Jordan v. Mirra
MEMORANDUM ORDER re 158 REPORT AND RECOMMENDATIONS. Plaintiff's motion to amend (D.I. 123 ) is granted. Defendants' motions to dismiss (D.I. 108 , 112 ) are recommitted to Judge Fallon for consideration on the merits. ORDER STAYING CASE pending resolution of the motions to dismiss. Signed by Judge Sue L. Robinson on 8/31/2016. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RAYMOND A. MIRRA, JR., et al.,
) Civ. No. 14-1485-SLR/SRF
At Wilmington this 31st day of August, 2016, having reviewed the June 7, 2016
Report and Recommendation issued by Magistrate Judge Sherry R. Fall on (D. I. 158),
defendants' objections thereto (D.I. 161-162), and plaintiff's response to the objections
(D.I. 163); as well as having reviewed and accepted Judge Fallon's June 3, 2016
Report and Recommendation in the related case of The Hawk Mountain LLC, et al. v.
Raymond A. Mirra, Jr., et al., Civ. No. 13-2083-SLR/SRF ("Hawk Mountain") (D.I. 457,
IT IS ORDERED that, pursuant to 28 U.S.C. § 636(b)(1), the Report and
A case brought by plaintiff and others against virtually the same defendants
based upon virtually the same underlying facts. In her Report and Recommendation in
that case, Judge Fallon recommended dismissal of the second amended complaint
which sought relief under the Racketeer Influenced and Corrupt Organizations Act
(''RICO"), 18 U.S.C. § 1962. Included among the arguments considered on the merits
was the statute of limitations.
Recommendation is accepted in part, 2 rejected in part, and the pending motions to
dismiss recommitted to Judge Fallon for the following reasons.
1. The complaint at issue (D.I. 84) includes ten common law causes of action
against the group known as the "RAM" defendants; each of those ten counts raises
different allegations against different individual defendants. The briefing associated
with the motions to dismiss were internally inconsistent, making it difficult to discern
which arguments applied to which individual defendants in connection with which
counts. Rather than have defendants clarify in a further round of briefing, it is hardly
surprising that Judge Fallon determined that the merits of the issues could be better
addressed on a full record, especially considering the unusual and complicated factual
scenario presented by the pleadings.
2. Having acknowledged the complexity of the case and the less-than-helpful
papers submitted by the parties, nevertheless, given the overlap between the facts
alleged by plaintiff at bar and plaintiffs in Hawk Mountain, the court concludes that the
better course is to recommit the motions to dismiss to Judge Fallon. On "remand,"
Judge Fallon is instructed to address on the merits at least the statute of limitations
defense raised by all of the defendants, giving defendant Mirra an opportunity to
respond to the new contention raised by plaintiff at oral argument. (See D.I. 158 at 19)
IT IS FURTHER ORDERED that, consistent with the above::
3. Plaintiff's motion to amend (D.I. 123) is granted.
4. Defendants' motions to dismiss (D.I. 108, 112) are recommitted to Judge
Defendants did not file objections to the recommendation that plaintiff be
allowed to amend.
Fallon for consideration on the merits.
5. The litigation shall be stayed pending resolution of the motions to dismiss.
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