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Flaherty v. All Hampton Limousine

July 16, 2008


The opinion of the court was delivered by: Hurley, Senior District Judge


Plaintiff James E. Flaherty ("Plaintiff") filed the present action alleging, inter alia, that defendants committed unlawful racketeering activity, as defined in the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962, arising out of their alleged conspiracy to deprive Plaintiff of workers' compensation benefits. Defendants Rocky Point Taxi Inc. ("Rocky Point"), Peter Colucci ("Colucci"), David Morse & Associates, Inc. ("DMA"), Christopher Scheno ("Scheno"), Gates MacDonald of New York ("Gates MacDonald"), and Barbara Swan ("Swan") (collectively, "Defendants") have moved to dismiss the Verified Amended Supplemental Complaint (the "Supplemental Complaint") pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and Rule 12(c). For the reasons stated below, Defendants' motions are granted in part and denied in part.


The following facts are taken from the Supplemental Complaint and are presumed true for purposes of this motion.

Plaintiff was a taxi and limousine driver for Rocky Point from July 1999 to October 1999, and January 2000 through July 4, 2000. Colucci was Rocky Point's principal. After he left the employ of Rocky Point, Plaintiff began driving a taxi for defendant All Hampton Limousine, Inc. ("All Hampton"). On or about July 17, 2000, defendants Mary Neary and Crystal Joyce, dispatchers for All Hampton, began calling Plaintiff sexually demeaning names over the taxi radio and in person, which created a hostile work environment for Plaintiff.*fn1

Plaintiff's claims against the moving defendants arise from his involvement in an automobile accident on or about July 26, 2000, while Plaintiff was allegedly employed as a taxi driver for All Hampton and driving a vehicle registered thereto. According to the Supplemental Complaint, Plaintiff was seriously injured as a result of the accident and fell into a coma for a period of approximately two weeks. On October 7, 2000, Plaintiff submitted a claim with the New York State Workers' Compensation Board.

Defendant Reliance National Risk Specialists d.b.a. Reliance National Insurance Co. ("Reliance") was the workers' compensation carrier for All Hampton. Gates MacDonald was the third party administrator retained by Reliance to oversee claims made against Reliance. Swan was the Gates MacDonald claims examiner who oversaw Plaintiff's claim.

Gates MacDonald contested Plaintiff's right to workers' compensation benefits, asserting that Plaintiff was not an "employee" of All Hampton at the time of the accident. Gates MacDonald retained DMA to investigate Plaintiff's claim. Scheno was the DMA investigator who obtained statements from several people familiar with Plaintiff. These statements were memorialized in two reports to Gates MacDonald and were sent by facsimile and/or U.S. mail to Gates MacDonald. Thereafter, Swan faxed a C-7 Form to the Workers' Compensation Board, denying an employer-employee relationship between Plaintiff and All Hampton. Plaintiff claims that the transmission of these documents constitute mail and wire fraud.

Following the accident, Plaintiff attempted to obtain his tax records for the calendar years 1999 and 2000 for use during the workers' compensation proceeding. His investigation allegedly revealed that 1099s and W-2s were either not filed by Rocky Point or were fraudulently filed. Plaintiff claims that the alleged failure to accurately report his income and the mailing of the inaccurate forms to the IRS constitutes mail fraud.

On or about March 2, 2001, Plaintiff attended the workers' compensation hearing. By decision filed March 12, 2001, the Board closed Plaintiff's case without prejudice to "reopen when [Plaintiff's] mental condition improves to the point he can reasonbly [sic] prosecute case." (Supplemental Compl. Ex. MM.) The decision further indicates that Plaintiff was "to retain counsel." (Id.)

On June 28, 2003, Plaintiff filed an application to reopen the proceedings, which apparently was granted because Plaintiff alleges that a hearing was held on May 28, 2004. There are no allegations that the Workers' Compensation Board ever made a final disposition awarding or denying benefits to Plaintiff.

The Supplemental Complaint, which consists of approximately 100 pages of allegations and over 100 pages of exhibits, asserts six causes of action, four under RICO against all defendants, one for sexual harassment and retaliation under 42 U.S.C. § 2000e-3(a) against the All Hampton defendants, and one for defamation against defendants Reliance, Gates MacDonald, Swan, DMA, and Scheno.


Plaintiff commenced this action in the Southern District of New York on or about November 9, 2001. By Order dated August 27, 2002, the matter was transferred to this Court.

Plaintiff filed a "Verified Amended Complaint" on August 30, 2002.

By Orders dated January 3, 2003 and November 4, 2003, the Court stayed the action as to defendants Reliance and All Hampton, as well as All Hampton employees Matthew ...

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