United States District Court, E.D. New York
Plaintiff is represented by Michael J. Cahill and Guy W.
Germano of Gemano & Cahill, P.C.
Defendant COD is represented by Laurel R. Kretzing and
Jeffrey D. Lebowitz of Jaspan Schle-singer LLP
Defendant IEV is represented by Michael D. Cassell of Hogan
& Cassell LLP
Atlas defendants are represented by John F. Carman, Esq.
Church Defendants were represented by Alesia J. Kantor, of
the Law Offices of Joseph F. Kilada, P.C. on this motion, but
Ms. Kantor has since withdrawn as counsel.
MEMORANDUM AND ORDER
F. BIANCO United States District Judge
April 29, 2016, plaintiff the Town of Islip
(“plaintiff” or “the Town”) filed
this action against Thomas Datre Jr., Thomas Datre Sr., Clara
Datre, Richard Datre Jr., Christopher Grabe, Gia Gatien,
Ronald Cianciulli, Joseph Montuori, Brett Robinson, Iglesia
De Jesucristo Palabra Miel (the “Church”), Marco
Lopez, Nancy Alvarez, William Carillo, Raul Pachecho, Walter
Casasola, 5 Brothers Farming Corp., DFF Farm Corp., Datre
Trucking & Farming Inc., Datre Auto & Equipment Sales
Inc., Daytree at Cortland Square Inc., Daytree Custom
Builders Inc., Datre Family Farms Inc., Datre Farms Realty
Co. Inc., Islandia Recycling Inc., C.J. Site Development
Inc., Atlas Home Improvement Corp. of Long Island d/b/a Atlas
Asphalt (“Atlas”), IEV Trucking Corp.
(“IEV”), COD Services Corp. (“COD”),
and John Doe Nos. 1 through 10. The Complaint sets forth
claims under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C.
§§ 1964(c), 1962(d), and the Comprehensive
Environmental Response Compensation and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et
seq., as well as state law claims for public nuisance,
private nuisance, trespass, injury to property, joint
tortfeasors, fraud and deceit, and restitution.
claims are based on the alleged illegal dumping of hazardous
waste at Roberto Clemente Park (“the Park”) from
July or August 2013 through April 2014 by defendants 5
Brothers Farming Corp., DFF Farm Corp., Datre Trucking &
Farming Inc., Datre Auto 6 Equipment Sales Inc., Daytree at
Cortland Square Inc., Daytree Custom Builders Inc., Datre
Farms Realty Co. Inc., Thomas Datre Jr., Thomas Datre Sr.,
Clara Datre, Richard Datre Jr. and Gia Gatien (the
“Datre defendants”), together with defendants
C.J. Site Development and Christopher Grabe (the “Grabe
defendants”). Defendants COD and IEV (collectively, the
“arranger defendants”) allegedly acted as brokers
throughout this time, arranging for the Datre and Grabe
defendants to collect fill material from the John Doe
defendants at various locations in Queens, Kings, Nassau, and
to the Complaint, prior to the dumping activities, the
Church, Lopez, Alvarez, Carillo, Pachecho and Casasola
(collectively, the “Church defendants”) had
received permission to replace the topsoil and existing grass
seed on one of the Park's soccer fields, and individuals
were seen spreading soil on the field in May 2013. In August
and October 2013, the Church defendants sent two letters to
the Town acknowledging their work on the soccer field.
Complaint further alleges that the Town closed the Park in
January 2014 and ordered the removal of the dumped material.
The Datre and Grabe defendants removed some of the material
and contracted with Atlas and Cianciulli (the “Atlas
defendants”) to assist in the removal effort.
Subsequently, the Suffolk County District Attorney's
Office launched an investigation into the dumping activities,
and, in the course of that investigation, testing revealed
that the dumped material contained hazardous substances.
Thomas Datre Jr. and Grabe were convicted on various charges
in state court for their role in the dumping activities.
Complaint asserts that defendants engaged in a RICO
conspiracy to fraudulently conceal the disposal of hazardous
substances at the Park, setting forth underlying claims for
mail and wire fraud. It also alleges CER-CLA claims, which
assert that defendants are all potentially responsible
parties for their roles in the illegal dumping, as well as
various state law claims.
the Court are motions to dismiss filed by the arranger,
Atlas, and Church defendants. As set forth in more detail
below, the Court concludes, inter alia, that the
Complaint fails to allege facts from which it could be
plausibly inferred that these defendants knew, or should have
known, that the material dumped at the Park by the Datre and
Grabe defendants contained hazardous substances. Absent such
allegations regarding knowledge, plaintiff cannot plausibly
assert that the arranger, Atlas, and Church defendants
engaged in mail or wire fraud by misrepresenting or
concealing material information (i.e., the hazardous
nature of the material).
addition, the Court concludes that, for
“arranger” liability to apply under CERCLA, the
Complaint must allege that an arranger knew, or should have
known, that the material in question was hazardous. Given the
current allegations, the Complaint fails to state plausible
CERCLA claims for arranger liability against COD, IEV, and
the Atlas defendants. The Complaint also fails to state a
plausible claim against the Church defendants for
“operator” liability because it does not allege
that they exercised the requisite degree of control over the
Park or the hazardous substances for such liability to apply.
the Complaint does not plausibly allege state law claims
against the arranger, Atlas, or Church defendants for (1)
nuisance because it does not adequately allege intent or
negligence, (2) trespass because the illegal dumping was not
an immediate or inevitable consequence of these
defendants' actions, (3) injury to property because the
underlying nuisance and trespass claims fail, (4) fraud and
deceit because the Complaint fails to allege knowledge of the
material's hazardous nature, and (5) restitution because
the Complaint fails to allege that these defendants had a
duty to assist in the remediation of the Park.
the Court grants the arranger, Atlas, and Church
defendants' motions to dismiss. However, the Court gives
the Town leave to re-plead to attempt to address thse
pleading defects with additional allegations, if plaintiff
can do so.
following facts are taken from the Complaint
(“Compl.”). (ECF No. 1.) The Court assumes them
to be true for purposes of deciding this motion and construes
them in the light most favorable to plaintiff, the non-moving
Town owns the Park, which consists of designated parkland
located in Brentwood, New York. (Compl. ¶ 70.) In April
2013, Lopez, the Church's pastor, and Alvarez, a member
of the Church, contacted the Town on behalf of the Church and
requested permission to replace the topsoil and existing
grass seed on one of the Park's soccer fields at the
Church's own cost and with volunteer labor. (Id.
¶ 72.) Defendant Montuori, the Commissioner of the Parks
Department, granted the Church defendants' request on
behalf of the Town. (Id. ¶ 73.) Shortly
thereafter in May 2013, several individuals were seen
spreading topsoil and grass seed over roughly two-thirds of
the soccer field. (Id.) On May 13, Alvarez sent an
email to defendant Robinson, Secretary to Commissioner
Montuori, asking for additional topsoil to complete the
project. (Id.) The Church stopped working on the
field in May 2013. (Id. ¶ 82.)
or August 2013, the Datre and Grabe defendants began trucking
in thousands of tons of construction and demolition
(“C&D”) debris, contaminated fill, and other
solid wastes to the Park, dumping it over the topsoil and
seed the Church defendants had deposited in May.
(Id. ¶ 74.) On August 24, 2013, the Parks
Department held a press conference at the Park where
attendees saw trucks marked “Datre” delivering
fill to the site of the soccer field. (Id. ¶
Town Board members and officers not employed by the Parks
Department asked about the dumping activity. (Id.
¶ 77.) Commissioner Montuori and Robinson informed them
that the Church defendants were volunteering to repair the
soccer field, and the Town determined that they needed a
permit to clear and grade the park, as well as consent and
approval from the Town Board for any improvements by the
Church defendants. (Id.) Commissioner Montuori and
Robinson asked the Church to provide information for a land
clearing permit and a letter from the Church describing the
work it planned to complete. (Id.) On August 29,
2013, the Church faxed the Town a letter (the “August
letter”) signed by Lopez, stating that the Church had
been working on the soccer field without pay since April
2013. (Id. ¶ 81.) The letter provided no other
information. (See id.)
claiming that he was working on behalf of the Church,
defendant Grabe spoke with an architect and asked him for a
site drawing of the soccer fields to submit to the Town with
the land clearing permit information. (Id.
¶¶ 78-79.) The architect prepared the drawing,
which did not include specifications of fill material, and
provided it to Grabe. (Id. ¶ 80.) Grabe
submitted the site drawing to the Town, and the Planning and
Parks Departments reviewed it in the preparation of an
application for a land clearing and grading permit.
(Id. ¶ 83.) The Town Board subsequently granted
the Church permission to spread topsoil and reseed the soccer
fields at the Park. (Id. ¶¶ 84-85.) The
Parks Department then submitted an application to the
Planning Department for a Land Clearing and Grading permit,
which the Planning Department issued on September 12, 2013.
(Id. ¶ 87.)
this time, deliveries of fill material ceased, and the entire
area of the soccer field was buried under a layer of
material, which extended into the wooded areas bordering the
field. (Id. ¶ 89.) No additional work was
performed to seed or otherwise restore the area for use as a
soccer field. (Id.)
October 2013, Alvarez met with Commissioner Montuori and
Robinson about the work at the soccer field. (Id.
¶ 90.) Later, on November 18, 2013, Church members
Ca-rillo, Pacheco, and Casasola faxed a letter dated October
22, 2013 (the “October letter”) to Commissioner
Montuori in which they stated that the Church had worked on
the field since April, but the work had ended due to lack of
irrigation. (Id. ¶¶ 91-93.) The Church
offered to resume work if the Town would agree to provide
water to the site. (Id. ¶ 93.)
resumed at the soccer field and expanded into a new area in
the Park shortly after the Town received the October letter.
(Id. ¶ 94.) On November 21, 2013, a park ranger
noticed that someone had deposited approximately 70 piles of
“rocky dirt” on the soccer field, and a public
safety report indicated that this dirt was unscreened and
contained large boulders. (Id. ¶ 95.) A truck
driver responsible for the dumping reported to the ranger
that he was employed by Datre. (Id.) On November 30,
2013, the same park ranger saw additional debris deposited on
the “recharge” area in the Park south of the
soccer field, which, up to that time, had not been a site of
previous dumping. (Id. ¶ 96.) In January 2014,
Town personnel confirmed the presence of brick, metal, rebar,
and other debris in this area, as well as heavy earth moving
equipment. (Id. ¶ 97.) The Town closed the Park
on January 23, 2014. (Id.)
Town then sent a letter to Lopez and the Church ordering them
to cease and desist all work in the recharge area.
(Id. ¶ 98.) The Church defendants did not
reply, but the Datre and Grabe defendants responded by
removing most of the fill and depositing it in locations
outside the Park. (Id. ¶ 99.) The Atlas
defendants joined in this removal effort, removing a portion
of the fill from the Park and depositing it at 117 Brook
Avenue, Deer Park, New York, property owned by the Atlas
defendants. (Id. ¶ 100.) The Atlas defendants
then moved this debris from their property to other property
that they used and occupied at 175 Brook Avenue in Deer Park
(the “Maisie Property”). (Id.) The owner
of the Maisie Property did not give the Atlas defendants
permission to deposit this fill there. (Id.) On
January 27, 2014, Commissioner Montuori reported that some
C&D debris, contaminated fill, and other waste remained
in the recharge area after the removal. (Id. ¶
continued in the spring of 2014. (Id. ¶¶
103-04.) On March 24, 2014, while opening the Park gate, a
park ranger observed five Datre tractor trailers waiting on
the road outside the Park. (Id. ¶ 103.) Once
the gate was open, the trucks proceeded to the soccer field
and dropped what appeared to be topsoil over previously
deposited material, which contained large quantities of
broken glass, crushed cement, and large stones.
(Id.) Town employees saw Datre dump trucks operating
in the Park as late as April 9, 2014. (Id. ¶
April 2014, the Suffolk County District Attorney's Office
launched an investigation into the dumping of the C&D
debris and illegal fill at the Park and other locations in
Suffolk County. (Id. ¶ 105.) Soil tests of
samples taken from the Park in the course of this
investigation revealed the presence of hazardous substances,
including asbestos, pesticides, and heavy metals.
(Id. ¶ 106.) In response to this report, the
Town undertook a removal action under the supervision of the
New York State Department of Environmental Conservation.
(Id. ¶ 107.) The Town's removal plan was
approved, and removal activities commenced in June 2015.
(Id. ¶¶ 107, 109.) In the end, a total of
39, 932.44 tons of C&D debris and unacceptable fill were
removed from the Park, costing the Town over $4 million.
(Id. ¶ 110.)
this time (i.e., between June 2013 and April 2014),
COD and IEV acted as brokers to supply material for disposal
at the Park. (Id. ¶ 124.) Specifically, these
defendants would arrange for trucks owned or directed by the
Datre and Grabe defendants to collect material at various
locations owned or operated by the John Doe defendants in
Kings, Queens, Nassau or Suffolk counties. (Id.) The
Datre trucks would then transport that material to the Park
for disposal. (Id.) During this period, the arranger
defendants paid over $600, 000 to various Datre defendants
for the pickup and removal of over 1, 200 separate loads of
material, which totaled over 43, 000 cubic yards.
(Id.) IEV paid the Datre defendants over $417, 000
for 759 loads of material, and COD paid them over $245, 000
for 476 loads. (Id.) Telephone records show that,
from January 1, 2013 until December 31, 2014, IEV had 151
calls with Datre Jr. and 1, 331 with Grabe, while COD had 163
calls with Datre Jr. and 825 calls with Grabe. (Id.
¶¶ 131-32.) The purpose of these calls was to
arrange pickup and delivery of the material. (Id.)
Town filed the Complaint on April 29, 2016 against all
defendants. (ECF No. 1.) The Church defendants answered on
June 24, 2016 (ECF No. 23), IEV answered on June 29, 2016
(ECF No. 27), and the Atlas defendants answered on July 22,
2016 (ECF No. 42). Motions to dismiss were filed by COD on
August 22, 2016 (ECF No. 48), IEV on September 21, 2016 (ECF
No. 52), the Church defendants on December 15, 2016 (ECF No.
63), and the Atlas defendants on December 16, 2016 (ECF No.
64). The Town filed oppositions to all these motions (ECF
Nos. 53, 66, 67), and each defendant except the Atlas
defendants filed a reply (ECF Nos. 56, 57, 68). Oral argument
took place on February 28, 2017. (See ECF No. 69.)
The Court has fully considered the parties' submissions.
Standard of Review
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
Court must accept the factual allegations set forth in the
complaint as true and draw all reasonable inferences in favor
of the plaintiff. See, e.g., Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v.
Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to dismiss under
Rule 12(b)(6), a complaint must allege a plausible set of
facts sufficient ‘to raise a right to relief above the
speculative level.'” Operating Local 649
Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). This standard does
not require “heightened fact pleading of specifics, but
only enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
Supreme Court clarified the appropriate pleading standard in
Ashcroft v. Iqbal, setting forth two principles for
a district court to follow in deciding a motion to dismiss.
556 U.S. 662 (2009). First, district courts must
“identify[ ] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Id. at 679. “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id.
Second, if a complaint contains “well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
brought federal claims against defendants for violations of
RICO, 18 U.S.C. §§ 1964(c), 1962(d), and CERCLA, 42
U.S.C. § 9601 et seq. It has also brought state
law claims for public nuisance, private nuisance, trespass,
injury to property, joint tort-feasors, fraud and deceit, and
restitution. The arranger, Church, and Atlas defendants move
to dismiss all claims against them. For the reasons discussed
below, these motions are granted, but plaintiff is given
leave to re-plead its claims.
RICO, it is “unlawful for any person employed by or
associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct
or participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of
racketeering activity or collection of unlawful debt.”
18 U.S.C. § 1962(c). Section 1962(d) makes it
“unlawful for any person to conspire to violate . . .
the provisions of subsection . . . (c).” 18 U.S.C.
§ 1962(d). Furthermore, “[w]hen § 1962 is
violated, in addition to criminal penalties, the RICO
statutes also authorize civil lawsuits, which, if successful,
can entitle a plaintiff to treble damages, costs, and
attorney's fees.” DLJ Mortg. Capital, Inc. v.
Kontogiannis, 726 F.Supp.2d 225, 236 (E.D.N.Y. 2010)
(citing 18 U.S.C. § 1964(c)). Specifically, RICO
provides a private cause of action for “[a]ny person
injured in his business or property by reason of a violation
of section 1962 of this chapter.” 18 U.S.C. §
have described civil RICO as “‘an unusually
potent weapon-the litigation equivalent of a thermonuclear
device.'” Katzman v. Victoria's Secret
Catalogue, 167 F.R.D. 649, 655 (S.D.N.Y. 1996) (quoting
Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st
Cir. 1991)), aff'd, 113 F.3d 1229 (2d Cir.
1997). “Because the ‘mere assertion of a RICO
claim . . . has an almost inevitable stigmatizing effect on
those named as defendants, . . . courts should strive to
flush out frivolous RICO allegations at an early stage of the
litigation.'” Id. (quoting Figueroa
Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990));
see DLJ Mortg. Capital, 726 F.Supp.2d at 236.
Indeed, although civil RICO may be a “potent weapon,
” plaintiffs wielding RICO almost always miss the mark.
See Gross v. Waywell, 628 F.Supp.2d 475, 479-83
(S.D.N.Y. 2009) (conducting survey of 145 civil RICO cases
filed in the Southern District of New York from 2004 through
2007, and finding that all thirty-six cases resolved on the
merits resulted in judgments against the plaintiffs, mostly
at the motion to dismiss stage). Accordingly, courts have
expressed skepticism toward civil RICO claims. See,
e.g., DLJ Mortg. Capital, 726 F.Supp.2d at 236
(“[P]laintiffs have often been overzeal-ous in pursuing
RICO claims, flooding federal courts by dressing up
run-of-the-mill fraud claims as RICO violations.”).
civil RICO presents many hurdles for a plaintiff to overcome,
the Supreme Court has also “made clear that it would
not interpret civil RICO narrowly.” Attorney Gen.
of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268
F.3d 103, 139 n.6 (2d Cir. 2001) (citing Sedima, S.P.R.L.
v. Imrex Co., 473 U.S. 479 (1985)). In Sedima,
the Supreme Court rejected an interpretation of civil RICO
that would have confined its application to “mobsters
and organized criminals.” 473 U.S. at 499. Instead, the
Court held: “The fact that RICO has been applied in
situations not expressly anticipated by Congress does not
demonstrate ambiguity. It demonstrates breadth.”
Id. (citation omitted); see also Anza v. Ideal
Steel Supply Corp., 547 U.S. 451, 479 (2006) (Breyer,
J., concurring in part and dissenting in part) (“RICO
essentially seeks to prevent organized criminals from taking
over or operating legitimate businesses. Its language,
however, extends its scope well beyond those central
purposes.”). Thus, a court should not dismiss a civil
RICO claim if the complaint adequately alleges all elements
of such a claim, even if the alleged conduct is not
quintessential RICO activity.
defendants argue that the Town lacks standing to proceed
under RICO because it has failed to exhaust its other
remedies for seeking reimbursement for its cleanup costs.
They also argue that the Town has failed to state a RICO
claim for mail or wire fraud because the Complaint alleges no
facts from which a jury could infer fraudulent intent. As set
forth below, the Court agrees that the Town has failed to
state a claim on which relief can be granted and, therefore,
grants defendants' motions to dismiss the RICO claims.
See Fed. R. Civ. P. 12(b)(6).
establish standing under RICO, a plaintiff must allege
“(1) a violation of section 1962; (2) injury to
business or property; and (3) causation of the injury by the
violation.” First Nationwide Bank v. Gelt Funding
Corp., 27 F.3d 763, 767 (2d Cir. 1994) (quoting
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21,
23 (2d Cir. 1990)). Pursuant to the second requirement,
“‘[a] RICO plaintiff only has standing if, and
can only recover to the extent that, he has been injured in
his business or property by the conduct constituting the RICO
violation, and only when his or her actual loss becomes clear
and definite.'” Denney v. Deutsche Bank
AG, 443 F.3d 253, 266 (2d Cir. 2006) (quoting First
Nationwide, 27 F.3d at 767-69) (brackets omitted);
see also Motorola Credit Corp. v. Uzan, 322 F.3d
130, 135 (2d Cir. 2003) (where amount of damages was not
“clear and definite, ” holding that
“Plaintiffs lack statutory standing under RICO because
their claims are unripe”). Under this rule, a claim
will be dismissed for lack of statutory standing “where
the extent of damages are still unknown, [and therefore] a
RICO injury remains speculative and unprovable.”
DLJ Mortg. Capital, 726 F.Supp.2d at 237 (citations
argue that the Town has not shown a “clear and
definite” injury under RICO because it has not
exhausted its other remedies for the $4 million it incurred
in clean-up costs, given that the Town's other claims
seeking relief for this injury (i.e., its CERCLA and
state law claims) are still pending. Citing Commercial
Union Assurance Co., plc v. Milken, 17 F.3d 608, 612 (2d
Cir. 1994), Bankers Trust Co. v. Rhoades, 859 F.2d
1096, 1106 (2d Cir. 1988), Stochastic Decisions, Inc. v.
DiDomenico, 995 F.2d 1158, 1166 (2d Cir. 1993), DLJ
Mortgage Capital, 726 F.Supp.2d at 237, and Sky
Medical Supply Inc. v. SCS Support Claims Services,
Inc., 17 F.Supp.3d 207, 231 (E.D.N.Y. 2014), defendants
contend that such exhaustion is required in the Second
Circuit before a plaintiff may bring RICO claims.
Court disagrees. All of the cases cited by defendants (except
Commercial Union) involved situations where the
amount of damages suffered was directly dependent on either a
separate, ongoing proceeding-the results of which would
determine whether or to what extent the plaintiff suffered an
in-jury-or a debt recoverable via foreclosure. None of them
stand for the broad principle that, before bringing a RICO
claim, all plaintiffs must exhaust every alternative means of
recovery. At the outset, the Court concludes that
Commercial Union is inapposite. In that case, the
Second Circuit simply held that the plaintiff investors could
not maintain a RICO action after receiving the amount they
lost in investments via settlement. Commercial
Union, 17 F.3d at 612. The Second Circuit thus held that
the plaintiffs failed to state damages recoverable under
RICO. Id. (“Hence, in the instant case,
without provable damages, no viable RICO cause of action may
be maintained.”). This case says nothing about RICO
standing where, as here, a plaintiff has not recovered
anything for an injury suffered as a result of a RICO
DLJ Mortgage Capital does not support
defendants' position because it simply applied the
well-established rule that, where a creditor-plaintiff
alleges an injury from a fraudulently-induced mortgage, the
plaintiff must pursue foreclosure remedies provided by the
mortgage before filing a RICO claim for the lost debt.
See 726 F.Supp.2d at 237; see also First
Nationwide, 27 F.3d at 769 (“[T]he loss [the
plaintiff] would suffer as to those loans [the plaintiff] has
not finally foreclosed cannot yet be determined. Only when
[the plaintiff's] actual loss becomes clear and definite
will the claims be ripe for suit.”); In re Merrill
Lynch Ltd. P'ships Litig., 154 F.3d 56, 59 (2d Cir.
1998) (“[W]hen a creditor alleges he has been
de-frauded[, ] RICO injury is speculative when contractual or
other legal remedies remain which hold out a real possibility
that the debt, and therefore the injury, may be eliminated or
significantly reduced.” (citing Bankers Trust,
859 F.2d at 1106; First Nationwide, 27 F.3d at
769)). Only after the plaintiff pursues this remedy could a
court determine the extent of the injury resulting from ...