Town of Gulf Stream v. Martin E. O'BoyleTown of Gulf Stream v. Martin E. O'Boyle
Etan Mark, Berger Singerman, LLP, Miami, FL, for Defendant-Appellee Martin E. O’Boyle, an individual.
Mark Jerome Hanna, GMM Madison, PA, Boynton Beach, FL, for Defendant-Appellee Christopher O’Hare, an individual.
Robert Cartwright Glass, Adam Rabin, McCabe Rabin, PA, West Palm Beach, FL, for Defendants-Appellees William Ring, Jonathan O’Boyle, an individual.
Daniel DeSouza, DeSouza Law, PA, Fort Lauderdale, FL, for Defendants-Appellees Denise DeMartini, an individual, Citizens Awareness Foundation, Inc., Our Public Records, LLC, StopDirtyGovernment, LLC, Public Awareness Institute, Inc.
Stuart Michelson, Law Office of Stuart Michelson, FT Lauderdale, FL, for Defendant-Appellee Giovani Mesa, an individual.
Joanne M. O’Connor, Jones Foster Johnston & Stubbs, PA, West Palm Beach, FL, for Plaintiff-Appellant Town of Gulf Stream, a municipality organized and existing under the laws of Florida on its own behalf and on behalf of those municipalities similarly situated.
PER CURIAM:
The Town of Gulf Stream, Florida (“Gulf Stream” or the “town”) and its contractor Wantman Group, Inc. (“Wantman”) (collectively the “plaintiffs”) appeal the dismissal
I.
Gulf Stream is a tiny town of under 1,000 residents and just 17 full time employees.2 The defendants—Martin E. O’Boyle, William F. Ring, Christopher O’Hare, Jonathan R. O’Boyle, Denise DeMartini, and their associated companies—pummeled the town with nearly 2,000 public records requests, many of them frivolous, with no intention of actually reviewing the results. Examples of such requests included
- “All email addresses created or received by the Town of Gulf Stream,” Compl. Ex. B, Doc. 4-2 at 2 (No. 1);
- “All phone numbers in the town’s records,” id. (No.3); and
- “Any and all records containing a social security number,” id. at 10, No. 322.
These and other bogus requests were “an essential first-step” in a “scheme to defraud and extort money from the class members.” Compl. ¶ 37, Doc. 1.
The purpose of this onslaught of records requests was to induce a violation of the Act and then threaten a lawsuit, or actually file one, which could entitle the defendants to prevailing party attorneys’ fees under
In addition, defendant O’Hare employed aliases when making public records requests to avoid incurring a special service charge the town would have otherwise imposed. Florida authorizes the town to condition public records production on the payment of certain costs and expenses, but only “[i]f the nature or volume of public records requested to be inspected or copied ... is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both.”
The defendants also lodged a bogus public records request with Wantman, a government contractor also covered by the Act. See
Based on these and similar allegations, the plaintiffs filed a class action complaint on their own behalf and on behalf of other similarly situated state or local municipalities, municipal agencies, or private contractors. They alleged that each defendant committed at least one predicate act of mail fraud, wire fraud, or extortion, constituting a pattern of racketeering activity in violation of RICO,
II.
“We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the complaint’s allegations as true and construing them in the light most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks and citation omitted). 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is insufficient if it “tenders naked assertions devoid of fur-
III.
To establish a federal civil RICO violation under
A RICO “pattern of racketeering activity” requires at least two “qualifying predicate acts,” each of which constitutes “a violation of one of the state or federal laws described in
A.
The Hobbs Act prohibits extortion, defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
We held in United States v. Pendergraft, 297 F.3d 1198, 1208 (11th Cir. 2002) that a “threat to file litigation against [the government], even if made in bad faith and supported by false affidavits, [was] not ‘wrongful’ within the meaning of the Hobbs Act.” The issue was whether a threat to add a bogus claim in a federal lawsuit against a county government in an effort to force a large settlement could support a Hobbs Act violation. “[U]nder our system,” we explained, “parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights.” Id. at 1206. Thus, “litigants may be sanctioned for only the most frivolous of actions.” Id. And even then, such sanctions—through tort actions for malicious prosecution, for example—“are heavily disfavored.” Id. We also expressed confidence in the “time-tested procedures” of the courts to resolve disputes in litigation by “separating validity from invalidity, honesty from dishonesty.” Id. Moreover, citizens have a constitutional right to petition the government for redress under the First Amendment. Id. at 1207. For these reasons, we rejected the contention that a threat to file litigation against the government can trigger Hobbs Act liability. Id. at 1206-1207.
We clarified in Raney, a civil RICO case, that Pendergraft applies both to threats of litigation and actual litigation. Raney, 370 F.3d at 1088. In Raney, the plaintiff alleged that the defendants filed frivolous lawsuits in an effort to extort money from him. Id. at 1087. We held unequivocally that “the filing of a lawsuit may not state a claim for extortion under the federal RICO statutes.” Id.
The plaintiffs also alleged that the defendants abused their right to request public records; they argue on appeal that this abuse amounted to a RICO predicate act. As alleged in the complaint, the defendants intentionally set the town up to violate the Act. Whether it was a setup or not, the town may be on the hook for attorneys’ fees if it failed to respond timely to the requests. See Bd. Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So.3d 120, 124-25 (Fla. 2016) (holding that once the court determines that the defendant “unlawfully refused” to permit a public record to be inspected or copied, the court must assess reasonable attorneys’ fees, whether or not the defendant acted in good faith (citing
B.
The plaintiffs next contend that mail and wire fraud constitute the predicate acts necessary to support their RICO claim. Specifically, they argue that O’Hare’s use of aliases to avoid incurring a special service charge when lodging public records requests amounted to fraud. We are unpersuaded.
“The elements of mail and wire fraud are: (1) intentional participation in a scheme to defraud, and, (2) the use of the interstate mails or wires in furtherance of that scheme.” United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). “Nondisclosure of material information can constitute a violation of the mail and wire fraud statutes where a defendant has a duty to disclose, either by statute or otherwise.” McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1225 (11th Cir. 2002); accord Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1065 (11th Cir. 2007) (holding that the failure to allege a duty to disclose is fatal to a RICO claim premised on mail
Although the plaintiffs argue that O’Hare’s concealment of his true identity to avoid incurring a special service charge constituted fraud, they alleged no facts to plausibly suggest that O’Hare had any duty to disclose that information. To the contrary, Florida law recognizes a person’s right to request public records anonymously. See Chandler v. City of Greenacres, 140 So.3d 1080, 1084-85 (Fla. 4th DCA 2014) (holding that a city cannot require a public records requester to provide identifying information, which “could have a chilling effect on access to public records and is not required by the Public Records Act”). Accordingly, the plaintiffs failed to allege the predicate acts of mail and wire fraud to support their RICO claim. Because we conclude that the plaintiffs’ mail and wire fraud allegations fail on this basis,6 we do not consider the defendants’ alternative reasons for rejecting it.
IV.
The allegations in the plaintiffs’ complaint paint a frustrating picture. Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. As distasteful as this conduct may be, the allegations do not support a RICO claim under our precedent. We therefore affirm the dismissal of the plaintiffs’ complaint.7
AFFIRMED.
Notes
Compl. ¶ 31, Doc. 1. Citations to “Doc.” refer to docket entries in the district court record in this case.All state or local municipalities, municipal agencies, or private contractors in the State of Florida, who have been served with a public records request by any of the Defendants and who either (a) paid a settlement amount in conjunction with, or to resolve the public records request; or (b) incurred attorneys’ fees and costs to respond to or litigate against public records requests from any of the Defendants.
If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.