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JULIANO v. KANE
December 20, 1988
C. ROBERT JULIANO, Plaintiff,
ALEXANDER KANE, ALAN S. KANE, ZELENKOFSKY, AXELROD & CO., LTD., PAUL ZELENKOFSKY, KANES SUPERMARKET, INC., KANES, INC., and ROSEGOOD, INC., Defendants
The opinion of the court was delivered by: LIFLAND
JOHN C. LIFLAND, UNITED STATES DISTRICT JUDGE
Defendants move to dismiss plaintiff's complaint for improper venue, or, in the alternative, to transfer the case to the Eastern District of Pennsylvania, or in the alternative, to dismiss the complaint for failure to state a claim and plead with particularity. The complaint asserts federal question jurisdiction pursuant to 28 U.S.C. § 1331; the Racketeer Influenced and Corrupt Organizations Act (RICO), particularly 18 U.S.C. §§ 1964(a) and (c); and the regulation of interstate commerce pursuant to the Commerce Clause and 28 U.S.C. § 1337. The complaint also asserts diversity jurisdiction pursuant to 28 U.S.C. § 1332, and sets forth pendent claims under New Jersey statutes similar in nature to RICO, for civil conspiracy, and for common law fraud. Plaintiff seeks compensatory and punitive damages, attorneys' fees and costs, and a constructive trust. The court decides this motion on the papers pursuant to F.R. Civ. P. 78.
The court need not address the merits of defendant's motion to dismiss the complaint for failure to state a claim or plead with particularity, because this case must be transferred to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1406(a), which states:
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
Paragraph 3 of the complaint states:
Personal jurisdiction and venue for this action are predicated on 18 U.S.C. § 1965 and on 28 U.S.C. § 1391(b), since the defendants are residents of, are found within, have agents within, or transact their affairs in the Eastern District of Pennsylvania, and the activities of the defendants giving rise to this claim took place in the Eastern District of Pennsylvania.
18 U.S.C. § 1965(a) states:
Any civil action or proceeding under [RICO] against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.
Plaintiff "concede[s] that a strict reading of 18 U.S.C. § 1965(a) and an examination of the facts of the instant case would demonstrate that the plaintiff could not base v[e]nue of his claim solely on the RICO venue statute." Plaintiff's Memorandum of Law #2 at 1. However, 28 U.S.C. § 1391(b) states:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
The venue provisions of § 1391(b) supplement the venue provisions of RICO. Chambers Dev. Co. v. Browning-Ferris Indus., 590 F. Supp. 1528, 1546 (W.D. Pa. 1984); Eaby v. Richmond, 561 F. Supp. 131, 139 (E.D. Pa. 1983). Plaintiff argues that defendant Zelenkofsky, Axelrod & Co., Ltd., an accounting firm, sent several written certifications to plaintiff at the direction of defendant Alexander Kane, Alan S. Kane, and Kanes Supermarket [hereinafter the "Kane defendants"] in order to fraudulently induce plaintiff into accepting lower payments than those due him under a lease between plaintiff and the Kane defendants. In a footnote plaintiff claims he is in possession of thirteen such certifications and knows of the existence of at least two more. Plaintiff's Memorandum of Law #2 at 1-2. Plaintiff cites Eaby, also a RICO case where § 1391(b) was applicable:
Defendants wrote to plaintiffs a number of times regarding well development and production. See, Complaint paras. 20 and 23. Such intradistrict conduct satisfies the venue statute. Cf. Kogok v. Fields, 448 F. Supp. 197, 198-99 (E.D. Pa. 1978) (Venue properly laid under 15 U.S.C. [§ ] 78aa's standard where defendants mailed proxy statements to plaintiffs).
We, therefore, conclude that the mailing letters to this district by defendants Nau and Dawson, amounts to sufficient activity within the district to support venue. 28 U.S.C. § 1391(b); Farmers Bank v. Bell ...
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