General Cigar Co. v. CR Carriers, Inc.

948 F. Supp. 1030, 1996 U.S. Dist. LEXIS 17282, 1996 WL 673761
CourtDistrict Court, M.D. Alabama
DecidedNovember 18, 1996
DocketCivil Action No. 95-A-1169-S
StatusPublished
Cited by3 cases

This text of 948 F. Supp. 1030 (General Cigar Co. v. CR Carriers, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Cigar Co. v. CR Carriers, Inc., 948 F. Supp. 1030, 1996 U.S. Dist. LEXIS 17282, 1996 WL 673761 (M.D. Ala. 1996).

Opinion

MEMORANDUM OPINION AND ORDER

ALBRITTON, District Judge.

This cause is before the. court on two Motions to Dismiss the Complaint for failure to state a claim.

The Plaintiff initiated this action on September 7, 1995 by alleging that the Defendants engaged in a pattern of racketeering activity under the Racketeer Influenced and Corrupt Organizations Act (RICO). See 18 U.S.C. § 1961 et seq. The predicate offenses alleged under RICO are mail fraud and money laundering. See 18 U.S.C. §§ 1341 and 1956. The Plaintiff filed an Amended Complaint on November 8, 1995. Defendant Paul Cleveland (“Cleveland”) filed the first Motion to Dismiss the Complaint on May 22, 1996, while CR Carriers, Inc., Thomas Ross, and C. Michael Cody (collectively “the Defendants”) filed a separate Motion to Dismiss on June 6, 1996. Because both motions are based on General Cigar Co., Inc.’s (“the Plaintiff”) alleged failure to state a claim under RICO for mail fraud or money laundering, the court will address both of the Motions to Dismiss together. For the rea[1034]*1034sons herein discussed, the motions are due to be DENIED.

II. STANDARD OF REVIEW

A court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations in the complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (“[W]e may not ... [dismiss] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief.”) (citation omitted). The court will accept as true all well-pleaded factual allegar tions and will view them in a light most favorable to the nonmoving party. Hishon, 467 U.S. at 73, 104 S.Ct. at 2232-33. Furthermore, the threshold is “exceedingly low” for a complaint to survive a motion to dismiss for failure to state a claim. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985).

III. FACTS

The facts in this case revolve around an alleged arrangement between Cleveland and CR Carriers to defraud the Plaintiff. Cleveland was the senior vice president of operations for the Plaintiff, General Cigar. Defendants Ross and Cody were both owners and officers of Defendant CR Carriers. CR Carriers contracted with the Plaintiff to transport cigars, tobacco leaf, and waste materials from the Plaintiffs plant in Dothan, Alabama to various customers. The normal business practice of the Plaintiff is to route invoices to a freight audit company for review. The invoices then go to the Plaintiffs offices for approval. Upon approval, checks for payment are issued by the Plaintiff. Cleveland was an employee-responsible for approving invoices and causing checks to be issued. If a check was approved for an amount in excess of $5,000, then an authorized person in addition to Cleveland would also have to approve the issuing of the check for payment.

According to the Plaintiffs Amended Complaint, Cleveland and the Defendants defrauded the Plaintiff by submitting, and causing cheeks to be paid for, invoices for fictitious trucking services. Pursuant to an alleged arrangement between Cleveland and CR Carriers, Ross and Cody would submit, through the United States mail, invoices for trucking services which CR Carriers did not actually render. Because Cleveland had previously directed that CR Carriers’ invoices were not to go to the freight audit company, but were to go directly to him, the fraudulent invoices submitted by the Defendants were approved only by Cleveland. Additionally, most of the cheeks to CR Carriers in payment of fraudulent invoices were for amounts less than $5,000, and so required only Cleveland’s approval. Therefore, Cleveland approved CR Carriers’ false invoices without the review of either the freight audit company or another authorized individual employed by the Plaintiff. Cleveland’s approval of the invoices then caused the Plaintiff to issue checks to CR Carriers which were sent to CR Carriers through the United States mail. According to the Amended Complaint, the normal practice of CR Carriers was to stamp the endorsements “CR Carriers” or “For Deposit Only” on checks which were received by the company and deposit the checks in the CR Carriers’ account at AmSouth Bank in Dothan, Alabama. The checks issued by the Plaintiff to CR Carriers in payment of fraudulent invoices, however, were cashed rather than deposited and bore handwritten endorsements of either “CR Carriers” or “C. Michael Cody.” According to the Plaintiff, between June 1989 and July 18, 1995, 196 checks totaling an approximate sum of $889,-163.00 were issued by the Plaintiff to CR Carriers because of fraudulent invoices.

IV. DISCUSSION

To state a claim under RICO a plaintiff must allege each of the following: 1) conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity. Sedima S.P.R.L. v. Imrex, Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). To establish a pattern of racketeering activity there must be at least two predicate acts of racketeering activity. 18 U.S.C. § 1961(5). A racketeering activity is any act indictable [1035]*1035under certain provisions of the United States Code, including mail fraud and money laundering. 18 U.S.C. § 1961(1). Since both Motions to Dismiss focus on the allegations specific to the mail fraud and money laundering predicate acts, the court will evaluate the sufficiency of the Amended Complaint with regard to those predicate acts.

A. RICO MAIL FRAUD CLAIMS

The essential elements of a mail fraud claim are a scheme to defraud, that the defendant “caused” a use of the mails, and that the mailing was for the purpose of executing the scheme. United States v. Hewes, 729 F.2d 1302 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).

A claim of mail fraud as a predicate act of RICO is reviewed under the standard of Rule 9(b) of the Federal Rules of Civil Procedure. See Durham, v. Business Management Assoc., 847. F.2d 1505 (11th Cir.1988). The Rule requires that in averments of fraud, “the circumstances constituting fraud ... shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gordon v. Harman (In re Harman)
512 B.R. 321 (N.D. Georgia, 2014)
Cifelli v. Mursalim (In re Miles)
481 B.R. 832 (N.D. Georgia, 2012)
Peters v. Amoco Oil Co.
57 F. Supp. 2d 1268 (M.D. Alabama, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
948 F. Supp. 1030, 1996 U.S. Dist. LEXIS 17282, 1996 WL 673761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-cigar-co-v-cr-carriers-inc-almd-1996.