Commercial Litigation and Arbitration

RICO — Speculative Injury Insufficient to Sustain Claim

From Circiello v. Alfano, 2009 U.S. Dist. LEXIS 37795 (D. Mass. May 4, 2009):

The injury Circiello claims to have suffered is the lost opportunity to have realized a $ 10 million award against Alfano for the wrongful death of her father. Circiello offers no explanation of the basis for the $ 10 million figure. Moreover, she concedes that she could not have personally brought a wrongful death action as she was not the executor of her father's estate; the executor was her mother, who was still living at the time of DiGiovanni's death. Her theory (as it emerged at the hearing) is that as the beneficiary of her now deceased mother's estate, she would have inherited a substantial remnant of the wrongful damages award her mother would have received had she timely filed suit. This theory is based on a series of "what ifs": What if her mother had filed a timely suit? What if her mother had in fact recovered a $ 10 million award? What if her mother had died soon thereafter without dissipating her assets? What if her mother had in fact not disinherited her daughter or left the remnant of the estate to a favorite charity? And so on. If any proposition under RICO is well-established, it is that a RICO damages claim may not be based on mere speculation. See DeMauro v. DeMauro, 115 F.3d 94, 97 (1st Cir. 1997) (a claimed civil RICO injury based on a "hypothetical inability to recover" in a pending lawsuit was too speculative to confer standing); First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 768 (2d Cir. 1994) ("[A]s a general rule, a cause of action does not accrue under RICO until the amount of damages becomes clear and definite.").

The evanescent nature of Circiello's claimed injury is enough to terminate this action, but there is an additional point to be made. Even if a more solid foundation supporting the claim of injury could be cobbled together, Circiello does not limn an injury that Congress intended to redress under RICO. While at oral argument, Circiello insisted that the prospect of a wrongful death damages award, even if contingent, is a "property interest" cognizable under Massachusetts law. Assuming that this is true, "[w]here to set the 'business or property' threshold [for RICO purposes] depends on federal statutory purpose, and that purpose is likely to support a [federal] definition that is uniform throughout the country." ... The few courts to have addressed the issue have uniformly concluded that damages from an unliquidated personal injury lawsuit are not "property" within the meaning of the RICO statute. See, e.g., Bradley v. Phillips Petroleum Co., 527 F. Supp. 2d 625, 647 (S.D. Tex. 2007) ("'[E]ven if the Court undertook some philosophical approach' and construed the lost opportunity to bring a personal injury lawsuit as a property right, 'the Court nevertheless would be unable to adopt such an interpretation because it would contravene Congress' intent in enacting the RICO statute.'"); Moore v. Eli Lilly and Co., 626 F. Supp. 365, 366-367 (D. Mass. 1986) ("If Congress had intended that the rights and remedies established by RICO be available in every personal injury action involving financial loss, it could easily have enacted a statute referring to 'injury' generally or have referred expressly to injury to 'persons' in addition to injury to 'business or property.'"); Zareas v. Bared-San Martin, 209 Fed. Appx. 1, 1 (1st Cir. 2006) ("[C]laims for personal injuries, such as emotional distress, are not 'business or property' and are not cognizable under RICO."). Moreover, this court has explicitly held that "[d]amages for wrongful death or personal injury are not available under § 1964(c)."); Curley v. N. Am. Man Boy Love Ass'n, 2001 WL 1822730, at *4 (D. Mass. 2001) (O'Toole, J.) (citing Grogan v. Platt, 835 F.2d 844 (11th Cir. 1988) (emphasis added). See also Connor v. Halifax Hosp. Med. Ctr., 135 F. Supp. 2d 1198, 1219 (M.D. Fla. 2001) (claims for money damages and related pecuniary losses relating to patients' deaths were not cognizable under RICO's private civil action provision).

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