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MARTIN-TRIGONA v. ACTON CORP.

December 13, 1984

ANTHONY R. MARTIN-TRIGONA, Plaintiff,
v.
ACTON CORPORATION, et al., Defendants



The opinion of the court was delivered by: GREEN

 This matter is before the Court on defendants Acton Corporation ("Acton"), Acton Communications of Massachusetts ("ACM"), Acton Foodservices Corporation ("AFC"), and Gadsby & Hannah's ("G & H") motion to "Dismiss the Complaint as to them and for Sanctions Against Plaintiff," plaintiff's opposition thereto, and supplemental briefing on the motion; the Federal Communications Commission's ("FCC" or the "Commission") motion to dismiss, and the entire record herein. For the reasons outlined below, the Court grants defendants' motions and dismisses this action as to all parties.

 I.

 Defendants Acton, ACM, AFC seek to dismiss this action because this Court lacks in personam jurisdiction over them. Defendants AFC and G & H assert that the action must be dismissed because the amended complaint adding them to the action was filed in violation of an order which permanently enjoined plaintiff from commencing an action without prior approval from the district court where the action is filed. Acton, ACM, AFC, and G & H request that this Court impose sanctions against plaintiff in the form of reasonable attorneys' fees and costs. Defendant FCC seeks to dismiss this matter as against it because the Court lacks subject matter jurisdiction over the FCC.

 This action was brought by pro se plaintiff Anthony Martin-Trigona on December 16, 1981. *fn1" In his sixteen-page complaint, plaintiff asserts an array of confusing and complex claims that all seem to center around a dispute between plaintiff and defendants over the license for the radio station, WDLM, in Waltham, Massachusetts. *fn2" Plaintiff contests the loss of the radio station through involuntary bankruptcy proceedings. He asserts claims arising under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), and the Hobbs Act, 18 U.S.C. § 1951. Plaintiff also asserts claims of obstruction of justice in contravention of 18 U.S.C. § 1503 and 18 U.S.C. § 1506, and claims violation of his civil rights pursuant to 42 U.S.C. § 1985(2).

 After the mandate from the D.C. Circuit was issued, plaintiff, on October 31, 1983, filed an amended complaint, adding AFC, G & H, and the Federal Deposit Insurance Corporation ("F.D.I.C.") *fn3" to this action. This amended complaint seems to allege that the additional defendants conducted a scheme to defraud plaintiff of certain assets, including the radio station, WDLM.

 On April 16, 1984, defendants Acton, ACM, AFC, and G & H filed a joint motion to dismiss. Plaintiff failed to respond to this motion in a timely fashion so on May 9, 1984, defendants submitted a memorandum suggesting that their motion to dismiss be granted. On May 18, 1984, plaintiff filed a "Notice of Temporary Inability to Respond to Motion to Dismiss" and "Motion for Extension of Time Pending Plaintiff's Release from Custody for Civil Contempt." In the Notice, plaintiff requested that the Court withhold decision on this matter until he is released from custody for civil contempt.

 The Court, in an order signed June 21, 1984, denied Mr. Martin-Trigona's request for an indefinite continuance and instructed him to respond to defendants' motion within 30 days from the date of the order. The Court also ordered that failure to submit a response to defendants' motion within that time period, "shall permit this Court to treat the motion as conceded pursuant to Rule 1-9(d) of the Local Rules of this Court."

 On July 17, 1984, plaintiff wrote a letter to Chambers, stating that he would be unable to comply with the Court's order. That letter was immediately returned to the plaintiff and he was informed that "any correspondence to the Court must be done through formal motion filed with the Clerk of the Court with proper service to counsel opposite." Letter from Chambers (July 20, 1984). No motion for an extension of time was received by this Court.

 On July 31, 1984, plaintiff filed a motion "For Leave to File Instanter." The Court granted plaintiff's motion and accepted his opposition to the motion to dismiss for filing. Replies and supplemental responses to defendants' motion have been filed by the parties.

 On October 23, 1984, this Court notified the parties that it would consider, sua sponte, the question of whether this case should be transferred to the District of Massachusetts pursuant to 28 U.S.C. § 1404(a). The Court ordered briefing on that issue to be submitted by November 15, 1984. It further ordered that the briefing period would not be extended. Defendants Acton, AFC, ACM, and G & H have submitted the requested briefing. The FCC has also submitted briefing. These defendants do not support a transfer of this action and contend that the action should be dismissed. Mr. Martin-Trigona has failed to respond to this request for briefing, but the Court is aware that he opposes a similar proposal to transfer that was suggested by this Court in Martin-Trigona v. Shiff, No. 82-425. Because the parties do not support a transfer of this action pursuant to 28 U.S.C. § 1404, the Court will not effect such a transfer.

 II.

 A. Necessity of Plaintiff's Presence for the Court to Act on the Dispositive Motions

 Although plaintiff has not filed, in this action, a petition for writ of habeas corpus ad testificandum so that he may argue the motions that are before this Court, he has filed similar petitions in other actions that have been before this Court. See Martin-Trigona v. Smith, No. 84-510; Martin-Trigona v. Smith, 600 F. Supp. 1202; Martin-Trigona v. Shiff, 600 F. Supp. 1184. Therefore, this Court should, in anticipation of any argument that may be brought on appeal, address plaintiff's right to a hearing before a court may act on any dispositive motions.

 Plaintiff is presently incarcerated at the Federal Correctional Institution, Danbury, Connecticut. He is being held there on civil contempt charges. He is to remain there until he answers questions put to him by the trustee of his personal bankruptcy estate concerning the extent of his assets.

 Plaintiff has argued in similar cases that he must be released from the facility and brought to this Court in order to argue numerous motions that are ripe for determination. He asserts that failure to permit him to argue these motions amounts to a deprivation of his constitutional rights. Plaintiff's argument is without merit. There is no requirement that the Court grant a party the opportunity to a hearing. In fact, the local rules state that "[a] party may in his motion or his opposition specifically request an oral argument, but the allowance of an oral hearing shall be within the sole discretion of the Court." ...


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