Pombert v. Glock, Inc.

• Decision Date: 16 March 2016
• Docket Number: CIVIL ACTION FILE NO. 1:15-CV-723-TWT
• Citation: 171 F.Supp.3d 1321
• Parties: Jeffrey L. Pombert, Plaintiff, v. Glock, Inc., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

171 F.Supp.3d 1321

Jeffrey L. Pombert, Plaintiff,

v.Glock, Inc., et al., Defendants.

CIVIL ACTION FILE NO. 1:15-CV-723-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 16, 2016

John Frank Salter, Jr., Roy E. Barnes, Walter Matthew Wilson, The Barnes Law Group, LLC, Marietta, GA, for Plaintiff.

Amanda Kay Seals Bersinger, John Earl Floyd, Ronan P. Doherty, Tiana Scogin Mykkeltvedt, Bondurant Mixson & Elmore, LLP, Christopher Evan Parker, Michael Paul Kohler, Miller & Martin, PLLC, Christine L. Mast, Hawkins Parnell Thackston & Young, LLP, Atlanta, GA, for Defendants.

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This is a malicious prosecution and RICO action. The Plaintiff Jeffrey L. Pombert claims that the Defendants orchestrated a malicious prosecution of him to further their purported criminal enterprise and racketeering activity. It is before the Court on the Defendant James M. Deichert's Motion to Dismiss [Doc. 22], the Defendant Robert T. Core's Motion to Dismiss [Doc. 24], and the Defendants Consultinvest, Inc., Glock, Inc., and John F. Renzulli's Motion to Dismiss [Doc. 23 & 25]. For the reasons set forth below, the Defendant James M. Deichert's Motion to Dismiss [Doc. 22] is GRANTED, the Defendant Robert T. Core's Motion to Dismiss [Doc. 24] is GRANTED in part and DENIED in part, and the Defendants Consultinvest, Inc., Glock, Inc., and John F. Renzulli's Motion to Dismiss [Doc. 23 & 25] is GRANTED in part and DENIED in part.

I. Background

This case arises out of a supposedly lengthy and complicated racketeering scheme that eventually led to the allegedly malicious prosecution of the Plaintiff. The Defendant Glock, Inc. is one of the most profitable firearms distributors in the world.¹ With its corporate headquarters in Smyrna, Georgia, Glock, Inc. sells firearms manufactured by Glock Ges.m.b.H, an Austrian corporation.² Gaston Glock Sr., the founder of Glock, Inc.'s Austrian parent company, purportedly exercises complete control over Glock, Inc. and its related entities.³ From the 1980s until 2009, Glock Sr. and Charles Ewert created and managed the “Glock Structure,” a group of corporate entities that Glock Sr. and Ewert supposedly used to facilitate a racketeering scheme.⁴ More specifically, the Plaintiff alleges that the Glock Structure was used to “siphon, divert, and hide monies and assets” through sham transactions and companies.⁵ For example, the Defendant Consultinvest, a Georgia corporation, is a real estate holding company that allegedly collects fraudulent rents from other Glock entities.⁶

Ewert's relationship with Glock Sr. ended in the summer of 1999 when Glock Sr. was assaulted during a failed assassination attempt.⁷ Ewert was implicated in the assassination plot.⁸ Ewert and Glock Sr. then became embroiled in a legal battle over control of the Glock Structure. To assist in his legal battle with Ewert and to guide the Glock Structure through impending legal and tax investigations, Glock Sr. hired James R. Harper, III.⁹ Harper negotiated his fees with and submitted all of his bills for the investigation to Paul Jannuzzo, a long-time Glock, Inc. attorney.¹⁰ Harper hired “over a dozen lawyers, accountants, security personnel” to assist him, forming an extensive investigation team.¹¹ In 2001, Harper retained the Plaintiff to be part of his team.¹² The Plaintiff's primary role in the investigation was to develop a strategy to defeat Ewert's claim to Taziria, a company within the Glock Structure.¹³

Harper's investigation lasted from 2000 to 2003, during which time the team uncovered Glock Sr. and Ewert's racketeering scheme.¹⁴ The racketeering scheme purportedly laundered “a portion of Glock Inc. revenues” through “phony marketing and 'support' companies, and transfers of addition millions through Consultinvest,” violating “various laws against tax evasion, money laundering, etc.”¹⁵ Harper, concerned with Glock Sr.'s illegal activities, advised him to fully cooperate with law enforcement officials in their investigations.¹⁶ Glock Sr. initially agreed to cooperate, but, in 2003, reversed his position and allegedly continued to conceal and perpetuate the racketeering scheme.¹⁷ Recognizing that Glock Sr. was not going to cooperate with law enforcement authorities, Harper quit the investigation.¹⁸ Glock Sr. then hired the Defendant James Deichert, a Georgia attorney, to instigate a criminal prosecution of Harper as well as two other former employees.¹⁹ In June of 2007, the Defendants John Renzulli and Deichert filed a criminal complaint against Harper in the City of Smyrna, Georgia.²⁰ In support of the criminal complaint, Deichert sent a letter to the City of Smyrna that purportedly falsely accused Harper of, inter alia , overbilling for work that was never performed.²¹ Additionally, the Plaintiff alleges that Renzulli attempted to implicate Harper through questioning Glock Sr.'s former personal attorney, Peter Manown.²²

In 2007 or 2008, Glock Sr. hired another attorney, the Defendant Robert Core, to pursue the prosecution of both Harper and the Plaintiff.²³ The Plaintiff alleges that Core, along with Deichert and Renzulli, directed and controlled the prosecution and withheld extensive evidence from the prosecution.²⁴ The Plaintiff further alleges that police officer Ramon Harrison and prosecutor John Butters entered into a conspiracy with the Defendants to assist them with their extensive evidence tampering campaign.²⁵ The Plaintiff was indicted on January 21, 2010. On the following day, the Plaintiff was arrested and charged with misappropriating Glock Structure funds and racketeering.²⁶ On March 14, 2013, the Cobb County District Attorney dropped all of the charges against Harper and the Plaintiff through a nolle prosequi .²⁷ The Plaintiff brought suit against the Defendants on March 11, 2015. He alleges that all charges against him were “based on the falsified evidence, influenced witnesses, evidence either destroyed or withheld by the Glock Structure and Enterprise, and misleading statements of Glock, Sr. and Defendants along with those of Harrison and Butters.”²⁸ Based on these allegations, the Plaintiff asserts claims for state law and § 1983 malicious prosecution and Georgia RICO. The Defendants move to dismiss.

II. Legal Standard

A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a “plausible” claim for relief.²⁹ A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely “remote and unlikely.”³⁰ In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff.³¹ Generally, notice pleading is all that is required for a valid complaint.³² Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests.³³

III. Discussion

A. Malicious Prosecution

1. State Law Claim

In Count II of the Complaint, the Plaintiff alleges that the Defendants³⁴ are liable for malicious prosecution under Georgia law.³⁵ Because malicious prosecution claims are not favored in Georgia, a plaintiff bringing such a claim has an especially heavy burden.³⁶ In order to establish a malicious prosecution claim, “a plaintiff must show the following: (1) a criminal prosecution; (2) instigated without probable cause; (3) with malice; (4) pursuant to a valid warrant, accusation, or summons; (5) that terminated in the plaintiff's favor; and (6) caused the plaintiff damage.”³⁷

The Defendants first argue that the Plaintiff's claim fails because he cannot prove the prosecution terminated in his favor. The Defendants contend that the substance of the nolle prosequi demonstrates that a statute of limitations issue, which barred the prosecution from introducing material evidence, prevented the prosecutor from continuing the case, not the Plaintiff's innocence.³⁸ “However, the filing of a nolle prosequi by the prosecutor and dismissal of the action by the trial court constitutes prima facie a termination of the prosecution in favor of the person arrested.”³⁹ In addition, a favorable termination can be gleaned from the prosecutor's intent not to reinstate the prosecution.⁴⁰ Here, based on the nolle prosequi , it is clear that the prosecutor does not intend to reinstate the Plaintiff's prosecution. Thus, the nolle prosequi coupled with the prosecutor's intent not to reinstate the case is sufficient evidence that the prosecution terminated in the Plaintiff's favor. To be sure, in the cases cited by the Defendants, the Georgia courts held a nolle prosequi obtained through compromise did not constitute a prosecution terminating in the plaintiff's favor.⁴¹ But that is not the Plaintiff's situation; here, the prosecutor unilaterally chose not to continue to prosecute the Plaintiff. Consequently, these cases do not aid the Defendants' argument.

The Defendants next contend that the Plaintiff has failed to allege that probable cause did not exist for each count of his indictment. Whether probable cause existed for a plaintiff's prosecution is the gravamen of a malicious prosecution claim.⁴² “Probable cause is absent when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused.”⁴³ “Although evidence of an indictment is not conclusive, it is prima facie evidence of probable cause which shifts the burden to the plaintiff 'to come forward with specific facts tending to show that probable cause did not exist for his arrest....”'⁴⁴ However, in order for the allegedly malicious prosecutor to be protected by the grand jury's indictment, “the prosecutor 'must make a fair, full and complete statement of the facts as they exist. He is not relieved if he...