Opinion
99-CV-0689E(Sc)
June 16, 2000
ATTORNEYS FOR THE PLAINTIFF, Pro se, Leavenworth, KS 66048-1000.
ATTORNEYS FOR THE DEFENDANT, Dietz — Christopher K. Werner, Esq., c/o Lawrence, Werner, Kesselring, Swartout Brown, Rochester, N Y 14614, Linsner — Warren W. Bader, Wsq., c/o Costello, Cooney Fearon, Syracuse, N Y 13202-1307.
MEMORANDUM and ORDER
Plaintiff, proceeding pro se, premises subject matter jurisdiction in the instant action on the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968, and alleges that the defendants schemed to defraud him of certain real property and used interstate mails and wire communications in furtherance thereof. See 18 U.S.C. § 1341, 1342. Currently pending before the undersigned is a litany of outstanding motions — filed mainly by plaintiff — of which there are competing motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons stated below, defendants' motions will be granted, plaintiff's outstanding motions will be deemed moot and this case will be dismissed.
Summary judgment "shall be rendered forth with" f the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); FRCvP 56(c). A factual dispute is material of its resolution "might affect the outcome of the suit under the governing law" and is considered genuine of it reasonably could be resolved in favor of any party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986). Evidence submitted by a non-moving party is to be believed and all justifiable inferences are to be drawn in such party's favor. See Anderson, at 255. Summary judgment shall be entered against any party, however, if the existence of any element essential to such party's case is not established and on which such party would bear the burden of proof at trial. See Celotex, at 322. This Court is also aware of the fact that a pro se Complaint must be held to far "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Such liberality, however, should not be construed as a license relieving plaintiff of his duty to submit cognizable claims and, in the absence of such, dismissal must ensue. See FRCvP 8(a)(2) (every complaint shall include "a short and plain statement of the claim showing that the pleader is entitled to relief"). Moreover, no plaintiff can defeat a summary judgment "motion by relying on the allegations in his pleading . . . or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
The relevant facts are as follows and are principally drawn from both the Complaint and the joint Statement of Undisputed Material Facts ("Joint Statement") submitted by defendant Margaret Graf Linser and defendant Linser, Sessler Dys (collectively "the Linser Defendants"). Plaintiff, presently incarcerated at the United States Penitentiary, Leavenworth, Kansas, is the grandson of the late Hazel H. Dietz ("decedent") and the nephew of defendant Robert J. Dietz ("Dietz"). The Linser Defendants' Statement ("Linser Statement") ¶¶ 3-4; Compl. ¶¶ 1, 9. Upon decedent's death in New York October 28, 1998, the legal services of the Linser Defendants were retained to effectuate her Last Will and Testament, which had been executed August 31, 1988. Dietz was appointed the Executor of the Estate pursuant to decedent's instructions. Statement ¶¶ 8, 12, 13, 14; Compl. ¶ 41(p). The Will had been drafted by attorney Patrick Egan, who is not a party to this action, and provided that plaintiff was to receive all motor vehicles owned by decedent at the time of her death but that the remainder of her property, both real and personal, was to be shared by her children equally. Statement ¶¶ 9-10; Compl. ¶ 44(c); Dietz Notice of Motion Ex. (Will Letters Testamentary). Pursuant to New York Surrogate's Court Procedure Act Law § 1409 and before letters testamentary were issued to Dietz, a "notice of probate" was filed with the Monroe County Surrogate November 20, 1998 and plaintiff was notified, via United States mail by the Linser Defendants, that the Will had been offered for probate. Statement ¶ 15; Compl. ¶ 44(b). Objecting to his treatment under the Will, plaintiff "served on the Clerk of the [Surrogate's] Court" and on the above-captioned defendants a "SECURITY (15 U.S.C.) CLAIM OF COMMERCIAL LIEN AND AFFIDAVIT" which represented the "debt owed to him from the . . . ESTATE OF HAZEL DIETZ . . ." and contested the Will. Compl. ¶¶ 44(d)-(e). This claim allegedly stemmed from a 1973 agreement ("1973 Property Agreement") between decedent and plaintiff that he "would purchase the [real] property at 92 Wilbur Street" and that full payment on this agreement had been received by decedent sometime in 1995. Compl. ¶¶ 41(c), (m)-(o). Nevertheless, by telephone call with Dietz placed November 16, 1998 and by later correspondence with the estate's representatives, plaintiff was informed that his claims were rejected. Compl. ¶ 41(p); the Linser Defendants' Notice of Motion Ex. N. It should also be noted that, because plaintiff had contested the Will, attorney Christopher Werner was substituted February 10, 1999 as the attorney of record for the estate and that he had drafted the letter by which plaintiff was informed that his claims were rejected. Compl. ¶ k; the Linser Defendants Notice of Motion Exs. M, N. Plaintiff then filed the instant action September 23, 1999 asserting, inter alia, violations of subsections 1962(c) and 1962 (d) of RICO.
As indicated, the Complaint and this Court's jurisdiction are premised on the alleged racketeering activities of the defendants. From what can be discerned from the Complaint, plaintiff has pled the existence of two "fraudulent" activities. Firstly, that Dietz had known of and had agreed to the purported 1973 Property Agreement but that, after decedent's death, he informed plaintiff that the Estate of Hazel would not "honor any agreements [regarding 92 Wilbur Street] made by [the decedent]." Compl. ¶ 41(p). In this act of "fraud," Dietz allegedly enlisted the help of, and conspired with, the Linser Defendants. Compl. ¶¶ 41, 42. Secondly, that — during the time the Linser Defendants acted on behalf of the Estate — the Linser Defendants did not honor and/or complete "the diligent filing and perfecting [of] the probate proceedings" and the Will. Compl. ¶ 45. Nomenclature aside, such allegations do not properly assert any type of RICO claim under the facts as presented.
"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." Pinnacle Consultants, Ltd. v. Leucadia Nat'l Corp., 101 F.3d 900, 904 (2d Cir. 1996). For a valid RICO claim, 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." Id. ( citing First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 767 (2d Cir. 1994)). When brought pursuant to section 1962(c), plaintiff must specifically include allegations of "(1) conduct [by defendants] (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). Demonstrating a "pattern of racketeering activity" also necessarily requires that plaintiff show at least two related "predicate acts" committed by the defendants which "amount to or pose a threat of continuing criminal activity." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989); see also 18 U.S.C. § 1961 (5) (defining a "pattern of racketeering activity" as comprising at least two acts of racketeering activity, occurring within ten years of each other). Any conspiracy to violate RICO is also made actionable thereunder. See 28 U.S.C. § 1962 (d).
In the instant matter, the racketeering activity with which plaintiff charges the defendants includes only mail fraud and wire fraud — i.e., that in the commission of their "fraudulent" schemes, the defendants used the mails and wires to strip plaintiff of his ownership interest in 92 Wilbur Street. See 18 U.S.C. § 1961 (1); see also 18 U.S.C. § 1341, 1341 (making it a crime to use the mails or wires in furtherance of fraudulent schemes). Nevertheless, plaintiff's claims cannot be sustained inasmuch as the record and his pleading do not support any inference that defendants engaged in a pattern of racketeering activity. In order to state a claim for mail and wire fraud, plaintiff must particularly allege the circumstances constituting the fraudulent acts. See FRCvP 9(b) ("In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity."). In other words, the Complaint "must adequately specify the statements it claims were false or misleading, give particulars as to the respect in which [plaintiff] contend[s] the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992) (citing Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989)); see also Roso v. Saxon Energy Corp., 758 F. Supp. 164, 170 (S.D.N.Y 1991) (noting that a "simple scheme to defraud" is not actionable under RICO). In this capacity, plaintiff has wholly failed and the materials submitted do not make pellucid his conclusory allegations of such fraud. For instance, plaintiff's claim of mail fraud against the Linser Defendants is premised entirely on the accusation that, because such defendants had been "engaged" by the decedent to structure the Will, their later correspondence to him regarding any devise, or lack thereof, constituted mail fraud. Compl. ¶¶ 44(a)-(c), (j)-(k). Even if this Court were to ignore the undisputed fact that the Linser Defendants played no part in preparing and executing the Will, no basis exists on which to construe the mailing of the "notice of probate" as indicative of mail fraud inasmuch as sending these documents constitutes the "legitimate conduct of attorneys acting on behalf of a client" in the course of a pending probate proceeding. D'Orange v. Feely, 877 F. Supp. 152, 156 (S.D.N.Y 1995). Plaintiff's assertions regarding Dietz are likewise unavailing. As alluded to earlier, mail and wire fraud requires "some element of deception" and "this . . . requirement is satisfied where the mailing itself is misleading or where there is some other deception which the mailing serves." McLaughlin, at 192-193. Nowhere in the Complaint or the materials submitted for this Court's perusal does plaintiff actually specify how Dietz's use of the mails or wires, when informing plaintiff that "any agreements made by [the decedent]" regarding 92 Wilbur Street would not be honored, was misleading or served some other deception and the undersigned is loathe to assume that simply because a breach-of-contract action may lie, a RICO action may similarly be pursued. In short, because plaintiff has failed to establish any predicate acts by any defendant, he has not established a "pattern of racketeering activity" upon which to bottom his RICO allegations and cannot withstand defendants' motions for summary judgment. It should also be noted here that, inasmuch as plaintiff has also not shown the "existence of an agreement to violate RICO's substantive provisions, " his claim of a RICO conspiracy also fails. United States v. Sessa, 125 F.3d 68, 71 (2d Cir. 1997) (quoting United States v. Benevento, 836 F.2d 60, 73 (2d Cir. 1987)).
Accordingly, it is hereby ORDERED that defendants' motions for summary judgment are granted but only as to plaintiff's RICO claims, that plaintiff's outstanding motions are deemed mooted and that this Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims.