Jr., (collectively, the "individual defendants"), both in their
individual capacities and as principal stockholders, directors
and chief executive officers of defendants Mayes International
and Orbit International Travel, Ltd. ("Orbit"), over which they
are alleged to have had "total control." Amended Complaint
¶ 8. Orbit was a travel agency and "meeting planning
organization," with its principal place of business in Dallas,
Texas. Amended Complaint ¶ 9.
The amended complaint alleges that in early 1983, Mayes Sr.
represented to plaintiff George Jensen ("Jensen") that Mayes
Sr. had an opportunity to purchase 80% of Orbit for $70,000. It
was agreed that each would contribute $35,000, and thus each
would own 40% of Orbit. Mayes Sr. thereafter stated that he had
paid the full $70,000, and asked Jensen for his share, plus
additional funds to be lent to Orbit by Jensen. Jensen then
gave Mayes Sr. $35,000, representing his share of the alleged
purchase price, and lent Orbit $10,000. Amended Complaint ¶ 23.
The actual total purchase price for the entire 80% share of
Orbit did not, however, exceed $35,000. Amended Complaint ¶ 24.
Toward the end of 1983, Mayes Sr. and Jensen agreed that
Mayes Sr. would repurchase the Orbit shares from Jensen for
$50,000. The payment was to be made by Mayes Sr. after a
company in which both men were involved "went public." Although
the company went public in November 1984, and Jensen thereafter
transferred his shares of Orbit to Mayes Sr., Mayes Sr. never
paid Jensen the $50,000 purchase price. Amended Complaint ¶ 25.
The amended complaint further alleges that in or about
mid-1983, Orbit opened an office in New York City, employing
approximately five persons, to which the individual defendants
traveled on numerous occasions to conduct business on behalf of
Orbit. Amended Complaint ¶ 10. In or about September 1984,
plaintiff North American Society for Pediatric Gastroenterology
("NASPG") approached Orbit for the purpose of having Orbit
organize and run a large medical conference (the "NASPG
conference") in May 1985. Amended Complaint ¶ 11. Prior to the
NASPG conference, Orbit received from NASPG in excess of
$101,000, to be used solely for certain expenses related to the
NASPG conference. The funds were deposited in a designated
account at Marine Midland Bank. Amended Complaint ¶ 12. NASPG
gave Orbit these funds allegedly in reliance upon false
statements made by Orbit that the funds would only be applied
to NASPG conference expenses. Amended Complaint ¶ 12.
In late 1984, Orbit approached plaintiff International
Conference for Jewish Singles ("ICJS") with a proposal to
organize and run a conference in August 1985 (the "ICJS
conference"). Amended Complaint ¶ 17. Orbit subsequently
received approximately $13,000 from ICJS to cover certain
expenses related to the ICJS conference, after allegedly
falsely stating that the funds would be used only for such
expenses. Amended Complaint ¶ 18.
The NASPG conference took place as scheduled; however, Orbit
allegedly applied only $36,000 of the $101,000 received toward
NASPG conference expenses, failing to pay various expenses, and
refusing to refund the $65,000 difference. Amended Complaint
¶ 13. The ICJS conference also took place as scheduled;
however, the majority of the funds were not applied for the
purposes for which they were deposited. Amended Complaint ¶ 21.
On July 22, 1985, Mayes Jr. allegedly traveled to New York
City, summarily closed the Orbit office and dismissed Orbit's
employees. In the months preceding the closing of the Orbit New
York office, the individual defendants had allegedly removed
the funds deposited by NASPG and ICJS with Orbit through a
scheme involving mail and wire transfers, numerous telephone
conferences, and travel between Texas and New York. Amended
Complaint ¶ 15.
The amended complaint also alleges that, during the period
from 1983 through early 1985, Orbit was a profitable business.
Amended Complaint ¶ 29. However, the individual defendants
allegedly conducted a fraudulent scheme to convert for their
own use substantial funds of Orbit, by which they substantially
Amended Complaint ¶¶ 29, 30. In January 1986, Orbit filed a
petition for bankruptcy, which plaintiffs allege was in
numerous respects false and fraudulent, in violation of
18 U.S.C. § 152. Amended Complaint ¶ 36. Thereafter, in May 1986,
Mayes Sr., allegedly in an attempt to hide assets and defraud
creditors, including plaintiffs, transferred his principal
asset, a promissory note, to the "Mayes Charitable Trust." The
note (referred to in the amended complaint and herein as the
"Strange Note," it having originally been given to Mayes Sr. by
a Mr. and Mrs. Strange), was worth approximately $300,000 at
the time Mayes Sr. transferred it to the Mayes Charitable
Trust. Plaintiffs allege that this transfer violated
18 U.S.C. § 152. Amended Complaint ¶ 38.
The complaint in this action was originally filed December
23, 1985. The complaint was amended June 15, 1987, to add
plaintiffs Jensen, Kim Radcliffe, and George Butler, all former
stockholders of Orbit, and to add the allegations regarding
conversion of corporate funds and bankruptcy fraud. Defendants
filed an answer to the amended complaint on June 29, 1987. The
instant motion seeks dismissal of the amended complaint on a
number of grounds. In particular, the motion seeks an order (a)
dismissing the first and second counts of the amended complaint
(the "RICO counts"), pursuant to Fed.R.Civ.P. 12(b)(6), for
failure to state a claim, and Fed.R.Civ.P. 9(b), for lack of
particularity; (b) dismissing the pendent state claims,
pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter
jurisdiction; and (c) in the alternative, pursuant to
Fed.R.Civ.P. 12(c), for judgment on the pleadings.*fn1
1) Sufficiency of the Predicate Act Fraud Claims
Defendants first argue that plaintiffs' fraud claims, which
are alleged to be predicate acts under the RICO statute, are
insufficient as a matter of law and thus must be dismissed,
pursuant to Fed.R.Civ.P. 12(b)(6).
"The court's function on a Rule 12(b)(6) motion is not to
weigh the evidence that might be presented at a trial but
merely to determine whether the complaint itself is legally
sufficient." Festa v. Local 3 International Brotherhood of
Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990); see also
Ryder Energy Distribution Corp. v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984) ("The function of a
motion to dismiss `is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof.'" (quoting Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980))).
Thus, a motion to dismiss must be denied "unless it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40
L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see also Morales v.
New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.
1988). In deciding a motion to dismiss, the Court must limit
its analysis to the four corners of the complaint, see Kopec v.
Coughlin, 922 F.2d 152, 155 (2d Cir. 1991), and must accept the
plaintiff's allegations of fact as true, together with such
reasonable inferences as may be drawn in his favor. Papasan v.
Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209
(1986); Murray v. Milford, 380 F.2d 468, 470 (2d Cir. 1967);
Hill v. Sullivan, 125 F.R.D. 86, 90 (S.D.N.Y. 1989) ("all
allegations in plaintiffs' amended complaint must be accepted
as true and liberally construed."); see also Scheuer, supra,
416 U.S. at 236, 94 S.Ct. at 1686. Federal Rule of Civil
Procedure 8(a) requires only a "`short and plain statement of
the claim' that will give the defendant fair notice of what
plaintiff's claim is and the ground upon which it rests."
Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103 (quoting
Defendants assert, relying solely on Black's Law Dictionary,
that plaintiffs' fraud claims are insufficient as a matter of
law because "the essence of fraud is a false representation,"
Memorandum of Law in Support of Motion to Dismiss RICO Causes
of Action and Pendent State Claims or for Judgment on the
Pleadings ("Defendants' Memorandum") at 3, and the allegations
in the amended complaint "do not allege false representations
by the individual defendants or by Mayes International, Ltd.
Rather, they allege false representations by `Orbit.'"
Defendants' Memorandum at 4 (emphasis in original). However, it
is well established that under the mail fraud and wire fraud
statutes, 18 U.S.C. § 1341 and 18 U.S.C. § 1343, respectively,
which constitute RICO predicate acts pursuant to 18 U.S.C. § 1961,
the fraudulent mailings and communications need not have
been directly or personally performed by the defendant. Rather,
it is sufficient that the defendant "knew that the use of
interstate mail and wire services was a reasonably foreseeable
consequence of the scheme." United States v. Carpenter,
791 F.2d 1024, 1035 (2d Cir. 1986) (citing Pereira v. United
States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435
(1954)), aff'd, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275
(1987); see also United States v. Bortnovsky, 879 F.2d 30, 39
(2d Cir. 1989) ("`A defendant need not actually intend, agree
to or even know of a specific mailing to "cause" mail to be
sent as long as he or she "does an act with knowledge that the
use of mails will follow in the ordinary course of business, or
where such can reasonably be foreseen."'") (quoting United
States v. Bucey, 691 F. Supp. 1077, 1088-89 (N.D.Ill. 1988)
(quoting Pereira, supra, 347 U.S. at 8-9, 74 S.Ct. at 362-63));
Connors v. Lexington Insurance Co., 666 F. Supp. 434, 451
(E.D.N.Y. 1987). The allegations in the amended complaint,
including allegations that the individual defendants exercised
"total control over all the activities of" Orbit and Mayes
International, Amended Complaint ¶ 8, that Mayes International
received some of the funds improperly taken from plaintiffs by
Orbit, Amended Complaint ¶ 8, that the fraudulent
representations were part of a scheme by defendants to defraud
plaintiffs, Amended Complaint ¶¶ 12, 18, and that Mayes Jr. was
personally involved in this scheme, Amended Complaint ¶¶ 15,
19, 22, permit the Court to conclude for the purpose of
motion, that it was reasonably foreseeable that the fraudulent
mailings and communications would be made. See Carpenter,
supra, 791 F.2d at 1035. Therefore, plaintiffs have stated
predicate act mail and wire fraud claims sufficient to survive
defendants' motion to dismiss.
2) Particularity of the Predicate Act Fraud Claims
Defendants next argue that plaintiffs' mail and wire fraud
allegations are not pleaded with the particularity required by
Fed.R.Civ.P. 9(b). However, as plaintiffs correctly note,
defendants filed a detailed answer to the amended complaint on
June 29, 1987, and did not raise a Rule 9(b) objection in that
answer, nor did they make such a motion until the present
motion was brought. "The specificity requirements of
Fed.R.Civ.P. 9(b) have been imposed to ensure that a defendant
is apprised of the fraud claimed in a manner sufficient to
permit the framing of an adequate responsive pleading. A party
who fails to raise a 9(b) objection normally waives the
requirement." United National Records, Inc. v. MCA, Inc.,
609 F. Supp. 33, 39 (N.D.Ill. 1984); see also Stonehill v. Security
National Bank, 68 F.R.D. 24, 44 n. 38 (S.D.N.Y. 1975); 5A C.
Wright & A. Miller, Federal Practice and Procedure § 1394 at
778 (2d ed. 1990); 2A J. Moore, Moore's Federal Practice ¶ 9.03
at 9-35 (2d ed. 1984) (and cases cited therein). Consequently,
defendants have waived any objection to the fraud claims on the
ground of insufficient particularity.
3) Sufficiency of the Predicate Act Claims Under
18 U.S.C. § 2314 and 18 U.S.C. § 2315
Plaintiffs have alleged as additional RICO predicate acts
claims that defendants violated 18 U.S.C. § 2314, pertaining to
the transportation of stolen or fraudulently converted or taken
property, and 18 U.S.C. § 2315, pertaining to the receipt of
such property. Defendants have now moved to dismiss these
predicate act claims, asserting that NASPG and ICJS are, at
most, creditors of Orbit, and that no property interest of
those plaintiffs was interfered with.
It is clear that, in order for §§ 2314 and 2315 to be
applicable, the relevant offense must be one "against another
person's proprietary or possessory interests in property. This
does not mean that the victim must be shown to have had good
title, but it does mean that [there must have] been some sort
of interference with a property interest." United States v.
Long Cove Seafood, Inc., 582 F.2d 159, 163 (2d Cir. 1978); see
also United States v. Bennett, 665 F.2d 16, 22 (2d Cir. 1981);
United States v. Carman, 577 F.2d 556, 565 (9th Cir. 1978)
("the `stealing,' `conversion,' or `taking' must be from one
having the attributes of an owner."); United States v. Brandon,
651 F. Supp. 323, 325-26 (W.D. Va. 1987).
Defendants' argument that NASPG and ICJS had no such property
interest in the monies they deposited with Orbit, is, however,
misplaced. Although an argument might conceivably be made that
if the funds were deposited with Orbit on a legitimate basis,
they would no longer belong to NASPG and ICJS,*fn3 in the
instant case, at the time NASPG and ICJS were initially
allegedly defrauded, the funds clearly belonged to those
plaintiffs. The cases cited by defendants in support of their
motion to dismiss are inapposite, involving property which,
at the time it was stolen, or fraudulently converted or taken,
did not belong to another person. Plaintiffs have thus
sufficiently alleged that property belonging to NASPG and ICJS
was fraudulently converted or taken from them, and thus those
claims may not be dismissed for failure to state a claim.
4) Sufficiency of the Allegations Pertaining to the Strange
Defendants next argue that the allegations in the amended
complaint regarding the Strange Note should be dismissed as
lacking a sufficient nexus with the RICO enterprise in this
1962(c) of title 18 prohibits the conduct of an enterprise's
affairs "through" a pattern of racketeering activity.
Accordingly, courts in this Circuit have required an adequate
nexus between the alleged racketeering activity and the
enterprise's affairs. See, e.g., United States v. Tillem,
906 F.2d 814, 822 (2d Cir. 1990); United States v. Le Roy,
687 F.2d 610, 616-17 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103
S.Ct. 823, 74 L.Ed.2d 1019 (1983); Jim Forno's Continental
Motors, Inc. v. Subaru Distributors Corp., 649 F. Supp. 746, 752
(N.D.N.Y. 1986). "[O]ne conducts the activities of an
enterprise through a pattern of racketeering when (1) one is
enabled to commit the predicate offenses solely by virtue of
his position in the enterprise or involvement in or control
over the affairs of the enterprise, or (2) the predicate
offenses are related to the activities of that enterprise."
United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980), cert.
denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981);
see also Tillem, supra, 906 F.2d at 822 (quoting Scotto, supra,
641 F.2d at 54).
This test has been interpreted liberally. "[T]he statute
`does not define [the] connection by distinguishing between
predicate acts which play a major or a minor role, or any role
at all, in what might be seen as the usual operations of the
enterprise; nor does it require that such acts be in
furtherance of the enterprise. . . .' The statute, then
declines to define in quantitative terms the degree of
interrelationship between the pattern of racketeering and the
conduct of the enterprise's affairs." Scotto, supra, 641 F.2d
at 54 (quoting United States v. Stofsky, 409 F. Supp. 609, 613
(S.D.N.Y. 1973), aff'd, 527 F.2d 237 (2d Cir. 1975), cert.
denied, 429 U.S. 819, 97 S.Ct. 65, 66, 50 L.Ed.2d 80 (1976)).
Thus, the courts have not required that "the predicate acts
`concerned or related to the operation or management of the
enterprise' and `[a]ffected the affairs of the [enterprise] in
its essential functions.' " Scotto, supra, 641 F.2d at 54
(quoting appellant's proposed jury charge). In addition,
"`Section 1962(c) nowhere requires proof regarding advancement
of the [enterprise's] affairs by the defendant's activities, or
proof that the [enterprise] itself is corrupt, or proof that
the [enterprise] authorized the defendant to do whatever acts
form the basis for the charge. It requires only that the
government establish that the defendant's acts were committed
in the conduct of the [enterprise's] affairs.' " Scotto, supra,
641 F.2d at 54 (quoting United States v. Field, 432 F. Supp. 55,
58 (S.D.N.Y. 1977), aff'd, 578 F.2d 1371 (2d Cir.),
cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94
Accepting the allegations in the amended complaint as true,
as the Court must, see Papasan, supra, 478 U.S. at 283, 106
S.Ct. at 2943, the Court finds that the transfer of the Strange
Note by Mayes Sr. to the "Mayes Charitable Trust," alleged in
the amended complaint to be part of a fraudulent scheme to hide
his assets and defraud plaintiffs, is without question
sufficiently related to the activities of the enterprise in
this action. The amended complaint alleges an enterprise "the
common purpose of which was to defraud plaintiffs, and to
conceal and unlawfully take their monies." Amended Complaint ¶
33. It requires no stretch of the imagination to view the
allegedly fraudulent transfer of the Strange Note by Mayes Sr.,
less than five months after the filing of the original
complaint in this action, as closely related to the ongoing
activities of the enterprise. Indeed, such a transfer of assets
borders on the predictable in a case such as this, where the
unifying theme is alleged to be the defrauding of persons or
organizations having business relationships with the members of
the enterprise. Under the rule of Scotto and its progeny, the
transfer of the Strange Note is thus sufficiently related to
the activities of the enterprise in this action to withstand
the instant motion to dismiss. See United States v. Simmons,
923 F.2d 934, 951-952 (2d Cir. 1991).
5) Sufficiency of the RICO "Pattern" Allegations
To state a claim under the RICO statute, a plaintiff must
allege a "pattern" of racketeering activity, 18 U.S.C. § 1962
is defined by the statute as two or more acts of racketeering
activity within a ten-year period. 18 U.S.C. § 1961(5).
Determining whether a "pattern" exists within the meaning of
the RICO statute is not, however, as simple as mechanically
applying the definition provided by the statute. Rather, as the
Supreme Court noted in Sedima S.P.R.L. v. Imrex Co.,
473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346
(1985), "while two acts are necessary, they may not be
sufficient." More recently, the Supreme Court further expounded
upon the pattern requirement in RICO cases, holding that
"RICO's legislative history reveals Congress' intent that to
prove a pattern of racketeering activity a plaintiff or
prosecutor must show that the racketeering predicates are
related, and that they amount to or pose a threat of continued
criminal activity." H.J. Inc. v. Northwestern Bell Telephone
Co., 492 U.S. 229, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989)
(emphasis in original). There are thus two distinct, although
overlapping, constituents of RICO's pattern requirement.
Relying on H.J. Inc., defendants in the present action argue
that plaintiffs have failed to allege adequately a "pattern" of
The Supreme Court in H.J. Inc. held that, as to the
"relatedness" of the predicate acts, "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." H.J. Inc., supra,
109 S.Ct. at 2901; see also United States v. Indelicato,
865 F.2d 1370, 1382 (2d Cir.) ("An interrelationship between acts,
suggesting the existence of a pattern, may be established in a
number of ways. These include proof of their temporal
proximity, or common goals, or similarity of methods, or
repetitions."), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105
L.Ed.2d 700 (1989) and ___ U.S. ___, 110 S.Ct. 56, 107 L.Ed.2d
24, 25 (1989). "[T]he involvement of similar participants is
sufficient to demonstrate a relationship among the predicate
acts." Simmons, supra, at 951.
In the action now before the Court, the allegations in the
amended complaint clearly support a finding that the predicate
racketeering acts share, at minimum, a similar purpose (to
carry out a scheme to defraud plaintiffs of certain funds and
thereafter protect those funds from judgment) and similar
participants (the individual defendants and the corporations
over which they exercised "total control"). These similarities
are more than sufficient to lead this Court to find that the
predicate acts in this case are "related," as that term is
defined by the Supreme Court with respect to the RICO "pattern"
requirement. See H.J. Inc., supra, 109 S.Ct. at 2900-01;
Simmons, supra, at 951; Jacobson v. Cooper, 882 F.2d 717, 720
(2d Cir. 1989); Friedman v. Arizona World Nurseries Limited
Partnership, 730 F. Supp. 521, 547-48 (S.D.N.Y. 1990).
With respect to the "continuity" element of the test for a
RICO "pattern," the Supreme Court has held that "`[c]ontinuity'
is both a closed- and open-ended concept, referring either to
a closed period of repeated conduct, or to past conduct that by
its nature projects into the future with a threat of
repetition. . . . A party alleging a RICO violation may
demonstrate continuity over a closed period by proving a series
of related predicates extending over a substantial period of
time." H.J. Inc., supra, 109 S.Ct. at 2902. Although predicate
acts extending over a relatively short period, such as a few
weeks or months, may be considered insufficient to establish
continuity, see H.J. Inc., supra, 109 S.Ct. at 2902; Azurite
Corp. Ltd. v. Amster & Co., 730 F. Supp. 571, 581 (S.D.N.Y.
1990) (predicate acts occurred over seven months); West
Mountain Sales, Inc. v. Logan Manufacturing Co., 718 F. Supp. 1084,
1087 (N.D.N.Y. 1989) (predicate acts occurred over four
months), the predicate acts in the instant case allegedly
extended over a period of more than three years and involved
multiple acts, participants, and victims. The amended complaint
thus contains allegations sufficient to establish the requisite
"continuity" under the case law of the Supreme Court and Second
Proctor & Gamble Co. v. Big Apple Industrial Buildings, Inc.,
879 F.2d 10, 18 (2d Cir. 1989) (predicate acts occurring over a
period of nearly two years establish continuity), cert. denied,
___ U.S. ___, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990); USA
Network v. Jones Intercable, Inc., 729 F. Supp. 304, 317-18
(S.D.N.Y. 1990) (citing cases); Polycast Technology Corp. v.
Uniroyal, Inc., 728 F. Supp. 926, 948 (S.D.N.Y. 1989) (multiple
acts involving multiple participants over eight-and-one-half
month period establish continuity). Therefore, having
adequately alleged both "relatedness" and "continuity,"
plaintiffs have sufficiently pleaded a "pattern" of
6) NASPG and ICJS Allegations of Damages
Defendants next claim that, as to NASPG and ICJS, the amended
complaint fails to allege cognizable damages because those
plaintiffs "got what they bargained for. The conferences took
place as scheduled. How were they damaged?" Defendants'
Memorandum at 20. Yet even a cursory review of the amended
complaint patently reveals explicit allegations that the funds
for the NASPG conference and ICJS conference were given to
Orbit in reliance on statements that such funds would be used
only for conference-related purposes, Amended Complaint ¶¶ 12,
18, and that significant amounts of those funds were in fact
not used for those purposes. Amended Complaint ¶¶ 13, 21.
Hence, defendants' argument regarding the lack of sufficiency
of the damages allegations is without merit.
7) Constitutionality of the RICO Statute
Leaving no stone unturned, defendants attack the RICO statute
as unconstitutionally vague. Although the Supreme Court has yet
to pass on this question, the Second Circuit has considered and
rejected defendants' argument. See United States v. Ruggiero,
726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831, 105
S.Ct. 118, 83 L.Ed.2d 60 (1984); Scotto, supra, 641 F.2d at 52;
United States v. Huber, 603 F.2d 387, 393 (2d Cir. 1979), cert.
denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980);
see also Chase Manhattan Bank, N.A. v. Malatesta, 1990 WL
96748, 1990 U.S.Dist. LEXIS 9222 (S.D.N.Y. July 6, 1990) ("The
Second Circuit has rejected the argument that the RICO statute
is unconstitutionally vague."); United States v. Paccione,
738 F. Supp. 691, 698-99 (S.D.N.Y. 1990). Accordingly, defendants'
motion to dismiss the amended complaint on the ground that the
RICO statute is unconstitutionally vague is denied.
8) The Pendent State Law Claims
Had plaintiffs' RICO claims been dismissed by this Court,
defendants sought the dismissal of plaintiffs' pendent state
law claims. However, given the Court's decision not to dismiss
the RICO claims in this action, dismissal of plaintiffs'
pendent claims is not appropriate. See United Mine Workers of
America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218
For the reasons stated above, defendants' motion to dismiss
the RICO counts in this action, as well as the pendent state
law claims, is denied in its entirety.