Simmons v. Jackson et al

Motion to Dismiss for Failure to State a Claim

N.D. Tex.August 18, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JASON SIMMONS, § § Plaintiff, § § Civil Action No. 3:15-CV-01700-D v. § § RAY JACKSON, METHODIST § HOSPITAL OF DALLAS, SIMON D. § WHITING, OSCAR SAN MIGUEL, and § TEXAS MEDICAL BOARD, § § Defendants. § DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Sean C. Urich Texas Bar No. 24033287 sean.urich@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, Texas 75225 (214) 987-3800 (214) 987-3927 (Fax) ATTORNEYS FOR DEFENDANT METHODIST HOSPITALS OF DALLAS Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 1 of 22 PageID 3855 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii I. INTRODUCTION ...............................................................................................................1 II. RELEVANT PROCEDURAL HISTORY ..........................................................................2 III. ARGUMENTS AND AUTHORITIES................................................................................3 A. PLAINTIFF’S THIRD AMENDED COMPLAINT FAILS TO COMPLY WITH BASIC PLEADING REQUIREMENTS ........................................3 B. PLAINTIFF’S CLAIMS AGAINST METHODIST SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) ................................................................................................4 1. Standards for Dismissal Pursuant to Rule 12(b)(6).................................................4 2. Plaintiff Fails to State Any Claim Against Methodist for RICO Violations ................................................................................................................5 a. Plaintiff Fails to Plead a “Pattern of Racketeering Activity” ...............................7 b. Plaintiff Fails to Plead an Enterprise....................................................................9 c. Plaintiff Fails to State a Claim Under 18 U.S.C. Section 1962(c) .....................12 d. Plaintiff Fails to State a Claim Under 18 U.S.C. Section 1962(d) .....................13 3. Plaintiff Fails to State Any Claim Against Methodist for Civil Conspiracy.............................................................................................................15 IV. CONCLUSION..................................................................................................................15 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 2 of 22 PageID 3856 iii TABLE OF AUTHORITIES Page(s) Cases Allstate Ins. Co. v. Plambeck, 802 F.3d 665 (5th Cir. 2015) .....................................................................................................9 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)................................................................................................................5 Bachman v. Bear, Stearns & Co., Inc., 178 F.3d 930 (7th Cir. 1999) ...................................................................................................12 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).........................................................................................................3, 5, 15 Bishop v. Corbitt Marine Ways, Inc., 802 F.2d 122 (5th Cir.1986) ....................................................................................................12 Boyle v. United States, 556 U.S. 938 (2009).................................................................................................................10 In re Burzynski, 989 F.2d 733 (5th Cir. 1993) .....................................................................................................8 Calcasieu Marine Nat’l Bank v. Grant, 943 F.2d 1453 (5th Cir.1991) ..................................................................................................10 Crowe v. Henry, 43 F.3d 198 (5th Cir. 1995) .........................................................................................12, 13, 14 Dennis v. General Imaging, Inc., 918 F.2d 496 (5th Cir. 1990) .....................................................................................................7 Elliot v. Foufas, 867 F.2d 877 (5th Cir. 1989) .................................................................................................6, 8 Elliott v. Tilton, 89 F.3d 260 (5th Cir. 1996) .................................................................................................8, 14 Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368 (5th Cir. 2008) .....................................................................................................5 Ennis v. Edwards, No. 02-CV-0769, 2003 WL 1560113 (E.D.La. Mar. 25, 2003) ................................................7 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 3 of 22 PageID 3857 iv Global Oil Tools, Inc. v Barnhill, No. 12-CV-1507, 2012 WL 5866139 (E.D. La. Nov. 19, 2012) .......................................12, 13 H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989)...............................................................................................................8, 9 Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404 (5th Cir.), cert. denied, 498 U.S. 895, (1990)......................................................8 Ledesma v. Dillard Dept. Stores, 818 F. Supp. 983 (N.D. Tex. 1993) ...........................................................................................5 Massey v. Armco Steel, 652 S.W.2d 932 (Tex. 1983)....................................................................................................14 Montesano v. Seafirst Commercial Corp., 818 F.2d 423 (Tex. 1987) ....................................................................................................9, 10 Old Time Enterprises, Inc. v. Int’l Coffee Corp., 862 F.2d 1213 (5th Cir. 1989) ...................................................................................................6 Orthoflex, Inc. v. ThermoTek, Inc., Nos. 3:11-CV-0870-D........................................................................................................14, 15 Pan American Maritime, Inc. v. Esco Marine, Inc., No. C.A. B-04188, 2005 WL 1155149 (S.D. Tex. May 10, 2005)............................................7 Ruiz v. Alegria, 896 F.2d 645 (1st Cir. 1990)......................................................................................................6 Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir.1988)..........................................................................................................3 Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467 (N.D. Tex. 2003) ......................................................................................5 Small v. Dallas County, Tex. 170 Fed. App’x 943 .................................................................................................................15 Spivey v. Robertson, 197 F.3d 772 (5th Cir. 1999) .....................................................................................................5 St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425 (5th Cir. 2000) .....................................................................................................6 Stanissis v. DynCorp. Int’l LCC, Nos. 3:14-CV-2736-D..........................................................................................................9, 11 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 4 of 22 PageID 3858 v Steimle & Assoc., Inc. v Camp Dresser & McKee, Inc., No. 95-CV-2545, 1996 WL 563683 (E.D. La. Oct. 2, 1996) ....................................................7 Tel-Phonic Servs. Inc. v. TBS Int’l, Inc., 975 F.2d 1134 (5th Cir. 1992) .................................................................................................14 Trugreen Landcare LLC v. Scott, 512 F. Supp. 2d 613 (N.D. Tex. 2007) ....................................................................................13 Williams v. City of Colorado Springs, 176 F.3d 490 (10th Cir. 1999) ...................................................................................................3 Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118 (5th Cir.1996) ........................................................................................................9 Wynder v. McMahon, 360 F.3d 73 (2d Cir.2004)..........................................................................................................3 Young v. Centerville Clinic, Inc., No. CIV. A. 09-325, 2009 WL 4722820 (W.D. Pa. Dec. 2, 2009)............................................3 Statutes 18 U.S.C. § 1961(1) .........................................................................................................................7 18 U.S.C. § 1961(4) .........................................................................................................................9 18 U.S.C. §1961(5) ..........................................................................................................................8 18 U.S.C. §1962.....................................................................................................................6, 9, 12 18 U.S.C. §1962(a)-(d) ....................................................................................................................6 18 U.S.C. §1962(c) ............................................................................................................12, 13, 14 18 U.S.C. § 1962 (c), and (d)...........................................................................................................6 18 U.S.C. §1962(d) ..................................................................................................................13, 14 Racketeer Influenced and Corrupt Organizations Act ........................................................... passim Other Authorities Fed.R.Civ.P. 8..................................................................................................................................3 Fed. R. Civ. P. 8(a) ..........................................................................................................................5 Fed. R. Civ. P. 8(a)(2) and (d)(1).....................................................................................................3 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 5 of 22 PageID 3859 vi Fed.R.Civ.P. 10(b) ...........................................................................................................................3 Fed.R.Civ.P. 12(b)(6).............................................................................................................4, 5, 12 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 6 of 22 PageID 3860 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JASON SIMMONS, § § Plaintiff, § § Civil Action No. 3:15-CV-01700-D v. § § RAY JACKSON, METHODIST § HOSPITAL OF DALLAS, SIMON D. § WHITING, OSCAR SAN MIGUEL, and § TEXAS MEDICAL BOARD, § § Defendants. § DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Defendant Methodist Hospitals of Dallas (“Methodist”) respectfully submits its Motion to Dismiss Plaintiff’s Third Amended Complaint for failure to comply with Federal Rules of Civil Procedure 8(d)(1) and 10(b) and for failure to state a claim pursuant to Rule 12(b)(6). I. INTRODUCTION Plaintiff’s Third Amended Complaint represents Plaintiff’s latest “bite at the apple” in attempting to impose liability on Methodist for his termination from its medical residency program over six (6) years ago in May 2010. Plaintiff’s latest attempt seeks to recover against the same parties to his two (2) failed federal court lawsuits, but this time, Plaintiff seemingly alleges convoluted and unintelligible violations of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) and potentially (though it is nearly impossible to discern) a claim for “civil conspiracy.” Although Plaintiff’s Third Amended Complaint is comprised of 189 pages including over 5,300 lines of text, it consists of nothing more than conclusory allegations and legal conclusions. Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 7 of 22 PageID 3861 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 2 As this Brief will establish, Plaintiffs’ claims against Methodist should be dismissed because: (1) the Third Amended Complaint fails to comply with the most basic of pleading requirements set forth in Rules 8 and Rule 10(b); and (2) the Third Amended Complaint fails to state a claim for which relief can be granted. II. RELEVANT PROCEDURAL HISTORY 1. The instant lawsuit follows two (2) previously filed and dismissed employment discrimination lawsuits filed by Plaintiff against Methodist. The first suit filed in the U.S. District Court for the Northern District of Texas, Dallas Division (3:11-CV-0017-B) alleged race discrimination in Plaintiff’s employment in the Methodist residency program and his termination from same. In that lawsuit, Plaintiff was represented by attorney Ray Jackson, who is now a defendant in this matter. Methodist filed a Motion for Summary Judgment on January 27, 2012, which was granted by the Court on April 26, 2012. 2. Over two years later, on August 18, 2014, Plaintiff, pro se, filed a second lawsuit against Methodist in the U.S. District Court for the Northern District of Texas, Dallas Division (3:14-CV-02958-B) alleging the same employment discrimination claims against Methodist. Methodist filed a Motion to Dismiss on October 14, 2014, which was granted by the Court on May 1, 2015. 3. Less than a week later on May 7, 2015, Plaintiff initiated the instant lawsuit against Defendant Ray Jackson. On July 8, 2016, this Court directed that Plaintiff’s Brief in Support of Motion for Third Amended Original Complaint [Doc. 62] be filed as Plaintiff’s Third Amended Complaint [Doc. 79]. As part of Plaintiff’s Third Amended Complaint [Doc. 80], Plaintiff was allowed to add Methodist and other parties to this action. Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 8 of 22 PageID 3862 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 3 III. ARGUMENTS AND AUTHORITIES A. PLAINTIFF’S THIRD AMENDED COMPLAINT FAILS TO COMPLY WITH BASIC PLEADING REQUIREMENTS. As a preliminary matter, Plaintiff’s Third Amended Complaint fails to comply with the basic pleading requirements set forth in the Federal Rules of Civil Procedure. Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2) and (d)(1). Similarly, Rule 10(b) requires a party to state its claims “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). The purpose of these Rules is to “give the defendant[s] fair notice of what the claim[s] [are] and the grounds upon which [they] rest[ ].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal on Rule 8 grounds is proper in those “cases in which the complaint is so confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); Young v. Centerville Clinic, Inc., No. CIV. A. 09-325, 2009 WL 4722820, at *3 (W.D. Pa. Dec. 2, 2009) (granting motion to dismiss for failure to satisfy the pleading requirements in Rules 8 and 10). Further, a complaint merits dismissal when it is so long and confusing as to “overwhelm the defendant’s ability to understand or to mount a response.” Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004); Williams v. City of Colorado Springs, 176 F.3d 490 (10th Cir. 1999) (recognizing a “statement should be short because unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.”). Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 9 of 22 PageID 3863 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 4 Here, Plaintiff’s Third Amended Complaint, at 189 pages and 200 pages of exhibits, warrants dismissal because it is anything but concise and goes far beyond “unnecessary prolixity.” Indeed, a significant amount of Plaintiff’s Third Amended Complaint consists solely of citation to legal authorities and legal argument-not factual allegations. Further, Plaintiff’s Third Amended Complaint purports to incorporate entire sections of his previously filed pleadings. See e.g. Third Amended Complaint, p. 38, lines 265-66; p. 54, lines 772-73. If Plaintiff’s Third Amended Complaint is not dismissed, Methodist will be forced to sift through 189 pages (and attached and referenced documents) in search of any competent factual allegations to support Plaintiff’s purported claims against it. Methodist has already been burdened with the defense of two (2) meritless suits by Plaintiff and should not be further burdened to defend against a third round of meritless claims. In addition to the length and sheer content of the Third Amended Complaint, Plaintiff failed to number his paragraphs as required by Rule 10(b). The confusion caused by the lack of basic paragraph numbers is evident in the Answers of defendants Ray Jackson and Oscar San Miguel. Those defendants were left to assign their own paragraph numbers-making it burdensome to even compare their Answers to determine which allegations those defendants admitted and denied. Because the Third Amended Complaint fails to comply with Rule 8 and Rule 10(b), Methodist requests Plaintiff’s Third Amended Complaint be dismissed in its entirety. B. PLAINTIFF’S CLAIMS AGAINST METHODIST SHOULD BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). 1. Standards for Dismissal Pursuant to Rule 12(b)(6). Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 10 of 22 PageID 3864 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 5 A motion to dismiss under Rule 12(b)(6) challenges whether the allegations are sufficient to state claims for relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Fed. R. Civ. P. 12(b)(6); Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008) (quoting Twombly, supra). The pleading standard in Rule 8(a) “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If a complaint omits facts concerning pivotal elements of a plaintiff’s claim, a court is justified in assuming the non-existence of those facts. Ledesma v. Dillard Dept. Stores, 818 F. Supp. 983, 984 (N.D. Tex. 1993). “[C]onclusory allegations or legal conclusions set forth as factual allegations will not prevent dismissal.” Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467, 470 (N.D. Tex. 2003). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (emphasis added). Only then do those factual allegations fulfill the requirement of Rule 8(a)(2) that the Complaint provide the defendant with “fair notice of what the … claim is and the grounds upon which it rests.” Id. 2. Plaintiff Fails to State Any Claim Against Methodist for RICO Violations. Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 11 of 22 PageID 3865 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 6 Although it is not entirely clear, Plaintiff seems to allege that Methodist violated 18 U.S.C. Sections 1962 (c) and (d) 1 of RICO. See Third Amended Complaint, pp. 36-159. Because of the cost and stigma of defending RICO claims, courts must closely scrutinize them and “should strive to flush out frivolous RICO allegations at an early stage of the litigation.” Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990). The burden of asserting clear and understandable allegations falls squarely on the plaintiff, who cannot avoid that obligation by filing a confusing complaint that requires the court or the defendant to strain in an attempt to comprehend the incomprehensible. See, e.g., Old Time Enterprises, Inc. v. Int’l Coffee Corp., 862 F.2d 1213, 1218 (5th Cir. 1989) (dismissing RICO allegations where the plaintiff’s pleadings “do not state a RICO claim against defendants with sufficient intelligibility for a court or opposing party to understand whether a valid claim is alleged and if so what it is.”) Each subsection of Section 1962 has common elements that apply to all RICO claims. Specifically, to adequately state any RICO claim, there must be (1) a RICO person, (2) a pattern of racketeering activity, and (3) a RICO enterprise. See, e.g., St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 439 (5th Cir. 2000). Even if a plaintiff can adequately plead these three common elements (Plaintiff cannot), additional substantive pleading requirements must be met for each individual subsection. See Elliot v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989) (commenting on “deceptively simple” nature of common elements because “each concept is a term of art which carries its own inherent requirements of particularity”). In this instance, Plaintiff fails to plead sufficient facts to establish a “pattern of racketeering activity” and an appropriate enterprise. 1 Although Plaintiff cites 18 U.S.C. Section 1962(a)-(d), the body of Plaintiff’s Third Amended Complaint appears to allege only violations of subsections (c) and (d). Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 12 of 22 PageID 3866 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 7 a. Plaintiff Fails to Plead a “Pattern of Racketeering Activity.” Racketeering activity must consist of at least two predicate offenses, defined in RICO as “any act or threat involving” certain state law crimes or any act indictable under specified federal statutes and certain federal offenses. See 18 U.S.C. § 1961(1); Dennis v. General Imaging, Inc., 918 F.2d 496, 511 (5th Cir. 1990). To establish a pattern of racketeering activity, a plaintiff must allege: (1) the predicate acts of racketeering activity, and (2) a pattern of such acts. Dennis, 918 F.2d at 511. Plaintiff has not and cannot make any such showing. Although Plaintiff alleges nine (9) predicate acts, only two-mail fraud and wire fraud- are included in the definition under 18 U.S.C. Section 1961(1) and can constitute predicate acts. Only crimes prohibited in state statutes and listed in Section 1961(1) can serve as predicate offenses for the purpose of a RICO claim. See Ennis v. Edwards, No. 02-CV-0769, 2003 WL 1560113, at *4 n. 16 (E.D.La. Mar. 25, 2003). The other predicate acts alleged by Plaintiff, such as perjury, false statements, and conspiracy, do not fall within the definition of a predicate act. See e.g. Midwest Grinding Company, Inc., 976 F.2d 1016 (7th Cir. 1992) (perjury is not a predicate act because it is not included in the list of predicate acts in Section 1961); Steimle & Assoc., Inc. v Camp Dresser & McKee, Inc., No. 95-CV-2545, 1996 WL 563683 (E.D. La. Oct. 2, 1996) (noting perjury is not a predicate act under RICO); Pan American Maritime, Inc. v. Esco Marine, Inc., No. C.A. B-04188, 2005 WL 1155149 (S.D. Tex. May 10, 2005) (finding conspiracy to commit a criminal offense is not a predicate act). For his “Mail Fraud” allegation, Plaintiff appears to claim merely that a letter he received from Methodist’s CEO was not true because the letter stated that the CEO reviewed the documentation available prior to reaching his decision to terminate Plaintiff’s employment. See Third Amended Complaint, p. 45, lines 482-86. Plaintiff claims that because such Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 13 of 22 PageID 3867 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 8 documentation was not disclosed the representation was false. Similarly for his “Wire Fraud” allegation, Plaintiff claims only that Dr. Leigh Hunter with Methodist refused to provide Plaintiff with a letter of recommendation even though Dr. Hunter knew Plaintiff wanted to transfer. See Third Amended Complaint, pp. 46-50, lines 534-655. However, RICO mail fraud and wire fraud require, inter alia, evidence of intent to defraud, that is, evidence of “a scheme to defraud by false or fraudulent pretenses, representation, or promises.” Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 428 (5th Cir.), cert. denied, 498 U.S. 895 (1990). It is entirely unclear how withholding a letter of recommendation or representing that an individual reviewed documentation prior to terminating Plaintiff’s employment could have constituted fraud in these instances, let alone mail or wire fraud, which each must be pled with particularity, including how the communications advanced the alleged scheme. See Elliott, 867 F.2d at 882. Plaintiff’s allegations in this respect are wholly insufficient to support the predicate acts of mail and wire fraud. Thus, Plaintiff has failed to allege a single sufficient predicate act under RICO. Even if Plaintiff had properly pled the alleged mail fraud and wire fraud, Plaintiff must still show a pattern of racketeering activity that includes two or more acts of racketeering. See 18 U.S.C. §1961(5). A “‘pattern’ requires both that the acts are ‘related’ to each other and that they have ‘continuity.’” In re Burzynski, 989 F.2d 733, 742 (5th Cir. 1993). “It is this factor of continuity plus relationship which combines to produce a pattern.” H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). The plaintiff must allege facts showing that the predicate acts are related, i.e., they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” H.J., Inc., 492 U.S. at 240. And the continuity element requires that the related acts Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 14 of 22 PageID 3868 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 9 “constitute or threaten long-term criminal activity.” Burzynski, 989 F.2d at 742 (citing H.J., Inc., 492 U.S. at 239). Continuity may be proved by “a closed period of repeated conduct, or . . . past conduct that by its nature projects into the future with a threat of repetition.” H.J., Inc., 492 U.S. at 241. “A closed period of conduct may be demonstrated ‘by proving a series of related predicates extending over a substantial period of time,’” while “[a]n open period of conduct involves the establishment of ‘a threat of continued racketeering activity.’” Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir.1996) (citing H.J., Inc., 492 U.S. at 242-43). Plaintiff has failed to plead sufficient facts to establish the necessary predicate acts, much less that the alleged acts are related and have continuity. Accordingly, Plaintiff’s RICO claims against Methodist must be dismissed. b. Plaintiff Fails to Plead an Enterprise. Plaintiff’s RICO claims against Methodist should be dismissed for the additional reason that Plaintiff has not and cannot establish a RICO enterprise-a required element for claims under all subsections of 18 U.S.C. Section 1962. The establishment of a RICO enterprise must be pleaded using specific facts, not merely conclusory allegations. Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (Tex. 1987); see also Stanissis v. DynCorp. Int’l LCC, Nos. 3:14-CV-2736-D and 3:15-CV-2026-D, 2015 WL 9478184, at *4 (N.D. Tex. Dec. 29, 2015). Because “enterprise” is a specific term that means more than just a group of co- conspirators acting with a common scheme, pleading a RICO enterprise is a demanding exercise. “RICO defines an enterprise as ‘any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’” Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673 (5th Cir. 2015); see also 18 U.S.C. § 1961(4). Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 15 of 22 PageID 3869 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 10 An “association-in-fact enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct . . . proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Boyle v. United States, 556 U.S. 938, 945-46 (2009) (citations omitted). An association-in-fact enterprise “(1) must have an existence separate and apart from the pattern of racketeering, (2) must be an ongoing organization and (3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.” Calcasieu Marine Nat’l Bank v. Grant, 943 F.2d 1453, 1461 (5th Cir. 1991); Montesano, 818 F.2d at 427 (quoting United States v. Turkette, 452 U.S. 576, 583 (1981)). Based on the allegations in Plaintiff’s Third Amended Complaint, it is difficult to decipher who or what Plaintiff contends comprises the purported RICO enterprise (i.e., because no such enterprise exists), and whether any such enterprise is comprised of an individual, partnership, corporation, association or other legal entity, or an association in fact. As a matter of law, Plaintiff cannot maintain a viable claim based on an allegation that Methodist alone is the RICO enterprise. Such allegation would be insufficient to establish the existence of a RICO enterprise because “[i]f the defendant is a legal entity, the plaintiffs must do more than merely establish that the corporation, through its agents, committed the predicate acts in the conduct of its own business.” Foufas, 867 F.2d at 881. In support of his claim, Plaintiff deficiently alleges that Methodist “exists to provide medical services for patients and to train resident medical doctors” (Third Amended Complaint p. 41, lines 350-51); that the attorney defendants “are all licensed attorneys by the Texas State Bar” (Id. at lines 356-57); that “Cristal Cienfuegos provides notary services for the state of Texas” (Id. at lines 362-63); and that the “Texas Medical Board operates to oversee the Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 16 of 22 PageID 3870 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 11 credentialing of medical doctors and to provide medical licensing services” (Id. at p. 42, lines 367-68). Plaintiff, however, follows these allegations with a conclusory assertion that the “‘MHD Enterprise’ formed for the criminal purposes of: depriving the plaintiff of the ability to exercise his property right, depriving plaintiff of the ability to protect his property right, and; defrauding the US government.” Id. at p. 42, lines 374-76. Plaintiff’s allegations patently fail to articulate the existence of a RICO enterprise. See Stanissis, 2015 WL 9478184, at *4; Montesano, 818 F.2d at 427 (holding that an association “is not an enterprise within the purview of RICO because it lacks continuity,” and noting that “association-in-fact enterprises . . . must have an ongoing organization or be a continuing unit, such that the enterprise has an existence that can be defined apart from the commission of the predicate acts.”) Plaintiff has not properly pled an enterprise under RICO for the following reasons. First, there are no facts supporting the existence of an organization or association separate and apart from the alleged pattern of racketeering. Elliot, 867 F.2d at 881 (“The fact that officers or employees of a corporation, in the course of their employment, associated to commit predicate acts does not establish an association-in-fact enterprise distinct from the corporation.”). Second, there are no facts supporting an ongoing organization. See Stanissis, 2015 WL 9478184, at *3. Third, there are no facts supporting that Methodist and the other defendants are (or ever did) function as a continuing unit, apart from the commission of predicate acts, through any decision making structure. Indeed, Plaintiff fails to offer any facts supporting a decision making structure. See Marriott Bros. v. Gage, 704 F. Supp. 731, 742 (N.D. Tex. 1988) (“[T]he enterprise must have an ascertainable structure distinct from the pattern of racketeering activity. If nothing joins the association members except the commission of the predicate acts, there is no enterprise. Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 17 of 22 PageID 3871 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 12 The enterprise must also have a decision-making structure, be it consensual or hierarchical, which directs the enterprises’ affairs on an on-going, not ad hoc basis.”) (citations omitted). At most, Plaintiff’s allegations amount to conclusory and speculative assertions that the various defendants conspired to commit fraud. These kind of allegations are not enough to establish an association-in-fact RICO enterprise. See Bachman v. Bear, Stearns & Co., Inc., 178 F.3d 930, 931-32 (7th Cir. 1999) (affirming dismissal of RICO claims under Rule 12(b)(6) because allegations failed to establish RICO enterprise; although allegations may have amounted to conspiracy to defraud plaintiff, “if [the defendants] are a RICO organization, then every conspiracy to commit fraud is a RICO organization and consequently every fraud that requires more than one person to commit is a RICO violation. That is not the law.”). Because Plaintiff has not adequately pled the existence of a RICO enterprise, the Court should dismiss each of Plaintiff’s claims against Methodist under 18 U.S.C. Section 1962. c. Plaintiff Fails to State a Claim Under 18 U.S.C. Section 1962(c). Section 1962(c) forbids any “person employed by or associated with any enterprise” from participating in or conducting the affairs of the enterprise through a pattern of racketeering activity. 18 U.S.C. §1962(c) (emphasis added). Because of the structure of this language, the Fifth Circuit has held that the RICO person and the RICO enterprise must be distinct. See Bishop v. Corbitt Marine Ways, Inc., 802 F.2d 122, 123 (5th Cir. 1986); Crowe v. Henry, 43 F.3d 198 (5th Cir. 1995). A “RICO person” is the defendant against whom the RICO claim is brought, while the “enterprise” can either be a legal entity or an association-in-fact. See Global Oil Tools, Inc. v Barnhill, No. 12-CV-1507, 2012 WL 5866139 (E.D. La. Nov. 19, 2012). Significantly, a legal entity, like Methodist, cannot be both the RICO person and part of the alleged RICO enterprise. See id. at *9. Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 18 of 22 PageID 3872 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 13 For example, in Crowe, the Fifth Circuit found that the Plaintiff did not successfully make a claim under Section 1962(c) where the defendant was also an alleged member of the association in fact. In doing so, the Court noted that a “RICO person” cannot employ or associate with himself under this subsection. See id. at 206. Similarly, in Global Oil Tools, the Plaintiff alleged that all the defendants were RICO persons and that these same defendants formed an association-in-fact enterprise. However, the court noted that the Fifth Circuit expressly explained that naming a corporation as the RICO person and as part of the enterprise violates the person/enterprise distinction required by 18 U.S.C. Section 1962(c). Accordingly, the court found that the plaintiff’s Section 1962(c) claim failed as a matter of law. See Global Oil Tools, Inc. 2012 WL 5866139, at *11. Here, Plaintiff alleges a Section 1962(c) claim against Methodist (i.e., naming Methodist as the RICO person), yet also identifies Methodist as the “top of the hierarchy” in the association-in-fact enterprise. Third Amended Complaint, p. 41. This is precisely the fact pattern in which courts in the Fifth Circuit find that a Section 1962(c) RICO claim fails as a matter of law. The result is the same here. Accordingly, Plaintiff’s claim against Methodist under 18 U.S.C. Section 1962(c) must be dismissed. d. Plaintiff Fails to State a Claim Under 18 U.S.C. Section 1962(d). Plaintiff alleges two RICO conspiracies against Methodist-a conspiracy among the Defendants and an intercorporate conspiracy relating to Methodist. However, “to prove a RICO conspiracy [under 18 U.S.C. Section 1962(d)], the [plaintiff] must establish (1) that two or more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall objective of the RICO offense.” Trugreen Landcare LLC v. Scott, 512 F. Supp. 2d 613, 625 n.11 (N.D. Tex. 2007) (quoting United States v. Delgado, 401 F.3d 290, 296 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 19 of 22 PageID 3873 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 14 (5th Cir. 2005)). “[B]ecause the core of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.” Tel-Phonic Servs. Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1140 (5th Cir. 1992). While Plaintiff has pled the conclusory allegation that “Defendants conspired to violate and did violate Section 1962(a) and (c), in violation of Section 1962(d),” nowhere does Plaintiff allege facts from which this Court could infer that Methodist was a party to any agreement to commit predicate acts of racketeering. See Crowe, 43 F.3d at 206. In any event, because Plaintiff has failed to state a claim under 18 U.S.C. Sections 1962(a) or (c), Plaintiff has not stated a claim for a RICO conspiracy under Section 1962(d). Additionally, Plaintiff’s “intracorporate” RICO conspiracy claim against Methodist fails as a matter of law because Plaintiff has not and cannot show the requisite meeting of the minds of two or more persons on the object or course of action. See Massey v. Armco Steel, 652 S.W.2d 932, 934 (Tex. 1983). “[T]he acts of a corporate agent are the acts of the corporation, and a corporation cannot conspire with itself.” Elliott v. Tilton, 89 F.3d 260, 264-65 (5th Cir. 1996) (citing Fojtik v. First National Bank, 752 S.W.2d 669, 673 (Tex. App.-Corpus Christi 1988, writ denied)); see also Orthoflex, Inc., 2012 WL 2864510, at *6. “As a matter of law, a corporation or other company cannot conspire with itself, no matter how many of its agents participate in the complained of action.” Tilton, 89 F.3d at 265 (quoting Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 5 (Tex. App.-Corpus Christi 1991, no writ)). Even if Plaintiff’s “intracorporate” RICO conspiracy claim did not fail at multiple levels, Plaintiff admits it is time barred because the injuries allegedly stemming from the intracorporate conduct occurred in May 2010-more than four years before Plaintiff filed the instant suit. Although he requests equitable tolling, Plaintiff has not and cannot meet the rare and exceptional Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 20 of 22 PageID 3874 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 15 circumstances for its application-particularly where this is Plaintiff’s third pass at related litigation against Methodist. Accordingly, the Court should dismiss all of Plaintiff’s RICO conspiracy claims against Methodist. See Orthoflex, Inc. v. ThermoTek, Inc., Nos. 3:11-CV-0870-D and 3:10-CV-2618-D, 2012 WL 2864510, at *4 (N.D. Tex. July 12, 2012). 3. Plaintiff Fails to State Any Claim Against Methodist for Civil Conspiracy. Plaintiff appears to additionally allege other civil conspiracies, all of which are supported by incorporation of his factually and legally deficient RICO claims or nothing more than conclusory allegations that fail to meet the Twombly pleading standard. See Third Amended Complaint, p. 169, lines 4750-54. Accordingly, to the extent Plaintiff is pursuing civil conspiracy claims against Methodist, they must be dismissed. See Twombly, 550 U.S. at 556-57 (holding conclusory allegation of agreement at some unidentified point does not supply facts adequate to show a conspiracy); Small v. Dallas County, Tex., 170 Fed. App’x 943 (5th Cir. 2006) (affirming dismissal of civil rights conspiracy claims that were based on nothing more than conclusory allegations). IV. CONCLUSION For the foregoing reasons, Methodist respectfully requests that the Court grant this Motion to Dismiss in its entirety and dismiss all of Plaintiff’s claims against Methodist with prejudice. Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 21 of 22 PageID 3875 DEFENDANT METHODIST HOSPITALS OF DALLAS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Page 16 Respectfully submitted, /s/ Sean C. Urich Sean C. Urich Texas Bar No. 24033287 sean.urich@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, Texas 75225 (214) 987-3800 (214) 987-3927 (Fax) ATTORNEYS FOR DEFENDANT METHODIST HOSPITALS OF DALLAS CERTIFICATE OF SERVICE I hereby certify that on August 18, 2016, the following document was electronically transmitted to the Clerk of the Court using the ECF system of filing. A Notice of Electronic Filing will be sent by operation of the ECF system to the following ECF registrants: Jason Simmons - jsimmsmd@gmail.com Ray Jackson - rjackson@jacksonfirm.net Alison H. Moore - amoore@thompsoncoe.com Oscar San Miguel - Oscar@osmlaw.com /s/ Sean C. Urich SEAN C. URICH 25877506.1 Case 3:15-cv-01700-D Document 107 Filed 08/18/16 Page 22 of 22 PageID 3876