The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Bruce P. Golden ("Golden") sued Nadler, Pritikin & Mirabelli,
LLC ("Nadler"), James B. Pritikin ("Pritikin"), Matthew Arnoux
("Arnoux"), Wendy Bowes ("Bowes"), and Osvaldo Rodriguez
("Rodriguez") for copyright infringement (Count I); Nadler,
Pritikin, Arnoux, and Sigman for civil RICO (Count II); Nadler,
Pritikin, Arnoux, and Sigman under 42 U.S.C. § 1983 (Count III);
and Nadler, Pritikin, Arnoux, Sigman, and Nancy Thomas ("Thomas")
for various state law tort claims (Counts IV-XIV). Nadler,
Pritikin, and Arnoux represent Jody Rosenbaum-Golden
("Rosenbaum") in her petition of dissolution of her marriage to
Golden in the Circuit Court of Cook County. Sigman is the child
representative for Dale Golden ("Dale") in the dissolution of
Before this court are separate motions to dismiss by: Nadler,
Pritikin, and Arnoux (collectively "Nadler"); Sigman; and Thomas.
Bowes has joined in these motions. Also before this court is Golden's motion to strike Nadler's motion to
dismiss. With respect to Count I, the court finds that it must
abstain and a stay is entered as to that count pending the
resolution of the ongoing state proceeding. The motions to
dismiss Counts II and III are granted. After these dismissals, no
federal claims remain, and the court relinquishes jurisdiction
over the remaining state law claims (Counts IV-XIV). The motion
to dismiss Counts IV-XIV is granted.
Golden has filed a motion to strike Nadler's motion to dismiss
arguing that it references matters outside the complaint. Golden
has conceded, however, that this court may take judicial notice
of matters of public record without converting the motion to
dismiss into a motion for summary judgment. These matters of
public record include public court documents filed in related
cases. Henson v. CSC Credit Serv., 29 F.3d 280, 284 (7th Cir.
1994). To the extent that the motion to dismiss refers to matters
outside the complaint and the public record, the court has not
considered such matters. The motion to strike is denied as moot.
In reviewing a motion to dismiss for failure to state a claim,
the court reviews all facts alleged in the complaint and any
reasonable inferences drawn from those facts in the light most
favorable to the plaintiff. Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). The court
will grant the motion only if it appears that the plaintiff
cannot prove any set of facts that would entitle the plaintiff to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A. Count I: Federal Copyright Violation
To establish copyright infringement, the plaintiff must show,
among other things, that he has ownership of a valid copyright.
See Feist Publications, Inc. v. Rural Telephone Service Co.,
Inc., 499 U.S. 340, 361 (1991). Federal courts have exclusive
jurisdiction to decide cases of copyright infringement.
28 U.S.C. § 1338 (2000). Therefore, it is the province of the federal court
to decide ownership of federal copyrights.
Golden alleges that he owns copyrights which are registered as
Registration No. TX 6-066-895 and that these defendants are
infringing them by "operating and/or representing an organization
that lists home[s] for sale" in a manner similar to Golden's
business. Because the divorce proceeding is still pending,
however, the court finds that it should abstain from making a
determination of copyright ownership at this time.
Abstention doctrines are the exception to the federal courts'
"virtually unflagging obligation" to hear cases within their
subject matter jurisdiction. Colorado River Water Conservation
Dist. v. U.S., 424 U.S. 800, 817-18 (1976). Burford abstention
can apply when a federal court decision would interfere with a
matter of substantial state concern. See Burford v. Sun Oil
Co., 319 U.S. 315 (1943).
In Burford, the United States Supreme Court concluded that
the district court should have abstained so as not to interfere
with a decision by the Texas Railroad Commission to grant a
permit for drilling oil wells. Burford, 319 U.S. at 334. The
Court noted that the allocation of oil reserves was a matter of
substantial state concern and that the State of Texas had
consolidated review of all claims involving allocation in
specialized state courts. Id. at 326-27. The Court then stated
that exercise of federal jurisdiction would cause confusion that
the state intended to prevent by establishing specialized state courts and would risk
"needless federal conflict with state policy." Id. at 327.
The Supreme Court has recognized that Burford abstention may
be appropriate in cases where "a federal suit [was] filed prior
to the effectuation of a divorce, alimony, or child custody
decree" and where "the [federal] suit depended on a determination
of the status of the parties." Ankenbrandt v. Richards,
504 U.S. 689, 705-06 (1992). It is well-recognized that "[f]amily
relations are a traditional area of state concern." See, e.g.,
Moore v. Sims, 442 U.S. 415, 435 (1979). "[I]n general it is
appropriate for the federal courts to leave delicate issues of
domestic relations to the state courts." Elk Grove Unified Sch.
Dist. v. Newdow, 124 S. Ct. 2301, 2309 (2004). Further,
Burford abstention is appropriate in cases where the federal
claim requires the court to decide ownership of property which
may be determined in the state court divorce proceeding. Farkas
v. D'Oca, 857 F. Supp. 300, 304 (S.D.N.Y. 1994) (holding that
Burford abstention was appropriate where the state divorce
action would determine the property rights of the spouses, which
was a prerequisite to deciding the federal claim); see also
Johnson v. Thomas, 808 F. Supp. 1316, 1320 (W.D. Mich. 1992)
(holding that abstention was appropriate where the tort claims in
federal court on diversity depended on the resolution of the
breach of a domestic partnership agreement).
In this case, the state court in the pending divorce will
determine whether Golden's and Rosenbaum's property is marital
property or separate property, and the court will determine how
the property should be distributed. See 750 ILCS 5/503. This
determination may well affect this court's determination of the
ownership of copyrights at issue, and conversely, if this court
decided ownership prior to the state court's decision, this
court's decision might unnecessarily interfere with the distribution of property in the pending
divorce case. Since Golden seeks primarily monetary relief, this
court will stay this claim pending the resolution of the divorce
case. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706
Golden's claim under the Racketeering Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), fails
to state a claim because Golden has not properly pled this count.
"In order to state a viable cause of action under § 1962(c), a
plaintiff must allege (1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity." Slaney v. The
Intern. Amateur Athletic Federation, 244 F.3d 580, 597 (7th Cir.
2001). Nadler argues that none of the predicate acts of
racketeering activity have been adequately pled. The predicate
acts alleged by Golden include violations of 18 U.S.C. § 2319
(criminal copyright infringement), 18 U.S.C. § 1341 (mail fraud),
18 U.S.C. § 1512 (intimidation of witnesses), and
18 U.S.C. § 1951 (Hobbs Act).*fn1 As discussed below, these predicate
acts, with the exception of copyright infringement, have been
improperly pled and therefore cannot support a claim for ...