United States District Court, N.D. New York
August 15, 2005.
STEVEN HALL, Plaintiff,
FR. DAVID TRESSIC; HOWARD J. HUBBARD; ROMAN CATHOLIC DIOCESE OF ALBANY; KAREN HOOSE; ISRAEL TORRO; MICHAEL COSTELLO; and JANET CHARNEY, Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM DECISION and ORDER
Plaintiff Steven Hall ("plaintiff" or "Hall") brings suit
alleging that defendants acted to cover-up sex abuse by a local
priest, defendant Fr. David Tressic ("Father Tressic"). Father
Tressic was employed by defendant Roman Catholic Diocese of
Albany (the "Diocese") under the supervision of defendant Howard
J. Hubbard ("Bishop Hubbard"). Defendants Michael Costello
("Costello"), and Janet Charney ("Charney"), are attorneys who
represented these defendants during the relevant time period.
Defendant Karen Hoose ("Hoose") worked as a secretary to Father
Tressic at Sacred Heart Church in Gloversville, New York.
Defendant Israel Torro ("Officer Torro") is a New York State
Trooper who worked on an investigation of plaintiff that occurred
during the series of events which make up this case.
Hall asserts nine causes of action. He only asserts one federal
claim and it is under the civil Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. §§ 1961-6818. He also
asserts eight state law claims against the various defendants:
(1) malicious prosecution and/or false arrest; (2) intentional
infliction of emotional distress; (3) negligence; (4) common law
fraud (in negotiations); (5) libel; (6) breach of an oral
contract; (7) sex abuse; and (8) breach of fiduciary duty.
Father Tressic, Bishop Hubbard, the Diocese, and Costello, move
pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) to dismiss the
complaint. Hoose and Charney move on those grounds and pursuant to Fed.R.Civ.P. 12(c). Torro did not make
a motion. Plaintiff opposes. The parties did not request oral
argument. Therefore, the motions were considered on the submissions.
Unless otherwise noted, the following facts are taken from the
complaint and plaintiff's RICO statement submitted pursuant to
N.D.N.Y. Local Rule 9.2.*fn1
At the time Hall met Father Tressic in 1996, he was homeless,
destitute, and involved in drugs and prostitution. (Docket No. 1,
Complaint at ¶ 24.) ("Complaint at ___".) Father Tressic
"befriended [Hall] and eventually provided room and board, as
well as a menial maintenance position for [him] in . . . the
rectory of Sacred Heart for approximately four years, or from
1998-2002." Id. at ¶ 26. Father Tressic also told plaintiff
that he was putting money aside for his future and continuing
educational costs. Id. at ¶ 30. During this time, plaintiff
attended college to become a teacher. While the nature of the relationship between Hall and Father
Tressic is disputed in that sometimes it is portrayed as a
father-son relationship, plaintiff claims that he was sexually
abused and molested at various times during the four years he
lived and worked at Sacred Heart. Id. at ¶ 31-33. Plaintiff did
not condone or permit the activity, but rather resisted without
leaving the situation because he was afraid to lose the financial
security Father Tressic provided. Plaintiff adds that Bishop
Hubbard knew about Father Tressic's sexual orientation, and, in
fact, condoned and permitted his lifestyle. Id. at ¶ 34.
In August of 2002, Hall sought to change his situation. He
accused Father Tressic of sexual abuse and attempted to negotiate
a civil settlement which would provide him with some money. Id.
at ¶ 35. He met with Father Tressic, Bishop Hubbard, and William
Przyluch, from Catholic Charities, in early September; and then
the two defendants in October of 2002, to discuss his claims.
Id. at ¶¶ 40, 47. "In [the October] meeting, Bishop Hubbard
stated that Father Tressic was to continue to pay plaintiff's
food and rent stipend at State University of New York at Cortland
until the civil matter was resolved or settled. Id. at ¶ 47.
Father Tressic did pay these expenses through July of 2003. Id.
at ¶ 51. In early November of 2002, there was another meeting
when plaintiff accepted a $75,000 settlement offer from Father
Tressic as payment in full and final satisfaction of any and all
claims or possible causes of action. Id. at ¶¶ 48, 56. The
$75,000 offer was not memorialized until March 19, 2003. Id. at
¶ 52. Costello drafted the Settlement and Release Agreement and
mailed it to plaintiff. Id. at ¶ 263.
In May of 2003, Father Tressic, now represented by Charney
instead of Costello, filed criminal charges against Hall for
attempted felony extortion. Id. at ¶ 54. The charge was based
on allegations that plaintiff repeatedly threatened to go to the
media with his story if he did not receive some money. Plaintiff opines that the
filing of this charge, along with charges against two others also
claiming sexual abuse, was done in an effort to make the
defendants appear proactive in handling sex abuse matters. Id.
at ¶¶ 60-63, 66. At the time plaintiff was unaware of the
criminal charges filed against him and continued to negotiate a
Officer Torro began an investigation into the extortion charges
against plaintiff. This involved working with Hoose, the church
secretary, in secretly tape recording conversations with
plaintiff. (Docket No. 6, RICO Statement at ¶ 2(D).) ("RICO
Statement at ___".) Costello and Charney also participated in the
continuing negotiation process. (Complaint at ¶¶ 52, 83.)
Plaintiff asserts that during this time period of the
investigation, May 2003 through August 2003, he was regularly
told that the settlement money was forthcoming and relied on
those statements in managing his finances. He concludes that the
overlapping investigation and negotiations demonstrate both fraud
in negotiating, and entrapment in investigating.
On August 19, 2003, Officer Torro took Hall "into custody and
interrogated" him concerning the alleged extortion. The interview
lasted an hour and was taped. Id. at ¶¶ 80, 81. The next day
plaintiff attended a scheduled mediation meeting where he was
informed that Fr. Tressic did not intend to pay the $75,000
settlement. Id. at ¶¶ 83-86. Plaintiff concluded that the
meeting was a sham and attempted to file charges against Father
Tressic, but Officer Torro would not permit it. Id. at ¶ 87.
Hall was "ultimately arrested and indicted by a Fulton County
Grand jury on or about October 6, 2003 with a crime of Attempted
Grand Larceny in the Second Degree." Id. at 37. Plaintiff
testified before the Grand Jury for three hours. Id. at ¶ 96.
He is unsure, but believes that the defendants testified against him and alleges
that they committed perjury. Id. at ¶ 97.
Shortly thereafter, in November 2003, plaintiff was forced to
withdraw from school. Id. at ¶¶ 95, 281. Having criminal
charges brought against him, and being indicted on a felony,
mandated that plaintiff withdraw from the student teaching
position at which he was working. Id. at ¶¶ 119, 282, 283.
Plaintiff notes that the rules and policies regarding becoming a
teacher have changed recently, and because of the loss of the
student teacher position, he is now required to retake many
college credits. Id. at ¶¶ 122, 285.
On February 25, 2004, the indictment against Hall was dismissed
in the "interest of justice." Id. at ¶ 115. In dismissing the
claim, the judge noted the weaknesses in the government's case:
Hall never actually got any money; the negotiations that occurred
tended to negate the requisite criminal intent; Father Tressic
was reluctant to testify; punishment would be unlikely to effect
Hall's character; and the crime was unlikely to be repeated.
However, the judge made a point of noting the propriety of the
indictment. The record before the Grand Jury was unusually full
and complete, and the defendant's testimony was both ambiguous
and harmful to his interests. (Decision and Order Fulton County
Court, Indict. No. 2003-92, Hon. Polly Hoye, at 3, 5.)
Plaintiff filed the instant action in August of 2004. In
stating his RICO claim, plaintiff alleges that defendants have
acted in furtherance of a "scheme to protect predatory priests
and other clergy from criminal and civil prosecution, to maintain
or increase charitable contributions and/or avoid public
scandal."*fn2 Id. at ¶ 243. III. DISCUSSION
A. Motion to Dismiss
"On a Rule 12 motion to dismiss, the court must accept the
factual allegations contained in the complaint, and the RICO
statement where RICO claims are asserted, as true, and draw all
reasonable inferences in favor of the plaintiff." Nasik Breeding
& Research Farm Ltd. v. Merck & Co., 165 F. Supp. 2d 514, 525
(S.D.N.Y. 2001). The court's function is "not to weigh the
evidence that might be presented at trial but merely to determine
whether the complaint itself is legally sufficient." Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the
defendants' present motion will only be granted if it appears
that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief. See Conley v. Gibson,
355 U.S. 41, 45-46 (1957); see also Goldman,
754 F.2d at 1065.
B. § 1962(c) RICO Claim
To properly allege a RICO claim, plaintiff must set forth
allegations which demonstrate a substantive violation of
18 U.S.C. § 1962, and then demonstrate that the alleged injury
occurred as a result of that violation. See 18 U.S.C. § 1964(c)
("injured in his business or property by reason of a violation of
section 1962 of this chapter.")
Section 1962 creates a private right of action against:
Any person who: (a) invests or otherwise uses,
directly or indirectly, income derived from a pattern
of racketeering activity to acquire an interest in or
to establish or operate an enterprise engaged in
interstate commerce; (b) acquires or maintains,
directly or indirectly, an interest in or control of
such an enterprise through a pattern of racketeering
activity; (c) is employed by or associated with such
an enterprise and conducts or participates, directly or indirectly, in the conduct
of its affairs through a pattern of racketeering
activity; or (d) conspires to do any of the
18 U.S.C. § 1962 (1988). In short, a substantive RICO claim
"requires (1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co.,
Inc., 473 U.S. 479
, 496 (1985).
"RICO defines `pattern of racketeering activity' as requiring
`at least two acts of racketeering activity' committed in a 10
year period. . . . To establish a pattern, a plaintiff must also
make a showing that the predicate acts of racketeering activity
by a defendant are `related, and that they amount to or pose a
threat of continued criminal activity.'" Cofacredit, S.A. v.
Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d Cir. 1999)
(quoting 18 U.S.C. § 1961(5); H.J., Inc. v. Northwestern Bell
Tel. Co., 492 U.S. 229, 239 (1989)).
Thus, to demonstrate a pattern of racketeering activity, a
plaintiff begins by alleging that each defendant engaged in two
or more predicate acts. G-I Holdings, Inc. v. Baron & Budd,
238 F. Supp. 2d 521, 537 (S.D.N.Y. 2002) (citing Citadel Mgmt., Inc.
v. Telesis Trust, Inc., 123 F. Supp. 2d 133, 155 (S.D.N.Y.
2000); Lakonia Mgmt., Ltd. v. Meriwether, 106 F. Supp. 2d 540,
550 (S.D.N.Y. 2000)). "Those offenses which may serve as
predicate acts for a RICO claim are exclusively listed in . . .
18 U.S.C. § 1961(1)." Red Ball Interior Demolition Corp. v.
Palmadessa, 874 F. Supp. 576, 586 (S.D.N.Y. 1995). Section
1961(1) defines "racketeering activity" to include a list of
criminal offenses, which are in turn defined by federal and state
law. Cofacredit, 187 F.3d at 242; King v. Lasher,
572 F. Supp. 1377, 1382 (S.D.N.Y. 1983). More specifically, according to
(1) "racketeering activity" means (A) any act or
threat involving murder, kidnaping, gambling, arson,
robbery, bribery, extortion, dealing in obscene
matter, or dealing in a controlled substance or
listed chemical (as defined in section 102 of the
Controlled Substances Act), which is chargeable under State law and punishable by
imprisonment for more than one year; (B) any act
which is indictable under any of the following
provisions of title 18, United States Code.
18 U.S.C. § 1961 (2000). Thereafter, in sections (1)(B) and (C),
the statute lists at least fifty federal statutes of which a violation would
constitute racketeering activity. Sections (1)(D)(G) list additional
racketeering activities in the areas of securities, reporting of financial
transactions, immigration, and terrorism.
Plaintiff characterizes defendants' conduct as violating four §
1961 statutes: the Hobb's Act, 18 U.S.C. § 1951; the Protection
of Children Against Sexual Exploitation Act, 18 U.S.C. § 2251;
and the wire and mail fraud statutes, 18 U.S.C. §§ 1341,
1343.*fn3 In the end, the allegations do not allege
sufficient § 1961 predicate acts to demonstrate a pattern of
racketeering activity under § 1962. Moreover, to the extent that
the complaint alleges RICO activity, the acts cannot be
considered the proximate cause of plaintiff's injury.
Before considering the plaintiff's claim, it must be noted that
the complaint and RICO statement list numerous activities engaged
in by members of the Catholic church and law enforcement
officials in handling allegations of sexual abuse by priests in
an attempt to cover up such abuse. The extensive and colorful
portrayal of the social and political backdrop to defendants'
alleged conduct is essentially irrelevant to the facts of this
case. RICO requires that plaintiff demonstrate defendant conduct
in a pattern of racketeering that injures the plaintiff. "The
focus of section 1962(c) is on the individual patterns of
racketeering engaged in by a defendant, rather than the
collective activities of the members of the enterprise, which are proscribed by section 1962(d)." United
States v. Persico, 832 F.2d 705, 714 (2d Cir. 1987).
Furthermore, plaintiff has listed numerous defendant acts and
struggled to categorize them as RICO predicate acts.*fn4 To
be clear, the only allegations that are relevant to support the
RICO claim are those actually engaged in by the instant
defendants that violate § 1961 and may be related to the
1. Pattern of Racketeering Activity
a. Hobbs Act
Plaintiff asserts that defendants violated the Hobbs Act, which
"penalizes, inter alia, `whoever . . . obstructs, delays, or
affects commerce . . . by robbery or extortion . . . or commits
or threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of
this section.'" Kimm v. Chang Hoon Lee, Civ. Act. No.
04-CV-5724, 2005 U.S. Dist. LEXIS 727, at *19 (S.D.N.Y. Jan. 13,
2005) (quoting 18 U.S.C. §§ 1951(a)). "Extortion, in turn, is
defined as `the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.'" Id.
(quoting 18 U.S.C. § 1951(b)(2)). There are no allegations in the complaint that demonstrate robbery, extortion, or threats of
violence on the part of the defendants.
b. Protection of Children Against Sexual Exploitation Act
Plaintiff asserts that defendants' conduct violates the
Protection of Children Against Sexual Exploitation Act of 1997,
18 U.S.C. § 2251. The statute provides for fines and imprisonment
for persons who exploit children. Despite plaintiff's great
efforts to connect the allegations of this case to the
allegations of persons alleging sex abuse of children by members
of the Catholic clergy, there are simply no such allegations
regarding the defendants or any children in the facts and
circumstances of this case. Plaintiff has not demonstrated that
any defendant conduct may be considered actionable under this
c. Wire Fraud
Plaintiff asserts that defendants made misrepresentations
during the course of the settlement negotiations, which were
actually a scheme to defraud. Plaintiff adds that the defendants
regularly used telephone lines to communicate, and also to
secretly tape record conversations with plaintiff. The use of the
phone lines is noted to provide a basis for plaintiff's assertion
of wire fraud as a predicate act. See 18 U.S.C. § 1961(1)
(listing wire fraud, 18 U.S.C. § 1343)).
However, "the wire fraud statute requires that the defendant
communicate by wire in `interstate or foreign commerce' in
furtherance of a scheme to defraud." Cofacredit,
187 F.3d at 243 (citing Smith v. Ayres, 845 F.2d 1360, 1366 (5th Cir. 1988)
("Purely intrastate communication [is] beyond the statute's
reach."); United States v. De Biasi, 712 F.2d 785, 791-92 (2d
Cir. 1983)). There are no allegations of any interstate phone
calls, nor do the facts alleged allow for an inference that any
calls were interstate or foreign calls. d. Mail Fraud
Mail fraud is defined as the use of the mail to further "any
scheme or artifice to defraud, or for obtaining money or property
by means of false or fraudulent pretenses." 18 U.S.C. § 1341
(2000). Plaintiff asserts that defendants made misrepresentations
during the course of the settlement negotiations, which were
actually a scheme to defraud. More specifically, the scheme to
defraud involved defendants pretending to negotiate a settlement
with plaintiff while actually trying to set him up for extortion
charges. Plaintiff adds that the defendants regularly used the
mail to communicate, to provide a basis for plaintiff's assertion
of mail fraud as a predicate act. (Complaint at ¶ 275.); see
18 U.S.C. § 1961(1) (2000) (listing mail fraud, 18 U.S.C. § 1341)).
"To state a RICO claim against a particular defendant based on
allegations of mail and wire fraud, the complaint must allege
that the defendant participated in at least two acts of mail or
wire fraud." First Interregional Advisors Corp. v. Wolff,
956 F. Supp. 480, 485 (S.D.N.Y. 1997) (citing Mills v. Polar
Molecular Corp., 12 F.3d 1170, 1176 (2d Cir. 1993)). The
allegations "must meet the rigorous pleading requirements of Rule
9(b) of the Federal Rules of Civil Procedure." Bologna v.
Allstate Ins. Co., 138 F. Supp. 2d 310, 321 (E.D.N.Y. 2001).
Rule 9(b) provides: "In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with
particularity." Fed.R.Civ.P. 9 (b) (2000) "To specify acts of
alleged wire and mail fraud with the necessary particularity, the complaint
should contain evidence of the content, time, place, and speaker of each
alleged mailing or wire transmission." Id. (citing Ouaknine v. MacFarlane,
897 F.2d 75, 79 (2d Cir. 1990)).
The complaint lists only one use of the mail by one defendant.
Costello mailed a copy of the settlement agreement to plaintiff
in March of 2003. (Complaint at ¶ 275.) Thus, plaintiff's fraud allegations support a sparse mail fraud
claim which, however elaborated by other non-RICO allegations, is
insufficient to satisfy the predicate act requirement of at least
two predicate acts that form a pattern of racketeering activity.
e. RICO Pattern
While the allegation of a solitary mailing by a lone defendant
as part of a fraudulent scheme is not sufficient to trigger
liability and federal jurisdiction under RICO, it will be assumed
arguendo that given the opportunity to amend, plaintiff could
have alleged additional mailings with particularity. Plaintiff
still would not be able to allege a sufficient pattern of
racketeering activity because "[p]laintiff must plead that at
least two or more predicate acts are related and that they amount
to, or pose a threat of continuing criminal activity."
Greenstone Roberts Advertising/Florida v. Gold Star Cruises,
951 F. Supp. 402, 402-403 (E.D.N.Y. 1997) (citations omitted);
Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 97 (2d
Cir. 1997); see H.J., Inc., 492 U.S. at 239.
To satisfy the requirement of continuity, a plaintiff
in a RICO action must allege `either an `open-ended'
pattern of racketeering activity (i.e., past criminal
conduct coupled with a threat of future criminal
conduct) or a `closed-ended' pattern of racketeering
activity (i.e., past criminal conduct `extending over
a substantial period of time').
Greenstone Roberts Advertising/Florida, 951 F. Supp. at 402-403
(quoting G.I.C.C. Capital Corp. v. Technology Finance Group,
Inc., 67 F.3d 463, 466 (2d Cir. 1995)).
The nature of the allegations here, fraud in negotiating a
settlement agreement, are not the sort which demonstrate an
inherent threat of future criminal activity. H.J., Inc.,
492 U.S. at 242-43. Furthermore, the duration of the alleged scheme
is simply too short to constitute a closed-ended RICO pattern. The whole
scheme spanned from August 2002 through August 20, 2003, when plaintiff
learned of the charges against him, and that Father Tressic refused to settle. This span of one year is not of
sufficient duration to state a closed pattern of RICO activity.
As the Second Circuit noted last year, this Circuit "has never
found a closed-ended pattern where the predicate acts spanned
fewer than two years." First Capital Asset Mgmt. v. Satinwood,
Inc., 385 F.3d 159, 181 (2d Cir. 2004) (citing First Capital
Asset Mgmt. v. Brickelbush, Inc., 150 F. Supp. 2d 624, 634 & nn.
37-41 (S.D.N.Y. 2001); Mason Tenders Dist. Council Pension Fund
v. Messera, Civ. Act. No. 95-CV-9341, 1996 U.S. Dist. LEXIS
8929, at *20-21 (S.D.N.Y. June 25, 1996)).
Despite plaintiff's apparent opinion to the contrary, "acts . . .
[that] are unrelated to the predicate acts which allegedly
injured plaintiff . . . cannot be considered as part of the
activity to extend the scope of the pattern." Shamis v.
Ambassador Factors Corp., Civ. Act. No. 95-CV-9818, 1997 U.S.
Dist. LEXIS 12241, 43-44 (S.D.N.Y. Aug. 18, 1997) (citations
omitted.) The decades of sex abuse cover-up activity by Catholic
and civil authorities can not be tagged onto the conduct of the
instant defendants in relation to the plaintiff in this case.
Plaintiff has not set forth facts to demonstrate that the acts
alleged could demonstrate a pattern of racketeering activity for
2. Proximate Causation
"Congress did not deploy RICO as an instrument against all
unlawful acts. It targeted only predicate acts catalogued under
section 1961(1). Admittedly, RICO is to be read broadly to effect
its purpose. Its purpose, however, is to target RICO activities,
and not other conduct." Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21, 25 (2d Cir. 1990) (citation omitted). "Any
recoverable damages occurring by reason of a violation of §
1962(c) will flow from the commission of the predicate acts."
Sedima, 473 U.S. at 497. Plaintiff has not demonstrated that
predicate activity caused his injury. "The Second Circuit has carefully addressed the `causation'
element due to the proliferation of "creative pleading" by
plaintiffs who seek to take advantage of RICO's generous remedies
. . . Specifically, a plaintiff must show that his injury was
`caused by a pattern of racketeering activity violating section
1962 or by individual RICO predicate acts.'" Chandradat v.
Navillus Tile, Inc., Civ. Act. No. 03-CV-10093, 2004 U.S. Dist.
LEXIS 19483, at *10-11 (S.D.N.Y. Sept. 28, 2004) (citations
omitted). "The requirement in § 1964(c) that a civil RICO
plaintiff show that it was injured in its business or property
`by reason of' the defendant's RICO violation means that the
plaintiff must plead and prove that the violation not only was
the logical, or `but for,' cause of the injury but also was its
legally cognizable, or proximate, cause." Ideal Steel Supply
Corp. v. Anza, 373 F.3d 251, 257 (2d Cir. 2004); Lerner v.
Fleet Bank, N.A., 318 F.3d 113, 120 (2d Cir. 2003); Hecht,
897 F.2d at 23 ("By itself, factual causation (e.g., `cause-in-fact'
or `but for' causation) is not sufficient.")
The causal nexus must logically connect plaintiff's injury with
defendants' overt § 1961 predicate acts. Hecht, 897 F.2d at 25.
Plaintiff has failed to show a causal nexus between the alleged
RICO activity, mail fraud in the form of Costello's letter
enclosing a settlement agreement and release, and his indictment.
The most logical way to approach the causation issue in the
midst of plaintiff's flurry of federal, state law, and ethical
violations is to begin with plaintiff's alleged RICO injury and
work back towards its cause. No matter the gravity of a personal
injury, RICO applies only where a plaintiff demonstrates an
injury to property. See, e.g., N.O.W. v. Scheidler,
968 F.2d 612 (7th Cir. 1992). Plaintiff alleges damage to his
schooling progress which cost him tuition money and time. The complaint is
clear that his studies were interrupted by the loss of his student teaching position. He lost his position because he was
indicted by a Grand Jury on a felony charge.
The indictment was the result of non-RICO conduct, the alleged
malicious prosecution by the defendants. Actually, reading the
complaint as a whole, the allegations best set forth a malicious
prosecution claim, and not surprisingly, plaintiff's loss of
schooling and teaching opportunities flow directly from the
conduct which supports that claim. Malicious prosecution is not
considered a predicate act for RICO purposes. Von Bulow v. Von
Bulow, 657 F. Supp. 1134, 1143 (S.D.N.Y. 1987). And plaintiff's
injury "must be a direct result of the alleged violation, not the
result of a non-RICO violation." OSRecovery, Inc. v. One Groupe
Int'l, Inc., 354 F. Supp. 2d 357, 372 (S.D.N.Y. 2005); Lerner
v. Fleet Bank, N.A., 318 F.3d 113, 122-23 (2d Cir. 2003) (no
proximate cause where violations of state law reporting
requirements caused injury as that is not a RICO predicate act);
Red Ball Interior Demolition Corp., 874 F. Supp. at 587. The
fact that a judge and Grand Jury participated in the indictment
process, and that plaintiff himself testified for three hours,
further attenuates the remote causal nexus, if any, of
defendants' alleged mail fraud to the indictment.*fn5
The alleged mail fraud, wherein defendants were representing
that they were interested in a settlement agreement when they
were not, would result in damages akin to the consequences of
lost time, perhaps the loss of a claim due to the statutory
limitations or forgone opportunities, but would not result in the
injuries plaintiff allegedly suffered as a result of his indictment. Therefore, even if one assumes that plaintiff has
properly stated a RICO claim, the one bare mail fraud predicate act by
Costello, was not the proximate cause of plaintiff's injuries.
C. Section 1962(d) RICO Conspiracy Claim
Section 1962(d) of RICO mandates that it is "unlawful for any
person to conspire to violate any of the provisions of
subsections (a), (b), or (c) of this section."
18 U.S.C. § 1962(d) (2000). As Hall has not alleged a legally sufficient
substantive RICO claim, his RICO conspiracy claim cannot survive.
Kimm, 2005 U.S. Dist. LEXIS 727, at *20 (citing Citadel
Mgmt., 123 F. Supp. 2d at 156 ("[A] RICO conspiracy claim cannot
stand where, as here, the elements of the substantive RICO
provisions are not met."); see also, Daddona v. Gaudio,
156 F. Supp. 2d 153, 165 (D. Conn. 2000).
D. State Law Claims
"Pursuant to 28 U.S.C. § 1367(c)(3), a district court may
decline to exercise supplemental jurisdiction over state law
claims where `the district court has dismissed all claims over
which it has original jurisdiction.'" Manhattan Telecomms. Corp.
v. DialAmerica Mktg., 156 F. Supp. 2d 376, 384 (S.D.N.Y. 2001).
Considering that the only federal claim in this action is to be
eliminated at the early pleading phase of the litigation,
supplemental jurisdiction of the remaining state laws claims is
declined, and those claims will be dismissed without prejudice.
See Valencia v. Sung M. Lee, 316 F.3d 299, 305 (2d Cir. 2003)
(citing 28 U.S.C. § 1367(c)); Martinez v. Simonetti,
202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of supplemental
state law claims where no federal claims remained). E. Officer Torro
The record does not reveal whether Officer Torro was ever
served with process, retained an attorney, or otherwise
participated in the instant proceedings.*fn6 Presuming
without deciding that Officer Torro was properly served and is a
defendant in this action, the complaint as addressed to him will
be dismissed sua sponte despite the fact that the record does
not reveal any participation by him in the instant motions.
See, e.g., Howard v. Lemmons, 547 F.2d 290, 290 (5th Cir.
1977). "Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action." Fed.R.Civ.P. 12
(h)(3) (2000). The motions to dismiss brought by each of the
other defendants will be granted as plaintiff failed to state a
federal claim and jurisdiction of the state law claims is
declined. The allegations in the complaint and RICO statement
concerning Officer Torro do not demonstrate any conduct that
would place him outside the scope of the RICO analysis above.
Thus, as he is the only remaining defendant in a complaint over
which federal jurisdiction is lacking, the RICO claims against
him will be dismissed in the interests of judicial economy, and
the state law claims will be dismissed without prejudice.
Plaintiff has failed to state that the defendants engaged in
sufficient predicate acts over a long enough period of time to
demonstrate a pattern of racketeering activity to sustain his
RICO claim. Moreover, to the extent that the complaint does
allege racketeering activity, it is not causally linked to
plaintiff's injury. Therefore, it is
1. Defendants, Fr. David Tressic, Howard J. Hubbard, Roman
Catholic Diocese of Albany, Karen Hoose, Michael Costello, and
Janet Charny's, motions to dismiss the complaint are GRANTED;
2. The complaint against defendant Israel Torro is DISMISSED
3. The complaint is DISMISSED in its entirety, the RICO claims
with prejudice and the state law claims without prejudice.
The Clerk of the Court is directed to enter judgment
IT IS SO ORDERED.