-POR Kearney v. Foley and Lardner, et al, No. 3:2005cv02112 - Document 122 (S.D. Cal. 2011)
Court Description: ORDER Granting (Doc. 106 ) Motion to Dismiss the Second Amended Complaint and Granting Leave to Amend the RICO Claim. Plaintiff may file a Third Amended Complaint on or before April 18, 2011. Signed by Judge M. James Lorenz on 3/28/2011. (srm)
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-POR Kearney v. Foley and Lardner, et al Doc. 122 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOAN BROWN KEARNEY, 12 Plaintiff, 13 v. 14 FOLEY AND LARDNER, et al., 15 16 17 Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil No. 05-CV-2112-L(LSP) ORDER GRANTING MOTION TO DISMISS THE SECOND AMENDED COMPLAINT [doc. #106] and GRANTING LEAVE TO AMEND THE RICO CLAIM Defendants Foley & Lardner, Gregory V. Moser, and Larry L. Marshall (collectively 18 “Foley defendants”) move to dismiss plaintiff’s second amended complaint (“SAC”). The 19 motion has been fully briefed and considered without oral argument. For the reasons set forth 20 below, the Court enters the following decision. 21 22 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is the former owner of a 52.06 acre parcel of land in Ramona, California. The 23 Ramona Unified School District (“District” or “RUSD”) board adopted a resolution declaring it 24 necessary to acquire plaintiff’s property through eminent domain proceedings for construction of 25 a new school. Defendants include the law firm of Foley and Lardner, LLC, and two individuals, 26 Moser and Marshall, who were Foley partners during the relevant time and who represented the 27 28 05cv2112 Dockets.Justia.com 1 District in the eminent domain action. Defendant Michael T. McCarthy1 was an assistant 2 superintendent of the RUSD. The District was granted an order authorizing it to take possession 3 of the property on December 29, 2000. 4 The condemnation trial began on April 29, 2002, and ended on May 9, 2002. At issue in 5 the trial was the fair market value of the property, which is defined as the highest price on the 6 date of valuation that would be agreed to by the seller. (CAL. CODE CIV. P. § 1263.320). The fair 7 market value is determined by residential use of the property and how many buildings could be 8 built on the property. The number of buildings supportable on the property is dependent upon the 9 number of septic systems permitted which is dependent upon how well the soil would percolate. 10 (FAC ¶ 28). After the presentation of witnesses and evidence, the jury awarded plaintiff 11 $953,000.00 as the fair market value of her property. 12 Soon thereafter, plaintiff filed a motion for new trial contending that the District’s counsel 13 had wrongfully argued that the District had not performed percolation (“perc”) tests on her 14 property even though the District had expended money to conduct such a test. Plaintiff’s motion 15 was denied with the trial court noting there was no evidence that the District withheld any 16 information from plaintiff. Plaintiff appealed the decision denying her motion for a new trial. On 17 March 3, 2004, the California Court of Appeal, Fourth Appellate District, affirmed the judgment 18 of the Superior Court. 19 During the time plaintiff’s appeal was pending, she filed a motion to set aside the 20 judgment and for a new trial on the ground that the District and its counsel had concealed 21 evidence of additional perc tests. The trial court denied plaintiff’s motion finding it had no 22 jurisdiction because of plaintiff’s then-pending appeal. 23 Thereafter, plaintiff filed another motion for reconsideration of the trial court’s order 24 denying its motion to set aside the judgment. Again the court denied the motion for lack of 25 jurisdiction. 26 Plaintiff filed a notice of appeal challenging the motion to set aside the judgment and the 27 1 Defendant McCarthy also filed a motion to dismiss the SAC that is considered in a 28 separate Order. 2 05cv2112 1 motion for reconsideration. The appeal was styled as a petition for writ of error coram vobis. 2 The court of appeals took up all the appellate matters and affirmed the judgment denying 3 plaintiff’s motion for a new trial; affirmed the denial of the motion to set aside the judgment; and 4 denied the appeal for writ of coram vobis. The court of appeals denied a petition for rehearing. 5 Plaintiff then petitioned the California Supreme Court for review. On May 19, 2004, the 6 Supreme Court denied review. 7 Plaintiff filed the present action on November 14, 2005. On January 20, 2006, plaintiff 8 filed a First Amended Complaint in this Court alleging causes of action for Racketeer Influenced 9 and Corrupt Organizations Act (“RICO”); conspiracy to violate RICO under section 1962(c); 42 10 U.S.C. § 1983; false promise; fraud and deceit; spoliation of evidence; and prima facie tort 11 against defendants. Defendants filed motions to dismiss. The Court dismissed the federal causes 12 of action based upon the Noerr-Pennington Doctrine and the state law causes of action. Plaintiff 13 appealed the decision. 14 The Ninth Circuit affirmed dismissal of plaintiff’s state law causes of action but reversed 15 the dismissal of the federal claims finding that the Noerr-Pennington doctrine’s sham litigation 16 exception applied to plaintiff’s claims thereby preventing the immunization of defendants’ 17 petitioning conduct. Kearney v. Foley & Lardner, 590 F.3d 638 (9th Cir. 2009). The action was 18 remanded to consider plaintiff’s federal law claims. After remand, plaintiff filed a second 19 amended complaint (“SAC”) to which the Foley defendants filed the present motion to dismiss. 20 DISCUSSION 21 A. Section 1983 Claim 22 1. 23 The Foley defendants move to dismiss plaintiff’s 42 U.S.C. § 1983 claim for “failure to Acting Under Color of State Law 24 state a claim upon which relief may be granted.” FED. R. CIV. P. 12(b)(6). A complaint may be 25 dismissed as a matter of law if it lacks a cognizable legal theory or states insufficient facts under 26 a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 27 1984). 28 The factual allegations of a complaint must be “enough to raise a right to relief above the 3 05cv2112 1 speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). A plaintiff 2 must plead more than conclusory allegations to show “plausible liability” and avoid dismissal. 3 Id. at 1966 n. 5. The pleading standard of Rule 8 “demands more than an unadorned, 4 the-defendant-unlawfully-harmed-me accusation” and a complaint does not suffice “if it tenders 5 ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 6 1949 (2009) (quoting Twombly, 127 S. Ct. at 1966). 7 In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond 8 the complaint for additional facts, e.g., facts presented in plaintiff’s memorandum in opposition 9 to a defendant’s motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 10 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 11 MOORE’S FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not . . . take 12 into account additional facts asserted in a memorandum opposing the motion to dismiss, because 13 such memoranda do not constitute pleadings under Rule 7(a)."). 14 Section 1983 provides a cause of action for the “deprivation of any rights, privileges, or 15 immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. “To 16 state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured 17 by the Constitution or laws of the United States was violated, and (2) that the alleged violation 18 was committed by a person acting under the color of State law.” Long v. County of Los Angeles, 19 442 F.3d 1178, 1185 (9th Cir. 2006). A private citizen generally does not act under color of state 20 law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Nor do private attorneys act under color of 21 state law based upon services they perform in connection with a lawsuit. Briley v. State of 22 California, 564 F.2d 849, 855-56 (9th Cir. 1977); Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 23 1972). But “a private individual may be liable under § 1983 if she conspired or entered joint 24 action with a state actor.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002); see also Dennis v. 25 Sparks, 449 U.S. 24 (1980)(private persons who conspire with state officials act under color of 26 state law for purposes of § 1983 action). 27 "[S]tate action may be found if, though only if, there is such a ‘close nexus between the 28 State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of 4 05cv2112 1 the State itself.'" Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 2 U.S. 288, 295 (2001)(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351. The Ninth 3 Circuit has considered “four tests for determining whether a private individual's actions amount 4 to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; 5 and (4) the governmental nexus test.” Rimac v. Duncan, 319 Fed. Appx. 535 (9th Cir. 6 2009)(quoting Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). The joint action test is 7 relevant here. Plaintiff alleges that all of the defendants, state and private, have engaged in a 8 conspiracy to violate her civil rights: “Plaintiff alleges that Defendants acted as a joint 9 participant with the State in an effort to advance the State’s interest in paying as little for 10 Plaintiff’s property as it could.” Opp. at 9. 11 Defendants contend that as attorneys for the District, they did not act under color of state 12 law in that they had no personal interest in the case and they did not advance any personal goals. 13 Instead, they merely performed their role as outside litigation counsel for the District. 14 Bare allegation of joint action between state officials and private persons will not 15 overcome a motion to dismiss civil rights claim against private persons. A plaintiff must allege 16 facts tending to show that the private persons acted under color of state law or authority. 42 17 U.S.C.A. § 1983. Viewing the allegations in the light most favorable to plaintiff, the SAC 18 sufficiently alleges joint action between the District and defendants in an effort to prevent 19 plaintiff from obtain the fair value of her property. See Collins v. Womancare, 878 F.2d 1145, 20 1154 (9th Cir.1989) (a civil conspiracy under § 1983 demonstrates an agreement sufficient to 21 show joint action). The current allegations in the SAC are sufficient under Twombly and Iqbal to 22 survive a motion to dismiss. 23 2. Statute of Limitations 24 But the Foley defendants also contend plaintiff’s 42 U.S.C. § 1983 cause of action must 25 be dismissed as time barred under the statute of limitations. "A motion to dismiss based on the 26 running of the statute of limitations period may be granted only ‘if the assertions of the 27 complaint, read with the required liberality, would not permit the plaintiff to prove the statute 28 was tolled.’" Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995), 5 05cv2112 1 quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). The untimeliness must 2 appear beyond doubt on the face of the complaint before a claim will be dismissed as 3 time-barred. See Supermail Cargo, 68 F.3d at 1206-07. 4 Section 1983 takes its limitations period from the forum state's statute of limitations for 5 personal injury torts, see Wilson v. Garcia, 471 U.S. 261, 276 (1985), which in California is two 6 years, see Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). Although state law governs 7 the length of the applicable limitations period, federal law governs the accrual of a Section 1983 8 claim. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“the accrual date of a § 1983 cause of action 9 is a question of federal law that is not resolved by reference to state law”); see also Canatella v. 10 Van De Kamp,4 86 F.3d 1128, 1133 (9th Cir. 2007). “Under federal law, the limitations period 11 accrues when a party knows or has reason to know of the injury which is the basis of the cause 12 of action.” Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (citation and quotation marks 13 omitted); Lukovsky v. City and County of San Francisco, 535 F.3d 1044 (9th Cir. 2008); Johnson 14 v. State of California, 207 F.3d 650, 653 (9th Cir. 2000) (per curiam). 15 Here, plaintiff argues that the limitation’s period did not begin to run until after all the 16 appeals of her eminent domain case were completed, i.e., “Plaintiff’s claim did not accrue until 17 she incurred appreciable and actual damages.” (Opp at 11.) But the cases plaintiff relies upon 18 occurred in the takings context. For example, in Levald, Inc. v. City of Palm Desert, 998 F.2d 19 680, 687 (9th Cir. 1993), the court held that “[s]o long as the state provides ‘an adequate process 20 for obtaining compensation,’ no constitutional violation can occur until just compensation is 21 denied.” But in Levald, the question was whether there had even been a taking. In the present 22 case, there was no question that a taking had occurred and plaintiff was entitled to be paid just 23 compensation. The proceedings in state court were intended to provide the fair amount of 24 compensation to which plaintiff was entitled. 25 Plaintiff’s rights were allegedly violated when she learned that defendants had favorable 26 perc test results that she did not receive prior to trial. Thus, plaintiff’s claim accrued at the 27 earliest when the judgment was entered in state court awarding her compensation she believed to 28 be inadequate or at the latest in November 2002, when she received the perc test results. Plaintiff 6 05cv2112 1 cannot assert that the Foley defendants’ alleged violation of her constitutional rights occurred 2 when she exhausted her appeals. Even under the later November 2002 date of accrual, plaintiff’s 3 § 1983 claim is time barred because she did not file this action until November 14, 2005. 4 But plaintiff contends that tolling should be applied to allow her § 1983 claim to go 5 forward. There are two related equitable doctrines that may toll a limitations period: equitable 6 tolling and equitable estoppel.2 Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 7 1051 (9th Cir. 2008). “‘Equitable tolling’ focuses on ‘whether there was excusable delay by the 8 plaintiff: If a reasonable plaintiff would not have known of the existence of a possible claim 9 within the limitations period, then equitable tolling will serve to extend the statute of limitations 10 for filing suit until the plaintiff can gather what information he needs.’” Id. (quoting Johnson v. 11 Henderson, 314 F.3d 409, 414 (9th Cir. 2002)). 12 Also, federal courts generally apply the forum state's law regarding equitable tolling. Fink 13 v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). In order to be entitled to equitably toll a statute of 14 limitations under California law: (1) she must have diligently pursued his claim; (2) her situation 15 must be the product of forces beyond her control; and (3) the defendants must not be prejudiced 16 by the application of equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic, 28 Cal. 17 App.4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of California, 21 Cal.3d 313, 316-17 18 (Cal.1978); Fink, 192 F.3d at 916. 19 Plaintiff has failed to plead any facts which would support the equitable tolling of her 20 claim. See Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993). It is clear that 21 plaintiff knew of the existence of a possible claim against the Foley defendants within the 22 limitations period when she obtained the perc test in November 2002, and she was solely in 23 control of the situation once she obtained those results. Thus, plaintiff's Section 1983 claim must 24 be dismissed with prejudice as barred by the two-year statute of limitations. 25 26 27 2 Equitable estoppel “focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit.” Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th 28 Cir. 2000). Plaintiff does not argue that equitable estoppel is applicable in the present case. 7 05cv2112 1 B. RICO Claim 2 “The elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise (3) 3 through a pattern (4) of racketeering activity (known as ‘predicate acts') (5) causing injury to 4 plaintiff's ‘business or property.’” Living Designs, Inc., E.I. Dupont de Nemours & Co., 431 F.3d 5 353, 361 (9th Cir. 2005) (citation and quotation marks omitted), cert. denied, 547 U.S. 1192 6 (2006). “To state a RICO claim, one must allege a ‘pattern’ of racketeering activity, which 7 requires at least two predicate acts.” Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9th 8 Cir.2008) (citations omitted). A plaintiff must also show that the injury to his business or 9 property was proximately caused by the prohibited conduct and that he has suffered a concrete 10 financial loss. Chaset v. Fleer/Skybox Int'l, L.P., 300 F.3d 1083, 1086 (9th Cir. 2002). 11 1. Participation in the Operation or Management of the Enterprise 12 RICO “protects the public from those who would unlawfully use an ‘enterprise’ (whether 13 legitimate or illegitimate) as a ‘vehicle’ through which ‘unlawful . . . activity is committed.’” 14 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 164-65 (2001).“[T]o establish liability 15 under § 1962(c) one must allege and prove the existence of two distinct entities: (1) a ‘person’; 16 and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.” Id. 17 at 161. A RICO “enterprise” includes “any individual, partnership, corporation, association, or 18 other legal entity, or any union or group of individuals associated in fact although not a legal 19 entity. 18 U.S.C. § 1961(4). Thus, an enterprise may be a legal entity, such as a corporation, or 20 may be “a group of persons associated together for a common purpose of engaging in a course of 21 conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981). An associated-in-fact enterprise is 22 “proved by evidence of an ongoing organization, formal or informal, and by evidence that the 23 various associates function as a continuing unit.” Turkette, 452 U.S. 583; Odom v. Microsoft 24 Corp., 486 F.3d 541, 552 (9th Cir.), cert. denied, 2007 U.S. Lexis 115900 (2007); see also Rae 25 v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984). 26 In the present case, plaintiff alleges that the District is the RICO enterprise and the 27 Foley defendants – a law firm and two partners at the firm – are the persons required under the 28 RICO statute. SAC ¶¶ 44, 46. Plaintiff does not contend that the District and the Foley 8 05cv2112 1 defendants are an “associated in fact” RICO enterprise. See United States v. Blinder, 10 F.3d 2 1468, 1473-74 (9th Cir.1993); see also Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 3 431 F.3d 353 (9th Cir. 2005)(DuPont and the law firms hired to defend it in lawsuits brought by 4 Living Designs could be an associated-in-fact enterprise). 5 Section 1962(c) makes it unlawful “for any person employed by or associated with any 6 enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to 7 conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a 8 pattern of racketeering activity or collection of an unlawful debt.” 18 U.S.C. § 1962(c)(emphasis 9 added). In Reves v. Ernst & Young, 507 U.S. 170 (1993), the Court looked at the phrase 10 “conduct or participate, directly or indirectly, in the conduct of such enterprises's affairs” and 11 concluded that for RICO liability to attach “one must participate in the operation or management 12 of the enterprise itself.” Id. at 179. The Reves Court noted, however, that “RICO liability is not 13 limited to those with a formal position in the enterprise, but some part in directing the 14 enterprise's affairs is required.” Id. (emphasis in original). 15 In Baumer v. Pachl, 8 F.3d 1341(9th Cir. 1993), the defendant, an attorney, was alleged 16 to have conducted or participated in a RICO enterprise by preparing two letters and a partnership 17 agreement and providing assistance with a bankruptcy proceeding when he sent two letters. The 18 Court found that Pachl never held any formal position in the enterprise, did not play any part in 19 directing the affairs of the enterprise and his role was limited to providing legal services to the 20 limited partnership and EPA. 21 The Foley defendants argue that plaintiff fails to allege that they had any involvement in 22 managing or directing the District’s affairs concerning the valuation of plaintiff’s property. The 23 SAC alleges that Moser was the General Counsel to the District and was a Foley partner. SAC 24 ¶¶ 3, 11. Defendants correctly note that providing legal services does not constitute the operation 25 or management of a RICO enterprise. Walter v. Drayson, 538 F.3d 1244, 1246 (9th Cir. 2008). 26 And as outside legal counsel for the District, defendants contend that they could not participate 27 in the operation or management of the District because the District is a state agency controlled 28 by its board of directors and the board may only delegate certain powers or duties to its officers 9 05cv2112 1 or employees. 2 But plaintiff contends that defendants satisfy the “operation or management” test because 3 they provided their client, the District/Enterprise, with “assistance and active participation” in 4 “implementing decisions of upper management.” Opp. at 15. Plaintiff argues that “Defendants 5 directed the enterprise’s affairs by knowingly implementing decisions of upper management, . . . 6 Id. The SAC’s allegations do not provide essential facts showing that counsel acted in any 7 manner outside that of providing legal services or that defendants took a role in the operation or 8 management of the District. Preparing the Agreement for Purchase of Real Property, obtaining 9 plaintiff’s permission to enter her property, and the like do not provide a sufficient factual basis 10 for showing the defendants were operating or managing the District. Rather, based on the 11 allegations in the SAC, the District’s upper management was implementing its decisions with the 12 assistance and advice of counsel but this is insufficient to state a RICO claim concerning 13 defendants’ participation in the operation or management of the alleged District/Enterprise. 14 The current allegations in the SAC are not “enough to raise a right to relief above the 15 speculative level” with respect to defendants’ participation in the operation or management of 16 the District. Twombly, 127 S. Ct. at 1965. Plaintiff will be given leave to amend the complaint to 17 allege non-conclusory facts to show “plausible liability.” Twombly, 127 S. Ct .at 1966 n. 5. 18 2. Pattern of Racketeering Activity 19 A pattern of racketeering activity “is proved by evidence of the requisite number of acts 20 of racketeering committed by the participants in the enterprise.” Odom v. Microsoft Corp., 486 21 F.3d 541, 549 (9th Cir. 2007) (en banc). There must be “at least two acts of racketeering 22 activity” within ten years of one another in order to constitute a “pattern.” 18 U.S.C. § 1961(5). 23 “[W]hile two predicate acts are required under the Act, they are not necessarily sufficient.” 24 Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004). Rather, “[a] ‘pattern’ of racketeering 25 activity also requires proof that the racketeering predicates are related and ‘that they amount to 26 or pose a threat of continued criminal activity.’” Id. (quoting in part H.J. Inc. v. Northwestern 27 Bell Tel. Co., 492 U.S. 229, 239 (1989)). A pattern in not formed by “sporadic activity.” H.J. 28 Inc., 492 U.S. at 239. The factor of continuity plus relationship combines to produce a pattern. 10 05cv2112 1 Id. 2 Defendants argue that Kearney has not sufficiently alleged a pattern of racketeering 3 activity because there is only a single act of discovery misconduct alleged. But plaintiff alleges 4 several distinct acts including the false promise to provide her with perc results in order to gain 5 access to her property, the ongoing concealment of the perc test results, and the misinformation 6 given to the trial court about the existence of an additional District-ordered perc test. These 7 allegations are sufficient to show a pattern. 8 Additionally defendants argue that plaintiff has not alleged any possible threat of any 9 continuing racketeering activity. “A party alleging a RICO violation may demonstrate continuity 10 over a closed period by proving a series of related predicates extending over a substantial period 11 of time.” Id. at 242. Plaintiff has adequately alleged a closed-ended continuity by alleging a 12 series of related acts occurring over a two-year period. 13 3 RICO Causation 14 Plaintiff contends that the Foley defendants’ alleged RICO violations were both the “but 15 for” cause of her injury and the proximate cause of her injury. (Opp. at 12) According to 16 plaintiff, if defendants had not engaged in the alleged wrongful conduct – the nondisclosure of 17 the favorable-to-plaintiff perc testing result – the valuation of the property at trial would have 18 been different. She also alleges that she reasonably relied on defendants’ misrepresentations 19 concerning the District’s perc test and results in allowing the earlier perc test at trial. Like 20 defendant McCarty, the Foley defendants argue that plaintiff could have avoided the injury if she 21 had taken a different course of action. But if a defendant’s conduct was a substantial factor in 22 causing the plaintiff’s injury, a defendant will not be absolved from liability merely because 23 other causes contributed to the injury. See Holmes v. SEC Investor Prot. Corp., 503 U.S. 258, 24 269 (1992). 25 Here, plaintiff has adequately pleaded RICO causation against the Foley defendants. 26 D. RICO Conspiracy claim 27 Defendants argue plaintiff cannot state a claim for RICO conspiracy because she has not 28 adequately pleaded RICO violations. Because the Court will dismiss plaintiff’s RICO claim 11 05cv2112 1 without prejudice, her RICO conspiracy claim will also be dismiss without prejudice. 2 Conclusion 3 Based on the foregoing, IT IS ORDERED granting the Foley defendants’ motion to 4 dismiss the SAC as follows: 5 1. Plaintiff’s 42 U.S.C. § 1983 claim is dismissed with prejudice as time barred; and 6 2. Plaintiff’s RICO and RICO conspiracy claims are dismissed without prejudice as 7 set forth above. 8 IT IS FURTHER ORDERED that plaintiff may file a Third Amended Complaint to set 9 forth RICO and RICO conspiracy claims that sufficiently alleges the Foley defendants’ 10 participation in the operation or management of the District enterprise. The TAC shall be filed 11 on or before April 18, 2011. 12 IT IS SO ORDERED. 13 DATED: March 28, 2011 14 15 M. James Lorenz United States District Court Judge 16 COPY TO: 17 HON. LOUISA S. PORTER UNITED STATES MAGISTRATE JUDGE 18 19 ALL PARTIES/COUNSEL 20 21 22 23 24 25 26 27 28 12 05cv2112
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