DISPOSITION:  [*1]  Defendant Chase Manhattan Corporation's motion to dismiss GRANTED and plaintiff's motion to certify class of plaintiffs DENIED.

 

CASE SUMMARY:

 

 

PROCEDURAL POSTURE: In an action for violation of the Real Estate Settlement Procedures Act, 12 U.S.C.S. §  2607, defendant moved to dismiss plaintiff's action against it pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff moved for certification of a class of plaintiffs pursuant to Fed. R. Civ. P. 23.

 

OVERVIEW: Plaintiff brought an action against defendants, a corporation and a mortgage company, for violation of the Real Estate Settlement Procedures Act, 12 U.S.C.S. §  2607. Defendant corporation moved to dismiss the action against it for failure to state a claim upon which relief could be granted. Plaintiff moved for certification of a class of plaintiffs pursuant to Fed. R. Civ. P. 23. The court granted defendant corporation's motion because the complaint did not make the specific allegations required by Fed. R. Civ. P. 8 that defendant corporation controlled defendant mortgage company such that one was the alter ego of the other. Such allegations should have been included in the complaint rather than being developed by discovery. The court also denied plaintiff's motion. It found that certification would require the resolution of so many individual issues that the common questions would be overwhelmed.

 

OUTCOME: The court granted defendant corporation's motion because plaintiff's complaint failed to state a claim upon which relief could be granted; it denied plaintiff's motion because certification would require the resolution of so many individual issues that the common questions would be overwhelmed.

 

LexisNexis(R) Headnotes

 

 

Banking Law > Bank Activities > Consumer Protection > Real Estate Settlement Procedures

[HN1] See 12 U.S.C.S. §  2607.

 

Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action

[HN2] In deciding a Fed. R. Civ. P. 12(b)(6) motion, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

 

Civil Procedure > Early Pretrial Judgments > Judgment on the Pleadings

[HN3] In deciding a motion for judgment on the pleadings, a court may consider the pleadings and exhibits attached thereto, statements or documents incorporated by reference in the pleadings, matters subject to judicial notice, and documents submitted by the moving party, so long as such documents either are in the possession of the party opposing the motion or were relied upon by that party in its pleadings.

 

Civil Procedure > Pleading & Practice > Pleadings > Interpretation

[HN4] Fed. R. Civ. P. 8(a)(2) requires that a complaint contain a short a concise statement of the claim showing that the pleader is entitled to relief. The function of pleadings under the Federal Rules is to give fair notice of the claim asserted. Fair notice is that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial.

 

Civil Procedure > Pleading & Practice > Pleadings > Interpretation

[HN5] The requirements of Fed. R. Civ. P. 8(a) are not satisfied merely by a bare bones statement of the legal claim without any supporting facts.

 

Civil Procedure > Early Pretrial Judgments > Judgment on the Pleadings

Civil Procedure > Pleading & Practice > Pleadings > Amended Pleadings

[HN6] If a court dismisses a complaint for failure to comply with the requirements of Fed. R. Civ. P. 8, it should generally give plaintiff leave to amend.

 

Civil Procedure > Early Pretrial Judgments > Judgment on the Pleadings

[HN7] The purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out whether such a claim exists, and a defendant has a right to challenge the legal sufficiency of the complaint's allegations against him, without first subjecting himself to discovery procedures.

 

Civil Procedure > Class Actions > Prerequisites

[HN8] In determining whether to certify a class, a court first must consider each of the factors set forth in Fed. R. Civ. P. 23(a): (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 

Civil Procedure > Class Actions > Prerequisites

[HN9] If a party satisfies each element of Fed. R. Civ. P. 23(a), a court then must determine whether class certification is appropriate under Fed. R. Civ. P. 23(b). To certify a class pursuant to Fed. R. Civ. P. 23(b)(3), a court must find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

 

Civil Procedure > Class Actions > Prerequisites

[HN10] In analyzing a motion for class certification, a trial court may not reach the merits of the underlying claim. However, the court must not use this principle to limit the required "rigorous analysis" of the factors necessary to the determination of whether plaintiffs have met their burden of establishing each of the Fed. R. Civ. P. 23 requirements.

 

Banking Law > Bank Activities > Consumer Protection > Real Estate Settlement Procedures

[HN11] In order for a plaintiff to prevail on a claim alleging improper "kickbacks" under the Real Estate Settlement Procedures Act section 8, the plaintiff must demonstrate that the challenged yield spread premiums are not for "services actually performed," as allowed by section 8(c).

 

Banking Law > Bank Activities > Consumer Protection > Real Estate Settlement Procedures

[HN12] In determining whether a payment is permissible compensation or a prohibited referral, high prices standing alone are not proof of a Real Estate Settlement Procedures Act (RESPA) violation. 24 C.F.R. §  3500.14(g)(2). If the payment of a thing of value bears no reasonable relationship to the market value of the goods or services provided, then the excess is not for services or goods actually performed or provided. These facts may be used as evidence of a violation of §  8 and may serve as a basis for a RESPA investigation.

 

COUNSEL: For Plaintiff: Frederic S. Fox, Esq., of counsel, Jonathan K. Levine, Esq., of counsel, Joel B. Strauss, Esq., of counsel, KAPLAN, KILSHEIMER & FOX LLP, New York, NY.

 

For Defendants: Jack C. Auspitz, Esq., of counsel, William E. Zuckerman, Esq., of counsel, MORRISON & FOERSTER LLP, New York, NY.

 

For Defendants: Andrew N. Keen, Esq., of counsel, Patricia M. Kelly, Esq., of counsel, CHASE MANHATTAN LEGAL DEPARTMENT, New York, NY.

 

JUDGES: Peter K. Leisure, U.S.D.J.

 

OPINIONBY: Peter K. Leisure

 

OPINION:

OPINION AND ORDER

 

LEISURE, District Judge:

Before the Court are separate motions by defendant Chase Manhattan Corporation ("Chase") and plaintiff. Chase moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for dismissal of the action based on the failure to state a claim upon which relief can be granted. Plaintiff seeks certification of a class of plaintiffs in this action, pursuant to Fed. R. Civ. P. 23. For the reasons stated below, defendant's motion is granted and plaintiff's motion is denied.

BACKGROUND

Plaintiff [*2]  alleges that defendants Chase and Chase Manhattan Mortgage Corporation ("CMMC") violated the Real Estate Settlement Procedures Act ("RESPA"), Title 12, United States Code ("U.S.C."), Section 2607. Specifically, plaintiff alleges that from February 11, 1996, through February 10, 1997 (the proposed class period), defendants illegally paid mortgage brokers referral fees, also known as yield spread premiums ("YSPs"), in exchange for the mortgage brokers directing consumers to defendants. Defendants allegedly would then charge consumers higher interest rates than those to which the consumers were entitled.

Conomos claims that in the summer of 1996 he met with an agent of Colonial Mortgage and Investments ("Colonial"), a mortgage broker, about obtaining a "federally related mortgage loan" to finance the purchase of a home in Phoenix, Arizona. CMMC agreed to serve as the mortgage lender in connection with Conomos's purchase. On September 26, 1996, CMMC conducted a closing to consummate the purchase of the residence and the completion of the mortgage loan. At the closing, CMMC presented to Conomos a U.S. Department of Housing and Urban Development ("HUD") Settlement Statement, which disclosed [*3]  that Colonial would receive from CMMC a YSP in the amount of $ 3,506.25. Plaintiff contends that this YSP essentially is a kickback paid by CMMC to Colonial, in violation of RESPA section 8, which provides:

 

[HN1] (a) Business referrals

No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.

 

(b) Splitting charges

No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.

(c) Nothing in this section shall be construed as prohibiting . . . (2) the payment to any person of a bona fide salary or compensation or other payment for goods or facilities or for services actually performed.

 

 12 U.S.C. §  2607.

Plaintiff claims that from at least February 11, 1996, through February 10, 1997, defendants regularly [*4]  and routinely paid kickbacks to Colonial and other mortgage brokers in connection with the referral of consumers to CMMC. These kickbacks allegedly were determined by the interest rate of the loan made to the consumer and constituted a scheme to violate RESPA. Accordingly, plaintiff seeks certification of a class under Fed. R. Civ. P. 23(a) and (b)(3), consisting of persons who:

(a) received a federally related mortgage loan (as defined in RESPA) from CMMC between February 11, 1996, through February 10, 1997; and

(b) directly paid mortgage brokers for services performed in connection with such federally related mortgage loan transactions; and

(c) where CMMC made payment to a mortgage broker.

Defendant Chase argues that the Complaint fails to give Chase fair notice of the claim against it and the grounds upon which the claim rests, as required by Fed. R. Civ. P. 8(a). Chase therefore seeks dismissal of the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

 

I. MOTION TO DISMISS

A. Legal Standard

[HN2] In deciding a Rule 12(b)(6) motion, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant;  [*5]  it should not dismiss the complaint 'unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99(1957)); see also Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). [HN3] In deciding a motion for judgment on the pleadings, a court may consider the pleadings and exhibits attached thereto, statements or documents incorporated by reference in the pleadings, matters subject to judicial notice, and documents submitted by the moving party, so long as such documents either are in the possession of the party opposing the motion or were relied upon by that party in its pleadings. See Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

[HN4] Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short a concise statement of the claim showing that the pleader is entitled to relief." "The function of pleadings under the Federal Rules is to give fair notice of the claim asserted. Fair notice is that which will enable the adverse party [*6]  to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial." Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)(Kearse, J.)(quoting 2A Moore's Federal Practice P 8.13, at 8-58 (2d ed. 1994); see also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Additionally, [HN5] the requirements of Rule 8(a) are not satisfied merely by "a 'bare bones statement' of the legal claim without any supporting facts." Haber v. Brown, 774 F. Supp. 877, 879 (S.D.N.Y. 1991). [HN6] If a court dismisses a complaint for failure to comply with the requirements of Rule 8, it should generally give plaintiff leave to amend. See Simmons, 49 F.3d at 86-87.

B. Plaintiff's Complaint Against Chase

The only specific mention of Chase in the Complaint is in P 2(b), where plaintiff alleges that CMMC is a wholly-owned subsidiary of Chase. Plaintiff simply refers to both entities as Chase throughout the remainder of the Complaint. Conomos asserts that both defendants violated RESPA by the payment of a YSP to Colonial in connection with Conomos's purchase of a home. The documentary evidence clearly indicates,  [*7]  and plaintiff does not dispute, that CMMC made this YSP to Colonial. Additionally, the name of Chase does not appear on the HUD Settlement Statement referenced in the Complaint. In sum, no separate conduct by Chase is alleged in the Complaint.

In his Memorandum of Law Opposing Chase's Motion to Dismiss, Conomos asserts that the nature of the relationship between a parent corporation and its subsidiary is a question of fact not appropriate for a motion to dismiss. (Pl. Br. at 4). Plaintiff also claims that the Court should permit discovery on the issues of whether Chase dominated or controlled CMMC such that CMMC was not an independent corporation and whether Chase actually approved, directed, or financed the alleged kickbacks paid by CMMC.

Plaintiff's arguments are flawed. The Complaint makes no allegation that Chase dominated or controlled CMMC to the point that one was the alter ego of the other, much less the specific allegations required by Rule 8. See DeJesus v. Sears, Roebuck & Co. Inc., 87 F.3d 65, 69 (2d Cir. 1996)(quoting Williams v. McAllister Bros., Inc., 534 F.2d 19, 21 (2d Cir. 1976)("'ownership by a parent of all of its subsidiary's stock has been held an insufficient [*8]  reason in and of itself to disregard distinct corporate entities. Actual domination, rather than the opportunity to exercise control, must be shown.'"). Accordingly, the Complaint fails to provide fair notice to Chase of the nature of the claim against it.

Plaintiff's request for discovery on this issue also must fail. In essence, Conomos claims that he cannot make any factual allegations because he does not know any of the facts. Litigants previously have used this argument without success. In Jones v. Capital Cities/ABC Inc., 168 F.R.D. 477 (S.D.N.Y. 1996), the plaintiff contended that the Court should permit discovery in order to produce facts sufficient to state a cognizable claim. Judge John E. Sprizzo rejected this tactic and stated:

 

 

[HN7] The purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out whether such a claim exists, and a defendant has a right . . . to challenge the legal sufficiency of the complaint's allegations against him, without first subjecting himself to discovery procedures.

 

 

 Id. at 480 (citations omitted); see also Stoner v. Walsh, 772 F. Supp. 790, 800 (S.D.N.Y. 1991)(Mukasey, J.); Shuster  [*9]   v. Prudential Securities Inc., 1991 U.S. Dist. LEXIS 7492, No. 91-0901, 1991 WL 102500, *1 (S.D.N.Y. June 6, 1991)(Sweet, J.); Greene v. Emersons, 86 F.R.D. 66, 73 (S.D.N.Y. 1980); Petition of State of North Carolina, 68 F.R.D. 410, 412 (S.D.N.Y. 1975)(Duffy, J.).

The Court therefore dismisses the Complaint against Chase. However, the Court grants Conomos leave to replead if plaintiff develops a factual basis sufficient to satisfy the requirements of Rule 8.

 

II. MOTION FOR CLASS CERTIFICATION

A. Marinaccio v. Barnett Banks

Actions alleging purported violations of RESPA appear to have become increasingly popular filings for litigation in recent months. Most of the such actions are similar to the instant case, replete with allegations of pervasive bank misconduct, and with accompanying motions to certify the lawsuit as a class action. One recent decision is worthy of particular note. In Marinaccio v. Barnett Banks, 176 F.R.D. 104 (S.D.N.Y. 1997), reh'g denied, No. 97-0762 (S.D.N.Y. Nov. 13, 1997), Judge Charles L. Brieant of this Court denied a motion seeking class certification in a RESPA case. Not surprisingly, counsel for Conomos in the instant action represented plaintiffs [*10]  in Marinaccio, and both the Complaint and the legal arguments raised in favor of class certification in that case are substantially the same as those in the action at bar. In disposing of Marinaccio, Judge Brieant presented a cogent analysis of the issues involved in certifying a class action based on alleged violations of RESPA section 8. Indeed, Judge Brieant analyzed prior case authority and addressed the issue in a thorough and scholarly manner, eventually concluding that class certification was inappropriate. As the arguments presented by plaintiff's counsel herein are substantially similar, the Court finds the decision in Marinaccio instructive and persuasive.

B. Legal Standard

[HN8] In determining whether to certify a class, a court first must consider each of the factors set forth in Fed. R. Civ. P. 23(a):

 

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 

[HN9] If [*11]  a party satisfies each element of Rule 23(a), a court then must determine whether class certification is appropriate under Rule 23(b). In this case, plaintiff argues that the proposed class satisfies the requirements of Rule 23(b)(3). To certify a class pursuant to Fed. R. Civ. P. 23(b)(3), a court must find "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). As in Marinaccio, it is this predominance criterion that prevents the certification of a class of plaintiffs in this case.

[HN10] In analyzing a motion for class certification, a trial court may not reach the merits of the underlying claim. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974). However, the court must not use this principle to limit the required "rigorous analysis" of the factors necessary to the determination of whether plaintiffs have met their burden of establishing each of the Rule 23 requirements. See Gary Plastic Packaging Corp.  [*12]   v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990).

C. Plaintiff's RESPA Claims

[HN11] In order for a plaintiff to prevail on a claim alleging improper "kickbacks" under RESPA section 8, the plaintiff must demonstrate that the challenged YSPs are not for "services actually performed," as allowed by section 8(c). Since the mere payment of YSPs therefore is not a per se violation of RESPA, see Martinez v. Weyerhaeuser, 1997 U.S. Dist. LEXIS 22172, No. 94-1610-CIV-RYSKAMP, slip op. at 5 (S.D. Fla. June 25, 1997); see also Barbosa v. Target Mortgage Corp., 968 F. Supp. 1548, 1560-63 (S.D. Fla. 1997), a trier of fact would need to determine which services actually were performed by mortgage brokers in each of transactions encompassed by the proposed class. Considering that CMMC closed over 40,000 loans through the use of mortgage brokers during the proposed class period, there is no doubt that the proposed class would be unmanageable.

[HN12] In determining whether a payment is permissible compensation or a prohibited referral, HUD instructs that "high prices standing alone are not proof of a RESPA violation." 24 C.F.R. §  3500.14(g)(2). "If the payment of a thing of value [*13]  bears no reasonable relationship to the market value of the goods or services provided, then the excess is not for services or goods actually performed or provided. These facts may be used as evidence of a violation of section 8 and may serve as a basis for a RESPA investigation." Id. Therefore, class treatment of these issues would require case-by-case analysis into each of the loans CMMC issued through mortgage brokers during the class period. This reasonableness inquiry would require investigation into such factors as geographic market variations, the size and type of each loan, the amount of services required for the particular transaction and the mortgage broker's individual cost and expense structure. Thus, plaintiff fails to demonstrate that the questions of law or fact common to members of the proposed class predominate over the questions affecting only individual members.

Plaintiff filed an artfully-worded Complaint in a clever attempt to prompt favorable consideration of his class certification motion. Relying on Eisen and its requirement that a court not examine the merits of the underlying action in determining class certification, but must accept the plaintiff's [*14]  allegations as true, plaintiff claims that CMMC's payments to mortgage brokers were never "for services actually performed," and therefore always violated RESPA. Plaintiff further contends that "the overriding issue is defendants' regular business practice and illegal course of conduct, not whether any one particular payment by defendants was proper and not whether, in general, payments by banks to mortgage brokers violate RESPA." (Pl. Reply Br. 10). According to plaintiff, the reasonableness inquiry thus is rendered unnecessary.

The argument that CMMC's payments to mortgage brokers were never for services actually performed is really just a different presentation of the claim that YSPs are per se violations of RESPA section 8. Plaintiff's contention that "the overriding issue in the case is CMMC's regular business practice and course of illegal conduct" fails due to the assumption that CMMC's conduct is illegal. The premise behind the argument likewise is that YSPs are per se violations of RESPA. As explained, supra, YSPs clearly are not per se violations of RESPA. The design of the RESPA statutory scheme is such that sections 8(a) and (b) are qualified by [*15]  the reasonableness analysis of section 8(c). Therefore, in order to determine if defendants never paid mortgage brokers for services actually performed, or if defendants engaged in a regular course of illegal conduct, the Court necessarily must analyze the reasonableness of the YSP paid on each loan.

Judge Milton Pollack of this Court previously considered a motion for class certification in an action based on violation of RESPA section 8 in Sicinski v. Reliance Funding Corp., 82 F.R.D. 730 (S.D.N.Y. 1979). In Sicinski, the plaintiff alleged that (1) a title company paid a "kickback" for the referral of business, and (2) a mortgage company, Reliance, "split" fees with an examining counsel, Feeney.  Id. at 731-32. Judge Pollack denied the motion for class certification, stating:

 

For each individual transaction, the Court would have to ascertain what services Feeney rendered and to decide whether Title Guarantee's payment was reasonably related to those services [under RESPA §  8(a)]. In this inquiry, common question certainly would not predominate. . . . Like section 8(a), section 8(b) is qualified by the "reasonable relationship" test of 8(c) and 24 C.F.R.  [*16]  §  3500.14. If this case were to proceed as a class action, the Court would have to ascertain what services Feeney and the Russo firm each rendered in 303 separate transactions and to decide whether the fees received by each were reasonably related to their work.

 

 

 Id. at 733.

The Court finds this reasoning persuasive when applied to the allegations in the instant case, where CMMC issued over 40,000 loans through mortgage brokers during the proposed class period. This figure dwarfs the 303 transactions in Sicinski, which Judge Pollack ruled too burdensome for the Court to handle as a class. Certification of a class in the instant case is inappropriate because the litigation would require the resolution of over 40,000 individual issues, and these individual issues quickly would engulf the common questions.

The Court notes, as did Judge Brieant in Marinaccio, that the Court has adhered to the principle that class action determinations are based solely on the allegations set forth in the complaint, which are accepted as true. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978). The Court has not conducted an inquiry into [*17]  the merits of the plaintiff's claims, despite plaintiff's attempts to phrase its Complaint and legal arguments so that the "predominance" inquiry conducted by the Court instead becomes a "merits" inquiry prohibited by Eisen. n1 See Eisen, 417 U.S. at 177-78.

 

n1 Despite Judge Brieant's specific direction that the Court in Marinaccio adhered to the principles of Eisen and Shelter Realty, the plaintiffs in that case moved for rehearing based on Judge Brieant's alleged violation of these principles. Judge Brieant summarily denied plaintiffs' motion on November 13, 1997. See Marinaccio v. Barnett Banks, Inc., No. 97-0762, slip op. at 3 (S.D.N.Y. Nov. 13, 1997).

 

Finally, on November 12, 1997 (the day prior to Judge Brieant's denial of the motion for rehearing in Marinaccio), the plaintiff communicated to this Court to the effect that, despite Judge Brieant's ruling, plaintiff felt class certification was appropriate, and urged the Court not to rely on Marinaccio due to the pending motion [*18]  for rehearing. Additionally, plaintiff requested that "if the Court is inclined to deny the motion based on the reasoning of the Marinaccio decision, we respectfully request that the Court instead defer ruling on the class certification motion to permit the parties to explore, by summary judgment motion, the appropriate legal interpretation of Section 8 of RESPA. This is the same relief plaintiffs have sought from Judge Brieant in their motion for reconsideration in the Marinaccio action." (Ltr of Jonathan K. Levine, Esq., November 12, 1997). Judge Brieant denied the request, and so does this Court. Plaintiffs voluntarily filed their motion for class certification, and may not seek to withdraw conditionally the motion at this juncture.

CONCLUSION

For the reasons stated above, defendant Chase Manhattan Corporation's motion to dismiss is HEREBY GRANTED, and plaintiff's motion to certify a class of plaintiffs is HEREBY DENIED. The remaining parties are directed to appear for a pre-trial conference in Courtroom 18B at 500 Pearl Street on April 17, 1998, at 11:30 a.m.

 

SO ORDERED.

 

New York, New York

March 17, 1998

Peter K. Leisure

U.S.D.J.