Ulbin v. FedEx Ship Center et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
JAMES ULBIN, )
)
Plaintiff, )
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v. ) C.A. No. 23-508 WES
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FEDEX SHIP CENTER, et al., )
)
Defendants. )
___________________________________)
ORDER
WILLIAM E. SMITH, District Judge.
Before the Court is Magistrate Judge Sullivan’s Report and
Recommendation (“R&R”), ECF No. 4, recommending that Plaintiff’s
Complaint be dismissed and Motion for Leave to Proceed In Forma
Pauperis (“IFP Motion”) be denied as moot. Plaintiff’s Objection
to the R&R, ECF No. 5, does not respond to the merits of Judge
Sullivan’s R&R but, rather, moves for leave to file an amended
complaint. See Pl.’s Obj. R&R with Pl.’s Request Mot. Leave File
Am. Compl. (“Mot.”), ECF No. 5; Proposed Am. Compl., ECF No. 5-1.
The Court will construe Plaintiff’s Objection as a motion for
leave.
Plaintiff’s Proposed Amended Complaint (“PAC”) invokes the
following statutes as “private action[s]”: 18 U.S.C. § 3 (federal
criminal statute criminalizing being an accessory after the fact);
18 U.S.C. § 1016 (federal criminal statute establishing crime of
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making a false acknowledgement as an oath administrator); 18 U.S.C.
§ 1017 (federal criminal statute establishing crime of
fraudulently affixing the seal of the United States). Mot. 2. As
noted in the R&R, as a private citizen, Plaintiff “cannot bring a
civil action to prosecute a crime.” R&R 3 (citing Cok v.
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989)). Therefore, Plaintiff
cannot bring the above criminal statutes as claims.
The PAC also invokes the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act. Mot. 2. To plead civil RICO, the
plaintiff must establish four elements: “(1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering activity.”
R&R 2 n.1 (quoting Langan v. Smith, 312 F. Supp. 3d 201, 204 (D.
Mass. 2018)). Even construing his PAC liberally in light of his
pro se status, Plaintiff fails to allege facts sufficient to
establish any of the elements required to state a claim for civil
RICO.
Because Plaintiff cannot bring criminal statutes as claims
and does not state a claim for civil RICO, Plaintiff has failed to
invoke the Court’s federal question jurisdiction. See 28 U.S.C.
§ 1331. Like his original Complaint, Plaintiff’s PAC “appears to
be asserting a state law claim against his landlord, possibly for
breach of the lease agreement and/or for violation of Rhode Island
statutory or common law governing the relations between landlords
and tenants.” R&R 2.
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Plaintiff wants to drop FedEx Ship Center and ReMax
Professionals, and add Christopher F. DePalo, Esq., Michael J.
Ulbin, and Michael J. Lepizzera, Jr., as defendants. Mot. 2. For
the Court to maintain diversity jurisdiction, there must be
complete diversity among the parties. See Alvarez-Torres v. Ryder
Mem’l Hosp., Inc., 582 F.3d 47, 54 (1st Cir. 2009) (“[D]iversity
jurisdiction does not exist where any plaintiff is a citizen of
the same state as any defendant.”). Plaintiff’s change of parties
does not cure the lack of complete diversity that Judge Sullivan
identified. R&R 3. Plaintiff is a Rhode Island citizen. Id. at
1. Steve Erinakes, Plaintiff’s landlord who is still named as a
Defendant, is a Rhode Island citizen. Id. Further, based on the
exhibits submitted by Plaintiff in support of his motion for leave,
it appears that Mr. DePalo and Mr. Ulbin are Rhode Island citizens.
See PXB, Waiver of Notice (Mar. 29, 2022), ECF No. 5-2; PXP, Notice
of Hearing (Oct. 10, 2023), ECF No. 5-16. Because complete
diversity does not exist among the parties, the Court lacks subject
matter jurisdiction over Plaintiff’s possible state law claims.
See 28 U.S.C. § 1332.
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Accordingly, after careful review, the Court ADOPTS the
reasoning and recommendations of Magistrate Judge Sullivan’s R&R,
ECF No. 4, in full. In addition, the Court DENIES AS MOOT
Plaintiff’s IFP Motion, ECF No. 2, and DENIES Plaintiff’s Motion
for Leave to File an Amended Complaint, ECF No. 5.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: January 16, 2024
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