No. 02 Civ. 1499 (LTS)(KNF)
June 27, 2002
SCHEDULING ORDER REQUIRING RICO STATEMENT
1. It is further hereby ORDERED that plaintiff shall file with the Court and serve on all defendants, no later than August 16, 2002 a RICO Statement, which RICO Statement shall set forth the facts upon which plaintiff relies in asserting the RICO claims in light of, and with particular attention to, the "reasonable inquiry" required by Fed R. Civ. P. 11. The RICO Statement shall be in a form using the numbers and letters set forth below and shall:
a. State whether the alleged unlawful conduct is in violation of 18 U.S.C. § 1962(a), (b), (c) and/or (d).
b. List each defendant and describe the alleged misconduct and basis of liability of each defendant.
c. List other wrongdoers, other than the named defendants, and describe the alleged misconduct of each wrongdoer.
d. List the victims and state how each victim was injured.
e. Describe in detail the pattern of racketeering activity or collection of unlawful debts for each RICO claim. The description of the pattern of racketeering shall:
(1) List the predicate acts and the specific statutes which were violated;
(2) State the dates of the participants' involvement in the predicate acts, and the facts surrounding the predicate acts;
(3) If the RICO claim is based on the predicate offenses of wire fraud, mail fraud, or fraud in the sale of securities, the "circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). Identify the nature, time, place and contents of misrepresentations, and the identity of persons to whom and by whom the alleged misrepresentations were made; it must be clear why the plaintiff claims the acts to constitute fraud or misrepresentations;
(4) State whether there has been a criminal conviction for violation of the predicate acts;
(5) State whether civil litigation has resulted in a judgment with regard to the predicate acts;
(6) Describe how the predicate acts form a "pattern of racketeering activity"; and
(7) State whether the alleged predicate acts relate to each other as part of a common plan. If so, describe in detail.
f. Describe in detail the alleged enterprise for each RICO claim. A description of the enterprise shall:
(1) State the names of the individuals, partnerships, corporations, associations, or other legal entities that constitute the enterprise;
(2) Describe the structure, purpose, function and course of conduct of the enterprise;
(3) State whether any defendants are employees, officers or directors of the alleged enterprise;
(4) State whether any defendants are associated with the enterprise;
(5) State whether you claim that the defendants are individuals or entities separate from the enterprise, or that the defendants are the enterprise itself, or members of the enterprise; and (6) if any defendants are alleged to be the enterprise itself, or members of the enterprise, explain whether such defendants are perpetrators, passive instruments, or victims of the alleged racketeering activity. g. State and describe in detail whether you claim that the pattern of racketeering activity and the enterprise are separate or have merged into one entity. h. Describe the relationship between the activities of the enterprise and the pattern of racketeering activity. Discuss how the racketeering activity differs from the usual and daily activities of the enterprise, if at all. i. Describe what benefits, if any, the enterprise receives from the alleged patterns of racketeering.
j. Describe the effect of the activities of the enterprise on interstate or foreign commerce.
k. If the complaint alleges a violation of U.S.C. § 1962(a):
(1) State who received the income derived from the pattern of racketeering activity or through the collection of an unlawful debt; and (2) Describe the use or investment of such income.
l. If the complaint alleges a violation of 18 U.S.C. § 1962(b), describe in detail the acquisition or maintenance of any interest in or control of the alleged enterprise.
m. If the complaint alleges a violation of 18 U.S.C. § 1962(c):
(1) State who is employed by or associated with the enterprise; and (2) Describe whether the same entity is both the liable "person" and the "enterprise" under § 1962(c).
n. If the complaint alleges a violation of 18 U.S.C. § 1962(d), describe in detail the alleged conspiracy.
o. Describe the alleged injury to business or property.
p. Describe the direct causal relationship between the injury and the violation of the RICO statute.
q. List the damages sustained for which each defendant is liable.
r. List all other federal causes of action, if any, and provide the relevant statute numbers.
s. List all pendent state claims, if any.
t. Provide any additional information potentially helpful to the Court in adjudicating your RICO claim.
2. It is further ORDERED that each defendant's time to respond to the complaint is hereby extended until the later of (a) forty-five (45) days following service of the RICO Statement upon such defendant and (b) forty-five (45) days following plaintiff's filing of a certificate of service documenting service of the RICO Statement upon such defendant. Opposition papers to any motion interposed in response to the Complaint shall be served and filed no later than 120 days after service of the motion papers; any reply papers shall be served and filed no later than 60 days after service of the opposition papers. Opening and responsive briefs (assuming that defendants move jointly) shall not exceed 75 pages in length; reply papers shall not exceed 30 pages in length.
3. It is further ORDERED that the parties shall make their initial Fed.R.Civ.P. 26(a)(1) disclosures no later than sixty (60) days after the later of (a) service of the RICO Statement and (b) Plaintiff's filing of certification of service of the RICO Statement upon all defendants.
4. It is further ORDERED that the parties shall meet with Magistrate Judge Fox for settlement purposes by November 15, 2002
5. It is further ORDERED that a pre-trial conference shall be held in th e above-captioned matter on Decem ber 18, 2002 at 10 a.m. in Courtroom No. 444, 40 Foley Sq uare, New York, New York 11201.
6. It is further ORDERED that all discovery other than the Fed.R.Civ.P. 26(a)(1) disclosures referred to above and discovery relating to servivce upon LT Enterprises Ltd. is stayed pending further order of the Court.
7. It is further ORDERED that counsel attending the pre-trial conference shall seek settlement authority from their respective clients prior to such conference. If counsel is not granted such authority, the client must be present in person or available by telephone so that a settlement can be consummated if possible. "Settlement authority," as used herein, includes the power to enter into stipulations and make admissions regarding all matters that the participants may reasonably anticipate discussing at the pre-trial conference including, but not limited to, the matters enumerated in the preceding paragraphs.
8. In the event that any party fails to comply with this Order, the Court may impose sanctions or take other action as appropriate. Such sanctions and action may include assessing costs and attorneys' fees, precluding evidence or defenses, dismissing the action, and/or the imposition of other appropriate penalties.
9. Supplemental papers, the argumentative portions of which shall not exceed 10 pages in length, regarding plaintiff's further discovery requests shall be served and filed by July 22, 2002.
IT IS SO ORDERED.