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Fosco v. Difronzo

July 28, 2009

JOSEPH A. FOSCO, PLAINTIFF,
v.
JOHN DIFRONZO, PETER DIFRONZO, JACK CERONE, RUDLOPH FRATTO, JR., JOSEPH GIACCHINO, JR., AND JOHN AND JANE DOE(S), MEMBERS AND ASSOCIATES OF THE CHICAGO OUTFIT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court are a Motions to Dismiss filed by Defendant Joseph Giacchino (hereinafter, "Giacchino") and by Defendants John DiFronzo and Peter Difronzo (collectively, the "DiFronzos"), which are joined by Defendants Jack Cerone and Rudolph Fratto, Jr. For the following reasons, the Court grants Defendants' Motions and dismisses all claims with prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 26, 2009, Plaintiff Joseph Fosco (hereinafter, "Fosco") filed a pro se complaint against five named defendants and other unnamed defendants, alleging a civil conspiracy claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962. The Complaint alleges that each Defendant is a member or associate of the Chicago Outfit, which it alleges is an enterprise within the meaning of RICO. Compl. ¶¶ 6-13. In violation of Section 1962(d) of RICO, beginning in 2001, Defendants conspired together to extort money from Fosco, see id. at ¶¶ 28-29 (Count I), through a pattern of racketeering activity, which included the following predicate acts:

Count II: Defendants (other than Giacchino) extorted $400,000 from Fosco on February 3, 2002 by threats of physical harm. See id. at ¶¶ 30-31.

Count III: During early 2004 and again in June 2006,

Defendants (other than Giacchino) conspired to murder Fosco to prevent him from providing information to law enforcement. See id. at ¶¶ 32-37.

Count IV: From 2004 through 2006, Giacchino extorted $100,000 from Fosco under the pretense that Giacchino would intercede with members of the Chicago Outfit to save Fosco's life. See id. at ¶ 39.

Count V: On August 11, 2006, Giacchino transmitted an extortionate demand to Fosco by telephone. See id. at ¶ 41.

On April 29, 2009, Giacchino filed a Motion to Dismiss all claims against him pursuant to Rule 12(b)(6). Giacchino contends that the Complaint does not satisfy the burden of pleading a RICO claim because it fails to allege a conspiracy that Giacchino agreed to participate in such conspiracy, or that Giacchino agreed to the commission of any predicate acts. Giacchino also argues that the Complaint alleges isolated events rather than a "pattern of racketeering" as required by RICO.

On June 19, 2009, the DiFronzo Defendants filed a separate Motion to Dismiss. The DiFronzos argue that Fosco's claims are barred by the statute of limitations. In the alternative, the DiFronzos contend that Fosco lacks standing to bring his claims because he has failed to allege an "injury to business or property," and they echo Giacchino's argument that the Complaint has failed to allege a "pattern of racketeering."

In response, Fosco argues that the Complaint alleges a RICO conspiracy claim, involving a pattern of racketeering activity comprising distinct predicate acts related to multiple extortion schemes occurring over several years. Fosco contends that the Complaint adequately alleges that Defendants conspired together to extort money from him and agreed to the commission of the predicate acts. Finally, Fosco urges the Court to toll the statute of limitations if it does, in fact, bar his claims.

II. STANDARD OF REVIEW

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded allegations and draws all reasonable inferences in a light favorable to the plaintiff. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). To avoid dismissal, a complaint must include enough factual allegations "to state a claim to relief that is plausible on its face." Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir., 2008) (quoting Bell Atlantic, 127 S.Ct. at 1974). These allegations "must plausibly suggest that the defendant has a right to relief, raising that possibility above a speculative level." E.E.O.C. ...


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