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Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 1 of 10 PageID #: 11137
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`---------------------------------------------------------------){
`
`THE HEMMERDINGER CORPORATION,
`d/b/aATCO,
`
`Plaintiff,
`
`v.
`
`MEMORANDUM AND ORDER
`12-cv-2650 (WFK)
`
`FRANK M. RUOCCO, JR., BORIS A. TOMICIC,
`WILLIAM S. MCCAMBRIDGE, EARTH
`TECHNOLOGY, INC., and RECYCLE
`TECHNOLOGY, LLC,
`
`Defendants.
`---------------------------------------------------------------){
`WILLIAM F. KUNTZ II, United States District Judge:
`
`Following a seven-day jury trial, Defendants Frank M. Ruocco, Jr., Earth Technology, Inc., and
`Boris A. Tomicic (collectively, "Defendants") filed motions for judgment as a matter of law,
`motions for a new trial, and motions for a set-off hearing. ECF Nos. 267-68, 271. For the
`reasons set forth below, the Court DENIES Defendants' motions.
`
`BACKGROUND
`
`This is a civil RICO action about the excavation and removal of "dirty dirt" in the
`
`environmental remediation and redevelopment of "The Shops at Atlas Park." See Mem. & Order
`
`at 2-4, ECF No. 250 (discussing, in the context of summary judgment, the underlying facts of
`
`this case). At the heart of the dispute were Defendants' bills for soil removal services and
`
`whether the bills derived from fraud and/or racketeering. See id. at 1-2.
`
`Following a seven-day trial, a jury found Defendants Tomicic and McCambridge liable
`
`for fraud in the amount of$2,000.00, and Defendants Frank M. Ruocco, Jr., Earth Technology,
`1
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 2 of 10 PageID #: 11138
`
`Inc., Boris Tomicic, and Recycle Technology liable for civil RICO under 18 U.S.C. § 1962(d) in
`
`the amount of $334,766.98. Jury Verdict at 6-7, ECF No. 272. The jury found no civil RICO
`
`liability under 18 U.S.C. § 1962(c). Id. at 4.
`
`The verdict sheet contained a section for claim two, RICO liability under§ 1962(c), and a
`
`section for claim three, RICO liability under § 1962( d). See id. at 4-7. The § 1962( c) section of
`
`the verdict sheet asked, "Did a civil RICO enterprise exist among the defendants?" Id. at 4. The
`
`jury unanimously marked "NO" and, as instructed, continued no further on the§ 1962(c) section
`
`of the verdict sheet. Id. The § 1962( d) section of the verdict sheet asked, "Was there an
`
`agreement among two or more persons to participate in an enterprise that would affect interstate
`
`commerce through a pattern of racketeering activity?" Id. at 6. To this question, the jury
`
`answered, "YES." Id. The jury found Defendants Earth Technology, Inc., Frank M. Ruocco Jr.,
`
`Boris Tomicic, and Recycle Technology all "knowingly and willfully" participated as members
`
`of"the enterprise," while specifically excluding Defendant William McCambridge from the
`
`enterprise. Id.
`
`The Court now addresses the post-trial motions filed by Defendants Frank M. Ruocco,
`
`Jr., and Earth Technology, Inc., (collectively, the "Ruocco Defendants") and by Defendant Boris
`
`A. Tomicic ("Defendant Tomicic"). On May 28, 2016, and again on June 3, 2016, the Ruocco
`
`Defendants filed motions for judgment as a matter of law or, alternatively, for a new trial. See
`
`Ruocco 1st Mot., ECF No. 267; Ruocco 2d Mot., ECF No. 271. On June 1, 2016, Defendant
`
`Tomicic filed a similar motion. See Tomicic Mot., ECF No. 268. The Hemmerdinger
`
`Corporation d/b/a ATCO ("Plaintiff') filed its response to Defendants' motions on July 1, 2016.
`
`2
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 3 of 10 PageID #: 11139
`
`ECF Nos. 282-283. Defendants replied o~ July 6, 2016. Ruocco Reply, ECF No. 284; Tomicic
`
`Reply, ECF No. 285.
`
`DISCUSSION
`
`I.
`
`Standard of Review
`
`A.
`
`Motion for Judgment as a Matter of Law
`
`When evaluating a motion for judgment as a matter of law, a court is required to draw all
`
`reasonable inferences in favor of the non-moving party. Zellner v. Summerlin, 494 F.3d 344, 370
`
`(2d Cir. 2007). The court "may not make credibility determinations or weigh the evidence,"
`
`because those are "jury functions, not those of a judge." Id Accordingly, a court may grant a
`
`motion for judgment as a matter of law "only if it can conclude that, with credibility assessments
`
`made against the moving party and all inferences drawn against the moving party, a reasonable
`
`juror would have been compelled to accept the view of the moving party." Id. at 370-71; accord
`
`MacDermid Printing Sols. LLC v. Cortron Corp., 2016 WL 4204795, *3 (2d Cir. Aug. 10, 2016)
`
`(citing Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)). This "high bar" may be met
`
`when there is "such a complete absence of evidence supporting the verdict that the jury's findings
`
`could only have been the result of sheer surmise and conjecture" or "there is such an
`
`overwhelming amount of evidence in favor of the movant that reasonable and fair minded
`
`persons could not arrive at a verdict against it." Advance Pharm., Inc. v. United States, 391 F.3d
`
`377, 390 (2d Cir. 2004); Lavin-McEleney v. Marist College, 239 F.3d 476, 479-80 (2d Cir.
`
`2001).
`
`3
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 4 of 10 PageID #: 11140
`
`B.
`
`Motion for a New Trial
`
`A court may grant a new trial in a jury case for any of the reasons "for which a new trial
`
`has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a). The
`
`decision whether to grant a new trial under Rule 59 is "committed to the sound discretion of the
`
`trial judge." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992). "A new trial may be
`
`granted ... when the jury's verdict is against the weight of the evidence." DLC Mgmt. Corp. v.
`
`Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998). In contrast to a motion for judgment as a
`
`matter of law, a court may grant a motion for a new trial "even if there is substantial evidence
`
`supporting the jury's verdict." Id. at 134. Additionally, "a trial judge is free to weigh the
`
`evidence himself, and need not view it in the light most favorable to the verdict winner." Id.
`
`(citing Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). A court considering a Rule
`
`59 motion for a new trial, however, "must bear in mind ... that the court should only grant such
`
`a motion when the jury's verdict is 'egregious.'" Id. For this reason, "[a] motion for a new trial
`
`ordinarily should not be granted unless the trial court is convinced that the jury has reached a
`
`seriously erroneous result or that the verdict is a miscarriage of justice." Munafo v. Metro.
`
`Transp. Auth., 381F.3d99, 105 (2d Cir. 2004) (quoting Atkins v. New York City, 143 F.3d 100,
`
`102 (2d Cir. 1998)). Furthermore, "[w]here the resolution of the issues depended on assessment
`
`of the credibility of the witnesses, it is proper for the court to refrain from setting aside the
`
`verdict and granting a new trial." Fugazy, 983 F.2d at 363; see also DLC Mgmt. Corp., 163 F.3d
`
`at 134 ("[A] court should rarely disturb a jury's evaluation of a witness's credibility.").
`
`4
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 5 of 10 PageID #: 11141
`
`II.
`
`Analysis
`
`A. Inconsistent Verdict
`
`Congress enacted the Racketeer Influence and Corrupt Organizations Act, known as
`
`RICO, 18 U.S.C. §§ 1961-1968, for "the eradication of organized crime in the United States."
`
`Beck v. Prupis, 529 U.S. 494, 496 (2000) (quoting Pub. L. 91-452, 84 Stat. 923). Congress
`
`attempted to achieve this goal "by providing severe criminal penalties for violations of § 1962."
`
`Id. Sections 1962( c) and 1962( d}, the relevant provisions of RICO in this action, provide:
`
`( 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 such enterprise's affairs through
`a pattern of racketeering activity or collection of unlawful debt.
`
`( d) It shall be unlawful for any person to conspire to violate any of the provisions of
`subsection (a), (b), or (c) of this section.
`
`18 U.S. C. § 1962. Section 1962( c) prohibits a member of a RI CO enterprise from conducting
`
`enterprise affairs through a pattern of racketeering activity, while§ 1962(d) prohibits conspiracy
`
`to violate § 1962( c ), or any of the other substantive subsections of§ 1962. In the criminal
`
`context, an individual may be found guilty of violating§ 1962(d) without having violated§
`
`1962(c). See Salinas v. United States, 522 U.S. 52 (1997) (interpreting criminal RICO liability
`
`under § 1962( d) ).
`
`Congress also granted a private cause of action to "[a ]ny person injured in his business or
`
`property by reason of a violation of section 1962," 18 U.S.C. § 1964(c), thus creating civil
`
`remedies to further enforce violations of§ 1962. In Beck v. Prupis, the Supreme Court read into
`
`§ 1962( d}, as applied in the civil context via § 1964( c ), the "widely accepted" civil-conspiracy
`
`5
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 6 of 10 PageID #: 11142
`
`proposition that "a plaintiff [can] bring suit for civil conspiracy only if he had been injured by an
`
`act that was itself tortious." Beck, 529 U.S. at 501. In doing so, the Supreme Court "conclude[d]
`
`that injury caused by an overt act that is not an act of racketeering or otherwise wrongful under
`
`RICO ... is not sufficient to give rise to a cause of action under § 1964( c) for a violation of§
`
`1962( d)." Id at 505. In other words, for a civil plaintiff to recover under § 1962( d), he must
`
`first establish that a defendant committed "an act that is independently wrongful under RICO."
`
`Id. at 505-06.
`
`Drawing from Beck, 1 Defendants present a specious argument that liability for RICO
`
`conspiracy under § 1962( d) cannot stand, because the jury found no substantive RICO liability
`
`under § 1962( c ). 2 Ruocco 1st Mot. at 2. These findings, Defendants argue, create an
`
`1 Defendants also rely upon several pre-trial decisions by courts in the Second Circuit, none of
`which require a different outcome. See D. Penguin Bros. v. City Nat. Bank, 587 F. App'x 663,
`669 (2d Cir. 2014); Knoll v. Schectman, 275 F. App'x 50, 51 (2d Cir. 2008); First Capital Asset
`Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir. 2004); Albunio v. Int'! Safety Grp.,
`Inc., 15-CV-152, 2016 WL 1267795, at *7 (S.D.N.Y. Mar. 30, 2016) (Caproni, J.); 101
`McMurray, LLC v. Porter, No. 10-CV-9037 CS, 2012 WL 997001, at *9 n.8 (S.D.N.Y. Mar. 26,
`2012) (Seibel, J.); Conte v. Newsday, Inc., 703 F. Supp. 2d 126, 139 (E.D.N.Y. 2010) (Bianco,
`J.); Elsevier Inc. v. W.HP.R., Inc., 692 F. Supp. 2d 297, 312-13 (S.D.N.Y. 2010) (McMahon,
`J.); Maddaloni Jewelers, Inc. v. Ro/ex Watch U.S.A., Inc., 354 F. Supp. 2d 293, 300 (S.D.N.Y.
`2004) (Castel, J.); Allen v. New World Coffee, Inc., 00 CIV. 2610 (AGS), 2002 WL 432685, at
`*6 (S.D.N.Y. Mar. 19, 2002) (Schwartz, J.); Odyssey Re (London) Ltd. v. Stirling Cooke Brown
`Holdings Ltd., 85 F. Supp. 2d 282, 303-04 (S.D.N.Y. 2000) (Buchwald, J.).
`2 Defendant Tomicic presents identical arguments as the Ruocco Defendants. Compare Ruocco
`1st Mot. at 3-8, with Tomicic Mot. at 9-15. In fact, Defendant Tomicic argues that "the jury's
`finding that Ruocco and ETI acted as conspirators under § 1962( d) to violate § 1962( c) is
`erroneous as a matter of law," but fails to argue the same error applies to himself. Tomicic Mot.
`at 9.
`
`6
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 7 of 10 PageID #: 11143
`
`inconsistent jury verdict requiring this Court either to render judgment as a matter of law in their
`
`favor or to order a new trial. Id The Court finds neither necessary.
`
`The jury unanimously found Defendants not liable for violating § 1962( c) because no
`
`"civil RICO enterprise [existed] among the defendants." Jury Verdict at 4. Defendants interpret
`
`this jury determination as a finding of no RICO enterprise of any kind. See Ruocco Reply at 4,
`
`6. This interpretation, however, is too expansive. The jury merely found no civil RICO
`
`enterprise among all the captioned defendants. In particular, the jury did not believe Defendant
`
`McCambridge to be a part of the enterprise. The jury determined that a more limited civil RICO
`
`enterprise existed, but did not-and was not given the opportunity to-determine whether
`
`§ 1962( c) liability resulted from this more limited civil RICO enterprise. See Jury Verdict at 4
`
`(providing only the option of finding an enterprise consisting of all the captioned defendants).
`
`Viewed in the light most favorable to Plaintiff, the jury verdict can be interpreted as
`
`internally consistent. Specifically, the jury could have found liability under§ 1962(c) for the
`
`more limited civil RICO enterprise, which would allow the jury to then find liability under §
`
`1962( d) for this smaller enterprise. Viewed in this light, a reasonable juror would not be
`
`"compelled to accept," Zellner, 494 F.3d at 371, Defendants' assessment of the case. The Court,
`
`accordingly, DENIES Defendants' motion for judgment as a matter of law, or in the alternative a
`
`new trial.
`
`Cofacredit v. Windsor Plumbing, 187 F.3d 229, 244 (2d Cir. 1999), does not require a
`
`different outcome. In Cofacredit, the Court of Appeals for the Second Circuit reviewed the
`
`appeal of a three-week bench trial. Id at 233. The Court of Appeals found insufficient evidence
`
`7
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 8 of 10 PageID #: 11144
`
`to support the district court's finding of a substantive RICO violation under 18 U.S.C. § 1962(c).
`
`Id. at 241-42. Absent a violation of any of the substantive provision of RICO and without
`
`evidence illustrating an agreement "to perform additional predicate acts," the Court of Appeals
`
`reversed the district court's finding of liability under 18 U.S.C. § 1962(d). Id at 244-45. Here,
`
`in contrast to Cofacredit, the factfinder-a jury-did not necessarily find against § 1962( c)
`
`liability. See supra 6-7. The Court, therefore, is not required as a matter oflaw to dismiss the
`
`jury's finding of liability under§ 1962(d).
`
`B. Insufficient Evidence
`
`Defendant Ruocco argues insufficient evidence to support a finding of liability against
`
`him. See Ruocco 2d Mot. In particular, Defendant Ruocco claims Plaintiff presented no
`
`evidence at trial on whether Defendant Ruocco "knew about [or] agreed to facilitate" the affairs
`
`of a RICO enterprise. Id. at 4. This Court finds otherwise. Fact witness Theresa Culmone,
`
`Defendant McCambridge, and Defendant Ruocco all testified about Defendant Ruocco' s
`
`relationship and involvement with Defendants Earth Technology, Inc. and Recycle Technology.
`
`See Trial Tr. at 298-346 (Culmone testimony); id at 350-512 (McCambridge testimony); id. at
`
`695-797 (Ruocco testimony). The signed checks from Earth Technology, Inc. to Recycle
`
`Technology and the subcontract between Earth Technology, Inc. and Plaza further corroborate
`
`Defendant Ruocco's relationships with Defendants Earth Technology, Inc. and Recycle
`
`Technology. See, e.g., Trial Exs. 4, 5; Pl. Exs. 43, 56, 134, 137, 139, 144, 145. From this
`
`evidence, which showed Defendant Ruocco as the controlling shareholder of Recycle
`
`Technology, the jury could properly infer Defendant Ruocco's knowledge and agreement to
`
`8
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 9 of 10 PageID #: 11145
`
`facilitate the affairs of a RICO enterprise. Accordingly, the Court holds that the evidence
`
`presented at trial, viewed in the light most favorable to Plaintiff, is sufficient to permit a
`
`reasonable juror to find in Plaintiffs favor.
`
`Defendant Tomicic argues insufficient evidence to support a finding of a conspiratorial
`
`agreement, scienter, or duty to disclose.3 See Tomicic Mot. at 15. These arguments, however,
`
`are an attempt to relitigate facts already considered by the jury, see id at 15-21, which is
`
`improper at this stage of litigation. See Zellner, 494 F.3d at 371 (stating that, on a motion for
`
`judgment as a matter of law, "[t]he court is not permitted to find as a fact a proposition that is
`
`contrary to a finding made by the jury"). The Court further finds that Defendant Tomicic has not
`
`preserved his remaining arguments. See MacDermid, 2016 WL 4204795 at *4 ("Because the
`
`Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds
`
`advanced in the preverdict motion." (internal citations omitted)). Even assuming the
`
`.
`
`preservation of these remaining arguments, none satisfy the "high bar" required for a moving
`
`party to succeed on a motion for judgment as a matter of law, Advance Pharm., Inc., 391 F.3d at
`
`390, or require this Court to order a new trial, Munafo, 381 F.3d at 105. Accordingly, the Court
`
`DENIES the remainder of Defendant Tomicic's arguments as without merit.
`
`C. Set-off Hearing
`
`For the reasons presented in this Court's Summary Judgment Decision, the Court
`
`DENIES the motion for a set-off hearing. See Mem. & Order, at 22. The Court notes that the
`
`3 Defendant Tomicic again, see supra Note 2, presents identical arguments as the Ruocco
`Defendants. Compare Ruocco Reply at 2-6, 7-8, with Tomicic Reply at 2-7, 8-10.
`9
`
`

`
`Case 1:12-cv-02650-WFK-VMS Document 292 Filed 09/20/16 Page 10 of 10 PageID #: 11146
`
`jury calculated a set-off figure. The jury granted Plaintiff damages in the amount of
`
`$334,766.98, Verdict Sheet at 7-$70,301.06 less than the $405,068.04 demanded by Plaintiff,
`
`Compl. at 30, ECF No. 1.
`
`CONCLUSION
`
`The Court hereby DENIES the renewed motion for judgment as law pursuant to Federal
`
`Rule of Civil Procedure 50(b) by Defendants Frank M. Ruocco, Jr. and Earth Technology, Inc.;
`
`DENIES the renewed motion for judgment as law pursuant to Federal Rule of Civil Procedure
`
`50(b) by Defendant Boris Tomicic; DENIES the motion for a new trial pursuant to Federal Rule
`
`of Civil Procedure 59 by Defendants Frank M. Ruocco, Jr. and Earth Technology, Inc.; DENIES
`
`the motion for a new trial pursuant to Federal Rule of Civil Procedure 59 by Defendant Boris
`
`Tomicic; and DENIES the request for a set-off hearing by Defendants Frank M. Ruocco, Jr.,
`
`Earth Technology, Inc., and Boris Tomicic.
`
`SO ORDERED.
`
`s/ WFK
`
`Dated: September 19, 2016
`Brooklyn, New York
`
`10

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