Case 1:15-cv-21811-UU Document 40 Entered on FLSD Docket 09/02/2015 Page 1 of h UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 1:15-ev-21811-UU. GIANFRANCO RONDON, Plaintiff, v. GIANFRANCO NAPOLITANO et al., Defendants. ORDER THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss Plaintiff's First ‘Amended Complaint. D.E, 18. On July 6, 2015, Plaintiff filed a response, D.E. 21, and on July 2015, Defendants filed a reply, D.E. 24. Thus, the Motion is ripe for disposition, ‘THE COURT has considered the Motion and pertinent portions of the record, and is othe fully advised in the premises. For the reasons stated below, Defendants’ Motion is GRANTED. BACKGROUND This action consists of claim under the Racketeer Influenced and Corrupt Organization: RICO”) and state law claims for a preliminary injunction and defamation, Defendants move to) pursuant to Rules 9(b) and 12(b)(6), Fed. R. Civ. P, The Court therefore accepts as true the follo facts taken from Plaintiff's Amended Complaint for the purpose of resolving Defendants’ Motion Dismiss: Page 1 of 11 miss agCase 1:15-cv-21811-UU Document 40 Entered on FLSD Docket 09/02/2015 Page 2 of Li 1] Plaintiff Gianfranco Rondon maintains that Defendants Gianfranco Napolitano, Doral | Newspaper, LLC, Doral News TV, Inc., Patricia Poleo and Jonathan Leon commenced an extortichy scheme against him by publishi a series of false and defamatory news articles and other statemeny that negatively affected his busin: | (Am, Compl. 4/21.) According to Plaintiff, he was approached in Tanuary of 2015 to buy Doral Newspaper and Doral TV for $5,000,000 and when he refused to pi Defendants published defamatory statements and stories in February and March of 2015. (Am. } Compl. {¥j 22-24.) Plaintiff further alleges that Defendant Napolitano admitted to individuals Fa he |would stop publishing stories about Plaintiff if paid $5,000,000 and that if he was not paid, he wuld publish further stories with larger news outlets. (Am. Compl. §f] 31-33 & 42.) On March 16, 20}, Plaintiff alleges that he sent to Defendants Doral Newspaper, Poleo and Leon a letter demanding tat the defamatory statements be retracted but as of the filing of the Amended Complaint, the statemprts have not been retracted. (Am. Compl. §¥ 43-44.) | LEGAL STANDARD In order to state a claim for relief, Federal Rule of ivil Procedure 8(a)(2) requires only “A short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Colp) V. Twombly, 127 S. Ct 1955, 1964 (2007). Additionally, when a party makes allegations of fraud, ‘the circumstances constituting the fraud . . . shall be stated with particularity.” Fed. R. Civ. P. 9(b). ivil RICO claims, which are essentially a certain breed of fraud claims, must be pled with an increaséd |evel of specificity.” Ambrosia Coal & Const. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007). “To satisfy the Rule 9(b) standard, RICO complaints must allege: (1) the precise statemen|s, Page 2 of 11Case 1:15-cv-21811-UU Document 40 Entered on FLSD Docket 09/02/2015 Page 3 of Lt | documents, or mistepresentations made; (2) the time and place of and person responsible for the | statement; (3) the content and manner in which the statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud.” Id. at 1316-17. | Furthermore, on a Rule 12(b)(6) motion to dismiss the complaint for failure to state a clap) upon which relief can be granted, the court takes the factual allegations in the complaint as true an construes them in the light most favorable to the plaintiff. Edwards v. Prime Inc., 602 F.3d 124 | 1291 (Ith Cir, 2010). ‘The Court does not view each fact in isolation; but rather considers the | | complaint in its entirety. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). || And conclusory allegations will not suffice to state a claim; rather, the complaint must allege sufficient facts to state a plausible claim to relief. See Ashcrofi v. Igbal, 556 U.S. 662, 678 (2009) (“[T}he | | tenet that a court must accept as true all of the allegations contained in a complaint is inapplicably lo egal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere | | conclusory statements, do not suffice.”). This means that the factual content of the complaint mus} “allow{] the court to draw the reasonable inference that the defendant is liable for the misconduct | alleged.” Jd. “Dismissal for failure to state a claim is proper if the factual allegations are not ‘enbjizh to raise a right to relief above the speculative level.” Edwards, 602 F.3d at 1291 (quoting Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (1 Ith Cir. 2008)). DISCUSSION ‘The Amended Complaint contains the following five counts: (I) a RICO claim; (2) a request for a preliminary injunction against all Defendants; (3) and three claims of defamation against Polea, Doral News and Leon, The Court will first address Rondon’s RICO claim. Page 3 of 11 |Case 1:15-cv-21811-UU Document 40 Entered on FLSD Docket 09/02/2015 Page 4 of Lf 1. RICO Claim under 18 U.S.C. § 1962 Asa threshold matter, Plaintiff failed to allege in his Amended Complaint whether the vuole conduct violated 18 U.S.C. § 1962(a), (b), (c) and (d). However, construing the allegations in the! Lint most favorable tothe plaintiff Plaintiff appears to be alleging that the Defendants violated 18 U.S. § 1962(b) & (c).! Therefore, the Court will construe the allegations accordingly. I} Pursuant to 18 U. 1962(b), “[i]t shall be unlawful for any person through a pattern racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or | | indirectly, any interest in or control of any enterprise which is engaged in, or the activities of whigh affect, interstate or foreign commerce.” And under 18 U.S.C. § 1962(c), itis illegal “for any perspp, employed by or associated with any enterprise engaged in, or the activities of which affect, interstale or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprist's affairs through a pattern of racketeering activity ....” 18 U.S.C. § 1962(c). “To recover on a cil RICO claim, the plaintiffs must prove, first, that § 1962 was violated; second, that they were injuFéd in their business or property; and third, that § 1962 violation caused the injury.” Rock v. BAE Sys. [ld ' On July 15, 2015, the Court ordered Rondon to file a Civil RICO Case Statement pursudi}t to S.D. Fla. LR. 12.1. D.E. 23. On July 31, 2015, after the filing of the Amended Complaint and after the Motion to Dismiss had been fully briefed, Rondon filed the Civil RICO Case Statement indicating that he is alleging a violation of 18 U.S.C. § 1962(b) & (c). D.E. 29. Although the Court notes that Rondon’s Civil RICO Case Statement makes it clear that he is alleging violations und¢r |8 U.S.C. § 1962(b) & (c), Rondon may not bypass the pleading requirements of RICO complaints b} filing a Civil RICO Case Statement. Plunkett v. Poyner, No. 08-60953-C1V, 2009 WL 5176542) at *4(S.D. Fla, Dec. 22, 2009) (“However, Plaintiff may not bypass the pleading requirements of RICO complaints by filing the Rule 12.1 Civil RICO Statement or pleading the statutory elements of hjs/RICO claims in his Response in lieu of amending the Complaint.”) Page 4 of 11Case 1:15-cv-21811-UU Document 40. Entered on FLSD Docket 09/02/2015 Page 5 of 14, 556 F. App’x 869, 871-72 (1 Ith Cir. 2014). In order to sufficiently allege a Section 1962 violation! plaintiff “*must satisfy four elements of proof: (1) conduct (2) of an enterprise (3) through a patte of racketeering activity.” Id. at 872 (quoting Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 (1 Ith Cir. 2006)). Defendants argue that the Amended Complaint should be dismissed because: (i) Plaintiff failed to sufficiently allege the organizational structure necessary to plead a RICO enterprise and that th | organizational structure was established for the purpose of conducting illegal activity; (ii) Plainti failed to allege that the scheme was continuous under either the closed-period or open-ended theory of | | continuity, which is necessary to establish a pattern of racketeering activity; (iii) Plaintiff failed td adequately allege that the crimes of extortion, mail fraud and wire fraud are predicate acts; and (iy) Plaintiff failed to suf jently allege an actual injury. DE, 18. In response, Plaintiff argues the fallewing: (i) he has adequately alleged an enterprise by stating that the Defendants engaged in a scheme ang acted together to extort money from Plaintiff; (ji) his RICO claim satisfies the open-ended theo 4 continuity because he alleges that the Defendants will continue their activities until they are paid! laf; and (iii) he adequately alleged extortion under Florida law and that he has been injured as a result of [is racketeering activity. D.E. 21. Plaintiff did not address the Defendants’ argument that he failed th adequately allege mail and wire fraud. | 2 Plaintiff also argues that the Motion to Dismiss should be denied because it was filed 3 hys after a response to the Amended Complaint was due. In response, the Defendants state that the | | ‘Amended Complaint was not mailed to their last known address, which is the address where the} | original Complaint was served. Because the Court finds that the Defendants have raised meritorigus arguments in their Motion to Dismiss, which will be discussed below, the Court will not deny t! ) Motion to Dismiss as untimely. | Page 5 of 11 !Case 1:15-cv-21811-UU Document 40. Entered on FLSD Docket 09/02/2015 Page 6 of A. Enterprise RICO defines an “enterprise” to include “any individual, partnership, corporation, associa or other legal entity, and any union or group of individuals associated in fact although not a legal ¢ 18 U.S.C. § 1961(4). To show “conduct of an enterprise,” a plaintiff must show that an enterprise had a common goal. Rock, 556 F. App’x at 872. Meaning, “a plaintiff must establish that a group persons associated together for the common purpose of engaging in an ongoing course of criminal conduct.” Courboin v. Scott, 596 F. App’x 729, 733 (1th Cir. 2014) (citation omitted). Furthermore, the enterprise must have three structural features: “a purpose, relationships among th associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009). ‘The Court agrees with the Defendants that Plaintiff failed to allege that the organizational structure of the enterprise was established for the purpose of conducting illegal activity. Aside fip alleging that the goal of the enterprise was to obtain $5,000,000, the Amended Complaint is dev any allegations that the Defendants associated together to engage in criminal activity. The allegati that Defendant Napolitano owned Defendants Doral Newspaper and Doral TV and that Defendayjt Poleo and Leon are employed by Doral Newspaper and Doral TV fail to show that the Defendants “were in cahoots and were conducting an enterprise.” Courboin, 596 F. App’x at 733. Additionally, the Court has serious doubts as to whether Plaintiff sufficiently alleged the! organizational structure necessary to plead a RICO enterprise. Plaintiff alleged a purpose of the enterprise but barely alleged a relationship among those associated with the enterprise or longevit except to say that the individual Defendants worked together and did so from November 2014, wl Page 6 of 11Case 1:15-cv-21811-UU Document 40. Entered on FLSD Docket 09/02/2015 Page 7 of 1 ‘Napolitano purchased a 50% interest in Doral Newspaper, until March 2015, when an alleged defamatory story was published, As a result, the Court finds that Plaintiff has failed to allege an enterprise, B. Pattern fo Racketeering Activity “A RICO ‘pattem’ is two predicate acts of racketeering within a ten-year period, and “racketeering activity’ is any act which is indictable under the list of criminal offenses in 18 U.S. 1961.” Rock, 556 F. App’x at 872. In order to sufficiently allege a pattern of racketeering activi plaintiff must “show that the racketeering predicates are related, and that they amount to or pose threat of continued criminal activity.”” Dysart v. BankTrust, 516 F. App’x 861, 864 (1 Ith Cir. 2 (quoting H.J. Inc. v. Nw, Bell Tel. Co.,492 U.S. 229, 239 (1989)), Moreover, “[eJontinuity’ is a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to pa conduct that by its nature projects into the future with a threat of repetition.” Jd. (internal quotat ‘marks and citation omitted). See also Coquina Invs, v. TD Bank, N.A., 760 F.3d 1300, 1321 n.1 (1th Cir, 2014) (noting that an open-ended pattern of racketeering activity involves predicate acjs that “include a specific threat of repetition extending indefinitely into the future or that are part of an phzoing entity's regular way of doing business”) (internal quotation marks and citation omitted). Here, Plaintiff argues that he has sufficiently alleged open-ended continuity. The Court disagrees for two reasons. First, Plaintiff has not alleged any facts to show that the alleged scherpé is part of Defendants’ regular way of doing business. Chesapeake Emp'rs Ins. Co. v. Eades, 77 F. Supp. 3d 1241, 1256 (N.D. Ga. 2015) (finding that plaintiff failed to establish open-ended continity in part because plaintiff failed to allege that defendants conducted similar schemes against other Page 7 of 11Case 1:15-cv-21811-UU Document 40. Entered on FLSD Docket 09/02/2015 Page 8 of 1 businesses), Second, Plaintiff has not alleged any facts to show that the racketeering acts themsel include a specific threat of repetition extending indefinitely into the future. ‘The racketeering acts here are extortion, wire fraud and interference with interstate commerce by threats or violence. Contrary to Plaintiff's assertion that the Amended Complaint includes explicit allegations showing, these racketeering acts include a specific threat of repetition, the Court finds that it does not. The) Amended Complaint contains no factual allegations showing that these racketeering acts include 4 of repetition. Thus, Plaintiff failed has failed to plead a pattern of racketeering activity. C. Predicate Acts Next, Plaintiff alleges that there are 3 predicate acts of racketeering activity: (1) extortion, violation of Fla. Stat. § 836.05; (2) wire fraud in violation of 18 U.S.C. § 1343; and (iii) interferehe¢ with commerce by threats or violence in violation of 18 U.S.C. § 1951 Construing the allegations the light most favorable to the plaintiff, the Court finds that Plaintiff has barely alleged a claim for extortion but has failed to allege a claim of wire fraud and interference with commerce by threats) violence. Where the alleged predicate act is wire fraud, as in this case, the act must be pled with particularity in accordance with Fed, R, Civ. P. 9(b). “To satisfy the Rule 9(b) standard, RICO complaints must allege: (1) the precise statements, documents, or misrepresentations made; (2) th and place of and person responsible for the statement; (3) the content and manner in which the | statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud.” Amb! Coal & Const. Co., 482 F.3d at 1316-17. Plaintiff failed to meet the pleading requirements of 9(b) and therefore, he has failed to allege wire fraud as a predicate act. Page 8 of 11 reat imeCase 1:15-cv-21811-UU Document 40. Entered on FLSD Docket 09/02/2015 Page 9 of L Additionally, Plaintiff has not alleged any facts showing that Defendants interfered with ‘commerce by threats or violence in violation of 18 U.S.C. § 1951. Section 1951 makes it a federal crime to extort something from someone else and in doing so, obstruct, delay of affect interstate n of Section 1951 requires proof that: “(1) the crime depletes th commerce. Specifically, a violat assets of an individual who is directly engaged in interstate commerce; (2) the crime causes the individual to deplete the assets of an entity engaged in interstate commerce; or (3) the number of individuals victimized or the sums involved are so large that there will be a cumulative impact on interstate commerce.” United States v. Diaz, 248 F.3d 1065, 1085 (11th Cir. 2001). Based on the allegations in the Amended Complaint, Plaintiff refused to pay the $5,000,000 extortion demand therefore, he was not deprived of assets that affected interstate commerce. Because Plaintiff has failed to allege wire fraud and interference with commerce by threats violence, Plaintiff's RICO claim fails as a matter of law because he has not alleged two predicate! of racketeering. Actual Injury “{Clivil RICO claimants must show: (1) [an] injury to business or property and (2) that st injury was by reason of the substantive RICO violation.” Dysart, 516 F. App’x at 863 (internal quotation marks and citation omitted), Because Plaintiff states only in conclusory terms that he injured as a result of Defendants’ actions, he has failed to allege sufficient facts to show he has bb injured and cannot maintain a RICO claim. As a result, Plaintiffs RICO claim will be dismissed. II, Remaining State Law Claims Page 9 of 11Case 1:15-cv-21811-UU Document 40 Entered on FLSD Docket 09/02/2015 Page 10 off Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's defamma| claims arising under Florida law claims because Plaintiff has failed to state a RICO claim. In the byent Plaintiff is unable to state a RICO claim after having a further opportunity to amend, the Court like}y will decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(6)(3) over these claim§. However, dismissal would be premature at this time in light of the fact that Plaintiff will have an additional opportunity to amend and state a sufficient RICO claim. Defendants also argue that the defamation counts fail to state claims upon which relief cat, granted. The Court agrees to the extent that in the defamation counts Plaintiff merely incorporate: by reference all of the preceding paragraphs and fails to identify precisely each false statement, the maker of each statement, when each statement was made, whether each statement was oral or w and, as to written statements, where they appeared. Additionally, with respect to each statement alleged to have been defamatory, the Amended Complaint fails to allege in what respect the stat was false. See generally Caroll-Brufskyv. E.W. Scripps, Co., 2012 WL 1165334 (M.D. Fla. 201. Minsburg Int'l, Inc.v. Frontier Devices, Inc., 2011 WL 1326863 (M.D. Fla. 2011); Asa Accugra v Am@lumismatic Ass'n, 2006 WL 1640698 (M.D. Fla. 2006). As to the Defendants’ contention} Plaintigf is a public figure, that is an affirmative defense that depends on proof of extrinsic facts 4 appropriate for consideration on a motion to dismiss for failure to state a claim. See generally, LLC, 2012 WL 2326119 (S.D. Fla. 2012). Canadian Steel, Inc. V. HFP Capital Markets I, Amendment After Plaintiff .d his Amended Complaint, the Court ordered him to file a Civil RICO’ Statement. D.E. 29. Plaintiff’s Civil RICO Case Statement appears to set forth his RICO claim: Page 10 of 11Case 1:15-cv-21811-UU Document 40 Entered on FLSD Docket 09/02/2015 Page 11 of| greater detail and although the Court has serious doubts as to whether Plaintiff can amend his comp|dint to survive a Rule 12(b)(6) motion to dismiss, the Court will allow Plaintiff an opportunity to correr} the deficiencies noted above In accordance with the foregoing, itis hereby ORDERED AND ADJUDGED that the Motion, D.E. 18, is GRANTED. Itis further ORDERED AND ADJUDGED that Plaintiff must file a Second Amended Complaint on cr} before September 8, 2015. No extensions will be granted and failure to file a Second Amended Complaint will result in dismissal of this action without further notice. It is further ORDERED AND ADJUDGED that the Initial Planning and Scheduling Conference is res until October 23, 2015 with a Joint Planning and Scheduling Report due on October 9, 2015. No extensions will be granted. DONE AND ORDERED in Chambers at Miami, Florida, this 31" day of August, 2015. URSULA Swabs UNITED STATES DISTRICT JUDGE copies provided: counsel of record Page 11 of 11