The opinion of the court was delivered by: Kennedy, District Judge.
Plaintiff, John H. Nix, has brought this action alleging that
former United States Representative Martin Hoke and Nix's former
neighbor, Bernice Ferencz*fn1, engaged in a conspiracy to
interfere with proceedings in a federal trial in Ohio. Nix has
brought RICO and tort claims against both defendants and Bivens
claims against Hoke. Before the court are defendants' motion to
strike the most recent amended complaint, Rep. Hoke's motion to
dismiss the original complaint for failure to state a claim,
Ferencz's motion to dismiss for lack of personal jurisdiction,
and Ferencz's motion to supplement her motion to dismiss.
Because Rep. Hoke and Ferencz have not yet answered any of the
filed complaints, the court can review only the facts as alleged
by Nix. In 1993, Nix became a friend and business partner of John
R. Master, who was then a retired physician and longtime resident
at 5800 Brookside Drive in Cleveland, Ohio.*fn2 In August 1993,
Nix moved into Master's home to assist Master with personal and
business affairs and to pursue the partnership's plans for
developing a nearby tract of land. Other Brookside Drive
residents opposed Nix's presence in the neighborhood and
development plans, however, and met in December 1993 to discuss
"how to get rid of John Nix." While Ferencz was not present at
the meeting, she was aware of the meeting and was later apprised
of the discussions at the meeting.
According to Nix, Patrick J. O'Malley, a member of the
Cleveland city council, began a campaign of investigation and
surveillance in an attempt to collect incriminating evidence on
Nix. Specifically, O'Malley "caused" the Cleveland Police
Department to investigate Nix. Later in February 1994, O'Malley
and his friend Robert Roche wiretapped Nix's telephone and
recorded Nix's personal and business conversations on tape. Among
those aware that the wiretapping was taking place were Ferencz
and Rep. Hoke. Hoke, then the U.S. representative for the part of
Cleveland containing Brookside Drive, was a "close personal
friend" of O'Malley. Nix further alleges that in late March 1994,
Nix discovered the wiretapping and obtained copies of some of the
In April 1994, Nix filed a criminal complaint with the Federal
Bureau of Investigation and a civil complaint in the United
States District Court for the Northern District of Ohio. See
Master v. Sword, Civ. No. 94-0849 (N.D.Ohio Apr. 22, 1994). The
FBI assigned Nix's criminal complaint to Special Agent Richard
Hoke, a relative of Rep. Hoke. During Richard Hoke's
investigation, Rep. Hoke contacted him to assert that O'Malley
had acted in his capacity as a city council member in recording
Nix's telephone conversations because
"Nix was causing problems in the neighborhood." A few days later,
Richard Hoke informed Nix that he had determined that someone had
intercepted certain cordless telephone communications of Nix, but
that no violation of federal law had occurred. According to Nix,
Rep. Hoke also informed O'Malley, Ferencz, and the other
Brookside Drive residents who were named as defendants in Sword
that they "would either not have to testify regarding the
wiretapping, or that if they were compelled to testify about the
matter, that no harm would befall them if they denied knowledge
of the wiretapping." Id. at ¶ 69.
In June 1994, Master filed a further civil action in the
Cuyahoga County Court of Common Pleas. See Master v. Chalko,
No. 272373 (June 15, 1994).
Nix contends that in March 1995, several Brookside Drive
residents, including Ferencz, were subpoenaed to give depositions
in the two cases. Rep. Hoke assisted several of the residents in
their efforts to avoid testifying about the wiretapping.
Specifically, at Ferencz's request, Rep. Hoke's office located an
attorney to represent Ferencz and asked him to seek to quash the
subpoena and file a protective order on her behalf. In March
1995, Rep. Hoke himself also filed a motion for a protective
order with the district court in Sword; the court shortly
thereafter stayed all discovery in the case until December 1996.
On April 4, 1995, Rep. Hoke and O'Malley arranged for another
Brookside Drive resident, Michael Dobronos, to travel to Hawaii
on the morning of his scheduled deposition.
According to Nix, Rep. Hoke also advised Ferencz and other
witnesses to testify falsely at the Chalko trial in November
1995. At the Chalko trial, several of the residents, including
Ferencz, testified and denied any knowledge of the wiretapping.
An aide to Rep. Hoke was present at the trial during this
On December 14, 1998, Nix filed a complaint pro se alleging
that former Rep. Hoke, Ferencz, and various unnamed defendants
engaged in an illegal wiretapping conspiracy in an effort to
drive Nix out of his neighborhood and to thwart Nix's plans for
developing a nearby tract of land. Nix has subsequently filed two
amended complaints: one filed pro se on May 19, 1999 as
Appendix D to Nix's motion for leave to amend under the title
"Amended Complaint," and one filed by his counsel on June 8, 1999
under the title "First Amended Complaint." The June 8, 1999
complaint contains substantially the same factual allegations as
the May 19, 1999 complaint, but with a revised set of claims. The
claims in the June 8, 1999 complaint are: civil RICO claims
against Hoke and Ferencz (Count 1); Bivens First, Fourth,
Fifth, Sixth, and Seventh Amendment claims against Hoke in his
official capacity (Counts 2-6); and intentional tort claims
(Count 7); invasion of privacy claims (Count 8); and obstruction
and interference with legal remedies claims (Count 9) against
Hoke and Ferencz.
Before the court are Rep. Hoke's motion to strike the June 8,
1999 complaint, Rep. Hoke's motion to dismiss the original
complaint for failure to state a claim, Ferencz's motion to
dismiss for lack of personal jurisdiction, and Ferencz's motion
to supplement her motion to dismiss.
A. Dismissal for Lack of Personal Jurisdiction
Prior to an evidentiary hearing or discovery, a plaintiff may
defeat a motion to survive a motion to dismiss for lack of
personal jurisdiction "by making mere factual allegations to
establish a prima facie showing of jurisdiction." GTE New Media
Services Inc. v. Ameritech Corp., 21 F. Supp.2d 27, 36 (D.D.C.
1998). Such allegations may ...