Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
PHILADELPHIA TMC, INC. v. AT&T INFORMATION SYS.
December 15, 1986
PHILADELPHIA TMC, INC. individually and trading as TELEMARKETING COMMUNICATIONS OF GREATER PHILADELPHIA
AT&T INFORMATION SYSTEMS, INC.
The opinion of the court was delivered by: NEWCOMER
In this action, plaintiff, Philadelphia TMC, Inc. ("TMC"), seeks monetary damages and injunctive relief stemming from a contractual relationship with the defendant, AT&T Information Systems Inc. ("ATTIS"). ATTIS has moved to dismiss two of plaintiff's claims, one under the Racketeer Influence and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et. seq. (Count VI), and a second claim of fraud (Count II).
For the reasons enumerated below, defendant's motion will be granted, with leave to amend.
This case arises from a commercial transaction in which plaintiff leased telephone switching equipment from the defendant. Plaintiff's amended complaint alleges various defects in the design, and negligence in the service of the equipment. Plaintiff also pleads that defendant acted fraudulently and in violation of RICO. The paragraphs of the complaint relevant to these claims read as follows:
15. On several occasions ATTIS represented to TMC that the Switch could be and would be designed, equipped, set and maintained with secure restriction levels, and that ATTIS could and would service the Switch promptly and expertly.
16. On several occasions ATTIS represented to TMC that ATTIS had designed, equipped, set and maintained the proper restriction levels.
39. ATTIS, by virtue of its aforesaid acts, omissions and misrepresentations, has engaged in conduct which constitutes a pattern of racketeering activity within the meaning of 18 U.S.C. §§ 1961(1) and 1961(5) including, inter alia, (a) acts of transmitting by sounds and signals over interstate wire in conjunction with and in furtherance of a scheme to defraud TMC, which acts are indictable under 18 U.S.C. § 1343; (b) acts of delivering matters to and receiving matters from the United States Postal Service in conjunction with and in furtherance of a scheme to defraud TMC, which acts are indictable under 18 U.S.C. § 1341; and (c) otherwise engaging in conduct specified in 18 U.S.C. § 1961.
40. ATTIS has received income which is derived, both directly and indirectly, from the aforesaid pattern of racketeering activity and has used and/or invested, directly and indirectly, such income and/or the proceeds of such income, or part of such income and/or the proceeds of part of such income, in its operations and in the maintenance, furtherance and operation of its affairs in violation of 18 U.S.C. § 1962(a).
41. ATTIS, which at all time material and relevant hereto has been associated with ATTCOM within the meaning of 18 U.S.C. § 1962(c), has, by virtue of the aforesaid acts, omissions and misrepresentations, conducted and participated, directly and indirectly, in the conduct of ATTCOM's affairs through the aforesaid pattern of racketeering activity in violation of 18 U.S.C. § 1962(c).
Defendant has moved to dismiss the fraud and RICO counts for two reasons. First, defendant argues that the RICO count fails to state a claim under Fed.R.Civ.P. 12(b)(6) and must be dismissed. Second, defendant ATTIS asserts that the plaintiff has not pleaded its RICO and fraud allegations with sufficient particularity as required by Fed.R.Civ.P. 9(b). Defendant also seeks in the alternative, to require a more definite statement as to plaintiff's fraud and RICO claim.
In Count VI, TMC pleads a cause of action under RICO sections 1962(a) and 1962(c). ...
Buy This Entire Record For