Gill v. Nakamura

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael J. Gill
v. Case No. 15-cv-349-JL
Linda-Marie Nakamura
REPORT AND RECOMMENDATION
In a case that has been transferred from the District of
Massachusetts, and in which both parties are proceeding pro se,
Michael Gill has sued Linda-Marie Nakamura in four counts. He
asserts two claims under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (Counts 3 and
4), along with state-law claims for breach of the implied
covenant of good faith and fair dealing (Count 1) and fraud
(Count 2). Before the undersigned magistrate judge for a report
and recommendation is defendant’s unopposed motion for judgment
on the pleadings (doc. no. 37). For the reasons that follow,
defendant’s motion should be granted.
The Legal Standard
“The standard of review of a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) is the
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same as that for a motion to dismiss under Rule 12(b)(6).”
Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st
Cir. 2014) (quoting Marrero-Gutierrez v. Molina, 491 F.3d 1, 5
(1st Cir. 2007)).
Ruling on a motion to dismiss for “failure to state a claim
upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6),
requires the court to conduct a limited inquiry, focusing not on
“whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When considering
such a motion, a trial court must “accept as true all well-
pleaded facts in the complaint and draw all reasonable
inferences in the pleader’s favor.” Guerra-Delgado v. Popular,
Inc., 774 F.3d 776, 780 (1st Cir. 2014) (citing Tasker v. DHL
Ret. Sav. Plan, 621 F.3d 34, 38 (1st Cir. 2010)). In addition,
because Gill is proceeding pro se, the court construes his
complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
To survive a Rule 12(b)(6) motion, a “complaint must
contain enough factual material to raise a right to relief above
the speculative level . . . and state a facially plausible legal
claim.” Guerra-Delgado, 774 F.3d at 780 (quoting Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011));
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see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
To meet that standard, it is not sufficient merely to recite the
elements of a cause of action. See Lydon v. Local 103, Int’l
Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Nor is it
sufficient to allege “facts that ‘are too meager, vague, or
conclusory to remove the possibility of relief from the realm of
conjecture . . . .’” Lydon, 770 F.3d at 53 (quoting SEC v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010)).
Background
The facts recited in this section are drawn from Gill’s
complaint (doc. no. 1), and have been liberally construed.
Gill is the president and sole owner of the Mortgage
Specialists, Inc. (“MSI”). Nakamura worked as a paralegal for
both for MSI and Gill.
While working for MSI, Nakamura often failed to schedule
depositions. She also destroyed evidence, worked with opposing
counsel to recruit new hires to work as spies, provided inside
information to opposing counsel that was helpful to their
clients and damaging to MSI, and assisted opposing counsel by
getting key parts of MSI’s cases dismissed.
While working with Gill to prepare a request for a
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reduction in support payments, Nakamura only prepared
information regarding child support. Her intentional omission
of information regarding alimony cost Gill thousands of dollars.
This action followed. In it, Gill asserts that by engaging
in the conduct described above, Nakamura is liable to him for
breaching the implied covenant of good faith and fair dealing,
committing fraud, and violating two separate RICO provisions.
Discussion
Nakamura moves for judgment on the pleadings. She argues
specifically that Gill has failed to state a claim upon which
relief can be granted under any of the four legal theories on
which he relies. Nakamura is correct. The court considers each
claim in turn.
I. Count 1: Good Faith and Fair Dealing
In Count 1, Gill asserts that Nakamura is liable to him for
violating the implied covenant of good faith and fair dealing.
In Centronics Corp. v. Genicom Corp., the New Hampshire Supreme
Court explained that the implied covenant of good faith and fair
dealing imposes a “duty in three distinct categories of contract
cases: those dealing with standards of conduct in contract
formation, with termination of at-will employment contracts, and
with limits on discretion in contractual performance,” 132 N.H.
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133, 139 (1989). Gill’s complaint does not indicate which
category his claim against Nakamura falls into. He has alleged
no facts that could possibly make this a case about either
contract formation or the termination of at-will employment,
which leaves the third category, cases involving limits on
discretion in contract performance. The Centronics decision
discusses that category of cases at some length, and Gill has
alleged no facts that could, even when construed liberally, make
this a case about “an agreement that appears by word or silence
to invest one party with a degree of discretion in performance
sufficient to deprive another party of a substantial proportion
of the agreement’s value,” id. at 143. Accordingly, Gill has
failed to state a claim that Nakamura is liable to him for
violating the implied covenant of good faith and fair dealing.
II. Count 2: Fraud
In Count 2, Gill asserts that Nakamura is liable to him for
fraud. “The tort of intentional misrepresentation, or fraud,
must be proved by showing that [a] representation was made with
knowledge of its falsity or with conscious indifference to its
truth and with the intention of causing another person to rely
on the representation.” Tessier v. Rockefeller, 162 N.H. 324,
332 (2011) (quoting Patch v. Arsenault, 139 N.H. 313, 319
(1995)). The Federal Rules of Civil Procedure require that
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“[i]n alleging fraud . . . a party must state with particularity
the circumstances constituting fraud.” Fed. R. Civ. P. 9(b).
To satisfy that requirement, a complaint must, among other
things, “indicate when, where, and how often the allegedly false
statements were made [and] what, specifically, was stated.”
Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 358 (1st Cir.
2013). Here, Gill alleges: “Defendant has made false statements
of material fact to the Plaintiff with either knowledge of their
falsity or with conscious indifference to their truth;
including, but not limited to, the defendant’s knowingly false
representations that (a), (b), (c), etc.” Compl. ¶ 17. Neither
that allegation nor any other part of Gill’s complaint satisfies
the Rule 9(b) specificity requirement; nowhere does Gill
identify any statements made by Nakamura. Accordingly, Gill has
failed to state a claim that Nakamura is liable to him for
intentional misrepresentation.
III. Count 3: RICO
In Count 3, Gill asserts that Nakamura violated 18 U.S.C. §
1962(c) by committing acts of racketeering within the meaning of
18 U.S.C. § 1961(1)(3). There is no 18 U.S.C. § 1961(1)(3), and
so the court presumes that plaintiff intended to cite 18 U.S.C.
§ 1961(1). Under the statute on which Gill relies for his cause
of action, it is
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unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). Thus:
To state a civil RICO claim, . . . a plaintiff must
allege: “(1) conduct, (2) of an enterprise, (3)
through [either] a pattern . . . of racketeering
activity,” Kenda Corp. v. Pot O’Gold Money Leagues,
Inc., 329 F.3d 216, 233 (1st Cir. 2003) (quotations
omitted), or “a single collection of an unlawful
debt,” United States v. Weiner, 3 F.3d 17, 24 (1st
Cir. 1993).
Home Orthopedics Corp. v. Rodríguez, 781 F.3d 521, 528 (1st Cir.
2015). 18 U.S.C. § 1961(1) “specifically enumerates what kinds
of illegal acts count as ‘racketeering.’” Id. That specific
enumeration is presented in seven broad categories covering more
than 100 different crimes. Other than saying that “[d]efendant
committed acts of racketeering within the meaning of 18 U.S.C. §
1961(1)(3),” Compl. ¶ 26, Count 3 gives no hint as to the
crime(s) that underpin Gill’s RICO claim. That said, the RICO
conspiracy claim Gill asserts in Count 4 does identify five
specific crimes. See Compl. ¶ 29. But nowhere in Count 4, or
in any other part of the complaint, does Gill allege any facts
that, if proven at trial, would establish a violation of any of
the criminal statutes identified in paragraph 29. In other
words, the facts Gill alleges “are too meager, vague, or
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conclusory to remove the possibility of relief from the realm of
conjecture” Lydon, 770 F.3d at 53 (internal quotation marks
omitted). In sum, even when the complaint is construed with all
the liberality it is due, see Erickson, 551 U.S. at 94, it fails
to state a claim upon which relief can be granted under 18
U.S.C. §1962(c).
IV. Count 4: RICO Conspiracy
In Count 4, Gill asserts that Nakamura violated 18 U.S.C. §
1962(d) by conspiring to violate 18 U.S.C. § 1962(c). 18 U.S.C.
§ 1962(d) makes it “unlawful for any person to conspire to
violate any of the provisions of subsection (a), (b), or (c) of
this section.” In order to state a conspiracy claim under RICO,
a plaintiff must adequately allege:
(1) the existence of an enterprise affecting
interstate [or foreign] commerce, (2) that the
defendant knowingly joined the conspiracy to
participate in the conduct of the affairs of the
enterprise, (3) that the defendant participated in the
conduct of the affairs of the enterprise, and (4) that
the defendant did so through a pattern of racketeering
activity by agreeing to commit, or in fact committing,
two or more predicate offenses.
United Stated v. Ramírez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015)
(quoting Unites States v. Shifman, 124 F.3d 31, 35 (1st Cir.
1997)).
The conspiracy claim that Gill asserts in Count 4 consists
exclusively of this:
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The Defendant conspired with other attorneys and
paralegals to violate the provisions of 18 U.S.C. §
1503 (relating to obstruction of justice); 18 U.S.C. §
1510 (relating to obstruction of criminal
investigations); 18 U.S.C. § 1511 (relating to the
obstruction of State or local law enforcement); 18
U.S.C. § 1512 (relating to tampering with a witness,
victim, or an informant); and 18 U.S.C. § 1513
(relating to retaliating against a witness, victim, or
an informant).
Compl. ¶ 29.
Gill does not even go so far as to identify the elements of
his cause of action, the mere recitation of which would be
insufficient to state a claim. See Lydon, 770 F.3d at 53.
Moreover, even when the complaint is construed liberally, it
does not “set forth factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory.” Feingold
v. John Hancock Life Ins. Co. (USA), 753 F.3d 55, 60 (1st Cir.
2014) (quoting Lemelson v. U.S. Bank Nat’l Ass’n, 721 F.3d 18,
21 (1st Cir. 2013)). Accordingly, Gill has failed to state a
claim upon which relief can be granted under 18 U.S.C. §
1962(d). See Feingold, 753 F.3d at 60 (ruling that when
plaintiff fails to make adequate factual allegations, dismissal
for failure to state a claim is appropriate).
Conclusion
For the reasons described above, this court recommends that
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defendant’s motion for judgment on the pleadings, doc. no. 37,
be granted.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 22, 2015
cc: Michael J. Gill, pro se
Linda-Marie Nakamura, pro se
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