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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOSEPH A. SHERIDAN,

Plaintiff, 

- against -

CARL R. MARIUZ, PATRICIA T. MARIUZ A/K/A/

PATRICIA SHERIDAN, MARIUZ PROPERTY

MANAGEMENT, RTBK OF THE HUDSON,

DEFENDANTS UNKNOWN,

Defendants.

07 Civ. 3313 (SCR) (LMS)

REPORT AND

RECOMMENDATION

TO: THE HONORABLE STEPHEN C. ROBINSON,

UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Joseph A. Sheridan (herein, “Plaintiff”) commenced this action against

Defendants Patricia T. Mariuz, Plaintiff’s ex-wife, and Patricia Mariuz’s former husband, Carl

R. Mariuz (herein collectively, “Defendants”), both also proceeding pro se, for, inter alia,

alleged acts of conspiracy, mail fraud, wire fraud, and obstruction of justice under the civil

remedy provision of the Racketeering Influenced and Corrupt Organizations Act, (herein,

“RICO”), 18 U.S.C. §§1961, et seq. See Docket #1, Complaint (herein, “Comp.”) at ¶15. In his

Complaint Plaintiff also names as defendants several John Doe individuals and two business

entities allegedly owned and operated by Carl Mariuz. Id. In addition to the civil RICO claim

the Plaintiff asserts against the Defendants, the Plaintiff also asserts state law claims for unjust

enrichment, “tortuous interference intentionally inflicted harm (sic),” fraud and conspiracy, and

emotional distress, under the Court’s grant of original diversity jurisdiction, 28 U.S.C. §1332. 

See Comp. at ¶¶6; 17-24. Plaintiff contends that the rule of complete diversity of citizenship

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 It appears from the docket sheet in this case that the Plaintiff has not effected service of

process on either of the business entities named as Defendants in this case. In the absence of

evidence of service of process the Court does not have jurisdiction over these entities as neither

of them has been made party to this suit. See, e.g., Steele v. Hempstead Pub, 305 A.D.2d 401,

402 (2d Dep’t 2003) (discussing service of process on sole proprietorship). As more than 120

days have elapsed since the filing of this action and no affidavit of service of process has been

filed with the Court, dismissal of these entities for lack of service of process would be

appropriate under FED. R. CIV. P. 4(m). See Zapata v. City of New York, 502 F.3d 192, 196-97

(2d Cir. 2007). For the reasons discussed herein, however, because these proposed defendants

allegedly share common state residency with the Plaintiff, the Court lacks proper subject matter

jurisdiction over the Plaintiff’s claims against these proposed Defendants and his claims against

these entities should be dismissed for lack of subject matter jurisdiction. See infra at pp. 16-17.

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among all plaintiffs and all defendants does not apply in a case such as this where a civil

complainant has no other recourse but to assert his or her claims in federal court. See Comp. at

¶6. Plaintiff asserts that he is a New York resident, that Defendant Carl Mariuz is a New York

resident, that the purported business entities owned and operated by Carl Mariuz, Mariuz

Property Management and RTBK of the Hudson, are New York-based business entities, and that

Defendant Patricia Mariuz is a New Jersey resident. See Comp. at ¶¶1-3.

Defendant Carl Mariuz has filed a motion to dismiss the Plaintiff’s Complaint for a lack

of subject matter jurisdiction, for failure to state a claim, and for failure to comply with the

applicable statute of limitations. See Docket #3, Defendant Carl Mariuz’s Motion to Dismiss. 

Defendant Patricia Mariuz has joined in Defendant Carl Mariuz’s motion to dismiss in all

respects. See Docket #15, Affirmation of Service on Plaintiff Joseph Sheridan. After reading all

of the pro se filings submitted in connection with this case, I conclude, and respectfully

recommend that Your Honor should conclude, that the Defendants’ motion to dismiss should be

granted and that the Plaintiff’s Complaint should be dismissed with prejudice.1

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BACKGROUND

A. Materials Considered by the Court and Standard of Review

The following facts are drawn from the Plaintiff’s Complaint and the exhibits attached

thereto. See Cortec Industries Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). In a

case such as this where all of the parties are proceeding pro se the Court must be attentive to the

fact that construing the pro se Plaintiff’s pleadings too broadly may adversely impact the pro se

Defendants’ rights. Thus, while the Court reads the Plaintiff’s Complaint liberally, the Court

also construes the Defendants’ motion to dismiss liberally so as to raise the strongest arguments

that it suggests. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972); see also McPherson v.

Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (“[W]e read the pleadings of a pro se plaintiff

liberally and interpret them ‘to raise the strongest arguments that they suggest.’ ”) (quotation

omitted). Additionally, because the Court must be mindful of the propriety of its own subject

matter jurisdiction and because the Court may call its own subject matter jurisdiction into

question sua sponte, the undersigned will conduct an independent analysis of whether there is

proper subject matter jurisdiction over any of the state law claims raised by the Plaintiff. See

Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 702

(1982) (explaining that both a federal appellate court and a federal district court may raise the

issue of subject matter jurisdiction on its own initiative). In conjunction with these general rules,

the Court assumes the facts contained in the Plaintiff’s Complaint to be true and offers no

opinion on the merits of any the facts stated therein. See Goldman v. Belden, 754 F.2d 1059,

1067 (2d Cir. 1985).

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B. Plaintiff’s Complaint

Plaintiff’s Complaint contains a series of grievances against his former wife, and her

former husband, accusing both of them of conspiring to deprive the Plaintiff and his three

children of the full amount of child support the Plaintiff was allegedly entitled to receive and of

conniving to cause the Plaintiff “emotional harm, pain and suffering and mental anguish . . . .” 

See Comp. at ¶4. Plaintiff alleges that the Defendants achieved their goal of depriving him of

the maximum amount of possible child support payments by improperly transferring property

from Patricia Mariuz to Carl Mariuz. See Comp. at ¶10. Plaintiff also speculates that Carl

Mariuz accepts rent from Patricia Mariuz and that Carl Mariuz purchased property from Patricia

Mariuz while they were still married in furtherance of their scheme to reduce the amount of child

support payments owed to the Plaintiff. Id.

In addition to asserting causes of action against the Defendants for conspiring to deprive

him of child support payments, Plaintiff also asserts causes of action against the Defendants for

conspiring to defraud the State of New Jersey and the United States Government. See Comp. at

¶¶10, 12. Plaintiff suggests that the Defendants concealed income they received from the sale of

real property in effort to increase the amount of social services both of the Defendants allegedly

receive and that Carl Mariuz has improperly collected disability insurance benefits and worker’s

compensation benefits. See Comp. at ¶12. Throughout his Complaint the Plaintiff claims that

Patricia Mariuz “defrauded the Court” – the undersigns construes this to refer to a state court –

engaged in acts of perjury, and disregarded various court orders. See Comp. at ¶10; see also

Comp., “Exhibit List and Documents of Criminal Activity” at pp. 2-3. Plaintiff also alleges that

Patricia Mariuz “victimized” their children during their child custody battle and that Carl Mariuz

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 Although Plaintiff references alleged damages sustained by his children, Plaintiff has

only commenced this action in his own name.

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assaulted the Plaintiff and has made “more than a dozen threats of violence, revenge and

warnings in an attempt to intimidate [the] Plaintiff . . . .” See Comp. at ¶14.

Plaintiff concludes that these factual allegations state six separate causes of action. See

Comp. at ¶¶15-24. Plaintiff asserts that the acts of Patricia Mariuz and Carl Mariuz, along with

the actions and participation of the business entities allegedly owned and operated by Carl

Mariuz, constitute a pattern of racketeering activity in violation of RICO, 18 U.S.C. §1962(c),

and are colorable as civil claims under RICO’s private right of action provision, 18 U.S.C.

§1964(c). See Comp. at ¶¶15-16. Plaintiff specifies that the predicate violations establishing his

RICO claim are mail fraud, wire fraud, obstruction of justice, “others that will become known

during discovery process,” and acts of violence and threats of violence, see Comp. at ¶6, and that

Mariuz Property Management and RTBK of the Hudson “are entities engaged in, or the activities

of which, affect interstate commerce,” see Comp. at ¶16. Plaintiff’s second cause of action

alleges that the Defendants have “improperly enrich[ed] themselves to the detriment of the

Plaintiff . . . by their wrongful conduct,” see Comp. at ¶17, and his third and fourth causes of

action allege that the Defendants have engaged in acts of conspiracy, fraud, and “tortuous

interference (sic),” see Comp. at ¶¶18-21. Lastly Plaintiff contends that the “Defendants

willfully and wrongfully continue their acts of fraud, conspiracy and deception,” and that “[he]

has suffered emotional distress along with his children,” see Comp. at ¶¶22, 23.2

 Plaintiff seeks

“three-fold damages, costs, interest, attorney’s fees, injunctive relief and punitive wrongful

damages up to ten million dollars . . . .” See Comp. at ¶24.

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C. Defendants’ Motion to Dismiss

In lieu of an Answer Defendant Carl Mariuz has filed a motion to dismiss seeking

dismissal of the Plaintiff’s Complaint on several grounds, including improper subject matter

jurisdiction and failure to state a claim. See Docket #3, Carl Mariuz’s Notice of Motion. In his

accompanying affidavit, Carl Mariuz alleges that the $75,000 statutory amount in controversy

has not been met, that the Plaintiff has failed to identify any losses or damages attributable to the

Defendants’ alleged wrongdoing, and that the Plaintiff lacks standing to bring a civil lawsuit

complaining of disability insurance fraud, worker’s compensation fraud, or insurance fraud. See

Docket #3, Notice of Motion, Affidavit (herein, “Carl Mariuz Aff.”) at ¶¶3-5. In his affidavit

Carl Mariuz also denies any knowledge of RTBK of the Hudson and claims that Mariuz Property

Management does not engage in interstate commerce. See Carl Mariuz Aff. at ¶7. Defendant

Patricia Mariuz has served notice on the Plaintiff that she joins Defendant Carl Mariuz’s motion

to dismiss the Plaintiff’s Complaint in its entirety. See Docket #15.

An initial pretrial conference with the Plaintiff and Defendant Carl Mariuz present in

personam was held before the undersigned on January 17, 2008, at which time a briefing

schedule was set for the instant dispositive motion. For the following reasons I conclude, and

respectfully recommend that Your Honor should conclude, that the Defendants’ motion to

dismiss the Plaintiff’s civil RICO claim for failure to state a claim should be granted and that the

Defendants’ motion to dismiss the Plaintiff’s remaining state law claims for a want of subject

matter jurisdiction should also be granted.

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DISCUSSION

A. Motion to Dismiss Standard of Review

Defendants have filed a motion to dismiss challenging both the propriety of the Court’s

subject matter jurisdiction and the propriety of the allegations contained within the Plaintiff’s

Complaint. See Carl Mariuz Aff. at ¶2. These arguments raise independent grounds in support

of dismissal of the Plaintiff’s Complaint. Defendants’ motion to dismiss for want of subject

matter jurisdiction is evaluated under FED. R. CIV. P. 12(b)(1), and Defendants’ motion to

dismiss for failure to state a claim is evaluated under FED. R. CIV. P. 12(b)(6). Each standard

will be explained separately.

1. Rule 12(b)(1) Motion to Dismiss for a Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction, which is to say that a federal court must

have valid subject matter jurisdiction over a party’s claim or claims in order for it to adjudicate

the case or controversy. See, e.g., Marshall v. Marshall, 126 S. Ct. 1735, 1741 (2006); Gottlieb

v. Carnival Corp., 436 F.3d 335, 337 (2d Cir. 2006) (“federal courts are courts of limited

jurisdiction which thus require a specific grant of jurisdiction.”) (quotation omitted). Common

grants of federal subject matter jurisdiction include diversity jurisdiction, 28 U.S.C. §1332,

federal question jurisdiction, 28 U.S.C. §1331, and in certain circumstances, supplemental

jurisdiction, 28 U.S.C. §1367(a). As has been noted many times, the Federal Rules of Civil

Procedure neither create nor deny federal subject matter jurisdiction, see Owen Equipment &

Erection Co. v. Koger, 437 U.S. 365, 370 and n.7 (1978), and the court itself is under an

obligation to address issues of subject matter jurisdiction sua sponte, see Cave v. E. Meadow

Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008).

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The Plaintiff bears the burden of establishing by a preponderance of the evidence that

there exists a colorable basis of proper subject matter jurisdiction. See Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 476 (2d Cir. 2006). Although the Plaintiff’s well pled allegations are

assumed to be true on a motion to dismiss, id., a federal court may resolve factual disputes on a

motion to dismiss for a lack of proper subject matter jurisdiction by considering evidence

extrinsic to the complaint in an effort to ensure that it is the proper forum in which a dispute can

be heard, see State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d

Cir. 2007). Should a court decide that it lacks the “statutory or constitutional power to

adjudicate” a dispute, it may dismiss the suit for a lack of subject matter jurisdiction. See

Aurecchione v. Schoolman Transp. Sys., 426 F.3d 635, 638 (2d Cir. 2005).

2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

When considering a defendant’s Rule 12(b)(6) motion to dismiss, “the court must take all

facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.” 

Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004). Under this standard, “[d]ismissal is

inappropriate unless it appears beyond a doubt that the plaintiff can prove no set of facts which

entitle him or her to relief.” Id. A Rule 12(b)(6) motion to dismiss thus challenges the legal

sufficiency of the Plaintiffs’ averments and only should be granted when “it appears beyond

doubt that the Plaintiff can prove no set of facts in support of his [or her] claim which would

entitle him [or her] to relief,” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Put another way,

“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law,”

Neitzke v. Williams, 490 U.S. 319, 326 (1989), and granting a Rule 12(b)(6) motion to dismiss is

considered a ruling on the merits of the Plaintiffs’ claims, see Alliance for Envtl. Renewal, Inc.

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v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006).

B. Plaintiff’s Complaint

1. Civil RICO Claim

a. Pleading Requirements

Plaintiff’s challenges to the actions of Defendants Carl Mariuz and Patricia Mariuz are

disputes arising out of his previous marriage to, and separation from, Defendant Patricia Mariuz. 

Plaintiff attempts to bring these domestic relations disputes before this Court through the RICO

civil private right of action provision, 18 U.S.C. §1964(c). The federal RICO statute, however,

is a complex statutory scheme that mandates that specific pleading requirements must be met

before a civil complainant can bring suit. These robust threshold requirements are predicated on

the fact that a RICO claim can have a profound impact on a defendant. See, e.g., Cedar Swamp

Holdings, Inc. v. Zaman, 487 F. Supp. 2d 444, 449 (S.D.N.Y. 2007) (“RICO . . . is an unusually

potent weapon . . .”) (quotation omitted); Feirstein v. Nanbar Realty Corp., 963 F. Supp. 254,

257 (S.D.N.Y. 1997) (“alleged RICO violations must be reviewed with appreciation of the

extreme sanctions it provides . . .”) (quotation omitted). In light of these concerns the Second

Circuit has explicitly cautioned the district courts to be cognizant of the “creative pleading” a

plaintiff may use in an effort to massage a state law dispute into a federal racketeering claim. 

See Lerner v. Fleet Bank, N.A., 318 F.3d 113, 116 (2d Cir. 2003).

This action is not the first action in which a civil complainant seeks to present and litigate

domestic relations issues as federal RICO claims. See, e.g., Capasso v. Cigna Ins. Co., 765 F.

Supp. 839 (S.D.N.Y. 1991); Pohlot v. Pohlot, 664 F. Supp. 112 (S.D.N.Y. 1987); Dangerfield v.

Merrill Lynch, 02 Civ. 2561 (KMW)(GWG), 2003 WL 22227956 (S.D.N.Y. Sept. 26, 2003). 

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While there is no de jure bar to asserting domestic relations disputes as civil RICO claims under

18 U.S.C. §1964(c), meeting the following required RICO pleading elements in such a factual

context is quite difficult.

In order to state a valid civil RICO claim, a plaintiff must allege that a person who was

“employed by or associated with any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce” conducted or participated in the “enterprise’s affairs through a

pattern of racketeering activity.” 18 U.S.C. §1962(c). The RICO scheme provides technical

statutory definitions for each of these terms, including “racketeering activity,” “person,”

“enterprise,” and “pattern of racketeering activity.” 18 U.S.C. §1961(1), (3)-(5). The Supreme

Court has held that a RICO person – that is the individual who directs the RICO enterprise –

must be distinct from the RICO enterprise itself, see Cedric v. Kushner Promotions, Ltd. v. King,

et. al., 533 U.S. 158, 161 (2001), and that a RICO enterprise must be “separate and apart from

the pattern of [racketeering] activity in which it engages,” United States v. Turkette, 452 U.S.

576, 583 (1981). The RICO statute defines a “pattern of racketeering activity” as including “any

act which is indictable” under a series of federal criminal laws, including mail fraud, wire fraud,

obstruction of justice, and witness tampering, and a RICO plaintiff bears the dual burden of

pleading both the “pattern of racketeering activity” and the substantive violations of federal

criminal law that comprise the pattern of racketeering activity. See, e.g., Bank of China v. NBM

LLC, 359 F.3d 171, 176-77 (2d Cir. 2004) (explaining that proof of underlying criminal action is

a part of establishing a civil RICO claim). Some of the substantive federal criminal violations

that can comprise a pattern of racketeering activity, such as mail fraud and wire fraud, are

subject to FED. R. CIV. P. 9(b)’s heightened pleading standard governing the pleading of

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allegations of fraud. See Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir. 1999). 

Additionally, a plaintiff must adequately allege that the RICO person or persons participated or

directed the affairs of the enterprise and that the enterprise’s affairs affect interstate or foreign

commerce or that the enterprise itself affects interstate or foreign commerce. United States v.

Roberston, 514 U.S. 669, 671-72 (1995).

The Supreme Court has grafted additional pleading requirements on to the fundamental

statutory pleading requirements a plaintiff must satisfy in order to state a colorable civil RICO

claim. Among these additional requirements is a proximate cause showing that requires a

plaintiff to allege that he or she was “injured in his [or her] business or property by reason of a

violation of [18 U.S.C. §1962].” Holmes v. Sec. Investors Prot. Corp., 503 U.S. 258, 268

(1992); see also Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006) (explaining Holmes

as requiring more than “but for” causation). This proximate cause requirement, in turn, is but

one of the three required elements a plaintiff must establish to show that he or she has statutory

standing – also referred to as RICO standing – to bring a civil RICO claim. See Lerner, 318 F.3d

at 120 (explaining that the three elements of statutory standing are (1) a violation of §1962, (2)

an injury to the plaintiff’s business or property, and (3) a proximate cause showing between the

statutory violation and the injury) (quoting Commercial Cleaning Serv., L.L.C. v. Colin Serv.

Sys., Inc., 271 F.3d 374, 380 (2d Cir. 2001)).

b. Plaintiff’s Civil RICO Claim

In lieu of a lengthy analysis evaluating the sufficiency of the Plaintiff’s pleadings and

assessing whether he has adequately plead the existence of RICO persons, a RICO enterprise,

and a pattern of racketeering activity, I conclude, and respectfully recommend that Your Honor

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should conclude, that the Court need only analyze and conclude that the Plaintiff cannot

adequately establish the necessary proximate cause linkage between the alleged RICO violations

committed by the Defendants and the alleged injury he claims he sustained as a result of these

violations. I therefore conclude, and respectfully recommend that Your Honor should conclude,

that the Plaintiff’s civil RICO claim should be dismissed for failure to state a claim under Rule

12(b)(6). 

In order to satisfy the proximate cause pleading requirement, a plaintiff must show that

his or her injuries occurred “by reason of” the predicate acts committed in the course of the

pattern of racketeering activity. Lerner, 318 F.3d at 123 (quoting First Nationwide Bank v. Gelt

Funding Corp., 27 F.3d 763, 769 (2d Cir. 1994)). In this instance, Plaintiff advances that

Defendants’ alleged acts of mail fraud, wire fraud, and obstruction of justice committed during

the course of a state court proceeding resulted in him receiving a lesser “Marital Settlement

Agreement.” See Comp. at ¶11. This theory that the Plaintiff relies upon – that he suffered

injury because of the fraud perpetrated on a non-party to this case – has been discredited by the

Supreme Court and the Second Circuit and has been held to be insufficient to establish

proximate causation as a matter of law. See Anza, 547 U.S. at 457-58; Lerner, 318 F.3d at 123. 

In both Anza and Lerner, the Supreme Court and the Second Circuit respectively explained that

compensable RICO damages must flow directly from the commission of the predicate RICO acts

themselves and cannot be the result of an intermediary’s actions that may have be induced or

caused by the alleged RICO activity. See Anza, 547 U.S. at 459 (highlighting how “attenuated

connections” between alleged RICO violations and injuries do not establish proximate cause). 

As was the case in both Anza and Lerner, it is entirely possible in this case that the Plaintiff

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would have received the same marital settlement amount regardless of whether the alleged RICO

acts occurred because the decision that allegedly lead to the Plaintiff’s injury was made by a

neutral third-party; Plaintiff has failed to offer and has not otherwise pled how the Defendants’

alleged RICO activity definitively caused him to receive a lesser “marital settlement award.”

Other courts within this district that have been presented with similar domestic relations

disputes fashioned as civil RICO claims have also emphasized that a plaintiff’s “mere

expectation of a favorable decree awarding [him or her] a share of . . . assets in [a] state court

matrimonial action does not constitute a property interest protected under RICO.” Pohlot, 664 F.

Supp. at 116; Capasso, 765 F. Supp. at 842 (relying on Pohlot). Similar to the claim in Pohlot,

which was based upon an alleged fraud committed by the defendants that was alleged to have

resulted in a lesser marital award to the plaintiff, the claim in the instant case is predicated upon

an assumption that a larger marital settlement award could have been awarded to the Plaintiff

had the Defendants not committed the alleged RICO activity. 664 F. Supp. at 116. Similar to

the dismissal of the RICO claim in Pohlot due to the absence of a cognizable property interest

protected by the RICO statute, the RICO claim in this case should also be dismissed due to the

similar absence of a protected property interest under the terms of the RICO statute. Id.

In addition to these pleading defects, the undersigned also concludes that the Plaintiff’s

Complaint does not sufficiently plead whether the Defendants’ alleged pattern of criminal

activity “amount[s] to or pose[s] a threat of continuing criminal activity.” H.J. Inc. v.

Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). This continuity of criminal activity

requirement – which is also a requirement of pleading a valid civil RICO claim – must be

“satisfied either by showing a ‘closed-ended’ pattern [of criminal activity] – a series of related

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predicate acts extending over a substantial period of time – or by demonstrating an ‘open-ended’

pattern of racketeering activity that poses a threat of continuing criminal conduct beyond the

period during which the predicate acts were performed.” Spool v. World Child Int’l Adoption

Agency, et al., 2008 WL 706580, at *4 (2d Cir. Mar. 18, 2008). Plaintiff’s perfunctory assertion

that the Defendants committed some criminal activity at some point after his divorce from

Defendant Patricia Mariuz neither forms an adequate basis of an open-ended pattern of criminal

activity nor a sufficient basis of a closed-ended pattern of criminal activity spanning a substantial

period of time. Id. at *13 (noting that a closed-ended pattern of criminal activity usually must

last for more than two years).

A review of the Plaintiff’s pleading of the underlying predicate RICO violations of mail

fraud and wire fraud also leads me to conclude and respectfully recommend that the heightened

pleading specifications required by Rule 9(b) of the Federal Rules of Civil Procedure have not

been met in this case. See Spool, 2008 WL 706580, at *15-16. Under Rule 9(b), “[i]n all

averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated

with particularity.” Pursuant to Second Circuit case law addressing the pleading of claims of

mail fraud and wire fraud under Rule 9(b), a plaintiff must “specify the statements [he or she]

claims were false or misleading, give particulars as to the respect in which [he or she] contend[s]

the statements were fraudulent, state when and where the statements were made, and identify

those responsible for the statements.” Moore, 189 F.3d at 173. A cursory review of the

Plaintiff’s Complaint leads me to conclude that the Plaintiff’s Complaint fails to comport with

these heightened pleading standards. Plaintiff only avers that the Defendants’ “actions constitute

a ‘criminal enterprise’ [u]sing State and Interstate wires, U.S. Mail and Interstate transportation

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in aid of racketeering enterprises and obstruction of justice (18 USCS § 1952) (sic).” See Comp.

at ¶7. This attempt to plead mail fraud and wire fraud, however, is only a recitation of some of

the statutory language employed by the RICO statute and is otherwise devoid of any factual

specificity of when the alleged fraud was made, who perpetrated the fraud, or what about the

contents of the communications was fraudulent and how such fraudulent information caused the

Plaintiff to suffer injury. Sparse pleading composed only of statutory terminology is insufficient

to state a claim for relief either under the traditional pleading requirements of Rule 12(b)(6) and

8(a) or under the heightened pleading requirements of Rule 9(b). Spool, 2008 WL 706580, at

*16-17.

Finally it should be noted that Plaintiff cannot predicate his civil RICO claim on

allegations of criminal activity that fall outside of the scope of criminal activity delineated in 18

U.S.C. §1961. See Spool, 2008 WL 706580, at *4 (“The acts of racketeering activity that

constitute the pattern must be among the various criminal offenses listed in §1961(1) . . .”). 

Plaintiff’s suggestion that the Defendants have committed welfare fraud, insurance fraud,

worker’s compensation fraud, and other acts of “violence [and] threats of violence,” therefore

offer no valid ground upon which he can base his civil RICO claim. Plaintiff’s additional

argument that the Defendants committed obstruction of justice is equally unhelpful to his civil

RICO claim as the Second Circuit has held that allegations of obstruction of justice must occur

during the course of a federal proceeding in order to be cognizable in a federal civil RICO cause

of action; here, Plaintiff appears to allege that the Defendants committed obstruction of justice in

the course of a state court proceeding. See O’Malley v. New York City Trans. Auth., 896 F.2d

704, 707 (2d Cir. 1990) (“To constitute an offense under [the obstruction of justice] statute, the

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 Because I have recommended that the Plaintiff’s allegations of a civil RICO claim fail

to state a claim and that this claim should be dismissed with prejudice, it does not appear

appropriate in this instance to retain jurisdiction over these remaining state law claims under the

Court’s grant of supplemental jurisdiction in the absence of any other federal constitutional or

statutory claim. See Cave, 514 F.3d at 250.

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act must relate to a proceeding in a federal court of the United States.”).

c. Nature of Order of Dismissal

Although the practice in this Circuit and this District is to dismiss a Complaint for failure

to state a claim under Rule 12(b)(6) without prejudice to re-file, it appears to the undersigned

that the Plaintiff cannot overcome the defects concerning the proximate cause showing identified

above by re-pleading his averments in a more precise or detailed fashion because his theory of

RICO liability is defective as a matter of law. See, e.g., See Van Buskirk v. N.Y. Times Co.,

325 F.3d 87, 91 (2d Cir. 2003) (noting that although a district court should consider dismissal of

pleadings without prejudice, “a district court need not as a matter of course dismiss a complaint

without prejudice to an attempted amendment of the pleadings.”). Accordingly, because

allowing the Plaintiff an opportunity to re-file his civil RICO claim would be futile, I

respectfully recommend that the Plaintiff’s civil RICO cause of action should be dismissed with

prejudice. See Foman v. Davis, 371 U.S. 178. 182 (1962) (emphasizing that leave to amend

pleadings can be denied upon showing of futility of amendment).

2. State Law Claims

Plaintiff’s remaining causes of action for unjust enrichment, “tortuous interference (sic),”

conspiracy, fraud, and emotional distress, – Counts Two through Six in the Complaint – which

appear to be state common law claims, can only be heard in this Court under its grant of

diversity jurisdiction, 28 U.S.C. §1332, or supplemental jurisdiction, 28 U.S.C. §1367.3

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Contrary to the Plaintiff’s assertion in his Complaint that the rule of complete diversity among

all plaintiffs and all defendants is flexible depending on the circumstances of the case, see Comp.

at ¶6 (citing Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985)), complete diversity among all

plaintiffs and all defendants remains the binding interpretation of the federal diversity

jurisdiction statute, 28 U.S.C. §1332(a)(1). See Handelsman v. Bedford Village Assocs., 213

F.3d 48, 51 (2d Cir. 2000) (citing, inter alia, Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381,

388 (1998) (“A case falls within the federal court’s original diversity jurisdiction only if

diversity of citizenship among all of the parties is complete, i.e., only if there is no plaintiff and

no defendant who are citizens of the same State.”)).

In this case, Plaintiff and Defendant Carl Mariuz, along with Mariuz Property

Management and RBTK of the Hudson, are each alleged to be residents of New York, thus

divesting this Court of proper subject matter jurisdiction under §1332(a)(1). See Comp. at ¶¶1,

2. Thus, in light of the similar state residency shared by the Plaintiff and Defendant Carl Mariuz

and the business entities Plaintiff maintains that Defendant Carl Mariuz controls, I respectfully

recommend that the Court lacks valid diversity jurisdiction over the Plaintiff’s state law causes

of action and that these claims must be dismissed pursuant to Rule 12(b)(1).

CONCLUSION

For the aforementioned reasons I conclude, and respectfully recommend that Your Honor

should conclude, that the Plaintiff’s civil RICO claim fails to state a claim for relief and should

be dismissed with prejudice and that the Plaintiff’s remaining state law claims cannot be heard in

this court due to a lack of proper subject matter jurisdiction. In the absence of any surviving

federal claim, this Court should not exercise supplemental jurisdiction over any of the state law

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