Trundy v. Strumsky
U.S. Court of Appeals for the First Circuit
Trundy v. Strumsky
Opinion
USCA1 Opinion
September 3, 1992 [NOT FOR PUBLICATION]
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No. 92-1056
CHRISTOPHER C. TRUNDY, ET AL.,
Plaintiffs, Appellants,
v.
RICHARD STRUMSKY, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Christopher C. Trundy on brief pro se.
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Paul J. McDonald, Steinkrauss & McDonald, Sonia S. Baghdady
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and Gary F. Ritter on brief for appellees.
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Sidney J. Dockser on brief pro se.
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Per Curiam. In 1981 appellant Christopher Trundy and
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appellees Richard and Joanne Strumsky and Edward and Deborah
McCormick formed a debt collection agency called National
Equity Corporation. Trundy held the majority of the
company's stock. The enterprise collapsed in acrimony in
1984. Trundy then sued his four erstwhile co-venturers,
along with appellee Sidney Dockser, their lawyer, and Wayne
Krupsky, an accountant who had worked for National Equity.
He alleged that the six defendants had violated the
Racketeering Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. 1961 et seq., by forcing Trundy out of the
company and converting its assets to their own benefit for
use in a new debt collection agency called North American
Equity. Trundy also asserted a number of pendent state law
claims.
At length the district court heard and granted Wayne
Krupsky's motion for summary judgment. Although the other
defendants had not filed dispositive motions, the district
court granted summary judgment to them, too, ruling sua
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sponte that Trundy had failed to create a triable dispute
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about an essential element of his RICO claim -- the
commission of a "pattern" of predicate racketeering acts.
Trundy appealed. We affirmed the judgment in favor of
Krupsky, but remanded the matter with respect to the other
defendants after finding that Trundy had not received
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sufficient notice of the district court's intention to
subject his claims against those defendants to summary
judgment scrutiny. Trundy v. Strumsky, No. 90-1228 (1st
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Cir., September 26, 1990).
After the remand, the Strumskys, the McCormicks, and
Dockser moved for summary judgment. Trundy submitted an
opposition and the district court, reiterating its opinion
that Trundy had not created a triable issue about the
defendants' alleged commission of a "pattern" of racketeering
activity, gave judgment to the defense. This appeal
followed. We affirm.
Before we can discuss the merits of the appeal we must
dispose of a jurisdictional matter. The amended complaint
named as plaintiffs "Christopher C. Trundy, individually and
in behalf of National Equity Corporation." The notice of
appeal, however, named only "Christopher C. Trundy, et al."
as appellants. It is settled law that a court of appeals
"lacks power to entertain an appeal from a party who is not
specified in the notice of appeal," and that the term "et
al." does not indicate that parties not otherwise designated
intend to join the appeal. Kaiser v. Armstrong World
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Industries, 872 F.2d 512, 513-14 (1st Cir. 1989). Therefore,
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we take this as an appeal only by Trundy "individually," and
not in behalf of the defunct corporation.
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Trundy accused the defendants of violating two
substantive provisions of the RICO statute, 18 U.S.C.
1962(b) and (c), by committing a "pattern of racketeering
activity." His opposition to the defendants' motion for
summary judgment described a number of events which he said
constituted, and made up the "pattern" of, predicate
racketeering acts. With only two exceptions, however, the
source of his description was his unverified amended
complaint. A party who opposes a motion for summary judgment
must establish the existence of a genuine issue of material
fact, and in so doing "may not rest upon mere allegations in,
say, an unverified complaint or lawyer's brief, but must
produce evidence which would be admissible at trial to make
out the requisite issue of material fact." Kelly v. United
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States, 924 F.2d 355, 357 (1st Cir. 1991). See also Fed. R.
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Civ. P. 56(e) (party opposing motion for summary judgment
"may not rest upon the mere allegations or denials" of his
pleadings).
Even if we were to credit the unsupported assertions in
Trundy's amended complaint, we would not find a RICO pattern
in the events he describes. In order to establish a pattern,
a plaintiff "must show that the racketeering predicates are
related, and that they amount to or pose a threat of
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continued criminal activity." H.J., Inc. v. Northwestern
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Bell Telephone Co., 492 U.S. 229, 239 (1989). He can
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establish that the racketeering acts are related by showing
that they "have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and are
not isolated events." Id. at 240. He can establish
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continuity in either of two ways: (1) by showing that the
predicate acts "amount to" continued criminal activity, that
is, "by proving a series of related predicates extending over
a substantial period of time," id. at 242, or (2) by showing
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that the predicate acts pose a threat of continued criminal
activity in that "the racketeering acts themselves include a
specific threat of repetition extending indefinitely into the
future [or] . . . are part of an ongoing entity's regular way
of doing business." Id.
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At the core of the amended complaint are allegations
that various of the defendants committed eleven acts of
extortion in 1984 by threatening Trundy with criminal
prosecution, public embarrassment, or (in one case) physical
harm if Trundy did not surrender his interest in National
Equity. Trundy identified Mr. Strumsky as the source of four
of these threats, and says that Mrs. Strumsky made one
threat, Mr. McCormick another, and Dockser three; he tells us
only that "the defendants" made the other two. Because they
had similar methods of commission and a common goal and
victim, the alleged instances of extortion are sufficiently
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"interrelated by distinguishing characteristics" to satisfy
the relationship requirement set forth by the Supreme Court
in H.J., Inc.
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The allegations of extortion do not, however, establish
the requisite "continuity." First, it is clear that the
defendants' acts do not pose a threat of continued criminal
activity. By Trundy's own account, the extortion ended
nearly eight years ago and nothing in the record even hints
at the possibility of its revival.
Second, the series of extortionate threats did not
amount to continued criminal activity. The Court in H.J.,
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Inc. specifically excluded conduct "extending over a few
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weeks or months" from its definition of a pattern. 492 U.S.
at 242. The extortionate threats here are alleged to have
taken place over a period of eight-and-one-half months,
beginning in late January 1983 and ending in the middle of
September of that year. Their frequency, moreover, can
accurately be described as "sporadic." See H.J., Inc., 492
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U.S. at 239 (a pattern is not formed by "sporadic activity").
Trundy alleges that the defendants made five threats in the
five-day period between January 28 and February 1, one threat
later in February, none in March, one in April, none in May
or June, one in July, none in August, and the last three in
September. Such fitful activity, extending over a period of
only several months, does not demonstrate the continuity
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necessary to form a RICO pattern, see, e.g., Hughes v.
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Consol-Pennsylvania Coal Co., 945 F.2d 594, 611 (3d Cir.
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1991) (acts committed over twelve-month period not a
pattern); J.D. Marshall Int'l, Inc. v. Redstart, Inc., 935
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F.2d 815, 820-21 (7th Cir. 1991) (thirteen months); Kehr
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Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3d
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Cir. 1991) (eight months); Parcoil Corp. v. Nowsco Well
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Service, Ltd., 887 F.2d 502, 503-5 (4th Cir. 1989) (four
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months); Sutherland v. O'Malley, 882 F.2d 1196, 1204-5 (7th
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Cir. 1989) (five months), especially where, as here, the
events are merely the constituent parts of a "single criminal
episode." Apparel Art Int'l, Inc. v. Jacobson, No. 91-2070
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(1st Cir., June 26, 1992), slip op. at 7-9; cf. H.J., Inc.,
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492 U.S. at 240 (proof that the defendant "has been involved
in multiple criminal schemes would certainly be highly
relevant to the inquiry into . . . continuity").
Trundy contends that the relevant events in this case
occurred over a period of thirty-four rather than eight-and-
one-half months. He obtains the higher figure by counting as
predicate acts the alleged filing of a fraudulent tax
document by Mrs. Strumsky in September 1985, and the
incorporation of the second debt collection agency, North
American Equity, in November 1986.
Trundy's calculation is inconsistent with the logic of
RICO's pattern requirement. We suppose that the
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incorporation of North American Equity might be deemed
"related" to the extortion in an attenuated sense. One can
infer relatedness by assuming that the act of incorporation
essentially renamed what was once National Equity, and thus
represented the coup de grace in a struggle for control of
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the enterprise that began with the alleged extortion.
Yet however related it may be to the earlier threats,
the incorporation of North American Equity was not a
predicate crime, and if a defendant's misdeed is not
"racketeering activity," it cannot form an element of a RICO
pattern. See Fleet Credit Corp. v. Sion, 893 F.2d 441, 445
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(1st Cir. 1990). "Racketeering activity" is defined in 18
U.S.C. 1961(1) to mean the commission of specific crimes,
including mail fraud in violation of 18 U.S.C. 1341 and
wire fraud in violation of 18 U.S.C. 1343. We take it that
Trundy considers the incorporation fraudulent, but common
fraud is not racketeering activity, see Fleet Credit Corp. v.
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Sion, 893 F.2d at 445, and we cannot assume that the act of
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incorporation violated either Section 1341 or Section 1343
absent evidence that the fraud was accomplished through use
of the mails or interstate wires. The assertions to that
effect in Trundy's appellate brief do not suffice. See
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Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 n.2 (1st Cir.
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1988) ("representations in a brief are an impuissant
surrogate for a record showing").
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The allegedly fraudulent tax filing -- whether or not it
was accomplished by mail or wire -- was not related to the
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extortion in the sense demanded by the definition of a RICO
pattern. According to Trundy, the fraud consisted of the
false representation in a tax return that Trundy alone was
responsible for National Equity's unpaid taxes; it thus
appears to have been aimed not at the hijacking of National
Equity, but at saddling Trundy with a debt that properly
belonged to the defendants as well. Mrs. Strumsky's effort
to avoid tax liability was "too separate, too distinct . . .
to permit a finding that, taken together with the earlier
acts, it is part of a racketeering 'pattern.'" Apparel Art
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Int'l, Inc. v. Jacobson, supra, slip op. at 12-13.
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The judgment of the district court is affirmed.
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