RUDI ZORIC, MATE GLAVAN, ANTE GLAVAN, Individually and on behalf of all past and present employees of the Defendant Dry Wall Taping Corporations who have not been paid union scale wages and benefits, Plaintiffs, v. ISLAND TAPING, INC., DENNIS SGAMBATI, LOUIS PATERNO, PAR PAINTING DECORATING, INC., FLORENCE SGAMBATI, PAR WALL FINISHING, INC., BRIAN D. GORDON, PAR WALL INTERIORS, INC., CONSTRUCTION INC., DRYWALL TAPERS AND POINTERS OF GREATER NEW YORK LOCAL UNION 1974, JOHN ALFARONE, SALVATORE ALFARONE, JOSEPH GIORDANO, DRYWALL TAPERS INDUSTRY ANNUITY FUND, and DOES I-XV, Defendants.

No. 98 CV 4596 (SJ).United States District Court, E.D. New York.
June 25, 2004

ROBERT SKOBLAR, Englewood, NJ, Attorney for Plaintiffs.

RUDERMAN GLICKMAN, Springfield, NJ, By: Steven B. Horowitz, Esq., Attorneys for Defendants Brian D. Gordon and Par Wall Finishing, Inc.

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KANE KESSLER, P.C., New York, NY, By: Jeffrey H. Daichman, Esq., Attorneys for Defendants Island Taping, Inc., Par Painting Decorating, Inc., Louis Paterno, Dennis Sgambati, Florence Sgambati.

LEWIS, GREENWALD, CLIFTON NIKOLADIS, P.C., New York, NY, By: Daniel E. Clifton, Esq. Attorneys for Defendants Drywall Tapers and Pointers of Greater New York, Local 1974, Tapers Industry Annuity Fund, John Alfarone, Salvatore Alfarone, and Joseph Giordano.

MEMORANDUM AND ORDER
STERLING JOHNSON, JR., District Judge

Plaintiffs Rudi Zoric (“Zoric”), Mate Glavan (“M. Glavan”), and Ante Glavan (“A. Glavan”) (collectively “Plaintiffs”) brought the above-captioned action alleging violations of the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Presently before the Court are Defendants’ motions to dismiss the Third Amended Complaint, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.[1] For the reasons set forth herein, Defendants’ motions to dismiss the Third Amended Complaint are GRANTED.

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BACKGROUND
The facts of this case were detailed in this Court’s August 10, 2001 Memorandum and Order, and will not be repeated here. In that Memorandum and Order, this Court dismissed Plaintiffs’ First Amended Complaint, which alleged common law fraud and unjust enrichment as well as violations of the Labor-Management Relations Act of 1947 (“LMRA”), commonly known as the Taft-Hartley Act, 29 U.S.C. § 141 et seq.; the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1145 etseq.; and the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. The Court granted Plaintiffs an opportunity to fully replead their RICO claim within thirty days. Subsequently, the Court granted Plaintiffs an extension of time to replead their RICO claim by September 25, 2001.

On September 24, 2001, Plaintiffs filed a Notice of Appeal to the Second Circuit and also filed a Second Amended Complaint with this Court. On October 16, 2001, this Court held that the appeal divested it of jurisdiction over the case. The Court explained that “even though I don’t have jurisdiction over this particular matter, it’s in the Court of Appeals, I’ll dismiss whatever complaint that you have filed right now just to clear the record up.” (Island Taping Defts’. Mem. in Supp. of their Mot. to Dismiss the Third Am. Compl. (“Island Taping Mot.”) Ex. D at 5-6.) The Court thereby declared the Second Amended Complaint a nullity.

On November 21, 2001, Plaintiffs withdrew their appeal pursuant to a

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“Stipulation Withdrawing Premature Appeal.” On November 29, 2001, the Second Circuit certified this Stipulation. Plaintiffs contend that “all parties consented [in the Stipulation] to plaintiffs filing a third amended complaint within 30 days.” (Pls.’ Mem. of Law in Opp’n to the Defts.’ Mots. to Dismiss the Third Am. Compl. (“Pls.’ Opp’n”) at 26.) On December 18, 2001, Plaintiffs filed a Third Amended Complaint without seeking or receiving leave of the Court.

DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleading once at any time before a responsive pleading is filed. After that, a party may amend its pleading “only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Once the adverse party has consented in writing to an amendment of a pleading, “the court has no control over the matter under Rule 15(a). The pleader’s right to amend is not subject to the court’s discretion and the court must permit the amendment to be filed.” W.S.A., Inc. v.ACA Corp., 94 CV 1868, 1996 WL 551599, at *4 (S.D.N.Y. Sept. 27, 1996); Fern v. United States, 213 F.2d 674 (9th Cir. 1954).

In this case, the Court granted Plaintiffs leave under Rule 15(a) to replead their RICO claim by September 25, 2001. On September 24, 2001, Plaintiffs filed a Notice of Appeal to the Second Circuit and a Second Amended Complaint. On October 16, 2001, this Court found that it had no jurisdiction over Plaintiffs’ Second Amended Complaint

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and thereby dismissed it.[2]

Plaintiffs contend that on November 21, 2001, the parties signed a Stipulation Withdrawing Premature Appeal, in which all parties consented to Plaintiffs filing a third amended complaint by December 21, 2001.[3] The Stipulation reads:

It appearing that the above appeal is premature because some claims are still pending in District Court, i.e. RICO claims only against appellees, FRCP 54(b), and no certification has been granted, WHEREFORE,
The undersigned counsel for the parties hereby stipulate that the above-captioned appeal is hereby withdrawn without costs and without attorneys’ fees pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. This stipulation shall not preclude any appeal from a final judgment, i.e. adjudicating all the claims and the rights and liabilities of all the parties, or granting certification, FRCP 54(b).

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The plain wording of the Stipulation clearly demonstrates that Defendants never consented in writing to Plaintiffs filing a Third Amended Complaint by December 21, 2001. If Plaintiffs sought to file a Third Amended Complaint, they were obligated under Rule 15(a) to either seek leave of the court or obtain any writing clearly indicating the consent of the opposing party.See Panitch v. State of Wisconsin, et al., 371 F. Supp. 955, 957-58 (E.D. Wis. 1974); W.S.A., Inc. v. ACA Corp., 94 CV 1868, 1996 WL 551599, at *4 (S.D.N.Y., Sept. 27, 1996). Because Plaintiffs failed to satisfy their Rule 15(a) obligations, the Court hereby dismisses the Third Amended Complaint.[4]

SO ORDERED.

[1] Three separate motions to dismiss were filed by three sets of Defendants: (1) Par Wall Finishing, Inc., Par Wall Interiors, Inc., and Brian D. Gordon (collectively, “the Par Wall Defendants”); (2) Island Taping, Inc., Dennis Sgambati, Louis Paterno, Par Painting Decorating, Inc., and Florence Sgambati (collectively, “the Island Defendants”); and (3) Drywall Tapers
Pointers of Greater New York Local 1974, John Alfarone, Joseph Giordano, and Tapers Industry Annuinty Fund (collectively, “the Union Defendants”). The Court will refer to all named Defendants collectively as “Defendants.”
[2] See Thompson v. Harry C. Erb, Inc., 240 F.3d 452 (3d Cir. 1957) (finding that after appeal was taken for dismissal of complaint, the parties could not stipulate that an amended complaint be substituted for the original and the trial judge could not give the amendment life by his signature since taking the appeal divested the court of jurisdiction over the case).
[3] It is well settled that “a motion to dismiss, if accompanied by matter dehors the pleading, qualifies as a motion for summary judgment. . . .” Yosef v. Passamaquoddy Tribe,876 F.2d 283, 286-287 (2d Cir. 1989), cert. denied, 494 U.S. 1028
(1990); Ansonia Tenants’ Coalition v. Ansonia Assocs.,163 F.R.D. 468, 469-470 (S.D.N.Y. 1995). When presented with a Rule 12(b)(6) motion which contains additional materials, a court may, in its discretion, either “exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment. . . .” Kopec v. Coughlin,922 F.2d 152, 154 (2d Cir. 1991) (citations omitted); Morris v.Gilbert, 649 F. Supp. 1491, 1493-94 (E.D.N.Y. 1986) (citations omitted).

In this case, Plaintiffs submitted the affidavits of Rudi Zoric, Mate Glavan, and Ante Glavan along with their opposition brief. The Court chooses to exclude these additional affidavits. However, the Court takes judicial notice of the parties’ Stipulation Withdrawing Premature Appeal filed with the Court of Appeals on November 21, 2001. (Neither party submitted this Stipulation with their 12(b)(6) motion papers, but the Court permitted Plaintiffs to fax a copy of the Stipulation to Chambers on June 17, 2004. The Court has since made this Stipulation a part of the record.)

The Stipulation Withdrawing Premature Appeal does not constitute a matter outside the pleadings sufficient to transform the motion to dismiss into a motion for summary judgment, since it provides little more than background information on the history of the case. See Kramer v. Time Warner Inc.,937 F.2d 767, 773-75 (2d Cir. 1991) (holding that court may consider matters of which judicial notice may be taken without converting a motion to dismiss into a motion for summary judgment); AnsoniaTenants’ Coalition, 163 F.R.D. 468, 469-470 (S.D.N.Y. 1995).

[4] The Court declines to consider the other arguments put forward by Defendants in their motions to dismiss, as dismissal is warranted on Rule 15(a) grounds alone.