Sever v. Alaska Pulp Corp.

• Citation: 978 F.2d 1529
• Decision Date: 19 August 1992
• Docket Number: 91-36074,Nos. 91-36067,s. 91-36067
• Parties: 141 L.R.R.M. (BNA) 2678, 123 Lab.Cas. P 57,151, RICO Bus.Disp.Guide 8142 Florian SEVER, Plaintiff-Appellee, v. ALASKA PULP CORPORATION; Dennis Huse; George Woodbury; Jesse Cline; Frank Roppel; George Ishiyama; Wayne Funk; Ralph Fenner, Defendants-Appellants. Florian SEVER, Plaintiff-Appellant, v. ALASKA PULP CORPORATION; Dennis Huse; George Woodbury; Jesse Cline; Frank Roppel; George Ishiyama; Wayne Funk; Ralph Fenner, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1529

978 F.2d 1529

141 L.R.R.M. (BNA) 2678, 123 Lab.Cas. P 57,151,

RICO Bus.Disp.Guide 8142

Florian SEVER, Plaintiff-Appellee, v. ALASKA PULP CORPORATION; Dennis Huse; George Woodbury;

Jesse Cline; Frank Roppel; George Ishiyama;

Wayne Funk; Ralph Fenner,

Defendants-Appellants.

Florian SEVER, Plaintiff-Appellant, v. ALASKA PULP CORPORATION; Dennis Huse; George Woodbury;

Jesse Cline; Frank Roppel; George Ishiyama;

Wayne Funk; Ralph Fenner, Defendants-Appellees.

Nos. 91-36067, 91-36074.

United States Court of Appeals Ninth Circuit.

Submitted August 19, 1992. ^*

Decided Oct. 26, 1992.

Terrence G. Reed, Asbil, Junkin & Myers, Washington D.C., for plaintiff-appellant and cross-appellee Florian Sever.

Wayne W. Hansen, Paul D. Swanson, Michael B. King, Lane Powell Spears Lubersky, Seattle, Wash., for defendants-appellees and cross-appellants Alaska Pulp Corp., Dennis Huse, George Woodbury, Jesse Cline, Frank Roppel, George Ishiyama, Wayne Funk and Ralph Fenner.

Appeal from the United States District Court for the District of Alaska.

Before: HUG, D.W. NELSON, and T.G. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

I. OVERVIEW

Plaintiff Florian Sever ("Sever"), a former employee of Alaska Pulp Corporation (APC), brought suit against APC and a number of APC management employees (collectively, "defendants") under 42 U.S.C. § 1985(3), 42 U.S.C. § 1983 and under RICO. Sever alleged that the defendants had taken retaliatory actions against him after he wrote articles critical of APC and testified before Congress in a manner contrary to APC's economic interests. Sever also brought six state law claims. The district court dismissed his RICO and section 1983 action for failure to state a claim, and granted summary judgment in favor of the defendants on the § 1985(3) claims. The district court then dismissed the state claims without prejudice, and remanded them to state court.

Sever appeals the dismissal and grant of summary judgment. Defendants cross-appeal, claiming that because Sever's state law claims are preempted by the National Labor Relations Act (NLRA), the district court should have dismissed them with prejudice. We affirm the district court in all respects.

II. BACKGROUND

APC is a timber company involved in timber harvesting in the Tongass National Forest. It maintains and operates a pulp mill in Sitka, Alaska. For many years, APC has been the beneficiary of several federal laws subsidizing its lumbering activities in the Tongass. During the mid-1980s, Congress undertook a general review of legislation affecting the Tongass; this included a review of APC's contracts and subsidies. Congress held hearings where many Alaska citizens testified, and ultimately passed the Timber Reform Act of 1990.

Florian Sever was employed as a millwright at APC. In July 1986, Sever's union went on strike. During August of 1986, Sever wrote two letters critical of APC to the local newspaper, one of which was published. In early 1987, while the strike was still on, Sever got a job as an airplane mechanic at Mountain Aviation in Sitka. In April of 1987, the workers voted to decertify the union and the strike was abandoned. Sever's name was placed on APC's rehire eligibility list and he indicated to APC that he wanted to be reinstated.

In May 1987, Sever traveled to Washington, D.C. to testify before a House Subcommittee in support of the Tongass Timber Reform Act. The Act contained language that would have ended Congress's automatic appropriations to APC. Subsequently, on June 30, 1987, Sever was fired from his job with APC. ¹ According to Sever, after his discharge, he was unable to find other work in Sitka because APC blacklisted him. In particular, Sever alleges that on January 14, 1988, he was fired from his job with Mountain Aviation as a result of APC pressure on Mountain Aviation's proprietor.

Sever filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The Administrative Law Judge (ALJ) concluded in part that Sever's published letter to the editor was a substantial cause of Sever's discharge. Unhappy with the ALJ's decision, APC appealed to the NLRB. The NLRB concluded that Sever had been fired because he wrote the letter and because he testified before Congress. Therefore, the NLRB found that APC had committed an unfair labor practice and affirmed the ALJ. Subsequently, we affirmed that decision. NLRB v. Alaska Pulp Corp., 944 F.2d 909 (9th Cir.1991).

Sever then filed suit in federal court, alleging that the defendants conspired to deprive him of protected rights in violation of 42 U.S.C. § 1985(3), as well as various state law contract and tort claims. In an amended complaint, Sever added a RICO claim, alleging that defendants engaged in a pattern of racketeering activity that damaged his ability to obtain employment or earn a living, and a claim under 42 U.S.C. § 1983. In its October 15, 1990 order, the district court granted defendants' motion for summary judgment on Sever's first complaint and dismissed his section 1983 action, but permitted him to amend his complaint to provide further support for the alleged RICO violation. Ultimately, however, the court dismissed Sever's fourth amended complaint for failure to state a claim under RICO, and dismissed the pendent state claims without prejudice.

III. DISCUSSION

1. Failure to State a RICO Claim

In his fourth amended complaint, Sever alleged that the defendants had violated two provisions of RICO--18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(b). As discussed below, the district court dismissed the § 1962(c) claim because it found that Sever had failed to allege a "person" or "persons" distinct from the "enterprise," and dismissed the § 1962(b) claim because Sever had failed to allege a "pattern of racketeering." The district court erred in its treatment of the § 1962(c) claim--under Ninth Circuit law, the distinction identified by the district court is not necessary to such a claim. However, the court correctly concluded that Sever failed to allege a "pattern of racketeering." As allegation of a pattern of racketeering is an element of both § 1962(b) and § 1962(c) claims, we affirm the dismissal of both claims on this ground.

a. Person/Enterprise Distinction under 18 U.S.C. § 1962(c)

18 U.S.C. § 1962(c) provides that:

It shall be unlawful for any person employed by 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 enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

The district court dismissed Sever's section 1962(c) claim because it found that Sever did not allege a "person" or "persons" distinct from the "enterprise." This conclusion was erroneous.

For the purposes of section 1962(c), RICO plaintiffs must allege a defendant--the "person" or "persons"--who is distinct from the "enterprise" whose business the defendant is conducting. Under RICO, an "enterprise" is " 'a being different from, not the same as or part of, the person whose behavior the act was designed to prohibit.' " Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984) (quoting United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983)). Therefore, for the purposes of a single action, a corporate defendant cannot be both the RICO person and the RICO enterprise under section 1962(c). See Wilcox v. First Interstate Bank of Oregon, 815 F.2d 522, 529 (9th Cir.1987).

Sever's fourth amended complaint alleged that APC was the enterprise, and that the individual officers and employees of APC were the "persons." Relying on Data Controls North, Inc. v. Financial Corp. of America, Inc., 688 F.Supp. 1047 (D.Md.1988), aff'd, 875 F.2d 314 (4th Cir.1989), the district court held that this form of allegation did not satisfy the person/enterprise distinction because "there is no distinction between the officers, agents and employees who operate the corporation and the corporation itself." According to the district court, "[p]laintiff's allegation that the individually named defendants are 'persons' distinct from the corporate 'enterprise' makes no real difference as a corporation cannot operate except through its officers or agents."

Data Controls notwithstanding, the district court's holding is contrary to controlling Ninth Circuit law.

In United States v. Benny, 786 F.2d 1410 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986), the operator of a sole proprietorship which employed four people was convicted under section 1962(c). On appeal, defendant Benny argued that because "he was a sole proprietorship he could not simultaneously associate with that sole proprietorship." Id. 786 F.2d at 1415. Despite the fact that, as in the instant case, the proprietorship could not operate except through Benny, we approved a section 1962(c) count which named Benny as the "person" and his sole proprietorship as the "enterprise" with which he "associated." We recognized that if the single proprietor had no employees, a 1962(c) claim might not be available. Id. However, we reasoned that if the enterprise was a corporation, the fact that there was but one stockholder would not shield that individual from suit because "such a corporate 'one-man' band does receive some legal protections from the corporate form, and it is this sort of legal shield for illegal activity that Congress intended RICO to pierce." Id. at 1416. As we observed then, " 'the only important thing is that [the enterprise] be either formally (as when there is a corporation) or practically (as when there are other people beside the proprietor working in the organization) separable from the individual.' " Benny, 786 F.2d at 1416 (quoting McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985)). ²

This decision makes it clear that the...