United States District Court, D. Massachusetts
JOHN E. LUNDGREN, Plaintiff,
UNIVERSAL WILDE, JENNIFER McASKILL and SHAWN GILL, Defendants.
NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE
August, 2018, this Court entered an order allowing
defendants' motion to dismiss plaintiff's claim for
personal injury without prejudice and granting plaintiff
leave to file an amended complaint (Docket No. 54). In the
absence of such a filing, this Court entered an order on
November 23, 2018, conditionally dismissing the case for
failure to prosecute unless plaintiff showed good cause
within 28 days of that order why the action should be
December 18, 2018, rather than demonstrating why the case
should be reopened, plaintiff filed an amended complaint that
simply repeated most of the allegations of the original
dismissed complaint. Plaintiff did, however, add a new claim
against defendants Universal Wilde, Jennifer McAskill and
Shawn Gill for interference with a federal investigation but
cited no federal law in support of that claim.
January 2, 2019, this Court entered an order allowing
defendants' motion to strike the amended complaint
(Docket No. 75) because 1) plaintiff failed to comply with
the Court Order entered November 23, 2018, and 2) the amended
complaint simply repeated the substantive allegations of the
original complaint. This Court did, however, permit plaintiff
to file a second amended complaint with respect to his new
claim of interference with a federal investigation against
defendants Universal Wilde, Jennifer McAskill and Shawn Green
by February 1, 2019. The Court specifically directed
plaintiff to identify the federal statute under which that
claim is being brought or else the case would be dismissed
February 1, 2019, plaintiff filed his second amended
complaint identifying the following federal statutes: 1)
Section 5 of the Occupational Safety and Health Act of 1970
(“OSHA”), 29 U.S.C. § 654; 2) 18 U.S.C.
§ 1519; 3) 18 U.S.C. § 1001; 4) “U.S. Code S
670”; 5) 18 U.S.C. § 1512; and 6) 18 U.S.C. §
241. He also asserts a claim for intentional or negligent
infliction of emotional distress.
February 11, 2019, plaintiff filed a motion for leave to file
an addendum to the amended complaint (Docket No. 77) in order
to add a count under 18 U.S.C. § 2340. A few days later,
defendants filed a motion to dismiss plaintiff's second
amended complaint (Docket No. 78) in response to which
plaintiff filed a “motion to deny dismissal against
defendants” (Docket No. 84). The Court will treat that
pleading as plaintiff's opposition to defendants'
motion to dismiss.
Court has already held that OSHA does not provide a private
cause of action and thus plaintiff has not stated a claim
under 29 U.S.C. § 654. (Docket No. 54 at 6, citing
Elliot v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir.
1998)). Furthermore, it is well-settled that criminal
statutes do not provide a private cause of action and
therefore plaintiff does not have standing to assert claims
under 1) 18 U.S.C. § 1519, 2) 18 U.S.C. § 1001, 3)
18 U.S.C. § 1512, 4) 18 U.S.C. § 241 or 5) 18
U.S.C. § 2340. See, e.g., Swartz v. Bahr, Civil
Action No. 16-12144-LTS, 2017 WL 2695290, at *4 (D.
Mass. June 22, 2017) (as applied to various criminal
statutes); Elias v. Elias, C.A. No. 13-11602-JLT,
2013 WL 5774149, at *6 (D. Mass. Oct. 22, 2013) (as applied
to 18 U.S.C. § 241); Cok v. Cosentino, 876 F.2d
1, 2 (1st Cir. 1989) (same); Fiorino v. Turner, 476
F.Supp. 962, 963 (D. Mass. 1979) (as applied to 18 U.S.C.
§§ 241 and 1001).
extent that plaintiff seeks to assert a claim under
“U.S. Code S 670”, it is deficient because he has
failed to include a title number with his citation and thus
he has not complied with the Court Order entered January 2,
2019. Accordingly, that claim will also be dismissed.
to the extent that plaintiff now asserts a claim for
negligent or intentional infliction of emotional distress,
the Court lacks jurisdiction over that claim. That claim,
which sounds in tort, does not involve a federal question nor
has plaintiff shown that there is complete diversity of
citizenship among the parties. See 28 U.S.C. §§
1331, 1332; see also Casas Office Machs., Inc. v. Mita
Copystar Am., Inc., 42 F.3d 668, 673 (1st Cir. 1994). In
fact, he alleges in his second amended complaint that
Universal Wilde is incorporated and located in Massachusetts
and presumably both Jennifer McAskill and Shawn Gill are also
residents of Massachusetts. Without a viable claim under a
federal statute, the Court cannot exercise supplemental
jurisdiction over the tort claim. See United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
1) plaintiff's “motion to deny dismissal against
defendants” (Docket No. 84) is not a motion and will be
2) plaintiff's motion for leave to file an addendum to
the second amended complaint (Docket No. 77) is
3) defendants' motion to dismiss (Docket No. 78) is