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Juergensmeyer v. Behme

November 29, 2007

CHARLES H. JUERGENSMEYER, PLAINTIFF,
v.
SHARON BEHME, LUKE BEHME, CARL BEHME, JEFF BEHME, AND CHRIS BEHME, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

Refusing to dismiss Juergensmeyer's initial Complaint, this Court granted him leave to amend with the admonishment that a variety of issues required further elucidation. Although Juergensmeyer timely filed an Amended Complaint, he has failed to sufficiently rectify some of the omissions noted in this Court's first opinion. Therefore, the Behmes' motion to dismiss Juergensmeyer's Amended Complaint is granted.

FACTUAL AND PROCEDURAL HISTORY

On April 18, 2001, Plaintiff Charles H. Juergensmeyer ("Juergensmeyer"), an elderly man suffering from age-related difficulties, granted Defendant Sharon Behme ("Sharon"), a certified public accountant, a power of attorney to act on his behalf. Juergensmeyer alleges that Sharon, beginning in 2001 and continuing through June 30, 2002, wrote herself checks totaling over $100,000 without providing commensurate services. The Amended Complaint also claims that Sharon misused Juergensmeyer's money by giving some to her son Luke Behme, purchasing a truck for her father Carl Behme, paying her brother Chris Behme to rehabilitate real estate, and inducing Juergensmeyer to purchase a high performance engine for her brother Jeff Behme (collectively "the Behmes").

On May 9, 2006, Juergensmeyer filed a one-count Complaint against the Behmes alleging violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. (hereinafter "RICO"). The Behmes moved to dismiss. Although the motion was ultimately denied in favor of granting leave to amend the Complaint, this Court instructed Juergensmeyer to address the issues raised in the Motion to Dismiss and warned that no additional amendments would be allowed. On August 30, 2006, Juergensmeyer filed his Amended Complaint and Defendants responded with a second Motion to Dismiss that renewed many of the arguments from their original motion.

APPLICABLE STANDARDS

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss, a district court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the plaintiff. Moranski v. Gen. Motors Co., 433 F.3d 537, 539 (7th Cir. 2005) (citation omitted). "'While a complaint . . . does not need detailed factual allegations, [the] allegations must be enough to raise a right to relief above the speculative level. . . .'" Jennings v. Auto Meter Prods., Inc., 495 F.3d 466, 472 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 167 L.Ed. 2d 929 (2007)).

ANALYSIS

Juergensmeyer alleges violations of RICO under 18 U.S.C. § 1962(b), (c), and (d). The Behmes argue that the RICO claim is untimely and, even if it were not, it fails to adequately allege a pattern of racketeering activity.*fn1

A. Statute of Limitations

The Behmes first assert that Juergensmeyer's RICO action is partially or entirely barred by the statute of limitations, since two of the three predicate acts occurred more than four years after the complaint was filed.

For RICO violations, the limitations period is four years. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed. 2d 121 (1987). The four year period, however, does not begin to run until a plaintiff knows or should have known that he was injured. Barry Aviation Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 688 (7th Cir. 2004); McCool v. Strata Oil Co., 972 F.2d 1452, 1464-66 (7th Cir. 1992); see also Rotella v. Wood, 528 U.S. 549, 554 n.2, 555, 120 S.Ct. 1075, 145 L.Ed. 2d 1047 (2000) (rejecting an "injury and pattern discovery" rule for accrual but refusing to expressly require an "injury discovery" rule because of the possibility that an "injury occurrence" rule could be adopted); Klehr v. A.O. Smith Corp., 521 U.S. 179, 186-87, 117 S.Ct. 1984, 138 L.Ed. 2d 373 (1997) (rejecting "last predicate act" rule for determining accrual). Juergensmeyer has alleged that Sharon Behme took specific steps to prevent him from discovering any wrongdoing and, as a result, he did not and could not have discovered the injury to his property until August 2002. Assuming these facts to be true, the limitations period would then run from August 2002 until August 2006. Since the original complaint was filed on May 9, 2006, it falls within the four-year limitations period.

B. Pattern of Racketeering Activity

In order to allege a RICO violation under any of the provisions of § 1962, a plaintiff must allege a pattern of racketeering activity. See 18 U.S.C. § 1962(b)-(d). Juergensmeyer alleges three instances of mail and wire fraud occurring between November 30, 2001, and May 13, 2002, all of which relate to Sharon Behme using her power-of-attorney to take money and property from ...


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