Bolus v. Pa. Office of the Attorney Gen.
| Decision Date | 13 January 2014 |
| Docket Number | 3:13-CV-1460 |
| Parties | ROBERT C. BOLUS, SR. Plaintiff v. PENNSYLVANIA OFFICE OF THE ATTORNEY GENERAL, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
Plaintiff's Complaint (Doc. 1) contains four counts: (1) a civil Racketeer Influenced and Corrupt Organizations Act ("RICO Act") violation under 18 U.S.C. § 1962(c), (2) conspiracy to violate RICO under 18 U.S.C. § 1962(d), (3) conspiracy to violate civil rights under 42 U.S.C. § 1985(3), and (4) failure to prevent a violation of a § 1985(3) violation under 42 U.S.C. § 1986.
After Plaintiff filed his Complaint, four Defendants moved to dismiss. On October 25, 2013, Defendant Nationwide Mutual Insurance Company filed a Motion to Dismiss (Doc. 15) with supporting brief (Doc. 16). On October 28, 2013, Defendant Motorist Mutual Insurance Companies filed a Motion to Dismiss (Doc. 17) with supporting brief (Doc. 18). On November 4, 2013, Defendants Corbett and the Pennsylvania Office of Attorney General ("Commonwealth Defendants") filed a Motion to Dismiss (Doc. 19) and filed a supporting brief on November 18, 2013 (Doc. 22). Finally, Defendant Pascucci filed a Motion toDismiss (Doc. 20) joining the other three motions to dismiss on November 9, 2013. Plaintiff never filed a brief in opposition to any of the above four motions to dismiss. In addition, Plaintiff never responded to a Show Cause Order issued by this Court on December 20, 2013 (Doc. 29) as to why the motions should not be deemed unopposed. Accordingly, the Court entered an Order on January 8, 2014 (Doc. 34) noting Attorney Moses's failure and deemed the pending motions as unopposed. Nevertheless, the Court considered the substance of the motions to dismiss instead of granting them purely on the basis of being unopposed. For the reasons set forth below, the Court will grant each of the pending motions to dismiss but will also grant Plaintiff leave to amend after he obtains new counsel.
In relevant part, the Complaint alleges that on June 30, 2011, Plaintiff appeared in county court for a Preliminary Hearing on the criminal charges of (1) False/Fraudulent/Incomplete Insurance Claim and (2) Theft by Deception - False Impression. (Compl. at ¶¶ 1-2).
He claims that agents of the Commonwealth and insurance defendants approached him (id. at ¶ 5) and offered to "forgo filing criminal charges on a separate matter if Plaintiff waived his right to the [June 30, 2011] Preliminary Hearing." (Id. at ¶ 6). Plaintiff agreed to the proposal, but Defendants allegedly reneged on the agreement and filed those separate charges against him on June 30,2011. (Id. at ¶¶ 7-10). Plaintiff claims that "[w]hile these charges were withdrawn on June 30, 2011, the same day they were filed, the offer not to filethem was fraudulent, deceptive, and was the only reason Plaintiff waived his Preliminary Hearing." (Id. at ¶ 11). The separate charges, "although withdrawn, still appear on a criminal background check of Plaintiff." (Id. at ¶ 15).1
A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,570,127 S. Ct. 1955,167 L. Ed. 2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
"Though a complaint 'does not need detailed factual allegations, . . . a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombiy, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of acause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n. 14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint; First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist, 706 F.3d 209,212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Sedima, S.P.R.L v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985). The Third Circuit has clarified that a plaintiff must show:
(1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated, either directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that he or she participated through a pattern of racketeering activity.
United States v. Console, 13 F.3d 641,653 (3d Cir. 1993) (quoting Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir. 1989)). "These predicate acts of racketeering may include, inter alia, federal mail fraud under 18 U.S.C. § 1341 or federal wire fraud under 18 U.S.C. § 1343." In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,363 (3d Cir. 2010).
The statute defines "pattern of racketeering activity" to mean "at least two acts of racketeering activity" occurring within ten years of each other. 18 U.S.C. § 1961(5). The "two act requirement does not define a pattern of racketeering activity so much as it sets a minimum condition for such patterns to exist." Hughes v. Consol-Pennsylvania Coal Co., 945 F.2d 594,609 (3d Cir. 1991). "[A] pattern of racketeering activity requires the predicate acts be 'related, and that they pose a threat of continued criminal activity.'" Id. (quoting H.J. Inc. v. Northwestern Tel. Co., 492 U.S. 229,239,109 S. Ct. 2893,106 LEd.2d 195 (1989).
If a plaintiff alleges a RICO violation over a closed period ("closed-ended" scheme), she must prove a series of related predicates lasting a "substantial period of time." Id. at 242, 109 S.Ct. at 2902. If, however, she alleges a RICO violation before continuity is established ("open-ended" scheme), she must prove a "threat of continuity." Id. A threat of continuity exists when the predicate acts are a part of defendant's "regular way of doing business." Id. That is, defendant operates a "long-term association that exists for criminal purposes." Id.
The Complaint does not explain what specific "racketeering activity" Defendants engaged in, how such racketeering activity formed a "pattern," or how the activity affected interstate commerce. Plaintiff alleges in a conclusory fashion that Defendants engaged in extortion, mail fraud, and wire fraud as "predicate acts" under § 1962(c), but, as Nationwide points out, he pleads "no facts or allegations to suggest the actual commission of any of these acts, by any defendant." (Doc. 16, at 11).
In addition, assuming that the defendants constitute an "enterprise," Plaintiff's Complaint outlines only a single instance of any action the enterprise allegedly took, namely, reneging on an offer to forego filing separate criminal charges in exchange for Plaintiff's waiver of his right to a Preliminary Hearing. Even construing Plaintiff's claims to allege that the enterprise continued when Commonwealth Defendants solicited and obtained false testimony and evidence from witnesses, the enterprise ended with the conclusion of Plaintiff's criminal case. There was no substantial period of time over which this alleged RICO violation took place, and a threat of continuity is absent.
Because the factual allegations of the Complaint at present "do not permit the court to infer more than the mere possibility of misconduct, the complaint has ... not show[n] that the pleader is entitled to relief." Iqbal, 556 U.S. at 679. Therefore, the Court will dismiss Count I without prejudice.
As to Count II, Plaintiff must show that Defendants "conspire[d] to violate . . . the provisions of subsection . . . (c) of this section." 18 U.S.C. § 1962(d). A defendant may be held liable under section 1962(d) If he knowingly agrees to facilitate a scheme which includes the operation or management of a RICO enterprise." Smith v. Berg, 247 F.3d 532, 535 (3d Cir. 2001). "To plead conspiracy adequately, a plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose." Great W. Mining & Mineral Co. v. Fox...
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