The opinion of the court was delivered by: Brewster, Senior District Judge.
ORDER: (1) VACATING PREVIOUS ORDER OF MAY 14, 1999 PUBLISHED AT
52 F. Supp.2d 1183 NUNC PRO TUNC; (2) DISMISSING PLAINTIFFS' RICO
CLAIM WITHOUT LEAVE TO AMEND; and (3) DISMISSING WITHOUT
PREJUDICE ALL PENDENT CLAIMS
Plaintiffs herein, alleged residents of New York and
California, claim to be purchasers, or the guardian ad litem of
purchasers, of trading cards. Plaintiffs allege that they
purchased trading cards in the hope of winning "chase"*fn1
cards, redeemable in bonus cash prizes. Defendant is an alleged
resident of New York and Delaware. On April 18, 2000, this Court
ordered Plaintiffs to show cause as to why the claim brought
under the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1961-1968, should not be dismissed for
lack of standing under § 1964(c) of RICO. The hearing for this
Court's Order to Show Cause ("OSC") was held on June 7, 2000
with counsel for all parties present.
The Court re-reviewed all pleadings, motions, and briefs
heretofore filed as well as all briefs filed in response to the
OSC. The Court, having heard oral argument by counsel and being
fully advised in the premises, now therefore issues the
(1) The prior order of May 14, 1999 denying
Defendant's Fed.R.Civ.P. 12(b)(6) motion to dismiss
is hereby vacated nunc pro tunc;
(2) The RICO claim is dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) without leave to amend on the
ground that Plaintiffs lack standing as required by §
1964(c) of RICO; and
(3) All pendent claims are dismissed without
prejudice pursuant to 28 U.S.C § 1367.
A. Standing Requirement under 18 U.S.C. § 1964(c)
Pursuant to this Court's April 18, 2000 Order to Show Cause,
the issue before this Court is whether Plaintiffs have met the
requirement of 18 U.S.C. § 1964(c) in order to have standing to
bring a lawsuit against Defendant for its alleged gambling
activity. Standing under 18 U.S.C. § 1964(c) requires an ability
to state a claim for harm to a person's "business or property"
resulting from conduct violative of 18 U.S.C. § 1962.
Section 1964(c) provides in pertinent part: "Any person
injured in his business or property by reason of a violation
of section 1962 of this chapter may sue therefore in any
appropriate United States district court and shall recover
threefold the damages he sustains and the cost of the suit,
including a reasonable attorney's fee. . . ."
18 U.S.C. § 1964(c) (emphasis added). Federal courts have established that
RICO was "intended to combat organized crime, not to provide a
federal cause of action and treble damages to every tort
plaintiff." Oscar v. University Students Co-operative Assn.,
965 F.2d at 783, 786 (9th Cir. 1992). Although this additional
requirement of a showing of "business or property" injury is not
imposed upon governmental entities, it is required in order for
a private party to have standing to recover under RICO.
2. "Injury" to Business or Property under
18 U.S.C. § 1964(c)