Bogosian v. Rhode Island Airport Corporation et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM WITH SUPPORTING MEMO

D.R.I.January 27, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND GREGG BOGOSIAN, : : Plaintiff, : : v. : C.A. No. 17-CV-16 : RHODE ISLAND AIRPORT CORPORATION : (T.F. GREEN AIRPORT); PETER FRAZIER; : DAVID A. WOLLIN; REBECCA F. BRIGGS; : and ADAM M. RAMOS : : Defendants. : _________________________________________ : DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT WITH PREJUDICE Defendants Rhode Island Airport Corporation, Peter Frazier, David Wollin, Rebecca Briggs, and Adam Ramos move, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Plaintiff Gregg Bogosian’s complaint with prejudice. Defendants rely upon the attached memorandum of law in support of this motion. RHODE ISLAND AIRPORT CORPORATION; and PETER FRAZIER By their Attorneys, David A. Wollin David A. Wollin (#4950) Adam M. Ramos (#7591) Rebecca F. Briggs (#8114) HINCKLEY, ALLEN & SNYDER LLP 100 Westminster Street, Suite 1500 Providence, RI 02903 T: (401) 274-2000 F: (401) 277-9600 dwollin@hinckleyallen.com aramos@hinckleyallen.com rbriggs@hinckleyallen.com Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 1 of 30 PageID #: 240 2 DAVID A. WOLLIN; REBECCA F. BRIGGS; and ADAM M. RAMOS By their Attorneys, William R. Grimm William R. Grimm (#1938) HINCKLEY, ALLEN & SNYDER LLP 100 Westminster Street, Suite 1500 Providence, RI 02903 T: (401) 274-2000 F: (401) 277-9600 wgrimm@hinckleyallen.com Dated: January 27, 2017 Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 2 of 30 PageID #: 241 3 CERTIFICATE OF SERVICE I hereby certify that on the 27th day of January, 2017, a copy of the foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system. In addition, a true and accurate copy of the within document was mailed to the following: Gregg S. Bogosian 10 Dexterdale Drive Warwick, Rhode Island 02886 T: (401) 884-4168 gb@gbogo.com /s/ David A. Wollin Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 3 of 30 PageID #: 242 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND GREGG BOGOSIAN, : : Plaintiff, : : v. : C.A. No. 17-CV-16 : RHODE ISLAND AIRPORT CORPORATION : (T.F. GREEN AIRPORT); PETER FRAZIER; : DAVID A. WOLLIN; REBECCA F. BRIGGS; : and ADAM M. RAMOS : : Defendants. : _________________________________________ : DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS THE COMPLAINT WITH PREJUDICE Defendants Rhode Island Airport Corporation (“RIAC”), Peter Frazier, David Wollin, Rebecca Briggs, and Adam Ramos submit this memorandum of law in support of their motion to dismiss Plaintiff Gregg Bogosian’s complaint with prejudice. Bogosian is a disgruntled pro se plaintiff who, along with his wife, filed a multi-count false arrest case against RIAC and certain RIAC police officers following his arrest at T.F. Green Airport on July 31, 2012. Bogosian, et al. v. Rhode Island Airport Corp., et. al, 14-080-ML (D.R.I.) (Bogosian I). At present, all but three claims have been dismissed by Judge Lisi or the First Circuit, and the remainder will be the subject of further summary judgment briefing on remand. Apparently upset that he has not achieved the success he hoped for in that separate litigation (after five attorneys previously represented him and then withdrew), Bogosian (but not his wife) has filed this lawsuit against RIAC, its General Counsel Peter Frazier and defense counsel for the defendants in Bogosian I - Attorneys Wollin, Ramos, and Briggs. Bogosian’s Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 4 of 30 PageID #: 243 2 instant suit is not only a repeat of many of the specious pro se allegations he has made in one form or another in Bogosian I. It is an improper attempt to harass and punish those with any connection to the defendants in Bogosian I and to pressure a settlement in that lawsuit. See Bogosian I (Dkt. No. 101, at Exh. 9) (Bogosian threatening to take action against defense counsel if a settlement does not occur). Defendants respectfully request that this Court dismiss all of Bogosian’s baseless claims with prejudice as the complaint fails for several independent reasons. First, Bogosian fails to meet the applicable pleading standards - Fed. R. Civ. P. 8 and 9(b) - because no factual basis exists to support his claims. Indeed, any factual allegations in his complaint are directed instead against his former counsel, none of whom he has decided to sue (at present). Second, his hyperbolic and non-factual assertions against the Defendants in this case are duplicative of claims that Bogosian has already raised in Bogosian I and are nothing more than impermissible claim-splitting. Third, and equally fatal, each of Bogosian’s individual claims fails to state a viable claim as a matter of law. I. RELEVANT BACKGROUND A. Bogosian I On October 23, 2013, Bogosian and his wife1 filed suit in Rhode Island Superior Court against RIAC and Rhode Island Airport Police Officers Stephen Reis, Charles Hall, and John Kingston. Defendants subsequently removed the case to this Court and the matter was assigned to Judge Mary Lisi. Bogosian I (Dkt. No. 1).2 In that suit, Bogosian asserted nine counts arising 1 The original suit also included the Bogosians’ minor child, but she was dismissed from the case after their counsel withdrew and no one entered an appearance for the child. Bogosian I (Dkt. No. 99). 2 This Court may take judicial notice of matters of public record such as court filings when assessing a motion to dismiss without converting it to a motion for summary judgment. See, e.g., Kolbe v. BAC Home Loans Servicing, L.P., 738 F.3d 432, 479 (1st Cir. 2013) (citation omitted); Murphy v. Cent. Falls Det. Facility Corp., C.A. No. 14- 203S, 2014 U.S. Dist. LEXIS 183690, at *6 n.2 (D. R.I. Dec. 16, 2014) (listing cases). Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 5 of 30 PageID #: 244 3 out of his arrest at the lower level Arrivals area at the T.F. Green airport after failing to provide his license and registration, or otherwise identify himself, upon request. Id. (Dkt. Nos. 1-2; 86 at 5:11-6:7). Bogosian and his wife filed counts for intentional and negligent infliction of emotional distress, deprivation of privacy, assault and battery, wrongful arrest and imprisonment, malicious prosecution, loss of consortium, negligent training and supervision, and illegal search and seizure. Id. (Dkt. No. 1-2, ¶¶ 17-58). Bogosian was initially represented by Attorneys Neil Philbin and James Callaghan. Bogosian I (Dkt. Nos. 1-3, 4). After Philbin and Callaghan withdrew, Mark Romano and Giovanni Cicione entered their appearances. Id. (Dkt. Nos. 11-13, 31). They later withdrew, and the Bogosians were represented by a fifth attorney - Karen Oliveira - who ultimately withdrew her appearance as well. Id. (Dkt. Nos. 44-45, 87). Throughout the lawsuit, Attorneys Wollin, Ramos, and Briggs have served as defense counsel for the defendants in Bogosian I. Id. (Dkt. Nos. 1, 6, 66). On March 13, 2015, following the close of fact discovery, defendant police officers Reis, Hall, and Kingston moved for summary judgment as to the eight counts asserted against them based on the doctrine of qualified immunity. Bogosian I (Dkt. No. 33) (seeking summary judgment on all counts except for the negligent training and supervision claim against RIAC). Even accepting Bogosian’s version of events as informed by the arrest video and a recording of Bogosian’s 911 call to the Rhode Island State Police, the defendant officers argued they were justified in arresting Mr. Bogosian and searching his car when he refused repeated Airport Police commands to provide his license and registration in the busy Arrivals area of the T.F. Green Airport after he violated traffic laws permitting only active loading and unloading of passengers and baggage near the terminal. Id. at 21-38. In short, the officers argued that they were entitled Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 6 of 30 PageID #: 245 4 to qualified immunity because they did not violate the Bogosians’ constitutional rights. Id. And, even assuming, arguendo, any violation occurred, any such rights were not clearly established at the time of the incident such that a reasonable officer would have understood that his conduct would violate them. Id. at 38-43. On May 8, 2015, based on the undisputed facts, Judge Lisi granted summary judgment on the basis of qualified immunity on the false arrest, malicious prosecution, and search and seizure claims. Bogosian I (Dkt. No. 72). Judge Lisi concluded that Bogosian violated Rhode Island law when he was not actively loading or unloading his vehicle in the Arrivals area and when he refused to provide his license and registration upon request of Officer Reis and Sergeant Hall. Bogosian I (Dkt. No. 86). As a result, Judge Lisi ruled there was probable cause for Bogosian’s arrest and search of his vehicle. Id. She reasoned: THE COURT: Okay. Then I’ll make my rulings. What is undisputed here, and there are very few facts and that’s why I feel comfortable in rendering an oral decision based on what are truly undisputed facts, is that Mr. Bogosian went to the airport. He dropped off his wife, mother- in-law and daughter on the upper tier, the arrivals or the departure section. And after they had left his car, he was told he couldn’t wait there because that area, like the area below, is a loading and unloading zone, clearly marked. Mr. Bogosian then proceeded to the lower level, where he again stopped his car. And the video depicts him being in that location, again, a loading or unloading zone, not picking anybody up, not leaving anyone off, for not a long period of time, before the police officer arrived. I think it was around 19 and a half seconds before the police officer arrived; I think that was Officer Reis, who is clearly in uniform. He is shown trying to talk to the driver. There’s no response. Mr. Bogosian has admitted that there was no response. And then at some point Mr. Bogosian was asked for his license and registration, which he did not produce. Instead, he made a phone call. And so there are several violations of Rhode Island law encapsulated in that short interchange between Mr. Bogosian and Officer Reis. The other two police officers, Hall and Kingston, then arrived to assist. Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 7 of 30 PageID #: 246 5 And in my judgment, whether based on the doctrine of qualified immunity because of the short time frame, but even that supports the Defendants’ claim here, there was at least a minute and a half where no one of the Plaintiff’s family approached that vehicle to get in; he was clearly in violation of Rhode Island law when he refused to leave. He was clearly in violation of Rhode Island law when he did not produce his license and registration, as requested by the police officer who was in uniform. With those clearly undisputed and indisputable facts, because they are on video, the Court believes that the motion with respect to Counts V and VI and IX should be and they are hereby dismissed. Count V is wrongful arrest and imprisonment. As I said, the police certainly had probable cause at the point that Mr. Bogosian was taken into custody because of his parking in that zone and his then refusal or failure to give his license and registration when requested. Malicious prosecution, it must follow, also must be dismissed if the arrest was properly done. And illegal search and seizure, the police, once a Defendant is taken into custody, can perform the necessary custodial search to determine whether or not the Defendant is armed, and the cursory examination of the automobile clearly is permissible as well. So Counts V, VI and IX of the complaint are dismissed. Bogosian I (Dkt. No. 86 at 5:11-7:16). With respect to the remaining state law counts, Judge Lisi noted that “it’s not really clear to me what they’re about.” Id. at 11:8-9. Judge Lisi stated: “I’m denying it [the summary judgment motion] because on those [remaining state law] counts, they’re not as clear-cut, frankly. I don’t know what some of those mean.” Id. at 11:1-3. Without elaboration, Judge Lisi added there were “some factual disputes that I cannot resolve in favor of granting the motion” and thus denied the motion as to the additional state law claims for intentional and negligent infliction of emotional distress, deprivation of privacy, assault and battery, and loss of consortium. Id. at 11:11-14. The police officers timely filed an interlocutory appeal to the First Circuit on the intentional and negligent infliction of emotional distress, deprivation of privacy, assault and Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 8 of 30 PageID #: 247 6 battery, and loss of consortium claims. Bogosian I (Dkt. No. 74).3 Judge Lisi granted a stay of the proceedings pending the appeal. Id. (June 30, 2015 Text Order). Subsequently, the Bogosians’ last attorney withdrew from the case. Id. (Dkt. No. 87). Despite the stay, and no longer represented by counsel, the Bogosians filed four successive pro se sanctions motions against the defendants and defense counsel, even though their five previous attorneys never did so throughout the entirety of the lengthy case. Bogosian I (Dkt. Nos. 98, 100, 103, 107, 109); see also id., Order (Dkt. No. 110 at 2-3) (listing the motions for sanctions and default judgment and other filings) (Exhibit 1).4 The Bogosian I defendants and their counsel - Wollin, Ramos, and Briggs - objected, noting that the motions were an illegitimate response to the Court’s ruling granting partial summary judgment and an attempt to retaliate against defendants and defense counsel for unsuccessfully moving for sanctions against Bogosian earlier in the case. Bogosian I (Dkt. No. 101 at 3).5 Defense counsel noted that the sanctions motions and the other vexatious filings included thinly veiled threats against numerous persons including defense counsel, plaintiffs’ former attorneys, Judge Lisi, the appellate Clerk, and the entire First Circuit. Id. at 15. In response, Judge Lisi ruled that “[a]ll four of the 3 Plaintiffs in Bogosian I also filed an appeal. Bogosian I (Dkt. No. 80). The First Circuit dismissed that appeal for lack of jurisdiction on November 13, 2015. Bogosian et al. v. Reis, et al., No. 15-1713 (1st Cir.) (Order Apr. 28, 2016). 4 For instance, the Bogosians’ motions for sanctions, to the extent any allegations were comprehensible, argued that defendants (and defense counsel) violated the protective order entered in the case by using their own depositions in support of summary judgment without filing them under seal and/or violated the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) by serving subpoenas seeking information about Bogosian’s past medical and employment history, issues of relevance in the lawsuit. See Bogosian I (Dkt. No. 101 at 9-14) (defendants’ response). Bogosian also bizarrely charged that defendants (and defense counsel) spoliated evidence by allegedly erasing the arrest video that existed, was part of the summary judgment record, and served as the basis for Judge Lisi’s summary judgment ruling. Id. at 14. 5 Defendants had moved for sanctions against Bogosian for improperly disclosing RIAC’s confidential information. Bogosian I (Dkt. No. 47) (Sealed Mot. for Sanctions). The Court denied defendants’ motion, ruling that they did not meet their burden of proving that Bogosian improperly disclosed RIAC’s confidential information, but noted that Bogosian’s testimony was evasive. Bogosian v. R.I. Airport Cor., No. 14-080-ML, 2015 U.S. Dist. LEXIS 73130, at *13-15 (D.R.I. June 5, 2015). Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 9 of 30 PageID #: 248 7 Plaintiffs’ motions contain unsupported allegations, scurrilous accusations, personal attacks, inappropriate language, and what could be perceived as veiled threats.” Id. (Dkt. No. 110 at 3) (Exhibit 1). Accordingly, Judge Lisi prohibited the Bogosians from filing any other motions or making any other filings in Bogosian I “until such time as the appeal has been decided.” Id. (“Failure of either Plaintiff to adhere to this Court’s order will result in sanctions pursuant to Fed. R. Civ. P. 11.”) On January 4, 2017, the First Circuit issued its ruling in favor of the defendant officers, granting summary judgment to them on the intentional and negligent infliction of emotional distress and deprivation of privacy claims. Bogosian I (Dkt. No. 112) (judgment in 1st Cir. Doc. No. 15-1681). The First Circuit vacated Judge Lisi’s summary judgment denial as to the assault and battery claim (and related loss of consortium claim) and remanded for her to reconsider the assault and battery claim through the lens of an excessive force claim. Id. at 1, 4. Thus, there are only three remaining claims in Bogosian I - the assault and battery claim, the related consortium claim, and the negligent training and supervision claim against RIAC. On January 3, 2017, Judge Lisi issued an order allowing defendants in Bogosian I to file a supplemental memorandum of law by February 10, 2017 on the issues raised by the First Circuit’s remand. Id. (Dkt. No. 115). The Bogosians’ response is due by February 27, 2017. Id. B. Facts Alleged in the Instant Suit On December 30, 2016, just prior to the First Circuit’s ruling, Bogosian filed this pro se lawsuit (“Bogosian II”) in Rhode Island Superior Court, asserting additional claims arising from the same arrest and the same proceedings that are the subject of Bogosian I. Defendants timely removed the lawsuit to this Court. Bogosian II (Dkt. No. 1). In this matter, Bogosian sued Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 10 of 30 PageID #: 249 8 RIAC again, and added RIAC’s General Counsel, Peter Frazier,6 and defense counsel in Bogosian I as defendants. Bogosian II, Dkt. No. 1, Exh. 1 (“Compl.”). Virtually none of Bogosian’s allegations that could even remotely be considered “facts” - other than the section defining the parties - have anything to do with named defendants in this lawsuit. Id. at 2-18. Instead, Bogosian’s complaint focuses on the events leading to his arrest that are the subject of his separate suit in Bogosian I, perceived wrongs from the criminal proceedings that followed his arrest at the airport, and his prior attorneys’ failings in prosecuting Bogosian I (none of whom are defendants in this matter). The only allegations in the complaint even remotely related to Defendants are hyperbolic and conclusory assertions devoid of facts that were largely raised in Bogosian I, either in the proceedings themselves or in the pro se sanctions motions. They are summarized as follows: Defendants • ¶¶ 2-6 - definition of each Defendant • p. 2 - two references to “Defendant(s)” and “Scorched-Earth” campaign or attacks Wollin, Ramos, and/or Briggs Wollin Has Contacts with Others in the Rhode Island Legal Community • ¶¶ 17, 22 - Allegations that Bogosian’s prior attorney Giovanni Cicione knows Wollin, they worked together in the past, and had a settlement discussion regarding Bogosian I. • ¶ 32 - Judge Lisi in Bogosian I allegedly appointed Wollin to “one or more positions within the Rhode Island Legal System,” and they know each other. Bogosian’s Prior Counsel Did Not Sufficiently Litigate Against Wollin • ¶ 24 - Mr. Cicione refused to sanction Wollin for allegedly “intentionally conceal[ing]” evidence in Bogosian I. 6 http://www.pvdairport.com/corporate/rhode-island-airport-corporation. Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 11 of 30 PageID #: 250 9 • ¶ 44 - Another of Bogosian’s prior attorneys, Karen Oliveira, “let Mr. Wollin get away with” breaching a federal protective order. Alleged Breach of Protective Order, Pursuit of Discovery, Assassination of Bogosian’s Character, Refusal to Acknowledge Bogosian is Handicapped, Concealment of Evidence, and/or Fraud in Bogosian I • ¶ 29 - In Bogosian I, “Wollin and Associates,” presumably Ramos and Briggs, went on “Fishing Expeditions” with the outcome of “Assassination of [Bogosian’s] Character.” • ¶ 31 - “Mr. Wollin and Associates et al … committed Fraudulent Acts” including “Fraud, Slander, Fraud Upon the Court, Filing False Court Documents, Civil Conspiracy, Perjury, Witness Tampering and ADA Violations.” • ¶¶ 35-36, 113 - Wollin “coached” Judge Lisi, “a friend of his, and she did not care if what she said was false”; and he intentionally refused to tell Judge Lisi that Bogosian was handicapped. • ¶¶ 44-45 - “Wollin and Associates,” presumably Ramos and Briggs, breached a federal protective order. • ¶ 78 - “Wollin and Associates,” presumably Ramos and Briggs, “knew it was Illegal for the CEO of the company being sued,” presumably Frazier, “to sit in on ‘Confidential’ legal proceedings and continued with the corrupt agenda of, but not limited to, fraud and corruption against” Bogosian. • ¶¶ 84-99 - “Wollin and Associates” issued “slanderous subpoenas” and used “no- holds-barred” or “Scorched-Earth” litigation tactics that ruined Bogosian’s life and were a “twisted plot to fabricate false accusations.” “Wollin and Associates” did not care about the harm to Bogosian which includes that “past Employers would not return phone calls for a job.” The discovery accessed included “Plaintiff tax returns.” “Wollin and Associates” filed for sanctions against Bogosian but lost. • ¶¶ 101-106 - “Wollin and Associates” concealed unspecified evidence, committed litigation fraud, and tried to paint a “fraudulent and deceitful” picture of Bogosian, lied to the court by filing unspecified false documents, refused unidentified discovery requests, and knew they had no basis for an argument against Bogosian. Frazier • ¶ 77 - “Interim President and CEO, while at the same time, holding eighty-percent (80%) of the Executive Positions within RIAC” sat in “on all ‘Confidential’ legal proceedings including ‘Confidential’ Depositions.” • ¶¶ 79-83 - Frazier “had absolutely no legal right sitting in on lawsuit proceedings against the Corporation he works for”; “‘ruined’ [Bogosian I] by acting in a, but not Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 12 of 30 PageID #: 251 10 limited to, ‘corrupt, deceitful, fraudulent and hostile’ manner toward” Bogosian; “was illegally allowed to ‘spy’ on” Bogosian which he knew to be “corrupt, fraudulent and illegal”; “was ‘illegally’ brought into ‘Confidential’ meetings in an effort to obtain information and ideas to ‘fraudulently and illegally’ use against the Plaintiff(s) in litigation”; and “took unspecified ‘illegally obtained information’ and passed it on to the Airport Security, Airport Employees,” and RIAC. • ¶¶ 108-110 - Frazier is “DELUSIONAL,” holds various positions at RIAC and has a conflict of interest that is “inexcusable,” is a “MAN OF MANY FACES,” and is disqualified “from sitting on legal proceedings against the company he controls” by virtue of his many positions. RIAC • ¶ 100 - “‘RIAC’ Defendants intentionally lied under oath.” As discussed more fully below, none of these conclusory assertions can serve as a basis for any valid claims against the Defendants in this case. II. ARGUMENT A. Bogosian Fails to Meet the Applicable Pleading Standards This Court must dismiss the complaint if it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Although pro se complaints are “held to a less stringent standard than one drafted by a lawyer” and are thus “to be read . . . with an extra degree of solicitude,” a plaintiff’s “pro se status does not excuse him from complying with procedural rules.” Slay v. Bank of Am. Corp., No. 10-408 ML, 2011 U.S. Dist. LEXIS 27803, at *21 (D. R.I. Mar. 9, 2011) (citations and quotations omitted). Even pro se complaints must meet the standards set forth under Federal Rule of Civil Procedure 8(a)(2), 9(b), and Iqbal and Twombly. See id. at *25-26. To survive a motion to dismiss, Bogosian’s complaint “must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The First Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 13 of 30 PageID #: 252 11 Circuit applies a “two-step pavane” to determine whether a complaint meets this plausibility standard. A.G. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citation omitted). First, courts must “separate the complaint’s factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Legal allegations and conclusions are not credited for purposes of assessing the plausibility of the claims. Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013). Then, courts must “determine whether the remaining factual content allows a ‘reasonable inference that the defendant is liable for the misconduct alleged.’” A.G., 732 F.3d at 80 (quoting Morales-Cruz, 676 F.3d at 224). In particular, conclusory statements “presented as an ipse dixit, unadorned by any factual assertions that might lend it plausibility,” are insufficient to pass the plausibility threshold. Id. at 80-81. “When allegations, though disguised as factual, are so threadbare that they omit any meaningful factual content, we will treat them as what they are: naked conclusions.” Id. at 81 (listing cases); see also Slay, 2011 U.S. Dist. LEXIS 27803, at *28-29 (in assessing pro se complaint, noting that allegations that “are no more than conclusions are not entitled to the assumption of truth”) (citation omitted). Evaluated against this standard, and separating any factual allegations from “conclusory legal allegations,” A.G., 732 F.3d at 80, Bogosian’s entire complaint fails as a matter of law as it does not contain any factual basis for the claims asserted against the Defendants and must be dismissed. The complaint is completely devoid of any factual basis for the vague and conclusory assertions of misconduct and fails under the plausibility standard. Id. Indeed, the only factual allegations that can be gleaned are asserted against Bogosian’s former attorneys, not the Defendants. Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 14 of 30 PageID #: 253 12 A few examples will suffice. Bogosian baldly alleges that defense counsel in Bogosian I -- Wollin, Ramos and Briggs -- committed unspecified “Fraudulent Acts” in that case, including “Fraud, Slander, Fraud Upon the Court, Filing False Court Documents, Civil Conspiracy, Perjury, Witness Tampering and ADA Violations.” Bogosian II, Compl. ¶ 31. Yet, Bogosian fails to describe a single fraudulent act or false document in support of this bold, multi-layered conclusion. In another instance, Bogosian alleges that Wollin, Ramos, and Briggs breached a federal protective order and a Presidential Executive Order. See, e.g., id. at ¶¶ 44-45. Yet again, Bogosian fails to identify any specific provisions of any federal protective order or Presidential Executive Order at issue, nor does he even identify any actions that resulted in this alleged breach. The same is true of Bogosian’s allegations that they issued “slanderous subpoenas,” used “no-holds barred” or “Scorched-Earth” litigation tactics, or sought his tax returns. Not surprisingly, the docket in Bogosian I is bereft of any such allegations from Bogosian’s prior attorneys. Of similar ilk is Bogosian’s vague assertion that “Wollin and Associates” refused to tell Judge Lisi that he was handicapped. This is ridiculous since Bogosian’s own complaint in Bogosian I informed the Court that he claims to be handicapped. Bogosian I (Dkt. No. 1-2 at ¶ 11). Moreover, this assertion is belied by Defendants’ filings in Bogosian I that plainly acknowledge his use of a handicapped placard. Id. (Dkt. 33 at p. 8) (“Mr. Bogosian had his own handicapped placard in his wife’s Volvo.”). The failings continue for the other Defendants in this case. As to RIAC’s General Counsel Peter Frazier, Bogosian alleges that Frazier was “allowed to ‘spy’ on Bogosian” and was “illegally allowed to sit in on Confidential legal proceedings.” Bogosian II, Compl. ¶¶ 80- 81. However, Bogosian does not identify a single proceeding that Frazier attended, let alone Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 15 of 30 PageID #: 254 13 how any such appearance would be “illegal.” In any event, this assertion is ridiculous on its face, since Frazier, as RIAC’s General Counsel, is a representative of RIAC, a named party in Bogosian I, and thus entitled to appear at all proceedings in that case. As to RIAC itself, the only allegation is that “‘RIAC’ Defendants intentionally lied under oath.” Id. ¶ 100. Defendants and the Court are left to guess who or what Bogosian means, but in any event it is the type of conclusory allegation that fails to meet the plausibility standard. Further, Bogosian’s fraud-based claims sprinkled throughout his complaint and in specific counts such as Counts Eight and Ten are particularly invalid given that they fail to meet the higher pleading requirement set forth in Fed. R. Civ. P. 9(b). Rule 9(b) requires a plaintiff to specify “the time, place, and content of an alleged false representation.” Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir. 1996) (quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir. 1980)). This means a plaintiff “must (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent” or, “in other words . . . allege the who, what, when, where, and how of the alleged fraud.” Sheet Metal Workers Local No. 20 Welfare & Ben. Fund v. CVS Health Corp., No. 16-046 S, 2016 U.S. Dist. LEXIS 150804, at *4 (D.R.I. Nov. 1, 2016) (citations and quotations omitted) (Smith, C.J.). Bogosian not only fails to clear the Rule 8 hurdle, but he does not even come close to meeting his heightened burden to plead fraud in compliance with Rule 9(b). This argument is detailed further in Section II.C.1, 8, and 10 infra. Simply put, Bogosian’s extreme and outrageous assertions have no factual basis in the complaint or otherwise and fail to meet Rules 8 and 9(b) and relevant case law. His complaint is nothing more than legal conclusions bolstered by unintelligible screeds. Even when read with a Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 16 of 30 PageID #: 255 14 “degree of solicitude” given Bogosian’s pro se status, the entire complaint should be dismissed with prejudice. B. Bogosian’s Claims Are Duplicative of Those He Has Raised in Bogosian I In this lawsuit, Bogosian improperly attempts to raise the same allegations he made in Bogosian I. Yet, related claims must be brought in a single cause of action. Katz v. Gerardi, 655 F.3d 1212, 1214 (10th Cir. 2011) (affirming dismissal of counts by “claim-splitting plaintiffs”). As such, a plaintiff must “assert all of its causes of action arising from a common set of facts in one lawsuit.” Id. at 1217 (citations omitted). Bogosian’s complaint clearly shows that, through the guise of additional counts, he is doing nothing more than improperly attempting to relitigate the same issues raised in Bogosian I in a separate forum. This is apparent from the face of his complaint in this case wherein he claims to be a “victim” due to his “pending lawsuit” in Bogosian I. Bogosian II, Compl. at 2. Almost the entire complaint details Bogosian’s allegations or complaint he has made in Bogosian I. See, e.g., id. at 3-4 (arguing that Bogosian is disabled and was wrongfully arrested at T.F. Green Airport and criminally prosecuted). Most strikingly, in a recent letter to this Court, Bogosian asks this Court in this case to “reverse any/all Federal Court rulings in favor of the Defendant(s)” in Bogosian I. Bogosian II (Dkt. No. 5 at 2). Bogosian also refers to the case numbers for both parties’ appeals in Bogosian I and requests that this Court use Bogosian II to require that “Defendant(s) must ‘Cease and Desist’ from any future actions regarding the case numbers referenced herein and retain a new Defense Team.” Id. at 1-2 (“Re: CA # 15-1681 and 15-1713”). In short, this effort to use a separate suit to litigate the same issues already pending in the same forum is barred by the claim-splitting doctrine. Likewise, to the extent Bogosian raises concerns about defense counsel’s actions in Bogosian I, he has already asserted such allegations in his four pro se sanctions motions in that Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 17 of 30 PageID #: 256 15 suit. In those motions, Bogosian complained of defense counsel’s litigation “tactics,” including issuance of subpoenas, alleged violation of the protective order entered in Bogosian I, and purported spoliation of evidence. Bogosian I (Dkt. Nos. 98, 100, 101, 103, 107, 109). Judge Lisi concluded that Bogosian’s allegations were “unsupported” and “scurrilous.” Id. (Dkt. No. 110 at 3) (Exhibit 1). As such, this Court should bar Bogosian from improperly relitigating issues already raised in Bogosian I and dismiss this lawsuit with prejudice. C. All of Bogosian’s Claims Fail as a Matter Of Law Beyond the fatal flaws detailed above, each of Bogosian’s claims fails as a matter of law. 1. Count One - “Attorney Malpractice and Breach of (Oath) Contract” Bogosian asserts a cause of action for attorney malpractice and something called “Breach of (Oath) Contract” against all Defendants. These claims fail as a matter of law. Notably, none of the Defendants have ever been counsel to Bogosian. Indeed, one - RIAC - is a corporation, not an attorney. Frazier is General Counsel for RIAC and did not even enter an appearance in Bogosian I. Wollin, Ramos, and Briggs have never represented Bogosian but, rather, represent the opposing party defendants in Bogosian I. Under Rhode Island law, “[g]enerally, an attorney owes no duty to an adverse party.” Credit Union Cent. Falls v. Groff, 966 A.2d 1262, 1270-71 (R.I. 2009) (citation omitted). Thus, “the gravamen of an action for attorney malpractice is the negligent breach of a contractual duty” between an attorney and his/her client. Id. at 1271 (citation and quotations omitted). Bogosian has not, and cannot, allege that he is a client of Defendants or ever had a contract with them. Id. at 1272. There is a very limited exception to this “privity requirement that historically bars nonclient recovery for attorney malpractice” in instances of fraudulent misrepresentation or Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 18 of 30 PageID #: 257 16 when the nonparty is an intended third-party beneficiary of the contractual arrangement. Id. at 1271-73 (citations omitted). Bogosian does not satisfy this limited exception because he cannot show that he is a direct and intended beneficiary of Defendants’ legal services representing opposing parties in Bogosian I, and the complaint is devoid of any plausible factual allegations of fraud. Though the complaint is sprinkled with conclusory allusions to fraudulent activity by “Wollin and Associates et al.,” such allegations are insufficient to meet the plausibility standard, let alone the heightened fraud pleading standard of Rule 9(b), as discussed earlier in Section II.A supra. Specifically, Bogosian has not identified any of the requisite elements -- “who, what, when, where, and how” -- for fraud. Sheet Metal Workers Local No. 20 Welfare & Ben. Fund, 2016 U.S. Dist. LEXIS 150804, at *4 (quotation and citations omitted). Bogosian is left with the conclusory allegation that Wollin, Ramos, and/or Briggs used allegedly aggressive litigation tactics as defense counsel for their clients in Bogosian I. See, e.g., Bogosian II, Compl. ¶ 36 (“‘Scorched-Earth’ litigation tactics”); ¶¶ 84-99 (alleging “no-holds barred” litigation tactics including the issuance of “slanderous” subpoenas, and breach of protective order.). This is utterly insufficient to satisfy the limited exception to the general rule barring non-clients like himself from recovering against opposing counsel for legal malpractice. In Johnson v. Koseff, the Rhode Island Superior Court found claims strikingly similar to Bogosian’s failed to state a claim against opposing counsel. No. WC- 2011-0366, 2013 R.I. Super. LEXIS 11, at *28-35 (R.I. Super. Ct. Jan. 11, 2013). In that action, Gloria Johnson and her children sued the attorney that represented Ms. Johnson’s former husband in a separate Family Court case. Id. at *2-3. The Court specifically noted that “alleged violations of the Rules of Professional Conduct cannot serve as a basis for a cause of action.” Id. at *28. What is more, the allegations of legal malpractice failed because the plaintiffs did not allege what legal duty Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 19 of 30 PageID #: 258 17 opposing counsel owed to them or how it was breached. Id. at *31 (noting that to prevail on a legal malpractice clam, a plaintiff must prove a duty of care, breach, and damages). Further, as here, the plaintiffs did not make sufficient allegations to reach the very limited exception to the rule that “there is no duty and liability of an attorney as to an adversary third party[.]” Id. at *32- 35. Specifically, the “fact that Plaintiffs were not clients of [Attorney] Rafanelli in the underlying Family Court proceedings is fatal to Plaintiffs’ claims against him” as they do not allege they are third-party beneficiaries of the adversary’s attorney-client relationship, that they relied on that attorney-client relationship, or any details of the purported fraud to meet the heightened pleading standard. Id. (emphasis added). Bogosian’s claim fails for these exact reasons. 2. Count Two - “Spoliation” Notwithstanding that Bogosian already raised spoliation in his numerous pro se sanctions motions in Bogosian I and is seeking a second bite at the apple, spoliation is not an independent cause of action. See, e.g., Malinou v. Miriam Hosp., 24 A.3d 497, 511 (R.I. 2011) (Rhode Island law “recognize[s] the doctrine of spoliation only as an evidentiary matter, which may warrant a jury instruction, but not as giving rise to an independent cause of action.”) (listing cases); see also Laurent v. St. Michael’s Country Day Sch., No. WC-2009-0545, 2013 R.I. Super. LEXIS 82, at *10 (R.I. Super. Ct. Apr. 30, 2013) (“[T]he Rhode Island Supreme Court has yet to recognize spoliation as an independent cause of action.”) (citation omitted). Thus, not only does Bogosian’s complaint lack any plausible factual basis for this allegation which Judge Lisi addressed in Bogosian I, this count fails as a matter of law. Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 20 of 30 PageID #: 259 18 3. Count Three - “Defamation and Slander” Bogosian claims that he was defamed by subpoenas and courtroom proceedings in “front of a courtroom of unknown people and employees” in Bogosian I. However, Defendants are immune from Bogosian’s claims of defamation and slander. It is well-established that “libelous matters in pleadings are absolutely privileged when the statements are relevant to the issues of the case, even if the allegations are false and malicious.” Pawtucket Credit Union v. LaScola, 693 A.2d 1031, 1032 (R.I. 1997) (citing Vieira v. Meredith, 84 R.I. 299, 301 (R.I. 1956)). This absolute privilege applies to subpoenas and during judicial proceedings generally. Imbler v. Pachtman, 424 U.S. 409, 426 n.23 (1976) (absolute privilege extends to briefs and pleadings); Steadfast Ins. Co. v. Smx 98, Inc., No. H-06-2736, 2009 U.S. Dist. LEXIS 26297, at *65 n.8 (S.D. Tex. Mar. 30, 2009) (listing cases for the proposition that the privilege extends to filings and subpoenas issued to third parties in discovery); U.S. ex rel. Vasudeva v. Dutta-Gupta, No. 11-114-ML, 2014 U.S. Dist. LEXIS 168466, at *34-35 (D.R.I. Nov. 7, 2014) (listing cases for absolute privilege for statements made over course of judicial proceeding); Mancini v. Marine Midland Bank, 586 N.Y.S.2d 61, 62 (N.Y. App. Div.) (1992) (statements in subpoena to plaintiff’s employer “were absolutely privileged because they were made in the course of a judicial proceeding in which plaintiff was a named party and were material and pertinent to the litigation”) (listing cases); Francis v. Gallo, 59 A.3d 69, 72 (R.I. 2013) (noting that judicial proceeding privilege against defamation is broad and applies to quasi-judicial proceedings). Moreover, this claim is invalid because Bogosian fails to allege any facts supporting his claim that any subpoenas or courtroom comments were libelous. Once again, each allegation relates to filings or proceedings that occurred and were already raised in Bogosian I. Indeed, the docket in Bogosian I reflects that neither Bogosian nor his counsel ever moved to quash a single Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 21 of 30 PageID #: 260 19 subpoena or questioned any statement by defense counsel. Thus, Count Three fails as any alleged pleading or courtroom statement are entitled to absolute privilege. 4. Count Four - “Illegal Litigation Tactics - Scorched-Earth Campaign” Count Four fails as a matter of law because “Illegal Litigation Tactics - Scorched-Earth Campaign” is not a cause of action. At best, vexatious litigation tactics are a basis for sanctions, not an independent cause of action. See Bonilla v. Volvo Car Corp., 150 F.3d 88, 90 (1st Cir. 1998). Moreover, Bogosian fails to allege any facts to support this claim. Even applying every benefit of the doubt to this pro se litigant, this claim cannot survive as it does not identify an actionable claim for relief. 5. Count Five - “Conspiracy to Injure a Person in his Trade or Occupation” Similarly, there is no cause of action for “Conspiracy to Injure a Person in his Trade or Occupation,” nor any factual basis to support this invalid claim. Thus, Count Five also fails to state a claim for which relief can be granted as a matter of law. 6. Count Six - “Intentional and Negligent Infliction of Emotional Distress” Bogosian’s claims for negligent and intentional infliction of emotional distress are invalid as a matter of law. The claim for negligent infliction of emotional distress fails as such a claim applies only to bystander liability. Liu v. Striuli, 36 F. Supp. 2d 452, 480 (D.R.I. 1999). Indeed, Bogosian should be well aware of this limitation as the First Circuit detailed this standard in its recent decision granting summary judgment to the defendant officers in Bogosian I. Bogosian I (Dkt. No. 112 at 3) (First Circuit Order, citing Liu, 36 F. Supp. at 480). As the First Circuit made clear, the tort of negligent infliction of emotional distress is available only in the following limited circumstances: where the plaintiff is either in the zone of physical danger, or is a bystander to a tragic incident involving someone with whom he or she is closely related, and the plaintiff Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 22 of 30 PageID #: 261 20 suffers serious emotional harm accompanied by some physical manifestations of his or her distress as a result of the defendant's negligence. Id. (quoting Swerdlick v. Koch, 721 A.2d 849, 864 (R.I. 1998)). Bogosian does not allege that he was a bystander who witnessed any such incident. Rather, he is a participant in the very lawsuit that he claims was the source of his suffering. Thus, Count Six fails to the extent it asserts a negligent infliction of emotional distress claim. Bogosian’s claim for intentional infliction of emotional distress fails for two independent reasons. First, a requisite element of intentional infliction of emotional distress is that plaintiff must suffer physical symptomatology resulting from the alleged improper conduct. Vallinoto v. DiSandro, 688 A.2d 830, 838 (R.I. 1997).7 Bogosian has not alleged any physical symptomatology. Bogosian II, Compl. at 24 (alleging only “Severe Emotional Distress” and invasion of “the mental and emotional tranquility of Handicapped Plaintiff.”). Because Bogosian has not alleged a requisite element, this claim fails as well. Second, Bogosian has failed to identify any facts constituting extreme and outrageous conduct to substantiate this claim. To impose liability, “(1) the conduct must be intentional or in reckless disregard of the probability of causing emotional distress, (2) the conduct must be extreme and outrageous, (3) there must be a causal connection between the wrongful conduct and the emotional distress, and (4) the emotional distress in question must be severe.” Swerdlick, 721 A.2d at 862 (citation omitted). Rhode Island courts rely on the Restatement (Second) of Torts to establish what constitutes such outrageous conduct: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. 7 Bogosian’s claim for negligent infliction of emotional distress similarly fails for this additional reason. Reilly v. United States, 547 A.2d 894, 899 (R.I. 1988) (negligent infliction of emotional distress requires physical symptomatology). Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 23 of 30 PageID #: 262 21 Id. (quoting Restatement (Second) Torts, § 46 cmt. d, at 73). Thus, a “defendant may not be held liable when he has done no more than insist on his legal rights in a permissible way, even though such insistence is likely or even certain to annoy, disturb, or inconvenience [plaintiff] or even cause [plaintiff] to suffer some emotional distress.” Id. (citations and quotations omitted). Simply put, Bogosian has not alleged any facts sufficient to constitute extreme and outrageous conduct. See Beaulieu v. Bank of America, N.A., No. 14-cv-00023, 2014 U.S. Dist. LEXIS 136876, at *18 (D. Me. Sept. 29, 2014) (“Contrary to Plaintiff’s argument that his IIED claim cannot be subject to dismissal given his recitation of these just-listed elements in his complaint…, the Court can determine that the undisputed facts would not allow a rational factfinder to conclude that Defendant’s conduct was so extreme and outrageous as to be considered ‘atrocious’ and ‘utterly intolerable.’”) (citations omitted). Rather, each allegation against Defendants relates to their insistence on their own legal rights or their client’s legal rights in Bogosian I. For all these reasons, Count Six fails to state a claim as a matter of law. 7. Count Seven - “Breach of Fiduciary Duty and Tortious Executive Conduct” Bogosian’s vague claims for breach of fiduciary duty and “tortious executive conduct” fail as a matter of law. The elements of a breach of fiduciary claim are: (1) a fiduciary relationship, (2) breach of the duty owed by the fiduciary to the beneficiary, and (3) harm to the beneficiary. See, e.g., Rhode Island Resource Recovery Corp. v. Van Liew Trust Co., No. PV- 10-4503, 2012 R.I. Super. LEXIS 167, at *14-15 (R.I. Super. Ct. Nov. 5, 2012) (citations omitted). Bogosian has not alleged, nor can he, that he can meet the first element, let alone any of the others. Simply put, Defendants do not owe any duty, let alone a fiduciary duty, to Bogosian, an adverse party in litigation. Their allegiance is to their clients, not Bogosian. Further, there is no such cause of action for “tortious executive conduct.” Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 24 of 30 PageID #: 263 22 8. Count Eight - “Fraud and Fraud Upon the Court” Count Eight alleges vague claims for fraud and fraud upon the court, to wit, that Defendants “lied to the court,” breached an unknown Presidential Executive Order, breached a “Federal Protective Order,” coached “fraudulent witnesses” and “made material misrepresentations” in Bogosian I. These claims fail as a matter of law. To establish a claim for fraud, a plaintiff must allege that the defendant “made a false representation intending thereby to induce plaintiff to rely thereon, and that the plaintiff justifiably relied thereon to his or her damage.” Travers v. Spidell, 682 A.2d 471, 472-73 (R.I. 1996) (citations omitted). Bogosian has not identified any false representation made to him nor alleged that he relied on any such representation. Thus, he has failed to state a claim for fraud. Moreover, Federal Rule of Civil Procedure 9(b)’s heightened pleading standard applies to Bogosian’s state law fraud claims. N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009). As noted earlier, Bogosian is required to plead all fraud allegations with particularity, including “specifying the false statements and by whom they were made but also identifying the basis for inferring scienter.” Id. As noted in Section II.A, supra, Bogosian fails to meet the basic pleading standards, let alone the heightened standards under Rule 9(b). See Johnson, 2013 R.I. Super. LEXIS 11, at *33-34 (dismissing fraud claims against Rhode Island attorney for failure to comply with Rule 9(b)). Because Bogosian’s complaint does not include any details regarding the alleged fraud, let alone any misrepresentation to or reliance by Bogosian, the fraud count fails. Further, as with several other counts of Bogosian’s complaint, Bogosian’s “fraud on the court” claim fails because it is not an independent cause of action. Shirokov v. Dunlap, Grubb & Weaver PLLC, No. 10-12043-GAO, 2012 U.S. Dist. LEXIS 42787, at *93 (D. Mass. Mar. 1, Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 25 of 30 PageID #: 264 23 2012) (“Fraud on the court is not a recognized independent cause of action in the First Circuit.”) (listing cases); Beaulieu, 2014 U.S. Dist. LEXIS 136876, at *23 n.5 (fraud on the court is not an independent cause of action based on conduct that occurred before a different court) (citation omitted). 9. Count Nine - “Vexatious Litigation” As with Counts Two, Four, Five and Eight, this claim fails to identify a valid cause of action. To the extent Bogosian raises concerns as to vexatious litigation, such allegations are not an independent cause of action as detailed in Section II.C.4 supra, and were unsuccessfully raised in Bogosian I. 10. Count Ten - “RICO (Civil), Barratry and Conspiracy” Bogosian’s claim of a civil RICO violation fails as a matter of law for various reasons. First, Bogosian does not allege many of the elements or predicate acts required in a civil RICO suit. The RICO statute prohibits four types of activities: (1) investing in, (2) acquiring, or (3) conducting or participating in an enterprise with income derived from a pattern of racketeering activity or collection of an unlawful debt, or (4) conspiring to commit any of the first three types of activity. 18 U.S.C. § 1962(a)-(d). To the extent any allegations can be divined, Bogosian apparently focuses on alleged conduct or conspiracy. Yet, to allege a civil RICO conduct violation, a plaintiff must allege “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity known as ‘predicate acts’ (5) causing injury to plaintiff’s ‘business or property.’” See, e.g., Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996) (citations omitted). Similarly, to allege conspiracy in violation of the civil RICO statute, a plaintiff must allege that “(1) two or more people agreed to commit a subsection[] offense, and (2) a defendant agreed to Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 26 of 30 PageID #: 265 24 further that endeavor.” RSM Prod. Corp. v. Freshfields Bruckhaus Deringer US LLP, 682 F.3d 1043, 1048 (D.C. Cir. 2012) (citation omitted) (addressing conspiracy to violate subsection(c)). Bogosian fails to allege either an enterprise or injury to his business or property, by Defendants or otherwise. Further, the complaint does not identify any predicate acts, but rather asserts the vague legal conclusion that Defendants “did cooperate jointly and severally in the commission of two (2) or more of the predicate acts[.]” Predicate acts in the civil RICO context are far more significant than the defense of parties in a civil lawsuit. See 18 U.S.C. § 1961(1) (defining “racketeering activity” to include murder, kidnapping, gambling, arson, robbery, bribery, extortion, and so on). As such, numerous courts of appeals have declined to extend civil RICO liability based on an attorney’s provision of routine legal services. RSM Prod. Corp., 682 F.3d at 1051 n.7 (listing cases). As the District of Columbia and Eighth Circuits have concluded, “we find it extremely difficult to fathom any scenario in which an attorney might expose himself to RICO liability by offering conventional advice to a client or performing ordinary legal tasks (that is, by acting like an attorney).” Id. (quoting Handeen v. Lemaire, 112 F.3d 1339, 1349 (8th Cir. 1997)). As in RSM, “the allegations of the complaint target [defendants’] services as attorneys, nothing more” and therefore fails to state a RICO claim. Id. at 1051 (noting the rare instances in which attorneys were held liable under RICO include devising a fraudulent scheme to manipulate the bankruptcy process or facilitating illegal investments). Moreover, to assert a civil RICO claim, a plaintiff must comply with the requirement of Federal Rule of Civil Procedure 9(b) that fraud be pleaded with particularity. See, e.g., Marcello v. DeSano, No. 05-004 ML, 2006 U.S. Dist. LEXIS 18825, at *27-28 (D.R.I. Mar. 23, 2006) (listing cases) (noting plaintiff failed to allege required elements, let alone with particularity, and dismissing claim). This is a bar that Bogosian fails to clear. Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 27 of 30 PageID #: 266 25 Finally, as to the remaining allegation of “barratry,” “[t]he modern trend among many courts is to abolish [barratry] because they have been supplanted by modern tort actions such as malicious prosecution and abuse of process, as well as the code of professional responsibility for attorneys.” Toste Farm Corp. v. Hadbury, Inc., 798 A.2d 901, 905 (R.I. 2002) (listing cases) (noting a claim for maintenance still exists in Rhode Island but not addressing barratry). To the extent that barratry even exists as an independent claim, it is a continuing practice of helping another prosecute a suit or maintaining a suit in return for a financial interest in the outcome. Id. (citations omitted); Osprey, Inc. v. Cabana Ltd. Pshp., 532 S.E.2d 269, 273 (S.C. 2000) (barratry “is the offense of frequently exciting and stirring up quarrels and suits between other individuals”). The complaint does not include any such allegations against Defendants. D. Dismissal Should be With Prejudice Bogosian’s complaint is just the latest in a pattern of frivolous and malicious filings. After he filed four pro se motions for sanctions with outrageous accusations, Judge Lisi in Bogosian I prohibited him and his wife from filing any other motions until the interlocutory appeal was resolved or face Rule 11 sanctions. Bogosian I (Dkt. No. 110 at 3-4) (Exh. 1). Defendants must expend significant resources and time responding to these baseless filings. Accordingly, Defendants request that this Court dismiss all claims with prejudice and enforce Rule 11 sanctions if Bogosian attempts to file any other frivolous briefs, letters, or otherwise in this matter. Azubuko v. MBNA Am. Bank, 396 F. Supp. 2d 1, 7 (D. Mass. 2005) (dismissing pro se complaint with prejudice and noting that “courts have the inherent power to impose sanctions for abuse of the judicial system” and “a district court has the power to enjoin a party from filing frivolous and vexatious lawsuits.”) (citation omitted). Bogosian’s actions waste limited judicial resources and should not be allowed to continue at the expense of Defendants and the Court. Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 28 of 30 PageID #: 267 26 III. CONCLUSION For the foregoing reasons, Defendants respectfully request this Court dismiss all counts of the complaint with prejudice. RHODE ISLAND AIRPORT CORPORATION; and PETER FRAZIER By their Attorneys, David A. Wollin David A. Wollin (#4950) Adam M. Ramos (#7591) Rebecca F. Briggs (#8114) HINCKLEY, ALLEN & SNYDER LLP 100 Westminster Street, Suite 1500 Providence, RI 02903 T: (401) 274-2000 F: (401) 277-9600 dwollin@hinckleyallen.com aramos@hinckleyallen.com rbriggs@hinckleyallen.com DAVID A. WOLLIN; REBECCA F. BRIGGS; and ADAM M. RAMOS By their Attorneys, William R. Grimm William R. Grimm (#1938) HINCKLEY, ALLEN & SNYDER LLP 100 Westminster Street, Suite 1500 Providence, RI 02903 T: (401) 274-2000 F: (401) 277-9600 wgrimm@hinckleyallen.com Dated: January 27, 2017 Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 29 of 30 PageID #: 268 27 CERTIFICATE OF SERVICE I hereby certify that, on the 27th day of January, 2017, a copy of the foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system. In addition, a true and accurate copy of the within document was mailed to the following: Gregg S. Bogosian 10 Dexterdale Drive Warwick, Rhode Island 02886 T: (401) 884-4168 gb@gbogo.com /s/ David A. Wollin 56527241 v1 068708/0157932 Case 1:17-cv-00016-S-PAS Document 7 Filed 01/27/17 Page 30 of 30 PageID #: 269 EXHIBIT 1 Case 1:17-cv-00016-S-PAS Document 7-1 Filed 01/27/17 Page 1 of 5 PageID #: 270 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND GREGG BOGOSIAN and THADOSHA BOGOSIAN and A.B., a minor child, by and through her parents and natural guardians, Gregg Bogosian and Thadosha Bogosian, Plaintiffs v. C.A. No. 14-080-ML RHODE ISLAND AIRPORT CORPORATION (T.F. GREENE AIRPORT); OFFICER STEPHEN E. REIS; SERGEANT CHARLES E. HALL; OFFICER JOHN KINGSTON; and OFFICER JOHN DOE, Defendants ORDER On May 19, 2015, this Court granted the Defendants’ Motion for Summary Judgment as to Counts V, VI, and IX and denied the Motion as to Counts I, II, III, IV, and VII, see Order (Dkt. No. 72). On June 5, 2015, the Court denied the Defendants’ motion for sanctions against Plaintiff Gregg Bogosian (“Bogosian”), but it admonished Bogosian to maintain confidentiality of documents designated as “confidential” in this case, pursuant to a protective order (Dkt. No. 10). Memorandum and Order (Dkt. No. 77). Both sides took an appeal from the May 19, 2015 Order (Defendants at Dkt. No. 74, Plaintiffs at Dkt. No. 80) and both sides requested entry of a stay, pending the outcome of the parties’ cross-appeals. (Dkt. Nos. 79, 83). The case was 1 Case 1:14-cv-00080-ML-PAS Document 110 Filed 04/20/16 Page 1 of 4 PageID #: 2092Case :17-cv-00016-S 7-1 iled 01/27/17 age 2 of 5 ageI #: 271 effectively stayed on June 30, 2015 (Text Order 06/30/2015). On November 13, 2015, the First Circuit Court of Appeals dismissed the Plaintiffs’ appeal for lack of jurisdiction. Judgment (Dkt. No. 89). On December 29, 2015, this Court granted Plaintiffs’ counsel’s motion to withdraw (Dkt. No. 94), advising Plaintiffs that they were required to retain new counsel or, as to each of them, enter a separate appearance pro se. Both Plaintiffs filed a notice of appearance (Dkt. Nos. 95, 96) on January 22, 2016.1 On February 1, 2016, the Plaintiffs filed a motion for sanctions and default judgment against Defendants and defense counsel, replete with multiple exhibits (Dkt. No. 98). The Defendants responded by objecting to the Plaintiffs’ motion and by seeking to preclude the Plaintiffs from filing further frivolous motions (Dkt. No. 101). On April 7, 2016, the Plaintiffs filed a second motion for sanctions and default judgment against Defendants and defense counsel, this time attaching documents which had been designated “confidential,” pursuant to the protective order (Dkt. No. 103). The Defendants immediately responded by opposing the Plaintiffs’ motion (Dkt. No. 104) and by seeking to seal the confidential information (Dkt. No. 105). The Defendants’ motion was granted by 1 Because neither of the Plaintiffs are attorneys, any claims as to their unrepresented minor child were dismissed both in the First Circuit and in this Court (Dkt. No. 99). 2 Case 1:14-cv-00080-ML-PAS Document 110 Filed 04/20/16 Page 2 of 4 PageID #: 2093Case :17-cv-00016-S 7-1 iled 01/27/17 age 3 of 5 ageI #: 272 the Magistrate Judge on April 15, 2016 (Text Order 04/15/2016). On April 19, 2016, the Plaintiffs filed (1) a reply to the objection filed by the Defendants against Plaintiffs’ second motion for sanctions and default judgment (Dkt. No. 106); (2) a third motion for sanctions and default judgment against Defendants and defense counsel (Dkt. No. 107); (3) a response in opposition to Defendants’ motion to seal confidential pages (which had already been granted) (Dkt. No. 108); and (4) a fourth motion for sanctions and default judgment against Defendants and defense counsel (Dkt. No. 109). An appeal in this case is currently pending in the First Circuit. As requested by both parties, the case has been stayed pending the outcome of that appeal. The Court has carefully, reviewed the parties’ submissions. All four of the Plaintiffs’ motions contain unsupported allegations, scurrilous accusations, personal attacks, inappropriate language, and what could be perceived as veiled threats. In addition, the Plaintiffs have attempted to disclose confidential information in direct violation of this Court’s May 19, 2015 order and of the protective order entered in this case. Accordingly, the Plaintiffs are ordered herewith to file no further motions or make any other filings in this case until such time as the appeal has been decided. Failure of either Plaintiff to 3 Case 1:14-cv-00080-ML-PAS Document 110 Filed 04/20/16 Page 3 of 4 PageID #: 2094Case :17-cv-00016-S 7-1 iled 01/27/17 age 4 of 5 ageI #: 273 adhere to this Court’s order will result in sanctions pursuant to Fed. R. Civ. P. 11. SO ORDERED. /s/ Mary M. Lisi Mary M. Lisi Senior United States District Judge April 20, 2016 4 Case 1:14-cv-00080-ML-PAS Document 110 Filed 04/20/16 Page 4 of 4 PageID #: 2095Case :17-cv-00016-S 7-1 iled 01/27/17 age 5 of 5 ageI #: 274