Opinion
CIVIL ACTION NO. 07-CV-10323-RGS.
July 17, 2007
MEMORANDUM AND ORDER ON MOTION FOR A MORE DEFINITE STATEMENT AND MOTIONS TO DISMISS
Paul Beetz III, a practicing lawyer, who lives in Lincoln, Nebraska, filed this action under 28 U.S.C. § 1332, as a trustee of the Jane Audrey Beetz Family Trust (JABF Trust). The Complaint contains fifteen pages of narrative facts, a bare bones list of twelve causes of action, and 109 pages of appended exhibits. The claims, which range from defamation to alleged violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (RICO), are asserted against defendants Tom Ambrosi, the accounting firm of Ambrosi, Donahue, Congdon Co. (the JABF Trust's accountant), Mae Bradshaw (a lawyer for the Trust), the law firm of Mae Bradshaw, P.C., and Lindley Briggs (Beetz's sister and former co-trustee). As best as can be determined from the Complaint, Beetz alleges that the defendants made imprudent investments of JABF Trust assets and improperly exerted "influence" over Paul F. Beetz, Jr., the plaintiff's father and the only current beneficiary of the Trust.
Beetz was removed as a trustee of the JABF Trust in March of 2004.
Defendant Bradshaw has filed a motion for a more definite statement for very understandable reasons. The numbered paragraphs of Beetz's Complaint consist of a rambling and barely coherent mishmash of alleged fraudulent statements and negligent acts. The twelve counts of the Complaint are simply listed by caption, e.g., "Count 5: Fraud, Non-Disclosure, Deceit, and Concealment," without any reference to a particular act, a person, or a time frame. The Complaint states no more than that each Count incorporates all of the introductory allegations and all of the appended exhibits. In its present form, it is impossible for the court to determine which of the alleged acts form the bases of Beetz's individual claims and whether Beetz has standing to bring them.
Defendants Briggs has filed a motion to dismiss (Docket #4) and a motion for sanctions (Docket #16). Defendant Ambrosi has also filed a motion to dismiss. (Docket # 9).
Fed.R.Civ. 9(b) requires that fraud be plead with particularity. This has relevance to, among other issues, a determination of whether Beetz's claims are timely brought. Tort actions carry a three-year statute of limitations. See Mass. Gen. Laws c. 260, § 2A. Civil RICO claims have a four-year statute of limitations. See Agency Holding Corp. v. Malley-Duff Assocs., Inc., 483 U.S. 143, 155 (1987). Without a clear, concise statement of each claim oriented in time with respect to a particular defendant, simply answering the Complaint places an "unjustified burden on the district judge and on the party who must respond to it." 5 Charles Alan Wright Arthur R. Miller,Federal Practice and Procedure § 1281 at 709 (3d ed. 2004) (Wright Miller).
The claims involving investments made during 1999 and 2000 are clearly time-barred.
As set out in the Complaint, even those counts that do not sound in fraud fail to comply with the pleading requirement of Fed.R.Civ.P. 8(a), that a claim be set out in "short and plain" terms. It is not enough, for example, to simply state "Count 1: Breach of Contract." Even under the "liberal" notice pleading regime of Rule 8, a claim for breach of contract must allege "the existence of a contract, plaintiff's compliance with its terms, breach, and damages." Am. Realty Trust, Inc. v. Travelers Cas. Sur. Co. of Am., 362 F. Supp. 2d 744, 753 (N.D. Tex. 2005), citing 5 Wright Miller § 1235.
The "liberal" notice pleading regime of Rule 8 may not now be as liberal as it once was.
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1964-1965 (2007) (some internal citations omitted).
While Beetz claims to have filed the Complaint pro se, as a licensed attorney he is not entitled to the "indulgent eye" with which a court will often construe a pleading filed by a person untrained in the law. Cf. Eagle Eye Fishing Corp. v. United States Dep't of Commerce, 20 F.3d 503, 506 (1st Cir. 1994) ("The Constitution does not require judges . . . to take up the slack when a party elects to represent himself."). Because the Complaint fails to comply with even the most minimal of pleading requirements, it will be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6), unless within thirty (30) days an Amended Complaint is filed that conforms to the civil rules. See Wyatt v. City of Boston, 35 F.3d 13, 14-15 (1st Cir. 1994). The dispositive motions filed by defendants Briggs and Ambrosi areMOOT, but may be renewed upon the filing of an Amended Complaint should the merits warrant.
The court notes that Beetz retained local counsel after the court held that he could not represent the trust pro se. See Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994). Counsel's attention is directed to Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) ("Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and 'not interposed for any improper purpose.' An attorney who signs the paper without such a substantiated belief 'shall' be penalized by 'an appropriate sanction.'").
SO ORDERED.