By Steve Plunkett
Gulf Stream had every reason to think it would win its ultimately unsuccessful RICO claim against resident Martin O’Boyle and others and so was not wrong to pursue the case, federal appellate judges say.
“Simply put, the town did not need to be certain of success on its civil RICO claim in order to have probable cause to assert it,” wrote the trio of judges from the 11th U.S. Circuit Court of Appeals, the same court that upheld the dismissal of the town’s Racketeer Influenced and Corrupt Organizations lawsuit in 2016.
Mayor Scott Morgan noted the court held that the town had “a mountain of fraudulent and extortionate conduct to present” about the “O’Boyle-led scheme.”
“Gulf Stream will not be cowed by O’Boyle’s abusive tactics,” Morgan said.
The Nov. 21 opinion came in a derivative lawsuit filed by Denise DeMartini, whom O’Boyle called his “left-hand” woman and who sued the town shortly after the RICO case was dismissed, claiming Gulf Stream’s legal maneuvering amounted to illegal retaliation for her constitutionally protected activity of making public records requests.
DeMartini also claimed Wantman Group Inc., a contractor for the town and co-plaintiff in the RICO action, was guilty of malicious prosecution.
The appellate panel’s detailed, 73-page opinion examined district, circuit and U.S. Supreme court rulings on retaliation claims in criminal and civil actions. In contrast, the court’s earlier opinion upholding the dismissal of the RICO suit was 13 pages.
Richard Ovelmen, DeMartini’s lawyer, declined to comment on the decision, saying he had not yet talked with his client.
DeMartini was treasurer and later director of O’Boyle’s Citizens Awareness Foundation Inc., which had a stated purpose of testing and enforcing compliance with the public records law. She lost that job in 2015.
The panel noted that DeMartini failed to dispute numerous facts the town presented, including details on “what the town knew about her personal involvement in CAFI’s scheme,” that “employees of CAFI and the O’Boyle Law Firm dumped thousands of public records requests on the town” costing it attorney’s fees of about $370,000, and that former CAFI director Joel Chandler “gave the town detailed insight into the scheme.”
The court concluded that the town had reason to believe that CAFI’s conduct “was part of an illegal and fraudulent scheme to improperly extort settlement money and attorney’s fees.”
Earlier, the panel observed, “This court assumed that the defendants [O’Boyle, CAFI, DeMartini and others] had ‘engaged in a pattern of frivolous litigation activity while abusing, on a grand scale, their statutory right to request public documents from the government.’ ”