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July 14, 2003


The opinion of the court was delivered by: MARILYN PATEL, Chief Judge,

MEMORANDUM & ORDER Motion for Partial Judgment and Motion for Summary Judgment
The Caitlin Ann fishing company, its managing director John Dooley, and several crew members bring this action against three fishing associations and their members, as well as a purveyor of fish, seeking relief for alleged interference with the Caitlin Ann's Dungeness crab harvesting off the coast of California. Now before the court are defendants' motion for partial judgment on plaintiffs' Racketeer Influenced and Corrupt Organizations Act ("RICO") claim, and plaintiffs' motion for summary judgment on a defendant's*fn1 counterclaims. After having considered the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows.


  The Caitlin Ann company, a Washington limited liability corporation, is the owner of a fishing boat also named the Caitlin Ann. JSUF ¶ 4; First Am. Compl. ¶ 4. Under the management of Dooley, the company harvests Dungeness crab off the coast of California, Washington and Oregon. First Am. Compl. ¶ 5. Both plaintiffs and defendants agree that crabs are harvested commercially using steel and wire traps, or pots, that rest on the ocean floor. JSUF ¶ 7. A buoy, attached to each pot, acts as a marker for the fishermen. Id.

  The parties agree on little else. According to plaintiffs, the conflict between the parties began when the State of California opened the Northern California Dungeness crab season on December 1, 1999. First Am. Compl. ¶ 30. Plaintiffs contend that two fishermen's marketing associations not named in this action refused to harvest crab in an effort to negotiate a favorable fixed price with buyers. Id. In solidarity, members of the three defendant associations — the Crab Boat Owners Association

[271 F. Supp.2d 1209]

      ("CBOA"), the Fishermen's Marketing Association Incorporated of Bodega Bay ("FMABB"), and the Half Moon Bay Fishermen's Marketing Association ("HMBFMA") — also allegedly refused to fish in order to gain a better price. Id. ¶ 3 1. Plaintiffs, however, did not join the "strike." Id. ¶ 32. When the Caitlin Ann boat returned to port on or about December 10, 1999, plaintiffs claim that a group of angry HMBFMA members confronted the crew and yelled "scabs." Id. ¶ 33. Dooley later discovered that the word "scab" had been spray painted on the side of the vessel. Id. ¶ 35. During the next crab season, members of the three associations allegedly refused to sell their crab to Three Captains, the company that bought "scab crab" from plaintiffs. Id. ¶ 36.

  When the Southern California Dungeness crab season opened the next year on November 15, 2001, plaintiffs claim that the three defendant associations and their members once again refused to fish so as to fix a favorable price. Id. ¶¶ 38 & 39. The Caitlin Ann company had already contracted with a buyer, Exclusive Fresh, and planned to harvest crab once the season began. Id. ¶ 37. Before the boat left on November 16, 2001, plaintiffs allege that two association members threatened Dooley with trouble if he harvested crab during the strike, and a group of members came to the dock and threatened the crew. Id. ¶¶ 42 & 48. The FMABB president, defendant William Wise, also allegedly threatened Bodega Bay Fish to prevent the company from providing bait or purchasing crab from another fisherman who planned to fish during the strike. Id. ¶ 47. On November 17, 2001, the crew of the Caitlin Ann returned to an area they had set with pots and found approximately 400 lines had been cut. Id. ¶ 50. The next day, the crew discovered about 200 more cut lines, for a total of 647 pots lost. Id. Plaintiffs allege that defendant Todd Whaley,*fn2 a member of one or more of the defendant associations, was involved in cutting the lines. Id. ¶ 54. After Caitlin Ann's crew had begun fishing, Exclusive Fresh refused to perform its contract with Caitlin Ann, allegedly because of threats from association members. Id. ¶¶ 43-46.

  Dooley intended to return to Half Moon Bay on November 19, 2001 and had made plans with the harbormaster to use the transient dock, the only space that could accommodate a boat the size of the Caitlin Ann. Id. ¶¶ 58 & 59. When Dooley arrived at the harbor, however, the transient dock was blocked by another boat owned by defendant Duncan Maclean, a HMBFMA member. Id. ¶ 60. Plaintiffs contend that Maclean, encouraged by the associations, deliberately blocked the Caitlin Ann from docking in order to punish plaintiffs for harvesting crab during the strike. Id. Plaintiffs sailed to San Francisco, resulting in additional costs and loss of crab. Id. ¶ 61. After plaintiffs found a new buyer for their crab, J & S Quality Seafood, members of the associations allegedly threatened the owner of J&S with "blackballing" if he purchased "scab crab." Id. ¶ 64. The members were allegedly assisted by defendant John Morgan, owner of Morgan Fish, a large purveyor of Dungeness crab. Id. ¶¶ 62-65. Plaintiffs contend that once J&S bought plaintiffs' crab, Morgan contacted customers of J&S to dissuade them from purchasing the crab and even intercepted customers in front of the J&S store. Id. ¶ 65. When the associations agreed on a fixed "ex-vessel" price with buyers on or about December 5, 2001, they allegedly refused to sell crab to J&S.*fn3 Id. ¶¶ 66-67.

[271 F. Supp.2d 1210]


  In turn, defendant HMBFMA alleges in its counterclaims that the Caitlin Ann company and Dooley (collectively "counterdefendants") sold crab below cost from 1999 to the present, used a boat that had a trawling net in violation of state permitting requirements, and in 1999 fished in a wasteful and destructive manner. Countercl. ¶¶ 7, 8 & 9. HMBFMA also alleges that counterdefendants threatened HMBFMA members and other fishermen with damage to their fishing gear, and did in fact damage gear by trawling through fishing areas already set with pots. Id. ¶ 10.


 I. Motion for Judgment on the Pleadings

  After all parties have submitted their pleadings, any party may invoke Federal Rule of Civil Procedure 12(c) and move for judgment on the pleadings as long as consideration of the motion does not delay trial. Fed.R.Civ.P. 12(c). "Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios. Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). The court accepts all allegations of the nonmoving party as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984). If the court reviews matters outside the pleadings, the motion is properly treated as a motion for summary judgment. Fed.R.Civ.P. 12(c).

 II. Motion for Summary Judgment

  Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

  Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). Nor is it sufficient for the opposing party simply to raise issues as to the credibility of the moving party's evidence. National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983). If the nonmoving party fails to show ...

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