United States District Court, E.D. Tennessee, Knoxville
LORING JUSTICE, individually and as Next of Friend of N.N./N.J., a minor, Plaintiffs,
KIM NELSON, DAVID VALONE, MARTHA MEARES, PAUL DILLARD, THE LAW OFFICE OF DAVID VALONE, MEARES AND DILLARD, and MEARES AND ASSOCIATES, Defendants.
C. Poplin Magistrate Judge.
L. COLLIER, UNITED STATES DISTRICT JUDGE.
Martha Meares, Paul Dillard, Meares and Associates, and
Meares and Dillard have filed a motion for a more definite
statement. (Doc. 10.) Defendants contend Plaintiffs'
complaint fails to meet Federal Rule of Civil Procedure
9(b)'s heightened pleading requirements. (Doc. 11.)
Specifically, Defendants assert the complaint alleges several
predicate offenses as part of the claim under the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-1968, but
rarely does it identify which defendant allegedly committed
the predicate act, how it was committed, and when, and the
complaint does not adequately allege how Plaintiffs were
damaged. (Id.) Defendants thus request an order
requiring Plaintiffs to comply with Rule 9(b) by either
filing a RICO case statement or amending the complaint.
have filed a response in opposition. (Doc. 14.) Plaintiffs
contend Defendants' motion should be denied because it
does not meet the “unintelligible and
prejudicial” standard required for granting a motion
for a more definite statement. (Id.) Defendants are
simply seeking greater detail from the complaint, which
Plaintiffs contend is properly sought through discovery, not
a motion for a more definite statement. (Id.)
Plaintiffs also assert a failure to comply with Rule 9(b) is
grounds for a motion to dismiss, not a motion for a more
definite statement. (Id.) Finally, Plaintiffs note
the Eastern District of Tennessee does not mandate the filing
of a RICO case statement, and thus Plaintiffs should not be
required to file one. (Id.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(e), a party may move for a
more definite statement of a pleading that “is so vague
or ambiguous that the party cannot reasonably prepare a
response.” Motions for more definite statements are
generally disfavored and “should not be used as a
substitute for discovery.” Fed. Ins. Co. v.
Webne, 513 F.Supp.2d 921, 924 (N.D. Ohio 2007). Rather,
they are designed “to strike at unintelligibility . . .
[and] must be denied where the subject complaint is not so
vague or ambiguous as to make it unreasonable to use pretrial
devices to fill any possible gaps in detail.”
Id. (quoting Schwable v. Coates, No.
3:05-cv-7210, 2005 WL 2002360, at *1 (N.D. Ohio Aug. 18,
a pleading need only contain a short and plain statement of a
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). If a party is alleging fraud or
mistake, however, the complaint “must state with
particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b).
with Rule 9(b) requires “a plaintiff, at a minimum, to
allege the time, place, and content of the alleged
misrepresentation on which he or she relied; the fraudulent
scheme, the fraudulent intent of the defendants, and the
injury resulting from the fraud.” Coffey v. Foamex,
L.P., 2 F.3d 157, 161-62 (6th Cir. 1993) (internal
citations and quotations omitted). A failure to satisfy the
requirements of Federal Rule of Civil Procedure 9(b) can be
addressed by either a motion to dismiss or a motion for a
more definite statement. See Galler Lehman Law, P.A. v.
Steve Miller & Assocs., Inc., No. 3:14-cv-591, 2015
WL 13755449, at *4 (E.D. Tenn. June 18, 2015) (“If a
plaintiff fails to satisfy the pleading requirements of Rule
9(b), the plaintiff may be ordered to provide a more definite
statement of its pleading in lieu of dismissal.”)
(citing Coffey, 2 F.3d at 162). Rule 9(b)'s
heightened pleading standard applies to RICO claims that
involve allegations of fraud, but Rule 8 notice pleading
remains the standard for non-fraud RICO predicate offenses.
See, e.g., Wall v. Mich. Rental, 852 F.3d 492, 496
(6th Cir. 2017) (applying Rule 9(b) to predicate acts of
wire, mail, and bank fraud); Dowling v. Select Portfolio
Servicing, Inc., No. 2:03-CV-049, 2006 WL 571895, at * 9
(S.D. Ohio Mar. 7, 2006) (declining to apply heightened
pleading standard to RICO conspiracy claims); Robbins v.
Wilkie, 300 F.3d 1208, 1211 (10th Cir. 2002) (explaining
the particularity requirement applies only to RICO acts
predicated upon fraud).
Plaintiffs have alleged RICO predicate offenses of extortion,
blackmail, coercion, and fraud. Thus, the complaint must
allege with particularity the fraud predicate offenses. The
Court finds it fails to do so. In alleging open-ended
continuity, the complaint states, “Defendants'
emails and communications amongst themselves and to
Justice's counsel or Justice via email or phone
establishes wire fraud within the meaning of RICO.”
(Doc. 1 at 33 ¶ 291.) However, nowhere else in the
complaint is there any mention of emails or phone calls
amongst Defendants or with Justice or his counsel. Plaintiffs
cannot simply state communications exist to establish wire
fraud; the complaint must allege the time, place, and content
of the misrepresentation upon which Plaintiffs relied.
See Coffey, 2 F.3d at 161-62. Later, the complaint
states, “Under and in furtherance of their fraudulent
scheme, Defendants committed multiple related acts of
specific racketeering activity, including extortion,
blackmail, witness intimidation and coercion and fraud, as
well as obstruction of justice and wire fraud.” (Doc. 1
at 41 ¶ 315.) Again, Plaintiffs fail to provide any
particular factual allegations regarding the time, place, and
content of the misrepresentations for the fraud and wire
fraud claims, as is required by Rule 9(b). See Fed.
R. Civ. P. 9(b). Thus, Court finds the complaint fails to
plead with particularity the fraud and wire fraud predicate
offenses and Defendants cannot fairly be expected to respond
to those claims as they are currently alleged.
respect to the remaining alleged predicate offenses of
extortion, blackmail, and coercion, Rule 8's notice
pleading standard applies. See Dowling, Inc., 2006
WL 571895, at *9; Robbins, 300 F.3d at 1211. Under
that standard, a complaint need only “give the
defendant fair notice of what . . . the claim is and the
grounds upon which it rests.” See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 56 (1957)). Here, the complaint
sets out sufficient factual allegations for each of the
remaining predicate offenses to provide adequate notice for
Defendants regarding what each claim is and what it relies
on. Thus, the complaint complies with Rule 8 for the
remaining alleged predicate offenses and is not so
unintelligible as to require a more definite statement on
the Court will GRANT IN PART Defendants'
motion for a more definite statement. While the Eastern
District of Tennessee does not automatically require the
filing of a RICO case statement, it has been this Court's
practice to require one. See Anderson v. Thompson,
No. 1:07-CV-100, 2007 WL 1490596, at *1 (E.D. Tenn. May 21,
2007). Thus, the Court will ORDER Plaintiffs
to provide a RICO case statement for the allegations of
fraud. Pursuant to this Court's prior practice, see
Anderson, 2007 WL 1490596, at *1, this case statement
shall include the facts Plaintiffs are relying upon to
initiate the RICO fraud claims as a result of the
“reasonable inquiry” required by Federal Rule of
Civil Procedure 11. The specific requirements of the RICO
case statement are set out in the accompanying Order.
foregoing reasons, the Court will GRANT IN
PART Defendants' motion (Doc. 10). Plaintiffs
shall file a RICO case statement regarding the claims of
fraud within fourteen days of the
Court's order, see Fed. R. Civ. P. 12(e), and
Defendants shall file a responsive pleading fourteen ...