AIELLOS et al v. ZISA et al

Filing 56

OPINION re 55 MOTION for Reconsideration re 47 Opinion filed by THOMAS AIELLOS. Signed by Judge William J. Martini on 11/2/09. (gh, )

UNITED STATES DISTRICT COURT D I S T R IC T OF NEW JERSEY

T H O M A S AIELLOS, JOSEPH INGLIMA, DO NALD PIERCE, SCO TT SYBEL, A N T H O N Y DUARDO, RALPH CAVALLO, a n d VINCENT RIOTTO, Plaintiffs, v. C H I E F C. KENNETH ZISA, JOSEPH ZISA, T O M A S PADILLA, KEVIN TOOMEY, A N T H O N Y TREZZA, PHILLIP CARROLL, C A P T A IN THOMAS SALCEDO, CITY OF H A C K E N S A C K , and SERGEANT TIMOTHY LLOYD, Defendants.

C iv il Action Number: 2:09-3076

O P IN IO N H O N . WILLIAM J. MARTINI

MEMORANDUM OPINION1 I. IN T R O D U C T IO N O n June 24, 2009, Plaintiffs, current and former officers of the Hackensack Police D e p a rtm e n t ("HPD"), filed an eleven-count civil rights action against Defendant HPD Chief

For the convenience of the reader of this document in electronic format, hyperlinks to the Court's record and to authority cited herein may be inserted. No endorsement of any p ro v id e r of electronic or other resources is intended by the Court's practice of using h yp e r l i n k s .

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of Police, C. Kenneth Zisa, and others, alleging that the Defendants violated their c o n s titu tio n a l rights. (Doc. No. 1.) On August 3, 2009, Plaintiffs filed a more detailed tw e lv e -c o u n t Amended Complaint, (Doc. No. 9), which has since become the operative c o m p la in t by order of the Court, (Doc. No. 19). Defendant Tomas Padilla's filed a motion to dismiss, (Doc. No. 3), which although f ile d prior to the Amended Complaint, addressed the Amended Complaint through s u p p le m e n ta l briefing. Padilla's motion to dismiss was fully briefed. Of the twelve counts in the Amended Complaint, only four were litigated in Padilla's motion to dismiss. The Court ru le d on Padilla's motion to dismiss, (Doc. No. 47 (opinion) & Doc. No. 48 (order)), granting in part, and denying in part the relief sought. Among other relief granted, the Court dismissed C o u n t II--the Section 1962(b) RICO count. Presently before the Court is Plaintiffs' letter motion (the "Motion") for re c o n s id e ra tio n , which seeks reconsideration in regard to the dismissed RICO count. (Doc. N o . 55.) Having considered the Plaintiffs' reconsideration filings, this Court's prior opinion a n d order, federal and state constitutional and statutory law, case law, and persuasive s c h o la rly authority, the Court, for the reasons elaborated below, will DENY the motion for re c o n s id e ra tio n .

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II.

F A C T U A L BACKGROUND ALLEGED IN THE AMENDED COMPLAINT T h e gravamen of the Amended Complaint is that the Hackensack Chief of Police,

D e f e n d a n t Zisa, in conjunction with Defendant Captain Padilla, (the movant of the motion to dismiss), and other Defendants engaged in a pattern of extortion, against other HPD o f f ic e rs , i.e., Plaintiffs, seeking, among other things, political donations to further Zisa and P a d illa 's political career and the political career of those allied with them, including c a n d id a te s for office within the Policemen's Benevolent Association ("PBA") of H a c k e n s a c k . It is further alleged that those who were not allied with Zisa and Padilla, in c lu d in g those officers who refused to donate to their political campaigns, were subject to re ta lia tio n and threats of retaliation in violation of Plaintiffs' First Amendment free speech a n d freedom of association rights. Thereafter, Plaintiffs filed a complaint, subsequently s u p e rs e d e d by the Amended Complaint, and Defendant Padilla brought a motion to dismiss, s u b s e q u e n tly ruled on. That ruling is now contested in the motion to reconsider being litig a te d here. For further particulars see this Court's prior memorandum opinion. (Doc. N o . 47.)

III.

S T A N D A R D OF REVIEW A motion to reconsider is brought pursuant to N.J. L.R. 7.1(i) ("A brief setting forth

c o n c is e ly the matter or controlling decisions which the party believes the Judge or Magistrate J u d g e has overlooked shall be filed with the Notice of Motion."). To prevail on a motion for

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reconsideration, a litigant must demonstrate: "(1) an intervening change in the controlling la w ; (2) the availability of new evidence ...; or (3) the need to correct a clear error of law or f a c t or to prevent manifest injustice." Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 1 7 6 F.3d 669, 677 (3d Cir. 1999).

IV.

A N A L Y S IS C o u n t II of the Amended Complaint brings a cause of action against Padilla under

S e c tio n 1962(b) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Pub. L . 91-452, 84 Stat. 941, as amended, 18 U.S.C. §§ 1961-1968. Section 1962(b) provides: It shall be unlawful for any person through a pattern of racketeering activity o r through collection of an unlawful debt to acquire or maintain, directly or in d ire c tly, any interest in or control of any enterprise which is engaged in, or th e activities of which affect, interstate or foreign commerce. T h e Third Circuit has explained that in order to establish liability under Section 1962(b): [A] plaintiff must show injury from the defendant's acquisition or c o n tr o l of an interest in a RICO enterprise, in addition to injury from the p r e d ic a te acts. Such an injury may be shown, for example, where the owner o f an enterprise infiltrated by the defendant as a result of racketeering activities is injured by the defendant's acquisition or control of his enterprise. In a d d itio n , the plaintiff must establish that the interest or control of the RICO e n te rp ris e by the person is as a result of racketeering. It is not enough for the p la in tif f merely to show that a person engaged in racketeering has an otherwise le g itim a te interest in an enterprise. Rather, it must be established firmly that th e re is a nexus between the interest and the alleged racketeering activities. L ig h tn in g Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1190 (3d Cir. 1993) (citations and q u o ta tio n marks omitted) (emphasis added); Supp. Opening Br. 9-10 (quoting Lightning

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Lube, supra), (Doc. No. 26); Supp. Opp'n Br. 4 (same), (Doc. No. 29). T h e gravamen of the Amended Complaint is that Defendants Zisa, Padilla, and others e n g a g e d in a pattern of extortion, in conjunction with threats of retaliation, to maintain c o n tro l of the office of Hackensack Chief of Police, the purported RICO enterprise. Plaintiffs h a v e alleged that there is a nexus between the pattern of racketeering and Padilla's control (in concert with others) of the enterprise, i.e., Zisa's control of public office made it possible f o r him to engage in the alleged extortion and the monies extorted maintained his (and their) c o n tro l of that and other elective office. But the nexus requirement is separate from the injury re q u ire m e n t. As this Court explained in its prior opinion, Plaintiffs have failed to articulate any in ju ry that they suffered in consequence of Zisa, and Padilla, and others' acquisition or m a in te n a n c e of control of the RICO enterprise, here a government office, apart from the p a tte rn of racketeering itself. Under Lightning Lube, it appears that absent "acquisition or m a in te n a n c e injury," apart from injury connected to the predicate acts or pattern of ra c k e te e rin g activity, Plaintiffs cannot proceed on a theory of RICO liability. DAVID B. S MITH & TERRANCE G. REED, CIVIL RICO ¶ 6.04[6][b], at 6-141 (2009); see also Lightning L u b e , 4 F.3d at 1191 ("[A] well-pled complaint under section 1962(b) ... requires the a s s e rtio n of an injury independent from that caused by the pattern of racketeering."). P la in tif f s ' Motion does not assert any intervening change in controlling law or the a v a ila b ility of new evidence. Plaintiffs do not assert manifest injustice. Plaintiffs' Motion

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appears to be no more than an attempt to reargue what has already been rejected based on P la in tif f s ' prior briefing on the theory of a purported clear error of law or fact. The Court s e e s no such error, clear or otherwise. Plaintiffs state: "The first type of [acquisition or c o n tro l] injury stems from Defendants' total control of the office of Chief of Police, where a n y subordinate officer who refused to support Defendants' in their accrual and maintenance o f this control, was targeted for retaliation and workplace reprisals, which resulted in m o n e ta ry damages, specifically forced retirement and suspensions, which causes plaintiffs to incur monetary loss." (Doc. No. 55 at 3.) Such claims do not amount to acquisition or c o n tro l injury sufficient to confer Section 1962(b) standing. W h y? As this Court understands it, Lightning Lube stands for the proposition that a p la in tif f asserting a cause of action under Section 1962(b) and alleging only that defendants' c o n tro l or acquisition of a RICO enterprise made possible predicate acts and other w ro n g d o in g , including retaliation, extortion, and threats of retaliation and extortion, has not s ta te d a cause of action under Section 1962(b). Rather a plaintiff asserting a Section 1962(b) c a u s e of action must argue, apart from the predicate acts, that the plaintiff was actually in ju re d by defendants' mere acquisition or control of the RICO enterprise in and of itself. P la in tif f s here are only alleging that Defendants' control makes possible the extortion, re ta lia tio n , and threats which has injured them, not that Defendants' maintenance of control o f the RICO enterprise itself has injured them. Therefore, for the reasons elaborated above a n d for the reasons elaborated in this Court's prior memorandum opinion, (Doc. No. 47), the

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Motion fails.

V.

CONCLUSION F o r the reasons elaborated above, the Court DENIES Plaintiffs' motion for

reconsideration. (Doc. No. 55.) A n appropriate Order accompanies this memorandum opinion.

s/ William J. Martini William J. Martini, U.S.D.J. D A T E : November 2, 2009

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