"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.
II. STANDARDS OF REVIEW
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 not be bare conclusory statements,
but must connect the defendant with the forum. Id.
B. Dismissal for Failure to State a Claim
On a motion to dismiss, the court must take the allegations in
the plaintiffs' pleading
as true and must construe them in a light most favorable to the
plaintiffs. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957); Sinclair v. Kleindienst, 711 F.2d 291, 293
(D.C.Cir. 1983). Dismissal is appropriate only when it appears
beyond doubt that plaintiff can prove no set of facts in support
of his claim which would entitle him to relief. Conley, 355
U.S. at 45-46, 78 S.Ct. 99.
A. Nix's Motion to Amend
Leave to amend under Rule 15(a) "shall be freely given when
justice so requires." Fed.R.Civ.P. 15(a). The notice pleading
framework of the Federal Rules does not require the pleading of
legal theories. Hanson v. Hoffmann, 628 F.2d 42, 53 (D.C.Cir.
1980). Thus, "[u]nless a defendant is prejudiced on the merits by
a change in legal theory, a plaintiff is not bound by the legal
theory on which he or she originally relied." Id.
The defendants concede that the May 19, 1999 complaint was
filed as of right, but argue that Nix has no "right willy-nilly
to withdraw one amended complaint filed as of right and replace
it with another." Def.'s Reply to Pl.'s Opp to Def.'s Mot. to
Strike Pl.'s "Second" Amended Complaint at 3. The defendants have
not alleged bad faith on Nix's part or suggested that they will
be prejudiced on the merits by Nix's change in legal theory.
Significantly, Nix has not sought to allege new facts requiring
additional discovery. See Alley v. Resolution Trust Corp.,
984 F.2d 1201, 1208 (D.C.Cir. 1993). Accordingly, the court will deny
the defendants' motion to strike and permit the filing of the
June 8, 1999 complaint.
B. Ferencz's 12(b)(2) Motion to Dismiss
Ferencz asserts that any contacts she may have had with the
District of Columbia were "exercises of a citizen's first
amendment right to petition the government for redress of
grievances." Def. Ferencz's Mot. Dismiss at 5-6. It is
uncontested that Ferencz's only contacts with the District of
Columbia were "a handful of telephone calls and letters to Rep.
Hoke's congressional office concerning matters before Congress."
Def. Ferencz's Mot. Dismiss at 5 (citing Compl. ¶ 96); Pl.'s Opp.
to Def. Ferencz's Mot. Dismiss at 5-7. Moreover, it is undisputed
that any such contacts by Ferencz were requests for the exercise
of "Defendant Hoke's powers as a public official in Washington,
D.C." Pl.'s Opp. at 7; Def. Ferencz's Reply at 4.
Although Ferencz mischaracterizes the subjects of the alleged
conversations as "matters before Congress,"*fn3 she correctly
states the rule of law that personal jurisdiction in the District
of Columbia may not be founded solely on contacts with the
federal government. See Naartex Consulting Corp. v. Watt,
722 F.2d 779, 786-87 (D.C.Cir. 1983); Mallinckrodt Medical, Inc. v.
Sonus Pharmaceuticals, 989 F. Supp. 265, 271 (D.D.C. 1998);
Environmental Research Int'l., Inc. v. Lockwood Greene
Engineers, Inc., 355 A.2d 808, 813 (D.C. 1976) (en banc).
Under the "government contacts" exception to the District's
long-arm statute, "a person or company does not subject itself to
the jurisdiction of the courts of the District of Columbia merely
by filing an application with a government agency, like the FDA,
or by seeking redress of grievances from the Executive Branch or
Congress." Mallinckrodt, 989 F. Supp. at 271. The source of the
exception lies in "the unique character of the District as the
seat of national government and in the correlative need for
unfettered access to federal departments and agencies
for the entire national citizenry." Environmental Research, 355
A.2d at 813. "To permit our local courts to assert personal
jurisdiction over nonresidents whose sole contact with the
District consists of dealing with a federal instrumentality not
only would pose a threat to free public participation in
government, but also would threaten to convert the District of
Columbia into a national judicial forum." Id. Insofar as any
contacts Ferencz may have had with the District of Columbia were
in the form of requests for the exercise of federal "powers" from
a federal instrumentality, the "government contacts" exception to
the District's long-arm statute operates to preclude this court's
exercise of personal jurisdiction over her.
Nix also contends that the RICO statute provides an independent
basis for personal jurisdiction over Ferencz. The court need not
reach this issue, however, because as explained below, Nix has
failed to state a RICO claim upon which relief against Rep. Hoke
and Ferencz can be granted. See Berg-Manufacturing & Sales Corp.
v. Ivy/Mar Co., 1996 WL 596512, at *1 (N.D.Ill. Oct. 15, 1996)
(dismissing RICO claim under 12(b)(6) before reaching questions
of personal jurisdiction and venue); Ogilvie v. Beale, 1994 WL
33972, at *3 (N.D.Ill. Feb. 4, 1994) (same); see also Mulhern v.
West Coast Video Enters., Inc., 1992 WL 141990, at *4 (N.D.Ill.
June 15, 1992) (applying Rule 12(b)(6) scrutiny to RICO claim
before evaluating Rule 12(b)(2) motion); Smith v. Mark Twain
Bancshares, 1986 U.S.Dist. LEXIS 21658, at *3 (D.Kan. Aug. 11,
1986) (same). Accordingly, Ferencz's motion to dismiss for lack
of personal jurisdiction will be granted.
C. Rep. Hoke's 12(b)(6) Motion to Dismiss and Ferencz's Motion
Although Rep. Hoke's motion to dismiss was addressed to the
original complaint, the court may consider it in reviewing the
amended complaint to the extent that defects remain. See, e.g.,
Clarry v. United States, 85 F.3d 1041, 1045 (2nd Cir. 1996)
(affirming district court's dismissal of both original complaint
and amended complaint on defendant's motion to dismiss);
Datastorm Technologies, Inc. v. Excalibur Communications, Inc.,
888 F. Supp. 112, 114 (N.D.Cal. 1995) (considering motion to
dismiss the original complaint as directed to the amended
complaint where the amendment merely added a party and did not
affect the defects upon which the motion was based); Fitzgerald
v. Arizona, 1997 WL 579193, at *3 (D.Ariz. July 9, 1997) ("the
Court may exercise its discretion to consider a motion to dismiss
the original complaint where the amended complaint fails to cure
the defects of the original complaint.").
Ferencz has also moved to supplement her motion to dismiss by
incorporating the substance of Rep. Hoke's Rule 12(b)(6) motion,
correctly noting that "many of the defects in the complaint
identified by Mr. Hoke . . . apply with equal force to Miss
Ferencz." Def. Ferencz's Mot. Supp. Mot. Dismiss at 2. Nix did
not oppose this motion. Accordingly, the court will permit
Ferencz to expand the grounds for her motion to dismiss under
Rule 12 by granting her motion to supplement. See MacNeil v.
Whittemore, 254 F.2d 820 (2nd Cir. 1958).
1. The Civil RICO Claim
The Racketeer-influenced and Corrupt Organizations Act ("RICO")
confers a private right of action on "any person injured in his
business or property by reason of a violation of section 1962. .
. ." 18 U.S.C. § 1964(c).
To recover under § 1964(c), a private plaintiff must show that
the proximate cause of his injury is the defendant's conduct.
Holmes v. Securities Investor Protection Corp., 503 U.S. 258,
268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). Proximate cause may
be found in the RICO context if the alleged violation of § 1962
is "`a substantial factor in the sequence of responsible
causation.'" Cox v. Adm'r
United States Steel & Carnegie, 17 F.3d 1386, 1399, modified
on reh'g, 30 F.3d 1347 (11th Cir. 1994), cert. denied,
513 U.S. 1110, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995) (quoting Hecht
v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2nd Cir.
Moreover, courts have consistently read § 1964(c) to require
that the plaintiff's injury be sustained to business or property.
See Doe v. Roe, 958 F.2d 763, 767 (7th Cir. 1992) ("The terms
`business or property' [in § 1964(c)] are . . . words of
limitation which preclude recovery for personal injuries and the
pecuniary losses incurred therefrom."); Oscar v. University
Students Co-op. Association, 965 F.2d 783 (9th Cir. 1992);
Genty v. Resolution Trust Corp., 937 F.2d 899, 918 (3d Cir.
1991); Rylewicz v. Beaton Services, Ltd., 888 F.2d 1175, 1180
(7th Cir. 1989).
Nix has identified as the factual predicates for his civil RICO
claim the following alleged acts by the defendants: (1) phone
calls to Richard Hoke to influence the FBI investigation into the
wiretapping of Nix; (2) a phone call from Arlene Hill, a witness
in Chalko and Sword; (3) the mailing of invitations to a
reelection campaign fundraiser; (4) phone calls between Ferencz
and Rep. Hoke "in furtherance of the aforementioned enterprise";
and (5) communications to retain the services of attorney Bagley
for the benefit of Ferencz "and in furtherance of their
enterprise." See Amended Compl. ¶ 139. Regarding the substance of
the phone call to Richard Hoke, Nix alleges only that Rep. Hoke
said that "O'Malley had intercepted and recorded Nix's telephone
conversations because Nix was causing problems in the
neighborhood, and that Rep. Hoke had reason to believe that
O'Malley was working in his capacity as a City of Cleveland
councilman in conjunction with the Cleveland Police Department in
investigating John Nix." Amended Compl. ¶ 56-57. Nix's only
contention regarding the substance of the phone call from Arlene
Hill is that "Hill . . . discussed with Rep. Hoke John Nix's
wiretapping litigation and her concern that she and other
Brookside Drive residents might be compelled to testify about the
wiretapping, and to reveal O'Malley's involvement therein."
Amended Compl. ¶ 73. Nix's explanation of how he was injured in
his "property or business" by these actions is that "[a]ll monies
derived from [Chalko] in which Defendant Ferencz was testifying
. . . would have belonged to plaintiff" and that "[t]he giving of
false testimony in that case . . . affected the outcome of the
case." Pl.'s Br. Opp. Mot. Dismiss at 14.
The factual allegations against the defendants, when viewed
apart from the bare legal conclusions that they were undertaken
"in furtherance of an enterprise" and "constituted a scheme or
artifice to defraud John Nix," are facially insufficient to
support a finding of any illegality, let alone "a pattern of
racketeering activity" or "collection of an unlawful debt" in
violation of § 1962. Neither has plaintiff offered an explanation
of how any of the defendants' actions were "substantial factors
in the sequence of responsible causation" of the outcome in
Chalko. Furthermore, the judgment sought by Nix in Chalko was
not, and is not, plaintiff's "property" within the meaning of §
1964(c). To allow a private RICO plaintiff to go forward on the
theory that a judgment sought in litigation is already his
"property" would "allow all factually injured plaintiffs to
recover" under the statute, a result the Supreme Court has
expressly rejected. See Holmes, 503 U.S at 266, 112 S.Ct. 1311.
Accordingly, Rep. Hoke's motion to dismiss the RICO claim will be
granted as to both defendants Hoke and Ferencz.
2. The Bivens Claims
Counts 2-6 of Nix's complaint are premised on the doctrine
promulgated in Bivens v. Six Unknown Federal Narcotic Agents,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). To succeed on
a Bivens cause of action, a plaintiff must show
that the defendant violated "clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). Moreover, where, as here, a
plaintiff in a Bivens claim alleges an unconstitutional motive,
"[t]he allegations of facts must be specific and concrete enough
to enable the defendants to prepare a response, and where
appropriate, a motion for summary judgment based on qualified
immunity." Whitacre v. Davey, 890 F.2d 1168, 1171 (citing
Martin v. Malhoyt, 830 F.2d 237, 254 (D.C.Cir. 1987)).
Nix's "specific and concrete" factual allegations regarding
Rep. Hoke's role in the wiretapping of Nix's telephone
communications are first, that during the FBI investigation, Rep.
Hoke asserted to Richard Hoke that he believed 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," Amended Compl. ¶ 57; second, that Rep. Hoke aided
the Sword and Chalko defendants' efforts to avoid testifying
or to testify falsely regarding the wiretapping. Id. ¶¶ 67, 99,
104, 105, 110-12, 120, 124, 125, 129.
The court finds nothing in Rep. Hoke's statement to Richard
Hoke to suggest the violation of a "clearly established statutory
or constitutional right of which a reasonable person would have
known"; indeed, Rep. Hoke's statement is likely entitled to the
full protection of the First Amendment. To the extent that the
second allegation pertains to a claimed violation of Nix's
constitutional right to a fair trial of his claims, the Bivens
doctrine has never been read to extend so far. See Jones v.
United States, 401 F. Supp. 168, 174 (E.D.Ark. 1975), aff'd,
536 F.2d 269 (8th Cir. 1976), cert. denied, 429 U.S. 1039, 97
S.Ct. 735, 50 L.Ed.2d 750 (1977). In Jones, the plaintiff
sought a Bivens remedy for alleged prosecutorial jury tampering
in violation of his right to a just and speedy trial guaranteed
by the Fourth, Sixth, and Fourteenth Amendments. Id. at 169.
Noting that "a federal judge's contempt power is more than
adequate to deter any intentional jury tampering activity on the
part of federal officials," the court concluded that "the
Bivens doctrine should not be extended to grant jurisdiction in
an action for damages from a federal officer's alleged attempts
to prevent an individual from receiving a just and speedy trial."
Id. at 174-75. This court will therefore decline to create a
private cause of action in Bivens where, as here, contempt
sanctions are more than adequate to deter the alleged trial
3. Service of Process
Rep. Hoke has also moved to dismiss all claims asserted against
him in his official capacity for insufficiency of service under
Federal Rule 4(i). That rule requires that service on an officer
of the United States be effected by serving the United States
Attorney for the district in which the action is brought, as well
as the Attorney General. Fed.R.Civ.P. 4(i)(1). If a plaintiff
fails to effectuate service of process upon these parties within
120 days, the court "shall dismiss the action without prejudice
as to that defendant or direct that service be effected within a
specified period of time." Fed.R.Civ.P. 4(m).
It is undisputed that Nix has not yet served either the United
States Attorney and the Attorney General. In cases involving pro
se litigants, however, this court applies a lenient construction
of the service requirements where the government has received
actual notice of the suit. See Huskey v. Quinlan, 785 F. Supp. 4,
6 (D.D.C. 1992). Nix's first complaint filed by counsel was
docketed on June 8, 1999. Accordingly, Nix has 120 days from that
date; i.e., until October 6, 1999, to correct the defect in
4. The Tort Claims
Nix's claims for intentional tort, invasion of privacy, and
obstruction and interference
with legal remedies first appear in his June 8, 1999 complaint,
and therefore have not been addressed in Rep. Hoke's motion to
dismiss. In the event that the court denies the motion to strike,
Rep. Hoke has requested 45 days from the date of the court's
order for the defendants to answer the June 8, 1999 complaint and
respond to the new claims. The court will grant this request.
For the foregoing reasons, it is this 17th day of August, 1999,
ORDERED that the defendants' motion to strike the "First
Amended Complaint" filed June 8, 1999 is DENIED; and it is
ORDERED that defendant Ferencz's motion to supplement her
motion to dismiss is GRANTED; and it is further
ORDERED that defendant Ferencz's motion to dismiss for lack
of personal jurisdiction is GRANTED; and it is further
ORDERED that defendant Hoke's motion to dismiss for failure
to state a claim is GRANTED as to counts 1-6 of the First
Amended Complaint; and it is further
ORDERED that defendant Hoke shall have 45 days from the date
of this order to answer the June 8, 1999 complaint and respond to
the remaining claims; and it is further
ORDERED that plaintiff shall have until October 6, 1999 to
correct the defects in service respecting the remaining claims
against defendant Hoke in his official capacity; and it is
ORDERED that defendant Elcides Bruno Flores and the unnamed
defendants are dismissed from this case, as no claims have been
asserted against them in the First Amended Complaint.