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Kalika v. Boston & Maine Corp.

United States District Court, D. Massachusetts

February 28, 2018

RICHARD L. KALIKA and KALIKA, LLC, Plaintiffs,
v.
BOSTON & MAINE CORPORATION, PAN AM RAILWAYS, INC., PUBLIC SERVICE OF NEW HAMPSHIRE, ROGER D. BERGERON, ROBERT B. BURNS, ESQ., R. MATTHEW CAIRNS, ESQ., HANNAH K. IRVING, HUTTON N. SNOW, JOHN DOES 1-10, JANE DOES 1-10, and DOES 1-10, Defendants.

         REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOCKET ENTRY # 40); DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION TO DISMISS FOR LACK OF JURISDICTION (DOCKET ENTRY # 41); DEFENDANTS' MOTION TO DISMISS (DOCKET ENTRY # 46)

          MARIANNE B. BOWLER, United States Magistrate Judge

         Pending before this court is a motion to dismiss the amended complaint filed by defendants Boston & Maine Corporation (“B&M”), Pan Am Railways, Inc. (“PAR”), Roger D. Bergeron (“Bergeron”), and Robert B. Burns, Esq. (“Burns”) (collectively: “B&M defendants”) under Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). (Docket Entry # 40). Defendants Public Service of New Hampshire (“PSNH”), R. Matthew Cairns, Esq. (“Cairns”), Hannah K. Irving (“Irving”), and Hutton N. Snow (“Snow”) move to dismiss the amended complaint under Rule 12(b)(6) and Fed.R.Civ.P. 12(b)(2) (“Rule 12(b)(2)”) for lack of personal jurisdiction. (Docket Entry ## 40, 41, 46). In addition, the B&M defendants, PSNH, Cairns, Irving, and Snow (“defendants”) seek a dismissal based on collateral estoppel and the statute of limitations. (Docket Entry ## 41, 46). Plaintiff Richard L. Kalika (“Richard Kalika”), who is proceeding pro se, and plaintiff Kalika, LLC (“Kalika”) (collectively: “plaintiffs”) oppose the motions. (Docket Entry # 53). After conducting a hearing on January 12, 2018, this court took the motions (Docket Entry ## 40, 41, 46) under advisement.

         PROCEDURAL HISTORY

          This matter arises from the parties' efforts to establish certain rights regarding a crossing over railroad tracks owned by B&M and located in Merrimack, New Hampshire. (Docket Entry # 8, ¶¶ 2, 18). Richard Kalika is the sole owner of Kalika. (Docket Entry # 8, ¶ 17). Kalika, in turn, owns land in Merrimack that abuts B&M land and it purportedly acquired certain rights to the crossing. (Docket Entry # 8, ¶¶ 16, 56). The amended complaint outlines the parties' long, litigious history over the crossing in the New Hampshire state courts and how defendants have “repeatedly and intentionally interfered” with plaintiffs' rights to access Kalika's land via the crossing. (Docket Entry # 8, ¶ 2). The amended complaint further alleges that defendants conspired through a “pattern of racketeering” and “purposeful misrepresentations” regarding B&M's compliance with a conditional settlement agreement (“the settlement agreement”) in order to obtain releases signed by Kalika with respect to the crossing in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962 (“section 1962”). (Docket Entry # 8).

         At the January 12, 2018 motion hearing, the parties orally agreed to dismiss Cairns and Irving from this action. (Docket Entry # 64). They also agreed to dismiss all of the counts in the amended complaint except for Count Nine. (Docket Entry # 64). Captioned as a violation of 18 U.S.C. § 1962(d) (“section 1962(d)”), Count Nine sets out a RICO conspiracy claim. (Docket Entry # 8, pp. 34-35). Defendants move to dismiss Count Nine on the basis that there is no private right of action under RICO's criminal statutes. (Docket Entry # 40-1, pp. 6-7) (Docket Entry # 42, pp. 11-13) (Docket Entry # 47, pp. 6-7). They correctly maintain that “a private citizen has no authority to initiate a federal criminal prosecution.” Cok v. Consentino, 876 F.2d 1, 2 (1st Cir. 1989) (“only United States as prosecutor” has authority to bring a claim “under RICO, 18 U.S.C. §§ 1961- 1963”); see also Cichocki v. Massachusetts Bay Community College, Civil Action No. 12-10728-GAO, 2013 WL 783068, at *10 (D. Mass. Feb. 28, 2013) (18 U.S.C. § 1512 does not provide a private cause of action).

         At the hearing and in their opposition, however, plaintiffs contend they are not bringing a private cause of action under the criminal RICO statute. Rather, the cited criminal statutes in the amended complaint provide the requisite predicate acts for a civil RICO claim under 18 U.S.C. 1964(c) (“section 1964”) based on an unlawful section 1962(d) conspiracy. (Docket Entry # 53, pp. 5-6). In light of Richard Kalika's pro se status, this court construes the cited criminal statutes as setting out predicate acts for a section 1964(c) civil RICO claim in Count Nine.

         STANDARDS OF REVIEW

          A. Rule 12(b)(2) Motion to Dismiss

          When reviewing a motion to dismiss for lack of personal jurisdiction, the court “accept[s] the allegations in the complaint as true and construe[s] the facts in the light most favorable to the plaintiff.” Phillips v. Prairie Eye Center, 530 F.3d 22, 24 (1st Cir. 2008). There are three competing standards of review in this circuit when analyzing a motion to dismiss for lack of personal jurisdiction. See World Depot Corp. v. Onofri, Civil Action No. 16-12439-FDS, 2017 WL 6003052, at *7 (D. Mass. Dec. 4, 2017). “The most conventional” and more frequently employed standard is known as “the prima facie method.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, 290 F.3d 42, 50 (1st Cir. 2002); accord Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The prima facie method or standard allows the court “‘to consider only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.'” Foster-Miller v. Babcock & Wilcox Canada, 46 F.3d at 145 (quoting Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992)).

         It is also well settled “that plaintiffs may not rely on unsupported allegations in their pleadings to make a prima facie showing of personal jurisdiction, ” Boit, 967 F.2d at 675, and the plaintiff “is obliged to adduce evidence of specific facts.” Foster-Miller, Inc., 46 F.3d at 145. “Thus, allegations in a [plaintiff's] brief or legal memorandum are insufficient, ” Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001), while an affidavit in support of the pleadings would be sufficient. See Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1st Cir. 1995) (drawing facts from pleadings and supplementary filings, including affidavits). “[I]n evaluating whether the prima facie standard has been satisfied, ‘the district court is not acting as a fact finder; rather, it accepts properly supported proffers of evidence by a plaintiff as true and makes its ruling as a matter of law.'” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001) (quoting United Elec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir. 1993)).

         The second standard may appropriately be invoked when a court determines that:

In the circumstances of a particular case it is unfair to force an out-of-state defendant to incur the expense and burden of a trial on the merits in the local forum without first requiring more of the plaintiff than a prima facie showing of facts essential to in personam jurisdiction. A court may so determine, for example, when the proffered evidence is conflicting and the record is rife with contradictions or when a plaintiff's affidavits are “patently incredible[.]”

Boit, 967 F.2d at 676 (internal citations omitted). Under this standard, “the court is to embark on a fact finding mission in the traditional way, taking evidence and measuring the plaintiff's jurisdictional showing against a preponderance-of-the-evidence standard.” Foster-Miller, Inc., 46 F.3d at 145. “[T]he preponderance standard necessitates a full-blown evidentiary hearing at which the court will adjudicate the jurisdictional issue definitively before the case reaches trial.” Id. at 146. In the case at bar, use of the more stringent preponderance standard is inappropriate because the record is neither rife with contradictions nor do plaintiffs submit any patently incredible affidavits. Richard Kalika is also proceeding pro se.

         Courts additionally recognize a third, intermediate standard “between requiring only a prima facie showing and requiring proof by a preponderance of the evidence.” Boit, 967 F.2d at 677. “Thus, even though allowing an evidentiary hearing and weighing evidence to make findings, the court may merely find whether the plaintiff has shown a likelihood of the existence of each fact necessary to support personal jurisdiction.” Id. This method, however, should only be applied in:

the special circumstance in which the assertion of jurisdiction is bound up with the claim on the merits, the possibility of preclusion renders use of the preponderance standard troubling, while the possibility of permitting a dubious case to proceed beyond the pleading stage, and even to trial, though the court eventually will be found to lack jurisdiction, renders use of the prima facie standard undesirable.

Foster-Miller, Inc., 46 F.3d at 146. Here, the assertion of jurisdiction is not bound up with the claim on the merits.

         Accordingly, this court will apply the prima facie standard to the remaining Rule 12(b)(2) motion brought by PSNH and Snow.[1]

         B. Rule 12(b)(6) Motions to Dismiss

          The standard of review for a Rule 12(b)(6) motion is well established. To survive a Rule 12(b)(6) motion to dismiss, the complaint must include factual allegations that, when taken as true, demonstrate a plausible claim to relief even if actual proof of the facts is improbable. See Bell Atlantic v. Twombly, 550 U.S. 555-558 (2007). Thus, although “not equivalent to a probability requirement, the plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully.” Boroian v. Mueller, 616 F.3d 60, 65 (1st Cir. 2010) (internal quotation marks omitted); accord Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016); Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011). “[A]ccepting as true all well-pleaded facts in the complaint and making all reasonable inferences in the plaintiff's favor, ” Boroian, 616 F.3d at 64, the “factual allegations ‘must be enough to raise a right to relief above the speculative level.'” Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010); Gargano v. Liberty International Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (court “accept[s] as true all well pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff”). Legal conclusions in the amended complaint are not included in the Rule 12(b)(6) record. See Dixon v. Shamrock Financial Corp., 522 F.3d 76, 79 (1st Cir. 2008) (accepting “well-pleaded facts as true, but reject[ing] ‘unsupported conclusions or interpretations of law'” in reviewing Rule 12(b)(6) dismissal); see, e.g., Soto-Torres v. Fraticelli, 654 F.3d 153, 157 n.2 (1stCir. 2011) (“complaint's allegations that Soto-Torres was ‘illegally and unreasonabl[y] detained' and that ‘excessive force' was used in pushing him to the floor are legal conclusions that are not to be credited”).

         Facts are confined to those in the amended complaint supplemented by matters of public record, documents incorporated by reference, and facts susceptible to judicial notice. Here, the amended complaint refers to the settlement agreement (Docket Entry # 8, ¶ 68), which is material to plaintiffs' claim and therefore part of the Rule 12(b)(6) record. See Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (court may consider “‘official public records; documents central to plaintiffs' claim; and documents sufficiently referred to in the complaint'”) (ellipses and internal brackets omitted); Giragosian v. Ryan, 547 F.3d 59, 65-66 (1st Cir. 2008) (can consider documents relied on in complaint, public records, and other documents subject to judicial notice). The settlement agreement is also part of an exhibit attached to the amended complaint and therefore part of the amended complaint. See Fed.R.Civ.P. 10(c).

         It is also appropriate to take judicial notice of the state court filings in the various state court proceedings. See Bluetarp Financial, Inc. v. Matrix Const. Co., Inc., 709 F.3d 72, 78 n.4 (1st Cir. 2013) (taking “judicial notice that neither the South Carolina state-court case or the Maine state-court case has gone to final judgment”); Ezra Charitable Trust v. Tyco Intern., Ltd., 466 F.3d 1, 9 n.7 (1st Cir. 2006) (taking “judicial notice of the SEC's 2006 complaint against Tyco” filed in district court, “the subsequent consent decree, and the final judgment”). Moreover, plaintiffs do not challenge the authenticity of the state court filings the B&M defendants attach to their memoranda and they provide an authenticating affidavit.

         “Exhibits attached to the complaint are” also “properly considered part of the pleading ‘for all purposes, ' including Rule 12(b)(6).” Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008); Fed.R.Civ.P. 10(c). In the case at bar, there are 39 exhibits attached to the amended complaint. These exhibits include several deeds; New Hampshire state court orders; a railroad police report; an affidavit by Roger Bergeron; a deposition of Snow; the crossing order including the settlement agreement; and a ...


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