Opinion
Civil Action No. 05-1956 Section "C" (3).
March 6, 2006
ORDER AND REASONS
This matter comes before the Court on motions to dismiss pursuant to Fed.R.Civ.P. 9(b) for failure to plead fraud with particularity and to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed by Greg Courtney ("Courtney"). Having considered the record, the memoranda of counsel and the law, the Court has determined that dismissal is inappropriate for the following reasons.
According to the Complaint, the plaintiff, Shell Offshore, Inc. ("Shell"), has filed suit under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 and Louisiana law against Courtney, three vendor companies and two other individuals associated with the vendor companies alleging a conspiracy to defraud Shell "through repeated instances of submitting by wire transfer bogus invoices for equipment that was never delivered and for maintenance services . . . that were never performed, repeated instances of accepting payment on the bogus invoices, and double-charging Shell for other equipment." (Rec. Doc. 1, p. 2). A RICO Case Statement was subsequently filed. (Rec. Doc. 6). The sufficiency of the allegations of the Complaint are the subject of these motions.
A district court should dismiss for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 901 (5th Cir. 1997). The complaint must be liberally construed in favor of the plaintiff, and all well-pleaded facts accepted as true. Kaiser Aluminum Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983).
Courtney's first argues that the Complaint should be dismissed because the claims have prescribed. The Court disagrees with this argument, as the plaintiff has clearly plead the defendants' concealment of the alleged fraud . (Rec. Doc. 1, ¶ 3). Rotella v. Wood, 528 U.S. 549 (2000); Warden v. Barnett. 252 F.3D 1356 (5th Cir. 2001); Champagne v. Brint, 893 So.2d 119 (La.App. 4th Cir.).
The remainder of Courtney's first motion is also answered by Shell's carefully drafted pleadings. Courney next argues that Shell's Complaint insufficiently states a RICO claim under Section 1962(c) or RICO conspiracy under Section 1962(d) due to a number of alleged deficiencies including: failure to plead a RICO pattern predicate acts of wire or mail fraud, RICO relatedness, RICO continuity, RICO enterprise and conspiracy. Again, this Court finds no merit in this argument. All of these elements have been set forth in the Complaint, as supplemented by the RICO Case Statement. (Rec. Doc.1, ¶¶ 3, 16, 18-20, 22-23, 25, 27, 28-31, 35, 39, 41, 46-58, 21-27, 31-36; Rec. Doc. 2, p ¶ 5, 7). Courtney's challenges to the sufficiency of the pleadings pertaining to the state law claims of conversion and misappropriation and breach of fiduciary duty are likewise unavailing in light of what was actually plead. (Rec. Doc. 1, ¶¶ 65-71, 79-81).
The second motion to dismiss pursuant to Fed.R.Civ.P. 9(b) for failure to plead fraud with particularity meets a similar fate in light of the pleadings which sufficiently set forth the "who, what, where, when and how" of the alleged fraud. Again, this argument is belied by the pleadings, which contain specifics throughout too numerous to itemize. In this regard, the Court notes that the United States Supreme Court has acknowledged the role of discovery in a RICO case, citing with favor a rule "relaxing particularity requirements of Rule 9(b) where RICO plaintiff lacks access to all facts necessary to detail claim."Rotella v. Wood, 528 U.S. 549, 560 (2000), citing Corley v. Rosewood Care Center of Peoria, 142 F.3d 1041, 1051-1051 (7th Cir. 1998).
Accordingly,
IT IS ORDERED that the motion to dismiss pursuant to Fed.R.Civ.P. 9(b) for failure to plead fraud with particularity (Rec. Doc. 17) and the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed by Greg Courtney (Rec. Doc. 18) are DENIED.