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MANUEL v. LUCENTI

November 10, 2004.

JULIA MANUEL, DARRIN RAINES, and RONNIE RAINES, Plaintiffs,
v.
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.

BACKGROUND

  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 pleaded facts.

  ANALYSIS

  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. 2000).

  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 ...


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