Beruflich Dokumente
Kultur Dokumente
Plaintiffs,
v. Civil No.:
Defendants.
COMPLAINT
NRP Holdings LLC and NRP Properties LLC (collectively “NRP”), through
Introduction
caused by the conduct of the individual defendants who participated in the affairs of the
of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961
et seq. This action also seeks recovery for defendants’ tortious conduct and for Buffalo’s
breach of a contract concerning NRP’s plans to develop, construct and manage (50) units
of single-family homes in the Masten Park and Cold Springs neighborhoods of the City of
Buffalo. Simply put, the individual defendants conspired to kill the project when NRP
refused to comply with their illegal demand to pay monies to Reverend Richard A.
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Stenhouse and/or affiliated organizations in order for the Project to proceed. The illegal
demands by the individual defendants are commonly known as a “pay to play” scheme.
Parties
New York.
New York.
Council.
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Partnership.
represent individuals and entities which plaintiff believes exist and may have acted
individually, together, and/or in concert with the defendants herein. Defendants John Doe
1 – 10 include both individuals employed by the City of Buffalo and within the private
sector. The allegations set forth below are incorporated as and against each John Doe
and John Doe Company as if fully set forth against him, her, or it.
13. This Court has federal question jurisdiction under 28 U.S.C. § 1331,
to 28 U.S.C. §1332.
Factual Background
16. NRP are affiliates of the NRP Group LLC, an Ohio limited liability
corporation that develops, builds and manages apartments and housing across the
United States. Among other honors, the National Association of Home Builders named
the NRP Group LLC as the 2009 multifamily development firm of the year.
participate in a meeting to discuss affordable housing initiatives within the City of Buffalo.
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During this meeting, these representatives expressed their desire to work with NRP and
associated companies to build single family homes within the City of Buffalo.
18. Effective February 21, 2008, NRP entered into agreements with
associated companies to develop, construct and manage fifty (50) homes in the Masten
Park and Cold Springs neighborhoods of the City of Buffalo (the “Project”). (NRP and its
19. By letter dated February 25, 2008, Buffalo agreed and committed
itself to participate in the Project by, among other things, extending to the Project its usual
Low Income Housing PILOT agreement, providing $1,600,000.00 of its HOME funds to
assist in the construction and, in addition, providing fifty-one (51) buildable vacant lots at
a price no greater than $2,000 per buildable lot, and not to exceed a total price of
$100,000.00.
one condition -- the Development Team’s success in securing 2008 Low Income Housing
Tax Credits (“LIHTC”) to complete the Project. (A copy of Buffalo’s February 25, 2008
21. In the February 25, 2008 agreement and commitment letter, Buffalo
stated, among other things, that “[w]e are also supportive of the feature of the
development, which allows for homeownership conversion at the end of the tax required
opportunities to residents who are not currently prepared to become homeowners, while
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22. As of February 25, 2008, Buffalo knew that under applicable law, the
tax compliance period referenced in the February 25, 2008 agreement and commitment
23. By letter dated August 20, 2008, the Development Team received a
commitment from the New York State Division of Housing and Community Renewal
(“DHCR”) for the necessary LIHTC. The DHCR commitment required “closing on
construction financing sufficient to complete the Project” on or before March 15, 2010. (A
copy of the DHCR August 20, 2008 agreement and commitment is attached hereto at
Exhibit “B”.)
Development Team that the amount of the LIHTC was increased from $794,363 to
25. By letter dated November 5, 2008, the New York State Housing Trust
Fund Corporation (“HTFC”) notified the Development Team that the HTFC approved a
low interest loan in the amount of $2,200,000.00 in support of the Project. (By letter
dated March 19, 2009, the HTFC issued its agreement and commitment for the loan. A
copy of the March 19, 2009 agreement and commitment is attached hereto at Exhibit
“D”.)
26. After receiving the agreements and commitments from Buffalo and
the DHCR, Buffalo moved forward with its participation in the Project in accordance with
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27. For example, Buffalo issued letters in support of the Project and the
28. Buffalo also selected the sites to be used for the single-family homes.
presented”, the site plan, design, and elevations submitted by the Development Team.
30. In early 2009, however, Brown, Smith, Stenhouse and the Jeremiah
Partnership conspired and started demanding that the Development Team contract with
31. The Development Team was told that the participation of Stenhouse
and other employees of Buffalo that it was necessary to “find a role for Stenhouse” and
then demanded a series of tasks involving ever increasing payments to him and later the
the Project similar to the arrangement he had on the Packard project, a previous project
in the City of Buffalo, where he was paid a “developer’s” fee. Stenhouse then demanded
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that the Development Team accept his response to a Request for Proposal, discussed
below, even though it was grossly inferior to the bid selected by the Development Team.
34. The Development Team was told that, because Stenhouse did not
have an acceptable contract on the Project, several items promised by the City of Buffalo
believed that they should issue a Request For Proposal (“RFP”) to satisfy the purported
need for an independent contractor on the Project devoted to minority involvement issues
even though members of the Development Team were already providing such services.
36. In April 2009, the Development Team issued the RFP for a provider
37. The RFP was mailed to over thirty (30) organizations and an
38. Stenhouse and the Jeremiah Partnership were advised of the RFP
39. The Development Team received three (3) proposals including one
selected the proposal submitted by the University of Buffalo – Center for Urban Studies in
conjunction with J.W. Pitts Planning (collectively referred to as the “UB Team”).
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41. The proposal by the UB Team ranked far superior to the others and
42. In April 2009, the City of Buffalo issued site plan approval and a
43. In April 2009, the DHCR issued environmental and plan approvals for
the Project.
expense and performed all tasks necessary to move forward with the Project.
Team to satisfy the requests for additional minority participation and involvement in the
Project.
46. Likewise, the City of Buffalo’s Departments and Agencies and the
DHCR were also performing their necessary functions for the Project to proceed.
47. However, after selecting the UB Team and rejecting the proposal
submitted by Stenhouse and the Jeremiah Partnership, the Development Team’s efforts
to proceed with the project were stalled and ultimately killed by the defendants.
48. After supporting the Project for over eighteen months, Brown, Smith,
Stenhouse and the Jeremiah Partnership used their positions and influence to cause
Buffalo to breach its February 25, 2008 agreement and commitment to the Project by,
among other things, individually taking action to prevent completion of the project and by
directing City Departments, Agencies, and employees to either stop working on the
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cause Buffalo to breach its agreement and commitment to the Project because the
Development Team refused to comply with the illegal demand that they pay monies to
50. During the course of these events and in making the illegal demand,
Brown said: “If you do not hire the right company [i.e. Stenhouse and/or the Jeremiah
51. Brown also said: “Make Stenhouse happy or the deal will not go
through” and further stated that he was “sick of seeing those fucking white developers on
Stenhouse, Brown said: “I told you what you had to do and you hired the wrong
company.”
preceding paragraphs.
illegal scheme, to each other and others, by U.S. mail, wire, telephonic, email, and/or
Partnership demanded a role on the project because of their past endorsement of Brown
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56. Upon information and belief, Brown and the other defendants
intended to reward Stenhouse and the Jeremiah Partnership for their past endorsement
and support and, because of their position in the community, viewed the continuing
Stenhouse and the Jeremiah Partnership are commonly known as a “pay to play” and
59. Upon information and belief, Brown, Smith, Stenhouse and the
Jeremiah Partnership conditioned Buffalo’s support for other development projects that
proceeded within the City of Buffalo on those projects finding a role for and/or the
projects found a role for Stenhouse and/or the Jeremiah Partnership on their teams,
61. Upon information and belief, the role of Stenhouse and/or the
Jeremiah Partnership in certain other development projects was essentially a “no show”
job where Stenhouse and/or the Jeremiah Partnership added little or no value to the
projects.
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62. Upon information and belief, Stenhouse did not have development
experience. As a result, the Mayor’s office often directed City employees to work directly
with Stenhouse at City expense to provide the expertise that he lacked and to perform
services that Stenhouse was being paid to perform on these other development projects.
about 2006, is another example where the individual defendants conspired to demand a
role for Stenhouse as a condition for approving a development project in Buffalo. In the
Packard project, Stenhouse became a “partner” on the development project and earned a
information and belief, Stenhouse provide no services of value to the Packard project.
64. Upon information and belief, East Side Housing Opportunities, Phase
I is another example of where the individual defendants conspired to demand a role for
project in Buffalo. NRP was not involved in this Phase I project but has learned that
Stenhouse’s participation in the project added little to no value. Despite the lack of any
meaningful contribution to this project, Stenhouse was paid a significant fee at the
Buffalo’s possession concerning Stenhouse and the Jeremiah Partnership. This request
was intended to determine the precise involvement of Stenhouse and the Jeremiah
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66. In response, Buffalo first delayed and then failed and refused to
Partnership.
67. Discovery is necessary to determine the full extent of the precise role
played by Stenhouse and the Jeremiah Partnership in the Packard project, East Side
68. As a direct and proximate result of the tortious and illegal conduct of
Buffalo, Brown, Smith, Stenhouse, and the Jeremiah Partnership, NRP was no longer
able to claim the benefits of their agreements with members of the Development Team,
the DHCR, the HTFC and others who issued loan commitments and, in turn, the City of
Buffalo.
have failed to offer any good faith or legitimate reason for causing Buffalo to breach its
the Project when he learned of the thirty (30) year rental time period before the single-
patently false.
72. Brown was aware that the thirty (30) year durational requirement was
mandatory under applicable law prior to Buffalo’s February 25, 2008 agreement and
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relentless and persistent efforts in 2009 to have a role on the Project including the
75. Simply put, Brown, Smith, Stenhouse and the Jeremiah Partnership
conspired to tortiously and illegally kill the Project because the Development Team
refused to comply with the illegal demand that it pay Stenhouse and/or the Jeremiah
Partnership money as a condition for their role in determining whether Buffalo would
76. A notice of claim was filed and served upon the municipal defendants
on June 14, 2010, and more than 30 days have passed since the filing of the notice of
claim with the municipal defendants failing to adjust or otherwise pay for the damages
identified within the notice of claim. A copy of the notice of claim is attached as Exhibit
“E.”
78. Plaintiffs have satisfied all conditions precedent under the General
79. Upon information and belief, the limitations of liability set forth in
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COUNT I
80. NRP repeats and re-alleges the allegations set forth in paragraphs 1
through 79 above.
81. NRP is the assignee of all rights and benefits concerning the
83. The Development Team satisfied the one condition precedent in the
February 25, 2008 agreement and commitment when they secured the 2008 LIHTC to
84. Buffalo breached the February 25, 2008 Agreement by, among other
things, failing to: perform the tasks required of it to move the Project forward, extend to
the Project its usual Low Income Housing PILOT agreement, provide $1,600,000.00 of its
HOME funds to assist in the construction of the Project and provide fifty-one buildable
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COUNT II
86. NRP repeats and re-alleges the allegations set forth in paragraphs 1
through 85 above.
the development, construction and management of homes in connection with the Project.
88. NRP is the assignee of all rights and benefits concerning the
agreements and commitments that are attached hereto at Exhibits “A” – “D”.
knew or should have known of the agreements secured by the Development Team in
employed an unlawful and improper “pay to play” scheme and otherwise engaged in
wrongful and illegal conduct designed to interfere with the Development Team’s rights
under the agreements attached hereto at Exhibits “A” – “D”, other agreements to be
entered into in connection with the Project, and the economic advantages that would
procured Buffalo’s breach of the agreement attached as Exhibit “A” and all defendants
expected and understood that all other contracts referenced herein would not be
performed as a result of their intentional and wrongful conduct set forth in detail above, all
without justification.
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92. The defendants caused an actual breach of the contracts and/or non-
93. Through their course of dealing with NRP and the Development
Team, the defendants were all aware of prospective contractual and business
relationships by and between plaintiffs and Buffalo and third-parties, and with this
awareness interfered with the business relationships with the sole purpose of harming
a tortious act, actively took part in it, or furthered it by cooperation or request, or provided
aid and encouragement to each of the other defendants, or ratified and adopted each of
the other defendant’s acts done for their benefit, and are therefore liable with each of the
defendants. Each defendant acted tortiously and one or more of the defendants
constitutes a tort.
95. The wrongful and illegal actions and conduct of Buffalo, Brown,
Smith, Stenhouse and the Jeremiah Partnership described in detail above are actionable
under the common law theories of tortious interference with contract and/or prospective
96. Buffalo is not responsible for the claims set forth in paragraph 94
above concerning the agreement attached at Exhibit “A” because it is a party to that
agreement. Buffalo is responsible for the claims set forth in paragraph 94 above
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concerning the agreements attached hereto at Exhibits “B” through “D” and the
agreements entered into between NRP and other members of the Development Team.
Buffalo is also responsible for the acts of Brown, Smith, and its other employees pursuant
98. The conduct described herein was reckless, wanton, and carried out
in total disregard for the rights of NRP. As a result, NRP is entitled to recover punitive
damages against Brown, Smith, Stenhouse and the Jeremiah Partnership in an amount
to be determined.
COUNT III
99. NRP repeats and re-alleges the allegations set forth in paragraphs 1
through 98 above.
Stenhouse on certain projects and later to decide whether to cause Buffalo to breach its
agreements and commitments for land development projects depending on whether the
subject land developer complied with their unlawful and illegal demands to pay monies to
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102. Pursuant to the RICO, Brown, Smith, Stenhouse and the Jeremiah
furtherance of the illegal scheme. Such activities, as described in detail above, involved
interstate commerce and include, but are not limited to, violations of the Hobbs Act, 18
U.S.C. § 1951, 18 U.S.C. § 1341, 18 U.S.C. § 1343, and New York Penal Law § 200 et
seq.
closed ended and/or open ended continuity and/or because they were used on NRP and,
upon information and belief, other developers involved in certain other projects that
104. Even assuming arguendo that the “pay to play” or “pay for votes”
practice has ended, Brown, Smith, Stenhouse and the Jeremiah Partnership developed
and implemented this practice against NRP and, upon information and belief, others
through numerous threats and demands over a period of more than two years.
105. The illegal activities of Brown, Smith, Stenhouse and the Jeremiah
reasonable to expect that such acts were the regular manner in which such persons
exercised their authority within the enterprise and implied a threat of continuing improper
activity. Moreover, left unchecked, the illegal activities of defendants are likely to occur in
the future.
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106. In addition, the illegal activities of Brown, Smith, Stenhouse and the
demands concerning the role of Stenhouse and the Jeremiah Partnership on the Project
and other development projects in Buffalo. Such escalating demands implied a threat of
107. Pursuant to the RICO, Brown, Smith, Stenhouse and the Jeremiah
Partnership participated in the affairs of the enterprise through the pattern of racketeering
108. By reason of NRP’s refusal to comply with the illegal demands and
“pay to play” scheme employed by Brown, Smith, Stenhouse and the Jeremiah
Partnership, NRP has been injured in its business and property in the amount of at least
$1,000,000.00.
Brown, Smith, Stenhouse and the Jeremiah Partnership for their monetary damages, plus
treble damages, costs and reasonable attorneys’ fees and disbursements incurred in
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COUNT IV
110. NRP repeats and re-alleges the allegations set forth in paragraphs 1
– 109 above.
Brown and/or Smith that required NRP to comply with the illegal demand to pay monies to
112. In applying this official custom or policy to NRP, Buffalo, Brown and
depriving them of their rights protected by the Equal Protection and Due Process clauses
Buffalo. When other developers found a way to pay monies to Stenhouse and/or
affiliated organizations, Buffalo, Brown and Smith allowed their projects to proceed to
completion. Because NRP refused to make such payments, Buffalo, Brown and Smith
maliciously and in bad faith intended to injure NRP and actively took steps to kill the
Project.
115. NRP had a binding agreement with Buffalo concerning the Project
pursuant to the February 25, 2008 agreement and commitment. In reliance on that
agreement, NRP fulfilled all necessary conditions and expended considerable sums, time
and resources in order for the Project to proceed. After supporting the Project for over
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eighteen months, Buffalo, Brown and Smith used their positions and influence to prevent
Buffalo from taking the final steps required of it for the completion of the Project. As a
result, NRP was denied due process solely because it refused to comply with the illegal
116. The above actions of Buffalo, Brown and Smith have resulted in a
denial of NRP’s federal law rights pursuant to the Equal Protection and Due Process
Brown and Smith, and punitive damages in an amount to be determined against Brown
and Smith.
Smith, Stenhouse and the Jeremiah Partnership for compensatory damages in excess of
Smith, Stenhouse and the Jeremiah Partnership for compensatory damages in excess of
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Brown and Smith for compensatory damages in excess of $1,000,000.00, attorney’s fees
f) Awarding NRP such other and further relief as the Court deems just
and proper.
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Plaintiffs,
v. RICO CASE
STATEMENT
CITY OF BUFFALO, BYRON W. BROWN, PURSUANT TO
DEMONE A. SMITH, LOCAL RULE 9
RICHARD A. STENHOUSE, and BUFFALO
JEREMIAH PARTNERSHIP FOR COMMUNITY
DEVELOPMENT, INC., JOHN DOE 1 – 10, and
JOHN DOE COMPANIES 1 – 5.
Defendants.
For its RICO Case Statement pursuant to Rule 9 of the Local Rules of Civil
Procedure for the Western District of New York, Plaintiffs NRP Holdings LLC and NRP
Properties LLC (collectively “NRP”), through their attorneys Webster Szanyi LLP, state as
follows:
2. List each defendant and state the alleged misconduct and basis
the City of Buffalo (“Buffalo”). Defendant Demone A. Smith (“Smith”) was and is a
(“Stenhouse”) was and is the president of the Jeremiah Partnership for Community
NRP are affiliates of the NRP Group LLC, an Ohio limited liability
corporation that develops, builds and manages apartments and housing across the
United States. Among other honors, the National Association of Home Builders named
the NRP Group LLC as the 2009 multifamily development firm of the year.
within the City of Buffalo. During this meeting, these representatives expressed their
desire to work with NRP and associated companies to build single family homes within
Effective February 21, 2008, NRP entered into agreements with associated
companies to develop, construct and manage fifty (50) homes in the Masten Park and
Cold Springs neighborhoods of Buffalo (the “Project”). (NRP and its associated
By letter dated February 25, 2008, Buffalo agreed and committed itself to
participate in the Project by, among other things, extending to the Project its usual Low
Income Housing PILOT agreement, providing $1,600,000 of its HOME funds to assist in
the construction and, in addition, providing fifty-one (51) buildable vacant lots at a price
no greater than $2,000 per buildable lot, and not to exceed a total price of $100,000.
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condition -- the Development Team’s success in securing 2008 Low Income Housing Tax
In the February 25, 2008 agreement and commitment letter, Buffalo stated,
among other things, that “[w]e are also supportive of the feature of the development,
which allows for homeownership conversion at the end of the tax required compliance
residents who are not currently prepared to become homeowners, while providing them
As of February 25, 2008, Buffalo, Brown and Smith knew that under
applicable law, the tax compliance period referenced in the February 25, 2008 agreement
commitment from the New York State Division of Housing and Community Renewal
(“DHCR”) for the necessary LIHTC. The DHCR commitment required “closing on
construction financing sufficient to complete the Project” on or before March 15, 2010.
Team that the amount of the LIHTC was increased from $794,363 to $922,954.
By letter dated November 8, 2008, the New York State Housing Trust Fund
Corporation (“HTFC”) notified the Development Team that the HTFC approved a low
interest loan in the amount of $2,200,000 in support of the Project. (By letter dated March
19, 2009, the HTFC issued its agreement and commitment for the loan.)
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After receiving the agreements and commitments from Buffalo and the
DHCR, Buffalo moved forward with its participation in the Project in accordance with its
For example, Buffalo issued letters in support of the Project and the
application to the DHCR. Buffalo also selected the sites to be used for the single-family
homes. In addition, the City of Buffalo Planning Board “approved as presented”, the site
Partnership demanded that the Development Team contract with Stenhouse and/or
in the Project.
The Development Team was told that the participation of Stenhouse was
“find a role for Stenhouse” and “make Stenhouse happy” in order for the Project to
proceed.
Initially, Stenhouse simply indicated an interest to make sure that there was
series of tasks involving ever increasing payments to him and later the Jeremiah
similar to the arrangement he had on the Packard project, a prior project within the City of
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Buffalo, where he was paid a “developer’s” fee. Stenhouse then demanded that the
Development Team accept his response to a Request for Proposal, discussed below,
even though it was inferior to the bid selected by the Development Team.
The Development Team was told that, because Stenhouse did not have an
acceptable contract on the Project, several items promised by Buffalo were being held up
in Brown’s office.
Despite these threats and demands, the Development Team believed that
they should issue a Request For Proposal (“RFP”) to satisfy the purported need for an
though members of the Development Team were already providing such services.
In April 2009, the Development Team issued the RFP for a provider to
women-owned business enterprises and individuals. The RFP was mailed to over thirty
(30) organizations and an advertisement was placed in the Buffalo News. Stenhouse and
the Jeremiah Partnership were advised of the RFP and invited to respond. The
Development Team received three (3) proposals including one from Stenhouse and the
Jeremiah Partnership. After a thorough review of the proposals, the Development Team
selected the proposal submitted by the University of Buffalo – Center for Urban Studies in
conjunction with J.W. Pitts Planning (collectively referred to as the “UB Team”). The
proposal by the UB Team ranked far superior to the others and was more reasonably
priced.
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In April 2009, Buffalo issued site plan approval and a permit ready letter for
the Project. In the same month, the DHCR issued environmental and plan approvals for
the Project. By this time, the Development Team had incurred considerable expense
and performed all tasks necessary to move forward with the Project.
Stenhouse and the Jeremiah Partnership, the Project was stalled and ultimately killed by
Brown, Smith, Stenhouse and the Jeremiah Partnership used their positions
and influence to cause Buffalo to breach its February 25, 2008 agreement and
commitment to the Project because the Development Team refused to comply with the
illegal demand that they pay monies to Stenhouse and/or affiliated organizations in order
In making the illegal demand, Brown said: “If you do not hire the right
company [i.e. Stenhouse and/or the Jeremiah Partnership], you do not have my support
for the Project.” He also said: “Make Stenhouse happy or the deal will not go through”
and further stated that he was “sick of seeing those fucking white developers on the East
Side with no black faces represented.” After the Development Team selected the UB
Team instead of Stenhouse, Brown said: “I told you what you had to do and you hired the
wrong company.” Smith made similar statements. Upon information and belief,
Stenhouse and the Jeremiah Partnership demanded a role on the Project because of
their past endorsement of Brown as Mayor and in consideration for their future
endorsement of Brown. 2009 was an election year. Upon information and belief, Brown
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and Smith intended to reward Stenhouse and the Jeremiah Partnership for their past
endorsement and support and viewed the continuing endorsement by Stenhouse and the
Jeremiah Partnership against NRP continued until March 15, 2010, when NRP was
unable to meet the deadline for closing on construction financing sufficient to complete
Buffalo, Brown, Smith, Stenhouse and the Jeremiah Partnership have failed
to offer any good faith or legitimate reason for causing Buffalo to breach its agreement
Project when he learned of the thirty year rental time period before the homes would be
made available for home ownership. Brown’s purported reason is patently false. Brown
was aware that the thirty year durational requirement was mandatory under applicable
law prior to Buffalo’s February 25, 2008 agreement and commitment for the Project.
Project was worthwhile. Stenhouse’s statement is both incredible and false as reflected
by his ongoing and persistent efforts in 2009 to have a role on the Project including the
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unaware of any other entities or persons that participated in the alleged wrongdoing
described in the previous response. NRP believes others may have been involved and,
for this reason, has named John Doe individuals and John Doe Companies as
4. List the alleged victims and state how each victim was allegedly
injured.
direct and proximate result of the illegal conduct of Brown, Smith, Stenhouse and the
Jeremiah Partnership, NRP was no longer able to claim the benefits of their agreements
with members of the Development Team, the DHCR, the HTFC and others who issued
loan commitments and, in turn, Buffalo. As a result, the Development Team incurred
(A) List the alleged predicate acts and the specific statutes
which were allegedly violated;
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Smith, Stenhouse and the Jeremiah Partnership are commonly known as a “pay to play”
Over the period November 2007 to March 2010, Brown, Smith, Stenhouse
and the Jeremiah Partnership developed and implemented a conspiracy which included
inviting NRP to Buffalo to develop the Project and then failing to complete actions
required by Buffalo and withholding Buffalo’s final approval unless NRP and the
Development Team complied with their illegal demands to pay money to Stenhouse
and/or the Jeremiah Partnership. When the Development Team refused to comply with
those illegal demands, Brown, Smith, Stenhouse and the Jeremiah Partnership conspired
to cause Buffalo to breach its agreement and commitment by, among other things, failing
to provide funds and lots within the deadlines necessary for the Project to proceed.
e-mails, and direct statements, Brown, Smith, Stenhouse and the Jeremiah Partnership
made clear that the Project would not proceed unless the Development Team paid money
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Upon information and belief, Brown, Smith, Stenhouse and the Jeremiah
Partnership conditioned Buffalo’s support for other development projects that proceeded
within Buffalo on those projects finding a role for and/or the payment of monies to
Stenhouse and/or the Jeremiah Partnership. Upon information and belief, in situations
where development projects found a role for Stenhouse and/or the Jeremiah Partnership
on their teams, Buffalo honored its agreements and commitments on those projects.
Upon information and belief, the role of Stenhouse and/or the Jeremiah Partnership in
certain other development projects was essentially a “no show” job where Stenhouse
experience. As a result, the Mayor’s office often directed City employees to work directly
with Stenhouse at City expense to provide services and the expertise that he lacked even
about 2006, is another example where the individual defendants conspired to find a role
developer’s fee. Indeed, upon information and belief, Stenhouse provide no services of
another example of where the individual defendants conspired to demand a role for
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project in Buffalo. NRP was not involved in this Phase I project but has learned that
Stenhouse’s participation in the project added little to no value. Despite the lack of any
meaningful contribution to this project, Stenhouse was paid a significant fee at the
request to Buffalo requesting, among other things, all documents in Buffalo’s possession
concerning Stenhouse and the Jeremiah Partnership. The request was intended to
concerning other development projects in Buffalo. In response, Buffalo first delayed and
the Jeremiah Partnership. Discovery is necessary to determine the full extent of the role
of Stenhouse and the Jeremiah Partnership in the Packard project, the East Side Housing
The foregoing predicate acts are violations of the Hobbs Act, 18 U.S.C. §
1951 and New York Penal Law § 200 et seq., 18 U.S.C. § 1341 and 18 U.S.C. § 1343.
Based on the predicate acts committed against NRP and the Development
Team and, upon information and belief, other developers in Buffalo, the RICO pattern in
this case involves closed-ended and open-ended continuity. Even assuming, arguendo,
the “pay to play” practice has ended, Brown Smith, Stenhouse and the Jeremiah
Partnership developed and implemented this practice against NRP and others through
numerous threats and demands over a time period of more than two years. The scheme
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By its nature, a “pay to play” scheme involving high ranking political officials
satisfies the test for open-ended continuity. It is reasonable to infer that such predicate
acts were the regular way in which such persons exercised their authority within the
enterprise and implied a threat of continuing criminal activity. In the case of NRP and the
Development Team, for example, Brown, Smith, Stenhouse and the Jeremiah
Partnership would have allowed the Project to proceed if NRP and the Development
Team agreed to pay Stenhouse and the Jeremiah Partnership. NRP and the
Development Team, however, were stalled and suffered significant economic losses
because they would not comply with or participate in the illegal schemes.
The RICO claim includes but is not limited to predicate offenses of mail and
wire fraud. In turn, the offenses of mail and wire fraud include but are not limited to the
following specific events. Upon information and belief, Brown, Smith, Stenhouse and the
Jeremiah Partnership developed and implemented the “pay to play” conspiracy when
NRP was invited to develop the Project in November 2007, and thereafter. By letter
dated February 25, 2008, Buffalo’s agreement and commitment to the Project was
complete the Project. This letter was false because Brown, Smith, Stenhouse and the
Development Team to hire Stenhouse and the Jeremiah Partnership. The Development
Team relied on the February 25, 2008 letter and successfully obtained the LIHTC.
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Starting in early 2009, Stenhouse made a series of escalating demands concerning the
need for his involvement in the Project. These demands included mailings and e-mails to
the Development Team stating terms for the involvement of himself and the Jeremiah
Partnership on the Project. In April-May 2009, Stenhouse and the Jeremiah Partnership
responded to the RFP by U.S. Mail, again stating terms for the involvement of Stenhouse
and the Jeremiah Partnership. Each of these “proposals” was false and misleading
because they were not offers subject to fair and open competition with other potential
vendors of similar services. Rather, they were threats and demands that the
refused to accept the proposals, then Brown, Smith, Stenhouse and the Jeremiah
Partnership would make sure that the Project died. In 2010, Brown and Stenhouse made
repeated statements that were intended for publication (and in fact were published over
the air waves) falsely stating the reasons why they killed the Project. Throughout, all
transmission.
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(E) State whether you are alleging that the defendants are
individuals or entities separate, from the alleged
enterprise, or that the defendants are the enterprise itself,
or members of the enterprise; and
Stenhouse and the Jeremiah Partnership used Buffalo as a passive instrument for their
personal benefit, i.e. by developing and implementing a “pay to play” and “pay for votes”
scheme to further political careers and/or for their personal benefit. Brown and Smith are
7. State and describe in detail whether you are alleging that the
pattern of racketeering activity and the enterprise are separate or have merged into
one entity.
through their association with Buffalo is separate from the enterprise and has not merged
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enterprise and the pattern of racketeering activity. Discuss how that racketeering
activity differs from the usual and daily activities of the enterprise, if at all.
agreement and commitment letter. This letter included one condition, namely the
Development Team was obligated to secure the LIHTC. Despite the Development
Team’s compliance with this condition, Buffalo did not perform under the agreement and
commitment letter because Brown, Smith, Stenhouse and the Jeremiah Partnership
required another condition, namely the Development Team’s obligation to pay money to
Stenhouse and/or the Jeremiah Partnership. Such a “pay to play” or “pay for votes”
through which Brown, Smith, Stenhouse and the Jeremiah Partnership wielded power for
Response: NRP and its affiliate the NRP Group, LLC are Ohio entities
that develop, build and manage apartments and housing across the United States. As
such, the predicate acts described above affected efforts by these Ohio entities to
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conduct business in the State of New York and, therefore, has a direct impact on
interstate commerce.
(A) State who received the income derived from the pattern of
racketeering activity or through the collection of an
unlawful debt; and
18 U.S.C. § 1962(a).
alleged enterprise.
18 U.S.C. § 1962(b).
(B) State whether the same entity is both the liable “person” and
the “enterprise” under § 1962(c).
Smith was and is a member of the Buffalo Common Council. Stenhouse and the
Jeremiah Partnership were and are associated with Buffalo based on their relationship
with Brown and Smith. Buffalo is a passive instrument through which Brown, Smith,
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Stenhouse and the Jeremiah Partnership wielded power for their personal political and
economic benefit.
and the Jeremiah Partnership. These persons conspired to develop and implement pay
of the defendants’ illegal schemes, NRP was no longer able to claim the benefits of their
agreements with members of the Development Team, the DHCR, the HTFC and others
who issued loan commitments and, in turn, Buffalo. As a result, NRP incurred injury to its
business and property consisting of out of pocket expenses, lost profits including rental
revenues and anticipated sales of units, lost business opportunities, and other damages
to be determined. For example, the lost out of pocket expenses exceed $450,000.00.
demands, NRP and the Development Team were unable to claim the benefits of the
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agreements described in the previous paragraph and suffered injury and damages as a
result.
allegedly liable.
jointly and severally liable for the damages suffered by NRP and the Development Team.
Such damages include the out of pocket expenses, lost profits including lost rental
revenues and anticipated sales of units, lost business opportunities and other damages to
be determined.
18. List all other federal causes of action, if any, and provide the
against Buffalo. Count II of the Complaint asserts claims under common law theories of
concerted action theory and/or civil conspiracy. These Counts are federal claims
because the Court’s subject matter jurisdiction over these Counts is based on diversity of
citizenship pursuant to 28 U.S.C. § 1332. Count IV of the Complaint asserts a federal law
against Buffalo. Count II of the Complaint asserts state claims under the common law
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tortious interference with prospective economic advantage and/or economic relations and
concerted action theory and/or civil conspiracy. As stated in the previous response, these
claims fall under the federal court’s diversity jurisdiction even though state law provides
including additional information, stated upon information and belief, that NRP believes
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illegal conduct of the defendants. Unfortunately, this is not the first time that the
defendants have demanded that an entity intending to do business in the City of Buffalo
hire Rev. Stenhouse as a condition for City support. NRP’s investigation has revealed
that other business entities have been subjected to similar demands that they hire Rev.
Stenhouse and his affiliated companies in order to complete other development projects
within the City of Buffalo.
Conclusion:
Parties such as NRP should not have their development projects in Buffalo conditioned
on illegal demands and threats to pay money to Stenhouse and the Jeremiah Partnership
(or any other person or entity) in order to have those projects approved by publicly
elected officials. In such circumstances, the federal courts routinely recognize the
availability of RICO to provide a federal claim in favor of such parties against persons
attempting to extort compliance with such a “pay to play” scheme. See, e.g., DeFalco v.
Bernas, 244 F.3d 286 (2nd Cir. 2001); Santana v. Cook County Board of Review, 2010
WL 3937483 (N.D. Ill. Oct. 6, 2010); Empress Casino Joliet Corp. v. Blagojevich, 674 F.
Supp. 2d 993 (N.D. Ill. 2009).
NRP reserves its right to supplement this case statement, to the extent
necessary and/or required by Court rules, following the receipt of discovery information
from the defendants.
Dated: June 3, 2011
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ADR PLAN
WESTERN DISTRICT OF NEW YORK
Revised: Jan. 1, 2008
1.1 TITLE
This is the Plan for Alternative Dispute Resolution in the United States District
Court for the Western District of New York (the “ADR Plan”).
A. Purpose. The United States District Court for the Western District of New
York (the “Court”) adopted the ADR Plan on January 1, 2006 (the “Effective
Date”), to make available to civil litigants court-administered ADR
interventions and processes designed to provide quicker, less expensive and
potentially more satisfying alternatives to continuing litigation, without
impairing the quality of justice or the right to trial.
B. Scope. This ADR Plan applies to civil actions pending or commenced on and
after the Effective Date, except as otherwise indicated herein. The ADR Plan
supplements this Court’s Local Rules of Civil Procedure, which shall remain
in full effect for all cases.
D. Plan Administration.
1. Staffing. The Court will seek funding for staff to coordinate and
implement the ADR Plan. In the interim, the Court will utilize current
staff and seek volunteers to assist in implementation.
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SECTION 2 - OVERVIEW
A. New Cases. All civil cases filed on and after the Effective Date of the ADR
Plan shall be referred automatically for ADR. Notice of the ADR
requirements will be provided to all parties immediately upon the filing of a
complaint and answer or a notice of removal. ADR intervention will be
scheduled at the conference held pursuant to Local Rule of Civil Procedure
16.1. The following categories of actions are exempted from automatic
referral:
B. Pending Cases. The assigned Judge on any pending civil case may, sua
sponte or with status conference, issue an order referring the case for ADR.
The order shall specify a date on which the ADR intervention is to be
completed.
A. Opting Out Motions. Any party may file, with the assigned Judge for that
case, a motion to opt out of, or for relief from, ADR.
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B. Motion. Opting Out Motions must be made within ten (10) days from (i) the
date of the first discovery conference under Local Rule 16.1 in new cases,
or (ii) the date of a sua sponte ADR Referral Order in pending cases.
C. Criteria. Opting Out Motions shall be granted only for “good cause” shown.
Inconvenience, travel costs, attorney fees or other costs shall not constitute
“good cause.” A party seeking relief from ADR must set forth the reasons
why ADR has no reasonable chance of being productive.
D. Judicial Initiative. The assigned Judge may, sua sponte, exempt any case
from the Court's ADR Plan.
Congress has mandated that the Courts’ ADR programs be evaluated. Neutrals,
counsel and parties shall promptly respond to any request from the Court for an
evaluation of the ADR Plan. Responses will be used for research and monitoring
purposes only. The sources of specific information will not be disclosed to the
assigned Judge or in any report.
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SECTION 3 - NEUTRALS
3.1 NEUTRALS
A. Neutral Panels. The Court shall maintain panels of Neutrals to serve the
various interventions and processes under the ADR Plan. Membership on
any panel is a privilege, not a right. The Court shall have the authority to
establish qualifications for Neutrals, monitor their performance and
withdraw any Neutral from a panel. Applications are available at the
Court’s website and from the Clerk’s offices in Buffalo and Rochester.
B. Private Neutrals. The parties may select a Neutral who is not a member of
the Court’s panel. Such selections are presumed acceptable unless the
assigned Judge determines that the interests of justice are not served.
D. Oath. All persons serving as Neutrals shall take the oath or affirmation
prescribed in 28 U.S.C. § 453.
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3.2 IMMUNITIES
All persons serving as Neutrals in the Court’s ADR Plan are performing quasi-
judicial functions and are entitled to all the immunities and protections that the law
accords to the performance of tasks integrally related to the judicial process,
including settlement and alternative dispute resolution. See, e.g., Wagshal v.
Foster, 28 F.3d 1249 (D.C. Cir. 1994).
A Neutral’s fees shall be shared equally by all separately represented parties, unless
otherwise agreed by the parties or ordered by the Court.
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C. Scheduling. The referral of a case to ADR does not delay or defer other
dates established in the Scheduling Order and has no effect on the
scheduled progress of the case toward trial.
A. New Cases. Prior to the Local Rule 16.1 scheduling conference, counsel
and any unrepresented parties shall confer about ADR as part of their
discussion of “the possibilities for a prompt settlement or resolution of the
case” pursuant to Fed. R. Civ. P. 26(f). Unless the parties agree to a
different intervention, it is presumed that they will participate in mediation.
The parties shall attempt to agree upon a Neutral and, at the scheduling
conference, shall be prepared to report on the outcome of their ADR
discussion pursuant to Local Rule 16.1(a)(3)(F). The initial Scheduling
Order shall include a deadline for the completion of ADR.
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4.4 CONFIDENTIALITY
Each of the interventions and processes under this ADR Plan shall be confidential
as set forth in the corresponding sections below.
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SECTION 5 - MEDIATION
Mediation, as defined in proposed Local Rule 16.2-1 and as further detailed herein,
is a flexible, non-binding, confidential process in which a qualified Neutral, the
Mediator, facilitates resolution of the issues between the parties and assists with
settlement discussions. Through various methods and techniques, the Mediator
seeks to improve communication between the participants (parties, counsel,
experts or whoever is included in the mediation); helps participants articulate their
interests; helps participants understand the interests of the other participants,
including their “opponent;” probes the strengths and weaknesses of each party’s
legal positions; and helps generate and define options for a mutually agreeable
resolution. The Mediator may engage in “reality checking,” but will not give an
overall evaluation of the case unless requested by all the parties. The Mediator has
no fact-finding or decision-making authority. The central tenet of mediation is that
the parties find their own solutions, with the assistance of the Mediator. A
hallmark of mediation is its capacity to go beyond traditional settlement
discussions and explore creative outcomes responsive to the participants’ needs
and interests.
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A. Mediators shall receive $150/hour for the first two hours of the initial
mediation session. Thereafter, Mediators shall receive no more than their
Court-approved hourly rates for time spent in mediation and preparation.
E. A party who has not sought in forma pauperis status, but is financially
unable to pay all or part of the pro rata share of the Mediator’s fee, may
move for a waiver of the fee requirement on a form provided by the Court.
F. All Mediation Panel members must provide pro bono services. The
minimum service requirement is one pro bono case or two reduced
compensation cases for every four (4) fully-compensated cases for which the
Mediator is selected. Additional pro bono service is encouraged.
A. Mediator Panel List. The Court shall maintain a list of trained Mediators.
Each Mediator shall provide to the Court information on his or her area(s)
of expertise and compensation rates.
B. Private Mediators. The parties may select a Mediator other than from the
Court’s Mediator list. Such selections are presumed acceptable unless the
assigned Judge determines that the interests of justice are not served.
C. Selection.
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2. If the parties fail to agree upon a Mediator within the thirty (30) day
period, the Court shall select a Mediator for the case from the Court’s
Mediator list and shall issue an Order notifying the parties of the
Mediator’s identity.
C. Location. The mediation session shall be held in the U.S. Courthouse or the
Mediator’s office, unless otherwise agreed.
A. Time for Submission. No later than ten (10) days before the scheduled
mediation session, each party shall submit to the Mediator a written
“Mediation Memorandum.”
B. Prohibition Against Filing. Mediation Memoranda shall not be filed and the
assigned Judge shall not have access to them. They shall be subject to the
confidentiality of the mediation process and treated as a document prepared
“for settlement purposes only.”
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3. State the relief sought in the case and the basis for monetary
calculations;
4. Describe the current status of the case, including the status of any
motions made;
After receiving Mediation Memoranda and submissions pursuant to Section 5.6, the
Mediator may request additional information from any party or participant. The
Mediator, at his or her discretion, may also discuss the case in confidence and ex
parte with counsel, parties and/or representatives. The Mediator shall not disclose
any confidential communication, including the Mediation Memoranda and
submissions, without permission.
A. Parties. All named parties and their counsel are required to attend the
mediation session(s) in person unless excused under 5.8(E) below.
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D. Other Attendees. The Mediator may require the attendance of any other
individual who appears reasonably necessary for the advancement of
communication and resolution between the parties.
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G. Good Faith Participation in the Process. All parties and counsel shall
participate in mediation in good faith. Failure to do so shall be sanctionable
by the Court.
A. The first mediation session shall be a minimum of two (2) hours. The
parties may, and are encouraged to, extend the length of the session.
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A. At the close of the initial mediation session, the Mediator and the parties
shall jointly determine whether it would be appropriate and helpful to then
schedule additional mediation. Follow-up could include, without limitation,
written reports, telephonic discussions, negotiations between the parties
with the Mediator available for assistance, or further mediation sessions.
B. Within ten [10] days after the close of each mediation session, and on the
form “Mediation Certification” provided by the Court, the Mediator shall
report to the Court the date the session was held, whether the case settled
in whole or in part and whether any follow up is scheduled. The Mediation
Certification shall be filed.
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ACKNOWLEDGMENTS
The Court acknowledges and thanks its committee members, who devoted
countless hours to the development of this Plan over two and one-half years, and
the Federal Judicial Center for the ADR consultation, resources and statistics it
provided. In developing this Plan, the Court and its committee reviewed numerous
federal and state court ADR programs nationwide and incorporated a multitude of
recommendations and comments proffered by various members of local and federal
bar associations and their select committees. Additionally, the Court extensively
researched and studied the ethical implications for its program mediators. In doing
so, the Court was particularly impressed with the comprehensiveness and
reasonableness of the various principles enunciated and addressed in the proposed
conflict of interest rules for arbitrators, mediators and other third-party neutrals
currently under consideration for adoption in the State of New York and the CPR-
Georgetown Commission on Ethics and Standards in ADR’s “Proposed Model Rule
of Professional Conduct for the Lawyer as Third Party Neutral.”
In addition, the Court acknowledges the mediators, the litigants, and their counsel,
who have prepared for and fully participated in ADR from the Plan’s inception.
Their thoughtful and open-minded engagement in the process has ensured the
Plan’s success.
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