The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER
In or around February, 1988, the DiMarco Development Group was formed by Anthony J. DiMarco and his son, Anthony R. DiMarco (hereinafter "DiMarco, Jr.") for the purpose of acquiring and developing real estate and restaurant businesses.
Beginning in 1989, both of the DiMarcos began to suffer extreme financial difficulties which required the borrowing of additional monies from Meridian and Constitution Banks and Bell Savings and Loan Association. In March and April, 1990, the Plaintiff bank was approached by representatives of Meridian Bank and DiMarco, Jr. for the purposes of securing a $ 300,000 demand loan. The loan was to be collateralized by two homes then under construction at a development project known as "Hidden Creek," as well as by DiMarco, Jr.'s personal guarantee. Constitution Bank required DiMarco, Jr. to submit a statement of financial condition which was subsequently prepared by the Defendant Landsburg, Platt & Flax. The statement allegedly did not reflect that DiMarco, Jr. had individually guaranteed several million dollars in loans extended to both the DiMarco Development and the DiLullo entities. Constitution Bank extended the $ 300,000 loan to DiMarco Development Group at "Hidden Creek" on April 19, 1990. That loan was eventually repaid in full.
On October 1, 1990, Constitution Bank extended a second loan, also for $ 300,000 secured only by DiMarco, Jr. and his wife's personal guarantee and it is this loan which is the subject of this civil action. Constitution Bank alleged that they extended this line of credit to DiMarco Development Group based upon a letter dated September 20, 1990 from the Defendants Thomas Dalton and the Landsburg firm which advised that there was no significant change in DiMarco, Jr.'s financial condition since its last report. However, on or about September 21, 1990, Joseph DiLullo had filed for bankruptcy protection exposing DiMarco, Jr. and his wife Janice DiMarco to several hundred thousand dollars in indebtedness as a result of the loan guarantees from the DiMarco-DiLullo ventures.
Plaintiff also alleges that DiMarco, Jr. and his wife, with the assistance and upon the advice of the Defendant Landsburg, Platt & Flax, Christopher Rosser, H. Kenneth Tull and the law firm of Thistle, Moore, Rosser & Tull, gave a $ 200,000 mortgage on their home to the DiMarco Defendants on July 12, 1990, but refrained from recording it until October 30, 1990 to facilitate the procurement of the $ 300,000 line of credit. A second mortgage on the property for $ 100,000 was also given to the DiMarco Defendants on October 16, 1990 which several months later was assigned by Anthony J. to Rose DiMarco alone.
In July, 1991, DiMarco Development Group and DiMarco, Jr. defaulted on their obligations to Plaintiff. Instead of satisfying their indebtedness, DiMarco, Jr. and his wife Janice transferred their remaining assets to the DiMarco Defendants. DiMarco, Jr. and his wife subsequently filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code and as a result have not been named as party defendants in this action due to the automatic stay provisions.
Federal Rule of Civil Procedure 12(c) permits a judgment on the pleadings motion to be made "after the pleadings are closed but within such time as not to delay trial." Paskvan v. City of Cleveland Civil Service Commission, 946 F.2d 1233 (6th Cir. 1991); Damron v. Smith, 616 F. Supp. 424 (E.D. Pa. 1985). A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is subject to the same standard as a Rule 12(b)(6) motion to dismiss. Therefore, viewing all of the facts in a light most favorable to the non-moving party and accepting as true the allegations in that party's pleadings and as false all controverted assertions of the movant, the court may only grant the motion if it is beyond doubt that the non-movant can plead no facts that would support his claim for relief. United States v. Wood, 925 F.2d 1580 (7th Cir. 1991); Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1249, note 11 (D.C. Cir. 1987); International Paper Company v. Inhabitants of the Town of Jay, 736 F. Supp. 359 (D. Me. 1990).
After further review of the motion for partial judgment on the pleadings and the Plaintiff's opposition thereto and using essentially the same standard applied in the Motions to Dismiss, this Court again finds that the Plaintiff's complaint fails in several respects to state a cognizable claim for relief against the DiMarco Defendants under 18 U.S.C. § 1962(c) and section 1962(d).
Plaintiff has still failed to show this Court how they have sufficiently pled the four elements necessary to make out a claim for relief under § 1962(c) of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1961, et. seq.. To do so, Plaintiff's complaint must allege: (1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated, either directly or indirectly, in the conduct or the affairs of the enterprise and; (4) that he or she participated through a pattern of racketeering activity that must include the allegation of at least two racketeering acts. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir. 1989) citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985) and R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1352 (5th Cir. 1985). In addition, the "person" charged with the RICO violation cannot be the same entity as the "enterprise" under section 1962(c). Glessner v. Kenny, 952 F.2d 702, 710 (3d Cir. 1991); B.F. Hirsch v. Enright Refining Co., Inc., 751 F.2d 628, 633-634 (3d Cir. 1984). 18 U.S.C. Section 1961(3) defines ...