Ruocco v. Hemmerdinger Corp.
711 F. App'x 659
| 2d Cir. | 2017Background
- Hemmerdinger (plaintiff) hired a general contractor to redevelop property; the contractor subcontracted excavation to Earth Technology, Inc. (ETI).
- ETI’s contract provided reimbursement of project costs plus 15%; ETI discovered contaminated soil that increased disposal costs.
- Defendants Ruocco (ETI’s owner) and Tomicic (project manager) formed Recycle Technology with McCambridge to handle disposal; Hemmerdinger alleged the defendants conspired to submit inflated disposal invoices and pocket the excess.
- Hemmerdinger sued for state-law fraud (Claim One), substantive RICO under 18 U.S.C. § 1962(c) (Claim Two), and RICO conspiracy under § 1962(d) (Claim Three).
- A jury found Tomicic and McCambridge liable for fraud and found Ruocco, ETI, Tomicic, and Recycle Technology guilty of a RICO conspiracy; the jury answered "No" to whether a civil RICO enterprise existed in Claim Two on the verdict form.
- Defendants appealed, arguing the verdicts were inconsistent and that the district court’s RICO conspiracy jury instruction was legally flawed; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury verdicts were ineluctably inconsistent because Claim Two answered that no RICO enterprise existed, while Claim Three found a RICO conspiracy | Hemmerdinger argued the verdicts could be read consistently and the jury found an enterprise among some defendants | Ruocco/Tomicic argued an express finding of no enterprise on Claim Two precludes conspiracy liability on Claim Three | Court held verdicts not ineluctably inconsistent: jury could have meant Claim Two asked about an enterprise among all defendants while Claim Three found an enterprise among specific defendants; adopt reasonable view that resolves inconsistency |
| Whether a RICO conspiracy (§ 1962(d)) can be found absent a finding of a substantive RICO enterprise or substantive RICO liability (§ 1962(c)) | Hemmerdinger argued liability on conspiracy can stand independent of a substantive § 1962(c) finding | Defendants argued conspiracy cannot stand if no enterprise or substantive RICO offense was found | Court held defendants waived this challenge by agreeing at trial that Claims Two and Three were independent; thus cannot now assert dependency; no relief granted |
| Whether the district court’s instruction that a RICO conspiracy requires only that the enterprise would have been established if the conspiracy succeeded was erroneous | Hemmerdinger relied on the instruction and pattern jury charge | Defendants argued civil RICO conspiracy requires proof that an enterprise actually existed, not merely would have if completed | Court reviewed for plain error (no contemporaneous objection) and found no plain error because the instruction tracked the Modern Federal Jury Instructions and defendants cited no authority showing those instructions were plainly wrong |
| Whether any other claimed errors warranted judgment as a matter of law or a new trial | Hemmerdinger urged the verdict and instructions were proper | Defendants claimed additional trial errors in post-trial motions | Court rejected remaining arguments and affirmed judgment |
Key Cases Cited
- Munafo v. Metro. Transp. Auth., 381 F.3d 99 (2d Cir. 2004) (special verdicts must be "ineluctably inconsistent" to set aside a verdict)
- Tolbert v. Queens Coll., 242 F.3d 58 (2d Cir. 2001) (same principle on inconsistency of special verdict answers)
- Brooks v. Brattleboro Mem’l Hosp., 958 F.2d 525 (2d Cir. 1992) (courts must adopt a view that resolves seeming inconsistencies in verdicts)
- United States v. Hertular, 562 F.3d 433 (2d Cir. 2009) (approval of an instruction can constitute waiver and negate plain-error review)
- Kosmynka v. Polaris Indus., Inc., 462 F.3d 74 (2d Cir. 2006) (failure to object before jury excusal waives inconsistency claim)
- Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013) (jury-charge objections not raised at trial are reviewed for plain error)
- Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir. 2002) (objection to inconsistency tied to jury instruction must be made before deliberations under Rule 51)
- United States v. Fore, 169 F.3d 104 (2d Cir. 1999) (no plain error where court’s instructions follow recognized pattern jury instructions)