fortuitous interruption of the racketeering activity by the
conviction of the defendant, the embezzlement scheme alleged
here began and terminated with the 1996 re-election campaign.
Accordingly, this case is unlike other cases where courts have
found "a specific threat of repetition extending indefinitely
into the future." H.J. Inc. at 242, 109 S.Ct. 2893.*fn4 At
most, the allegations in the complaint, if proved, would
establish that Defendants "engaged in a serious, but discrete
and relatively short-lived scheme" to solicit illegal campaign
contributions by promising IBT funds to donors. See
Cofacredit, at 244. In light of the foregoing, the Court finds,
that with respect to each Defendant, Plaintiff has not alleged
facts sufficient to support open-continuity and accordingly has
not alleged sufficiently the existence of a pattern of
racketeering activity. Thus, Plaintiffs section 1962(c) claim
must be dismissed.
Defendants also move to dismiss Plaintiff's section 1962(d)
claim on the ground that Plaintiff has (i) failed to state a
claim under section 1962(c), and (ii) failed to plead facts
showing the existence of a RICO conspiracy. Section 1962(d)
prohibits any person from conspiring to violate any of the
substantive provisions of Section 1962(a)-(c). To state a claim
thereunder, a plaintiff must allege that "each defendant, by
words or actions, manifested an agreement to commit two
predicate acts in furtherance of the common purpose of the RICO
enterprise," Colony at Holbrook, Inc. v. Strata, G.C., Inc.,
928 F. Supp. 1224, 1238 (E.D.N.Y. 1996).
There can be no RICO conspiracy without a substantive RICO
violation. See Schmidt v. Fleet Bank, 16 F. Supp.2d 340, 353
(S.D.N.Y. 1998). "Thus, if the prior claims do not state a cause
of action for substantive violations of RICO, then a RICO
conspiracy claim necessarily does not set forth a conspiracy to
commit such violations." Id. (quoting Discon v. NYNEX Corp.,
93 F.3d 1055, 1064 (2d Cir. 1996), rev'd on other grounds,
525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998)); Katzman v.
Victoria's Secret Catalogue, 167 F.R.D. 649, 658 (S.D.N.Y.
1996) ("failure to adequately plead facts that would satisfy the
pleading requirements of 1962(a), 1962(b) or 1962(c) necessarily
dooms any claim that the [plaintiff] might assert arising under
1962(d)"). Accordingly, because Plaintiff has failed to assert a
substantive RICO claim for each Defendant, Plaintiffs claim
under section 1962(d) must be dismissed.
Malpractice Claims Against Cohen Weiss and Charny
The complaint asserts state law malpractice claims against
Cohen Weiss and Charny arising out of their alleged role in the
re-election campaign. The Court declines to exercise its
supplemental jurisdiction over these claims. Therefore, they
will be dismissed.
Motions for Sanctions Pursuant to Rule 11 of the Federal Rules
of Civil Procedure
Defendant Charles Blitz seeks sanctions under Rule 11 in
connection with his motion to dismiss.
As a threshold matter, a motion for sanctions under Rule 11 is
required to "be
made separately from other motions or requests and shall
describe the specific conduct alleged to violate subdivision b"
of the Rule. Fed. Rule Civ. P. 11. Defendant Blitz did not make
a separate motion for sanctions under Rule 11, nor has Defendant
Blitz described the specific conduct he alleges violates
subdivision b of Rule 11. Accordingly, the motion of Defendant
Blitz for sanctions under Rule 11 is denied. See Shiffrin v.
City of New York, No. 96 Civ. 7112, 1998 WL 849407, at *5
(S.D.N.Y. Dec. 4, 1998) (collecting cases).
Defendant Carey asserts, in a separately filed motion under
Rule 11, that sanctions are appropriate because Plaintiffs
complaint asserts a "closed-ended" pattern of racketeering
activity and the factual allegations are insufficient to support
a finding of such a pattern. Defendant Carey contends that,
because the Second Circuit has held that predicate acts
extending over a period of less than two years do not constitute
a substantial period of time for purposes of the close-ended
continuity test, the allegations in the complaint are not
warranted by existing law. In support of its motion for
Rule 11 sanctions, Defendant Carey cites cases in which courts have
imposed sanctions under Rule 11 in RICO actions, but those cases
involve deficiencies that go far beyond the failure of a
complaint to allege sufficiently closed-ended continuity.*fn5
As discussed herein, Plaintiffs complaint can be made out to
allege both closed-ended and open-ended continuity. While the
Court has determined that the complaint does not satisfy either
the closed-ended or open-ended continuity test for purposes of
stating a RICO cause of action, Plaintiffs allegations are
neither frivolous nor unwarranted by existing law. Accordingly,
the motion of Defendant Carey for sanctions under Rule 11 is
For the foregoing reasons the motions to dismiss of Defendants
Ron Carey, William Hamilton, Martin Davis, the Share Group,
Inc., Michael Ansara, Barbara Arnold, Ira Arlook, Charles Blitz
and Rochelle Davis are granted insofar as they are brought
pursuant to Federal Rule of Civil Procedure 12(b)(6) and denied
insofar as they are brought pursuant to Federal Rule of Civil
Procedure 12(b)(1). The motions of Defendants Ron Carey and
Charles Blitz for sanctions pursuant to Rule 11 of the Federal
Rules of Civil are denied. In addition, the Court declines to
exercise its supplemental jurisdiction over the state law claims
against Defendants Charny and Cohen Weiss.*fn6 Any
amendment of the complaint as of right shall be served and filed
within 30 days of the date of this Opinion and Order.