Raineri Construction, LLC v. Taylor, et al

Filing 109

MEMORANDUM AND ORDER re: IT IS HEREBY ORDERED that plaintiff's motion for reconsideration or, in the alternative, to voluntarily dismiss Counts VI, VII, and VIII of the third amended complaint [Doc. # 103 ] is denied.. Signed by District Judge Carol E. Jackson on 4/2/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAINERI CONSTRUCTION, LLC,

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Plaintiff,
vs.
KEITH TAYLOR, et al.,
Defendants.

Case No. 4:12-CV-2297 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for reconsideration of the
dismissal of plaintiff’s RICO and tortious interference claims (Counts I-V), or, in the
alternative, to voluntarily dismiss the remaining counts of the third amended
complaint (Counts VI-VIII).

Defendants have responded in opposition, and the

issues are fully briefed.
I.

Background

Plaintiff Raineri Construction, LLC (Raineri) is a construction contractor.
Defendant Carpenters District Council of Greater St. Louis and Vicinity (CDC) is a
labor union that represents carpenters and other skilled workers in collective
bargaining with construction contractors. The ten individual defendants, Keith
Taylor, Scott Byrne, Paul Higgins, Al Bond, Mark Kabuss, Michael Ebert, Christopher
Woods, George Wingbermuehle III, Tod Wingbermuehle, and Terry Nelson, are
officers or members of the CDC.
Plaintiff alleges that beginning in November 2011 and continuing to date,
defendants have engaged in a conspiracy to extort money and inflict substantial
damages upon plaintiff by threatening physical violence and property damage,

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stalking and harassing plaintiff’s management and employees, defamation, filing
frivolous complaints with the St. Louis City Building Department, the St. Louis
County Department of Health, and the U.S. Department of Labor-Occupational
Safety and Health Administration, and unlawfully interfering with plaintiff’s existing
and prospective business relations.
The Court has twice dismissed the alleged violations of the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO) (Counts
I-IV) for failure to state a claim. In response, plaintiff has amended its complaint in
an effort to remedy the pleading defects in the RICO claims. Following plaintiff’s
third amended complaint, the Court granted defendants’ motion to strike
allegations and references pertaining to the dismissed counts as immaterial,
impertinent, scandalous or otherwise unrelated to the remaining claims.
In the instant motion, plaintiff seeks reconsideration of the Court’s dismissal
of the RICO claims on the basis of “the Court’s unwarranted refusal to allow
[p]laintiff any discovery whatsoever to support its well-pleaded [RICO] allegations”
and “recently disclosed predicate acts” cited in defendants’ answer to the third
amended complaint.

[Docs. ## 103, 108].

In the alternative, plaintiff seeks to

voluntarily dismiss the remaining claims in the complaint, “so as to conclude this
action in the district court and to allow [p]laintiff to pursue an appeal with respect
to the Court’s dismissal of [p]laintiff’s RICO claims.” [Doc. #103].
II.

Discussion
A. Motion for Reconsideration

The Federal Rules of Civil Procedure do not address the standard by which
courts are to assess motions to reconsider, and plaintiff does not cite any authority

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for its motion. Because plaintiff seeks review of a non-final order rather than a final
judgment, the Court will construe plaintiff’s motion as a Rule 60(b) motion.

See

Nelson v. Am. Home Assur. Co., 702 F.3d 1038, 1043 (8th Cir. 2012) (“[W]e have
determined that motions for reconsideration are ‘nothing more than Rule 60(b)
motions when directed at non-final orders.’”) (quoting Elder-Keep v. Aksamit, 460
F.3d 979, 984 (8th Cir. 2006)). Rule 60(b) “provides for extraordinary relief which
may be granted only upon an adequate showing of exceptional circumstances,”
such as newly discovered evidence that could not have been discovered with
reasonable diligence, mistake or fraud. Robinson v. Armontrout, 8 F.3d 6, 7 (8th
Cir. 1993).
Plaintiff has failed to provide a sufficient basis for relief upon any of the
grounds enumerated in Rule 60(b).

Plaintiff instead premises its motion for

reconsideration on the lack of “discovery necessary to process its [RICO] claims,”
“even though [p]laintiff specifically requested a Rule 16 conference.” Pl.’s Reply, at
*1 [Doc. #108].

During the pendency of this litigation, plaintiff has filed three

amended complaints and the Court has ruled on two fully-briefed motions to
dismiss with supplemental memoranda and notices filed by the parties. It is within
the discretion of the district court to issue a scheduling order and allow for the
commencement of discovery after resolution of a pending motion to dismiss.
Facial challenges to the legal sufficiency of a claim or defense, such as
a motion to dismiss based on failure to state a claim for relief, should
[] be resolved before discovery begins.
Such a dispute always
presents a purely legal question; there are no issues of fact because
the allegations contained in the pleading are presumed to be true.
Therefore, neither the parties nor the court have any need for
discovery before the court rules on the motion.

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Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (internal
citation omitted).

After defendants filed their answer to the third amended

complaint, the Court ordered the parties to submit a joint proposed scheduling plan
for the purposes of commencing discovery. Neither party has done so.
Furthermore, the purpose of discovery is not to assist a plaintiff in
articulating a plausible claim in drafting the complaint, but rather to allow parties to
determine whether evidence exists to support a stated claim.

“Discovery should

follow the filing of a well-pleaded complaint. It is not a device to enable a plaintiff
to make a case when [its] complaint has failed to state a claim.” Kaylor v. Fields,
661 F.2d 1177, 1184 (8th Cir. 1981); see also Brown v. Ameriprise Fin. Servs.,
Inc., 276 F.R.D. 599, 605 (D. Minn. 2011) (“A plaintiff must adequately plead a
claim before obtaining discovery, not the other way around. [D]iscovery is not to
be used to find a cause of action.”) (quoting In re Medtronic, Inc. Sprint Fidelis
Leads Prods. Liab. Litig., MDL No. 08–1905 (RHK/JSM), 2009 WL 294353, at *2 (D.
Minn. Feb. 5, 2009), aff'd, 623 F.3d 1200 (8th Cir. 2010)).
To state a claim in a private civil RICO action, a plaintiff must satisfy a
number of prerequisites and plead a multitude of moving elements. As described
by one federal court, “[t]he statute is constructed on the model of a treasure hunt.”
Sutliff, Inc. v. Donovan Cos., Inc., 727 F.2d 648, 652 (7th Cir. 1984) (Posner, J.),
abrogated on other grounds by Hammes v. AAMCO Transmissions, Inc., 33 F.3d
774, 782 (7th Cir. 1994).

Indeed, success in a civil RICO action leads to the

availability of “extraordinary remedies” that “are among the most severe ever
enacted in a federal civil statute.”

Doe v. Norwest Bank Minn., N.A., 107 F.3d

1297, 1308 (8th Cir. 1997); Ambrose v. Blue Cross & Blue Shield of Va., Inc., 891

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F. Supp. 1153, 1166 (E.D. Va. 1995). To obtain the relief sought in its complaint,
plaintiff is solely responsible for identifying the elements of its action so to
sufficiently allege facts to state a plausible claim. Plaintiff may not rely upon the
Court to repeatedly instruct it as to missing elements, nor depend upon discovery
to state a claim.
In the instant motion, plaintiff states in passing that it seeks leave to amend
its third amended complaint “to specifically allege these recently disclosed predicate
acts which support [p]laintiff’s RICO claims.” Pl.’s Mot. ¶ 9 [Doc. #103]. However,
it failed to attach a proposed amended complaint to enable the Court to determine
whether such an amendment would be futile.

See Popoalii v. Corr. Med. Servs.,

512 F.3d 488, 497 (8th Cir. 2008) (holding that “granting leave to amend a
complaint where the plaintiff has not submitted a proposed amendment is
inappropriate”); Process Controls Intern., Inc. v. Emerson Process Mgmt., No. 4:10CV-645 (CDP), 2011 WL 6091722, at *4 (E.D. Mo. Dec. 7, 2011) (citing Begala v.
PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000) (“Plaintiffs [are] not
entitled to an advisory opinion from the Court informing them of the deficiencies of
the complaint and then an opportunity to cure those deficiencies.”).

In

its

present form, the third amended complaint fails to state a claim for alleged
violations of RICO for the reasons previously detailed in the previous order
dismissing the RICO claims. [Doc. #78]. Plaintiff has failed to provide a sufficient
basis for reconsideration.
B. Motion to Voluntarily Dismiss
In the alternative, plaintiff moves to voluntarily dismiss its remaining claims
in the third amended complaint (Counts VI-VIII). “It is axiomatic that a dismissal

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pursuant to Rule 41(a)(2) is not one of right but is rather a matter for the
discretion of the trial court.” Great Rivers Co-op. of Se. Iowa v. Farmland Indus.,
Inc., 198 F.3d 685, 689 (8th Cir. 1999) (quoting United States v. Gunc, 435 F.2d
465, 467 (8th Cir. 1970)).

In determining whether to permit a plaintiff to

voluntarily dismiss claims under Rule 41(a)(2) of the Federal Rules of Civil
Procedure, a court must consider “whether the party has presented a proper
explanation for its desire to dismiss; whether a dismissal would result in a waste of
judicial time and effort; and whether a dismissal will prejudice the defendants.”
Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013).

“[A] party is not

permitted to dismiss merely to escape an adverse decision nor to seek a more
favorable forum.” Id.
The

explanation

plaintiff

has

provided

for

voluntarily

dismissing

the

remaining claims is “to conclude this action in the district court and to allow
[p]laintiff to pursue an appeal with respect to the Court’s dismissal of [p]laintiff’s
RICO claims.” Pl.’s Mot. ¶ 10 [Doc. #103]. As the defendants point out, permitting
a voluntary dismissal the remaining claims at this stage would only enable plaintiffs
to secure an otherwise unavailable interlocutory appeal of the dismissal of the RICO
claims, thus violating the long-recognized federal policy against piecemeal appeals.
See Little Earth of United Tribes, Inc. v. U.S. Dept. of Housing & Urban
Development, 738 F.2d 310, 313 (8th Cir. 1984) (citing Sears, Roebuck & Co v.
Mackey, 351 U.S. 427, 438 (1956) (noting “the historic federal policy against
piecemeal appeals”)). In fact, the Eighth Circuit has noted that, in most cases, a
district court abuses its discretion “when it frustrates the limitations on federal
appellate jurisdiction by entering a Rule 41(a)(2) order dismissing remaining claims

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without prejudice for the purpose of facilitating the immediate appeal of an earlier
interlocutory order.” Great Rivers, 198 F.3d at 698-90.
Moreover, granting a voluntary dismissal of the remaining claims would
result in a waste of judicial time and effort, as the parties have vigorously litigated
this matter before the Court with substantial resources expended for more than two
years.

Dismissal also would be prejudicial to defendants, as their motion for

judgment on the pleadings directed to one of the remaining claims remains
pending.

Therefore, the Court will not permit plaintiff to voluntarily dismiss the

remaining counts of its third amended complaint.
* * * * *
For the reasons set forth above,
IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration or, in
the alternative, to voluntarily dismiss Counts VI, VII, and VIII of the third amended
complaint [Doc. #103] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of April, 2015.

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