Davis v. Hudgins

• Decision Date: 02 August 1995
• Docket Number: Civ. A. No. 4:94cv163.
• Citation: 896 F. Supp. 561
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Samuel B. DAVIS, Jr., Plaintiff, v. Richard W. HUDGINS, McKinley Simmons, Howard D. Andleton, James M. Dixon, Timothy L. Dalton, James S. Ellenson, Clyde M. Weaver, Lawrence J. Redding, III, Robert D. Hicks, Randell C. Ogg, J.W. Hornsby, Jr., and Unknown Conspirator(s), Defendants.

896 F. Supp. 561

Samuel B. DAVIS, Jr., Plaintiff, v. Richard W. HUDGINS, McKinley Simmons, Howard D. Andleton, James M. Dixon, Timothy L. Dalton, James S. Ellenson, Clyde M. Weaver, Lawrence J. Redding, III, Robert D. Hicks, Randell C. Ogg, J.W. Hornsby, Jr., and Unknown Conspirator(s), Defendants.

Civ. A. No. 4:94cv163.

United States District Court, E.D. Virginia, Newport News Division.

August 2, 1995.

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Samuel B. Davis, Jr., Newport News, VA, pro se.

Brian Nelson Casey, Taylor & Walker, P.C., Norfolk, VA, for defendant Richard W. Hudgins.

James S. Ellenson, Newport News, VA, for defendants McKinley Simmons and James S. Ellenson.

Richard J. Cromwell, McGuire, Woods, Battle & Boothe, Norfolk, VA, for defendants Howard C. Andleton and James M. Dixon.

Gregory E. Lucyk, Office of the Attorney General, Richmond, VA, for defendants Clyde M. Weaver and J.W. Hornsby, Jr.

Willard M. Robinson, Jr., Newport News, VA, for Lawrence J. Redding, III.

Robert D. Hicks, Gloucester, VA, pro se.

Robert E. Sarazen, Sherman, Meehan & Curtin, P.C., Washington, DC, for defendant Randell C. Ogg.

OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the Court on Defendants' Motions to Dismiss and Motions for Sanctions. For the reasons stated below, the Court GRANTS Defendants' Motions to Dismiss and Defendants' Motions for Sanctions.

I. Factual and Procedural History

Plaintiff Samuel B. Davis, Jr. brought this pro se action on October 27, 1994, alleging that Defendants violated the Racketeering Influenced and Corrupt Organizations Statute (RICO), 18 U.S.C. § 1961 et seq. On March 2, 1995, Plaintiff filed an Amended Complaint, which reasserted the RICO claims, and also alleged that Defendants violated his civil rights.

In Count One of the Amended Complaint, Plaintiff alleges that Defendants committed wire and mail fraud as part of a criminal enterprise in violation of RICO. In Count Two, Plaintiff alleges that Defendants conspired to conduct the activities of a criminal enterprise for the purpose of racketeering. In Count Three, Plaintiff alleges that Defendants Hudgins, Ellenson, Weaver, Redding, Hicks, Ogg and Hornsby "willfully conspired" to violate Plaintiff's civil rights in violation of Title 42, sections 1983, 1985, 1986 and 1988 of the United States Code.

Plaintiff lists specific acts with respect to each Defendant. Most of these acts relate to a lawsuit between Plaintiff and Defendant Simmons the "Simmons litigation" concerning ownership of and title to certain real estate. Defendant Redding first represented Plaintiff in the Simmons litigation, but was subsequently replaced as Plaintiff's counsel by Defendants Hicks and Ogg. Defendant Ellenson represented Defendant Simmons in the action. Initially, Defendant Weaver served as Commissioner in Chancery in the action, but Defendant Hornsby was subsequently substituted as Commissioner in Chancery.

Specifically, Plaintiff alleges that Defendant Simmons: 1) on three occasions between March 1, 1985 and October 16, 1986, submitted fraudulent loan applications to savings institutions and to Plaintiff; 2) committed perjury in a deposition taken on January 11, 1991 in connection with the Simmons litigation. Plaintiff alleges that Defendant Ellenson: 1) requested the Newport News Circuit Court to appoint Defendant Weaver as Commissioner in Chancery in the Simmons litigation, despite knowledge that a conflict of interest existed; 2) threatened to file suit against Plaintiff for discrimination; 3) threatened to file suit against Plaintiff for malpractice based on his representation of Defendant Simmons; 4) failed to correct the record after Defendant Simmons allegedly committed perjury. Plaintiff alleges that Defendant Weaver: 1) agreed to represent two individuals and gave them false information; and 2) agreed to act as Commissioner in Chancery in Defendant Simmons' suit against Plaintiff despite a conflict of interest. Plaintiff alleges that Defendant Redding attempted to obstruct Plaintiff from disclosing that Defendant Weaver had a conflict of interest in the Simmons litigation. Plaintiff alleges that Defendant Hicks advised Plaintiff that he should seek a lawyer not licensed in Virginia to act as counsel to Plaintiff in the Simmons litigation, and that Defendant Hicks agreed to act as local counsel. Plaintiff alleges that Defendant Ogg failed to introduce evidence during a deposition and failed to pursue a charge of perjury against Defendant Simmons. Plaintiff alleges that Defendant Hornsby attempted to obtain the signature of Plaintiff's counsel on a settlement agreement to which Plaintiff had not agreed.

Plaintiff's allegations regarding the remaining Defendants do not appear to be related to either the Simmons litigation or to each other. Plaintiff alleges that Defendant Hudgins told Plaintiff that Defendant Simmons was owed $12,000.00, in an attempt to induce Plaintiff to provide additional financing to Defendant Simmons. Plaintiff alleges that Defendants Andleton and Dixon falsely advised two individuals that Defendant Simmons was insolvent, and failed to advise these individuals that they had dealings with Defendant Simmons. Finally, Plaintiff alleges that Defendant Dalton filed a Chapter 13 bankruptcy petition to defraud creditors, including Plaintiff.

Each of the Defendants has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and Plaintiff has filed memoranda in opposition. Additionally, Defendants Hudgins, Ogg, Ellenson, Simmons, Redding, and Hicks have filed motions for sanctions pursuant to Federal Rule of Civil Procedure 11, and Plaintiff has filed a memorandum in opposition.

II. Analysis

A. Motions to Dismiss

1. Standard of Review

In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept the facts pleaded by the plaintiff as true. The court should not dismiss the claim unless it appears to a certainty that the plaintiff can prove no facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Bruce v. Riddle, 631 F.2d 272, 273-74 (4th Cir.1980). The court must accept the factual allegations in the complaint and must construe them in the light most favorable to the plaintiff. Martin Marietta Corp. v. International Telecommunications Satellite Org., 991 F.2d 94, 97 (4th Cir.1992). The court can only rely upon the allegations in the complaint and those documents attached as exhibits or incorporated by reference. Simons v. Montgomery County Police Officers, 762 F.2d 30, 31 (4th Cir. 1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986).

2. RICO Claims

The Racketeering Influenced and Corrupt Organizations Statute, 18 U.S.C. § 1961 et. seq., prohibits two types of racketeering. Sections 1962(a) and 1962(b) prohibit the acquisition of legitimate businesses through racketeering activity, or through the use of proceeds from racketeering activities.¹ Section 1962(c) prohibits conducting the affairs of an enterprise engaged in racketeering activity.² Section 1962(d), the RICO conspiracy statutes makes it illegal to conspire to violate sections 1962(a), (b), or (c).³

Section 1964 provides a private cause of action to "any person injured in his business or property by reason of a violation of section 1962." 18 U.S.C. § 1964. A successful RICO plaintiff may recover treble damages, costs incurred in pursuing the suit, and attorney's fees. Id.

a. Section 1962(b)

Count One of Plaintiff's Amended Complaint alleges that Defendants have violated RICO section 1962(b). To state a cause of action under section 1962(b), Plaintiff must allege that Defendants, through a pattern of racketeering activity or collection of an unlawful debt, acquired an interest in or control of an enterprise. See 18 U.S.C. § 1962(b). Additionally, Plaintiff must allege a specific nexus between the control of a named enterprise and the alleged racketeering activity. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). Plaintiff's complaint makes no such allegations. Plaintiff simply alleges that Defendants were engaged in a "pattern of racketeering," but fails to allege that Defendants acquired an interest in any sort of enterprise. Plaintiff therefore has failed to state a claim under 18 U.S.C. § 1962(b). Accordingly, the Court GRANTS Defendants' Motions to Dismiss Plaintiff's section 1962(b) claim.

b. Section 1962(d)

Count Two of Plaintiff's Amended Complaint alleges that Defendants conspired to violate sections 1962(b) and 1962(c), in violation of 18 U.S.C. § 1962(d).

As discussed above, Plaintiff has not alleged any facts indicating that Defendants acquired an interest in or control of an enterprise, in violation of section 1962(b). Likewise, Plaintiff has not alleged that Defendants entered into an agreement to acquire an interest in or control of an enterprise through a pattern of racketeering. Consequently, Plaintiff's claim that Defendants conspired to violate section 1962(b) also fails.

To prove a violation of section 1962(c), the plaintiff must demonstrate "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex, 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (footnote omitted). The Court finds that Plaintiff has not adequately alleged these four elements, or that Defendants entered into a conspiracy, the overall objective of which was to conduct an enterprise through a pattern of racketeering.

i. "conduct"

In Reves v. Ernst & Young, ___ U.S. ___, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the United States Supreme Court discussed the "conduct" element of section 1962(c)...