author: GENE CARTER, District Judge.

text:
    Robert D. SPICKLER, Plaintiff, v. Roger P. DUBE, et al., Defendants.
    Civ. No. 84-0059 P.
    United States District Court, D. Maine.
    Jan. 22, 1986.
    Robert D. Spickler, pro se.
    Harrison L. Richardson, John W. Chapman, Richardson, Tyler & Troubh, Portland, Me., for defendants.
   MEMORANDUM AND ORDER AFTER REMAND

GENE CARTER, District Judge.

On August 10, 1984, Defendants Levenson’s motions to dismiss and for summary judgment were granted pursuant to Local Rule 19(c) when Plaintiff failed to object to the motions within the prescribed period. After this Court denied reconsideration of its decision, Plaintiff’s claims against Defendants Levenson were dismissed. Plaintiff’s claims against Defendant Dube had been dismissed on May 29, 1984, after this Court had accepted the decision of the United States Magistrate recommending dismissal. Plaintiff appealed the dismissals and the Court of Appeals for the First Judicial Circuit dismissed the appeal as premature. The Court of Appeals noted that the decision from which appeal was taken was not a final judgment as there remained outstanding an unadjudicated counterclaim filed by the Levensons against the Plaintiff on which the Court had not acted and as to which no dismissal pursuant to Fed.R.Civ.P. 41(a)(l)(ii) had been accomplished. The Court of Appeals, 774 F.2d 1149, remanded the case indicating that this Court should use the “interests of justice” standard recently enunciated in Greene v. Union Mutual Life Insurance Company of America, 764 F.2d 19, 22 (1st Cir.1985), to reevaluate its September 13, 1984 Order denying reconsideration.

In Greene, the Court of Appeals suggested several factors that might be considered by the Court in assessing where the interests of justice lie on a motion for reconsideration like the instant one, which seeks to have an untimely filing excused. These include: egregiousness of the lateness, prejudice caused to the moving party by the delay, and proffered excuse for the delay. Greene at 23.

Plaintiff here, like the plaintiff in Greene, was only a few days late in responding to Defendants’ motions. In fact, he responded immediately upon learning that the motions had been granted. Although Plaintiff clearly violated Rule 19(c), the violation was not egregious. The short delay occasioned no prejudice to Defendants. As in Greene, both of these factors weigh in favor of the motion. In Greene, Plaintiff’s counsel could offer no real excuse for the delay. He cited office procedure failures, misunderstandings between counsel, and his quasi vacation, all of which served to demonstrate rather than excuse the neglect. Id. Here, in contrast, Plaintiff asserted in his motion for reconsideration that he was confused about the interrelationship between Local Rule 19(c) and Fed.R.Civ.P. 56, which specifically mentions the timing of filing of opposing affidavits in relation to the date of a hearing. This contention was not elaborated upon and the Court at that time did not find that Plaintiff had presented a reasonable excuse. Shortly thereafter, however, the Court had occasion to consider, after fully developed argument, the relationship between the rules. In McDermott v. Lehman, 594 F.Supp. 1315 (D.Me.1984), this Court determined that there was indeed some conflict between the rules and established a procedure reconciling them. Id. Thus, although it was not fully articulated, Plaintiff’s reason for the late filing of his response to the motion was not without some merit. The Court finds, therefore, that in the interests of justice, Plaintiff’s claims against the Levensons should be reinstated and the motions for summary judgment and to dismiss addressed on their merits.

Factual and Procedural Background

In 1973 Plaintiff purchased R.D. Realty Corp. and land held by that company from Defendant Dube. Plaintiff paid $30,000 and executed four notes for the balance of the purchase price. The notes were secured by mortgages on the land. Plaintiff developed the land and was prepared to sell it, but Dube refused to release the mortgages, claiming R.D. Realty had defaulted in its mortgage payments. R.D. Realty brought an action in Maine Superior Court against Dube for breach of contract and Dube counterclaimed for default. At trial Defendant introduced a demand letter from Dube to Plaintiff dated September 2, 1982. Plaintiff testified that he had never seen the letter. The jury found for Dube on both claims.

Plaintiff brought a Rule 59 motion for a new trial, supported by affidavits and exhibits. The motion alleged that Defendants’ exhibit 19, the demand letter, was a false writing and therefore fabricated evidence. The motion was denied by the trial court without a hearing on the grounds that

[t]he material sought to be considered now was addressed by the parties at trial. Part is privileged and part cumulative.
The jury had the testimony of Mr. Spickler re the letter of September 2, 1974, for consideration in opposition to Mr. Dube’s testimony. The matter was available for the jury’s consideration.

Ruling by Justice Sumner Goffin, December 13, 1982.

The Maine Supreme Judicial Court affirmed the denial of the Rule 59 motion stating: “The record supports a conclusion that any alleged falsity of Defendant’s Exhibit # 19 could have been discovered before trial if Spickler had exercised due diligence____ Moreover, the record indicates that such evidence was ‘merely cumulative or impeaching’.” Spickler v. Dube, 463 A.2d 739, 740 (Me.1983). The Law Court specifically distinguished the Rule 59 motion that had been brought by Plaintiff from a Rule 60(b)(3) motion for relief from judgment on the grounds of fraud of an adverse party. The Court stated: “This ruling neither prohibits nor prevents Spickler from asserting fraud in a Rule 60(b) motion so long as it is filed within one year of judgment.” Id. at 741.

Two days after the Law Court issued its opinion, Plaintiff filed a motion in state court under Me.R.Civ.P. 60(b)(3) for relief from judgment, alleging that Dube had willfully and purposefully presented false evidence in the case. On November 11, 1983, Plaintiff's motion to withdraw his Rule 60(b)(3) motion was granted without prejudice.

In February 1984 Plaintiff filed this diversity action seeking damages from Dube and his attorneys, Mayo and Alan Levenson, “as a result of [the] jury verdict” based upon the alleged fabricated exhibit in state court. The complaint was amended to seek relief from judgment. Defendant Dube moved to dismiss the complaint for failure to state a claim and, as noted above, this Court granted the motion. The claims made against the Levensons are substantially the same as those made against Dube. Defendants Levenson have moved for summary judgment, arguing that since identical allegations of fraud have already been decided in Dube’s motion to dismiss, Plaintiff should be collaterally estopped from relitigating the issues against the Levensons. Because it now realizes that its Order dismissing Plaintiff’s case against Dube was erroneous, the Court declines to use it to bar Plaintiff’s current claim.

Discussion

The Magistrate determined, and this Court accepted the determination, that under Maine law Plaintiff’s claim for money •damages against Defendant Dube failed to state a claim. The Magistrate relied on Dunlap v. Glidden, 31 Me. 435, 437 (1850), in which the Law Court held that an independent action may not be brought to recover damages arising out of a judgment allegedly based on false testimony.

The Court of Appeals pointed out that a current Maine statute, 14 M.R.S.A. § 870, first enacted in 1864, does permit such an action. That statute provides:

When a judgment has been obtained against a party by the perjury of a witness introduced at the trial by the adverse party, the injured party may, within 3 years after such judgment or after final disposition of any motion for relief from the judgment, bring an action against such adverse party, or any perjured witness or confederate in the perjury, to recover the damages sustained by him by reason of such perjury; and the judgment in the former action is no bar thereto.

The Law Court has acknowledged the possibility' of such a statutory action in civil cases since at least 1882. See Severance v. Judkins, 73 Me. 376, 379 (1882). Although neither party mentioned the statute in the proceedings before the Magistrate or in the papers addressing the objections to the Magistrate’s recommendation, it is plain that it and not Dunlap was the controlling law.

It is also apparent that Spickler, the plaintiff here, is an injured party able to invoke the remedy set forth in the statute. Although not an original plaintiff, Spickler and his wife were added as plaintiffs during the course of the litigation in Maine Superior Court. Thus, the judgment there was entered against them. Spickler, his wife, and children were the only shareholders of R.D. Realty, the company whose mortgages were held by Dube. The judgment entered in Superior Court established R.D. Realty’s default on the mortgages, and allowed Dube to proceed on foreclosure of his mortgages against R.D. Realty “and/or proceed on the guarantees of Robert Spickler as appropriate.” Judgment, December 9, 1983. In the current complaint, Plaintiff alleges that he, as opposed to R.D. Realty, incurred damages as a result of the judgment in the previous case. The Court finds that he is an injured party within the meaning of 14 M.R.S.A. § 870.

Defendant has argued that Plaintiff is collaterally estopped to relitigate the issues decided by. the Magistrate.' The “general rule of issue preclusion, however, is that if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties.” C. Wright, Law of Federal Courts 682 (1983) (emphasis added). Since this is the same action as that in which the claims against Dube were dismissed, the doctrine of collateral estoppel is not applicable. Rather, the rulings of the Magistrate, as accepted by this Court, establish the “law of the case.” This Court does not shrink from abandoning the law of the case, however, when that rule has been shown to be wrong. See McCann v. Royal Indemnity Co., Civ. No. 80-0059-P (May 16, 1984). Thus, the Magistrate’s ruling on Dube’s motion to dismiss is not a bar to this action against the Levensons.

Defendants also try to raise the' state court litigation as a bar to this action, arguing that the issue of the falsity of Exhibit 19 has already been determined. Section 870, however, provides specifically that “the judgment in the former action is no bar” to the action contemplated in that section.

Plaintiff further alleges that the Levensons have worked a fraud on the Court by either aiding or initiating the presentation of the allegedly false document. The Magistrate allowed Plaintiff to amend his complaint to seek relief from the state court judgment as well as damages. Setting aside a judgment for fraud on the Court is an extraordinary remedy, warranted when officers of the court have been implicated in practices that undermine the integrity of the court. See Hazel Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed.2d 1250 (1944). However, as the Magistrate determined on Dube’s Motion to Dismiss, the federal anti-injuction statute, 28 U.S.C. § 2283, prohibits a federal court from enjoining the enforcement of or setting aside of a state court judgment, even if that judgment has been obtained by fraud. Warriner v. Fink, 307 F.2d 933 (5th Cir. 1962), see also Furnish v. Board of Medical Examiners, 257 F.2d 520 (9th Cir.1958); C. Wright, A. Miller & E. Cooper, 17 Federal Practice and Procedure § 4223 at 326 (1978). Since this is an inappropriate forum which could not afford the relief sought, Plaintiff’s claim to set aside the judgment for fraud on the Court must be dismissed.

Accordingly, it is ORDERED that the Court’s previous order in this case dismissing Plaintiff’s claims against the Levensons is hereby VACATED. It is FURTHER ORDERED, on reconsideration, that the Motion to Dismiss of Defendants Levenson is DENIED to the extent that' it seeks to dismiss Plaintiff’s claim for damages for a judgment allegedly based on false testimony. The motion is GRANTED to the extent that it seeks to dismiss Plaintiff’s claim to set aside the judgment rendered against him in the state courts.

      . The Court notes that Defendants Levenson filed a voluntary dismissal of the counterclaim the day after Plaintiff filed his appeal.

      . The motion now before the Court does not address in any respect the judgment rendered in favor of Defendant Dube on his motion to dismiss. A separate motion must be made for the Court to reconsider that judgment.


source: Caselaw Access Project

author: CAHILL, District Judge.

license: Public Domain

text:
    Randy Glenn SPENCER, Plaintiff, v. Valeta SNELL, et al., Defendants.
    No. 85-2888C(4).
    United States District Court, E.D. Missouri.
    Jan. 22, 1986.
    Randy Glenn Spencer, pro se.
    Mark Edelman, Asst. Atty. Gen., Jefferson City, Mo., for defendants.
   MEMORANDUM AND ORDER

CAHILL, District Judge.

This matter comes before the Court on defendants’ motion to dismiss and plaintiff’s motion for appointment of counsel.

Plaintiff, Randy Glenn Spencer, a resident at the Missouri Eastern Correctional Center, filed this 42 U.S.C. § 1983 action seeking declaratory relief and damages for the prison’s alleged refusal to allow plaintiff to participate in a vocational program provided by the prison because plaintiff was already in the Missouri Sexual Offenders’ Program. Defendants move to dismiss the complaint contending that prisoners have no federally protected right to participate in a particular vocational training or rehabilitation program.

This Court agrees with defendants’ assertion that there is no constitutional right to rehabilitation or vocational programs. Johnson v. Galli, 596 F.Supp. 135 (D.Nev. 1984). Federal courts in Missouri have already examined this contention. The federal district court for the Western District of Missouri, although recognizing the inherent benefits of basic remedial and vocational programs, noted that it was not “convinced that the programs were mandated as a matter of constitutional law.” • Ahrens v. Thomas, 434 F.Supp. 873, 900 (W.D.Mo. 1977). In Russell v. Oliver, 392 F.Supp. 470, 474 (W.D.Va.1975), the court held that there was “no federal constitutional right to vocational training ... for inmates in a correctional system____” Id. This Court is convinced that the weight of authority is that prisoner rehabilitation, education, and vocational training programs do not rise to the level of federally protected rights; but rather, fall into discretionary authority left to the prison administrators. See Hayes v. Cuyler, 475 F.Supp. 1347, 1350 (E.D.Pa. 1979); see also Hluchan v. Fauver, 480 F.Supp. 103, 107-108 (D.N.J.1979); Lock v. Jenkins, 464 F.Supp. 541, 555 (N.D.Ind. 1978); Nelson v. Twomey, 354 F.Supp. 1151, 1153 (N.D.Ill.1973); Cleggett v. Pate, 229 F.Supp. 818, 819 (N.D.Ill.1964). This would especially be true under these circumstances where the prison is preventing participation in one program to assure participation in another, more compulsory rehabilitative program.

Also before the Court is plaintiff’s motion for appointment of counsel. Because the Court is dismissing the petition, the plaintiff’s motion is moot and will be denied. Accordingly,

IT IS HEREBY ORDERED that defendants’ motion to dismiss is GRANTED, wherefore plaintiff’s complaint is DISMISSED.


author: YOUNG, District Judge.

text:
    Rosa Elizabeth HUNT, Plaintiff, v. Robert WEATHERBEE, et al., Defendants.
    Civ. A. No. 84-3001-Y.
    United States District Court, D. Massachusetts.
    Jan. 23, 1986.

      Edward Greer, Cambridge, Mass., for plaintiff.
    Robert E. Fast, Hale & Dorr, Boston, Mass., for defendants Turner Const, and Mark Dirksmeir.
    Michael A. Feinberg, Feinberg & Feld, Boston, Mass., for defendants Weatherbee, Bryant and Shaw.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

This action arises from an alleged pattern and practice of sex discrimination and sexual harassment committed against the plaintiff Rosa Elizabeth Hunt (“Hunt”) while she was employed as an apprentice with the United Brotherhood of Carpenters and Joiners of America, Local 40 (“Local 40”). Hunt has brought federal claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (Counts I-IV); the Civil Rights Acts, 42 U.S.C.' §§ 1985(2), . 1985(3), and 1986 (Counts V-IX); and the Landrum-Griffin Act, 29 U.S.C. § 101 et seq. (Count XIV). In addition, she has brought pendant state claims alleging civil rights violations and civil conspiracy (Counts X-XIII). Three of the defendants have now moved to dismiss Counts I-VII for failure to state a claim upon which relief can be granted, and to dismiss Counts X-XIII for lack of subject matter jurisdiction. For the reasons that follow, the motion is denied.

I. Background.

Hunt has alleged by verified complaint the following facts, which are accepted as true for purposes of this motion: At all times relevant to this lawsuit, Hunt has been a member in good standing of Local 40. She is currently a certified journeyman carpenter, having successfully completed a four-year apprenticeship. Pursuant to an apprentice agreement executed on or about June 2, 1980, Local 40 has been responsible for obtaining employment for Hunt with certain construction companies, including the Perini Corporation and the Ceco Corporation.

From September, 1981 until June, Í983, Hunt was employed by the Perini Corporation at a construction site at Harvard Square in Cambridge, Massachusetts. She has alleged that throughout this period of employment at the Harvard Square site, she was subjected to numerous acts of sex discrimination and sexual harassment. In April or May of 1982, she attended a meeting with the defendant Robert Weatherbee, the Business Agent of Local 40, and informed him of these discriminatory practices. Weatherbee condoned and ratified such practices and refused to take any action to stop them, despite his power and authority to do so as an officer of Local 40.

In addition to her allegations of discriminatory and harassing practices which occurred on the Harvard Square worksite generally, Hunt has alleged specific facts relating to an incident in November, 1981. On November 5, 1981, while in the course of her employment at Harvard Square, Hunt was the victim of an assault and battery by a fellow servant, William Freeman. After filing a criminal complaint against Freeman on November 6, 1981, Hunt was called to a meeting with various officials, including Weatherbee and the defendant Robert Bryant, the Financial Secretary and Assistant Business Agent of Local 40. All of the officials present at that meeting accused Hunt of being responsible for the assault, expressed sexually discriminatory animus toward her, and demanded that she withdraw her criminal complaint. As a result of the alleged coercion and intimidation by Weatherbee and Bryant, Hunt did in fact withdraw her criminal complaint.

In March, 1984, Hunt worked at a construction site at Osborne Street in Cambridge, Massachusetts, at the direction of Local 40. At that time, Hunt was employed by the Ceco Corporation, which was a subcontractor to defendant Turner Construction Corporation (“Turner Construction”). According to Hunt, the defendant Mark Dirksmeir was the general superintendant of Turner Construction and had overall responsibility for the Osborn Street project. Throughout the period of her employment at the Osborne Street site, Hunt again was subjected to various acts of sexual harassment and sex discrimination.

On March 26 and 27, 1984, Hunt was approached by the defendant Joe Shaw, the shop steward of Local 40, who attempted to coerce her into purchasing raffle tickets for the so-called “Local 40 Political Action Fund.” Shaw allegedly made hostile and intimidating statements to Hunt, based upon sexually discriminatory animus, including threats of personal injury if she did not purchase the tickets. Hunt left the worksite in fear of physical injury and loss of her employment, and contacted defendant Weatherbee for protection against such threats, but Weatherbee refused to act. Hunt returned to the site on March 27, 1984 and met with Shaw and Dirksmeir. Shaw repeated his threats of physical harm in the presence of Dirksmeir, but Dirksmeir refused to take any action. Hunt then left the site in fear for her safety and never returned to work as a Local 40 carpenter.

On September 21, 1984, Hunt filed this action against three officials of Local 40— Weatherbee, Bryant, and Shaw — and against Turner Construction and its alleged general superintendent, Dirksmeir.

II. The RICO Claims

The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, provides a private civil action to recover treble damages for “[a]ny person' injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Section 1962 outlaws the use of income derived from a “pattern of racketeering activity” to acquire an interest in, establish, or operate an enterprise engaged in or affecting interstate commerce; the acquisition or maintenance of any interest in an enterprise “through” a pattern of racketeering activity; conducting or participating in the conduct of an enterprise through a pattern of racketeering activity; and conspiring to violate any of these provisions. 18 U.S.C. § 1962; Sedima, S.P.R.L. v. Imrex Co., — U.S. -, 105 S.Ct. 3275, 3278, 87 L.Ed.2d 346 (1985).

Hunt has brought civil RICO claims against Weatherbee (Counts I and II) and Bryant (Counts III and IV), alleging as predicate acts of racketeering activity (1) the actions of Weatherbee and Bryant in coercing Hunt to withdraw her criminal complaint against Freeman, and (2) the actions of Shaw, described as the “agent” of Weatherbee and Bryant, in attempting to coerce Hunt to purchase raffle tickets for the Local 40 Political Action Fund. According to Hunt, these two predicate acts constitute a “pattern of racketeering activity” as defined by 18 U.S.C. 1961(5). Weatherbee and Bryant have moved to dismiss the RICO claims on several grounds.

A. Type of Injury Alleged

Weatherbee and Bryant argue that Hunt has alleged “the wrong type of injury” to sustain a civil RICO claim. First, they contend that Hunt’s claim is simply one for emotional distress, and that such a claim is not actionable under RICO. Second, they argue that Hunt has not alleged any organized crime involvement by the defendants.

It is inacurate to characterize Hunt’s action as a claim for emotional distress. The thrust of her complaint is that the defendants engaged in willful acts of discrimination and harassment which “permanently disable[d] [her] from her trade as a carpenter,” and she seeks damages for loss of wages. Although Hunt also seeks substantial damages for pain and suffering, she has not included a cause of action for infliction of emotional distress.

Weatherbee and Bryant assert that an employee’s action for lost wages is not cognizable under 18 U.S.C. § 1964(c), which provides a civil action to any person injured in his “business or property” by reason of a violation of § 1962; Weatherbee and Bryant rely on Van Schaick v. Church of Scientology of California, 535 F.Supp. 1125 (D.Mass.1982), in which the court dismissed a civil RICO claim on the ground that the plaintiff had alleged “no injury to business or property but rather that the plaintiff had to flee about the United States and suffered emotional distress.” Id. at 1137. Van Schaick did not involve an employment relationship and thus is easily distinguished from the case at bar.

In interpreting the scope of the “business or property” language of § 1964(c), it is appropriate to consider those decisions which have interpreted identical language from Section 4 of the Clayton Act, 15 U.S.C. § 15, since the Clayton Act served as the model for § 1964(c). Sedima, S.P.R.L. v. Imrex Co., — U.S.-, 105 S.Ct. 3275, 3279-81, 87 L.Ed.2d 346 (1985). In the antitrust context, federal courts have frequently concluded that “the loss of employment constitutes an injury to one’s business or property.” McNulty v. Borden, Inc., 474 F.Supp. 1111, 1116 (E.D. Pa.1979) (collecting cases); see, e.g., Quinonez v. National Ass’n of Securities Dealers, Inc., 540 F.2d 824, 829-30 (5th Cir. 1976) (loss of an opportunity to perform work is an “injury to business”). There is no compelling reason to apply a different rule in this case, where Hunt has alleged that the defendants’ actions forced her out of her job as a carpenter and disabled her from pursuing such work in the future. Therefore, this Court rules that Hunt has properly alleged an injury to “business or property” within the meaning of § 1964(c).

With respect to the assertion that Hunt did not allege any organized crime involvement by the defendants, the Supreme Court made clear in Sedima that such an allegation is not necessary to state a cognizable claim under § 1964(c). Because Congress wanted to reach both “legitimate” and “illegitimate” enterprises, there is no requirement that a RICO plaintiff must allege a “racketeering injury.” 105 S.Ct. at 3284-87.

B. The Predicate Acts

Hunt has alleged that Weatherbee and Bryant committed two predicate acts of racketeering activity. First, she alleges that the actions of Weatherbee and Bryant in coercing her to withdraw her criminal complaint against Freeman constitute extortion chargeable under Mass.Gen.Laws ch. 265, § 25, and obstruction of a criminal investigation indictable under 18 U.S.C. § 1510(a). Second, she alleges that the actions of Shaw (acting as the agent of Weatherbee and Bryant) relating to the sale of raffle tickets constituted an act of extortion chargeable under Mass.Gen.Laws ch. 265, § 25, and indictable under the Hobbs Act, 18 U.S.C. § 1951.*

Weatherbee and Bryant assert that Hunt’s allegations are insufficient to show a pattern of racketeering activity. They make the following arguments in support of their motion to dismiss: (1) that the incident involving Hunt’s withdrawal of her criminal complaint does not qualify as a predicate offense; (2) that the incident involving the sale of raffle tickets does not qualify as a predicate offense; and (3) that the two alleged predicate acts do not constitute a “pattern” within the meaning of § 1961(5).

1. Coercion to . Withdraw Criminal Complaint

With respect to Counts II and IV, brought pursuant to 18 U.S.C. § 1962(e), Weatherbee and Bryant argue that there is no “nexus” between the predicate offense concerning the withdrawn criminal complaint and the enterprise (Local 40). In effect, they are arguing that their alleged threats and coercion against Hunt were unrelated to their positions as officers of Local 40 and that their actions conferred no benefit upon the union.

The RICO statute does not require that the predicate acts, be in furtherance of the enterprise in order to show that the affairs of the enterprise have been conducted “through” a pattern of racketeering activity within the meaning of § 1962(c). Instead, there is a sufficient nexus between the predicate offenses and the enterprise if the defendant (1) is enabled to commit the predicate offense solely by virtue of his position in the enterprise or his involvement in or control over its affairs, or (2) the predicate offenses are related to the activities of that enterprise. United States v. LeRoy, 687 F.2d 610, 617 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983).

Hunt has alleged that Weatherbee and Bryant were officers of Local 40 and responsible for the protection of her rights under an apprenticeship agreement. She has further alleged that Weatherbee and Bryant threatened injury to her employment if she did not agree to withdraw her criminal complaint against Freeman. Weatherbee and Bryant respond by asserting that “[a]ny person ... could have threatened and coerced [Hunt] in the manner alleged” and that “[i]t was not necessary to be in a particular position within Local 40 to commit the predicate offense.” This response is without merit — surely it was only due to their positions of authority in the union that Weatherbee and Bryant had the opportunity and power to make a credible threat against Hunt. For purposes of the pending motion, Hunt undoubtedly has satisfied the requirements of alleging a sufficient nexus between the predicate acts and the affairs of Local 40.

Weatherbee and Bryant also assert that the circumstances surrounding the withdrawn criminal complaint do not support Counts I and III, brought pursuant to 18 U.S.C. § 1962(b). Those counts allege that Weatherbee and Bryant maintained control over an interest in Local 40 through racketeering activity. Weatherbee and Bryant again respond that the alleged threats and coercion were unrelated to the activities of Local 40 and did nothing to aid them in their union positions. This argument also fails. It is certainly a reasonable inference from the alleged facts that Weatherbee and Bryant acted against Hunt in order to quell any dissension or conflict within the work setting, even at the expense of ignoring a serious assault against one of Local 40’s own members. Worse, this particular action against Hunt may have simply represented one instance in a longstanding effort by union officials to maintain the status quo by harassing and discriminating against female union members, as Hunt has alleged. In any event, this clearly is a factual issue that cannot be decided at this stage in the proceedings.

2. Sale of Raffle Tickets

Weatherbee and Bryant also contend that the incident involving the sale of raffle tickets does not qualify as a predicate offense. They argue that the alleged acts of extortion against Hunt were committed by Shaw, and that even if Shaw was their “agent," they could not be criminally liable for the acts of an agent acting outside the scope of his authority. In response, Hunt concedes that Weatherbee and Bryant would not be liable for Shaw’s extortion if his acts were outside the scope of his authority; however, she argues that she is entitled to demonstrate that Shaw’s criminal extortion was indeed within the agency relationship.

Under general agency principles, the conduct of a servant is within the scope of employment if “(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.” Local 1814, Int’l Longshoremen’s Ass’n v. National Labor Relations Board, 735 F.2d 1384, 1395 (D.C.Cir.1984) (quoting Restatement (Second) of Agency, § 228(1) at 504 (1957)). The fact that an agent’s act may be criminal does not by itself prevent it from falling within the scope of employment, particularly if the agent is “actuated by the principal’s business purposes ‘to any appreciable extent.’ ” Id.

Hunt has alleged that in' March, 1984, Shaw was appointed by Weatherbee and “was acting as the agent of defendants Weatherbee and Bryant in soliciting funds and in all of his acts associated therewith for the so-called ‘Local 40 Political Action Fund.’ ” She has alleged that Bryant, as Financial Secretary of Local 40, was responsible for the collection of monies for the Local 40 Political Action Fund. Hunt has further alleged that she appealed directly to Weatherbee for protection against Shaw’s threats and that these appeals were ignored.

If proven, these allegations may be sufficient to show that Shaw was acting within the scope of his authority and for the benefit of Local 40. It would be reasonable to infer from Hunt’s allegations that Shaw, Weatherbee, and Bryant were acting together to maximize the proceeds for the Local 40 Political Action Fund, and that Weatherbee and Bryant sanctioned Shaw’s extortionate acts to further this objective. Given this alleged state of affairs, it would be improper for the Court to determine on a motion to dismiss that neither Weatherbee nor Bryant could be “indictable” under 18 U.S.C. § 1951 or “chargeable” under Mass.Gen.Laws ch. 265, § 25. See United States v. Local 560, 550 F.Supp.-511, 518 (D.N.J.1982) (The Hobbs Act, 18 U.S.C. § 1951, has been construed broadly and courts have upheld Hobbs Act prosecutions based upon the loss not only of tangible property but also of intangible “property” rights). Consequently, this Court rules that Hunt has sufficiently alleged two predicate acts by Weatherbee and Bryant.

3. Pattern of Racketeering

Following the Supreme Court’s decision in Sedima, Weatherbee and Bryant filed a supplemental brief arguing that even if Hunt has adequately alleged two predicate offenses, those offenses do not constitute a “pattern of racketeering activity” within the meaning of 18 U.S.C. § 1961(5). They assert that the two acts are simply isolated incidents, occurring three years apart, which have no relationship to one another.

In Sedima, the Supreme Court emphasized that while two predicate acts are necessary to constitute a pattern, they may not be sufficient by themselves: “[I]n common parlance, two of anything do not generally form a ‘pattern.’ The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern.” 105 S.Ct. at 3285 n. 14. The Court did not set forth its own definition of “pattern,” but referred specifically to two legislative sources for guidance:

As the senate Report explained: “The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one ‘racketeering activity’ and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” S.Rep. No. 91-617, p. 158 (1969) (emphasis added)____ Significantly, in defining “pattern” in a later provision of the same bill, Congress was more enlightening: “criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” 18 U.S.C. § 3575(e).

Id.

In this case, Hunt has alleged that the two predicate acts were simply two examples of a prolonged pattern and practice of sexual harassment, discrimination, and violation of contractual rights. She has included specific allegations of other instances of sexual harassment and discrimination directed toward her personally, and has further alleged that Weatherbee and Bryant knowingly encouraged systematic discrimination against other female members of Local 40. These allegations, viewed in the light most favorable to Hunt, may be sufficient to demonstrate a pattern of racketeering activity. Consequently, the motion to dismiss the civil RICO claims is denied.

III. The Civil Rights Claims

Hunt has brought several claims under the Civil Rights Act of 1971, 42 U.S.C. §§ 1985, 1986. Section 1985 of that Act proscribes five broad classes of conspiratorial activity; one of the five classes is outlawed by § 1985(1), two by § 1985(2), and two by § 1985(3). See Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 1487, 75 L.Ed.2d 413 (1983). Section 1986 creates a cause of action against the knowing failure to prevent the commission of any of the wrongful acts described in § 1985.

In Counts V and VI of her complaint, Hunt pleads three causes of action under § 1985. First, she alleges that Weatherbee and Bryant obstructed justice in state court by coercing her to withdraw her criminal complaint against Freeman, in violation of the second part of § 1985(2) Second, Hunt alleges that Bryant and Shaw deprived her of the equal protection of the laws of Massachusetts and the United States by attempting to extort monies from her with a sex-based discriminatory animus, in violation of the first part of § 1985(3). Finally, Hunt alleges that the extortionate acts of Bryant and Shaw violated the second part of § 1985(3) by intimidating her in the free exercise of her political views and by impeding her right to support candidates of her choice in federal elections.

A. Class-Based Animus

The defendants argue as a threshold proposition that there must be allegations of class-based racial animus to support a cause of action under § 1985. For support, they rely on United Bd. of Carpenters and Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). Although the Supreme Court in Scott held that § 1985(3) did not reach conspiracies motivated by “economic or commercial animus,” id., 103 S.Ct. at 3360, it expressly declined to decide whether a conspiracy motivated by other kinds of bias would be actionable under § 1985(3). Id. at 3359-60; see Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (§ 1985(3) requires “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”).

Although the Supreme Court has not decided this issue, the majority rule in the lower federal courts is that sex-based discrimination does fall within the scope of § 1985(3). See generally Annot., 46 A.L.R. Fed. 342 (1980). In Stathos v. Bowden, 514 F.Supp. 1288 (D.Mass.1981), affd, 728 F.2d 15 (1st Cir.1984), the court explicitly followed this general rule, commenting that “[tjhere is no doubt that purposeful sex discrimination is invidious discrimination” within the meaning of § 1985(3). Id. at 1293; see Daley v. Town of New Durham, 733 F.2d 4, 7 (1st Cir.1984) (cause of action under § 1985(3) must include allegation of a “conspiracy motivated by a racial, or ‘otherwise class-based invidiously discriminatory animus’ ”); Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir.1975).

B. Allegations of Sex-Based Animus

The defendants argue that Hunt’s allegations of sexually discriminatory animus are insufficient to sustain a cause of action under § 19S5. They correctly point out that a plaintiff must set forth “more than conclusory allegations, even in civil rights cases.” Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982) (collecting First Circuit cases). In Dewey, the Court of Appeals described the appi’opriate pleading standard in an action brought under 42 U.S.C. § 1983:

[Although we must ask whether the “claim” put forward in the complaint is capable of being supported by any conceivable set of facts, we insist that the claim at least set forth minimal facts, not subjective characterizations, as to who did what to whom and why.

694 F.2d at 3.

With respect to the coerced withdrawal of her criminal complaint against Freeman, Hunt has satisfied her minimal pleading burden. She has done more than simply set forth conclusory allegations of discriminatory motives. In particular, she has alleged that at the meeting following the assault Weatherbee and Bryant “expressed the sexually discriminatory animus of treating the physical victim of an assault as the responsible party solely because of her sex.” (emphasis added). She has further alleged that throughout the period of her employment at the Harvard Square construction site, she was subject to sexual harassrgent, sex-based isolation, and discrimination in work assignments. This general allegation is supported by further factual allegations relating specific incidents of appalling sexual harassment.

The incident involving the sale of raffle tickets presents a closer question. The facts alleged in the complaint indicate that Shaw, acting for the Local 40 Political Action Fund, threatened Hunt with physical injury and loss of employment if she did not purchase certain raffle tickets. Hunt claims that such threats were made “with malicious intent based upon a sexually discriminatory animus,” but she does not include any contemporaneous actions by the defendants that objectively support such animus. Hunt apparently relies on the pri- or manifestations of sex-based animus, discussed above, to conclude that Shaw’s extortionate acts were similarly motivated. That conclusion is certainly conceivable given the extent of discriminatory and harassing actions which allegedly occurred throughout Hunt’s association with Local 40. Therefore, Hunt’s allegations of discriminatory animus are sufficient to withstand a motion to dismiss.

C. Allegations of Conspiracy

The defendants contend that Hunt’s allegations of the existence of a conspiracy are insufficient to sustain a § 1985 action. The pleading requirements under § 1985 require “at least minimum factual support of the existence of a conspiracy.” FrancisSobel v. University of Maine, 597 F.2d 15, 17 (1st Cir.1979). In Slotnick v. Staviskey, 560 F.2d 31 (1st Cir.1977), the Court of Appeals described the standard under § 1983 as follows:

In an effort to control frivolous conspiracy suits under § 1983, federal courts have come to insist that the complaint state with specificity the facts that, in the plaintiff's mind, show the existence and scope of the alleged conspiracy. It has long been the law in this and other circuits that complaints cannot survive a motion to dismiss if they contain conclusory allegations of conspiracy but do not support their claims with references to material facts.

Id. at 33; see Serrano Medina v. United States, 709 F.2d 104, 106-107 (1st Cir.1983) (affirming dismissal of § 1985 claim where complaint “[did] not mention a conspiracy or state facts from which a conspiracy might be inferred”).

The Slotnick case suggests that a complaint alleging conspiracy under the civil rights laws may be required to go beyond the mere “notice pleading” that is usually required of other pleadings under Fed.R. Civ.P. 8. However, the precise contours of the pleading standard in this Circuit are unclear. In particular, it is unclear whether the pleading requirements; relating to conspiracy are as strict as those under Fed. R.Civ.P. 9(b), which provides that the circumstances constituting fraud must be pleaded with particularity. See Gomez v. Florida State Employment Service, 417 F.2d 569, 577 n. 32 (5th Cir.1969) (“The idea that the requirement for specificity, in the pleading of conspiracy [under § 1985] is like that for pleading fraud is not followed by us.”); Powell v. Workmen’s Compensation Board, 327 F.2d 131, 137 (2d Cir.1964) (complaints based on conspiracies under the civil rights acts must “allege with at least some degree of particularity overt acts which defendant engaged in which were reasonably related to the promotion of the alleged conspiracy”).

There are sound reasons not to apply the heightened “particularity” standard for conspiracies that do not themselves involve fraud. “The courts have recognized that the nature of conspiracies often makes it impossible to provide details at the pleading stage and that the pleader should be allowed to resort to the discovery process and not be subjected to a dismissal of his complaint.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1233 (1969); see Gomez, 417 F.2d at 577 n. 32.

Even if the pleading requirements are strictly applied in this case, Hunt has sufficiently alleged facts supporting the existence of a conspiracy. With respect to Count V, she has made specific allegations relating to the conduct of Weatherbee and Bryant in coercing her to withdraw her criminal complaint against Freeman. According to her allegations, Weatherbee and Bryant were both present at the meeting in which the coercion took' place and they acted in similar fashion toward Hunt. Understandably, Hunt may not be in a position to know whether Weatherbee and Bryant agreed beforehand to act against her, but such lack of knowledge is not fatal to her conspiracy claim. In light of her specific allegations as to the time, place, and nature of the actions of Weatherbee and Bryant, as well as her allegations concerning the discriminatory atmosphere in which she was forced to work, it would be reasonable to infer that there was a conspiracy to act against her.

The incident involving the sale of raffle tickets again presents a much closer question. Count VI alleges that Shaw and Bryant conspired against Hunt, but does not allege any personal involvement by Bryant in the extortion. Nor is there any allegation of an agreement between Bryant and Shaw. In that section of the complaint which describes the raffle ticket incident, ¶¶ 35-50, there is only a single reference to Bryant:

37. Said attempted extortion by defendant shop steward Joe Shaw, acting as the agent of defendants Weatherbee and Bryant, included sundry threats of injury to the property and person of the plaintiff to coerce her into purchasing raffle tickets for the so-called “Local 40 Political Action Fund,” and thus to extort such money from the plaintiff.

Hunt’s conspiracy claim clearly is premised on the alleged relationship between Bryant, in his capacity as a union official who was responsible for the collection of monies for the Local 40 Political Action Fund, and Shaw, who was acting as Bryant’s “agent” in soliciting such funds and in “all his acts associated therewith.”

The defendants are correct in their assertion that a conspiracy cannot be demonstrated merely by proving that Shaw was an agent of Bryant. An essential element of a conspiracy claim is the existence of an agreement between two or more persons to commit an illegal act. Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir.1979). However, a plaintiff need not show that such an agreement was express; a conspiracy may be implied from the circumstances. Dickerson v. United States Steel Corp., 439 F.Supp. 55, 67 (E.D.Pa.1977) (“If a party has the potential to stop illegal activity but fails to act to do so, and sits idly by, then that party may be said to have impliedly conspired in such illegalities.”). Moreover, the plaintiff is not required to prove exact details of the agreement. A showing of conspiracy “must often be met by circumstantial evidence; conspirators rarely formulate their plans in ways susceptible of proof by direct evidence.” Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir.1979).

Hunt has alleged that Bryant was directly involved in prior acts of discrimination against her, and that Bryant actually encouraged systematic discrimination against women members of Local 40. In light of these allegations and Bryant’s role in collecting monies for the Local 40 Political Action Fund, it would not be unreasonable to infer that Bryant and Shaw conspired against Hunt with respect to the sale of the raffle tickets. Hunt’s allegations relating to Count VI are thus sufficient to withstand a motion to dismiss.

IV. The Remaining Claims

Count VII alleges that Weatherbee had actual knowledge of the illegal acts perpetrated against Hunt but refused to take any action to protect her. This claim is made pursuant to 42 U.S.C. § 1986, which provides a separate cause of action for the knowing failure to prevent any of the acts proscribed by § 1985. Because Hunt has stated valid claims under § 1985, Count VII also survives the motion to dismiss. Similarly, the state claims alleged in Counts X-XIII will remain in the case pursuant to the Court’s pendent jurisdiction.

For the reasons stated above, the motion to dismiss filed by Weatherbee, Bryant, and Shaw is DENIED.

      . Turner Construction and Dirksmeir have denied that Dirksmeir was the general superintendent at the Osborne Street site.

      . The court in Van Schaick held that while § 1964(c) does not require a "competitive" injury, it does require "commercial” harm in the form of "business loss from racketeering injuries." 535 F.Supp. at 1136-37 & n. 11. The court narrowly construed the “business or property" language of § 1964(c), stating that courts "should be sensitive to the statute's commercial orientation and to Congress’ obvious intention to restrict the plaintiff class.” Id. at 1137. The force of this language has been substantially weakened by the Supreme Court’s decision in Sedima, S.P.R.L. v. Imrex Co., — U.S.-, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), which stressed that the civil RICO provisions are to be liberally construed and that courts should refrain from imposing limitations that do not clearly follow from the statutory language. Id., 105 S.Ct. at 3284-87. The court in Sedima, however, was not confronted with the issue of interpreting the scope of the “business or property" language of § 1964(c).

      . Section 4 of the Clayton Act provides in relevant part: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15.

      . To establish liability under RICO, a plaintiff must prove that the defendants engaged in a "pattern of racketeering activity,” 18 U.S.C. §§ 1962, 1964, which is defined as "at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).

      . 18 U.S.C. § 1961(1) provides in relevant part that "racketeering activity” means "(A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of [various provisions of title 18, United States Code, including] section 1510(a) [and] section 1951.”

      . Weatherbee and Bryant also argue that the RICO claims should be dismissed because Hunt did not allege that the defendants were convicted of any of the alleged predicate offenses. The statute defines a racketeering activity as any act "chargeable” under several generically described state criminal laws or any act "indictable” under certain specific federal criminal provisions. 18 U.S.C. § 1961(1). In Sedima, the Supreme Court made clear that a plaintiff suing under § 1964(c) need not allege that the defendants were convicted of the alleged predicate offenses. 105 S.Ct. at 3281-84.

      . 18 U.S.C. § 1962(b) provides: "It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.”

      . In Sedima, the Supreme Court not only rejected a “prior conviction” requirement for a proceeding under § 1964(c), it also expressed doubt that the predicate acts must be established beyond a reasonable doubt. Although the Court found it unnecessary to decide the issue, it stated: “That the offending conduct is described by reference to criminal statutes does not mean that its occurrence must be established by criminal standards or that the consequences of a finding of liability in a private civil action are identical to the consequences of a criminal conviction.” 105 S.Ct. at 3283.

      . Weatherbee and Bryant argue that the two alleged predicate acts involve different enterprises — that is, the coercion to withdraw Hunt’s criminal complaint involved Local 40, and the sale of raffle tickets involved the Local 40 Political Action Fund. This argument is without merit. Although it is unclear from the present record how the Political Action Fund was organized and what its precise functions were, it certainly is a reasonable inference that the fund was at least an adjunct of Local 40 and that its proceeds were used to benefit the union.

      . No claim for relief will lie under § 1986 unless a cause of action can be established under § 1985. Hahn v. Sargent, 523 F.2d 461, 469-70 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Therefore, Court VII of Hunt’s complaint would not survive the motion to dismiss unless Count V or Court VI survived.

      . Section 1985(2) contains two general sections, which are frequently referred to as the "first part" and the “second part.” The second part of § 1985(2) provides: ”[I]f two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws____”

      . Section 1985(3) contains two general sections, which are frequently referred to as the “first part” and the "second part." The first part of § 1985(3) provides: "If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws____”

      . The second part of § 1985(3) provides: “[I]f two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is ■ lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward to in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advoca- . cy...."

      . The requirement that a plaintiff must plead some kind of class-based animus stems from the language in § 1985 requiring intent to deprive another of “equal protection” or of “equal privileges and immunities.” That language appears in only two of the five broad classes of proscribed activities — those of the second part of § 1985(2) and the first part of § 1985(3). See Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 1487, 75 L.Ed.2d 413 (1983). In Kush, the Supreme Court held that there was no requirement of class-based animus to state a cause of action under the first part of § 1985(2), suggesting that there is also no such showing required under the second part of § 1985(3). Thus, it is unlikely that Hunt is required to plead class-based animus for her cause of action based on interference in federal elections.

      . There' are indications that the Supreme Court, if confronted directly with the issue. would hold that sex-based discrimination falls within the scope of § 1985(3). For example, in Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), a male employee alleged that he had been discharged for supporting female employees. He brought an action under § 1985(3), claiming that he had been the victim of a conspiracy to deprive him of rights secured by Title VII of the Civil Rights Act of 1964. The Court held that § 1985(3) may not be invoked to redress violations of Title VII. Although the majority did not address the class-based animus issue, Justice White (who delivered the majority opinion in Scott) noted in dissent:
      Although Griffin v. Breckenridge did not reach the issue whether discrimination on a basis other than race may be vindicated under § 1985(3), the Court correctly assumes that the answer to this question is “Yes.” The statute broadly refers to all privileges and immunities, without any limitation as to the class of persons to whom these rights may be granted. It is clear that sex discrimination may be sufficiently invidious to come within the prohibition of § 1985(3)----
      442 U.S. at 389 n. 6, 99 S.Ct. at 2357 n. 6 (White, J., dissenting) (citations omitted); see also Scott, 103 S.Ct. at 3368 (Blackmun, J., dissenting) ("certain class traits, such as race, religion, sex, and national origin, per se " fall within the protections of § 1985(3)).


author: WHITMAN KNAPP, District Judge.

text:
    PARK SOUTH ASSOCIATES, a New York Partnership, Plaintiff, v. Richard FISCHBEIN, David Rozenholc, Herman Badillo, individually, Fischbein, Olivieri, Rozenholc & Badillo, and Does 1 through 20, Defendants.
    No. 85 Civ. 9705 (WK).
    United States District Court, S.D. New York.
    Jan. 23, 1986.

      A. Richard Golub, New York City, for plaintiff.
    Martin London, Paul Weiss, Rifkind, Wharton, & Garrison, New York City, for defendants.
   MEMORANDUM AND ORDER

WHITMAN KNAPP, District Judge.

Plaintiff Park South Associates brings this action against Richard Fischbein, David Rozenholc, Herman Badillo and against their law firm, Fischbein, Olivieri, Rozenholc & Badillo seeking injunctive relief and treble damages totalling $105,000,-000.00 under the Racketeer Influenced And Corrupt Organizations Act, 18 U.S.C. §§ 1961, 1962(c) and (d) (“RICO”) and asserting a pendent state law claim for abuse of process. Defendants have moved to dismiss the complaint pursuant to F.R.Civ.P., Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow defendants’ motion is granted.

FACTS

The allegations presented in the amended complaint, supplemented by plaintiff’s motion papers and plaintiff’s representations to the Court during extensive oral argument, drawing all inferences in plaintiff’s favor and attempting chronological order where possible, paint the following picture.

Plaintiff is a New York partnership engaged in the business of ownership and management of real property. Its principal is Donald Trump.

Defendant Fischbein Olivieri Rozenholc & Badillo is a New York law firm. The individual defendants are attorneys admitted to practice in the State of New York and are partners in the law firm. Defendant Herman Badillo, as well as being a partner in the law firm, is Chairman of the State of New York Mortgage Agency (SONYMA) and is “a political figure of consequence in the City, County and State of New York.” Amended complaint at paragraph 8.

In the summer of 1981 defendants obtained knowledge that plaintiff was imminently purchasing the real property and building located at 100 Central Park South, New York, New York. At that time defendants also learned that plaintiff intended to convert 100 Central Park South to a cooperative or condominium entity, or alternatively to demolish it and construct a mixed use commercial and residential structure in its place. Also in the summer of 1981, defendants commenced legal representation of the tenants of 100 Central Park South..

In August of 1981 plaintiff purchased 100 Central Park South.

Shortly thereafter, defendants, on behalf of the tenants, initiated a number of legal proceedings aimed at delaying and preventing plaintiff from undertaking its above stated plans for the building.

Defendants, acting on behalf of tenants in sixty of the building’s apartments, filed complaints against plaintiff with the New York State Department of Housing and Community Renewal (“DHCR”) alleging harrassment and diminution of services.

Defendants, on behalf of eighteen tenants, brought actions in Landlord-Tenant Court against plaintiff alleging a decrease in service.

Seven tenants, acting on defendants’ recommendations, withheld rent from plaintiff claiming that the premises were not fit for habitation, causing plaintiff to bring actions against them in Civil Court for the back rent owed. In these suits defendants raised “boilerplate defenses and counterclaims without regard to the merits therein.” Amended complaint at paragraph 22.

On February 28, 1985 defendants “caused the City of New York through its Corporation Counsel to institute litigation in conjunction with defendants and a concomitant application for a preliminary injunction at the Supreme Court of the State of New York (The City of New York v. Park South Associates, et al., Index No. 40489/85).” Amended complaint at paragraph 20. The relief requested was denied by the Court (Kirschenbaum, J.) both upon the original application and upon reargument.

Defendants, on behalf of tenants, applied on five separate occasions for stays in the Supreme Court and Appellate Division in order to prevent plaintiff from receiving the necessary approvals to demolish 100 Central Park South. All of these applications were denied.

Defendants have used similar tactics before against other landlords in other actions. These tactics constitute defendants’ “modus operandi.” Amended complaint at paragraph 22.

During the pendency of these court and administrative proceedings, the following events also occurred.

In November of 1984 a representative of defendants offered Thomas Macari, a Park South employee, $50,000 “to work on behalf of the tenants at 100 Central Park South in a spying capacity while Macari was still employed by plaintiff.” In October of 1985 Rozenholc “confirmed and reiterated such bribe to Macari.” Complaint at paragraph 29.

In November, 1984 defendant Badillo stated to Trump that the administrative proceedings before the DHCR were “rigged” and that Park South should get out of 100 Central Park South. William Eimeck, Commissioner of the DHCR is a member of the board of directors of SONY-MA of which, as above stated, Badillo is Chairman.

In October, 1985 defendant Rozenholc approached Trump and stated that he and his law firm represented the Allegheny Corporation. The Allegheny Corporation owned an office building in Houston, Texas. Rozenholc offered Trump the opportunity to buy the Houston property as long as Trump would agree to give Rozenholc and his firm “a piece of the action.” Amended complaint at paragraph 25. Rozenholc also offered Trump the prospect of participating in the purchase of a hotel on Lexington Avenue and East 57th Street in New York City. During these discussions Rozenholc acknowledged to Trump that these offers constituted a conflict of interest with defendants' representation of tenants at 100 Central Park South.

In November, 1985 defendants Rozenholc and Fischbein again met with Trump and offered him the opportunity to purchase the building in Houston at a favorable price. Also present at that meeting were Charles P. Horne, President of Allegheny International Realty Development Corporation, owner of the Houston property, and another officer of that corporation.

On an unspecified date in the Civil Court of the City of New York, one David Brody, an associate of defendant law firm threatened and punched Frank Kaiman, an attorney for Park South.

DISCUSSION

Based on the foregoing, plaintiff contends that defendants have violated RICO.

18 U.S.C. § 1962(c) (RICO) provides that it is a crime for any:

person employed by or associated with an enterprise engaged in or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of an unlawful debt.

Racketeering activity is defined in 18 U.S.C. § 1961(1) to include specified state law crimes which are punishable by more than a year in jail and certain federal crimes.

Pattern of racketeering activity is defined in 18 U.S.C. § 1961(5) as at least two of the acts defined in subsection (1) committed within a ten year period.

18 U.S.C. § 1964(c) provides for a civil RICO cause of action and treble damages to a prevailing plaintiff.

Therefore, to deny this motion to dismiss, we'must find that plaintiff has alleged that each defendant, acting through an enterprise, committed at least two racketeering acts. Let us turn first to the “enterprise” requirement.

1. The “Enterprise.”

Plaintiff alleges two different forms of racketeering “enterprise” for purposes of RICO. It first alleges that the individual defendants acted through the enterprise of their law firm. It next alleges that all the defendants acted through the enterprises of the New York State court system, the DHCR and the Corporation Counsel by. bringing, defending or “causing” actions to be brought involving Park South.

For the reasons that follow we conclude that the law firm is a proper “enterprise” but that the court system, DHCR, and Corporation Counsel are not. Since the individual defendants are alleged to have acted through the law firm, the first conclusion satisfies the “enterprise” requirement as to them. However, since the law firm is only alleged to have acted through the enterprises of the courts, DHCR, and Corporation Counsel, the second conclusion finding necessitates dismissal of the law firm from this action.

It is well settled within this circuit that a defendant may not fulfill both the role of “person” and “enterprise” for purposes of § 1962(c), Bennett v. United States Trust Co. (2d Cir.1985) 770 F.2d 308. Therefore, in order to be a defendant in this action, the law firm must have been acting through an enterprise other than itself. Plaintiff alleges that the law firm engaged in the course of proscribed conduct through the enterprises of the New York Courts, the DHCR, and the Corporation Counsel. This presents the question of whether a defendant can violate RICO by participating as a mere litigant in a court system or before an administrative body.

Plaintiff has presented us with considerable authority for the proposition that a court system or an administrative agency can be an enterprise for purposes of RICO. However, in each such case, at least one of the defendants was ah employee of the governmental “enterprise” who had allegedly corrupted his office in the commission of the racketeering acts. See e.g. United States v. Qaoud, (6th Cir.1985) 777 F.2d 1105, (one of the defendants was a judge); United States v. Murphy, (7th Cir.1985) 768 F.2d 1518 (defendant was an associate judge of a county circuit court); United States v. Angelilli (2d Cir.1981) 660 F.2d 23 (defendants were New York City Marshals). There is no such allegation here. The crux of this issue is whether the defendant did “conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. 1962(c). Mere use of the courts as a litigant does not satisfy the requirement that the defendant “conduct” or “participate in the conduct” of the court’s affairs. See Averbach v. Rival Manufacturing Company (E.D.Penna 1985) # 85-2794 slip op. at 4. Therefore, a litigant can not transform the court system into an illegal enterprise absent some complicity with an employee of that court who does actually conduct or participate in the conduct of the court’s affairs. It follows that the complaint as to the law firm must be dismissed for want of an approriate “enterprise.”

2. Predicate Racketeering Acts.

Let us now turn to the predicate racketeering acts.

A. The Attempted Bribe of Macari.

Plaintiff alleges that defendants’ unaccepted offer of a $50,000 bribe to Thomas Macari violated two New York state statutes, section 180.03 of the New York Penal Law, commercial bribery, and section 215.00 of the New York penal law, bribing a witness, and one Federal statute, 18 U.S.C. § 1512, tampering with a witness. Each of these violations would fall under the definition of a predicate “racketeering act” under RICO. However, we find that no violation of any of those statutes has been pleaded.

As defined in section 180.03 of the New York Penal Law, to be guilty of commercial bribery in the first degree, a Class E felony punishable by more than a year in jail, a defendant’s acts must cause “economic harm to the employer or principal in an amount exceeding two hundred fifty dollars.” No such harm has been alleged. Nor is it conceivable that Park South has suffered any harm from the alleged offer of a bribe which was concededly declined.

Plaintiff’s claim that this attempted bribe violatates 18 U.S.C. § 1512 is equally unavailing. The terms of that statute are defined in 18 U.S.C. § 1515 which speaks exclusively of proceedings “before a judge or court of the United States.” The statute does not apply to state court proceedings. At the time of the alleged attempted bribe, the only proceedings in existence involving these parties were in state courts or before state administrative bodies.

Plaintiff responds to this argument by pointing out that New York has a statute which proscribes similar conduct. Indeed it does. Section 215.00 of the New York Penal Law provides as follows:

A person is guilty of bribing a witness when he confers, or offers or agrees to confer, any benefit upon a witness or a person about to be called as a witness in any action or proceeding upon an agreement or understanding that (a) the testimony of such witness will thereby be influenced, or (b) such witness will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, such action or proceeding.

Plaintiff’s complaint alleges that Macari was offered a bribe “to work on behalf of the tenants at 100 Central Park South in a spying capacity while Macari was still employed by plaintiff.” Amended complaint at paragraph 15. There is absolutely no suggestion in the complaint, nor was one advanced during oral argument, that Macari was offered a bribe to influence any testimony he might give or to induce him not to testify. Therefore no violation of section 215.00 has been pleaded.

B. The Offers made Directly to Trump.

Plaintiff alleges that defendants’ offer to Trump of participation in other real estate transactions constituted both extortion, in violation of section 155.05 of the New York Penal Law, and commercial bribery. We cannot agree.

There is no allegation that defendants discussed 100 Central Park South with Trump at the meetings involving the Houston property and the Lexington Avenue hotel, except for the rather incredible allegation that Rozenholc told Trump that he knew he was in a conflict of interest situation. But even if defendants had offered Trump an interest in these deals as an inducement to settle this case, transmitting an offer to the principle of a partnership which is an adversary in litigation in contemplation of settling the case is not an extortionate act. Indeed, if it were, every lawyer who tries to settle a case might end up behind bars.

Further, assuming arguendo that this offer to the principal of Park South constitutes a bribe, which seems unlikely, the allegation of commercial bribery still fails, for the same reason that plaintiff’s other commercial bribery allegation fails. Plaintiff has alleged no facts which would indicate that Park South suffered any harm as a result of this offer, which is a pleading requirement under section 180.03 of the New York Penal Law, as stated above.

C. Defendants’ Representation of the Tenants as “Extortion”.

Plaintiff’s claim that the defendants violated the Hobbs Act, 18 U.S.C. § 1951 can be easily dispensed with. The Hobbs Act requires that a defendant’s extortionate acts be induced by “wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Nothing in the pleadings alleges anything to do with force, violence or fear. With the possible exception of the alleged threat attributed to Badillo that administrative proceedings before the DHCR were “rigged”, discussed below, there is no allegation that any of the defendants were public officials or did anything under color of official right. Therefore no violation of the Hobbs Act has been alleged.

Plaintiff’s claim that by instituting a number of supposedly meritless lawsuits in hopes of gaining a favorable resolution of the conflict at 100 Central Park South, defendants were committing larceny by extortion in violation of section 155.05 of the New York Penal Law deserves equally short shrift.

The provisions of Section 155.05 of the New York Penal Law upon which plaintiff relies are the following:

A person obtains property by extortion when he compels or induces another to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:
* * * * * #
(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or ...
(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Since none of the defendants is a public servant subsection (viii) does not apply here. Subsection (ix) requires acts which would not materially benefit the actor. The acts allegedly performed by defendants were performed by lawyers on behalf of the tenants of 100 Central Park South. Those tenants had hired the lawyers to represent them. The tenants wanted to thwart Park South’s plans for the building. It appears that they have been, in some measure, successful. It would be ludicrous to conclude that the acts complained of were not undertaken for the material benefit of the lawyers and the clients who they were representing.

Plaintiff’s allegations may make out a state court action for abuse of process. But plaintiff has not pled extortion.

Plaintiff alleges that defendants somehow controlled a state agency, the DHCR and a city agency, the Corporation Counsel, both of whom brought lawsuits against plaintiff. Plaintiff fails to allege how defendants achieved this control. Moreover, even if defendants had caused the DHCR and Corporation Counsel to act as they have, plaintiff has not alleged anything extortionate about those proceedings. No one likes to be sued. Parties sometimes even settle lawsuits that they consider to be extortion. But that does not make the filing of a complaint in such an action extortionate.

D. The Assault.

Assault is not a crime that can constitute a predicate “racketeering act” under RICO, 18 U.S.C. § 1961(1) and plaintiff does not allege that the assault in question was part of an attempted larceny by extortion.

E. Mail Fraud.

The only allegation of mail fraud in the Amended Comlaint reads as follows. “Moreover such defendants further engaged in a pattern of racketeering through the regular and systematic use of the mails.” Amended Complaint at paragraph 17. Such utterly conclusory pleadings which allege no facts in support of the use of the mails or the alleged underlying fraud can not possibly withstand a 12(b)(6) motion.

F. The Threat of a Rigged Proceeding before the DHCR.

As Chairman of the State of New York Mortgage Association, (“SONYMA”), defendant Badillo sits on the same board of directors as does William Eimeck, Commissioner of the DHCR. By virtue of this rather tenuous association, plaintiff seeks to characterize Badillo as a public official for purposes of the various extortion statutes and then to characterize his alleged threat that the DHCR proceedings were rigged as a violation of the Hobbs Act and the New York extortion statute. Although we doubt that Badillo’s alleged threat was made “under color of official right” for purposes of the Hobbs Act or involved the “use or abuse” of a position as a public servant for purposes of New York law, it is not necessary to reach those questions. Plaintiff must plead two racketeering acts. Even if this “threat” by Badillo constitutes one such act, plaintiff’s complaint still must be dismissed for failure to allege a pattern of racketeering activity, as defined in 18 U.S.C. § 1961 which requires at least two such acts within a ten year period.

3. Plaintiff’s Request to Re-Plead.

At oral argument plaintiff requested that should we dismiss the complaint, it be permitted to re-plead. The amended complaint in this action was drafted by highly competent and experienced counsel in response to the motion to dismiss herein discussed. Further, at oral argument, plaintiff was given every opportunity to inform the Court of any further facts it could plead in support of its allegations. Where relevant, those facts have been considered in deciding this motion. Since it appears that further pleading would merely waste the time and resources of the litigants as well as divert scarce judicial resources, we deny plaintiff’s motion to re-plead and dismiss the complaint with prejudice.

SO ORDERED.