October 31, 2000, REPORT AND RECOMMENDATION by United States Magistrate Judge John M. Mason, in LAMBROS vs. FAULKNER. Please note that Magistrate Mason has not stated the complete facts within his finding of facts on page two (2), where he states LAMBROS was sentenced to a term of at least 360 months in jail. The report should state LAMBROS was sentenced to a MANDATORY LIFE SENTENCE WITHOUT PAROLE that was vacated by the Eighth Circuit Court of Appeals. See, U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995). Lambros' was then resentenced to thirty (30) years as per Article 75 of the Brazilian Criminal Code, which limits the maximum prison sentence to thirty (30) years in Brazil. See, STATE OF WASHINGTON vs. MARTIN SHAW PANG, 940 P.2d 1293 (Wash. 1997). The REPORT AND RECOMMENDATION is 15 pages with an APPENDIX of 2 pages. Total of 17 pages. (Judge Mason states on page 14, "There is no evidence that Plaintiff ever would have been offered a plea agreement which included an arrangement for the REMOVAL OF BRAIN CONTROL IMPLANTS.")
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOHN GREGORY LAMBROS
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
JOHN & JANE DOE
The above matter is before the undersigned upon Defendants' Motion to Dismiss or for Summary Judgment (Docket No. 90] and Plaintiffs Motion for Appointment of Legal Expert [Docket No. 1001. The matter was referred to the undersigned by Judge David S. Doty for a Report and Recommendation pursuant to 28 U.S.C. §636 (b)(1)(B).
The long and rather complex procedural history of this case is set out in an Appendix to this Report. Upon the following Findings of Fact/Report, it is recommended that Defendants' Motion to Dismiss or for Summary Judgment[Docket No. 90) be granted, and Plaintiff 's Motion for Appointment of Legal Expert (Docket No. 1001 be denied as moot.
FINDINGS OF FACT REPORT
Defendant Charles W. Faulkner ("C.W. Faulkner") was appointed to be Plaintiffs attorney in a federal criminal case, U.S. v. Lambros 4-CR-89-82(05), in which Plaintiff was charged with crimes related to the distribution of cocaine. At the time, C. W. Faulkner was a partner at the law firm of Faulkner & Faulkner. Defendant Sheila Faulkner was also a partner at Faulkner & Faulkner. Plaintiff identifies Defendants John and Jane
End page 1
Doe as persons employed by C.W. Faulkner to assist in his defense. C.W. Faulkner died before this action was commenced,
While represented by C.W. Faulkner, Plaintiff was offered a plea bargain of seven years in prison for all of the charges pending against him. Plaintiff did not accept this plea bargain. After a trial, he was convicted of the federal criminal charges and sentenced to a term of at least 360 months in jail. Plaintiff is suing Defendants for legal malpractice and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") in connection with his criminal defense.
C,W. Faulkner was appointed to represent Plaintiff pursuant to 18 U.S.C. §3006A, which provides for selection of defense counsel for indigent defendants from a panel of private attorneys. Section 3006A provides that the appointed attorney shall continue to represent the criminal defendant throughout the proceedings, unless the defendant becomes financially able to hire a private attorney.
Defendants argue that, since C.W. Faulkner was appointed to represent Plaintiff as a public defender, all of Plaintiffs claims should be dismissed because public defenders have immunity from suit: Defendants advance two theories to support this argument: (1) Plaintiffs sole remedy for any alleged malpractice by C.W. Faulkner is through a claim under the Federal Tort Claims Act; and (2) the decision of the Minnesota Supreme Court in Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993), grants immunity from malpractice claims to federal public defenders.
A. Federal Tort Claims Act (28 U.S.C.
§§1 346(b) 2671-80)
"The [Federal Tort Claims Act ("FTCA") 'Limits the relief available to persons injured by Government employees acting within the scope of their employment.' . . The
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[FTCA] specifically provides that an individual's remedy against the United States under the FTCA 'is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim."' Sullivan v. United States, 21 F.3d 198, 200 (7th Cir.), cert. denied, 513 U.S. 1060 (1994)(quoting United States v. Smith, 499 U.S. 160, 161 (1991); 28 U.S.C. §2679(b)(1)). In other words, federal employees are immune from personal suit for claims arising from acts they performed within the scope of their employment; an injured party's exclusive remedy lies against the United States. A 1988 amendment added officers and employees of the judicial branch to the class of government employees covered by the FTCA. 28 U.S,C. §2671.
1 . The Sullivan Decision
In Sullivan, the Court of Appeals for the Seventh Circuit addressed the question of whether federal public defenders were 'employees of the government" for purposes of the FTCA, and therefore among those granted immunity from personal liability. The Seventh Circuit concluded that federal public defenders are federal employees who fall within the purview of the FTCA. The court held that the plain language of the statute dictated this conclusion. Sullivan, 21 F.3d at 201-02 ("Section 2679(b)(1) applies without exception to any employee of the Government,'and section 2671 ... provides that officers and employees of the judicial branch are encompassed within that phrase."). In addition, the court found that 18 U.S.C. §3006A(g)(2)(A), which authorizes the appointment of Federal Public Defenders, certainly suggests that an individual holding that office is an officer or employee of the judicial branch." Sullivan, 21 F.3d at 202. The court based this conclusion on the degree of control over the office exercised by the federal courts, as well as the fact that full-time public defenders may not engage in the private practice of law.
End of page 3
(citing 18 U.S.C.
In its decision, the Seventh Circuit considered the decision of the United States Supreme Court in Polk County v. Dodson, 454 U.S. 312 (1981). In Dodson, the Supreme Court considered whether a public defender could be sued by a former client under federal civil rights law, 42 U.S.C. §1983. The Court held that a public defender does not act "under color of state law" when he exercises his "independent professional judgment in a criminal proceeding." Id. at 324. The Court found this to be the case despite the fact that public defenders have an employment relationship with the State, because public defenders are still expected to reserve their primary loyalty for their clients. Id. at 321, 322- 23. The attorney in Dodson was a full-time public defender, and the Court did not address the question of whether or not a panel appointee would also be considered a government employee.
The Seventh Circuit's analysis in Sullivan was likewise limited to full-time attorneys working in the office of the Federal Public Defender pursuant to 18 U.S.C. 3006A(g). Sullivan, 21 F.3d at 202. Therefore, following Dodson, the court found that fulltime federal public defenders were federal employees for purposes of the FTCA. It did not address the question of attorneys appointed pursuant to 18 U.S.C. §3006A(b).
2. The Instant Case
Our research has not revealed any cases that address the question of whether public defenders appointed pursuant to 18 U.S.C. §3006A(b), such as CW Faulkner, fall under the purview of the FTCA. Therefore, we turn to other cases discussing the question of who is classified as a government employee.
'The Supreme Court [has] held that the power to control is pivotal in
determining whether an individual is an employee of the United States for purposes of the
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FTCA." Bernie v. United States, 712 F.2d 1271 (8th Cir. 1983)(citing United States v. Orleans, 425 U.S. 807 (1976)). The existence of federal funding or policing of federal standards and regulations does not create employee status; rather, the question is whether day-to-day operations are supervised by the Federal Government. Bernie, 712 F.2d at 1273 (citing Orleans, 425 U.S. 807). See also Smith v. United States, 674 F. Supp. 683, 685 (D. Minn. 1987)('Under federal law, the primary criterion for judging independent contractor status is whether the government 'control[s] the detailed physical performance of the contractor"'.)(quoting Orleans, 425 U.S. at 814).
In Bernie, the Eighth Circuit considered whether two physicians were government employees or independent contractors for purposes of the FTCA. Both physicians were employees of companies that contracted with a government hospital to provide medical care to its patients. However, the government did not exercise control over nor dictate the physicians' medical judgment in the treatment of those patients. Bernie, 712 F.2d at 1273. The court found it clear that the physicians 'were employees of independent contractors holding service contracts with the government and were not acting as federal employees," and held that a claim against the United States could not be maintained under the FTCA based upon the physicians' actions. Id.
In a similar case, the Court of Appeals for the Second Circuit considered whether private physicians designated by the Federal Aviation Administration ("FAA") as Aviation Medical Examiners ("AMEs") were 'employees of the government" for purposes of the FTCA. Leone v. United States, 910 F.2d 46 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991). AMEs are doctors designated to examine potential pilots and issue airman medical certificates, in accordance with federal regulations. "The process of designating AMEs is administered by the Federal Air Surgeon or his authorized representative." Id. at
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47-48. The vast majority of AMEs maintain private practices or are affiliated with hospitals. _Id. at 48. Ordinarily, AMEs conduct pilot examinations in their own offices, and AMEs are paid directly by the applicant. Id. AMEs are supervised and regulated by the FAA. Id.
The plaintiffs in Leone pointed to the detailed guidelines provided to the AMEs by the FAA, the FAA's continuous evaluation of AMEs, and the fact that AMEs act under the general supervision of the Federal Air Surgeon. Id. at 50. However, the court recognized that "[the question is not whether a contractor must comply with federal regulations and apply federal standards, but whether its day-to-day operations are supervised by the Federal Government." Id. (citing Charlima, 873 F.2d at 1081). The court found that. while the FAA generally oversees the work of the AMEs, it does not manage the details of their work or supervise their daily duties. Id. Therefore, the court determined that the AMEs were independent contractors, rather than government employees, and not covered by the FTCA.'
We conclude that public defenders appointed pursuant to 18 U.S.C. §3006A(b), such as CW Faulkner, are not government employees for purposes of the FTCA. The federal government does not supervise the day-to-day activities of these attorneys while they are representing indigent defendants. Neither does the federal
The Second Circuit also addressed the argument that the physicians were government employees because they were "persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." Id. at 50 (citing 28 U.S.C. §2671). The court explained that "[a]uthorities that have discussed this clause indicate that it is designed to cover special situations such as government officials who serve without pay, or an employee of one government agency who is loaned to and works under the direct supervision of another government agency." Id. at 51 (citing Logue v. United States, 412 U.S. 521 (1973)). "[T]o hold that this clause provides for FTCA liability, when there is inadequate control or other indications of an employee relationship, would seriously undermine the FTCA's independent contractor exception." Id.
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government control their actions, because their responsibility and loyalty is to their clients. In addition, most of the attorneys appointed pursuant to 18 U.S.C. §3006A continue to represent private clients while acting as court-appointed defense attorneys. Therefore, the FTCA does not apply in this case, and Plaintiff is not required to seek redress from the United States rather than Defendants.
B. Common Law Immunity
Having concluded that Plaintiffs malpractice claims are not barred by the FTCA, we turn to the question of whether Defendants are imbued with immunity from suit by either federal or state common law.
1 . Federal law
In Ferri v. Ackerman, 444 U.S. 193 (1979), the United States Supreme Court was presented with the narrow issue of whether federal law preempts the freedom of a State to decide the question of immunity for public defenders. Id. at 197. The Court began with the premise that "when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law." Ferri, 444 U S. at 198. Although a defense attorney may be appointed and compensated through a federal statute, and participate in a federal proceeding as an officer of the federal court, a malpractice claim arises under state law.
The Court discussed the Criminal Justice Act of 1964, pursuant to which the attorney in Ferri, like C.W. Faulkner, was appointed.
Although it might well have been suggested that a statutory immunity would be helpful in inducing counsel to accept representation of indigent defendants, there is nothing in the statute itself or in its legislative history to indicate that Congress ever considered - much less actually intended to
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implement - any such suggestion. Indeed, Congress' attempt to minimize the differences between retained and appointed counsel is more consistent with the view that Congress intended all defense counsel to satisfy the same standards of professional responsibility and to be subject to the same controls.
Ferri 444 U.S. at 199-200. The Court found nothing in the express language, the history, or the basic purpose of the Criminal Justice Act of 1964 to indicate that Congress intended to provide immunity from state torts to federal public defenders. Ferri, 444 U.S. at 201. The Court explained that the primary rationale for granting immunity to judges and prosecutors does not apply to appointed counsel.
As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy.... In contrast, the primary office performed by appointed counsel parallels the office of privately retained counsel. The fear that an unsuccessful defense of a criminal charge will lead to a malpractice claim does not conflict with performance of [their) function. If anything, it provides the same incentive for appointed and retained counsel to perform that function competently.
Ferri, 444 U.S. at 204.
The Court recognized that public policy reasons, such as ensuring that competent counsel remained willing to represent indigent clients, might justify granting immunity to appointed counsel. Ferri, 444 U.S. at 204-05. However, the Court held that the States are not required to grant immunity to appointed federal defense attorneys by any provision of federal law. Ferri, 444 U.S. at 205.
The Eighth Circuit has faced the question of immunity for public defenders in the context of an action pursuant to 42 U.S.C. §1983. White v. Bloom, 621 F.2d 276 (8th Cir. 1980). The court held that, after Ferri, court-appointed defense counsel could not
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be said to enjoy an absolute immunity, akin to that of a judge or a prosecutor. White, 621 F.2d all 280. The court described the Ferri decision as holding that federal common law immunity was not available to court-appointed attorneys. White, 621 F.2d at 280. The Eighth Circuit recognized that the Supreme Court had left room for immunity for court appointed defense counsel if justified, but stated that the Supreme Court had directed that Congress, rather than the courts, would determine the issue. White, 621 F.2d at 280 n. 4. The White decision is not directly controlling in the instant case, because it dealt with a federal, rather than a state law claim, and because the attorney in White was a full-time public defender, rather than a panel appointee. As the above cases demonstrate, federal common law does not provide immunity from malpractice suds to federal public defenders.
2. State law
ln Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993), the Minnesota Supreme Court determined that full-time state public defenders are immune from suit for malpractice. "Tort immunity, the freedom from suit or liability, is generally based on the idea that, though a defendant might be negligent, important social values require that the defendant remain free of liability.' Dziubak, 503 N.W.2d at 774.
The court noted several differences between private defense attorneys and public defenders which it felt justified granting immunity to one and not the other. First, the court noted that public defenders must accept any and all clients assigned to them, without
The Eighth Circuit's decision in White was effectively rendered moot by the decision in Polk County v. Dodson, 454 U.S. 312 (1981). In Dodson, the Supreme Court held that an action under §1983 could not be maintained against a federal public defender because federal public defenders do not act under color of state law in defending their clients.
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regard to current caseload or degree of difficulty. Dziubak, 503 N.W.2d at 775. Second, whereas with private attorneys the client's available funds tend to prevent the presentation of frivolous arguments or defenses, no such economic incentive for eschewing frivolous claims exists when the client is not paying the bills. Id. at 776. Third, public defenders are limited in their actions by the (often insufficient) resources available to their office, rather than by what their clients are willing to pay. Id. at 775-76. The court concluded that denying immunity to public defenders would only serve to increase the strain on their office by forcing them to defend civil claims, as well as impede the recruitment of new public defenders, which would ultimately hurt indigent defendants. Id. at 776, 777.
The Minnesota Supreme Court also noted that there was no valid reason to withhold immunity for public defenders when it was extended to judges and prosecutors. Id. at 777. The court concluded that `[it would be an unfair burden to subject the public defender to possible malpractice for acts or omissions due to impossible caseloads and an underfunded office: something completely out of the defender's control." Id. at 776.
Since Plaintiff 's malpractice claims arise under Minnesota law, Minnesota law dictates the applicable defenses. Ferri, 444 U.S. at 198. In Dziubak, the Minnesota Supreme Court held that full-time state public defenders are immune from suit for legal malpractice. CW Faulkner, on the other hand, was a private attorney selected to represent Plaintiff in a single criminal case. The Minnesota decision does not directly address the issue of immunity for private attorneys who serve as part-time public defenders
In her dissent, Justice Gardebring responded
to this point by arguing that the court should not "sanction the
chronic underfunding of public defense organizations by lessening the
obligations which public defenders have to their indigent clients."
Dziubak, 503 N.W.2d at 778 (Gardebring, J. dissenting).
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presented by this case. Therefore, our task is to predict how the state supreme court would resolve the issue if faced with it.' Marvin Lumber and Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 876 (8th Cir. 2000) (citation omitted).
In order to accomplish that task, we will extrapolate from the reasoning of the Minnesota Supreme Court in Dziubak. In that case, the court noted that state public defenders, unlike private attorneys, are compelled to take the clients assigned to them. This is also true of federal public defenders appointed pursuant to 18 U.S.C. §3006A(b). In addition, appointed public defenders must deal with the same dilemma facing full-time public defenders - indigent clients who lack a financial disincentive from insisting that their lawyer engage in any and all frivolous tactics and meritless defenses.
While panel attorneys have a higher degree of control over their schedules, the primary reasons expressed by the Minnesota Supreme Court as mitigating in favor of a grant of immunity for state public defenders also apply to federal public defenders appointed pursuant to 18 U.S.C. §3006A(b). We conclude that the Minnesota Supreme Court would most likely extend its grant of immunity to include private attorneys acting as court-appointed public defenders. Defendants' request that Plaintiffs malpractice claims be dismissed because C.W. Faulkner was acting in the capacity of a public defender should be granted.
II. THE MERITS OF PLAINTIFF'S MALPRACTICE CLAIMS
We have concluded that Defendants have immunity from Plaintiffs legal malpractice claims. Of course, we cannot predict with certainty that the Minnesota Supreme Court would agree. Therefore, we have also briefly considered the merits of the malpractice allegations.
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A. Standard for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed, R. Civ. P. 56(c). The United States Court of Appeals for the Eighth Circuit has recognized that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action. '"Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990) (quoting Celotex Corp. v. Catre , 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1)
When a motion for summary judgment is submitted, an adverse party may not rest on mere allegations or denial of the movant's pleadings. Rather, "the adverse party must, by affidavits or otherwise, 'set forth specific facts showing that there is a genuine issue for trial.- Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 226 (8th Cir. 1990)(quoting Fed. R. Civ. P. 56(e)). "if the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e),
B. Plaintiffs Claims
"To prevail in a legal malpractice action, the plaintiff must prove: (a) the existence of an attorney-client relationship: (b) acts amounting to negligence or breach of contract", (c) that such acts were the proximate cause of the plaintiffs damages; and (d) that but for defendant's conduct, the plaintiff would have been successful in the action." Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994). Defendants are
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entitled to summary judgment on Plaintiffs malpractice claims, because Plaintiff cannot establish that C.W. Faulkner's actions were the proximate cause of Plaintiffs failure to obtain a more favorable sentence.
Plaintiff alleges that, absent alleged acts
of negligence on the part of C.W. Faulkner, Plaintiff would have been
offered, and would have accepted, a more favorable plea agreement. In
support of this allegation, Plaintiff states:
Lambros would of [sic] accepted a plea bargain of NOLO CONTENDERE as to the drug indictment and/or pled guilty to Conspiracy to defraud IRS lawful functions, Title 18 U.S.C. Section 371, the same as CO- DEFENDANT PAMELA RAE LEMON in the amount of one (1) to two (2) years if the government would of [sic] removed the brain control implants from LAMBROS and exposed the truth of LAMBROS' torture and denial of due process in BRAZIL. CO-DEFENDANT PAMELA RAE LEMON received a sentence of TWO (2) MONTHS WITH WORK RELEASE AND SUPERVISED RELEASE TERM OF TWO (2) YEARS. See, PAMELA RAE LEMON'S Docket Sheet entry number seven (7) dated December 8, 1989.
Lambros Aff., T 25 (emphasis supplied).
In response, Defendants have provided excerpts from Plaintiff s criminal trial, in which he informs the court that, regardless of what he has been told by his attorney, he feels he is facing the death penalty, and he chooses not to negotiate regarding a possible plea bargain. Ellis Aff., pp. 1-11, 1- 12. In addition, Defendants have submitted an affidavit from Jeffrey L. Orren, dated January 27, 1994. In Mr. Orren's affidavit, he states that he is a licensed attorney who has known Plaintiff since they were high school classmates. Orren Aff., In 2, 3. Mr. Orren had a discussion with Plaintiff on January 25, 1994, during
As this point is dispositive of Plaintiffs malpractice claims, we have not considered the other arguments made by Defendants, and express no view as to their merits.
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which he asked Plaintiff why he had turned down the seven-year plea bargain. Id., T 6. Plaintiff told Mr. Orren that he could not accept any plea agreement because "voices" had told him not to. ld, 7. Plaintiff said he would not even have accepted a plea agreement that meant he would spend no time in jail, Id.
Based on this evidence, it appears that there is no genuine issue of material fact as to whether CW Faulkner's actions were the cause of Plaintiffs injury, and that Plaintiff cannot establish the causation element of his malpractice claims. There is no evidence that Plaintiff ever would have been offered a plea agreement which included an arrangement for the removal of brain control implants. Furthermore, Defendants have produced clear evidence that Plaintiff would not have accepted any plea agreement, no matter how favorable. Therefore, even if Defendants did not have immunity, summary judgment in favor of Defendants would be appropriate on Plaintiffs legal malpractice claims.
III. RICO CLAIMS
Plaintiff alleges that Defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"). To state a claim under RICO, a private party must show conduct of an enterprise through a pattern of racketeering activity. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997); Wisdom v. First Midwest Bank, 167 F-3d 402, 406 (8th Cir. 1999).
Defendants have moved for summary judgment
on Plaintiffs RICO claims. In his response to Defendants' Motion,
Plaintiff argues that we should not grant summary judgment on his
RICO claim because a genuine issue of material fact exists with
regard to whether Defendants coerced witnesses to give false
testimony in connection with
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Plaintiffs criminal conviction. Plaintiff has simply failed to produce any evidence, through affidavit or otherwise, to support this contention. Conclusory statements on this subject, in prior pleadings submitted by Plaintiff in this action, do not provide the 'specific facts" needed to show that there exists a genuine issue for trial. See Fed. R. Civ. P. 56(e). We find that, as a matter of law, Plaintiff cannot establish that Defendants were engaged in a pattern of racketeering activity with respect to Plaintiffs criminal defense, and we recommend summary judgment be granted on the RICO claims in favor of Defendants.
IV. MOTION FOR APPOINTMENT OF LEGAL EXPERT
We have not found it necessary to consider the expert affidavit submitted by Defendants in reaching our conclusions. Therefore, we recommend that Plaintiff 's motion, seeking a court appointed expert to file a responsive affidavit, be denied as moot.
For the reasons set forth above, it is recommended that Defendants' Motion to Dismiss or for Summary Judgment [Docket No. 90] be granted, and Plaintiff 's Motion for Appointment of Legal Expert (Docket No. 100] be denied as moot.
Dated: October 31, 2000
Signed by John M. Mason
United States Magistrate Judge
Pursuant to Local Rule 72. 1 (c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties on or before November 14, 2000 a copy of this Report, written objections which specifically identify the portions of the Report to which objections are made and the bases for each objection.
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The initial Complaint in this case was filed on July 2,1998. Defendants were granted an extension of time until September 11, 1998 to respond to the Complaint. [Docket No. 8]. On September 9, 1998, Defendants filed an Answer which is dated September 8, 1998. [Docket No. 13). On September 23,1999, Defendants filed a Motion to Extend Time to Answer [Docket No. 13) and an Answer which is dated August 8, 1998. [Docket No. 19]. By various pleadings, Plaintiff sought leave to Amend his Complaint. (E.g. Docket Nos. 9, 16, 25 and 28.) Defendant Sheila Regan 0 then made a Motion to Dismiss the Complaint, [See Docket Nos. 31-341.
In an attempt to clarify that procedural situation, this Court issued Orders which denied without prejudice the Motions to Amend, and the Motions to Dismiss.
(Docket Nos. 37, 38, and 39]. The goal was to cause the Complaint to take final form prior to the submission of a Motion to Dismiss.
On February 23, 1999, Plaintiff filed a new Motion to Amend. [Docket No. 40]. Defendants did not respond to the Motion to Amend. Rather, they somehow concluded that the Complaint had already been amended, so they filed an Answer [Docket No. 41]. On March 26, 1999, this Court then issued another Order attempting to clarify this procedural status. [Docket No. 43].
The Order required Plaintiff to file the Amended Complaint by April 7, 1999.5
The Order directed that Defendants' previously filed Answer to the Amended Complaint [Docket No. 411 be deemed timely.
Footnote 5 Plaintiff did not comply with this Order. We caused to be filed the. Amended Complaint which the parties had treated as if it were already filed. [Docket No. 55 ].
End of page 16
The Order directed that Defendants' new Motion to Dismiss or for Summary Judgment be served by April 26, 1999, and required that the Motion comply with the requirements of Local Rule 7.1 (b)(1)(A),
Defendants timely filed their Motion to Dismiss or for Summary Judgment on April 26, 1999, accompanied by a three page Memorandum in Support. [Docket Nos. 47 and 48]. However, no Affidavits or Exhibits were provided in support of the Motion. See Local Rule 7.1(b)(1)(A)(4). Plaintiff filed a Motion to extend the time for his Response [Docket No. 49]. Plaintiff filed an initial Response on May 17, 1999 [Docket Nos. 50, 511. On May 21, 1999, Defendants filed a Memorandum opposing Plaintiff's Request for additional time [Docket No. 52) and simultaneously filed their Reply [Docket No. 53). Plaintiff filed a supplemental Response an May 24, 1999 [Docket No. 54].
We recommended that Defendants' Motion to Dismiss or for Summary Judgment be denied as presented. [Docket No. 551. The District Court issued an Order denying Defendants' Motion. (Docket No. 671. Defendants have filed a second Motion to Dismiss or for Summary Judgment [Docket No. 90], which is now before the Court.
End of document
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.