Opinion
NO. 3-03-CV-0848-D
July 25, 2003
FINDINGS AND RECOMMENDATION OF THE THE UNITED STATES MAGISTRATE JUDGE
Defendants Mark Delapaz and Eddie Herrera have filed a combined Rule 12(b)(6) motion to dismiss and motion for Rule 7(a) reply or, in the alternative, motion for more definite statement in this civil rights case. As grounds for dismissal, defendants contend that: (1) plaintiff's state law claims for assault, intentional infliction of emotional distress and false imprisonment, as well as any federal claims other than for false arrest or malicious prosecution, are barred by limitations; and (2) plaintiff has failed to sufficiently allege a RICO violation. Defendants also seek an order requiring plaintiff to file a Rule 7(a) reply to overcome their entitlement to qualified immunity. The motion has been referred to U.S. Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and by order of reference dated July 25, 2003.
The Civil Justice Expense and Delay Reduction Plan adopted by this court provides that "[e]ach judge will continue to give priority to the monitoring and resolution of pending motions." Plan at § XI(2), reprinted in Texas Rules of Court — Federal at 282 (West Pamph. Supp. 2003). To eliminate undue delay and unnecessary expense to the parties in this and other civil actions, and because a Rule 7(a) is required unless the plaintiff alleges sufficient facts in his complaint to overcome the defense of qualified immunity, the court will rule on defendants' motion without a written response.
I.
The Fifth Circuit has held that a district court may require a reply under Rule 7(a) of the Federal Rules of Civil Procedure to overcome the defense of qualified immunity. "Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's discretion not to do so is narrow indeed when greater detail might assist." Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). Here, plaintiff has not alleged sufficient facts to overcome the defense of qualified immunity, i.e. facts that, if proved, would show that Delapaz and Herrera violated a clearly established statutory or constitutional right of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Instead, his complaint consists entirely of global, conclusory assertions that all defendants conspired to: (1) provide false information to a magistrate; (2) "threaten, cajole, harass, and corrupt" a confidential informant into providing false evidence regarding cocaine possession; (3) fabricate the results of field tests on material alleged to be cocaine; and (4) conceal relevant facts and actively mislead prosecutors. ( See Plf. Compl. at 5-7, ¶ 18-28 8-9, ¶ 35). Because of these pleading deficiencies, a reply is warranted. See Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995) (Rule 7(a) reply is the "preferred procedure" prior to consideration of motion to dismiss on grounds of qualified immunity).II.
Plaintiff has also failed to plead any facts to support his RICO claim. Rather, he merely incorporates the same broad, conclusory assertions made elsewhere in his complaint in an attempt to show a "pattern of racketeering activity." ( See Plf. Compl. at 9-10, ¶¶ 38-41). The court therefore determines that plaintiff should be required to complete a RICO case statement, in the form attached hereto as Exhibit "A," within 20 days after this recommendation is adopted by the district judge. See Marriott Brothers v. Gage, 911 F.2d 1105, 1107 (5th Cir. 1990) (case statement is a "useful and sometimes indispensible" means to understand the nature of the claims asserted and how the allegations satisfy the RICO statute).
III.
In order to avoid ruling on plaintiff's claims in a piecemeal fashion, the court determines that plaintiff should be required to file his Rule 7(a) reply and RICO case statement before defendants file a motion to dismiss or a motion for judgment on the pleadings. Accordingly, defendant's Rule 12(b)(6) motion should be denied without prejudice. Defendants may renew their motion after plaintiff files his Rule 7(a) reply and RICO case statement. Alternatively, defendants may raise these grounds for dismissal in a motion for summary judgment at the appropriate time.
RECOMMENDATION
Defendants' motion to dismiss and motion for Rule 7(a) reply or, in the alternative, motion for more definite statement should be granted in part and denied in part. Plaintiff should be ordered to file a Rule 7(a) reply within 20 days after this recommendation is adopted by the district judge. The reply should be tailored to the assertion of qualified immunity and fairly engage its allegations. Plaintiff must plead specific facts to show that the conduct of Defendants Mark Delapaz and Eddie Herrera violated a clearly established constitutional or statutory right of which a reasonable person would have known. Stated differently, plaintiff must explain why the conduct of these defendants was objectively unreasonable in light of the legal rules clearly established at the time of the incident in question.
Plaintiff should also be required to complete a RICO case statement, in the form attached hereto as Exhibit "A," within 20 days after this recommendation is adopted by the district judge.
Defendants' Rule 12(b)(6) motion to dismiss should be denied without prejudice. Defendants should be permitted to renew their motion after plaintiff files his Rule 7(a) reply and RICO case statement. Alternatively, defendants may raise these grounds for dismissal in a motion for summary judgment at the appropriate time.
Defendants' motion for more definite statement should be denied as moot.
STANDING ORDER REGARDING RICO CLAIM
In this civil rights case, plaintiff asserts a claim for relief under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. This standing order has been designed to establish a uniform and efficient procedure for processing such a claim. See Marriott Brothers v. Gage, 911 F.2d 1105, 1107 (5th Cir. 1990) (case statement is a "useful and sometimes indispensible" means to understand the nature of the claims asserted and how the allegations satisfy the RICO statute).Plaintiff must file a RICO case statement not later than 20 days after the date of this order. This statement shall include the facts made the basis of plaintiffs RICO claim after conducting a "reasonable inquiry" as required by Rule 11 of the Federal Rules of Civil Procedure. The case statement must be in a form which uses the numbers and letters as set forth below, and shall state in detail and with specificity the following information:
1. State whether the alleged unlawful conduct is in violation of 18 U.S.C. § 1962 (a), (b), (c), or (d).
2. List each defendant and state the alleged misconduct and basis of liability of each defendant.
EXHIBIT "A"
3. List other alleged wrongdoers and state the alleged misconduct of each.
4. List the alleged victims and state how each victim was allegedly injured.
5. Describe the pattern of racketeering activity alleged for each RICO claim. The description of the pattern of racketeering must include the following information:
(a) List the alleged predicate acts and the specific statutes which were allegedly violated;
(b) Provide the dates of the predicate acts, the participants in the predicate acts, and a description of the facts surrounding the predicate acts;
(c) If the RICO claim is based upon the predicate offenses of wire fraud, mail fraud, or fraud in the sale of securities, the "circumstances constituting fraud or mistake shall be stated with particularity." FED. R. Civ. PROC. 9(b). Identify the time, place, and contents of the alleged misrepresentations, and the identity of persons to whom and by whom the alleged misrepresentations were made;
(d) State whether there has been a criminal conviction for violation of the predicate acts;
(e) State whether civil litigation has resulted in a judgment in regard to the predicate acts;
(f) Describe how the predicate acts form a "pattern of racketeering activity"; and
(g) State whether the alleged predicate acts relate to each other as part of a common plan. If so, describe in detail.
6. Describe in detail the alleged enterprise for each RICO claim. A description of the enterprise shall include the following information:
(a) State the names of the individuals, partnerships, corporations, associations, or other legal entities, which allegedly constitute the enterprise;
(b) Describe the structure, purpose, function, and course of conduct of the enterprise;
(c) State whether any defendants are employees, officers, or directors of the alleged enterprise;
(d) State whether any defendants are associated with the alleged enterprise;
(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
(f) If any defendants are alleged to be the enterprise itself, or members of the enterprise, explain whether such defendants are perpetrators, passive instruments, or victims of the alleged racketeering activity.
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.
8. Describe the alleged relationship between the activities of the enterprise and the pattern of racketeering activity. Discuss how the racketeering activity differs from the usual and daily activities of the enterprise, if at all.
9. Describe what benefits, if any, the alleged enterprise receives from the alleged pattern of racketeering.
10. Describe the effect of the activities of the enterprise on interstate or foreign commerce.
11. If the complaint alleges a violation of 18 U.S.C. § 1962(a), provide the following information:
(a) State who received the income derived from the pattern of racketeering activity or through the collection of an unlawful debt; and
(b) Describe the use or investment of such income.
12. If the complaint alleges a violation of 18 U.S.C. § 1962(b), describe in detail the acquisition or maintenance of any interest in or control of the alleged enterprise.
13. If the complaint alleges a violation of 18 U.S.C. § 1962(c), provide the following information:
(a) State who is employed by or associated with the enterprise; and
(b) State whether the same entity is both the liable "person" and the "enterprise" under § 1962(c).
14. If the complaint alleges a violation of 18 U.S.C. § 1962(d), describe in detail the alleged conspiracy.
15. Describe the alleged injury to business or property.
16. Describe the direct causal relationship between the alleged injury and the violation of the RICO statute.
17. List the damages sustained by reason of the violation of § 1962, indicating the amount for which each defendant is allegedly liable.
18. List all other federal causes of action, if any, and provide the relevant statute numbers.
19. List all pendent state law claims, if any.
20. Provide any additional information that might be helpful to the Court in processing the RICO claim.
SO ORDERED.