SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1893-19

PJSC ARMADA and 

ARSENAL ADVISOR,

LTD.,

Plaintiffs-Appellants,

v.

ALEXY KUZOVKIN, ALLA

ROITMAN, and YEFIM

ROITMAN,

Defendants-Respondents.

___________________________

Argued May 20, 2021 – Decided September 3, 2021

Before Judges Hoffman, Suter, and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-0197-19.

Corinne McCann Trainor argued the cause for 

appellants (Fox Rothschild, LLP, attorneys; Ely Goldin 

and Corinne McCann Trainor, of counsel and on the 

briefs; Allison L. Hollows, on the briefs).

Jeffrey Fleischmann argued the cause for respondent 

Alexy Kuzovkin.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Peter Slocum argued the cause for respondents Alla 

Roitman and Yefim Roitman (Lowenstein Sandler, 

LLP, attorneys; Christopher S. Porrino and Peter 

Slocum, on the brief).

PER CURIAM

Plaintiffs PJSC Armada (Armada) and Arsenal Advisor Ltd. (Arsenal) 

appeal from two Law Division orders, dated June 28, and December 2, 2019, 

that dismissed their complaint with prejudice against defendants, Alla Roitman, 

Yefim Roitman, and Alexy Kuzovkin. In the June 28, 2019 order, the motion 

court dismissed plaintiffs' claims against the Roitmans for failure to state a claim 

upon which relief can be granted under Rule 4:6-2(e) and on forum non 

conveniens grounds; additionally, it dismissed Arsenal's claims for lack of 

standing. In the December 2, 2019 order, the court dismissed plaintiffs' claims 

against Kuzovkin for lack of personal jurisdiction. 

We conclude the motion court erred in dismissing plaintiffs' complaint 

with prejudice, as its dismissal at this stage did not represent an adjudication on 

the merits. Thus, any dismissal of plaintiffs' claims should have been without

prejudice to afford plaintiffs the opportunity to amend their complaint. We 

further conclude the motion court's dismissals on jurisdictional grounds were 

premature; instead, the court should have permitted discovery on the questions 
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of personal jurisdiction and forum non conveniens. Finally, we conclude the 

motion court erred in dismissing plaintiffs' claims pursuant to Rule 4:6-2(e). 

Accordingly, we reverse and remand for discovery and to allow plaintiffs to 

amend their complaint. 

I.

A.

Because this appeal comes to us on a Rule 4:6-2 motion to dismiss, we 

accept the facts alleged in the complaint as true, granting plaintiff "every 

reasonable inference of fact." Green v. Morgan Props., 215 N.J. 431, 452 (2013) 

(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 

(1989)). Thus, we begin with a summary of the facts pled by plaintiffs.

Plaintiff Armada is a public joint-stock company formed and registered in 

the Russian Federation, with its principal place of business in Moscow. 

Armada's stock trades on the Moscow Interbank Currency Exchange. At all 

relevant times, Armada served as the parent company of a consortium of 

companies which, at its peak in 2012, ranked as one of the top five software 

developers in Russia, with combined annual sales of approximately RUB 5.579 

million (or $184 million under the 2012 prevailing exchange rate).
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Plaintiff Arsenal, a corporation formed under the laws of the British 

Virgin Islands, was the principal shareholder of Armada. Armada's other 

shareholders included major American, European, and Russian financial 

institutions. 

Defendant Kuzovkin led Armada's management team and, from 2012 to 

2014, engaged in a fraudulent scheme to siphon money and technology from 

Armada for his personal benefit. Kuzovkin's illegal scheme involved: 1) the 

transfer of Armada funds to shell companies under the guise of software 

development contracts; 2) the formation of a competitor company, Programmy 

Produkt LLC, which poached business and employees from Armada; and 3) 

usurious lending between Armada and three of its wholly owned subsidiaries. 

Russian banks facilitated Kuzovkin's scheme by allowing him to transfer the 

profits of his schemes into shell companies and offshore accounts.

In late 2013, Armada's shareholders commenced corporate and legal 

proceedings in Russia to oust Kuzovkin and the other Armada managers from 

their posts, eventually succeeding in 2014; however, Kuzovkin fled to Austria, 

leaving Armada's offices completely empty. Before fleeing to Austria, in the 

fall of 2013, Kuzovkin purchased $8,500,000 worth of real estate in Austria and 

Russia using the embezzled funds. This included an October 18, 2013 purchase 
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of a luxury Moscow apartment owned by defendant Alla Roitman, a New Jersey 

citizen living in Mahwah. On that same day, Kuzozkin also used embezzled 

funds to purchase an automobile parking spot associated with the apartment 

from Alla Roitman's father, Yefim Roitman, also a New Jersey citizen. 

In August 2017, plaintiffs obtained permission from the United States 

District Court for the District of New Jersey, pursuant to 28 U.S.C. § 1782, to 

subpoena Alla Roitman for information related to her sale of the Moscow 

property to Kuzovkin. In response to the subpoena, Alla Roitman produced one 

document, an agreement of sale dated October 18, 2013. Her counsel explained 

a cash transaction facilitated the sale, with Kuzovkin dropping off cash in a 

Moscow safe deposit box and Alla Roitman retrieving it after the agreement of 

sale was signed.

The agreement of sale, written in Russian, lists the sale price as 

₽27,560,978 rubles, which equaled approximately $1,000,000 in United States 

dollars (USD). The fair market value of the apartment, however, was 

approximately $3,500,000 USD, and plaintiffs allege Kuzovkin actually paid the 

equivalent of $3,700,000 USD for the apartment and parking spot via the safety 

deposit box, with the sales agreement misrepresenting the sale price to conceal 

the embezzled funds Kuzozkin used to pay. 
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Plaintiffs allege Alla and Yefim Roitman intentionally concealed the true 

sale price with Kuzovkin "to assist Kuzovkin in his embezzlement and siphoning 

of assets away from Armada and its shareholders." The Roitmans were aware 

of Kuzovkin's embezzlement and misconduct, and by assisting him with this 

fraudulent transfer, they became active participants in Kuzovkin's illegal 

scheme. 

B.

On January 9, 2019, plaintiffs filed their Law Division complaint, 

asserting six causes of action: (1) breach of fiduciary duty against Kuzovkin 

only; (2) aiding and abetting breach of fiduciary duty against the Roitmans only; 

(3) common law fraud against all defendants; (4) fraudulent transfer against all 

defendants;1(5) civil conspiracy against all defendants; and (6) racketeering, in 

violation of the New Jersey Racketeer Influenced and Corrupt Organizations 

Act2(NJRICO). For relief, plaintiffs "demand[ed] judgment in their favor in an 

amount in excess of $3,700,000, along with an award of costs and any other 

relief that this Court deems necessary, just and appropriate."

1

 After receiving the Roitman's motion to dismiss, plaintiffs voluntarily 

withdrew the count for fraudulent transfer.

2

 N.J.S.A. 2C:41-1 to -6.2.
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In May 2019, the Roitmans filed a motion to dismiss, which the motion 

court granted on June 28, 2019. In a written opinion, the court stated that, per 

Rule 4:6-2(e), the complaint failed to state a claim upon which relief could be 

granted because the factual allegations were insufficient to establish plaintiffs' 

causes of action against the Roitmans. The court further found Arsenal lacked 

standing to assert its claims against the Roitmans because Arsenal's claimed 

injury arose solely from its status as shareholder of Armada. Additionally, the 

court determined the claims against the Roitmans should be dismissed on forum 

non conveniens grounds. The court found that New Jersey was a "demonstrably 

inappropriate" forum, that Russia would provide an adequate alternative, and 

that the relevant public and private interest factors favored dismissal. Though 

the court's opinion stated each individual claim against the Roitmans was 

dismissed without prejudice, the order granting the Roitmans' motion to dismiss 

stated the complaint was dismissed with prejudice. 

On September 23, 2019, Kuzovkin filed a separate motion to dismiss, 

asserting plaintiffs' complaint failed to state a claim upon which relief could be 

granted per Rule 4:6-2(e), and the court lacked personal or subject matter 

jurisdiction over him per Rule 4:6-2-(b). Plaintiffs opposed the motion and also 

submitted a proposed amended complaint, requesting the opportunity to file the 
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amendment. The court granted Kuzovkin's motion, dismissing plaintiffs' 

complaint with prejudice, concluding that Kuzovkin was not subject to personal 

jurisdiction in New Jersey. 

Plaintiffs now appeal the orders that dismissed their complaint against all 

three defendants. Plaintiffs argue the motion court's with-prejudice dismissal of 

their complaint was in error, as the court prematurely ruled on dispositive issues 

without permitting plaintiffs to engage in jurisdictional discovery, establish an 

evidentiary record relative to Kuzovkin's contacts with New Jersey, or amend 

their complaint to provide supplemental facts. We agree.

II.

A.

At the outset, we find the motion court erred in dismissing plaintiffs' 

complaint with prejudice. We assume the court's basis for dismissing plaintiffs' 

claims against the Roitmans with prejudice was its application of forum non 

conveniens because the court stated in its written opinion that its dismissal of 

those claims for failure to state a claim was without prejudice. Similarly, in its 

subsequent order, the court dismissed the claims against Kuzovkin with 

prejudice after concluding it lacked personal jurisdiction over Kuzovkin. 
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"Generally, a dismissal that is 'on the merits' of a claim is with prejudice, 

but a dismissal that is 'based on a court's procedural inability to consider a case' 

is without prejudice." Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 243 

(1998) (quoting Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 415-

16 (1991)). A dismissal based upon lack of jurisdiction is not an adjudication 

on the merits. Exxon Rsch. & Eng'g. Co. v. Indus. Risk Insurers, 341 N.J. Super. 

489, 519 (App. Div. 2001); Egg Harbor Care Ctr. v. Scheraldi, 455 N.J. Super. 

343, 355-56 (App. Div. 2018); see also R. 4:37-2(d) (excepting dismissal for 

lack of jurisdiction from other types of dismissals that act as an adjudication on 

the merits). 

Dismissals based on a lack of personal jurisdiction or on forum non 

conveniens grounds, which too concerns jurisdiction, therefore should be 

without prejudice, affording litigants the ability to amend their pleadings to cure 

jurisdictional defects. Plaintiffs here should have been allowed such an 

opportunity. 

Notwithstanding this error, we further conclude the motion court 

prematurely decided these jurisdictional questions and instead should have 

permitted discovery on these issues. 
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B.

Forum non conveniens is an equitable doctrine allowing a court to decline

jurisdiction "whenever the ends of justice indicate a trial in the forum selected 

by the plaintiff would be inappropriate." Aguerre v. Schering-Plough Corp., 

393 N.J. Super. 459, 474 (App. Div. 2007) (quoting D'Agostino v. Johnson & 

Johnson, Inc., 225 N.J. Super. 250, 259 (App. Div. 1988), rev'd on other 

grounds, 133 N.J. 516 (1993)). Dismissal of an action based on the doctrine of 

forum non conveniens falls within the discretion of the trial court, and that 

decision will not be overturned unless we find an abuse of discretion. In re 

Vioxx Litig., 395 N.J. Super. 358, 364 (App. Div. 2007) (citing Kurzke v. Nissan 

Motor Corp., 164 N.J. 159, 165 (2000)).

The first inquiry by the court on a dismissal application based on forum 

non conveniens is whether there is an adequate alternative forum for the case 

where the defendant is amenable to service of process and the subject matter of 

the dispute may be litigated. Varo v. Owens-Illinois, Inc., 400 N.J. Super. 508, 

519-20 (App. Div. 2008). "An alternative forum will be deemed inadequate if 

'the remedy offered by the other forum is clearly unsatisfactory.'" Yousef v. 

Gen. Dynamics Corp., 205 N.J. 543, 557 (quoting Piper Aircraft Co. v. Reyno, 

454 U.S. 235, 254 n.22 (1981)). 
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If an adequate alternative forum exists, the court must consider and weigh 

both public and private interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 

U.S. 501, 508-09 (1947), to determine whether the plaintiff's choice of forum is 

appropriate for the matters at issue. Kurzke, 164 N.J. at 165-66. The public 

interest factors are as follows:

(1) the administrative difficulties which follow from 

having litigation "pile up in congested centers" rather 

than being handled at its origin, (2) the imposition of 

jury duty on members of a community having no 

relation to the litigation, (3) the local interest in the 

subject matter such that affected members of the 

community may wish to view the trial[,] and (4) the 

local interest "in having localized controversies 

decided at home."

[Aguerre v. Schering-Plough Corp., 393 N.J. Super. 

459, 474 (App. Div. 2007) (quoting D'Agostino, 225 

N.J. Super. at 263).]

The private interest factors are:

(1) the relative ease of access to sources of proof, (2) 

the availability of compulsory process for attendance of 

unwilling witnesses and the cost of obtaining the 

attendance of willing witnesses, (3) whether a view of 

the premises is appropriate to the action[,] and (4) all 

other practical problems that make trial of the case 

"easy, expeditious and inexpensive," including the 

enforceability of the ultimate judgment.

[Ibid. (quoting D'Agostino, 225 N.J. Super. at 263).]
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"Ordinarily, a plaintiff's choice of forum will be honored by a court that 

has jurisdiction over a case[,]" Yousef, 205 N.J. at 557, albeit "a foreign 

plaintiff's choice deserves less deference[,]" Vioxx Litig., 395 N.J. Super. at 365 

(quoting Piper Aircraft, 454 U.S. at 256). Therefore, "[a] plaintiff's choice of 

forum may not be defeated upon a mere balance of conveniences. [U]nless the 

balance is strongly in favor of the defendant, the plaintiff's choice of forum 

should rarely be disturbed." Yousef, 205 N.J. at 558 (citations and internal 

quotation marks omitted) (second alteration in original). Ultimately, a court 

should not dismiss based on forum non conveniens unless its assessment of the 

Gulf Oil factors shows the plaintiff's choice of forum is "'demonstrably 

inappropriate.'" Id. at 557 (citing Kurzke, 164 N.J. at 171-72).

Our Supreme Court has long recognized that the decision on forum non 

conveniens is better made when it is "reserved until discovery has proceeded 

sufficiently to enable the court to make a better-informed assessment of the 

private-and public-interest factors." D'Agostino v. Johnson & Johnson, Inc., 

115 N.J. 491, 494 n.1 (1989). "Although the factors set forth in Gulf Oil are of 

central importance, pre-discovery is ordinarily an inappropriate point in the 

litigation at which to consider them." Kurzke, 164 N.J. at 172.

Thus the Court has said:
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As a general rule, a motion for dismissal due to forum 

non conveniens should not be heard unless the movant 

has made a good faith effort to obtain discovery and can 

provide the court with a record verifying that discovery 

is unreasonably inadequate for litigating in the forum 

chosen by the plaintiff. Mere speculation about 

potential inadequacies ordinarily is not a sufficient 

basis to deny the plaintiff the choice of forum.

[Id. at 168.]

Only in a limited number of cases, in which "the burden to a defendant will be 

so grossly unfair and obvious on the face of the pleadings," can a defendant 

move pre-discovery on these grounds. Ibid.

The motion court determined this was such a case where "there is no need 

to conduct discovery regarding the appropriateness of [p]laintiffs' choice of 

forum, as the [c]omplaint sets forth all sufficient facts to determine that New 

Jersey is 'demonstrably inappropriate.'" We disagree. 

A grossly unfair burden to the Roitmans is not obvious from the face of 

plaintiffs' complaint. Alla and Yefim Roitman are New Jersey citizens residing 

in Bergen County. Without discovery revealing contrary information, it is 

unclear how it would be demonstrably inappropriate or unduly burdensome for 

the Roitmans to litigate this matter in their home forum. 
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Moreover, the pleadings do not sufficiently establish that Russia will offer 

an adequate alternative forum. The record is devoid of evidence showing the 

Roitmans are amenable to service in Russia or that Russian law offers a 

satisfactory remedy to resolve plaintiffs' claims against the Roitmans. That 

plaintiffs had already commenced proceedings against Kuzovkin in Russia does 

not guarantee they could do so against the Roitmans, New Jersey residents who, 

unlike Kuzovkin, had no direct connection to Armada. 

We therefore conclude the motion court mistakenly exercised its 

discretion by prematurely considering the public and private interest factors, 

rather than permitting discovery. Indeed, proper evaluation of those factors 

required discovery as well. Without the benefit of discovery, the motion court's 

conclusions about lack of access to the sources of proof and the suit's 

unrelatedness to New Jersey were purely speculative. 

C.

We likewise find the motion court erred by finding it lacked personal

jurisdiction over Kuzovkin without first permitting discovery on the issue. 

The question of personal jurisdiction involves a mixed question of law 

and fact. Zahl v. Eastland, 465 N.J. Super. 79, 92 (App. Div. 2020). We will 

not disturb a trial court's factual findings concerning jurisdiction if they are 
15 A-1893-19

supported by substantial credible evidence. Rippon v. Smigel, 449 N.J. Super. 

344, 358 (App. Div. 2017). We review de novo the legal aspects of personal 

jurisdiction. Ibid. (citing Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. 

Super. 261, 268 (App. Div. 2007)). Moreover, "[a] trial court's interpretation of 

the law and the legal consequences that flow from established facts are not 

entitled to any special deference [on appeal]." Manalapan Realty, L.P. v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995). 

New Jersey courts "may exercise in personam jurisdiction over a nonresident defendant 'consistent with due process of law.'" Bayway Refin. Co. v. 

State Utils., Inc., 333 N.J. Super. 420, 428 (App. Div. 2000) (alterations omitted) 

(quoting R. 4:4-4(b)(1)). Our courts exercise jurisdiction over nonresident 

defendants "to the uttermost limits permitted by the United States Constitution." 

Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971); Jardim v. Overley, 461 N.J. 

Super. 367, 377 (App. Div. 2019).

A two-part test governs the analysis of personal jurisdiction: 

(1) defendant must have "certain minimum contacts" with the forum state, and 

(2) maintaining the suit in that state cannot offend "traditional notions of fair 

play and substantial justice." Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) 

(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). "[T]he requisite quality 
16 A-1893-19

and quantum of contacts is dependent on whether general or specific jurisdiction 

is asserted . . . ." Citibank, N.A. v. Est. of Simpson, 290 N.J. Super. 519, 526 

(App. Div. 1996).

General jurisdiction exists when the plaintiff's claims arise out of the 

defendant's "continuous and systematic" contacts with the forum state. 

Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984); 

Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 474 (App. Div. 

2013). For general jurisdiction to attach, a defendant's activities must be "so 

continuous and systematic as to render [it] essentially at home in the forum 

State." FDASmart, Inc. v. Dishman Pharm. & Chems., Ltd., 448 N.J. Super. 

195, 202 (App. Div. 2016) (alteration in original) (citation omitted) (quoting 

Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)).

Specific jurisdiction is available when the "cause of action arises directly 

out of a defendant's contacts with the forum state . . . ." Waste Mgmt., Inc. v. 

Admiral Ins. Co., 138 N.J. 106, 119 (1994). In examining specific jurisdiction, 

the "minimum contacts inquiry must focus on 'the relationship among the 

defendant, the forum, and the litigation.'" Lebel v. Everglades Marina, Inc., 115 

N.J. 317, 323 (1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). 

The minimum contacts requirement is satisfied if "the contacts resulted from the 
17 A-1893-19

defendant's purposeful conduct and not the unilateral activities of the plaintiff." 

Ibid. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 

(1980)). "In determining whether the defendant's contacts are purposeful, a 

court must examine the defendant's 'conduct and connection' with the forum 

state and determine whether the defendant should 'reasonably anticipate being 

haled into court [in the forum state].'" Bayway Refin. Co., 333 N.J. Super. at 

429 (alteration in original) (quoting World-Wide Volkswagen Corp., 444 U.S. 

at 297).

"Although the plaintiff bears the burden of demonstrating facts that 

support personal jurisdiction, courts are to assist the plaintiff by allowing 

jurisdictional discovery unless the plaintiff's claim is clearly frivolous." Rippon, 

449 N.J. Super. at 359 (quoting Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 

446, 456 (3d Cir. 2003)). We have stated that "discovery is permitted and may 

be necessary to resolve the jurisdictional issues." Maine v. SeKap, S.A. Greek 

Coop. Cigarette Mfg. Co., S.A., 392 N.J. Super. 227, 243 (App. Div. 2007). 

When "a plaintiff presents factual allegations [suggesting] with reasonable 

particularity the possible existence of the requisite contacts between [the party] 

and the forum state, [the] plaintiff's right to conduct jurisdictional discovery 
18 A-1893-19

should be sustained." Rippon, 449 N.J. Super. at 359 (quoting Toys "R" Us, 318 

F.3d at 456) (alterations in original). 

Below, the motion court determined it lacked personal jurisdiction over 

defendant Kuzovkin because Kuzovkin did not have sufficient minimum 

contacts with New Jersey to establish specific jurisdiction nor a continuous or 

substantial connection to New Jersey to establish general jurisdiction. The court 

highlighted Kuzovkin's lack of connection with the state: 

Kuzovkin is a Russian national who resides in Russia. 

There is no evidence that Kuzovkin ever entered the 

state of New Jersey. Armada was incorporated in 

Russia and maintains its principal place of business in 

Moscow. The Roitmans, who were previously 

dismissed from this case, were the nexus between New 

Jersey and Kuzovkin. The apartment that was allegedly 

used for money laundering is also located in Russia.

However, as we conclude in this opinion, the motion court's dismissal of 

the Roitmans was premature; thus, Kuzovkin's purported connection to New 

Jersey remains. The complaint alleges Kuzovkin conspired with New Jersey 

residents, which necessarily would involve contacts and communications 

extending into New Jersey. Indeed, plaintiffs attached a letter from the Russian 

real estate agency that handled the sale of the Moscow apartment and parking 

space, which states, "All material terms of the transactions, including the price 

of real estate objects . . . were determined by the parties on their own." These 
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facts, if true, may be sufficient to establish specific jurisdiction over Kuzovkin. 

See Lebel v. Everglades Marina, Inc., 115 N.J. 317, 324 -30 (1989) (finding 

sufficient minimum contacts where an out-of-state defendant intentionally 

"telephoned the [resident-plaintiff] buyer in New Jersey to iron out the details 

of [a] contract, mailed the contract to the buyer in New Jersey for signing in 

New Jersey, and received payment from the plaintiff, who defendant knew was 

a New Jersey resident."). 

Additionally, plaintiffs' proposed amended complaint alleges Kuzovkin 

frequently travelled to the United States, including New Jersey, to publicize 

Armada and seek capital from the U.S. investment community, and met with 

brokers in Jersey City. The motion court should have allowed plaintiffs to 

amend their complaint to cure its jurisdictional defects. These facts too, if true, 

may be sufficient to establish our courts' jurisdiction over Kuzovkin. 

At this stage, however, we do not know the veracity of the facts alleged 

in plaintiffs' complaint. Discovery is necessary to resolve the disputed 

jurisdictional issues. We do not express an opinion as to whether personal 

jurisdiction exists in this case, but rather only conclude that plaintiffs have 

presented sufficient factual allegations suggesting with reasonable particularity 

the possible existence of the requisite contacts between Kuzovkin and New 
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Jersey. See Rippon, 449 N.J. Super. at 359. Therefore, the motion court should 

have permitted jurisdictional discovery. Its decision to dismiss for lack of 

personal jurisdiction without the benefit of discovery was in error.

III.

Because we determined the dismissal of plaintiffs' complaint should have 

been without prejudice, we again note that plaintiffs should have been afforded

the opportunity to amend their complaint and attempt to overcome the factual 

deficiencies that led the motion court to dismiss their complaint for failure to 

state a claim under Rule 4:6-2(e). However, we also conclude that plaintiffs' 

unamended complaint stated sufficient factual allegations to survive defendants' 

motion to dismiss, and the motion court erred in ruling otherwise. 

We apply a de novo standard when reviewing a dismissal of a complaint 

for failure to state a claim under Rule 4:6-2(e). MTK Food Servs., Inc. v. Sirius 

Am. Ins. Co., 455 N.J. Super 307, 311 (App. Div. 2018). "[O]ur inquiry is 

limited to examining the legal sufficiency of the facts alleged on the face of the 

complaint." Printing Mart, 116 N.J. at 746. "At this preliminary stage of the 

litigation[,]" we are "not concerned with the ability of plaintiffs to prove the 

allegation contained in the complaint." Ibid. Rather, "we accept as true the facts 

alleged in the complaint[,]" and afford plaintiffs "every reasonable inference in 
21 A-1893-19

their favor." Craig v. Suburban Cablevision, 140 N.J. 623, 625-26 (1995). 

Nevertheless, we will "dismiss the plaintiff's complaint if it has failed to 

articulate a legal basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379 

N.J. Super. 100, 106 (App. Div. 2005).

To survive a motion to dismiss under Rule 4:6-2(e), a plaintiff need not 

prove the case, but need only "make allegations which, if proven, would 

constitute a valid cause of action." Kieffer v. High Point Ins. Co., 422 N.J. 

Super. 38, 43 (App. Div. 2011) (quoting Leon v. Rite Aid Corp., 340 N.J. Super. 

462, 472 (App. Div. 2001)). On such a motion, plaintiff is entitled to "every 

reasonable inference of fact." Printing Mart, 116 N.J. at 746 (citing Indep. Dairy 

Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956)).

A reviewing court must "search[] the complaint in depth and with 

liberality to ascertain whether the fundament of a cause of action may be gleaned 

even from an obscure statement of claim, opportunity being given to amend if 

necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem. Park, 43 N.J. 

Super. 244, 252 (App. Div. 1957)). This review should be "at once painstaking 

and undertaken with a generous and hospitable approach." Ibid.

A motion to dismiss should only be granted in "the rarest of instances." 

Kieffer, 422 N.J. Super. at 43 (quoting Printing Mart, 116 N.J. at 771-72). Only 
22 A-1893-19

where "even a generous reading of the allegations does not reveal a legal basis 

for recovery" should the motion be granted. Ibid. (quoting Edwards v. Prudential 

Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003)).

On this appeal, plaintiff does not argue the motion court erred in 

dismissing every count in its complaint for failure to state a claim. Rather, 

plaintiff only contends the court's dismissal of the following claims against the 

Roitmans for failure to state a claim were in error: aiding and abetting breach 

of fiduciary duty (count two), civil conspiracy (count six), and racketing in 

violation of NJRICO (count seven). Below, we address only the claims that 

plaintiffs argue the motion court erred in dismissing, though we note plaintiffs 

may attempt to cure the other dismissed claims when amending their complaint 

on remand. 

A.

Liability for aiding and abetting "is found in cases where one party 'knows 

that the other's conduct constitutes a breach of duty and gives substantial 

assistance or encouragement to the other so to conduct himself.'" State ex rel. 

McCormac v. Qwest Commc'ns Int'l, Inc., 387 N.J. Super. 469, 481 (App. Div. 

2006) (quoting Judson v. Peoples Bank & Tr. Co., 25 N.J. 17, 29 (1957)). "[T]he 

mere common plan, design or even express agreement is not enough for liability 
23 A-1893-19

in itself, and there must be acts of a tortious character in carrying it into 

execution." Id. at 483 (citing Restatement (Second) of Torts § 876(b) cmt. d 

(Am. Law Inst. 1979)). Additionally, there must be proof of the underlying tort 

committed by the principal. Id. at 484. 

A plaintiff proves a claim for aiding and abetting by showing the 

following:

(1) the party whom the defendant aids must perform a 

wrongful act that causes an injury; (2) the defendant 

must be generally aware of his role as part of an overall 

illegal or tortious activity at the time that he provides 

the assistance; (3) the defendant must knowingly and 

substantially assist the principal violation.

[Id. at 483-84 (quoting Tarr v. Ciasulli, 181 N.J. 70, 84 

(2004)).]

Aiding and abetting liability focuses on "whether a defendant knowingly 

gave substantial assistance to someone engaged in wrongful conduct, not 

whether the defendant agreed to join the wrongful conduct." Podias v. Mairs, 

394 N.J. Super. 338, 353 (App. Div. 2007) (alteration in original) (citations, 

internal quotations, and emphasis omitted). Determining how much assistance 

is considered substantial is fact-sensitive. Ibid.

In our view, plaintiffs' complaint states a claim for aiding and abetting 

against the Roitmans. The facts alleged establish the necessary elements for this 
24 A-1893-19

tort: 1) Kuzovkin breached his fiduciary duty to Armada by wrongfully 

embezzling its assets; 2) the Roitmans were aware of Kuzovkin's embezzlement 

scheme; and 3) the Roitmans knowingly assisted Kuzovkin carry out his scheme 

by intentionally misrepresenting the sale price of the Moscow apartment, 

enabling Kuzovkin to launder the embezzled funds undetected. As stated in the 

complaint, the Roitmans' role in coordinating, concealing, facilitating, and 

receiving embezzled funds amounts to substantial assistance to Kuzovkin's 

underlying wrongdoing. 

B.

Civil conspiracy occurs when "a combination of two or more persons act[] 

in concert to commit an unlawful act, or to commit a lawful act by unlawful 

means...." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting 

Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 

(App. Div. 1993)). The principal elements of a civil conspiracy are the parties' 

agreement "to inflict a wrong against or injury upon another, and an overt act 

that results in damage." Ibid. (quoting Morgan, 268 N.J. Super. at 364). 

Plaintiffs are "not required to provide direct evidence of the agreement between 

the conspirators[,]" and may prove the existence of such an agreement through 

circumstantial evidence. Morgan, 268 N.J. Super. at 364-65.
25 A-1893-19

We likewise find plaintiffs' complaint states a claim for civil conspiracy 

against defendants. Plaintiffs allege the Roitmans and Kuzovkin plotted and 

agreed to forge a sale agreement that deliberately understated the actual price 

Kuzovkin paid for the apartment to conceal the transfer of embezzled funds. It 

further alleges defendants carried out this plan. Thus, according to the 

complaint, defendants agreed to secretly move stolen property and successfully 

did so through a sham transaction. Thus, the complaint states a viable claim 

against all defendants for civil conspiracy. 

C.

Plaintiffs' complaint alleges defendants violated NJRICO, specifically 

N.J.S.A. 2C:41-2(c), and asserts a civil claim against them as permitted by 

N.J.S.A. 2C:41-4(c). N.J.S.A. 2C:41-2(c) provides: "It shall be unlawful for 

any person employed by or associated with any enterprise engaged in or 

activities of which affect trade or commerce to conduct or participate, directly 

or indirectly, in the conduct of the enterprise’s affairs through a pattern of 

racketeering activity or collection of unlawful debt." To prevail on a civil 

NJRICO claim under this section, a plaintiff must prove the following five 

elements:

(1) the existence of an enterprise; (2) that the enterprise 

engaged in or its activities affected trade or commerce; 
26 A-1893-19

(3) that defendant was employed by, or associated with 

the enterprise; (4) that he or she participated in the 

conduct of the affairs of the enterprise; and (5) that he 

or she participated through a pattern of racketeering 

activity.

[State v. Ball (Ball I), 268 N.J. Super. 72, 99 (App. Div. 

1993).]

"'Enterprise' is broadly defined to include all kinds of entities, as well as 

'any individual' and any 'group of individuals' who are 'associated in fact 

although not a legal entity.'" Fairfax Fin. Holdings Ltd. v. S.A.C. Cap. Mgmt., 

L.L.C., 450 N.J. Super. 1, 38 (App. Div. 2017). An 

enterprise . . . must have an "organization." The 

organization of an enterprise need not feature an 

ascertainable structure or a structure with a particular 

configuration. The hallmark of an enterprise's 

organization consists rather in those kinds of 

interactions that become necessary when a group, to 

accomplish its goal, divides among its members the 

tasks that are necessary to achieve a common purpose. 

The division of labor and the separation of functions 

undertaken by the participants serve as the 

distinguishing marks of the "enterprise" because when 

a group does so divide and assemble its labors in order 

to accomplish its criminal purposes, it must necessarily 

engage in a high degree of planning, cooperation and 

coordination, and thus, in effect, constitute itself as an 

"organization."

[State v. Ball (Ball II), 141 N.J. 142, 162 (1995).]
27 A-1893-19

NJRICO defines a racketeering act to include any of the enumerated 

crimes in N.J.S.A. 2C:41-1(a). Those enumerated crimes include theft, forgery 

and fraudulent practices, money laundering, and receiving stolen property. A 

pattern of racketeering activity is defined with two components: (1) at least two 

incidents of racketeering conduct (predicate acts); and (2) the conduct must have 

"the same or similar purposes, results, participants or victims or methods of 

commission or are otherwise interrelated by distinguishing characteristics and 

are not isolated incidents." N.J.S.A. 2C:41-1(d).

N.J.S.A. 2C:41-2(d) provides: "It shall be unlawful for any person to 

conspire . . . to violate any of the provisions of this section." To establish an 

NJRICO conspiracy, a plaintiff must show that (1) "a defendant agreed to 

participate directly or indirectly in the conduct of the affairs of the enterprise by 

agreeing to commit, or to aid other members of the conspiracy to commit, at 

least two racketeering acts[,]" and (2) the defendant "acted knowingly and 

purposely with knowledge of the unlawful objective of the conspiracy and with 

the intent to further its unlawful objective." Ball II, 141 N.J. at 180 (quoting 

Ball I, 268 N.J. Super. at 99-100).

We conclude plaintiffs' complaint properly states a private cause of action 

against defendants under NJRICO. The complaint alleges Alla Roitman, Yefim 
28 A-1893-19

Roitman, and Kuzovkin were associated together for the common purpose of 

laundering Kuzovkin's embezzled funds. It asserts they performed separate 

functions in this coordinating scheme. The three defendants may encompass an 

NJRICO "enterprise" and also participants in the enterprise. This enterprise's 

activities affected trade or commerce in New Jersey by transferring up to 

$3,700,000 of embezzled funds into the state. Finally, the complaint alleges 

multiple racketeering acts, including theft of Armada's assets, the creation of a 

fraudulent sales agreement, money laundering, and receiving stolen property, all 

done intentionally for a common purpose. 

Thus, the complaint establishes the five elements for liability under 

N.J.S.A. 2C:41-2(c). Likewise, these same facts set forth a claim under N.J.S.A. 

2C:41-2(d) for an NJRICO conspiracy.

D.

Finally, we address plaintiffs' contention that the motion court erred by 

dismissing Arsenal's claims against defendants on the basis that Arsenal, being 

a shareholder of Armada, lacked standing. This ruling by the motion court was 

not in error. 

"A corporation is regarded as an entity separate and distinct from its 

shareholders. It is a principle of corporation law that '[r]egard for the corporate 
29 A-1893-19

personality demands that suits to redress corporate injuries which secondarily 

harm all shareholders alike are brought only by the corporation.'" Strasenburgh 

v. Straubmuller, 146 N.J. 527, 549 (1996) (citations omitted). New Jersey 

follows the "American rule," whereby stockholders who suffer injuries to their 

stock that are the same as all other stockholders "may not recover for the injury 

to [their] stock alone, but must seek recovery derivatively on behalf of the 

corporation." Id. at 550 (quoting Cowin v. Bresler, 741 F.2d 410, 414 (D.C. Cir. 

1984)).

However, if a particular shareholder suffers an injury distinct from the 

injuries suffered by other shareholders, a direct suit may be brought under the 

"special injury" exception. Delray Holding, LLC v. Sofia Design & Dev. at S. 

Brunswick, LLC, 439 N.J. Super. 502, 510 (App. Div. 2015) (citations omitted). 

"A special injury exists 'where there is a wrong suffered by [a] plaintiff that was 

not suffered by all stockholders generally or where the wrong involves a 

contractual right of the stockholders, such as the right to vote.'" Strasenburgh, 

146 N.J. at 550 (quoting In re Tri-Star Pictures, Inc., 634 A.2d 319, 330 (Del. 

1993)).

Plaintiffs contend their complaint alleges a special injury to Arsenal, as it 

states Arsenal expended significant resources in removing Kuzovkin from 
30 A-1893-19

Armada and attempting to thwart his embezzlement scheme. However, the 

claims brought by Arsenal in the complaint relate only to Kuzovkin allegedly 

laundering embezzled funds through an undervalued property purchase. The 

injury to Arsenal from this transaction derives solely from Arsenal's status as a 

shareholder of Armada. Moreover, plaintiffs do not claim Arsenal's broader 

efforts to remove and prosecute Kuzovkin were more strenuous than the actions 

taken by all of Armada's shareholders collectively. 

We therefore agree with the motion court in finding Arsenal did not state 

a claim upon which relief can be granted in the complaint. However, because 

we hold plaintiffs, on remand, must be allowed to amend their complaint, 

plaintiffs have the opportunity to plead further facts that may reveal a true 

special injury to Arsenal. This is true too for the other claims dismissed by the 

motion court, yet not reargued by plaintiffs here on appeal. 

Reversed and remanded. We do not retain jurisdiction.