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Raineri Constr., LLC v. Taylor

United States District Court, E.D. Missouri, Eastern Division

October 24, 2014

RAINERI CONSTRUCTION, LLC, Plaintiff,
v.
KEITH TAYLOR, et al., Defendants

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For Raineri Construction, LLC, Plaintiff: Theresa A. Phelps, John J. Gazzoli, Jr., ROSENBLUM AND GOLDENHERSH, P.C., St. Louis, MO.

For Keith Taylor, Scott Byrne, Paul Higgins, Al Bond, Mark Kabuss, Michael Ebert, Christopher Woods, George Wingbermuehle, III, Terry Nelson, Carpenters District Council of Greater St. Louis and Vicinity, Defendants: Gerald Kretmar, LEAD ATTORNEY, KRETMAR AND BEATTY, St. Louis, MO; Gregory Nathan Freerksen, LEAD ATTORNEY, WHITFIELD AND MCGANN, Chicago, IL.

For Tod Wingbermuehle, Defendant: Gregory Nathan Freerksen, LEAD ATTORNEY, WHITFIELD AND MCGANN, Chicago, IL.

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MEMORANDUM AND ORDER

CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on defendants' motion to dismiss Counts I through VII of plaintiff's second amended complaint for failure to state a claim for relief, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has filed a response in opposition and the issues are fully briefed.

I. Background

Plaintiff Raineri Construction, LLC (Raineri) is a construction contractor. Defendant Carpenters District Council of Greater St. Louis and Vicinity (CDC) is a labor union that represents carpenters and other skilled workers in collective bargaining with construction contractors. The ten individual defendants, Keith Taylor, Scott Byrne, Paul Higgins, Al Bond, Mark Kabuss, Michael Ebert, Christopher Woods, George Wingbermuehle III, Tod Wingbermuehle, and Terry Nelson, are officers or members of the CDC.

In the second amended complaint, plaintiff asserts claims of violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § § 1961-1968 (Counts I-IV), tortious interference with business relations (Count V), civil conspiracy (Count VI), injurious falsehood (Count VII), and unfair labor practice in violation of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 158(b)(4) (Count VIII). Plaintiff alleges that beginning in November 2011 and continuing to date, defendants have engaged in a conspiracy to extort money and inflict substantial damages upon plaintiff by threatening physical violence and property damage, stalking and harassing plaintiff's management and employees, defamation, filing frivolous complaints with the St. Louis City Building Department, the St. Louis County Department of Health, and the U.S. Department of Labor-Occupational Safety and Health Administration, and unlawfully interfering with plaintiff's existing and prospective business relations.

Defendants filed the instant motion seeking to dismiss plaintiff's second amended complaint. Defendants argue that plaintiff has failed to state a claim in Counts I through VII.[1]

II. Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, " even if it strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations" ); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears " that a recovery is very remote and unlikely" ). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint must include " enough facts to state a claim to relief that

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is plausible on its face." Bell Atlantic Corp., 550 U.S. at 570; see also id. at 563 (stating the " no set of facts" language in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), " has earned its retirement." ). " Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555.

When ruling on a motion to dismiss, a court generally may not consider matters outside the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citations omitted). It may, however, consider matters of public records, materials that do not contradict the complaint, exhibits attached to the pleadings, and materials necessarily embraced by the complaint. Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). In this case, defendants attached to their motion letters defendant sent to plaintiff's customers--documents referred to by plaintiff in its complaint. These letters are materials necessarily embraced by the complaint, and the Court may consider them in ruling on the motion to dismiss the second amended complaint.

III. Discussion

A. RICO Claims

Defendants first argue that plaintiff has failed to properly plead its RICO claims. RICO prohibits a person from engaging in a pattern of racketeering activity or from using proceeds derived from racketeering activity so to affect an interstate enterprise in one of three ways: (1) investing the income derived from a pattern of racketeering in the enterprise, § 1962(a); (2) acquiring or maintain an interest in an enterprise through a pattern of racketeering, § 1962(b); or (3) conducting the affairs of an enterprise through a pattern of racketeering, § 1962(c). Section 1962(d) also prohibits conspiring to violate subsections (a), (b), or (c). ...


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