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Conway v. Licata

United States District Court, D. Massachusetts

October 17, 2014

ANDREW CONWAY, et al., Plaintiffs,
v.
SAM LICATA, et al., Defendants

For Andrew Conway, Liana Conway, doing business as, Zeke the Zebra, Plaintiffs, Andrew Conway, Liana Conway, Counter Defendants: Jeffrey S. Baker, LEAD ATTORNEY, Baker & Associates, Boston, MA; Patrick M. Groulx, Donahue Grolman & Earle, Boston, MA.

For Sam Licata, also known as, Phoenix Stone, Sybil Hall, also known as, Sybil Licata, Stonehall Entertainment, LLC, A California Limited Liability Company, Stonehall Merchandise, LLC, a California Limited Liability Company, Stonehall Music Publishing, LLC, a California Limited Liability Company, Stonehall Records, LLC, a California Limited Liability Company, Stonehall Television, LLC, A California Limited Liability Company, Stonehall Touring, LLC, a California Limited Liability Company, Defendants: Daryl DeValerio Andrews, Glen DeValerio, Marie Foley Watson, Berman DeValerio, Boston, MA.

For Sybil Hall, Stonehall Television, LLC, A California Limited Liability Company, Stonehall Entertainment, LLC, A California Limited Liability Company, Stonehall Music Publishing, LLC, a California Limited Liability Company, Stonehall Touring, LLC, a California Limited Liability Company, Stonehall Merchandise, LLC, a California Limited Liability Company, Sam Licata, Stonehall Records, LLC, a California Limited Liability Company, Counter Claimants: Daryl DeValerio Andrews, Glen DeValerio, Berman DeValerio, Boston, MA.

For Andrew Conway, Liana Conway, Counter Defendants: Jeffrey S. Baker, LEAD ATTORNEY, Baker & Associates, Boston, MA; Patrick M. Groulx, Donahue Grolman & Earle, Boston, MA.

Page 170

ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Leo T. Sorokin, United States District Judge.

The defendants in this action move for summary judgment solely on the plaintiffs' Racketeer Influenced and Corrupt Organizations Act (" RICO" ) claim, Count XIX of the Complaint. The Motion presents one question--whether the plaintiffs have submitted sufficient evidence from which a jury could conclude that the plaintiffs have met their burden of proof as to each element of the RICO claim.

To state a civil RICO claim, a plaintiff must allege a pattern of racketeering activity made up of two or more predicate criminal acts that are related and amount to or pose a threat of continued criminal activity. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 237-39, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). Because the plaintiffs in this case cannot establish such a pattern of racketeering activity, the defendants' motion for partial summary judgment as to this count is ALLOWED.

Page 171

I. FACTS

The following facts are stated in the light most favorable to the plaintiffs as the nonmoving party. In brief, the plaintiffs allege that plaintiff Andrew Conway (" Mr. Conway" ) paid approximately $1.7 million to the defendants to manage the career of Mr. Conway's daughter, plaintiff Liana Conway (" Ms. Conway" ), an aspiring country music singer. The plaintiffs contend the defendants' conduct in managing funds intended to promote Ms. Conway's career and in distributing Ms. Conway's copyrighted recordings amounts to a civil RICO violation. Specifically, the Complaint alleges that the defendants committed wire fraud in violation of 18 U.S.C. § 1343, by " multiple attempts" to obtain money on the premise that it would only be spent on furthering Ms. Conway's career when, in fact, it was not. Doc. No. 1 ¶ 270(b). The Complaint also alleges that the defendants committed criminal copyright infringement in violation of 17 U.S.C. § 506(a) for distributing copies of Ms. Conway's copyrighted works. Id. ¶ 270(d). Finally, the Complaint alleges violations of 18 U.S.C. § 1952--which criminalizes traveling across state lines to distribute the proceeds of unlawful activity--arising from electronic distributions of funds transferred by Mr. Conway.[1] Id. ¶ 270(c). The Complaint does not specify those activities on the part of the defendants that constitute the alleged predicate offenses.

In addition to the predicates as expressed in the Complaint, in opposing summary judgment, the plaintiffs added specificity to some of predicate acts alleged in the Complaint and have alleged additional predicate acts not raised in the Complaint.[2] Adding clarity to the wire fraud alleged in the Complaint, the plaintiffs specified two acts of wire fraud arising from a February 9, 2012 email from one defendant to Mr. Conway and from the transmission, as an attachment to a February 2012 email, of an invoice from a vendor that the plaintiffs allege to have been forged by the defendants. Doc. No. 99 at 13-14. The plaintiffs' opposition also clarified that they were alleging criminal copyright infringement in five specific compositions of Ms. Conway. Id. at 15-16. In addition to these predicates that were generally alleged in the Complaint, the plaintiffs, in their opposition, added violations of 18 U.S.C. § 2314, arising from " numerous occasions" of interstate transportation of funds taken by fraud as additional predicate offenses. Doc. No. 99 at 14-15.

The plaintiffs allege that these various predicate offenses occurred over a period of two and a half years, beginning in May 2010 and ending ...


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