complaint states that the duplication contradicted Kreitman's representation published in the November catalogue. Id. Furthermore, the RICO allegations state that the June auction included proofs and specimens of banknotes not owned by USBN but consigned by foreign governments to USBN.
The RICO allegations go on to state that, in September 1991, USBN, without Christie's as its agent or intermediary, sold a further part of its ABN archives to Nemco, a brokerage firm. The archives sold to Nemco included proofs and specimens of banknotes, as well as proofs and specimens owned by the governments of Canada and Israel. Plaintiff alleges that some of the banknotes sold by USBN to Nemco during this period duplicated banknotes sold to Plaintiff at the November auction.
Plaintiff's final factual allegation is that, on March 27, 1992, USBN caused to be filed with the United States Securities and Exchange Commission a registration statement under the Securities Act of 1933 stating that "through [Christie's], ABN sold at public auction in 1990 and 1991 certain . . . [ABN] materials, consisting of proofs and specimens of postage stamps and banknotes for approximately $ 10.2 million and $ 1.9 million, respectively. . . . From time to time, the Company may sell its other remaining materials from its archives. . . ." Am. Compl. P 92.
Fed. R. Civ. P. 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires." Leave to amend a pleading should be granted if the movant "has at least colorable grounds for relief," absent any undue delay, bad faith, or undue prejudice to the opposing party. S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979).
Leave to amend will not be granted under Rule 15(a), however, where there are no colorable grounds for the proposed claim -- that is, where amendment would prove futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). The "colorable grounds" requirement mandates "an inquiry -- comparable to that required by Fed. R. Civ. P. 12(b)(6) . . . -- as to whether the proposed amendments state a cognizable claim. . . ." CBS, Inc. v. Ahern, 108 F.R.D. 14, 18 (S.D.N.Y. 1985) (citation omitted). In sum, amendment is futile if a proposed claim could not withstand a motion to dismiss made pursuant to Fed. R. Civ. P. 12(b)(6). S.S. Silberblatt, 608 F.2d at 42; CBS, 108 F.R.D. at 18. A claim will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see Rapf v. Suffolk County of New York, 755 F.2d 282, 290 (2d Cir. 1985).
In determining whether a pleading should be dismissed for failure to state a claim, the court must accept the allegations in the complaint as true and construe all allegations in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). "It follows, then, that denial of a motion to amend based upon the asserted inadequacy of the proposed pleading is disfavored." CBS, 108 F.R.D. at 19; see Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1366 (2d Cir. 1985), aff'd, 476 U.S. 409, 90 L. Ed. 2d 413, 106 S. Ct. 1922 (1986).
The Validity of the RICO Claims
To state a claim for damages under section 1964(c) of the RICO statute, a plaintiff must first allege a violation of the substantive RICO statute, 18 U.S.C. § 1962(a)-(c). Under § 1962(a)-(c), a plaintiff must allege "(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, maintains an interest in, or participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce." Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983), cert. denied, 465 U.S. 1025, 79 L. Ed. 2d 684, 104 S. Ct. 1280 (1984).
The pattern requirement involves two elements. The plaintiff 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, 239, 109 S. Ct. 2893, 2900, 106 L. Ed. 2d 195 (1989); Landy v. Heller, White & Co., 783 F. Supp. 125, 131 (S.D.N.Y. 1991) (citing H.J. Inc.). See also Beauford v. Helmsley, 865 F.2d 1386, 1391 (2d Cir.) (en banc), vacated and remanded, 492 U.S. 914, 106 L. Ed. 2d 583, 109 S. Ct. 3235, cert. denied, 493 U.S. 992, 107 L. Ed. 2d 537, 110 S. Ct. 539 (1989) ("our analysis of relatedness and continuity has shifted from the enterprise element to the pattern element.").
The Supreme Court in H.J. Inc. explained that "Congress was concerned in RICO with long term criminal activity," 492 U.S. at 242, 109 S. Ct. at 2902, and that 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" which extends "indefinitely into the future," id. (emphasis added); see Beauford, 865 F.2d at 1391 ("Congress's goal in fashioning its definition of 'pattern of racketeering activity' was to exclude from the reach of RICO criminal acts that were merely 'isolated' or 'sporadic'" in nature). This Court in Passini v. Falke-Gruppe, 745 F. Supp. 991, 992 (S.D.N.Y. 1990) identified the factors for assessing continuity or the threat of continuity in a RICO claim. Those factors include the number and variety of predicate acts, the length of time during which they were committed, the number of victims and the occurrence of distinct injuries. See id. (citing Continental Realty Corp. v. J.C. Penney Co., 729 F. Supp. 1452, 1454 (S.D.N.Y. 1990)).
Plaintiff alleges that "the pattern of racketeering activity . . . was engaged in by the RICO defendants . . . by the sale of the ASH archives through a series of frauds aimed at plaintiff and other buyers of portions of the ASH archives," Am. Compl. P 52 (emphasis added), during the period "February, 1990 . . . through at least September, 1991," id. P 51. Plaintiff further alleges that the pattern in which the RICO defendants engaged "threatens to continue today." Id. In support of his allegations, Plaintiff points to, among other acts, the mailing of Lamb's alleged misrepresentations in an interview in the Bank Reporter regarding the means by which the archival material would be sold to the public; the dissemination of the alleged misrepresentation contained in the catalogue for the November sale that all existing ABN archival material owned by USBN would be sold at the November auction and that no further impressions of these materials would be made from ABN plates; the implied warranty contained in the catalogue for the November sale that USBN owned the material to be auctioned; and the insertion of a misrepresentation in an addendum to the November catalogue regarding the private sale of banknotes to the Bank of Canada. Plaintiff contends that these representations were false because at the June auction there was duplication of material sold at the November auction.
Plaintiff further maintains that the proposed amended complaint shows that Defendants worked "in unison through complex means toward one common fraudulent goal," Pl.'s Reply Mem. at 11, in part because USBN did not own some of the archival material offered for sale -- namely, the Canadian materials withdrawn from sale and banknotes allegedly owned by the Bank of Israel and other foreign governments. Plaintiff claims he was defrauded at the November auction due to USBN's failure to acknowledge its lack of ownership of the archival materials being sold by it, and charges that the foreign governments involved were the true owners. second, Plaintiff claims that the sales in June and September included materials not owned by USBN but owned by foreign governments. Plaintiff's proposed amended complaint, however, does not allege fraud with regard to the June and September sales of materials owned by these governments.
The RICO claim in essence is a claim that Plaintiff and other buyers at the November auction were defrauded when Defendants misrepresented that duplicates of the items sold did not exist and would not be sold, when in fact such duplicates existed and were sold by Defendants in June 1991 and by USBN in September 1991.
The RICO claim asserts that these sales of duplicates caused injury to Plaintiff and other buyers due to their purchases at the November auction. Thus the claim is based on the November auction and the representations made prior to that auction. This is too short a time to constitute a pattern of continuing criminal activity. See Continental, 729 F. Supp. at 1455; Mead v. Schaub, 757 F. Supp. 319, 323 (S.D.N.Y. 1991) (defendant's acts occurring over a five year period held insufficient to satisfy continuity requirement where scheme had terminable nature and single goal).
Furthermore, Plaintiff's reply brief and the amended complaint themselves suggest that Defendants' actions were "narrowly directed toward a single allegedly fraudulent goal," see Continental, 729 F. Supp. at 1455, namely, to sell ABN archival material. The June 1991 expiration date of the contract between Christie's and USBN to auction the ABN archival material at issue, and the lack of any allegations concerning Christie's thereafter, demonstrate that the association between USBN and Christie's as charged terminated, and Defendants did not "function as a continuing unit" to defraud purchasers of banknotes after June 1991. United States v. Turkette, 452 U.S. 576, 583, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). The objective of these Defendants was too limited to constitute a pattern of continuing fraud.
In sum, the proposed amended complaint lacks sufficient allegations of continuity and activity of a criminal nature necessary to establish a pattern of racketeering activity. United States v. Indelicato, 865 F.2d 1370, 1381-82 (2d Cir.), cert. denied, 493 U.S. 811, 110 S. Ct. 56, 107 L. Ed. 2d 24 (1989). Defendants' past conduct does not constitute the type of "long-term criminal activity" envisioned by the Supreme Court in H.J. Inc. when it described a closed-ended concept. 492 U.S. at 242, 109 S. Ct. at 2902. The scheme alleged by Plaintiff had a limited goal, i.e., the sale of the ABN archives, and the alleged misrepresentations upon which purchasers relied took place prior to the November auction and over too limited a period of time -- less than one year -- to constitute a pattern of continuing criminal activity. See Continental, 729 F. Supp. at 1455; Mead, 757 F. Supp. at 323.
Nor do the actions of Defendants suggest "a distinct threat of long-term racketeering activity" that "by its nature projects into the future, with a threat of repetition" -- the open-ended concept of criminal activity described in H.J. Inc.. 492 U.S. at 241, 242, 109 S. Ct. at 2902; see Continental, 729 F. Supp. at 1455. Specifically, in his proposed RICO claim, Plaintiff points to USBN's registration statement as evidence of a continuing threat. Specifically, Plaintiff's claim of a threat of continuing violation is based on the following allegations contained in his amended complaint: (1) USBN still possesses ABN archival material and may sell it in the future (P 93); (2) USBN's registration statement stated that USBN "may sell its other remaining material from its archives. . . ." (P 92); (3) as a result of the statement contained in the registration statement, Plaintiff concludes that USBN intends to make impressions of the previously sold archival materials from plates contained in the ABN archives. (P 94). The registration statement itself, however, refers only to sale of the company's "other remaining materials from its archives." Am. Compl. P 92. It does not state that USBN plans to print for resale facsimiles of ABN materials or any previously sold materials. In short, the registration statement "only provides the opportunity for future fraud, but does not provide any evidence of its likelihood." Continental, 729 F. Supp. at 1455. Such "allegations of future opportunities to commit fraud," based on the registration statement, "are not sufficient to support a finding of continuity or threat of continuity." Id.
Finally, nothing in Plaintiff's allegations suggests that Defendants' acts are a regular way of conducting Defendants' ongoing legitimate business. See H.J. Inc., 492 U.S. at 242-43, 109 S. Ct. at 2902; Clapp v. Greene, 743 F. Supp. at 278; Mead, 757 F. Supp. at 323 ("There is nothing to suggest that the enterprise . . . is in the business of or depends on the commission of acts of mail and wire fraud by its employees in the conduct of its day to day affairs."). Plaintiff's RICO claim includes no factual allegations from which one might infer that, after the November auction, Defendants committed the same alleged mail and wire fraud. Accordingly, Plaintiff's motion to amend the complaint to add a RICO claim is denied.
Because Plaintiff's motion to add Lamb, Pope and Kreitman as named individual defendants is based on their participation in the RICO violation alleged in the proposed fourth cause of action, Plaintiff's motion to add these individual defendants is denied.
Plaintiff also moves to amend his complaint to add a punitive damages claim. Defendants do not contend that the motion to add the punitive damages claim was made in bad faith or after undue delay. This Court, therefore, need only address whether the proposed claim as pleaded presents a colorable ground for punitive damages.
A claim for punitive damages is viable where the complaint alleges that the "wrong is aggravated by recklessness or willfulness, whether or not directed against the public generally." Roy Export Co. Establishment v. CBS Inc., 672 F.2d 1095, 1106 (2d Cir.), cert. denied, 459 U.S. 826, 74 L. Ed. 2d 63, 103 S. Ct. 60 (1982). See also Ostano Commerzanstalt v. Telewide Systems, Inc., 880 F.2d 642, 649 (2d Cir. 1989) ("punitive damages may be awarded when fraud is gross, wanton, or willful, whether or not directed at the public generally."). In paragraph 40 of the proposed amended complaint, Plaintiff states that the alleged misrepresentations at issue (concerning duplication of banknotes sold at the November auction) "were false at the time when made, and Christie either knew that they were false or was recklessly indifferent to their falsity." Am. Compl. P 40.
Because the proposed amended complaint alleges that Christie's fraud was either willfully or recklessly committed, Plaintiff's motion to add a punitive damages claim to the complaint is granted.
For the reasons set forth above, Plaintiff's motion to amend the complaint to add a RICO claim is denied. Plaintiff's motion to add Lamb, Pope and Kreitman as individual defendants is denied. Plaintiff's motion to amend the complaint to add a claim for punitive damages is granted.
All counsel are to attend a pretrial conference on October 27, 1992 at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.
Dated: New York, New York
October 7, 1992
Robert P. Patterson, Jr.