Kaye v. D'Amato

357 F. App'x 706
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 4, 2009
DocketNo. 09-1091
StatusPublished

This text of 357 F. App'x 706 (Kaye v. D'Amato) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaye v. D'Amato, 357 F. App'x 706 (7th Cir. 2009).

Opinion

ORDER

Joseph Kaye filed suit against Michael D’Amato, Julilly Kohler, Lincoln Fowler, Shirley Ferguson, and Lisa Christopher-son, alleging violations of the Racketeer [708]*708Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(b)-(d), and its state law counterpart, the Wisconsin Organized Crime Control Act (“WOCCA”), Wis. Stat. §§ 946.80-88 (2005). Kaye, an attorney and real estate developer, claims he was wrongfully denied the opportunity to purchase a certain parcel of land owned by the City of Milwaukee because of Defendants’ participation in an illicit land swap agreement. He also alleges, in connection with this questionable exchange of land, that Defendants conspired to rig a neighborhood association election in order to maintain control over decisions regarding the development of land in Milwaukee’s East Village Neighborhood. The district court granted Defendants’ motion to dismiss for failure to state a cause of action and imposed sanctions under Federal Rule of Civil Procedure 11. Kaye v. D'Amato, 2008 WL 5268746 (E.D.Wis. Dec.18, 2008). Kaye appeals both orders.

Because we And that Kaye cannot satisfy RICO’s continuity requirement, we AFFIRM the district court’s orders dismissing the complaint and imposing sanctions.

I. Background

Milwaukee’s Department of City Development (“DCD”) and its two sub-departments, the City Planning Commission (“CPC”) and the Redevelopment Authority of the City of Milwaukee (“RACM”), handle decisions regarding city-owned real estate. All matters administered by the DCD and its sub-departments, including zoning changes or exemptions, blight designations, and sales of city-owned land, require the approval of the Common Council’s sub-committee for Zoning, Neighborhoods, and Development (“ZND”). Development decisions in Milwaukee’s Third Aldermanic District, called the East Village Neighborhood, require the additional endorsement of the East Village Association (“EVA”).

Defendants held seats on the boards of these entities: Kohler was a Commissioner at the CPC; Fowler was a Commissioner at the RACM; Ferguson and Christopher-son were directors of the EVA; and D’Am-ato was both the alderman of the Third Aldermanic District and the chairman of the ZND. Kaye alleges that Defendants’ positions of authority on these boards and their collaboration with each other led to their control over the DCD and EVA, which, in turn, allowed them to control the sales and land development decisions in the East Village Neighborhood.

A. The Land Sales

In March 2004, Kaye attempted to purchase a city-owned parcel of land called Kane Place, which is located in the East Village Neighborhood. He alleges the RACM and DCD refused to sell him Kane Place because the land had been promised to Kohler and had been held for her by the DCD, tax free, since 2000. According to Kaye, his proposal for the land was “better” and $500 higher than Kohler’s. Kaye contends that the CPC and ZND improperly declared Kane Place blighted and conveyed it to the RACM in order to privately sell it to Kohler. Kohler eventually acquired Kane Place, and various benefits associated with the land, after receiving the required approval of Defendants acting in their official positions.

Kaye alleges that, contemporaneous with the sale of Kane Place to Kohler, the CPC sold another city-owned property, Humboldt Boulevard, in a private sale to a company owned by Fowler. Kaye alleges the property was sold to Fowler despite the existence of a $250,000 bid from a competing developer who had already secured financing and invested money in redevelopment plans. Kaye further alleges that the DCD stopped the sale to this [709]*709developer in order to sell the property to Fowler for $10,000.

At some point, Kaye complained publicly about D’Amato’s involvement in selling city-owned land to Kohler. As a result, Kaye alleges that D’Amato publicly announced at a June 11, 2004 park dedication that Kaye was “blacklisted” from buying city land in the future. Kaye believes the goal of the public comment was to deter Kaye from any further public criticism of D’Amato.

B. The EVA Ordinance and Election

In addition to improperly selling and financing city-owned property, Kaye alleges Defendants engaged in misconduct stemming from the enactment of a zoning ordinance in the East Village Neighborhood. D’Amato and Kohler worked with EVA directors to enact the Conservation Overlay District Ordinance (“the Ordinance”), a restrictive historical preservation zoning ordinance governing the East Village Neighborhood, which prohibits rep-latting lots or renovating or building homes that look dissimilar from the lots and houses around them. East Village residents who opposed the ordinance spoke against it at a June 8, 2004 EVA meeting.

Tensions surrounding the Ordinance continued, and in an undated incident, D’Amato allegedly removed a “No Overlay District Aid. D’Amato” sign from Ordinance opposition spokesperson Jill Bon-dar’s yard, followed up with a telephone message informing her that he had taken the sign, and told her the Department of Public Works, the division of the City that employs Bondar, was looking for whomever posted the sign. Kaye alleges D’Amato aeted with the intent to intimidate or threaten Bondar in order to prevent her from protesting the EVA’s and D’Amato’s actions with respect to the Ordinance.

In the next EVA Board election, property owners who disapproved of the incumbent EVA directors supported their preferred candidates. Kaye alleges that Kohler, D’Amato, Ferguson and Christo-pherson fraudulently schemed via e-mail to have their own candidates elected over the objection of the majority. The alleged purpose of this scheme was to ensure that D’Amato and Kohler maintained control of the EVA, which would allow them to continue favorable treatment to preferred developers. The alleged scheme was executed by changing the voting method from the simple majority vote required by the EVA bylaws, to a single transferable voting method. To change the voting method, Kaye alleges that Ferguson sent a single e-mail stating: ‘We need to vote in this order for At Large nominations:! Mark, 2 Todd, 3 Ginger, 4 Norbert — do not deviate from that order. DO NOT vote for anyone else.” He also alleges that the neighborhood association was not informed of the new voting method until minutes before the election.

The new neighborhood association’s inaugural meeting was held on November 2, 2005. Although the meeting was announced as a public meeting to address matters of public concern and was held in a public building, three Milwaukee police officers and Ferguson’s son allegedly stood at the entrance of the building in order to keep unidentified “disfavored citizens” from entering the meeting. Kaye contends that the officers threatened these unidentified residents with arrest if they tried to enter the meeting. He further alleges that D’Amato’s aide, Sam Rowen, was witness to the incident.

Kaye makes numerous other allegations, but they either are not relevant under his RICO or WOCCA claims, do not implicate any Defendants, or do not evidence predicate acts.

[710]*710C. Procedural History

On September 13, 2005, Kaye filed a complaint against Defendants alleging RICO and WOCCA violations.

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Bluebook (online)
357 F. App'x 706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaye-v-damato-ca7-2009.