                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2005

Breslin v. Brainard
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2590




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Recommended Citation
"Breslin v. Brainard" (2005). 2005 Decisions. Paper 1384.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1384


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                                              NOT PRECEDENTIAL

     IN THE UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                    Case No: 04-2590

                 MICHAEL T. BRESLIN,

                             Appellant

                                 v.

      NORTON BRAINARD; GERALD MCNAMARA;
        WILLIAM OSWALD; JAMES E. SMITH, JR.;
   INTERNATIONAL BROTHERHOOD OF TEAMSTERS
          LOCAL 115; EDWARD F. KEYSER, JR.;
         JAMES P. HOFFA; CHARLES ARGEROS;
   SEAN HEIM; PAUL VANDERWOUDE; LEO REILLY;
DAVID M. KNORR; COMMONWEALTH OF PENNSYLVANIA;
  JOHN DOES 1-20; INTERNATIONAL BROTHERHOOD
     OF TEAMSTERS; T.D.'S PUB; JOSHUA JOHNSON;
               WILLIAM G. ANDERSON
                _____________________

      On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 District Court No. 01-CV-7269
     District Judge: The Honorable William H. Yohn, Jr.
                   _____________________

            Submitted Pursuant to LAR 34.1(a)
                      April 1, 2005

    Before: ALITO, SMITH, and FISHER, Circuit Judges

                   (Filed: April 7, 2005)
                 _____________________

                OPINION OF THE COURT
                 _____________________
SMITH, Circuit Judge.

        Michael T. Breslin contests the District Court’s granting of summary judgment to the

defendants on his substantive civil Racketeer Influenced and Corrupt Organizations (RICO)

claim (Count III of his Amended Complaint) and his civil RICO conspiracy claim (Count IV).

The District Court exercised jurisdiction pursuant to 18 U.S.C. § 1964(c). This Court has final

order jurisdiction, 28 U.S.C. § 1291.

        Our review is plenary, and we apply the same test as the District Court. Goodman v.

Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976). Viewing the facts in the light most

favorable to the non-moving party, if we are convinced that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law, we will affirm the

District Court’s judgment. Fed. R. Civ. P. 56(c). Upon a motion for summary judgment, the

non-moving party must “make a showing sufficient to establish the existence of [every] element

essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because we agree with the District Court

that Breslin has not shown that he was proximately harmed by a RICO predicate offense, we

affirm.1

Facts

        Breslin was a supporter of John Morris, the former principal officer of the International

Brotherhood of Teamsters (IBT) Local 115. Morris was removed from his positions when, in

response to alleged corruption, James Hoffa, Jr., the IBT President, imposed an emergency



  1
     Because we conclude that none of the alleged acts of racketeering proximately caused Mr. Breslin’s
injury, we need not consider whether those acts form a “pattern of racketeering.”

                                                  2
trusteeship on Local 115. This Court approved the decision to impose the trusteeship in Morris

v. Hoffa, 361 F.3d 177 (2004).

       Breslin, who was a state parolee at the time, worked at Huff Paper Company, a Local 115

shop. While picketing and demonstrating against the trusteeship at the Local 115 Union Hall,

Breslin directed what could be characterized as threats at trusteeship supporters. Defendant

Norton Brainard, an attorney employed by the Local 115 Legal Services Fund, believing that

Breslin’s statements may have constituted assault in violation of his parole, contacted Breslin’s

parole officer, Defendant David Knorr. Knorr met with Brainard and Defendant Gerard

McNamara, Local 115 Recording Secretary, and viewed a videotape of Breslin on the picket line.

At Knorr’s request, Brainard and McNamara prepared affidavits describing Breslin’s actions.

       After receiving the affidavits, Knorr called Breslin to the parole office. A search of

Breslin’s car revealed a cell phone and various knives, which Breslin was prohibited from

possessing. Breslin was held pending a parole revocation hearing. Brainard and McNamara

testified against Breslin at the hearing. Breslin was found by the Parole Board to have violated

four conditions of his parole, including a failure to refrain from assaultive behavior, and was

recommitted to prison for approximately 13 months. When Breslin failed to report to work

because he was in custody, Huff fired him for absenteeism and job abandonment.

       Breslin contends that his re-incarceration was part of a scheme to silence him from

revealing the racketeering activities involving contraband cigarettes and illegal gambling of

various IBT and Local 115 officers and members, all of whom were trusteeship supporters.

Breslin asserts he was injured by the loss of his job following an unlawful arrest, parole

revocation, and re-incarceration, all in violation of federal witness tampering law, 18 U.S.C. §


                                                 3
1512.

        Breslin also accuses various defendants of threatening Local 115 members with loss of

their jobs if they did not support the trusteeship. From these alleged threats Breslin crafts a claim

that he suffered damage to his property interest in a corruption-free union, in violation of federal

law prohibiting interference with commerce by way of threats, 18 U.S.C. § 1951.

Analysis

        To set out a prima facie showing of a civil RICO violation under 18 U.S.C. § 1964(c), a

plaintiff must have been injured by “racketeering activity,” 18 U.S.C. § 1962(c)-(d).

“Racketeering activity” is defined as a violation of certain enumerated statutes – commonly

known as “predicate acts” – in 18 U.S.C. § 1961(1), which list includes both 18 U.S.C. § 1512

and 18 U.S.C. § 1951. The plaintiff must show not only that the racketeering activity was the

“but for” cause of his injury, but that it proximately caused his injury as well. Holmes v. SIPC,

503 U.S. 258, 268 (1992).

        Though Breslin has sufficiently shown that but for the alleged witness tampering he

would not have lost his job, his claim fails to show that the § 1512 violations proximately caused

his termination. Huff terminated Breslin simply because he failed to show up for work, not

because a named defendant committed a RICO predicate act by illegally influencing someone in

Breslin’s chain of command at Huff to fire him. Breslin’s RICO claim premised on the loss of

his job thus fails to show that the termination was proximately caused by a RICO predicate act.

See Anderson v. Ayling, 396 F.3d 265, 271 (3d Cir. 2005).

        Regarding Breslin’s claim that he “sustained pecuniary losses from the damage to his

intangible property rights in a corruption free and democratic union,” this Court has recently


                                                 4
stated that such corruption “is not a cognizable injury that can create RICO standing.” Id. at 271.

Therefore, Breslin’s second claim also fails, and we will affirm the judgment of the District

Court.




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