Wallace v. Trost et al
Filing
44
MEMORANDUM OPINION (c/m to Plaintiff and to pro se Defendants A. Wallace, S. Blank, and L. Beiler 9/4/14 sat). Signed by Chief Judge Deborah K. Chasanow on 9/4/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANDREW SCOTT WALLACE
:
v.
:
Civil Action No. DKC 13-3473
:
JEFFREY THOMAS TROST, M.D.,
et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case are
three
motions
William
to
Wiley
dismiss
and
filed
Wiley
by
Defendants:
Pharmacy
of
(1)
Stephen
Quarryville,
Inc.
(collectively, “the Wiley Defendants”) (ECF No. 9);1 (2) Stephen
G. Diamantoni, Diamantoni & Associates, and William Vollmar, II
(collectively, “the Diamantoni Defendants”) (ECF No. 14); and
(3)
Jeffrey
pending
are
Thomas
the
Trost
following
(“Dr.
Trost”)
motions
(ECF
filed
by
No.
21).
Also
Plaintiff
Andrew
Scott Wallace: (1) motion to strike a reply brief filed by the
Diamantoni
Defendants
(ECF
No.
32);
(2)
motion
for
a
more
definite statement from Defendants Sam Blank, Luke Beiler, and
Annette
Wallace
(ECF
No.
35);
(3)
motion
to
show
status
of
Plaintiff’s motion for a more definite statement (ECF No. 38);
(4) motion for summary judgment as to Defendants Sam Blank, Luke
1
According to Defendants, Wiley Pharmacy of Quarryville,
Inc. is incorrectly identified in the complaint as Wiley’s
Pharmacies. (ECF No. 9-1, at 1).
Beiler, Annette Wallace, and Dr. Trost (ECF Nos. 39 & 41).2
The
issues have been briefed, and the court now rules, no hearing
being deemed necessary.
reasons,
the
Plaintiff’s
three
motion
Local Rule 105.6.
motions
to
strike
to
dismiss
will
be
For the following
will
be
denied.
granted.
Plaintiff’s
motions for a more definite statement, to show status, and for
summary judgment will be denied as moot.
I.
Background3
Beginning in 1999, Plaintiff Andrew Scott Wallace, his then
wife
Annette
Wallace,
and
their
two
children
began
regular
doctor visits to the Medical Office of Diamantoni & Associates
Family Practice, P.C.
(ECF No. 3, at 3).
In early 2003,
Plaintiff learned that his wife Annette Wallace had been having
an adulterous affair with Dr. Jeffrey Trost of Diamantoni &
Associates since 2002.
Dr. Trost initially denied the affair
when Plaintiff confronted him in 2003, but then admitted the
affair and the two made a “verbal agreement” that Dr. Trost
would
end
the
affair.
Nevertheless,
resumed relations with Plaintiff’s wife.
Dr.
Trost
apparently
Plaintiff asserts that
other members of Diamantoni & Associates, including Defendants
2
ECF No. 41 is a corrected signed version of Plaintiff’s
initial motion for summary judgment.
3
The facts are drawn from Plaintiff’s amended complaint,
the operative pleading here. (ECF No. 3).
2
James
Elia
and
Dr.
William
Vollmar
II,
were
aware
of
this
relationship, but did nothing to stop it.
Plaintiff alleges that throughout the ongoing affair with
Dr. Trost, Annette Wallace neglected her duties with regard to
Amish Builders, a business that both Plaintiff and his wife
operated.
failed
Specifically, Plaintiff asserts that Annette Wallace
to
returns,
file
sales
business,”
and
“necessary
tax
and
returns
failed
and
“properly
required
income
[to]
personal
tax
property
returns
account
for
for
the
income
and
expenses of the business,” causing the economic failure of the
company.
(Id. ¶ 16).
Plaintiff argues that his wife’s actions
were part of a scheme designed to embezzle funds from Amish
Builders, which then were used by Annette and Dr. Trost for
their personal benefit.
Plaintiff contends that this nefarious
activity resulted in Amish Builders accruing $650,000 in debt.
Although
aftermath
of
not
his
entirely
clear
company’s
from
the
financial
complaint,
troubles
December 2004, a receiver took over the business.
Plaintiff
alleges
that
he
was
forced
to
turn
in
sometime
the
in
(Id. ¶ 20).
over
power
of
attorney to Samuel Blank after Plaintiff was unable to pay back
approximately
Builders.
$250,000
(Id. ¶ 21).
in
merchandise
supplied
to
Amish
Samuel Blank then appointed Luke Beiler
to serve as an examiner/accountant of the company’s business
records.
(Id. ¶¶ 20-21).
Plaintiff contends that once Mr.
3
Blank gained control over the company, he threatened to “ruin
him” and instructed other suppliers to cease doing business with
Amish
Builders
until
the
debts
were
repaid.
According
to
Plaintiff, Mr. Blank instructed Mr. Beiler to cancel all of
Plaintiff’s personal and company credit cards.
years
later,
salesperson
in
and
2010,
Mr.
bookkeeper
Blank
for
hired
his
(Id. ¶ 23).
Annette
company,
Wallace
B&B
Six
as
a
Structures.
(Id. ¶ 25).
In 2005, divorce proceedings commenced between Plaintiff
and Annette Wallace.
During Dr. Trost’s deposition in 2006,
Plaintiff apparently discovered that Annette had been prescribed
“alprazolam” or Xanax, and that Dr. Trost allowed Annette to
bring alcoholic beverages into the medical office.
(Id. ¶ 26).
Immediately following the deposition, Plaintiff went with his
divorce
attorney
to
Wiley
Pharmacy
of
Quarryville,
demanding records of his wife’s drug prescriptions.
Inc.,
(Id. ¶ 27).
Stephen William Wiley, the pharmacist in charge on January 24,
2006, explained that all such records were destroyed.
28).
(Id. ¶
Plaintiff alleges that Stephen Wiley and the pharmacy
intentionally destroyed the records at the request of Dr. Trost.
At some point in 2006, Plaintiff informed Dr. Trost’s wife
about Dr. Trost’s affair with Annette Wallace and sought to have
his
medical
consequently,
license
Dr.
Trost
revoked.
hired
an
4
Plaintiff
arsonist
to
avers
set
that,
fire
to
Plaintiff’s home, which was completely destroyed.
(Id. ¶ 30).
Plaintiff also contends that he received threats from Dr. Trost
during this time period, which were relayed to him by Annette
Wallace.
(Id. ¶¶ 31-32).
According to the amended complaint, from 2006 through 2009,
Plaintiff continuously filed complaints against Dr. Trost with
the Pennsylvania State Board of Medicine, the Medical Ethics
Board,
the
Pennsylvania
District
Attorney’s
Office of Governor of Pennsylvania.
Office,
(Id. ¶ 33).
and
the
By Plaintiff’s
own admission, however, the complaints were investigated, but
proved unavailing.
II.
Procedural Background
Plaintiff, proceeding pro se, filed a complaint on November
19, 2013, alleging violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962 et seq.,
against
the
following
Defendants:
Stephen
G.
Diamantoni;
Diamantoni & Associates; James M. Elia; Jeffery Thomas Trost;
William Vollmar, II; Annette Wallace; Stephen William Wiley; and
Wiley Pharmacy of Quarryville, Inc.
(ECF No. 1).4
Plaintiff
filed an amended complaint on December 4, 2013, adding Sam Blank
and Luke Beiler as new defendants.
(ECF No. 3).
Luke Beiler,
Sam Blank, and Annette Wallace answered the complaint on January
4
Plaintiff also named two defendants as “John or Jane Doe.”
5
13,
2014,
indicating
that
allegations in the complaint.
they
strongly
(ECF No. 7).5
denied
all
the
Defendants William
Wiley and Wiley Pharmacy of Quarryville moved to dismiss (ECF
No.
9),
Plaintiff
opposed
Defendants
replied
(ECF
surreply.
(ECF No. 26).
No.
the
20).
motion
(ECF
Plaintiff
No.
then
17),
and
filed
a
Defendants Diamantoni, Diamantoni &
Associates, and William Vollmar, II also moved to dismiss (ECF
No. 14), Plaintiff opposed that motion (ECF No. 19), and they
replied (ECF No. 27).
Plaintiff filed a surreply (ECF No. 34)
and also moved to strike the Diamantoni Defendants’ reply brief
(ECF No. 32).
Defendant Jeffrey Trost filed a separate motion
to dismiss (ECF No. 21), Plaintiff opposed his motion (ECF No.
31), and Dr. Trost replied (ECF No. 36).
Plaintiff then filed
the following motions: (1) motion for a more definite statement
from Defendants Sam Blank, Luke Beiler, and Annette Wallace (ECF
No. 35); (2) motion to show status of his motions (ECF No. 38);
(3) motion for summary judgment as to Defendants Sam Blank, Luke
Beiler, Annette Wallace, and Jeffrey Trost (ECF No. 39); and (4)
a corrected motion for summary judgment (ECF No. 41).
5
It does not appear that an executed summons was returned
as to Defendant James M. Elia. (See ECF No. 8).
6
III. Analysis
A.
Motion to Dismiss Filed by the Wiley Defendants
The
Wiley
Defendants
seek
dismissal
of
Plaintiff’s
complaint on two grounds: (1) lack of personal jurisdiction; and
(2) failure to state a claim upon which relief can be granted.
(ECF No. 9).
1.
Personal Jurisdiction
The first issue that must be decided is whether personal
jurisdiction can be exercised over the Wiley Defendants “because
the dismissal of a case on an issue relating to the dispute,
such
as
a
failure
to
state
a
claim,
is
improper
without
resolving threshold issues of jurisdiction, including personal
jurisdiction.”
Sucampo Pharms., Inc. v. Astellas Pharma, Inc.,
471 F.3d 544, 548 (4th Cir. 2006) (citing Ruhrgas AG v. Marathon
Oil, 526 U.S. 574, 584 (1999).
Insofar as the Wiley Defendants
contend that the court lacks personal jurisdiction, their motion
is
governed
by
Fed.R.Civ.P.
12(b)(2).
When
personal
jurisdiction over a nonresident defendant is challenged by a
Rule
12(b)(2)
resolved
by
motion,
the
“the
judge,
jurisdictional
with
the
burden
question
on
is
the
to
be
plaintiff
ultimately to prove grounds for jurisdiction by a preponderance
of the evidence.”
Ctrs.,
Inc.,
omitted).
Carefirst of Md., Inc. v. Carefirst Pregnancy
334
If
F.3d
390,
jurisdiction
396
turns
7
(4th
on
Cir.
2003)
disputed
(citation
facts,
the
challenge may be resolved after a separate evidentiary hearing,
or
the
ruling
evidence
at
may
trial
be
deferred
relevant
pending
to
the
the
introduction
jurisdictional
question.
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
here,
a
ruling
is
issued
without
conducting
an
of
Where, as
evidentiary
hearing and based solely on the complaint, “the plaintiff need
only
make
a
prima
facie
Carefirst, 334 F.3d at 396.
showing
of
personal
jurisdiction.”
In deciding whether the plaintiff
has proved a prima facie case, all reasonable inferences arising
from the proof must be drawn in favor of the plaintiff, and all
factual disputes must be resolved in his or her favor.
Mylan
Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993).
The Wiley Defendants assert that they are not residents of
Maryland; both are residents of Pennsylvania.
(ECF No. 9-1).
It is undisputed that none of the actions taken by these two
Defendants
occurred
in
Maryland.
Plaintiff
asserts
in
his
opposition to the motion to dismiss that the court has personal
jurisdiction because the “RICO conspiracy crossed State lines
from Pennsylvania to Maryland.”
(ECF No. 17, at 3).
Thus, he
appears to be premising personal jurisdiction on the civil RICO
statute and the conspiracy theory of personal jurisdiction.
Under Rules 4(k)(1)(A) and (C) of the Federal Rules of
Civil Procedure, a federal court may exercise jurisdiction over
a defendant’s person in the manner provided by state law or when
8
otherwise authorized by federal statute.6
Section 1965(d) of
RICO
in
provides
that
“[a]ll
other
process
any
action
or
proceeding under this chapter may be served on any person in any
judicial district in which such person resides, is found, has an
agent, or transacts his affairs.”
The United States Court of
Appeals for the Fourth Circuit has construed Section 1965(d) as
“authoriz[ing]
exercise
of
D’Addario
v.
nationwide
personal
Geller,
service
of
jurisdiction
264
F.Supp.2d
process
in
any
367,
and,
thus,
district
386
the
court.”
(E.D.Va.
2003)
(citing ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626
(4th Cir. 1997)).
Therefore, in this circuit, service of process
on a RICO defendant in a judicial district where that defendant
resides establishes personal jurisdiction in another judicial
district, provided that the assertion of jurisdiction comports
with due process.
here,
Congress
ESAB Grp., 126 F.3d at 626 (“[W]here, as
has
authorized
nationwide
service
of
process . . . so long as the assertion of jurisdiction over the
defendant is compatible with due process, the service of process
is sufficient to establish the jurisdiction of the federal court
over the person of the defendant.”) (internal quotation marks
omitted).
Where due process permits the exercise of personal
jurisdiction under the RICO statute, a defendant can preclude a
6
Plaintiff does not identify – either in his complaint or
the opposition – any applicable section of the Maryland Long-Arm
Statute. Nor does it appear that any section applies here.
9
plaintiff’s
provision
reliance
only
by
on
the
showing
nationwide
that
immaterial or insubstantial.”
the
service
RICO
claim
of
process
is
“wholly
Noble Sec., Inc. v. MIZ Eng’g,
Ltd., 611 F.Supp.2d 513, 549 (E.D.Va. 2009) (quoting ESAB Grp.,
126 F.3d at 629).
Here,
both
Defendants
were
served
in
Pennsylvania,
thus
they can defeat personal jurisdiction in Maryland under RICO
only
by
showing
that
due
process
would
Plaintiff’s RICO claim is not colorable.
see D’Addario, 264 F.Supp.2d at 387.7
be
violated
or
that
(ECF Nos. 8-7 & 8-8);
A civil RICO claim is
without color where it is “insubstantial, implausible, . . . or
otherwise
devoid
of
merit.”
Sadighi
v.
Daghighfekr,
36
F.Supp.2d 267, 271 (D.S.C. 1999) (internal quotation marks and
citations
omitted).
A
RICO
claim
is
colorable
“if
it
is
arguable and nonfrivolous, whether or not it would succeed on
7
Because Plaintiff invokes a federal statute as conferring
personal jurisdiction, the Due Process Clause of the Fifth
Amendment – rather than that of the Fourteenth Amendment –
applies to protect “the liberty interests of individuals against
unfair burden and inconvenience.”
ESAB Grp., 126 F.3d at 626.
Where a defendant is located within the United States, “it is
only in highly unusual cases that inconvenience will rise to a
level of constitutional concern.” Id. at 627 (quoting Republic
of Panama v. BCCI Holdings (Luxembourg), S.A., 119 F.3d 935, 947
(11th Cir. 1997)); see also D’Addario, 264 F.Supp.2d at 387 (“The
burden is on the defendant to demonstrate that the assertion of
jurisdiction in the forum will make litigation so gravely
difficult and inconvenient that he unfairly is at a severe
disadvantage
in
comparison
to
his
opponent.”)
(internal
quotation marks omitted).
Here, Defendants do not argue that
they will experience any inconvenience by having to litigate in
Maryland.
10
the
merits.”
omitted).
satisfy
Id.
A
the
claim
pleading
(internal
can
be
quotation
colorable
requirements
marks
but
under
and
citations
ultimately
Rule
fail
12(b)(6).
to
See
D’Addario, 264 F.Supp.2d at 389 n.26 (E.D.Va. 2003) (explaining
that although a RICO claim was colorable for purposes of section
1965(a),
the
operative
pleading
likely
required
amendment
to
include “greater specificity” in order to survive a dispositive
motion).
In assessing whether a claim is “colorable,” courts look to
whether
a
plaintiff
pleads
a
RICO
violation
by
alleging:
(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity, as well as (5) injury in the plaintiff’s
business
or
D’Addario,
property
265
(6)
by
reason
F.Supp.2d
at
288
of
the
(internal
RICO
violation.
quotation
marks
omitted); see also Noble Sec., 611 F.Supp.2d at 550 (analyzing
whether the plaintiff had pled the elements of a RICO violation
to determine whether its claim was “colorable”).8
defines several of the operative terms.
forth
in
18
U.S.C.
§
1961(4),
The statute
“Enterprise,” as set
“includes
any
individual,
partnership, corporation, association, or other legal entity,
8
The amended complaint asserts violations of Section
1962(c), which makes it unlawful for “any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate . . . commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity
or collection of unlawful debt.”
11
and
any
although
union
not
activity,”
related
or
or
a
group
legal
requires
that
at
individuals
entity.”
least
constitute
criminal activity.”
(4th Cir. 2000).
of
A
two
or
associated
“pattern
predicate
pose
a
of
fact
racketeering
acts
threat
in
that
of
“are
continued
Al-Abood v. El-Shamari, 217 F.3d 225, 238
“Racketeering activity” is defined by statute
as “any act which is indictable” under a number of enumerated
criminal
provisions.
18
U.S.C.
§
1961(1).
A
“pattern
of
racketeering activity,” moreover, “requires at least two acts of
racketeering activity, one of which occurred after the effective
date of [RICO] and the last of which occurred within ten years
(excluding any period of imprisonment) after the commission of a
prior act of racketeering activity.”
Id. § 1961(5).
None of the allegations in Plaintiff’s complaint give rise
to a colorable civil RICO claim.
The gravamen of Plaintiff’s
civil racketeering claim is that all of the Defendants conspired
to facilitate and cover up the affair between Dr. Trost and
Annette
Wallace,
Plaintiff’s
ex-wife,
and
that
during
this
adulterous relationship, Mrs. Wallace failed properly to account
for income and expenses of Amish Builders, causing the company’s
demise.
To
support
his
civil
RICO
claim
premised
on
a
conspiracy among all of the Defendants to damage his business,
Plaintiff merely points to unrelated acts allegedly undertaken
by
each
Defendant
that
were
unfavorable
12
to
Plaintiff
in
an
effort to show that they formed an enterprise and engaged in a
pattern
of
racketeering
Defendants
did
not
activity.
provide
The
Annette
fact
that
Wallace’s
the
Wiley
prescription
records to Plaintiff or that the Diamantoni Defendants did not
report the alleged affair in no way signals their participation
in an enterprise engaged in a pattern of racketeering activity.9
Nor
is
there
any
discernable
connection
between
actions
allegedly undertaken by any of the Defendants as part of an
enterprise engaged in a pattern of racketeering activity (rather
than
individual
demise
of
acts)
Amish
and
Plaintiff’s
Builders.
See,
alleged
e.g.,
injury
–
the
Khepera-Bey
v.
CitiFinancial Auto Corp., Civ. Action No. ELH-11-3756, 2012 WL
1856532,
at
*9
(D.Md.
May
18,
2012)
(“plaintiff
has
not
identified any facts that would implicate defendant in a pattern
of
racketeering
criminal
activity,
activity”
or
organized,
(internal
long-term
quotation
marks
habitual
omitted)).
Plaintiff points to isolated predicate acts such as embezzlement
and
arson,
allegedly
undertaken
by
Annette
Wallace
and
Dr.
Trost, respectively, which in no plausible way are connected to
the conduct of an enterprise through which Plaintiff alleges all
9
Moreover, as the Wiley Defendants point out, they were
under no obligation to produce to Plaintiff the records of his
wife’s drug prescriptions, irrespective of the fact that he was
allegedly accompanied by his divorce attorney at the time he
requested these records.
13
Defendants
operated.
insubstantial
and
Plaintiff’s
immaterial,”
RICO
claim
precluding
is
reliance
“wholly
on
that
statute’s nationwide service of process provision to establish
in personam jurisdiction.
Any
attempt
to
is
conspiracy
theory
theory
personal
of
personal
premise
personal
similarly
jurisdiction
jurisdiction
over
a
jurisdiction
unavailing.
permits
a
“The
court
nonresident
on
the
conspiracy
to
defendant
exercise
without
sufficient contacts with the forum if the nonresident defendant
was
part
of
a
conspiracy
that
sufficient acts within the forum.”10
10
committed
jurisdictionally
AGV Sports Group, Inc. v.
The Cawley court described the theory as when:
(1) two or more individuals conspire to do
something
(2) that they could reasonably expect to
lead to consequences in a particular forum,
if
(3) one co-conspirator commits overt acts in
furtherance of the conspiracy; and
(4) those acts are of a type which, if
committed by a non-resident, would subject
the non-resident to personal jurisdiction
under the long-arm statute of the forum
state,
then
those
overt
acts
are
attributable to the other co-conspirators,
who
thus
become
subject
to
personal
jurisdiction in the forum, even if they have
no direct contacts with the forum.
Cawley v. Bloch, 544 F.Supp. 133, 135 (D.Md. 1982).
14
Protus IP Solutions, Inc., Civ. Action No. RDB-08-3388, 2009 WL
1921152,
at
Marketing,
*3
391
(D.Md.
Md.
July
117,
1,
127
2009);
(2006)
Mackey
(“the
v.
Compass
conspiracy
theory
permits certain actions done in furtherance of a conspiracy by
one co-conspirator to be attributed to other co-conspirators for
jurisdictional purposes.”).
While the theory requires that the
conspiracy have sufficient ties to the forum state, it also, as
a
foundational
conspiracy.
matter,
requires
that
the
plaintiff
allege
a
Here, Plaintiff’s conclusory allegations that all
Defendants
conspired
implausible.
together
to
ruin
his
business
are
See, e.g., Unspam Technologies, Inc. v. Chernuk,
716 F.3d 322, 330 (4th Cir. 2013) (“the plaintiffs’ allegations
of conspiracy are conclusory and speculative and do not satisfy
the
requirements
for
establishing
a
conspiracy
theory
of
personal jurisdiction.”).
Based
on
the
foregoing,
Plaintiff
cannot
establish
that
personal jurisdiction exists over the Wiley Defendants.11
11
In their initial motion to dismiss, the Diamantoni
Defendants did not argue that the court lacks personal
jurisdiction over them.
In their reply brief, the Diamantoni
Defendants state that they “hereby, by reference, incorporate
the arguments made by the other defendants to dismiss this
case.”
(ECF No. 27, at 1).
Jeffrey Trost does not raise
personal jurisdiction at all.
Lack of personal jurisdiction must be
in the answer.
Fed.R.Civ.P. 12(b).
The
motion, thus the defense has been waived
Defendants and Jeffrey Trost.
See, e.g.,
15
asserted by motion or
reply brief is not a
as to the Diamantoni
Topiwala v. Wessell,
B. Motions to Dismiss Filed by the Diamantoni Defendants
and Dr. Trost
The
Diamantoni
Defendants
and
Dr.
Trost
argue
that
Plaintiff’s claims are time-barred and that he fails to state a
civil
RICO
claim.12
The
civil
RICO
claim
against
these
Defendants is premised on the same facts discussed above, which
do not amount to a colorable civil RICO claim.
claim
is
not
even
colorable
analysis,
it
follows
claim.13
Accordingly,
that
the
under
the
Plaintiff
motions
personal
also
to
Because the RICO
jurisdiction
fails
dismiss
to
state
filed
by
a
the
Diamantoni Defendants and Dr. Trost will also be granted.
Civ. No. WDQ-11-0543, 2012 WL 122411, at *6 (D.Md. Jan. 12,
2012) (declining to address lack of personal jurisdiction
defense raised for the first time in a reply brief). The fact
that a different action filed by Plaintiff against these same
four defendants was dismissed for lack of personal jurisdiction
is inapposite.
See Wallace v. Trost, Civ. Action No. DKC 130101, 2013 WL 1316453, at *3-4 (D.Md. Mar. 26, 2013).
In the
prior litigation, these defendants raised lack of personal
jurisdiction in their motions to dismiss.
12
In their reply brief, the Diamantoni Defendants raised
for the first time that Plaintiff is awaiting sentencing in a
criminal proceedings in another jurisdiction.
(ECF No. 27, at
2-3). Plaintiff filed a surreply (ECF No. 34), objecting to the
argument made in the reply brief and the reference to the
criminal proceedings against him. (ECF No. 34). Plaintiff also
moved to strike the reply brief. (ECF No. 32). Plaintiff has
offered no basis for striking the reply brief in full, as
Defendants are entitled to file a reply brief after Plaintiff
submits an opposition to the original motion.
The information
regarding his criminal proceedings is wholly irrelevant to
Defendants’ motion to dismiss and has not been considered.
13
Although the statute of limitations argument need not be
addressed, it is worth noting that Plaintiff’s civil RICO claim
16
C. Annette Wallace, James Elia, Sam Blank, and Luke Beiler
Annette
Wallace,
Luke
Beiler,
and
Sam
Blank
answered
Plaintiff’s amended complaint, stating that they strongly deny
all the allegations contained therein.
(ECF No. 7).
The record
reflects that a summons was never returned as executed as to
James Elia.
(See ECF No. 8).
Although these four Defendants have not sought dismissal at
this time, they have not waived their right to do so.
Because
Plaintiff’s allegations in support of the civil RICO claim are
identical with respect to all Defendants, the civil RICO claim
as to these four Defendants also is subject to dismissal for the
same reasons discussed above.
The court will sua sponte dismiss
the case as to all of the remaining Defendants.
See Swarey v.
likely is time-barred.
Plaintiff seems to think that his RICO
claim is timely because he has alleged two acts of racketeering
occurring within ten years. (ECF No. 19, at 6). The statute of
limitations for a civil RICO claim is four years, not ten. The
Fourth Circuit has held that “the statutory period [for a RICO
claim] begins to run when a plaintiff knows or should know of
the injury that underlies his cause of action.”
Pocahontas
Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211, 220 (4th
Cir. 1987); Rotella v. Wood, 528 U.S. 549, 555 (2000)
(“[D]iscovery of the injury . . . is what starts the clock.”).
Plaintiff’s own allegations suggest that he became aware of the
injury to his business by December 30, 2004, when a receiver
took over his business (and allegedly caused further damage to
Amish Builders). (ECF No. 3 ¶ 20). A letter - dated November
22, 2005 - from Plaintiff’s attorney at the time, indicates
Plaintiff’s knowledge that the receiver allegedly further harmed
the company’s business operations.
(ECF No. 3-1).
At the
latest, Plaintiff discovered the injury by 2005. Plaintiff did
not file this lawsuit until 2013.
17
Desert Capital REIT, Inc., Civ. Action No. DKC 11-3615, 2010 WL
4208057, at *15 (D.Md. Sept. 20, 2012) (sua sponte dismissing
civil RICO count as to defendants who did not move for dismissal
because plaintiffs’ allegations in support of their RICO count
was identical as to all of the defendants); Hawkins v. Chick,
No. DKC 09-0661, 2009 WL 4017953, at *6-7 (D.Md. Nov. 19, 2009)
(dismissing
RICO
claims
sua
sponte
as
to
all
defendants,
including those who had not affirmatively sought such relief,
where the plaintiff failed to allege a necessary element of a
RICO violation); Chong Su Yi v. Social Sec. Admin., 554 F.App’x
247, 248 (4th Cir. 2014) (“[F]rivolous complaints are subject to
dismissal pursuant to the inherent authority of the court, even
when the filing fee has been paid.”); Mallard v. United States
Dist. Court, 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . .
authorizes courts to dismiss a ‘frivolous or malicious’ action,
but there is little doubt they would have power to do so even in
the absence of this statutory provision.”).
D. Plaintiff’s Motions
Because
the
amended
complaint
will
be
dismissed
in
its
entirety against all Defendants for the reasons explained above,
Plaintiff’s
motions
for
a
more
definite
statement
from
Sam
Blank, Luke Beiler, and Annette Wallace, (ECF No. 35), motion to
show status of pending motions (ECF No. 38), and motion for
summary judgment (ECF Nos. 39 & 41), will be denied as moot.
18
IV.
Conclusion
For the foregoing reasons, the three motions to dismiss
will be granted.
Plaintiff’s motion to strike will be denied.
The remaining motions by Plaintiff will be denied as moot.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
19
A
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