MURPHY et al v. THE INTERNATIONAL DRUIDIC SOCIETY et al

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 6/20/13. 6/20/13 ENTERED AND COPIES MAILED TO PRO SE DEFENDANTS & UNREPS, E-MAILED. (rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICIA J. MURPHY, et al.
v.
THE INTERNATIONAL DRUIDIC
SOCIETY, et al.

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CIVIL ACTION

NO. 13-511

MEMORANDUM
Bartle, J.

June 20, 2013
Plaintiff Patricia J. Murphy ("Murphy"), individually

and as administrator for the estate of Edward Turner, has sued
defendants The International Druidic Society ("IDS"), Judy Ellen
Taylor, Steven Turner, Allen Turner, Russell Turner, Jamie
Taylor, and Marlow Taylor.

Murphy has alleged racketeering under

18 U.S.C. § 1961 et seq. as well as various state law claims.1
Before the court are the motions of Jamie Taylor, Steven Turner,
and Judy Ellen Taylor to dismiss plaintiffs' amended complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a clam upon which relief can be granted.
I.
When deciding a Rule 12(b)(6) motion to dismiss, the
court must accept as true all factual allegations in the

1. Our jurisdiction exists under 28 U.S.C. § 1331. There is no
diversity jurisdiction under 18 U.S.C. § 1332(a) because Murphy,
as administrator for the estate of Edward Turner, "shall be
deemed to be a citizen only of the same State as the decedent."
See 28 U.S.C. § 1332(c). Edward Turner was a citizen of New
Jersey, as are various defendants.

complaint and draw all inferences in the light most favorable to
the plaintiff.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233

(3d Cir. 2008); Umland v. Planco Fin. Servs., Inc., 542 F.3d 59,
64 (3d Cir. 2008).

We must then determine whether the pleading

at issue "contain[s] sufficient factual matter, accepted as true,
to 'state a claim for relief that is plausible on its face.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim

must do more than raise a "'mere possibility of misconduct.'"
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Iqbal, 129 S. Ct. at 1950).

Under this standard,

"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice."
129 S. Ct. at 1949.

Iqbal,

This court may consider the allegations in

the complaint along with matters of public record and any
exhibits attached to the complaint.

E.g., Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.
1993).
In addition, when fraud is alleged, Rule 9(b) of the
Federal Rules of Civil Procedure requires the plaintiff to "state
with particularity the circumstances constituting fraud or
mistake."

Fed. R. Civ. P. 9(b).

This is a higher pleading

standard than what is generally required under Rule 8 of the
Federal Rules of Civil Procedure.

The heightened pleading

standard gives defendants "notice of the claims against them,
provides an increased measure of protection for their
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reputations, and reduces the number of frivolous suits brought
solely to extract settlements."

In re Burlington Coat Factory

Securities Litigation, 114 F.3d 1410, 1418 (3d Cir. 1996).
II.
The following facts are viewed in the light most
favorable to the plaintiff.
Edward Turner.

Murphy was a long-time friend of

corporation.

Defendant IDS is a Pennsylvania non-profit
Defendants Judy Ellen Taylor, Steven Turner, Allen

Turner, and Russell Turner are the children of Edward Turner, and
defendants Jamie Taylor and Marlow Taylor are his grandchildren.
In 1986, after having been the victim of a burglary, Murphy
consulted with Edward Turner about the safety and security of her
finances.

He convinced Murphy to allow him to control her

financial affairs and to deposit her funds into bank accounts he
controlled.

He told her that he would place her money into the

accounts of IDS, which he controlled, and that he would use her
funds to purchase certificates of deposit in a federally insured
bank.
Thereafter, from 1987 through September 2006, Edward
Turned handled Murphy's financial affairs.

He deposited funds

from the salary she received, from the sale of real estate she
owned, and from the sale of several stocks she had acquired into
one or more bank accounts titled in the name of IDS or IDS and
Edward Turner.

In these accounts, Edward Turned co-mingled his

funds with Murphy's funds.

By September 22, 2006, Murphy's funds

which Edward Turner held for her in these accounts totaled
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$259,759.

In September 2006, he used Murphy's funds to purchase

two certificates of deposit at TD Bank North N.A., a federally
insured bank, in the joint name of IDS and Edward Turner, in the
amount of $114,633.53.

The maturity date for each of these

certificates of deposit was April 5, 2008, and each had an
interest rate of 1.511%.
In September 2006, Murphy noticed that Edward Turner's
health was beginning to deteriorate.

She told him that she was

concerned about the security of her money.

He reassured her and

on September 22, 2006 issued a promissory note verifying the
total that Murphy would be repaid by him when the certificates of
deposit reached their maturity in April 2008.

Murphy informed

defendants Judy Ellen Taylor, Steven Turner, Jamie Taylor, and
Marlow Taylor of the promissory note.
On August 3, 2006, Edward Turner signed a power of
attorney naming Judy Ellen Taylor as his attorney-in-fact.

On or

about July 12, 2007, a corporate resolution of IDS, signed by
Edward Turner, Judy Ellen Taylor, and Marlow Taylor, was filed
with TD Bank North, N.A.

This resolution authorized Judy Ellen

Taylor to sign checks for IDS and to withdraw funds from its
account.

Following the signing of this resolution, Judy Ellen

Taylor "began systematically looting and depleting the funds in
the IDS account in a common scheme with the other named
defendants," by drawing checks made payable to herself and the
other defendants.

In addition, on July 20, 2007 and

September 17, 2007, Judy Ellen Taylor cashed out the two
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certificates of deposit and transferred those funds into the IDS
account.
In April 2008, Murphy made repeated demands for payment
under the promissory note to Edward Turner, Judy Ellen Taylor,
and Steven Turner, but no payments were made.

She also made

repeated requests to Judy Ellen Taylor, Steven Turner, Jamie
Taylor, and Marlow Taylor for them to provide the current address
and health status of Edward Turner so that she could collect the
funds due to her, but they "collectively conspired to conceal"
his residence and health status.
On August 27, 2009, Murphy sued Edward Turner and IDS
in the Court of Common Pleas of Philadelphia, Pennsylvania to
enforce her rights under the promissory note and to compel
payment.

On April 28, 2010, Murphy learned that Edward Turner

had died on March 3, 2010 in Burlington County, New Jersey.

She

then contacted the named defendants to ask them to open an estate
on behalf of Edward Turner and have the estate make payment to
her based on the promissory note.

The defendants did not do so.

Murphy filed a petition in Burlington County, New Jersey to have
an administrator for the estate of Edward Turner appointed by the
court.

On July 29, 2011, an order was entered in the Superior

Court of New Jersey, Burlington County, appointing Murphy as the
administrator of the estate of Edward Turner.
Following this appointment, Murphy amended her
complaint in the Court of Common Pleas to substitute herself as
the administrator of the estate of Edward Turner as the proper
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party defendant in that action.

Accordingly, Murphy was both

plaintiff and defendant in that action.

Trial was held on

August 13, 2012 in the Court of Common Pleas.

Notice was sent to

Judy Ellen Taylor, Steven Turner, Allen Turner, Jamie Taylor, and
Marlow Taylor, but they did not attend.

The court ruled in favor

of plaintiff Murphy and against the estate of Edward Turner in
the amount of $315,798, which included interest on the promissory
note at the statutory rate of 6% per year from April 2008 to
August 2012.
On November 29, 2012, Murphy filed this action, both
individually and as the administrator for the estate of Edward
Turner, in the Court of Common Pleas of Philadelphia County,
seeking to recover that $315,798, plus interest and costs, from
IDS, Judy Ellen Taylor, Steven Turner, Allen Turner, Russell
Turner, Jamie Taylor, and Marlow Taylor, jointly and severally.
She brought four counts:

civil conspiracy; fraud; theft and

conversion; racketeering under the federal and state Racketeer
Influenced Corrupt Organizations statutes, namely 18 U.S.C.
§§ 1962, 1964 ("RICO") and 18 Pa. Cons. Stat. Ann. § 911; and
"complaint in equity."

The action was later removed to this

court, and Jamie Taylor, Steven Turner, and Judy Ellen Taylor
filed the present motions to dismiss.
III.
We start with the motion to dismiss the federal RICO
claim.

RICO makes it "unlawful for any person employed by or

associated with any enterprise engaged in, or the activities of
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which affect, interstate or foreign 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."

18 U.S.C. § 1962(c).

"To

establish a § 1962(c) RICO violation, the plaintiff must prove
the following four elements:

(1) the existence of an enterprise

affecting interstate commerce; (2) that the defendant was
employed by or associated with the enterprise; (3) that the
defendant participated..., either directly or indirectly, in the
conduct or the affairs of the enterprise; and (4) that he or she
participated through a pattern of racketeering activity."2
United States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011).
The statute does not specifically outline the
boundaries of an enterprise but states that the term "includes
any individual, partnership, corporation, association, or other
legal entity, and any union or group of individuals associated in
fact although not a legal entity."

18 U.S.C. § 1961(4).

The

Supreme Court has recently explained, "[f]rom the terms of RICO,
it is apparent that an association-in-fact enterprise must have
at least three structural features:

a purpose, relationships

among those associated with the enterprise, and longevity
sufficient to permit these associates to pursue the enterprise's
purpose."

Boyle v. United States, 556 U.S. 938, 946 (2009).

2. Section 1964 provides the civil remedies of RICO and explains
that "[a]ny person injured in his business or property by reason
of a violation of section 1962 of this chapter may sue therefor
in any appropriate United States district court...."
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Murphy alleges that the defendants formed an enterprise
as described in the following two paragraphs of the amended
complaint:
44. The defendants in a common enterprise
collectively conspired to convert plaintiffs'
money to their own use and to deplete the
estate of Edward F. Turner, by a pattern of
writing checks made payable primarily to
Marlow Taylor and by having Marlow Taylor
cash the checks at various check cashing
facilities and then distributing the cash
between the defendant co-conspirators....
63. The defendants were associated in an
enterprise which affected interstate
commerce. Specifically, the defendants
plotted together and transferred funds from
bank accounts existing in the Commonwealth of
Pennsylvania to bank accounts in the state of
New Jersey with the intent of stealing money,
which was the property of the plaintiff,
Patricia J. Murphy and/or the estate of
Edward F. Turner.
These allegations are sufficient to plead that the
defendants constitute an enterprise.

Judy Ellen Taylor, Steven

Turner, Allen Turner, Russell Turner, Jamie Taylor, and Marlow
Taylor are a family, that is, they are the children and
grandchildren of Edward Turner.

Accordingly, there are clear

relationships among them, and those relationships have longevity.
As for the purpose of the enterprise, Murphy alleges it was to
"convert plaintiffs' money to their own use and to deplete the
estate of Edward F. Turner."
A "pattern of racketeering activity" is defined as
"requir[ing] at least two acts of racketeering activity, one of
which occurred after the effective date of this chapter and the

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last of which occurred within ten years ... after the commission
of a prior act of racketeering activity."

18 U.S.C. § 1961(5).

The "person" charged with the racketeering offense, not the
entire enterprise, must engage in the "pattern of racketeering
activity."

See H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229,

244 (1989).
The pattern of racketeering activity set forth in
paragraph 44 is "writing of checks" by members of the enterprise
so as to deplete and convert the money belonging to the estate of
Edward Turner and/or Murphy.

In paragraph 64, plaintiff further

states, "[t]he depletion of the funds in the IDS accounts,
through a series of checks and cash withdrawals, constitutes a
patter [sic] of racketeering activity by the defendants."
"Racketeering activity" is defined by 18 U.S.C.
§ 1961(1) to include "any act or threat involving murder,
kidnapping, gambling, arson, robbery, bribery, extortion, dealing
in obscene matter, or dealing in a controlled substance or listed
chemical ... which is chargeable under State law and punishable
by imprisonment for more than one year" as well as numerous
federal crimes including "any act which is indictable under ...
section 1341 (relating to mail fraud) [or] 18 U.S.C. § 1343
(relating to wire fraud)...."
The amended complaint alleges theft and fraud
throughout.

However, the RICO statute does not list these as

racketeering activities.

18 U.S.C. § 1961(1).

Theft and its

analogues have not been read into the list of crimes in
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§ 1961(1).

See Annulli v. Panikkar, 200 F.3d 189, 199-200 (3d

Cir. 1999).

Crimes or common law torts such as fraud and

conversion also cannot be racketeering activities.

Atuahene v.

Shermet Indus., No. 99-866, 2000 U.S. Dist. LEXIS 12944, 11-12
(E.D. Pa. Sept. 7, 2000) (citing 18 U.S.C. § 1961(1); Annulli,
200 F.3d at 200).
The only possible predicate racketeering activity
mentioned in the amended complaint appears to be federal mail
fraud, and that occurs in only paragraph 69 which reads:
69. In a common course of conduct with
defendants, Steven Turner, Allen Turner,
Russell Turner, Jamie Taylor and Marlow
Taylor, defendant, Judy Ellen Taylor, used
the United States Mail to perpetrate an
ongoing fraud. To wit, she mailed false,
fraudulent or misleading documents to
plaintiffs and/or plaintiffs' counsel.
To state a claim for mail fraud under 18 U.S.C.
§ 1341,3 plaintiffs must allege (1) a scheme or artifice to
defraud, (2) participation by the defendants with specific intent
to defraud, and (3) use of the mails in furtherance of the
scheme.

United States v. Carey, 337 F. App'x 256, 263 n.9 (3d

Cir. 2009) (citing United States v. Copple, 24 F.3d 535, 544 (3d
Cir. 1994)).

"[A] scheme or artifice to defraud need not be

3. The mail fraud statute provides in relevant part: Whoever,
having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises ... for the
purpose of executing such scheme or artifice or attempting so to
do, places in any post office or authorized depository for mail
matter, any matter or thing whatever to be sent or delivered by
the Postal Service ... shall be fined under this title or
imprisoned not more than 20 years, or both. 18 U.S.C. § 1341.
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fraudulent on its face, but must involve some sort of fraudulent
misrepresentation or omission reasonably calculated to deceive
persons of ordinary prudence and comprehension."

Brokerage

Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 528 (3d
Cir. 1998) (citations omitted).
In addition, "[w]here acts of mail ... fraud constitute
the alleged predicate racketeering acts, those acts are subject
to the heightened pleading requirement of Rule 9(b)."
McLelland, 288 F.3d 105, 114 (3d Cir. 2002).

Warden v.

To satisfy the

pleading requirements of Rule 9(b) of the Federal Rule of Civil
Procedure, a complaint may either describe "the circumstances of
the alleged fraud with precise allegations of date, time, or
place" or may use "some [other] means of injecting precision and
some measure of substantiation into their allegations of fraud."
Bd. of Trs. of Teamsters Local 863 Pension Fund v. Foodtown,
Inc., 296 F.3d 164, 172 n.10 (3d Cir. 2002).

A claim satisfies

the requirements of Rule 9(b) if it adequately delineates the
acts and transactions constituting fraud to apprise defendants
fairly of the claim, and if its allegations are sufficiently
clear to enable defendants to answer.

Jairett v. Montauk First.

Sec. Corp., 203 F.R.D. 181, 186 (E.D. Pa. 2001).
Paragraph 69 of the amended complaint, which contains
the only reference to the use of the mail, does not provide the
specificity required under Rule 9(b) to allege mail fraud under
§ 1341.

The plaintiff does not identify the documents or their

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fraudulent contents and does not specify the dates, times, or
places when any mail fraud took place.
In addition, Murphy alleges in her opposition to the
defendants' motions that one of the predicate acts of
racketeering committed by the defendants was "the fraudulent use
of an ATM network."

For this proposition, she cites United

States v. Giordano, 442 F.3d 30, 40 (2d Cir. 2006).
inapposite.

That case is

The crimes involved there were civil rights

violations under color of law in violation of 18 U.S.C. § 242,
conspiracy to use a facility of interstate commerce for the
purpose of enticing a person under the age of sixteen years to
engage in sexual activity in violation of 18 U.S.C. §§ 371 and
2425, and use of a facility of interstate commerce in violation
of § 2425.

Giordano, 442 F.3d at 33.

The court mentioned ATM

networks in a footnote citing cases defining facilities of
interstate commerce.

Moreover, fraudulent use of an ATM network

is not listed as a predicate crime in § 1961.

Accordingly,

Murphy has failed to allege any predicate racketeering
activities.
Even if Murphy had properly alleged predicate
racketeering activities, she must do more.

The RICO statute

requires that "to prove a pattern... a plaintiff ... must show
that the racketeering predicates are related, and that they
amount to or pose a threat of continued criminal activity."
H.J., Inc., 492 U.S. at 239.

"Continuity" includes "both a

closed- and open-ended concept, referring either to a closed
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See

period of repeated conduct, or to past conduct that by its nature
projects into the future with a threat of repetition."
241.

Id. at

Here, any continuity would be "closed" since there is

nothing in the amended complaint averring any threat of future
repetition.

"Closed-ended continuity" can be established "by

proving a series of related predicates extending over a
substantial period of time."

Id. at 242.

The Supreme Court,

however, has explained that "predicate acts extending over a few
weeks or months and threatening no future criminal conduct do not
satisfy this requirement:

Congress was concerned in RICO with

longterm criminal conduct."

Id.

Murphy has not alleged the requisite closed-ended
continuity.

She does not plead the dates when any alleged mail

fraud occurred and thus has not pleaded that racketeering
activity extended over a substantial period of time.

The dates

of any theft or conversion cannot be factored into this potential
time period since, as discussed previously, they do not qualify
as racketeering activities.
Accordingly, we will dismiss the RICO claim against
Jamie Taylor, Steven Turner, and Judy Ellen Taylor.
IV.
The only claims remaining are based on Pennsylvania
law, over which we have no independent basis for subject matter
jurisdiction since, as noted above, the required diversity of
citizenship is lacking.

Although federal courts with original

jurisdiction over a federal claim have supplemental jurisdiction
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over state claims that form "part of the same case or
controversy," a court may decline to exercise supplemental
jurisdiction over state law claims if "the district court has
dismissed all claims over which it has original jurisdiction."
28 U.S.C. § 1367(a), (c)(3).

The Third Circuit directs that,

"where the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must
decline to decide the pendent state claims unless considerations
of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so."

Borough of

W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)
(citations omitted).
state claims here.

There is no judicial economy in trying the
The case is in its earliest stages, an answer

has not been filed, discovery has not occurred and trial has not
been scheduled.

It is not inconvenient or unfair to the parties

to transfer this case to state court.

Because no federal issues

remain, we will dismiss the state law claims against Jamie
Taylor, Steven Turner, and Judy Ellen Taylor without prejudice
pursuant to § 1367(c)(3).

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