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Vasarhelyi v. Vasarhelyi

September 10, 2009

PIERRE VASARHELYI, PLAINTIFF,
v.
MICHELE TABURNO VASARHELYI, A/K/A MICHELE TABURNO, TKG STORAGEMART PARTNERS, LP A DELAWARE LIMITED PARTNERSHIP, F/K/A WARBURG STORAGEMART PARTNERS, LP A DELAWARE LIMITED PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Pierre Vasarhelyi has filed a nine-count complaint against defendants Michele Taburno Vasarhelyi ("defendant") and TKG Storagemart Partners ("TKG").*fn1 The complaint alleges: violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), (Counts I and II); conspiracy to violate RICO, 18 U.S.C. § 1962(d), (Count III); conversion (Count IV); replevin (Count V); breach of fiduciary duty (Count VI); fraud (Count VII); constructive trust (Count VIII); and a demand for an accounting (Count IX).

Defendant has filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b). For the reasons explained below, the motion to dismiss is denied.

FACTS

For the purposes of a motion to dismiss under Rule 12(b)(6), the court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008).

Plaintiff, a citizen of France, is the grandson of the late Victor Vasarhelyi (known as "Vasarely"), an internationally renowned artist, and the son of Jean-Pierre Vasarhelyi (known as "Yvaral"), a giant in the art world in his own right who died in 2002. Plaintiff claims to be Vasarely's heir and universal legatee and the sole heir of Yvaral. Defendant, a citizen of France residing in Chicago, Illinois, is plaintiff's step-mother and the widow of Yvaral.

After Vasarely's death in 1997, plaintiff sued defendant in French court to settle a dispute surrounding enforcement of Vasarely's will. On June 2, 2003, the High Court of Paris, France issued judgment in favor of plaintiff, ordering enforcement of Vasarely's will and ordering defendant to provide plaintiff with an accounting of the Vasarely estate. Defendant appealed the decision, and on March 24, 2005, the French appellate court denied defendant's appeal and upheld the lower court's ruling. Defendant did not appeal the appellate court's decision.

Defendant allegedly never complied with the French courts' orders and has neither conveyed to plaintiff any of the property, original artwork, or documents entitled to him, nor provided him with an accounting of the Vasarely estate. Additionally, after Yvaral died in 2002, defendant failed to convey to plaintiff any of the property, original artwork, or documents comprising plaintiff's inheritance. She also did not provide plaintiff an accounting of Yvaral's estate.

Instead, according to plaintiff, defendant left France sometime in 2004, before the appellate court issued its ruling. Since that time, defendant has allegedly been secretly and illegally transferring several million dollars worth of original Vasarely and Yvaral works and documents belonging to plaintiff (the "Vasarely and Yvaral works") into the United States and selling these works throughout the country. To further this scheme, defendant allegedly entered into an agreement with Luis Rojas ("Rojas"), whereby Globar Corporation ("Globar"), a Puerto Rican corporation owned by Rojas, would employ defendant so she could seek residency in the United States. Under the auspices of Globar, defendant directed Rojas to package and courier the Vasarely and Yvaral works into and throughout the United States. Defendant has been storing the works that have not been sold in her two residential condominiums and in several rented storage lockers owned by TKG, all of which are located in Chicago, Illinois.

DISCUSSION

I. Legal Standard

Defendant has moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) and 9(b). When ruling on a motion to dismiss for failure to state a claim, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). The complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which the claims rest. The allegations must plausibly suggest that the plaintiff has a right to relief, raising the possibility above the "speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-73, 167 L.Ed.2d 929 (2007).

Additionally, allegations of fraud must meet the particularity requirements of Fed. R. Civ. P. 9(b), which means the complaint must allege the "who, what, when, where, and how" of the fraud. Di Leo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). At the motion to dismiss stage, Rule 9(b) requires only that the plaintiff identify the alleged misrepresentations, not actually prove that the statement was false. See Bankers Trust Co. v. Old Republic Ins., Co., 959 F.2d 677, 683 (7th Cir. 1992). This standard also applies to allegations of predicate acts of fraud in the RICO context. See Slaney v. ...


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