Makowiecki v. Pacific Gas and Electric Company et al

Filing 15

ORDER signed by District Judge John A. Mendez on 12/6/2017 GRANTING the Defendants' 6 Motion to Dismiss Plaintiff's RICO claim with prejudice and the remaining state-law claims without prejudice. CASE CLOSED (Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK MAKOWIECKI, 12 13 14 15 16 17 No. 2:17-cv-01630-JAM-CMK Plaintiff, v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PG&E CORPORATION, a California corporation, and PACIFIC GAS AND ELECTRIC COMPANY, a California corporation, Defendants. 18 19 Plaintiff Mark Makowiecki (“Plaintiff”) alleges his 20 employment with Defendants PG&E Corporation and Pacific Gas and 21 Electric Company (collectively, “Defendants” or “PG&E”) was 22 wrongfully terminated in 2015. 23 then, Defendants have interfered with Plaintiff’s ability to work 24 with third parties and threatened him when he tried to come onto 25 Defendants’ premises to conduct work for third parties. 26 Compl., ECF No. 1. 27 Defendants alleging fourteen causes of action under state law and 28 one cause of action under federal law. Plaintiff claims that, since See In August 2017, Plaintiff filed suit against 1 Id. Defendants move to 1 dismiss all claims for failure to state a claim. 2 No. 6. 3 below, the Court dismisses the federal law cause of action with 4 prejudice and dismisses the other causes of action without 5 prejudice for lack of subject matter jurisdiction. 1 Plaintiff opposes. Opp’n, ECF No. 9. See Mem., ECF For the reasons 6 7 I. 8 9 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff worked for Defendants from August 2011 to August 2015 as an electrical inspector in Northern California. See 10 Compl. ¶ 4(a)(2). After Plaintiff complained to one his 11 superiors, Mr. Mike Novello, about compensation disparities 12 between current employees and new hires, Defendants moved him to 13 another PG&E location, put him on administrative leave, and then 14 terminated him on August 4, 2015. 15 July 2016, while working for a third party, Plaintiff had to 16 visit one of Defendants’ locations for work and was intimidated 17 and threatened by Defendants’ security personnel. 18 ¶ 4(e)(1). 19 wireless communications to cause the forcible removal of 20 Plaintiff from their property. See Compl. ¶ 4(b)(4)-(10). In See Compl. Plaintiff claims that Defendants used wire and See Compl. ¶ 4(m)(2). 21 Defendants also used wire and wireless communications to 22 contact third parties to have Plaintiff’s employment or contracts 23 terminated with those third parties. 24 Plaintiff claims that Defendants blackballed or blacklisted him. 25 Compl. ¶ 4(m)(4). 26 1 27 28 See Compl. ¶ 4(m)(2). This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for Nov. 21, 2017. In deciding this motion, the Court takes as true all well-pleaded facts in the operative complaint. 2 1 Plaintiff filed the operative complaint on August 6, 2017. 2 See Compl. The Complaint contains fourteen state law causes of 3 action and one cause of action under the Racketeer Influenced and 4 Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68. 5 Defendants have moved to dismiss all causes of action for failure 6 to state a claim and Plaintiff opposes. Mem.; Opp’n. 7 8 II. 9 OPINION Plaintiff alleges that this Court has subject matter 10 jurisdiction over this lawsuit based on his RICO claim. 11 ¶ 1. 12 has not plausibly alleged that claim and the Court dismisses it 13 with prejudice. 14 supplemental jurisdiction over Plaintiff’s remaining fourteen 15 causes of action under state law. Compl. But, for the reasons below, the Court finds that Plaintiff The Court also declines to exercise 16 A. Subject Matter Jurisdiction 17 A federal district court may decline to exercise 18 supplemental jurisdiction if it has dismissed all claims over 19 which it has original jurisdiction. 20 Inc., 625 F.3d 550, 561 (9th Cir. 2010) (internal citations and 21 quotation marks omitted). 22 federal-law claims are eliminated before trial, the balance of 23 facts to be considered under the pendent jurisdiction doctrine— 24 judicial economy, convenience, fairness, and comity—will point 25 toward declining to exercise jurisdiction over the remaining 26 state-law claims.” 27 omitted). 28 Sanford v. MemberWorks, “In the usual case in which all Id. (internal citation and quotation marks Here, Plaintiff concedes that the Court’s jurisdiction over 3 1 the subject matter of this action is based on the RICO claim and 2 then supplemental jurisdiction over the other fourteen causes of 3 action under state law. See Compl. ¶ 1. 4 B. Plaintiff’s RICO Claim 5 RICO imposes criminal and civil liability on those who 6 engage in specified “prohibited activities.” H.J. Inc. v. Nw. 7 Bell Tel., Co., 492 U.S. 229, 232 (1989). 8 activities are defined in 18 U.S.C. § 1962(a)-(d). 9 to alleging “prohibited activity”, the plaintiff must allege The prohibited In addition 10 “(1) conduct (2) of an enterprise (3) through a pattern (4) of 11 racketeering activity (known as ‘predicate acts’) (5) causing 12 injury to plaintiff’s ‘business or property’.” 13 Inc. v. E.I. Dupont de Numours and Co., 431 F.3d 353, 361 (9th 14 Cir. 2005) (internal citations and quotation marks omitted). 15 “predicate acts” that constitute “racketeering activity” are 16 defined under 18 U.S.C. § 1961(1) and include “any act or threat 17 involving murder, kidnapping, gambling, arson, robbery, bribery, 18 extortion, dealing in obscene matter, or dealing in a controlled 19 substance . . . which is chargeable under State law[.]” 20 Living Designs, The To plausibly allege a RICO violation, Plaintiff must also 21 allege a pattern of predicate acts. See H.J. Inc., 492 U.S. at 22 236. 23 activity within a 10-year period that suggest they are ordered or 24 arranged in a pattern. 25 also requires continuity over a significant period of time. 26 Inc., 492 U.S. at 242 (“A party alleging a RICO violation may 27 demonstrate continuity over a closed period by proving a series 28 of related predicates extending over a substantial period of A pattern requires at least two acts of racketeering H.J. Inc., 492 U.S. at 232. 4 A pattern H.J. 1 time.”). 2 Continuity does not require a showing that the defendants 3 engaged in more than one scheme or criminal episode. 4 Television Enter., Inc. v. SelecTV of Cal., Inc., 833 F.2d 1360, 5 1363 (9th Cir. 1987) (internal citation and quotation marks 6 omitted). 7 the predicate acts indicate a threat of continuing activity. 8 (internal citation omitted). 9 absent where there is only a single alleged predicate act with a 10 But the case-specific circumstances must suggest that single victim. 11 Medallion Id. A threat of continuing activity is See id. at 1363-64. Here, Plaintiff alleges that the predicate acts are false 12 arrest and mail and wire fraud. 13 alleged pattern of these predicate acts is based on “the 14 manifestations of Mr. Novello’s plan and scheme to punish 15 plaintiff and hold him out as an example to others.” 16 see also Compl. ¶ 4(m)(2). 17 authority to support his RICO claim. 18 See Opp’n at 9-10. And the Opp’n at 9; Plaintiff has provided no legal See Opp’n at 9-10. Even if Plaintiff had sufficiently alleged claims for false 19 imprisonment or mail and wire fraud and the Court found both of 20 these to be predicate acts, Plaintiff has not plausibly alleged a 21 pattern of racketeering activity. 22 that Defendants’ plan was to punish him and make an example of 23 him. 24 Plaintiff has only alleged See Opp’n at 9; Compl. ¶ 4(m). Plaintiff has not alleged (1) any other victims of the 25 alleged mail or wire fraud and false imprisonment or (2) that 26 Defendants are continuing to engage in the alleged mail or wire 27 fraud and false imprisonment. 28 not plead the type of pattern under RICO that he needs to allege— See Compl. ¶ 4(m). 5 Plaintiff does 1 i.e. a threat of continuing activity involving multiple schemes 2 or multiple victims. 3 F.2d at 1364 (“Here, that [continuing] threat is absent. 4 case involved but a single alleged fraud with a single victim.”); 5 see also Durning v. Citibank, Int'l, 990 F.2d 1133, 1139 (9th 6 Cir. 1993) (even where there was more than one victim of alleged 7 fraud, the Court found no RICO violation since there was no 8 threat of continued or ongoing criminal activity); see also 9 Obeng-Amponsah v. Chase Home Fin., LLC, 624 F. App’x 459, 462 See Medallion Television Enter., Inc., 833 This 10 (9th Cir. 2015), cert. denied, 137 S. Ct. 163 (2016) (“Obeng only 11 alleged underlying fraud and forgery as to a single victim 12 (himself), which is insufficient for RICO.”). 13 Plaintiff has failed to state a plausible RICO claim and 14 dismisses it. 15 The Court finds Having dismissed the only federal law claim in the 16 Complaint, the Court exercises its discretion and dismisses all 17 of Plaintiff’s state-law claims without prejudice so that 18 Plaintiff may refile these claims in the proper state court if he 19 so chooses. 20 See Sanford, 625 F.3d at 561. 2 Finally, Plaintiff requested the Court to dismiss without 21 prejudice if it rejected any claims in the complaint. See Opp’n 22 at 15. 23 amendment would be futile. 24 Servs., 454 F.3d 1043, 1049 (9th Cir. 2006). 25 Plaintiff has pleaded no facts nor cited any legal authority But the Court need not grant leave to amend where Deveraturda v. Globe Aviation Sec. As explained above, 26 2 27 Both parties’ requests for judicial notice are also denied since the documents referenced therein are unnecessary for the disposition of Defendants’ motion. 28 6 1 supporting his RICO claim. 2 that suggest amendment could rectify this problem. 3 denies Plaintiff’s request. And Plaintiff has pointed to no facts The Court 4 5 6 III. ORDER For the reasons set forth above, the Court GRANTS 7 Defendants’ Motion to Dismiss Plaintiff’s RICO claim with 8 prejudice and the remaining state-law claims without prejudice. 9 10 IT IS SO ORDERED. Dated: December 6, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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