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
"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 ...