Toms v. Pizzo, 97-CV-6420L.

• Decision Date: 09 April 1998
• Docket Number: No. 97-CV-6420L.,97-CV-6420L.
• Parties: Jerry L. TOMS, Plaintiff, v. Dave PIZZO, The Pizzo Enterprise, Maury Torrey, Robert Gates, Richard Bradley and Eastman Kodak Co., Defendants.
• Court: U.S. District Court — Western District of New York

4 F.Supp.2d 178

Jerry L. TOMS, Plaintiff, v. Dave PIZZO, The Pizzo Enterprise, Maury Torrey, Robert Gates, Richard Bradley and Eastman Kodak Co., Defendants.

No. 97-CV-6420L.

United States District Court, W.D. New York.

April 9, 1998.

COPYRIGHT MATERIAL OMITTED

Jerry L. Toms, Rochester, NY, pro se.

Fred G. Aten, Jr., Rochester, NY, for Defendants.

DECISION AND ORDER

LARIMER, Chief Judge.

Jerry Toms, pro se, asserts a variety of claims against defendants arising out of his relationship as an independent contractor with Kodak. Three motions are pending before me: defendants' motion to dismiss; plaintiff's motion to amend the complaint; and plaintiff's motion to disqualify the defendants' attorney. For the reasons set forth below, the defendants' motion is granted and both of the plaintiff's motions are denied.

BACKGROUND

The facts, as alleged in Toms' complaint, appear to be as follows. In 1994 Toms was retained by Kodak, as an independent contractor, to produce video training materials. Toms alleges that defendant Pizzo and other defendants (whom he refers to as the Pizzo group), all of whom were Kodak employees, conspired to utilize Toms' expertise for their own business advantage. Specifically, Toms alleges that pursuant to his contract with Kodak he leased space for the purpose of providing his services under the contract, and that Pizzo, as agent for Kodak, instructed him to do a number of extra tasks and use additional Kodak equipment, none of which was authorized by Kodak. Kodak allegedly refused to pay Toms for the extra work.

Toms further claims that members of the Pizzo group pressured and threatened him, and then conspired with Kodak to steal Toms' trade secrets and his best employee (Greg Short) so that they could do the work Toms was doing, and then terminate Toms' contract.

Finally, Toms claims that the Pizzo group and Kodak threatened him with disparaging statements about his wife (thus "stressing him out" so badly he could not work) and also made disparaging statements about him to his wife, thus causing her to mistrust him which led to the demise of their marriage.

As the result of all these events, Toms claims that his business suffered and he was forced to sell the majority of his stock in his wholly owned company at a significant loss.

Later, in 1995, Toms sought employment through a temporary employment agency. Toms again was hired by Kodak, through this agency, to do certain work as an automated machine technician. Toms claims that he was working satisfactorily, and on the verge of receiving an offer of permanent employment, when he suddenly and wrongfully was terminated in September 1996. The reason for his termination is unclear, but Toms makes additional allegations about being wrongfully accused of stealing gold (this following an unannounced search of his locked desk), and being wrongfully accused of inappropriate use of the e-mail system.

Finally, in October 1996, Toms had applied for and was on the verge of being offered yet another position at Kodak when he claims that certain members of the Pizzo group learned of his application and said disparaging and slanderous things about him. This, according to Toms, resulted in the offer being revoked.

Toms sets forth eleven causes of action in his complaint. While Toms' descriptions are sometimes imprecise, his claims can best be described as follows: 1) breach of contract; 2) violation of the Racketeer Influenced And Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. ("RICO"); 3) breach of contract/promises; 4) violation of the Fourth Amendment — invasion of privacy; 5) violation of the Fourth Amendment — illegal search and seizure; 6) conspiracy to commit fraud, disparagement, slander; 7) violation of federal copyright law; 8) slander/interference with employment/unlawful termination; 9) breach of promise; 10) conversion of intellectual property; 11) violation of federal copyright law.

DEFENDANTS' MOTION

Defendants Kodak, Torrey and Pizzo¹ move to dismiss the complaint for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted, pursuant to F.R.C.P. 12(b)(1), (5), and (6).

A. Motion to Dismiss

In ruling on a motion to dismiss, the court must accept the factual allegations of the complaint as true and construe all reasonable inferences in plaintiffs favor. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995). A court should not dismiss a complaint under Fed.R.Civ.P. 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Branham v. Meachum, 77 F.3d 626, 628 (2d Cir.1996). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Further, where, as here, a pro se complaint is involved, the court should construe it liberally and hold it to "`less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

B. Failure to State a Claim and Lack of Subject Matter Jurisdiction

Of the eleven causes of action set forth in the complaint, there are only five federal claims: RICO, two copyright claims, and two Fourth Amendment claims. Defendants assert that none of these federal claims can be sustained. Defendants also assert that there is no diversity between Toms and the defendants. Thus, in the absence of a sustainable federal claim, only state claims would remain and without diversity, no subject matter jurisdiction would exist. Accordingly, defendants move to dismiss the complaint in its entirety.

(1) RICO:

RICO was enacted in part to eliminate infiltration of organized crime and racketeering activities into legitimate businesses. See Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local Union 639, 913 F.2d 948, 954 (D.C.Cir.1990) (citing legislative history). It was not intended to reach "every act of corruption or petty crime committed in a business setting...." Id. Rather, it was intended to address long-term criminal activity such as the use of force, threats, enforcement of illegal debts, and corruption, in the operation of a business. Id., cited in Buck Creek Coal, Inc. v. United Mine Workers of America, 917 F.Supp. 601, 608-609 (S.D.Ind. 1995).

In order to state a RICO claim, a plaintiff must allege (1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of § 1962. See Pinnacle Consultants, Ltd. v. Leucadia Nat'l Corp., 101 F.3d 900, 903-04 (2d Cir. 1996). In order to establish a violation of § 1962, a plaintiff must prove, inter alia, a "pattern of racketeering activity." Id. (citing 18 U.S.C. § 1962).

"Racketeering activity includes the commission of specified state-law crimes, conduct indictable under various provisions within Title 18 of the United States Code, including mail and wire fraud, and certain other federal offenses."² Id. In order to prove a pattern, there must be at least two related predicate acts within a ten-year period and they must amount to, or pose a threat of, continuing criminal activity. GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 465 (2d Cir.1995) (citing 18 U.S.C. § 1961(5)), cert. denied, 518 U.S. 1017, 116 S.Ct. 2547, 135 L.Ed.2d 1067 (1996).

Defendants assert that Toms' RICO claim cannot be sustained because he has failed to assert and cannot assert two predicate acts that are "related" and pose a threat of continuing criminal activity. In his complaint, Toms refers vaguely and without specificity to the following acts of defendants: pressure and threats to provide more services; luring away a key employee; refusing to pay submitted invoices; and making disparaging comments about him and his wife. Defendants assert that none of these allegations is sufficient to constitute racketeering activity within the meaning of 18 U.S.C. § 1961(1). I agree.

In response, Toms attempts to expand upon and specify additional actions by defendants which he alleges are sufficient predicate acts. Toms attempts to establish that defendants have engaged in patterns of racketeering activity by listing numerous bad acts including embezzlement, use of force and threats of use of force, tampering with witnesses, theft of property, extortion used to extract additional services, slander, disparagement, intimidation, harassment, fraud, conspiracy, receipt of stolen goods, unlawful termination, wire fraud, unjust enrichment, conversion, theft of trade secrets, counterfeiting, and unfair competition. See, e.g., Toms' Affirmation (signed 11/10/97) at ¶¶ 3, 10; Toms Initial Response Pro Se to Motion to Dismiss (filed 10/28/97) at ¶¶ 24, 65. Toms also alleges that because Kodak is powerful and holds all the information, he cannot adequately specify predicate acts for RICO purposes until he has further discovery. Initial Response Pro Se to Motion to Dismiss at ¶ 8.

Toms' attempt to satisfy the RICO pleading requirements simply by reiterating a laundry list of predicate acts found in the statute or case law will not suffice. See Buck Creek Coal, Inc., 917 F.Supp. at 611 ("Boilerplate allegations which essentially restate the elements of a claim, without any factual support for each element, are insufficient"). Moreover, while this Court must give "substantial leeway to pro se litigants" — Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992) — it need not accept any litigant's legal conclusions. See Jenkins v. Sea-Land Service, Inc., 1994 WL 445642, *5 (S.D.N.Y. Aug. 17, 1994). Thus, even a pro se pleading must contain "factual...