UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHRISTINA PATTERSON FAY,
Plaintiff,
v. Case No. 20-cv-1893 (RCL)
HUMANE SOCIETY OF THE UNITED STATES, et al.,
Defendants.
MEMORANDUM OPINION
Before the Court are two motions to dismiss plaintiff’s Amended Complaint. ECF Nos. 5
& 13. Defendant Town of Wolfeboro, Carroll County, New Hampshire (“the Town” or “the Town
of Wolfeboro”) moves under Federal Rule of Civil Procedure 12(b)(2) to dismiss plaintiff’s claims
against it for lack of personal jurisdiction. ECF No. 5. And defendants Humane Society of the
United States (“the Humane Society” or “HSUS”) and Leana Elaine Stormont, an HSUS staff
attorney, move under Rule 12(b)(6) to dismiss the Amended Complaint for failure to state a claim.
ECF No. 13; see ECF No. 1-4 ¶ 35. Both motions have been fully briefed and are ripe for
consideration. ECF Nos. 5 & 13–17.
For the reasons explained below, the Court will GRANT the Town of Wolfeboro’s motion
to dismiss for lack of personal jurisdiction, ECF No. 5. The Court will also GRANT the Humane
Society and Ms. Stormont’s motion to dismiss for failure to state a claim, ECF No. 13, without
prejudice as to Counts I and III and with prejudice as to Count II.
1 I. BACKGROUND
A. Factual Allegations
The following narrative of events comes from plaintiff’s Amended Complaint, ECF No. 1-
4. Plaintiff Christina Patterson Fay had “developed an expertise in the breeding and care of
European Great Danes.” Am. Compl., ECF No. 1-4, ¶ 7. She would purchase Great Danes from
Europe, transport them to her home in New York, breed them, and sell them to new owners. Id.
After plaintiff separated from her husband in 2017, she relocated from New York to the town of
Wolfeboro, New Hampshire. Id. at ¶ 8. There, she purchased a home on fifty-three acres of land
and brought fifty of her Great Danes to the property to live with her. Id. She also hired three
assistants to help her tend to the dogs. Id. By April 2017, her pack had grown to seventy-five adult
Great Danes and nine puppies. Id. at ¶ 9.
Unbeknownst to plaintiff, the Humane Society of the United States, a private, non-profit
organization, had been keeping tabs on plaintiff since she moved to Wolfeboro and plotting a raid
of her new home. Id. at ¶¶ 10–11. In anticipation of the raid, the Humane Society launched a social
media campaign to “stir up public hatred” for plaintiff. Id. at ¶ 13. The campaign was led by one
of plaintiff’s neighbors, who published “false statements” on Facebook to help get plaintiff
“charged and convicted of animal cruelty” and justify the Humane Society’s decision to take her
Great Danes. Id. Plaintiff’s neighbor did so even though she had never “set foot” in plaintiff’s
home, witnessed plaintiff’s “treatment of her dogs,” or observed the “physical condition” of the
dogs. Id.
To carry out the raid, the Humane Society contracted with the Town of Wolfeboro. Id. at
¶ 12. Under the terms of their agreement, the Humane Society would volunteer “their services,
free of charge to the Town” and “devise, coordinate, and carry out a raid” to take custody of
2 plaintiff’s Great Danes. Id. And although the Humane Society’s “main office” is in Washington,
D.C., id. at ¶ 2, the organization “flew its staff to New Hampshire,” paid for their living expenses,
and “rotated out” volunteers in New Hampshire each week. Id. at ¶ 16.
By mid-June 2017, the Humane Society was ready to carry out the raid. Id. at ¶ 21. On the
morning of June 16, approximately eighty Wolfeboro police officers and Humane Society
volunteers descended on plaintiff’s property. Id. The police officers, equipped with bulletproof
vests and assault rifles, swarmed plaintiff’s land while a Wolfeboro fire truck and the Humane
Society’s “large trucks” drove onto her property. Id. The officers “walked onto the porch,”
“banged on the door[,] and began yelling[,] demanding entrance.” Id. at ¶ 22. When one of
plaintiff’s assistants opened the door, plaintiff’s “arms were grabbed,” “forced behind her back,”
and handcuffed. Id. Plaintiff was then escorted out of her home and taken to the Wolfeboro jail.
Id. As police officers removed plaintiff and her assistant from the home, Humane Society officers,
agents, and volunteers “pushed their way into” plaintiff’s house. Id. at ¶ 25.
Though the Wolfeboro police officers had a warrant “in hand,” the warrant was based on
a probable-cause affidavit that contained false information. Id. at ¶ 23. The affidavit stated that
plaintiff violated a Wolfeboro ordinance prohibiting residents from owning more than thirty dogs
at a time. Id. Yet plaintiff had an updated and valid “Wolfeboro group dog license” that permitted
her to keep more than thirty dogs on her property. Id. Furthermore, none of the Humane Society
volunteers who “pushed their way into [plaintiff’s] home” were named in the search warrant. Id.
at ¶ 25.
The raid took fifteen hours to complete. Id. at ¶ 26. During that time, plaintiff’s Great
Danes “were crammed into undersized cages,” loaded onto trucks owned by the Humane Society,
and taken to a warehouse. Id. at ¶ 27. Before they drove off, the Humane Society took photographs
3 of the dogs “crammed into” the undersized cages. Id. Those photographs were later
“photoshopped” to “enhance and embellish the scene” so it looked like plaintiff had been forcing
her dogs to live in small cages, covered in excrement and urine. Id. at ¶¶ 26– 27. These edited
images were used as part of the ongoing “public smear campaign” against plaintiff. Id. at ¶ 26.
During the raid, Humane Society volunteers and agents took more than just the Great
Danes. They also “tore up carpet, damaged hardwood floors, punched holes in walls and
ceilings[,]” and took from plaintiff’s home diamond wedding rings, other jewelry, clothing, a
camera, artwork, “personalized Australian dog collars” worth $10,000, beds, mattresses, furniture,
appliances, $15,000 worth of gold-rimmed china, and personal papers. Id. at ¶ 28. Outside the
home, they took her “air-conditioned and heated dog houses,” storage buildings, and metal dog
crates. Id. They also damaged playground equipment, dog-run fencing, and ramps beyond repair.
Id. Because of this damage, plaintiff’s home was condemned a few days after the raid without
prior notice or a hearing. Id. at ¶ 29.
After being charged with several misdemeanor counts of animal cruelty, a Carroll County
judge held a bench trial and found plaintiff guilty. Id. at ¶ 30. Plaintiff then “appealed” to the
Carroll County Superior Court for a jury trial. Id. Her request was granted. Id. Before and during
plaintiff’s nine-day jury trial, the Humane Society “promoted and directed” a “barrage of publicity
that referred to her [as] an animal abuser [and] a monster.” Id. at ¶ 30 & 35.
The Humane Society also sent one of its staff attorneys, Leana Elaine Stormont, to be
present in New Hampshire for the jury trial. Id. at ¶ 35. In an attempt to “vilify” plaintiff and
“convince the trial judge to dole out harsher punishment,” Ms. Stormont sent a binder to the trial
judge with “vicious” and “embellished” documents drafted by plaintiff’s ex-husband. Id. She did
so without verifying whether the statements in those documents were true. Id. Ms. Stormont also
4 sent a duplicate binder to plaintiff’s defense counsel and the Carroll County prosecutors. Id. When
the trial judge received the binder, he ordered it to be sealed so the public could not access it. Id.
Later, Ms. Stormont sent a second letter that was a “scathing rebuke” of the trial judge’s “ability
to dispense justice.” Id.
B. Procedural History
In June 2020, plaintiff sued the Humane Society, Ms. Stormont, and the Town of
Wolfeboro in Superior Court for the District of Columbia. Am. Compl. 3. Plaintiff’s Amended
Complaint contains sixteen pages of factual allegations, which include the narrative of events
described above, along with detailed information about the health and employment status of one
of her assistants, id. at ¶ 9, the names of people who purchased her Great Danes (and the names of
the dogs they bought), id., the names and ages of the Great Danes who have died while in the
Humane Society’s custody, id. at ¶ 19, and those dogs’ cause of death, id. at ¶¶ 31–34.
Based on these factual allegations, plaintiff’s Amended Complaint raises three counts.
Count I invokes several state and federal causes of action, including a claim under 42 U.S.C.
§ 1983 for alleged deprivations of her Fourth and Fourteenth Amendment rights. Am. Compl.
¶¶ 38–42. Count II alleges illegal racketeering by all defendants in violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”). Id. at ¶¶ 43–45. And Count III raises
“common law claims” for theft, conversion, defamation, slander, trespass, “damage and
destruction caused to [plaintiff]’s property,” and intentional infliction of emotional distress. Id. at
¶¶ 47–51.
The Town timely removed the matter to this Court based on diversity and federal question
jurisdiction. ECF No. 1. 1 Shortly thereafter, the Town moved to dismiss for lack of personal
1 The Humane Society and Ms. Stormont consented to removal. ECF No. 4. 5 jurisdiction under Federal Rule of Civil Procedure 12(b)(2). ECF No. 5. The Humane Society and
Ms. Stormont also moved to dismiss under Rule 12(b)(6) for failure to state a claim. ECF No. 13.
Plaintiff—who is represented by counsel—opposed both motions, ECF Nos. 14 & 15, and the
defendants replied, ECF Nos. 16 & 17. Both motions to dismiss are now ripe.
III. DISCUSSION
A. The Court Lacks Personal Jurisdiction Over the Town of Wolfeboro
The Town of Wolfeboro moves to dismiss plaintiff’s claims against it for lack of personal
jurisdiction under Rule 12(b)(2). ECF No. 5. To determine whether it may exercise personal
jurisdiction over the Town, the Court engages in a two-step inquiry. Thompson Hine, LLP v. Taieb,
734 F.3d 1187, 1189 (D.C. Cir. 2013). First, as a federal court sitting in the District of Columbia,
this Court may exercise personal jurisdiction only to the extent authorized by the District’s Long
Arm Statute. Fed. R. Civ. P. 4(k)(1)(A); D.C. Code §§ 13-422 & 13-423. Second, any exercise of
personal jurisdiction under the District’s Long Arm Statute must comport with the Due Process
Clause of the United States Constitution. Thompson Hine, LLP, 734 F.3d at 1189. This requires
that the defendant have sufficient contacts with the District such that exercising personal
jurisdiction over the defendant would comport with “traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)).
The District’s Long Arm Statute authorizes personal jurisdiction based on an “enduring
relationship” with the District (i.e., “general” personal jurisdiction) or based on conduct within the
District (i.e., “specific” personal jurisdiction). See D.C. Code §§ 13-422 & 13-423. Plaintiff
concedes that the Court does not have general personal jurisdiction over the Town. ECF No. 14-1
at 3. Instead, she invokes a provision of the District’s Long Arm Statute authorizing specific
6 personal jurisdiction over “a person, who acts directly or by an agent, as to a claim for relief arising
from the person’s . . . transacting any business in the District of Columbia.” ECF No. 14-1 at 4
(citing D.C. Code § 13-423(a)(1)).
When a plaintiff invokes the “transacting any business” clause of the District’s Long Arm
Statute, the statutory and constitutional inquiries collapse into one. Thompson Hine, LLP, 734 F.3d
at 1189. That is so because the “transacting any business” clause has been interpreted as
“provid[ing] jurisdiction to the full extent allowed by the Due Process Clause.” Id. (quoting United
States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)); accord Holder v. Haarmann & Reimer
Corp., 779 A.2d 264, 269 (D.C. 2001). Thus, to survive the Town’s Rule 12(b)(2) motion to
dismiss for lack of personal jurisdiction, plaintiff bears the burden of establishing that: (1) the
Town is a “person,” (2) the Town “transacted any business” in the District, and (3) her claim for
relief “aris[es] from” that business. D.C. Code § 13-423(a)(1); see Crane v. New York Zoological
Soc., 894 F.2d 454, 456 (D.C. Cir. 1990) (“The plaintiff has the burden of establishing a factual
basis for the exercise of personal jurisdiction over the defendant.”).
As a threshold matter, the parties disagree as to whether the Town of Wolfeboro is a
“person” under the District’s Long Arm Statute. See ECF Nos. 5-1 at 6–7 & 14-1 at 3–4. The
District’s Long Arm Statute defines “person” as “includ[ing] an individual, his executor,
administrator, or other personal representative, or a corporation, partnership, association, or any
other legal or commercial entity, whether or not a citizen or domiciliary of the District of Columbia
and whether or not organized under the laws of the District of Columbia.” D.C. Code § 13-421.
Under this definition, there are two ways the Town of Wolfeboro could be a “person.” First, as a
municipal corporation, the Town could be considered a “corporation.” See N.H. Rev. Stat. § 31:1
(“Every town is a body corporate and politic, and by its corporate name may sue and be sued,
7 prosecute and defend, in any court or elsewhere.”); Grant v. Cooke, 2 Mackey 165, 195 (D.C.
1871) (recognizing that “an incorporation of the inhabitants of a town . . . to enable it to conduct
its local affairs” is a municipal corporation). And even if “corporation” as used in the Long Arm
Statute’s definition of “person” does not include municipal corporations, see 1 McQuillin, The
Law of Municipal Corporations § 2:20 (3d ed.), the Town would surely fall under the catchall
clause as “any other legal or commercial entity.” D.C. Code § 13-421; see Entity, Black’s Law
Dictionary (10th ed. 2014) (defining “Entity” as “[a]n organization (such as a business or a
governmental unit) that has a legal identity apart from its members or owners”). 2
Nevertheless, plaintiff has not met her burden of showing that the Town “transact[ed] any
business” in the District. D.C. Code § 13-423(a)(1); see Crane, 894 F.2d at 456. To establish that
the Town transacted business in the District, plaintiff must show that the Town “purposefully
engaged in some type of commercial or business-related activity directed at District residents.”
Holder, 779 A.2d at 270–71 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985));
see Mouzavires v. Baxter, 434 A.2d 988, 993 (D.C. 1981). Plaintiff argues that the Town transacted
business in the District because it “sought the services and aid from HSUS in Washington, D.C.”
and “communicated with HSUS in Washington, D.C. to negotiate a contract over email and
phone.” ECF No. 14-1 at 5–6. But without allegations (or some other evidence) showing that the
2 To argue that it is not a “person” under § 13-421, the Town points to the D.C. Circuit’s holding in United States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995) that states are not “persons” under § 13-421. See ECF No. 16 at 2 n.2. Yet Ferrara is distinguishable on its facts. There, the D.C. Circuit relied on Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989)—which clarified that a state is not a “person” under 42 U.S.C. § 1983—to hold that the State of New Mexico is not a “person” under the District’s Long Arm Statute. 54 F.3d at 831–32. Citing Will, the D.C. Circuit noted that the word “person” ordinarily does not include states because statutes that seek to impose liability upon or jurisdiction over states raise serious constitutional questions relating to state sovereign immunity. Id. at 831 (citing Will, 491 U.S. at 64). This concern is irrelevant in the present case, however, because the Town of Wolfeboro is not a state and thus enjoys no sovereign immunity. Alden v. Maine, 527 U.S. 706, 756 (1999). Thus, the D.C. Circuit’s rationale for excluding states from § 13-421’s definition of “person” does not apply here. 8 Town purposefully directed these business activities with the Humane Society at residents in the
District, the mere acts of seeking out the services of an organization with its “main office of
operations” in the District, Am. Compl. ¶ 2, and negotiating a contract with that organization are
insufficient for personal jurisdiction under the Due Process Clause. Burger King Corp., 471 U.S.
at 472.
Not only is plaintiff’s Amended Complaint devoid of any allegations that the Town
purposefully directed its business activities at residents of the District, but an uncontested affidavit
from the Town’s Chief of Police further shows that the Town did not. See ECF No. 5-2. In his
affidavit, Police Chief Dean Rondeau explains that after a “local humane officer” gave the
Wolfeboro Police Department notice that “numerous European Great Dane dogs were being kept
in unsafe and unsanitary conditions at a property located in Wolfeboro,” the Town contacted
Lindsay Hamrick, a Humane Society employee “located in New Hampshire, to discuss potential
options.” Id. at ¶¶ 2–4 (emphases added). And when the Wolfeboro Police Department eventually
signed the agreement with the Humane Society, Chief Rondeau explains, “[a]ll of the individuals
who signed the Agreement were located in New Hampshire when they signed the Agreement.” Id.
at ¶ 7 (emphasis added). Furthermore, “[t]he Town did not send any employees or representatives
to Washington, D.C. to discuss the Agreement or to discuss any plans related to the removal,
transportation, or care of the dogs.” Id. at ¶ 8. “All discussions with HSUS relating to the
Agreement occurred either in meetings with Ms. Hamrick in New Hampshire or by phone calls
with HSUS.” Id. at ¶ 9. The Chief added that “[w]hile some of the individuals on [those] calls may
have been in Washington, D.C. during the call[s], I do not know if that is the case.” Id. These
statements, which are uncontested by plaintiff, 3 further show that the Town did not “purposefully
3 Rather than contesting Police Chief Rondeau’s statements, plaintiff attempts to use them as evidence favorable to her argument by mischaracterizing their contents. In his affidavit, Chief Rondeau states that 9 direct” any of its business dealings with the Humane Society at residents in the District. Burger
King Corp., 471 U.S. at 472 (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984)). The
Town thus cannot be haled into court here.
As a last-ditch effort, plaintiff argues that exercising personal jurisdiction over the Town
comports with the Due Process Clause because the Town “signed an agreement with HSUS that
made Washington, D.C. the preferred forum for legal purposes and choice of law.” ECF No. 14-1
at 6. Thus, plaintiff says, the Town’s “agreement could foreseeably bring them to Washington,
D.C. for the purposes of litigation.” Id. at 7. Contrary to plaintiff’s representation, however, the
contract itself says nothing about Washington, D.C. being the “preferred forum for legal purposes.”
Compare id. at 6, with ECF No. 14-4. In fact, the portion of the contract plaintiff references is
titled “Choice of Law” and provides only that “this Agreement shall be governed by and construed
according to the laws of the District of Columbia.” ECF No. 14-4 ¶ 13; see ECF No. 14-1 at 8.
Perhaps this choice-of-law provision would put the Town on notice that it could be sued in the
District for violating its agreement with the Humane Society. But that is not the nature of the
present suit.
In sum, because plaintiff has not met her “burden of establishing a factual basis for the
exercise of personal jurisdiction” over the Town, Crane, 894 F.2d at 456, the Court will grant the
Town of Wolfeboro’s motion to dismiss for lack of personal jurisdiction, ECF No. 5.
“[a]ll discussions relating to the Agreement [between the Town and the Humane Society] occurred either in meetings with Ms. Hamrick in New Hampshire or by phone calls with HSUS.” ECF No. 5-2 ¶ 9. Yet in her opposition brief, plaintiff writes: “Chief Rondeau, in his affidavit, states that . . . ‘all discussions with HSUS relating to the agreement occurred . . . by phone calls with HSUS.” ECF No. 14-1 at 6 (emphasis added). Conveniently omitted from plaintiff’s recounting of Chief Rondeau’s statement is the phrase “either in meetings with Ms. Hamrick in New Hampshire.” See ECF No. 5-2 ¶ 9. Needless to say, this transparent attempt to deceive the Court has failed. Should plaintiff’s counsel continue to flout Federal Rule of Civil Procedure 11(b)(3) by misrepresenting evidence in plaintiff’s filings, the Court will not hesitate to impose appropriate sanctions. 10 B. Plaintiff’s Amended Complaint Does Not State a Claim Against the Humane Society or Ms. Stormont
The other two defendants—the Humane Society and Ms. Stormont—move to dismiss
plaintiff’s Amended Complaint under Rule 12(b)(6) for failure to state a claim. ECF No. 13. As
noted above, plaintiff’s Amended Complaint brings three counts against the Humane Society and
Ms. Stormont: Count I invokes several causes of action, including a claim under 42 U.S.C. § 1983
for the alleged deprivation of her Fourth and Fourteenth Amendment rights. Am. Compl. ¶¶ 38–
42. Count II alleges violations of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). Id. at ¶¶ 43–45. And Count III raises the following “common law claims”: theft,
conversion, defamation, slander, trespass, “damage and destruction caused to [plaintiff]’s
property,” and intentional infliction of emotional distress. Id. at ¶¶ 47–51.
Under Federal Rule of Civil Procedure 8(a), a “pleading that states a claim for relief must
contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Rule 8(d) adds that “[e]ach allegation must be simple, concise, and direct.”
Fed. R. Civ. P. 8(d)(1). While the pleader is “entitled to considerable latitude regarding the mode
of stating a claim for relief,” she must “give reasonable notice of the claims that are being
asserted.” Arthur R. Miller, Mary Kay Kane & A. Benjamin Spencer, Federal Practice &
Procedure § 1216 (3d ed.). “Specific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erikson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Furthermore, to survive a Rule 12(b)(6) motion to dismiss, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially
plausible when the court can reasonably infer from the factual content pleaded that the defendant
11 is liable for the alleged misconduct. Id. Plausibility requires more than a “sheer possibility that the
defendant has acted unlawfully” but does not require a “probability” that the defendant is in the
wrong. Id. Though legal conclusions “can provide the framework of a complaint, they must be
supported by factual allegations.” Id. at 679. For this reason, “‘naked assertion[s]’ devoid of
‘further factual enhancement’” and “formulaic recitation[s] of the elements of a cause of action”
will not survive a motion to dismiss. Id. at 678 (quoting Twombly, 550 U.S. at 555, 557).
The Humane Society and Ms. Stormont argue that the Amended Complaint does not
comply with Federal Rule of Civil Procedure 8(a) because it is a “scattershot pleading,” i.e., one
that does not indicate which factual allegations support each claim for relief. ECF No. 13 at 19.
Without this basic information, they argue, the Amended Complaint fails to give them “fair notice
of the claims against them and the grounds upon which the claims rest.” Id. at 18–19 (citing Lillard
v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996)). The Humane Society and
Ms. Stormont also argue that Count II fails to adequately plead a RICO claim because it improperly
groups all defendants together and fails to allege a plausible RICO “enterprise,” any “racketeering
activity,” or any “pattern” of racketeering activity. Id. at 26–36.
In opposition to the Humane Society and Ms. Stormont’s motion, plaintiff argues that her
Amended Complaint “does not contain scattershot assertions of fact,” but she makes no effort to
explain why that is so. ECF No. 15 at 2. She also argues that the Amended Complaint complies
with Rule 8 because it “is not a formulaic recitation of the elements of a cause of action but rather
is supported by a detailed history of events and detailed explanations of the adverse effects upon
[plaintiff].” Id. And if the Court finds that her Amended Complaint does not satisfy Rule 8, plaintiff
argues, she should be given leave to amend. Id. at 2 & 5. Notably, although plaintiff’s opposition
responds to the Humane Society and Ms. Stormont’s characterization of her pleading as a
12 “scattershot” pleading, it does not so much as mention any of the defendants’ arguments specific
to her RICO claims. See generally ECF No. 15.
The Court finds that none of the three counts in plaintiff’s Amended Complaint states a
claim against the Humane Society or Ms. Stormont. First, Count I neither provides a “short and
plain statement” of the claims it brings, Fed. R. Civ. P. 8(a)(2), nor identifies which factual
allegations in plaintiff’s sixteen-page narrative of events amount to the various legal theories it
invokes. See Am. Compl. ¶¶ 38–42. Similarly, Count III also gives no indication of which factual
allegations support the five “common law claims” it references. Id. at ¶¶ 43–45. And as plaintiff
apparently concedes, Count II does not state a RICO violation under 18 U.S.C. §§ 1962(c) & (d)
because it does not adequately plead the required element of “racketeering activity.” See 18 U.S.C.
§ 1962(c). For these reasons, the Court will grant the Humane Society and Ms. Stormont’s Rule
12(b)(6) motion to dismiss, ECF No. 13.
a. Count I: “42 U.S.C. § 1983 et seq.”
Count I does not state a claim upon which relief can be granted for two reasons. First, the
Court cannot discern what cause of action (or causes of action) Count I pleads. After incorporating
by reference all preceding paragraphs, plaintiff alleges that “[she] brings this action pursuant to
42 U.S.C. § 1983 to redress the deprivation under color of state law, of rights secured by the Fourth
and Fourteenth Amendments to the United States Constitution.” Am. Compl. ¶ 39. Based on this
paragraph—and the title of Count I: “42 U.S.C. § 1983 et seq.”—it appears that Count I brings a
§ 1983 claim for alleged violations of her Fourth and Fourteenth Amendment rights. So far, so
good.
But in the next paragraph, plaintiff adds the following:
40. HSUS, [Ms.] Stormont, and [the Town of] Wolfeboro acting jointly and severally under the color of law, created and implemented a conspiracy that
13 resulted in the unlawful deprivation of [plaintiff]’s lawfully acquired and owned property, damage to [plaintiff]’s property, criminal acts, defamation, and the intentional and negligent infliction of emotional harm causing in excess of thirty-five million dollars ($35,000,000.00) in damages.
Id. at ¶ 40. It is unclear whether plaintiff believes that these alleged wrongs amount to Fourth and
Fourteenth Amendment violations, or whether she pleads these harms as separate causes of action.
The final two paragraphs of Count I only confuse the matter. Those paragraphs read:
41. [Plaintiff] brings this action pursuant to 42 U.S. Code 1988(a), (b), (c). [sic] Proceedings in Vindication of Civil Rights as applied to each State, to the District of Columbia and to the Commonwealths as the Defendants, jointly and severally violated [plaintiff]’s United States Constitutional Civil Rights to Life, Liberty, Property and the Pursuit of Happiness, against Unlawful Intrusions, against Unlawful Detainment, against Unnecessary and Unreasonable. [sic]
42. [Plaintiff] brings this action pursuant to 18 U.S. Code [§§] 1962(c) & (d); Conspiracy to commit trespass, theft, conversion, destruction of property and defamation of [plaintiff]’s character, disrupting interstate and foreign commerce for individual and institutional financial gain as applied to each State, to the District of Columbia and to the Commonwealths resulting in [plaintiff] incurring substantial and future damages.
Id. at ¶¶ 41 & 42. As for paragraph 41, § 1988 identifies the body of law that governs federal civil
rights suits and permits the recovery of attorney’s and expert fees in those matters. 42 U.S.C.
§ 1988. It does not provide a cause of action. See id. It is thus unclear why plaintiff pleads that she
“brings” this suit under § 1988. And paragraph 42 has nothing to do with § 1983, as it alleges two
RICO violations. Am. Compl. ¶ 42. From these four paragraphs, the Court cannot identify the
cause (or causes) of action brought in Count I. Does plaintiff plead a § 1983 claim? Common law
claims for defamation, trespass to chattels, and intentional infliction of emotional distress? A RICO
violation? Without this most basic information, Count I falls short of the Rule 8 requirement that
the pleader give “a short and plain statement of the claim.” Fed. R. Civ. P. 8(a).
14 Furthermore, the Amended Complaint also fails to identify the conduct that plaintiff
believes amounted to the harms alleged in Count I. Perhaps expecting the Court to do this work
for her, plaintiff incorporates by reference all factual allegations in her Amended Complaint, many
of which have nothing to do with the legal theories raised in Count I. Am. Compl. ¶ 38. Yet it is
plaintiff’s counsel’s responsibility—not that of the Court—to organize the pleading so that it is
clear which factual allegations support each cause of action. Chennareddy v. Dodaro,
282 F.R.D. 9, 16 (D.D.C. 2012), aff’d, 697 F. App’x 704 (D.C. Cir. 2017); see U.S. ex rel. Garst
v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (“Rule 8(a) requires parties to make
their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin
from a bucket of mud.”).
As a result of this inartful drafting, the Court is left to “guess at what factual allegations
underpin each claim,” making it impossible to determine which allegations, if any, show that
plaintiff is entitled to relief on the various causes of action cobbled together in Count I. Jiggetts v.
District of Columbia, 319 F.R.D. 408, 416 (D.D.C. 2017). Such a pleading does not comply with
Rule 8(a)’s requirement that plaintiff set forth “a short and plain statement of the claim showing
that [she] is entitled to relief.” Fed. R. Civ. P. 8(a). Nor does it give the Humane Society and
Ms. Stormont adequate notice of the allegations lodged against them. See Erikson, 551 U.S. at 93.
b. Count III: “Common Law Claims”
Similarly, Count III also fails to identify which of the many factual allegations in the
Amended Complaint give rise to each of the causes of action it invokes. Count III, titled “Common
Law Claims,” includes the following allegations:
46. Plaintiff restates and incorporates fully of [sic] the allegations of paragraphs 1–45 above as if fully stated herein. 47. [Plaintiff] brings this action against the Defendants, jointly and severally, [for] theft and conversion of [plaintiff]’s property.
15 48. [Plaintiff] brings this action against the Defendants, jointly and severally, for defamation and slander. 49. [Plaintiff] brings this action against the Defendants, jointly and severally, for trespass. 50. [Plaintiff] brings this action against the Defendants, jointly and severally, for the damage and destruction caused to her property. 51. [Plaintiff] brings this action against the Defendants, jointly and severally, for the intentional and continuing infliction of emotional harm.
Am. Compl. ¶¶ 46–51.
Though plaintiff incorporates all preceding paragraphs into Count III, nowhere in the
Amended Complaint does plaintiff indicate which factual allegations give rise to each of these
“common law claims.” As explained above, the Court will not parse through plaintiff’s sixteen-
page narrative of events to identify facts that could state a claim for each of these alleged wrongs.
See Chennareddy, 282 F.R.D. at 16. Because it does not identify the conduct that plaintiff believes
amounts to each of these causes of action, Count III does not give the Humane Society and
Ms. Stormont fair notice of “the grounds upon which [these claims] rest[ ].” Twombly, 550 U.S. at
555. Thus, Count III does not adequately state a claim upon which relief can be granted.
c. Count II: “RICO Conspiracy”
As explained above, the Humane Society and Ms. Stormont argue that plaintiff fails to state
a RICO violation because Count II improperly groups all defendants together and fails to
adequately plead a RICO “enterprise,” any “racketeering activity,” or any “pattern” of racketeering
activity. ECF No. 13 at 26–36. In her opposition brief, plaintiff does not refute any of these
arguments. See generally ECF No. 15. In fact, the opposition never even mentions her RICO
claims. The Court will treat plaintiff’s failure to respond to these arguments as a concession that
Count II fails to state a claim. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries,
284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff
16 files a dispositive motion and addresses only certain arguments raised by the defendant, a court
may treat those arguments that the plaintiff fails to address as conceded.”).
Alternatively, even if plaintiff had opposed the Humane Society and Ms. Stormont’s
arguments attacking her RICO claims, the Court would still rule in the defendants’ favor. For
Count II fails to adequately plead any “racketeering activity,” which is a necessary element of a
RICO claim. W. Assocs. Ldt. P’ship v. Mkt. Square Assocs., 235 F.3d 629, 633 (D.C. Cir. 2001).
After incorporating all preceding paragraphs, Am. Compl. ¶ 43, Count II states:
44. [Plaintiff] brings this action pursuant to 18 U.S. Code 1961, Racketeering Section 1344 Institutional Fraud, Section 1503 Obstruction of Justice, Section 1957, (RICO) Trespass, Theft of property, Conversion of property, Destruction of Property for institutional and individual financial gain against the Defendants jointly and severally in that they engaged and have continued to engage in a pattern of conduct throughout the United States of America in violation of RICO causing harm to [plaintiff] whereby she should be awarded treble damages, costs of this litigation, and attorney[’s] fees that collectively will equal in excess of $35,000,000.00.
Id. at ¶ 44.
Given this somewhat confusing phrasing, identifying the nature of plaintiff’s RICO claim
requires some interpretive work. To begin, § 1961 is the “Definitions” section of RICO, so plaintiff
cannot bring a cause of action under that Section. See 18 U.S.C. § 1961. Yet in paragraph 42—
which is the final paragraph of Count I—plaintiff invokes two provisions of RICO that list
prohibited activities: §§ 1962(c) & (d). Am. Compl. ¶ 42. Presumably, plaintiff intended to include
paragraph 42 in Count II. Though it is not the Court’s job to reorganize plaintiff’s pleading for the
sake of clarity, Chennareddy, 282 F.R.D. at 16, Federal Rule 8(e) does state that “pleadings must
be construed so as to do justice.” Fed. R. Civ. P. 8(e). Accordingly, the Court will read Count II in
connection with paragraph 42 of Count I and interpret these allegations collectively as bringing a
RICO claim under 18 U.S.C. §§ 1962(c) & (d).
17 Section 1962(c) provides that “[i]t shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of 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 state a claim under subsection (c), plaintiff must allege that the Humane Society and
Ms. Stormont (1) conducted, (2) an enterprise, (3) through a pattern, (4) of “racketeering activity.”
United States ex rel. Yelverton v. Fed. Ins. Co., 831 F.3d 585, 589 (D.C. Cir. 2016). “Racketeering
activity” refers to the commission of certain statutorily defined predicate criminal acts. W. Assocs.
Ldt. P’ship, 235 F.3d at 633; see 18 U.S.C. § 1961 (defining the criminal acts that amount to
“racketeering activity” under RICO).
Based on the allegations in paragraphs 42, 44, and 45 of the Amended Complaint, the Court
can identify four RICO predicate criminal acts: (i) bank fraud in violation of 18 U.S.C. § 1344,
(ii) obstruction of justice in violation of 18 U.S.C. § 1503, (iii) engaging in monetary transactions
in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957, and (iv) mail
fraud in violation of 18 U.S.C. § 1341. 4 Am. Compl. ¶¶ 42, 44–45. As factual support for these
alleged predicate criminal acts, plaintiff pleads that the Humane Society has “engaged in the use
of electronic, radio, television, and print media to fraudulently obtain charitable donations of
money and goods from the public,” has “fraudulently advertised to give the public the impression
4 Paragraph 44 references 18 U.S.C. §§ 1344, 1503 and 1957 by name. Am. Compl. ¶ 44. Paragraph 45 alleges that defendants engaged in “a pattern of racketeering activity that includes conspiracy, obstruction of justice, intimidation, perjury, mail fraud, [and] use of the public airwaves and print media to spread false and embellished information, publish malicious slander and defamation[.]” Id. at ¶ 45. From that list, only mail fraud, in violation of 18 U.S.C. § 1341, is a “racketeering activity” under RICO. See 18 U.S.C. § 1961(1). Finally, paragraph 42—which the Court will read in connection with Count II for the reasons explained above—alleges a conspiracy “to commit trespass, theft, conversion, destruction of property and defamation of [plaintiff]’s character.” Am. Compl. ¶ 42. None of these actions are “racketeering activities” under RICO. See 18 U.S.C. § 1961(1).
18 that it possesses police powers,” has “used intimidation tactics through the United States, using
the airwaves and print media, to try to impose their ideology that there needs to be legislature
passed that outlaws the breeding, selling[,] and possession of pedigree dogs,” and has “fraudulently
characterized the breeding [of dogs] . . . as acts of criminal abuse.” Id. at ¶ 45.
None of these allegations, however, suffices to state a claim for the four predicate criminal
acts listed in the Amended Complaint. To begin, plaintiff’s allegations of bank fraud and mail
fraud can be easily dismissed as insufficient. When a RICO claim is based on predicate criminal
acts involving fraud, the pleading must satisfy the heightened standard set forth in Federal Rule of
Civil Procedure 9(b). Cheeks v. Fort Myer Constr. Corp., 216 F. Supp. 3d 146, 157 (D.D.C. 2016).
Under Rule 9(b), a party alleging fraud must “state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). This requires allegations of the “time, place, and content
of the false misrepresentations,” as well as “the fact misrepresented,” and what was gained as a
result of the fraud. United States ex rel. Williams v. Martin-Baker Aircraft Co. (“Williams”), 389
F.3d 1251, 1256 (D.C. Cir. 2004).
Yet plaintiff’s Amended Complaint is devoid of any facts “stat[ing] with particularity the
circumstances constituting” bank fraud or mail fraud. Fed. R. Civ. P. 9(b); see generally Am.
Compl. At most, plaintiff alleges that the Humane Society has “consistently engaged in the use of
electronic radio, television, and print media to fraudulently obtain charitable donations of money
and goods from the public.” Am. Compl. ¶ 45. But nowhere does plaintiff allege the “time, place,
and content of the false misrepresentations” that amounted to such mail fraud or “the fact[s]
misrepresented.” Williams, 389 F.3d at 1256.
Plaintiff’s claims of obstruction of justice and engaging in monetary transactions in
property derived from specified unlawful activity fare no better. Though she need not satisfy the
19 heightened pleading standard to state a RICO claim based on either of these predicate criminal
acts, Count II makes no mention of the conduct that the Humane Society or Ms. Stormont allegedly
engaged in to commit these crimes. As explained above, the Court will not go digging through the
incorporated factual narrative to identify allegations that could suffice to state a claim for these
crimes. See Chennareddy, 282 F.R.D. at 16.
Furthermore, because the Court finds that the Amended Complaint does not adequately
plead any “racketeering activity,” which is required to state a claim under 18 U.S.C. § 1962(c), the
Court need not address the other elements of a RICO violation under § 1962(c). Nor must it address
plaintiff’s second theory of liability raised in Count II, i.e., that the defendants conspired to violate
§ 1962(c). See Am. Compl. ¶ 42. Without a § 1962(c) violation, there can be no conspiracy to
violate § 1962(c). Danielsen v. Burnside-Ott Aviation Training Ctr. Inc., 941 F.2d 1220, 1124
(D.C. Cir. 1991) (recognizing that “[s]ubsection (d) adds nothing substantive to the law” but
instead “makes it unlawful to violate any of the preceding” subsections).
In sum, none of the counts in plaintiff’s Amended Complaint states a claim against the
Humane Society or Ms. Stormont. The Court will thus grant the Humane Society and
Ms. Stormont’s Rule 12(b)(6) motion to dismiss, ECF No. 13. Counts I and III of the Amended
Complaint will be dismissed without prejudice. Count II, however, will be dismissed with
prejudice. As explained above, the Court will treat plaintiff’s failure to oppose the Humane Society
and Ms. Stormont’s arguments as to plaintiff’s RICO claims in Count II as a concession that Count
II does not state a claim. See Hopkins, 284 F. Supp. 2d at 25.
IV. CONCLUSION
For the reasons explained above, the Court will GRANT the Town’s motion to dismiss for
lack of personal jurisdiction, ECF No. 5. It will also GRANT the Humane Society and
20 Ms. Stormont’s motion to dismiss for failure to state a claim, ECF No. 13, without prejudice as to
Counts I and III and with prejudice as to Count II of the Amended Complaint, ECF No. 1-4. Within
thirty days of this date, plaintiff may move for leave to file a Second Amended Complaint as to
Counts I and III.
An Order consistent with this Memorandum Opinion shall follow.
Date: January 19, 2021 /s/ Royce C. Lamberth
Hon. Royce C. Lamberth United States District Judge