United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge.
This action was filed on February 7, 2013 (Dkt. #1), and an Amended Complaint was filed on May 13, 2013 (Dkt. #19). Plaintiff American Stevedoring, Inc. ("Plaintiff" or "Stevedoring"), the former marine terminal operator at the Brooklyn and Newark waterfronts, sues a large group of Defendants, principally the labor unions involved in the waterfront business (the "Unions"), their associated pension funds (the "Funds"), and a variety of individuals involved in waterfront labor or the waterfront business generally. There are four motions to dismiss the Amended Complaint before the Court, one filed by each of the principal entities: the ILA, the ILA Fund, the PPGU, and the PPGU Fund (and individuals associated with each entity). Each attacks the allegations in the Amended Complaint on a variety of grounds. As detailed below, these motions are as procedurally complicated as the case itself has been since its inception. For a variety of reasons, this action can neither proceed nor conclude at this time, and the preliminary briefing cycle must continue.
Stevedoring alleges that Defendants have been and remain engaged in a longstanding criminal conspiracy that, among many other things, destroyed Stevedoring's profits and ultimately its very business. Stevedoring contends in particular that Defendants violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, and committed state-law tortious interference with contract and prospective economic advantage.
Defendant Farino in turn filed a third-party complaint, since stricken from the docket, against Stevedoring itself, its principal Sabato Catucci, his relatives Keith Catucci and Ronald Catucci, and other entities allegedly under their control. Farino made allegations in this third-party complaint of separate unlawful conduct that are not at issue at this time.
Defendants requested leave to file motions to dismiss the Amended Complaint on a variety of grounds, and the Court held a pre-motion conference on August 5, 2013, at which it set a particularized briefing schedule for motions made by any party. (Dkt. #37). After numerous extensions occasioned by various problems confronted during the briefing process, the motions were submitted in full to the Court on April 17, 2014. (Dkt. #64-83).
A. The Funds' Motions to Dismiss Are Granted Without Leave to Replead
The ILA Fund and Joseph Curto, on the one hand, and the PPGU Fund and Joseph Pollio, on the other, attack the legal sufficiency of allegations in the Amended Complaint to the effect that the Funds committed wire and mail fraud by filing lawsuits against Stevedoring for ERISA withdrawal liability. (Dkt. #65, 68). Stevedoring explicitly does not oppose these motions. (Pl. Opp. 3 n.3).
Normally, failure to oppose a motion to dismiss cannot itself justify dismissal of a complaint:
In deciding an unopposed motion to dismiss, a court is to "assume the truth of a pleading's factual allegations and test only its legal sufficiency.... Thus, although a party is of course to be given a reasonable opportunity to respond to an opponent's motion, the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law."
Haas v. Commerce Bank, 497 F.Supp.2d 563, 564 (S.D.N.Y. 2007) (quoting McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)). Here, however, the situation is unusual in that, as will be discussed at greater length below, Plaintiff has provided a Proposed Complaint as an exhibit to its opposition to the motions to dismiss and, as the Court construes its brief, seeks leave to amend by filing the Proposed Complaint as a Second Amended Complaint.
The Proposed Complaint alleges no claims against the ILA Fund, the PPGU Fund, Joseph Curto, or Joseph Pollio. (Prop. Compl. ¶¶ 6-42). This is not, therefore, a circumstance in which a plaintiff has neglected to file a responsive brief defending his complaint against a motion to dismiss, but rather one in which Plaintiff has expressly disavowed any intention to pursue liability against multiple defendants it originally sued and with whom it now apparently has no quarrel. The Court's resources need not be expended on examining claims Plaintiff intends not to press. Plaintiff's claims against the ILA Fund, the PPGU Fund, Joseph Curto, and Joseph ...