The opinion of the court was delivered by: MCAVOY
Presently before this Court is defendant Leon Weinstein's motion to dismiss plaintiffs' Complaint against him for failure to state a claim, Fed. R. Civil Pro. 12(b)(6), lack of subject matter jurisdiction, 28 U.S.C. § 1367(c)(3), improper venue and personal jurisdiction, 28 U.S.C. § 1391 (a-b). Plaintiffs, are suing defendant and others for allegedly violating the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), and for "fraud or mistake and breach of contract."
Plaintiff Gagliardi is presently incarcerated in New York due to an unrelated event, but was a Massachusetts resident prior to imprisonment. Plaintiff Tuberosa, like defendants Alice Ward, "Irish" Mickey Ward, George Ward, Salvatore Lonano, Joe Lake, and Leon Weinstein, is a Massachusetts resident.
Plaintiffs allege that they entered into an oral contract with boxer Mickey Ward whereby Gagliardi's Celebrity Boxing would serve as Ward's exclusive promoter while plaintiff Tuberosa would act as Ward's manager. Gagliardi does not state how much he was to receive in exchange for his services. However, Tuberosa alleges he was to receive one-third of Ward's purses. In the event that Ward fought in bouts not promoted by Celebrity Boxing, Gagliardi alleges that he and Celebrity Boxing were guaranteed one-fifth of such purses.
Since entering into the alleged contract, plaintiffs claim that Ward has fought in six fights, three of which were nationally televised. Plaintiffs allegedly received no compensation for Ward's participation in these events. They are suing defendant Weinstein, a Massachusetts resident, for allegedly interfering with the supposed contract.
Plaintiffs premise the instant action both on federal question and diversity jurisdictional issues. See 28 U.S.C. §§ 1331, 1332(a)(1). The Court will address the federal question, RICO, before turning to the diversity issue. If necessary, following the discussion of diversity, the Court will address the issue of supplemental jurisdiction. See 28 U.S.C. § 1367.
A. Defendant's Motion to Dismiss the RICO Claim
To state a RICO claim plaintiffs must plead seven elements: "that the defendant (2) through the commission of two or more acts (3)constituting a 'pattern' (4) of 'racketeering activity' (5) directly or indirectly invest in or maintain some interest in, or participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce." See Moss v. Morgan Stanley, Inc. 719 F.2d 5, 17 (2d Cir.), cert. denied, 465 U.S. 1025 (1984); 18 U.S.C. § 1964. After establishing these, plaintiffs must then allege that they were "injured in [their] business or property by reason of a violation of § 1962." See Id. (emphasis in original).
the "circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). Identify the identify the persons to whom and by whom the alleged misrepresentations were made.
In the instant case, plaintiffs' Complaint and Civil RICO Statement are defective under the preceding standards since they only speculate that 'discovery will show defendant was party to misrepresentations by mail, wire, and telephone.' Because plaintiffs neither specifically identify fraudulent circumstances nor the identity of persons who made and received any alleged misrepresentation, plaintiffs' Complaint is fatally flawed.
Additionally, this Court, in accordance with H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 232, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989), previously stated that when attempting to show a violation of mail and wire fraud statutes, plaintiff must establish two propositions. First, plaintiff must show that defendant participated in a scheme to defraud. See Segarra v. Messina, 153 F.R.D. 22, 27 (N.D.N.Y. 1994). ...