# OLD TOWN UTILITY & TECHNOLOGY PARK LLC v. CONSOLIDATED EDISON SOLUTIONS INC

> District Court, D. Maine · May 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10210690

## Case

- **Court:** District Court, D. Maine
- **Decided:** May 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

OLD TOWN UTILITY & )
TECHNOLOGY PARK, LLC, et al., )
)
Plaintiffs, )
)
v. ) 2:19-cv-00029-JDL
)
CONSOLIDATED EDISON, )
SOLUTIONS, INC., et al., )
)
Defendants. )

ORDER ON PLAINTIFFS’ MOTION FOR LEAVE TO AMEND

The Plaintiffs assert a variety of claims arising out of their allegedly wrongful
exclusion from business opportunities associated with a long-term energy supply
contract with the University of Maine System. Following one withdrawn motion for
leave to file an amended complaint and two unsuccessful motions for leave to file an
amended complaint, the Plaintiffs have moved for the fourth time for leave to file an
amended complaint. For the reasons that follow, the Plaintiffs’ motion (ECF No. 94)
is denied. In addition, I conclude that it is appropriate to remand the Plaintiffs’
remaining state-law claims to the Maine Superior Court.
I. RELEVANT PROCEDURAL HISTORY
In my December 30, 2019 Order denying the Plaintiffs’ first two motions for
leave to file an amended complaint, I addressed the relevant, albeit convoluted,
procedural history in this case. See ECF No. 93 at 1–4. I borrow liberally from that
exposition here.
This action was removed from the Maine Superior Court to this Court in
January 2019. Federal jurisdiction was premised on the presence of a federal
question, namely two counts in the 127-page complaint alleging violations of the

Racketeer Influenced and Corrupt Organization Act (“RICO”), with supplemental
federal jurisdiction over related state-law claims. See 28 U.S.C.A. §§ 1331, 1367
(West 2019). In February 2019, I granted the parties’ Joint Proposed Briefing
Schedule, which required the Defendants to file their motions to dismiss at the end
of the month and the Plaintiffs to file their responses in opposition by April 15. The
Plaintiffs also filed a Motion to Remand to State Court, asserting that the case should

be remanded primarily on abstention grounds.
On April 8, after the Defendants filed their motions to dismiss, and one week
before the Plaintiffs’ responses were due, the Plaintiffs filed a motion for leave to
amend their complaint, but they failed to submit a draft of the proposed amended
complaint. See ECF No. 54. The next day, Magistrate Judge John H. Rich III ordered
the Plaintiffs to file the proposed amended complaint within seven days, explaining
that it was needed “to provide the defendants with a fair opportunity to respond to

the plaintiffs’ motion” and “to provide the court with a meaningful opportunity to
adjudicate the merits of the plaintiffs’ motion.” ECF No. 55. The following day, on
April 10, the Plaintiffs moved to amend Magistrate Judge Rich’s scheduling order to
extend the period for the filing of the proposed amended complaint from April 15 to
May 3. The motion asserted that the Plaintiffs’ attorney was “leaving on an
international family vacation the morning of Saturday, April 13, 2019,” but it did not
indicate his scheduled return date. ECF No. 56 at 1. The motion further asserted
that the Plaintiffs’ attorney had to prepare the Plaintiffs’ response to the Defendants’
motions to dismiss due April 15, in addition to performing work required on other

cases.
On April 12, 2019, the Court denied the Plaintiffs’ Motion to Amend the
Procedural Order, noting that the Plaintiffs had not made a “particularized showing”
as to the need for an extension beyond “a busy April 12 and a vacation starting April
13 prior to multiple April 15 deadlines.” ECF No. 59. In addition, the Order noted
that the motion failed to explain why the Plaintiffs “waited more than five weeks

after the filing of the defendants’ motions to dismiss and just one week before the
deadline for their responses to file their motion to amend, without the proposed
amended complaint.” Id. (emphasis in original). On April 16, 2019, one day after the
Court’s deadline for the Plaintiffs to file the proposed amended complaint, the
Plaintiffs filed a notice with the Court stating that they “voluntarily withdraw their
Motion for Leave to Amend, without prejudice to or waiver of their right to file such
a motion at a later time.” ECF No. 63.

On May 28, the Court scheduled a hearing to be held on the motions to dismiss
and the motion to remand for June 18. Nearly two weeks later, the Plaintiffs filed a
motion to continue the hearing, which represented that their attorney had a “long-
scheduled family vacation” out of state. ECF. No. 73. The Defendants opposed the
motion, arguing that the Plaintiffs’ counsel delayed in alerting the Court to his
vacation and that he had previously “attempt[ed] to alter settled schedules with
untimely assertions of vacation.” ECF No. 74 at 1. In the Plaintiffs’ reply, counsel
asserted that he “misread his calendar when the hearing was originally scheduled,
but immediately notified the Court as soon as he saw the conflict.” ECF No. 75 at 1.

The Court granted the continuance on June 11, 2019, setting the hearing for the
following month. Two days later, the Plaintiffs filed a second motion for leave to
amend their complaint, this time attaching a 99-page amended complaint with
exhibits.
A hearing on the second motion for leave to amend, the motion to remand, and
the Defendants’ motions to dismiss was held on July 18. At the hearing, the Plaintiffs’

attorney offered the following explanation as to why, when the Plaintiffs filed their
motion to continue the June hearing, he had not alerted the Defendants or the Court
that the Plaintiffs would seek to amend their complaint just a few days later:
I didn’t deem it pertinent to the request to continue frankly. The sole
reason I was seeking continuance was to go on vacation with my family,
a long-scheduled vacation. I noted that I had misread my calendar in
my motion and apologized for that inadvertent mistake; but as stated in
the motion, as this Court is well aware, that there isn’t necessarily even
a need to file a motion for leave to amend before motions to dismiss are
heard.

ECF No. 84 at 37.
On September 30, I issued my decision on the Defendants’ motions to dismiss,
granting them in part and denying them in part, and I scheduled a hearing on the
Plaintiffs’ second motion for leave to file an amended complaint for November 4. See
ECF Nos. 86, 87, 88. On the morning of the hearing, the Plaintiffs filed their third
motion for leave to amend, attaching a proposed 112-page complaint and exhibits.
On December 30, I issued an order denying the Plaintiffs’ second and third
motions for leave to file an amended complaint. See ECF No. 93. The order explained
that the second motion for leave to file an amended complaint was mooted by the

third motion for leave to file an amended complaint. See id. at 6. The order then
denied the latter motion based on the Plaintiffs’ history of dilatory filings and their
failure to identify the proposed amendments to the complaint in sufficient detail. See
id. at 7. The order directed that any new motion for leave to amend should explain
“how the proposed [amended complaint] cures the deficiencies in the original
complaint as to each count and in relation to the order granting in part and denying

in part the Defendants’ motions to dismiss.” Id. at 8.
On January 6, 2020, the Plaintiffs filed their fourth motion for leave to amend
the complaint, captioned as a Second Motion for Leave to File Second Amended
Complaint, which is the motion addressed by this order. Before evaluating the merits
of the Plaintiffs’ motion, I review the allegations contained in the proposed Second
Amended Complaint.
II. THE PROPOSED SECOND AMENDED COMPLAINT

The Plaintiffs’ proposed Second Amended Complaint alleges that various
defendants committed bribery to procure a multi-decade energy performance contract
for the University of Maine. In pertinent part, the proposed Second Amended
Complaint describes three alleged bribes as the predicate acts underlying the RICO
conspiracy, which occurred in December 2015, May 2016, and “late 2016.”
Specifically, the proposed Second Amended Complaint alleges the following
facts.1 In December 2015, David Edson, the President and CEO of James W. Sewall
Company, bribed James Page, who was Chancellor of the University of Maine System

at the time, to take official action to ensure approval of a long-term energy contract
between the University and Sewall’s associates. When the University System decided
that the energy contract for the University needed to go through the formal RFP
process, Page helped ensure that Edson’s team won the bid.
According to the proposed Second Amended Complaint, the RFP had two
phases, and a second bribe occurred in May 2016, when the “bribery conspirators”

bribed Page to delay the announcement of the finalists from Phase I. ECF No. 94-1
¶ 37. The conspirators allegedly sought this delay so that Sewall’s associates could
prepare an offer to buy the Expera pulp mill facility in Old Town, Maine, which they
planned to use to generate the energy necessary to fulfill the energy contract.
The complaint further alleges that a third bribe occurred at the end of 2016,
before the filing of Phase II submissions, when Treadwell Franklin Infrastructure
Capital, LLC, bribed Page to allow Treadwell to replace another company as the

financing subcontractor in Edson’s bid team without notifying the University or other
bidders. The complaint asserts that such a substitution was improper because
otherwise a bid team could become a finalist based on the qualifications of its initial
team but then replace team members with subcontractors who had conflicts of
interest or who were less qualified. Treadwell and Edson allegedly held up their end

1 While the allegations have not been proven, I treat them as true for the purposes of this motion.
of the bribe to Page in May 2018, by engaging in conduct aimed at covering up Page’s
involvement in the December 2015 and May 2016 bribes.
III. LEGAL STANDARD

In some circumstances, a party may amend its pleading as a matter of course.
See Fed. R. Civ. P. 15(a)(1). Otherwise, as here, “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave,” and “[t]he court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[T]he ‘spirit of
the rule’ dictates a preference for decisions ‘on the merits, not because of missteps by
counsel in pleading.’” J.S. McCarthy, Co. v. Brausse Diecutting & Converting Equip.,
Inc., 226 F.R.D. 14, 17 (D. Me. 2005) (quoting Allendale Mut. Ins. Co. v. Rutherford,

178 F.R.D. 1, 3 (D. Me. 1998)); see also 6 Charles Wright & Arthur R. Miller, Federal
Practice and Procedure § 1474 (3d ed. 2019). But Rule 15(a)(2) “does not mean . . .
that a trial court must mindlessly grant every request for leave to amend.” Aponte-
Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006). “Rather, a district court may
deny leave to amend when the request is characterized by ‘undue delay, bad faith,
futility, [or] the absence of due diligence on the movant’s part.’” Nikitine v.

Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013) (quoting Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006)); see also In re Curran, 855 F.3d 19, 27–28 (1st
Cir. 2017).
Ultimately, whether to grant leave to amend depends upon the totality of the
circumstances. See Mulder v. Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 20–21 (1st Cir.
2017). This includes whether the plaintiff was “attempting to torpedo [the Court’s]
briefing schedule,” D’Agostino v. EV3, Inc., 802 F.3d 188, 194–95 (1st Cir. 2015)
(citing Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517–18 (1st
Cir. 1989)); whether the plaintiff, “by rule or court order, had a prior opportunity to
amend,” Nikitine, 715 F.3d at 390 (citations omitted); and any other “pertinent

considerations,” Mulder, 865 F.3d at 20–21 (quoting Palmer, 465 F.3d at 30–31).
IV. ANALYSIS
The Plaintiffs argue that the proposed Second Amended Complaint cures the
deficiencies that the Court identified in their original complaint for two reasons.
First, the Plaintiffs contend that the proposed Second Amended Complaint is
restructured. Second, the Plaintiffs assert that the proposed Second Amended

Complaint contains new allegations pertaining to their Racketeer Influenced and
Corrupt Organization Act (“RICO”) claim and their various state law claims. I focus
throughout on the proposed amended RICO claim as it underlies the Court’s subject-
matter jurisdiction.
A. Restructuring of the Complaint
The Plaintiffs argue that “amending [the complaint] to add clarity can only
strengthen notice to the Defendants and assist the Court in evaluating the Plaintiffs’

claims on the merits.” ECF No. 94 at 4. The Plaintiffs are correct that, especially on
claims dismissed for failure to comply with heightened pleading requirements,
providing greater specificity may not just be helpful but necessary. Nevertheless, the
Plaintiffs’ argument that they have restructured the complaint for flow and clarity is
misplaced. The Plaintiffs submitted a similarly restructured proposed amended
complaint with their third motion for leave to amend the complaint. While the
restructuring would have aided the Court in its initial review of the complaint, I
determined that it was insufficient to establish that the Plaintiffs were entitled to
leave to file that proposed amended complaint. Similarly, the restructuring reflected

in the proposed Second Amended Complaint does not, on its own, justify granting the
Plaintiffs leave to amend the complaint. This is especially the case because the
Plaintiffs have largely failed to identify and explain the import of the precise changes
made in their proposed Second Amended Complaint as they were directed to by the
Order entered December 30, 2019.
As noted in that Order, the interests of justice a court considers in deciding

whether to grant leave “must and do take into account the burden on defendant[s]
and the Court in devoting scarce resources to sift through each successive iteration
of [a plaintiff’s] complaint and [to] assess its legal sufficiency.” Johnson v. Infirmary
Health Sys., Inc., Civil Action No. 13-0431-WS-M, 2013 WL 6062587, at *5 n.8 (S.D.
Ala. Nov. 18, 2013). And the “absence of supporting information”—such as a “preview
[of] what additional facts or legal claims might be included in [an] amended
complaint”—“may, in and of itself, be a sufficient reason for the denial of leave to

amend.” Aponte-Torres, 445 F.3d at 58 (citing Twohy v. First Nat’l Bank, 758 F.2d
1185, 1197 (7th Cir. 1985)). Here, the proposed Second Amended Complaint spans
112 pages, contains over 350 numbered paragraphs, and includes 118 pages of
exhibits. The failure of the Plaintiffs’ motion to meaningfully identify the changes
made to each count makes the task of identifying precisely which allegations were
added, removed, altered, and relocated unnecessarily difficult.
As to the changes the Plaintiffs do identify as to the RICO counts, the Plaintiffs
have unduly delayed in seeking leave to amend. Where significant time has passed
between the filing of the complaint and the proposed amended complaint, the movant

must “at the very least” show some valid reason for his or her neglect and delay.
Hagerty ex rel. U.S. v. Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir. 2016) (quoting Pérez
v. Hosp. Damas, Inc., 769 F.3d 800, 802 (1st Cir. 2014)). “In assessing whether a
movant has carried this burden, courts must take into account ‘[w]hat the plaintiff
knew or should have known and what he did or should have done.’” Id. (quoting
Leonard v. Parry, 219 F.3d 25, 30 (1st Cir. 2000)). In circumstances of undue delay,

a court need not find prejudice to the non-moving party to deny the movant leave to
amend. See Hagerty, 844 F.3d at 34 n.7; see also In re Lombardo, 755 F.3d 1, 3 & n.3
(1st Cir. 2014).
I ultimately granted the motions to dismiss the RICO claims in the original
complaint on the basis that the complaint did not allege facts supporting RICO’s
pattern requirement. See ECF No. 86 at 9. On February 28, 2019, various defendants
moved to dismiss the Plaintiffs’ original complaint, in part, on this very basis, that is,

that the Plaintiffs “do not, and cannot, allege facts to support RICO’s pattern and
continuity requirement.” ECF No. 48 at 14; see also id. at 31–36. Before filing their
response in opposition to that motion, the Plaintiffs filed their first motion for leave
to amend the complaint. The Plaintiffs stated that it was their intent to “add further
clarity to the existing counts, and provide additional factual information, some of
which involves events that occurred after the suit was filed, and some of which
involves information that became available after filing.” ECF No. 54 at 2. However,
as previously noted, the Plaintiffs did not attach a copy of the proposed amended
complaint to their motion, and the Magistrate Judge ordered them to do so by a date

certain to “provide the court with a meaningful opportunity to adjudicate the merits”
of the motion. ECF No. 55. Thereafter, the Plaintiffs requested more time to file the
proposed amended complaint, but the Magistrate Judge denied the extension,
emphasizing the Plaintiffs’ already dilatory behavior in filing the motion. Then,
instead of complying with the deadline and taking steps to clarify their complaint and
provide additional factual information, the Plaintiffs withdrew their motion.

At the hearing to address the Plaintiffs’ second motion for leave to amend their
complaint, when asked what new facts the Plaintiffs had learned following the
deadline the Magistrate Judge had set as to the Plaintiffs’ first attempt to file an
amended complaint, the only fact cited by Plaintiffs’ counsel was that a named
defendant had resigned as chancellor of the University of Maine System. The
Plaintiffs’ counsel then commented that the primary purpose of the proposed
amendment was to “sharpen[]” the complaint “in light of the concerns that defendants

had raised about . . . meeting the pleading requirements.” ECF No. 84 at 40.
The Plaintiffs’ proposed Second Amended Complaint was filed nearly nine
months after the Magistrate Judge first ordered the Plaintiffs to submit a proposed
amended complaint. The Plaintiffs have failed to show a valid reason for their delay
in amending their allegations relating to RICO’s pattern requirement in response to
the Defendants’ motion to dismiss. Indeed, “[t]he plaintiffs could have and should
have moved to amend as soon as they saw the defendants’ arguments in the motion
to dismiss, not waited to see whether the court would adopt those arguments.”
Envision Realty, LLC v. Henderson, 182 F. Supp. 2d 143, 144 (D. Me. 2002).

The Plaintiffs’ pattern of conduct following the Magistrate Judge’s order
establishing a deadline for the submission of an amended complaint was unjustified
and the delay resulting from it is undue. See D’Agostino, 802 F.3d at 194–95.
Although this conclusion is, standing alone, sufficient grounds to deny the motion to
amend, see Calderón–Serra v. Wilmington Tr. Co., 715 F.3d 14, 20 (1st Cir. 2013), I
turn to consider whether the amendments to the RICO claims, if permitted, would be

futile, see Mulder, 865 F.3d at 21.
B. The RICO Claims
In their original complaint, the Plaintiffs brought separate RICO counts under
both 18 U.S.C.A. § 1962(c) and § 1962(d). Section 1962(c) makes it:
unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering activity or
collection of unlawful debt.

18 U.S.C.A. § 1962(c) (West 2020). Section 1962(d) makes it “unlawful for any person
to conspire to violate” Section 1962(c). Id. § 1962(d). In my September 30, 2019 order
on the Motions to Dismiss, I dismissed both RICO counts because the complaint failed
to allege a pattern of racketeering. See ECF No. 86 at 9 & n.7. In other words, the
allegations contained in the original complaint failed to satisfy RICO’s pattern
requirement.
The proposed Second Amended Complaint removes the § 1962(c) claim and
alleges only a RICO conspiracy under § 1962(d). Nevertheless, “[t]o survive a motion
to dismiss, a RICO conspiracy count must allege,” among other things, “that the

defendant intended to further an endeavor which, if completed, would have satisfied
the pattern requirement of RICO.” Laverty v. Massad, Civil Action No. 08-40126-
FDS, 2009 WL 1873646, at *6 (D. Mass. Mar. 10, 2009) (citing Aetna Cas. Sur. Co. v.
P & B Autobody, 43 F.3d 1546, 1561 (1st Cir. 1994) and United States v. Cianci, 378
F.3d 71, 88 (1st Cir. 2004)). Accordingly, I again focus on whether the allegations in
the proposed Second Amended Complaint plausibly satisfy the pattern requirement.

To prove a pattern of racketeering activity, 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. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)
(emphasis in original). This is known as the “continuity plus relationship” standard.
Giuliano v. Fulton, 399 F.3d 381, 387 (1st Cir. 2005). Thus, a RICO’s pattern
requirement is not satisfied by “a single criminal event, a single criminal episode, [or]
a single ‘crime’ (in the ordinary, nontechnical sense of that word),” even if “that single

episode involves behavior that amounts to several crimes (for example, several
unlawful mailings).” Apparel Art Int’l, Inc. v. Jacobson, 967 F.2d 720, 722–23 (1st
Cir. 1992).
There are two methods to establish continuity: the open-ended approach and
the closed-ended approach. Giuliano, 399 F.3d at 387. I evaluated the Plaintiffs’
original complaint under both approaches and determined that the original complaint
failed to establish either open- or closed-ended continuity. I instructed the Plaintiffs
to explain “how the proposed Second Amended Complaint cures the deficiencies in
the original complaint as to each count and in relation to the order granting in part

and denying in part the Defendants’ motions to dismiss.” ECF No. 93 at 8. The
Plaintiffs only discuss closed-ended continuity in relation to the proposed Second
Amended Complaint, even after the Defendants commented that, by doing so, the
Plaintiffs were effectively “conced[ing] that open-ended continuity does not apply.”
See ECF No. 99 at 6 n.4. Accordingly, I evaluate the pattern requirement for the §
1962(d) claim only for closed-ended continuity. For reasons I will explain, I conclude

that the Plaintiffs’ proposed amendments to the RICO claim are futile.
1. Closed-ended Continuity
“A closed-ended pattern sometimes can be established by examining only the
number of alleged predicate acts and the duration of the alleged racketeering
activity.” Home Orthopedics Corp. v. Rodríguez, 781 F.3d 521, 529 (1st Cir. 2015)
(quoting Giuliano, 399 F.3d at 387). The original complaint alleged racketeering
activity spanning approximately two years, but it did not clearly enumerate the

alleged predicate acts. See ECF No. 86 at 12–13. Thus, I did not find closed-ended
continuity based solely on those two criteria. Accordingly, I evaluated the complaint
for other indicia of continuity under what is known as the “middle-ground” approach
to closed-ended continuity. Id. at 13–15. Under that approach, I found that the
“‘combination of single scheme, single injury, and few victims makes it virtually
impossible’ for the Plaintiffs to establish closed-ended continuity.” Id. at 15 (quoting
Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12, 19 (1st Cir. 2000)).
The Plaintiffs maintain that the proposed Second Amended Complaint cures

the deficiencies in the original complaint because the “predicate act allegations are
reframed and simplified to focus on three acts of bribery.” ECF No. 94 at 6.
Specifically, they argue that the “reframing of the predicate acts addresses the
Court’s concern about lack of clarity regarding predicate acts, and also extends the
length of the RICO conspiracy.” Id. Thus, the Plaintiffs contend that the number of
predicate acts and the length of the conspiracy alleged in the proposed Second

Amended Complaint firmly establish closed-ended continuity and “remove the case
from ‘middle-ground’ analysis.” Id. In the alternative, the Plaintiffs maintain that
closed-ended continuity is established under the middle-ground approach because the
RICO claim alleged in the proposed amended complaint “involves multiple schemes,
multiple injuries, and a significant number of victims.” ECF No. 101 at 4.
2. Futility Analysis
Where, as here, the motion for leave to amend was filed before the

commencement or completion of discovery, a court evaluates whether the proposed
amendments are futile “through the lens of Federal Rule of Civil Procedure 12(b)(6).”
Parker v. Landry, 935 F.3d 9, 13 (1st Cir. 2019) (citing In re Curran, 855 F.3d at 28).
“So viewed, a proposed amendment is futile if it fails to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). I now analyze whether the facts alleged within the proposed amended
complaint are sufficient to satisfy RICO’s pattern requirement.
“[A] closed-ended pattern sometimes can be established by examining only the

number of alleged predicate acts and the duration of the alleged racketeering
activity.” Home Orthopedics Corp., 781 F.3d at 529. The Plaintiffs contend that the
alleged racketeering activity now spans two and a half years because the alleged
bribery conspirators delivered on their promise from the “late 2016” bribe in May
2018. Even accepting that contention as true, the alleged number of predicate acts
and the temporal duration of the alleged racketeering activity are not “so extensive

that ‘common sense compels a conclusion of continuity.’” Giuliano, 399 F.3d at 387
(quoting Efron, 223 F.3d at 18). See, e.g., Conway v. Licata, 62 F. Supp. 3d 169, 174
(D. Mass. 2014) (“The commission of seven predicate acts over the course of twenty-
nine months targeting two victims as part of a single effort to extract financial gains
is not sufficient to establish closed-ended continuity.”).
Where the duration of racketeering activity and the number of acts do not
easily resolve the issue, a court examines other indicia of continuity under a “middle

ground” approach to closed-ended continuity. See Giuliano, 399 F.3d at 387. These
indicia include, “for instance, whether the defendants were involved in multiple
schemes, as opposed to one scheme with a singular objective; whether the scheme
affected many people, or only a closed group of targeted victims; and whether the
scheme had the potential to last indefinitely, instead of having a finite nature.” Home
Orthopedics Corp., 781 F.3d at 529 (internal quotation marks and citation omitted).
I previously reviewed these indicia when I ordered the dismissal of the RICO counts
in the original complaint. See ECF No. 86 at 13–15. I found that “the ‘combination
of single scheme, single injury, and few victims makes it virtually impossible’ for the

Plaintiffs to establish closed-ended continuity.” Id. at 15 (quoting Efron, 223 F.3d at
19).
The Plaintiffs now argue that the proposed Second Amended Complaint alleges
two schemes: one to acquire the Expera pulp mill and one to obtain the energy supply
contract with the University of Maine System. I need not definitively determine
whether the alleged attempt to acquire the Expera pulp mill is a scheme separate

from the scheme to obtain the energy contract, because the predicate acts—the three
alleged bribes—involved only the energy contract. Although one of the bribes
allegedly involved Page extending the RFP deadline for the energy contract so that
Sewall’s associates could submit a bid for the Expera pulp mill, the bribe did not itself
concern improper conduct taken to acquire the Expera pulp mill. Ultimately, courts
take a “natural and commonsense approach to RICO’s pattern element” when
determining whether the facts of a case suggest the “kind of broad or ongoing criminal

behavior at which the RICO statute was aimed.” Home Orthopedics Corp., 781 F.3d
at 529 (quoting Efron, 223 F.3d at 18). And First Circuit precedent “firmly rejects
RICO liability where the alleged racketeering acts, taken together, comprise a single
effort to facilitate a single financial endeavor.” Id. at 530 (alterations omitted)
(quoting Efron, 223 F.3d at 19).
The Plaintiffs also argue that the victims are now more numerous because they
include the bidders in the RFP process and the University of Maine System,
presumably because the University of Maine System may have received a worse deal

than it would have absent the Defendants’ alleged actions. But this argument is
nearly identical to the one the Plaintiffs made when I dismissed the RICO counts in
the original complaint. As I have previously explained, the number of victims
resulting from an allegedly improperly obtained government contract is not itself so
great as to warrant a finding of continuity under First Circuit precedents. See ECF
No. 86 at 14−15 (citing Apparel Art, 967 F.2d at 721−24; Sys. Mgmt., Inc. v. Loiselle,

303 F.3d 100, 105–06 (1st Cir. 2002); and Giuliano, 399 F.3d at 386, 390 & n.8).
Thus, the other indicia of continuity that the Plaintiffs rely on do not establish
closed-ended continuity. The allegations in the proposed amended complaint do not
establish that the Defendants intended to further an endeavor which would have
satisfied RICO’s pattern requirement. Accordingly, I conclude that the proposed
amendments to the complaint would be futile.2
In sum, based on both the Plaintiffs’ undue delay in pursuing leave to amend

their complaint, as well as the futility of the proposed amendments to the RICO
allegations, I conclude that the motion to amend should be denied. As previously
noted, the Plaintiffs’ RICO claims are the basis for federal jurisdiction in this matter.
Because I previously dismissed the Plaintiffs’ RICO claims, and now deny the

2 Thus, I need not address the Defendants’ other arguments for dismissal of the RICO count,
including their argument that the bribery allegations are conclusory and their arguments from their
motions to dismiss the original complaint, which they raise again now.
Plaintiffs’ effort to amend the complaint as to those claims, I must evaluate the
Court’s subject-matter jurisdiction in relation to the remaining state-law claims.
C. Subject-Matter Jurisdiction over the Remaining State-Law Claims

The Court’s subject-matter jurisdiction over this action originally depended on
the federal questions raised by the complaint’s two RICO counts. Because I
previously dismissed those counts, see ECF No. 86 at 15, and because I have
determined that the Plaintiffs’ effort to amend those counts should be denied, the
only counts remaining in this case are state-law claims.
When a district court has dismissed all claims over which it has original

jurisdiction, it may decline to exercise supplemental jurisdiction over remaining state
law claims. See 28 U.S.C.A. § 1367(c)(3) (West 2020). In such circumstances, a court
“must reassess its jurisdiction, this time engaging in a pragmatic and case-specific
evaluation of a variety of considerations that may bear on the issue.” Camelio v. Am.
Fed’n, 137 F.3d 666, 672 (1st Cir. 1998) (citing Roche v. John Hancock Mut. Life Ins.
Co., 81 F.3d 249, 256–57 (1st Cir. 1996)). Those considerations include “the interests
of fairness, judicial economy, convenience, and comity.” Desjardins v. Willard, 777

F.3d 43, 45 (1st Cir. 2015) (quoting Camelio, 137 F.3d at 672).
“The Supreme Court has made pellucid ‘that in the usual case in which all
federal-law claims are eliminated before trial, the balance of factors will point toward
declining to exercise jurisdiction over the remaining state-law claims.’” Rivera-Díaz
v. Humana Ins. of P.R., Inc., 748 F.3d 387, 392 (1st Cir. 2014) (alteration omitted)
(quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Here, the
parties have not begun discovery, and trial remains distant. Thus, the balance of
factors weighs against maintaining jurisdiction over the remaining state-law claims,
and this matter should be remanded to state court. Accordingly, I do not evaluate

the sufficiency of the state-law claims included in the Plaintiffs’ proposed amended
complaint or whether those amendments should be permitted. Those determinations
are best made by the Maine Superior Court which will exercise jurisdiction over this
dispute.
V. CONCLUSION
For the preceding reasons, it is ORDERED that the Plaintiffs’ Second Motion
for Leave to File Second Amended Complaint (ECF No. 94) is DENIED as to the

RICO counts and is DENIED as moot as to the remaining state law counts. The case
is REMANDED to the Maine Superior Court. Accordingly, it is further ORDERED
that the Plaintiffs’ Motion to Remand to State Court (ECF No. 45) is DENIED as
moot.
SO ORDERED.

Dated: May 29, 2020

/s/ Jon D. Levy
CHIEF U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10210690. Public record. Not legal advice.