Robertson v. Cartinhour , 867 F. Supp. 2d 37 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
WADE ROBERTSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1919 (ESH)
)
WILLIAM C. CARTINHOUR, JR. et al., )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION
This case involves parties and events that have been before this and other courts many
times. Previously, Wade Robertson sued William Cartinhour in this Court, but the jury found
against Robertson and returned a verdict in Cartinhour’s favor for $3.5 million in compensatory
damages and $3.5 million in punitive damages for breach of fiduciary duties as a partner and as a
lawyer and for legal malpractice. Now, Robertson has sued Cartinhour and the lawyers who
represented him, as well as several of Cartinhour’s Serbian associates. In this new suit, which
was originally filed in the Southern District of New York, Robertson recasts as a conspiracy the
events underlying the first suit, seeking to recover $3.83 million in damages based on claims
under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, and
for fraud, defamation, and tortious interference. Defendants have filed motions to dismiss all
counts which, for the reasons set forth, will be granted.1
1
All defendants have moved to dismiss except for Vesna Kustodic, Tanja Milicevic, and
Aleksander Popovic. To date, only Tanja Milicevic has been served and default was entered on
February 23, 2012.
BACKGROUND
I. ROBERTSON I
A. Factual Background
The facts giving rise to the instant suit have been detailed in a raft of opinions, but most
comprehensively in Robertson I, 691 F. Supp. 2d 65, 68 (D.D.C. 2010), and In re W.A.R. LLP,
No. 11-cv-1574, 2012 U.S. Dist. LEXIS 9565 (D.D.C. Jan. 27, 2012). 2 The long and tortured
history of Robertson’s relationship with Cartinhour and proceedings in appellate, district, and
bankruptcy courts need not be restated at length here, but a summary of the factual and
procedural history of Robertson’s attempts to stop Cartinhour from recovering his $3.5 million
investment in W.A.R., LLP (“WAR”) is necessary to address the instant motions.
In September 2004, Robertson, an attorney, and Cartinhour, an 82-year-old retired
physician, entered into a partnership, WAR, to invest in class action securities litigation.
Robertson I, 691 F. Supp. 2d at 68. From September 2004 to April 2006, Cartinhour contributed
a total of $3.5 million. Id. From September 2004 to August 2009, Robertson allegedly
contributed legal services, which he values at $3.83 million, almost entirely in the class action
2
See also Robertson v. Cartinhour, 429 Fed. Appx. 1 (D.C. Cir. 2011); In re Robertson, No. 10-
cv-5231, 2010 U.S. App. LEXIS 19454 (D.C. Cir. Sept. 15, 2010); Robertson v. Cartinhour,
Nos. 10-cv-7015, 10-cv-7016, 10-cv-7044, 2010 U.S. App. LEXIS 10037 (D.C. Cir. May 14,
2010); Robertson v. Cartinhour, No. 10-cv-7017, 2010 U.S. App. LEXIS 25024 (D.C. Cir. Mar.
15, 2010); Robertson v. Cartinhour, No. 09-cv-1642 (Sept. 16, 2011); Robertson v. Cartinhour,
No. 09-cv-1642 (July 19, 2011); Robertson v. Cartinhour, No. 09-cv-1642, 2011 U.S. Dist.
LEXIS 31959 (D.D.C., Mar. 28, 2011); Robertson v. Cartinhour, No. 09-cv-1642 (Dec. 30,
2010); Robertson v. Cartinhour, No. 09-cv-1642 (May 17, 2010); Robertson v. Cartinhour, 711
F. Supp. 2d 136, 137 (D.D.C. 2010); see also In re W.A.R. LLP, No. 11-00044, 2011 Bankr.
LEXIS 2650 (Bankr. D.D.C. July 11, 2011); In re W.A.R. LLP, 2011 Bankr. LEXIS 2599(Bankr. D.D.C. July 6, 2011); In re W.A.R. LLP, No. 11-00044, 2011 Bankr. LEXIS 2448(Bankr. D.D.C. June 23, 2011); In re W.A.R. LLP, No. 11-00044, 2011 Bankr. LEXIS 2273(Bankr. D.D.C. June 15, 2011); In re W.A.R., LLP, No. 11-00044, 2011 Bankr. LEXIS 850(Bankr. D.D.C. Mar. 16, 2011). All of the bankruptcy, district and appellate court proceedings
associated with this first suit will be cited hereinafter as “Robertson I.”
2
securities suit Liu v. Credit Suisse First Boston Corp, No. 04-cv-03757 (S.D.N.Y. 2004). Id. at
68–69. Ultimately, the Liu case was dismissed and, as a result, WAR recovered nothing. Id. at
69; Robertson I, 2012 U.S. Dist. LEXIS 9565, at **9–10.
Even though the Liu litigation was dismissed by the district court in April 2005,
Cartinhour contributed his final $1.5 million to WAR in April 2006 and, that same month, by
Robertson’s request, Cartinhour signed three agreements. Robertson I, 691 F. Supp. 2d at 68–69.
The first, the Indemnification Agreement, purported to release Robertson from all claims by
Cartinhour for “any future injuries, losses, or damages not known or anticipated” and required
Cartinhour to indemnify him for any damages if he filed suit against him. Id. at 68–69.3 The
second was an amended partnership agreement giving Robertson “exclusive” control over WAR
and allowing partners to take out interest-free loans from WAR without having to repay them
until the partnership was liquidated. Id. at 69 n. 5. Third, Cartinhour signed an “Attestation and
Certification of No Attorney-Client Relationship with Wade Robertson,” which relinquished any
claims that Cartinhour may have against Robertson “that could arise from any attorney-client
relationship, whether actual or mistakenly assumed, or otherwise.” Id. at 70. One month later,
3
The Indemnification Agreement, provided that it would “release, acquit, and forever discharge
Wade A. Robertson personally” from
any and all past, present and future claims, counterclaims,
demands, actions, causes of action, liabilities, damages, costs, loss
of services, expenses, compensation, third-party actions, suits at
law or in equity, of every nature and description, whether known
or unknown, suspected or unsuspected, foreseen, or unforeseen,
real or imaginary, actual or potential, and whether arising at law or
in equity, under the common law, state or federal law, or any other
law, or otherwise, including, but not limited to, any claims that
have been or might have been asserted as a result of any
relationship[.]
Id. at 69 n. 4 (alternation in original).
3
the Second Circuit affirmed the district court’s dismissal of Liu and the Supreme Court thereafter
denied certiorari. Id at 69.
Despite failures in the Liu litigation and unbeknownst to Cartinhour, Robertson borrowed
$3.405 million from the partnership via two interest-free loans, the repayment of which was not
due until January 2030 and January 2040, respectively. Robertson I, 429 Fed. Appx. at 1. He
deposited this money into an account opened in his own name and quickly lost $1.9 million of
this money in the stock market. See Robertson I, Preliminary Injunction Hearing Tr. 93:3–6
(D.D.C. Mar. 26, 2010). All of the money for the loans to Robertson came from Cartinhour’s
investment. Robertson I, 2012 U.S. Dist. LEXIS 9565, at *13.
After the Liu litigation collapsed, Robertson stopped responding to Cartinhour’s inquiries
about the status of the case and his investment. Robertson I, 691 F. Supp. 2d at 69. Finally, on
January 9, 2009, and February 6, 2009, Cartinhour’s attorney, Albert Schibani, wrote a letter
demanding that Robertson return Cartinhour’s money. (Compl. ¶ 72.) When Robertson did not
comply, another one of Cartinhour’s attorneys, Carlton Obecny of the law firm Selzer Gurvitch
Rabin & Obecny (“SGRO”),4 sent two demand letters in August 2009 and threatened to file suit.
(Id. ¶ 76.) Robertson still did not return the money. Robertson I, 691 F. Supp. 2d at 69.
B. Robertson I
Instead, on August 28, 2009, Robertson filed suit in this Court, seeking a declaratory
judgment that he was not liable for Cartinhour’s investment in WAR based on the
agreements signed by Cartinhour in April 2006 that supposedly authorized him to take interest-
free loans and released him from all liability. SGRO, on Cartinhour’s behalf, answered,
4
Obecny, Dattaro, Gurvitch, Polott, Rabin, Strickland, and Kearney are shareholders and
managers of SGRO. (Id. ¶ 18.) Defendant Bramnick is a SGRO employee with some
management responsibilities. (Id.)
4
demanded the return of his investment, and counterclaimed for fraud, breach of fiduciary duty as
a partner and lawyer, legal malpractice, and various other torts and equitable causes of action.
Robertson I, 429 Fed. Appx. at 1–2.
In response to Cartinhour’s counterclaims, Robertson filed an answer and asserted
“counter-counter claims” for breach of contract, setoff, quantum meruit, and misrepresentation
relating to his contributed legal services to WAR. 5 However, since they were improperly
asserted in his answer as counter-counterclaims to Cartinhour’s counterclaims, they were
therefore stricken upon Cartinhour’s unopposed motion. At the time, the Court informed
Robertson that those claims must be asserted by amending his complaint in accord with Rule 15.6
Nevertheless, he never did so.
As with Robertson’s unrelated litigation in California, 7 the ensuing litigation here was
tumultuous. His incessant filings—described as “vexatious,” “meritless,” “reckless,” and “bad
faith”— ultimately elicited warnings and sanctions from this Court, as well as the Court of
Appeals, for frustrating proceedings and imposing unnecessary costs on Cartinhour.8
5
See Robertson I, Pl.’s Answer to Def.’s Counter-Compl. and Counter Cls. Thereto. at 24–26
(D.D.C. Feb. 22, 2010).
6
See Robertson I, Status Conf. Tr. 155:12–155:23, 166:22–167:3 (D.D.C. Mar. 22, 2010).
7
This is not the first time that one of Robertson’s complaints has given rise to myriad disputes
and court decisions. After Robertson’s 2008 arrest in California for driving under the influence
of alcohol, he sued the bar and the waiter for conspiring with the police to have him arrested. The
dismissal of this case was affirmed by the Ninth Circuit after four years of litigation. See
Robertson v. Qadri, 399 Fed. Appx. 219 (9th Cir. 2010); see also Robertson v. Qadri, No. 06-cv-
04624, 2009 U.S. Dist. LEXIS 3790 (N.D. Cal. Jan. 21, 2009); Robertson v. Qadri, 2006 U.S.
Dist. LEXIS 98881 (N.D. Cal. Mar. 25, 2008); Robertson v. Qadri, 2008 U.S. Dist. LEXIS 6525(N.D. Cal. Jan. 17, 2008); Robertson v. Qadri, 2007 WL 3445084 (N.D. Cal. Nov. 13, 2007);
Robertson v. Qadri, 2007 U.S. Dist. LEXIS 18750 (N.D. Cal. Mar. 1, 2007); Robertson v. Qadri,
2007 WL 1176635 (N.D. Cal. Apr. 20, 2007); Robertson v. City of Palo Alto, No. 08-cv-2176
(N.D. Cal. 2008); Robertson v. Ryan, No. 08-cv-2175 (N.D. Cal. 2008).
8
See Robertson I, 711 F. Supp. 2d 136, 138–39 (D.D.C 2010) (imposing costs for obstructive
discovery conduct and frivolous motion for reconsideration); see also Robertson I, No. 10-7033,
5
Robertson’s litigiousness reached new heights when Cartinhour attempted to preserve the
small amount of Cartinhour’s $3.5 million that remained. After it became apparent that
Cartinhour’s investment, $3.405 million of which had been moved by Robertson to his personal
accounts though self-authorized loans, had been dissipated and only $700,000 remained in
Robertson’s personal accounts, the Court froze the accounts. Robertson I, 691 F. Supp. 2d at70–71. In the midst of this, Robertson showed up at Cartinhour’s home, without his attorneys’
knowledge or consent, and threatened Cartinhour with “prolonged and costly” litigation if he did
not settle. Id. at 72. Cartinhour’s attorneys moved to enjoin Robertson from contacting him
without counsel present, but the very next day and before this Court could rule, Robertson again
went to Cartinhour’s apartment and spoke to him through the door since Cartinhour refused to
allow Robertson inside. Id. The Court, with the eventual consent of Robertson’s counsel, issued
a restraining order requiring Robertson to stay away from Cartinhour. See id. at 72.
Subsequently on March 26, 2010, the Court entered a second freezing order, which was
ultimately upheld on appeal by the D.C. Circuit. Robertson I, 429 Fed. Appx. at 1–2, 4.
Increasingly dissatisfied with the proceedings in this Court, Robertson unleashed a
barrage of motions in this Court and the Court of Appeals. In addition, he moved for recusal,
arguing that that Court was biased. Robertson I, 691 F. Supp. 2d at 74. When that motion was
Order at 1 (D.C. Cir. Oct. 19, 2010) (imposing costs for unwarranted filing of fourth motion to
stay district court proceedings). Prior to imposing those sanctions, the Circuit Court had
summarily denied: Robertson’s motion for disqualification and sanctions against Cartinhour’s
counsel, see Robertson I, No. 10-7033, Order at 1 (D.C. Cir. Sept. 21, 2010); Robertson’s
petition for mandamus seeking recusal, see Robertson I, No. 10-5231, 2010 U.S. App. LEXIS
19454, at *1 (D.C. Cir. Sept. 15, 2010); Robertson’s motion for clarification and reconsideration,
where the Court explicitly warned him that it “will not hesitate to impose sanctions” under 28
U.S.C. § 1927 and D.C. Cir. Rule 38, see Robertson I, No. 10-7033, Order at 1–2 (D.C. Cir.
Sept. 3, 2010); Robertson’s emergency motion to stay a preliminary injunction, see Robertson I,
No. 7033, Order at 1 (D.C. Cir. June 16, 2010); and Robertson’s motion for sanctions and a stay,
noting that certain orders of the district court were unappealable, see Robertson I, No. 10-7033,
Order (D.C. Cir. May 14, 2010).
6
denied, he again went to the Court of Appeals, but his request for a new judge, his petition for a
writ of mandamus ordering recusal, and his many interlocutory appeals were summarily denied.9
Finally, he filed a motion in the Court of Appeals to sanction and disqualify Cartinhour’s
attorneys in Robertson I, arguing that they had fabricated evidence and had failed to disclose key
facts, which was also denied as groundless and unwarranted. Robertson I, Order, 10-7033 (D.C.
Cir. Sept. 21, 2010).
C. The Trial
The legal claims and defenses presented in Robertson I were tried to a jury over six days
in February 2011. The jury heard evidence relating to the signing of the original WAR
partnership agreement, the Indemnification Agreement, and the Attestation of No Attorney-
Client Relationship.
At trial, Robertson argued that the WAR partnership agreement and other agreements
were valid, knowing, and voluntary.10 He claimed that he was not liable to Cartinhour because
he had not been Cartinhour’s attorney, Cartinhour understood the agreements he signed, and
Cartinhour had been represented by independent attorney, Robert “Larry” Ash, when he signed
the partnership agreement.11 Robertson cross-examined both Cartinhour12 and Ash,13 and both
9
Robertson I, No. 10-5231, 2010 U.S. App. LEXIS 19454 (D.C. Cir. Sept. 15, 2010); see also
Robertson I, 429 Fed. Appx. at 4. Undaunted, Robertson recently filed yet another motion for
recusal in the instant suit, which is addressed in a separate Memorandum Opinion and Order
issued today.
10
Trial Tr. 108:15–109:12 (Feb. 8, 2011) [hereinafter “Tr. Tr. [date],”]; Tr. Tr. 2/16/11, 49:08.
11
Tr. Tr. 2/14/11, 101:03–101:15.
12
Tr. Tr. 2/17/11, 77:10–79:09.
13
Tr. Tr. 2/8/11, 12:20–12:22; 14:03–14:05; 92:01–92:05; Tr. Tr. 2/14/11, 5:19–15:25; see also
id. 17:17–20:15.
7
testified that Ash had not reviewed any of the agreements Cartinhour signed, consulted with
Cartinhour about the agreements, or represented him on the matter.14
On February 18, 2011, after a day of deliberations, the jury returned a $7 million verdict
in Cartinhour’s favor: $3.5 million in compensatory damages and $3.5 million in punitive
damages. In response to Cartinhour’s special verdict form, the jury found that an attorney-client
relationship existed between Robertson and Cartinhour, that Robertson breached his fiduciary
duties to Cartinhour as his business partner and as an attorney, and that Robertson committed
legal malpractice. See Robertson I, Verdict Form (Feb. 18, 2011). In addition, the jury found
that the Indemnification Agreement was procured by undue influence, was unconscionable, and
thus, was unenforceable by Robertson. Id.15
In his appeal, Robertson challenges this verdict and objects to many of the Court’s
rulings, arguing that the Court should have enforced the partnership and indemnification
agreements, and challenging the ruling that any recompense for his services must be asserted as a
claim against the partnership rather than Cartinhour. Robertson I, No. 11-7026, Corrected Br.
for Appellant at 33, 48 (D.C. Cir. Jan. 4, 2011) (“Robertson I Appeal Br.”). Further, he contends
that the trial was fundamentally unfair because of the purported misrepresentations by Cartinhour
and his attorneys during discovery and pretrial proceedings. Id. at 56.
D. Bankruptcy Proceedings
14
See Tr. Tr. 2/17/11, 84:01–84:11; Tr. Tr. 2/14/11, 17:17–20:15.
15
At that point, the Court denied Robertson’s equitable claim for a setoff because he sought
money for services rendered to WAR and, therefore, his defense was improperly asserted against
Cartinhour. Robertson I, Minute Order (D.D.C. Feb. 24, 2011). The remaining counterclaims,
including Cartinhour’s counterclaim for rescission, were voluntarily withdrawn and dismissed by
the Court with prejudice. Robertson I, Judgment at 1 (D.D.C. Feb. 25, 2011). Robertson’s claim
for declaratory relief was also dismissed with prejudice. Id. Robertson moved for judgment as a
matter of law at the close of Cartinhour’s evidence and again at the close of all evidence, which
this Court denied. See Robertson I, Order (D.D.C. Mar. 28, 2011).
8
In an effort to sidetrack the trial in Robertson I and to find a more favorable forum,
Robertson filed first for a stay,16 then initiated actions in two other jurisdictions.
First, in the Western District of Tennessee, Robertson sought to stay Robertson I based
on bankruptcy proceedings filed against WAR. The Tennessee bankruptcy court, as well as this
Court, rejected his attempts to invoke the automatic stay provision of the U.S. Bankruptcy Code,
11 U.S.C. § 362, ruling that “[it] does not stay claims against Robertson because he is not the
debtor.” See Robertson I, 2012 U.S. Dist. LEXIS 9565, at **6–8.
The Tennessee bankruptcy court transferred the case to the District of Columbia
Bankruptcy Court on January 4, 2011, due to the significant adversarial proceedings already
underway in the District of Columbia.17 Robertson I, 2012 U.S. Dist. LEXIS 9565, at *9.
Finding “no property available for distribution from the estate,” the bankruptcy trustee in this
Court filed a report of no distribution on March 30, 2011, id. at **9–10, which was affirmed by
Bankruptcy Court Judge Teel and then by Chief Judge Lamberth. Id. at *20.
16
The Circuit also rebutted Robertson’s efforts to delay the trial in an Order dated October 19,
2010: “[t]his Court has previously denied appellant’s earlier motions for stay, and the district
court’s setting of a date for trial on the merits does not warrant the filing of yet another stay
motion.” Robertson I, No. 10-7033.
17
Robertson appealed the Tennessee bankruptcy court’s transfer order and he also sought
sanctions, injunctive relief, damages, contempt proceedings, and to declaration that the District
of Columbia bankruptcy court’s judgment void. Robertson I, Joint Mot. for Sanctions,
Injunctive Relief, Damages, Contempt Proceedings, and to Declare J. Void, 2:11-cv-02082
(W.D. Tenn. Mar. 8, 2011). Subsequently, he withdrew his motion, see Robertson I, 2:11-cv-
02082, Mot. to Withdraw Contempt Mot., (W.D. Tenn. Mar. 17, 2011), and his appeal of the
transfer order was denied. Robertson I, Order on Bankruptcy Appeal, 2:11-cv-02082 (W.D.
Tenn. Apr. 18, 2011).
9
II. ROBERTSON II
Second, he filed a new suit in the Southern District of New York (“Robertson II”),18
naming Cartinhour, all of the lawyers who were working on Robertson I,19 and a cast of others.
See Robertson II, No. 10-cv-8442, 2011 U.S. Dist. LEXIS 126030, at *13 (S.D.N.Y. Nov. 9,
2010). Although it was styled as a civil RICO complaint, it centered on the same facts and
claims as were presented in Robertson I. The defendants who had been served (Cartinhour and
his lawyers) filed a motion to dismiss or, in the alternative, to transfer the case to the District of
Columbia, which Judge Swain granted, observing:
Robertson’s decision to file suit in the Southern District of New
York appears to have been principally a tactical maneuver to avoid
the jurisdiction of the D.C. Court, and so should be accorded little
deference.
Id.20 Upon transfer, this case was initially assigned to Judge Bates. Robertson filed a Notice of
Related Case in Robertson II but, contrary to his obligations to the Court, he identified only the
bankruptcy case as related under LCvR 40.5(b)(3). 21 Defendants, however, filed notice
18
All the proceedings relating to this case in this Court and the Second Circuit will be cited as
“Robertson II.”
19
These lawyers, defendants Schibani, Kearney, Bramnick, Selzer, Obecny, Dattaro, Gurvitch,
Polott, Rabin, and Strickland will be referenced collectively as the “attorney-defendants.”
20
While those motions were pending, Robertson sought a stay pending decisions on his efforts to
have the judgment in Robertson I declared void. Robertson II, Corrected Mot. for Stay and Mot.
for Entry of Default (D.D.C. Mar. 16, 2011). When Judge Swain transferred the case after trial
in Robertson I, she reasoned that “having entered judgment in the underlying D.C. Action and
having presided over that jury trial, [it] is in the best position to review any further briefing and
make res judicata determinations.” Robertson II, 2011 U.S. Dist. LEXIS 126030, at *13.
Accordingly, Judge Swain terminated defendants’ motions to dismiss without prejudice and
denied Robertson’s motion for a stay. Id. Robertson has petitioned the Second Circuit for a writ
of mandamus to vacate Judge Swain’s transfer order, Robertson II, Pet., 11-4925 (Nov. 29.
2011), which is still pending.
21
Robertson II, Notice of Related Case (D.D.C. Nov. 16, 2011).
10
identifying this case as related to Robertson I.22 Thereafter, the case was reassigned to this
Court.
In a total about-face, Robertson now claims in Robertson II that he was the victim and
that it was he who was defrauded by Cartinhour into entering into their partnership agreement,
and by Cartinhour and his lawyers’ actions in Robertson I, which constitute evidence of a RICO
conspiracy against him.23
Specifically, his first RICO claim centers on an alleged criminal enterprise consisting of
Cartinhour, his attorneys in Robertson I, and members of the William C. Cartinhour, Jr.
Foundation, a Serbian charity (“Charity”) (Compl. ¶¶ 43, 52), to which Cartinhour’s financial
interest in WAR was assigned. He claims that he was fraudulently induced by Cartinhour to
enter into and remain in the partnership, that Cartinhour was the one pulling the wool over his
eyes, and that all defendants are liable for predicate acts including immigration fraud, tax fraud,
extortion, and misrepresentations during the Robertson I litigation.24 (Id. ¶¶ 112, 114, 120, 122;
Pl.’s Opp’n to Defs.’ Mots. to Dismiss (“Pl.’s Opp’n”) at 5–8.)
22
Robertson II, Mot. to Reassign Case (D.D.C. Nov. 17, 2011).
23
In this new complaint, Robertson adds one factual allegation to those at issue in Robertson I,
which relates to Tim Gray, the accountant who submitted an affidavit in support of Robertson’s
accounting of WAR’s accounts. See Robertson I, Response to Order of the Court (D.D.C. Jan. 4,
2010). Previously, Gray had submitted an affidavit in the California case (see supra note 7), and
Robertson alleges that in January or February 2010, a Maryland attorney called opposing counsel
in the California case and accused Gray and Robertson of scheming to defraud Cartinhour.
(Compl. ¶¶ 86, 89.) He also alleges that a letter to this effect was sent to Gray’s landlord and
that it resulted in Gray’s eviction, but neither Robertson nor Gray have seen the letter. (Id.)
Robertson claims, based on “information and belief,” that this call was made by Kearney,
Bramnick, or someone acting in concert with them, given their role in and knowledge from
Robertson I and their motive, which “no other identifiable person had.” (Id.)
24
In Robertson II, plaintiff ascribes sudden significance to facts which he knew in Robertson I,
namely that he and Cartinhour had discussed merging WAR and TCT, LLC, a company
Cartinhour owned and which Robertson alleges committed tax and immigration fraud. However,
11
His second RICO claim names Cartinhour’s attorneys in Robertson I as a racketeering
enterprise based on his accusation that they committed wire and mail fraud, extortion,
obstruction of justice, and witness retaliation based on acts including failing to disclose Ash’s
name in discovery requests, filing an inaccurate letter stating that Robertson was Cartinhour’s
counsel for TCT, making defamatory statements about Gray, and presenting false affidavits. (Id.
¶¶ 128, 130, 136, 138; Pl.’s Opp’n at 5–8.)
In addition, he charges all defendants with fraud, defamation, business defamation and
tortious interference based on these same allegations. (Id. ¶¶ 141–49.)
In terms of damages, Robertson contends that he is owed $3.83 million in legal services
to WAR (id. ¶ 106), which is the very setoff he sought—and still seeks— in Robertson I. See
Robertson I Appeal Br. at 48. He conveniently omits any mention of the $3.405 million of
Cartinhour’s money that he loaned himself, the $1.9 million he lost in the stock market, or the $7
million judgment in Robertson I, most of which remains unsatisfied.
Cartinhour and the attorney-defendants have filed motions to dismiss all counts. 25
ANALYSIS
I. EFFECT OF PRIOR PROCEEDINGS
Given the significant overlap in Robertson I and Robertson II, many of Robertson’s
claims are barred by res judicata,26 judicial estoppel, and the requirement that challenges to trial
they never took any steps toward a merger, Robertson helped him close down TCT, and, in any
event, these events did not arise post-trial.
25
These motions were timely-filed in accord with this Court’s order (see Robertson II, Order
(D.D.C. Dec. 12, 2011)), and therefore Robertson’s argument that they are time-barred is
meritless.
26
Contrary to Robertson’s contention (Pl.’s Opp’n at 27), the law is well established that res
judicata may be raised in a motion to dismiss. See, e.g., Lopez v. Am –Islamic Rels. Action
12
procedures be litigated on appeal rather than by initiating new cases. Consequently, he is
precluded from now claiming that Cartinhour was the one who defrauded him with respect to the
partnership agreements, that Cartinhour owes him for his services to WAR, that he did not serve
as Cartinhour’s attorney after they entered into the partnership agreements, and that Cartinhour
and his attorneys engaged in a conspiracy against him and this Court through their litigation
conduct in Robertson I.
“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,
which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892
(2008). “By ‘preclud[ing] parties from contesting matters that they have had a full and fair
opportunity to litigate,’ these two doctrines protect against ‘the expense and vexation attending
multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by
minimizing the possibility of inconsistent decisions.’” Id. (quoting Montana v. United States,
440 U.S. 147, 153–54 (1979)); see also Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir.
1981) (“The doctrine is designed to conserve judicial resources, avoid inconsistent results,
engender respect for judgments of predictable and certain effect, and [] prevent serial forum-
shopping and piecemeal litigation.”).
Claim preclusion “bars relitigation not only of matters determined in a previous litigation
but also ones that a party could have raised,” NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C. Cir.
1988),27 to prevent “litigation of matters that should have been raised in an earlier suit.” SBC
Network, Inc., 657 F. Supp. 2d 104, 108–09 (D.D.C. 2009), aff’d, 383 Fed. Appx. 1 (D.C. Cir.
2010).
27
Claim preclusion applies “‘if there has been prior litigation (1) involving the same claims or
cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid
judgment on the merits, (4) by a court of competent jurisdiction.’” NRDC v. EPA, 513 F.3d 257,
260 (D.C. Cir. 2008) (quoting Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)).
13
Communs., Inc. v. FCC, 407 F.3d 1223, 1230 (D.C. Cir. 2005) (quoting Marrese v. Am. Acad. of
Orthopaedic Surgeons, 470 U.S. 373, 376 n.1 (1985)).28 Issue preclusion, by contrast, “bars
“successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment.” Taylor, 553 U.S. at 748 (quoting New
Hampshire, 532 U.S. at 748–49).29 A defendant who was not a party to the earlier litigation may
assert issue preclusion as a defense “to prevent a plaintiff’s litigation of issues the plaintiff
previously litigated and lost” even though the defendant is not bound by the prior judgment. See
McCord v. Bailey, 636 F.2d 606, 609 n.1 (D.C. Cir.1980) (citing Blonder-Tongue Labs., Inc. v.
Univ. of Ill. Found., 402 U.S. 313, 328–29 (1971); Parklane Hosiery v. Shore, 439 U.S. 322,
329–331 (1979)).
In Robertson II, he now claims that Cartinhour was the one who defrauded him and
misrepresented his intentions regarding WAR,30 and he contends that he is owed money for the
in-kind legal services that he provided to the attorneys who worked on the Liu litigation.31 As an
28
See also Taylor, 553 U.S. at 748 (“Under the doctrine of claim preclusion, a final judgment
forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim
raises the same issues as the earlier suit.’”) (quoting New Hampshire v. Maine, 532 U.S. 742, 748
(2001)).
29
For issue preclusion to apply, “‘[1], the same issue now being raised must have been contested
by the parties and submitted for judicial determination in the prior case [; 2], the issue must have
been actually and necessarily determined by a court of competent jurisdiction in that prior case [;
and] [3], preclusion in the second case must not work a basic unfairness to the party bound by
the first determination.’” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting
Yamaha Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)).
30
Compl. ¶¶ 27–37, 39–41, 43, 45–46, 50–55, 66, 67, 75–77, 79, 81, 104–06, 109, 112–14, 117,
120–23, 141–43.
31
Id. ¶¶ 31–32, 38, 40, 42, 68, 70, 93. Robertson never entered his appearance in that case since
he claimed that, since he “had at one point been an employee for one of the defendants [i.e.,
Credit Suisse],” he feared that the defendant “might somehow create this side show that might
detract” from the Liu plaintiffs’ case if his name appeared as an attorney. Robertson I, 691 F.
Supp. 2d at 70 n.6.
14
initial matter, Robertson has already asserted his claim for those services, and this Court has
ruled that he cannot seek it from Cartinhour, as opposed to the partnership. See Robertson I,
Minute Order (Feb. 24, 2011).32 If his aim is to say that the alleged fraud rendered the
partnership agreement invalid and therefore he can now bring claims against Cartinhour for his
services, that claim would be barred as well. He had the opportunity to amend his complaint to
assert fraud or any other legal claims, but chose not to do so. See Robertson I, Status Conf. Tr.
155:12–23, 166:22–167:03 (D.D.C. Mar. 22, 2010). Res judicata precludes him from doing so
now because it would essentially nullify the jury’s findings in Robertson I. See Capitol Hill
Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 492 (D.C. Cir. 2009)
(explaining that res judicata bars claims when “the successful prosecution of the second action
would nullify the initial judgment or impair the rights established in the initial action”) (quoting
Restatement (Second) of Judgments § 22(2)(b)). Nor can Robertson avoid the jury’s finding that
Robertson and Cartinhour in fact had an attorney-client relationship. Therefore, res judicata bars
his claims that Cartinhour’s sworn affirmations of such a relationship constitute wire fraud, mail
fraud, extortion, and obstruction of justice.33 Despite the fact that Robertson attempts to restyle
his claims, “[t]here are no new facts. [He] is simply raising a new legal theory. This is precisely
what is barred by res judicata.” Apotex, Inc. v. FDA, 393 F.3d 210, 217–18 (D.C. Cir. 2004). 34
32
Moreover, during the Robertson I trial, evidence of the setoff was not permitted to be
presented to the jury since it was an equitable claim that did not rebut Cartinhour’s legal claims.
However, his equitable claim for a setoff was raised, considered, and ultimately rejected after
Cartinhour withdrew his equitable claims. Robertson I, Order (D.D.C. Nov. 29, 2010).
33
See also Compl. ¶¶ 33–34, 36–37, 66, 81–83, 85, 90, 92.
34
None of the events arose post-trial, but rather he was aware of these issues well before trial. It
defies logic to suggest, as plaintiff has done (see Pl.’s Opp’n at 28–29), that the principles of res
judicata permit him to ignore facts learned in discovery so that he can later bring a new suit with
a different interpretation if he loses the first time.
15
Judicial estoppel also precludes him from now attacking the validity of the partnership
agreement because it “‘prevents a party from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a previous proceeding.’” New Hampshire, 532
U.S. at 749 (quoting 18 Moore’s Fed. Practice § 134.30 (3d ed. 2000)).35 In Robertson I and his
appeal, Robertson argued that the partnership agreement was valid and enforceable. To permit
Robertson to argue the opposite now would impose substantial hardship on Cartinhour, who has
spent significant money and years of his life embroiled in litigation with Robertson.
Finally, Robertson’s claims regarding misrepresentations by Cartinhour and his attorneys
during Robertson I cannot be recast as predicate acts for a RICO claim or a fraud claim.36 He
made these same arguments37 unsuccessfully to the Court of Appeals when seeking to sanction
and disqualify Cartinhour’s attorneys, 38 and Cartinhour’s alleged misrepresentations have again
35
To decide whether judicial estoppel applies, a court must ask
(1) Is a party’s later position clearly inconsistent with its earlier
position? (2) Has the party succeeded in persuading a court to
accept that party's earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the
perception that either the first or the second court was misled? (3)
Will the party seeking to assert an inconsistent position derive an
unfair advantage or impose an unfair detriment on the opposing
party if not estopped?
Moses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010).
36
See Compl. ¶¶ 75–78, 80–82, 83, 85, 90–92, 94–98.
37
Specifically, he alleged that the attorney-defendants failed to disclose Ash’s identity and had
fabricated Cartinhour’s affidavit which was submitted in support of the preliminary injunction
issued Mar. 26, 2010. See Robertson I, 10-7033, Mot. to Disqualify at 3, 5–6 (D.C. Cir. Aug. 18,
2010).
38
Robertson I, Order, 10-7033 (D.C. Cir. Sept. 21, 2010) (“Appellant has failed to demonstrate
the requested relief is warranted. In any event, the matter at issue is the subject of bar complaints
filed by appellant and will undoubtedly be thoroughly explored in that context.”).
16
been raised in the Robertson I appeal.39 Nonetheless, he attempts to make four separate
predicate acts out of the alleged failure to disclose Ash in discovery documents, and three more
based on Cartinhour’s statement that he was not represented by Ash when signing the initial
partnership agreement. (Compl. ¶¶ 80–82, 83, 90, 95–98; see also Pl.’s Opp’n at 6–8.)
Moreover, the belated disclosure of Ash’s role was of no consequence in the prior litigation since
Robertson deposed him months before trial, he cross-examined both Ash and Cartinhour at
trial,40 and neither Ash nor Cartinhour supported Robertson’s contention that Ash reviewed the
agreements prior to Cartinhour signing them. (See supra nn. 12–14.)
If litigants are permitted to do what Robertson attempts here—that is bring entirely new
law suits based on alleged errors (particularly harmless ones) in earlier suits—the concept of
finality would be rendered a nullity. It is for this reason that “[t]he appeal process is available to
correct error; subsequent litigation is not.” See Hardison v. Alexander, 655 F.2d 1281, 1288
(D.C. Cir. 1981); Restatement (Second) of Judgments, § 19 (“The general rule stated in this
Section requires that errors underlying a judgment be corrected on appeal or other available
proceedings to modify the judgment or to set it aside, and not made the basis for a second action
on the same claim.”)41 Robertson has exercised his right of appeal and that is all he is entitled
under our judicial system.
39
See, e.g., Robertson I Appeal Br. at 24, 56.
40
In the instant case, he neglects to mention that he became aware of Ash’s existence well before
trial and the close of discovery was extended to allow him to take Ash’s deposition. See Tr. Tr.
2/14/11, 5:19– 21:25; id. 17:17–20; Robertson I, Order (D.D.C. July 2, 2010).
41
The Seventh Circuit has described this doctrine as “simply preclud[ing] actions taken in the
adversarial setting of litigation and otherwise redressable through court process from supporting
further litigation.” Probst v. Ashcroft, 25 Fed. Appx. 469, 471 (7th Cir. 2001).
17
II. JUDICIAL PROCEEDINGS PRIVILEGE
Robertson also asserts claims against the attorney-defendants based on these same
alleged misrepresentations during Robertson I relating in large part to Ash. (See Pl.’s Opp’n at
6–8; Compl. ¶¶ 80–83, 85, 90–92, 94–98.)42 As noted above, this is a familiar refrain.43
Nonetheless, Robertson argues that he may raise this issue here because the attorney-defendants
were not parties in Robertson I. (Pl.’s Opp’n at 29.)44
This argument is unavailing. The attorney-defendants’ representations in litigation
cannot be a basis for suit because they are protected by the judicial proceedings privilege. This
“absolute” privilege “‘protects the attorney from liability . . . irrespective of his purpose . . . , his
belief in its truth, or even his knowledge of its falsity.’” Finkelstein, Thompson & Loughran v.
Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C. 2001) (quoting Restatement (Second) of
Torts § 586 cmt. a). “For the absolute immunity of the privilege to apply, two requirements must
be satisfied: (1) the statement must have been made in the course of or preliminary to a judicial
proceeding; and (2) the statement must be related in some way to the underlying proceeding.”
Arneja v. Gildar, 541 A.2d 621, 623 (D.C. 1988).
42
The exception is Robertson’s allegation that the attorney-defendants submitted an affidavit to
this Court that was falsely attributed to Cartinhour. (Id. ¶ 83.) This alleged misrepresentation
has also been raised in the Robertson I appeal. Robertson I Appeal Br. at 64.
43
See, e.g., Robertson I Appeal Br.; Robertson I, Status Conf. Tr. 14:15–15:14 (D.D.C. July 22,
2010). Although he had the opportunity to move for sanctions, see id., he failed to do so.
44
While a claim against a non-party would not ordinarily be barred by res judicata, the attorney-
defendants could arguably be considered “privies” of Cartinhour and thus entitled to claim
preclusion as well. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 (1979) (“Under the
doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the
same parties or their privies based on the same cause of action.”).
18
Clearly, this privilege applies to the attorney-defendants’ submissions of Cartinhour’s
affidavits to this Court, statements to the Court, and discovery responses in Robertson I.
McNair Builders, Inc. v. Taylor, 3 A.3d 1132, 1135 n.1 (D.C. 2010) (applying the judicial
proceedings privilege to preclude claims of fraud and misrepresentation). It also applies to the
demand letters which warned Robertson of the litigation that eventually materialized when
Cartinhour filed his counterclaims in Robertson I. See Messina v. Fontana, 260 F. Supp. 2d 173,
178 (D.D.C. 2003) (explaining that “‘[t]he fact that the statements were made prior to the filing
of an action . . . does not . . . defeat the privilege . . . . The statements were made in
contemplation of litigation to the very individuals who would have an interest in the outcome of
such litigation.’”) (alteration in original) (quoting Conservative Club of Washington v.
Finkelstein, 738 F. Supp. 6, 14 (D.D.C. 1990)), aff’d, Messina v. Krakower, 439 F.3d 755, 759–
61 (D.C. Cir. 2006).
The principles applicable here—res judicata, the judicial proceedings privilege, and the
requirement that challenges to trial court rulings and procedures be litigated on appeal— have a
common purpose: to prevent parties from relitigating issues that were already litigated or could
have been litigated before. These doctrines preclude Robertson from claiming that Cartinhour
defrauded him with respect to the partnership agreements (Compl. ¶¶ 36–37, 39, 41, 67); that
Cartinhour owes him for his services to WAR (id. ¶¶ 106, 115, 123, 131, 139); that he was
extorted when Cartinhour’s attorneys demanded that he return Cartinhour’s money (id. ¶¶ 72–
78); or that the defendants defrauded him and this Court through misrepresentations during the
course of the Robertson I litigation. (Id. ¶¶ 80–83, 85, 90–92, 94–98.)
19
III. RICO CLAIMS (COUNTS I-IV)
Once these claims are eliminated, little, if anything, remains except for vague allegations
that the Charity was a sham and claims about Tim Gray.45 These remaining RICO claims cannot
survive.
A. Legal Standard for Civil RICO Claims
A RICO violation under § 1962(c) consists of four elements: (1) conducting (2) an
enterprise (3) through a pattern (4) of racketeering activity. W. Assocs. Ltd. P’ship v. Mkt.
Square Assocs., 235 F.3d 629, 633 (D.C. Cir. 2001); see 18 U.S.C. § 1962(c) (“It shall be
unlawful for any person employed by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering
activity . . . .”). “Racketeering activity” refers to the commission of statutorily-defined predicate
criminal acts. W. Assocs. Ltd. P’ship, 235 F.3d at 633.46 Conspiring to violate any subsection of
18 U.S.C. § 1962 is a separate violation of the RICO statute. See 18 U.S.C. § 1962(d).
To establish a pattern of racketeering activity under RICO, there must be at least two
overt acts, 18 U.S.C. § 1961(5), which must be related and “amount to or pose a threat of
continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989).
45
The allegations that remain are: TCT, LLC and its “co-conspirators” were engaged in tax and
bank fraud (id. ¶¶ 47–49); the Charity was engaged in immigration fraud and extorted Robertson
so that he did not report it (id. ¶ 57); the Charity extorted an unnamed Serbian businessman (id. ¶
58); and someone associated with the SGRO attorneys defamed Robertson and Gray by accusing
them of defrauding Cartinhour. (Id. ¶ 89).
46
Racketeering activity includes the predicate acts: extortion (violation of 18 U.S.C. § 1951);
obstruction of justice (violation of 18 U.S.C. § 1503); mail fraud (violation of 18 U.S.C. § 1341);
wire fraud (violation of 18 U.S.C. § 1343); and financial institution fraud (violation of 18 U.S.C.
§ 1343). See 18 U.S.C. § 1961 (listing offenses that qualify as predicate acts which constitute
racketeering activity).
20
“[C]ontinuity” refers ‘either to a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition.’” Edmondson & Gallagher v. Alban
Towers Tenants Ass’n, 48 F.3d 1260, 1264 (D.C. Cir. 1995) (quoting H.J. Inc, 492 U.S. at 241).
To determine whether closed-ended continuity has been established, the court must consider “[1]
the number of unlawful acts, [2] the length of time over which the acts were committed, [3] the
similarity of the acts, [4] the number of victims, [5] the number of perpetrators, and [6] the
character of the unlawful activity.” Edmondson, 48 F.3d at 1265 (quoting Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1411-13 (3d Cir. 1991)). These factors “should be applied in a
manner that is fluid, flexible, and commonsensical, rather than rigid or formulaic.” W. Assocs.
Ltd. P’ship, 235 F.3d at 637. However, it is clear that “[p]redicate acts extending over a few
weeks or months and threatening no future criminal conduct do not satisfy [the closed period]
requirement.” H.J. Inc., 492 U.S. at 242.
RICO authorizes civil enforcement by “any person injured in his business or property by
reason of a violation of [the RICO statute].” 18 U.S.C. § 1964(c). Therefore, standing to sue
under RICO requires a plaintiff to allege that (1) he suffered an injury to his business or property
and (2) the predicate acts were the proximate cause of the injury. See Holmes v. Sec. Investor
Prot. Corp., 503 U.S. 258, 268 (1992). Further, the plaintiff must show “some direct relation
between the injury asserted and the injurious conduct alleged.” Holmes, 503 U.S. at 268(emphasis added); see also Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006)
(reaffirming Holmes). “A link that is too remote, purely contingent, or indirect is insufficient.”
Hemi Grp., LLC v. City of New York, 130 S. Ct. 983, 989 (2010) (internal citations omitted).
B. Robertson II’s RICO Claims (Counts I–IV)
Robertson alleges two patterns of racketeering with two enterprises—one being the
Charity, plus Cartinhour and some attorney-defendants, and the other being the SGRO attorney-
21
defendants. These form the basis for two substantive RICO violations under 18 U.S.C. § 1962(c)
and two counts of conspiracy to violate RICO under 18 U.S.C. § 1962(d). (See Pl.’s Opp’n at 2.)
In Counts I and II, Robertson alleges that the Charity, Cartinhour, and certain SGRO
attorneys constitute a criminal enterprise that has engaged in a pattern of racketeering consisting
of predicate acts of mail fraud, wire fraud, financial institution fraud, extortion, obstruction of
justice, and witness retaliation. (Compl. ¶¶ 112, 114, 120, 122; Pl.’s Opp’n at 2, 5–6, 8.)47
These allegations are based on Robertson’s contentions that the Charity committed immigration
and tax fraud, extorted him by attempting to prevent him from reporting it, extorted an unnamed
Serbian businessman, and that Kearney, Bramnick, or someone acting along with them made
statements regarding Gray to a California attorney and Gray’s landlord. (Id. at 17–21.)48
In Counts III and IV, Robertson alleges that SGRO is the relevant enterprise and that it
has engaged in a pattern of racketeering through mail fraud, wire fraud, obstruction of justice,
and witness retaliation based on the statements about about Tim Gray. (Compl. ¶¶ 128, 130, 136,
138; Pl.’s Opp’n at 3–4, 6–8.)49
47
These counts implicate Cartinhour, Milicevic, Kustudic, Popovic, Schibani, as employees or
officers of the Charity; Bramnick, Kearney, Obecny, Selzer, as attorneys employed by the
Charity; and Dattaro, Gurvitch, Polott, Rabin, and Strickland under a theory of respondeat
superior. (Id. ¶¶ 113, 116, 121, 124). Because this claim will be dismissed on other grounds,
the Court need not decide whether this disparate group of individuals passes muster as an
“enterprise” under RICO.
48
He also alleges that Cartinhour defrauded him by inducing him to invest his services in WAR
and by failing to disclose the Charity’s illegal activity. (Pl’s Opp’n at 18 –19.) As previously
discussed, these claims are barred by the doctrine of res judicata.
49
These counts implicate the attorney-defendants employed by SGRO—Bramnick, Dattaro,
Gurvitch, Kearney, Obecny, Polott, Rabin, Selzer, and Strickland—through either direct or
vicarious liability. (Compl. ¶¶ 131–132, 139–40). He also alleges that SGRO’s RICO activity
includes the demand letters sent on Cartinhour’s behalf and SGRO’s alleged misrepresentations
in the course of Robertson I. (Id. ¶¶ 72, 80–82, 89.) As discussed above, these claims are
barred by the judicial proceedings privilege.
22
Robertson’s RICO claims fail for a variety of reasons. First, he lacks standing to bring
any of these RICO claims since he has not been injured “by the conduct constituting the [RICO]
violation.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). Even if plaintiff was
not recompensed for the time he allegedly spent on the Liu action, and even if such a claim were
not barred, there is simply no direct connection between the alleged predicate criminal act and
the injury for which he seeks to recover. Anza, 547 U.S. at 461 (“When a court evaluates a
RICO claim for proximate causation, the central question it must ask is whether the alleged
violation led directly to the plaintiff’s injuries.”)
Plaintiff’s only allegation of injury is the loss of $3,833,440.00, which supposedly
represents the sum of his uncompensated legal services to WAR. (Compl. ¶¶ 106, 115, 123,
139.) 50 However, his litany of predicate acts did not the cause this loss. Rather, Robertson
could not collect for his time because the Liu litigation failed, and as a result, WAR had no
income and the partnership had no funds to distribute. See Robertson I, 2012 U.S. Dist. LEXIS
9565, at **15, 19. In fact, the depletion of WAR’s funds was caused by Robertson’s self-
authorized loans and the loss of more than $1.9 million when he bought stocks with Cartinhour’s
investment. Therefore, without a directly-caused injury, all of Robertson’s RICO claims fail for
lack of standing. See Anza, 547 U.S. at 457; Lopez, 657 F. Supp. 2d at 106, aff’d, 383 Fed.
Appx. 1; Meng v. Schwartz, 116 F. Supp. 2d 92, 97 (D.D.C. 1992), aff’d, 48 Fed. Appx. 1 (D.C.
Cir. 2002); see also Greenpeace, Inc. v. Dow Chem. Co., No. 10-cv-2037, 2011 U.S. Dist.
LEXIS 101428, at **17–31 (D.D.C. Sept. 9, 2011).
50
Although Robertson vaguely suggests that he was injured by WAR’s failure to be profitable
and to continue as a partnership (Pl.’s Opp’n at 17–18), that is too speculative to confer standing
and, more importantly, nothing the defendants have done caused the lack of profitability. See
Lopez, 657 F. Supp. 2d at 114 (“[A] showing of injury requires proof of a concrete financial
loss . . . .”).
23
In addition, Robertson’s RICO claims against the Charity fail on the merits. Because
there is no relatedness or continuity, the alleged predicate acts in Counts I and II do not form a
“pattern” of racketeering activity. See Edmondson, 48 F.3d at 1265. Here, the only predicate
acts remaining are fraud and extortion on the part of TCT, LLC (which is not part of the “RICO
enterprise” and was clearly disavowed by Cartinhour) (Compl. ¶¶ 57, 60, 61); vague allegations
that the Charity extorted some unnamed Serbian business partner at an unknown time (id. ¶ 58);
Charity’s failure to report the transfer of funds from the United States to Serbia (id. ¶¶ 47–49);
and the acts that the SGRO attorney-defendants are alleged to have taken against Gray (id. ¶ 89).
These acts lack sufficient specificity.51 More importantly, they are not related for they are
dissimilar, undertaken by different individuals, for entirely distinct reasons, and through different
methods. See, e.g., Edgenet, Inc. v. GS1, AISBL, 742 F. Supp. 2d 997, 1019 (E.D. Wis. 2010)
(finding no relatedness where acts “have a different purpose, result, victim, and method of
commission”); see also Breslin v. Brainard, No. 01-cv-729, 2004 U.S. Dist. LEXIS 8594, at *10
n. 6 (E.D. Pa. May 7, 2004); Bonavitacola Elec. Contr., Inc. v. Boro Developers, Inc., 87 Fed.
Appx. 227, 232 (3d Cir. 2003); cf. H.J. Inc., 492 U.S. at 250 (finding acts related where there
was frequent commission of a common act (bribery) of common group (officials) unified by a
common purpose (winning contract)).
Also, there is neither open nor close-ended continuity here, as there is no threat of future
criminal conduct,52 nor a series of predicate acts that has occurred over a substantial period of
51
As defendants point out (Cartinhour’s Mot. to Dismiss at 17), many of the fraud allegations
would also fail under Rule 9(b). See Prunte v. Universal Music Group, 484 F. Supp. 2d 32, 42
(D.D.C. 2007) (rejecting RICO claim where allegations of mail fraud failed under Federal Rule
of Civil Procedure 9(b).)
52
United States ex rel. Williams v. Martin-Baker Aircraft Co., No. 97-cv-2699, 2003 U.S. Dist.
LEXIS 26167, **3–9 (D.D.C. May 15, 2003) (finding vague allegations of “ongoing” fraud
insufficient under Rule 9(b)).
24
time. See H.J. Inc., 492 U.S. at 241; Bonavitacola Elec. Contr. 87 Fed. Appx. at 232 (“Finding
no relatedness between the . . . separate transactions, [the Court] cannot measure continuity by
collectively considering the numerous alleged acts . . . . [t]hus the Amended Complaint lacks
predicate acts occurring over a ‘substantial period of time’ necessary for a proper allegation of
closed-ended continuity.”) Ultimately, “[t]he only ‘pattern’ [Robertson] describes is the alleged
combination of defendants’ efforts to his detriment,” Wright v. Towns, No. 90-cv-0565, 1991
U.S. Dist. LEXIS 12527, at *13 (D.D.C. May 30, 1991), and therefore, he has not stated a claim
under RICO. See Edmondson, 48 F.3d at 1265; see also Efron v. Embassy Suites (P.R.), Inc.,
223 F.3d 12, 19 (1st Cir. 2000) (collecting cases).53
Similarly, even if he were to have standing, Robertson cannot sustain a RICO claims
against the attorney-defendants. Since the demand letters and the litigation activity are protected
by the judicial proceedings privilege, only the allegations related to Gray remain. (See Compl. ¶
89.) Even taking the allegations as true, as we must, this conduct is simply not a pattern: at best,
it involves one victim and one injury. See W. Assocs. Ltd. P’ship, 235 F.3d at 633 (“[I]f a
plaintiff alleges only a single scheme, a single injury, and few victims it is ‘virtually impossible
for plaintiffs to state a RICO claim.’”) (quoting Edmondson, 48 F.3d at 1263).
In sum, plaintiff cannot parse the events underlying Robertson I and turn them into
predicate acts to make a RICO case nor can he proceed on a RICO theory where he cannot
establish standing or the elements of RICO. Accordingly, Counts I–IV must be dismissed.
53
Because plaintiff has failed to state a claim for a substantive RICO violation, his claim for
conspiracy to commit a RICO violation also fails as a matter of law. See Greenpeace, 2011 U.S.
Dist. LEXIS 101428, at *31–32.
25
IV. CHOICE OF LAW
The four common law claims in Counts V–VIII require that the Court first determine the
applicable law. Because this case was transferred, the Court must “apply the state law that would
have been applied if there had been no change of venue.” Van Dusen v. Barrack, 376 U.S. 612,
639 (1964) (“A change of venue under § 1404(a) generally should be, with respect to state law,
but a change of courtrooms.”). However, “[t]he choice of law rules of the state of a transferring
court does not follow the case to a transferee court if the originating court did not have personal
jurisdiction over all defendants.” Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp. 2d 103, 112 n.4
(D.D.C. 2011). In this case, Judge Swain found that she had subject matter jurisdiction in the
Southern District of New York, but declined to consider defendants’ challenge to personal
jurisdiction and the parties now disagree as to whether New York or District of Columbia law
should apply. This Court need not inquire further, however, as there is no real conflict since both
jurisdictions follow the “significant interests” test to determine the state law applicable to
common law torts.54 See USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032 (D.C. 2008) (“A
conflict of laws does not exist when the laws of the different jurisdictions are identical or would
produce the identical result on the facts presented.”). Therefore, since “there is no true conflict,
54
The District of Columbia analysis requires balancing the interests of the competing
jurisdictions, including “(1) the place where the injury occurred, (2) the place where the conduct
causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation, and
business of the parties, and (4) the place where the relationship is centered.” Jaffe v. Pallotta
TeamWorks, 374 F.3d 1223, 1227 (D.C. Cir. 2004)). Similarly, New York applies the law of the
state with the most significant interest in the litigation. Lee v. Bankers Trust Co., 166 F.3d 540,
545 (2d. Cir. 1999). To determine this, courts consider the parties’ domiciles and “the locus of
the tort,” which is generally where the injury occurred. Id.; see also Test Masters Educ. Servs. v.
NYP Holdings, Inc., No. 06-cv-11407, 2007 U.S. Dist. LEXIS 96228, at *10 (S.D.N.Y. Sept. 18,
2007). Here, under either analysis, District of Columbia’s law, not that of New York, would
apply, since that is where Robertson I was litigated and as such is the primary locus of activity
and injury.
26
the [C]ourt [will] apply the law of the forum.” Owens v. Republic of Sudan, No. 08-cv-1349,
2011 U.S. Dist. LEXIS 135961, at * 65 (D.D.C. Nov. 28, 2011).
V. FRAUD CLAIM (COUNT V)
In Count V, Robertson claims that “all defendants are liable for damages resulting from
their conspiracy to defraud [him]” and incorporates by reference all of the factual allegations in
the complaint. (Compl. ¶¶ 141–43.) To plead common law fraud in the District of Columbia, a
plaintiff must state “with particularity,” Fed. R. Civ. P. 9(b), that “the defendant, with the intent
to induce reliance, knowingly misrepresented or omitted a material fact upon which the plaintiff
reasonably relied to his detriment.” Media Gen. Inc. v. Tomlin, 532 F.3d 854, 858 (D.C. Cir.
2008).55 “To prevail on such a claim, ‘the plaintiff must also have suffered some injury as a
consequence of his reliance on the misrepresentation.’” Busby v. Capital One, N.A., 772 F. Supp.
2d 268, 275 (D.D.C. 2011) (quoting Chedick v. Nash, 151 F.3d 1077, 1081 (D.C. Cir. 1998))
(citation omitted).
The deficiencies that doomed Robertson’s RICO claims apply here as well. He cannot
prove detrimental reliance because the only damage alleged, the loss of recompense for his in-
kind services, was not caused by defendants’ acts. (See supra Section III(B).) This claim also
lacks particularity, for, despite a rambling 149–paragraph complaint, there is no factual support
for claiming fraud by “all defendants.” (Compl. ¶¶ 142–43.) See Busby, 772 F. Supp. 2d at 276(“[B]ecause ‘fraud’ encompasses a wide variety of activities, the requirements of Rule 9(b)
guarantee all defendants sufficient information to allow for preparation of a response.”); Wright,
55
Because this claim is so lacking in clarity, the application of the significant interests test is
somewhat difficult. However, it makes no difference because New York law, like District of
Columbia law, requires a plaintiff to show “a material false representation, an intent to defraud
thereby, and reasonable reliance on the representation, causing damage to the plaintiff.” Turtur
v. Rothschild Registry Int’l, 26 F.3d 304, 310 (2d Cir. 1994) (citation omitted).
27
1991 U.S. Dist. LEXIS 12527, at **10–11 (finding allegations that did not identify the speakers,
dates and times of the communications, recipients of the information, or substance of the
allegedly fraudulent statements were insufficient under Rule 9(b)). In addition, to the extent that
he alleges some type of conspiracy to defraud (see Compl. ¶ 143), he cannot do so without
meeting the pleading requirements for an underlying tort, see Nader v. Democratic Nat’l Comm.,
567 F.3d 692, 697 (D.C. Cir. 2009), which he has not done.
VI. DEFAMATION AND TORTIOUS INTERFERENCE (COUNTS VI-VIII)
Robertson’s remaining claims—defamation, business defamation, and tortious
interference—are based on statements allegedly made by unidentified persons to third-parties
about Robertson and Gray. (See Compl. ¶¶ 89,107–08,144–49.)
A. Defamation/Business Defamation
“In the District of Columbia, ‘a statement is defamatory if it tends to injure [the] plaintiff
in his [or her] trade, profession or community standing or lower him in the estimation of the
community.’” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C. 2000) (first
alteration in original) (quoting Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984)). To state
aclaim for defamation, a plaintiff must show:
(1) that the defendant made a false and defamatory statement
concerning the plaintiff; (2) that the defendant published the
statement without privilege to a third party; (3) that the defendant's
fault in publishing the statement amounted to at least negligence;
and (4) either that the statement was actionable as a matter of law
irrespective of special harm or that its publication caused the
plaintiff special harm.
Williams v. Dist. of Columbia, 9 A.3d 484, 491 (D.C. 2010) (quoting Beeton v. Dist. of
Columbia, 779 A.2d 918, 923 (D.C. 2001)).
In Counts VI and VII, Robertson attempts to hold all defendants liable for defamation of
himself and his business. (Compl. ¶¶ 89, 144–47.) Relying only on “information and belief,”
28
Robertson alleges that Kearney and Bramnick or someone acting in concert with them56
published defamatory statements to a California attorney who was opposing counsel in
Robertson’s California lawsuit (see supra note 7) and to Gray’s landlord accusing Gray and
Robertson of defrauding Cartinhour and violating federal criminal law. (Id. ¶ 89; Pl.’s Opp’n at
14.) Obviously statements about Gray do not provide any basis for recovery by Robertson.
Moreover, Robertson acknowledges that he has no identifying information about who made the
statements and admits that neither he nor Gray have actually seen any letter to Gray’s landlord.57
(Compl. ¶ 89.) Nor can he allege damages, but instead contends that the statements constitute
defamation per se. (Pl.’s Opp’n at 14.)
As an initial matter, the statements are not capable of conveying a defamatory meaning
because they are substantially true. As plaintiff acknowledges (Pl.’s Opp’n at 13-14), this Court
must first “determin[e] that the publication is capable of bearing a defamatory meaning.” White
v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990); Parnigoni v. St. Columba’s
Nursery Sch., 681 F. Supp. 2d 1, 14 (D.D.C. 2010) (“The first task for the Court is to determine
56
When Robertson raised this previously, Kearney flatly denied contacting the California
attorney or Gray’s landlord. See Robertson I, Preliminary Injunction Hearing Tr. 63:13–63:14
(D.D.C. Mar. 26, 2010).
57
The entirety of this allegation is based on “information and belief,” and Robertson provides
scant basis that would “allow[] the [C]ourt to draw the reasonable inference that [any particular]
defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949; see Kowal v. MCI
Comms. Corp., 16 F.3d 1271, 1279 (D.C. Cir. 1994) (“affirm[ing] the district court’s
determination that pleadings on information and belief require an allegation that the necessary
information lies within the defendant’s control, and that such allegations must also be
accompanies by a statement of the facts upon which the allegations are based.”); Zelaya v.
UNICCO Serv. Co., 587 F. Supp. 2d 277, 287-88 (D.D.C. 2008) (finding pleadings insufficient
where “plaintiff fail[ed] to offer any information or facts—such as who spoke to Cavalier, when,
and what was said— to inform this belief aside from rank speculation [that it was the only
possible explanation]”).
29
whether the defendants made a false and defamatory statement concerning the plaintiffs.”)
Although false charges of criminal conduct are considered defamatory, Washburn v. Lavoie, 357
F. Supp. 2d 210, 214 (D.D.C. 2004), aff’d on other grounds, 437 F.3d 84 (D.C. Cir. 2004), that is
not the case here. Robertson was in fact the subject of a criminal investigation by the U.S.
Attorney’s Office, which he chose to disclose on the public record. See Robertson I, Mot. for
Stay Pending Civil Proceedings and Lift or Modify Preliminary Injunction at 4–5 (D.D.C. Mar.
21, 2010); see also Robertson I, Preliminary Injunction Hearing Tr. 55:04–55:10 (D.D.C. Mar.
26, 2010). In addition, the Robertson I jury found that Robertson was liable for breaching
fiduciary duties, legal malpractice, procuring the Indemnification Agreement from Cartinhour
through undue influence and/or coercion, and awarded compensatory as well as punitive
damages of $3.5 million. See Robertson I, Verdict Form (D.D.C. Feb. 18, 2011). In light of
these undisputed facts, there is no basis for a defamation claim. See Jolevare v. Alpha Kappa
Alpha Sorority, Inc., 521 F. Supp. 2d 1, 13 (D.D.C. 2007) (finding no defamation when “the
‘gist’ of the statement is true . . . as it would be understood by its intended audience.”) (internal
citations and quotations omitted)).
These claims are deficient for additional reasons as well. To the extent that this
communication was made by Kearney and Bramnick and related to Robertson I, which it did, it
is protected by the judicial proceedings privilege. See Messina, 260 F. Supp. 2d at 177–78.58
And finally, the unfounded allegation of conspiracy (Compl. ¶ 145),59 provides no basis to hold
58
Since this jurisdiction recognizes the privilege as “absolute rather than qualified,” McNair
Builders, Inc., 3 A.3d at 1139, the single New York trial court case Robertson cites to argue the
contrary (see Pl.’s Opp’n at 14–15) is unavailing.
59
A plaintiff alleging a civil conspiracy “must set forth more than just conclusory allegations of
an agreement [between the co-conspirators] . . . .” Brady v. Livingood, 360 F. Supp. 2d 94, 104
(D.D.C. 2004); see also Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81, 113–14 (D.D.C.
2010) (conclusory allegations of conspiracy without factual support are insufficient ); Bush v.
30
Cartinhour and the other defendants liable. See Chandler v. Jones, 802 F. Supp. 2d 13, 21
(D.D.C. 2011) (dismissing claims where “complaint utterly fail[ed] to show or allege any
wrongdoing” on the part of defendants).
B. Tortious Interference
Under District of Columbia law, a plaintiff claiming tortious interference “must plead
‘(1) the existence of a valid business relationship or expectancy, (2) knowledge of the
relationship or expectancy on the part of the interferor, (3) intentional interference inducing or
causing a breach or termination of the relationship or expectancy, and (4) resultant damage.’”
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (quoting Bennett Enters. v. Domino’s
Pizza, Inc, 45 F.3d 493, 499 (D.C. Cir. 1995)).
In Count VIII, Robertson alleges that the communication with the California attorney and
Gray’s landlord tortiously interfered with a payroll tax recovery business that he and Gray had
planned to start because it dissuaded Gray from going into business with him and caused
“damage[s] in an amount yet to be determined.” (Compl. ¶¶ 107–08, 148–49.) Essentially,
Robertson seeks an unknown amount of damages for some undefined injury to his ability to
pursue a business that did not exist based on a call by an unknown attorney whom he believes
was from the state of Maryland. (Id. ¶¶ 89, 107–08, 148–49.) Not surprisingly, this claim fails
for a host of reasons.
Butler, 521 F. Supp. 2d 63, 68–69 (D.D.C. 2007) (dismissing conspiracy claim where plaintiff’s
allegation of an agreement “provide[d] no description of the [specific] persons involved in the
agreement, the nature of the agreement, [or] what particular acts were taken to form the
conspiracy”); McCreary v. Heath, No. 04-cv-0623, 2005 U.S. Dist. LEXIS 34082, at **17–18
(D.D.C. Sept. 26, 2005) (dismissing conspiracy claim when the plaintiff’s “162-page complaint
fail[ed] to allege the existence of any events, conversations, or documents indicating that there
was ever an agreement or ‘meeting of the minds’ between any of the defendants”), aff’d,
McCreary v. Heath, No. 05-5405, 2006 U.S. App. LEXIS 4951 (D.C. Cir. Feb. 22, 2006).
31
To state a claim for tortious interference in the District of Columbia, the business
expectancy must be “commercially reasonable to anticipate.” See Browning, 292 F.3d at 242(internal quotation marks and citation omitted). “A valid business expectancy requires a
probability of future contractual or economic relationship and not a mere possibility.” Wash.
Metro. Area Transit Auth. v. Quik Serve Foods, Inc., No. 04-cv-838, 2006 U.S. Dist. LEXIS
24510, at **17–18 (D.D.C. Apr. 28, 2006). Robertson’s imagined economic gain from a non-
existent business is nothing but speculation. Furthermore, there is no factual basis in the
complaint upon which to infer that any defendant knew of or intended to interfere with the plan
to start a business. See Browning, 292 F.3d at 242. Accordingly, Count VIII will be dismissed.
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motions to dismiss. A separate
order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 16, 2012
32