United States District Court, D. Delaware
AUSTIN MCHUGH UNITED STATES DISTRICT JUDGE
a diversity action referred to Magistrate Judge Sherry R.
Fallon for a Report and Recommendation (“R &
R”) on a Motion to Dismiss. Judge Fallon has prepared a
comprehensive and well-reasoned report (D.I. 199) and for the
reasons that follow I will adopt it in its entirety.
vast majority of Judge Fallon's conclusions are not
challenged, and are therefore reviewed only for clear error.
28 U.S.C. § 636(b)(1). I find none.
endorsement includes Judge Fallon's conclusions that:
1. the Mutual General Release Document (D.I. 200-2)
[hereinafter “the Release”], if accepted as
valid, bars all claims except Plaintiff Gigi Jordan's
breach of warranty claim (Count VII) and her claim for
declaratory relief (Count X);
2. the statute of limitations does not bar Plaintiff's
breach of warranty claim; but
3. the surviving warranty claim cannot serve as a legal
predicate for her declaratory judgment claim.
endorsement further extends to Judge Fallon's alternative
bases for her conclusion:
4. that, even if the Release were deemed inapplicable, New
York's six-year statute of limitations bars
Plaintiff's breach of contract on promissory notes claim
(Count I), much of her accounting claim (Count II) as to all
Defendants, and her fraudulent inducement claim (Count V) as
to Defendants Troilo, Tropiano, and Kolleda;
5. New York's three-year statute of limitations bars
Plaintiff's common law fraud claims (Count III) as to
Defendant's Troilo, Kolleda, Kovinsky, and Tropiano, her
breach of fiduciary duty claim (Count VI) as to Defendants
Mirra, Troilo, and Kolleda, and her unjust enrichment claim
(Count VIII) as to all Defendants; and
6. her aiding and abetting fraud claim (Count IV) is
time-barred under either statute of limitations.
as an additional alternative basis for dismissal of
Plaintiff's common law fraud claim based on alleged
forgeries, Judge Fallon concluded that it was insufficiently
pleaded because only third parties relied on the purportedly
forged documents. As the controlling standard, Judge Fallon
properly applied Pasternack v. Lab Corp., 2014 WL
4832299 (S.D.N.Y. 2014).
to Plaintiff's objections, Defendants rightly point out
that those objections principally rely on arguments that were
not before Judge Fallon, and Plaintiff makes no effort to
show good cause (D.I. 200-2). This is contrary to this
Court's Standing Order for Objections, and the
Magistrate's Act, and could therefore be considered
waived. I will nonetheless address the merits.
objections are threefold: that it was improper (a) to dismiss
all her claims except for breach of warranty on the basis of
the Release, because the Release does not cover her fraud and
fraudulent inducement claims (Counts III and V,
respectively); (b) to dismiss her fraud and fraudulent
inducement claims against defendant Mirra for lack of
justifiable reliance because justifiable reliance cannot be
determined at the pleading stage; and (c) to dismiss her
fraud and fraudulent inducement claims, otherwise subject ...