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RODONICH v. HOUSE WRECKERS UNION

November 7, 1985

JOSEPH RODONICH, ALEX CHOTOWICKY, WASYL LAWRO and HARRY DIDUCK, Plaintiffs, against HOUSE WRECKERS UNION, LOCAL 95 OF LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, ET AL., Defendants.


The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

CANNELLA, D.J.:

 Defendant Laborers' International Union of North America's ["LIUNA's"] motion for summary judgment is denied. Fed. R. Civ. P. 56(b).

 The motion of defendants Local 95 and the individual defendants to dismiss the Racketeer Influenced and Corrupt Organizations Act ["RICO"] claim is granted in part and denied in part. Fed. R. Civ. P. 12(b)(6).

 BACKGROUND

 In its decision of September 20, 1985, this Court permitted plaintiffs to supplement and amend the RICO allegations in the complaint. Since that time the parties have conducted expedited discovery, and defendants now make dispositive motions on these allegations. Because this is another in a long line of decisions in this case, the Court assumes familiarity with the facts.

 DISCUSSION

 I. The Standard of Pleading

 Defendants argue that it is necessary to plead RICO allegations with particularity. In support of this contention they direct the Court's attention to numerous cases including Saine v. AIA, Inc., 582 F. Supp. 1299, 1305-06 (D. Colo. 1984); Laterza v. ABC, 581 F. Supp. 408, 413 (S.D.N.Y. 1984); Carbone, Inc. v. Proctor Ellison Co., 102 F.R.D. 951, 953 (D. Mass. 1984); and Bache Halsey Stuart Shields v. Tracy Collins, 558 F. Supp. 1042, 1045-46 (D. Utah 1983). Although these cases hold that RICO allegations must be pleaded with the particularity required by Fed. R. Civ. P. 9 for pleading fraud claims, some of these cases involve predicate acts of fraud and all antedate the Supreme Court's recent decision in Sedima, S.P.R.L. v. IMREX Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985). In Sedima the Court, although expressly leaving the question open, strongly indicated that a fair preponderance of the evidence satisfies the burden of proving predicate acts in a civil RICO action. Id. at 3282. If the burden of proof is not heightened in these cases, as Sedima suggests, the propriety of altering the pleading burden is questionable. In any event, the Court need not decide this question because defendants have had an opportunity to perform expedited discovery on the amended complaint and have received particularized information regarding the nature of the claim stated.

 Accordingly, with the exceptions discussed in part IV below, plaintiffs have sufficiently stated a RICO cause of action. *fn1"

 II. Hobbs and Travel Acts

 Among the predicate acts added by the amended complaint are violations of the Hobbs and Travel Acts. The Hobbs Act, 18 U.S.C. § 1951, makes it unlawful for any person to obstruct or conspire to obstruct commerce by extortion. Id. § 1951(a). Extortion is defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear." Id. § 1951(b) (2). Plaintiffs allege that defendants, including LIUNA, engaged in a scheme of intimidation that deprived the union membership of its rights under the Labor Mangement Reporting and Disclosure Act ["LMRDA"], 29 U.S.C. §§ 411(a) (1), (2). Defendants assert that such intangible rights are not property within the meaning of the Hobbs Act and therefore canot be extorted.

 The Hobbs Act "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence." Stirone v. United States, 361 U.S. 212, 215, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960). The concept of property is not limited to tangible property but includes "any valuable right considered as a source or element of wealth." United States v. Tropiano, 418 F.2d 1069, 1075 (2d Cir. 1969) (right to solicit business is a property right), cert. denied, 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1262 (1972). Many courts have held intangible business rights to be property under the Hobbs Act. See, e.g., United States v. Santoni, 585 F.2d 667, 673 (4th Cir. 1978), cert. denied, 440 U.S. 910, 59 L. Ed. 2d 459, 99 S. Ct. 1221 (1979); Bianchi v. United States, 219 F.2d 182, 189 (8th Cir.), cert. denied, 349 U.S. 915, 99 L. Ed. 1249, 75 S. Ct. 604 (1955); United States v. Nadaline, 471 F.2d 340, 344 (5th Cir.), cert. denied, 411 U.S. 951, 36 L. Ed. 2d 414, 93 S. Ct. 1924 (1923); United States v. Stofsky, 409 F. Supp. 609, 615 (S.D.N.Y. 1973). Union rights are no exception. See United States v. Local 560, 550 F. Supp. 511, 519 (D.N.J. 1982); see also United States v. Boffa, 688 F.2d 919 (3d Cir. 1982). Accordingly, rights arising under the LMRDA are properly classified as property rights within the meaning of the Hobbs Act. *fn2"

 Defendants additionally contend that the complaint fails to allege a sufficient effect on interstate commerce to establish a Hobbs Act violation. However, to constitute a violation, interstate commerce need only be affected to a "minimal degree." See Tropiano, 418 F.2d at 1076. Because the LMRDA was enacted under the auspices of the Commerce Clause, the effect on interstate commerce is clear. See Local 560, 550 F. Supp. at 518, 524 (assuming without discussing ...


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