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Farmer v. D&O Contractors, Inc.

United States District Court, E.D. Louisiana

March 13, 2015

STEPHEN P. FARMER ET AL
v.
D&O CONTRACTORS, INC. ET AL

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court is a motion[1] filed by defendants, D&O Contractors, Inc., John Michael O'Malley, and Daniel P. Wagner (collectively, the "D&O Defendants"), to dismiss the abovecaptioned matter pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants Jeff Difatta ("Difatta"), Lance Licciardi ("Licciardi"), and Randy Nunez ("Nunez") joined in the D&O Defendants' motion.[2] Additionally, defendant, Perry M. Nicosia ("Nicosia"), filed a similar motion[3] to dismiss pursuant to Rule 12(b)(6). Plaintiffs oppose all the motions to dismiss.[4]

As discussed at the February 9, 2015 status conference, the Court, with the consent of counsel, considers the above-described motions to dismiss as motions for summary judgment.[5] For the following reasons, such motions are GRANTED.

Also before the Court is a motion[6] filed by Nicosia for sanctions pursuant to Rule 11. Plaintiffs oppose the motion.[7] For the following reasons, such motion is DENIED.

BACKGROUND

Plaintiffs were debris-removal subcontractors who worked in St. Bernard Parish in the aftermath of Hurricane Katrina.[8] Plaintiffs allege that defendants demanded "protection money" and wrongfully diverted payments for work that plaintiffs performed.[9] This alleged activity eventually led plaintiff, Stephen P. Farmer ("Farmer"), to approach the FBI in June 2006 because he believed that he was the victim of a crime.[10] Farmer agreed to operate as an FBI informant during its investigation into defendants' alleged activity.[11] In October 2010, the FBI closed its investigation which did not result in any indictments.[12]

After the close of the investigation, Farmer consulted counsel regarding his potential civil claims.[13] Plaintiffs filed the original complaint in this matter on July 30, 2012, in the U.S. District Court for the Northern District of Mississippi, [14] asserting claims pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and Louisiana's equivalent statute, the Louisiana Racketeering Act, La. Rev. Stat. § 15:1351 et seq. [15] On August 22, 2014, the above-captioned matter was transferred to this Court, [16] and the D&O Defendants' motion to dismiss, along with the joinders filed by Difatta, Licciardi, and Nunez, were taken under advisement by the Court on December 3, 2014.[17]

Nicosia was added as a defendant in plaintiffs' first amended complaint which was filed on December 2, 2014.[18] On January 13, 2015, before plaintiffs had even served him, Nicosia filed his motion for sanctions, and such motion was taken under advisement on February 4, 2015.[19] Nicosia was eventually served on February 24, 2015.[20]

Following the February 9, 2015 status conference, during which the Court advised counsel, without objection, that the motions to dismiss would be treated as motions for summary judgment, the parties were afforded the opportunity to file additional briefing and such motions were taken under advisement on February 18, 2015.[21] Plaintiffs filed a second amended complaint on February 20, 2015.[22] Nicosia filed his motion to dismiss on February 18, 2015, which was taken under advisement on February 25, 2015.[23]

LAW AND ANALYSIS

I. Summary Judgment

A. Standard of Law

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine issue of material fact. See Fed.R.Civ.P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id. ; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating "some metaphysical doubt as to the material facts, ' by conclusory allegations, ' by unsubstantiated assertions, ' or by only a scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish ...


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