure provides, in pertinent part, that "the court may at any time, on just terms, add or drop a party." "Once a party has been dropped under Rule 21, * * * the complaint [is to be read] as if [that party] had never been included." LeBlanc v. Cleveland, 248 F.3d 95, 99 (2d Cir. 2001); see also E.R. Squibb & Sons. Inc. v. Lloyd's & Companies, 241 F.3d 154, 163 (2d Cir. 2001). Rule 21 has been interpreted to allow a federal court to preserve diversity jurisdiction by removing a dispensable non-diverse party from a suit at any time. Newman-Green, 490 U.S. 826, 832-833, 109 S.Ct. 2218: see also Call Center Technologies, Inc. v. Grand Adventures Tour & Travel Pub. Corp., 635 F.3d 48, 51 (2d Cir. 2011) (holding that Rule 21 "allows a court to drop a nondiverse party at any time to preserve diversity jurisdiction, provided the nondiverse party is not `indispensable' under Rule 19(b)." (quotations and citations omitted)).

The Second Circuit has held that:

A district court's decision to dismiss parties under Rule 21 is circumscribed only by the `equity and good conscience test' of Rule 19(b). Rule 19(b) commands a district court to dismiss an action when it is impossible to have the participation of an indispensable party. * * * [T]he district court should take a `flexible approach' under Rule 19(b) when deciding whether parties are indispensable[.] * * * [V]ery few cases should be terminated due to the absence of nondiverse parties unless there has been a reasoned determination that their nonjoinder makes just resolution of the action impossible.
Universal Reinsurance Co., Ltd. v. St. Paul Fire and Marine Ins. Co., 312 F.3d 82, 87 (2d Cir. 2002). "[T]he question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether . . . they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights may be made, the jurisdiction of the court should be retained and the suit dismissed as to them." Grupo Dataflux, 541 U.S. at 572, 124 S.Ct. 1920 (quoting Horn v. Lockhart, 84 U.S. 570, 21 L. Ed. 657, 17 Wall. 570, 579 (1873)).

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"Irving Feingold, 59 of Hialeah was arrested 'Tuesday night by Metro - Dade County police on a Suffolk warrant charging him with conspiracy, said Art Penny, the spokesman. Feingold's three sons and his ex - wife were among 19 people arrested Monday night In a series of raids by Suffolk law enforcement agents. The arrests followed a nine - month investigation into the transport of pure cocaine from Maimi to West Islip in Suffolk, and Its distribution and sale in the metropolitan area. Feingold was "the source of supply" of the cocaine to Long Island, Penny Mid. Suffolk District Attorney Patrick Henry wilf seek to have Feingold extradicted to Suffolk for prosecution. Penny said. Feingold's oldest son, Harry, 29, of West Islip, is alleged to be the ringleader and is being held on $1.5 million bail, the spokesman said. The other - sons Marc, 23, bf West Islip, and Michael, 27, of Babylon, are also being held, he said. Feingold's ex - wife, - Evalyne, 59, was arrested after an illegal handgun was found in a raid of her West Islip home, Penny said. She was released on a station - house bail of $25. "
https://webcache.googleusercontent....4964/+&cd=6&hl=en&ct=clnk&gl=us&client=safari
 
Here's something I find shocking....that tweet by Bucky...it has one retweet. Take a look at by whom. It's Harry's younger brother Marc. What does this say? Why would he retweet a statement about his brother being a serial killer? Is it true?
https://twitter.com/tellman25marc
 
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