United States District Court, N.D. Illinois, Eastern Division
November 10, 2004.
JULIA MANUEL, DARRIN RAINES, and RONNIE RAINES, Plaintiffs,
ROBERT C. LUCENTI, ESQ., and KEVIN P. BOLGER, ESQ. Defendants.
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Before this court are defendants' motions to strike certain
paragraphs of plaintiffs' complaint pursuant to FED. R. CIV. P. 8
and 12(f) and to dismiss plaintiffs' complaint pursuant to
FED.R.CIV.P. 12(b)(1) and (6). For the reasons set forth below,
defendants' motion to strike is denied, and defendants' motion to
dismiss is granted in part and denied in part.
According to plaintiffs' pro se complaint, Ronnie Raines
("Raines"), an African American, hired defendant Lucenti to
represent him as his attorney in a case involving federal
criminal drug charges. Lucenti then engaged defendant Bolger to
make court appearances on Raines's behalf. Plaintiffs Julia
Manuel and Darrin Raines,*fn1 who are also African American,
helped pay Raines's attorney's fees. Raines pled guilty to at
least some of the charges against him and received a sentence of
life in prison.
Although the majority of plaintiffs' complaint focuses on
alleged misconduct on the part of Raines's attorneys that sounds in legal malpractice and fraud
theories, including failure to give effective advice, failure to
appear in court, withholding documents and information, failure
to return phone calls, insistence on undocumented cash payments
and general failure to perform promised services, plaintiffs'
complaint alleges violations of three federal laws. Specifically,
plaintiffs claim that defendants violated 42 U.S.C. § 1981 by
failing to provide legal services to plaintiffs using the same
degree of skill with which they provided services to Caucasian
clients (Count I), conspired to violate plaintiffs' equal
protection rights in violation of 42 U.S.C. § 1985 (Count II) and
engaged in a pattern of criminal activity in violation of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961, et seq. (Count V).
The core of defendants' motions to strike and to dismiss
involves the allegations pled by plaintiffs in support of these
federal claims. In their complaint, plaintiffs set forth in
detail several conversations that allegedly took place between
defendants in which defendants, allegedly motivated by
plaintiffs' race, conspired to take plaintiffs' money and deprive
Raines of adequate legal services. By way of illustration,
plaintiffs allege that the following conversation between the
defendants took place on or about July 27, 2001:
. . . Lucenti called Defendant Bolger at his office,
asking him if he wanted to make at least $10,000 and
possibly $20,000 without doing nothing [sic] more
than making some prefunctory [sic] court
appearances in Wisconsin. Defendant Bolger . . .
asked for the details. Lucenti stated that it
concerned some "black dope head who I earned a few
dollars off over the years," who was in trouble
federally and that he saw a chance to get some extra
money from his family without much or any work.
Lucenti told Bolger that . . . all Bolger had to do
was show up in court until they received another
$20,000 they could "let the feds bury" [Raines] . . .
Bolger told Lucenti that as long as [the plaintiffs]
were African Americans and will not know what was
going on in his handling of the case then he would
have no problem taking their money.
Complaint ¶¶ 78-83. Plaintiffs similarly describe other
ostensibly private conversations between the defendants
throughout the complaint, and also plead other facts that
defendants maintain plaintiffs cannot purport to know. See, e.g., Complaint ¶ 73
("On or about from 1977 to 2001, Lucenti issued bona fide
receipts to his Caucasian clients along with an outline or a list
of things he would be performing and accepted checks of all kinds
from them.") Defendants maintain that they are entitled to the
relief they seek primarily because these allegations are not well
I. Motion to Strike.
A. Short and Plain Statement of the Claim.
Defendants first move to strike portions of plaintiffs'
complaint under FED.R.CIV.P. 8(a)(2), which requires that the
complaint be a short and plain statement of the claim showing
that the pleader is entitled to relief. Defendants object that
the complaint "consists of 244 paragraphs and is a confused mix
of fact, unnecessary history, editorializing, fiction and fantasy
. . . [and] is rife with surplusage. . . ." Defs.' Mtn. to
Strike, ¶ 8. Motions to strike under Rule 8(a) are disfavored as
long as portions of the complaint have put defendants on notice
of the claims against them, particularly when striking the
disputed paragraphs may result in dismissal. See, e.g., Davis v.
Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001) ("complaints
signed by a lawyer are never dismissed simply because they are
not short, concise, and plain"); Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998) (noting that "[f]at in a complaint can
be ignored"). Moreover, as defendants recognize, pro se
complaints are held to less exacting standards than complaints
drafted by attorneys. See Donald v. Cook County Sheriff's
Dept., 95 F.3d 548, 555 (7th Cir. 1996) ("It is, by now,
axiomatic that district courts have a special responsibility to
construe pro se complaints liberally[.]"). In any event, while
defendants apparently take issue with much of the complaint, the
only specific paragraphs to which defendants direct the court are paragraphs 12-37, detailing Raines's first meeting with Lucenti.
The court declines to use Rule 8 to strike these 25 paragraphs
offered as background material from a pro se complaint.
B. Immaterial, Impertinent, or Scandalous Matter.
The Federal Rules also allow the court to remove material from
a pleading that it finds "`redundant, immaterial, impertinent, or
scandalous." FED. R. CIV. P. 12(f). To prevail on a motion to
strike under Rule 12(f), defendants must demonstrate that the
material at issue does not bear on the subject matter of the
litigation and will prejudice the defendants. See, e.g., NOW,
Inc. v. Scheidler, 897 F. Supp. 1047, 1087 n. 28 (N.D. Ill.
1995) ("[t]o strike portions of a complaint, the allegations
being challenged must be so unrelated to plaintiff's claims as to
be void of merit and unworthy of any consideration" and "must be
prejudicial to the movant" (citations omitted)). As with motions
to strike under Rule 8, motions to strike under Rule 12(f) are
disfavored and usually denied. Spearman Indus., Inc. v. St. Paul
Fire & Marine Ins. Co., 109 F. Supp. 2d 905, 907 (N.D. Ill.
Defendants object to 61 paragraphs in plaintiffs' complaint
detailing alleged private conversations and activities that
defendants maintain plaintiffs could not possibly know about.
Although defendants also couch their opposition to the disputed
paragraphs in terms of immateriality and scandal, these
objections are valid only if the allegations are false.
Defendants therefore are moving to strike the disputed paragraphs
from plaintiffs' complaint on the basis that it is highly
improbable that the allegations are true, but Rule 12(f) is not
the appropriate mechanism to request such relief. See, e.g.,
Boyd v. United States, 861 F.2d 106, 109 (5th Cir. 1988)
(falsity of a pleading does not provide sufficient basis for
granting motion to strike under Rule 12(f)); Kinee v. Abraham
Lincoln Federal Sav. and Loan Ass'n, 365 F. Supp. 975, 982 (E.D.
Pa. 1973) (allegations that portions of pleading were "patently
untrue" and therefore impertinent and scandalous not a proper 12(f) ground).
Although the court cannot strike the contested portions of
plaintiffs' complaint, it cautions plaintiffs that the Federal
Rules require responsible pleading, including responsible
pleading in the alternative. While Rule 8(e)(2) allows pleading
in the alternative and hypothetical pleading, it does not relieve
the party of its Rule 11 obligations. In particular, each party
is required to certify to the best of its "knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances," that "the allegations and other factual
contentions have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or
discovery. . . ." FED. R. CIV. P. 11(b)(3). In other words, Rule
11 does not tolerate allegations based merely on speculation. The
court strongly urges plaintiffs to evaluate carefully the
evidentiary bases for the allegations in its complaint. If the
record ultimately demonstrates that allegations were never
supported by anything more than plaintiffs' subjective
speculation, sanctions will be appropriate. As the court has
previously cautioned plaintiffs, they are not allowed to rely on
unfounded conjecture to enable a legal malpractice claim to
masquerade as a federal civil rights action.
II. Motion to Dismiss.
When ruling on a motion to dismiss pursuant to FED. R. CIV. P.
12(b)(6), the court must accept the factual allegations in the
plaintiffs' complaint as true. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164
(1993). The court then considers whether any set of facts
consistent with the allegations could support plaintiffs' claim
for relief. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078
(7th Cir. 1992). A complaint need only contain enough facts to
put the defendant on notice of the claim so that an answer can be
framed. Flannery v. Recording Indus. Assoc. of America,
354 F.3d 632, 639 (7th Cir. 2004). Dismissal should be granted only if it is "beyond doubt" that the
plaintiff cannot prove any facts to support a claim entitling
plaintiff to relief. Haines v. Kerner, 404 U.S. 519, 520-521
(1972). Complaints prepared pro se, such as plaintiffs', are
given greater latitude. Id.
A. Civil Rights Claims.
Plaintiffs indicate that they wish to voluntarily dismiss Count
II of their complaint, alleging conspiracy to violate equal
protection rights in violation of 42 U.S.C. § 1985. The court,
therefore, first turns to plaintiffs' intentional discrimination
claim under 42 U.S.C. § 1981. Section 1981 provides that "all
persons within the jurisdiction of the United States shall have
the same right in every State . . . to make and enforce contracts
. . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). This
right "includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship." 42 U.S.C. § 1981(b). To establish a claim under
Section 1981, plaintiffs must allege that (1) they are members of
a racial minority; (2) defendants intended to discriminate on the
basis of race; and (3) the discrimination concerned the making
and enforcing of a contract. Morris v. Office Max, Inc.,
89 F.3d 411, 413 (7th Cir. 1996).
Defendants argue that the court must consider only plaintiffs'
"well pleaded" facts, and argues that they are insufficient to
support an inference that defendants' performance and billing
practices were motivated by racial animus. For example,
defendants maintain that plaintiffs' allegation that defendants
refused to accept checks from or issue receipts to plaintiffs
lacks a corresponding allegation that defendants routinely
accepted checks from Caucasian clients and issued them receipts.
See Defs.' Mtn. to Dismiss at 8. But this is not so. As noted
above, plaintiffs' complaint alleges that Lucenti did issue
receipts to his Caucasian clients from 1977 to 2001, and
"accepted checks of all kinds from them." Complaint ¶ 73.
Plaintiffs' complaint contains enough specificity to put defendants on notice of a
colorable violation of Section 1981, particularly in light of the
liberal construction that must be afforded pro se plaintiffs'
In essence, defendants' motion to dismiss plaintiffs' Section
1981 count presents the same argument as their motion to strike,
which was premised on defendants' disbelief of the incredible
nature of plaintiffs' allegations. But Rule 12(b)(6), like Rule
12(f), is an inappropriate mechanism for dismissal of claims
based on apparent falsity. See Walker v. National Recovery,
Inc., 200 F.3d 500, 503 (7th Cir. 1999). This court must honor
plaintiffs' request to review their allegations "without any
judgment call on whether they are believable or not." Ptfs.' Rsp.
at 6. However, the court notes that the core of plaintiffs'
Section 1981 claim that plaintiffs received overpriced and
deficient legal services compared to Caucasian clients has a
dubious chance of success in light of fact that attorneys are
entitled to make fee judgments based upon the individual facts of
each case, and plaintiffs will have a hard time accessing
relevant material on this issue.
B. RICO Claim.
Defendants next move to dismiss plaintiffs' claim under RICO.
The RICO statute was originally enacted "in an attempt to
eradicate organized, long-term criminal activity." Mira v.
Nuclear Measurements Corp., 107 F.3d 466, 473 (7th Cir. 1997).
RICO makes it unlawful (1) to invest money derived from a pattern
of racketeering activity or through the collection of an unlawful
debt in an enterprise; (2) to acquire or maintain an interest in
or control of an enterprise through a pattern of racketeering
activity or through collection of an unlawful debt; (3) for any
person employed by or associated with any enterprise to conduct
the enterprise's affairs through a pattern of racketeering
activity or collection of an unlawful debt.
18 U.S.C. § 1962(a)-(c). A "pattern of racketeering activity" under the RICO
statute is established by the commission of at least two of the predicate acts enumerated in 18 U.S.C. § 1961(1)
within a ten-year period. 18 U.S.C. § 1961(5).
Plaintiffs' claim fails because their complaint does not
sufficiently plead a pattern of racketeering activity. Plaintiffs
maintain that the pattern of racketeering activity can be derived
from defendants' allegedly fraudulent conduct, directing the
court to 225 paragraphs of their complaint. Ptfs.' Rsp. at 9.
However, the facts set forth in the complaint, which are specific
to defendants' interactions with plaintiffs, do not provide
evidence that the defendants are engaged in a criminal
enterprise. See, e.g., Pizzo v. Bekin Van Lines Co.,
258 F.3d 629, 632 (7th Cir. 1999) (several allegations of mail and wire
fraud arising out of single dispute with store do not constitute
a pattern). As the Seventh Circuit explained in Pizzo,
A criminal enterprise, as distinct from a normal
enterprise that gets in trouble with the law from
time to time, is an enterprise that habitually
resorts to illegal methods of doing business. It is
an enterprise whose disposition, whose bent, is
criminal as shown by its illegal acts' composing a
pattern from which such a disposition can be
inferred, in much the same way that an individual's
generous disposition is inferred from a pattern of
generous acts, acts frequent enough and similar
enough to enable such an inference.
Id. at 633 (emphasis in original). In the present case,
although plaintiffs complain of 21 alleged acts committed by
defendants, these allegations at best show improper activities
directed toward plaintiffs arising out of defendants'
representation of Raines. They do not provide evidence that would
allow a trier of fact to extrapolate a danger of recurrence, and
no inference can be drawn from the allegations that defendants
are a criminal enterprise engaged in a pattern of fraudulent
activity. See id. ("[W]e are sure that not all retail stores in
the United States are violating RICO; yet we imagine that every
retail store in the United States has at least two customers mad
enough at it to cry fraud.").
Plaintiffs' RICO claim is also doomed because the alleged acts
to which plaintiffs direct the court relate to fraud under Illinois law, and fraud is not
one of the state law crimes that RICO includes as a predicate
act. See 18 U.S.C. § 1961(1)(A). Rather, only violations of
particular federal fraud statutes (specifically wire and mail
fraud) constitute predicate acts under RICO. See
18 U.S.C. § 1961(1)(B). Perhaps plaintiffs anticipated this, as their
complaint also contains some references to defendants' "wire,
Internet [and] phone meetings" with defendants and others that
they claim constitute wire fraud under 18 U.S.C. § 1343.
Complaint ¶ 249. However, these allegations cannot save the RICO
As an initial matter, the parties in this action are all
alleged to be citizens of the state of Illinois. Thus, many of
the telephone conversations at issue presumably would not be
interstate communications, which are an essential element of the
federal wire fraud statute. 18 U.S.C. § 1343. See also H.G.
Gallimore, Inc. v. Abdula, 652 F.Supp. 437, 441 (N.D. Ill. 1987)
(telephone calls alleged in the complaint were not predicate
offenses under RICO because they all took place within the State
of Illinois). In fact, plaintiffs even complain that defendants
formed their enterprise to target "unsuspecting citizens in the
state of Illinois." Complaint ¶ 249 (emphasis added).
Plaintiffs' complaint does allege that Raines and Lucenti
communicated by telephone while Raines was incarcerated in
Wisconsin. However, these interstate calls at best might be
considered part of a single scheme to defraud, which, as
discussed above, is insufficient to meet the pattern requirement.
Moreover, with the possible exception of these conversations,
plaintiffs plead no facts specifically supporting a claim of
federal wire fraud. Rather, plaintiffs complain generally that
defendants engaged in similar behavior directed toward other
African Americans. These allegations do not meet the heightened
pleading standards of Rule 9(b) of the Federal Rules of Civil
Procedure. See Lachmund v. ADM Investor Servs., Inc.,
191 F.3d 777, 782 (7th Cir. 1999) (Rule 9(b) standard applies to fraud allegations under
RICO); see also Cherry v. Hall, No. 02 C 7895, 2003 WL 29931 at
*1 (N.D. Ill. Jan. 3, 2003) (applying Rule 9(b) standard to pro
se plaintiff's RICO claim).
Rule 9(b) requires that "in all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be stated
with particularity." FED.R.CIV.P. 9(b). In other words,
plaintiffs' complaint must state "the who, what, when, where, and
how" with respect to each allegation supporting their claim of
wire fraud. See DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th
Cir. 1990). Plaintiffs have not done so. Terse, generalized
allegations such as plaintiffs' are insufficient to plead a
predicate act under RICO. Jepson, Inc. v. Makita Corp.,
34 F.3d 1321, 1326-28 (7th Cir. 1994).*fn2 Because plaintiffs have
failed to plead a pattern of racketeering activity and the only
potential predicate acts they allege fall far short of Rule
9(b)'s heightened pleading standard, their RICO claim must be
C. State Law Claims.
Defendants do not substantively address plaintiffs' state law
claims other than to object to plaintiffs' "conclusory
allegations." Defendants devote two sentences to plaintiffs'
common law fraud claim, maintaining that plaintiffs have failed
to plead that claim with required particularity. This argument
fails. Although plaintiffs did not plead a pattern of wire fraud
under RICO, their allegations of common law fraud are somewhat
more detailed. Plaintiffs cite to specific conversations in which
defendants allegedly intentionally made untrue statements to
plaintiffs that plaintiffs relied upon to their detriment. These
allegations are sufficiently particular to meet Rule 9(b)'s
heightened pleading standard. Defendants also argue that this court can decline to exercise
jurisdiction over the state law claims pursuant to
28 U.S.C. § 1367 after it has dismissed the claims over which it has original
jurisdiction. Because plaintiffs' Section 1981 claim survives
defendants' motion to dismiss, however, it is improper to dismiss
plaintiffs' state counts on this basis.
For the foregoing reasons, defendants' motion to strike is
denied. Defendants' motion to dismiss is granted in part and
denied in part. Counts II and V of plaintiffs' complaint are
hereby dismissed with prejudice.