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Maribel Delrio-Mocci; Linda Elliot; Robert v. Connolly Properties Inc; David M. Connolly

February 24, 2012

MARIBEL DELRIO-MOCCI; LINDA ELLIOT; ROBERT BOLMER; CHARLSEY SHEPPARD
v.
CONNOLLY PROPERTIES INC; DAVID M. CONNOLLY; DANA AYALA; DANIA MOLINA ROBERT BOLMER, APPELLANT



On Appeal from the District Court for the District of New Jersey (No. 2:08-cv-02753) District Judge: Honorable William J. Martini

The opinion of the court was delivered by: Fuentes, Circuit Judge:

PRECEDENTIAL

Argued on October 5, 2011

Before: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges

OPINION OF THE COURT

Richard Bolmer filed suit against the property managers of Connolly Properties, Inc., alleging that they conspired to harbor illegal aliens and to encourage or induce illegal aliens to reside in the United States in violation of federal law. As a result of the Property Managers‟ conduct, Bolmer claims his apartment complex fell into disrepair, defects and violations were no longer fixed, common areas were rarely cleaned, and criminal activity went unreported. Thus, he says he suffered injury to his leasehold property. The District Court granted the Property Managers‟ Motion to Dismiss, holding that Bolmer failed to state a claim upon which relief could be granted, and he now appeals. For the reasons that follow, we will affirm.

I.

A.

Mr. Bolmer has resided in the Pingry Arms building in Plainfield, New Jersey since February 2004. At some point after he moved in, the apartment building came under the management of Connolly Properties.*fn1 Bolmer alleges that, after Connolly Properties began managing his building, the apartment complex fell into disrepair. Specifically, he claims that Connolly Properties provided inadequate heat; failed to repair locks, his air conditioner, and the roof; failed to regularly clean common areas; allowed the building to become infested with bugs and rodents; permitted overcrowding, flooding, and mold; and turned a blind eye to criminal activity on the premises.

Bolmer asserts that, no later than January 2006, the Property Managers developed a scheme wherein they actively sought out aliens lacking lawful immigration status as prospective tenants. They did so, he says, by hiring a Spanish-speaking leasing agent and directing her to handwrite flyers in Spanish to advertise vacancies. Bolmer claims that the Property Managers told the leasing agent to ask all Spanish-speaking prospective tenants whether they were in this country lawfully and to exempt any aliens not lawfully present from the normal requirements of presenting identification and submitting to commercial background screenings. According to Bolmer, the Property Managers specifically sought out these individuals as tenants because they believed that they were less likely to complain about poor housing conditions or to report housing code violations to the authorities. He maintains that, by renting a substantial number of apartments to aliens not lawfully present, the Property Managers were able to allow their buildings to deteriorate into "slum-like conditions" without offering their tenants any reduction in rent. Bolmer further asserts that the Property Managers segregated those tenants whom they believed to lack lawful immigration status into particular buildings "to avoid their detection by law enforcement and other officials." Appellant‟s Br. 16. He maintains that the Property Managers "acted on a belief that "mixing‟ a largely Hispanic illegal alien tenant population among African-American citizen tenants would provoke disturbances and fights caused by animus between citizens and illegal aliens, and result in entry by law enforcement officer [sic] onto the premises to conduct investigations and arrests." Id. at 17.

B.

Plaintiffs filed this suit in June 2008 and subsequently amended their complaint twice, filing their Second Amended Complaint in December 2008. In Count I, Bolmer alleged that the Property Managers violated the conspiracy provision of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Specifically, he claimed that the Property Managers entered into a conspiracy to engage in an "Illegal Alien Rental Scheme" by renting apartments to aliens not lawfully present under the theory that they were less likely to complain about their housing conditions (or to demand a rent reduction in light of those conditions). The alleged result of this conspiracy was to deny Bolmer and other lawful tenants the full value of their leasehold by enabling the Property Managers to keep the apartment complex in poor condition without reducing rents.

The Property Managers filed a Motion to Dismiss Count I under Federal Rule of Civil Procedure 12(b)(6). The District Court granted their motion, dismissing Count I with prejudice and denying Bolmer‟s Motion for Leave to File a Third Amended Complaint. The District Court held that Bolmer failed to allege the predicate act of harboring and that he therefore failed to state a RICO conspiracy claim upon which relief could be granted. Bolmer filed a Motion for Reconsideration, which the District Court denied. Bolmer then filed a motion for partial final judgment on the District Court‟s April and September Orders, pursuant to Federal Rule of Civil Procedure 54(b), which the Court granted.

Bolmer now appeals the District Court‟s decision.*fn2

II.

We exercise plenary review over the District Court‟s grant of defendants‟ motion to dismiss. Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 83 (3d Cir. 2011). "In reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6), "we accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.‟" Id. at 84 (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A motion to dismiss pursuant to 12(b)(6) may be granted "only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff‟s claims lack facial plausibility." Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Though a complaint "does not need detailed factual allegations, . . . a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

On appeal, Bolmer argues that the District Court erred in finding that he failed to allege a pattern of racketeering activity. Bolmer argues that he adequately pled two RICO predicate acts. First, he asserts that the Property Managers violated 8 U.S.C. § 1324(a)(1)(A)(iii), which prohibits a person from "conceal[ing], harbor[ing], or shield[ing] from detection, or attempt[ing] to conceal, harbor, or shield from detection" an alien who has illegally entered or remained in the United States, "in any place, including any building or any means of transportation." Second, Bolmer asserts that the Property Managers violated 8 U.S.C. § 1324(a)(1)(A)(iv), which prohibits a person from "encourag[ing] or induc[ing] an alien to . . . reside in the United States, knowing or in reckless disregard of the fact that such . . . residence is or will be in violation of law." We address each of these arguments in turn.

A.

Under 8 U.S.C. § 1324(a)(1)(A)(iii) a person is criminally liable if she, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or means of transportation.

We first addressed the question of what conduct constitutes the crime of harboring in United States v. Ozcelik, 527 F.3d 88 (3d Cir. 2008). In that case, Hakan Ozcelik was charged with harboring after he gave general advice to "stay low" to an individual whom he knew to be in the United States illegally. Ozcelik, 527 F.3d at 97. We reversed Ozcelik‟s harboring conviction, holding that "the terms "shielding,‟ "harboring,‟ and "concealing‟ under § 1324 encompass conduct "tending to substantially facilitate an alien‟s remaining in the United States illegally‟ and to prevent government authorities from detecting the alien‟s unlawful presence." Id. (quoting United States v. Rubino-Gonzalez, 674 F.2d 1067, 1073 (5th Cir. 1982)). We added that "[h]olding Ozcelik criminally responsible for passing along general information to an illegal alien would effectively write the word "substantially‟ out of the test we have undertaken to apply." Id. at 101.

We have since reaffirmed our commitment to the test laid out in Ozcelik. See United States v. Cuevas-Reyes, 572 F.3d 119 (3d Cir. 2009); United States v. Silveus, 542 F.3d 993, 1003 (3d Cir. 2008) (noting that "cohabitation with [an alien lacking lawful immigration status], taken alone, does not constitute "harboring‟ within the meaning of the statute"). Moreover, in Lozano v. City of Hazleton, we specifically noted that

"harboring" requires some act of obstruction that reduces the likelihood the government will discover the alien‟s presence. It is highly unlikely that a landlord's renting of an apartment to an alien lacking lawful immigration status could ever, without more, satisfy this definition of harboring. Renting an apartment in the normal course of business is not in and of itself conduct that prevents the government from detecting an alien‟s presence.

Lozano v. City of Hazleton, 620 F.3d 170, 223 (3d Cir. 2010), vacated on other grounds, City of Hazleton v. Lozano, 180 L. Ed. ...


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