59 F. Supp. 3d 528
W.D.N.Y.2014Background
- Mackin, former Deputy Chief of the Greece Police Department, sued Town Supervisor John Auberger and Public Safety Director Joseph Loszynski under RICO alleging a long-running scheme (2002–2010) to dismantle GPD and punish him politically and professionally.
- Key factual allegations: Auberger pressured GPD Chief Rahn to keep Mackin off a promotion list (2002); Mackin was later appointed Deputy Chief but allegedly deprived of job benefits and targeted; Loszynski was hired in 2009 as Auberger’s "bulldog."
- In April–June 2009 Mackin was suspended, charged by the Town Board, and ultimately retired; in July 2010 the Loszynski Report criticizing GPD leadership was publicly released.
- Mackin’s RICO case statement alleged an association-in-fact enterprise of Auberger and Loszynski and predicate acts including extortion, mail/wire fraud, and bribery (the case statement added an alleged agreement with a court reporter).
- Defendants moved to dismiss under Rule 12(b)(6) (and argued lack of RICO standing). The court treated standing as a merits issue and dismissed the amended complaint in full for failure to plead a plausible RICO claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a RICO enterprise | Auberger and Loszynski formed an association-in-fact to destroy GPD | No enterprise distinct from the defendants or the alleged misconduct; Loszynski was not involved until 2009 | Dismissed — Plaintiff failed to plausibly allege an enterprise distinct from defendants or the racketeering acts; association-in-fact could not predate Loszynski’s hiring |
| Predicate acts: extortion | Auberger’s deprivation of Mackin’s job benefits and Loszynski’s threats to officers amounted to extortion | No allegation that defendants obtained property or anything transferable — conduct better characterized as coercion | Dismissed — extortion not pleaded (Hobbs Act requires obtaining property; allegations show deprivation, not acquisition) |
| Predicate acts: mail/wire fraud (Loszynski Report) | Publishing the allegedly false report by mail/wire was a scheme to defraud | Plaintiff failed to plead a scheme to obtain money or property, intent to defraud, or how he was misled; allegations suggest negligence | Dismissed — fraud pleaded without Rule 9(b) particularity or showing intent to obtain money/property; timing also undercuts causation to Mackin’s employment loss |
| Predicate acts: bribery | Auberger bribed/influenced Town Board and conspired with a court reporter | No facts showing quid pro quo, communications, or any thing of value given to a federal official (mandatory for 18 U.S.C. §201) | Dismissed — bribery allegations are conclusory, lack communications/agreement and federal-bribery statute inapplicable to town actors |
| RICO conspiracy (§1962(d)) | Defendants agreed to commit predicate acts supporting a RICO conspiracy | No meeting of minds; Loszynski joined late; predicate acts not adequately alleged | Dismissed — conspiracy claim fails because no plausible agreement and underlying predicate acts are not adequately pled |
| RICO standing / proximate cause | Mackin alleges injury to career, reputation, and Town losses | Defendants: injuries are speculative, personal, or suffered by third parties; causation absent | Dismissed — Mackin lacks statutory RICO standing: alleged injuries either personal/third-party or not proximately caused by RICO predicate acts |
Key Cases Cited
- Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) (RICO standing is not jurisdictional; standing assessed as merits issue)
- Lerner v. Fleet Bank, N.A., 318 F.3d 113 (2d Cir. 2003) (proximate-causation requirement in RICO treated as a merits element)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (apply Twombly plausibility and reject legal conclusions)
- Boyle v. United States, 556 U.S. 938 (U.S. 2009) (association-in-fact enterprise definition)
- United States v. Turkette, 452 U.S. 576 (U.S. 1981) (enterprise must be distinct from pattern of racketeering activity)
- Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393 (U.S. 2003) (Hobbs Act requires obtaining property, not merely depriving victim)
- United States v. Gotti, 459 F.3d 296 (2d Cir. 2006) (discussing Hobbs Act ’obtaining’ requirement in extortion analysis)