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County of Ulster, New York v. Richard Enrique Ulloa

March 1, 2011

COUNTY OF ULSTER, NEW YORK, ET AL., PLAINTIFFS,
v.
RICHARD ENRIQUE ULLOA, ET AL. , DEFENDANTS.



The opinion of the court was delivered by: Thomas J.McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiffs commenced this action asserting claims pursuant to the civil Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961 et seq. ("RICO") , and New York state law. Now before the Court are motions by Defendants Sara Ulloa, Richard Enrique Ulloa, and Ed-George Parenteau seeking to dismiss the claims against them. Plaintiffs have opposed the motions. The Court will address the motions and the various arguments raised therein seriatim.

II. BACKGROUND

Plaintiffs assert that defendants engaged in an on-going association-in-fact through which defendants committed, aided, assisted, or conspired to commit mail and/or wire fraud in an attempt to wrongfully obtain money or property from Plaintiffs. In this regard, Plaintiffs assert that Defendants sent or caused to be sent mailings and/or wires consisting of "criminal complaints," "invoices," "demands for payment," and "judgments" that contained materially false statements, including, but not limited to, that Plaintiffs owed Defendants money for various activities or governmental functions. Defendants then filed judgments and liens based upon the these false "invoices," "demands for payment," and other documents as part of a scheme to defraud plaintiffs' of their interest in their money or property in violation of 18 U.S.C. §§ 1341 & 1343. Plaintiffs assert that Defendants' actions caused Plaintiffs to expend funds in response to and in defense of Defendants' fraudulent activity; negatively impacted Plaintiffs' creditworthiness including their ability to obtain lines of credit, loans, etc.; restrained the alienability of Plaintiffs' real property; and impaired Plaintiffs' ability to properly perform their municipal functions. See Compl., dkt. # 1; Pl. Civil RICO Statement, dkt. # 18.

III DISCUSSION

a. Sara Ulloa's Motion to Dismiss [dkt. # 7 & # 8]

Defendant Sara Ulloa moves to dismiss the claims against her on several grounds. Dkt. # 7 & # 8. *fn1 Plaintiffs oppose the motion. Dkt. # 30.

1. Lack of Subject Matter Jurisdiction

Sara Ulloa first argues that because the documents in this action, including the Complaint, were notarized, and because notaries are "licensed by the Secretary of State for the State of New York," this Court lacks subject matter jurisdiction over the action. Dkt. # 7. This argument is without merit. This Court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Hence, the Court has subject matter jurisdiction over the claims asserted pursuant to the federal civil RICO statute, 18 U.S.C. § 1964 (c). See Int'l Gemmological Inst., Inc. v. Rafaeil, 2005 U.S. Dist. LEXIS 19288, at *9 - *10 (S.D.N.Y. Aug. 17, 2005). Moreover, the Court may exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Defendant's motion on this ground is denied.

Defendant Sara Ulloa next argues that the Court lacks subject matter jurisdiction because the claims in this action relate to commercial liens which are governed by state law. The motion on this ground is denied. Claims in this action sound in civil RICO violations and, for the reasons discussed above, the Court has subject matter jurisdiction over these claims.

2. Lack of Personal Involvement

To the extent Defendant asserts that the claims against her must be dismissed because she is not "part of" the subject commercial liens, the motion must be denied. "[T]he bare minimum of a RICO charge is that a defendant personally committed or aided and abetted the commission of two predicate acts." McLaughlin v. Anderson, 962 F.2d 187, 192 (2d Cir. 1992). The Complaint alleges that Defendant Sara Ulloa took certain actions "as part of a pattern of racketeering by a criminal enterprise and in furtherance of a scheme to defraud plaintiffs." See Compl., ¶¶ 80- 88; 142. In this regard, it is alleged that Sara Ulloa personally committed or aided and abetted the commission of several predicate mail or wire fraud acts underlying the asserted pattern of racketeering. Compl., ¶¶ 80- 88; 142; Civil RICO Stat., ¶¶ 5(b)(v)(1)-(7).

Moreover, the Complaint alleges a RICO conspiracy in which Defendant Sara Ulloa was allegedly a part. Compl. ¶¶ 161-175. A defendant may be liable for a RICO conspiracy where she "know[s] the general nature of the conspiracy" and takes action to further the goal of the conspiracy, even if "that the conspiracy extends beyond [her] individual role[ ]." United States v. Zichettello, 208 F.3d 72, 99 (2d Cir. 2000).

Defendant's actual involvement in the criminal enterprise or the conspiracy cannot be adjudicated on a Rule 12 motion because the Court must accept the factual allegations of the pleadings as true at this stage of the proceedings. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir. 2010); *fn2 Allen v. New World Coffee, Inc., 2002 WL 432685, at * 2 (S.D.N.Y. March 19, 2002). *fn3 Therefore, the motion on this ground is denied.

3. Lack of In Personam Jurisdiction over Plaintiffs

Next, Defendant Sara Ulloa argues that Court lacks in personam jurisdiction over the Plaintiffs because there is "no proof" that the municipal Plaintiffs have been properly authorized to bring suit. Assuming Defendant has standing to raise this issue, the argument is without merit. Plaintiff's counsel has attested that he has received proper resolutions and/or executive authorizations from each municipal Plaintiff authorizing the institution of the instant action. See Bailey Aff. ΒΆ 12. That representation is sufficient to commence the action. Moreover, by instituting the action, the Plaintiffs have consented to the in personam jurisdiction of this Court. To the extent Defendant argues that the County and/or Town ...


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