Conte v. Newsday Inc

• Decision Date: 25 March 2010
• Docket Number: No. 06-CV-4859 (JFB)(ETB).,06-CV-4859 (JFB)(ETB).
• Parties: Anthony CONTE, Plaintiff,v.NEWSDAY, INC. et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

703 F.Supp.2d 126

Anthony CONTE, Plaintiff,v.NEWSDAY, INC. et al., Defendants.

No. 06-CV-4859 (JFB)(ETB).

United States District Court E.D. New York.

March 25, 2010.

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Anthony Conte, pro se.

Andrew G. Celli, Jr., Esq., O. Andrew F. Wilson, Esq., and Kennisha Anlee Austin, Esq., of Emery Celli Brinckerhoff & Abady LLP, New York, NY, for The Newsday defendants.

Sanford Strenger, Esq., of Salamon, Gruber, Blaymore & Strenger, P.C., Roslyn Heights, NY, for The Consumers Warehouse defendants.

Joseph O. Giaimo, Esq., and Jade L. Fuller, Esq., of Giaimo Associates LLP, Kew Gardens, NY, for The route distributor defendants.

Paul Shechtman, Esq., and Daniel Victor Shapiro, Esq., of Stillman, Friedman & Shechtman, P.C., New York, NY, for Defendant Smith.

Sam Martinez and Dennis Springer, pro se.

memorandum and order

JOSEPH F. BIANCO, District Judge:

Pro se plaintiff Anthony Conte (“Conte” or “plaintiff”) brings this action against: Newsday Inc., Timothy Knight, John Mancini, Mark Harrington (collectively, the “Newsday defendants”); Consumers Warehouse Center, Inc., James S. Baloga, Sr., James A. Baloga, Jr., Mario Escamilla (collectively, the “Consumers Warehouse defendants”); Alfonso Amorizzo, Laurence Furnell, Rhoda Zelkind, Harris Zelkind, Carol Hazeldine, Sam Martinez, Gregory Connors, James McMullen (collectively, the “route distributor defendants”); Edmond Chin-Sang, Pete Dill, Raymond Dodge, Robert Dodge, Ken Stone, Rob Rein (collectively, the “independent contractor distributor defendants”); Giaimo Associates, LLP, Joseph O. Giaimo, Jade Fuller (collectively, the “Giaimo Defendants”); Dennis Springer, Ed Smith, and “John and Jane Does, 1-30,” unknown individuals and entities, in their individual and official capacities (collectively, “defendants”),¹ alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d), the Lanham Act, 15 U.S.C. § 1125(a), the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, the Sherman Act, 15 U.S.C. § 2, and various state law tort claims, all arising from, among other things, Newsday's alleged attempts to monopolize and dominate the print advertising market on Long Island.

Defendants move to dismiss the RICO, Sherman Act, ECPA, defamation, and fraud claims in plaintiff's Third Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motions are granted in part and denied in part. Specifically, the Court grants defendants' motion to dismiss plaintiff's RICO, Sherman Act, and ECPA claims. The Court also grants defendants' motions to dismiss plaintiff's slander claim against the Newsday defendants and all of plaintiff's injurious falsehood claims. Defendants' motions are denied in all other respects.

I. Background

A. Facts

The Court summarized plaintiff's factual allegations in its Memorandum and Order of September 30, 2008 granting in part and denying in part defendants' motion to dismiss the Second Amended Complaint.² Plaintiff's factual allegations in the Third Amended Complaint are largely the same, and to the extent they differ, the Court sets forth the relevant facts in the Discussion section infra. These facts are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the non-moving party. See LaFaro v. N.Y. Cardiothoracic Group, 570 F.3d 471, 475 (2d Cir.2009).

B. Procedural History

Plaintiff filed the initial complaint in this action on September 7, 2006. Plaintiff subsequently filed two amended complaints and an amended RICO statement. By Memorandum and Order dated September 30, 2008, the Court denied in part and granted in part defendants' motions to dismiss the Second Amended Complaint. Specifically, the Court denied defendants' motions to dismiss plaintiff's federal Lanham Act and state tortious interference claims. The Court granted defendants' motions in all other respects, but provided plaintiff with an opportunity to re-plead the dismissed claims.

Plaintiff filed a Third Amended Complaint on April 2, 2009, re-asserting all of the dismissed claims, as well as a fraud claim against the Consumers Warehouse defendants.³ The Newsday defendants, Giaimo defendants and route distributor defendants, and Consumers Warehouse defendants all filed motions to dismiss on June 19, 2009. Plaintiff filed oppositions to defendants' motions on September 23, 2009. The Newsday defendants and Consumers Warehouse defendants filed replies on September 25, 2009. The Giaimo and route distributor defendants filed a reply on October 7, 2009. By letter dated October 1, 2009 pro se defendant Dennis Springer also moved to dismiss plaintiff's claims against him. This matter is fully submitted.

II. Standard of Review

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 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 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). The plaintiff must satisfy “a flexible ‘plausibility standard.’ ” Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007) rev'd on other grounds sub nom. Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570., 127 S.Ct. 1955

The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), setting forth a two-pronged approach for courts deciding a motion to dismiss. District courts are to first “identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” 129 S.Ct. at 1950. Though “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. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted).

Moreover, as the Second Circuit emphasized in Sealed Plaintiff v. Sealed Defendant, “[ o ]n occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.... This obligation entails, at the very least, a permissive application of the rules governing the form of pleadings.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.2008) (citations and quotation marks omitted); see also Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir.2002) (holding that when plaintiff is appearing pro se, the Court shall “ ‘construe [his complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.’ ”) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000)); accord Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir.2004).

III. Federal Claims

A. RICO Claims

Claims One and Two in plaintiffs' Third Amended Complaint allege civil RICO violations by Newsday, Newsday employees, and independent contractors working with Newsday.⁴ (Third Am. Compl. ¶ 94.) Plaintiff alleges that these defendants “constitute an association-in-fact ‘enterprise’ ” and that the enterprise “acts as a continuing unit to date engaging in an open ended pattern of racketeering that has the potential threat of future criminal conduct.” ( Id.) Plaintiff further alleges that the pattern of racketeering involves “several separate but related schemes,” including circulation and advertising fraud ( id. ¶¶ 96-103), which had a common purpose and effect-“to help Newsday maintain a monopoly and eliminate competition in the print advertising market on Long Island, New York.” ( Id. ¶ 103) For the reasons discussed below, plaintiff's allegations are insufficient to support a plausible RICO claim.

1. Legal Standard

Pursuant to 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).

In order to allege a violation of Section 1962(c), a plaintiff must establish “(1) conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering activity.” Anatian v. Coutts Bank Ltd., 193 F.3d 85, 88 (2d Cir.1999) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)); see also S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir.1996) (“[A] plaintiff must allege that a defendant, ‘employed by or associated with’ an enterprise affecting interstate or foreign commerce,...