Rowe v. Gary, Williams, Parenti, Watson & Gary, P.L.L.C.

• Decision Date: 31 March 2016
• Docket Number: CIVIL ACTION NO. 1:15-CV-00770-AT
• Citation: 181 F.Supp.3d 1161
• Parties: Leonard Rowe, et al, Plaintiffs, v. Gary, Williams, Parenti, Watson & Gary, P.L.L.C., et al, Defendants.
• Court: U.S. District Court — Northern District of Georgia

181 F.Supp.3d 1161

Leonard Rowe, et al, Plaintiffs,

v.Gary, Williams, Parenti, Watson & Gary, P.L.L.C., et al, Defendants.

CIVIL ACTION NO. 1:15-CV-00770-AT

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

Signed March 31, 2016

Edward Griffith, The Griffith Firm, New York, NY, Linell Marquette Rowe, Law Office of Linell Rowe, Atlanta, GA, for Plaintiffs.

James Francis Bogan, III, Jeffrey H. Fisher, C. Allen Garrett, Jr., Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, for Defendants.

Maria Sperando, Stuart, FL, pro se.

ORDER

Amy Totenberg, United States District Judge

On March 13, 2015, Plaintiffs Leonard Rowe, Rowe Entertainment, Inc., Lee King, and Lee King Productions, Inc. filed their Complaint in this Court against Gary, Williams, Parenti, Watson & Gary, P.L.L.C. ("the Gary Firm"), Willie E. Gary, William C. Campbell, Sekou M. Gary, Tricia P. Hoffler, Lorenzo Williams, and Maria P. Sperando. Plaintiffs' allegations arise from the Defendants' prior representation of them, along with other plaintiffs, from 2001 to 2005, in an anti-trust and civil rights lawsuit based on alleged race discrimination against predominantly white talent booking agencies and concert promoters litigated in the Southern District of New York. See Rowe Entm't, Inc. v. William Morris Agency, Inc. , No. 98 Civ. 8272, 2005 WL 22833 (S.D.N.Y. Jan. 5, 2005), aff'd 167 Fed.Appx. 227 (2d Cir.2005). Defendants here were all attorneys at the Gary Firm representing Plaintiffs in the civil rights lawsuit. Plaintiffs allege that the Gary Firm and the individually named attorneys intentionally sabotaged the civil rights lawsuit in exchange for a multi-million dollar bribe from the talent-agency-defendants in that suit.

Plaintiffs assert the following claims against the Defendants here: (1) substantive violations of the federal Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(c) ; (2) conspiracy under federal RICO, 18 U.S.C. § 1962(d) ; (3) substantive violations of the Georgia Racketeer Influenced and Corrupt Organizations Act ("Georgia RICO"), O.C.G.A. § 16–14–4(b) ; (4) conspiracy under Georgia RICO, O.C.G.A. § 16–14–4(c) ; (5) fraud; (6) legal malpractice; and (7) unjust enrichment.

The Gary Firm and the individual Defendants Willie E. Gary, William C. Campbell, Sekou M. Gary, Tricia P. Hoffler, and Lorenzo Williams filed a joint Motion to Dismiss [Doc. 25]. Defendant Maria P. Sperando, proceeding pro se , filed a separate Motion to Dismiss [Doc. 26]. Defendants argue that Plaintiffs' Complaint should be dismissed because the statute of limitations has run as to Plaintiffs federal RICO, Georgia RICO, and common law claims and because Plaintiffs failed to state a plausible RICO claim.

I. STANDARD OF REVIEW

A complaint is subject to dismissal under Rule 12(b)(6) where it appears that the facts alleged fail to state a "plausible" claim for relief. Bell Atlantic v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Fed. R. Civ. P. 12(b)(6). A claim is plausible when the plaintiff alleges factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The plausibility standard requires that a plaintiff allege sufficient facts "to raise a reasonable expectation that discovery will reveal evidence" that supports the plaintiff's claim. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. A plaintiff's "obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. To survive dismissal, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 555, 570, 127 S.Ct. 1955 ; Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

"Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show[n]"—"that the pleader is entitled to relief." Id. (citing Fed. Rule Civ. Proc. 8(a)(2) ).

"The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’ " Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1290 (11th Cir.2010) (quoting Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 ). Further, "courts may infer from the factual allegations in the complaint ‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer." Id. (quoting 556 U.S. at 678–79, 129 S.Ct. 1937 ).

Civil RICO claims based on fraud are subject to Rule 9(b)'s heightened pleading standard and must be pled with particularity. Ambrosia Coal & Constr. Co. v. Pages Morales , 482 F.3d 1309, 1316 (11th Cir.2007). A substantive RICO allegation must comply not only with the plausibility criteria of Twombly and Iqbal but must also state with particularity the circumstances constituting the fraud or mistake. Id. ; Fed. R. Civ. P. 9(b). "A plaintiff must allege: (1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud." Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1291 (11th Cir.2010). In a case involving multiple defendants, the complaint may not lump together all of the defendants, as "the complaint should inform each defendant of the nature of his alleged participation in the fraud." Brooks v. Blue Cross & Blue Shield of Florida, Inc. , 116 F.3d 1364, 1381 (11th Cir.1997) ; Am. Dental Ass'n , 605 F.3d at 1291 ("The plaintiff must allege facts with respect to each defendant's participation in the fraud.").

II. BACKGROUND

Plaintiffs Leonard Rowe and Lee King are African American concert promoters who have been in the concert promoting industry since the mid-1970s. (Compl. ¶ 45.) Rowe has worked with many high profile music artists such as Michael Jackson, Janet Jackson, Patti Labelle, Lionel Richie, Prince, Whitney Houston, and Barry White. (Id. ¶ 46.) In 1998, Rowe and other African American promoters, including Plaintiff King, brought a civil rights and anti-trust lawsuit against The William Morris Agency ("William Morris"), Creative Artists Agency ("CAA"), and other predominantly white talent booking agencies and concert promoters. (Id. ¶¶ 53–58.) Rowe and the other plaintiffs in the civil rights law suit alleged that the talent booking agencies discriminated against them by assigning them less lucrative concert assignments because of their race and sought damages in the amount of $750 million. (Id. )

Initially, Rowe and the other civil rights plaintiffs were represented by Martin Gold of the New York law firm Gold, Farell, & Marks. After Mr. Gold's firm merged with RubinBaum (which later merged with Sonnenschein Nath & Rosenthal ("SNR")), a firm with ties to the entertainment/concert promotion industry, Ray Heslin and Richard Primoff, attorneys with less seniority took over the handling of the case. Gold had a contract with the plaintiffs for a 33% contingency fee and told Rowe that if their claim survived a motion to dismiss then a large settlement offer would be likely. (Id. ¶¶ 59–61.)

Rowe alleges that while he was in Los Angeles, California in April 2001 picketing in front of CAA's Beverly Hills office in an attempt to attract public attention to CAA's discriminatory conduct and the civil rights lawsuit, a CAA employee approached Rowe and asked to meet with him. (Id. ¶ 63.) At the meeting, the CAA employee told Rowe that racially derogatory language was commonplace within CAA's music division and that emails from the talent agents in that division often contained racially derogatory terms. (Id. ) She expressed support for his civil rights lawsuit and suggested that Rowe attempt to obtain emails from the talent agents. (Id. ) When Rowe reported his conversation to attorneys Primoff and Heslin, he was surprised to find that they did not believe the email search would be useful in the litigation and instead believed it would be a costly waste of time. (Id. ¶ 65.)

Shortly thereafter, Rowe became concerned and frustrated that attorneys Heslin and Primoff were not aggressively litigating the case, potentially because of a conflict of interest due to their client ties to the music entertainment industry. (id. ¶¶ 53, 65–66.) Rowe then decided to hire Defendant Willie Gary's firm as co-counsel to Heslin and Primoff after seeing a segment about Gary on 60 Minutes highlighting Gary's career and labeling him as the "Giant Killer" because of several multi-million dollar victories against corporations that resulted in significant damage awards for his clients. (Id. ¶¶ 62–67.) Rowe met with Gary in Atlanta, and Gary agreed to join the case. Gary agreed with Rowe that obtaining the emails from the defendants was critical to winning the case. (Id. ¶ 66.) Gary told Rowe that RubinBaum should remain as local counsel in New York, but he would be the primary trial lawyer for the civil rights lawsuit. (Id. )

Under the June 20, 2001 retainer agreement with the Gary Firm as co-counsel, the contingency fee increased to 48% with...