MEMORANDUM AND ORDER
In this civil Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”) action, the defendants identified in the margin
1
have moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim on which relief can be granted.
2
The ILA
BACKGROUND
I. Allegations in the Amended Complaint
This action is the latest episode in a decades-long effort by the United States to curtail the influence of the La Cosa Nostra organized crime families over the vehicles of interstate commerce operating along the waterfront areas in the Port of New York and New Jersey and the Port of Miami. 3 The Government’s prolix, 85-page Amended Complaint, with its hundreds of pages of attached exhibits, alleges in essence that from 1995 onward, the Genovese and Gam-bino crime families conspired with their associates occupying high-ranking positions in legitimate Waterfront operations, particularly the ILA and several associated labor organizations, to extend and maintain the influence of organized crime through a pattern of racketeering activity including extortion, money laundering, and mail and wire fraud. The Amended Complaint is burdened with lengthy discussions of the history and operations of La Cosa Nostra generally, as well as discussions of Government investigations and prosecutions of organized crime activity on the Waterfront going back several decades. While the Government argues that all of this historical material is necessary to place the allegations regarding the charged conspiracies in their proper context, the Court shall ignore much of this material and focus its discussion of the relevant facts on the allegations comprising the charged offenses as well as the relatively recent related civil and criminal litigation that directly preceded this action. 4
The Amended Complaint separates the numerous defendants into three classifications: the Nominal Defendants, who are not charged with wrongdoing but are named as defendants, presumably pursuant to Federal Rule of Civil Procedure 19(a) (“Rule 19”), 5 “for purposes of effecting the full relief sought in this action,” Gov. Mem. at 4, the ILA Officer Defendants, and the La Cosa Nostra (“LCN”) Defendants. The ILA Officer Defendants and the LCN Defendants, who are alleged to have conspired together to conduct the pattern of racketeering activity set forth in the Amended Complaint, are sometimes referred to collectively as the “Racketeering Defendants.” Before proceeding to recount the factual allegations underlying the Government’s claims, it shall be useful to provide an overview of the numerous defendants identified in this action.
1. The Nominal Defendants
The International Longshoremen’s Association is a labor union that represents approximately 59,000 longshoremen and other laborers working in ports around the United States.
6
Am. Compl. ¶ 15. The ILA is divided into two regions, the Atlantic Coast District and the South Atlantic & Gulf Coast District, each of which is comprised of an unspecified number of local unions.
Id.
Each ILA local and district organization is governed by a group of officers, and the entire organization is governed by the ILA Executive Council, which is comprised of the President, Secretary-Treasurer, Executive Vice-President, General Vice-President, General Organizer, Assistant General Organizer, and twenty-six Vice-Presidents.
Id.
¶¶ 15-16. Executive Council Members are elected at the ILA’s Conventions, which occur every four years; if a vacancy occurs on the Executive Council during a non-Convention year, the remaining Executive Council members elect an individual to occupy the vacant position until the next Convention, either from the general ILA member population, if the vacant position is not the Presidency, or from the remaining Execu
The Management-International Longshoremen’s Association Managed Health Care Trust Fund (“MILA”) is a benefit fund that provides health insurance nationally for ILA members. MILA was established by the ILA and companies employing ILA labor (“Management”) in 1996, pursuant to a Master Contract between the ILA and Management providing for health benefits for longshoremen on the Atlantic and Gulf Coasts. Id. ¶¶ 115-116. MILA provides health care benefits, including prescription drug coverage and mental health benefits, to the majority of ILA Members. Id. ¶ 120. MILA is governed by its Board of Trustees (“MILA Board”), id. ¶¶ 27-28, which is comprised of 18 ILA representatives and 18 Management representatives, and has two Co-Chairmen. Id. ¶¶ 117-118.
The Metropolitan Marine Maintenance Contractors’ Association (“METRO”) is an association of employers engaged in interstate commerce on the Waterfront, who
Finally, the Amended Complaint names ILA Executive Vice-President Richard Hughes, General Vice-President Benny Holland, General Organizer Gerald Owens, and twenty-four Vice-Presidents 11 as nominal defendants. Id. ¶¶ 21, 24-26. Hughes, Holland, and Owens are also nominal defendants in their capacities as members of nominal defendant MILA Board. Id. ¶¶ 21, 24-25. The Amended Complaint alleges that the Vice-Presidents “ ‘follow the lead’ of the ‘Big Six’ ILA Executive Officers in all union matters of importance.” Id. ¶ 26.
2. The LCN Defendants
The Amended Complaint identifies four individuals alleged to be members or associates of organized crime who were active participants in the alleged RICO conspiracies. Peter Gotti is alleged to be the boss of the Gambino organized crime family. Id. ¶ 29. Gotti has entered into a consent decree with the Government resolving the claims against him in this action, and is therefore no longer an active defendant. See Consent Degree and Judgment, dated April 11, 2006 (docket no. 79). Pursuant to that decree, Mr. Gotti is permanently enjoined from, inter alia, participating in the affairs of the ILA or the Waterfront Enterprise in any way. Id. ¶¶ 3-4. Anthony Ciccone is alleged to be a captain in the Gambino family, and Jerome Brancato is alleged to be a soldier in the same family. Am. Compl. ¶¶ 30-31, 104-105. James Cashin is a former ILA official and an alleged associate of the Genovese organized crime family. Id. ¶ 32.
3. The ILA Officer Defendants
The Amended Complaint charges several ILA Executive Council members with active participation in the alleged RICO conspiracies. Foremost among these is John Bowers, Sr., whom the Amended Complaint alleges has been President of the ILA since 1987 and was Executive Vice-President for twenty-four years before ascending to the Presidency.
12
Am. Compl. ¶ 18. The Amended Complaint further alleges that Bowers presently
The second ILA Officer Defendant identified in the Amended Complaint is Robert E. Gleason, the Secretary-Treasurer of the ILA, whom the Government alleges is a Genovese family associate and “son of former ILA President and Genovese family associate ‘Teddy’ Gleason.” Id. ¶ 19. The Government further alleges that Gleason is a member of nominal defendant MILA Board, and has held other positions of trust within the ILA and related organizations. Id. ¶¶ 19,118.
Harold J. Daggett is the Assistant General Organizer of the ILA, 13 as well as President of ILA Local 1804-1 and, until recently, a member of nominal defendant MILA Board. Id. ¶¶ 22, 118. Daggett is alleged to be an associate of the Genovese family. Id. ¶22. In 2004, Daggett was indicted on charges of extortion conspiracy and mail and wire fraud conspiracy in United States v. Coffey, No. 04-CR-651 (E.D.N.Y.) (ILG). Mr. Daggett was tried before a jury in this Court, where he was ultimately acquitted on November 8, 2005. See Am. Compl. ¶ 22; Ex. 1-2 (Superseding Indictment and Complaint in Coffey). The details of the Coffey case are discussed in Background Part 11(D), infra.
Arthur Coffey is a Vice-President of the ILA Executive Council and holds various positions in several ILA district and local organizations, including as a member of nominal defendant MILA Board. 14 Am. Compl. ¶¶ 23, 118. Coffey was indicted on charges of extortion conspiracy and mail and wire fraud conspiracy in United States v. Coffey. Id.; see also id. Ex. 1, 2 (Superseding Indictment and Complaint in Coffey). He was tried jointly with Harold Daggett before a jury in this Court, and was likewise acquitted on November 8, 2005. Am. Compl. ¶ 23; see Background Part 11(D), infra.
ILA Officer Defendant Albert Cernadas executed a consent decree resolving the claims against him in this action prior to the filing of the Amended Complaint.
Id.
¶ 20. Prior to executing the consent decree, Cernadas was the Executive Vice-President of the ILA and,
inter alia,
a member of nominal defendant MILA Board.
Id.
¶¶ 20, 118. Pursuant to the terms of the consent decree, Cernadas resigned from all of his ILA related positions and is permanently enjoined from holding any position in the ILA or the Waterfront Enterprise.
Id.; see also
Am. Compl.
B. The Alleged RICO Conspiracies
The Amended Complaint alleges two counts of RICO conspiracy — conspiracy to violate 18 U.S.C. § 1962(c) 15 (“§ 1962”) in violation of § 1962(d) 16 (Count 1), see Am. Compl. ¶¶ 70-83, and conspiracy to violate § 1962(b) in violation of § 1962(d) (Count 2). 17 See Am. Compl. ¶¶ 252-56. Both counts are alleged against all of the Racketeering Defendants “together with others, known and unknown,” id. ¶¶ 71, 253, and rely on the same alleged predicate acts to establish the requisite patterns of racketeering. Both counts also rely on the same allegations regarding the composition and purpose of the Waterfront Enterprise. Indeed, the section of the Amended Complaint captioned “Second Claim for Relief’ does little more than incorporate by reference the allegations made in earlier sections of the Amended Complaint, including the lengthy recitations of alleged predicate acts in the section captioned “First Claim for Relief,” and assert that the same acts also constitute a conspiracy to violate § 1962(b). See id. ¶¶ 252-258. The Court may therefore discuss the factual allegations underlying the Government’s claims without distinguishing between the two RICO conspiracy counts.
1. The Waterfront Enterprise
At the heart of the Government’s theory of this case is the “Waterfront Enterprise,” an alleged association-in-fact RICO enterprise that is comprised of the members of the Gambino and Genovese families operating on the Waterfront and their associates and co-conspirators in the ILA and other legitimate Waterfront organizations. The Amended Complaint defines the Waterfront Enterprise as an aggregation of
the ILA and certain of its subordinate components, namely, the Atlantic Coast District, the South Atlantic & Gulf Coast District, Locals 1, 824, 1235, 1588, 1804-1, 1814, 1922, 1922-1, and 2062; certain current and former ILA officials; certain welfare benefit and pension benefit funds managed for the benefit of ILA members, namely, MILA, the METRO-ILA Funds, the ILA Local 1922 Health and Welfare Fund, the ILA-Employers Southeast Florida Ports Welfare Fund; certain businesses operating on or about the Waterfront; an “employer association” operating on or about the Waterfront, namely METRO; certain members and associates of the Genovese andGambino crime families; and certain businesses operating in the Port of Miami....
Am. Compl. ¶ 67. The Government alleges that each of the Racketeering Defendants “were leaders of the Enterprise who directed other members of the Enterprise in carrying out unlawful and other activities in furtherance of the conduct of the Enterprise’s affairs.” Id. ¶ 69. In a section captioned “Purpose of the Enterprise,” the Government alleges that [t]he Defendants’ common purpose was to exercise corrupt control and influence over labor unions and businesses operating on the Waterfront, the Port of Miami and elsewhere in order to enrich themselves and their associates. In order to achieve this objective, the Defendants have established and maintained control and influence over labor unions and businesses. To ensure the continued effectiveness of this corrupt system and as part of the overall plan and pattern of control, the Gambino and Genovese families have generally maintained and recognized their respective areas of control and domination on the Waterfront, the Port of Miami and elsewhere. Id. ¶ 68. At oral argument, counsel for the Government clarified that, notwithstanding the caption’s suggestion that paragraph 68 alleges the common purpose of the enterprise, the purpose identified in paragraph 68 is alleged to be shared only by the Racketeering Defendants, and not by the nominal defendants or, presumably, any member of the Waterfront Enterprise not named as a defendant in this action. See Tr. at 101— 02.
2. The Alleged Pattern of Racketeering Acts
The Government alleges fifteen acts of racketeering undertaken by some or all of the Racketeering Defendants between 1995 and 2002, which it argues establish the “pattern of racketeering” necessary for RICO liability. The Court shall briefly summarize each of the alleged acts, taking the allegations in the Amended Complaint as true.
a. Rigged Election of Harold J. Daggett and Others to High-Ranking ILA Offices 18
The Government alleges that in June 1999, George Barone, “a Genovese family member, former ILA official, and convicted racketeer,” met with ILA President John Bowers at a restaurant in Miami to discuss who would replace Bowers as ILA President upon Bowers’s retirement. Am. Compl. ¶ 87. Barone had learned that Bowers favored Benny Holland as his replacement, and wanted to make it clear to Bowers that the Genovese family preferred Harold Daggett, whom Barone had placed into other ILA district and local positions and believed could be relied upon to advance Genovese family interests as ILA President. Barone arranged the meeting with Bowers through defendant Arthur Coffey, who at the time was President of ILA Locals 1922, 1922-1, and 2061, all based in Miami. During the meeting, Bowers agreed to support Daggett as his successor in exchange for a promise from Barone that Bowers’s son, John Bowers, Jr., would be “taken care of’ by the ILA and the Genovese family following Bowers’s retirement. Id. ¶ 90.
The conspiracy to place Daggett in a position to replace Bowers took a step forward in 2000, when ILA General Organizer Frank Lonardo decided to resign from his position. Because 2000 was a non-Convention year, the Genovese family
On July 19, 2000, the ILA Executive Council held its non-Convention election in Lake Tahoe, at which Daggett was elected to the position of Assistant General Organizer. Immediately after the election, Scollo called Ciccone to report the result of the election, but spoke with Cassarino because Ciccone was unavailable.
The Amended Complaint states that Cic-cone and Jerome Brancato were convicted in United States v. Gotti, 02-CR-606 (E.D.N.Y.), of conspiracy to extort, extortion, and wire fraud in connection with the scheme to rig the election of Harold Dag-gett to the ILA Executive Council, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts. See Background Part 11(A), infra.
b. Scheme to Rig the MILA PBM Contract 21
On or about May 7, 1997, MILA sent a Request for Proposal to approximately 21 vendors, seeking bids on a contract for a Pharmacy Benefit Manager (“PBM”) to administer its prescription drug plan. Sixteen vendors responded, and MILA eventually narrowed the field to two finalists— Express Scripts, Inc. (“Express Scripts”), and GPP/VIP, Inc. (“GPP/VIP”). Express Scripts was “a large, full-service company serving millions of individuals and managing billions in annual drug expenditures.”
Id.
¶ 125. GPP/VIP, on the other hand, was a start-up owned by Joel Grodman,
Despite its smaller size and relative lack of experience, GPP/VIP had one substantial advantage over Express Scripts in the competition for the MILA PBM contract: Vincent Nasso was an associate of Anthony Ciccone, and had agreed to pay Ciccone $400,000 for the selection of GPP/VIP as the MILA PBM. In his efforts to rig the PBM contract bidding in favor of GPP/ VIP, Ciccone once again conspired with the Genovese family, which had made plans through its own network of members and associates to influence the contract award. Genovese family member Larry Ricci had asked George Barone to persuade Harold Daggett, in his capacity as a MILA Trustee, to vote for whichever PBM candidate Albert Cernadas supported; Ricci planned to use his own influence over Cernadas to award the contract to a company favorable to the Genovese family’s interests. Barone agreed and instructed both Daggett and Arthur Coffey to support whichever PBM candidate that Cer-nadas supported. Ciccone then paid $75,000 to the Genovese family, and Cerna-das “was the most vocal proponent of GPP/ VIP” at the MILA deliberations, swaying the ILA Trustees in GPP/VIP’s favor notwithstanding the fact that the Management Trustees and their actuarial consultants preferred Express Scripts. The ILA Trustees and the Management Trustees ultimately reached a compromise, appointing GPP/VIP as the MILA PBM for the North Atlantic ports from Boston to Hampton Roads, Virginia, and Express Scripts as PBM for the South Atlantic ports from North Carolina to the Mexican border. After obtaining the MILA PBM contract for the northern ports, GPP/VIP continued to conspire with organized crime and its associates on the MILA Board to expand the scope of its lucrative arrangement with MILA. Its opportunity to do so arose when, despite Express Scripts’s having received better service reviews from MILA plan members than GPP/VIP, MILA terminated Express Scripts’s contract, effective January 1, 2000, and placed GPP/VIP as PBM for the entire range of ports, because Express Scripts resisted a full-scale audit by MILA.
In June 2001, GPP/VIP sent a letter to MILA’s Pharmacy Resource Committee in which it requested premium increases amounting to an additional 65 cents per member per month, stating that it had “severely underestimated and did not anticipate the cost of handling all the unique aspects of the MILA program.... ”
Id.
¶ 136. Shortly thereafter, in August 2001, MILA sent out a new Request for Proposals, in anticipation of the expiration of GPP/VIP’s contract on December 31, 2001. Ciccone favored renewing GPP/VIP’s contract, and communicated with MILA Trustee Frank Scollo, both directly and through Primo Cassarino, and with MILA Executive Director Louis Valentino for the purpose of influencing the decision. Scollo advised Ciccone that GPP/VIP would need to submit a new proposal in response to MILA’s request. Ultimately seven vendors, including GPP/VIP and Advance PCS, the largest private PBM in the United States, submitted proposals for the MILA contract. Because Advance PCS’s proposal would save MILA approximately $4 million over 3 years in comparison to GPP/VIP, the MILA Board initially voted unanimously to award the PBM contract to Advance PCS. However, during subsequent negotiations with Advance PCS, the
The Amended Complaint states that Cic-cone was convicted in United States v. Gotti 02-CR-606 (E.D.N.Y.), of conspiracy to extort, extortion, and wire fraud in connection with the scheme to rig the award of the MILA PBM contract in favor of GPP/VIP, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts. See Background Part 11(A), infra.
c. Scheme to Rig the MILA Mental Health Benefits Contract 23
The Amended Complaint also alleges that organized crime conspired with the MILA Trustees to influence the award of the MILA mental health and substance abuse plan contract. In late 1998, MILA solicited bids for the contract from seven companies, including Health Management Center, Inc. (“HMS”), which paid James Cashin as a consultant. Cashin had obtained permission from George Barone to obtain the MILA mental health benefits contract and to inform the MILA Trustees that Barone had given him such permission, though the Amended Complaint does not allege that Cashin actually informed any of the MILA Trustees of that fact.
Before the MILA mental health contract was awarded, however, a dispute developed between Cashin and HMS regarding Cashin’s compensation. Cashin’s relationship with HMS was therefore terminated, and in early 1999, Cashin entered into a consulting relationship with another mental health services company called Comp-sych, which paid Cashin $5,000 per month for his services. Compsych then submitted a bid for the MILA mental health contract, which Robert Gleason asked the MILA Board to consider at a January 29, 1999 meeting. One of the MILA Board’s actuarial consultants, Actuarial Sciences Associates, rated Compsych’s bid noncompetitive. The other consultant, The Segal Company, indicated that it had not been aware that the Compsych bid would be discussed at the meeting, but nevertheless rated the bid competitive. Compsych resubmitted its bid in April 1999, and the MILA Board deemed it competitive. MILA awarded the mental health benefits contract to Compsych in August 1999. 24
The Amended Complaint further alleges that when Compsych’s contract was due for renewal in 2001, the ILA Trustees, especially Bowers, Cernadas, and Daggett, were “particularly vocal” in their support for renewing Compsych’s contract, despite
The Amended Complaint does not state, expressly or implicitly, which type of racketeering act the Government believes its allegations regarding the rigging of the MILA mental health benefit plan constitute. However, in its memorandum of law in opposition to the defendants’ motions, the Government identifies several mailings that it alleges were made pursuant to the MILA mental health care scheme, thereby apparently suggesting that these allegations constitute mail fraud. See Gov. Mem. at 99-100.
d. Fund Investment Advisor Kickback Scheme 25
The Amended Complaint alleges three schemes by organized crime to interfere with the service contract selection process of the METRO-ILA Funds, and to defraud the beneficiaries of those funds, by awarding lucrative service contracts to associates of organized crime. The first of these involves a conspiracy among Peter Tarangelo and Thomas Cafaro, both associates of the Genovese Family, Liborio Bellomo, acting boss of the Genovese family, and Harold Daggett to influence the METRO-ILA Funds’ selection of an investment advisor. In October or November of 1995, Cafaro and Bellomo advised Tarangelo that if he could identify someone who could act as an investment advisor to the METRO-ILA Funds, they would use their influence over the METRO-ILA Trustees to ensure that Tarangelo’s handpicked advisor would receive the fund advisement contract. In return, Bellomo, Cafaro, and Tarangelo would receive a kickback from the advisor’s fee. In order to assist Tarangelo in his efforts, Cafaro and Bellomo gave him a list of ILA locals over which the Genovese family had influence, which included Local 1804-1, and told him to send solicitations to the unions.
Tarangelo eventually identified Wall Street Capital Management as his investment advisor of choice, and between November 1995 and approximately February 1996, proposals on Wall Street Capital Management’s letterhead were sent to the contacts on the list that Bellomo and Cafa-ro provided to Tarangelo. Cafaro and Bel-lomo arranged for Tarangelo to meet with Harold Daggett, then the Secretary-Treasurer of Local 1804-1, on May 23, 1996, in a Newark hotel where Local 1804-1 was having a meeting. 26 During the meeting, Tarangelo provided Daggett with a copy of the Wall Street Capital Management Proposal, and Daggett asked Tarangelo to say “hello” to Daggett’s “friend,” which the Government alleges was a reference to Bellomo. The same day, Tarangelo met with METRO President Joseph Barbera at METRO’S offices in New Jersey; shortly thereafter, in May or June 1996, Tarangelo attended another meeting with Barbera, Genovese soldier Pasquale Falcetti, and a representative of Centurion Capital Management, which was an affiliate of Wall Street Capital Management.
Until Bellomo was arrested in June 1996, Tarangelo understood that the METRO-ILA Funds would award the investment advisement contract to Wall Street
The Amended Complaint does not state, expressly or implicitly, which type of racketeering act the Government believes its allegations regarding the conspiracy to rig the METRO-ILA Funds investor advisement scheme constitute. However, in its memorandum of law in opposition to the defendants’ motions, the Government identifies several mailings that it alleges were made pursuant to that scheme, thereby apparently suggesting that these allegations constitute mail fraud. See Gov. Mem. at 97-98.
e. Rigged METRO-ILA Welfare Fund PBM Contract 27
On or about June 30, 1998, the Board of Trustees of the METRO-ILA Welfare Fund awarded its PBM contract to GPP/ VIP — the same company that was awarded the MILA PBM contract at about the same time. Despite the fact that the METRO-ILA Welfare Fund had previously used Diversified Pharmaceutical Services as its PBM, the change was made with little, if any, evaluation of the merits of awarding the contract to GPP/VIP, and was supported by Harold Daggett in his capacity as a Trustee of the METRO-ILA Welfare Fund. Daggett allegedly knew that GPP/VIP was associated with organized crime, but did not disclose that fact to the METRO-ILA Welfare Fund Board of Trustees, and did not disclose the fact that he supported the award of the contract to GPP/VIP because of its association with organized crime.
The Amended Complaint does not state, expressly or implicitly, which type of racketeering act the Government believes its allegations regarding the conspiracy to rig the METRO-ILA Welfare Fund PBM contract constitute. However, in its memorandum of law in opposition to the defendants’ motions, the Government identifies a mailing that it alleges was made in furtherance of that scheme, thereby apparently suggesting that these allegations constitute mail fraud. See Gov. Mem. at 100-101.
f. Rigged METRO-ILA Welfare Fund Mental Health Care Benefits Contract 28
On or about August 18, 1999, the Board of Trustees of the METRO-ILA Welfare Fund awarded its mental health care benefits contract to Compsych — the same company that was awarded the MILA mental health care benefits contract at about the same time. The decision to award the mental health care benefits contract to Compsych was supported by Harold Dag-gett in his capacity as a Trustee of the METRO-ILA Welfare Fund because of James Cashin’s consulting relationship with Compsych.
29
Daggett allegedly knew that Cashin and Compsych were associated with organized crime, but did not disclose that fact to the METRO-ILA Welfare Fund Board of Trustees, and did not disclose the fact that he supported the
The Amended Complaint does not state, expressly or implicitly, which type of racketeering act the Government believes its allegations regarding the conspiracy to rig the METRO-ILA Welfare Fund PBM contract constitute. However, in its memorandum of law in opposition to the defendants’ motions, the Government identifies several mailings that it alleges were made in furtherance of that scheme, thereby apparently suggesting that these allegations constitute mail fraud. See Gov. Mem. at 101.
g. Fraud on the Local 1922 and Southeast Florida Ports Welfare Funds 30
In 1999, at approximately the same time MILA and the METRO-ILA Welfare Fund awarded their mental health care benefits contracts to Compsych, the Local 1922 Health and Welfare Fund and the ILA-Employers Southeast Florida Ports Welfare Fund also awarded mental health care benefits contracts to Compsych. The Government alleges that Arthur Coffey, in his capacity as a Trustee of both funds, supported awarding the contracts to Compsych at the direction of George Bar-one. Barone ordered Coffey to support Compsych because of the company’s relationship with James Cashin. Coffey did not inform the Board of Trustees of either fund of his own association with organized crime, or that he supported Compsych at the direction of a Genovese family soldier who favored Compsych because of its relationship with Cashin.
The Amended Complaint refers to the scheme to rig the Florida funds’ mental health benefits contracts in favor of Comp-sych as a “fraud,” but does not clarify which type of predicate racketeering act the Government believes its allegations regarding that scheme constitute. However, in its memorandum of law in opposition to the defendants’ motions, the Government identifies one mailing and one facsimile transmission that it alleges were made in furtherance of that scheme, thereby apparently suggesting that these allegations constitute mail fraud and wire fraud. See Gov. Mem. at 102. The Court notes that both the mailing and facsimile transmission identified in the Government’s memorandum of law were allegedly made in furtherance of the scheme to award the Local 1922 benefits contract to Compsych; the Government does not identify any use of the mails or wires made in furtherance of the scheme to award the ILA-Employers Southeast Florida Ports Welfare Fund to Compsych.
h. Control Over Local 1 31
The Amended Complaint recounts various acts of extortion and fraud performed by Anthony Ciccone for the purpose of establishing and maintaining organized crime control over ILA Local 1, all of which involve Ciccone’s intimidation of and interference with Louis Saccenti, a delegate for ILA Local 1. The Government alleges that by undertaking these acts, Ciccone “conspired to deprive the union membership of its democratic rights and its right to loyal representation by Saceen-ti.” Am. Compl. ¶ 187.
In the summer of 2000, Louis Saccenti decided to fill a temporarily vacant shop steward’s position at the Red Hook Terminal in Brooklyn, New York, without consulting Ciccone. The shop steward’s posi
The Government also alleges a second conflict between Ciccone and Saccenti, which arose from Saccenti’s efforts to change the work rules at two marine terminals in Brooklyn at which workers represented by ILA Local 1 were employed. ILA Local 1 represents “checkers” — individuals who check cargo containers that pass through the Howland Hook terminal in Staten Island, New York, and the Red Hook Terminal in Brooklyn, New York. In 2000 and 2001, Saccenti attempted to make changes in work rules at those terminals that Scollo deemed “detrimental” to the interests of Local 1814. Am. Compl. ¶ 190. Scollo contacted Cassarino on several occasions, seeking Ciccone’s assistance in dealing with Saccenti. At Ciccone’s direction, Scollo informed August Decrezenso, a Local 1 Shop Steward, that Ciccone’s orders were that Saccenti was to make no rule changes without first notifying Ciccone. Saccenti defied Ciccone’s efforts to control him, continuing to make rule changes and at one point announcing that “all bets are off.” Id. ¶ 192. Ciccone then directed Cassarino and Gambino family soldier Richard Bondi to go to Saccenti’s home for the purpose of intimidating Saccenti. The Amended Complaint does not indicate whether the efforts to intimidate Saccenti were successful, or how the conflict was ultimately resolved.
The Amended Complaint states that Ciccone was convicted in United States v. Gotti, 02-CR-606 (E.D.N.Y.), 32 of conspiracy to extort, extortion, and wire fraud m connection with his efforts to control ILA Local 1, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts.
i. Fraud on the Local 181k Membership 33
Ciccone and Scollo’s joint efforts to exercise control over ILA officials were not limited to Local 1. In 2000 and 2001, Scollo enlisted Ciccone’s assistance in resolving a problem with another ILA Local 1814 official, Philip Scala. At the time, Scala was an ILA representative and a Local 1814 delegate. Following the ILA special elections in July 2000, Scala had repeatedly failed to report to work; Scollo believed that this was because Scala was angry that he had not been elected to a position on the Executive Board of the Atlantic Coast District Council. Seeking permission to fire Scala, Scollo contacted Cassarino and Ciccone, who suggested that Scala, Scollo, and Ciccone meet to discuss the situation. The meeting that took place did not resolve Scala’s grievances, and Scala eventu
The Amended Complaint states that Cic-cone was convicted in United States v. Gotti, 02-CR-606 (E.D.N.Y.), 34 of wire fraud in connection with his involvement with Local 1814, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme states the same predicate act.
j. Extortion of Howland Hook Container Terminal, Trac. 35
The Howland Hook Marine Terminal on Staten Island, New York, is a major facility for loading and unloading cargo. In 1996, the facility was operated by Howland Hook Container Terminal, Inc., which was managed by its CEO, Carmine Ragucci. In or about 1997, Ragucci began making payments to Ciccone to buy “labor peace” at the terminal. Am. Compl. ¶ 216. Cic-cone instructed Scollo to accept the payments from Ragucci and deliver them to Ciccone, in exchange for which Scollo was to comply with Ragucci’s wishes regarding labor issues at the terminal. Scollo complied with these instructions, collecting envelopes containing the payments from Ra-gucci on a periodic basis and delivering them either to Ciccone or to Anthony Pim-pinella. Beginning in about 1998, Scollo also sometimes delivered the payments to Primo Cassarino. Ragucci continued to make payments on a roughly quarterly basis until June or July of 2001, when he left his position at the Howland Hook Marine Terminal.
The Amended Complaint states that Ciccone was convicted in United States v. Gotti, 02-CR-606 (E.D.N.Y.), 36 of conspiracy to extort and extortion in connection with his extortion of Howland Hook Container Terminal, Inc., thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts.
k. Extortion of Bridgeside Draydage 37
In 1994 and 1995, Carmine Ragucci entered into a contract with Frank Molfetta pursuant to which Molfetta would perform truck broker-dispatcher services at the Howland Hook Marine Terminal beginning when the terminal was operational in 1996. The contract promised to give Molfetta’s company, Bridgeside Draydage, exclusive broker-dispatcher rights at the Howland Hook terminal, in exchange for $150,000 upfront and $100,000 to be paid later. Molfetta paid $150,000 to Ragucci in 1994, and Bridgeside Draydage began operating at Howland Hook in 1996. However, Mol-fetta refused to pay the additional $100,000 because, contrary to the terms of the contract, Ragucci did not grant Bridgeside Draydage exclusive broker-dispatcher rights.
In or about late 1999, Ragucci informed Molfetta that Anthony Ciccone wished to meet with him. At that meeting, Molfetta described the terms of his contract with
The Amended Complaint states that Ciccone was convicted in United States v. Gotti, 02-CR-606 (E.D.N.Y.), 38 of conspiracy to extort and extortion in connection with his extortion of Bridgeside Draydage, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts.
1.Money Laundering and Money Laundering Conspiracy 39
The Government alleges that between September 2000 and November 2001, defendants Peter Gotti, Anthony Ciccone, and Jerome Brancato laundered and conspired to launder the proceeds of the kickback schemes involving MILA and GPP/ YIP and the extortion schemes involving Howland Hook and Bridgeside Draydage. The Amended Complaint further notes that all three defendants were convicted of money laundering and money laundering conspiracy in United States v. Gotti, 02-CR606. 40
m.Extortion of Right to Employment of Hiring Agent 41
Beginning in 1996, Thomas Ragucci, the brother of Carmine Ragucci, was the hiring agent for Howland Hook Container Terminal, Inc., in which capacity he was responsible for hiring longshoremen to load and unload ships at the terminal. In approximately July 2001, Carmine Ragucci sold his ownership interest in Howland Hook Container Terminal, Inc., and resigned as CEO of the company. Between July 1 and October 1, 2001, Frank Scollo discussed the possibility of removing Thomas Ragucci from his position has hiring agent with Anthony Ciccone and Primo Cassarino. Ciccone wished to replace Thomas Ragucci with Robert Anastasio, nephew of Gambino family member Anthony “Todo” Anastasio. Ciccone instructed Scollo to speak with Ragucci about leaving the terminal; Scollo did so, informing Ra-gucci that Scollo’s “boss” wanted Ragucci to leave his position. Ragucci knew that Ciccone was a member of the Gambino family and was intimidated by Scollo’s message, believing that Ciccone might retaliate if Ragucci refused to resign.
The Amended Complaint does not allege how this situation was resolved, but it notes that Ciccone was convicted in United States v. Gotti, 02-CR-606 (E.D.N.Y.), 42 of conspiracy to extort and attempted extortion, rather than actual extortion, with respect to the scheme to remove Thomas Ragucci from his position at the Howland Hook terminal, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts.
n.Extortion of Leonardo Zinna 43
The Amended Complaint alleges quite simply that “[i]n or about 2001, the Defen
o. Extortion of Nicola Marinelli 45
The Amended Complaint alleges a second conspiracy to extort an individual longshoreman that is equally devoid of details, stating only that “[i]n and about or between January 2001 and January 2002 ... Defendant Anthony Ciccone and others, conspired to extort money from the settlement of a claim for compensation for an injury of Nicola Marinelli, a longshoreman.” Am. Compl. ¶ 249 (capitalization omitted). The Amended Complaint further states that Ciccone was convicted in the Gotti prosecution 46 of conspiracy to extort and extortion of Nicola Marinelli, thereby presumably alleging that the allegations in the Amended Complaint regarding that scheme state the same predicate acts.
II. Prior Proceedings
The Government attached as exhibits to the Amended Complaint various pleadings and other documents filed in three prior criminal actions —United States v. Bellomo, 02-CR-140 (E.D.N.Y.); United States v. Gotti, 02-CR-606 (E.D.N.Y.); and United States v. Coffey, 04-CR-651 (E.D.N.Y.)—and two prior civil actions— United States v. Local 1804-1, Int’l Longshoremen’s Assoc., 90-CV-963 (S.D.N.Y.), and United States v. Bellomo, 03-CV-1683 (E.D.N.Y.)—all of which involved many of the same defendants and factual allegations at issue in this case. In opposition to the defendants’ motions to dismiss the Amended Complaint due to its alleged failure to plead certain essential elements of several of the predicate acts, the Government argues that it has satisfied the applicable pleading requirements by incorporating by reference the factual allegations contained in the exhibits. In order to place this litigation in its proper historical context and to grasp the foundation of the Government’s arguments regarding the Amended Complaint’s pleading of the predicate acts, it is necessary to examine the allegations and outcome in each of these prior actions in some detail.
A. United States v. Gotti
In 2002, the United States unsealed an indictment charging several members and associates of the Gambino crime family, including,
inter alia,
Peter Gotti, Anthony Ciccone, and Jerome Brancato, all of whom are defendants in this action, as well as Frank Scollo, Primo Cassarino, and Vincent Nasso, who are not named as defendants in this action but are identified as uncharged participants in one or more of the alleged predicate acts, with many of the racketeering acts that are alleged in this action.
See
Indictment in
United States v. Gotti,
02-CR-606 (E.D.N.Y.), attached to the Amended Complaint as Exhibit 6
(“Gotti
Indictment” or
“Gotti
Ind.”). Scollo eventually pleaded guilty to RICO conspiracy in connection with his involvement in a number of the racketeering schemes alleged in
Gotti
and Nasso plead
Although the
Gotti
Indictment charges many of the same defendants with many of the same acts alleged in this case,'it takes a markedly different position with respect to the ILA, its officers and subordinate organizations, and the other nominal defendants. The
Gotti
Indictment identifies the relevant RICO enterprise as the Gambino crime family, and identifies all of the defendants in that case as members or associates of the Gambino family.
See Gotti
Ind. ¶¶ 1-16. Counts One and Two of the
Gotti
Indictment allege substantive RICO violation and RICO conspiracy, respectively, and identify 33 predicate racketeering acts, many of which are identical to the offenses alleged as predicate acts undertaken by the Waterfront Enterprise in this action. Specifically, the
Gotti
Indictment identifies the following schemes alleged as predicate acts in this action as acts attributable to the Gambino family enterprise: the rigged election of Harold Daggett and others to high-ranking ILA offices;
47
the scheme to rig the award of the MILA PBM contract in GPP/VIP’s favor;
48
the extortion of ILA Local 1 delegate Louis Saccenti;
49
the fraud on the Local 1814 membership involving the resignation of Philip Scala and appointment of Patsy Pozzolano as union delegate;
50
the extortion of Howland Hook Container Terminal, Inc.;
51
the extortion of Bridgeside Draydage;
52
money laundering and money laundering conspiracy;
53
attempted extortion of Howland Hook Marine Terminal, Inc.’s right to employ Thomas Ragucci as a hiring agent;
54
the extortion of Leonardo Zinna;
55
and the extortion of Nicola Marinelli.
56
Except with respect to the allegations regarding Frank Scollo’s participation in the schemes of his Gambino family compatriots, however, the
Gotti
Indictment generally characterizes the ILA and its officials and subordinate labor un
B. United States v. Bellomo Criminal Case
On February 2, 2002, the United States indicted eight members and associates of the Genovese crime family — Liborio Bello-mo, Thomas Cafaro, Pasquale Falcetti, Andrew Gigante, Vincent Gigante, Ernest Muscarella, Michael Ragusa, and Charles Tuzzo — on charges of,
inter alia,
racketeering, racketeering conspiracy, extortion, mail fraud, and money laundering.
57
See
Superseding Indictment (S — 2) in
United States v. Bellomo,
02-CR-140 (ILG), attached to the Amended Complaint as Exhibit 3
(“Bellomo
Indictment” or
“Bellomo
Ind.”). In
Bellomo,
like
Gotti
the Government charged some of the racketeering acts now alleged as RICO predicates in this action, but did not ascribe them to the Waterfront Enterprise or assert that they were jointly undertaken by the Genovese and Gambino families in conjunction with other co-conspirators. Rather, the
Bello-mo
Indictment identifies the relevant RICO enterprise as the Genovese crime family, and charges that enterprise and its members and associates with responsibility for all of the illegal acts alleged therein.
See id.
¶¶ 1-16. Like the
Gotti
Indictment, the charges in the
Bellomo
Indictment that pertain to the issues raised in this action portray the ILA and other Waterfront entities as the victims of organized crime, rather than co-conspirators with the Genovese family. For example, Racketeering Act 1 of Counts 1 (substantive RICO violation) and 2 (RICO conspiracy) charges that the
Bellomo
defendants conspired to obtain money from Waterfront business as well as ILA labor union positions, and the salaries and benefits associated with those positions, by extortionate means.
Id.
¶ 19. Racketeering Act 2 charges that several of the defendants extorted money from an unidentified owner of a business operating on the Waterfront. Racketeering Act 3 charges Bellomo, Cafa-ro, Falcetti, and Ragusa with mail fraud and money laundering in connection with the METRO-ILA Funds investment advis- or scheme, but unlike the Amended Complaint, it does not identify Harold Daggett or METRO President Joseph Barbera as co-conspirators.
58
Bellomo
Ind. ¶¶ 21-23. In keeping with its general depiction of the
On April 7, 2003, all of the Bellomo defendants pleaded guilty before this Court to one or more of the charges alleged in the Bellomo Indictment. Bello-mo, Cafaro, Falcetti, Muscarella, and Ra-gusa pleaded guilty to violating RICO, Andrew Gigante and Tuzzo pleaded guilty to extortion conspiracy, and Vincent Gi-gante pleaded guilty to one count of obstruction of justice.
C. United States v. Bellomo Civil Case
On April 7, 2003, the same day that the
Bellomo
defendants pleaded guilty to the criminal charges contained in the
Bellomo
Indictment, the Government filed a civil complaint against seven of those defendants — all except Vincent Gigante, who was identified as an uncharged co-conspirator — -alleging a single claim of racketeering conspiracy in violation of 18 U.S.C. § 1962(d), which incorporated by reference all of the alleged predicate acts stated in the
Bellomo
Indictment.
See United States v. Bellomo,
03-CV-1683 (ILG) (E.D.N.Y.), Complaint ¶27, attached as Exhibit 4 to the Amended Complaint
(“Bellomo
Complaint” or
“Bellomo
Compl.”). Unlike the criminal indictment in
Bellomo,
the
Bellomo
Complaint identifies the relevant RICO enterprise as being comprised of not only the Genovese crime family, but also the ILA, its affiliated locals in New York, New Jersey, and Miami, individual officers, employees, agents, and representatives of the ILA and its affiliated entities, and the ILA’s affiliated employee benefit plans,
59
Bellomo
Compl. ¶ 22, and alleged that each of the defendants “sought to control and dominate the Waterfront and the Florida Ports, as well as other businesses and unions operating elsewhere, and conduct and participate in the conduct in the affairs of the Enterprise” through the pattern of racketeering alleged in the
Bellomo
Indictment.
Id.
¶ 29. Although the enterprise in the
Bel-lomo
civil action was defined to include the ILA and related organizations and individuals, the
Bellomo
complaint nevertheless depicts the Waterfront businesses and organizations, including the ILA, as victims of, rather than co-conspirators with, the agents of organized crime operating on the Waterfront. For example, the
Bellomo
Complaint alleges that Gambino and Ge-novese families “have shared control of the Waterfront,” which is defined to include the ILA and its subordinate labor organizations,
see id.
¶ 1, “through the use of actual and threatened force, violence and fear, exercising influence over labor unions and businesses at commercial shipping terminals in New York and New Jersey,”
id.
¶4, and further alleges that the Government commenced that action “to enjoin the Defendants from engaging in a pattern of racketeering activity which would enable
On May 27, 2003, all of the defendants in the Bellomo civil case entered into a Consent Judgment and Decree with the Government for the purpose of settling that action. See Am. Compl. Ex. 5 (“Bellomo Consent Decree”). Pursuant to the terms of the Bellomo Consent Decree, the Bello-mo defendants are permanently enjoined, inter alia, from engaging in any activity whatsoever involving the ILA or any of its locals or other constituent labor organizations, and from engaging in any commercial activity in the New York/New Jersey Waterfront and the Port of Miami or having any legal or beneficial interest in any entity that does business in those areas. Id.; see also Am. Compl. ¶ 45.
D. United States v. Coffey
Although Frank Scollo was named in the Gotti Indictment, the Government did not pursue criminal charges against any other ILA official with respect to the alleged acts underlying the Amended Complaint in this action until 2004, when, in United States v. Coffey, 04-CR-651 (ILG) (E.D.N.Y.), it filed a sealed criminal complaint and ultimately obtained an indictment, in 2005, charging Arthur Coffey, Harold Daggett, Arthur Cernadas, and Lawrence Ricci with extortion conspiracy and mail fraud in connection with their involvement in the schemes to award PBM contracts to GPP/VIP and mental health care contracts to Compsych discussed above. See Superseding Indictment (S—2) in United States v. Coffey, 04-CR-651 (E.D.N.Y.) (“Coffey Indictment”), attached to the Amended Complaint as Exhibit 1; see also Complaint in United States v. Coffey (“Coffey Complaint”), attached to Amended Complaint as Exhibit 2. The Coffey Indictment charged that each defendant was a member or an associate of the Genovese family and alleged that Coffey, Cernadas, and Daggett had abused their positions as Trustees in one or more of the benefit funds associated with the ILA to rig the award of service contracts in favor of GPP/VIP and Compsych. The Coffey Indictment did not charge a RICO violation, and therefore did not allege the existence of a RICO enterprise.
Cernadas pleaded guilty to the Coffey Indictment on September 12, 2005, and was ultimately sentenced to two years’ probation by this Court on February 22, 2006. The other three defendants pleaded not guilty and went to trial, which commenced on September 19, 2005. Coffey and Daggett were ultimately acquitted of all charges by the jury. Midway through the trial, Ricci failed to appear; his body was subsequently discovered in the trunk of a car approximately two weeks after the trial concluded. Am. Compl. ¶ 40(j).
E. United States v. Local 1804-1, Int’l Longshoremen’s Assoc., AFL-CIO
Although the civil and criminal actions in
Gotti
and
Bellomo
are the direct predecessors to this action in terms of the identity of the defendants and the specific claims alleged, the closest parallel to the theory of the Government’s case and the types of relief it seeks in this case is the civil action in
United States v. Local 1804-1, Int’l Longshoremen’s Assoc., AFL-CIO,
90-CV-963 (LBS) (S.D.N.Y.) (“ILA Local Civil RICO Case”). In that case, the Government filed a civil RICO complaint charging
certain members and associates of the Genovese and Gambino Families, theGenovese and Gambino Families themselves, acting through those members and associates, ILA Locals 1804-1, 1588, 1814, 1809, 1909, 824, certain other ILA locals, and certain of their respective Executive Board and their related labor councils, and their Pension, Welfare, and Benefit Funds, certain present and former ILA International and local officials and employees, and certain businesses and employer associations operating on or about the Waterfront....
ILA Local Civil RICO Compl. ¶ 69. The common objective of the defendants as stated in that complaint was “the corrupt control and influence of Waterfront industry and labor unions in order to enrich themselves and their associates.” Id. ¶ 70. Although a substantial degree of overlap exists between the Waterfront Enterprise as defined in the 1990 action and the enterprise alleged in the Amended Complaint in this action, the 1990 version of the Waterfront Enterprise included ILA Locals 1809 and 1909, which are not alleged in the Amended Complaint to be a part of the relevant RICO enterprise for purposes of this action; conversely, the Amended Complaint here identifies the ILA International; ILA Atlantic Coast District and South Atlantic & Gulf Coast District; Locals 1922, 1922-1, and 2062; and the ILA Local 1922 Health and Welfare Fund and the ILA-Employers Southeast Florida Ports Welfare Fund, none of which were identified as part of the Waterfront Enterprise as defined in the ILA Local Civil RICO Case, as part of that enterprise in this action. Compare id. with Am. Compl. ¶ 67.
In the ILA Local Civil RICO Case, the Government sought preliminary and permanent injunctions against the defendants, the primary effects of which would be to: (1) enjoin the organized crime defendants and any other defendant found to have participated in racketeering activity from participating in any way in the management of the ILA Locals or any Waterfront business entity or organization; (2) enjoin the ILA officials and Executive Boards from committing any act of racketeering activity or associating with any member of La Cosa Nostra; (3) order that new elections be held for the ILA Local Executive Boards named in the complaint, which would be overseen by a court-appointed trustee and conducted in such a manner as to ensure that they were not vulnerable to intimidation or other improper influences; and (4) appoint an administrator, who would remain in place “until such time as the Waterfront and the ILA Locals are free of the corruption, domination, control, and infiltration by La Cosa Nostra,” to oversee the operations of the Waterfront, including but not limited to the ILA Locals and the Waterfront employers named in the complaint, for the purpose of preventing racketeering activity. ILA Local Civil RICO Compl. at 123 (Demand for relief subpart (e)). All of the ILA Locals named in the ILA Local Civil RICO Complaint eventually signed consent decrees with the Government settling the case against them. Each ILA Local agreed to an injunction prohibiting all of its present or future agents, employees, and members from committing any racketeering activity and from associating with any member or associate of organized crime. Most of the ILA Locals also agreed to the imposition of a court-appointed monitor, and three— Locals 824, 1809, and 1909 — agreed to supervision of their upcoming elections by the United States Department of Labor.
See
Am. Compl. Ex. 9-11 (consent decrees in ILA Local Civil RICO Case). Several defendants and uncharged eo-con-spirators in the present action, including John Bowers, Sr., Harold Daggett, Robert Gleason, George Barone, James Cashin, Anthony Ciccone, and Louis Pernice,
Trial in the ILA Local Civil RICO Case commenced on April 15, 1991, against the four defendants — Donald Carson, Anthony Gallagher, George Lachnicht, and Venero Mangano — who had neither settled nor defaulted. Following a ten-week bench trial that took place over the course of eleven months, Judge Sand of the Southern District of New York issued a written opinion in which he found each of those defendants liable for the civil RICO violations at issue in that litigation.
See United States v. Local 1804-1, Int’l Longshoremen’s
Assoc.,
DISCUSSION
I. Standard of Review
A. Government’s Argument that Defendants’ Motions be Treated as Constructive Motions for Summary Judgment
Before it can determine the appropriate standard of review to be applied to the defendants’ motions, the Court must decide whether to treat those motions as motions to dismiss under Rule 12(b)(6) or motions for summary judgment under Rule 56(b). The Government, taking note of the fact that many of the defendants attached documents to their memoranda of law in support of their motions to dismiss that are not attached as exhibits to the Amended Complaint, argues that the defendants’ purported 12(b)(6) motions “are actually motions for summary judgment only feebly disguised as motions to dismiss.” Gov. Mem. at 132; see also id. at 166 n. 82 (arguing that “a number of defendants, the ILA prominent among them, have constructively moved for summary judgment.”). The Government therefore urges the Court to construe the defendants’ motions as motions for summary judgment under Rule 56(b), and to deny the motions as inappropriate at this point in the proceedings because the Government has not yet had an opportunity to conduct testimonial discovery. Aside from defendant Gleason, who expressly moved for summary judgment but withdrew that motion at oral argument, the defendants deny that their 12(b)(6) motions are constructive summary judgment motions, and argue that the documents attached to their motion papers may be considered by the Court on a 12(b)(6) motion under the applicable legal standards.
Rule 12(b) provides that, on a motion arising under Rule 12(b)(6),
[i]f ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
“As indicated by the word ‘shall,’ the conversion of a Rule 12(b)(6) motion into one for summary judgment under Rule 56 when the court considers matters outside the pleadings is ‘strictly enforce[d]’ and ‘mandatory.’ ”
Global Network Commc’ns, Inc. v. City of New York,
The Government objects to the following defendants’ exhibits as exceeding the scope of a 12(b)(6) motion: ILA Exhibits A, B, C, J, K, and L;
62
MILA Exhibits 1-3;
63
Gleason Exhibits D, E, and F;
64
and Bowers Exhibit l.
65
Although, as a general matter, the court must rely only on the facts alleged in the Amended Complaint and accept those facts as true for purposes of resolving a Rule 12(b)(6) motion,
see
Discussion Part 1(B),
infra,
in some cases it may consider documents outside the complaint, including documents attached to a defendant’s 12(b)(6) motion papers. The Second Circuit has recognized that “the problem that arises when a court reviews statements extraneous to a complaint [in adjudicating a 12(b)(6) motion] generally is the lack of notice to the plaintiff that they may be so considered,” and that in some circumstances where this problem is not present, the district court may consider documents outside the complaint in resolving a 12(b)(6) motion to dismiss.
Cortec Indus., Inc. v. Sum, Holding L.P.,
ILA Exhibit A is a copy of a New York Daily News article, dated June 16, 2004, regarding the sentencing of Anthony Cic-cone. The ILA quotes a portion of this article in its memorandum in support of its argument that, contrary to the Government’s assertions in the Amended Complaint, organized crime no longer enjoys the dominion over Waterfront operations that existed at the time of the prior prosecutions and investigations cited in the Amended Complaint.
67
The ILA argues that the Court can refer to this document for “background” without converting the ILA’s 12(b)(6) motion into a motion for summary judgment, citing the Second Circuit’s ruling in
Hayden v. County of Nassau,
ILA Exhibit B is a copy of the ILA’s 2004 Form LM-2, an annual report that it is required to file with the Department of Labor. The ILA cites this document for the proposition that “[t]he ILA represents approximately 59,000 members,” ILA Mem. at 5, and argues that it is entitled to introduce this document because it was cited in the Amended Complaint. ILA Mem. at 5 n. 3 (citing
Nasik Breeding & Research Farm Ltd. v. Merck & Co., Inc.,
ILA Exhibit C is a copy of the ILA’s Constitution, as amended in July 2003. The ILA relies on this document to correct what it sees as an inaccuracy in the Amended Complaint regarding the replacement of ILA Executive Council officers in nonconvention years. The Amended Complaint asserts that “[i]n a non-Convention year, vacancies on the ILA Executive Council are filled by the Executive Council from the membership of the Executive Council.” Am. Compl. ¶ 96. The ILA argues that the Government’s characterization is incorrect, noting that under its Constitution, “only the President’s position is filled from existing members of the Executive Council; any ILA member can be appointed to the other positions.” ILA Mem. at 6 (citing ILA Constitution, Art. VIII, § 7). The ILA argues that its Constitution is incorporated into the Amended Complaint by reference. ILA Reply Mem. at 4. Whether the Amended Complaint’s use of the ILA Constitution rises to the level of incorporation by reference is a close question, but at a minimum, the Government possessed and relied on the ILA Constitution in drafting the Amended Complaint. For example, paragraphs 95 and 96 of the Amended Complaint, which describe the procedure for Executive Council elections and replacement of Executive Council members in non-convention years, necessarily rely on the terms or effects of the ILA Constitution. The Court can conceive of no good faith basis upon which the Government could make assertions of fact regarding the ILA’s election procedures without relying on the ILA Constitution. Moreover, Paragraph 16 of the Amended Complaint quotes extensively from the ILA’s Constitution in describing the positions of the ILA Executive Council members and the authority of the Executive Council. The Court therefore finds that it may consider the ILA Constitution in resolving the pending 12(b)(6) motions. It further finds that paragraph 96 of the Amended Complaint is inaccurate, insofar as it represents that replacements for Executive Council members, other than the President, in non-convention years must be drawn from the ranks of present Executive Council members. 68
ILA Exhibit J is a copy of the ILA’s Code of Ethics, dated January 1, 2004, and ILA Exhibit K is a letter from attorney Joseph D. McCann to AUSA Richard Hayes, dated June 30, 2005. The Court shall discuss the two exhibits together because of the substantial overlap in the
[t]he permanent position of an independent Appellate Officer has been created. This Appellate Officer will serve for the same term as the Ethical Practices Counsel, and will have jurisdiction to hear appeals from decision of the ILA Executive Council on matters brought before it by the Ethical Practices Counsel. Notably, the Appellate Officer will also have the authority to hold de novo hearings and his/her decision would constitute the final decision of the ILA.
ILA Ex. K at 2.
The Court finds that the Amended Complaint, which cites the ILA’s Code of Ethics as the basis of its allegations regarding the effectiveness of the ILA’s reform efforts, necessarily relies upon the Code of Ethics, and that the Court may therefore consider the contents of that document for purposes of resolving this motion. However, most of the ILA’s reliance on the Code of Ethics is not for the purpose of correcting the Government’s supposed misrepresentations about the terms of the that document, but rather for the purpose of arguing, as a factual matter, that the ILA’s adoption of the Code of Ethics eliminates the ongoing threat of organized crime activity on the Waterfront that is alleged in the Amended Complaint.
See
ILA Mem. at 17-18 (section headed “The Relief Requested is Duplicative,” which argues that the Government “fails to credit that the ILA took action prior to the filing of the Complaint” by adopting the Code of Ethics “to address the issues now raised in the Government’s Complaint”);
id.
at 51 (arguing that the Government has not established open-ended continuity because “any Government theory about future organized crime involvement in the ILA is made even more speculative by the affirmative steps taken by the ILA to eradicate corruption,” referring specifically to the adoption of the Code of Ethics). Even though the Court is permitted to consider the contents of the Code of Ethics, it is nevertheless bound to accept the factual allegations in the Amended Complaint— including the allegations regarding the risk of ongoing organized crime involvement in the ILA notwithstanding the adoption of the Code of Ethics — for purposes of this motion. It therefore declines to consider the ILA’s factual argument that the Code
The ILA also argues that the Government’s characterization of the Executive Council’s ultimate authority to decide disciplinary matters is factually incorrect because the ILA’s Appellate Officer has jurisdiction to review disciplinary decisions by the Executive Council and to issue binding decisions. Notably, the ILA does not cite any provision of the Code of Ethics or the ILA Constitution for that proposition, but cites only the June 30, 2005, McCann letter. The McCann letter is not incorporated by reference into the Amended Complaint, and although the Government presumably possessed it at the time the Amended Complaint was filed, there is no indication that it relied on that letter in drafting the Amended Complaint. As the Second Circuit made clear in
Chambers,
mere possession is insufficient to permit the Court to consider the contents of a document not attached to or incorporated in the complaint; the further element of reliance must also be present.
See Chambers,
ILA Exhibit L is a joint press release of the United States Attorney for the Eastern District of New York and the Office of the Attorney General for the state of New York, which announces the indictments in the
Gotti
prosecution. The ILA cites this press release in support of its argument that the Government’s position in
Gotti
and
Bellomo
portrayed the ILA and its officials as victims of organized crime, rather than coconspirators, and is therefore inconsistent with the position taken in this action. ILA Mem. at 24. The ILA does not argue that the press release was incorporated by reference in the Amended Complaint or relied upon by the Government in drafting that document, but simply
MILA Exhibit 1 is a copy of MILA’s “Code of Conduct,” which deals with prohibiting association or involvement with organized crime by MILA trustees, fiduciaries, employees, agents, and representatives. MILA Exhibit 2 is an Amendment to the MILA Trust and Plan that incorporates the Code of Conduct into the Trust and Plan, clarifies that MILA Trustees are subject to removal for violations of the Code of Conduct, and requires that each service contract into which MILA enters must include a provision that permits MILA to cancel the contract immediately if MILA’s Ethical Practices Monitor has reason to believe that the counterparty to the agreement is associated with organized crime. MILA Exhibit 3 is an excerpt from the minutes of a MILA Board of Trustees meeting held on January 11-12, 2005, in which the MILA Board adopted a resolution to authorize MILA’s Ethical Practices Monitor to investigate the finalists competing for MILA PBM health care and mental health contracts. MILA relies on all of these exhibits in support of its argument that the Government has failed to establish open-ended continuity with respect to the GPP/VIP scheme because MILA’s implementation of the Code of Conduct “assure[s] a racketeer-free environment in the conduct of the affairs of MILA.” MILA Mem. at 25; see also MILA Reply Mem. at 12-13 (“Well before the commencement of this action, MILA put into effect protective measures that assure a racketeer-free environment in the conduct of the affairs of MILA.”). MILA makes no effort to argue that any of these exhibits are incorporated by reference or relied upon by the Government in drafting the Amended Complaint. The Court therefore shall not consider these documents, or MILA’s argument that additional factual matters not stated in the Amended Complaint belie the Government’s allegations, for purposes of resolving the present motions.
Gleason Exhibits D and E are excerpts of the
Coffey
trial transcript, and Gleason Exhibit F is a letter from attorney Francis J. Murray of Murray & McCann to AUSA Richard Hayes, dated January 12, 2006, in which Mr. Murray urges Mr. Hayes, “in light of the testimony of George Barone” in the
Coffey
trial, to reclassify Mr. Gleason as a nominal defendant in the Amended Complaint. Mr. Gleason does not cite Exhibits D and E for any purpose in his memorandum of law, nor did his attorney mention them at oral argument. The Court therefore need not consider those exhibits regardless of whether they could be considered under any of the exceptions noted by the Second Circuit in
Brass.
Mr. Gleason cites Exhibit F in support of his argument that George Barone’s testimony
Bowers Exhibit 1 is a press release issued by the United States Attorney’s Office for the Eastern District of New York on July 27, 2004, which announces the indictments of Harold Daggett and Arthur Coffey in the
Coffey
case. Bowers’s memorandum of law quotes extensively from this press release in support of his argument that he was a victim of organized crime extortion, rather than a co-conspirator in a RICO enterprise.
See
Bowers Mem. at 6-7. He argues that the Court may consider the press release because it is subject to judicial notice and because the Government possessed and relied on that document in drafting the Amended Complaint.
See id.
at 7 n. 6 (citing
Nasik Breeding,
Thus, in resolving the pending 12(b)(6) motions, the Court shall exclude the following exhibits: ILA Exhibits A, K, and L; MILA Exhibits 1-3; Gleason Exhibits D, E, and F; and Bowers Exhibit 1. The Court shall consider ILA Exhibits B, C, and J, and all defendants’ exhibits to which the Government did not object. The Court shall also exclude in its entirety the Declaration of Kathleen A. Nandan (“Nan-dan Deck”), dated December 12, 2006 (docket no. 184), which was submitted by the Government in opposition to defendant Gleason’s motion for summary judgment and in opposition to the other defendants’ 12(b)(6) motions “to the extent that these motions rely on facts and information that are not set forth in the Complaint in this action, as amended.” Nandan Deck at 1.
B. Standard of Review for Rule 12(b)(6) Motions
A Rule 12(b)(6) motion subjects the complaint only to a superficial review, testing whether the plaintiff has stated a plausible claim of entitlement to relief without examining the evidence supporting those allegations. The Second Circuit has recognized that [t]he purpose of Rule 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the plaintiffs statement of a claim for relief without resolving a contest regarding its substantive merits. The Rule thus assesses the legal feasibility of the complaint, but does not weigh the evidence that might be offered to support it.
Global Network Communications,
The Court’s review of the Amended Complaint, except for the allegations of mail and wire fraud,
69
is guided by the pleading standard set forth in Federal Rule of Civil Procedure 8 (“Rule 8”). Rule 8(a)(2) provides that a civil complaint “shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court clarified the pleading requirements imposed by Rule 8(a)(2) and the standard of review to be applied under Rule 12(b)(6) to a pleading governed by Rule 8(a)(2) in its recent decision in
Bell Atlantic Corp. v. Twombly,
— U.S. -,
II. Sufficiency of the Amended Complaint Under Rule 12(b)(6)
Many of the defendants moved separately under Rule 12(b)(6) to dismiss the Amended Complaint against them individually; however, the ILA’s motion, in which a number of other defendants expressly joined, primarily addresses the fundamental viability of the RICO claims alleged in the Amended Complaint in toto, rather than as applied to any particular defendant. Because the shortcomings in the Amended Complaint raised by the ILA compel the Court to dismiss the Amended Complaint in its entirety, the Court need not consider the individual 12(b)(6) motions made by the other defendants.
As noted above, the Amended Complaint charges the Racketeering Defendants with two RICO violations: conspiracy to violate 18 U.S.C. § 1962(c) in violation of § 1962(d) (Count 1), and conspiracy to violate § 1962(b) in violation of § 1962(d) (Count 2). The Supreme Court has recognized that “[t]he elements predominant in a [§ 1962] subsection (c) violation are: (1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity”
Salinas v. United States,
The ILA raises a number of challenges to the sufficiency of the Amended Complaint, which fall into four broad categories: 1) challenges to the Amended Complaint’s allegations of conspiracy; 2) challenges to the pleading of the Waterfront Enterprise; 3) challenges to the pleading of the predicate acts; and 4) challenges to the pleading of a pattern of racketeering. The Court finds that it need not address all of the arguments raised by the ILA, for its challenges to the Amended Complaint’s pleading of the Waterfront Enterprise and the predicate acts are sufficient to require dismissal. Before proceeding to those issues, however, the Court must first examine another defect in the pleading of the Amended Complaint that became apparent in the Government’s memorandum in opposition to the present motions and at oral argument.
A. Propriety of Pleading Essential Elements by Incorporation of Attached Pleadings from Prior Criminal and Civil Cases
In
United States v. Private Sanitation Indus. Ass’n of Nassau/Suffolk, Inc.,
As an initial matter, notwithstanding the Government’s repeated assertions to the contrary at oral argument, the Court notes that nowhere in the Amended Complaint does the Government expressly incorporate by reference any portions of the attached exhibits. “Although there is no prescribed procedure for referring to incorporated matter, the references to prior allegations must be direct and explicit, in order to enable the responding party to ascertain the nature and extent of the incorporation.” 5A Wright & Miller,
Federal Practice & Procedure: Civil Sd
§ 1326 (citing,
inter alia, Arce v. Walker,
The statement should be plain because the principal function of the pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial. The statement should be short because unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.
Salahuddin v. Cuomo,
Rule 10(c) also states that “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Exhibits 5, 7, 9, 10, 11, and 13 — the various consent decrees and the verdict sheet in
Gotti
— arguably constitute “written instruments” and therefore form a part of the Amended Complaint; however, the various prior pleadings upon which the Government seeks to rely do not qualify as written instruments. “A ‘written instrument’ is a document evidencing legal rights or duties or giving formal expression to a legal act or agreement, such as a deed, will, bond, lease, insurance policy or security agreement.”
Murphy v. Cadillac Rubber & Plastics, Inc.,
In short, whether viewed through the lens of Rule 8(a) or Rule 10(c), the Government’s attempt to plead many essential elements of the alleged RICO claims by “incorporating” hundreds of pages of prior pleadings, with no guidance as to which specific allegations are intended to be deemed incorporated, fails to satisfy even the relatively light burden that it bears under the Federal Rules of Civil Procedure to provide a “short and plain” statement of its entitlement to relief. 78 The Amended Complaint therefore must be dismissed for failure to comply with Rule 8(a). However, certain other defects in the Amended Complaint raised by the ILA compel the Court, in the interests of judicial economy, to address several other shortcomings in the Government’s allegations that go deeper than the formal aspects of the Amended Complaint.
B. The Waterfront Enterprise
RICO broadly defines an “enterprise” as including “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). In
United States v. Turkette,
1. Pleading Requirements for RICO Enterprise in the Second Circuit
Before resolving the parties’ dispute as to the validity of the Amended Complaint’s allegations concerning the Waterfront Enterprise, the Court must address the uncertainty that has recently arisen among the district courts in the Second Circuit regarding the pleading requirements necessary to adequately allege the existence of a RICO enterprise. In
World Wrestling Entm’t, Inc. v. Jakks Pacific, Inc.,
In order to assess the basis of
World Wrestling Entertainment’s
holding that
Mazzei
held that a RICO plaintiff need not establish the alleged enterprise as an entity separate from the pattern of predicate racketeering acts, it is necessary to examine the
Mazzei
opinion in some detail.
Mazzei
involved an appeal from a criminal conviction under § 1962(c) stemming from the Boston College point-shaving scandal in the early 1980s. In that case, Mazzei and his co-conspirators in Pittsburgh conspired with organized crime figures Henry Hill and James Burke in New York and several players on the Boston College varsity basketball team to cause Boston College to fail to beat the “point spread” in certain pre-selected basketball games, thereby ensuring that the coconspirators would win bets placed against Boston College in those games. The indictment identified the relevant RICO enterprise as “a group of individuals associated in fact and utilizing, among other things, interstate travel and facilities in interstate commerce to influence by means of bribery the outcome of basketball games involving the Boston College varsity basketball team and to profit therefrom by wagering on those games.”
That a wholly criminal enterprise comes within the ambit of the statute does not mean that a “pattern of racketeering activity” is an “enterprise.” In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.
With due respect to the meticulously researched and carefully crafted opinion in
World Wrestling Entertainment,
this Court does not read
Mazzei
as standing for the proposition that a plaintiff need not plead or prove the traditional indicia of an association-in-fact enterprise in order to state a cognizable civil RICO claim. The district court in
World Wrestling Entertainment
equated the defendants’ argument that a valid RICO enterprise must display the characteristics of formal or informal structure, continuity, and common purpose, with the proposition that “the evidence necessary to establish an enter
In short, this Court must respectfully depart from the holding of the Southern District of New York in World Wrestling Entertainment insofar as that case suggests that a civil RICO plaintiff need not plead any facts beyond the existence of a pattern of racketeering activity in order to adequately allege the element of a RICO enterprise. 85 In this Court’s view, it remains the law in this Circuit that a RICO plaintiff alleging the existence of an association-in-fact RICO enterprise must plead and prove the existence of a group of individuals or other legal entities operating as a continuing unit with a formal or informal structure and united by some common purpose in order to state a valid claim. The fact that the evidence necessary to prove the existence of the enterprise and the pattern of racketeering activity may coalesce in some eases does not undermine the fact that enterprise and pattern of racketeering remain conceptually distinct elements of a RICO violation, each of which must be alleged in the complaint in order to survive a Rule 12(b)(6) motion to dismiss. This point is particularly important where, as here, the alleged enterprise is not a wholly illegitimate one, and the proof necessary to establish its existence cannot be expected to fully coalesce with that necessary to prove the pattern of racketeering. 86
2. Analysis of Amended Complaint’s Pleading of the Waterfront Enterprise
The ILA argues that
[t]he Waterfront Enterprise encompasses a host of unspecified individuals (i.e., “certain current and former ILA officers,” and “certain members and associates of the Genovese and Gambino crime families”) and unspecified businesses (ie., “certain businesses”) whose operations relate in any manner to the transaction of commerce in the Ports of New Jersey, New York, Miami or elsewhere. At a minimum, without specification as to who is actually part of the enterprise, no meaningful basis exists on which to fully evaluate the formation of the group, its continuity and its structure.
ILA Mem. at 31 (citations omitted). In direct response to this passage, the Government asserts that the “Defendants’ position that there are no facts which could ultimately establish the existence of the Waterfront Enterprise has no basis,” Gov. Mem. at 69, recounting the Amended Complaint’s allegations regarding the decades of organized crime influence over Waterfront businesses and labor unions and arguing that “[t]he notion that an enterprise which was found to have existed [in the ILA Local Civil RICO Case] from the 1950s through the 1990s simply ceased to exist thereafter defies reason.” Id. at 72. The Government’s rebuttal mischaracter-izes the ILA’s position. The ILA’s argument is not that the Government may lack evidentiary support for the existence of the Waterfront Enterprise, but rather is more fundamental: that the Waterfront Enterprise, as defined in the complaint, is simply an incoherent aggregation of the various predicate acts alleged and arranged in an ad hoc manner as necessary to obtain the equitable relief the Government seeks against the various defendants and does not satisfy the definitional criteria of a RICO enterprise, rendering the question of its empirical existence simply unintelligible. 87
The Court concludes that the ILA is correct, and that the Amended Complaint fails to plead a cognizable assoeiation-in-fact enterprise. The Amended Complaint contains virtually no allegations regarding the structure and organization of the alleged Waterfront Enterprise, and leaves a plethora of unanswered questions regarding the membership, purpose, and structure of that entity. For example, who are the unnamed “current and former ILA officials” and “certain businesses operating on or about the Waterfront” that are members of the Waterfront Enterprise? What criteria distinguish a Waterfront entity that is a member of the Waterfront Enterprise from one that is not? What is the organizational structure of the Waterfront Enterprise? Who is in charge of it? How are instructions conveyed between its members? How does one become a member of, or terminate membership in, the Waterfront Enterprise? As discussed further below, what common purpose unites the members of the Waterfront Enterprise, and what is the purpose of the enterprise itself? As this Court held in
Bernstein,
“[t]he indifferent attempts to plead the existence of an enterprise fall short of their goal in that they frustrate assiduous efforts to identify its membership, its structure (formal or informal), or its functional unity.”
It should further be noted that, by the Government’s own admission at oral argument, the Amended Complaint fails to allege any common purpose uniting the Waterfront Enterprise as an entity, as is required to plead a valid association-in-fact enterprise.
See Turkette,
As this Court suggested at oral argument, see Tr. at 97, what the Government is really alleging in this case is an enterprise comprised of the Gambino and Ge-novese families, certain members and associates of those families, and a handful of coconspirators placed in key positions in the ILA and associated labor unions who together have allegedly conspired to corrupt and control interstate commerce on the New York/New Jersey Waterfront and the Port of Miami through a pattern of racketeering activity involving the infiltration and control of labor unions and businesses operating on the Waterfront. While limiting the alleged enterprise to that relatively narrow group might create potentially insurmountable obstacles to the Government’s efforts to impose equitable relief on some of the nominal defendants in this action, this Court will not abet the Government’s effort to stretch the concept of a racketeering enterprise beyond all recognition in order to bring various otherwise disinterested parties within its scope, even for the worthwhile purpose of combating the influence of organized crime on the Waterfront. The Court therefore holds that the Amended Complaint fails to allege a cognizable association-in-fact enterprise. 91
C. The Predicate Acts
a. Mail and Wire Fraud
A substantial number of the predicate acts alleged in the Amended Complaint are asserted to be violations of the federal mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343.
92
As the Second
“The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud----”
United States v. Altman,
As discussed above, and contrary to its position in opposition to the pending motions, the Government did not expressly incorporate by reference any of the factual allegations contained in the criminal indictments attached to the Amended Complaint. Even if it had, and even if this Court were to conclude that such a pleading practice is consistent with Rule 8(a)(2), the bare allegations in those criminal indictments are not sufficiently specific to satisfy the heightened pleading requirement that applies to allegations of mail or wire fraud under Federal Rule of Civil Procedure 9(b) (“Rule 9(b)”). Rule 9(b) states that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity,” and applies to allegations of mail or wire fraud alleged as predicate acts in a RICO complaint.
See First Capital,
The portions of the criminal indictments cited by the Government that identify specific telephone calls or mailings purportedly made in furtherance of the alleged racketeering schemes, which simply state the dates and the identities of the participants or addressees in various alleged telephone conversations or mailings without identifying what specific statements were made or explaining how those statements furthered the allegedly fraudulent scheme or artifice, fall far short of Rule 9(b)’s pleading standard.
See Bernstein,
Finally, the Government tacitly concedes that it has not — even by reference — alleged any use of the mails or wires with respect to several of the alleged mail or wire fraud schemes,
94
but asserts that “[evidence of mailings made in furtherance of the other fraud schemes alleged in the Complaint has been produced by the United States or is otherwise available to, or in the possession of, the Defendants.” Gov. Mem. at 99;
see id.
at 99-103 (purportedly identifying specific uses of the mails or wires made in connection with the fraud schemes identified in note 92,
supra
). The Government cites no authority in support of the proposition that a RICO plaintiff can satisfy Rule 9(b)’s pleading requirement by simply asserting that evidence of wrongdoing is “available to, or in the possession of, the Defendants,” and whatever scant authority may exist for that proposition does not aid the Government’s opposition to the ILA’s 12(b)(6) motion. In
New England Data Servs., Inc. v. Becher,
in a RICO mail and wire fraud case, in regards to the details of just when and where the mail or wires were used ... dismissal should not be automatic once the lower court determines that Rule 9(b) was not satisfied. In an appropriate case, where, for example the specific allegations of the plaintiff make it likely that the defendant used interstate mail or telecommunications facilities, and the specific information as to use is likely in the exclusive control of the defendant, the court should make a second determination as to whether the claim as presented warrants the allowance of discovery and if so, thereafter provide an opportunity to amend the defective complaint.
The Second Circuit has never addressed the holding in
Becher,
but some district courts in this circuit have relied on that case to soften the impact of Rule 9(b) in situations in which the information necessary to plead mail or wire fraud with the required specificity is in the exclusive possession of the defendants.
95
While this Court would be reluctant in any case to
The Court therefore finds that the Amended Complaint has failed to state a valid claim of mail or wire fraud with respect to any of the alleged predicate acts that allege those offenses. 97
b. Extortion
The United States Code defines “extortion” 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.” 18 U.S.C. § 1951(b)(2). The ILA argues that the Government fails to adequately plead two of the purported “extortionate” acts — the Daggett election scheme and the MILA PBM Contract scheme— because the Amended Complaint “is entirely lacking in facts showing the use of force, violence or fear” with respect to both of those schemes. ILA Mem. at 48. With respect to the MILA PBM scheme, the ILA points out that the only allegations even suggesting the use of threats of violence are those in which “the Complaint cursorily alleges that certain LCN members instructed Cernadas, Daggett and Coffey to support a company of their choosing for the contract,” but argues that those allegations are insufficient to establish extortion because “[t]he issue is
The government does not expressly controvert the ILA’s suggestion that the Amended Complaint does not allege the use or threat of violence with respect to the Daggett and MILA PBM schemes, but argues that the ILA’s position that the Amended Complaint has not adequately pleaded extortion with respect to those schemes
directly contradicts the ruling in United States v. Gotti,459 F.3d 296 (2d Cir. 2006), which upheld the convictions of the defendants in this case ... for violating RICO and conspiring to violate RICO based on the very acts of extortion pleaded in the Complaint in this action. Defendants’ arguments also fail to take into consideration the ruling of this Court in Coffey which denied motions by Defendants Harold Daggett and Arthur Coffey to dismiss the extortion conspiracy count in that case which was predicated on the very acts of extortion that are pleaded in this case.
Gov. Mem. at 104-05.
98
The Government also notes that it “[would] not be required to prove that the extortion schemes identified in the Complaint involved the making of a direct threat by any of the racketeering Defendants or their co-conspirators,” because “ ‘[w]here a union has a long history of corruption, fear can be invoked in subtle and indirect ways.’ ”
Id.
at 105 (quoting ILA Local Civil RICO case,
The Government’s reliance on this Court’s ruling in
Coffey
is misplaced. In that case, the issue presented was not whether the Indictment adequately alleged the use or threat of force in the commission of the alleged extortion, but rather whether the “right to pursue lawful business” constituted a property interest that Daggett and Coffey could “obtain” from the victims of the alleged extortion scheme. Indeed, in its opinion in
Coffey,
this Court quoted the Indictment in that case, which alleged that “Daggett and Coffey conspired to use ‘actual and threatened force, violence and fear’ to usurp business opportunities for the Genovese family ... that otherwise would have been acquired by third parties who would be free from the influence of the Genovese family.”
United States v. Coffey,
The Amended Complaint fails to state a claim of extortion with respect to the Daggett election scheme or the MILA PBM contract rigging scheme. In order to state a claim for extortion in violation of the Hobbs Act, the Government must allege that the defendants “(1) induced [the victim], with [the victim’s] consent, to part with property, (2) through the wrongful use of actual or threatened force, violence or fear (including fear of economic loss), (3) in such a way as to adversely effect interstate commerce.”
McLaughlin v. Anderson,
III. Leave to Replead
Federal Rule of Civil Procedure 15(a) provides that “leave [to amend a pleading] shall be freely given when justice so requires.” The Supreme Court has held that only “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of the amendment will serve to prevent an amendment prior to trial.”
Fo-man v. Davis,
CONCLUSION
For the reasons stated above, the ILA’s motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 8(a) is hereby GRANTED. All other pending motions, including the other defendants’ motions to dismiss the Amended Complaint and the ILA’s motion to strike certain portions of the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f), are hereby DENIED as moot. The Government may file a Second Amended Complaint within 60 days of the date of this Order.
SO ORDERED.
Notes
. The moving defendants are the International Longshoremen’s Association, AFL-CIO ("ILA”); Management-ILA Managed Health Care Trust Fund and its Board of Trustees; Metropolitan Marine Maintenance Contractors Association; the METRO-ILA Fringe Benefit Fund and its Board of Trustees, the METRO-ILA Pension Fund and its Board of Trustees, and the METRO-ILA Individual Account Retirement Fund and its Board of Trustees (collectively, "METRO-ILA Funds”); John Bowers, Sr.; Robert Gleason; Gerald Owens; Harold Daggett; Anthony Ciccone; James Cashin; Richard Hughes; Horace T. Alston, Chauncey J. Baker, John D. Baker, John Bowers, Jr., Timothy Brown, James A. Campbell, Ronald Capri, Charles Chillemi, Raymond Desgagnes, Michael Dickens, Stephen Knott, John H. Mackey, Louis Pernice, Raymond Sierra, Harrison Tyler, and Reuben Wheatley (collectively, "Sixteen Nominal ILA Vice President Defendants”); Arthur Coffey; and James T. McCleland, Jr., James H. Pay-lor, Jr., Edward L. Brown, Sr., William R. McNamara, Perry C. Harvey, Kenneth Riley, and Clyde Fitzgerald (collectively, "MILA Trustees”).
. In addition to moving to dismiss the Amended Complaint pursuant to Rule 12(b)(6), defendant Gleason also moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) ("Rule 56”). However, Mr. Gleason withdrew his motion for summary judgment at oral argument, and the Court therefore need not address it.
See
Transcript of Oral Argument in
United States
. The Amended Complaint defines the "Waterfront” as "the Port of New York and New Jersey and all businesses and unions involved in commerce in the Port, whether located on Port property or not, including but not limited to container repair and storage businesses, chassis repair and storage businesses, trucking businesses, trucking dispatching businesses, shipping lines and terminals, the International Longshoreman’s [sic ] Association, AFL-CIO ... and all ILA locals and other ILA subordinate labor associations,” Am. Compl. ¶ 1, and defines the "Port of Miami” as the "businesses and unions involved in commerce in the Port, whether located on port property or not, including but not limited to container repair and storage businesses, chassis repair and storage businesses, trucking businesses, trucking dispatching businesses, shipping lines and terminals, the ILA and all ILA subordinate labor organizations.” Id. ¶ 3. The Amended Complaint does not define the Waterfront to include the Port of Miami; however, since the Amended Complaint alleges a single RICO conspiracy to exercise control and domination over the Waterfront and the Port of Miami, the Court shall hereinafter use the term "Waterfront" to include both the Waterfront as defined in the Amended Complaint as well as the Port of Miami, as defined.
. Unless expressly stated otherwise, all of the statements of fact recounted herein are drawn, often verbatim, from the Amended
. Rule 19 provides that "[a] person who is subject to service of process and whose join-der will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.” The Government does not cite a specific source of authority for naming the multitude of parties not alleged to have violated RICO as nominal defendants in this action, leaving the Court to infer Rule 19 as the only plausible source of authority for that practice. The Court briefly inquired at oral argument as to whether the nominal defendants in this action are properly named under Rule 19, but no nominal defendant has objected on the ground that its being named as a nominal defendant in this action does not fall within the proper scope of Rule 19's application, so the Court need not pursue that question further. See Tr. at 9-10.
. The number of workers that the ILA represents is not alleged in the Amended Complaint, but is stated in a 2004 ILA annual report form to the Department of Labor that is attached as Exhibit B to the ILA’s memorandum of law in support of its motion to dismiss. As discussed in Discussion Part 1(A), infra, the Court finds that this document was necessarily relied on by the Government in the Amended Complaint and that the Court can therefore consider its contents while resolving this 12(b)(6) motion.
. As discussed below, see infra Discussion Part 1(A), Paragraph 96 of the Amended Complaint incorrectly states that the replacement for any vacancy during a non-Convention year must be drawn from the remaining Executive Council members. Because the ILA Constitution was relied upon by the Government in drafting the Amended Complaint, the Court may notice and correct that error in resolving this motion.
. As discussed below, see infra Discussion Part 1(A), the ILA maintains that the Government’s allegation that the Executive Council retains the ultimate decision-making authority with respect to disciplinary measures is inaccurate, arguing that any decision by the Executive Council is appealable to the ILA’s Appellate Officer for final resolution. For the reasons stated below, the Court concludes that the evidentiary authority submitted by the ILA in support of that factual assertion cannot be considered for purposes of this 12(b)(6) motion, and that the Court must therefore assume the truth of the allegations regarding the Executive Council's authority contained in the Amended Complaint.
.The Amended Complaint does not allege the annual salaries for the 24 ILA Vice-Presidents, but the ILA's 2004 LM-2 report indicates that most of the Vice-Presidents earned an annual salary of $119,364, with a few earning salaries somewhat higher than that but less than $200,000 in every case. See ILA Ex. B, Schedule 9 (relied upon by the Government in drafting the Amended Complaint).
. The Amended Complaint alleges that each of the METRO-ILA Funds are employee funds within the meaning of the applicable section of the Employee Retirement Income Security Act ("ERISA”). Id. ¶¶ 35-37.
. The ILA Vice-President nominal defendants are Horace T. Alston, Jorge L. Aponto Figueroa, Chauncey J. Baker, John D. Baker, John Bowers, Jr., Edward L. Brown, Sr., Timothy Brown, James A. Campbell, Ronald Capri, Charles Chillemi, Raymond Desgagnes, Michael Dickens, Clyde Fitzgerald, Perry C. Harvey, Stephen Knott, John H. Mackey, James T. McCleland, Jr., William R. McNamara, James H. Paylor, Jr., Louis Pernice, Kenneth Riley, Raymond Sierra, Harrison Tyler, and Reuben Wheatley. Id. ¶ 26(a)-(x).
.At oral argument on the pending motions, counsel for the ILA informed the Court that Mr. Bowers had stepped down from the Presidency at the ILA’s Convention in July 2007. See Tr. at 7. The Government did not dispute that assertion, but added that Mr. Bowers continues to hold office as the President Emeritus of the ILA. See id. at 93-94. For purposes of the pending motions, however, the Court shall assume the truth of the allegations in the Amended Complaint.
. At oral argument, AUSA Hayes asserted that Mr. Daggett is now the Executive Vice-President of the ILA, “one heartbeat away from being the President....” Tr. at 111. Although none of the defendants disputed Mr. Hayes’s assertion, the Court must assume the truth of the factual allegations stated in the Amended Complaint for purposes of this motion; the Government may not constructively amend those allegations at oral argument.
. At oral argument, counsel for the ILA asserted the Mr. Coffey no longer holds any elected position in the ILA because he was not reelected to his local posts or to his position as a Vice-President on the ILA Executive Council at the most recent ILA convention. Tr. at 9. Although the Government did not dispute that assertion, the Court will assume the truth of the factual allegations in the Amended Complaint for purposes of resolving the present motions.
. 18 U.S.C. § 1962(c) provides that ”[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”
. 18 U.S.C. § 1962(d) provides that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.”
. 18 U.S.C. § 1962(b) provides that "[i]t shall be unlawful for any person through a pattern of 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 which affect, interstate or foreign commerce.”
. The factual allegations summarized in this section are stated in paragraphs 86-114 of the Amended Complaint.
.The Government alleges that the Genovese family’s plan to place Daggett on the ILA Executive Council required an "accommodation” from the Gambino family, because outgoing General Organizer Frank Lonardo was a Gambino family associate and Gambino family captain Anthony Ciccone wished to replace him with another Gambino associate. Ciccone and Gambino family soldier Primo Cassarino reached an agreement with the Ge-novese family pursuant to which Daggett would be elected to the ILA Executive Council in exchange for Gambino family associate Louis Pernice's being elevated to a position on the Atlantic -Coast District’s Executive Council. The Government alleges that Ge-nóvese family captain Alan Longo and defendant Jerome Brancato, a Gambino family soldier, were also involved in negotiating the accommodation. Am. Compl. ¶¶ 104-105.
. The Amended Complaint notes that the communication between Scollo and Ciccone regarding ILA matters was in violation of the consent decrees that both had signed in the Local Civil RICO Case. Id. ¶¶ 108-109; see infra Background Part 11(E).
. The factual allegations summarized in this section are alleged in Paragraphs 121-150 of the Amended Complaint.
. “[I]e., the right to provide the same type of medicine prescribed by a doctor to a member but a different brand.” Id. ¶ 146.
. The factual allegations summarized in this section are alleged in Paragraphs 151-161 of the Amended Complaint.
.The Amended Complaint alleges that Cash-in personally addressed the MILA Board in support of Compsych's bid, but does not clearly state whether Cashin appeared at the January 29, 1999, meeting or at some subsequent meeting. See Am. Compl. ¶ 159.
. The factual allegations summarized in this section are alleged in Paragraphs 164-173 of the Amended Complaint.
. The Government alleges that Andrew Gi-gante, who is the son of deceased Genovese family boss Vincent "Chin” Gigante and is identified in the Amended Complaint as an unnamed co-conspirator and a Genovese family associate, was present at the Local 1804-1 meeting in Newark, but does not allege that Gigante attended the meeting between Taran-gelo and Daggett regarding the investment advisor scheme. Am. Compl. ¶¶ 40(e), 170.
. The factual allegations summarized in this section are alleged in Paragraphs 174-178 of the Amended Complaint.
. The factual allegations summarized in this section are alleged in Paragraphs 179-182 of the Amended Complaint.
.Unlike the alleged rigging of the MILA health care benefits contract, the Amended Complaint does not allege that Cashin personally played an active role in pursuing the award of the METRO-ILA Welfare Fund mental health care benefits contract to Compsych, but only that Daggett favored Compsych because he knew of Cashin's relationship with that company.
. The factual allegations summarized in this section are alleged in Paragraphs 183-186 of the Amended Complaint.
. The factual allegations summarized in this section are alleged in Paragraphs 187-201 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 202-214 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 215-221 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 222-33 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 234-236 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 237-245 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 246-248 of the Amended Complaint.
. See infra Background Part 11(A).
. The factual allegations summarized in this section are alleged in Paragraphs 249-251 of the Amended Complaint.
.See infra Background Part 11(A).
. See Am. Compl. ¶¶ 86-114; Gotti Ind. ¶¶ 26-32.
. See Am. Compl. ¶¶ 121-150; Gotti Ind. ¶¶ 33-40.
. See Am. Compl. ¶¶ 187-201; Gotti Ind. ¶¶ 41-47.
. See Am. Compl. ¶¶ 202-214; Gotti Ind. ¶¶ 48-52.
. See Am. Compl. ¶¶ 215-221; Gotti Ind. ¶¶ 53-55.
. See Am. Compl. ¶¶ 222-233; Gotti Ind. ¶¶ 56-58.
. See Am. Compl. ¶¶ 234-236; Gotti Ind. ¶¶ 59-61.
. See Am. Compl. ¶¶ 237-245; Gotti Ind. ¶¶ 66-69. The Gotti Indictment refers to Thomas Ragucci as "John Doe No. 1,” but the verdict sheet in the Gotti trial, attached to the Amended Complaint as Exhibit 7 (“Gotti Verdict Sheet”), makes clear that John Doe No. 1 is Thomas Ragucci. See Gotti Verdict Sheet at 9.
. See Am. Compl. ¶¶ 246-248; Gotti Ind. ¶ 70. The Gotti Indictment refers to Leonardo Zinna as "John Doe No. 2,” but the Gotti Verdict Sheet makes clear that John Doe No. 2 is Leonardo Zinna. See Gotti Verdict Sheet at 10.
. See Am. Compl. ¶¶ 249-251; Gotti Ind. ¶¶ 71-74. The Gotti Indictment refers to Nicola Marinelli as "John Doe No. 3,” but the Gotti Verdict Sheet makes clear that John Doe No. 3 is Nicola Marinelli. See Gotti Verdict Sheet at 10.
. None of the Bellomo defendants are named as defendants in this action, but all of them are identified as uncharged co-conspirators. See Am. Compl. 1140.
. The Bellomo Indictment does not specifically identify the vaguely-worded charges of Racketeering Act 3 as the METRO-ILA investment advisor scheme, but the Government's memorandum of law in opposition to the defendants' motions to dismiss this action indicates that Racketeering Act 3 in the Bellomo Indictment is the same scheme alleged as the METRO-ILA investment advisor scheme in the Amended Complaint. See Gov. Mem. at 97 (citing Bellomo Ind. 1! 22).
. Though including the ILA and its affiliated entities and agents, the "Enterprise” alleged in the Bellomo Complaint is still substantially narrower in scope than the Waterfront Enterprise alleged in the Amended Complaint in this action. The Bellomo Enterprise does not include any members of the Gambino family, METRO, or any businesses operating on the New York/New Jersey Waterfront or the Port of Miami. Moreover, because the defendants in the Bellomo civil action quickly entered into consent decrees quickly, and did not file a 12(b)(6) motion in that action, this Court was never called upon to evaluate the sufficiency of the Bellomo Complaint’s pleading of the relevant enterprise.
. The Bellomo Complaint contains two paragraphs numbered 6. The quoted passage is from the first one.
. The defendants in the ILA Local Civil RICO Case were TLA Local 1804-1 and the following members and former members of its Executive Board: Joseph C.F. Kenny (President), Harold Daggett (Secretary-Treasurer), Harry Cashin (Vice-President), Ronald Capri (Recording Secretary), Thomas Buzzan-ca (former President), James J. Cashin (former Secretary-Treasurer), and George Barone (former Business Agent); ILA Local 1588 and the following members and former members of its Executive Board: Blase Terraciano (President), George Lachnicht (Vice-President), Dominick Sanzo (Secretary-Treasurer and Business Agent), and Donald J. Carson (former Secretary-Treasurer); ILA Local 1814 and the following members and former members of its Executive Board: Frank Lo-nardo (President), Louis Pemice (Secretary-Treasurer), Anthony Pimpinella (Executive Vice-President), Alfred Small (Vice-President), Joseph Colozza (Vice-President), Carlos Mora (Vice-President), Joseph Randazzo (Vice-President), Leroy Gwynn (Executive Board Member), Gregory Lagaña (Delegate), Santo Calabrese (Executive Board Member), Ralph Perello (Executive Board Member), Richard Pierce (Executive Board Member), Anthony Ciccone (Administrator), Anthony • Scotto (former President), and Anthony Anas-tasio (former Executive Vice-President); ILA Local 1809 and the following members of its Executive Board: John Bowers (President), Robert Gleason (Secretary-Treasurer), Thomas Ryan (Vice-President), and John Potter (Vice-President); ILA Local 824 and the following members or former members of its Executive Board: John Bowers (President), George Bradley (Secretary-Treasurer), and Thomas Ryan (Vice-President); ILA Local 1909 and the following members of its Executive Board: John Bowers (President), Thomas Ryan (Vice-President), and John Potter (Secretary-Treasurer); the following members of the Genovese Organized Crime Family, all named both individually and as class representatives of the Genovese family: Anthony Salerno, Venero Mangano, Tino Fiumara, John Barbato, Douglas Rago, James Cashin, George Barone, Thomas Buzzanca, Vincent Colucci, Donald Carson, Anthony Gallagher, Michael Coppola, Harold Daggett, Harry Cashin, Ronald Capri, and George Lachnicht; the following members of the Gambino Organized Crime Family, all named both individually and as class representatives of the Gambi-no family: John Gotti, Anthony Anastasio, Anthony Pimpinella, Joseph Colozza, Anthony Scotto, Anthony Ciccone, Frank Scotto, Frank Lonardo, and Gregory Lagaña; the following members of the Westies Organized Crime Group, both individually and as class representatives of the Westies: James Coonan, James McElroy, Kevin Kelly, John Bowers, John Potter, and Thomas Ryan; and the following Waterfront businesses and organizations, both individually and as class representatives of employers in industries affecting Waterfront commerce: Nodar Pump Repair, Inc., Doreen Supply Company, Inc., the Metropolitan Marine Contractors’ Association, and the New York Shipping Association. See Amended Complaint in ILA Local Civil RICO Case ("ILA Local Civil RICO Complaint”), attached to Amended Complaint as Exhibit 8 (emphasis added to names of parties identified as defendants or uncharged coconspira-tors in this case).
. See Declaration of Stephanie J. Goldstein, dated May 19, 2006 (docket no. 95). Exhibits to the Goldstein Declaration shall hereinafter be referred to as "ILA Exhibits."
. See Affidavit of Donato Caruso, dated May 15, 2006 (docket no. 93). Exhibits to the Caruso Affidavit shall hereinafter be referred to as "MILA Exhibits.”
. See Declaration of Francis J. Murray, dated May 18, 2006 (docket no. 91). Exhibits to the Murray Declaration shall hereinafter be referred to as "Gleason Exhibits.”
. See Affidavit of Lee Renzin in Support of Defendant John Bowers's Motion to Dismiss the Amended Complaint (docket no. 99). The exhibit to the Renzin Affidavit shall hereinafter be referred to as "Bowers Exhibit 1."
. Federal Rule of Evidence 201 states that judicially noticeable facts are those which are "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
. The Daily News article quotes assistant police chief Kevin McGowan's statement describing Ciccone's sentencing as "the end of an era. He's the last capo on the waterfront.” ILA Mem. at 2, 51 (citing Goldstein Decl. Ex. A).
. Article VIII, Section 7 of the ILA Constitution states that the Executive Council shall chose “from among their numbers” a replacement President if the sitting president leaves office for any reason in a non-convention year; while the Executive Council also has the authority to select replacements for other Executive Council positions in such circumstances, there is no language requiring it to select the replacement from among current Executive Council members.
. The portions of the Amended Complaint alleging mail and wire fraud are governed by the heightened pleading requirement of Federal Rule of Civil Procedure 9(b) ("Rule 9(b)”).
See Moore v. PaineWebber, Inc.,
. Exhibits to Amended Complaint
1. Superseding Indictment (S2) in United States v. Coffey, 04-CR-651.
2. Complaint in United States v. Coffey, 04-CR-651.
3. Superseding Indictment (S2) in United States v. Bellomo, 02-CR-140.
4. Complaint in United States v. Bellomo, 03-CV-1683.
5. Consent Decree in United States v. Bello-mo, 03-CV-1683.
6. Indictment in United Stales v. Gotti, 02-CR-606.
7. Verdict sheet in United States v. Gotti, 02-CR-606.
8. Amended Complaint in United States v. Local 1804-1, Int'l Longshoremen's Assoc., 90-CV-963.
9. Consent decree of Local 1804-1 and its executive officers in United States v. Local 1804 —1, Int’l Longshoremen’s Assoc., 90-CV-963.
10. Consent decree concerning ILA Local 1814 in United States v. Local 1804-1, Int’l Longshoremen's Assoc., 90-CV-963.
11. Consent decree concerning ILA Locals 824, 1809 & 1909 in United States v. Local 1804 —1, Int’l Longshoremen’s Assoc., 90-CV-963.
12. Opinion & Order of Judge John Martin in United States v. Local 1804-1, Int’l Longshoremen’s Assoc., 90-CV-963.
13. Consent decree of Albert Cernadas in this action.
. As an illustration of the Amended Complaint’s failure to expressly incorporate by reference any of the provisions of the attached exhibits, it is useful to compare that document with the Government’s complaint in the ILA Local Civil RICO Case, which attached as an exhibit a copy of the indictment and judgment of conviction in United States v. Barone, 78-CR-185 (S.D.Fl.). Unlike the Amended Complaint, the ILA Local Civil RICO Complaint expressly incorporated certain identified portions of the Barone indictment into the Government’s civil claim. See ILA Local Civil RICO Complaint ¶ 75 ("Copies of the indictment and the judgements of conviction in [Barone ] are attached to this Complaint as Exhibit B. Plaintiff incorporates by reference Counts 1 through 7, 11 through 13, 19, 25, 27, 31, 43 and 48 of that indictment and repeats and realleges those counts as if fully set forth herein.”).
. While the Government's memorandum of law and statements at oral argument give some impression that the Government may intend to incorporate the exhibits in their entirety, doing so would render the Amended Complaint utterly incoherent. For example, as noted above, the
Gotti, Bellomo,
and
Coffey
indictments allege that the Gambino or Ge-novese families, not the Waterfront Enterprise, are the relevant enterprise for RICO purposes. The
Coffey
Complaint also clearly portrays defendant John Bowers, Sr., as a victim of, rather than a participant in, LCN extortion. For example, in a section headed "Extortion of the President of the ILA,” the
Coffey
Complaint depicts Bowers as a victim of extortion with respect to the role he allegedly played in supporting Daggett for a position on the ILA Executive Council.
See Coffey
Complaint ¶¶ 16-20. The ILA argues, on the basis of this and other inconsistencies, that the Government is judicially estopped from making many of the allegations in the Amended Complaint that are inconsistent with its positions in the prior cases. The Government responds that, first, the allegations in the Amended Complaint are not inconsistent with the charges in the prior cases, but simply broaden the scope to reveal the full extent of organized crime’s influence over the Waterfront, and second, that the Government cannot be judicially estopped by its allegations in the
Coffey
Complaint because the Government did not prevail in that action — both defendants who went to trial were acquitted. The Government is clearly correct as to the second point, and the Court finds that it is not judicially estopped from alleging that Bowers was a co-conspirator, rather than (or perhaps in addition to) a victim of extortion. The point here is a different one: if all of the
. See Tr. at 84 (“When I read your complaint, I said right off the bat, it seems to me this is a clear violation of Rule 8.”).
. None of the defendants expressly moved to dismiss the Amended Complaint for failure to comply with Rule 8(a)(2)'s mandate to provide a "short and plain” statement of entitlement to relief, but the ILA argues in its reply memorandum that "[s]imply attaching documents ... to the Complaint without identification of which allegations in these indictments apply to which person and for what reason does not provide the type of notice required even under Rule 8 of the Federal Rules of Civil Procedure.” ILA Reply Mem. at 34. Ordinarily, a party may not raise an argument in a reply brief that was not raised in the party’s moving brief.
See, e.g., Coose-mans Specialties, Inc. v. Gargiulo,
.Indeed, the practice of simply incorporating factual allegations
en masse
into a claim for relief against numerous defendants has been held to violate Rule 8(a)(2) even where the factual allegations at issue were incorporated from an earlier portion of the complaint rather than from an external document.
See, e.g., Discon Inc. v. NYNEX Corp.,
No. 90-CV-546A,
. Pleading essential elements of a cause of action by purported incorporation by reference of hundreds of pages of prior pleadings in other criminal and civil cases is particularly inappropriate in a RICO case. "RICO is a specialized statute requiring a particular configuration of elements. These elements cannot be incorporated loosely from a previous narration, but must be tightly particularized and connected in a complaint.”
Lesavoy v. Lane,
. Even if the Court were to determine that all of the prior pleadings attached as exhibits to the Amended Complaint constitute "written instruments” within the meaning of Rule 10(c), it would have no hesitation in concluding that the resulting pleading, in excess of 500 pages and packed with redundant and to some degree mutually inconsistent factual allegations, would itself violate Rule 8(a)(2).
. Should the Government choose to exercise its option to re-plead the Amended Complaint, it should bear in mind that "the Court cannot serve as a repository for the parties’ evidence.”
Hunter v. Yates,
No. CV F 07 151 AWI SMS P,
. ILA Mem. at 32. (“[T]he Complaint contains no factual allegations that even remotely suggest how or when the members of the Waterfront Enterprise, identifiable or not, joined together as a group.... The Waterfront Enterprise includes countless people, business and unions ... about whom no allegations in the Complaint have been, or ever could be, made, and whom [sic ] are not even alleged to have any relationship with, or to, one another, to any of the Defendants, or to any of the conduct charged in the Complaint.”).
. See
Seville,
.
World. Wrestling Entertainment
characterizes the Second Circuit's
en banc
opinion in
United States v. Indelicato,
. Although the
World Wrestling Entertainment
opinion attached substantial significance to the fact that
Mazzei
expressly rejected the Eighth Circuit’s holding in
Bledsoe,
this Court
. The distinction relied upon by
Seville
and by the Government in this case between elements that which must be pleaded in order to state a valid claim and that which must ultimately be proved strikes this Court as a false, or at best a misleading, one, because what is pleaded foretells what must be proved and informs the other party of what he must prepare to contest. While it is true that under the simplified pleading standard imposed by Rule 8(a), a plaintiff need not recite in mechanical detail every element of a cause of action in order to state a valid claim,
see Conley,
. For example, in
United States
v.
Bagaric,
. Another district court case,
JSC Foreign Economic Ass'n Technostroyexport v. Weiss,
No. 06-CV-6095 (JGK),
.
World Wrestling Entertainment
also held that
First Capital’s
statement that a RICO plaintiff must "detail [a] course of fraudulent or illegal conduct separate and distinct from the alleged predicate racketeering acts themselves” was inconsistent with
Mazzei
and therefore an incorrect statement of the law.
. The heading to the section of the ILA’s memorandum from which the above language was taken, “The Alleged Enterprise is not a Decipherable, Let Alone a Functioning, Unit,” amply demonstrates this point. ILA Mem. at 30.
.The shortcomings of the Amended Complaint’s allegations regarding the Waterfront Enterprise may be further illustrated by reference to the detailed allegations contained in the Government's pleadings in Gotti and Bel-lomo. The Gotti Indictment contains eight paragraphs occupying three full pages, describing in detail the Gambino family enterprise, including its internal organizational structure (i.e., the boss, underboss, consigli-ere, captains, and soldiers, and the operation of various crews) and its place within the larger structure of La Cosa Nostra. See Gotti Ind. ¶¶ 1-8. The Gotti Indictment further alleges a specific common purpose to the Gam-bino family: “The principal purpose of the enterprise was to generate money for its members and associates through crime, including extortion, wirefraud, larceny, loansharking, illegal gambling and witness tampering. Among the methods and means by which the members and associates of the enterprise furthered its criminal activities were threatened and actual use of physical violence, and the inducement of fear of financial and economic injury.” Id. ¶ 9. The Bellomo Indictment contains similarly detailed allegations concerning the organization, structure, and purpose of the Genovese family. See Bellomo Ind. ¶¶ 1-8 (organization and structure), 9 (common purpose).
. See Tr. at 98, 100, 106-07.
. THE COURT: When in Paragraph 68 you say, the defendants' common purpose, does that include the nominal defendants as well?
MR. HAYES: It does not.
THE COURT: Or just the defendants?
MR. HAYES: Your Honor, the United States tried to take great pains ... in distinguishing between the ILA and the Metro Funds and MILA and people such as Mr. Daggett and Mr. Bowers and Mr. Gleason....
THE COURT: So when in paragraph 68 it provides, the defendants’ common purpose,
MR. HAYES: That is correct, Your Honor.
Tr. at 101-02.
. The Court recognizes that the definition of the Waterfront Enterprise in this action, while not precisely identical to the enterprise alleged in the ILA Local Civil RICO Case, is nevertheless quite similar to the enterprise that was held by Judge Sand to be sufficiently pleaded and proved in that case. The district court’s rulings in the 1990 case are not binding on this Court, which bears a responsibility to independently assess the sufficiency of the pleadings in this action. Moreover, as Judge Sand noted in his written opinion in the ILA Local Civil RICO Case, the sufficiency of the 1990 pleading with respect to the allegations pertaining to the Waterfront Enterprise was never challenged in that case.
See Local 1804-1,
. Specifically, the following alleged predicate acts involve allegations of mail or wire fraud: (1) "Rigged 'Election' of Harold J. Daggett and Others to High-Ranking ILA Offices” (Am. Compl.W 86-114); (2) "Scheme to Rig the MILA PBM Contract” (Am. Compl. ¶¶ 121-150); (3) "Scheme to Rig the MILA Mental Health Benefits Contract” (Am. Compl.Hf 151-161); (4) "Fund Investment Advisor Kickback Scheme” (Am. Compl. ¶¶ 164-173); (5) "Rigged PBM Contract [METRO-ILA Welfare Fund]” (Am. Compl. ¶¶ 174-178); (6) "Rigged Mental Health Care Benefits Contract [METRO-ILA Welfare Fund]” (Am. CompLM 179-182); (7) "Fraud on the Local 1922 and Southeast Florida Welfare Funds [rigging of mental health benefits contracts in favor of Compsych]” (Am. Compl.¶¶ 183-186); (8) "Control Over Local
. The ILA also argues that the mail and wire fraud allegations regarding the rigged award of service contracts to GPP/VIP or Compsych fail to state a claim of conspiracy to violate § 1962(b) because the acquisition of a service contract does not constitute "the acquisition or maintenance of a property right in or control of the enterprise,” which is required for liability under § 1962(b). ILA Mem. at 47 (citing
United States v. Jacobson,
. Specifically, the predicate acts involving mail or wire fraud with respect to which the Government concedes the Amended Complaint does not allege a use of the mails or wires are those identified as items (3), (5), and (7) in note 92 above. See Gov. Mem. at 99-103.
. In
Tammac Corp. v. Williams,
No. 92-CV-390S,
. Indeed, the Court notes that the Government spends approximately four pages of its opposition brief listing numerous mailings and wire transmissions that allegedly were made in furtherance of the predicate acts at issue, which would render any argument that it was unable to allege specific uses of the mails or wires with respect to those acts in the Amended Complaint rather implausible. See Gov. Mem. at 99-103.
. Some of the wire fraud schemes identified in the Amended Complaint — specifically, the schemes identified as items (1), (2), and (8) in note 92 above — are also alleged to involve extortion and conspiracy to extort. The discussion in this section applies only to the wire fraud aspects of those allegations, and not to the extortion and conspiracy aspects.
. The Government wisely refrains from arguing that the defendants are barred by res judicata from challenging the allegations of extortion in the Amended Complaint.