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EXECUTIVE PHOTO, INC. v. NORRELL

June 19, 1991

EXECUTIVE PHOTO, INC., PLAINTIFF,
v.
RENE NORRELL, DEFENDANT. RENE NORRELL, THIRD-PARTY PLAINTIFF, V. SOLOMON BORNFREUND, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Leisure, District Judge:

MEMORANDUM ORDER

This is an action for conversion of property, and for violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Defendant Rene Norrell ("defendant") has now moved to dismiss the amended complaint in this action, pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons set forth below, defendant's motion is denied.

Background

Plaintiff filed this action on January 22, 1990. Defendant filed an answer and thereafter moved, pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(6) and 12(c), to dismiss the complaint. By an order and opinion dated February 7, 1991, 756 F. Supp. 798 (the "February 7 Order"), this Court granted defendant's motion in part and denied it in part.*fn1 Specifically, the Court granted defendant's motion to dismiss plaintiff's RICO claim on the ground that plaintiff had failed to allege "continuity" adequately, and thus had failed to allege a RICO "pattern" of racketeering. The Court denied defendant's motion to dismiss plaintiff's conversion claim. Leave to replead was granted. Plaintiff has filed an amended complaint, and defendant now moves to dismiss the amended complaint on the ground that plaintiff has again failed to plead "continuity" sufficiently.

Discussion

"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, 154-55 (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 Fed.R.Civ.P. 8(a)).

In its February 7 Order, the Court noted that a plaintiff bringing a RICO action must allege, inter alia, "continuity" with respect to the defendant's predicate activity, and that, as stated by the Supreme Court:

  "Continuity" 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.
  Predicate acts extending over a few weeks or
  months and threatening no future criminal conduct
  do not satisfy this requirement. . . .

H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 241-42, 109 S.Ct. 2893, 2902, 106 L.Ed.2d 195 (1989); see also Azurite Corp. Ltd. v. Amster & Co., 730 F. Supp. 571, 581 (S.D.N.Y. 1990) (predicate acts occurring over seven months do not establish continuity).

Relying on the Supreme Court's guidance in H.J. Inc., this Court found that plaintiff's complaint, containing no allegations whatsoever as to the period of time over which the predicate acts allegedly occurred, failed sufficiently to allege "continuity" over a closed period. 756 F. Supp. at 804-05.*fn2 Plaintiff's amended complaint rectifies this deficiency with the following averments:

  Commencing at a time unknown to plaintiff,
  Bornfreund and defendant entered into a common
  plan, scheme, design and business pursuant to
  which, over a period of at least two and one-half
  years, Bornfreund stole merchandise from
  plaintiff's storeroom, removed it from plaintiff's
  premises, and sold it to defendant for cash. Upon
  information and belief, over the same period,
  defendant, knowing the merchandise had been stolen
  from plaintiff, resold the merchandise at a profit.

Amended Complaint ¶ 6 (emphasis added).

  Bornfreund and defendant engaged in a pattern of
  racketeering activity . . . which consisted of,
  inter alia, at least two racketeering acts,
  including, over a continuous period of at least two
  and one-half years, repeated and numerous acts of
  receipt, sale, transportation, transfer and
  transmittal of stolen goods having a value of
  $5,000 or more in ...

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