United States District Court, D. Massachusetts
RICHARD L. KALIKA and KALIKA, LLC, Plaintiffs,
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.
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 #
MARIANNE B. BOWLER, United States Magistrate Judge
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.
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).
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).
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.
Rule 12(b)(2) Motion to Dismiss
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)).
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)).
second standard may appropriately be invoked when a court
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
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.
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
Foster-Miller, Inc., 46 F.3d at 146. Here, the
assertion of jurisdiction is not bound up with the claim on
this court will apply the prima facie standard to the
remaining Rule 12(b)(2) motion brought by PSNH and
12(b)(6) Motions to Dismiss
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”).
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).
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
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 ...