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Sbrocco v. Hartford Insurance Company of The Southeast

United States District Court, M.D. Florida, Fort Myers Division

August 13, 2019

THOMAS A. SBROCCO, Plaintiff,
v.
HARTFORD INSURANCE COMPANY OF THE SOUTHEAST and STEPHEN SCHENGBER, Dr., Defendants.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant's Motions to Dismiss (Docs. ##42, 43) filed on June 24, 2019. Plaintiff pro se Thomas A. Sbrocco filed Responses in Opposition (Docs. ##44, 45) on July 8, 2019. Defendant Stephen Schengber filed a Reply (Doc. #49). For the reasons set forth below, the Motions are granted.

         I.

         The Amended Complaint alleges that plaintiff owned and operated Cappelli's Catering, Inc. in Naples, Florida, which held a workers' compensation insurance policy with Hartford. (Doc. #22, pp. 6-7.) In August 2014, plaintiff sustained a workplace injury to his left hand and reported the injury claim to Hartford for workers' compensation claim. (Id., p. 7.) Thereafter, plaintiff started receiving benefits. At some point plaintiff began experiencing psychological symptoms, which he believes stem from his 2014 hand injury, precluding him from working. (Id., p. 7-12.) On September 2, 2015, plaintiff filed a Petition for Benefits in the Office of the Judges of Compensation Claims[1], and through the course of that case was evaluated by specialists for “mental/behavioral health disabilities.” (Id., p. 9.)

         Plaintiff alleges that on February 8, 2017, a final hearing was held on his benefits claim and on February 14, 2017, a Judge of Compensation Claims entered an Order authorizing a psychiatric evaluation of Sbrocco. (Doc. #22, p. 11.) Plaintiff claims that Hartford is in contempt of that order for failing to authorize the evaluation. (Id.) Nonetheless, plaintiff states that defendant Dr. Schengber evaluated him, but plaintiff claims the doctor is not qualified. (Id., pp. 11-12, 22.) In October of 2017, plaintiff's workers' compensation benefits were suspended, and plaintiff voluntarily dismissed the compensation case on January 23, 2019 in favor of filing a Complaint in this Court on January 31, 2019.[2] (Id., p. 12.)

         On March 25, 2019, plaintiff filed an Amended Complaint (Doc. #22) against Hartford and Dr. Stephen Schengber, titled “RICO[3]Complaint.” Jurisdiction was based on federal question and plaintiff brought RICO claims, “federal healthcare offenses, ” and various purported criminal acts stemming from plaintiff's claim for workers' compensation benefits. Because the Amended Complaint was a shotgun pleading, the Court dismissed it and allowed plaintiff to amend. (Doc. #39.) In its Opinion and Order, the Court pointed out that it was unclear whether plaintiff could state a RICO claim because a loss or diminution of benefits plaintiff expected to receive under a workers' compensation claim likely would not constitute an injury to “business or property” under RICO. (Id., pp. 7-8.)

         On June 10, 2019, plaintiff filed a six-count “Second Amended RICO Complaint, ” asserting federal question jurisdiction (Doc. #40), alleging RICO claims, as well as state law claims for intentional and negligent infliction of emotional distress. Plaintiff asserts that he is entitled to relief for Florida worker's compensation benefits through this Court under RICO because each defendant has committed at least two or three intentional racketeering torts that resulted in the diminution of his benefits. Defendants again move to dismiss the RICO claims, in part, because plaintiff has not plausibly alleged an injury to business or property under RICO. The Court agrees.

         II.

         Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         A pleading drafted by a party proceeding unrepresented (pro se) is held to a less stringent standard than one drafted by an attorney, and the Court will construe the documents filed as a complaint and amended complaint liberally. Jones v. Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015). Nevertheless, “a pro se pleading must suggest (even if inartfully) that there is at least some factual support for a claim; it is not enough just to invoke a legal theory devoid of any factual basis.” Id.

         III.

         A. RICO Claims

         RICO makes it 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....” 18 U.S.C. § 1962(c). “To recover, a civil plaintiff must establish that a defendant (1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at least two racketeering acts.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1348 (11th Cir. 2016) (internal citations omitted). A civil plaintiff ...


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