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ACAMPORA v. BOISE CASCADE CORP.

March 12, 1986

ARLENE J. ACAMPORA, Plaintiff,
v.
BOISE CASCADE CORPORATION, BOISE CASCADE CORPORATION OFFICE PRODUCTS DIVISION, IAN PATRICK, RONALD R. TIEDJE, JAMES TISONY, Defendants



The opinion of the court was delivered by: GERRY

 Plaintiff, Arlene J. Acampora, has filed this action against Boise Cascade Corporation, Boise Cascade Corporation Office Products Division (collectively "Boise Cascade"), Ian Patrick, Ronald R. Tiedje and James Tisony. The complaint alleges various violations of section 706 of the Civil Rights Act of 1964, tortious interference with contractual relationships and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"). The counts alleging RICO violations and tortious interference with contractual relations are directed only at defendant Tisony (counts 4-6). One additional count, count seven, claiming a violation of 42 U.S.C. § 2000e-2(d) is also directed solely at defendant Tisony.

 Defendant Tisony was the operations manager at the Pennsauken office of Boise Cascade's Office Products Division, where plaintiff also worked as the purchasing manager. In her complaint, plaintiff alleges that defendant Tisony was stealing from the company, and that because of plaintiff's discovery of the thefts and the fact that she is a female, Tisony sexually harassed her and acted in a manner which caused Boise Cascade to terminate her employment.

 I. Count Six - RICO.

 Defendant Tisony has moved to dismiss the RICO count for failure to state a claim. Plaintiff's Sixth Cause of Action states, in relevant part:

 
. . . 2. The defendant James Tisony was, at all times pertinent hereto, employed in an enterprise which affects interstate commerce, within the meaning of 18 U.S.C. Section 1962(c) of the Racketeer Influenced and Corrupt Organizations Act.
 
3. The defendant James Tisony participated in the conduct of the affairs of the Corporation through a pattern of racketeering activity, as prohibited by 18 U.S.C. Section 1962(c). More specifically, defendant James Tisony did engage in such a pattern of racketeering activity by creating and engaging in a scheme to unlawfully steal and distribute said stolen goods of the defendant Boise Cascade by utilizing other employees of the Corporation and himself to appropriate and distribute said goods to create and/or falsify bookkeeping records of the Corporation so as to hide said activities and by deriving economic benefits from said activities.
 
4. As the result of plaintiff's discovery of defendant Tisony's irregular activities, defendant Tisony did engage in a course of conduct of harassing plaintiff and interfering with her relationship with her employer, defendant Boise Cascade.
 
5. The plaintiff was injured in her business and property as the result of defendant Tisony's acts and is entitled to recover treble her losses, attorney's fees and costs . . . .

 In order to state a claim under RICO, plaintiff must allege that defendant has engaged in the "prohibited activities" outlined in 18 U.S.C. § 1962, and that she has been injured "by reason of" his violation of § 1962. (18 U.S.C. § 1964.) Plaintiff claims that she has been injured by reason of defendant's violation of § 1962(c), which provides:

 
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

 Defendant argues first that plaintiff's complaint fails adequately to allege defendant's involvement in a "pattern of racketeering activity." Section 1961(1) defines "racketeering activity" as the commission of one or more of a variety of criminal offenses (predicate acts), which are set out in the statute. A "pattern of racketeering activity" is defined by § 1961(5) as "at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity." Defendant contends that plaintiff's complaint does not allege defendant's commission of "a pattern of racketeering activity" with sufficient particularity to withstand dismissal.

 Under the liberal pleading requirements of the Federal Rules of Civil Procedure, a litigant need only set forth "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." F.R. Civ. P. 8(a). As the Third Circuit stated in Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 790 (3d Cir. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1179, 84 L. Ed. 2d 327 (1984), "under the modern federal rules, it is enough that a complaint put the defendant on notice of the claims against him. It is the function of discovery to fill in the details, and of trial to establish fully each element of the cause of action." Even under this standard, however, we find that plaintiff's complaint fails to state a claim within the ambit of RICO.

 In her brief, plaintiff argues that defendant's acts constituted a violation of 18 U.S.C. § 659, which is one of the predicate offenses listed in the definition of "racketeering activity" under 18 U.S.C. § 1961(1). However, plaintiff's complaint does not mention § 659, nor does it allege facts sufficient to support a ...


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