Livingston v. Shore Slurry Seal, Inc., CIV. A. 00-773(JEI).

• Decision Date: 31 May 2000
• Docket Number: No. CIV. A. 00-773(JEI).,CIV. A. 00-773(JEI).
• Citation: 98 F.Supp.2d 594
• Parties: Peter C. LIVINGSTON, David W. Livingston, Victor Polizzotti, David R. Mauroff, and John Does 1 through 50, Plaintiffs, v. SHORE SLURRY SEAL, INC., Shore Microsurfacing Systems, Inc., Robert Capoferri, Robert Bevilacqua, Kenneth Messina, Donald Potter and Steven Plummer, Defendants.
• Court: U.S. District Court — District of New Jersey

Page 594

98 F.Supp.2d 594

Peter C. LIVINGSTON, David W. Livingston, Victor Polizzotti, David R. Mauroff, and John Does 1 through 50, Plaintiffs, v. SHORE SLURRY SEAL, INC., Shore Microsurfacing Systems, Inc., Robert Capoferri, Robert Bevilacqua, Kenneth Messina, Donald Potter and Steven Plummer, Defendants.

No. CIV. A. 00-773(JEI).

United States District Court, D. New Jersey.

May 31, 2000.

Steven A. Berkowitz, Marlton, NJ, for plaintiffs.

Stevens & Lee, P.C. by Neil C. Schur, Cherry Hill, NJ, for defendants.

OPINION

IRENAS, District Judge.

Presently before the Court is the motion to dismiss of defendants Shore Slurry Seal, Inc., Shore Microsurfacing Systems, Inc., Robert Capoferri, Robert Bevilacqua, Kenneth Messina, Donald Potter and Steven Plummer ("defendants"). For the reasons set forth below, defendants' motion is granted.

I.

Plaintiffs Peter C. Livingston, David W. Livingston, Victor Polizzotti, and David R. Mauroff ("plaintiffs") are current or former employees of defendants Shore Slurry Seal, Inc. and Shore Microsurfacing Systems, Inc. They filed the Complaint in this matter on February 22, 2000, asserting claims under the Davis-Bacon Act, 40 U.S.C. § 276a et seq., The Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1981 et seq., and the prevailing wage acts of New Jersey, New York, and Pennsylvania.¹

Defendants Shore Slurry Seal, Inc. ("Shore Slurry") and Shore Microsurfacing Systems, Inc. ("Shore Microsurfacing") are corporations engaged in the business of road construction and road resurfacing. Both have their principal place of business in Hammonton, New Jersey. Defendants Robert Capoferri, Robert Bevilacqua, Kenneth Messina, Donald Potter, and Steven Plummer are employees of Shore Slurry and Shore Microsurfacing who allegedly exercised supervisory authority over plaintiffs.

Plaintiffs claim that Shore Slurry and Shore Microsurfacing successfully bid and performed various road construction, road surfacing, and road resurfacing projects for the United States and for New Jersey, New York, and Pennsylvania. Plaintiffs have not provided the time, location, or a description of these projects. However, plaintiffs claim that they were paid less than the "prevailing wage" mandated by either the state prevailing wage statutes or the federal Davis-Bacon Act for work performed on these projects.

II.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept the allegations of the complaint as true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although the court must assume as true all facts alleged, "[i]t is not ... proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Finally, when "[c]onfronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir.1988) (emphasis added).

III.

In Count V, plaintiffs charge defendants with conspiracy to violate the Davis-Bacon Act. The Davis-Bacon Act is designed to protect laborers and mechanics employed on government projects from being paid at less than the locally prevailing wage rate. Universities Research Assoc., Inc. v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981). Section 1(a) of the Act, 40 U.S.C. § 276a(a), provides that federal construction contracts in excess of $2,000 shall contain a provision stating that laborers are to be paid no less than the wages prevailing in the community where the construction work is performed. The authority to determine the relevant wage rate is explicitly delegated to the Secretary of Labor and the Secretary's determination is not subject to judicial review. Coutu, 450 U.S. at 761 n. 10, 101 S.Ct. 1451.

The Act sets forth a detailed administrative scheme to enforce violations of its provisions. The Act provides that if the contractor fails to pay the prevailing wages specified in the contract, the Government contracting officer may withhold so much of the accrued payments as may be considered necessary to pay the laborers and mechanics the difference between the contract wages and those actually paid. 40 U.S.C. § 276a(a). Section 276a-2 authorizes the Comptroller General to pay these accrued payments directly to the laborers and mechanics. In the event that these funds are insufficient to reimburse the employees, they may have "the right of action and/or of intervention against the contractor and his sureties" pursuant to the Miller Act, 40 U.S.C. § 270a et seq. 40 U.S.C. § 276a-2(b). In addition, if the contractor fails to pay at least the stipulated minimum wages, the contract may be terminated and the contractor debarred from all Government contracts for a period of three years. 40 U.S.C. § 276a-2(a).

Plaintiffs' claim under the Davis-Bacon Act must be dismissed because there is no private right of action under the Act. Weber v. Heat Control Co., 579 F.Supp. 346 (D.N.J.1982), aff'd, 728 F.2d 599 (3d Cir. 1984). In Weber, the district court relied on the reasoning of the Fifth Circuit in United States v. Capeletti Bros. Inc., 621 F.2d 1309, 1315 (5th Cir.1980). In that case, the Circuit Court discussed the "elaborate administrative scheme" set forth in the Act to enforce compliance with prevailing wage requirements and concluded that "neither the language, the history, nor the structure of the statute supports the implication of a private right of action. ..." Id. at 1317. Because there is no private right of action under the Davis-Bacon Act, plaintiffs' claim that defendants conspired to violate the Act must be dismissed. See In re Orthopedic Bone Screw Prod. Liab. Litig., 193 F.3d 781, 790 (3d Cir.1999)("A claim of civil conspiracy cannot rest solely upon the violation of a federal statute for which there is no corresponding private right of action.").

IV. RICO

A. Background

In Counts I and III of plaintiffs' Amended Complaint, plaintiffs assert claims under RICO, 18 U.S.C. § 1962(c). Section 1962(c) provides that:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities 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.

The RICO statute lists a number of acts that can constitute the "predicate acts" that compose a pattern of racketeering activity. See 18 U.S.C. § 1961(1). In this case, plaintiffs allege the predicate acts of mail and wire fraud. 18 U.S.C. §§ 1341, 1343.

A violation of the mail and wire fraud statutes requires proof of: (1) a scheme or artifice to defraud; (2) use of the mails or interstate wires in furtherance of the scheme; and (3) participation by the defendant in the scheme or artifice. See Schmuck v. U.S., 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The wire or mailing itself need not be fraudulent. A so-called "innocent mailing" will suffice if "incident to an essential part of the scheme." Id. at 711. But while the mailing need not be fraudulent itself, the overall scheme "must involve some sort of fraudulent misrepresentation or omission reasonably calculated to deceive persons of ordinary prudence and comprehension." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1415 (3d Cir.1991) (quoting United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir.1978)). In this case, plaintiffs claim that defendants engaged in a scheme to pay plaintiffs "substantially less than the contractually and legally required Prevailing Wage required by either the State in which the contract was performed, or the Davis-Bacon Act when the contracts were performed pursuant to a contract with the federal government...." (Am. Compl., ¶ 24).

B. Rule 9(b)

Claims of mail and wire fraud which support an alleged RICO violation must satisfy the heightened pleading requirements of Fed.R.Civ.P. 9(b). Rule 9(b) states, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." The purpose of Rule 9(b) is to provide notice of the "precise misconduct" with which defendants are charged and to prevent false or unsubstantiated charges. Seville Indus. Mach. v. Southmost Machinery, 742 F.2d 786, 791 (3d Cir.1984). However, courts should apply the rule with some flexibility and should not require plaintiffs to plead issues that may have been concealed by the defendants. See Christidis v. First Pennsylvania Mortg. Trust, 717 F.2d 96, 99-100 (3d Cir.1983). Also, plaintiffs need not plead the exact "date, place or time" of the fraud, so long as they use an "alternative means of injecting precision and some measure of substantiation into their allegations of fraud." Seville, 742 F.2d at 791.

In Seville, plaintiff, an industrial machinery trader, claimed that defendants fraudulently induced it to enter into various purchase, consignment, joint venture and service agreements regarding certain industrial machinery, and that this fraud constituted a "pattern of racketeering" in violation of RICO, 18 U.S.C. § 1962(b), (c), & (d). The district court dismissed the Complaint on the ground that Seville failed to plead the...