Northeast Women's Center, Inc. v. McMonagle

• Decision Date: 25 October 1985
• Docket Number: Civ. A. No. 85-4845.
• Parties: NORTHEAST WOMEN'S CENTER, INC. v. Robert McMONAGLE, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

624 F. Supp. 736

NORTHEAST WOMEN'S CENTER, INC. v. Robert McMONAGLE, et al.

Civ. A. No. 85-4845.

United States District Court, E.D. Pennsylvania.

October 25, 1985.

Edmond A. Tiryak, Philadelphia, Pa., for plaintiff.

Charles F. Volz, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

The plaintiff in this action is the Northeast Women's Center, Inc., a Pennsylvania corporation, which provides pregnancy testing, gynecological care, counseling and abortions to its clients. The defendants are a group of thirteen individuals, identified in their memorandum of law as "pro-life activists who have disrupted plaintiff's business activities." (defendants' memo at 1). The plaintiff has filed a complaint which lists actions by the defendants in furtherance of an alleged "conspiracy which has as its goal the destruction of plaintiff's business and property." (defendants' complaint at 1). The plaintiff is seeking injunctive relief and damages.

The defendants have filed a motion to dismiss the plaintiff's complaint under Rule 12 of the Federal Rules of Civil Procedure. The defendants contend that the court lacks subject matter jurisdiction under Rule 12(b)(1), that the complaint fails to state a claim under which relief can be granted under Rule 12(b)(6), and that the court should not hear the plaintiff's pendent state law claims in view of the absence of cognizable federal claims. For the following reasons, the court finds the defendants' contentions to be without merit and will deny the motion.

A complaint should not be dismissed for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of 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, 101-02, 2 L.Ed.2d 80 (1957). In deciding whether to dismiss under Rule 12(b)(6), "factual allegations of the complaint are to be accepted as true", and "reasonable factual inferences will be drawn to aid the pleader." D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). In order to dismiss under Rule 12(b)(1) for want of subject matter jurisdiction, the claims must be "... so insubstantial, implausible, foreclosed by prior decisions of this court or otherwise so completely devoid of merit so as not to involve a federal controversy within the jurisdiction of the District Court." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S.Ct. 772, 776-77, 39 L.Ed.2d 73 (1974).

The plaintiff's complaint includes three counts: a claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq., a claim pursuant to the antitrust laws, 15 U.S.C. §§ 1, 15; and pendent claims involving state law torts.

RICO COUNT

The defendants argue that the plaintiff's RICO count should be dismissed because the plaintiff fails to allege the defendants (1) committed predicate offenses, and (2) invested in an enterprise.

Section 1962 of the RICO Act provides that

It shall be unlawful for any person employed 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 enterprises' affairs through a pattern of racketeering activity.

A "pattern of racketeering activity" as defined by RICO, 18 U.S.C. § 1961(5), consists of the commission of two acts of racketeering activity as set forth in 18 U.S.C. § 1961(1), within ten years of one another. Paragraph 37 of the complaint alleges thirteen acts¹ of robbery were committed by the defendants on August 10, 1985. One of the "predicate acts" comprising "racketeering activity" under RICO is "any act or threat involving ... robbery ... which is chargeable under state law and punishable by imprisonment for more than one year". 18 U.S.C. § 1961(1)(A). Further, the complaint alleges a conspiracy to destroy a business engaged in interstate commerce, by means of robbery, theft, physical violence and threats of physical violence. This alleged conspiracy constitutes a violation of 18 U.S.C. § 1951; such a violation in turn constitutes a predicate act under RICO. 18 U.S.C. § 1961(1)(B). Thus, the plaintiff's RICO count cannot be dismissed for failure to allege the predicate acts required by the statute.

The defendants aver that "the assertions of racketeering are so plainly insubstantial as to be devoid of any merit." However, the recent case of Sedima, S.P. R.L. v. Imrex Co., Inc., 473 U.S. ___, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) clarifies that if the plaintiff alleges that the defendants engaged in a pattern of racketeering activity in a manner forbidden by section 1962 and that the racketeering activities injured the plaintiff in his business or property, the plaintiff has stated a claim. Stating a claim pursuant to § 1962(c) requires alleging (1) conduct, (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, 105 S.Ct. at 3285. "But the statute requires no more than this. Where the plaintiff alleges each element of the violation, the comparable injury necessarily is the harm caused by the predicate acts sufficiently related to constitute a pattern, for the essence of the violation is the commission of those acts in connection with the conduct of an enterprise." Id. at 3286. Here, the plaintiff's have alleged all four elements and have described the defendant's enterprise as a "group of individuals who have entered into a conspiracy which has as its goal the destruction of plaintiff's business and property." (Complaint at 1).

The defendants are incorrect in contending that the RICO count must fail because the plaintiffs do not allege that the defendants invested in the enterprise. Sections 1962(b), (c) and (d) do not require investment by the defendants: the statute encompasses conduct related to the unlawful enterprise other than direct financial investment.

In summary, it cannot be said that no set of facts proven in relation to the plaintiff's complaint could result in liability for the defendants under RICO, thus, the plaintiff's RICO count will not be dismissed.

ANTITRUST COUNT

The complaint asserts that in acting to destroy the plaintiff's business, the defendants have violated "the Sherman Act," 15 U.S.C. § 1, which provides that "every ... combination ... or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal ..." For activities to constitute a Section 1 violation, the following five elements must be present: 1) the activities must be in or affect interstate commerce or foreign commerce; 2) the activities must be performed by two or more persons; 3) the activities must be the result of concerted action; 4) the concerted action must constitute a restraint on trade or commerce; and 5) the restraint must be unreasonable." II E.D. Kintner, Federal Antitrust Law § 9.1, 5 (1980). All five elements have been alleged in the plaintiff's pleading.

(1) "The test of jurisdiction is not that the acts complained of affect a business engaged in interstate commerce but that the conduct complained of affects the interstate commerce of such business." Page v. Work, 290 F.2d 323, 330 (9th Cir.) cert. denied, 368 U.S. 875, 82 S.Ct. 121, 7 L.Ed.2d 76 (1961). The plaintiff states that it engages in interstate commerce (Complaint ¶ 4) and that the defendants have conspired to destroy the plaintiff's business (Complaint ¶ 21), inferring that destruction of the business would necessarily affect the interstate commerce of the business.

The Supreme Court has declared that "if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze." United States v. Women's Sportswear Mfrs. Ass'n, 336 U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805 (1949). Discovery may reveal that the effect on interstate commerce of the alleged antitrust violation is not direct or substantial, but rather, is inconsequential and remote. The court may choose to refrain from sustaining federal antitrust jurisdiction upon such a finding. See Page v. Work, 290 F.2d at 332. However, presently, on the fact of the pleadings, the plaintiffs have alleged an affect on interstate commerce.

(2) The plaintiff has alleged the activities have been performed by thirteen persons. (Complaint ¶ 6-18).

(3) The plaintiff has alleged that the activities are the result of joint, concerted action by the individual defendants. (Complaint ¶ 1, 20, 21, 22). An express agreement or other direct evidence of the conspiracy need not be presented, as the necessary concerted action may be inferred from indirect evidence such as the "course of dealings or other circumstances." American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 1138-39, 90 L.Ed. 1575 (1946).

(4) and (5) Contracts, combinations and conspiracies which directly hinder or obstruct interstate commerce, and thus operate to the prejudice of the public interest by restricting competition or obstructing trade, are restraints on trade or commerce prohibited by the Sherman Act. United States v. American Tobacco, 221 U.S. 106, 179, 31 S.Ct. 632, 648, 55 L.Ed. 663 (1911). "The legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition ... the true test of legality is whether the restraint imposed is such as merely regulates ... competition or whether it is such as may suppress or even destroy competition." Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918). The plaintiff has defined the defendants' alleged restraint of trade as actions intended to further the goal of destroying the plaintiff's business, largely through illegal practices. Thus, while discovery or trial may prove otherwise, as the pleadings now stand the plaintiff has alleged...