The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 3
MEMORANDUM OF DECISION AND ORDER
This case arises out of claims by the plaintiff Donald R. Wood, Jr.
("Wood" or the "plaintiff"), on behalf of himself and a class of
similarly situated persons, that the defendants the Village of Patchogue
("Patchogue" or the "Village") and forty eight of its present and former
officials and employees (collectively, the "defendants") created a scheme
under which they, under color of law, purported to enforce traffic and
other laws and collect
purported fines for alleged violations of those laws through a distinct
enterprise in violation of, among other things the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., ("RICO") and
42 U.S.C. § 1983 ("Section 1983"). Presently before the Court is the
defendants' motion to dismiss the first amended complaint pursuant to
Federal Rules of Civil Procedure ("Fed.R. Civ. P.") 12(b)(6) and 9(b)).
At the outset, the Court notes that the amended complaint contains more
than 75 pages and is in excess of 175 paragraphs. This complaint is very
similar, except for the names, dates, and several facts, to two other
class action complaints filed by plaintiff's counsel in this Court. See
Brewer v. Village of Old Field, et al., No. 00 Civ. 6072 and Robert M.
Coco, Jr. v. Incorporated Village of Belle Terre, No. 01 Civ. 5061.
The facts are taken from the amended complaint and are taken as true
for purposes of this motion.
The plaintiff commenced this action on January 16, 2001, alleging that
at some point prior to 1991, the Village transferred, or was legally
bound to transfer by approval of the majority of its voters, its police
functions to Suffolk County (the "County").
Despite having allegedly transferred all of its police authority to the
County, the plaintiff claims that in or about 1991, the Village, led by
then Mayor Franklin Leavandosky ("Leavandosky"), "hatched the Scheme" to
create a private police force known as the
constabulary. Am. Compl. ¶ 86. At that time, the Village submitted
proposed statements outlining the duties of its constables (the "Duties
Statements") to the Suffolk County Civil Services Department (the "Civil
Services Department"). These Duties Statements indicated that holding a
gun permit was a qualification of employment as a constable.
In a March 23, 1994 letter to Leavandosky, the Commissioner of the New
York State Division of Criminal Justice Services ("Division of Criminal
Justice Services"), denied the Village's request to register their
constables in the County's Peace Officer Registry. The plaintiff alleges
that this letter placed Leavandosky on notice that "a Village
constabulary would be in violation of New York Criminal Procedure Law
("CPL") § 2.10(1) as being contrary to local law and controlling court
decisions." Am. Compl. ¶ 31.
By letter dated November 14, 1996, Edward Ihne ("Ihne"), acting as the
"Commissioner of the Village" made another request to the Division of
Criminal Justice Services to allow the Village's constables to be
registered in the County's Peace Officer Registry. This request was also
denied. The plaintiff alleges that this letter also served to remind Ihne
that the Village was not a "`duly authorized law enforcement agency.'"
Am. Compl. ¶ 89.
By letter dated June 23, 1998, the Civil Services Department advised
then Mayor Stephan Keegan ("Keegan") that, among other things, the
Village must cease the practice of allowing employees to carry guns while
enforcing the Village Code. This letter also
demanded that the Village respond with a confirmation that this practice
had ceased. It is alleged that Keegan never responded to this letter and
that the Village constables continued to carry guns in the course of
By letter dated July 9, 1998, Keegan advised the Civil Services
Department that the constables only wrote tickets for Village Code
violations. In a letter dated March 2, 1999, the Civil Services
Department again stated that because constables are not police officers,
it was inappropriate for them to carry guns during the course of their
employment. This letter also indicated that its prior approval of the
Duties Statements allowing constables to carry guns was erroneous. The
Civil Services Department requested that the Village submit new Duties
Statements affirming that constables do not carry guns. The plaintiff
alleges that as of 1999, the Village had not submitted the Duties
Statements requested by the Department.
It is further alleged that in a December 2, 1999 grant application, the
Village of Patchogue Justice Court (the "Justice Court") indicated that
it had adjudicated more than 6600 vehicle and traffic law citations.
The plaintiff also alleges that "two widely publicized involving
similar schemes lawsuits [one in 1967 involving the Village of Port
Jefferson and one in 1997 involving the Village of Old Field] were
adjudicated." Am. Compl. ¶ 93. These lawsuits provided the defendants
with knowledge that "the establishment of a private police force by a
village who had previously conceded law enforcement jurisdiction to the
county was illegal." Id. The
plaintiff also alleges that a 1984 New York Court of Appeals decision also
held that actions by an unauthorized Village constabulary were void.
The plaintiff further claims that the defendants made
misrepresentations to the County by submitting certified annual payroll
statements to the Civil Service Department, certifying that the employees
performed solely the duties as approved in the Duties Statements.
However, the plaintiff alleges that the Chief Constables Kracht and
Tomeo, and Mayors Ihne and Keegan allowed and directed the constables to
perform duties outside their authority with respect to the enforcement of
vehicle and traffic laws.
A. As to the Plaintiff Donald R. Wood, Jr.
On November 25, 2000, Wood was driving in Patchogue when he was
detained by Constable F. Taldone ("Taldone") for making an illegal right
turn. At that time, Taldone was driving a vehicle with a flashing red
emergency light, wearing a police uniform with a badge and carrying a
gun. Wood claims that Taldone held himself out as a police officer and
issued to Wood a "Uniform Traffic Ticket" (the "Ticket"). The Ticket
indicated that it was issued by the State of New York Department of Motor
Vehicles and that the police agency issuing the ticket was the Village.
This Ticket ordered the plaintiff to appear in the Patchogue Village
Court (the "Village Court").
Wood claims that on or about December 3, 2000 and January 4, 2001,
Village Clerks Nancy Auer ("Auer"), Gail Reilly ("Reilly"), and Deborah
(collectively, the "Village Clerks"), mailed written notices to him
directing him to appear in the Village Court regarding the citation.
These notices also informed Wood that he could plead guilty and pay a
fine to the Justice Court. This fine included a "Mandatory N.Y.S.
Surcharge," payable to "Justice Court, Village of Patchogue." After
allegedly being threatened that his driving privileges would be taken
away, Wood entered a plea of guilty and paid a fine under protest.
B. As to the Proposed Class
As stated above, the plaintiff purports to brings this action on behalf
of himself and a class of similarly situated persons. The plaintiff
claims that from 1991 to the date this action was commenced (the "Class
Period"), the defendants, which include the village constables, village
officials and village clerks, engaged in a scheme
that is designed to detain individuals traveling
through Patchogue, issue purported New York traffic
tickets, also called "appearance tickets," hold
village-court sessions to adjudicate the purported
traffic tickets that constituted acts outside the
village court's jurisdiction, assess unlawful fines
and/or court costs, threaten consequences if the
unlawful fines were not paid, and collect unlawful
fines and costs, all to the personal benefit of the
[d]efendants (the "Patchogue Private Police Force
Scheme" or the "Scheme").
The plaintiff claims that the Scheme was managed by Justices Yannacone
and O'Connell, Mayors Keegan and Ihne, and Chief Constables Kracht and
Tomeo. Other participants in the scheme include Village Constables Louis
Tomeo ("Tomeo"), F. Taldone
("Taldone"), Jeffrey T. Kracht ("Kracht"), Deidre O'Brien ("O'Brien"),
Jerry Avellino ("Avellino"), Salvatore Barbara ("Barbara"), Nicholas
Chirillo ("Chirillo"), Alexander Costello ("Costello"), Frances Cuozzo
("Cuozzo"), Richard DeBetta ("DeBetta"), Barry Donadio ("Donadio"),
Michael Donovich ("Donovich"), Daniel Durnick ("Durnick"), Scott Eckert
("Eckert"), Erick Everly ("Everly"), Richard Fiorucci ("Fiorucci"), Casto
Gonzalez ("Gonzalez"), William Hart ("Hart"), Donald Henderson
("Henderson"), Ranald Holcombe ("Holcombe"), Gerald Lenox ("Lenox"),
William Logan ("Logan"), Karl Makinen ("Makinen"), Peter Marks
("Marks"), Richard Matson ("Matson"), Erick McFarlan ("McFarlan"), James
Nudo ("Nudo"), Brian Panuccio ("Panuccio"), Kevin Peterson ("Peterson"),
Susan Ralph ("Ralph"), Stephen Ramsland ("Ramsland"), Ferdinando
Sabellichi ("Sabellichi"), Cosmo Stoia ("Stoia"), Luis Velez ("Velez"),
Basil Wattley ("Wattley"), Joseph Wood ("Wood"), and Nicholas Zambelli
("Zambelli") (collectively, the "Village Constables"); and Village Clerks
Mary Pontieri ("Pontieri"), Rose Marie Berger ("Berger"), Richard
Collocola ("Collocola"), Gail Reilly ("Reilly"), Nancy Auer ("Auer"),
Deborah Gustam ("Gustam") (collectively, the "Village Clerks").
The plaintiff alleges that the Village Constables at all times knew
that the Village had irrevocably assigned all of its police authority to
Suffolk County but nevertheless continued to represent themselves as
police officers and wore uniforms, badges, insignia, and other
paraphernalia which provided the impression that they were acting with the
authority of a legitimate police department. The plaintiff alleges that
during the Class Period, the constables issued in excess of 13,000
appearance tickets for vehicle and traffic law violations which were
similar to the above mentioned Ticket received by Wood. In addition, the
plaintiff further alleges that the Village Constables obtained civilian
weapons permits "even though their actual intention was to carry those
guns as if they were law enforcement officials acting under color of
state law," Am. Compl. ¶ 73. Moreover, although the Village Constables
did not undergo training at police academy or hold service certification
to perform law-enforcement functions, the Village purchased weapons for
In addition, the plaintiff claims that "on thousands of occasions" the
Village Clerks and former clerks mailed communications regarding the
citations and/or appearance tickets, Am. Compl. ¶ 154, and used the
wires in furtherance of the Scheme. Finally, the plaintiff alleges that
Justices Yannacone and O'Connell adjudicated the hearings and unlawfully
collected fines for the alleged violations of the vehicle and traffic
The plaintiff claims that all of the defendants violated
18 U.S.C. § 1962(b) and (d), the RICO statute; Berger, Pontieri,
Collocola, Auer, Gustam, Reilly, Yannacone, O'Connell, Keegan, Ihne,
Kracht and Tomeo violated 18 U.S.C. § 1962 (c)); and all of the defendants
violated 42 U.S.C. § 1983 ("Section 1983"). The plaintiff also brings a
New York State law cause of action for Money Had and Received against
Berger, Pontieri, Collocola, Auer, Gustam, Reilly, Yannacone, Keegan,
Ihne, Kracht, and Tomeo. Presently before the Court
is a motion by the defendants to dismiss the complaint pursuant to
Rules 12(b)(6) and 9(b).
In reviewing a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the Court should dismiss the complaint only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his complaint which would entitle him to relief. King v. Simpson,
189 F.3d 284, 287 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d
Cir. 1996). The court must accept as true all of the factual allegations
set out in the complaint, draw inferences from those allegations in the
light most favorable to the plaintiff, and construe the complaint
liberally. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000)
(citing Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198,
202 (2d Cir. 1999)). In its analysis under Rule 12(b)(6), the court "must
confine its consideration to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated in the complaint
by reference, and to matters of which judicial notice may be taken."
Tarshis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell, Inc.,
945 F.2d 40, 44 (2d Cir. 1991)). The issue is not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims. Villager Pond, Inc. v. Town of Darien,
56 F.3d 375, 378 (2d Cir. 1995).
Rule 9(b) sets forth additional pleading requirements with respect to
allegations of fraud. The reason for these requirements are three-fold:
(1) to provide the defendant with fair notice of the claims against her;
(2) to protect the defendant from harm to her reputation or goodwill as a
result of unfounded allegations of fraud; and (3) to reduce the number of
strike suits. See DiVittorio v. Equidyne Extractive Indus., Inc.,
822 F.2d 1242, 1247 (2d Cir. 1987). "[C]onclusory allegations that
defendant's conduct was fraudulent or deceptive are not enough." Decker
v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir. 1982). To satisfy
the pleading requirements of Rule 9(b), the plaintiff must plead the
circumstances of the fraud with particularity and that the defendant
acted with fraudulent intent. Fed.R.Civ.P. 9(b).
a. Pleading the Circumstances of Fraud
Rule 9(b) requires that "[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with
particularity." Fed.R.Civ.P. 9(b). In order to satisfy this requirement,
the complaint must, "`(1) specify the statements that the plaintiff
contends were fraudulent, (2) identify the speaker, (3) state where and
when the statements were made, and (4) explain why the statements were
fraudulent.'" Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175
(2d Cir. 1993)). As such, this requires the plaintiff
to identify which defendant caused each allegedly fraudulent statement to
be spoken, written, wired or mailed, and to whom the communication was
made; when the communication was made; and how it advanced the fraudulent
scheme. McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992).
However, "[i]n cases in which the plaintiff claims that mail and wire
fraud were in furtherance of a larger scheme to defraud, the
communications themselves need not have contained false or misleading
information." Calabrese v. CSC Holdings, Inc., 2003 WL 22052824, at *6
(E.D.N.Y. Aug. 13, 2003). Under these circumstances, Rule 9(b) "only
requires the plaintiff to delineate, with adequate particularity, the
specific circumstances constituting the overall fraudulent scheme." Id.
(citations omitted); see also ...