UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

RITCHIE CAPITAL MANAGEMENT, L.L.C., 

RITCHIE RISK-LINKED STRATEGIES 

TRADING (IRELAND), LIMITED, RITCHIE 

RISK-LINKED STRATEGIES TRADING 

(IRELAND) II, LIMITED, WALKERS SPV 

LIMITED, as trustee for Ritchie Risk-Linked 

Life Strategies Trust I and Ritchie Life Strategies 

Master Trust, and RITCHIE RISK-LINKED 

STRATEGIES TRADING, LTD., 

 Plaintiffs, 

v. 

COVENTRY FIRST LLC, THE COVENTRY 

GROUP, INC., MONTGOMERY CAPITAL, 

INC., LST I LLC, ALAN BUERGER, 

CONSTANCE BUERGER, REID S. 

BUERGER, ANTONIO MUNIZ, ALEX 

SELDIN, NEAL JACOBS, EILEEN SHOVLIN, 

and JIM DODARO, 

 Defendants 

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07 Civ. 3494 (DLC) 

ECF Case 

MEMORANDUM OF LAW IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR RECONSIDERATION

Lawrence S. Robbins, (LR-8917) 

Gary A. Orseck 

Rachel S. Li Wai Suen 

Daniel R. Walfish 

ROBBINS, RUSSELL, ENGLERT, 

 ORSECK & UNTEREINER LLP 

1801 K Street, N.W., Suite 411 

Washington, D.C. 20006 

Tel: (202)775-4500 

Fax: (202)775-4510 

Dated: August 1, 2007 

Thomas P. Puccio 

LAW OFFICES OF THOMAS P. PUCCIO 

230 Park Avenue 

New York, NY 10169 

Tel: (212) 883-6383 

Fax: (212) 883-6388 

Counsel for Plaintiffs 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 1 of 15
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TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES.......................................................................................................... ii 

INTRODUCTION .......................................................................................................................... 1 

I. Breach of Fiduciary Duty: The Opinion Failed To Recognize That The 

Contractual Disclaimer Of A Partnership Relation Cannot Possibly 

Bind Non-Contracting Parties And, In Any Event, Did Not Constitute 

A General Disclaimer Of A Fiduciary Relationship In This Case................................ 2 

II. Fraud: The Opinion Failed To Consider Claims By And Against NonContracting Parties And Overlooked Misrepresentations “Collateral” 

To The Contract ............................................................................................................ 4 

III. Fraudulent Inducement: The Opinion Misapplied Controlling Law 

And Misapprehended The Claims By and Against Entities Not Party 

To the MPPAs............................................................................................................... 8 

IV. Personal Jurisdiction: The Court Overlooked That Montgomery 

Capital, Inc. Is Subject To Personal Jurisdiction On Any Claim, A 

Point Implicitly Conceded by Defendants .................................................................. 10 

CONCLUSION............................................................................................................................. 11

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 2 of 15
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TABLE OF AUTHORITIES 

Page(s) 

CASES

Bagdon v. Phil. & Reading Coal & Iron Co., 217 N.Y. 432 (1916) ............................................ 10 

Bd. of Managers of 411 E. 53rd St. Condo. v. Dylan Carpet, Inc., 582 N.Y.S.2d 

1022 (1st Dep’t 1992) ............................................................................................................6-7 

Blue Chip Emerald LLC v. Allied Partners Inc., 750 N.Y.S.2d 291 (1st Dep’t 

2002) ......................................................................................................................................... 4 

Brunetti v. Musallam, 783 N.Y.S.2d 347 (1st Dep’t 2004) ............................................................ 3 

Cassata v. Brewster-Allen-Wichert, Inc., 670 N.Y.S.2d 552 (2nd Dep’t 1998)............................. 4 

Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991) ............................................ 2 

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)......................................................................... 9 

First Bank of the Americas v. Motor Car Funding, Inc., 690 N.Y.S.2d 17 (1st 

Dep’t 1999) ............................................................................................................................... 6 

Great Earth Int'l Franchising Corp. v. Milks Dev., 311 F. Supp. 2d 419 (S.D.N.Y. 

2004) ......................................................................................................................................... 7 

Hargrave v. Oki Nursery, Inc., 636 F.2d 897 (2d Cir. 1980) ......................................................... 5 

Harsco Corp. v. Segui, 91 F.3d 337 (2d Cir. 1996)........................................................................ 8 

In re T.J. Ronan Paint Corp., 469 N.Y.S.2d 931 (1st Dep’t 1984) ................................................ 3 

M’Baye v. World Boxing Ass’n, 429 F. Supp. 2d 652 (S.D.N.Y. 2006)....................................... 10 

Meinhard v. Salmon, 249 N.Y. 458 (1928)..................................................................................... 3 

Mfrs. Hanover Trust Co. v. Yanakas, 7 F.3d 310 (2d Cir. 1993) ................................................... 8 

Monahan v. New York City Dep't. of Corrections, 214 F.3d 275 (2d Cir. 2000) ........................... 2 

P. Stolz Family P’ship L.P. v. Daum, 355 F.3d 92 (2d Cir. 2004) ................................................. 2 

Pross v. Katz, 784 F.2d 455 (2d Cir. 1986) ................................................................................. 1-2 

Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) ............................................................. 1 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 3 of 15
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Spodek v. Neiss, 756 N.Y.S.2d 903 (2nd Dep’t 2003).................................................................... 4 

Telecom Int’l Am., Ltd. v. AT & T Corp., 280 F.3d 175 (2d Cir. 2001) ......................................... 5 

Triangle Underwriters, Inc. v. Honeywell, Inc., 604 F.2d 737 (2d Cir. 1979) ............................... 7 

STATUTES AND LEGISLATIVE HISTORY

Fed. R. Civ. P. 15(a) ....................................................................................................................... 2 

Fed. R. Civ. P. 59(e) ....................................................................................................................... 1 

Local Civ. R. 6.3............................................................................................................................. 1 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 4 of 15
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Plaintiffs submit this Memorandum of Law in support of its motion for reconsideration of 

the Court’s July 17, 2007 Opinion and Order (“Opinion”). 

INTRODUCTION

On July 17, 2007, this Court issued its Opinion granting Defendants’ motion to dismiss 

the Complaint as to all counts, and granting leave to amend the Complaint as to the breach of 

contract claim on behalf of two plaintiffs and the Section 1962(c) and 1962(d) claims under the 

Racketeer Influenced and Corrupt Organizations Act (“RICO”) on behalf of all Plaintiffs. We 

respectfully ask that the Court reconsider its dismissal of the fraud and fiduciary duty claims 

without leave to amend, as well as its ruling that personal jurisdiction over Defendant 

Montgomery Capital, Inc. has not been established in relation to the remaining RICO claims. 

A motion for reconsideration under Fed. R. Civ. P. 59(e) should be granted if “the 

moving party can point to controlling decisions or data that the court overlooked.” Shrader v. 

CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Local Civ. R. 6.3. We believe that 

the Opinion misapplied several precedents and overlooked key factual allegations (which, in 

retrospect, could have been more artfully drafted) in the Complaint. As a result, the Opinion also

did not make sufficient distinctions among the Plaintiffs and Defendants; that is, it did not 

recognize that some Plaintiffs have claims that others may lack, while some Defendants lack 

defenses that others may have.1

We believe that, with repleading, allegations that the Court found incurably deficient are 

remediable. “The deficiency in the complaint arguably involves a failure to plead fraud with 

particularity . . . , a circumstance in which leave to amend is usually afforded.” Pross v. Katz, 

 1

 The First Amended Complaint, served July 31, 2007, contains only the contract and RICO 

claims, with the cures called for by the Court. Plaintiffs nevertheless have made a number of other 

amendments in an effort to highlight and clarify some of the matters that the Court may have overlooked 

in the Complaint, and in particular the fact that the non-contracting plaintiffs jointly invested with 

Coventry entities in the securities of the contracting plaintiffs.

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 5 of 15
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784 F.2d 455, 459 (2d Cir. 1986); see also Monahan v. New York City Dep’t. of Corrections, 214 

F.3d 275, 283 (2d Cir. 2000) (absent evidence of undue delay, futility, bad faith on the part of the 

movant, or “undue prejudice” to the opposing party, leave to amend should be freely granted);

Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“It is the usual practice 

upon granting a motion to dismiss to allow leave to replead.”); Fed. R. Civ. P. 15(a) (“leave [to 

amend a pleading] shall be freely given when justice so requires”). Although we believe that the 

Court erred with regard to its ruling on all of the claims in the Complaint,2 we respectfully ask 

the Court to reconsider the dismissal of Counts Four, Five, and Six, and, if necessary, to permit 

repleading on those claims. 

I. Breach of Fiduciary Duty: The Opinion Failed To Recognize That The 

Contractual Disclaimer Of A Partnership Relation Cannot Possibly Bind 

Non-Contracting Parties And, In Any Event, Did Not Constitute A General 

Disclaimer Of A Fiduciary Relationship In This Case 

The Court dismissed the claim of breach of fiduciary duty (Count Six of the Complaint) 

based on a clause in the Master Policy Purchase Agreements (“MPPAs”) that provides that 

“[n]othing contained in this Agreement is intended to . . . create the relationship of . . . a 

partnership or joint venture.” Opinion at 15. We submit that this ruling overlooks several 

essential points. 

The basic nature of the arrangement here – as Plaintiffs have endeavored to make clearer 

in the First Amended Complaint (e.g., First. Am. Compl. ¶¶ 4-8) – is that Ritchie Capital 

Management, L.L.C. (“RCM”), as adviser and fiduciary to (as well as holder of beneficial 

interests in) Ritchie Risk-Linked Life Strategies Trust I, Ritchie Life Strategies Master Trust, and 

Ritchie Risk-Linked Strategies Trading, Ltd. (all three entities collectively, the “Investing 

 2

 In light of the rule that parties are not required to replead a dismissed claim in order to preserve 

the right to appeal the dismissal (see P. Stolz Family P’ship L.P. v. Daum, 355 F.3d 92, 96 (2d Cir. 

2004)), we have not repleaded the counts dismissed by the Court.

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Plaintiffs”), caused the Investing Plaintiffs to become, together with Coventry, the de facto 

equity shareholders in Plaintiffs Ritchie Risk-Linked Strategies Trading (Ireland), Limited 

(“Ritchie I”) and Ritchie Risk-Linked Strategies Trading (Ireland) II, Limited (“Ritchie II”) 

(collectively, the “Contracting Plaintiffs”). 

Ritchie I and Ritchie II in turn each entered into a contract – an MPPA – with Coventry’s 

special-purpose subsidiary LST I LLC (“LST”) for the purchase of life insurance policies. These 

MPPAs were only two out of a large number of pertinent agreements governing the whole 

arrangement. Thus, accepting for present purposes that, in the MPPAs, Ritchie I and Ritchie II 

disclaimed a partnership or joint venture relation with LST, (1) the non-contracting Plaintiffs did 

no such thing, and (2) the disclaimer does not apply to the non-contracting Defendants. 

The Court states that the Investing Plaintiffs “have pleaded no adequate bases for 

establishment of a fiduciary relationship absent one between the defendants and Ritchie I and II.” 

Opinion at 15. But the Complaint alleges several grounds for a fiduciary relationship between, on 

the one hand, the Investing Plaintiffs and, on the other, LST’s parents and affiliates, including: 

(a) the joint equity-like investment in Ritchie I and Ritchie II, and (b) the fact that Plaintiffs 

(specifically, the Investing Plaintiffs) provided the funding for an investment arrangement that 

Defendants in practice had the responsibility for managing. See Compl. ¶¶ 30-33. Plaintiffs cited 

several cases in its brief in opposition (see Pl. Mem. in Opp’n (“Pl. Mem.”) 17-18, 21-22) 

demonstrating that these arrangements are textbook bases for a fiduciary relationship (see 

Brunetti v. Musallam, 783 N.Y.S.2d 347, 349 (1st Dep’t 2004) (relationship between investors in 

a close corporation “imposes a high degree of fidelity”); In re T.J. Ronan Paint Corp., 469 

N.Y.S.2d 931, 936 (1st Dep’t 1984) (same); Meinhard v. Salmon, 249 N.Y. 458, 462-64 (1928) 

(arrangement where one party provides the funding and the other manages the investment is 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 7 of 15
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“subject to fiduciary duties akin to those of partners”)); there is also extensive additional 

authority supporting a finding of a fiduciary relationship in the circumstances presented by this 

case. E.g., Spodek v. Neiss, 756 N.Y.S.2d 903 (2nd Dep’t 2003) (finding a fiduciary relationship 

between shareholders in a close corporation); Blue Chip Emerald LLC v. Allied Partners Inc., 

750 N.Y.S.2d 291, 294 (1st Dep’t 2002) (co-venturer managing the investment owed fiduciary 

duty to other co-venturer); Cassata v. Brewster-Allen-Wichert, Inc., 670 N.Y.S.2d 552, 553 (2nd 

Dep’t 1998) (“The shareholders of a close corporation owe each other a duty to act in good 

faith”). The Opinion overlooks these factual allegations and legal authorities. 

Similarly, the Opinion does not address the fact that the disclaimer does not apply to any 

of the non-contracting Defendants. The Complaint fairly alleges – although the First Amended 

Complaint strives to make it clearer (see First Am. Compl. ¶¶ 2, 6-8) – that LST’s parents were 

equity stake-holders in Ritchie I and Ritchie II and therefore owed the Investing Plaintiffs 

fiduciary duties. By the same token, the Coventry entities’ role as de facto decision-makers with 

respect to the funds contributed by Plaintiffs also grounds a fiduciary relationship. 

Even beyond these points, the disclaimer provision at issue says only that the parties have 

not formed a “partnership” or “joint venture.” As Plaintiffs’ Memorandum in Opposition 

explained (at 21), a fiduciary relation may be formed even when a “partnership” or “joint 

venture” is not. The allegations described in the preceding paragraphs allege circumstances that 

would create a fiduciary relation even without a partnership or a joint venture. 

II. Fraud: The Opinion Failed To Consider Claims By And Against NonContracting Parties And Overlooked Misrepresentations “Collateral” To 

The Contracts 

The Court dismissed the fraud claims (Count Four of the Complaint) based on the theory 

that “a fraud claim will not lie if it arises ‘out of the same facts as plaintiff’s breach of contract 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 8 of 15
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claim.’” Opinion at 17 (quoting Telecom Int’l Am., Ltd. v. AT & T Corp., 280 F.3d 175, 196 (2d 

Cir. 2001)).3

 Citing this principle, the Court held that Plaintiffs did not identify a “separate legal 

duty” in support of the fraud claim, nor had Plaintiffs pointed to representations “collateral” to 

the contract. Id. at 18. Concluding that the fraud claim “appears to rest entirely on the subjects 

covered in the representations and warranties” contained in the two Master Policy Purchase 

Agreements (“MPPAs”), the Court ruled that any misrepresentations or omissions relating to the 

contracts must be pleaded as a breach of contract claim. Id. This reasoning overlooks several key 

points. 

First, the Opinion misreads Telecom International, which did not make the sweeping 

pronouncement that under New York law, a contract claim and a fraud claim can never cover the 

same facts or subject matter. Rather, in that case the Second Circuit stated the well-settled (but 

here inapplicable) principle that an ordinary contract claim cannot be converted into a fraud 

claim merely by alleging that at the time of contracting, the defendant misrepresented its 

intention to perform the contract. See Telecom Int’l, 280 F.3d at 196. That rule is not so broad 

that an act that grounds a breach of contract claim can never be the basis for a claim sounding in 

tort. E.g., Hargrave v. Oki Nursery, Inc., 636 F.2d 897, 899 (2d Cir. 1980) (misrepresentation 

was actionable as both breach of contract and fraud); see also Pl. Mem. 15-16. 

Second, the Opinion overlooks the fact that the fraud claim is asserted by a number of 

non-contracting Plaintiffs against a number of non-contracting Defendants. Even if the Court’s 

reading of Telecom International were correct – and we believe that it is not – that would have 

 3

 The Court also stated that Counts Four and Five suffered from Rule 9(b) pleading defects. 

Opinion at 17, 19. Plaintiffs respectfully disagree but seek by this motion leave to replead Counts Four 

and Five of the original Complaint to cure any Rule 9(b) deficiencies. At the same time, Plaintiffs have 

included in the First Amended Complaint certain amendments designed to alleviate potential Rule 9(b) 

difficulties.

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nothing to do with the Investing Plaintiffs’ fraud claims against the Coventry entities, or with the 

Contracting Plaintiffs’ fraud claims against Coventry First LLC (the main operating vehicle for 

Defendants’ dealings with Plaintiffs) and the other non-contracting entities. The Opinion makes 

no mention of these claims. 

Third, the Opinion overlooks the fact that Plaintiffs have identified a separate legal duty 

to disclose. As the opposition brief explained, the Complaint alleged that the Coventry entities 

owed Plaintiffs a duty of disclosure. Pl. Mem. 16-18. That duty arose either from the fiduciary 

relation created by the joint investment, partnership, or joint venture, or simply from the fact that 

the Coventry entities and their officers possessed superior knowledge even as the Plaintiffs were 

acting on the basis of mistaken information. Compl. ¶¶ 30-33, 38, 66, 87-89. 

Fourth, Plaintiffs have alleged misrepresentations and omissions apart from and 

“collateral” to the main duty to perform under the contracts. To begin with, the Complaint 

alleges misrepresentations made after the execution of the purchase agreements relating to the 

New York Attorney General’s investigation during a June 2006 telephone call. Id. ¶¶ 50-51. In 

an amended pleading, Plaintiffs could give – indeed, have strived in the First Amended 

Complaint to give (see First Am. Compl. ¶¶ 70-79) – greater specificity to these allegations. If 

not for the June 2006 misrepresentations, Plaintiffs would have terminated the arrangement with 

Defendants, and thereby saved significant sums of money. If permitted to replead, Plaintiffs 

could explain that the statements in the June 2006 call constituted misrepresentations of present 

facts collateral to the contract. See First Bank of the Americas v. Motor Car Funding, Inc., 690 

N.Y.S.2d 17, 21 (1st Dep’t 1999) (fraud claim predicated on post-contract representation was not 

duplicative of breach of contract claim) (citing Deerfield Commc’ns Corp. v. ChesebroughPonds, Inc., 68 N.Y.2d 954 (1986)); Bd. of Managers of 411 E. 53rd St. Condo. v. Dylan Carpet, 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 10 of 15
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Inc., 582 N.Y.S.2d 1022, 1023 (1st Dep’t 1992) (false statement of fact made after execution of 

contract was collateral to the contract).

Additionally, in documents sent to the Plaintiffs, including the Investing Plaintiffs, before 

the formation and execution of the purchase agreements, the non-contracting Defendants 

misrepresented existing, external facts about their products and business practices. See Compl. ¶¶ 

27-33, 35-39, 87. These misrepresentations are clearly “collateral” to the MPPAs; the 

misrepresentations do not form any part of the primary performance obligation under the 

MPPAs, and they were made prior to the existence of the MPPAs. See, e.g., Triangle 

Underwriters, Inc. v. Honeywell, Inc., 604 F.2d 737, 747 (2d Cir. 1979) (the fraud was collateral 

or extraneous to the contract because it consisted of “independent false representations, made 

before there ever was a contract between the parties, which led [plaintiff] to enter into it”); see 

also Pl. Mem. 15-16. 

Finally, Plaintiffs are prepared to prove that at least some of them did suffer special 

damages. If Plaintiffs are granted leave to replead the fraud (and fraudulent inducement) claims, 

they could properly allege the special damages that RCM and the Investing – as opposed to 

Contracting – Plaintiffs in particular suffered. Plaintiffs will explain that the costs that RCM and 

the Investing Plaintiffs incurred in connection with setting up the Ritchie IV arrangement and the 

securitization transaction, see First. Am. Compl. ¶ 92; see also Compl. ¶ 64, are out-of-pocket 

expenses that are unrecoverable as damages for breach of contract and were a direct and 

proximate result of Defendants’ fraudulent conduct. See Great Earth Int'l Franchising Corp. v. 

Milks Dev., 311 F. Supp. 2d 419, 430 (S.D.N.Y. 2004) (special damages flow “directly and 

proximately from the fraud, rather than from the breach of contract”). 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 11 of 15
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III. Fraudulent Inducement: The Opinion Misapplied Controlling Law And 

Misapprehended The Claims By and Against Entities Not Party To the 

MPPAs 

The essence of the fraud-in-the-inducement claim is that, had Plaintiffs known that the 

relevant representations were false, they never would have contracted with Defendants. The 

Court dismissed the fraudulent inducement claim (Count Five of the Complaint) on the strength 

of the integration clause in the MPPAs. Opinion at 19-20. In this connection, the Court also ruled 

that: 

[s]ince the acts which the plaintiffs allege the fraud induced were the entry into 

the two agreements that Ritchie I and II executed, the [integration clause] . . . is 

sufficient to bind not just the signatories but the other plaintiffs. 

Id. at 20. This ruling overlooks three points. 

First, as the Opinion recognizes (at 19), under New York law, an integration clause will 

bar a claim of fraudulent inducement only in the special case that the clause “contain[s] explicit 

disclaimers of the particular representations that form the basis” of the fraud claim. Mfrs. 

Hanover Trust Co. v. Yanakas, 7 F.3d 310, 316 (2d Cir. 1993) (emphasis added) (citing Danann 

Realty Corp. v. Harris, 5 N.Y.2d 317, 320 (1959)); see also Harsco Corp. v. Segui, 91 F.3d 337, 

345 (2d Cir. 1996) (“where a party specifically disclaims reliance upon a particular 

representation in a contract, that party cannot . . . claim it was fraudulently induced to enter into 

the contract by the very representation it has disclaimed reliance upon”). 

What the Opinion overlooks is that the integration clause in this case does not disclaim 

reliance on the representations that Plaintiffs have put at issue. To the contrary, it does the exact 

opposite: the clause states that LST I “has not made any representations or warranties other than 

as set forth herein.” MPPA § 7.12 (emphasis added). Plaintiffs have alleged that they were 

relying on (among other things) the very representations and warranties “set forth herein.” As 

Plaintiffs have never disclaimed reliance on the representations in the contract, the integration 

Case 1:07-cv-03494-DLC Document 48 Filed 08/01/2007 Page 12 of 15
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clause cannot possibly bar them from claiming fraudulent inducement based on those very 

representations.4

Second, the dismissal rests on the premise that the MPPAs were the only contracts 

alleged by Plaintiffs to be fraudulently induced. See Opinion at 20. But that is not true. The 

Complaint alleges (at ¶ 94) that the induced acts include the execution of multiple agreements 

between Plaintiffs and Defendants, not just the MPPAs, as well as the abortive Ritchie IV 

arrangement (see id. ¶ 64). These allegations could be made even clearer in an amended 

pleading. Accordingly, the Court’s conclusion that the integration clause bars the fraudulent 

inducement claims by the Investing Plaintiffs, or any of the Plaintiffs’ claims against a 

Defendant other than LST, is mistaken. 

Third, a contract cannot bind a non-party (EEOC v. Waffle House, Inc., 534 U.S. 279, 

294 (2002)), and the Investing Plaintiffs, as well as most of the Coventry Defendants, are not 

signatories to the MPPAs. Therefore, these parties cannot possibly be affected one way or the 

other by the integration clause in the MPPAs. The integration clause is addressed only to 

information being furnished by LST to Ritchie I and Ritchie II. The Complaint, by contrast, is 

fairly read to allege that Defendants other than LST (the contracting Defendant) are responsible 

for misrepresentations and omissions, and not just to Ritchie I and Ritchie II, but also to the 

Investing Plaintiffs.5

 4

 The Court also held as to the fraudulent inducement count that the alleged misrepresentations 

and omissions are “not extraneous to the contract” and should be pleaded as a breach of contract claim. 

Opinion at 21. This conclusion is incorrect for the reasons expressed above (at pp. 6-7) in relation to the 

fraud claim: The Complaint alleges misstatements and omissions that are plainly collateral or extraneous 

to the contracts. Many of Defendants’ misrepresentations took place well before the formation of the 

MPPAs and induced the Plaintiffs to enter into the MPPAs. 

5

 Plaintiffs have attempted to make this point even clearer in the First Amended Complaint. See

First Am. Compl. ¶¶ 53-57. 

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IV. Personal Jurisdiction: The Court Overlooked That Montgomery Capital, 

Inc. Is Subject To Personal Jurisdiction On Any Claim, A Point Implicitly 

Conceded by Defendants 

The Opinion states that personal jurisdiction as to Montgomery Capital, Inc. “has not

sufficiently been pled . . . as to the remaining RICO claims.” Opinion at 26. The Opinion does 

not indicate precisely what is deficient about the relevant allegations and evidentiary 

submissions. In any event, we submit that the Court has overlooked at least one point so 

incontestable that even Defendants have ceased to challenge it. 

It is a completely settled matter of civil procedure that a corporation licensed to do 

business in New York is subject to personal jurisdiction in New York on any claim. Pl. Mem. 3 

& n.3 (citing, inter alia, Bagdon v. Phil. & Reading Coal & Iron Co., 217 N.Y. 432 (1916), and 

M’Baye v. World Boxing Ass’n, 429 F. Supp. 2d 652, 658 (S.D.N.Y. 2006) (“New York courts 

are in general agreement that a foreign corporation submits itself to the jurisdiction of New York 

courts when it registers to do business within this state under [N.Y. Bus. Corp. L.] § 1304”)). 

Montgomery Capital, Inc. is such a corporation, which is undoubtedly why in the New York 

Attorney General action, Montgomery Capital expressly conceded that it is subject to personal 

jurisdiction in New York. See id. at 2-3. Indeed, after Plaintiffs’ opposition brief called all of 

these points to the attention of Defendants’ counsel (who did not represent Montgomery Capital 

in the Attorney General action), their reply brief quite pointedly refrained from contesting the 

Court’s jurisdiction over Montgomery Capital. See Def. Reply Br. 1. 

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CONCLUSION

 For the foregoing reasons, the Court should reconsider its Opinion and Order of July 17, 

2007, insofar as it dismisses Counts Four, Five, and Six of the Complaint without leave to amend 

and rules that personal jurisdiction has not been established over Defendant Montgomery 

Capital, Inc. 

Dated: August 1, 2007 

Respectfully submitted, 

LAW OFFICES OF THOMAS P. PUCCIO 

Thomas P. Puccio (TPP-8403) 

230 Park Avenue 

New York, NY 10169 

Tel: (212) 883-6383 

Fax: (212) 883-6388 

ROBBINS, RUSSELL, ENGLERT, 

 ORSECK & UNTEREINER LLP 

By: /s/ Lawrence S. Robbins 

Lawrence S. Robbins (LR-8917) 

Gary A. Orseck 

Rachel S. Li Wai Suen 

Daniel R. Walfish 

1801 K Street, N.W. Suite 411L 

Washington, D.C. 20006 

Tel: (202) 775-4500 

Fax: (202) 775-4510 

Counsel for Plaintiffs 

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