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September 29, 1983


Sweet, D.J.

The opinion of the court was delivered by: SWEET


Defendants Murray Vitoulis ("Vitoulis"), John Barbarette ("Barbarette"), and VB Carpet Service ("VB") have moved pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the complaint of plaintiffs Mrs. Joseph Gitterman ("Gitterman") and Suzanne Wasser ("Wasser"). In the alternative, these defendants have moved pursuant to Fed.R.Civ.P. 42 to sever the claims against them from those against defendant Eli Doberman ("Doberman"), who has failed to answer the complaint and is in default. For the reasons stated below, the motion for summary judgment will be granted.

 The facts in this action are fully set out in our earlier opinion, dated December 29, 1982. 564 F. Supp. 46. Briefly stated, the complaint alleges that on two separate occasions, while operating under the cover of cleaning carpets in plaintiffs' respective apartments, defendants substituted glass imitations for valuable diamonds in several pieces of personal jewelry belonging to Gitterman and Wasser. Seeking to draw an inference of interstate involvement and conversion of the diamonds from Doberman's flight after the alleged theft of Wasser's jewelry, plaintiffs assert that these two instances of alleged fraud constitute a violation of section 1962 of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., and establish the requisite "pattern of racketeering activity" necessary for treble damage recovery under 18 U.S.C. § 1964(c), the civil remedy section of the statute. *fn1" At the time this complaint was filed, a similar action, minus the RICO claims, was pending in the New York State court.

 Defendants have contended throughout this action that plaintiffs have failed to establish the necessary elements of a RICO claim, that the pendent state claims must fail without the umbrella of the federal question, that state remedies are available to plaintiffs if they can prove their case of fraud and conversion, and that plaintiffs are using the flight and absence of Doberman to establish circumstantial connections with the answering defendants because of plaintiffs' lack of any substantial evidence against Vitoulis, Barbarette, or VB.

 In opposition to defendants' motion for summary judgment, plaintiffs offer only their own attorney's affirmation and what they contend are inconsistent statements in defendants' depositions. They claim that issues of material fact remain, including the question of defendants' use of the "facilities of interstate commerce" and the question of the defendants' credibility.

 In addition, in the event the RICO claims are dismissed, plaintiffs urge this court, in its discretion, to hear the pendent state claims. Pointing to the fact that this case has been ready for trial for over three months, plaintiffs' counsel states that relegating this controversy to state court at this late date will cause undue inconvenience and hardship to plaintiffs, one of whom is 97 years old.

 An earlier motion to dismiss the complaint for failure to state a claim was denied at the pre-discovery stage in order to give plaintiffs the opportunity to establish the elements of their claim. Discovery is now complete, but, even if the plaintiffs' version of the facts is accepted for purposes of this motion, there is, as a matter of law, no RICO violation.

 First, plaintiffs have been unable to produce any evidence of defendants' involvement in interstate commerce, a necessary condition of a section 1962 violation. Plaintiffs maintain that their lack of such evidence is a function of defendants' refusal to produce business records relating to residential customers -- records defendants maintain do not exist since residential customers pay on the spot and do not have the same need of tax records as commercial customers. Both Gitterman and Wasser paid by check at the time the cleaning was completed, consistent with defendants' stated procedure. Plaintiffs were unable to locate any evidence of bills or other materials (which presumably might have been sent through the mails) from VB Cleaning Service. While for purposes of a summary judgment motion this court is required to consider the facts in the light most favorable to the non-moving party, it is not required to speculate as to the existence of facts for which there is no evidence in the record. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).

 Plaintiffs also urge that intrastate phone calls between Wasser and defendants (stipulated to by the parties) constitute communications sufficient to establish interstate commerce since intrastate and interstate phone lines make up one network. Plaintiffs cite REA Express, Inc. v. Interway Corp., 410 F. Supp. 192 (S.D.N.Y.), reversed on other grounds, 538 F.2d 953 (2d Cir. 1976), in support of this proposition. However, REA Express and the subsequent string of cases cited in plaintiffs' brief are not applicable to the present situation since they all deal with the telephone network as a facility for a national securities exchange. Interpreting section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b)(1976), and Rule 10b-5, 17 C.F.R. § 240.10b-5 (1982), those cases rest on specific regulatory language prohibiting the use of manipulative or deceptive devices through " any means or instrumentality of interstate commerce." 17 C.F.R. § 240.10b-5 (1982) (emphasis added). The telephone is admittedly an "instrumentality" of a national telephone network and thus establishes the requisite nexus under Rule 10b-5 the moment it is used. For purposes of establishing a RICO violation, however, the statutory language requires that the alleged enterprise either be "engaged in," or have activities "which affect," interstate or foreign commerce. 18 U.S.C. §§ 1962 et seq. There is no authority for plaintiffs' proposition that intrastate use of the telephone is equivalent to an effect on interstate commerce by the enterprise, and this court declines to so hold. The flight by the alleged co-conspirator Doberman also fails to provide such an effect for the enterprise. Thus, plaintiffs' prima facie case fails on the narrow jurisdictional ground alone. However, in the interest of complete disposition, the merits of the plaintiffs' claim will also be considered.

 Of course, a summary judgment motion requires this court to resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). Notwithstanding, review of the record in light of the statute's legislative history and recent judicial interpretation reveals that the RICO claim must fail on its merits.

 RICO was enacted to provide "enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 922, reprinted in 1970 U.S.Code Cong. & Ad. News 1073. Congress drafted RICO to survive constitutional challenges of vagueness and avoided the creation of a status offense by including in the definitional section, 1961 a virtual laundry list of felony offenses known to federal or state law which would constitute the predicate offenses. As a result, the RICO statute as written appears constitutionally unassailable, but the combined temptation of access to federal courts, together with the prospect of treble damages, has resulted in a proliferation of RICO claims running far afield from organized crime, the original target of the Congressional enactment. See, e.g., Alton v. Alton, No. 82 Civ. 795 (S.D.N.Y. July 9, 1982) (RICO claim dismissed in a matrimonial dispute with claims of fraudulent inducement of a separation agreement).

 The statutory language has on occasion been given a broad interpretation by some courts, which has raised the spectre of such a dramatic shift to federal courts of what have been traditionally state claims that at least one legal scholar has suggested that if the present trend continues, the Supreme Court may be forced to declare RICO unconstitutional on principles of federalism. *fn2"

 The Second Circuit, in its most recent RICO decision, has set forth the pleading burdens imposed upon a plaintiff to state a claim for damages under RICO:

First, he must allege that the defendant has violated the substantive RICO statute, 18 U.S.C. § 1962 (1976), commonly known as "criminal RICO." In so doing, he must allege the existence of seven constituent elements: (1) that the defendant (2) through the commission of two or more acts (3) constituting a "pattern" (4) of "racketeering activity" (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an "enterprise" (7) the activities of which affect interstate or foreign commerce. Plaintiff must allege adequately defendant's violation of section 1962 before turning to the second burden -- i.e., invoking RICO's civil remedies of treble ...

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