The senario that I give is based on a case that is already filed in the eastern district of N.C. There is currently a motion to dismiss filed, and I have filed my memorandum in opposition. I am awaiting a ruling, and in the mean time preparing a Rule 59 motion in the event the action is dismissed. The main concearn I have is that while certian court opinions indicate that my theory should be good, I find no doctrine directly on point as to my open-ended continuity theory (most opinions tell us what isn't open-ended continuity, but none that I can find specifically say that my senerio is or is not). There is some evidence that suggests that my situation is defendants' usual means of conducting buisness, but I can't alege it with particularity without formal discovery. Furthermore, this company targets military personell who have been permanently transferred away from North Carolina, I need federal jurisdiction because many of the victims that I need to depose are in Germany, Korea, Japan, ect. Therefore, I am stuck with open-ended continuity, and if this goes up on appeal, I may end up arguing a case of first impression on a national basis (ie. this isue is not only new the the fourth circuit, but to all circuits). I don't like this idea, as courts tend to be hostile to civil RICO claims (although 4 cir. has a long history of being relatively fair to plaintiffs in comparison to some other jurisdictions).
Also, I looked at the pro se complaint you linked to. When I read it I thought it was horible. Then I looked up the rest of the case file. It turns out that pro se plaintiff had already filed similar suits in other jurisdictions where the actions had been dismissed. The case was dismissed with prejudice on the basis of issue and claim perclusion, but if it hadn't been, that complaint would have failed on the merits anyway.
Here is a less complicated question. I have also claimed diversity jurisdiction, and in my memorandum in opposition to the motion to dismiss I had to argue the amount of damages. Listed below is a verbatim exerpt from my memorandum, is the calculation of damages acurate?
We next note that treble damages can be awarded under each of N.C. Gen. Stat. § 75-16, N.C. Gen. Stat. § 75D-8, and 18 U.S.C. § 1964. Furthermore, remedies for both state and federal RICO claims are cumulative on other remedies, see N.C. Gen. Stat. § 75D-10. Therefore, if treble damages are awarded under all three, and the compensatory damages are $14,650.30, then total damages (excluding punitive damages) are 9 times compensatory damages plus $4,000 in civil penalties under N.C. Gen. Stat. § 75-56, or $135,852.70.
In North Carolina, a plaintiff cannot receive both treble damages for unfair and deceptive trade practices and punitive damages for fraud when both claims are based on the same set of facts. Instead the plaintiff takes the greater of treble damages or punitive damages, Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986). We presume that this same standard applies to our federal RICO claim, see N.C. Gen. Stat. § 1D-20. However, “a statute dealing with a specific situation controls, with respect to that situation, [over] sections which are general in their application.” State ex. rel. Util. Comm’n v. Lumbee River Elec. Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969); see also Credit Union Ins. Corp. v. United States, 86 F.3d 1326 (4th Cir. 1996) (“a specific statute controls over a general provision…”). The general rule is that a plaintiff must chose between punitive damages and other multiple damages remedies, N.C. Gen. Stat. § 1D-20. However, specifically for RICO violations, “[c]ivil remedies… are cumulative, supplemental and not exclusive…” N.C. Gen. Stat. § 75D-10. Therefore, plaintiffs must chose between either damages multiplied by 9 for UDTP, federal RICO, and N.C. RICO, or punitive damages plus damages multiplied by 3 for N.C. RICO. We have alleged two separate fraud scams based on two separate sets of facts, and the jury is limited to awarding no more than $250,000.00 for each tort claim, N.C. Gen. Stat. § 1D-25(b). Therefore, if we include punitive damages, the maximum net damages possible are 3 times compensatory damages plus $4,000 in civil penalties plus 2 times $250,000.00, or $547,950.90.