Rene Ortiz Villafane v. Louis A. Segarra, Individually and Doing Business as Aaa Customs Brokers, and His Wife, Jane Doe

First Circuit

Rene Ortiz Villafane v. Louis A. Segarra, Individually and Doing Business as Aaa Customs Brokers, and His Wife, Jane Doe

797 F.2d 1

CourtCourt of Appeals for the First Circuit

DecidedJuly 17, 1986

Docket85-1995

StatusPublished

Cited by98 cases

This text of 797 F.2d 1 (Rene Ortiz Villafane v. Louis A. Segarra, Individually and Doing Business as Aaa Customs Brokers, and His Wife, Jane Doe) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rene Ortiz Villafane v. Louis A. Segarra, Individually and Doing Business as Aaa Customs Brokers, and His Wife, Jane Doe, 797 F.2d 1 (1st Cir. 1986).

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PER CURIAM.

This is an appeal by plaintiff-appellant, Rene Ortiz-Villafane, from the dismissal of his complaint for lack of jurisdiction. The complaint alleges federal jurisdiction under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968. We agree with the district court that the complaint fails to state a claim under RICO. Nowhere in the complaint is it alleged that the defendant committed any of the predicate acts enumerated in § 1961(1), nor is there any allegation of a pattern of racketeering activity by the defendant. Paragraph 8 of the complaint, which purportedly sets forth the factual basis for jurisdiction, states:

8. Without going into unnecessary detail describing at this time Defendant Segarra’s fraudulent scheme executed during 1981, for jurisdictional purposes (under the RICO Act) we understand to be relevant the locking out of Plaintiff from his own business, denying him access to the new offices which were surreptitiously leased by Defendant Segarra, the keeping of and hiding of files regarding accounts and clients of the partnership belonging to both parties, misusing for Defendant’s own benefit monies of the partnership as well as of clients, the changing of bank accounts, the communicating to clients of supposedly agreed-to changes; the bleeding of the partnership’s income and profits for his (Defendant’s) exclusive benefit, funnelling business for himself by holding off potential business income for extended periods of time, until Defendant Segarra’s scheme to illegally remove Plaintiff from the business without his knowledge was completed.

[2]*2As the Supreme Court has pointed out, a violation of § 1962(c) “requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The plaintiff, of course, must allege each of these elements to state a claim.” Sedima v. Imrex Company, Inc., — U.S. —,---, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). No such allegations have been made in the complaint. And quoting § 1962(b)(c) and (d) of RICO, in paragraph 14 of the complaint, does not fill the gaps in the pleadings. The broad construction given RICO by the Supreme Court in Sedima is not a license to file a complaint asserting only generally that a defendant has violated RICO without the factual allegations necessary to implicate the pertinent provisions of the statute.

There is another matter that requires comment. We are disturbed by what can only be characterized as blatant misrepresentations in appellant’s brief. At page 9, the brief states: “The district court entered summary judgment dismissing the Complaint, even though Appellant had been allowed to take no discovery at all.” The record shows that on July 19, 1983, the defendant filed a motion for a protective order against further discovery by the plaintiff and that on August 29, 1983, the motion was denied. The record also shows that on October 18, 1983, the defendant filed answers to sixty-nine interrogatories served on him by the plaintiff.

On page 11, appellant’s brief states: “The district court should have, at the very least, allowed Ortiz-Villafane to amend to allege the fact to be presented at a hearing on the motion to dismiss, particularly once discovery would have been allowed.” This sentence is preceded by a section heading stating: “The Court Did Not Allow Amendment." Although appellant states on page 12 of his brief that “plaintiff moved to amend three years ago after commencement of the case, and over a year after filing its notice for trial,” we have been unable to find in the record any motion to amend the complaint.

We find that this appeal is frivolous and pursuant to Federal Rule of Appellate Procedure 38 award defendant-appellee attorney’s fees and double costs, such to be paid by the attorney for the appellant. Our decision to assess the attorney personally is because he drew the complaint, he is responsible for determining what is in the record, and he wrote the brief.

Affirmed.

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PER CURIAM.

This is an appeal by plaintiff-appellant, Rene Ortiz-Villafane, from the dismissal of his complaint for lack of jurisdiction. The complaint alleges federal jurisdiction under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968. We agree with the district court that the complaint fails to state a claim under RICO. Nowhere in the complaint is it alleged that the defendant committed any of the predicate acts enumerated in § 1961(1), nor is there any allegation of a pattern of racketeering activity by the defendant. Paragraph 8 of the complaint, which purportedly sets forth the factual basis for jurisdiction, states:

8. Without going into unnecessary detail describing at this time Defendant Segarra’s fraudulent scheme executed during 1981, for jurisdictional purposes (under the RICO Act) we understand to be relevant the locking out of Plaintiff from his own business, denying him access to the new offices which were surreptitiously leased by Defendant Segarra, the keeping of and hiding of files regarding accounts and clients of the partnership belonging to both parties, misusing for Defendant’s own benefit monies of the partnership as well as of clients, the changing of bank accounts, the communicating to clients of supposedly agreed-to changes; the bleeding of the partnership’s income and profits for his (Defendant’s) exclusive benefit, funnelling business for himself by holding off potential business income for extended periods of time, until Defendant Segarra’s scheme to illegally remove Plaintiff from the business without his knowledge was completed.

[2]*2As the Supreme Court has pointed out, a violation of § 1962(c) “requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The plaintiff, of course, must allege each of these elements to state a claim.” Sedima v. Imrex Company, Inc., — U.S. —,---, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). No such allegations have been made in the complaint. And quoting § 1962(b)(c) and (d) of RICO, in paragraph 14 of the complaint, does not fill the gaps in the pleadings. The broad construction given RICO by the Supreme Court in Sedima is not a license to file a complaint asserting only generally that a defendant has violated RICO without the factual allegations necessary to implicate the pertinent provisions of the statute.

There is another matter that requires comment. We are disturbed by what can only be characterized as blatant misrepresentations in appellant’s brief. At page 9, the brief states: “The district court entered summary judgment dismissing the Complaint, even though Appellant had been allowed to take no discovery at all.” The record shows that on July 19, 1983, the defendant filed a motion for a protective order against further discovery by the plaintiff and that on August 29, 1983, the motion was denied. The record also shows that on October 18, 1983, the defendant filed answers to sixty-nine interrogatories served on him by the plaintiff.

On page 11, appellant’s brief states: “The district court should have, at the very least, allowed Ortiz-Villafane to amend to allege the fact to be presented at a hearing on the motion to dismiss, particularly once discovery would have been allowed.” This sentence is preceded by a section heading stating: “The Court Did Not Allow Amendment." Although appellant states on page 12 of his brief that “plaintiff moved to amend three years ago after commencement of the case, and over a year after filing its notice for trial,” we have been unable to find in the record any motion to amend the complaint.

We find that this appeal is frivolous and pursuant to Federal Rule of Appellate Procedure 38 award defendant-appellee attorney’s fees and double costs, such to be paid by the attorney for the appellant. Our decision to assess the attorney personally is because he drew the complaint, he is responsible for determining what is in the record, and he wrote the brief.

Affirmed.

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797 F.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rene-ortiz-villafane-v-louis-a-segarra-individually-and-doing-business-ca1-1986.

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