Mackin v. Auberger

• Decision Date: 07 November 2014
• Docket Number: No. 13–CV–6216 EAW.,13–CV–6216 EAW.
• Citation: 59 F.Supp.3d 528
• Court: U.S. District Court — Western District of New York
• Parties: William J. MACKIN, Plaintiff, v. John T. AUBERGER, Joseph T. Loszynski, and others known or unknown, Defendants.

59 F.Supp.3d 528

William J. MACKIN, Plaintiff

v.John T. AUBERGER, Joseph T. Loszynski, and others known or unknown, Defendants.

No. 13–CV–6216 EAW.

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

Signed Nov. 7, 2014.

Jeffrey Wicks, Jeffrey Wicks, PLLC, Rochester, NY, for Plaintiff.

Paul J. Sweeney, Coughlin & Gerhart, LLP, Binghamton, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Plaintiff William J. Mackin (“Plaintiff” or “Mackin”) brings this action against John T. Auberger (“Auberger”) and Joseph F. Loszynski (“Loszynski”) (collectively “Defendants”), alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. (Dkt. 11). Defendants have filed a motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Dkt. 13).

With this lawsuit, Plaintiff has attempted to transform an employment and political dispute into a federal racketeering case. Plaintiff's tactics offend RICO's intended purpose and do not withstand scrutiny under Rule 12(b)(6). Because Plaintiff's amended complaint fails to state a plausible RICO claim, Defendants' motion is granted and the amended complaint is dismissed in its entirety.

BACKGROUND

Plaintiff, the former Deputy Chief of the Greece Police Department (“GPD”), alleges that Defendants Auberger, the former Supervisor of the Town of Greece, and Loszynski, the former Public Safety Director of the Town of Greece, committed RICO violations to bring about “the demise of the then-existing structure of the GPD.” (Dkt. 4 at ¶ 5(g)). Plaintiff alleges that the racketeering activities “began in or around 2002 by Auberger and continued throughout 2009 when Loszynski was hired and beyond.” (Dkt. 11 at ¶ 14). The latest predicate act cited by Plaintiff in his amended complaint allegedly occurred on July 28, 2010. (Id. at ¶¶ 35, 52–53). The statement of facts that follows is based on the allegations contained in Plaintiff's amended complaint.

I. Plaintiffs Amended Complaint

In 2002, Plaintiff was Captain of the GPD. (Id. at ¶ 15). At that time, Plaintiff and three other officers sent a letter to the Monroe County Sheriff's Department requesting a promotional exam for the position of Deputy Chief. (Id. at ¶ 17). Plaintiff alleges that Auberger called the applicants, including Plaintiff, into his office and demanded that they withdraw their requests for promotional exams, as he wanted his own candidate, Michael Ceretto, to fill the Deputy Chief position. (Id. ). Plaintiff refused to withdraw the letter, and the promotional exam was held. (Id. at ¶ 18). Plaintiff and the other officers took and passed the exam in March 2002. (Id. at ¶ 19). An “open competitive exam” also was given, and Ceretto, Auberger's candidate, scored second highest on that exam. (Id. ). Plaintiff alleges that New York law required Auberger to select the Deputy Chief from the promotional list before selecting a candidate from the open competitive list. (Id. at ¶ 20).

Sometime in or around July 2002, Auberger allegedly summoned Merritt Rahn, Chief of the GPD, to his home. (Id. ). Plaintiff alleges that the meeting took place in a “highly coercive atmosphere.” (Id. ). Auberger demanded that Rahn instruct Plaintiff to “sign off,” or remove himself from the Deputy Chief list so that he could make Ceretto the Deputy Chief. (Id. at ¶ 21). Plaintiff alleges that “[i]n exchange for Rahn's doing so, Auberger clearly made a threat—either directly or impliedly—that if Rahn did not do so, he would lose his job as he knows it, i.e., the conditions and authority of his employment, and such conditions and authority may be taken over from him by Auberger.” (Id. ). Plaintiff further alleges that Rahn “clearly received value and benefit” by complying with Auberger's orders, and that the interaction between Auberger and Rahn constituted the crime of “bribery, in violation of New York Penal Law section 200.00 and 18 U.S.C. section 1961(1).” (Id. ).

Rahn reluctantly told Plaintiff to remove himself from the Deputy Chief list, but Plaintiff refused to do so. (Id. at ¶ 22). Auberger continued to pursue Rahn to pressure Plaintiff to remove himself from the Deputy Chief list. (Id. at ¶ 23). Rahn also informed Plaintiff that Auberger made Plaintiff “a marked man,” that Auberger “hate[d]” Plaintiff, and that Auberger was “out to get” Plaintiff. (Id. ).

As a result of Auberger's actions, Plaintiff discussed with Rahn the possibility of arresting Auberger for coercion and official misconduct. (Id. at ¶ 24). Plaintiff also consulted the then-Monroe County District Attorney, Howard Relin (“Relin”), to discuss Auberger's actions. (Id. at ¶ 25). Relin advised Plaintiff against arresting Auberger due to the disorder it would cause in the Town of Greece. (Id. ). Plaintiff followed Relin's advice. (Id. ).

Auberger ultimately hired Plaintiff for the Deputy Chief position. (Id. at ¶ 26). Plaintiff alleges that Auberger hired him “solely for the purpose of doing him harm and punishing him,” and did so by reducing his salary, depriving him of a secretary, restricting Plaintiff's use of his official GPD police vehicle, and not allowing him to be present during the interviews of prospective hires. (Id. at ¶¶ 26–27). Plaintiff alleges that, by depriving him of these benefits, “Auberger instilled a fear in Mackin through Rahn that if Mackin did not give up the aforementioned benefits, i.e. property, injury may come to Mackin or someone else....” (Id. at ¶ 28). Plaintiff alleges that Auberger's conduct constituted the “crime of extortion, in violation of New York Penal Law section 155(2)(e) and 18 U.S.C. section 1961(1) ” because Auberger “wrongfully took or with[held] the aforementioned benefits and property from an owner, i.e. Mackin.” (Id. ).

In or around May 2009, Loszynski, a former state police deputy superintendent for internal affairs, was hired by Auberger as the Director of Public Safety. (Id. at ¶¶ 31–32). Plaintiff alleges that Loszynski was hired “to effect, continue, strengthen and further Auberger's dominion and control over the GPD,” and that Loszynski served as Auberger's “bulldog.” (Id. at ¶¶ 33–34). For example, in late 2009, Loszynski allegedly told GPD officers that if they ever brought up Auberger's name in connection with any wrongdoing, they would be terminated, and their benefits would be curtailed or ended. (Id. at ¶ 34). Plaintiff alleges that Loszynski's threats “constituted the crime of extortion, in violation of New York Penal Law section 155(2)(e) and 18 U.S.C. section 1961(1), since by the aforementioned acts, Auberger and Loszynski wrongfully threatened to take or withhold the aforementioned benefits and property from an owner....” (Id. ).

Plaintiff further alleges that he was wrongfully accused of shredding subpoenaed documents. On Saturday, April 25, 2009, Plaintiff was shredding daily reports which were “completely unrelated to any subpoena ... issued by the Monroe County District Attorney's Office....” (Id. at ¶¶ 54–55). The shredding was “an innocuous act which was part of Mackin's daily routine every day for years,” and the documents being shredded were “personal copies, not originals, and had been in Mackin's filing cabinet since approximately 1997.” (Id. at ¶ 55). Sergeant Richard Downs allegedly heard Plaintiff's shredder and inaccurately concluded that Plaintiff was shredding subpoenaed documents named in a subpoena issued by the Monroe County District Attorney's office on the previous day. (Id. at ¶ 57). Downs contacted Lieutenant Patrick Phelan and Lieutenant Steve Chatterton with this information, and either Phelan or Chatterton contacted the New York State Police. (Id. at ¶ 58).

Plaintiff alleges that on April 26, 2009, at 2:30 a.m., he was awakened by a phone call to his department-issued cell phone from Lieutenant Steve Wise, who asked Plaintiff to come to the front door of his home. (Id. at ¶ 59). Wise informed Plaintiff that he was being suspended, and he was to turn over his vehicle, badge, gun, and computer. (Id. at ¶ 60). Wise did not offer an explanation as to why Plaintiff was being suspended. (Id. ). As Plaintiff was complying with Wise's orders, he received a phone call from Rahn, who also had been suspended. (Id. at ¶ 61).

Plaintiff further alleges that on Sunday, April 26, 2009, at 12:00 p.m., only hours after he had been suspended, the Greece Town Board (“Town Board”) was called to an emergency meeting. (Id. at ¶ 63). Auberger told board members that Plaintiff, Rahn, and Sergeant Brian Ball (“Ball”) were being suspended, based on charges drafted by Loszynski. (Id. ). The Town Board allegedly was not given any reason for the suspensions because the investigation was confidential. (Id. at ¶¶ 63–64). The Town Board “reluctantly” voted to approve the suspensions at 1:00 p.m. that day. (Id. at ¶ 64).

Plaintiff alleges that Auberger's telling the Town Board that Plaintiff, Rahn, and Ball were being suspended, and that the investigation was confidential and that no information could be disclosed, constituted “a threat to the Board—delivered by the de facto head of the Republican Party—that it would not benefit from the backing of the Republican Party if it did not vote as he instructed.” (Id. at ¶ 66). Plaintiff further alleges that Auberger previously told individuals with positions of power in Greece that if they did not follow his instructions, that “they would be out.” (Id. at ¶ 67). Plaintiff alleges that Auberger's “message” to the Town Board on April 26, 2009, was “do as I tell you, or you're out and you receive no political support from me.” (Id. at ¶ 68). Plaintiff alleges that Auberger's actions constituted bribery of the Town Board, in violation of the New York Penal Law § 200.00 and 18 U.S.C. § 1961(1). (Id. ). Plaintiff also alleges that by seeking to improperly influence the Town Board, Auberger and Loszynski committed obstruction of criminal investigations, in violation of 18 U.S.C. § 1510. (Id. at ¶ 69).

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