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NIX v. HOKE

August 17, 1999

JOHN H. NIX, PLAINTIFF,
v.
MARTIN R. HOKE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kennedy, District Judge.

  MEMORANDUM OPINION

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.

I. FACTUAL BACKGROUND

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 tapes.

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 testimony.

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 ...


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