Opinion
01-CV-1574 (ILG)
March 15, 2002
MEMORANDUM AND ORDER
SUMMARY
Plaintiffs filed this action in March of 2001 alleging, inter alia, violations of the Sherman Anti-Trust Act, the Racketeer Influenced Corrupt Organizations ("RICO") Act and the California Unfair Competition statute against defendants Edward M. Bendelow ("Bendelow) and the Bendelow Law Firm, f/k/a Bendelow Darling P.C., A.H.R.M.A. Ltd. d/b/a American Historic Racing Motorcycle Association ("AHRMA"), current and former named directors. officers, officials, or trustees of AHRMA, and the American Motorcyclist Association ("AMA). Bendelow individually now moves to dismiss the complaint against him for lack of personal jurisdiction and lack of venue pursuant to Rules 12(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion to dismiss for lack of personal jurisdiction is granted.
The motions were filed originally on behalf of Edward Bendelow and the Bendelow Law Firm. However, during oral argument held on February 8, 2002, the Bendelow Law Firm withdrew their motions.
BACKGROUND
Edward Bendelow, Esq. resides in Colorado and maintains a principle place of business at the Bendelow Law Firm P.C. in Denver, Colorado. (See Compl. ¶ 16.) Plaintiff Team Obsolete Ltd., Team Obsolete Products Ltd., and Team Obsolete Promotions, Inc. (collectively "Team Obsolete"), are New York corporations with a principal place of business located in Brooklyn, New York. (Id. ¶ 4.) Plaintiff Robed T. Iannucci ("Iannucci") is a resident of New York State and the President of Team Obsolete. (Id. ¶ 5.) He is also the founder of defendant AHRMA, a Ohio corporation, which was created in the 1980s for the purpose of organizing vintage motorcycle racing in the United States. (Id. ¶¶ 5, 33.) The other named plaintiffs are individuals who either ride Team Obsolete motorcycles; ride on behalf of Team Obsolete in national races; or are otherwise associated with Team Obsolete. They include, among others, plaintiff Jim Redman who is a resident of South Africa and maintains an office in Brooklyn, New York (id. ¶ 6.), and plaintiffs Dave Roper and Erik Green who are both residents of New York (id. ¶¶ 8, 10). The other individual plaintiffs reside in states other than New York.
Bendelow and his law firm had previously represented Iannucci and Team Obsolete and, in 1988, provided the legal assistance to help AHRMA to make the transition from a privately held business to a "member-owned, Democratic, not-for-profit association." (Id. ¶¶ 16, 34.) Bendelow has acted as general counsel to AHRMA since its reorganization. According to the complaint, in his capacity as general counsel, Bendelow attends AHRMA Board of Trustee meetings, provides the "legal strategy for [AHRMA's] activities and is generously compensated for his time." (Id. ¶ 40.) AHRMA is currently governed by its Board of Trustees; its day-to-day operations are governed by an Executive Committee; and "[u]pon information and belief, . . . the Executive Director and the General Counsel (Bendelow) wield great power." (Id. ¶ 36.)
Since its inception, AHRMA has acted as a sanctioning body, issuing permits to independent promoters, such as Team Obsolete, who wish to organize events under AHRMA rules and with AHRMA class titles. (Id. ¶ 38.) AHRMA also organizes its own events in various states, including but not limited to, New Hampshire, Ohio, New York, California and Florida. (Id. ¶¶ 29, 38.) Iannucci and Team Obsolete "own and operate the world's premier collection of very important historic racing motorcycles," and sponsor many of the world's greatest "historic riders," including several of the plaintiffs named here. (Id. ¶¶ 31-32.)
According to Iannucci's affidavit, Team Obsolete also maintains a "highly specialized private repair shop" in Brooklyn, New York which services and repairs motorcycles used by Team Obsolete riders and others. (See Affidavit of Robert T. Iannucci ("Iannucci Aff.") ¶ 4.) Each motorcycle requires between thirty and one hundred hours of labor in preparation for each race event, and Team Obsolete charges $60 per hour for such labor. (Id. ¶ 5.) In addition, Team Obsolete stores and maintains many of its own vintage motorcycles in its Brooklyn facilities which it rents out for use in competitions for thousands of dollars per motorcycle. (Id. ¶¶ 8-9.)
The plaintiffs allege in 266 paragraphs that, through various actions, the defendants have sought to "limit Team Obsolete's ability to participate in vintage motorcycle racing and to destroy Team Obsolete as a competitor." Plaintiffs allege fifteen causes of action. only three of which mention Bendelow. Plaintiffs' first cause of action in which Bendelow is mentioned is brought under the Sherman Act and alleges that "the defendants engaged in an unlawful conspiracy" which "consisted of a continuing agreement, understanding and concert of action among the defendants to devise a plan and scheme . . . to compete unfairly with Team Obsolete." (Id. ¶ 151.) The complaint proceeds to detail the facts of the conspiracy, including five incidents, only one of which mentions Bendelow. (Id. ¶ 152.) The incident involved the denial of Iannucci's AHRMA membership renewal application in January of 1999. After AHRMA's Executive Director, J. Smith, notified Iannucci in writing of the Board's decision not to renew his membership, Iannucci requested that he be provided with details of the denial, as well as a prompt and fair hearing. By letter dated March 26, 1999, Bendelow wrote to Iannucci on his law firm letterhead, advising him that AHRMA did not wish to do business with Team Obsolete based on "conduct" described in the BEARS infringement matter, and that the hearing he requested would take place in August at the AHRMA board meeting in Arizona. (Id. ¶ 115; Letter, Pl. Ex. E.) At some point prior to the August Board meeting, Iannucci's counsel asked that the hearing be adjourned because he was scheduled to conduct a trial on that date, and that Bendelow withdraw for conflict of interest reasons. The "Board, acting through Bendelow refused to adjourn," and Bendelow declined to withdraw. (See Compl. ¶ 116.)
J. Smith was AHRMA's Executive Director from 1990 to 2000. (See Compl. ¶ 24.)
Neither party describes the details of the BEARS infringement matter in their papers. In any event, it appears to have little, if any, relevance to the present motions.
The second Sherman Act claim is brought by five individual riders, as opposed to by Team Obsolete or Iannucci, and only refers tangentially to Bendelow's actions in that conspiracy. According to the complaint, "[u]pon information and belief," Bendelow participated in a conspiracy to "destroy" Redman by modifying AHRMA's appeals procedures in favor of AHRMA after Redman had filed a complaint against J. Smith who had allegedly attempted through violence to block Redman from riding a Team Obsolete motorcycle at the 1995 Daytona race. (Id. ¶¶ 163-64, 45-49, 53-56.) The complaint fails to explain however how the appeals procedures were modified or the specific significance or effect of those modifications. It just states that Redman's appeal was eventually dismissed as moot. (Id. ¶ 49.) There are no other specific allegations involving Bendelow with respect to the other four individual plaintiffs.
Plaintiffs ninth claim alleges that Bendelow and the individual AHRMA defendants "engaged in a pattern of racketeering activity" in violation of the RICO Act. (Id. ¶ 218.) Plaintiffs list various predicate acts and, specifically, with respect to Bendelow, allege that he knowingly filed a false trademark application with the Patent and Trademark Office on behalf of AHRMA, and "made extensive use of the mail in furtherance of this matter" (id. ¶ 219(c); "sent a knowingly false letter to Agostini [a named rider in this complaint], attempting to cause him to detach himself from Team Obsolete" (id. ¶ 219(d)); and allegedly "advised" AHRMA to terminate Iannucci's membership in AHRMA, which resulted in the exclusion of Team Obsolete sponsors and riders in AHRMA sanctioned events, and that such termination and exclusions were accomplished through use of the United States mail and phone and facsimile transmissions (id. ¶ 219(f). Plaintiffs also allege that Bendelow is outside counsel to AHRMA and therefore is considered to be an independent actor for purposes of the RICO statute. (Id. ¶ 223.)
Plaintiffs remaining cause of action asserted against Bendelow involves the California Unfair Competition statute and is not used by plaintiffs as a basis to establish personal jurisdiction. In any event, no acts other than those already noted above are referred to as predicates for this claim.
Plaintiffs assert that personal jurisdiction is properly established as to defendant Bendelow based on New York long arm jurisdiction. In the alternative, plaintiffs argue that personal jurisdiction is proper under the RICO Act, 18 U.S.C. § 1965(b). Plaintiffs also argue that venue is proper under 28 U.S.C. § 1391(b)(2) and (b)(3), and 18 U.S.C. § 1965.
DISCUSSION
Courts should generally resolve issues of jurisdiction before venue.Leroy v. Great Western United Corp., 443 U.S. 179, 180 (1979). Thus, the Court will first consider whether personal jurisdiction has been established over Bendelow, and then, if appropriate, turn to the question of venue.
I. Personal Jurisdiction
When responding to a motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). However, when the motion is brought before any discovery has been conducted, only a prima facie showing of personal jurisdiction is required to defeat the motion. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). Plaintiffs may rely on the complaint, affidavits, and other supporting materials to satisfy this burden. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). Such pleadings and affidavits must be construed in the light most favorable to the plaintiffs, and all doubts must be resolved in plaintiffs favor. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).
A. Personal Jurisdiction Under New York's Long Arm Statute
Plaintiffs argue that the Court has personal jurisdiction over the out-of state defendant under Sections 302(a)(2) and (a)(3) and (ii) of the New York Civil Procedure Law and Rules ("CPLR"). Section 302(a)(2) and (a)(3) provide:
a court may exercise personal jurisdiction over any non-domiciliary . . ., who in person or through an agent:
2. commits a tortious act within the state . . .; or
3. commits a tortious act without the state causing injury to person or property within the state . . ., if he
(i) regularly does business, or engages in any other persistent course of conduct, derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.
C.P.L.R. § 302(a).
1. Tortious Act Within the State
For jurisdictional purposes, anti-trust violations are considered tortious acts. Yellow Page Solutions, Inc., 2001 WL 1468168, at *8;Fashion Two Twenty, Inc. v. Steinberg, 339 F. Supp. 836, 841 (E.D.N.Y. 1971); Albert Levine Assocs. v. Bertoni Cotti, 314 F. Supp. 169, 171 (S.D.N.Y. 1970). However, to establish jurisdiction under this section, a person must be physically present within the state when the tortious act is committed. Bank Brussels Lambert v. Fiddler Gonzalez Rodriguez, 171 F.3d 779, 790 (2d Cir. 1999); Bensusan Rest. Corp v. King, 126 F.3d 25, 28-29 (2d Cir. 1997). Here, there is no question that Bendelow was never physically present in New York at any time during the events which led to this lawsuit. The only instances of any direct contact Bendelow had with New York was through a few letters sent on behalf of AHRMA from Colorado via mail or facsimile to Iannucci at his Brooklyn address. Not only is the tortious nature of these letters questionable, but they are certainly not enough to establish Bendelow's physical presence within the state for jurisdictional purposes. See Heinfling v. Colapinto, 946 F. Supp. 260, 264 (S.D.N.Y. 1996) ("[L]etters mailed from outside the state into New York do not constitute tortious acts committed "within the state" for purposes of § 302(a)(2)."); Van Essche v. Leroy, 692 F. Supp. 320, 324-25 (S.D.N.Y. 1988) (mailing of a tortious letter from Texas to New York did not give rise to jurisdiction under § 302(a)(2) because the mailing was not an act committed in New York).
Plaintiffs urge the Court to find that a tortious act was committed within the state by virtue of that fact that they allege anti-trust violations causing injury within the state. Plaintiffs rely on Daniel, M.D., v. Am. Bd. of Emergency Med., 988 F. Supp. 127 (W.D.N.Y. 1997) for this proposition. The court in Daniel found that "an action alleging violations of antitrust laws is considered a claim for injuries sustained in New York, and thus is in the nature of a tort supporting long-arm jurisdiction under Section 302(a)(2)." Id. at 231. Plaintiffs reliance onDaniel is misplaced. In Daniel, the court was considering whether jurisdiction was proper over foreign defendants based on the tortious acts of their alleged co-conspirators, and ultimately concluded that jurisdiction was lacking because plaintiffs had failed to establish a conspiracy under the anti-trust laws. Here, plaintiffs do not even attempt to argue that Section 302(a)(2) jurisdiction is proper under a co-conspirator theory. See infra. The Court is simply not persuaded by plaintiffs' bald assertion that the Court has jurisdiction over Bendelow because anti-trust claims were alleged against him, causing injury within this state. If jurisdiction could be established by this type of assertion, the distinction between 302(a)(2) (tort within the state) and 302(a)(3) (tort without the state, injury within the state) would become meaningless. In fact, other courts have denied Section 302(a)(2) jurisdiction in actions alleging anti-trust violations when there is no indication that the defendant was ever present within the state. See, e.g., Yellow Page Solutions, Inc., 2001 WL 1468168, at * 8 (denying personal jurisdiction because "[p]laintiffs have failed to allege specifically any tortious act performed by the moving defendants while in New York"); Fashion Two Twenty, Inc., 339 F. Supp. at 842 (holding that "unless some act is committed within New York by the defendants to which the appellation "tortious" may be attached, mere injury within the state is insufficient").
Although not argued by the plaintiffs here, the Court notes that Section 302(a)(2) also permits a court to exercise jurisdiction over a defendant who commits a tortious act through an agent. C.P.L.R. § 302(a). The word "agent" under the statute has been defined broadly to include a defendant's co-conspirator. Chrysler Capital Corp. v. Century Power Corp., 778 F. Supp. 1260, 1266 (S.D.N.Y. 1991); Lehigh Valley Indus., Inc. v. Birenbaum, 389 F. Supp. 798, 806-07 (S.D.N.Y.), aff'd, 527 F.2d 87 (2d Cir. 1975). Thus, a defendant may be subject to personal jurisdiction if his co-conspirator committed tortious acts within the forum state see e.g., Chrysler Capital Corp., 778 F. Supp at 1266;Grosser, 639 F. Supp. at 1308, or, in other words, the co-conspirator was present in the forum state when the tortious acts were committed. However, even assuming that the complaint properly alleges a conspiracy among Bendelow individually and AHRMA, there are no allegations to suggest that the AHRMA defendants were ever physically present in New York when the alleged tortious acts were committed. Indeed, the complaint suggests that the AHRMA defendants were everywhere but New York, in that any business decisions were made at Board meetings, none of which are alleged to have taken place in New York. AHRMA is located in Ohio and the Bendelow law firm is located in Colorado, and most significantly, none of the twenty or so incidents detailed in the complaint occurred in New York. Thus, there is no basis for long-arm jurisdiction under Section 302(a)(2).
Plaintiffs have in fact failed to sufficiently allege a conspiracy among these defendants, as will be discussed infra.
For example, the "Redman Incident" took place in Daytona, Florida: the "Don Vesco Disqualification" took place in Willows Springs, California; the "Legal Eagles Incident" had to do with an event taking place in Atlanta, Georgia; "the No-Rob Stickers" involved the Mid-Ohio race; and soon. (See Compl.)
2. Tortious Act Without the State Causing Injury Within the State
Plaintiffs also argue that personal jurisdiction is proper over Bendelow under Section 302(a)(3). However, plaintiffs fail to show that Bendelow committed any tortious act outside of the state, and therefore jurisdiction cannot be maintained under this section. See LaMarca v. Pak-Mor Mfg., Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 307 (2000).
The allegations in the complaint as against Bendelow consist of the following: assisting in the reorganization of AHRMA; attending AHRMA Board meetings; modifying AHRMA's appeal procedures; and sending correspondence on behalf of AHRMA to Iannucci (and others) in New York. When considering these allegations alone, the Court cannot conclude that these acts were tortious in nature. However, the complaint also alleges that Bendelow committed these acts as part of his involvement in a conspiracy with AHRMA to destroy Team Obsolete as a competitor in the world of vintage motorcycle racing. Relying on agency principles, Bendelow argues that he was merely acting as AHRMA's agent, and therefore he and AHRMA must be regarded as a single entity. As such, Bendelow could not have legally conspired with AHRMA to commit tortious acts. Defendant cites to no authority in support of this proposition. Although the traditional lawyer-client relationship is analogous to the agent-principal relationship, see United States v. Int'l Bhd. of Teamsters, 986 F.2d 15, 20 (2d Cir. 1993), contrary to defendant's blanket assertion, an agent and its principal can conspire under Section 1 of the Sherman Act in certain situations see Fuchs Sugar Syrup, Inc. v. Amstar Corp., 602 F.2d 1025, 1031, n. 5 (2d Cir. 1979); accord Bulkferts, Inc. v. Salatin Inc., 574 F. Supp. 6, 8 (S.D.N.Y. 1983).
Notwithstanding the fact that a lawyer may conspire with it's client under the Sherman Act, plaintiffs must still make a prima facie showing that such conspiracy existed in order to rely on that conspiracy for jurisdictional purposes. Such a showing must be more than a "bland assertion of conspiracy." Singer v. Bell, 585 F. Supp. 300, 302 (S.D.N.Y. 1984) (considering jurisdiction under Section 302 generally) (quoting Lehigh Valley Indus., Inc, 527 F.2d at 93-94 (applying conspiracy analysis in context of Section 302(a)(2) jurisdiction)); Yellow Page Solutions. Inc., 2001 WL 1468168, at *9 (applying Lehigh Valley Indus, in Section 302(a)(3) context). A conspiracy is rarely proven by direct evidence and is "usually established by circumstantial evidence based upon independent proof of each alleged co-conspirator's acts and the totality of the conduct of all the participants and the reasonable inference to be drawn therefrom." Singer, 585 F. Supp. at 303-304 n. 9 (quoting United States v. Kahaner, 203 F. Supp. 78, 84 (S.D.N.Y. 1962)). Nevertheless, a plaintiff must allege specific facts warranting an inference of conspiracy. A conspiracy under New York law consists of (a) a corrupt agreement between two or more persons; (b) an overt act in furtherance of the agreement; (c) the parties' intentional participation in the furtherance of a plan or purpose; and (d) the resulting damage or injury. Chrysler Capital Corp., 778 F. Supp. at 1267 (citing Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir. 1986)). The Sherman Act also requires that a conspiracy be premised upon a corrupt agreement which is intended to place a restraint on trade or commerce among the several states. 15 U.S.C. § 1.
It is well established that a civil conspiracy is not an independent tort under New York law; however, plaintiffs have also pled an anti-trust violation which, as previously noted.. is the actionable wrong. See Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir. 1981).
Other than the bald assertion that Bendelow and various AHRMA defendants "conspired" in violation of Section 1 of the Sherman Act, there is no evidence of any corrupt agreement in the complaint or supplemental pleadings. Although plaintiffs allege that Bendelow attends AHRMA Board meetings, these meetings in and of themselves do not show that Bendelow entered into an anti-competitive agreement with members of the AHRMA Board. See Yellow Page Solutions, Inc., 2001 WL 1468168, at *8 ("Absent a specific showing that the meetings served an unlawful end," plaintiff's conclusory allegations do not create tortious activity.). The complaint also alleges that, "upon information and belief . . . the General Counsel wield[s] great power" in AHRMA. (See Compl. ¶ 36.) Plaintiffs have no evidentiary support for this assertion however as evidenced by the fact that the statement is prefaced "upon information and belief" Such an assertion is not enough to establish a conspiracy.See Singer, 585 F. Supp. at 303 (plaintiff must come forward with "definite evidentiary facts" in support of their conspiracy theory, and "mere speculation and conjecture" of a conspiracy will not suffice). Moreover, writing letters to Iannucci on behalf of AHRMA, including a cease and desist letter regarding Team Obsolete's use of certain names, and a few follow-up letters on the matter; a letter regarding assessments of legal fees; and a letter responding to Iannucci's inquiries as to why his membership in AHRMA would not be renewed (see Letters, Pl., Ex. E), as well as modifying AHRMA's appeals procedures for AHRMA's benefit, do not support an inference of any corrupt agreement between Bendelow and AHRMA. Plaintiffs simply cannot rely on the "mere professional relationship" between Bendelow and AHRMA to support the inference that a corrupt agreement or conspiracy existed between them. See Singer, 585 F. Supp. at 303 (finding lawyer's professional relationship with client was insufficient to infer a conspiracy under Sherman Act to establish long-arm jurisdiction). Thus, even drawing all reasonable inferences in favor of plaintiffs, this Court nevertheless is driven to conclude that the actions taken by Bendelow in his professional capacity, including primarily sending formal letters on behalf of AHRMA and modifying AHRMA's appeals procedures, were not tortious activities. Thus, New York's long-arm jurisdiction statute does not provide a basis for this Court to exercise personal jurisdiction over Bendelow.
B. Personal Jurisdiction Under RICO Statute
Plaintiffs also do not establish personal jurisdiction over Bendelow under the RICO statute, 18 U.S.C. § 1965(b). The law in this Circuit is clear that the RICO statute "does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant is found." PT United Can Co., Ltd. v. Crown Cork Seal Co., Inc., 138 F.3d 65, 71 (2d Cir. 1998). To establish personal jurisdiction over a non-domiciliary defendant under Section 1965(b), plaintiffs must show that (1) the Court has personal jurisdiction as to at least one defendant based on minimum contacts, and (2) "the ends of justice" so require. Id. Although the Second Circuit chose not to specify what constitutes "the ends of justice," the Ninth Circuit and other district court's in this Circuit have interpreted the phrase to permit the exercise of "personal jurisdiction if, otherwise, the entire RICO claim could not be tried in one civil action." Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986); Daly v. Castro Llanes, 30 F. Supp.2d 407, 413 (S.D.N.Y. 1998); PT United Can Co., Ltd. v. Crown Cork Seal Co., Inc., No. 96-CV-3669, 1997 WL 31194 (S.D.N.Y. Jan. 28. 1997), aff'd, 138 F.3d at 72 n. 5 (declining to address meaning of phrase "the ends of justice" because party did not challenge district court's conclusion that ends of justice were not met).
18 U.S.C. § 1965(b) provides: "In any action under § 1964 of this chapter . . . in any district court . . . in which it is shown that the ends of justice require that other parties residing in any other district be brought before this court, the court may cause such parties to be summoned. and process . . . may be served in any judicial district. . . ."
Plaintiffs submit that both AHRMA and the AMA are subject to personal jurisdiction in New York; that the complaint pleads a conspiracy among the defendants under RICO; and that there is no one district that could exercise jurisdiction over all of the defendants. Assuming either AHRMA or the AMA have sufficient minimum contacts with New York to establish personal jurisdiction over them, the Court nevertheless declines to assert jurisdiction over Bendelow because it would not be in the interest of justice to do so. First, although plaintiffs "submit" that there is no other district where this RICO action could be brought, it is not clear from the record that plaintiffs' submission is correct. As described by the plaintiffs, both AHRMA and the AMA are national organizations with offices, affiliates, and members located in many states around the country, and who sponsor events nationally. Moreover, although the directors and officers of AHRMA named in the complaint reside in various states, their affiliations with AHRMA may in fact subject them to jurisdiction in states other than those in which they live. Thus, at the present time, the Court cannot say for certain that there is no other district in which the action could be brought.
More significantly, however, is the fact that plaintiffs have failed to show that Bendelow was involved in a racketeering "enterprise" or "conspiracy" with AHRMA. Thus, contrary to plaintiffs' contention, because the RICO claim cannot be maintained against AHRMA's lawyer, the "ends of justice" do not mandate the exercise of personal jurisdiction over him by this Court. See, e.g., Martin-Trigona v. Shift, 600 F. Supp. 1184, 1189 (D.D.C. 1984) (rejecting plaintiff's ends of justice argument under Section 1965 because civil RICO claim was baseless); Casio Computer Co., Ltd. v. Sayo, No. 98-CV-3772, 2000 WL 1877516, at * 26 (S.D.N.Y. Oct. 13, 2000) (in a report and recommendation, recommending denial of personal jurisdiction under "ends of justice" prong because RICO claim was "fatal"). Plaintiffs assert in their memorandum of law that they have stated a valid RICO conspiracy claim under 18 U.S.C. § 1962(d); however, their complaint appears to state claims under both Sections 1962(c) and (d) of the Act. Thus, the Court will consider the viability of both claims.
Defendants have not moved to dismiss the RICO claim pursuant to Fed.R.Civ.P. 12(b)(6), and therefore the Court will not consider the viability of the claim as to the AHRMA defendants and the AMA. However, for purposes of asserting personal jurisdiction under Section 1965(b), plaintiffs assume that they have adequately alleged a RICO conspiracy. Based on this assumption, the Court will engage, at least partially, into an inquiry of whether plaintiffs have stated a valid RICO claim against Bendelow individually.
A violation of Section 1962(c) consists of the following elements: "(1) conduct (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). It is well established that a person engaged in the enterprise must be distinct from it. Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir. 1994); Official Publ'ns, Inc. v. Kable News Co., 884 F.2d 664, 668 (2d Cir. 1989). An allegation of a RICO enterprise that consists of "merely a corporate defendant associated with its own employees or agents" carrying on the affairs of the corporation. is not sufficient to establish the requisite distinctness of entities under the Act. Riverwoods Chappaqua Corp., 30 F.2d at 344. Here, the complaint states in a conclusory manner that Bendelow, as outside counsel, was an independent actor for purposes of the RICO statute. (See Compl. ¶ 223.) However, the factual allegations in the complaint do not support this conclusion. Indeed, all the complaint shows is that the limited acts taken by Bendelow were done in his capacity as AHRMA's agent for the purpose of carrying out AHRMA's legal affairs. Thus, the Court cannot conclude that Bendelow was "distinct" from AHRMA or any alleged "enterprise" that may or may not have existed. At least one other court has similarly found. In Goldberg v. Merrill Lynch, Pierce, Fenner Smith, Inc., No. 97-CV-8779, 1998 WL 50200, at * 4 (S.D.N.Y. Feb. 9, 1998), the court denied the motion to replead facts in the complaint holding that the plaintiff could not circumvent the distinctness requirement under Section 1962(c) by claiming that Merrill Lynch's attorneys acting with Merrill Lynch constituted an enterprise under the Act.
Section 1962(c) provides: "It shall be unlawful for any person through a pattern of racketeering activity . . . to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." (Emphasis added.)
In addition, plaintiffs have failed to adequately allege two predicate acts involving Bendelow and the RICO conspiracy. Neither the alleged Sherman Act violations nor the purported fraudulent letter sent on behalf of AHRMA to the Patent and Trademark Office constitute predicate acts under RICO. See 18 U.S.C. § 1961(1) (enumerating predicate acts);United States v. Bonanno Organized Crime Family of La Cosa Nostra, 683 F. Supp. 1411, 1432 (E.D.N.Y. 1988) (violations of 15 U.S.C. § 1 is not predicate act under RICO); Wilson v. Cont'l Dev. Cp., 112 F. Supp.2d 648, 658-59 (W.D. Mich. 1999) (mailing allegedly false application to Patent and Trademark Office does not constitute predicate act under RICO); see Ctr. Distribs. of Beer v. Conn, 5 F.3d 181, 184 (6th Cir, 1993) ("[d]efendant must make a false statement or omission of fact to the plaintiff to support a claim of wire fraud or mail fraud as a predicate act for a RICO claim.") (emphasis added). Thus, the only remaining predicate act listed in the complaint as to Bendelow is what may properly be construed as a claim of mail fraud involving an allegedly false letter written to Agostini, one of Team Obsolete's riders, by Bendelow on behalf of AHRMA. However, in order to constitute a "pattern of racketeering activity," two predicate acts must be alleged. 18 U.S.C. § 1961(5). One predicate act is therefore per se insufficient to established a civil RICO conspiracy.
In addition, plaintiffs fail to state a claim under Section 1962(d) as to Bendelow, which requires allegations of a manifest agreement to commit two predicate acts in furtherance of the common purpose of the RICO enterprise. See Allen v. New World Coffee, Inc., No. 00-CV-2610, 2001 WL 293683, at *9 (S.D.N.Y. Mar. 27, 2001) (plaintiff must allege each defendant manifested an agreement to commit the conspiratorial acts). As discussed in the previous section, the complaint fails to show, except through conclusory allegations of conspiracy. that Bendelow entered into a corrupt agreement with AHRMA (and AMA). See Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990) (affirming dismissal of complaint because it failed to "allege facts implying any agreement involving each of the defendants to commit at least two predicate acts").
Because the Court does not find the complaint to sufficiently plead a RICO claim with respect to Bendelow, the ends of justice do not require this Court to exercise personal jurisdiction over him under Section 1965(b). See e.g., Martin-Trigona, 600 F. Supp. at 1189; Casio Computer Co., Ltd., 2000 WL 1877516, at * 26. Accordingly, defendant's motion to dismiss the complaint for lack of personal jurisdiction is granted.
II. Venue
Because this Court grants the motion to dismiss for lack of personal jurisdiction. the question of venue need not be considered. See e.g., PT United Can Co., Ltd., 1997 WL 31194, at *4 n. 1 ("Because all claims against defendants . . . are dismissed for lack of personal jurisdiction, it is unnecessary to reach their alternative argument that venue is improper in this district."), aff'd, 1387 F.3d at 72; Hennigan v. Taser Intern., Inc., No. 00-CV-2981, 2001 WL 185122, at *5 (S.D.N.Y. Feb. 26, 2001) (same); see Norvel Ltd. v. Ulstein Propeller AS, 161 F. Supp.2d 190 (S.D.N.Y. 2001) (granting motion to dismiss for lack of personal jurisdiction and denying motion to dismiss for lack of venue as moot).
CONCLUSION
For the foregoing reasons, the motion to dismiss for lack of personal jurisdiction is granted.
So Ordered.