United States District Court, D. Massachusetts
KALIKA, LLC, and RICHARD L. KALIKA, Plaintiffs,
BOSTON & MAINE CORPORATION, PAN AM RAILWAYS, INC., PUBLIC SERVICE OF NEW HAMPSHIRE, ROGER D BERGERON, ROBERT B. BURNS, R. MATTHEW CAIRNS, ESQ., HANNAH K. IRVING, HUTTON N. SNOW, JOHN DOES 1-10, JANE DOES 1-10, and DOES 1-10, Defendants.
ORDER ON REPORT AND RECOMMENDATION
A. O'Toole, Jr. United States District Judge.
magistrate judge to whom this case was referred has issued a
report and recommendation (“R&R”) (dkt. no.
65) regarding pending motions to dismiss (dkt. nos. 40, 41,
plaintiffs have timely filed an objection to the
R&R (dkt. no. 70), raising two arguments: that the
plaintiffs did not agree to dismiss their claims against
defendants Cairns and Irving with prejudice (directed to dkt.
no. 41), and that magistrate judge erred in finding that this
Court lacked authority to exercise personal jurisdiction over
defendants PSNH and Snow (directed to dkt. no. 46).
reviewed the parties' submissions and the objected-to
matters de novo, I concur with and accordingly ADOPT
the R&R in its entirety. The motions to dismiss by the
B&M defendants and defendants PSNH and Snow (dkt. nos. 40
and 46) are GRANTED. Because defendants Cairns and Irving
were dismissed with prejudice by explicit agreement stated on
the record at the motion hearing, their motion to dismiss
(dkt. no. 41) is MOOT.
action DISMISSED with prejudice.
February 28, 2018
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 #
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.
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.
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
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 ...