Rule of Civil Procedure 12(b)(1), there is no need to reach the merits of the action under Rule 12(b)(6) or whether the fraud allegations are pled with particularity, as required by Rule 9(b). 2 . The Court notes that although a demand upon the board is typically required in a shareholder derivative case, see Fed.R.Civ.P. 23.1, such a demand would be futile here. The allegations in the within action are that Curtin "orchestrated and committed the challenged conduct.” Tuscano, 403 F.Supp.2d at 223. "With reasonable certainty, it is fair to assume that [Curtin] [will] not ... agree to initiate a lawsuit accusing himself of wide-ranging wrongdoing, including RICO violations.” Id. at 223-24; see also L.W. Kent & Co., Inc. v. Wolf, 143 A.D.2d 813, 533 N.Y.S.2d 119, 121 (2d Dep't 1988) (<HOLDING>). Accordingly, Barry's failure to make a demand
holding that taxpayer could not have presented substantive due process claim to the board of assessment review because of the limited jurisdiction of that board holding that where approval of the board of directors was not formally requested a demand would have been futile for it could hardly be expected that if approval of the board of directors were sought defendant who controlled 50 of the board would have authorized the action against himself holding that where a defendant controlled the board of directors it is manifest then that there can be no expectation that the corporation would sue him and if it did it can hardly be said that the prosecution of the suit would be entrusted to proper hands holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings holding that an appeal to an agency review board would be futile because the board lacked authority to invalidate ordinance as requested