C. 18 U.S.C. § 1965(a):
§ 1965(a) allows a civil RICO suit to be filed against any person "in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs." The only jurisdictional basis this section provides is if McLaughlin is "found" in the meaning of the statute in the Southern District, since for the purposes of venue his residence, since he is a state official, was in the Western District and he has no agent and transacts no affairs in the Southern District which would give rise to venue in that district. In Sunray Enterprises v. David C. Bouza & Assoc., 606 F. Supp 116, 119 (S.D.N.Y. 1984) the court noted that to be "found" under this section demands more than mere occasional physical presence: some acts relevant to the RICO claim must have occurred in the venue sought by plaintiff, some kind of business must have been conducted. Given this analysis, plaintiff cannot claim that McLaughlin is "found" in the Southern District. In addition, none of the other state defendants can be justifiably said to reside, be found, or transact business in the Southern District. The mere fact that the State of New York has some agencies in the Southern District is insufficient to confer venue; after all, the State has representatives in other states, as well as foreign nations. The mere fact that a state may have, for example, a bureau of tourism or industry in Utah, or even Japan, is insufficient to make those locales fit venue for a civil suit where a regional arm of the State is being sued for activities which took place entirely outside the venue sought.
The RICO claim is too poorly pleaded in any event to provide a sufficient basis for conferring venue on this court. For example, it appears from the Complaint, 32-45, that since the defendants are identified as the criminal enterprise, the RICO complaint fails to state a cause of action, as RICO requires "conduct through" an enterprise and, therefore, for a RICO complaint to be well-pled, the defendant and the enterprise must be distinct. U.S. v. Gelb, 881 F.2d 1155, 1164 (2d Cir. 1989), cert. den. 493 U.S. 994, 107 L. Ed. 2d 541, 110 S. Ct. 544 (1989). Bennett v. United States Trust Company of New York, 770 F.2d 308, 315 (2d Cir. 1985), cert. den. 474 U.S. 1058, 88 L. Ed. 2d 776, 106 S. Ct. 800 (1986); Cullen v. Margiotta, 811 F.2d 698, 729 (2d Cir. 1987), cert. den. sub. nom. Nassau County Republican Committee v. Cullen, 483 U.S. 1021, 97 L. Ed. 2d 764, 107 S. Ct. 3266 (1987). Here, the association-in-fact that is alleged to be the racketeering enterprise is identified as the defendants as well. See Complaint, 32-33.
Additionally, it appears doubtful that defendants have committed the necessary predicate acts for RICO to apply. The complaint alleges job discrimination and some pendant state law tort claims (e.g. false imprisonment, slander, etc); these are not included in the predicate acts listed in § 1961(1). Civil rights suits are not convertible to RICO merely because the plaintiff desires treble damages.
The only possible RICO violation is mail fraud. Plaintiff claims that defendants tampered with the U.S. Mails in having mail addressed to plaintiff's home somehow rerouted to the Elmira prison facility. Such fraud must be pleaded with particularity, a particularity lacking here. In any event, this is not a case involving use of the mails in the sense contemplated by current interpretation of the mail fraud statutes. "To be guilty of mail fraud under 18 U.S.C. § 1341 defendants must have used the mail as a means to obtain 'money or property by means of false or fraudulent pretenses, representations, or promises' for purposes of executing a scheme to defraud." O'Malley v. New York City Transit Auth., 896 F.2d 704, 706 (2d Cir. 1990). Interference with the mails is not mail fraud: it is a different offense, one for which there is no private cause of action.
Also, the doctrine of forum non conveniens applies to RICO actions. Transunion Corp. v. Pepsico, 811 F.2d 127, 129-130 (2d Cir. 1987). Here, the only contact with the Southern District is the fact that years after all of the events complained of transpired, one defendant out of many retired to this district. This is not a sufficient nexus to confer venue on this court.
Defendant's motion is granted, and the action ordered trasnferred to the Western District. A further reason for granting the defendant's motion is the preference that disputes be adjudicated in the localities in which they arose. Unfortunately, the racist and discriminatory actions which plaintiff claims were perpetrated against her are still features of the American landscape, and if they are to be eradicated these battles must be fought in the places where the actions complained of occurred. A lawsuit such as the instant one is about more than one plaintiff's search for redress; when a party seeks to vindicate a civil rights suit they are fighting not only for themselves but for the society-at-large. Thus, it is appropriate that these battles take place as close as possible to the area where the events complained of arose so that they can serve as an example to educate that community. For all these reasons, defendant's motion is granted.
December 18, 1992
New York New York
Constance Baker Motley