Hellenic Lines, Ltd. v. O'Hearn

94 F.R.D. 48, 1982 U.S. Dist. LEXIS 9441
CourtDistrict Court, S.D. New York
DecidedMarch 2, 1982
DocketNo. 80 Civ. 7197 (KTD)
StatusPublished

This text of 94 F.R.D. 48 (Hellenic Lines, Ltd. v. O'Hearn) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hellenic Lines, Ltd. v. O'Hearn, 94 F.R.D. 48, 1982 U.S. Dist. LEXIS 9441 (S.D.N.Y. 1982).

Opinion

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

The defendants in this civil action for damages under the Racketeer Influenced and Corrupt Organization Act [“RICO”], 18 U.S.C. §§ 1961-1968, have moved once again to dismiss the complaint. I previously dismissed the complaint under Fed.R. Civ.P. 9(b) for failure to plead fraud with particularity, Hellenic Lines, Ltd. v. O’Hearn, 523 F.Supp. 244 (S.D.N.Y.1981), but permitted the plaintiff to replead. Defendants Walter O’Hearn, William Montella, John S. McGrath, Inc., McGrath Services Corp. and Export Carpenters, Inc. [the “McGrath defendants”] now seek to have the amended complaint dismissed under [50]*50Rule 9(b) for failure to plead fraud with particularity and alternatively under Rule 11 as a sham. Defendants Nicholas Seregos and Jackson Engineering Co. [the “Jackson defendants”] join the Rule 9(b) motion and alternatively seek to have certain matter struck from the complaint under Rule 12(f) as immaterial. It appears that the amended complaint pleads the alleged fraud as specifically as possible at the present time without discovery of facts in defendants’ hands. Accordingly, the motion to dismiss is denied.

I. THE AMENDED COMPLAINT

The fraudulent scheme alleged in the amended complaint is essentially the same as that alleged in the original complaint and the reader is assumed to have familiarity with the prior discussion of that scheme and the parties. See Hellenic Lines, Ltd. v. O’Hearn, supra, 523 F.Supp. at 245-46.

The ' amended complaint adds several paragraphs specifying in somewhat greater detail its allegations against the McGrath defendants. These were as follows:

Par. 4.3 During the period from 1975 to 1979, Quin presented to Hellenic 1436 invoices for service and materials ordered by Hellenic for its liner operations.

Par. 4.4 That the total amount of these invoices was $755,290.06 and that Hellenic believing such invoices to be true and correct paid to Quin the total sum of $738,751.83 on account of these invoices and received credits from Quin with respect to the balance. A listing of such invoices is attached hereto, made a part hereof and marked Exhibit “A”.

Par. 4.5 Each and every such invoice submitted by Quin to Hellenic during the period from 1975 to 1979 was inflated by 50%.

In addition, the allegation of paragraph 5.2 that the McGrath defendants “defrauded Hellenic in the sum of $100,000,” has been changed in the amended complaint paragraph 6.2 to include Montella and O’Hearn and to increase the dollar figure to $369,-375.92, which is exactly 50% of the total amount of the 1,436 invoices. Finally, the amended complaint is based on personal knowledge, whereas the original complaint was alleged entirely on information and belief.

Against the Jackson defendants, the amended complaint added several new paragraphs and changed some dates and the amount of alleged damages. The additional paragraphs were:

Par. 4.16 During the period from 1977 through May, 1979, Defendant, Jackson Engineering, presented to Hellenic invoices on a regular and systematic basis. Par. 4.17 That the total amount of these invoices was $1,054,704.61 and that Hellenic paid to Jackson Engineering the total of $1,054,704.61 on account of these invoices, believing such invoices to be true and correct.

Par. 4.18 That at the Scotto trial, Sere-gos testified under oath that:

(a) “The invoices [submitted to Hellenic], I would add usually $6,000 of fabrication on top, he [Krikos, a former employee of Hellenic] would get half plus a percentage of the original work done. That is why no records were necessary.”

(b) “In 1978 it became almost standard procedure to add $6,000 every week.”

Par. 4.19 That during the period from January, 1977 through May 25, 1979, Jackson Engineering fraudulently over-billed Hellenic in the amount of $750,-000.00.

Par. 4.20 That Seregos caused Jackson Engineering to embark on the aforesaid false billing scheme and condoned and abetted the fraudulent scheme throughout.

Par. 4.22 Through a pattern of racketeering, the defendants, Jackson Engineering and Seregos, maintained, directly and indirectly, an interest in and control of an enterprise which was engaged in, and the activities of which affected, foreign commerce in violation of 18 U.S.C. § 1962(b).

Furthermore, the amended complaint expanded the time period in which it alleged [51]*51that Seregos conspired with labor officials to run through May, 1979 rather than the year 1978, and it decreased the alleged damages from $800,000 to $750,000.

II. DISCUSSION

The McGrath defendants raise two objections to the sufficiency of the amended complaint. First, they claim that it does not appraise them “of how the alleged fraud was perpetrated by Montella on their behalf.” For example, they assert that the complaint is defective because it does not set forth which elements of the invoices for carpentry and lashing work were inflated: the category of workers, the number of workers employed, the days worked, the hours worked per day, or the rates per hour.

Second, the McGrath defendants claim that Montella left the employ of Quin Marine Services, Inc. (the predecessor of defendant Export Carpenters, Inc.) on December 27, 1978, when he entered the Federal Witness Protection Program. Therefore, the 151 invoices rendered by Quin after Montella left could not have been fraudulent. They also claim that the 552 invoices rendered subsequent to June 9, 1978, when Montella agreed to cooperate with the United States Attorney’s Office in its investigation of corruption in the waterfront, likewise could not have been fraudulent. Apparently, the defendants would have this court find it incredible that Montella would continue to operate his scheme to submit false invoices after he had agreed to cooperate with the government. The inclusion in the complaint of allegations that the 703 invoices (151 and 552) were fraudulent renders the complaint a “sham and false” and subject to dismissal under Rule 11, argues the McGrath defendants.

It must first be noted that plaintiff has not had discovery yet and so could not have been expected to know with absolute certainty the date on which Montella left Quin’s employ. Plaintiff has agreed, however, to withdraw the complaint as to the invoices rendered after that date if Montella did in fact leave on that day. Therefore, the motion to dismiss the complaint as to those invoices is denied without prejudice to renewal upon the conclusion of discovery.

As to the 552 invoices rendered before Montella supposedly left Quin and after he started cooperating with the government, it is entirely possible on the record before me that Montella continued his past practices while gathering evidence against the big fish in the International Longshoremen’s Association. Again, the defendants may test the sufficiency of plaintiff’s evidence by renewed motion following the conclusion of discovery.

Because the allegation that these 703 invoices were fraudulent was not made in bad faith, the motion to dismiss under Rule 11 is denied.

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

Related

Hellenic Lines, Ltd. v. O'HEARN
523 F. Supp. 244 (S.D. New York, 1981)
Clairdale Enterprises, Inc. v. C. I. Realty Investors
423 F. Supp. 257 (S.D. New York, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
94 F.R.D. 48, 1982 U.S. Dist. LEXIS 9441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hellenic-lines-ltd-v-ohearn-nysd-1982.