MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
Richard Hoffman Corporation, Inc. ("Hoffman") has brought suit against Loews Merrillville Cinemas, Inc. ("Loews Cinemas"), Loews Theatre Management Corp. ("Loews Management"), Columbia Pictures Entertainment, Inc. ("Columbia") and Sony U.S.A., Inc. ("Sony"). Hoffman's Complaint purports to ground federal jurisdiction (a) on diversity-of-citizenship grounds, (b) under RICO (18 U.S.C. §§ 1961-1965)
and (c) via pendent jurisdiction as well.
Based on its initial review of the Complaint,
this Court sua sponte dismisses the Complaint for lack of subject matter jurisdiction -- but without prejudice to Hoffman's prompt curing of the jurisdictional defects referred to here.
Complaint para. 3 properly identifies Hoffman's dual citizenship in accordance with Section 1332(c)(1): Both its state of incorporation and its principal place of business are said to be in Illinois. Complaint para. 4 does the same for Loews Cinemas. But inexplicably Complaint paras. 5 through 7 do not provide the requisite information as to any of the other three corporate defendants.
That obviously inadvertent pleading defect deprives this Court of independent subject matter jurisdiction over this action, for federal courts can deal with cases only as Congress specifies (see Section 1332(c)) and as a plaintiff's express allegations bring the case within those specifications. See, e.g., 5 Wright & Miller, Federal Practice and Procedure: Civil § 1208, at 103-04 and n. 12, and cases there cited (1990 ed.); 13 B id. § 3624, at 610 & n. 20, and cases there cited (1984 ed. and 1990 pocket part). Federal jurisdiction cannot be based on surmise or guesswork.
Because it seems likely that the curing of that oversight by Hoffman's counsel would demonstrate that total diversity really does exist, Section 1653 permits this Court to afford Hoffman an opportunity to provide the curative allegations rather than its having to pay a second filing fee. But while Hoffman's counsel is about it, he would be well advised to take a hard look at the RICO claim that he has sought to advance.
There are at least three fundamental misconceptions disclosed by the purported RICO claim embodied in Complaint Count III -- misconceptions that are often the hallmark of the lawyer who thoughtlessly decides it can't cost anything to throw such a claim into the hopper in addition to whatever other legitimate claims may be involved.
For one thing, counsel's notion of a "pattern of racketeering activity" is at war with the principles that have become clearly marked out in this sometimes murky area -- see the directly applicable precedent in Brandt v. Schal Associates, Inc., 854 F.2d 948, 952-54 (7th Cir. 1988), which affirmed this Court's dismissal of a RICO claim on that very ground at 664 F. Supp. 1193, 1198-99 (N.D. Ill. 1987). Second, counsel's obvious failure to understand the "person"-"enterprise" concept mirrors the comparable failure recently discussed by this Court in S & M Exteriors, Inc. v. Amerimark Building Products, Inc., No. 91 C 1333, slip op. (N.D. Ill. Mar. 8, 1991), a copy of which opinion is attached to this opinion. Third, Hoffman's attempt to charge a conspiracy among the four defendants (Complaint para. 41B) appears to run afoul of the problems that are always encountered in linking up, as a claimed conspiracy, activities that have been carried on within a single controlled corporate structure.
When Hoffman's counsel returns to the drawing board as he must, he would therefore do well to consider whether the revised Complaint ought to include a RICO count.
But whatever the determination on that score may be, the present Complaint must be and is dismissed for lack of subject matter jurisdiction, with leave to file an Amended Complaint on or before March 29, 1991. On the assumption that such a renewed effort is forthcoming, rather than Hoffman's electing to refile the lawsuit in a state court of general jurisdiction, this action is set for a status hearing at 9 a.m. May 8, 1991.
In the United States District Court for The Northern District of Illinois Eastern Division S & M Exteriors, Inc., Plaintiff, v. Amerimark Building Products, Inc., et al., Defendants.
No. 91 C 1333
MEMORANDUM OPINION AND ORDER
S & M Exteriors, Inc. ("S & M") has brought this action against manufacturer Amerimark Building Products, Inc. ("Amerimark") and two of its wholesale distributors, Tri-State Roofing and Siding Wholesale, Inc. ("Tri-State") and Lakeland Building Supply, Inc. ("Lakeland"), seeking to ground federal jurisdiction in RICO (18 U.S.C. §§ 1961-1965)
and adding pendent state law claims of common law fraud and breach of contract. Based on its initial review of S & M's Complaint,
this Court sua sponte dismisses the Complaint for lack of subject matter jurisdiction.
Because of the presence of the non-RICO counts, attention should briefly be focused at the outset on the absence of complete diversity of citizenship as a possible alternative basis for federal jurisdiction. S & M is an Illinois corporation and hence an Illinois citizen (Complaint para. 3), and the same is true of both Tri-State (Complaint para. 5) and Lakeland (Complaint para. 6). Accordingly there is no predicate for federal jurisdiction unless a proper RICO claim has been set out in the Complaint. S & M's counsel are thus correct in labeling other claims advanced in the Complaint as entirely pendent, so that failure of the RICO count would require them to be dismissed for lack of subject matter jurisdiction as well.
That then leaves this Court to focus on the RICO component of the Complaint. S & M claims to have been victimized by a large-scale and continuing fraudulent scheme involving Amerimark-manufactured aluminum siding of substantially thinner gauge than it was represented to be. In terms of the elements of a civil RICO action asserting a violation of Section 1962(a), the Complaint has adequately identified:
1. the offending "persons" -- all three defendants;