United States District Court, W.D. Michigan, Southern Division
OPINION
ELLEN
S. CARMODY, UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Defendants' Motion to
Dismiss. (ECF No. 57). The parties have consented to
proceed in this Court for all further proceedings, including
trial and an order of final judgment. 28 U.S.C. §
636(c)(1). By Order of Reference, the Honorable Janet T. Neff
referred this case to the undersigned. For the reasons
discussed herein, Defendants' motion is
granted and this matter is
terminated.
BACKGROUND
On July
19, 2018, Plaintiff initiated in this Court a lawsuit against
Vitale's Pizzeria of Hudsonville, LLC, Maurizio
Logiudice, and Mandy Tithof alleging violations of the Fair
Labor Standards Act (FLSA). Collier v. Vitale's
Pizzeria of Hudsonville, LLC, 1:18-cv-804, ECF No. 1
(W.D. Mich.). Specifically, Plaintiff alleged that Defendants
failed to pay her at the appropriate rate for overtime hours
she worked. (Id.). This action is still pending.
Contemporaneously, Plaintiff initiated the present action
against Vitale's, Maurizio Logiudice, Giovanna Logiudice,
and Mandy Tithof alleging violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO).
Specifically, Plaintiff alleges that the conduct giving rise
to her FLSA claims likewise violates RICO. Defendants in the
present action now move for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c).
LEGAL
STANDARD
Federal
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed. . .a party may move for judgment on
the pleadings.” Fed.R.Civ.P. 12(c). A motion brought
under Rule 12(c) is analyzed pursuant to the same standard
applicable to a motion to dismiss under Rule 12(b)(6).
See Gamrat v. Cline, 2019 WL 3024599 at *3 (W.D.
Mich., July 11, 2019). A Rule 12(b)(6) motion to dismiss
tests the legal sufficiency of a complaint by evaluating the
assertions therein in a light most favorable to Plaintiff to
determine whether such states a valid claim for relief.
See In re NM Holdings Co., LLC, 622 F.3d 613, 618
(6th Cir. 2000).
Pursuant
to Federal Rule of Civil Procedure 12(b)(6), a claim must be
dismissed for failure to state a claim on which relief may be
granted unless the “[f]actual allegations [are] enough
to raise a right for relief above the speculative level on
the assumption that all of the complaint's allegations
are true.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007). As the Supreme Court more recently
held, to survive a motion to dismiss, a complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009). This plausibility standard “is not akin
to a ‘probability requirement,' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” If the complaint simply pleads facts that
are “merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Id. As the Court further
observed:
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. . .Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading
regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. . .Determining
whether a complaint states a plausible claim for relief will,
as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense. But where the wellpleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it
has not “show[n]” - “that the pleader is
entitled to relief.”
Id. at 678-79 (internal citations omitted).
When
resolving a motion to dismiss pursuant to Rule 12(b)(6), the
Court may consider the complaint and any exhibits attached
thereto, public records, items appearing in the record of the
case, and exhibits attached to the defendant's motion to
dismiss provided such are referenced in the complaint and
central to the claims therein. See Bassett v. National
Collegiate Athletic Assoc., 528 F.3d 426, 430 (6th Cir.
2008); see also, Continental Identification
Products, Inc. v. EnterMarket, Corp., 2008 WL 51610 at
*1, n.1 (W.D. Mich., Jan. 2, 2008) (“an exhibit to a
pleading is considered part of the pleading” and
“the Court may properly consider the exhibits. . .in
determining whether the complaint fail[s] to state a claim
upon which relief may be granted without converting the
motion to a Rule 56 motion”); Stringfield v.
Graham, 212 Fed.Appx. 530, 535 (6th Cir. 2007)
(documents “attached to and cited by” the
complaint are “considered parts thereof under Federal
Rule of Civil Procedure 10(c)”).
ANALYSIS
In
addition to its criminal proscriptions, RICO authorizes
“[a]ny person injured in his business or property by
reason of” a violation of RICO's substantive
provisions to bring a civil action in federal court and to
recover treble damages and attorney's fees. See
Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 612 (6th
Cir. 2004) (quoting 18 U.S.C. § 1964(c)). To prevail on
her civil RICO claims, Plaintiff must establish the following
elements: (1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity. See Heinrich v.
Waiting Angels Adoption Services, Inc., 668 F.3d 393,
404 (6th Cir. 2012) (citation omitted). Racketeering activity
is defined as conduct which violates one of RICO's
criminal provisions. Ibid. Plaintiff alleges that
Defendants' racketeering activity is evidenced by acts of
mail fraud and wire fraud.
Plaintiff
must also sufficiently allege causation. Specifically,
Plaintiff must allege that the mail fraud and wire fraud in
which Defendants allegedly engaged was a “but
for” cause of her injuries as well as the proximate
cause thereof. See Wallace v. Midwest Financial &
Mortgage Services, Inc., 714 F.3d 414, 418-19 (6th Cir.
2013) (“proximate cause is an essential ingredient of
any civil RICO claim”). The concept of proximate cause
refers to “the judicial tools used to limit a
person's responsibility for the consequences of that
person's own acts.” Id. at 419 (citation
omitted). Thus, Plaintiff must allege that her alleged injury
was “by reason of” Defendants' alleged acts
of mail and wire fraud. Trollinger, 370 F.3d at 613.
This is precisely where Plaintiff's complaint falls
short.
To
establish mail fraud, Plaintiff must demonstrate that
Defendants engaged in a scheme to defraud and used the mails
in furtherance thereof. Heinrich, 668 F.3d at 404.
To establish wire fraud, Plaintiff must establish that
Defendants engaged in a scheme to defraud and used the wires
in furtherance thereof. Ibid. Plaintiff alleges that
Defendants utilized the mail and wires to transmit to
government agencies false payroll information as part of a
scheme to defraud. While these alleged actions may have
proximately caused harm to these government agencies, such
were not the proximate cause of Plaintiff's alleged
injury. Stated differently, Plaintiff alleges that Defendants
engaged in wage theft, but this alleged injury was not
“by reason of” Defendants' alleged mail or
wire fraud. Defendants' alleged acts of wire and mail
fraud merely facilitated, rather than caused, Plaintiff's
alleged injury. See, e.g., DeSilva v. North Shore-Long
Island Jewish Health System, Inc., 770 F.Supp.2d 497,
524 (E.D.N.Y. 2011) (recognizing, in the context of a RICO
claim based on ...