Tribune Co. v. Purcigliotti, No. 93 Civ. 7222 (LAP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation869 F. Supp. 1076
Decision Date14 November 1994
PartiesTRIBUNE COMPANY, et al., Plaintiffs, v. PURCIGLIOTTI, et al., Defendants.
Docket NumberNo. 93 Civ. 7222 (LAP).

869 F. Supp. 1076

TRIBUNE COMPANY, et al., Plaintiffs,
v.
PURCIGLIOTTI, et al., Defendants.

No. 93 Civ. 7222 (LAP).

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

November 14, 1994.


869 F. Supp. 1077
COPYRIGHT MATERIAL OMITTED
869 F. Supp. 1078
COPYRIGHT MATERIAL OMITTED
869 F. Supp. 1079
COPYRIGHT MATERIAL OMITTED
869 F. Supp. 1080
COPYRIGHT MATERIAL OMITTED
869 F. Supp. 1081
Steven M. Bierman, Alan M. Unger, Sidley & Austin, New York City, Richard S. Busch, King & Ballow, Nashville, TN, for plaintiffs

William G. O'Donnell, Sr., O'Donnell, Fox & Gartner, P.C., New York City, for defendants Robert A. Purcigliotti and Cascione, Chechanover & Purcigliotti.

David S. Frankel, Susan Jacquemot, Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, New York City, for defendant Dr. Walter Stingle.

Lawrence A. Marcus, J. Mark Lane, Skadden, Arps, Slate, Meagher & Flom, New York City, for Union defendants.

Seth M. Kupferberg, Sipser, Weinstock, Harper & Dorn, New York City, for defendant Newspaper and Mail Deliverers' Union, New York and Vicinity.

Gabrielle Semel, Weissman & Mintz, New York City, Richard Rosenblatt, Boyle, Tyburski, Toll & Rosenblatt, Englewood, CO, for defendant New York Mailers' Union No. 6, Printing Publishing and Media Workers Sector of Communications Workers of America.

Steven J. Saltiel, Kenneth E. Gordon, Gordon, Gordon & Tepper, P.C., New York City, for individual Pressmen defendants.

Diane Britton, Pavelic & Levites, P.C., New York City, for defendant Cornelius Britton.

869 F. Supp. 1082

Andrew S. Hoffmann, Wiseman, Hoffmann & Walzer, New York City, for various individual defendants.

OPINION AND ORDER

PRESKA, District Judge.

Plaintiff, the Tribune Company ("Tribune"), has brought this action against defendants alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), (d), common law fraud and unjust enrichment. Tribune's action names numerous defendants: Robert A. Purcigliotti, an attorney ("Purcigliotti"); Cascione, Chechanover & Purcigliotti, a law firm of which Purcigliotti is a member ("CCP"); Dr. Walter Stingle, a medical doctor ("Stingle"); New York Newspaper Printing Pressmen's Union No. 2 ("Pressmen's Union"), Newspaper and Mail Deliverers' Union-New York and Vicinity ("Drivers' Union") and New York Mailers' Union No. 6-Printing Publishing and Media Workers Sector of the Communication Workers of America ("Mailers' Union") (collectively "Union defendants"); and 585 union members and employees of the New York Daily News ("Individual defendants").

The defendants have moved to dismiss on numerous grounds. I heard oral argument on the motions on July 8, 1994. For the following reasons, the motions to dismiss are granted in part and denied in part.

BACKGROUND

The Amended Complaint alleges the following claims for monetary relief: violations of RICO by all defendants; fraud, aiding and abetting and conspiracy to commit fraud by all defendants; unjust enrichment by all defendants; and negligent misrepresentation by defendant Stingle. These allegations arise out of the filing of workers' compensation claims by former New York News1 workers against the New York News for hearing loss allegedly caused by exposure to harmful noise at Daily News facilities. (Amended Complaint ¶ 2.)

Plaintiffs allege that defendants, "motivated by greed and ill-will" engendered by a bitter 1990-91 strike by unionized workers' against the New York News, engaged in a scheme to defraud the New York News and Tribune "by filing and prosecuting workers' compensation claims." (Id. ¶ 2.) The Amended Complaint includes the following allegations regarding the fraudulent scheme: the Union defendants directed the Individual defendants to retain defendant CCP; defendant Purcigliotti was the lawyer primarily responsible for this matter, (Id. ¶ 3); in order to implement the fraudulent scheme, the Union defendants, CCP and Purcigliotti directed the Individual defendants to retain defendant Dr. Stingle to examine them in support of their claims for hearing loss (Id. ¶ 61), and defendant Stingle performed audiograms and took no steps to ensure that the audiograms were accurate, though he knew they were not. (Id. ¶ 62.)

Under New York Workers' Compensation Law, the last employer who exposes an employee to harmful noise is liable in full for the employee's occupationally-related hearing loss, regardless how long the employee worked for previous employers or how short a time he or she worked for the last employer. See N.Y.Work.Comp.Law § 49-ee. In addition, the Workers' Compensation Law requires the claimant to show that he or she was removed from harmful noise for a period of three months and was not re-exposed to harmful noise thereafter with another employer. See N.Y.Work.Comp.Law § 49-bb. An employee effectively is "removed" if he or she physically is excluded from the work-place or begins wearing hearing protectors. Id. Because of the strike against the New York News, union workers had been removed from exposure to occupational noise at the Daily News plants for more than three months.

The Amended Complaint additionally alleges that Purcigliotti and CCP knew that under this "last employer doctrine," New York News could be held liable for the hearing loss claims only if the date of last exposure

869 F. Supp. 1083
was a date prior to the day that New York News sold the Daily News. (Amended Complaint ¶ 51.) It is alleged that CCP, Purcigliotti and the Individual defendants falsely claimed October 26, 1990, the date that the strike began, as the date of last exposure to harmful noise in order to render plaintiffs liable for the hearing loss claims. (Id. ¶¶ 51, 58.) "Lacking knowledge of a conspiracy to defraud them, New York News and Tribune were induced ... to enter into settlements of numerous individual claims." (Id. ¶ 6.) After uncovering evidence of the fraud, plaintiffs commenced this action. (Id. ¶¶ 72-79.)

All defendants2 have moved to dismiss on the ground that abstention is required. In addition, the Attorney General for the State of New York intervenes in this action on behalf of the New York State Workers' Compensation Board in order to move to dismiss this action on the ground of abstention. The defendants move to dismiss the Amended Complaint based on numerous other grounds as well: the Union defendants, CCP and Purcigliotti move to dismiss on the ground that the Amended Complaint fails to allege the RICO claims with the particularity required by Fed.R.Civ.P. 9(b); the Individual defendants, CCP and Purcigliotti move to dismiss the RICO claims on the ground that their conduct in filing and prosecuting workers' compensation claims is immunized and cannot constitute predicate acts; Dr. Stingle similarly argues that all claims against him should be dismissed because, as a witness, he is absolutely immune from civil liability.

The defendants make the following arguments that the Amended Complaint fails to state a cause of action under RICO: (i) the Individual defendants argue that the Amended Complaint fails to allege a "pattern"; (ii) the Union defendants argue that the Amended Complaint fails to allege an "association-in-fact" enterprise; (iii) all defendants argue that the Amended Complaint fails to allege that any of them "operated or managed" any of the alleged RICO enterprises; (iv) CCP, Purcigliotti, Stingle and the Unions assert that the Amended Complaint fails to allege causation; (v) all defendants assert that the Complaint fails sufficiently to allege either "aiding or abetting" liability or a RICO conspiracy. Finally, as to the non-RICO claims, the defendants argue the following: that the state law fraud claims should be dismissed for failure to comply with Fed.R.Civ.P. 9(b) and for failure to state a cause of action under Fed.R.Civ.P. 12(b)(6); Stingle also argues that the negligent misrepresentation claim should be dismissed for failure to state a claim; the Union and Individual defendants assert that the unjust enrichment claims should be dismissed for failure to state a cause of action; all defendants also argue that plaintiffs should be collaterally estopped from relitigating claims that have already settled.

DISCUSSION

I. Abstention

Defendants move to dismiss this action, arguing that "this Court should decline plaintiffs' invitation to disrupt the New York State Workers' Compensation scheme, and should abstain" under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). (Defendants' Memorandum of Law in Support of Motion to Dismiss on the Grounds of Abstention at 2 ("Def. Abstention Mem.").) Likewise, the intervenor moves for dismissal in order "to avoid an unwarranted and unnecessary interference with the State's administration of its internal affairs." (Memorandum of Law on Behalf of Intervenor New York State Workers' Compensation Board in Support of Abstention at 1 ("Intervenor's Mem.").)

At least 379 of the individual defendants named in the Amended Complaint have hearing loss claims currently pending before the Workers' Compensation Board (the "Board"). (Affidavit of Olga C. Dais3 Sworn to on

869 F. Supp. 1084
February 10, 1994 ¶ 14 ("Dais Aff.").) Of the other named defendants' cases, 178 are listed in Board records as closed and at least 5 are in the process of being reopened administratively.4 (Id.)

The Board already has ruled, in favor of plaintiffs, that approximately 250 prior audiograms are admissible in evidence at the hearings. These audiograms may be used by plaintiffs to challenge the percentage of hearing loss reported by the claimants' physician(s). (Id. ¶ 15.) Presently, the Board is in the process of holding hundreds of hearings on the individual defendants' claims, at which the examining physicians for both the individual defendants and the Daily News will appear as witnesses. (Id. ¶ 16.) It is predicted that these hearings will continue well into 1995. (Id.)

As restated by the Supreme...

To continue reading

Request your trial
19 practice notes
  • M & T Mortgage Corp. v. White, Nos. 04-CV-4775 (NGG) (VVP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 26, 2010
    ...(2d Cir.1981)); see also Union Carbide Corp. v. Montell N.V., 944 F.Supp. 1119, 1135-36 (S.D.N.Y.1996); Tribune Co. v. Purcigliotti, 869 F.Supp. 1076, 1089-90 (S.D.N.Y.1994), aff'd sub nom. Tribune Co. v. Abiola, 66 F.3d 12 (2d Cir.1995). Here, the defendants were given enough information t......
  • Ho Myung Moolsan Co. v. Manitou Mineral Water, No. 07 Civ. 7483 (RJH)(HBP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 29, 2009
    ...a defendant's reputation and goodwill from unfounded allegations and to prevent strike suits."); see also Tribune Co. v. Purcigliotti, 869 F.Supp. 1076, 1087 (S.D.N.Y.1994) (Preska, J.) ("The rule is designed to provide a defendant with fair notice of a plaintiff's claim, enable preparation......
  • Primavera Familienstifung v. Askin, No. 95 Civ. 8905(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 2001
    ...aider and abettor. Schlaifer Nance, 119 F.3d at 98 (discussing clear and convincing standard in fraud action); Tribune v. Purcigliotti, 869 F.Supp. 1076, 1100 (S.D.N.Y.1994), aff'd, 66 F.3d 12 (2d Cir.1995) (setting forth The Brokers contend that the Investors cannot meet their burden as to......
  • Abf Capital Management v. Askin Capital Management, No. 96 Civ. 2578 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 24, 1997
    ...(2) the aider and abettor's knowledge of the fraud; and (3) substantial assistance by the aider and abettor. Tribune v. Purcigliotti, 869 F.Supp. 1076, 1100 (S.D.N.Y. 1994), aff'd, 66 F.3d 12 (2d Cir.1995). A claim of aiding and abetting fraud must meet the pleading requirements of Rule 9(b......
  • Request a trial to view additional results
19 cases
  • M & T Mortgage Corp. v. White, Nos. 04-CV-4775 (NGG) (VVP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 26, 2010
    ...(2d Cir.1981)); see also Union Carbide Corp. v. Montell N.V., 944 F.Supp. 1119, 1135-36 (S.D.N.Y.1996); Tribune Co. v. Purcigliotti, 869 F.Supp. 1076, 1089-90 (S.D.N.Y.1994), aff'd sub nom. Tribune Co. v. Abiola, 66 F.3d 12 (2d Cir.1995). Here, the defendants were given enough information t......
  • Ho Myung Moolsan Co. v. Manitou Mineral Water, No. 07 Civ. 7483 (RJH)(HBP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 29, 2009
    ...a defendant's reputation and goodwill from unfounded allegations and to prevent strike suits."); see also Tribune Co. v. Purcigliotti, 869 F.Supp. 1076, 1087 (S.D.N.Y.1994) (Preska, J.) ("The rule is designed to provide a defendant with fair notice of a plaintiff's claim, enable preparation......
  • Primavera Familienstifung v. Askin, No. 95 Civ. 8905(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 2001
    ...aider and abettor. Schlaifer Nance, 119 F.3d at 98 (discussing clear and convincing standard in fraud action); Tribune v. Purcigliotti, 869 F.Supp. 1076, 1100 (S.D.N.Y.1994), aff'd, 66 F.3d 12 (2d Cir.1995) (setting forth The Brokers contend that the Investors cannot meet their burden as to......
  • Abf Capital Management v. Askin Capital Management, No. 96 Civ. 2578 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 24, 1997
    ...(2) the aider and abettor's knowledge of the fraud; and (3) substantial assistance by the aider and abettor. Tribune v. Purcigliotti, 869 F.Supp. 1076, 1100 (S.D.N.Y. 1994), aff'd, 66 F.3d 12 (2d Cir.1995). A claim of aiding and abetting fraud must meet the pleading requirements of Rule 9(b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT