Parness v. Christie

MARTIN S. PARNESS, Plaintiff, v. CHRISTOPHER J. CHRISTIE, et al., Defendants.

Civil Action No. 15-3505 (JLL)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

December 19, 2017

*NOT FOR PUBLICATION

OPINION

LINARES, Chief District Judge:

Presently before the Court is the Amended Complaint (ECF No. 22) of Plaintiff, Martin S. Parness, which was initially filed in the Southern District of New York in April 2017, twenty months after this Court dismissed Plaintiff's initial complaint. (See ECF No. 12, 21). Because Plaintiff has been granted in forma pauperis status in this matter, this Court must review his Amended Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B), to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, this Court will dismiss Plaintiff's complaint in its entirety because Plaintiff's claims are all either time barred, fail to state a claim for relief, or because the Court lacks subject matter jurisdiction over Plaintiff's claims.

I. BACKGROUND

Because this Court provided a detailed summary of Plaintiff's claims in its opinion dismissing Plaintiff's first complaint, and because Plaintiff's amended complaint in large part echoes the same allegations made in that initial complaint, albeit with some elaboration this Court will not repeat that summary here and will instead incorporate by reference the summary contained in the Court's prior opinion. (ECF No. 11 at 2-10). Instead, the Court will note those differences between the two complaints where relevant in its discussion of Plaintiff's claims provided below.

II. DISCUSSION

A. Legal Standard

Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996) ("PLRA"), district courts must review complaints in those civil actions in which the plaintiff is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B). The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B) as Plaintiff is proceeding in forma pauperis.

According to the Supreme Court's decision in Ashcroft v. Iqbal, "a pleading that offers 'labels or conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure to state a claim,¹ the complaint must allege "sufficient factual matter" to show that the claim is facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). "A claim has facial plausibility when the plaintiffpleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally construed, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).

B. Plaintiff's RICO Claims

As in his previous complaint, Plaintiff's chief claims in this matter are a series of civil claims brought pursuant to the Racketeer Influenced and Corrupt Organization ("RICO") Act.² As this Court previously explained,

18 U.S.C. § 1962(c) "makes it unlawful 'for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.'" In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 362 (3d Cir. 2010) (quoting 18 U.S.C. § 1962(c)). Section 1962(d) expands liability under the statute by making it "unlawful for any person to conspire to violate [18 U.S.C. § 1962(c)]". 18 U.S.C. § 1962(d). "The RICO statute provides for civil damages for any person injured in his business or property by reason of a violation of [§ 1962]." Amos v. Franklin Fin. Servs. Corp., 509 F. App'x 165, 167 (2013) (quoting Tabas v. Tabas, 47 F.3d 1280, 1289 (3d Cir. 1995)).

A violation of the statute

requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The plaintiffmust, of course, allege each of these elements to state a claim. Conducting an enterprise that affects interstate commerce is obviously not in itself a violation of § 1962, nor is the mere commission of the predicate offenses. In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.

Id. The injury to business or property element requires "proof of a concrete financial loss and not mere injury to a valuable intangible property interest." Maio v. Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000) (quoting Steele v. Hosp. Corp. of Am., 36 F.3d 69, 70 (9th Cir. 1994)). A complaint therefore must contain allegations "of actual monetary loss, i.e., an out-of-pocket loss" to adequately plead the injury element. Id. Physical or emotional harm to a person is insufficient to show that a person was injured in his business or property under the act. Magnum v. Archdiocese of Philadelphia, 253 F. App'x 224, 227 (3d Cir. 2007). "Similarly, losses which flow from personal injuries are not [damage to] property under RICO." Id. (internal quotations omitted). Losses derived from a Plaintiff's false imprisonment are derivative of a personal injury, and therefore cannot constitute a RICO injury. See Magnum v. Archdiocese of Philadelphia, No. 06-2589, 2006 WL 3359642, at *4 (E.D. Pa. Nov. 17, 2006), aff'd, 236 F. App'x 224 (2007); see also Evans v. City of Chicago, 434 F.3d 916, 926-27 (7th Cir. 2006), overruled in part on other grounds, Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013).

As to the injury suffered, a civil RICO plaintiff is also required to plead causation. "[T]o state a claim under civil RICO, the plaintiff is required to show that a RICO predicate offense "not only was a 'but for' cause of his injury, but was the proximate cause as well." Hemi Group, LLC v. City of New York, 559 U.S. 1, 9 (2010). "Proximate cause for RICO purposes . . . should be evaluated in light of its common-law foundations; proximate cause thus requires 'some direct relation between the injury asserted and the injurious conduct alleged.'" Id. (quoting Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992). Where the link between the RICO acts and the alleged injury is too remote, purely contingent, or indirect, that link is insufficient to establish proximate cause.

A plaintiff establishes a pattern of racketeering activity "by showingthat the defendants engaged in at least two predicate acts within ten years of each other." Amos, 509 F. App'x at 168. Included among potential predicate acts are "federal mail fraud under 18 U.S.C. § 1341 or federal wire fraud under 18 U.S.C. § 1343." Id. "[M]ail or wire fraud consists of: '(1) a scheme to defraud; (2) use of the mails [or wires] to further that scheme; and (3) fraudulent intent.'" Id. (quoting United States v. Pharis, 298 F.3d 228, 234 (3d Cir. 2002)). Predicate acts under the statute also include "any act or threat involving . . . kidnapping, . . . bribery[ or] extortion . . . which is chargeable under State law and punishable by imprisonment for more than one year" as well as the bribery of public officials under 18 U.S.C. § 201. See 18 U.S.C. § 1961(1). In order to be liable under the statute, each defendant must have participated in "two or more predicate offenses sufficient to constitute a pattern." Amos, 509 F. App'x at 168 (quoting Banks v. Wolk, 918 F.2d 418, 421 (3d Cir. 1990)).

Where the alleged predicate acts asserted include fraud claims, such as mail or wire fraud, a plaintiff must meet the heightened pleading requirements of Rule 9(b) in order to state a claim for relief. CareOne, LLC v. Burris, Civil Action No. 10-2309, 2011 WL 2623503, at *8 (D.N.J. June 28, 2011); see also Waden v. Mcelland, 288 F.3d 105, 114 (3d Cir. 2002). Under Rule 9(b), "a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). In order to satisfy this pleading requirement, a plaintiff must "identify[] the purpose of the [mailing or use of wires] within the defendant's fraudulent scheme and specify[] the fraudulent statement, the time, place, and speaker and content of the alleged misrepresentation." Burris, 2011 WL 2623503 at *8 (quoting Annulli v. Panikkar, 200 F.3d 189, 200 n. 10 (3d Cir. 1999), overruled on other grounds by Rotella v. Wood, 528 U.S. 549 (2000)). A plaintiff asserting a fraud claim must therefore allege the "who, what, when, and where details of the alleged fraud" in order to meet the requirements of the rule. District 1199P Health and Welfare Plan v. Janssen, L.P., 784 F. Supp. 2d 508, 527 (D.N.J. 2011). "The purpose of Rule 9(b) is to provide notice of the precise misconduct with which defendants are charged' in order to give them an opportunity to respond meaningfully to the complaint, 'and to prevent false or unsubstantiated charges.'" Id. (quoting Rolo v. City of Investing Co. Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998)). A plaintiff therefore "must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of theprecise misconduct with which [it is] charged." Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (quoting

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