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HITCHCOCK v. WOODSIDE LITERARY AGENCY

July 28, 1998

JAYNE A. HITCHCOCK, Plaintiff,
v.
WOODSIDE LITERARY AGENCY, JAMES LEONARD, SUSAN DAY, JOHN LAWRENCE, RICHARD BELL, URSULA SPRACHMANN, AND JOHN DOE # 1 through JOHN DOE # 10, the preceding ten names being fictitious, the persons or parties intended being the persons doing business as Woodside Literary Agency and/or James Leonard, Susan Day, John Lawrence, Richard Bell, or Ursula Sprachmann, and RICHARD ROE # 1 through RICHARD ROE # 10, the last preceding ten names being fictitious, the persons or parties intended being the persons acting in concert with the named defendants and/or defendants John Doe # 1 through John Doe # 10 in connection with the matters described in the complaint, Defendants.



The opinion of the court was delivered by: GERSHON

OPINION AND ORDER

 GERSHON, United States District Judge:

 The original complaint in this action was filed on January 13, 1997. In an opinion and order, dated November 14, 1997, upon the motion of defendants John Lawrence-- who is appearing pro se, and who asserts that he appears on behalf of defendant Woodside Literary Agency as well-- James Leonard and Ursula Sprachmann, I dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. I also afforded the plaintiff the opportunity to file an amended complaint that could withstand a Rule 12(b)(6) motion. The plaintiff having now filed an amended complaint, the same defendants have again moved to dismiss pursuant to Rule 12(b)(6). Leonard and Sprachmann also move for dismissal on the ground of insufficiency of service of process pursuant to Rule 12(b)(5). All three of the moving defendants also seek the imposition of sanctions pursuant to Rule 11.

 THE AMENDED COMPLAINT

 The plaintiff, Jayne A. Hitchcock, is a citizen and resident of Maryland. P 2. *fn1" Hitchcock alleges, upon information and belief, that Woodside Literary Agency ("WLA") is an enterprise that has not been organized under the laws of any state, but that its principal place of business is New York. P 3. Woodside is alleged to be "owned, operated and directed principally by defendants James Leonard, John Lawrence and Ursula Sprachmann." P 3. Each of these defendants is alleged to be a citizen of New York or Florida. P 3. *fn2"

 Hitchcock identifies herself as "a professional author and a Teaching Assistant at the University of Maryland." P 6. In the course of her professional activities, as well as in her personal life, Hitchcock makes extensive use of the Internet. PP 7-8. Hitchcock alleges that the defendants also have made use of the Internet as a means to advertise the services of WLA. P 9. These advertisements solicit writing samples from "published and unpublished authors." P 9.

 On a date that she does not specify, Hitchcock responded to one of these advertisements by sending a sample of her writing to WLA. P 13. After a period of time that is also not specified, Hitchcock received a letter from WLA that praised her writing and solicited her to forward a full manuscript to WLA, along with a $ 75 "reading and market evaluation fee." P 13. Because she wanted "to be sure that said reply was not an isolated exception," Hitchcock sent a different sample of her writing to WLA using her maiden name. P 14. WLA responded to this second sample by sending Hitchcock a letter that was "virtually identical" to the letter sent in response to the first writing sample, save for soliciting a $ 150 "reading and market evaluation fee." P 14.

 At this point, Hitchcock concluded that WLA is not a legitimate literary agency. That is, WLA is "not in the business of representing authors in business discussions and negotiations with potential publishers," but is instead nothing but a scam for soliciting bogus fees from potential authors. PP 15-17. Deciding to expose WLA, Hitchcock posted various notices on the Internet declaring that "normal and legitimate literary agencies did not charge 'reading fees' or other fees in advance of making a sale; but that Woodside did so." P 18. Hitchcock alleges that the defendants retaliated by launching a campaign of harassment against her via the Internet. This harassment has taken many forms, including the posting of messages to the effect that Hitchcock is an author of pornography, the flooding of her e-mail accounts and the posting of offensive messages to third parties in such a manner as to make it appear that they were authored by Hitchcock. PP 21, 24, 26. Hitchcock also alleges that the defendants have made unspecified threats to have her "blacklisted" among publishers, P 23, and, most seriously, that they have placed her "in danger of imminent sexual assault, of other bodily harm and of her very life" by posting Internet messages in her name containing crude sexual propositions. P 25. As a result, Hitchcock alleges that she has suffered both personal and professional injury, necessitating therapy and considerable efforts to repair her business reputation. P 32.

 DISCUSSION

 In considering a motion to dismiss a complaint brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is "required to view all allegations raised in the complaint in the light most favorable to the non-moving party . . . and must accept as true all the factual allegations in the complaint." Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (citation and quotation omitted). A complaint will be dismissed if it sets forth no factual basis upon which the plaintiff would be entitled to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In other words, in order to avoid dismissal, a complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Cohen v. Litt, 906 F. Supp. 957, 962 (S.D.N.Y. 1995) (quotation omitted; emphasis in original).

 A. The RICO Claim.

 The amended complaint alleges that the defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1861 et seq., which is the only federal claim asserted by Hitchcock. To state a claim under the statute, a plaintiff must plead that the defendant violated RICO and that the plaintiff suffered injury as a result of such violation. 18 U.S.C. § 1964(c). Our Court of Appeals has directed that to satisfy the first prong of this statutory scheme, a plaintiff must allege

 
that a defendant, "employed by or associated with" an enterprise affecting interstate or foreign commerce, conducted or participated in the conduct of this enterprise's affairs "through a pattern of racketeering activity."

 S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996) (citing 18 U.S.C. § 1962(c); Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984)). Hitchcock has not met this pleading standard because ...


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