Lu v. The Canton Corp et al

Filing 18

Judge Allison D. Burroughs: ORDER entered denying 17 Motion for Reconsideration. A copy of this Order has been mailed to the plaintiff via first class and certified mail (Ref# 7204) (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRIEDRICH LU,
Plaintiff,
v.
THE CANTON CORP., et al.,
Defendants.

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Civil Action No. 15-cv-10088-ADB

ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION
BURROUGHS, D.J.
Plaintiff Friedrich Lu (“Plaintiff”) has filed a Motion for Reconsideration [ECF No. 17] of
the Court’s May 13, 2015 Order [ECF No. 13] allowing a motion to dismiss filed by defendants
The Canton Corp.; Fairfield Real Estate Management Co.; Frederick E. Fairfield; and Heather
Lynn Fairfield (the “Fairfield Defendants”). The Fairfield Defendants moved to dismiss for lack
of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1),
arguing that Plaintiff’s Complaint failed to allege any factual basis for his federal claims 1 that was
not “contrived.” Plaintiff filed an Opposition to the Fairfield Defendants’ Motion to Dismiss. For
the reasons set forth in the Court’s May 13, 2015 Order, the Court treated the motion to dismiss
for lack of subject matter jurisdiction as a motion to dismiss for failure to state a claim upon which
relief may be granted. Accordingly, the Court dismissed Plaintiff’s federal claims against the
Fairfield Defendants pursuant to FRCP 12(b)(6). For the same reasons, the Court also dismissed,
sua sponte, the same federal claims against four other defendants who had not yet appeared in the

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Plaintiff’s Complaint alleged claims under the federal RICO statute, as well as a claim pursuant
to 42 U.S.C. §1983. He also alleged a host of state-law claims, which the Court will not catalog
here.

action, because Plaintiff had clearly failed to plead facts plausibly suggesting that any defendant
had violated the federal RICO statute or 42 U.S.C. § 1983, as alleged in his Complaint. The Court
further declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims,
and it ordered the case dismissed.
Plaintiff makes two arguments in support of his Motion for Reconsideration. First, Plaintiff
suggests that the Fairfield Defendants waived a FRCP 12(b)(6) defense of failure to state a claim
upon which relief may be granted, because they styled their motion as a motion to dismiss for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1). Plaintiff is incorrect. FRCP 12(h)
specifically provides that the defense of failure to state a claim pursuant to FRCP 12(b)(6) is
preserved against waiver. See Fed. R. Civ. P. 12(h); Hickey v. MetroWest Med. Ctr., 193 F. App'x
4, 5 (1st Cir. 2006) (unpublished) (defendant did not waive 12(b)(6) defense by failing to include
it in first motion to dismiss for insufficient service of process).
Second, Plaintiff argues that the Court should have denied the Fairfield Defendants’
Motion to Dismiss pursuant to FRCP 12(b)(1) “and stopped there.” [ECF No. 17]. The Court
interprets this to mean that it should not have treated the Fairfield Defendants’ Motion to Dismiss
for lack of subject matter jurisdiction as a motion to dismiss for failure to state a claim. Plaintiff
also suggests that the dismissal of his federal claims under these circumstances violated his due
process rights. Plaintiff’s argument, however, is not persuasive. Courts may treat an improperlylabeled motion to dismiss for lack of subject matter jurisdiction as a motion to dismiss for failure
to state a claim. See Sharpe v. Kelley, 835 F. Supp. 33, 34 (D. Mass. 1993) (treating motion to
dismiss pursuant to FRCP 12(b)(1) as a motion to dismiss for failure to state a claim); United States
v. Town of Lincoln Zoning Bd. of Appeals, 928 F.Supp.2d 272, 279 (D. Mass. 2013) (same); Less
v. Lurie, 789 F.2d 624, 625 n.1 (8th Cir. 1986). Furthermore, the Plaintiff’s due process rights

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were not violated. Although the Fairfield Defendants’ Motion to Dismiss was submitted pursuant
to FRCP 12(b)(1), the Motion gave Plaintiff sufficient notice that the Fairfield Defendants were
challenging the adequacy of his factual allegations in support of his claims under the federal RICO
statute and 42 U.S.C. § 1983. In addition, although Plaintiff has not sought leave to amend his
Complaint, the Court finds that an amendment would be futile in these circumstances. The facts
alleged in the Complaint make it patently clear that Plaintiff cannot state a viable federal RICO
claim, or a 42 U.S.C. § 1983 claim, against any defendant named in this action.
Further, this case is factually distinguishable from Chute v. Walker, 281 F.3d 314 (1st Cir.
2002), cited by Plaintiff. In Chute, the district court had allowed a motion to dismiss claims against
defendants in their “official capacities,” but it also dismissed, sua sponte, claims against a police
officer defendant in his individual capacity, although no defendant had moved to dismiss the entire
complaint. The district court reasoned that dismissal was warranted because the complaint did not
allege any claims against the officer in his individual capacity, and the officer had not been served
with process in his individual capacity. Id. at 317. On appeal, the First Circuit reversed, noting that
the complaint clearly stated that plaintiff was suing the officer in his individual capacity, and that
the officer had waived any service of process objection. Id. at 318. Consequently, the district court
erred in dismissing the individual capacity claims sua sponte. Chute, therefore, is not analogous to
the case at bar. Here, the Court’s dismissal of Plaintiff’s federal RICO and § 1983 claims against
all defendants was not based on a misreading of the Complaint, but on Plaintiff’s failure to allege
sufficient facts to state a viable federal claim against any defendant in the litigation. Further, the
Fairfield Defendants, unlike the defendants in Chute, had moved to dismiss the Complaint in its
entirety, and Plaintiff had notice of the substance of the grounds argued in support of dismissal.

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The Plaintiff’s Motion for Reconsideration is therefore DENIED. To the extent that
Plaintiff may have viable state law claims against the defendants (which is a question that this
Court will not reach), he must pursue those claims in state court.
SO ORDERED.
Dated: May 20, 2015
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
DISTRICT JUDGE

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