The opinion of the court was delivered by: STEWART
In this action, plaintiff seeks to recover damages from defendants for their alleged breach of contract, fraud, conspiracy, conversion and violation of the RICO statute. The facts of this case concern defendants' failure to pay for fuel oil brought from plaintiff in May of 1981. In a Memorandum Decision dated March 24, 1982, we granted partial summary judgment for the plaintiff on its contract claim. This decision was affirmed in part and reversed in part by the Second Circuit in Bulk Oil (USA), Inc. v. Sun Oil Trading Co., 697 F.2d 481 (2d Cir. 1983). In our decision of March 1982, we also granted defendants' motion to dismiss plaintiff's fraud claim, but granted plaintiff leave to replead this claim. Defendant now moves to dismiss portions of the amended complaint filed after our March 1982 decision on the grounds that
(1) the doctrine of res judicata bars plaintiff from asserting any claim other than common law fraud;
(2) the plaintiff's RICO claim is legally insufficient;
(3) venue in this district is improper for plaintiff's RICO claim against defendants other than Sun, SIL and Cross;
(4) this court lacks personal jurisdiction over the individual defendants; and
(5) plaintiff's jury demand is untimely under Fed. R. Civ. P. 38.
We address these grounds in turn.
1. Res Judicata Effect of April 1982 Judgment
In our Memorandum Decision of March 1982, we acknowledged that the scope of plaintiff's fraud claim appeared "considerably greater than the complaint regarding the 15,000 barrels of oil". Our granting of leave for plaintiff to replead this claim was thus premised on the fact that it appeared that new facts in the case had been discovered. Under these circumstances, we do not believe the doctrine of res judicata should bar new claims based upon the newly discovered facts. Indeed, Fed. R. Civ. P. 60(b)(2) would appear to allow plaintiff to be relieved from the April 1982 Judgment under these circumstances if necessary. Accordingly, we decline to hold the April 1982 Judgment bars assertion of any claims other than the fraud claim.
As explained more fully in our Bulk Oil (Zug) decision, to state a civil claim under the RICO statute, a plaintiff must allege an injury "by reason of section 1962" of the RICO statute. See 18 U.S.C. § 1964(c) (1976). As was the case in Bulk (Zug), plaintiff here clearly does not allege injury "by reason of" violations of sections 1962(a)
As for injury under section 1963(c)
plaintiff has again failed to distinguish the enterprise whose affairs are conducted and the persons who "conduct or participate . . . in the conduct of such enterprise's affairs through a pattern of racketeering activity . . .". We would assume that plaintiff intends SOTC as the "enterprise" and the named individuals as the "persons". If this assumption is correct, however, plaintiff has not stated a claim for treble damages against SOTC under section 1963(c). "It is only a person, or one associated with an enterprise, not the enterprise itself, who can violate the provisions of the section." Van Schaick v. Church of Scientology of California, Inc., 535 F. Supp. 1125, 1136 (D. Mass. 1982). With respect to the individual defendants, it appears that the Amended Complaint, read in a liberal fashion, does state a claim of injury by reason of a violation of section 1962(c), however. That is, given paragraphs 82 and 83
of the Amended Complaint, it is not clear to a certainty that the plaintiff would not be able to prove that the named individuals participated in the conduct of SOTC's affairs "through a pattern of racketeering activity". Given this conclusion, moreover, we find that plaintiff has stated a claim against SOTC for injury by reason of violation of section 1962(d)
inasmuch as paragraph 52 of the Amended Complaint alleges:
SII, SIL, P. E. Macht and B. H. Cross conspired in pursuit of the same common plan to commit tortious acts of fraud upon BOUSA together with SOTC, G. F. Cerchio, R. H. Rodgers, W. C. Lemmer, F. R. Copple and G. R. Henderson and have actively taken part in a ...