William Spencer and Spencer Brothers LLC v. Michael Doran, et al.
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William Spencer and Spencer Brothers LLC
v. Civil No. 18-cv-1191-LM Opinion No. 2020 DNH 147 Michael Doran, et al.
O R D E R
Plaintiffs William Spencer (“William”) and Spencer Brothers
LLC (“Spencer Brothers”) filed a second amended complaint
bringing two claims against five current and former employees of
the New Hampshire State Police (collectively “the state
defendants”), three employees of the Federal Motor Carriers
Safety Administration (“FMCSA”), and two employees of the United
States Department of Transportation (collectively “the federal
defendants”). Plaintiffs bring substantive and procedural due
process claims under 42 U.S.C. § 1983 and a claim under the
civil remedy provision of the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, 18 U.S.C. § 1964(c), each arising
from the circumstances of a traffic stop and subsequent
investigations of Spencer Brothers’ business practices. The
state and federal defendants move separately under Federal Rule
of Civil Procedure 12(b)(6) to dismiss the claims against them.
Doc. nos. 36 & 37. In this order, the court will address the motion to dismiss filed by the state defendants Michael Doran,
William Burke, Kenneth Chaput, Steven Kace, and David Hilts.1
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
On a motion to dismiss, the court ordinarily must not
consider any documents not attached to the complaint or not
expressly incorporated therein. See Ironshore Specialty Ins.
Co. v. United States, 871 F.3d 131, 135 (1st Cir. 2017). There
are, however, narrow exceptions to this rule allowing the court
to consider documents the authenticity of which is not disputed
1 Plaintiffs concede that state defendant David Hilts should be dismissed from this action. Doc. no. 44 at 15. Accordingly, the court does not address any factual or legal allegations directed at defendant Hilts.
2 by the parties, official public records, documents central to
plaintiffs’ claims, or documents sufficiently referred to in the
complaint. Id. The official public records exception includes
documents that the court could take judicial notice of under
Federal Rule of Evidence 201, such as records of administrative
decisions. See Freeman v. Town of Hudson, 714 F.3d 29, 36-37
(1st Cir. 2013); O’Hara v. Diageo-Guinness, USA, Inc., 306 F.
Supp. 3d 441, 457 (D. Mass. 2018).
In support of their objections to both motions, plaintiffs
submitted an administrative order issued by the Department of
Transportation. Doc. nos. 43-1 & 44-1. Similarly, the federal
defendants submitted in support of their motion to dismiss
certain administrative and judicial orders and pleadings filed
in those proceedings. Doc. nos. 36-2 through 36-9. Plaintiffs
do not object to the court’s consideration of these materials or
contest their authenticity. In fact, the second amended
complaint refers to and relies upon certain of the official
public records submitted by the federal defendants—namely an
out-of-service order issued by FMCSA. See doc. no. 36-2 at 102-
04. Accordingly, the court will consider the official public
records submitted in support of all parties’ pleadings in
deciding the instant motion to dismiss. But the court relies on
these official public records only to a limited extent: to
establish the existence of those administrative and judicial
3 proceedings and their legal effect. See O’Hara, 306 F. Supp. 3d
at 457. The court does not, however, rely on the facts as
recited in any of those orders, rulings, pleadings, or exhibits.
See id.
BACKGROUND
I. Factual Background
The following facts are drawn from the second amended
complaint and from the existence of official public records
attached to the parties’ pleadings as explained above. Spencer
Brothers is a family-owned business located in Laconia, New
Hampshire that removes, installs, cleans, transports, and
properly disposes of cleaned and purged oil tanks and various
other tanks. Spencer Brothers employs William as its only
driver. William holds no ownership interest in the company.
On April 29, 2016, William was driving the company’s truck.
The truck held four tanks containing a small amount of rusty
water, one properly cut, cleaned, and purged oil tank, one
discarded oil-fired hot water tank, and five five-gallon pails.
The truck did not contain hazardous materials.
New Hampshire State Police (“NHSP”) Trooper Michael Doran
effected a traffic stop of William’s vehicle. After examining
his license and registration, Trooper Doran informed William in
a hostile manner that he believed William was operating a
4 commercial motor vehicle. William disagreed based on the weight
of the truck. William made a phone call to a state trooper he
knew in an attempt to deescalate the situation. In response,
Trooper Doran told William not to make any more phone calls and
threatened to arrest William and take away his commercial
driver’s license.
Trooper Doran then demanded that William open the rear door
of the truck. William complied and the trooper took photographs
of the interior of the vehicle. At some point during this
interaction, Trooper Doran accused William of unlawfully
transporting hazardous materials or “hazmat.” Ultimately,
Trooper Doran informed William that the truck was ordered “out
of service” and that it would be towed from the scene. He also
issued William a “fix-it” ticket requiring certain repairs to
the truck.
William hired Extreme Auto to make the repairs necessitated
by the “fix-it” ticket. On May 13, 2016, Trooper Doran and
Kenneth Chaput, another state employee, visited Extreme Auto to
inspect the premises.2 Plaintiffs contend that, during this
2 The second amended complaint alleges that Chaput is an individual employed by the NHSP. Doc. no. 30 at ¶ 6. It also alleges that Chaput was “misidentified” as a NHSP trooper and that “Chaput is an automotive equipment inspector with the [New Hampshire] Department of Safety.” Id. at ¶ 52. In either case, the second amended complaint alleges that Chaput is a New Hampshire state employee.
5 inspection, Doran and Chaput damaged property at Extreme Auto
and harassed its owner in an effort to harass and retaliate
against plaintiffs.
Plaintiffs contend that this campaign of harassment
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William Spencer and Spencer Brothers LLC
v. Civil No. 18-cv-1191-LM Opinion No. 2020 DNH 147 Michael Doran, et al.
O R D E R
Plaintiffs William Spencer (“William”) and Spencer Brothers
LLC (“Spencer Brothers”) filed a second amended complaint
bringing two claims against five current and former employees of
the New Hampshire State Police (collectively “the state
defendants”), three employees of the Federal Motor Carriers
Safety Administration (“FMCSA”), and two employees of the United
States Department of Transportation (collectively “the federal
defendants”). Plaintiffs bring substantive and procedural due
process claims under 42 U.S.C. § 1983 and a claim under the
civil remedy provision of the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, 18 U.S.C. § 1964(c), each arising
from the circumstances of a traffic stop and subsequent
investigations of Spencer Brothers’ business practices. The
state and federal defendants move separately under Federal Rule
of Civil Procedure 12(b)(6) to dismiss the claims against them.
Doc. nos. 36 & 37. In this order, the court will address the motion to dismiss filed by the state defendants Michael Doran,
William Burke, Kenneth Chaput, Steven Kace, and David Hilts.1
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
On a motion to dismiss, the court ordinarily must not
consider any documents not attached to the complaint or not
expressly incorporated therein. See Ironshore Specialty Ins.
Co. v. United States, 871 F.3d 131, 135 (1st Cir. 2017). There
are, however, narrow exceptions to this rule allowing the court
to consider documents the authenticity of which is not disputed
1 Plaintiffs concede that state defendant David Hilts should be dismissed from this action. Doc. no. 44 at 15. Accordingly, the court does not address any factual or legal allegations directed at defendant Hilts.
2 by the parties, official public records, documents central to
plaintiffs’ claims, or documents sufficiently referred to in the
complaint. Id. The official public records exception includes
documents that the court could take judicial notice of under
Federal Rule of Evidence 201, such as records of administrative
decisions. See Freeman v. Town of Hudson, 714 F.3d 29, 36-37
(1st Cir. 2013); O’Hara v. Diageo-Guinness, USA, Inc., 306 F.
Supp. 3d 441, 457 (D. Mass. 2018).
In support of their objections to both motions, plaintiffs
submitted an administrative order issued by the Department of
Transportation. Doc. nos. 43-1 & 44-1. Similarly, the federal
defendants submitted in support of their motion to dismiss
certain administrative and judicial orders and pleadings filed
in those proceedings. Doc. nos. 36-2 through 36-9. Plaintiffs
do not object to the court’s consideration of these materials or
contest their authenticity. In fact, the second amended
complaint refers to and relies upon certain of the official
public records submitted by the federal defendants—namely an
out-of-service order issued by FMCSA. See doc. no. 36-2 at 102-
04. Accordingly, the court will consider the official public
records submitted in support of all parties’ pleadings in
deciding the instant motion to dismiss. But the court relies on
these official public records only to a limited extent: to
establish the existence of those administrative and judicial
3 proceedings and their legal effect. See O’Hara, 306 F. Supp. 3d
at 457. The court does not, however, rely on the facts as
recited in any of those orders, rulings, pleadings, or exhibits.
See id.
BACKGROUND
I. Factual Background
The following facts are drawn from the second amended
complaint and from the existence of official public records
attached to the parties’ pleadings as explained above. Spencer
Brothers is a family-owned business located in Laconia, New
Hampshire that removes, installs, cleans, transports, and
properly disposes of cleaned and purged oil tanks and various
other tanks. Spencer Brothers employs William as its only
driver. William holds no ownership interest in the company.
On April 29, 2016, William was driving the company’s truck.
The truck held four tanks containing a small amount of rusty
water, one properly cut, cleaned, and purged oil tank, one
discarded oil-fired hot water tank, and five five-gallon pails.
The truck did not contain hazardous materials.
New Hampshire State Police (“NHSP”) Trooper Michael Doran
effected a traffic stop of William’s vehicle. After examining
his license and registration, Trooper Doran informed William in
a hostile manner that he believed William was operating a
4 commercial motor vehicle. William disagreed based on the weight
of the truck. William made a phone call to a state trooper he
knew in an attempt to deescalate the situation. In response,
Trooper Doran told William not to make any more phone calls and
threatened to arrest William and take away his commercial
driver’s license.
Trooper Doran then demanded that William open the rear door
of the truck. William complied and the trooper took photographs
of the interior of the vehicle. At some point during this
interaction, Trooper Doran accused William of unlawfully
transporting hazardous materials or “hazmat.” Ultimately,
Trooper Doran informed William that the truck was ordered “out
of service” and that it would be towed from the scene. He also
issued William a “fix-it” ticket requiring certain repairs to
the truck.
William hired Extreme Auto to make the repairs necessitated
by the “fix-it” ticket. On May 13, 2016, Trooper Doran and
Kenneth Chaput, another state employee, visited Extreme Auto to
inspect the premises.2 Plaintiffs contend that, during this
2 The second amended complaint alleges that Chaput is an individual employed by the NHSP. Doc. no. 30 at ¶ 6. It also alleges that Chaput was “misidentified” as a NHSP trooper and that “Chaput is an automotive equipment inspector with the [New Hampshire] Department of Safety.” Id. at ¶ 52. In either case, the second amended complaint alleges that Chaput is a New Hampshire state employee.
5 inspection, Doran and Chaput damaged property at Extreme Auto
and harassed its owner in an effort to harass and retaliate
against plaintiffs.
Plaintiffs contend that this campaign of harassment
continued when Trooper Doran requested that FMCSA investigate
Spencer Brothers. On June 13, 2016, FMCSA employees Douglas
Wood and Christopher Gray inspected and photographed Spencer
Brothers’ business location in Laconia. FMCSA agents also
questioned Spencer Brothers’ competitors and customers and
informed them that Spencer Brothers was under investigation,
thereby causing embarrassment and tarnishing its reputation in
the business community.
Following the FMCSA agents’ inspection of Spencer Brothers’
property, one of the agents called NHSP Sergeant William Burke
to report what they had found. Sometime thereafter, Sergeant
Burke filed a purportedly false report to the New Hampshire
Department of Environmental Services (“NHDES”). He reported to
NHDES that the Spencer Brothers’ office smelled of petroleum and
that the company was rinsing petroleum tanks in the garage and
discharging the rinsate into a floor drain. A NHDES employee
subsequently inspected the Spencer Brothers premises and
determined that Burke’s complaints about Spencer Brothers were
“unfounded.”
6 Also as a result of the FMCSA inspection of Spencer
Brothers’ premises, on August 3, 2016, FMCSA sent Spencer
Brothers a Proposed Safety Rating. Doc. no. 44-1 at 2; see 49
C.F.R. § 385.11. That Proposed Safety Rating notified Spencer
Brothers that FMCSA intended to give it an “Unsatisfactory”
safety rating, based on several alleged regulatory violations,
including two violations related to hazardous materials. On
August 11, 2016, Spencer Brothers filed a petition for
administrative review of the Proposed Safety Rating with the
FMCSA that objected to the “Unsatisfactory” rating. See 49
C.F.R. § 385.15. On September 16, 2016, the FMCSA Assistant
Administrator issued a final order denying Spencer Brothers’
petition for administrative review of the Proposed Safety
Rating. As a result of this denial, the “Unsatisfactory” safety
rating became effective on September 18, 2016, and resulted in
an “out-of-service order” directing Spencer Brothers to cease
operating any commercial motor vehicles in interstate or
intrastate commerce. Doc. no. 36-2 at 102-03.3 Spencer Brothers
appealed FMCSA’s assignment of the “Unsatisfactory” safety
3 After FMCSA issued Spencer Brothers the Proposed Safety Rating but before the final order affirming the “Unsatisfactory” safety rating, FMCSA issued Spencer Brothers a Notice of Claim that initiated a separate civil penalty proceeding. That Notice of Claim was premised on the same facts underlying the “Unsatisfactory” safety rating. See 49 U.S.C. § 521(b); 49 C.F.R pt. 386.
7 rating to the United States Court of Appeals for the First
Circuit, which dismissed the appeal on procedural grounds. See
doc. no. 36-9.
On November 2, 2016, William attended a hearing at the New
Hampshire Department of Motor Vehicles regarding whether Spencer
Brothers’ state registration privileges should be suspended or
revoked due to the FMCSA’s out-of-service order. Retired NHSP
Trooper Stephen Kace represented the state at that hearing.
After the hearing, William was driving the company truck to
a work appointment and noticed that he was being tailgated by a
truck. William eventually pulled off the road and the truck
following him pulled over behind him. Trooper Kace exited the
truck and informed William that he was “under arrest for
operating an ‘out of service’ vehicle.” Doc. no. 30 at ¶ 137.
William explained to Trooper Kace that the truck he was
operating was legal and not under an “out-of-service” order.
William then left the scene. Plaintiffs allege that Trooper
Doran then pursued William in his police cruiser.
Throughout the course of the above-described events,
William made numerous complaints to governmental agencies,
requested investigations into alleged misconduct, and attempted
to enlist the help of various governmental institutions to put
an end to the alleged campaign of harassment. For example,
William initiated three complaints to the NHSP Internal Affairs
8 and Standards and Practices Department about Trooper Doran’s
conduct during the traffic stop and Sergeant Burke’s alleged
false report to NHDES. The NHSP never interviewed William
regarding these complaints and determined each complaint to be
“unfounded.” William also sought help from the Federal Bureau
of Investigation, Governor Sununu’s Office of Citizen Services,
and the New Hampshire Office of the Attorney General—all to no
avail.
II. Procedural Background
Unsatisfied with the response to his complaints and
requests for investigations into the alleged misconduct of state
and federal employees, William filed this litigation pro se on
behalf of himself and Spencer Brothers in December 2018. The
original complaint alleged 16 claims under 42 U.S.C. § 1983
against the NHSP and certain of its current and former
employees, the New Hampshire Office of Attorney General and two
of its employees, the FMCSA and three of its employees, and the
United States Department of Transportation and two of its
employees. These claims arose from the same traffic stop and
set of events that form the basis of the second amended
complaint.
Under Local Rule 83.6(c), a corporation, unincorporated
association, or trust may not appear in any action or proceeding
9 pro se. LR 83.6(c). Consequently, William moved to voluntarily
dismiss without prejudice Spencer Brothers from the suit and the
court granted that request. Doc. nos. 13 & 14.
In response to the state defendants’ first motion to
dismiss, the court dismissed with prejudice the claims against
the NHSP, the New Hampshire Office of the Attorney General and
the individual state defendants in their official capacities on
the basis of sovereign immunity. Doc. no. 14 at 2-3, 6. With
respect to the claims against the individual state defendants in
their individual capacities, the court dismissed those claims
without prejudice and granted William leave to file an amended
complaint. Doc. no. 14 at 4-6.
William, still proceeding pro se, filed a first amended
complaint. The state defendants again moved to dismiss. The
court granted the state defendants’ motion, concluding that the
amended complaint failed to comply with the pleading
requirements of Federal Rule of Civil Procedure 8(a). Doc. no.
24. The court dismissed the amended complaint without
prejudice, affording William a “final chance to file a complaint
that states a cognizable claim in compliance with Rule 8(a) and
the court’s rulings.” Doc. no. 24 at 6.
In September 2019, William and Spencer Brothers—by that
time represented by counsel—filed the second amended complaint.
Because it had retained counsel, Spencer Brothers sought to
10 rejoin the suit via the second amended complaint. The court
held a telephone conference with counsel for all parties
regarding Spencer Brothers’ reinstatement as a plaintiff.
Neither group of defendants objected to Spencer Brothers’
reinstatement and the court vacated the prior voluntary
dismissal. Doc. no. 52.
The second amended complaint asserts two claims against all
defendants. Count I of the second amended complaint alleges a
claim under 42 U.S.C. § 1983 that all defendants violated
plaintiffs’ substantive and procedural due process rights under
the Fifth and Fourteenth Amendments to the United States
Constitution. Count II alleges a civil RICO claim against all
defendants based on their alleged coordinated efforts to injure
plaintiffs’ reputation and business due to a “personal vendetta”
against plaintiffs. Doc. no. 30 at ¶ 189.
DISCUSSION
The state defendants move to dismiss the two counts
asserted against them under Federal Rule of Civil Procedure
12(b)(6), arguing that both counts fail to state a claim upon
which relief could be granted. The court addresses each claim
below.
11 I. Count I: Substantive and Procedural Due Process Violations4
Plaintiffs bring due process claims under 42 U.S.C. § 1983,
“which supplies a private right of action against a person who,
under color of state law, deprives another of rights secured by
the Constitution or by federal law.” Mead v. Indep. Ass’n, 648
F.3d 226, 231 (1st Cir. 2012) (internal quotation marks
omitted). “In order to make out a viable claim under § 1983, a
plaintiff must show both that the conduct complained of
transpired under color of state law and that a deprivation of
federally secured rights ensued.” Id. (internal quotation marks
omitted). There appears to be no dispute here that the state
defendants’ alleged conduct was perpetrated under color of state
law. The court therefore trains its focus on whether plaintiffs
have adequately alleged a deprivation of a federally secured
right.
Plaintiffs allege that the state defendants deprived them
of their substantive and procedural due process rights. The
Fourteenth Amendment to the United States Constitution prohibits
a state from depriving any person of “life, liberty, or
It is unclear from the drafting of Count I whether it is 4
asserted on behalf of only William or both William and Spencer Brothers. Compare doc. no. 30 at ¶ 176, with ¶ 179. During a telephone conference with counsel for all parties, plaintiffs’ counsel clarified that Count I is asserted on behalf of both plaintiffs. The court will therefore treat Count I as advanced on behalf of both William and Spencer Brothers.
12 property, without due process of law.” U.S. Const. amend. XIV,
§ 1. “The touchstone of this due process guarantee is the
protection of the individual against arbitrary action of
government.” Depoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.
2005) (internal quotation marks omitted). The Due Process
Clause has both substantive and procedural components. Id. at
118. The substantive due process guarantee “safeguards
individuals against certain offensive government action,
notwithstanding that facially fair procedures are used to
implement them.” Id. The procedural aspect of the due process
guarantee “ensures that government, when dealing with private
persons, will use fair procedures.” Id. The court will address
plaintiffs’ substantive and procedural due process claims
separately.
A. Substantive Due Process Claim
To set out a substantive due process claim, a plaintiff
challenging specific acts of state officials must sufficiently
allege that: 1) the officials’ “acts were so egregious as to
shock the conscience”; and (2) that the acts “deprived him of a
protected interest in life, liberty, or property.” Pagan v.
Calderon, 448 F.3d 16, 32 (1st Cir. 2006); see also DePoutot,
424 F.3d at 118. The question whether “the challenged conduct
shocks the contemporary conscience is a threshold matter that
13 must be resolved before a constitutional right to be free from
such conduct can be recognized.” DePoutot, 424 F.3d at 118.
The court will therefore first examine whether plaintiffs have
adequately alleged conduct by the state defendants that was so
egregious as to shock the conscience.
The First Circuit has described the conscience-shocking
standard as “admittedly imprecise.” Gonzalez-Fuentes v. Molina,
607 F.3d 864, 880 (1st Cir. 2010) (internal quotation marks
omitted). Nevertheless, the First Circuit has established
certain guideposts to direct the analysis. See id. at 880-81.
On one end of the spectrum, it is well established that
“negligence, without more, is simply insufficient to meet the
conscience-shocking standard.” Id. at 881 (internal quotation
marks omitted). On the other end, allegations that state
officials had “an intent to injure in some way unjustifiable by
any government interest is likely sufficient” to meet the
conscience-shocking threshold. Id. (internal quotation marks
and brackets omitted). Between these two poles are cases that
present “closer calls.” Id. (internal quotation marks omitted).
Ultimately, determining whether official conduct is
conscience-shocking is necessarily a fact-specific inquiry that
must be considered in the unique context and circumstances in
which the conduct occurred. Cruz-Erazo v. Rivera-Montanez, 212
F.3d 617, 623 (1st Cir. 2000); see also Gonzalez-Fuentes, 607
14 F.3d at 881. Though a highly fact-specific inquiry, the shocks-
the-conscience threshold is necessarily a “high one,” to prevent
the Constitution from being demoted to a “font of tort law.”
Drake v. Town of New Bos., No. 16-CV-470-SM, 2017 WL 2455045, at
*13 (D.N.H. June 6, 2017) (quoting County of Sacremento v.
Lewis, 523 U.S. 833, 847 n.8 (1998)).
Although each case must be judged on its own facts,
examples of successful substantive due process claims are
informative. The First Circuit has collected representative
cases in which plaintiffs established a viable substantive due
process claim:
Among the cases in which plaintiffs have prevailed are those involving a student blinded in one eye when a coach intentionally struck him in the head with a metal weight; a teacher’s fabrication of sexual abuse charges against a father, resulting in loss of contact with his child for three years; rape by a police officer in connection with a car stop; a 57–day unlawful detention in the face of repeated requests for release, police officers aiding a third-party in shooting the plaintiff; an intentional assault by a police officer who struck a pretrial detainee twice in the head and threatened to kill him; and a principal forcing his way into a room where a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping her.
Cummings v. McIntire, 271 F.3d 341, 346 (1st Cir. 2001)
(citations and footnote omitted); see also Harrington v. Almy,
977 F.2d 37, 44 (1st Cir. 1992) (concluding plaintiff’s
substantive due process claim survived summary judgment where he
claimed that defendants violated his rights by conditioning his
15 reinstatement as a police officer on his submission to a
psychological test in which he would have a gauge strapped to
his genitalia to monitor sexual arousal). As illustrated by the
above examples, official conduct is more likely to meet the
“conscience-shocking” threshold if it involves highly physically
intrusive conduct, use of physical force or violence, or
interference with a protected relationship (e.g., a parent-child
relationship). See Cruz-Ezaro, 212 F.3d at 622, 624; Pratt v.
Town of Windham, No. CIV 03-321-JD, 2004 WL 4957134, at *3
(D.N.H. Oct. 13, 2004).
Accepting plaintiffs’ allegations as true and drawing all
inferences in their favor, the state defendants’ alleged
misconduct here does not involve any threats of harm or
violence, use of physical force, or interference with a
protected relationship that would rise to the level of
conscience-shocking behavior. Plaintiffs allege a campaign of
harassment whereby Troopers Doran and Kace unlawfully stopped
William, treated him in a hostile manner, accused him of
unlawful activity, and threatened his arrest and suspension of
his commercial driver’s license. The state defendants allegedly
devised this harassment to undermine Spencer Brothers’ ability
to operate and to sully its reputation. Further, the state
defendants made false reports to state and federal
administrative bodies to interfere with Spencer Brothers’
16 operations and harm its reputation. Sergeant Burke made a false
report to NHDES which painted Spencer Brothers in a negative
light. And Trooper Doran allegedly trumped up a claim that
William was unlawfully transporting hazmat and reported that to
FMCSA, which ultimately resulted in a federal inspection of the
premises and an out-of-service order. Drawing all inferences in
plaintiffs’ favor, these allegations paint a picture of
deliberate misuse of official authority through verbal bullying,
false claims, and false reporting to harass and intimidate
William and cause economic and reputational harm to Spencer
Brothers.
The First Circuit has expressly left open the question
whether verbal harassment and intimidation as alleged in this
case might, under appropriate circumstances, violate the
substantive due process guarantee. See Cruz-Ezaro, 212 F.3d at
622, 624. But, here, plaintiffs’ allegations fail to even rise
to the level of verbal harassment and intimidation that the
First Circuit has held does not meet the conscience-shocking
threshold.
In Cruz-Erazo, the First Circuit held that plaintiffs’
allegations of months of police harassment and intimidation did
not rise to the shocks-the-conscience level and therefore the
district court did not err when it concluded that plaintiffs
failed to state a valid claim under § 1983. See Cruz-Erazo, 212
17 F.3d at 623-24. In that case, one of the defendant police
officers began unlawfully occupying plaintiffs’ second home.
Id. at 618. When plaintiffs attempted to enlist law enforcement
to help remove defendant from the property, the officers were
unwilling to help because the complaint was against a fellow
officer. Id. Officers later insisted that the home actually
belonged to their fellow officer, not plaintiffs. Id. at 619.
Plaintiffs took matters into their own hands by changing the
locks at the property. Id. Subsequently, one of the
plaintiffs, Cruz-Ezaro, was charged with disturbing the peace
and burglary for entering her own property. Id. Defendant
police officers testified falsely against Cruz-Ezaro, leading to
her arrest on the burglary charge. Id. at 620. Plaintiffs also
experienced continuing harassment over a period of months,
including threatening phone calls and police cars driving by
their home every night. Id. at 619-20.
If the deliberate campaign of harassment and use of false
testimony to fabricate criminal charges against plaintiffs in
Cruz-Ezaro does not reach the shocks-the-conscience threshold,
plaintiffs’ allegations here must fall short. See also Frei v.
Town Of Holland, 212 F. App’x 4, 6 (1st Cir. 2007) (allegations
that defendants committed perjury, falsified documents, and
engaged in retaliatory action against plaintiff insufficient to
establish substantive due process claim); Michel v. Town of
18 Hampden, No. 10-CV-30213-MAP, 2012 WL 893740, at *2 (D. Mass.
Mar. 14, 2012) (plaintiff failed to meet shocks-the-conscience
standard with allegations that local police maliciously procured
arrest warrant, exaggerated situation to state police, illegally
searched plaintiff’s home, prosecuted him based on false
evidence, and made defamatory statements about him in the
media).
If true, plaintiffs’ allegations describe official
misconduct that is deplorable and inexcusable. That does not,
however, necessarily raise it to the level of conscience-
shocking required to make out a substantive due process claim.
See Cruz-Erazo, 212 F.3d at 618 (describing defendants’ alleged
conduct as “disgraceful” but concluding it did not sufficiently
“shock the conscience” to establish a substantive due process
claim). Because plaintiffs have failed to sufficiently allege
conduct by the state defendants that meets the shocks-the-
conscience threshold, the court concludes that the second
amended complaint does not state a viable substantive due
process claim against any of the state defendants. See
DePoutot, 424 F.3d at 118, 122.
B. Procedural Due Process Claim
Plaintiffs also claim that the state defendants violated
the procedural component of the Fourteenth Amendment’s Due
19 Process Clause. Under the Due Process Clause of the Fourteenth
Amendment, “certain substantive rights—life, liberty, and
property—cannot be deprived except pursuant to constitutionally
adequate procedures.” Garcia-Gonzalez v. Puig-Morales, 761 F.3d
81, 88 (1st Cir. 2014) (internal quotation marks omitted). In
order to properly plead a procedural due process violation, a
plaintiff must allege: (1) a protected liberty or property
interest; and (2) that the defendants, while acting under color
of state law, deprived him of that interest without
constitutionally adequate process. Id.; see also Rocket
Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 11 (1st Cir.
2013).
The second amended complaint alleges that the state
defendants deprived plaintiffs of their property and their
liberty interest in their right to pursue their chosen
profession.5 Specifically, plaintiffs explain in their objection
to the motion to dismiss that they were deprived of these
5 To the extent plaintiffs also intend to allege a deprivation of William’s liberty interest based on the state defendants’ alleged unlawful seizures of his person, that claim is more properly analyzed under the framework of the Fourth Amendment, not substantive due process. See Albright v. Oliver, 510 U.S. 266, 273 (1994); Doyle v. Falmouth Police Dep’t, No. 2:14-CV-259-JDL, 2015 WL 470715, at *5 (D. Me. Feb. 4, 2015). Because plaintiffs have not alleged or developed argument in support of such a Fourth Amendment violation, the court will not address it.
20 liberty and property interests because the out-of-service order
caused Spencer Brothers to shut down and William to lose his
employment. Though it is unclear from the pleadings, the court
will assume that “out-of-service order” refers both to Trooper
Doran’s instruction to William on April 29, 2016, that the
company truck was ordered “out of service” and to FMCSA’s
September 18, 2016 order that Spencer Brothers cease commercial
motor vehicle operations. The court assumes without deciding
that the fact that the out-of-service orders terminated Spencer
Brothers’ operations and William’s employment is sufficient to
establish the deprivation of a protected liberty or property
interest.6 Even assuming that the second amended complaint
6 Although the court assumes for the sake of argument that plaintiffs have adequately alleged a deprivation of a protected interest, the court makes two observations. First, the allegations that the out-of-service orders shut down Spencer Brothers and put William out of work are found only in the objection to the motion to dismiss; they are not included in the second amended complaint. Plaintiffs cannot amend the second amended complaint with facts raised only in their objection to the motion to dismiss. See Cass v. Airgas USA, LLC, No. 17-CV- 313-JD, 2018 WL 3682491, at *8 n.8 (D.N.H. Aug. 2, 2018). Second, the facts as alleged in the second amended complaint belie plaintiffs’ contention that the out-of-service orders halted Spencer Brothers’ operations and William’s employment. The second amended complaint contains multiple factual allegations indicating that William was still employed by Spencer Brothers and still conducting work on behalf of the company following both out-of-service orders. See, e.g., doc. no. 30 at ¶ 76 (on June 13, 2016, William was “away on a jobsite” when FMCSA agents called him to attend a meeting at the company premises), at ¶¶ 134-135 (on November 2, 2016, William was “travel[ing] toward his afternoon job appointment” when Trooper Kace began tailgating him), at ¶¶ 172(b)-(c) (in August
21 sufficiently alleges the deprivation of liberty and property
interests occasioned by the out-of-service orders, it is devoid
of allegations about what process plaintiffs were afforded
before or after the out-of-service orders issued, the
inadequacies of such process, and what process plaintiffs
contend they should have received.
“The basic guarantee of procedural due process is that,
before a significant deprivation of liberty or property takes
place at the state’s hands, the affected individual must be
forewarned and afforded an opportunity to be heard at a
meaningful time and in a meaningful manner.” Gonzalez-Droz v.
Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011) (internal
quotation marks omitted). It follows that, to establish the
second prong of a procedural due process claim (that the
deprivation occurred without constitutionally adequate process),
plaintiffs must at least describe the process afforded to them
in relation to the alleged deprivation, see Aponte-Torres v.
Univ. Of Puerto Rico, 445 F.3d 50, 56 (1st Cir. 2006), and
identify the failings of that process or describe the process
that was due to them, see Doe by Fein v. D.C., 93 F.3d 861, 870
(D.C. Cir. 1996), so that the court can assess whether the
process given accords with the due process guarantee. The court
and October 2018, William was stopped and questioned by NHSP troopers while driving the Spencer Brothers’ company truck).
22 will examine plaintiffs’ allegations (or lack thereof) regarding
each of the two out-of-service orders below.
i. Trooper Doran’s out-of-service order
The second amended complaint alleges that Trooper Doran
informed William during the April 29, 2016 traffic stop that
Spencer Brothers’ truck was ordered “out of service” and that it
would be towed from the scene. There are, however, no
allegations in the second amended complaint about what process
plaintiffs were afforded before or after that deprivation, or
what process should have been afforded to plaintiffs by Trooper
Doran or the NHSP before or after Trooper Doran ordered the
truck out of service. Without any allegations as to what
process occurred or was due, the second amended complaint fails
to state a cognizable procedural due process violation on the
basis of Trooper Doran’s out-of-service order. See Aponte-
Torres, 445 F.3d at 56; Doyle v. Falmouth Police Dep’t, No.
2:14-CV-259-JDL, 2015 WL 470715, at *5 (D. Me. Feb. 4, 2015)
(granting motion to dismiss procedural due process claim because
complaint was “entirely silent about any post-deprivation
process available to him, or its inadequacy”); Johnson v. Town
of Weare, No. 12-CV-032-SM, 2012 WL 2450599, at *8 (D.N.H. June
4, 2012), report and recommendation approved, 2012 WL 2428164
(D.N.H. June 27, 2012) (complaint failed to state procedural due
23 process claim when it did not allege what process plaintiff
pursued after his truck was seized or whether such procedures
were inadequate).
ii. FMCSA’s out-of-service order
Next, plaintiffs contend that FMCSA’s out-of-service order
deprived them of property and liberty interests without due
process.7 The second amended complaint lacks any allegations
about what process plaintiffs were provided in relation to the
FMCSA out-of-service order. The official public records the
parties submitted in support of their motion to dismiss
pleadings, however, shed some light on this issue. See doc.
nos. 36-2, 36-9, & 44-1.
Those official public records reveal the following. On
August 3, 2016, FMCSA issued Spencer Brothers a Proposed Safety
7 As an initial matter, plaintiffs have not developed an argument establishing the causal connection between any of the state defendants’ conduct and the lack of adequate process afforded to them in relation to the out-of-service order issued by FMCSA. See Manzini v. The Fla. Bar, 511 F. App’x 978, 982 (11th Cir. 2013) (to state claim for procedural due process violation, plaintiff must establish an “affirmative causal connection” between defendant’s acts or omissions and the alleged constitutional deprivation); Reimer v. Smith, 663 F.2d 1316, 1322 (5th Cir. 1981) (“It is axiomatic that a plaintiff cannot succeed in a [section] 1983 action if he fails to demonstrate a causal connection between the state official’s alleged wrongful action and his deprivation of life, liberty, or property.”). The court will assume for the sake of argument that plaintiffs have alleged a sufficient causal connection.
24 Rating indicating that it proposed to give Spencer Brothers an
“Unsatisfactory” safety rating for several alleged regulatory
violations involving transportation of hazardous materials. On
Administrative Review of the Proposed Safety Rating, objecting
to the proposed “Unsatisfactory” rating. FMSCA filed a
response. Subsequently, on September 16, 2016, a FMCSA
Assistant Administrator issued a final order denying Spencer
Brothers’ Petition for Administrative Review of the Proposed
Safety Rating, concluding that Spencer Brothers had not met its
burden of demonstrating that FMCSA had erred in assigning it an
“Unsatisfactory” safety rating. Following that final order, on
September 18, 2016, FMSCA issued an order effective that day
that Spencer Brothers cease all transportation in interstate and
intrastate commerce, referred to herein as the “out-of-service
order.” Doc. no. 36-2 at 102. Spencer Brothers then filed a
Petition for Review of that order with the United States Court
of Appeals for the First Circuit, which was ultimately
dismissed.
This procedural history demonstrates that plaintiffs were
afforded both notice of the proposed “Unsatisfactory” safety
rating and an opportunity to be heard by the FMCSA Assistant
Administrator prior to the effective date of the out-of-service
order. The second amended complaint makes no allegations about
25 how those procedural safeguards were deficient. Cf. Maldonado
v. Municipality of Barceloneta, No. CV 07-1992 (JAG), 2009 WL
10704093, at *6 (D.P.R. Nov. 12, 2009) (finding plaintiffs
adequately alleged procedural due process violation where
complaint alleged that notice was given only five days prior to
deprivation of property right and in a language most of them did
not speak). Furthermore, it appears that the process afforded
to plaintiffs complied with applicable regulations. See 49
C.F.R. § 385.11 (governing notification of safety fitness
determination); 49 C.F.R. § 385.15 (outlining procedure for
administrative review of proposed safety rating).
In their objection to the state defendants’ motion to
dismiss, plaintiffs argue that FMCSA’s out-of-service order was
issued “before and without a hearing.” Doc. no. 44 at 8. But
this allegation was not included in the second amended
complaint. As this court has reminded plaintiffs previously in
this action, they cannot amend their second amended complaint
through matters raised only in an objection to a motion to
dismiss. See Spencer v. N.H. State Police, Civ. No. 18-cv-1191-
LM, 2019 WL 3284791, at *2 (D.N.H. July 22, 2019). For all the
reasons discussed above, the court concludes that plaintiffs
have failed to state a viable procedural due process claim
against any of the state defendants.
26 C. Impact of February 6, 2020, Department of Transportation Order
Plaintiffs argue that the recent DOT decision attached to
their objection to the motion to dismiss somehow supports their
procedural due process claim and demonstrates that they were
entitled to a hearing before FMCSA issued the out-of-service
order. Doc. no. 44-1. Plaintiffs’ reliance on that order is
misplaced.
The DOT order, served February 6, 2020, is entitled “Order
Denying The FMCSA’s Motion For Preclusion.” The order explains
that FMCSA has taken two separate administrative actions against
Spencer Brothers: issuance of an “Unsatisfactory” safety rating
resulting in the out-of-service order pursuant to 49 U.S.C. §
31144 and 49 C.F.R. part 385; and issuance of a Notice of Claim
that commenced a civil penalty proceeding pursuant to 49 U.S.C.
§ 521(b) and 49 C.F.R part 386. Both of those administrative
actions stem from the same facts: Spencer Brothers’ alleged
improper transportation of hazardous material at the time of
Trooper Doran’s traffic stop on April 29, 2016. In the February
6, 2020 order, the DOT Administrative Law Judge (“ALJ”)
confronted the question whether the FMCSA’s “finding” in the
safety rating proceeding that Spencer Brothers transported
hazardous material on April 29, 2016, should have preclusive
effect in the separate civil penalty proceeding that the ALJ was
27 presiding over. In other words, the ALJ was asked to decide
whether the doctrine of collateral estoppel applied to preclude
Spencer Brothers from re-litigating whether it transported
hazardous materials on the relevant date.
The ALJ concluded that FMCSA’s “finding” during the safety
rating proceeding that Spencer Brothers transported hazardous
materials did not have preclusive effect in the separate civil
penalty proceeding. It therefore denied FMCSA’s pending “Motion
on Preclusion.” In practical terms, the ALJ’s order means that
Spencer Brothers is permitted in the ongoing civil penalty
proceeding to litigate the factual issue of whether it
improperly transported hazardous materials on April 29, 2016.
Such litigation may occur at an evidentiary hearing during the
course of the ongoing civil penalty proceeding to the extent
permitted under the applicable regulations. See 49 C.F.R §§
386.16, 386.56.
The ALJ’s order does not in any way opine about the
constitutional adequacy of the procedures FMCSA afforded to
plaintiffs in the separate safety rating proceeding culminating
in the out-of-service order. Nor does the order explicitly or
implicitly find that plaintiffs were entitled to a hearing
before FMCSA imposed the out-of-service order in the safety
rating proceeding. Thus, plaintiffs’ reliance on DOT’s February
28 6, 2020 order is misdirected; it lends no support to plaintiffs’
procedural due process claim.
D. Summary
As outlined above, the court concludes that plaintiffs have
failed to allege sufficient facts to state a cognizable claim
for violation of either of their substantive or procedural due
process rights. The court therefore grants the state
defendants’ motion to dismiss Count I.
II. Count II: RICO Claim
Plaintiffs allege a civil RICO claim, claiming that all
defendants were associated in some way as law enforcement
personnel and that, based on a “personal vendetta” against
plaintiffs, they coordinated their conduct to perpetuate
falsehoods about plaintiffs in order to harm their business and
reputation in the community. See doc. no. 30 at ¶¶ 189, 194,
200-06. The RICO civil remedy provision provides that “[a]ny
person injured in his business or property by reason of a
violation of section 1962 of this chapter may sue therefor in
any appropriate United States district court . . . .” 18 U.S.C.
§ 1964(c). In order to set out a civil RICO claim, a plaintiff
must sufficiently allege: (1) that a violation of § 1962 has
occurred; (2) that he has been injured in his business or
29 property; and (3) that a causal nexus exists between the
violation and his asserted injury. See Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496-97 (1985); Miranda v. Ponce Fed.
Bank, 948 F.2d 41, 44 (1st Cir. 1991).
Turning to the first prong of that test, plaintiffs allege
that defendants engaged in conduct that violated § 1962(c).
That provision makes it 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.” 18 U.S.C. § 1962(c). In order to plead a violation
of § 1962(c), a plaintiff must sufficiently allege that the
defendant: (1) conducted or participated in the conduct of; (2)
an enterprise; (3) through a pattern; (4) of racketeering
activity. Sedmina, 473 U.S. at 496; 18 U.S.C. § 1962(c).
The state defendants argue that plaintiffs have failed to
adequately allege elements two, three, and four of a § 1962(c)
violation. The court will assume without deciding that
plaintiffs have sufficiently alleged the “enterprise” element of
a § 1962(c) violation and therefore focus its analysis on
elements three and four—the requirements that plaintiffs allege
a pattern of racketeering activity.
30 The RICO statute defines “racketeering activity” as conduct
that violates any one of a number of specified federal laws,
such as the mail and wire fraud statutes. 18 U.S.C. § 1961(1);
Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12, 15
(1st Cir. 2000). A “pattern of racketeering activity” is
defined as “at least two acts of racketeering activity”
occurring within a 10-year period. 18 U.S.C. § 1961(5). The
second amended complaint alleges two forms of racketeering
activity: obstruction of justice in violation of 18 U.S.C. §
1503; and mail fraud in violation of 18 U.S.C. § 1341. Doc. no.
30 at ¶ 199. The individual acts of racketeering activity, here
obstruction of justice and mail fraud, are often referred to as
the “predicate acts.” Micro-Med. Indus., Inc. v. Hatton, 607 F.
Supp. 931, 936 (D.P.R. 1985). The court will evaluate whether
plaintiffs have sufficiently pled facts establishing two
predicate acts constituting a pattern of racketeering activity.
A. Obstruction of Justice
18 U.S.C. § 1503(a) makes it unlawful to endeavor to
influence, obstruct, or impede the due administration of justice
by intentionally influencing, intimidating, or impeding “any
grand or petit juror, or officer in or of any court of the
United States.” 18 U.S.C. § 1503(a). To constitute an offense
under this statute, the allegedly obstructive act “must relate
31 to a proceeding in a federal court of the United States.”
O'Malley v. New York City Transit Auth., 896 F.2d 704, 707 (2d
Cir. 1990); see also Michaud v. Delkner, 2 F. App’x 51, 52 (1st
Cir. 2001) (citing O’Malley for same proposition); Michaud v.
Nadeau, 2 F. App’x 42, 44 (1st Cir. 2001) (same). The
defendant’s action must be taken “with an intent to influence
judicial or grand jury proceedings; it is not enough that there
be an intent to influence some ancillary proceeding, such as an
investigation independent of the court’s or grand jury’s
authority.” United States v. Aguilar, 515 U.S. 593, 599 (1995).
Here, Count II does not specify which of the state
defendants’ acts constitute obstruction of justice in violation
of § 1503, but rather states generally “[r]epresentative
predicate acts are pled throughout the complaint.” Doc. no. 30
at ¶ 198. Cf. O’Malley, 896 F.2d at 707-08 (outlining four
specific acts plaintiffs alleged constituted predicate acts of
obstruction of justice). Count II also vaguely refers to
falsehoods about plaintiffs’ business practices that the state
defendants perpetuated through statements and testimony. See
doc. no. 30 at ¶¶ 200-206. Drawing all reasonable inferences in
plaintiffs’ favor, the court construes the alleged obstructive
acts as any and all false testimony, reports, or statements the
state defendants made, including, but not limited to: Trooper
Doran’s false statement to FMCSA about his findings during the
32 April 29, 2016, traffic stop; Sergeant Burke’s false report to
NHDES; and Trooper Kace’s statements made at the November 2016
administrative hearing.
Even drawing all inferences in plaintiff’s favor, however,
the second amended complaint does not set forth any allegedly
obstructive act related “to a proceeding in a federal court of
the United States.” O’Malley, 896 F.2d at 707. Instead, most
of the state defendants’ purportedly obstructive acts occurred
in state administrative proceedings or investigations. See id.
(finding obstruction of justice predicate acts insufficiently
pled when all alleged conduct occurred in state courts or state
administrative proceedings.)
The only identifiable statement remotely related to a
federal proceeding is Trooper Doran’s communication with FMCSA
that precipitated FMCSA’s investigation of Spencer Brothers and,
eventually, the out-of-service order. But that statement was
made in relation to a federal administrative investigation or
inspection, not a federal court proceeding, and therefore does
not fall within the scope of § 1503. See Kimberlin v. Nat’l
Bloggers Club, No. GJH-13-3059, 2015 WL 1242763, at *5 (D. Md.
Mar. 17, 2015) (finding predicate act of obstruction of justice
insufficiently pled when plaintiff alleged defendants provided
false evidence to the FBI and state and local law enforcement
about plaintiff); cf. Lockheed Martin Corp. v. Boeing Co., 357
33 F. Supp. 2d 1350, 1375-76 (M.D. Fla. 2005) (finding predicate
act of obstruction of justice adequately alleged when plaintiff
claimed defendant gave false deposition testimony and false
affidavit in ongoing federal litigation). Thus, the second
amended complaint fails to allege that any of the state
defendants engaged in any conduct that would constitute a
violation of § 1503 and qualify as a predicate act for
plaintiffs’ RICO claim.
B. Mail Fraud
Plaintiffs also allege that the state defendants engaged in
the racketeering activity of mail fraud. The mail fraud statute
makes it unlawful to knowingly use interstate mail
communications in furtherance of a scheme to defraud under false
pretenses. 18 U.S.C. § 1341; United States v. Hebshie, 549 F.3d
30, 35 (1st Cir. 2008). It is well established in the First
Circuit that predicate acts of mail fraud in a civil RICO action
must be pleaded with particularity in compliance with Federal
Rule of Civil Procedure 9(b). Cordero-Hernandez v. Hernandez-
Ballesteros, 449 F.3d 240, 244 (1st Cir. 2006); Ahmed v.
Rosenblatt, 118 F.3d 886, 889 (1st Cir. 1997); Birch St.
Recovery Corp. v. Thomas, No. CV-99-571-B, 2000 WL 1513799, at
*8 (D.N.H. July 29, 2000). Specifically, under the First
Circuit’s interpretation of the Rule 9(b) particularity
34 requirement, the plaintiff must specify the time, place, and
content of the allegedly false mail communications. See Ahmed,
118 F.3d at 889.
The second amended complaint falls well short of that
standard. The only allegation in the complaint regarding mail
communication is that defendants “acting in concert perpetuated
several[] falsehoods through the mail and by testimony in order
to . . . injure the Plaintiffs.” Doc. no. 30 at ¶ 200. This
allegation clearly fails to specify the time, place, or content
of any alleged mail communications. In their objection to the
motion to dismiss, plaintiffs try to fill in the gaps in the
second amended complaint by asserting that defendants
“necessarily” sent falsehoods in the mail due to the “nature of
written statements and the overall process requiring paper
filings that were not hand delivered between state lines.” Doc.
no. 44 at 14. There are, however, no facts alleged in the
second amended complaint that give rise to an inference that
defendants “necessarily” sent mail interstate, let alone specify
the time, place, or content of that interstate mail
communication. Because plaintiffs’ allegations supporting the
predicate act of mail fraud are not pleaded with particularity,
the second amended complaint fails to state any predicate acts
of mail fraud.
35 The court must go one step further, however, because the
First Circuit has placed a “special gloss” on the Rule 9(b)
particularity requirement in the RICO context. Feinstein v.
Resolution Tr. Corp., 942 F.2d 34, 43 (1st Cir. 1991); see also
New England Data Servs., Inc. v. Becher, 829 F.2d 286, 290-92
(1st Cir. 1987). When the court finds that the alleged
predicate acts of mail or wire fraud fail to meet the
particularity requirements, it “should make a second
determination as to whether further discovery is warranted and,
if so, the plaintiff should be provided with the opportunity to
amend the complaint after the completion of this discovery.”
Ahmed, 118 F.3d at 890. A plaintiff is not, however,
automatically entitled to such discovery and opportunity to
amend. Id. Indeed, dismissal should follow a failure to plead
mail fraud with particularity unless the plaintiff “suggests to
the district court, in a timely manner, that a limited period of
discovery will likely allow him to plug the holes in the
complaint and requests leave (i) to conduct discovery for this
limited purpose and (ii) thereafter to amend his complaint.”
Feinstein, 942 F.2d at 44.
Plaintiffs have not made such an express request here. In
their objection to the motion to dismiss, plaintiffs assert
generally that they “require discovery to provide a clearer
image of who sent these documents by mail and should proceed to
36 be able to investigate this issue further.” Doc. no. 44 at 14.
This assertion amounts to a general plea that the court allow
the second amended complaint to survive the motion to dismiss as
pleaded so that plaintiffs can move to the discovery phase of
litigation. Plaintiffs have not asked for permission to conduct
discovery for the limited purpose of fleshing out the mail fraud
predicate acts. Not only is plaintiffs’ discovery request vague
and unsupported, it comes rather late in the game. Plaintiffs
have now had two opportunities to amend the original complaint
to state viable claims. And plaintiffs had the benefit of
counsel when they filed the current iteration of their claims in
the second amended complaint. If plaintiffs determined that
they needed to conduct limited discovery to properly plead the
mail fraud predicate acts, they could have asked the court for
leave to conduct such limited discovery before filing the second
amended complaint.
Additionally, based on the facts alleged in the second
amended complaint, there does not appear to be a strong
likelihood that discovery would uncover information enabling
plaintiffs to allege two interstate mail communications with
particularity. The majority of the activity and conduct alleged
in the second amended complaint occurred in New Hampshire and
therefore involved intrastate communications. See Cordero-
Hernandez, 449 F.3d at 247 (concluding that facts alleged did
37 not suggest that limited discovery would uncover interstate wire
communications when all parties were based in same state at all
relevant times).
The only allegation in the second amended complaint that is
even close to raising the inference of interstate mail
communication is the fact that federal defendant Todd Damiani of
DOT’s Massachusetts Office of Inspector General authored a
report about Spencer Brothers. See doc. no. 30 at ¶ 127.
However, plaintiffs did not plead, even on information and
belief, that Damiani authored that report in Massachusetts and
then mailed it to another state. While information and belief
pleading is not sufficient to meet the particularity
requirement, such pleading would at least raise an inference
that interstate communications might have occurred and that
further discovery would illuminate the time, place, and content
of the communications. See Cordero-Hernandez, 449 F.3d at 247;
see also Capozza Tile Co. v. Joy, No. 01-108-P-C, 2001 WL
1057682, at *6 (D. Me. Sept. 13, 2001) (finding wire fraud
insufficiently pleaded and leave to take additional discovery
unwarranted when complaint mentioned only a single fax).
Because there are no factual allegations that defendants
utilized interstate mail communications and plaintiffs have not
timely requested leave to conduct limited discovery and then
amend the complaint to adequately plead predicate acts of mail
38 fraud, the court finds that limited discovery on this issue is
not warranted.
As explained above, plaintiffs have failed adequately to
plead any predicate acts of obstruction of justice or of mail
fraud. In other words, plaintiffs have failed to sufficiently
plead even one single predicate act and have consequently failed
to plead a pattern of racketeering activity. “Failure to plead
predicate acts adequately is enough to sink [a plaintiff’s] RICO
claim.” Ahmed, 118 F.3d at 889; see also Di Giambattisa v.
McGovern, 974 F.2d 1329 (1st Cir. 1992). The court therefore
concludes that plaintiffs have failed to state a civil RICO
claim against the state defendants upon which relief could be
granted. The court grants the state defendants’ motion to
dismiss Count II.
CONCLUSION
For the foregoing reasons, the court grants the state
defendants’ motion to dismiss all counts asserted against them
(doc. no. 37).
SO ORDERED.
__________________________ Landya McCafferty United States District Judge August 20, 2020
cc: Counsel of Record.
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