                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




YING QING LU, et al.,

        Plaintiffs,
           v.                                            Civil Action No. 11-1815 (JEB)


MARK LEZELL, et al.,

        Defendants.




                           MEMORANDUM OPINION AND ORDER

        Plaintiffs are two entities and two individuals who allege that Defendants Mark Lezell

and Isam Ghosh defrauded them out of different investments. They have brought this suit under

the Racketeering Influenced and Corrupt Organizations Act and have also alleged several

common-law causes of action. Defendant Lezell has now moved to dismiss, arguing that the

RICO claim is insufficiently pled and that one Plaintiff and two other counts should also be

dismissed. The Court agrees with all but the RICO argument.

   I.      Procedural Background

        The procedural history in this matter is somewhat involved. Ying Qing Lu as the sole

Plaintiff filed her initial Complaint in this matter on October 13, 2011. She asserted causes of

action for conspiracy under the Racketeering Influenced and Corrupt Organizations Act, 18

U.S.C. § 1962, breach of contract, civil conspiracy, breach of fiduciary duty, negligence, and

fraud. See ECF No. 1. On November 9, Defendants Lezell and Ghosh jointly moved to dismiss,

and Plaintiff never responded. The Court, therefore, on December 7, granted the Motion as
conceded and dismissed the case. On December 20, Plaintiff filed a Motion for Leave to Late

File her Opposition. In an Order of January 5, 2012, the Court explained that Plaintiff’s

pleading, which was “incomprehensible and incoherent,” “never clearly explain[ed] why the

Court should vacate its prior ruling.” See ECF No. 9 at 1. The Court, accordingly, denied the

Motion without prejudice.

       Plaintiff then filed another motion seeking to vacate the dismissal and asking leave to file

an amended complaint, both of which requests the Court granted in a Memorandum Opinion on

March 16, 2012. See ECF No. 14. In part, the Court held that the RICO allegations, while thin,

would survive a motion to dismiss. See id. at 4-9. Defense counsel subsequently sought to

withdraw, which the Court permitted in Minute Orders of April 30 and May 4. Plaintiff’s

counsel then improperly sought to intervene on behalf of other potential plaintiffs, which the

Court denied in an Order on May 29, explaining, inter alia, that the proper course was a motion

to amend complaint. See ECF No. 27. After Plaintiff failed to act for three months, the Court,

sua sponte, ordered that she show cause why the case should not be dismissed for want of

prosecution. See Minute Order of Aug. 29, 2012. Plaintiff responded, and the Court ultimately

permitted a Third Amended Complaint to be filed on October 31. See ECF No. 37. This

pleading added three other Plaintiffs: Oklahoma Shelf Exploration and Development, LLC;

Bridges Financial, LLC; and Afshin Afsharnia. After neither Defendant responded, the Clerk

entered default. See ECF No. 39. Defendant Lezell, with counsel reappearing in the case, then

asked the Court to vacate the default. See ECF No. 41. The Court ultimately did so during a

hearing on December 19, and it permitted Lezell to file the Motion to Dismiss the Third

Amended Complaint, which is now ripe for decision. See Minute Order of Dec. 19, 2012.



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   II.      Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendant’s

Motion to Dismiss, the Court must “treat the complaint’s factual allegations as true . . . and must

grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United

States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens

Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The notice pleading rules are “not

meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347

(2005), and she must thus be given every favorable inference that may be drawn from the

allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).

         Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570). Plaintiff must put forth “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an

inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n,

456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)

(internal quotation marks omitted)). Though a plaintiff may survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” the facts alleged in the complaint “must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
                                                      3
   III.        Analysis

          Lezell sets forth a variety of arguments (some in just a sentence or two) in his Motion to

Dismiss, four of which deserve particular attention. First, Plaintiffs’ RICO claim is insufficiently

pled. Second, claims by Plaintiff Bridges Financial, LLC are precluded by the Court’s prior

Opinion in a related case. Third, Plaintiffs’ contract claim is barred by the statute of limitations.

Fourth, their breach-of-fiduciary-duty count fails to assert a fiduciary relationship. The Court

will consider each in turn.

          A.      RICO

          Lezell’s arguments about Plaintiffs’ RICO cause of action essentially restate the position

he and co-Defendant Ghosh took on the same question when they opposed Plaintiff Lu’s motion

to amend her complaint a year ago. See ECF No. 11. And the Court’s response is the same. As

it stated in its Memorandum Opinion then, “Although this is hardly the most complex or

comprehensive of RICO schemes, it appears sufficient at this stage for Plaintiff to clear the

dismissal hurdle for several reasons.” See ECF No. 14 at 7. The Court also concluded there and

repeats here: “The Court does note that some of Plaintiff’s allegations about the other schemes

and victims are somewhat superficial. Should she fail to provide record evidence of these

multiple schemes and victims, Defendants may obtain greater success on a motion for summary

judgment.” Id. at 9.

          B.      Bridges

          On July 25, 2011, Plaintiff Earnest Bridges, represented by Plaintiffs’ counsel here, filed

a separate suit against Lezell’s law firm and Ghosh’s consulting firm, alleging the same facts as

in this case and asserting claims for RICO and other common-law violations. See Bridges v.

Lezell Law, PC, No. 11-1353, ECF No. 6 (Amended Complaint). This Court, to whom that case
                                                       4
was also assigned, dismissed the RICO count with prejudice in a Memorandum Opinion. See

Bridges v. Lezell Law, PC, 842 F. Supp. 2d 261 (D.D.C. 2012) (Bridges I). Yet, in the guise of

Bridges Financial, LLC, the same RICO claim is now raised again in this suit.

        The doctrine of res judicata (or claim preclusion) prohibits Bridges Financial’s inclusion

in this suit. “A subsequent lawsuit is barred by claim preclusion ‘if there has been prior litigation

(1) involving the same claims or cause of action, (2) between the same parties or their privies,

and (3) there has been a final, valid judgment on the merits, (4) by a court of competent

jurisdiction.’” Natural Res. Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008) (quoting

Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)). Each of these elements is present

here.

        Whether a case presents “the same cause of action turns on whether [the lawsuits] share

the same nucleus of facts.” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (citations

omitted). If a claim could have been raised in an earlier action, but was not, that claim is also

barred under res judicata. See Appalachian Power Co. v. EPA, 251 F.3d 1026, 1033–34 (D.C.

Cir. 2001). Here, Plaintiffs’ Complaint even references the Bridges case several times to make

clear that the conduct is the same. See Third Am. Compl. at 4, 12, 14.

        In regard to the second prong, res judicata binds both the original parties and their

privies. Natural Res. Def. Council, 513 F.3d at 260. Privity is not found in merely parallel

interests, but in “the substantial identity of incentives of the earlier party with those of the party

against who[m] res judicata is asserted.” Holland v. Apfel, 23 F. Supp. 2d 21, 25-26 (D.D.C.

1998) (citations omitted); see also Patton v. Klein, 746 A.2d 866, 870 (D.C. Cir. 1999) (“A privy

is one so identified in interest with a party to the former litigation that he or she represents

precisely the same legal right in respect to the subject matter of the case,” including “those
                                                       5
whose interests are represented by a party to the action.”) (citations omitted). Here, privity exists

between Bridges and Bridges Financial. Indeed, Plaintiffs’ Opposition makes no argument to the

contrary nor does it ever claim that there is some meaningful distinction between Bridges the

individual and his company.

          Last, there has been a final, valid judgment on the merits by a court of competent

jurisdiction, as this Court dismissed Bridges’s RICO claim with prejudice in the prior suit. See

Bridges I.

          That Bridges’s current RICO allegation may differ slightly from that presented

previously does not allow him a second bite at the apple. Claim preclusion “bars relitigation not

only of matters determined in a previous litigation but also ones that a party could have raised.”

NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C. Cir. 1988) (emphasis added); see also SBC

Commc’ns Inc. v. FCC, 407 F.3d 1223, 1230 (D.C. Cir. 2005) (“[T]he purpose of claim

preclusion is to prevent litigation of matters that should have been raised in an earlier suit.”)

(emphasis in original; citations omitted).

          Plaintiffs, it bears mention, have conceded the preclusive effect of Bridges I by failing to

contest Lezell’s argument on this point. See Lewis v. District of Columbia, 2011 WL 321711, at

*1 (D.C. Cir. Feb. 2, 2011) (“’It is well understood in this Circuit that when a plaintiff files an

opposition to a dispositive motion and addresses only certain arguments raised by the defendant,

a court may treat those arguments that the plaintiff failed to address as conceded.’”) (quoting

Hopkins v. Women’s Div., General Bd. of Global Ministeries, 284 F. Supp. 2d 15, 25 (D.D.C.

2003)).




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        It should be noted that the only claim Bridges Financial makes here is under RICO. The

common-law claims alleged do not relate to it. As a result, Bridges Financial will be dismissed

as a Plaintiff.

        C.        Breach of Contract

        The second cause of action – for breach of contract – appears to only apply to Plaintiff

Lu. See Third Am. Compl., ¶¶ 66-68. Although this count, like much of the Third Amended

Complaint, remains poorly pled and confusing, it appears the main contention is Defendants’

failure to return a $50,000 escrow deposit. Id. Lezell argues that, whatever the merits of this

claim may be, it is barred by the three-year statute of limitations for such causes of action.

Plaintiffs do not respond to this argument either and have thus conceded it. Even if they had not,

Lezell is correct.

        In the District of Columbia, the statute of limitations for breach of contract is three years,

and it begins to run at the time of the breach. See D.C. Code § 12-301(7); Murray v. Wells

Fargo Home Mortg., 953 A.2d 308, 319-20 (D.C. 2008). Accepting Plaintiffs’ allegations “in a

light most favorable to the nonmoving party,” Jordan Keys & Jessamy, LLP v. St. Paul Fire &

Marine Ins. Co., 870 A.2d 58, 62 (D.C. 2005), Defendants breached the contract at some point

soon after May 29, 2008. See Third Am. Compl., ¶¶ 39-40 (“On May 29, 2008, at 2:35 a.m.,

Lezell sent an email to Attorney Tolliver, naming himself, Lezell as the Escrow Agent, and

stating verbatim that ‘as escrow agent, I undertake to apply the deposited funds subject to the

conditions agreed to.’ Mark Lezell thereafter transferred the funds to Isam Gosh [sic]/Westin

Development, LLC, in clear violation of the emailed escrow instructions and the his [sic]

representations to the Plaintiff.”). Plaintiffs never state exactly when the transfer occurred, but it

appears to have been shortly after May 29 or even the same day.
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        The statute of limitations, however, is tolled when the plaintiff does not know, and should

not reasonably have known, that an injury has been suffered due to the defendant’s wrongdoing.

See Lee v. Wolfson, 265 F. Supp. 2d 14, 17 (D.D.C. 2003) (statute of limitations begins to run

when “the plaintiff has knowledge of (or by the existence of reasonable diligence should have

knowledge of) (1) the existence of injury, (2) its cause in fact, and (3) some evidence of

wrongdoing”) (citing Bussineau v. President & Dir. of Georgetown Coll., 518 A.2d 423, 425

(D.C. 1986)).

        Plaintiff Lu does not argue that she “could not reasonably have discovered the claim at

that time; rather, she knew, or reasonably should have known,” when she did not receive the

$73,000 promised upon her $50,000 deposit to the escrow account. See Pardue v. Ctr. City

Consortium Schools of Archdiocese of Washington, Inc., 875 A.2d 669, 679 (D.C. 2005); see

also Toomey v. Cammack, 345 A.2d 453, 455 (D.C. 1975) (“As a general rule, an actionable

claim accrues, and the statute of limitations begins to run, when a suit thereon could first be

maintained to a successful conclusion.”).

        Since Lu did not file her Complaint until October 13, 2011, her breach-of-contract claim

is untimely. See Malewicz v. City of Amsterdam, 517 F. Supp. 2d 322, 335 (D.D.C. 2007)

(“Dismissal on statute of limitations grounds is . . . appropriate when the complaint establishes

the defense on its face.”). 1

        D.       Breach of Fiduciary Duty

        In the District of Columbia, “[t]he elements of a legally cognizable breach of fiduciary

claim are well-established. [Plaintiff] must allege facts sufficient to show (1) the existence of a


        1
          There is also a reference in this count to $250,000 that Ghosh owed Plaintiff. See Third Am. Compl., ¶¶
67-68, but the Court will not address this because it deals with Ghosh, not Lezell. See id., ¶¶ 31-32.
                                                             8
fiduciary relationship; (2) a breach of the duties associated with the fiduciary relationship; and

(3) injuries that were proximately caused by the breach of the fiduciary duties.” Armenian

Genocide Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc., 607 F. Supp. 2d 185, 190-91

(D.D.C. 2009). “To state a claim for breach of fiduciary duty under D.C. law, the claimant must

allege the existence of a fiduciary duty and a violation of that duty.” Command Consulting Grp.,

LLC v. Neuraliq, Inc., 623 F. Supp. 2d 49, 54 (D.D.C. 2009). Claimants must also allege facts to

establish proximate cause and injury to receive compensatory damages. Id. “[T]he mere

existence of a contract does not create a fiduciary duty. A fiduciary relationship could exist,

however, where circumstances show that the parties extended their relationship beyond the limits

of contractual obligations to a relationship founded upon trust and confidence.” Paul v. Judicial

Watch, Inc., 543 F. Supp. 2d 1, 6 (D.D.C. 2008).

       Defendant correctly argues that Count IV for breach of fiduciary duty does not allege a

fiduciary relationship. Although Plaintiffs have also conceded this point – by failing to respond

to the argument – they would lose on the merits anyway.

       While fiduciary relationships can be difficult to define, and may very well exist between

contracting parties, “[o]ne characteristic that District of Columbia courts have traditionally

looked for is a ‘special confidential relationship’ that transcends an ordinary business transaction

and requires each party to act with the interests of the other in mind.” High v. McLean Fin.

Corp., 659 F. Supp. 1561, 1568 (D.D.C. 1987); see also Urban Inv., Inc. v. Branham, 464 A.2d

93, 96 (D.C. 1983). Here, Plaintiff never alleges the existence of such a fiduciary relationship.

See Third Am. Compl., ¶ 73. Without a fiduciary relationship, there can be no breach of

fiduciary duty.



                                                     9
         In any event, just like Plaintiffs’ contract claim, this one would also be barred by the

same three-year statute of limitations. See D.C. Code § 12-301(8). The only allegation of

breach of fiduciary duty is Defendants’ taking of the escrow deposit and not returning it. See

Third Am. Compl., ¶ 73. As stated in Section III.C, supra, that action occurred in May 2008,

more than three years before the filing of this suit in October 2011, and no tolling is applicable.

   IV.       Conclusion

         Given that this is Plaintiffs’ Third Amended Complaint, her efforts to successfully allege

such claims as breach of contract and breach of fiduciary duty have run their course and further

amendment should not be permitted. The dismissal of those claims, consequently, will be with

prejudice.

         The Court, accordingly, ORDERS that:

             1. Defendant Lezell’s Motion to Dismiss is GRANTED IN PART and DENIED IN

                PART;

             2. The claim of Bridges Financial, LLC is DISMISSED WITH PREJUDICE;

             3. The counts of Breach of Contract and Breach of Fiduciary Duty are DISMISSED

                WITH PREJUDICE; and

             4. Defendant Lezell shall file an Answer by Feb. 7.

             IT IS SO ORDERED.




                                                               /s/ James E. Boasberg
                                                               JAMES E. BOASBERG
                                                               United States District Judge
         Date: January 25, 2013

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