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MATHON v. FELDSTEIN

February 17, 2004.

HENRY W. MATHON, Plaintiff, -against- NEIL FELDSTEIN, VICTORIA LOMAX, DIANE HENSON, ARTHUR SALM, JAMES A. BRADLEY, ESQ., LESLIE LEVINE, ESQ., MARK S. REICH, ESQ., THE LAW FIRM OF ACKERMAN, LEVINE, CULLEN & BRICKMAN, LLP, WORLDWIDE AUTOMOTIVE, LLC, WORLDWIDE AUTOMOTIVE, LLC d/b/a NEIL HONDA & NEIL TOYOTA NEIL BUICK CORP., NEIL LINCOLN MERCURY CORP., "JOHN DOE" ONE, "JOHN DOE" TWO, "JOHN DOE" THREE, "JOHN DOE" FOUR, Jointly and Severally, Defendants


The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2

MEMORANDUM OF DECISION AND ORDER

Henry W. Mathon ("Mathon" or the "plaintiff"), proceeding pro se, commenced this action alleging, among other things, that the defendants violated 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Presently before the Court is a motion to dismiss the amended complaint by all of the defendants for failure to state a claim pursuant to Federal Rules of Civil Procedure ("Fed.R. Civ. P.") 12(b)(6). The defendants also request that the Court decline to exercise supplemental jurisdiction causes of action over the remaining causes of action which arise under state law pursuant to 28 U.S.C. § 1367(c)(3).

  I. BACKGROUND

 A. Factual Background

  The facts are taken from the amended complaint and are taken as true for the purposes of this motion.

  From 1999 through 2000, Mathon was employed by Neil Feldstein ("Feldstein") and Arthur Salm ("Salm") in various capacities at Feldstein's car dealerships. Sometime in the year 2000, Mathon resigned from his employment due to "abuse" by "Feldstein and Salm's right hand man." Am. Compl. ¶ 34.

  In early 2001, while Mathon was employed elsewhere, Feldstein contacted Mathon by phone and requested that Mathon return to working for him. Mathon agreed to work as a used car manager at Feldstein's Honda dealership. Page 3

  From mid-March, 2001 through the end of September, 2001, Mathon earned gross profits for the used car department in excess of $2 million and Mathon earned $90,000 in salary and commission. Despite his success, Feldstein, Salm and Diane Henson ("Henson"), removed Mathon from the used car department for reasons unknown to Mathon. Feldstein, Salm and Henson replaced Mathon with other individuals and Mathon became a showroom manager.

  After subsequent conversations with Feldstein and Henson by phone and in person, Mathon presented a plan relating to "Special Finance" in the automotive industry that he had been working on for the past three years. Feldstein and Mathon subsequently told Mathon to put together a business plan for the "Special Finance Entity" in which Mathon would be a 40% partner.

  The plaintiff claims that he entered into a "valid oral contract" with Feldstein, Henson and Salm by which the plaintiff would receive 40% and Feldstein, Salm and Honda would receive 60% of the newly created "Special Finance Entity." Feldstein represented by phone and in person that the "Special Finance Entity" would be implemented into Toyota, Buick, and Lincoln and would result in Mathon earning more than $500,000 per year. On or about November 8, 2001, Mathon, on his own time, began developing a business plan, advertising copy and layout, and a budget and estimate of start up costs which he subsequently presented to Feldstein, Henson and Honda on December 12, 2001. Page 4

  During this time, the plaintiff was upset by some "rumblings" about him, namely that "individuals who were under the control of the enterprise a/k/a Feldstein, Salm, Henson, Lomax, Honda, Toyota, Buick, Lincoln and John Does were using the wire to discredit [his] reputation." Am. Compl. ¶ 51. Feldstein and Henson told Mathon to disregard what he had heard and instead "put his efforts into a new business that would benefit him as partner." Am. Compl. ¶ 53.

  Feldstein and Honda agreed to the timing and directed Mathon to hire employees to implement the "Special Finance Entity." The "Special Finance Entity" produced gross sales in excess of $1 million with $120,000 in gross profit by February, 2002. However, Lomax, Feldstein, Henson, Salm and Honda took out 100% of the "expenses" out of the "Special Finance Entity" instead of the 60% originally agreed. Am. Compl. ¶ 70.

  In mid-February, 2002, Lomax presented Mathon with a promissory note and threatened Mathon that if he did not sign the note, Mathon would not receive 40% of the "Special Finance Entity." Am. Compl. ¶ 71. Lomax used "coercion and constraint," Am. Compl. ¶ 72, and Feldstein used "undue influence with persuasion, pressure and short of actual force, but stronger than mere advice that so overpowered Mathon's free will," Am. Compl. ¶ 73, to force Mathon sign the promissory note. The plaintiff claims that Feldstein and Lomax used "extortion by obtaining . . . the promissory note as it was induced by wrongful use of actual and threatened force, and fear under color of official right." Am. Page 5 Compl. ¶ 77.

  After coercing the plaintiff to sign the promissory note, the defendants systematically "looked to push Mathon out from the profitable [Special Finance] Entity," Compl. ¶ 79, by cutting the budget and terminating key employees who were of "varied ethnicities, female and age." Am. Compl. ¶ 82. The plaintiff was subsequently fired "[b]y wire." Am. Compl. ¶ 84. Mathon wanted to "take action," Am. Compl. ¶ 86, but was warned by various people that Feldstein would "destroy him," id., in the automobile industry. Mathon indicates that he was also fearful of Feldstein because Feldstein owned a firearm.

  On or about June, 2002, Lomax demanded payment of the promissory note by phone and mail. Mathon refused and maintained that he did not owe any money to Feldstein.

  In mid-October, 2002, Worldwide Automotive, LLC, d/b/a Neil Honda served the plaintiff with a summons and complaint to collect on the promissory note. See Worldwide Automotive, LLC d/b/a Neil Honda v. Henry W. Mathon, Index No. 02/014206 (Sup.Ct. Nassau County 2002) (J. Raab) (the "State Court Action"). That summons and complaint were prepared by the defendant Ackerman, Levine, Cullen & Brickman, LLP ("ALC&B") and signed by James A. Bradley ("Bradley), an attorney with ALC&B.

  Thereafter, Mathon spoke to Bradley and Levine, another attorney at ALC&B, by telephone about settling the case. Mathon claims that Bradley represented to and gave Page 6 Mathon the impression that such telephone conversations served as an answer to the State Court Complaint. Because Mathon had not filed an answer, Neil Honda entered a default judgment and Mathon was served with a subpoena in aid of the enforcement of judgment. Mathon then moved by order to show cause to vacate the judgment. Several court appearances followed, where, outside the courtroom, Bradley allegedly threatened Mathon about "what Feldstein was capable of." Compl. ¶ 115. Bradley sent a letter to Justice Raab, who was then the presiding Justice, requesting that he rule on Mathon's motion to vacate the default judgment. Mathon immediately responded to Bradley's letter.

  Mathon claims that "[b]y strong armed tactics and outright coercion, threats, extortion and collection of an unlawful debt by the practices of the employees and associates of the Enterprise through a pattern of racketeering activities," Am. Compl. ¶ 122, the defendants have failed and refused to honor any and all contracts with regard to the "Special Finance Entity." Mathon further ...


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