Gerace v. Utica Veal Co., Inc.

• Decision Date: 29 February 1984
• Docket Number: No. 83-CV-412.,83-CV-412.
• Citation: 580 F. Supp. 1465
• Parties: Joseph GERACE, as Commissioner of Agriculture and Markets of the State of New York, Plaintiff, v. UTICA VEAL CO., INC., Mariano Broccoli, and Victor Broccoli, Defendants.
• Court: U.S. District Court — Northern District of New York

580 F. Supp. 1465

Joseph GERACE, as Commissioner of Agriculture and Markets of the State of New York, Plaintiff, v. UTICA VEAL CO., INC., Mariano Broccoli, and Victor Broccoli, Defendants.

No. 83-CV-412.

United States District Court, N.D. New York.

February 29, 1984.

Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y., for plaintiff; James McSparron and Alan S. Kaufman, Asst. Attys. Gen., Albany, N.Y., of counsel.

Capecelatro, Del Buono, Vaughan & Compson, P.C., Utica, N.Y., Segal & Hundley, New York City, for defendants; Salvador J. Capecelatro, Utica, N.Y., Marvin B. Segal, Edward M. Chikofsky, Harriet B. Rosen, New York City, of counsel.

MEMORANDUM—DECISION and ORDER

MINER, District Judge.

This action is brought by Joseph Gerace,¹ Commissioner of Agriculture and Markets of the State of New York, on his own behalf and on behalf of all persons who allegedly have suffered injury from defendants' fraudulent practices, against the Utica Veal Company, Inc. (Utica Veal) and its principals, Mariano Broccoli and Victor Broccoli. The complaint includes claims predicated upon the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO), various sections of the Packers and Stockyards Act, 7 U.S.C. §§ 192, 228b and common law fraud. Jurisdiction in this Court is asserted pursuant to 18 U.S.C. § 1964(c), 7 U.S.C. § 209, 28 U.S.C. § 1331 and the doctrine of pendent jurisdiction. Before the Court is defendants' motion for judgment on the pleadings, Fed.R.Civ.P. 12(c), their motion for a stay of these proceedings already having been denied in a bench decision following oral argument on November 18, 1983.

II

According to the allegations contained in the complaint, Utica Veal is a New York corporation "engaged in the business of buying cattle and other livestock, operating a slaughterhouse and selling and distributing veal, beef, pork and other meats." Complaint at ¶ 5. Defendants Mariano Broccoli and Victor Broccoli are alleged to be the "principals, managers, and chief operating officers and primary stockholders of Utica Veal, Inc." Id. at ¶ 6.

Plaintiff's connection with the acts giving rise to this action stems from his responsibility for the administration of the New York Agriculture and Markets Law and the State's Brucellosis Indemnity Program. Brucellosis, or Bovine Infectious Abortion, is a disease which affects breeding cattle and which is capable of spreading from one animal to another as well as to humans.² When an infected animal is identified, the most effective means of eliminating the disease is to slaughter the entire herd to which the infected animal belongs. This also is a reasonably viable economic alternative, since consumption by humans of meat from infected cattle apparently poses no known health hazard.

However, since infected cattle often are slaughtered before attaining their maximum weight and farmers thereby do not receive the otherwise full value for their herds, New York has empowered the Commissioner of Argiculture and Markets to indemnify farmers who agree to an early slaughter of their infected herds. N.Y. Agric. & Mkts.Law § 90.³ The statutory formula for determining the State's payment to participating farmers provides that the amount of indemnity received by the farmer is reduced by the salvage value of the slaughtered animal, a value determined by the weight and quality of the slaughtered animal's carcass.

Sixteen infected herds of cattle apparently were slaughtered by Utica Veal under the State Brucellosis Indemnity Program. It is plaintiff's contention that the slaughtered cattle were underweighted, misgraded or both. As a result of this alleged fraud, the farmers involved were paid less for their cattle by Utica Veal than they otherwise would have received. Concommitantly, by virtue of the statutory formula for indemnification, New York was obliged to make increased payments to the participating farmers.

Defendants seek a dismissal of plaintiff's RICO claim, contending it has no application to the acts of which plaintiff complains. Specifically, defendants contend that plaintiff alleges no "compensable injury" under RICO because the damages claimed by plaintiff allegedly result solely from defendants' commission of the underlying predicate fraudulent acts. 18 U.S.C. § 1961(1). Defendants also maintain that plaintiff has failed adequately to allege the necessary pattern of racketeering activity to sustain a RICO claim. 18 U.S.C. § 1961(5).

With respect to plaintiff's claim pursuant to the Packers and Stockyards Act, defendants argue that no private right of action is provided by that Act and, in any event, the claim must be dismissed in light of plaintiff's failure to allege an intent by defendants to eliminate competition, or actions by defendants having that effect. Finally, defendants maintain that plaintiff has not complied with the pleading requirements found in Fed.R.Civ.P. 8(a) concerning this claim.

III

A. RICO

In order to state a claim under the provisions of RICO, plaintiff must allege "(1) that the defendants (2) through the commission of two or more acts (3) constituting a `pattern' (4) of `racketeering activity' (5) directly or indirectly invest in, or maintain an interest in, or participate in (6) an `enterprise' (7) the activities of which affect interstate or foreign commerce. 18 U.S.C. § 1962(a)-(c) (1976)." Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983). Plaintiff has met this pleading burden in the case at bar.

Here, plaintiff alleges that the defendants, through repeated instances of misweighting and undergrading slaughtered cattle, and through the use of the mails and wire communications, defrauded both the farmers whose cattle were slaughtered and the New York State Brucellosis Indemnity Program. Moreover, plaintiff alleges that the individual defendants are the principals of Utica Veal, and that the operations of Utica Veal affect interstate commerce, see, e.g., Complaint at ¶ 7. Taking these allegations as true, as it must on a motion addressed only to the sufficiency of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), this Court concludes that plaintiff adequately has pleaded a claim for relief under the provisions of RICO. See also Soper v. Simmons Int'l, Ltd., 582 F.Supp. 987 (N.D.N.Y.1983).

Defendants' remaining contentions with respect to the adequacy of the RICO claim as it is pleaded in the complaint also have been rejected by the court in Moss. First, defendants contend the RICO claim must fail because plaintiff has not alleged any involvement by defendants in "organized crime." In Moss, Judge Meskill noted that, although the legislative history surrounding the enactment of RICO indicates that the eradication of organized crime was an underlying purpose of RICO, the statute itself makes no reference to that term, and such a requirement should not be read into the statute by a federal court. Moss v. Morgan Stanley, Inc., 719 F.2d at 21; see also United States v. Ivic, 700 F.2d 51, 62 (2d Cir.1983); Schact v. Brown, 711 F.2d 1343, 1353 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983).

Defendant next asserts that the RICO "enterprise" must be separate and distinct from the "pattern of racketeering activity" that is alleged. The Moss court expressly rejected this contention, and cited with disapproval the decision in United States v. Anderson, 626 F.2d 1358 (8th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981) which reached the contrary result. See United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981); United States v. Bagaric, 706 F.2d 42 (2d Cir.1983); United States v. Mazzei, 700 F.2d 85 (2d Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983). In fact, in this circuit, the RICO enterprise need consist of nothing "more than the sum of the predicate racketeering acts." United States v. Bagaric, 706 F.2d at 55. For all of these reasons, defendants' motion to dismiss the RICO claim as facially insufficient must be denied.⁴

B. Packers and Stockyards Act

In support of their motion to dismiss plaintiff's claim under the Packers and Stockyards Act, defendants maintain that no private right of action exists under that statute. See Pacific Trading Co. v. Wilson & Co., Inc., 547 F.2d 367 (7th Cir. 1976). Shortly after the decision was rendered in Pacific Trading Co., however, 7 U.S.C. § 209 was amended to provide the following:

Liability to individuals for violations; enforcement generally.

(a) If any person subject to this chapter violates any of the provisions of this chapter, or any order of the Secretary under this chapter, relating to the purchase, sale or handling of livestock, he shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of such violation.

(b) Such liability may be enforced either (1) by complaint to the Secretary as provided in section 210 of this title, or (2) by suit in any district court of the United States of competent jurisdiction; but this section shall not in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.

(emphasis added).

In determining whether § 209, as amended, provides a private action for the recovery of damages, this Court must "begin with the familiar canon of statutory construction that the starting point for the interpretation of a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In light of the clear and express language of § 209 providing for...