Dauphinais v. Cunningham

Filing 90

ORDER granting 78 Defendants' Motion for Judgment on the Pleadings. See the Attached Memorandum of decision. 74 Plaintiff's Motion for Summary Judgment is denied. The Clerk is ordered to enter judgment for the Defendants and to close this case. Signed by Judge Vanessa L. Bryant on 11/30/09. (Engel, J.)

UNITED STATES DISTRICT COURT D IS T R IC T OF CONNECTICUT

D O U G L AS H. DAUPHINAIS, P la in t if f , v. D O N AL D CUNNINGHAM et al. D e fe n d a n ts .

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C IV IL ACTION NO. 3 : 0 8 -c v -1 4 4 9 (VLB) N o v e m b e r 30, 2009

M E M O R AN D U M OF DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS [Doc. #78] T h e Plaintiff, Douglas H. Dauphinais, brought this action pro se for damages u n d e r the Racketeer Influenced and Corrupt Organizations Act ("RICO") (18 U.S.C. § 1961 et seq.), and pendant state law claims of bribery, slander, tortious in te rfe re n c e with business relations, and violation of the Connecticut Corrupt O rg a n iz a tio n and Racketeering Activities Act ("CORA") (Conn. Gen. Stat. § 53-393 e t seq.). The Defendants are his former employers, Donald and Gertrude C u n n in g h a m , and Somers Baptist Church, a local religious organization for which th e Cunninghams have acted as deacon/deaconess or church officers.1 Presently p e n d in g before the Court is the Defendants' motion to dismiss or, in the a lte rn a tiv e , motion for judgment on the pleadings pursuant to Rules 12(b)(1), 1 2 (b )(6 ), 12(h)(3) and 12(c) of the Federal Rules of Civil Procedure. For the reasons th a t follow, the Defendants' motion is GRANTED.

By Order dated June 2, 2009, this Court dismissed all claims against D e fe n d a n ts Cashman, Lattanzio, and Steele [Doc. #70].

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I. Factual Background T h e following facts relevant to the Defendants' motion are taken from the P la in tiff's Complaint and the documents attached thereto. The individual Defendants, Donald and Gertrude Cunningham, are husband a n d wife and owners of a company known as the Hanson Whitney Company (" H a n s o n Whitney" or "the Company"), which formerly employed the plaintiff in the 1 9 9 0 s . While employed by Hanson Whitney, the Plaintiff was a software developer w h o specialized in computer software for manufacturing companies. He claims to h a v e developed certain software on his own time and on his own computer that w a s implemented by him at Hanson Whitney, resulting in a large increase in profits fo r the Company. According to the Plaintiff, at some point he asked the Cunninghams to join h im in the marketing of the software he had developed. However, they declined the o ffe r and instead bullied and threatened the Plaintiff, calling him a "Damn Catholic" a n d threatening that he would receive "the worst of their (Baptist) three levels of p u n is h m e n t," among other statements. The Plaintiff quit his job at Hanson W h itn e y in May 1992 as a result of this treatment. Hanson Whitney continued to u s e the software developed by the Plaintiff for their business on an exclusive b a s is . Afte r quitting his job at Hanson Whitney, the Plaintiff experienced difficulties o b ta in in g new employment. During October 1992, he applied for a Systems An a lys t position with Windsor Manufacturing Systems ("Windsor"). After two in te rv ie w s , he was informed by Robert Chapman, the company's Personnel 2

Manager, that he had a job pending a check of his references. The Plaintiff p ro v id e d Donald Cunningham as a reference. He was hired by Windsor, and his e m p lo ym e n t there lasted from November through December 1992. Subsequently, in March 1993, Chapman phoned the Plaintiff and informed him that Donald C u n n in g h a m was "blacklisting" him. On June 30, 1993, the Plaintiff filed a blacklisting complaint with the C o n n e c tic u t Department of Labor (hereinafter "CDOL"). See Attachment A. In this c o m p la in t, the Plaintiff alleged that Donald Cunningham had given him a bad re fe re n c e and as a result he had been unable to secure employment. The CDOL In v e s tig a to r handling the complaint interviewed Donald Cunningham on July 13, 1 9 9 3 . Cunningham stated that he had received one reference call from Windsor s in c e the Plaintiff left Hanson Whitney, and stated that he provided what he b e lie v e d to be a fair and accurate assessment of the Plaintiff's job performance to C h a p m a n . Cunningham admitted telling Chapman that the Plaintiff had not p e rfo rm e d well as a supervisor and that this led to a disagreement which was the b a s is for his employment terminating. The investigator discussed restrictions on re le a s e of information set forth in Conn. Gen. Stat. § 31-128 with Cunningham, p ro v id e d him with a copy of the statute, and issued orders for compliance which C u n n in g h a m signed. Cunningham agreed in the future to only verify dates of e m p lo ym e n t, job title, and salary (if appropriate) unless he had written a u th o riz a tio n to reveal additional information. Thereafter, the investigator provided a report of his investigation to the Plaintiff and closed the file. Afte r receiving CDOL's report, the Plaintiff contacted the Hartford Legal 3

Referral Service and was referred to Attorney Phillip Steele. Steele met with the P la in tiff and accepted his case at a rate of $210 per hour along with a $1,000 re ta in e r. At a subsequent meeting, Steele asked the Plaintiff what he thought of D o n a ld Cunningham. On the basis of this question, the Plaintiff concluded that S te e le had spoken to Donald Cunningham. During the same meeting, Steele c o n v in c e d the Plaintiff to represent himself in his state court action in order to s a v e money, and indicated that he would pick up the case at a later time when n e c e s s a ry. On October 5, 1994, the Plaintiff filed a complaint in Connecticut S u p e rio r Court alleging that Donald Cunningham and Catherine Campbell, C o n tro lle r for Hanson Whitney, made defamatory statements against him in order to interfere with his business relationship with Windsor, and negligently inflicted e m o tio n a l distress upon him by making harassing telephone calls. See Attachment C . However, Steele subsequently "walked off" the case, which the Plaintiff alleges is the result of his association with the Cunninghams. Thereafter, the Plaintiff d ro p p e d his case in Connecticut Superior Court. He alleges that he received n u m e ro u s harassing telephone calls from both Steele and Donald Cunningham a fte r Steele terminated his representation. Since that time, he has not been able to o b ta in an attorney to assist him in pursuing his claims, and has only been able to o b ta in sporadic employment. He does not claim that either of the Cunninghams s p o k e with anyone about him other than Chapman and the CDOL investigator. In June 2003, the Plaintiff wrote letters to the Attorney General and State S e n a to r Colapietro in an attempt to redress the alleged blacklisting. Roger R o c h e le a u , Investigator for CDOL, responded to the Plaintiff via letter dated May 4

14, 2004. See Attachment D. In the letter, Rocheleau informed the Plaintiff that the s ta tu te of limitations on his blacklisting claim had expired. Rocheleau further in d ic a te d that, notwithstanding expiration of the statute of limitations, he had in v e s tig a te d the Plaintiff's complaint and was unable to substantiate his a lle g a tio n s and therefore was not taking further action in the matter. On October 1 2 , 2004, the plaintiff attempted to contact Commissioner Shaun Cashman, but was in s te a d referred to Attorney Stephen Lattanzio. The following day, Cashman sent a le tte r to the Plaintiff stating that his blacklisting case was administratively closed w ith CDOL. See Attachment E. The Plaintiff subsequently sent letters to the Equal E m p lo ym e n t Opportunity Commission and the FBI complaining of the Defendants' a lle g e d activities, to no avail. See Attachments F and G. The Plaintiff further alleges that, in July 2001, during a visit from his oldest d a u g h te r and son-in-law, his son-in-law told him that he had gone to a Baptist C h u rc h other than the Defendant Somers Baptist Church. His son-in-law then s e a rc h e d the Plaintiff's computers in an attempt to locate software that the Plaintiff h a d developed. Thereafter, his relationship with his two daughters became in c re a s in g ly strained, and his daughters ultimately indicated that they could no lo n g e r have a relationship with him. In 2006, the Plaintiff was allowed to visit his o ld e s t daughter in Texas. After viewing his daughter's home, he concluded that s h e and her husband had received a financial windfall, which he believed to have b e e n the result of payoffs from the Baptist Church. The record is devoid of any fa c tu a l basis for this belief or any explanation of the hierarchy, organization, or s tru c tu re of the Baptist denomination and its constituent churches. 5

Based upon the foregoing facts, the Plaintiff alleges that the Cunninghams e n g a g e d in a scheme of bribery, extortion, and other criminal activities in concert w ith the Baptist Church, Attorney Steele, and officials from CDOL to steal his c o m p u te r software and blacklist him from finding employment over the past d e c a d e and a half. He further alleges that, through their position at the Baptist C h u rc h , the Cunninghams made payoffs to his daughters so that they would no lo n g e r communicate with him. II. Discussion As an initial matter, the Court notes that the time for filing a motion to d is m is s in this case has passed, as the Defendants filed an answer to the C o m p la in t on March 6, 2009. See Fed. R. Civ. P. 12(b). Therefore, the Defendants' m o tio n is properly treated as a motion for judgment on the pleadings, which may b e filed after the pleadings are closed but early enough to avoid delaying trial. See F e d . R. Civ. P. 12(c); see also Patel v. Contemporary Classics of Beverly Hills, 259 F .3 d 123, 126 (2d Cir. 2001). "The standard for granting a Rule 12(c) motion is id e n tic a l to that of a Rule 12(b)(6) motion for failure to state a claim." Patel 259 F.3d a t 126. "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a `s h o rt and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While Rule 8 does not require d e ta ile d factual allegations, "[a] pleading that offers labels and conclusions or a form u la ic recitation of the elements of a cause of action will not do. Nor does a c o m p la int suffice if it tenders `naked assertion[s]' devoid of `further factual 6

enhancement.' To survive a motion to dismiss, a complaint must contain sufficient fac tu a l matter, accepted as true, to `state a claim to relief that is plausible on its fac e .' A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for the m isc o n du c t alleged." Id. (internal citations omitted). In reviewing a pro se complaint, the Court must assume the truth of the a lle g a tio n s , and interpret the complaint liberally to "raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). "A document filed p ro se is to be liberally construed and a pro se complaint, however inartfully p le a d e d , must be held to less stringent standards than formal pleadings drafted by la w ye rs .'" Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. P a rd u s , 551 U.S. 89,94 (2007)). Nevertheless, "[l]ike any other complaint, a pro se c o m p la in t, to survive a motion to dismiss, must plead enough facts to state a claim to relief that is plausible on its face." Bisson v. Martin Luther King Jr. Health C lin ic , No. 07-5416-cv, 2008 WL 4951045, at *1 (2d Cir. Nov. 20, 2008) (internal q u o ta tio n marks omitted). T h e Defendants move to dismiss the Plaintiff's RICO, slander, and tortious in te rfe re n c e claims on statute of limitations grounds. The statute of limitations for libel and slander is two years, see Conn. Gen. S ta t. 52-597, and the statute of limitations for torts such as interference with b u s in e s s relations is three years. See Conn. Gen. Stat. 52-577. These statutes b e g in to run on the date of the act or omission complained of, rather than the date th e cause of action has accrued or the injury has occurred. See Fichera v. Mine 7

Hill Corp., 541 A.2d 472, 475-76 (Conn. 1988); L. Cohen & Co., Inc. v. Dun & B ra d s tre e t, Inc., 629 F. Supp. 1425, 1428-29 (D. Conn. 1986). B a s e d upon the facts alleged in the Complaint, the Plaintiff left Hanson W h itn e y in May 1992 after the Cunninghams allegedly made threatening statements to him, around which time he claims that the Company appropriated the software h e had developed for their own use. He first suffered injury with respect to his libel a n d tortious interference claims at the time he alleges Donald Cunningham p ro v id e d a negative reference to Robert Chapman in October 1992. According to th e Plaintiff, he learned of this injury when Chapman phoned him in March 1993 a n d informed him that Cunningham was "blacklisting" him. Therefore, the P la in tiff's own Complaint alleges that the injuries he suffered with respect to his s la n d e r and interference with business relations claims occurred no later than 1 9 9 3 , fifteen years before he filed suit in the instant case. Nevertheless, the Plaintiff argues that the statute of limitations should be to lle d due to the Defendants' fraudulent concealment. Conn. Gen. Stat. § 52-595 p ro vid e s for the tolling of the statute of limitations as a result of fraudulent c o nc e a lm e n t. This provision states as follows: "If any person, liable to an action by a n oth er, fraudulently conceals from him the existence of the cause of such action, s u ch cause of action shall be deemed to accrue against such person so liable the re fo r at the time when the person entitled to sue thereon first discovers its e x is te n c e ." Id. Thus, by its express terms, Conn. Gen. Stat. § 52-595 tolls the a p plic a b le statute of limitations only up to the point that the injured person first d is c o ve rs his cause of action, and does not apply thereafter. See Martinelli v. 8

Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 427 (2d Cir. 1999) (" [T]h e re plainly can be no effective tolling for a plaintiff who was aware of the e x is te n c e of his or her cause of action from the time the claim originally accrued. We therefore conclude that the plaintiff must be ignorant of the facts that the d e fe n d a n t has sought to conceal for the statute of limitations to toll under § 525 9 5 ." ). Here, the Plaintiff alleges in the Complaint that he has been aware of the e s s e ntia l facts underlying his slander and interference with business relations c a u s e s of action since no later than 1993. Moreover, on the basis of many of the s a m e facts alleged in his present Complaint, the Plaintiff filed suit in Connecticut S u p e rio r Court on October 5, 1994 asserting claims for defamation, interference with b u s in e s s relations, and intentional infliction of emotional distress. See Attachment C . Therefore, these claims are time-barred and must be dismissed. "The statute of limitations for a civil RICO claim is four years." McLaughlin v . Am. Tobacco Co., 522 F.3d 215, 233 (2d Cir. 2008). "The statute begins to run w h e n the plaintiff discovers - or should reasonably have discovered - the alleged in ju ry." Id. In support of his RICO claim, the Plaintiff alleges that the Cunninghams e n g a g e d in a scheme to extort and bribe state officials, his prior attorney, and his o w n family using their influence at the Baptist Church in order to appropriate his s o ftw a re and deprive him of employment opportunity. The majority of the a lle g a tio n s relating to the RICO claim relate to actions that occurred in the 1990s. It appears from the Complaint that the Plaintiff is asserting that he first discovered th e alleged RICO scheme sometime in 1993 or 1994 when he concluded that the 9

Cunninghams had bribed Attorney Steele while he was representing the Plaintiff. Therefore, the RICO claim appears to be time-barred as well. However, even assuming that the Plaintiff did not discover the alleged facts s u p p o rtin g his RICO claim until 2006, when he concluded that his family had been b rib e d by the Cunninghams, his claim must still be dismissed because the C o m p la in t fails to allege a pattern of racketeering activity. Under 18 U.S.C. § 1962, " a person commits a RICO violation when he (a) invests income derived from a p a tte rn of racketeering in an enterprise; or (b) controls an enterprise through a p a tte rn of racketeering activity; or (c) participates in an enterprise through a p a tte rn of racketeering activity; or (d) conspires to violate subsections (a), (b) or (c )." Dempsey v. Sanders, 132 F. Supp. 2d 222, 226 (S.D.N.Y. 2001). "As to what c o n s titu te s a pattern under RICO, the statute states only that it `requires at least tw o acts of racketeering activity [i.e., predicate acts]' within a 10-year period." Id. (q u o tin g 18 U.S.C. § 1961(5)). "The Supreme Court subsequently narrowed the d e fin itio n to require a showing of at least two racketeering predicates (1) that are re la te d and (2) that amount to, or threaten the likelihood of, continued criminal a c tivity . . . As the Supreme Court explained: `A pattern is not formed by sporadic a c tivity, . . . and a person cannot be subjected to the sanctions of [RICO] simply for c o m m ittin g two widely separated and isolated criminal offenses . . . Instead, the te rm "pattern" itself requires the showing of a relationship between the predicates, . . . and of the threat of continuing activity . . . It is this factor of continuity plus re la tio n s h ip which combines to produce a pattern.'" Id. at 226-27 (quoting H.J. Inc. v . Northwester Bell Telephone Co., 492 U.S. 229, 239 (1989)). 10

As to the relatedness requirement, predicate acts are "related" for RICO p u rp o s e s when they "have the same or similar purposes, results, participants, v ic tim s , or methods of commission, or otherwise are interrelated by distinguishing c h a ra c te ris tic s and are not isolated events." Schlaifer v. Nance & Co., 119 F.3d 91, 9 7 (2d Cir. 1997). This requirement appears to be satisfied in this case, because th e Plaintiff alleges that all of the acts of extortion and bribery committed by the C u n n in g h a m s were directed to the purpose of depriving the Plaintiff of the use of h is software and employment opportunity and appropriating the software for their C o m p a n y's exclusive benefit. With respect to the continuity requirement, "a plaintiff in a RICO action must a lle g e either an `open-ended' pattern of racketeering activity (i.e., past criminal c o n d u c t coupled with a threat of future criminal conduct) or a `closed-ended' p a tte rn of racketeering activity (i.e. past criminal conduct `extending over a s u b s ta n tia l period of time')." Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 9 1 , 97 (2d Cir. 1997). "Essentially, courts have held that where a Plaintiff alleges a s in g le scheme promulgated for the limited purpose of defrauding a single victim, c o n tin u ity cannot be established." Dempsey, 132 F. Supp. 2d at 228 (citations o m itte d ). In this case, the Plaintiff's RICO allegations consist of 1) quotations from v a rio u s criminal statutes that may serve as predicate acts for purposes of RICO w ith the names of the Defendants inserted therein, and 2) general statements re fle c tin g the Plaintiff's belief that the Cunninghams bribed and extorted his former a tto rn e y, state officials, and members of his family, without any specific supporting fa c ts . These are precisely the types of allegations that are insufficient to survive a 11

motion to dismiss under the standard set forth by the Supreme Court in Iqbal, 129 S . Ct. 1949 ("A pleading that offers labels and conclusions or a formulaic recitation o f the elements of a cause of action will not do . . . Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement . . ."). However, even construing the Plaintiff's Complaint as liberally as possible and g iv in g him the benefit of every doubt, his RICO claim still must fail because the " s c h e m e " he alleges "is nothing more than a classic example of a single-victim, s in g le -d e fe n d a n t fraud dressed up to resemble a multi-faceted RICO claim. It is s im p ly not the type of activity constituting the `long-term criminal conduct' which C o n g re s s intended to target with the passage of RICO." Dempsey, 132 F. Supp. 2d a t 228-29. Accordingly, the Plaintiff's RICO claim is dismissed. F in a lly, the Defendants move to dismiss the Plaintiff's CORA claim on the b a s is that CORA does not permit a civil cause of action. CORA is purely a criminal s ta tu te and does not authorize a private right of action. See Town of West Hartford v . Dadi, Docket No. CV010807735, 2002 WL 241462 (Conn. Super. Ct. Feb. 1, 2002); s e e also Cort v. Ash, 422 U.S. 66, 80 (1975) (finding that no private cause of action e x is te d under "a bare criminal statute, with absolutely no indication that civil e n fo rc e m e nt of any kind was available to anyone"); Burke v. APT Foundation, 509 F. S u p p . 2d 169, 173 (D. Conn. 2007) ("criminal statutes . . . do not provide a private rig h t of action to civil litigants"). Therefore, the Plaintiff's CORA claim is dismissed a s well.2

The Plaintiff also included a claim for "bribery" in his Complaint. However, h e failed to identify any Connecticut statute or case law authorizing a civil cause of 12

2

III. Conclusion B a s e d upon the foregoing reasoning, the Defendants' motion for judgment o n the pleadings is GRANTED. The Clerk is directed to enter judgment for the D e fe n d a n ts and to close this case.

IT IS SO ORDERED.

/s/ Vanessa L. Bryant U n ite d States District Judge

D a te d at Hartford, Connecticut: November 30, 2009.

a c tio n for bribery, and instead appears to allege instances of bribery as predicate a c ts for purposes of his RICO claim. To the extent that the Plaintiff seeks to e s ta b lis h civil liability for violation of a criminal bribery statute, such as Conn. Gen. S ta t. § 53a-160, which makes commercial bribery a class D felony, his claim would b e barred for the reasons explained in Cort and Burke. 13