Kalika v. Boston & Maine Corporation etal.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 15-14043-GAO

KALIKA, LLC, and RICHARD L. KALIKA,

Plaintiffs,

v.

BOSTON & MAINE CORPORATION, PAN AM RAILWAYS, INC., PUBLIC SERVICE OF

NEW HAMPSHIRE, ROGER D BERGERON, ROBERT B. BURNS, R. MATTHEW CAIRNS,

ESQ., HANNAH K. IRVING, HUTTON N. SNOW, JOHN DOES 1–10, JANE DOES 1–10,

and DOES 1–10,

Defendants.

ORDER ON REPORT AND RECOMMENDATION

March 20, 2019

O’TOOLE, D.J.

The magistrate judge to whom this case was referred has issued a report and

recommendation (“R&R”) (dkt. no. 65) regarding pending motions to dismiss (dkt. nos. 40, 41,

and 46).

The plaintiffs1 have timely filed an objection to the R&R (dkt. no. 70), raising two

arguments: that the plaintiffs did not agree to dismiss their claims against defendants Cairns and

Irving with prejudice (directed to dkt. no. 41), and that magistrate judge erred in finding that this

Court lacked authority to exercise personal jurisdiction over defendants PSNH and Snow (directed

to dkt. no. 46).

Having reviewed the parties’ submissions and the objected-to matters de novo, I concur

with and accordingly ADOPT the R&R in its entirety. The motions to dismiss by the B&M

1 The plaintiffs are Richard L. Kalika and his limited liability company, Kalika, LLC. While it is

possible to read the objection as being made only on Mr. Kalika’s behalf, I assume it is made on

behalf of both plaintiffs.

defendants and defendants PSNH and Snow (dkt. nos. 40 and 46) are GRANTED. Because

defendants Cairns and Irving were dismissed with prejudice by explicit agreement stated on the

record at the motion hearing, their motion to dismiss (dkt. no. 41) is MOOT.

This action DISMISSED with prejudice.

It is SO ORDERED.

/s/ George A. O’Toole, Jr.

United States District Judge

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RICHARD L. KALIKA and

KALIKA, LLC,

Plaintiffs,

v. CIVIL ACTION NO.

15-14043-GAO

BOSTON & MAINE CORPORATION,

PAN AM RAILWAYS, INC.,

PUBLIC SERVICE OF NEW HAMPSHIRE,

ROGER D. BERGERON, ROBERT B. BURNS, ESQ.,

R. MATTHEW CAIRNS, ESQ.,

HANNAH K. IRVING, HUTTON N. SNOW,

JOHN DOES 1-10, JANE DOES 1-10,

and DOES 1-10,

Defendants.

REPORT AND RECOMMENDATION RE:

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

(DOCKET ENTRY # 40); DEFENDANTS’ MOTION TO DISMISS FOR FAILURE

TO STATE A CLAIM AND MOTION TO DISMISS FOR LACK OF JURISDICTION

(DOCKET ENTRY # 41); DEFENDANTS’ MOTION TO DISMISS

(DOCKET ENTRY # 46)

February 28, 2018

BOWLER, U.S.M.J.

Pending before this court is a motion to dismiss the

amended complaint filed by defendants Boston & Maine Corporation

(“B&M”), Pan Am Railways, Inc. (“PAR”), Roger D. Bergeron

(“Bergeron”), and Robert B. Burns, Esq. (“Burns”) (collectively:

“B&M defendants”) under Fed. R. Civ. P. 12(b)(6) (“Rule

12(b)(6)”). (Docket Entry # 40). Defendants Public Service of

New Hampshire (“PSNH”), R. Matthew Cairns, Esq. (“Cairns”),

Hannah K. Irving (“Irving”), and Hutton N. Snow (“Snow”) move to

dismiss the amended complaint under Rule 12(b)(6) and Fed. R.

Civ. P. 12(b)(2) (“Rule 12(b)(2)”) for lack of personal

jurisdiction. (Docket Entry ## 40, 41, 46). In addition, the

B&M defendants, PSNH, Cairns, Irving, and Snow (“defendants”)

seek a dismissal based on collateral estoppel and the statute of

limitations. (Docket Entry ## 41, 46). Plaintiff Richard L.

Kalika (“Richard Kalika”), who is proceeding pro se, and

plaintiff Kalika, LLC (“Kalika”) (collectively: “plaintiffs”)

oppose the motions. (Docket Entry # 53). After conducting a

hearing on January 12, 2018, this court took the motions (Docket

Entry ## 40, 41, 46) under advisement.

PROCEDURAL HISTORY

This matter arises from the parties’ efforts to establish

certain rights regarding a crossing over railroad tracks owned

by B&M and located in Merrimack, New Hampshire. (Docket Entry #

8, ¶¶ 2, 18). Richard Kalika is the sole owner of Kalika.

(Docket Entry # 8, ¶ 17). Kalika, in turn, owns land in

Merrimack that abuts B&M land and it purportedly acquired

certain rights to the crossing. (Docket Entry # 8, ¶¶ 16, 56).

The amended complaint outlines the parties’ long, litigious

history over the crossing in the New Hampshire state courts and

how defendants have “repeatedly and intentionally interfered”

with plaintiffs’ rights to access Kalika’s land via the

crossing. (Docket Entry # 8, ¶ 2). The amended complaint

further alleges that defendants conspired through a “pattern of

racketeering” and “purposeful misrepresentations” regarding

B&M’s compliance with a conditional settlement agreement (“the

settlement agreement”) in order to obtain releases signed by

Kalika with respect to the crossing in violation of the

Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. § 1962 (“section 1962”). (Docket Entry # 8).

At the January 12, 2018 motion hearing, the parties orally

agreed to dismiss Cairns and Irving from this action. (Docket

Entry # 64). They also agreed to dismiss all of the counts in

the amended complaint except for Count Nine. (Docket Entry #

64). Captioned as a violation of 18 U.S.C. § 1962(d) (“section

1962(d)”), Count Nine sets out a RICO conspiracy claim. (Docket

Entry # 8, pp. 34-35). Defendants move to dismiss Count Nine on

the basis that there is no private right of action under RICO’s

criminal statutes. (Docket Entry # 40-1, pp. 6-7) (Docket Entry

# 42, pp. 11-13) (Docket Entry # 47, pp. 6-7). They correctly

maintain that “a private citizen has no authority to initiate a

federal criminal prosecution.” Cok v. Consentino, 876 F.2d 1, 2

(1st Cir. 1989) (“only United States as prosecutor” has

authority to bring a claim “under RICO, 18 U.S.C. §§ 1961–

1963”); see also Cichocki v. Massachusetts Bay Community

College, Civil Action No. 12-10728-GAO, 2013 WL 783068, at *10

(D. Mass. Feb. 28, 2013) (18 U.S.C. § 1512 does not provide a

private cause of action).

At the hearing and in their opposition, however, plaintiffs

contend they are not bringing a private cause of action under

the criminal RICO statute. Rather, the cited criminal statutes

in the amended complaint provide the requisite predicate acts

for a civil RICO claim under 18 U.S.C. 1964(c) (“section 1964”)

based on an unlawful section 1962(d) conspiracy. (Docket Entry

# 53, pp. 5-6). In light of Richard Kalika’s pro se status,

this court construes the cited criminal statutes as setting out

predicate acts for a section 1964(c) civil RICO claim in Count

Nine.

STANDARDS OF REVIEW

A. Rule 12(b)(2) Motion to Dismiss

When reviewing a motion to dismiss for lack of personal

jurisdiction, the court “accept[s] the allegations in the

complaint as true and construe[s] the facts in the light most

favorable to the plaintiff.” Phillips v. Prairie Eye Center,

530 F.3d 22, 24 (1st Cir. 2008). There are three competing

standards of review in this circuit when analyzing a motion to

dismiss for lack of personal jurisdiction. See World Depot

Corp. v. Onofri, Civil Action No. 16-12439-FDS, 2017 WL 6003052,

at *7 (D. Mass. Dec. 4, 2017). “The most conventional” and more

frequently employed standard is known as “the prima facie

method.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole,

290 F.3d 42, 50 (1st Cir. 2002); accord Foster–Miller, Inc. v.

Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The

prima facie method or standard allows the court “‘to consider

only whether the plaintiff has proffered evidence that, if

credited, is enough to support findings of all facts essential

to personal jurisdiction.’” Foster–Miller v. Babcock & Wilcox

Canada, 46 F.3d at 145 (quoting Boit v. Gar–Tec Products, Inc.,

967 F.2d 671, 675 (1st Cir. 1992)).

It is also well settled “that plaintiffs may not rely on

unsupported allegations in their pleadings to make a prima facie

showing of personal jurisdiction,” Boit, 967 F.2d at 675, and

the plaintiff “is obliged to adduce evidence of specific facts.”

Foster-Miller, Inc., 46 F.3d at 145. “Thus, allegations in a

[plaintiff’s] brief or legal memorandum are insufficient,”

Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001), while an

affidavit in support of the pleadings would be sufficient. See

Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1st Cir. 1995) (drawing

facts from pleadings and supplementary filings, including

affidavits). “[I]n evaluating whether the prima facie standard

has been satisfied, ‘the district court is not acting as a fact

finder; rather, it accepts properly supported proffers of

evidence by a plaintiff as true and makes its ruling as a matter

of law.’” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,

619 (1st Cir. 2001) (quoting United Elec. Radio & Mach. Workers

of Am. v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir.

1993)).

The second standard may appropriately be invoked when a

court determines that:

In the circumstances of a particular case it is unfair to

force an out-of-state defendant to incur the expense and

burden of a trial on the merits in the local forum without

first requiring more of the plaintiff than a prima facie

showing of facts essential to in personam jurisdiction. A

court may so determine, for example, when the proffered

evidence is conflicting and the record is rife with

contradictions or when a plaintiff’s affidavits are

“patently incredible[.]”

Boit, 967 F.2d at 676 (internal citations omitted). Under this

standard, “the court is to embark on a fact finding mission in

the traditional way, taking evidence and measuring the

plaintiff’s jurisdictional showing against a preponderance-of-

the-evidence standard.” Foster-Miller, Inc., 46 F.3d at 145.

“[T]he preponderance standard necessitates a full-blown

evidentiary hearing at which the court will adjudicate the

jurisdictional issue definitively before the case reaches

trial.” Id. at 146. In the case at bar, use of the more

stringent preponderance standard is inappropriate because the

record is neither rife with contradictions nor do plaintiffs

submit any patently incredible affidavits. Richard Kalika is

also proceeding pro se.

Courts additionally recognize a third, intermediate

standard “between requiring only a prima facie showing and

requiring proof by a preponderance of the evidence.” Boit, 967

F.2d at 677. “Thus, even though allowing an evidentiary hearing

and weighing evidence to make findings, the court may merely

find whether the plaintiff has shown a likelihood of the

existence of each fact necessary to support personal

jurisdiction.” Id. This method, however, should only be

applied in:

the special circumstance in which the assertion of

jurisdiction is bound up with the claim on the merits, the

possibility of preclusion renders use of the preponderance

standard troubling, while the possibility of permitting a

dubious case to proceed beyond the pleading stage, and even

to trial, though the court eventually will be found to lack

jurisdiction, renders use of the prima facie standard

undesirable.

Foster-Miller, Inc., 46 F.3d at 146. Here, the assertion of

jurisdiction is not bound up with the claim on the merits.

Accordingly, this court will apply the prima facie standard to

the remaining Rule 12(b)(2) motion brought by PSNH and Snow.1

B. Rule 12(b)(6) Motions to Dismiss

The standard of review for a Rule 12(b)(6) motion is well

established. To survive a Rule 12(b)(6) motion to dismiss, the

complaint must include factual allegations that, when taken as

1 As previously noted, the parties agreed to dismiss Cairns and

Irving.

true, demonstrate a plausible claim to relief even if actual

proof of the facts is improbable. See Bell Atlantic v. Twombly,

550 U.S. 555-558 (2007). Thus, although “not equivalent to a

probability requirement, the plausibility standard asks for more

than a sheer possibility that a defendant has acted unlawfully.”

Boroian v. Mueller, 616 F.3d 60, 65 (1st Cir. 2010) (internal

quotation marks omitted); accord Saldivar v. Racine, 818 F.3d

14, 18 (1st Cir. 2016); Feliciano-Hernandez v. Pereira-Castillo,

663 F.3d 527, 533 (1st Cir. 2011). “[A]ccepting as true all

well-pleaded facts in the complaint and making all reasonable

inferences in the plaintiff’s favor,” Boroian, 616 F.3d at 64,

the “factual allegations ‘must be enough to raise a right to

relief above the speculative level.’” Gorelik v. Costin, 605

F.3d 118, 121 (1st Cir. 2010); Gargano v. Liberty International

Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (court

“accept[s] as true all well pleaded facts in the complaint and

draw[s] all reasonable inferences in favor of the plaintiff”).

Legal conclusions in the amended complaint are not included in

the Rule 12(b)(6) record. See Dixon v. Shamrock Financial

Corp., 522 F.3d 76, 79 (1st Cir. 2008) (accepting “well-pleaded

facts as true, but reject[ing] ‘unsupported conclusions or

interpretations of law’” in reviewing Rule 12(b)(6) dismissal);

see, e.g., Soto-Torres v. Fraticelli, 654 F.3d 153, 157 n.2 (1st

Cir. 2011) (“complaint’s allegations that Soto–Torres was

‘illegally and unreasonabl[y] detained’ and that ‘excessive

force’ was used in pushing him to the floor are legal

conclusions that are not to be credited”).

Facts are confined to those in the amended complaint

supplemented by matters of public record, documents incorporated

by reference, and facts susceptible to judicial notice. Here,

the amended complaint refers to the settlement agreement (Docket

Entry # 8, ¶ 68), which is material to plaintiffs’ claim and

therefore part of the Rule 12(b)(6) record. See Freeman v.

Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (court may

consider “‘official public records; documents central to

plaintiffs’ claim; and documents sufficiently referred to in the

complaint’”) (ellipses and internal brackets omitted);

Giragosian v. Ryan, 547 F.3d 59, 65-66 (1st Cir. 2008) (can

consider documents relied on in complaint, public records, and

other documents subject to judicial notice). The settlement

agreement is also part of an exhibit attached to the amended

complaint and therefore part of the amended complaint. See Fed.

R. Civ. P. 10(c).

It is also appropriate to take judicial notice of the state

court filings in the various state court proceedings. See

Bluetarp Financial, Inc. v. Matrix Const. Co., Inc., 709 F.3d

72, 78 n.4 (1st Cir. 2013) (taking “judicial notice that neither

the South Carolina state-court case or the Maine state-court

case has gone to final judgment”); Ezra Charitable Trust v. Tyco

Intern., Ltd., 466 F.3d 1, 9 n.7 (1st Cir. 2006) (taking

“judicial notice of the SEC’s 2006 complaint against Tyco” filed

in district court, “the subsequent consent decree, and the final

judgment”). Moreover, plaintiffs do not challenge the

authenticity of the state court filings the B&M defendants

attach to their memoranda and they provide an authenticating

affidavit.

“Exhibits attached to the complaint are” also “properly

considered part of the pleading ‘for all purposes,’ including

Rule 12(b)(6).” Trans-Spec Truck Service, Inc. v. Caterpillar

Inc., 524 F.3d 315, 321 (1st Cir. 2008); Fed. R. Civ. P. 10(c).

In the case at bar, there are 39 exhibits attached to the

amended complaint. These exhibits include several deeds; New

Hampshire state court orders; a railroad police report; an

affidavit by Roger Bergeron; a deposition of Snow; the crossing

order including the settlement agreement; and a letter to B&M

and New Hampshire Department of Transportation about the

crossing. Accordingly, these exhibits are part of the Rule

12(b)(6) record.

Viewing the facts in plaintiffs’ favor and liberally

construing the amended complaint in light of Richard Kalika’s

pro se status, the facts are as follows. Recitations of the

various cases in the complaint are not set out to show legal

arguments or conclusions but, rather, to show the factual

allegations regarding the positions taken by the parties for

purposes of collateral estoppel.

FACTUAL BACKGROUND

The record reveals a lengthy dispute between the parties

involving railroad crossing rights on property in Merrimack, New

Hampshire owned by Kalika. In or around 2005, Kalika sued B&M

in New Hampshire Superior Court (Hillsborough County, Southern

District) in order to obtain the right to use the crossing to

build and operate a sports complex on its property. (Docket

Entry # 8, ¶ 63). The trial court ordered that a crossing be

provided, but not for a sports complex.2 (Docket Entry # 8, p.

13). Kalika appealed the decision regarding the use restriction

and B&M cross-appealed. (Docket Entry # 8, p. 13). The New

Hampshire Supreme Court remanded the case to the trial court,

which determined on remand that “B&M was to provide a crossing,”

but “Kalika’s proposed use was an unsanctioned enlargement of

the deed.” (Docket Entry # 8, ¶ 66).

In September 2010, B&M and Kalika agreed to a conditional

settlement embodied in the aforementioned settlement agreement.

2 “The court ruled that [the] use of the crossing created by the

deed was restricted to what would have been a typical use of the

property back in 1841 - farming and residential access” - “which

did not include sports complexes.” (Docket Entry # 8, p. 13).

Richard Kalika signed the agreement on behalf of Kalika. The

settlement agreement requires: B&M to construct the crossing in

45 days in accordance with certain parameters; and Kalika and

B&M to provide releases and “execute Docket Markings terminating

the litigation” in New Hampshire state court and before the New

Hampshire Board of Transportation. (Docket Entry 42-2, pp. 6-

11) (Docket Entry # 8-16). More specifically, section 1(b) of

the settlement agreement states that: “Kalika and the Railroad3

shall provide releases of any claims, actions or causes of

action which either party may have against the other related to

the crossing . . .” (Docket Entry ## 8-16, 42-2).

On November 30, 2010, Cairns, on behalf of B&M, sent a

letter to Kalika “by U.S. Mail” stating that, “B&M had completed

the Kalika crossing in accordance with the requirements outlined

in the Conditional Settlement Agreement” and demanding that

Kalika sign a revised release. (Docket Entry # 8, ¶ 74). After

this first letter went unanswered, Cairns sent a second letter

on December 7, 2010 (“the December letter”) again representing

that B&M had carried out its obligations to build the crossing

pursuant to the settlement agreement. (Docket Entry # 8, ¶ 74).

On December 15, 2010, Kalika signed the “releases and Docket

Markings” under the assumption that the crossing had been built

3 The settlement agreement refers to B&M as “the Railroad.”

(Docket Entry # 8-16).

per the terms of the settlement agreement. (Docket Entry # 8, ¶

74). The amended complaint alleges that the “Cairns/B&M letters

were purposeful misrepresentations made to extract signatures on

documents that Kalika had been unwilling to sign.” (Docket

Entry # 8, ¶ 75). The amended complaint further states that,

“B&M had in fact constructed the crossing at the direction of

Pan Am Railways.” (Docket Entry # 8, ¶ 83).

The mutual general release signed by Kalika and B&M on

December 15, 2010 extended to “all unknown, undisclosed,

unforeseen” and unanticipated injuries, harms, damages and

liability. (Docket Entry # 42-2). Kalika thereby agreed to

release B&M as well as its officers, employees, and related

entities from all causes of actions, suits, and “all other

liabilities . . . asserted or unasserted, known or unknown” that

Kalika or its owners “now have or hereafter” may have “by reason

of any matter” arising out of the litigation. (Docket Entry #

42-2).

In 2011, Richard Kalika altered the crossing. (Docket

Entry # 8, ¶¶ 84-85). In response, B&M and PSNH4 filed an action

4 “PSNH remov[ed] itself [from] the suit as part of [a] mediated

settlement agreement.” (Docket Entry # 8, ¶ 87). A release

signed on April 24, 2012 by plaintiffs and PSNH states:

Kalika, LLC, by its Managing Member, Richard L. Kalika, and

Richard L. Kalika, individually, . . . do hereby for

themselves and for their successors and assigns, release

against Richard Kalika and Kalika in July 2011 (“the July 2011

lawsuit”) in New Hampshire Superior Court (Hillsborough County,

Southern District). (Docket Entry # 8, ¶ 87) (Docket Entry #

42-4). Plaintiffs filed several motions which included: (1) a

motion to stay that alleged “B&M ha[d] fraudulently and

purposefully obstructed Kalika from the justice it sought”

(Docket Entry # 40-3, p. 11); (2) a motion to reconsider the

denial of the stay (Docket Entry # 40-6); and (3) a motion to

vacate and strike the releases (Docket Entry # 40-9). The third

motion asserted that the releases “were obtained under

fraudulent representations of fact, with [the] intention to

induce Kalika, LLC into signing” these documents. (Docket Entry

# 40-9). Plaintiffs’ motion to vacate and strike specifically

alleged that in the December letter Cairns, representing his

client B&M, made false representations regarding B&M’s

and forever discharge [PSNH] . . . and its employees . . .

from any and all claims, counterclaims, actions, causes of

actions, demands, rights, damages, costs, losses, expenses

and compensation whatsoever, which the undersigned has

asserted or which may or could hereafter be asserted by

the undersigned against or involving PSNH allegedly

resulting or to result from any and all acts, occurrences,

matters or events which are the subject of [this lawsuit],

including but not limited to the alleged alteration of a

railroad crossing . . ..

(Docket Entry # 47-3, p. 6) (emphasis added). The release

therefore encompassed future claims that “could hereafter be

asserted.” (Docket Entry # 47-3, p. 6).

performance in order to induce Kalika to execute the releases.

(Docket Entry # 40-9). The motion identified the

representations as false because, inter alia, certain posts and

fencing were on Kalika’s land, as opposed to B&M’s land, and the

width of the crossing was too narrow. (Docket Entry # 40-9).

Plaintiffs raised a similar argument in a March 2012 opposition

to B&M’s February 2012 summary judgment motion. (Docket Entry #

40-12). The trial court denied each of plaintiffs’ motions and,

in September 2012, allowed B&M’s summary judgment motion.

(Docket Entry ## 8, 40-5, 40-8, 40-11, 40-13).

The trial court’s decision allowing B&M’s motion for

summary judgment recounted the settlement agreement and the

parties’ litigation. The trial court also summarized

plaintiffs’ argument “that the crossing was not built to the

specifications in the conditional [settlement] agreement with

B&M” and rejected it because:

When Kalika signed and recorded all applicable documents

and stipulations for dismissal on December 15, 201[0], it

represented that the conditions of the agreement between

B&M and Kalika ha[d] been met. By doing so, Kalika waived

its right to challenge the suitability of the crossing.

(Docket Entry # 40-13, p. 7). In allowing B&M’s summary

judgment motion and denying plaintiff’s motion to vacate and

strike as well as plaintiffs’ motion to stay, the trial court

necessarily rejected plaintiffs’ argument that B&M fraudulently

induced Kalika to sign the releases with the misrepresentations

in the December letter. The trial court also deemed plaintiff’s

motion to compel and reopen discovery moot. Plaintiffs appealed

and the New Hampshire Supreme Court, after reviewing the record,

the trial court’s “well-reasoned order,” and plaintiffs’

arguments, affirmed the trial court’s ruling on the merits.

(Docket Entry # 40-14).

In the years following the New Hampshire Supreme Court’s

decision, plaintiffs instituted a number of administrative

actions to address the alleged deficiencies in the crossing.

(Docket Entry # 8, pp. 25-26). In December 2013, Kalika filed

an action in New Hampshire Superior Court (Hillsborough County,

Southern District) against B&M and Cairns (“the December 2013

lawsuit”). (Docket Entry # 40-15). In the complaint, Kalika

recounted the September 2010 settlement as well as the state

court and administrative actions leading to the settlement. The

complaint alleged that, “B&M and/or Cairns committed theft by

deception” and “extortion” and that the December letter

misrepresented that B&M had carried out its obligations.

(Docket Entry # 40-15, p. 5). More specifically, the complaint

asserted that B&M “extorted the releases from Kalika” and that

Kalika, relying on the false representation that B&M had met its

obligations, signed the releases. (Docket Entry # 40-15, pp.

35, 42-43). The trial court granted B&M and Cairns’ motion to

dismiss in May 2014 stating that, “The court does not intend to

expend further judicial resources by setting forth the often

litigated background of this case.”5 (Docket Entry # 40-17).

The New Hampshire Supreme Court denied Kalika’s appeal. (Docket

Entry # 40-18); Kalika, LLC v. Boston & Maine Corp., Civil

Action No. 2014-0452, 2015 WL 11071321, at *1 (N.H. Aug. 10,

2015).

DISCUSSION

A. Personal Jurisdiction

PSNH and Snow assert that this court lacks personal

jurisdiction over them and that they should therefore be

dismissed from suit pursuant to Rule 12(b)(2). They submit that

plaintiffs fail to establish that they had the requisite minimum

contacts to Massachusetts. PSNH argues that, because it does

business exclusively in New Hampshire and does not own property

in Massachusetts, plaintiffs cannot establish personal

jurisdiction in Massachusetts. (Docket Entry # 47, p. 8). Snow

argues that plaintiffs fail to allege any facts that show a

5 The trial court succinctly summarized the complaint as

alleging that: (1) Cairns fraudulently misrepresented in the

December letter that B&M carried “out all of its obligations to

construct the crossing . . . ; and (2) Kalika relied on this

misrepresentation when it signed stipulations on December 15,

201[0] for dismissal of any pending cases against [B&M].”

(Docket Entry # 40-17).

“nexus” or “ties whatsoever to Massachusetts” and, as a New

Hampshire resident, “his sole relation to this action is as an

employee of PSNH,” which does not provide the necessary ties

needed for personal jurisdiction in Massachusetts. (Docket

Entry # 47, p. 8).

Plaintiffs maintain this court has personal jurisdiction

over all defendants because the case involves a RICO conspiracy,

which provides this court with “jurisdiction over all

participants in the conspiracy, not merely those within the

borders of the state.” (Docket Entry # 53, p. 4). Plaintiff

submits that RICO allows for personal jurisdiction over all

defendants as long as plaintiffs can show at least one defendant

resides in Massachusetts and “if ‘the ends of justice require.’”

(Docket Entry # 53, pp. 4-5).

Plaintiffs bear the burden to establish personal

jurisdiction. See Negron-Torres v. Verizon Communications,

Inc., 478 F.3d 19, 24 (1st Cir. 2007) (plaintiff bears “burden

to demonstrate the existence of every fact required to satisfy

both the forum’s long-arm statute and the Due Process Clause of

the Constitution”) (internal quotation marks omitted).

Inasmuch as plaintiffs do not address the nexus and ties of PSNH

and Snow to Massachusetts, they fail in their burden to show

personal jurisdiction except insofar as they succeed based on

their RICO “ends of justice” argument.

RICO includes a number of subsections that govern personal

jurisdiction. As construed by this court, Count Nine sets out a

civil RICO cause of action under section 1964(c). Section 1965

of title 18 of the Unites States Code (“section 1965”) outlines

the requirements for service of process for a civil RICO action.

A recent decision from this district provides guidance on

section 1965:

The first section, § 1965(a), provides that a RICO action

may be brought against “any person” in any district “in

which such person resides, is found, has an agent, or

transacts his affairs.” The second section, § 1965(b),

provides that in any civil RICO action “in which it is

shown that the ends of justice require that other parties

residing in any other district be brought before the court,

the court may cause such parties to be summoned.” The

third section, § 1965(c), addresses service of subpoenas on

witnesses in cases brought by the United States. And the

fourth section, § 1965(d), provides that “[a]ll other

process . . . may be served on any person in any judicial

district in which such person resides . . ..”

World Depot Corp. v. Onofri, Civil Action No. 16-12439-FDS, 2017

WL 6003052, at *5 (D. Mass. Dec. 4, 2017). The First Circuit

has not yet determined whether section 1965(b) or section

1965(d) controls for nationwide service of process under RICO.

Id.

Other circuits use two different ways of interpreting

section 1965 in regard to service of process. Id. The majority

of circuits view section 1965(b) as controlling, meaning

“plaintiff must establish that the forum state has personal

jurisdiction over at least one defendant and that service of

process (and therefore the conferring of personal jurisdiction)

over other defendants may occur as ‘the ends of justice

require.’” Id. The Fourth and Eleventh Circuits hold that

1965(d) controls, meaning “personal jurisdiction exists over all

defendants if any one defendant has minimum contacts with the

United States—the relevant sovereign.” Id. (internal quotation

marks omitted). Following the majority of circuits, see Cory v.

Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229 (10th Cir. 2006)

(“join[ing] the Second, Seventh, and Ninth Circuits and

hold[ing] that subsection (b) of § 1965, rather than subsection

(d), gives RICO its nationwide jurisdictional reach”); Rolls-

Royce Corp. v. Heros, Inc., 576 F. Supp. 2d 765, 779 (N.D. Tex.

2008) (“Second, Seventh, Ninth, and Tenth Circuits have

determined that § 1965(b) is the provision that grants

nationwide service of process”); World Depot Corp. v. Onofri,

2017 WL 6003052, at *5, this court concludes that section

1965(b) applies and provides personal jurisdiction over all

defendants if plaintiffs establish that one defendant has

minimum contacts with Massachusetts and that the “ends of

justice require” personal jurisdiction over the non-resident

defendants. Id.

The amended complaint and attached exhibits provide

evidence of personal jurisdiction over the B&M defendants.

(Docket Entry # 8, pp. 3-4). The amended complaint reflects

that B&M’s “principal place of business” is “located in

Massachusetts” (Docket Entry # 8, ¶ 18) and a “Notice of Choice

of Crossing Location and Crossing Right” (“Notice of Crossing”)

identifies B&M as a “Corporation of Iron Horse Park, North

Billerica, Massachusetts” (Docket Entry # 8-36, p. 61).

Bergeron is a “recently retired Vice President for B&M,” as

stated in the amended complaint. (Docket Entry # 8, ¶ 21). In

a September 2012 notarized affidavit, Bergeron identifies

himself as the “Vice President of Special Projects and

Industrial Development” for B&M and states he “was directly

involved” with the “crossing at issue in this matter.” (Docket

Entry # 8-36, p. 18). In regard to PAR, the amended complaint

states that its headquarters is in North Billerica,

Massachusetts. (Docket Entry # 8, ¶ 19). A copy of a 2011

“Railroad Police” report likewise identifies “Pan Am Railways”

with an address at “Iron Horse Park N. Billerica, MA.” (Docket

Entry # 8-31). Burns has a work address at B&M’s principal

place of business in North Billerica, Massachusetts, according

to the amended complaint. (Docket Entry # 8, ¶¶ 18, 22). A

filing in one of the New Hampshire Department of Transportation

proceedings likewise notes this work address and his position as

corporate counsel of PAR. Finally, the B&M defendants do not

raise personal jurisdiction as a defense in their motion to

dismiss. See Fed. R. Civ. P. 12(b), 12(g), 12(h).

Accordingly, personal jurisdiction exists over the B&M

defendants. With personal jurisdiction sufficiently established

over the B&M defendants, the issue reduces to whether the “ends

of justice require” that PSNH and Snow “be brought before the

court.” 18 U.S.C. § 1965(b).

Adhering to a flexible application of the “ends of

justice,” see Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226,

1232 (10th Cir. 2006), even under this approach, “Plaintiffs’

failure to include a showing that an alternative forum does not

exist for prosecuting their actions is an important weight

against bringing the nonresident Defendants to” this forum.6

Brown v. Kerkhoff, 504 F. Supp. 2d 464, 496–97 (S.D. Iowa 2007);

6 In contrast to the Tenth Circuit in Cory, the Ninth Circuit

interprets the “ends of justice” to require a showing from the

plaintiff that there is no district with personal jurisdiction

over all the defendants. See Butcher’s Union Local No. 498,

United Food & Commercial Workers v. SDC Inv., Inc., 788 F.2d

535, 539 (9th Cir. 1986). Inasmuch as the United States

District Court for the District of New Hampshire appears to have

personal jurisdiction over all defendants and subject matter

jurisdiction adheres in a federal question case, plaintiffs fail

to satisfy the Ninth Circuit’s interpretation of the “ends of

justice” analysis.

see Crenshaw v. Antokol, 287 F. Supp. 2d 37, 42 (D.D.C. 2003)

(“[i]n undertaking the ‘ends of justice’ analysis, courts

consider a variety of factors” including “location of the

parties,” “judicial economy,” and existence of alternative

forum). The fact that New Hampshire provides a forum with

personal jurisdiction over all defendants therefore militates

against concluding that the ends of justice require that PSNH

and Snow “be brought before the court.” 18 U.S.C. § 1965(b).

Plaintiffs, who have the burden to establish jurisdiction,

point out that, because of the relative proximity of

Massachusetts to New Hampshire, it is no greater burden to

litigate this matter in Massachusetts than it is to litigate

this matter in New Hampshire. (Docket Entry # 53, p. 5). While

cognizant of this concern, it is not sufficient where, as here,

the property at issue is located in New Hampshire and personal

jurisdiction exists over all defendants in New Hampshire. See,

e.g., Fitzgerald v. Vogel, Civil Action No. 02-7849, 2003 WL

203562, at *3 (E.D. Pa. Jan. 29, 2003) (rejecting argument that

certain “defendants, who live in Atlantic City, will not be

inconvenienced by an hour’s ride to the federal courthouse in

Philadelphia” because judicial economy “is better served in a

single action in New Jersey where venue will be proper for all

defendants because the CVCA, the property out of which

plaintiffs’ claims arose, is located there”). In sum, the “ends

of justice” do not justify or require bringing the non-resident

defendants, PSNH and Snow, before this court under section

1965(b).7

B. Collateral Estoppel

Next, the B&M defendants argue that the doctrine of

collateral estoppel bars plaintiffs from bringing this action.

They maintain that the issues in this lawsuit have been raised

and actually litigated in New Hampshire state court and

administrative proceedings. In response, plaintiffs state that

the “conspiracy claims have not been litigated” and that

“actions in preventing Kalika from using his[sic] crossing have

never been litigated in court.” (Docket Entry # 53, pp. 7-8).

Plaintiffs also maintain that collateral estoppel does not apply

because the “state court” did not allow them discovery thereby

denying them a full and fair opportunity to litigate the issues.

(Docket Entry # 53, p. 8).

Collateral estoppel has “the dual purpose of protecting

litigants from the burden of relitigating an identical issue

with the same party or his privy and of promoting judicial

economy by preventing needless litigation.” See Parklane

7 Accordingly, it is not necessary to address the collateral

estoppel and other arguments PSNH and Snow make in their motion

to dismiss.

Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The doctrine

“bars a party to a prior action, or a person in privity with

such party, from relitigating any issue or fact actually

litigated and determined in the prior action.” 412 S. Broadway

Realty, LLC v. Wolters, 169 N.H. 304, 314 (2016) (internal

quotation marks omitted). “[T]he doctrines of res judicata and

collateral estoppel have been established to avoid repetitive

litigation so that at some point litigation over a particular

controversy must come to an end.” Appeal of Town of Goshen,

Civil Action No. 2014-0656, 2015 WL 11071569, at *2 (N.H. Aug.

19, 2015) (internal quotation marks omitted).

Where, as here, collateral estoppel involves the

application of New Hampshire state court judgments, the

preclusive effect of the issues determined in the New Hampshire

state courts is determined by applying New Hampshire collateral

estoppel law. See Melendez v. Autogermana, Inc., 622 F.3d 46,

56 (1st Cir. 2010); In re Strangie, 192 F.3d 192, 194 n.2 (1st

Cir. 1999) (“[w]hether a federal court is to accord collateral

estoppel effect to a state court judgment is controlled by state

law”); see also Giroux v. Fed. Nat. Mortg. Assen, 810 F.3d 103,

108 n.3 (1st Cir. 2016) (“‘effect of the New Hampshire court’s

final judgment on Giroux’s federal action is determined by

applying New Hampshire’s res judicata law’”) (internal brackets

omitted); Sutliffe v. Epping School District, 584 F.3d 314, 326–

27 (1st Cir. 2009). It is also “black letter law that

collateral estoppel can apply to preclude the relitigation in

federal court of issues previously determined in state court.”

Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29, 32 (1st

Cir. 1991).

Under New Hampshire state law, a party invoking the

doctrine of collateral estoppel must demonstrate the following

elements:

(1) the issue subject to estoppel is identical in each

action; (2) the first action resolved the issue finally on

the merits; (3) the party to be estopped appeared in the

first action or was in privity with someone who did; (4)

the party to be estopped had a full and fair opportunity to

litigate the issue; and (5) the finding at issue was

essential to the first judgment.

Garod v. Steiner Law Office, PLLC, 170 N.H. 1, 5–6 (2017). The

issues in the case at bar and, in particular, the remaining

count alleging a civil RICO conspiracy under section 1964(c),

see 18 U.S.C. § 1962(d), generally involve defendants’

intentional interference with Kalika’s right to use its property

by placing restrictions on the crossing. (Docket Entry # 8, ¶

2). More specifically, defendants engaged in mail fraud when

Cairns sent the December letter, as well as the prior November

2010 letter, to Kalika that led Kalika to sign the releases,

including the mutual general release, on December 15, 2010. The

December letter allegedly misrepresented that B&M had completed

its obligation to construct the crossing in accordance with the

settlement agreement when, in fact, the crossing was too narrow

and the gates and fencing were placed on Kalika’s property.8

(Docket Entry # 8, ¶¶ 74-75, 146).

With respect to the first element, the B&M defendants argue

that plaintiffs have “sought relief over the same perceived

misrepresentations with respect to the Settlement Agreement, and

other purported issues arising therefrom” in the previous

lawsuits, including the more recent December 2013 lawsuit.

(Docket Entry # 40-1, pp. 12-13). In response, plaintiffs

submit that their conspiracy allegations in regard to the

settlement agreement and the December letter have yet to be

litigated in court. (Docket Entry # 53).

Plaintiffs are correct that the section 1964(c) civil RICO

conspiracy claim they assert in this action has not yet been

litigated. A new legal theory augmented by immaterial changes

to factual circumstances, however, cannot be used to argue an

issue already decided in the state court. See Steel Hill Dev.,

Inc. v. Town of Sanbornton, 392 F. Supp. 1134, 1139 (D.N.H.

1974); see also Ramallo Bros. Printing v. El Dia, Inc., 490 F.3d

8 The amended complaint identifies additional ways in which B&M

did not comply with the settlement agreement and alleges that

defendants engaged in extortion as well as retaliation against a

victim.

86, 92 (1st Cir. 2007); Gray v. Kelly, 161 N.H. 160, 167 (2010).

By signing the releases, including the mutual general release,

plaintiffs agreed to B&M’s compliance and construction of the

crossing at that time, which was a crossing purportedly less-

than 24 feet wide with fencing and gates purportedly not located

on B&M’s property.9 As explained below, the trial court’s order

allowing B&M summary judgment determined that, by signing the

documents on December 15, 2015, Kalika represented that the

conditions at the time satisfied the settlement agreement and

Kalika thereby “waived its right to challenge the suitability of

the crossing.” (Docket Entry # 40-13, p. 7).

In the July 2011 lawsuit, plaintiffs raised the allegations

of the fraudulent misrepresentations in the December letter in

the motion to vacate and strike as well as in opposition to

B&M’s summary judgment motion. (Docket Entry ## 40-9, 40-12).

The trial court rejected the argument and allowed B&M’s summary

judgment motion. (Docket Entry ## 8, 8-36, 40-13). In the

December 2013 lawsuit, Kalika raised the issue of fraudulent

misrepresentations in regard to the December letter and the

trial court granted the motion to dismiss in favor of

defendants. (Docket Entry # 40-17). The July 2011 lawsuit and

9 Plaintiffs’ argument that the changes to the crossing

regarding the width, gates, and fencing (Docket Entry # 53, p.

8) amount to the same issue.

the December 2013 lawsuit sufficiently establish the

identicality of the issues that plaintiffs seek to relitigate in

this action.

Turning to the second element, in March 2012, plaintiffs

filed the opposition to B&M’s summary judgment motion in the

July 2011 lawsuit. (Docket Entry # 40-12). Plaintiffs argued

that Kalika signed the December 15, 2015 releases only because

it relied on the false representation in the December 7, 2010

letter that B&M had carried out its obligation to construct the

crossing as provided in the September 2010 settlement

agreement.10 (Docket Entry # 40-12, pp. 5-8). Plaintiffs raised

a similar argument in their motion to vacate and strike, which

the trial court denied in April 2012. (Docket Entry ## 40-9,

40-11). Furthermore, in the motion to vacate and strike as well

as in the motion to stay, plaintiffs argued that the gates and

fencing were on the property and the width of the crossing was

less than 24 feet wide. The trial court denied both motions.11

In September 2012, the trial court issued the opinion allowing

B&M’s summary judgment motion. (Docket Entry # 40-13). The

opinion again rejected plaintiffs’ argument regarding the false

representations in the December letter on the merits and

10 Plaintiffs also state that the settlement agreement was

attached to an October 2010 order by the New Hampshire

Department of Transportation. (Docket Entry # 40-12, p. 6).

11 See footnote nine.

necessarily determined that, “[w]hen Kalika signed” the December

15, 2015 documents, “it represented that the conditions of the

agreement between B&M and Kalika had been met” and thereby

“waived its right to challenge the suitability of the crossing.”

(Docket Entry # 40-13, p. 7). The New Hampshire Supreme Court

affirmed the trial court’s well-reasoned decision, which

included the above finding that Kalika signed the releases and

thus represented that B&M had met its obligations under the

settlement agreement. (Docket Entry ## 40-13, 40-14).

Accordingly, the trial court in the July 2011 lawsuit resolved

the issues “finally on the merits,” Garod, 170 N.H. at 5,

thereby satisfying the second element.

Addressing the third and fourth elements, Richard Kalika

and Kalika, as the parties “to be estopped,” id. at 5, were

defendants in the July 2011 lawsuit. They also had a full and

fair opportunity to litigate the purportedly false

representations in the December letter that B&M had met its

obligations to construct the crossing in accordance with the

settlement agreement. Indeed, plaintiffs presented the issue in

their motion to vacate and to strike, their motion to stay, and

in their opposition to B&M’s summary judgment motion. (Docket

Entry ## 40-9, 40-12, 42-5). Although plaintiffs argue that the

trial court denied them discovery (Docket Entry # 53), the

amended complaint recounts discovery insofar as it describes

Snow’s deposition and plaintiffs sought to reopen discovery,

albeit unsuccessfully, in the July 2011 lawsuit. (Docket Entry

# 8, ¶ 89) (Docket Entry # 40-13, p. 3).

Turning to the fifth element, the trial court’s finding was

essential to the order allowing B&M summary judgment in the July

2011 lawsuit. B&M sought rulings ordering plaintiffs not to

interfere with B&M’s and PSNH’s crossing rights as well as

ordering plaintiffs not to trespass or alter the crossing.

(Docket Entry # 40-13, p. 3). Plaintiffs defended Richard

Kalika’s actions in moving the posts and gates at the crossing

on the theory that Kalika signed the releases based on the false

representations in the December letter. In arriving at the

decision to prohibit plaintiffs from altering the crossing and

interfering with B&M’s and PSNH’s access to the crossing, the

trial court explicitly recounted and rejected plaintiffs’

argument. (Docket Entry # 40-13, pp. 7, 9). Finally, the New

Hampshire Supreme Court reviewed the merits and affirmed the

trial court. (Docket Entry # 40-14). Plaintiffs are therefore

collaterally estopped from relitigating the same issues in this

action against the B&M defendants. Under the doctrine of

collateral estoppel, plaintiffs “cannot seek to undo or redo in

federal court what has already been done in state court.”

Keystone Shipping, 109 F.3d at 52.

CONCLUSION

In accordance with the foregoing discussion, it is

RECOMMENDS12 that: the B&M defendants’ motion to dismiss with

prejudice (Docket Entry # 40) be ALLOWED; PSNH and Snow’s motion

to dismiss with prejudice (Docket Entry # 46) be ALLOWED as to

the Rule 12(b)(2) lack of personal jurisdiction and rendered

MOOT as to the Rule 12(b)(6) failure to state a claim; and that,

in light of the parties’ oral agreement to dismiss Cairns and

Irving from this action, that their motion to dismiss (Docket

Entry # 41) be rendered MOOT.

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge

12 Any objections to this Report and Recommendation must be filed

with the Clerk of Court within 14 days of receipt of the Report

and Recommendation to which objection is made and the basis for

such objection should be included. See Fed. R. Civ. P. 72(b).

Any party may respond to another party’s objections within 14

days after service of the objections. Failure to file

objections within the specified time waives the right to appeal

the order.