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Paramount Enterprises, Inc. v. Laborers Eastern Region Organizing Fund

United States District Court, D. New Jersey

February 25, 2014



MICHAEL A. SHIPP, District Judge.

This matter comes before the Court upon Defendants' Laborers Eastern Region Organizing Fund ("LEROF"), Raymond M. Pocino, Luis Giammarino, Robert Bonanza, Anthony Esemplare, Bret Castillo, Laborers International Union of North America-Local 172 ("Local 172") (collectively, "Defendants") Joint Motion to Dismiss. (Defs.' Br., ECF No. 12.)[1]Plaintiffs Paramount Enterprises, Inc. ("Paramount") and William R. Vespe, Sr. (collectively, "Plaintiffs") filed Opposition. (Pis.' Opp'n, ECF No. 24.) Defendants filed a Reply. (Defs.' Reply, ECF No. 25.) The Court has carefully considered the Parties' submissions and decided the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons stated below, and other good cause shown, Defendants' Motion is GRANTED.


On April 24, 2013, Plaintiffs filed a civil action in Superior Court of New Jersey, Law Division, Camden County, against Defendants, Haddonfield, and John and Jane Does 1-10. Defendants LEROF, Pocino, Giammarino, Bonanza, Esemplare, and Castillo consented to the removal of this matter to the United States District Court pursuant to 28 U.S.C. § 1441(a) based on federal question jurisdiction. (Notice of Removal, ECF No. 1, ¶¶ 7-9.)[3]The case was removed to this Court on May 23, 2013.

Plaintiff Vespe is a thirty-plus year veteran of the construction business and is the owner of Paramount, which has been a general contractor since 1995. (Compl., ¶¶ 1-2.) Paramount is a nonunion, prevailing wage contractor. ( Id. ¶ 12.) Although Paramount is a non-union contractor, it often bids on public works projects against union contractors. ( Id. ¶ 13.) Defendant LEROF was formed in 1997 by Pocino, who is also the president; Defendants Giammarino and Bonanza are officers of LEROF while Defendants Esemplare and Castillo are LEROF organizers. ( Id. ¶¶ 3-8.) Local 172 is a local chapter of an American labor union formed to organize laborers in building construction and consists of over 600, 000 members. Local 172 is located in Trenton, New Jersey. ( Id. ¶ 9.)

Since 2009 or earlier, LEROF, through its members, has "defamed" Plaintiffs. ( Id. ¶¶ 44-46, 67-68, 71, 91-92, 95, 97.) Specifically, LEROF, through Defendants Esemplare and Castillo, has and continues to defame Plaintiffs by, " inter alia, disseminating to the public and to borough and town officials flyers and other written material containing false, harmful statements concerning [Plaintiffs] and the work they have performed on various projects." ( Id. ¶ 47; see also id. ¶ 49.) For example, Defendants LEROF, Esemplare, and Castillo made the following statements regarding Plaintiffs' work on a job known as the Woodland Avenue Project: (1) dangerous spikes protrude from the ground without any protection; (2) trenches dug by heavy machinery endangered motorists and pedestrians; (3) Paramount disregards the well-being of Haddonfield residents; (4) Paramount disrespects its workforce; (5) the project is not safe for the public; (6) Paramount is an inferior contractor with questionable practices; (7) Paramount violates wage and hour laws; and (8) Paramount is not a responsible contractor. ( Id. ¶ 48.) According to Plaintiffs, "[t]he false statements... had but one goal and purpose-to wrongfully leave Paramount no choice but to become a union contractor." ( Id. ¶52; see also id. ¶¶ 56, 68, 71, 77, 79, 92, 95, 101, 103.)

Plaintiffs have been injured by Defendants' conduct, including losing millions of dollars in business and causing Paramount to "effectively" shut down. ( Id. ¶¶ 68, 92.) Therefore, as a result of the alleged foregoing conduct, Plaintiffs filed a twelve-count Complaint with six claims against Defendants and the remaining claims against Haddonfield. Counts Eight through Eleven against LEROF, Pocino, Giammarino, Bonanza, Esemplare, and Castillo, contain allegations pursuant to the federal RICO statute, 18 U.S.C. §§ 1962(c) and (d), and its counterpart under New Jersey state law, N.J. Stat. Ann. §§ 2C:41-2(c) and (d). Counts Six and Seven are state law claims against LEROF, Esemplare, and Castillo for defamation and intentional interference with contractual and business relations/prospective economic advantage. Plaintiffs seek treble damages, interest and costs, pursuant to both federal and state RICO statutes, 18 U.S.C. § 1964(c) and N.J. Stat. Ann. § 2C:41-4. ( Id. ¶¶ 75, 99.)

Defendants move to dismiss, pursuant to Rule 12(b)(6), Plaintiffs' RICO, defamation, and tortious interference claims. For the following reasons, Defendants' Motion is granted.


On a Rule 12(b)(6) motion to dismiss for failure to state a claim, a "defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Rule 8(a)(2) "requires only a short and plain statement of the claim, " enough facts to show "that the pleader is entitled to relief, " and "to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (internal quotation marks omitted)).

The court construes the complaint in the light most favorable to the plaintiff, accepting as true all factual allegations but disregarding "unadorned" conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A "formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Rather, a complaint must allege "facts... sufficient to show that plaintiff has a plausible claim for relief.'" Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).


A. Violation of§ 1962(c)

In Count Eight, Plaintiffs allege that Defendants LEROF, Pocino, Giammarino, Bonanza, Esemplare, and Castillo "operated and managed affairs of the enterprise [Local 172] through a pattern of racketeering activity" commencing as early as 2009 and continuing through to the present in violation of§ 1962(c). (Compl., ¶ 67.) Plaintiffs allege that the underlying racketeering activity was accomplished through mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343, through a series of false representations ...

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