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Nielsen c . Van Leuven

United States District Court, D. Connecticut

April 26, 2016

BJORN NIELSEN, Plaintiff,
v.
JENNIFER VAN LEUVEN a.k.a. Jennifer Van Leuvan, and JOSEPH VAN LEUVEN, Defendants.

RULING AND ORDER

This case is about a $150, 000 engagement ring, a credit card, and a car crash. In his five-count amended complaint, the plaintiff Bjorn Nielsen brings an action for replevin against his ex-fiancée Jennifer Van Leuven, and claims of unjust enrichment, conversion, civil theft, and civil conspiracy against Ms. Van Leuven and her brother, Joseph Van Leuven. (ECF No. 19.)

The case was removed to this court on July 29, 2016. I have jurisdiction over this case under 28 U.S.C. § 1332 because the amount in controversy exceeds $75, 000 and the plaintiff is a citizen of Connecticut and the defendants are citizens of New York. (Notice of Removal, ECF No. 1 at ¶ 2.)

Joseph Van Leuven has moved to dismiss the plaintiff’s amended complaint. (ECF No. 22.) Rather than explaining why the plaintiff has failed to state a claim under the legal theories presented by the plaintiff, Joseph Van Leuven argues that the Court should grant his motion to dismiss merely because the plaintiff has made several allegations “upon information and belief.” Because the plaintiff may properly make the challenged allegations upon information and belief and because Mr. Van Leuven does not argue that the amended complaint is otherwise deficient, I deny the motion.

I. Factual Allegations

The plaintiff, Bjorn Nielsen, was engaged to the defendant Jennifer Van Leuven. (Amended Complaint, ECF No. 19 at ¶ 1-2, 6.) Joseph Van Leuven is Ms. Van Leuven’s brother. (Id. at ¶ 3.) Mr. Nielsen and Ms. Van Leuven had a difficult relationship that ended after Mr. Nielsen gave Ms. Van Leuven a $150, 000 engagement ring, which she has refused to return. (Id. at ¶¶ 6-8, 28-30.) (See also Notice of Removal, ECF No. 1 at ¶ 2 (“The ‘valuable engagement ring’ described in Paragraph 6 of each count of the Complaint had a purchase price of $150, 000.00.”).)

During their relationship, Mr. Nielsen allowed Ms. Van Leuven to use his credit cards and store credit accounts on specific occasions so long as he gave his prior approval. (Id. at ¶¶ 9- 10.) Without having Mr. Nielsen’s permission, Ms. Van Leuven used Mr. Nielsen’s credit cards and store accounts to purchase luxury clothing, an airline ticket, and food for her brother. (Id. at ¶¶ 12-13, 15, 17.) “Upon information and belief, ” Mr. Van Leuven knew or should have known that his sister did not have Mr. Nielsen’s permission to spend Mr. Nielsen’s money on her brother; even so, Mr. Van Leuven accepted the clothing, airline ticket, and food from his sister. (Id. at ¶¶ 14, 16, 18, 21.)

“Upon information and belief, ” Ms. Van Leuven gave her brother Mr. Nielsen’s credit card number. (Id. at ¶ 56.) Unlike his sister, Mr. Van Leuven never had permission to use Mr. Nielsen’s cards or accounts. (Id. at ¶ 11.) “Upon information and belief, Mr. Van Leuven knew or should have known that he did not have authorization to make any purchases for his own benefit on Mr. [Nielsen]’s credit cards.” (Id. at ¶ 20.) Not only did Mr. Van Leuven accept the unauthorized gifts from his sister, Mr. Van Leuven also used his would-be brother-in-law’s American Express card without authorization to order home-delivered meals while Mr. Nielsen and Ms. Van Leuven were traveling. (Id. at ¶¶ 19, 56.)

At some point, Mr. Van Leuven took Mr. Nielsen’s car without permission and crashed it. (Id. at ¶ 23.) “Upon information and belief, ” to avoid responsibility for the damage, Mr. Van Leuven told the tow company that his name was “Joe Nielsen.” (Id. at ¶ 24.)

II. Legal Standard

A. The General Standard on a Motion to Dismiss

In evaluating whether a plaintiff has stated a claim for relief under Rule 12(b)(6), I must “accept as true all factual allegations in the complaint and draw all reasonable inferences” in plaintiff’s favor. CruzGomez, 202 F.3d 593, 596 (2d Cir. 2000). I need not accept conclusory allegations and may allow the case to proceed only if the complaint pleads “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.Twombly, 550 U.S. 544, 570 (2007); AshcroftIqbal, 556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S. at 554-55).

B. Pleading Upon Information and Belief

If “facts are peculiarly within the possession and control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible, ” a plaintiff may allege a fact “upon information and belief.” Arista Records LLCDoe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal citations and quotations omitted). “[P]leading on information and belief is not an appropriate form of pleading if the matter is within the personal knowledge of the pleader or ‘presumptively’ within his knowledge, unless he rebuts that presumption. Thus, matters of public record or matters generally known in the community should not be alleged on information and belief inasmuch as everyone is held to be conversant with them.” SandersGrenadier Realty, Inc., 367 F. App’x. 173, 175 n.2 (2d Cir. 2010) (citation omitted). “[W]hile pleadings may be based on ‘the best of the [attorney’s] knowledge, information, and belief, ’ that information and belief must be “formed after an inquiry reasonable under the circumstances.” Id. (quoting Fed.R.Civ.P. 11).

“There is no ‘fatal combination, ’ of magic words, however, that makes a complaint deficient. Rather, the plausibility inquiry is a ‘context-specific task.’” New YorkTown of Clarkstown, 95 F.Supp. 3d 660, 680 (S.D.N.Y. 2015). Thus, a motion to dismiss will not be granted merely because a plaintiff makes allegations upon information and belief. See LefkowitzMcGraw-Hill Glob. Educ. Holdings, LLC, 23 F.Supp. 3d 344, 355 (S.D.N.Y. 2014) ...


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