The opinion of the court was delivered by: MOTLEY
Defendants in this case have moved to dismiss plaintiff's only federal cause of action against them, a violation of the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO"), 18 U.S.C. § 1961 et seq., pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons provided below, this motion is granted. Plaintiff is also given ten days to amend his complaint so as to properly plead a diversity action.
Plaintiff Diamantis Giannacopolous is a financier who resides in Greece. Defendant Credit Suisse is a bank existing under the laws of the state of New York, and defendant Robert Menasche was at all relevant times a vice-president of defendant Credit-Suisse. Plaintiff alleges that on November 30, 1992, defendant Menasche, acting in his capacity as an officer of defendant Credit Suisse, fraudulently represented to plaintiff that a third company, Way Refining-Ergis Intercambio Commercial y Industrial Oil Division ("Way Refining"), was a substantial client of defendant Credit Suisse and a profitable company. Plaintiff alleges that he relied on this information in underwriting a $ 300,000 performance bond for Way Refining and that when that company breached its contract, he was forced to pay this amount. Plaintiff further alleges that on February 19, 1993, defendants communicated with a third party, Federal Plaza International Ltd., to seek a fee of $ 25,000 for providing the misleading information. Plaintiff claims that these allegations are enough to support claims under both RICO and a number of state law torts.
I. Applicable Standard on Motion to Dismiss
A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Moreover, when passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).
In order to state a claim under RICO, a plaintiff must establish seven elements: (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 commerce. Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984). Defendants argue that plaintiff has failed to allege facts sufficient to satisfy the third element.
B. Pattern of Racketeering Activity
The issue of what constitutes a "pattern of racketeering activity" was thoroughly addressed by the Supreme Court in the case of H.J. Inc. v. Northwestern Bell, 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). In that case, the Court indicated that a "pattern" consists of two or more acts which are both related and continuous.
To be related, the predicate acts alleged must 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." Id. at 240, 109 S. Ct. at 2901. In this case, there is no dispute that the alleged predicate acts, which are the sending of the November 30 letter fraudulently inducing plaintiff to underwrite a bond and the February 13 request for payment for having sent the letter, are related.
Continuity, the second constituent of the term "pattern", is a great deal more complex. In ...