Miller et al v. Fryzel
Filing
173
MOTION by Plaintiff Sidney R. Miller for relief from judgment under Rule 60(b) (Exhibits) (sr, )
FI LED
N}
LuL tlb 2015 DC
THOMAS gi. BRUTON
I FIUMAU G. E,HU I L,N
UNITED STATES DISTRICT COURT
NORTHERN DISTICT OF ILLINOIS, EASTERN DIVISIOTFRK' U'S' DISTRICTCOURT
SIDNEY R. MILLER ('Miller'),
an individual,
)
)
) Case
and
- E[is Currency Exchange,Inc., et al.,
('Plaintiff currency exchanges',
53"t
the currency exchanges')
Plaintiffs
V.
MICHAEL E. FRYZEL ('Fryzel'), et al.,
Defendants
Number: 12
-
cv
-
10160
)
)
) Judge: Hon. Gary Feinerman
) Transferred to: Hon. John Z.Lee
)
) Magistrate Judge: Hon. Arlander Keys
)
)
)
)
MOTION FOR RELIEF FROM JUDGMENT UNDER RULE 60ft)
NOW COMES Miller, individually,
as
Plaintiff to seek relief in this Court from
its Judgment pursuant to FRCP Rule 60(b) and in support thereof states as follows:
1
.
On July
15
, 2Ol4 this Court entered its Judgment in this matter. That
Judgment's Opinion cites only Amended Complaint allegations and Defendant docket
entries.
2.
Fed. R. Civ. P. 60(b) ('FRCP 60(b)') allows for relief from Judgment
under sub-sections (b)(1) or (b)(3) within one year after its entry.
3.
This Motion argues that this Court has proceeded without compliance with
Federal statute, rule and doctrine by failing to review the transferor court Record and
seek explanation of its recusal
ll22l
asto the appearance of partiality. As a result, this
Court's Judgment is entered under its misconception of law and conflict with the clear
requirements and mandate of those Federal statutes.
4.
This Motion seeks this Court's vacatur of its Judgment for (i) judicial
mistake pursuant to the provisions of FRCP Rule 60(b)(1); and (ii)
.
5.
Such
judicial mistake has occurred because this Court's Judgment (i)
should be preceded, but is not, by this transferee Court's FRCP Rule 63 certification for
the absence of partiality to ensure the pending motion to dismiss proceeding could be
completed without partiality, as Rule 63 intends; (ii) is absent any review of the
transferor Feinerman court Record in light of that court's recusal statement
ll22)
as a
primafacie showing of partiality under sub-section (a) of 28 U.S.C. 455 and inferring
further partiality under sub-sections (b)(a) and (bX5); (iii) is based on assignment of a
Record with the appearance of partiality and that partiality is thereby embedded in its
own Record and Judgment; and (iv) notwithstanding (i), (ii) and (iii) shows no review
of
the Feinerman court Record to determine that sourt's pre-trial decisions establishing Law
of the Case ('LOTC') under that Federal doctrine, and Judgment findings conflict with
that Court's discovery rulings to deprive Plaintiff of due process.
6.
Pursuant to the provisions of 28 U.S.C. 455 this Court should have at
minimum reviewed the Feinerman court Record but failed to do so and produced its
Judgment in the absence of review, thereby embedding such partiality in its Judgment
and rendering the Judgment subject to vacatur.
7.
Pursuant to the provisions of FRCP Rule 63, this Court should have
certified the Feinerman court Record, particularly in light of its recusal statement
admitting partiality ll22l, and has not complied with Rule 63 and should not have
proceeded or entered its Judgment but has done so, rendering the Judgment subject to
vacatur.
8.
Pursuant to LOTC doctrine as Seventh Circuit holds, this Court should
have granted discovery by amending Feinerman court decisions prohibiting document
a
J
production so as to allow Miller to examine (11) corporations' books and records in
Defendant Fryzel's possession to determine if he could proceed as director in good faith;
instead, the Judgment has examined the contents of those books and records ex parte (in
which event it should recuse itself under sub-section
(bxl) of 28 U.S.C.
455) or abuses
its discretion by presumption that the content of those books and records is unnecessary
to Miller's pursuit of this action for the corporations. In either event, the Judgment is
subject to vacatur by the appearance of partiality.
9.
Also pursuant to LOTC doctrine, this Court should have allowed filing of
Miller's Supplemental Response [116] and granted leave for his Sur-reply filing denied
earlier
|21). (35B Corpus Juris Secundum ('CJS'); at 537, sec 1289 note [10]; citing
Wickens v. Shell
10.
Oil Co.,
620
F.3d747 (7th Cir. 2010))
The Opinion's material findings show the Lee court's clear error as to
findings of fact and conclusions of law. The Lee court has abused its discretion. The
Opinion fails to show disposition of all claims and show Miller's futility in a further
filing In finding for dismissal with prejudice, the Lee court abuses its discretion.
11.
Miller attaches his Memorandum of Law in support of this Motion.
WHEREFORE, Miller prays this Court vacate its Judgment pursuant to subsection (bX1) of Rule 60, and grant leave to file the Second Amended Complaint.
Respectfully
Sidney R){4iller, Plaintiff
p.o. Box t948 lchicago, IL 60690 I (547)220 -2926 lemail: cxboss@gmail.com
UNITED STATES DISTRICT COURT
NORTHERN DISTICT OF ILLINOIS, BASTERN DIVISION
SIDNEY R. MILLER ('Miller'),
an individual,
)
)
) CaseNumber: 12-cv
)
and
Exchange, Inc., et al.,
('Plaintiff currency exchanges',
the currency exchanges')
Plaintiffs
53"t
- Ellis Currency
-
10160
Judge: Hon. Gary Feinerman
Transferred to: Hon. John Z. Lee
Magistrate Judge: Hon. Arlander Keys
V.
MICHAEL E. FRYZEL ('Fryzel'), et al.,
Defendants
)
)
MEMOIL{NDUM OF LAW IN SUPPORT OF FRCP RULE
RELIEF FROM JUDGMENT
6O(b)
MOTION FOR
In its opening sentence, the Lee court Memorandum Opinion and Order [125]
states: 'This derivative shareholder suit is but the most recent in a series of cases brought
by Plaintiff Sidney Miller
('Miller')
on behalf of eleven wholly-owned currency
exchange corporations...' That language suggests the Lee court as with knowledge of the
matter beyond the Motion to dismiss pleadings. The Lee court admits those pleadings to
be the basis for its Opinion (case 10160; at [139]: '...The Court simply ruled on the
papers before
it...').
The Lee court admits it did not review the Feinerman court Record after reassignment (id; at Ll39)U221). By its duty under Federal statute, rule and law of the case
doctrine, the Lee court's failure to review the Feinerman Record for partiality is abuse
of
discretion sufficient for FRCP Rule 60(b)(1) relief as Judgment vacatur U24)11251U261.
The Judgment and Opinion show additional such abuse. The Order's call for
dismissal with prejudice is without sufficient support. The following arguments call for
such vacatur for
(bxl) of Rule
judicial mistake and surprise and excusable neglect under sub-section
60.
Statement of Facts, Controlling Law and Argument
Miller filed his Complaint, an attomey malpractice action against Defendant
Fryzel, on December 19, 2012. The Complaint, Northern Illinois District Court case l2
cv
-
-
10160 ('case 10160'), was assigned to Judge Gary Feinerrnan. That Complaint is the
re-filing of Miller's Amended Complaint voluntarily dismissed in case i 1 - cv - 02395.
On May 12,2014, unexpectedly, Judge Feinerman filed his notice of recusal
o'This Court has learned that a
1122]. The Judge's recusal statement is one sentence:
relative of the Judge has had a business relationship with one of the Defendants"..... That
statement cites procedure IOP
notes admonish
a
13(f but no statutory authority. FRCP Rule 63 committee
judge to furnish reasons to show necessity. That statement provides
insufficient substance to show authority. That statement does establish that his recusal
bears the appearance of partiality under sub-section (a) of 28 U.S.C. 455 and infers also
under sub-sections (b)(a) and (b)(5).
Feinerman court decisions dstablish Law of the Case ('LOTC') for several issues.
In particular are (i) the denial of production of discovery documents in response to
Miller's Motion [38] and renewed verbal motion in January [tr.
Miller's motion
at bench to
_
]; (ii) the denial of
file the Amended Complaint [35] with leave of courl by de
facto filing of that Motion for leave (initially omitted by excusable neglect) so as to
preserve
Miller's right to file his second Amended Complaint [82]
under FRCP Rule 15; and
(iii) the denial
as a matter
of course
at bench of the IDFI motion to dismiss for
sovereign immunity as incorrect in Federal court when those officials are operating
^
J
outside their statutory authority, as Miller argued. Transcripts confirm all such bench
decisions. The Opinion [125] dismisses IDFI notwithstanding Record transcripts and
pleading showing the Feinerman court as taking Miller's Amended Complaint naming
IDFI
as
of
with the particular officials alleged with liability.
Miller was denied filing of his Supplemental Response [114] and Sur- Reply
ll2ll
For circumstances then and afterward, those denials deprived Miller of due process
by disallowing him leave to make his record. Miller was unfairly burdened with repetitive
overlapping Defendant pleadings in the November to February period. The Defendants
themselves occasionally questioned whether the SAC should be briefed first.
Case
1
0
I 60 was pending
in the Feinerman court for 1 8 months. On May 12 the
Feinerman court had scheduled a status hearing for May 29. That Court held the motion
to dismiss proceeding as fully briefed. But the May 29 status shows that court's intent to
hear other issues
-
or perhaps oral argument
- before Judgment.
On May 12 Miller received the last transcript of Feinerman court proceedings
from Court Clerk Zandi. Miller was then preparing a 28 U.S.C. 144 motion for
disqualification for that Court's bias and prejudice but with recusal, that motion became
moot.
After recusal Miller believed that the Lee's transferee court was reviewing the
Feinerman court Record pursuant to FRCP Rule 63. Miller had no reason to suspect bias
and prejudice in the Lee court. Under that presumption on May 12 and afterward
had no reason to move to disqualifu the Lee court under section 144 or 455.
Miller
4
On May 28, Judge Lee struck the scheduled May 29 status hearing. Miller did not
appear on May 29 and, despite various motions afterward, has never appeared in the Lee
court. The Lee court has disposed all Miller motions without courtroom appearance.
Without further notice, the Lee court issued its Judgment on July 15. On July
Miller obtained
a copy of that Judgment at the
16
District Court Clerk's office.
The Lee court Judgment: The Judgment findings show that the Judgment
fails to rule either on the correct facts of case 10160 or applicable law or follow due
process to produce its Judgment or remedy its error. The Judgment makes findings
as
follows:
(a) Dismissal of Miller's individual claimsz (i) The Judgment misconstrues
Miller's response to Fryzel
as a judicial admission that he is not pursuing
individual
claims ([L25); at 8, 9). The Judgment cites Geinosky (id; at 2, 'Background') and requires
such
judicial admission to be proper (Geinosky, id; at746, fn [1]), not
as
here. The
misconstrued statement is held controlling over the Amended Complaint's caption,
allegations and court transcripts. (ii) The Opinion dismisses Miller individually without
opportunity to contest or be heard before Order as Judgment. Such dismissal denies due
process.
(b) Dismissal of Defendants Keenan, Shack and Fryzel by denial of Miller's
Rule 23.1 demandftttility argument:The Judgment finds'not-applicable'the Aronson
test' requirement that'...the plaintiff alleges particularized facts creating a reason to
doubt that (1) the directors are disinterested and independent...' ([125];
atll,
par. 1)
Miller alleges that he is sole director, officer and shareholder and that each corporation is
an IRS Sub-chapter S entity, with income (loss) flowing annually to his tax return. Each
5
corporation's income (loss) is Miller's income (loss) ([35]; dt _,
_)
How can these
allegations be taken otherwise than showing that there is a reasonable doubt Miller is
disinteresteil The Judgment next denies Miller's argument that he cannot act as director
because each corporation's books and records are admittedly held by Fryzel
(ll25l; at3,
par. 2); finding: ' ...The books and records at issue are limited to the finances of the
currency exchange corporations and were not necessary for Miller to advance a RICO
claim based on conspiratorial activities of Defendants...' This Jinding is the Lee court
admission that it has knowledge of the contents of documents deniedfor discovery by the
Feinerman court. This is an example of the extrajudicial source for which recusol under
sub-section @(1) of 455 is required. Miller
-
no corporate director
-
could undertake an
action for his corporation without possession and prior review of its records. Over the last
10
* years of Receivership,
Shack and Fryzel could have entered anything into those
books and records as Miller infers in alleging continuing misconduct ([35]; at 41, par.
45). In the face of this error, the Judgment abuses its discretion by concluding that
dismissal with prejudice
-
i.e.; on the merits
-
is appropriate.
(c) Dismissal of IDFI on textual eruor for Sovereign Immunity: The Judgment
finds for dismissal of IDFI under Eleventh Amendment Sovereign Immunity (ll25l; at
12,13). This finding fails to take all Record facts into consideration, selecting with
partiality to support its dismissal of IDFI. Within that Record is Miller's Response
correcting that caption error ([79]; at
_
) showing IFDI as Defendant without the names
of those individuals liable for misconduct by acting outside their official capacities as the
Amended Complaint and SAC allege. This Court's abuses its discretion by denying due
process, dismissing
Miller individually (i.e.; as a caption Plaintift) without motion or
6
hearing despite case law in Seventh Circuit and elsewhere of caption emor being textual,
subject to amendment and not fatal by the
IDFI allegations being
individuals - (Besecker v. St of lllinois, 14 F.3d 309
17th
as
to specific
Cir. 1994); Kedra v. City of
Philadelphia,454 F.Supp. 652 (8.D. Pa 1978)); here, it takes textual error as grounds for
IDFI dismissal despite the Amended Complaint allegations and Record pleadings
as
to its
individuals. In its footnote [3], ([125]; at 13) the Judgment seeks to impute that
misconstruction to Miller: '... [recognition of] the fatality of his claims against IDFI,
Miller
seeks to amend his [Amended] Complaint to substitute claims against
five IDFI
employees...' Afterward, the Judgment fails to name those five employees but
distinguishes the misconduct of four of them from one who acted with 'tortuous
independence'. Absent names, Miller cannot contest this finding. As the Feinerman court
Record shows, Sovereign Immunity does not protect state officials in Federal Court
if
acting outside their authority, as the Amended Complaint and SAC allege.
(d) Denial of Miller's Motionsfor
Leave to Amend rfte [Amended]
Complaint: The Judgment text opens with this finding ([125]; at 13, par. C): 'The Court
has thoroughly reviewed
amendment wouid be
Miller's proposed pleadings and concludes that allowing further
futile.' The finding is conclusory. There is no factual support for
that finding. The following arguments show its denial of leave to amend is abuse
of
discretion:
(i) Miller's
RICO complaint filing is within the SOL: The Judgment
finds that the Statute of Limitations ('SOL') has been exceeded and that Miller 'pleads
himself out of court' ([125]; atl3-l4,par.2-2). By its conflict with other Opinion
1
findings and additional facts allowable under Geinoslgt (id; 675 F.3d746 at note [1]) that
finding is clear error.
(1) The Opinion finds that'the 'filing' of his RICO 'complaint' with
the U.S. attomey is sufficient evidence that
Miller was on notice of his potential RICO
claim by November 3, 2008'(id; at 14,par.2). A copy of that criminal complaint has not
been filed in case 10160.
extrajudicial source
-
as
If this court
has obtained (a copy
of
that complaint from an
with the currency exchanges' books and records
- it should
immediately recuse itself pursuant to sub-section (bX1) of 28 U.S.C. 455 (tlS.
Widgery,778F.2d325
(7rh
v.
Cir. (Ind.) 1985)). The Court's set off of 'filing' and
'complaint' with quote marks suggests skepticism
as
to document content. Given
skepticism, the Opinion fails to explain how notice as to Miller's 'potential' RICO claim
be drawn when the document has not been examined;
(2) Within precedent Barry Aviation, the Opinion finds: 'RICO "cause
of action accrues when the plaintiff knew or should have known that it had sustained an
injury."' When fully
stated that head note says:
A cause of action accrues when the plaintiff knew or should have known
that it had sustained an injury; this rule is referred to as the discovery rule
because the accrual date is not determined when the injury occurs but
when it is discovered or should have been discovered. (Baruy, id; at 683,
head note l8); emphaszs added)
The Barry discussion (id; at 688) explains application of the discovery rule when fraud,
as here, is
occurring. Citing Cacla v. Baxter Healthcare, g20
F
.2d 446, 45017th Cir. 1990)
'...to the extent that Defendants in a fraud case conceal the fraud, "they postpone the date
of accrual by preventing the plaintiff from discovering that he is a victim of a fraud."...
This principle is based on the general rule that accrual occurs when the plaintiff discovers
that "he'has been injured and who caused the injury." United States v. Duke, 229
F
.3d
627, 630 (7'h Cir. 2000)
(3) In November, 2008 Miller filed his criminal complaint because
Continental Casualty's voluminous but repetitive discovery as to the cuffency exchanges:
Surety Bonds suggested that a fraudulent criminal action for the $1,441,000 insurance
proceeds might lie.
Miller did not know he had a RICO civil injury or
a
civil
cause
of
action;
(a) In November, 2008 Miller had not prepared or filed any Federal
complaints. He did not then file a civil RICO action because he did not know that he had
such authority under Federal law but, regardless, he could not have then prepared any
Federal action with his insufficient technical knowledge. Miller was then without legal
assistance. From his
Illinois court experience, Miller understood that sanctions were
possible if Federal complaints were without merit;
(5) Miller hoped that his criminal complaint would spark Federal
authorities to pursue discovery curtailed in early 2004 in Illinois state courts. The U.S.
Attorney's office referred Miller to the FBI as alleged. The fact that Federal criminal
action pursuant to that complaint is not yet visible suggests that his complaint may not
have shown sufficient or meritorious injury to cause Federal authorities to then act;
(6) It was not until summer, 2009 discussions that Miller understood there
possibly was a cause of action available under civil RICO. Before then Miller's body
of
litigation had proceeded entirely within state court. Following his summer discussions
and the September,2009 Corus Bank Receivership soon afterward,
of Federal law and civil RICO.
Miller began research
9
(7) Miller then was unfamiliar with application and procedures of Federal
law. Miller understood RICO to be a Federal criminal prosecution. He did not know that
Federal law provided for a civil RICO cause of action or the requirements for a complaint
so as to act on an
'injury' within
a 'pattem of racketeering'. With the difhculties he had
experienced in Illinois courts, Miller was hesitant to pursue any Federal action until he
felt acquainted with that law;
(8) The Opinion erroneously selects November 3,2008
Miller's civil
cause of action accrued. The Amended Complaint alleges
as the
time
Miller did not
know of his cause of action until August, 2009 ([35]; at39, par. 39). 'All reasonable
inferences are to be drawn in Miller's favor.' (1125); at2,'Background') The foregoing
facts show that Miller was without knowledge to file a Federal civil RICO action in
November. By denying conclusive weight to Miller's allegation, the Court abuses its
discretion; and
(9) The earliest date for accrual of Miller's civil RICO action is August,
2009. The Opinion finds that Miller's RICO action was filed in December,2}72. On that
basis,
Miller timely filed his RICO action within the 4 - year SOL.
(ii) The Opinion errs in denying equitable tolling by misapplying
controlling law: The Opinion finds that: 'The only way that Miller's claim can survive in
light of these allegations is if it is equitably tolled...' This Motion shows fsupra, at (dxi)l
that the RICO action is filed within the SOL. Notwithstanding that argument as
conclusive, this (d)(ii) argument shows equitable tolling as a pleading claim:
(1) The Opinion ([125]; at14,15) cites tlS. v. Marcello (id;at 1010) for
its findings that'equitable tolling is granted sparingly' where 'extraordinary
10
circumstances far beyond the litigant's control...prevented timely hling.' The frequency
of such grant is irrelevant as to the instance here; the grounds are whether extraordinary
circumstances prevented timely filing, as shown infra;
(2) The Opinion cites Miller's 'proposed amended complaint' (i.e. the
'SAC', second amended complaint, id; at 15) for its purported argument that the SOL
should be tolled because the U.S. Attorney would not act '...untilthe FBI weighed in on
its merits...' The Opinion cites no specific location in the SAC for this purported
argument. The Opinion may refer to the Amended Complaintparagraph related to those
findings ([35]; at7,par.2 as: 'In November, 2008... might furnish relief.'). That
paragraph alleges how Miller's efforts in diligently pursuing a criminal action lead to his
civil action afterward, and not at all to support his claim of equitable tolling.
(3) Milter argues equitable tolling as a valid claim because of continued
discovery suppression in Illinois, and now, Federal courts. The most recent example of
such suppression is within case 10160. On September 16, 2013, as the Amended
Complaint was being service upon Defendants, Miller moved the Feinerman court for
leave to commence discovery (t38]t391). That court denied production but ordered
Defendants to preserve documents (t41]). In January, that court denied Miller's renewed
discovery motion at bench
(tr._;
dt
_,1.-)
(4) Without such discovery Miller cannot determine: (a) the Plaintiffs'
various claims; (b) the related Defendants and their particular liabilities; and (c) the
continuing patterns of racketeering and related RICO Federal statutes (e.g. 18 U.S.C.
1341, etc.). Without such discovery,
or pursue his claims at trial;
Miller cannot prepare
a sustainable cause
of action
11
(5) The Amended Complaint makes numerous allegations as cause for
discovery: (a) that the misconduct is continuing ([35]; at 40-4l,par. 45); (b) "...that
Miller and the Miller currency exchanges have been injured by Corus [officers], IDFI
fofficials] and CCC [employees]
as
to fraudulent concealment of facts in this matter to
attempt to overrun the Statute of Limitations for filing this action..." ([35], at 38, par.
35R); (c) "...in addition to material facts underlying this RICO action, Corus and IDFI
concealed material facts depriving
Miller and then-attorney Fioretti, et al, of defenses in
the Cook County Receivership case (03 CH 18577), the Liquidation case (03 CH 10488),
the Corus case (03 L 3909, consolidated), and the Surety Bond case (03 CH 12767)..."
([35]; at33,par. 35C); (d) "...lA]fter Continental Casualty fumished documentation
pursuant to Miller's 2007 production request, Miller began to unravel the Receivership
improprieties following Shack's seizure..." ([35]; at24,par.32); and (e) "...Corus thus
intended the Receivership to be its vehicle to recover loans and extensions of credit to
Miller by any means, rightly or wrongly. Corus sought recovery by inappropriate transfer
of funds, a fraudulent insurance claim and sale of Miller's stores putsuant to establishing
a statutory Receivership, even
by fraudulent accounting..." ([35]; at24, par. 31C). After
Continental Casualty began document production, Cook County granted their attomey
leave to redact 400 documents within the disclosure. Thus, discovery production is
necessary and properly sought in the Amended Complaint.
(6) The Opinion invokes Cancer Foundation for its finding that the
'discovery rule'
-
as controlling law here
-
is triggered by the discovery of the harm itself
and not knowledge of the elements of the claim ([125]; at 15, par. 1). But Cancer
Foundation finds that equitable estoppel, sometimes termed fraudulent concealment,
t2
'suspends the rururing of the statute of limitations during any period in which the
defendant took active steps to prevent the
plaintiff from suing' (Cancer, id; at 67 6, note
[5]), citing Barry Aviation (id; at 689), supra. As above, Barry cites Cada for its finding
that "...se1f-concealing frauds do not extend the limitations period through equitable
tolling but instead, postpone the date of accrual by preventing the plaintiff from
discovering he is a victim of a fraud." (Barry, id; at 688)
(7) The Opinion's citations are applicable but not for the reasons the
Opinion finds. For the 'fraudulent concealment' alleged in the Amended Complaint, the
accrual date of the SOL is pe$pqngd, per Barry and Cada. Equitable tolling is not
rendered inapplicable here; under Cancer (therein, disposing Defendants' fraud for
lulling delays by equitable estoppel) instead, equitable estoppel applies.
(8) The Opinion errs by rendering equitable tolling inapplicable in the
Amended Complaint. Equitable estoppel is applicable and postpones the accrual date
such that the Amended Complaint is timely filed.
(9) BV its Opinion finding, the Lee court abuses its discretion.
(iii) The Opinion finds the oproposed pleading' (apparently, the Amended
Complaint) inconclusive
as to
stating a plausible claim, but its 'enterprise' example
fails to confirm that finding.
(1) The Opinion finds the Amended Complaint to be '...a jumble of
names, dates, and legal citations...' lacking clarity as to
Miller's claims ([125); at 15-76,
par.2-l). This finding itself is quizzical, since the Opinion's Background section (id; at
2-8) furnishes an articulate summary of the Amended Complaint's claims and factual
13
allegations. The finding, though, is funher reason for granting leave to amend to cure the
jumble.
(2) For example, the Opinion presents the essence of Corus scheme to
manufacture an impairment condition throughout the 1 1 - Miller store chain (id; at 4, par.
1: 'These transfers reduced each store's... Id par.
318', inferring claims under RICO
predicates 18 U.S.C. 1956, 18 U.S.C. 1005. For another example see the Parugraph32
bifurcation scheme description (id; at 5, par. 2). Miller weighed alternative constructions
of these facts in layman's terms. Numerous claims relate to banking and currency
exchange accounting for which most readers have no technical familiarity. The
Background shows that Miller's efforts may have reached the Court's law clerks.
(3) Soon after the Amended Complaint was filed, Miller announced at
bench that he was preparing a second Amended Complaint
('SAC') to present Plaintiffs'
claims with greater clarity and organization. Miller frled the SAC on January 2,2014.
(a) The Opinion ([125]; at 15-16) finds the Amended Complaint fails to
properly plead an 'enterprise'; here, the Receivership itself. The Receivership is a
statutorily
-
defined entity (at205ILCS 405, sec 15) and fits the RICO definition for an
entity (at 18 U.S.C. 1961 sub-section (a)). The Opinion's description of necessary
structure, etc., for an 'enterprise' is within the section 15 description.
(5) The Opinion seeks to impute a pleading defect where there is none.
The Receivership is an entity with a structure, authority and duties, regardless of how
Defendants' Shack and Fryzel acted toward it. Shack and Fryzel have never filed a final
Receivership report as required under the Act (205 ILCS 405; at section 15.1d.)
t4
(6) The Opinion fails to demonstrate that the 'enterprise' is a pleading
defect. The Opinion fails to show that the Amended Complaint has no merit as a
pleading.
(iv) The Opinion finds that grant of leave to file an SAC would be futile.
The Opinion's findings fail to support that conclusion. Leave to file an SAC is
proper. The Opinion fails to show that Miller's Amended Complaint is without merit.
The arguments this Memorandum provides show that the Amended Complaint has no
defects that cannot be cured by amendment. Seventh Circuit law includes cases showing
the District Court extending pleading to a third amended complaint (Starrels v. First
National Bank of Chicago,870 F.2d 1168 (7th Cir. 1989)) The Opinion fails to furnish
any substantive reason for dismissal with prejudice or denial of leave to amend the
Amended Complaint. (1125); at 16-17)
Miller's post-Judgment Rule 59 Motion: After review of that Judgment
Opinion, Miller began to prepare a FRCP Rule 59 Motion to Vacate or Amend the
Judgment. Despite a concurrent bout
2014 winter
- Miller
timely filed
- the first of several with influenza
a Rule 59
oYer the 2013
I
Motion on August 12 |27). Miller is
separately preparing his motion to contest this Court's denial of his Rule 59 Motion.
lt47l
Conclusion
The Judgment Opinion fails to make findings showing the Amended Complaint to
be without merit and
for amendment to be futile. The Judgment fails to show that
dismissal with prejudice is proper and that leave to file a Second Amended Complaint
should be denied.
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