Suarez Corp. Industries v. McGraw
| Decision Date | 29 September 1999 |
| Docket Number | No. 5:99-CV-0324.,5:99-CV-0324. |
| Citation | 71 F.Supp.2d 769 |
| Parties | SUAREZ CORPORATION INDUSTRIES, Plaintiff, v. Darrell V. McGRAW, Jr., et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Frances Floriano Goins, Laura J. Roman, Squire, Sanders & Dempsey, Cleveland, OH, Roy Gutierrez, Gutierrez & Mackey, Canton, OH, Craig Wright, Chester, Willcox & Saxbe, Columbus, OH, J. Thomas Burch, Jr., Maloney & Burch, Washington, DC, W.B. Markovits, Cincinnati, OH, William T. Bennett, Burch & Cronauer, Washington, DC, for Suarez Corp. Industries, plaintiff.
Stephen J. Pruneski, Valoria C. Hoover, Roderick, Myers & Linton, Akron, OH, Rudolph L. DiTrapano, Sean P. McGinley, DiTrapano, Barrett & DiPiero, Charleston, WV, Rebecca A. Baitty, Sarasota, FL, for Darrell V McGraw, Jr., Tom Rodd and John Does 1-10, defendants.
On February 19, 1999, Defendants Darrell McGraw and Tom Rodd filed a motion to dismiss this case arising under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.
Defendants seek dismissal of Plaintiff SCI's RICO complaint. In the complaint, SCI claims both defendants violated RICO through predicate acts of mail and wire fraud, extortion, and obstruction of justice.
Plaintiff SCI is an Ohio corporation with its principal place of business located in Canton, Ohio. SCI engages in direct marketing, doing business nationally through mail, newspapers and magazine advertising, the Internet, and retail stores.
Defendant Darrell McGraw serves as the Attorney General of West Virginia since 1993. Defendant Tom Rodd was a Senior Assistant Attorney General at all times pertinent to this action.
The parties herein have been involved in a series of lawsuits in West Virginia and Ohio from 1994 until the present. In January 1994, the state of West Virginia, through Attorney General McGraw, filed suit against SCI alleging violations of West Virginia's Consumer Credit and Protection Act. Thereafter, Plaintiff SCI or its President, Benjamin Suarez, filed at least four actions against Defendant McGraw in West Virginia federal courts and one in an Ohio state court. These suits sought relief related to the Attorney General's actions against SCI.
On September 29, 1998, Plaintiff SCI filed a complaint in the Stark County Court of Common Pleas.1 In its complaint, Plaintiff alleges that the West Virginia Attorney General's office and its associated personnel are an enterprise for RICO purposes. SCI says the defendants acted or conspired to act to injure Plaintiff SCI through wire and mail fraud, extortion, and obstruction of justice activities. Plaintiff SCI alleges the defendants acted in their personal capacity and under color of official right in so acting.
Specifically, Plaintiff SCI alleges that through phone and fax communications, the defendants effected revocation of SCI's membership in the Better Business Bureau of Canton, Ohio ("Canton BBB"), of which SCI was a member. In 1994, the Better Business Bureau was attempting to expand into certain West Virginia counties. SCI says the defendants' threatened the Canton BBB by saying it would not help the organization expand in West Virginia as long as SCI remained a member.
Between approximately September 1994 and February 1995, the Attorney General's office and the Canton BBB made contact at least twenty-two times. The Canton BBB revoked SCI's membership in February 1995. Plaintiff SCI claims the defendants extorted Plaintiff through communications with the Canton BBB.
In October 1994, Defendant McGraw sent two letters to Ohio's Attorney General that contained allegedly defamatory information regarding SCI. SCI says the letters constitute mail or wire fraud.
In October 1996, McGraw sent a letter to more than forty West Virginia legislators. In the letter, McGraw insinuated that SCI had connections to organized crime. SCI claims this, too, was an incident of mail or wire fraud.
Finally, Plaintiff SCI alleges Defendants McGraw and Rodd obstructed justice in litigation to which SCI was not a party. However, SCI says defendants' goal was to injure SCI and that they acted to further that goal.
Plaintiff SCI claims defendants' conduct amounts to a pattern of racketeering activity prohibited under RICO. SCI says the racketeering activity resulted in SCI's loss of business, loss of membership in the Better Business Bureau of Canton, Ohio ("Canton BBB"), and damage to SCI's reputation.
On February 11, 1999, Defendants filed a notice of removal citing this Court's original jurisdiction over Plaintiff's RICO claims pursuant to 28 U.S.C. § 1331 and § 1441.
On February 19, 1999, Defendants McGraw and Rodd filed the instant motion to dismiss. Defendants' challenge this Court's subject matter and personal jurisdiction, as well as venue.2 For the reasons that follow, this Court finds that it has both subject matter jurisdiction and personal jurisdiction over this action. The Court also finds that defendants have waived their challenge to venue in this district.
Defendants McGraw and Rodd argue this Court lacks subject matter jurisdiction over this case under Fed.R.Civ.P. 12(b)(1). A court properly grants a motion to dismiss only if it appears that the plaintiff can prove no set of facts that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The complaint is construed in the light most favorable to the plaintiff and the court accepts as true all of the plaintiff's well-pled factual allegations.
Applying these standards, the Court determines it has subject matter jurisdiction over this action.
Defendants McGraw and Rodd challenge this Court's jurisdiction under the Eleventh Amendment. Immunity under the Eleventh Amendment restricts judicial power under Article III. Consequently, the Court lacks jurisdiction to hear cases involving such immunity. Wilson-Jones v. Caviness, 99 F.3d 203, 206 (6th Cir.1996).
Under the Eleventh Amendment, a state, its officials, and its employees may be sued in federal court only when the state has consented to suit. Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Puerto Rico Aqueduct and Sewer Authority v. Metcalf and Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98-99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). This doctrine applies to a suit in which a party sues state officials or employees for money damages regarding their official actions, because a judgment would be satisfied from the state's treasury and, therefore, the state itself is the real party in interest. See Doe v. Wigginton, 21 F.3d 733, 736-37 (6th Cir.1994). Thus, a lawsuit challenging official action taken by state officials or employees and seeking money damages is barred by the Eleventh Amendment. See O'Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir.1994).
Conversely, a lawsuit against a state actor in his individual capacity is not barred by the Eleventh Amendment. Mackey v. Cleveland State University, 837 F.Supp. 1396, 1404 (N.D.Ohio 1993). As the U.S. Supreme Court recently reiterated, "a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally." Alden v. Maine, ___ U.S. ___, 119 S.Ct. 2240, 2267-68, 144 L.Ed.2d 636 (citing Scheuer v. Rhodes, 416 U.S. 232, 237-238, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). This principle applies to suits for either damages or injunctive relief. Mackey, 837 F.Supp. at 1404.
Plaintiff SCI indicates throughout its complaint that it is suing both Defendants McGraw and Rodd for acting "outside the scope of their duties," for venturing "well beyond the bounds of legitimate enforcement measures," and for acting to further their personal advantage. The Court finds the complaint sufficiently alleges claims against defendants in their personal capacity. Therefore, the Eleventh Amendment does not bar Plaintiff SCI's claims.
Defendants McGraw and Rodd contend they did not have sufficient contacts with Ohio giving rise to personal jurisdiction. Upon review, the Court concludes Defendant McGraw had sufficient contacts with Ohio. Further, the Court determines that Defendant Rodd is subject to personal jurisdiction of this court under RICO's nationwide service of process provision. The Court therefore denies defendants' Rule 12(b)(2) motion.
As the party asserting jurisdiction, Plaintiff SCI bears the burden of showing that personal jurisdiction exists. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir.1996); Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). Generally a plaintiff must prove jurisdiction by a preponderance of the evidence. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998). The Court notes that a district court ruling on a Rule 12(b)(2) motion without conducting an evidentiary hearing must consider the pleadings and affidavits in a light most favorable to the plaintiff. Id. (quoting CompuServe, 89 F.3d at 1262). In such circumstances, and in "sharp contrast" to summary judgment procedure, the court does not weigh the controverting assertions of the party seeking dismissal. Id.; Nationwide Mutual, 91 F.3d at 792-93. The plaintiff can defeat a motion to dismiss for lack of personal jurisdiction by making a prima facie showing of jurisdiction. Dean, 134 F.3d at 1272.
In this case, the Court has held no evidentiary hearing. Therefore, Plaintiff SCI need make only a prima facie showing of personal jurisdiction.3
A valid assertion of personal jurisdiction must satisfy both the state's longarm statute and...
To continue reading
Request your trial
-
Brown v. Kerkhoff
...under even a more flexible test that the availability of an alternative forum is an important factor. See, e.g., Suarez Corp. Indus., 71 F.Supp.2d at 778-79 & n. 7; Magic Toyota, 784 F.Supp. at 311-12 ("In the face of evidence that an alternative forum is available, and in the absence of an......
-
Doe v. Varsity Brands, LLC
...court. Rexam Healthcare, 2010 WL 819063, at *5-6 (citing Farmers Bank v. Bell Mortg. Corp., 577 F.Supp. 34, 35 (D.Del. 1978); Suarez Corp., 71 F.Supp.2d at 778)). are eleven different defendants involved in this matter. (See Doc. No. 1.) Doe's claims against Charlesbank, Bain, and Webb are ......
-
Wuliger v. Positive Living Resources
...und Vertriebs GmbH, No. 3:01 CV 7533, 2002 WL 31086104, at *6 n. 1 (N.D.Ohio Sept. 4, 2002) (citing Suarez v. McGraw, 71 F.Supp.2d 769, 777 (N.D.Ohio 1999)). ...
-
Ashton Park Apartments, Ltd. v. Lebor
...no. 3:01 cv 7533, 2002 wl 31086104, at *6, 2002 u.s. dist. lexis 17559, at *18 n. 1 (n.d.ohio sept.4, 2002) (citing Suarez v. Mcgraw, 71 F.Supp.2d 769, 777 (N.D.OHIO 1999)). 3. Plaintiff initially failed to attach several documents in support of the allegations contained in the Complaint, b......