Lu v. Menino

98 F.Supp.3d 85

Friedrich LU, Plaintiff

v.Thomas M. MENINO, et al., Defendants.

Civil Action No. 14–13053–LTS.

United States District Court, D. Massachusetts.

Signed March 10, 2015.

Friedrich Lu, Boston, MA, pro se.

Nicole M. O'Connor, City of Boston Law Department, Wilbur E. Commodore, Boston Housing Authority, Timothy Joseph Harrington, Boston Public Health Commission, Boston, MA, for Defendants.

ORDER ON REPORT AND RECOMMENDATION

SOROKIN, District Judge.

After de novo review of the Report and Recommendation issued by Magistrate Judge Bowler on March 2, 2015, Doc. No. 41, in light of the objections filed by the Plaintiff, Doc. No. 47, a correction to those objections, Doc. No. 48, and the Motion to Amend the Complaint filed after the Report and Recommendation, Doc. No. 44, the Court hereby ADOPTS the Report and Recommendation for the reasons stated therein and OVERRULES the objections filed by the Plaintiff. Accordingly, the Court ALLOWS the City Defendants' Motion to Dismiss, Doc. No. 17, the BPHC's Motion to Dismiss, Doc. No. 16, the BHA's Motion to Dismiss, Doc. No. 32, and DENIES the Plaintiff's Motions for Summary Judgment, Doc. Nos. 19, 23, 37, the City Defendants' Motion for Sanctions and Injunctive Relief, Doc. No. 11, and DENIES AS MOOT the City Defendants' First Motion to Dismiss, Doc. No. 8.

The Plaintiff's Motion to Amend the Complaint, Doc. No. 44, is DENIED. The proposed amendments are futile or otherwise precluded by the Court's decision on the Complaint. The Motion for Reconsideration on Service of Process, Doc. No. 42, is DENIED.

The only claim remaining in this case is Count IV against the BHA, as it did not move to dismiss this claim. Count IV purports to assert a common law fraud claim against the BHA. Having dismissed the federal claims in this case and perceiving no discernible independent basis for the exercise of subject matter jurisdiction by the Court over this claim, the Court declines to exercise supplemental jurisdiction over this claim, at this early stage of the case. Accordingly, this claim is DISMISSED WITHOUT PREJUDICE.

The Clerk shall close this case.

SO ORDERED.

FRIEDRICH LU, Plaintiff,

v.

THOMAS M. MENINO, MARTIN J. WALSH, WILLIAM F. SINNOTT, EUGENE L. O'FLAHERTY, CAROLINE O. DRISCOLL, DAVID WATERFALL, GEORGE HULME, BERTHE M. GAINES, DONNA M. DEPRISCO, ANGELO M. SCACCIA, JAMES CARROLL, KARYN M. WILSON, JEFFREY B. RUDMAN, ZAMAWA ARENAS, A. RAYMOND TYE, EVELYN ARANA–ORTIZ, PAUL LA CAMERA, CAROL FULP, BYRON RUSHING, DENNIS LEHANE, JOHN T. HAILER, LAURA DEBONIS, JOHN DUNLAP, PAUL CURRAN, AMY E. RYAN, BOSTON SCHOOL COMMITTEE, BOSTON HOUSING AUTHORITY, BOSTON REDEVELOPMENT AUTHORITY, BOSTON PUBLIC HEALTH COMMISSION, TRUSTEES OF BOSTON PUBLIC LIBRARY, Defendants.

REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION TO DISMISS (DOCKET ENTRY # 8); DEFENDANTS' AMENDED MOTION TO DISMISS (DOCKET ENTRY # 17); DEFENDANT BOSTON PUBLIC HEALTH COMMISSION'S MOTION TO DISMISS (DOCKET ENTRY # 16); MOTION TO DISMISS AND IN THE ALTERNATIVE FOR JUDGMENT ON THE PLEADINGS (DOCKET ENTRY # 32); PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY # 23); PLAINTIFF'S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY # 19); PLAINTIFF'S THIRD MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY # 37); DEFENDANTS' MOTION FOR SANCTIONS AND INJUNCTIVE RELIEF (DOCKET ENTRY # 11)

BOWLER, United States Magistrate Judge.

Pending before this court is a motion to dismiss filed by defendants Thomas M. Menino (“Mayor Menino”), Martin J. Walsh (“Mayor Walsh”), William F. Sinnott (“Sinnott”), Eugene L. O'Flaherty, Caroline O. Driscoll, David Waterfall, George Hulme, Berthe M. Gaines, Donna M. Deprisco, Angelo M. Scaccia, James Carroll, Karyn M. Wilson, Jeffrey B. Rudman, Zamawa Arenas, A. Raymond Tye, Evelyn Arana–Ortiz, Paul La Camera, Carol Fulp, Byron Rushing, Dennis Lehane, John T. Hailer, Laura Debonis, John Dunlap, Paul Curran and Amy E. Ryan (“the City defendants”) to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6) ”). (Docket Entry # 17). The motion duplicates a prior motion to dismiss (Docket Entry # 8) except for the addition of three City defendants inadvertently omitted from the previous motion.

Defendant Boston Housing Authority (“BHA”) moves to dismiss the complaint under Rule 12(b)(6) or, in the alternative, for summary judgment. (Docket Entry # 32). Defendant Boston Public Health Commission (“BPHC”) also seeks to dismiss the complaint under Rule 12(b)(6). (Docket Entry # 16).

Plaintiff Friedrich Lu (“plaintiff”), proceeding pro se, opposes the motions (Docket Entry 25, 28, 36) and separately moves for partial summary judgment as to liability (Docket Entry 20, 23, 37). Because of plaintiff's pro se status, this court considers the arguments he raises in the summary judgment motions, including the extortion argument (Docket Entry # 37), as also raised in opposition to all three motions to dismiss.

The City defendants additionally seek monetary sanctions against plaintiff and a permanent injunction prohibiting plaintiff from commencing other lawsuits for the conduct alleged in this case. (Docket Entry # 11). The basis for the sanctions and the injunction is plaintiff's repeated failure to comply with a March 2002 Order entered in Lu v. Harvard School of Dental Medicine et al., Civil Action No. 00–11492–MLW (“the March Order”). The March Order required plaintiff to attach a copy of the March Order and a certification that he complied in good faith with the March Order to any complaint plaintiff filed in the United States District Court for the District of Massachusetts. (Docket Entry # 11–1). Plaintiff opposes the motion. (Docket Entry # 21).

The complaint alleges that the City of Boston (“the City”) in a number of court cases and on its website and budget adopted positions that certain entities, such as the Trustees of the Boston Public Library (“the Trustees”), were departments or agencies of the City in order to prevail in legal actions or to create “fiefdoms” for the late Mayor Menino. (Docket Entry # 1). Mayor Walsh then “inherited the machine” and “perpetuate[d] the schemes,” according to the complaint. (Docket Entry # 1). The complaint outlines the City's “contradictory” positions. For example, in a Massachusetts Superior Court (Suffolk County) case¹ and in a prior case plaintiff filed in Massachusetts Superior Court (Suffolk County)² the City asserted that BPHC and the Trustees were, respectively, a “corporation separate from the City” (Docket Entry # 1, ¶ 9) (emphasis added) and “a private(!) Corporation” (Docket Entry # 1, ¶ 13). These and other examples of the City's and certain other defendants' contradictory positions reveal that defendants³ are “moving goal posts” to achieve legal victories and to defraud plaintiff as well as the courts, according to the complaint. (Docket Entry # 1, ¶ 4).⁴

Count One of the four count complaint alleges that defendants engaged in a pattern of racketeering activity to gain control over “[t]he enterprises,” defined as “their respective (government) offices,” in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(b) (“section 1962(b) ”). (Docket Entry # 1, ¶ 18). Count Two asserts that defendants, except for Mayors Menino and Walsh, employed or associated with “an enterprise” and engaged in the activities of the enterprise “through a pattern of racketeering activity” in violation of 18 U.S.C. § 1962(c) ( “section 1962(c) ”). (Docket Entry # 1, ¶ 19). The enterprise depicted in Count Two, which this court also considers with respect to Count One, comprises “both Law Department and Office of Labor Relations of the City, Boston School Committee, Boston Housing Authority, Boston Redevelopment Authority, Boston Public Health Commission, plus Trustees of Boston Public Library.” (Docket Entry # 1, ¶ 19). Count Three alleges that defendants conspired to violate sections 1962(a), (b) or (c) in violation of 18 U.S.C. § 1962(d) (“section 1962(d) ”). Count Four is based on common law fraud.

Among other arguments, the City defendants and BHA contend that the complaint fails to set out predicate acts of racketeering. The City defendants additionally argue that Count Four fails to make out a viable fraud claim because it is bereft of any alleged promise or statements that induced plaintiff's reliance. The City defendants also submit that Count Four does not comply with Fed.R.Civ.P. 9(b) (“Rule 9(b) ”). BPHC argues that both the RICO claims and the fraud claim fail to satisfy Rule 9(b). Pointing out that the complaint does not allege that plaintiff had any contact with BPHC, BPHC submits that the complaint fails to set out any facts to support the RICO and fraud counts. Initially, this court turns to the motions to dismiss before addressing the summary judgment motions.

I. Defendants' Motions to Dismiss

The standard of review for a Rule 12(b)(6) motion is well established. To survive a Rule 12(b)(6) motion to dismiss, the complaint must include factual allegations that when taken as true demonstrate a plausible claim to relief even if actual proof of the facts is improbable. Bell Atlantic v. Twombly, 550 U.S. 544, 555–558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, while “not equivalent to a probability requirement, the plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully.” Boroian v. Mueller, 616 F.3d 60, 65 (1st Cir.2010) (internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint ... has not shown that the pleader is entitled to relief.” Feliciano–Hernandez v. Pereira–Castillo, 663 F.3d 527, 533 (1st Cir.2011) (internal quotation marks and citations omitted). Discarding legal conclusions and taking the facts in the complaint as “true and read in a plaintiff's favor even if seemingly incredible,” the complaint “must state a plausible, but not a...