United States District Court, D. New Jersey
CEVDET AKSÜT OĞULLARI KOLL. STI, Plaintiff,
ROBIN A. CAVUSOGLU, et al, Defendants.
WILLIAM J. MARTINI, U.S.D.J.
Cevdet Aksüt Oğullari Koll. Sti
(“Plaintiff”) brings this action against Huseyin
Cavusoglu and multiple associates, including American
Pistachio Commodities Corporation d/b/a Sunrise Commodities,
David Cottam, and Andrew Rosen (collectively “Sunrise
Defendants” or “Sunrise”), and Mordy
Dicker, alleging thirteen counts of New Jersey, federal and
common law violations, in connection with the fraudulent
importation of food products from Turkey to the United
States. This matter comes before the Court on Sunrise
Defendants' partial motion to dismiss under Federal Rule
of Civil Procedure 12(c) for judgment on the pleadings with
respect to Counts IV and V of the Complaint. There was no
oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth
below, Defendants' motion to dismiss is GRANTED and
Counts IV and V are DISMISSED.
general, the Complaint alleges that Sunrise Defendants,
Dicker and others conspired with Cavusoglu in operating a
fraudulent enterprise that induced Turkish food suppliers to
ship their goods to Defendants for sale in the United States
(the “RICO enterprise”). Plaintiff seeks to
collect an unpaid debt of approximately $1.1 million in
connection with its business dealings with the RICO
enterprise. The Court assumes the parties' familiarity
with the facts of this case, which are summarized in two
opinions addressing previous motions to dismiss filed by
Sunrise and Dicker. See Op. 3-8, ECF No. 69; Op.
2-3, ECF No. 71.
Court underscores a few facts that are particularly relevant
to the instant motion. Plaintiff is a Turkish corporation
with its principal place of business in Nazilli, Turkey.
Compl. ¶ 5, ECF No. 1. Sunrise Defendants and Dicker are
residents of the United States. Id. at ¶¶
30, 33, 35, 37. Cavusoglu is also a United States resident
and operated several shell corporations in connection with
the alleged RICO enterprise out of Linden, New Jersey.
See id. at ¶¶ 6, 39-40. Cavusoglu
coordinated with Sunrise and Dicker to have Plaintiff's
goods stored at the Linden property. See id. at
¶¶ 69-83, 90-95, 147-56.
was first introduced to Cavusoglu through an individual named
Aret Museoglu, who was a representative of Plaintiff's
previous customer. Museoglu recommended Cavusoglu as a
business partner, representing that he was a “big
player” in the Turkish-food-import business.
Id. at ¶ 137. After Plaintiff had delivered
most of its goods, Museoglu recanted his previous statements
and admitted that he knew Cavusoglu to be dishonest and that
he took unfair advantage of his suppliers. See id.
at ¶ 157. In return for kickbacks from the sale of
Plaintiff's goods, Museoglu conspired with Cavusoglu to
induce Plaintiff to transact with the RICO enterprise by
making false representations about Cavusoglu's personal
integrity, intentions, market share, customer base and past
acts. See id. at ¶¶ 158, 160. Finally, the
record reflects that Plaintiff's invoices concerning
some, but not necessarily all, of the shipped goods indicate
“FOB.IZMIR.” See id., Ex. 15.
now moves to dismiss only Counts IV and V of the Complaint,
which allege violations of the New Jersey Racketeer
Influenced Corrupt Organizations (“RICO”) Act,
N.J.S.A. § 2C:41-1 et seq., and the United
States RICO Act, 18 U.S.C. § 1961 et seq.,
(collectively the “RICO claims”). See
Compl. at ¶¶ 276-94; Br. in Supp. of Mot. to
Dismiss Pl.'s RICO Claims (“Defs.' Mot.”)
1, ECF No. 126-1. Dicker joins the motion. See
Letter, ECF No. 127. Sunrise argues that, in light of the
Supreme Court's recent ruling in RJR Nabisco, Inc. v.
European Cmty., 136 S.Ct. 2090 (2016), Plaintiff's
RICO claims fail as a matter of law because Plaintiff cannot
show that it suffered a “domestic injury” to its
business or property. See Defs.' Mot. at 3. In
applying a legal test adopted by the Southern District of New
York, Sunrise asserts that any injury to Plaintiff occurred
in Turkey because Plaintiff maintained no business operations
in the United States and Plaintiff relinquished possession of
its goods when it delivered them to a third-party shipper in
Turkey. See id. at 10-12.
responds that the RJR decision is distinguishable
because all of the alleged RICO predicate acts in
RJR occurred in Europe, whereas all of the predicate
acts in the instant case occurred in the United States.
See Pl.'s Br. in Opp'n to the Mot. to
Dismiss (“Pl.'s Opp'n”) 6-7, ECF No. 134.
Furthermore, the RJR plaintiffs waived their damages
claims to domestic injuries. Id. Second, Plaintiff
argues that its domestic property was injured because of
losses it incurred as a result of its inability to satisfy a
judgment that it obtained in 2011 against an entity connected
to the RICO enterprise. See id. at 7-10. Third, in
applying a different test established by the Central District
of California, Plaintiff argues that this Court should look
to where nearly all of the unlawful conduct took
place-i.e., the United States-in determining where
the economic injury occurred. See id. at 13-15.
Finally, Plaintiff asserts that its domestic business was
injured because it had approximately $1 million of annual
sales to customers in the United States prior to transacting
with the RICO enterprise. See id. at 16.
reply, Sunrise counters that the case upon which Plaintiff
relies is an outlier from the multitude of other district
court decisions applying the RJR holding and is
otherwise distinguishable from the instant case because the
plaintiff in that case maintained substantial business
operations within the United States. See Reply Br.
in Further Supp. of Mot. to Dismiss Pl.'s RICO Claims
(“Defs.' Reply”) 4-8, ECF No. 135. Sunrise
argues that Plaintiff's claim of damage to its domestic
business fails because it never maintained any business
operations within the United States and, therefore, cannot
allege damage to a United States-based business operation.
See id. at 9-10. Sunrise further argues that
Plaintiff's claim of damage to its judgment as property
fails because it is a “downstream effect” of
Plaintiff's initial injury. See id. at 12.
Moreover, Plaintiff's judgment concerns only one
transaction between Sunrise and Cavusoglu, which does not
satisfy a pattern of racketeering as required by law, and
Plaintiff's “lost-debt” theory of damages is
not yet cognizable before the Court. See id. at
13-15. Dicker joins Sunrise's arguments in reply and
further asserts that any RICO claim against him fails because
he has had no relationship or involvement with any of the
parties since 2007. See Letter, ECF No. 136. Sunrise
notes, and Plaintiff does not contest, that the New Jersey
RICO statute is nearly identical to the federal RICO statute.
See Defs.' Mot. at 3 n.2. The Court, therefore,
will consider both claims together.
to Federal Rule of Civil Procedure 12(c), judgment on the
pleadings will be granted only if “the movant clearly
establishes there are no material issues of fact, and he is
entitled to judgment as a matter of law.” Sikirica
v. Nationwide Insurance Co., 416 F.3d 214, 220 (3d Cir.
2005). The court “must view the facts presented in the
pleadings and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party.”
Id. In deciding a motion for judgment on the
pleadings, the court “considers only the complaint, any
attached exhibits, documents relied upon in the complaint,
matters of public record, and any indisputably authentic
documents.” See Hlista v. Safeguard Props.,
LLC, 649 F. App'x 217, 218 n.2 (3d Cir. 2016)
(quotation and citations omitted).
critical question before the Court is whether a foreign
corporation, with its principal place of business located in
a foreign country, can allege a “domestic injury”
under RICO civil liability for predicate acts committed by
U.S. residents while located in the United States. Before
answering that question, the Court will first address the
Supreme Court's analysis of RICO civil liability, which
established that a RICO civil plaintiff must allege a
“domestic injury.” The Court will next consider
decisions issued by various district courts in the aftermath
of the RJR decision, including those brought to the
fore by the parties' papers.
The Domestic ...