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GOLDEN v. NADLER

November 1, 2005.

BRUCE P. GOLDEN, individually and as next friend of DALE M. GOLDEN, Plaintiffs
v.
NADLER, PRITIKIN, & MIRABELLI, LLC; JAMES B. PRITIKIN; JAMES B. PRITIKIN P.C.; MATTHEW C. ARNOUX; HELEN SIGMAN & ASSOCIATES, LTD.; HELEN SIGMAN; NANCY C. THOMAS; WENDY G. BOWES; OSVALDO RODRIGUEZ Defendants.



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 marriage.

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.

  I. Motion to Strike

  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.

  II. Motions to Dismiss

  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 (1996).

  B. Count II: Civil RICO

  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 ...


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