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
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 ...