Plaintiffs in racketeering lawsuits seek punitive damages.
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posted by Bob at Friday, March 30, 2007
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Friday, March 30, 2007
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3 Comments:
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et. al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v.
City of St. Paul, et. al.,
Defendants.
Sandra Harrilal, et. al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v. JOINT MEMORANDUM OF
LAW IN SUPPORT OF
Steve Magner, et. al., PLAINTIFFS’ MOTION
TO AMEND PLEADINGS
Defendants.
Thomas J. Gallagher, et. al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v. JOINT MEMORANDUM OF
LAW IN SUPPORT OF
Steve Magner, et. al., PLAINTIFFS’ MOTION
TO AMEND PLEADINGS
Defendants.
INTRODUCTION
Plaintiffs Sandra Harrilal and Steven Johnson in the Harrilal, et al.case, and Plaintiffs in the Gallagher, et al. case, through their undersigned counsel, submit this Joint
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 1 of 9
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Memorandum of Law in support of Plaintiffs’ Motion to Amend their pleadings to add claims for punitive damages to certain of their federal causes of action.
FACTS
The Steinhauser, et al. Complaint was filed and served in May 2004, the Harrilal, et al. Complaint was filed and served in March 2005 and the Gallagher, et al. Complaint was filed and served in July 2005. In each of the original Complaints, Plaintiffs made reference to their intent to seek punitive damages from the individual Defendants for the conduct detailed within the Complaints. The Steinhauser Complaint was subsequently amended three times, partly in response to the Defendant’s successful motion to strike certain portions of the Complaint. The Harrilal Complaint was amended twice, again partly in response to the Defendant’s motion to strike certain portions of the Complaint. The Harrilal Complaint was first amended and filed July 7, 2005 as a matter of right under Rule 15 of the Federal Rules of Civil Procedure. ECF No. 12. Following the Court’s Order granting Defendants’ Motion to Strike certain portions of the Harrilal Complaint, the Harrilal Plaintiffs filed and served a Second Amended Complaint. ECF No. 19. The Gallagher Complaint was amended once as a result of Defendants’ successful motion to strike certain portions of that Complaint. ECF No. 17.
All versions of the Steinhauser, et al. Complaints contained reference by those Plaintiffs to “punitive” damages under Counts III (Federal Fair Housing), Count IV (42 U.S.C. 1981), Count V (42 U.S.C. 1982), Count VI (42 U.S.C. 1983) and Count VII (42 U.S.C. 1985).
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 2 of 9
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The original Complaint in Harrilal, et al., contained reference by those Plaintiffs to “punitive” damages under Counts III (Federal Fair Housing), Count IV (42 U.S.C. 1981), Count V (42 U.S.C. 1982), Count VI (42 U.S.C. 1983) and Count VII (42 U.S.C. 1985).
The Original Complaint and Amended Complaint in Gallagher, et al. contained in the prayer for relief section of the Complaint a reference to the intent of those Plaintiffs to seek punitive damages.
During the “motion to strike” phase of this litigation during 2005, counsel for Plaintiffs in Harrilal, et al. mistakenly deleted all references to punitive damages in Counts III through VII.
However, subsequently on or about February 9, 2006, in the Initial Disclosures Pursuant to Rule 26(A)(1)(A) served by the Harrilal Plaintiffs on Defendants, said Plaintiffs, in Part C of said Disclosures, stated that each of the Plaintiffs would be seeking “punitive damages” as part of their claims. See Aff. of Shoemaker, Paragraph 5, Exhibit “B”, pages 14, 15 and 17.
During the consolidated discovery herein, the parties have exhaustively explored in written discovery and depositions the factual basis for claims by Plaintiffs that the individual Defendants acted in an improper manner, acted with malicious motive, or ill will, had intentionally discriminated against Plaintiffs and their tenants, had violated provisions of the Federal RICO act, and in other ways had violated clearly established rights of Plaintiffs and their tenants.
ARGUMENT Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 3 of 9
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A claim for punitive damages under federal law presents a question of federal law and the disposition of a motion to amend pleadings to add such a claim is controlled by Rule 15 of the Federal Rules of Civil Procedure. See Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244 (8th Cir. 1994).
The Eighth Circuit Court of Appeals has stated that a party’s motion to amend should be denied on the merits, “only if [it] assert[s] clearly frivolous claims or defenses.” Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 695 (8th Cir. 1981). The likelihood of success on the proposed claim does not present a basis for denying the proposed amendment unless the claim asserted is clearly frivolous. Id. at 695.
Rule 9 (g) of the Federal Rules of Civil Procedure requires a party to plead all special damages. Fed.R.Civ.P. 9(g)(West 2007). However, the failure to plead special damages can be cured by amendment of the pleadings in keeping with Rule 15. See National Liberty Corp. v. Wal-Mart Stores, Inc., 120 F.3d 913 (8th Cir. 1997). However, such motions to amend should be made within the Court’s Scheduling timelines. See id. at 917.
Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been served, “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a).
The United States Supreme Court, in construing Rule 15 amendments, stated:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason - such as undue delay, bad faith or
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 4 of 9
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dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be ’freely given.
Foman v. Davis, 371 U.S. 178, 182 (1962); See also Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998).
Such leave to amend should not be granted if the party opposing the amendment can show prejudice to that party, that the amendment was brought in bad faith, the amendment would be futile, or the amendment would cause undue delay. Foman, 371 U.S. at 182; Bell, 160 F.3d at 454.
Where a party opposes an amendment on the ground of futility, the standard applied is the same as that invoked in a motion to dismiss. White Consol. Indus., Inc. v. Waterhouse, 158 F.R.D. 429, 434 (D. Minn. 1994). See United States ex rel. Gaudineer & Comito, L.L.P. v. Iowa, 269 F.3d 932, 935 (8th Cir. 2001) (a claim is futile when it fails to state a claim for relief).
For purposes of a motion to dismiss, a court takes all facts alleged in the complaint as true and must construe the allegations in the complaint and reasonable inferences arising from the complaint in favor of the pleader. Westcott v. Omaha, 901 F.2d. 1486, 1488 (8th Cir. 1990). Under a Rule 12(b)(6) motion to dismiss analysis, a cause of action “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2002).
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 5 of 9
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Plaintiffs’ Proposed Amendment of Pleading
Plaintiffs Harrilal and Johnson have proposed changes to Counts III, IV, V, VI and VII of their Second Amended Complaint, and in their prayer for relief, to further clarify that they are seeking punitive damages as part of their damages under each of those federal claims. In their original Complaint, Plaintiffs Harrilal and Johnson included the word “punitives” in each of the above referenced Counts and included a claim for punitive damages in the prayer for relief section of their Complaint. In each of the two subsequent amended Complaints, references to “punitive” damages were inadvertently omitted by counsel. Plaintiffs request leave of the Court to add the references to “punitive damages” back into their pleading consistent with their original Complaint.
Plaintiffs, in their Initial Disclosures Pursuant to Federal Rule of Civil Procedure 26(A)(1)(A), served by on Defendants on or about February 9, 2006, stated that each of the Plaintiffs would be seeking “punitive damages” as part of their claims.
Plaintiffs in the Gallagher, et al. case have also proposed changes to Counts III, IV, V, VI and VII of their First Amended Complaint to further clarify that they are seeking punitive damages as part of their damages under each of those claims. In their original and First Amended Complaint, Plaintiffs in the Gallagher, et al. case included a claim for punitive damages in the prayer for relief section of their Complaint as allowed by the Court on motion, as well as in their Initial Disclosures Pursuant to Federal Rule of Civil Procedure 26(A)(1)(A). Plaintiffs in the Gallagher, et al. case now request leave of the Court to add the references to
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 6 of 9
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punitive damages in each of the above referenced counts.
Plaintiffs’ proposed amendments in the Harrilal case to the Second Amended Complaint and in the Gallagher case to the First Amended Complaint should be allowed by this Court as there is no reason to deny the requested relief.
There will be no undue delay or any prejudice to Defendants as a result of the Court allowing Plaintiffs’ proposed amendments. Defendants had notice from the start of the Harrilal, et al. proceedings that such Plaintiffs were seeking punitive damages under certain of their federal causes of action. Additionally, these three cases were consolidated for discovery purposes and the Defendants have had notice during the period of discovery that the Steinhauser, et al. Complaint continued to include references to “punitive” damages in the federal causes of action found in Counts III through VII of that Complaint and the Gallagher, et al. Complaint referenced the intent of those Plaintiffs to seek leave of the Court to amend their Complaint to add punitive damage claims. Counts III through VII of the Second Amended Complaint in Harrilal, et al. Complaint contain the same federal causes of action as all versions of the Steinhauser Complaints. And, once again, Defendants had notice after the mistaken deletion of references to “punitive” damage in the Harrilal Complaint, that the Harrilal Plaintiffs were continuing to pursue punitive damages against Defendants. See Plaintiffs’ Initial Disclosures.
Granting the Plaintiffs’ motion to amend their Complaints to add references at this point to “punitive” damages, will not necessitate further discovery as the facts that relate to the claims for punitive damages have already been subject to discovery by the parties. Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 7 of 9
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Depositions and written discovery by the parties herein included exhaustive exploration of the claims by Plaintiffs that the individual Defendants had acted in a manner that would trigger punitive damage claims. Defendants’ counsel inquired of Plaintiffs into the basis for their claim that Defendants had violated the Federal RICO act, had intentionally discriminated against Plaintiffs, and acted with ill will and malice.
There certainly is no evidence of bad faith or dilatory motive on the part of Plaintiffs in making this motion as they have made the motion to amend in a timely manner in keeping with the Court’s scheduling order.
Finally, any argument by Defendants of the futility of amendment is without merit. In applying the motion to dismiss standard to Plaintiffs’ motion to amend, the Court must take all facts alleged in the Corrected Second Amended Complaint and First Amended Complaint as true and must construe the allegations in the Complaint and reasonable inferences arising from the Complaint in favor of Plaintiffs.
CONCLUSION
Plaintiffs submit that their proposed amendments to the Complaints are proper and that Plaintiffs’ motion should be granted.
Respectfully submitted,
THE ENGEL FIRM, PLLC
Dated: March 15, 2007 By: s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 8 of 9
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T: (763) 416-9088
F: (763) 416-9089
Attorney for Plaintiffs Gallagher, et. al.
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: March 15, 2007 By: s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) 841-6375
Attorneys for Plaintiffs Steinhauser, et. al. Attorneys for Plaintiffs Harrilal, et. al.
Case 0:05-cv-01348-JNE-SRN Document 48 Filed 03/15/2007 Page 9 of 9
The RICO suits against the City of Saint Paul are linked to the right of the screen on the front page under LINKs.
Looks like they uped the "ante" on these crooked inspectors a little. I'd love to see the landlords get a judgement and take the inspectors homes from them. Let them try living in the street and see how it feels.
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