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Everette Weaver v. John Seymour James

September 27, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


In filing this civil action, pro se plaintiff Everette Weaver invokes the Racketeer Influenced and Corrupt Organizations Act ("RICO"), specifically 18 U.S.C. § 1964(c), and alleges that defendants Darryl Parker, Shelly Gibbs, Michael Gibbs, Sophia Maloney, John Doe and their attorney John James have engaged in a conspiracy to deprive him of rent for property plaintiff purchased in foreclosure. In addition, plaintiff asserts state law causes of action for professional negligence, fraud, deceptive practices, unjust enrichment, malicious abuse of process, assault and battery, and theft. None of the defendants have appeared before the Court in this action, and plaintiff seeks a default judgment.

For the reasons discussed below, plaintiff's invocation of RICO is "so patently without merit" as to deprive this Court of subject matter jurisdiction. Further, having determined that the only basis for federal jurisdiction is flawed, this Court declines to exercise supplemental jurisdiction over plaintiff's remaining claims. Thus, the motion for default judgment is denied and the complaint is dismissed in its entirety.


This dispute concerns real property located at 489 Classon Avenue in Brooklyn, where defendants Daryl Parker, Shelly Gibbs, and Michael Gibbs ("tenant defendants") reside. (Compl. ¶ 8-10.) On September 21, 2008, plaintiff went to the property and encountered Michael Gibbs and his mother, Shelly Gibbs, who telephoned her attorney, defendant John James. (Compl. ¶ 16.) According to the complaint, James then "authorized" defendants Parker, Michael Gibbs, Sophia Maloney and Doe to assault the plaintiff, who was beaten "almost unconsciously including knocking out two of plaintiff's front teeth." (Compl. ¶ 16-17.) Plaintiff was arrested following this altercation and an order of protection was issued to prevent him from going near defendant Sophia Maloney. (Compl. ¶¶ 18; 47.)

In January 2009, James represented the tenant defendants in eviction proceedings. (Compl. ¶ 19.) James procured a stay of eviction by filing an order to show cause in the New York Supreme Court, Kings County, stating that a lis pendens existed against the property. (Compl. ¶ 24-26.) According to the complaint, the lis pendens was fabricated by James. (Compl. ¶¶ 50; 56-57.)

At some time thereafter, plaintiff purchased the subject property in foreclosure. (Compare Compl. ¶ 14 ("Plaintiff purchased a property in foreclosure located at 489 Classon Avenue in Brooklyn (Kings County) New York on August 28, 2010") with Compl. ¶ 50 ("plaintiff purchased the subject property in foreclosure on August 28, 2009").) According to the complaint, the pre-existing stay of eviction has deprived plaintiff of any rent he might have otherwise collected from tenants at the property. (Compl. ¶ 50-54.) Plaintiff's state court proceedings against the tenant defendants, in which plaintiff has repeatedly sought recusal of the judges to whom his case was assigned, appear to be ongoing. (Compl. ¶¶ 21-41.)

In a letter dated April 12, 2011, this Court informed plaintiff that the deadline to effectuate service of named defendants Maloney and Doe, which the Court had previously extended at plaintiff's request, had expired. The Court also noted that service of defendant James appeared to be improper, as the affidavit of service indicated an address other than the one listed for James in the complaint. Plaintiff responded with a letter dated April 29, 2011, in which he stated that he had not served Maloney or Doe, but that service was proper with respect to James, who had merely changed offices during the time period between the filing of the complaint and service of process. Because service of Maloney and Doe was never effectuated, they have not been made parties to this case.


I. Subject Matter Jurisdiction

It is apparent from the complaint that the plaintiff and the defendants are New York citizens. (Compl. ¶¶ 6-11.) Due to this lack of diversity of citizenship, this Court lacks original jurisdiction over plaintiff's New York statutory and common-law tort claims. See 28 U.S.C. § 1332(a).

Diversity of citizenship is not a prerequisite, however, to this Court's subject-matter jurisdiction over civil RICO claims. See 18 U.S.C. § 1964(c) ("Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court"). Because plaintiff attempts to plead a civil RICO claim, we must confront the question of subject matter jurisdiction at the threshold of the case. Although the question of whether subject matter jurisdiction exists must not be confused with the question of whether the complaint states a cause of action, the Second Circuit has stated in the civil RICO context that some claims are "so patently without merit as to justify the court's dismissal for want of jurisdiction." Town of West Hartford v. Operation Rescue, 915 F.2d 92, 100 (2d Cir. 1990). Therefore, we evaluate not whether plaintiff's civil RICO claim is one on which he may prevail, but whether it has met the "minimal, yet unyielding, jurisdictional standard." Id.

Construing the complaint liberally, as we must, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), plaintiff appears to allege that the tenant defendants and their attorney constitute an enterprise which has engaged in a pattern of racketeering activity, including assault and the filing of a "bogus" lis pendens (Compl. ¶¶ 45; 51); that each of them has participated in the conduct of this enterprise, in violation of 18 U.S.C. § 1962(c); and that each of them has conspired with the others to participate, in violation of 18 U.S.C. § 1962(d).

Despite these conclusory allegations, as we explain below, plaintiff fails to identify: (1) a RICO enterprise in which defendants have participated; (2) specific acts by the defendants constituting a pattern of racketeering activity; and (3) injury to plaintiff's business or property by reason of any violation of ยง 1962. Thus we conclude that plaintiff's attempts to characterize his claim as a civil RICO claim are "so patently without merit" as to warrant sua sponte dismissal for lack of subject matter jurisdiction. See Town of West Hartford v. Operation Rescue, 915 F.2d at 100. Rather, it is clear that the ...

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