
USCA1 Opinion

	




          September 3, 1992     [NOT FOR PUBLICATION]                                 ___________________          No. 92-1056                                        CHRISTOPHER C. TRUNDY, ET AL.,                               Plaintiffs, Appellants,                                          v.                              RICHARD STRUMSKY, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Christopher C. Trundy on brief pro se.               _____________________               Paul J. McDonald, Steinkrauss & McDonald, Sonia S.  Baghdady               ________________  ______________________  __________________          and Gary F. Ritter on brief for appellees.               ______________          Sidney J. Dockser on brief pro se.          _________________                                  __________________                                 __________________                  Per Curiam.   In  1981 appellant Christopher  Trundy and                 __________            appellees Richard and Joanne  Strumsky and Edward and Deborah            McCormick  formed a  debt  collection agency  called National            Equity  Corporation.    Trundy   held  the  majority  of  the            company's  stock.   The enterprise  collapsed in  acrimony in            1984.   Trundy  then  sued his  four erstwhile  co-venturers,            along with  appellee Sidney Dockser, their  lawyer, and Wayne            Krupsky, an  accountant who  had worked for  National Equity.            He  alleged   that  the  six  defendants   had  violated  the            Racketeering Influenced and Corrupt Organizations Act (RICO),            18  U.S.C.    1961  et seq.,  by forcing  Trundy  out of  the            company and  converting its assets  to their own  benefit for            use  in a  new debt collection  agency called  North American            Equity.  Trundy also  asserted a number of pendent  state law            claims.                 At  length the  district court  heard and  granted Wayne            Krupsky's motion  for summary  judgment.  Although  the other            defendants  had not  filed dispositive motions,  the district            court  granted  summary judgment  to  them,  too, ruling  sua                                                                      ___            sponte that  Trundy had  failed to create  a triable  dispute            ______            about  an  essential  element  of   his  RICO  claim  --  the            commission  of  a "pattern"  of predicate  racketeering acts.            Trundy  appealed.   We  affirmed  the  judgment in  favor  of            Krupsky, but  remanded the matter  with respect to  the other            defendants   after  finding  that  Trundy  had  not  received                                         -2-            sufficient  notice  of  the  district  court's  intention  to            subject  his  claims  against  those  defendants  to  summary            judgment  scrutiny.   Trundy  v. Strumsky,  No. 90-1228  (1st                                  ______     ________            Cir., September 26, 1990).                 After  the remand,  the Strumskys,  the  McCormicks, and            Dockser  moved for  summary  judgment.   Trundy submitted  an            opposition and  the district  court, reiterating  its opinion            that  Trundy  had  not  created  a  triable issue  about  the            defendants' alleged commission of a "pattern" of racketeering            activity,  gave  judgment  to   the  defense.    This  appeal            followed.  We affirm.                 Before we can discuss  the merits of the appeal  we must            dispose of  a jurisdictional  matter.  The  amended complaint            named as plaintiffs "Christopher  C. Trundy, individually and            in behalf  of National Equity  Corporation."   The notice  of            appeal, however,  named only "Christopher C.  Trundy, et al."            as appellants.   It is settled  law that  a court of  appeals            "lacks power to  entertain an appeal from a  party who is not            specified in the  notice of  appeal," and that  the term  "et            al." does not indicate  that parties not otherwise designated            intend  to  join  the  appeal.   Kaiser  v.  Armstrong  World                                             ______      ________________            Industries, 872 F.2d 512, 513-14 (1st Cir. 1989).  Therefore,            __________            we  take this as an appeal only by Trundy "individually," and            not in behalf of the defunct corporation.                                         -3-                 Trundy   accused   the  defendants   of   violating  two            substantive  provisions  of the  RICO  statute,  18 U.S.C.               1962(b)  and (c),  by committing  a "pattern  of racketeering            activity."   His  opposition  to the  defendants' motion  for            summary judgment described  a number of events  which he said            constituted,  and   made  up  the  "pattern"   of,  predicate            racketeering acts.   With  only two exceptions,  however, the            source  of  his   description  was  his  unverified   amended            complaint.  A party who opposes a motion for summary judgment            must establish the existence  of a genuine issue  of material            fact, and in so doing "may not rest upon mere allegations in,            say,  an unverified  complaint  or lawyer's  brief, but  must            produce evidence  which would be admissible at  trial to make            out the requisite issue  of material fact."  Kelly  v. United                                                         _____     ______            States, 924 F.2d 355, 357 (1st  Cir. 1991).  See also Fed. R.            ______                                       ________            Civ.  P. 56(e)  (party opposing  motion for  summary judgment            "may  not rest upon the  mere allegations or  denials" of his            pleadings).                  Even if we were to credit  the unsupported assertions in            Trundy's  amended complaint, we would not find a RICO pattern            in the events he describes.  In order to establish a pattern,            a plaintiff  "must show that the  racketeering predicates are            related,  and that  they  amount  to  or  pose  a  threat  of                      ___            continued  criminal activity."    H.J., Inc.  v. Northwestern                                              __________     ____________            Bell  Telephone Co.,  492  U.S. 229,  239 (1989).     He  can            ___________________                                         -4-            establish that  the racketeering acts are  related by showing            that  they  "have  the  same or  similar  purposes,  results,            participants, victims, or methods of commission, or otherwise            are  interrelated by  distinguishing characteristics  and are            not  isolated events."    Id.  at  240.    He  can  establish                                      ___            continuity in either  of two  ways: (1) by  showing that  the            predicate acts "amount to"  continued criminal activity, that            is, "by proving a series of related predicates extending over            a substantial period of time," id. at 242,  or (2) by showing                                           ___            that the predicate acts  pose a threat of  continued criminal            activity in that "the  racketeering acts themselves include a            specific threat of repetition extending indefinitely into the            future [or] . . . are part of an ongoing entity's regular way            of doing business."  Id.                                 ___                 At  the core  of the  amended complaint  are allegations            that  various  of the  defendants  committed  eleven acts  of            extortion  in  1984  by  threatening  Trundy  with   criminal            prosecution,  public embarrassment, or (in one case) physical            harm if Trundy  did not  surrender his  interest in  National            Equity.  Trundy identified Mr. Strumsky as the source of four            of  these  threats, and  says  that  Mrs. Strumsky  made  one            threat, Mr. McCormick another, and Dockser three; he tells us            only  that "the defendants" made the other two.  Because they            had  similar methods  of  commission and  a  common goal  and            victim, the alleged  instances of extortion  are sufficiently                                         -5-            "interrelated by distinguishing  characteristics" to  satisfy            the relationship  requirement set forth by  the Supreme Court            in H.J., Inc.               __________                 The  allegations of extortion do not, however, establish            the  requisite "continuity."   First,  it is  clear that  the            defendants'  acts do not pose a  threat of continued criminal            activity.    By Trundy's  own  account,  the extortion  ended            nearly eight years ago  and nothing in the record  even hints            at the possibility of its revival.                 Second,  the  series  of  extortionate  threats  did not            amount  to continued criminal  activity.  The  Court in H.J.,                                                                    _____            Inc.  specifically  excluded  conduct "extending  over  a few            ____            weeks or  months" from its definition of a pattern.  492 U.S.            at  242.  The extortionate  threats here are  alleged to have            taken  place  over  a  period of  eight-and-one-half  months,            beginning  in late January 1983  and ending in  the middle of            September  of  that year.    Their  frequency, moreover,  can            accurately be described as  "sporadic."  See H.J., Inc.,  492                                                     ___ __________            U.S. at 239 (a pattern is not formed by "sporadic activity").            Trundy alleges that  the defendants made five threats  in the            five-day period between January 28 and February 1, one threat            later in February,  none in March, one in April,  none in May            or June, one in July,  none in August, and the last  three in            September.  Such fitful activity, extending over a  period of            only  several  months, does  not  demonstrate the  continuity                                         -6-            necessary  to  form  a RICO  pattern,  see,  e.g., Hughes  v.                                                   __________  ______            Consol-Pennsylvania  Coal Co.,  945  F.2d 594,  611 (3d  Cir.            _____________________________            1991)  (acts   committed  over  twelve-month   period  not  a            pattern); J.D.  Marshall Int'l,  Inc. v. Redstart,  Inc., 935                      ___________________________    _______________            F.2d  815, 820-21  (7th  Cir. 1991)  (thirteen months);  Kehr                                                                     ____            Packages, Inc.  v. Fidelcor, Inc.,  926 F.2d  1406, 1418  (3d            ______________     ______________            Cir.  1991)  (eight months);  Parcoil  Corp.  v. Nowsco  Well                                          ______________     ____________            Service, Ltd.,  887  F.2d 502,  503-5 (4th  Cir. 1989)  (four            _____________            months); Sutherland  v. O'Malley, 882 F.2d  1196, 1204-5 (7th                     __________     ________            Cir.  1989) (five  months),  especially where,  as here,  the            events are merely the constituent parts of a "single criminal            episode."  Apparel  Art Int'l, Inc. v.  Jacobson, No. 91-2070                       ________________________     ________            (1st Cir., June 26, 1992),  slip op. at 7-9; cf.  H.J., Inc.,                                                         ___  __________            492  U.S. at 240 (proof that the defendant "has been involved            in  multiple  criminal  schemes  would  certainly  be  highly            relevant to the inquiry into . . . continuity").                 Trundy contends  that the  relevant events in  this case            occurred over a period  of thirty-four rather than eight-and-            one-half months.  He obtains the higher figure by counting as            predicate  acts  the  alleged  filing  of  a  fraudulent  tax            document  by  Mrs.  Strumsky   in  September  1985,  and  the            incorporation  of  the second  debt collection  agency, North            American Equity, in November 1986.                  Trundy's calculation  is inconsistent with  the logic of            RICO's  pattern   requirement.      We   suppose   that   the                                         -7-            incorporation  of  North  American  Equity  might  be  deemed            "related" to the extortion  in an attenuated sense.   One can            infer relatedness  by assuming that the  act of incorporation            essentially renamed  what was once National  Equity, and thus            represented  the coup de grace  in a struggle  for control of                             _____________            the enterprise that began with the alleged extortion.                   Yet however related  it may be  to the earlier  threats,            the  incorporation  of  North   American  Equity  was  not  a            predicate  crime,  and  if   a  defendant's  misdeed  is  not            "racketeering activity," it cannot form an  element of a RICO            pattern.  See  Fleet Credit Corp. v. Sion, 893  F.2d 441, 445                      ___  __________________    ____            (1st Cir.  1990).  "Racketeering  activity" is defined  in 18            U.S.C.    1961(1) to mean the commission  of specific crimes,            including mail fraud  in violation  of 18 U.S.C.    1341  and            wire fraud in violation of 18 U.S.C.   1343.  We take it that            Trundy  considers  the incorporation  fraudulent,  but common            fraud is not racketeering activity, see Fleet Credit Corp. v.                                                ___ __________________            Sion, 893 F.2d  at 445, and we cannot assume  that the act of            ____            incorporation violated  either Section  1341 or Section  1343            absent evidence  that the fraud was  accomplished through use            of the mails  or interstate  wires.  The  assertions to  that            effect  in  Trundy's appellate  brief  do not  suffice.   See                                                                      ___            Gooley v.  Mobil Oil Corp.,  851 F.2d 513, 515  n.2 (1st Cir.            ______     _______________            1988)  ("representations   in  a  brief   are  an  impuissant            surrogate for a record showing").                                            -8-                 The allegedly fraudulent tax filing -- whether or not it            was accomplished  by mail or wire  -- was not  related to the                                                      ___            extortion in the sense  demanded by the definition of  a RICO            pattern.   According  to Trundy, the  fraud consisted  of the            false representation  in a tax  return that Trundy  alone was            responsible  for  National  Equity's unpaid  taxes;  it  thus            appears to have been  aimed not at the hijacking  of National            Equity, but  at  saddling Trundy  with a  debt that  properly            belonged to the defendants  as well.  Mrs. Strumsky's  effort            to  avoid tax liability was "too separate, too distinct . . .            to permit  a finding  that, taken together  with the  earlier            acts, it is part  of a racketeering 'pattern.'"   Apparel Art                                                              ___________            Int'l, Inc. v. Jacobson, supra, slip op. at 12-13.            ___________    ________  _____                 The judgment of the district court is affirmed.                                                       ________                                         -9-
