Zell v. Suttle et al

Filing 33

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiff's motion to clarify is GRANTED in part, as set forth above. ECF No. 25 . Any motion for leave to amend the complaint in the manner discussed in Plaintiffs motion shall be filed no later than March 19, 2018, and shall include as an attachment the proposed amended complaint. Signed by District Judge Audrey G. Fleissig on 3/7/2018. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EILEEN L. ZELL,
Plaintiff,
vs.
DAVID DALE SUTTLE, et al.,
Defendants.

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Case No. 4:16-cv-01293-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion (ECF No. 25) for clarification
regarding the Court’s November 15, 2016, dismissal of Plaintiff’s state-law claims for
fraud and fraudulent misrepresentation. The Court dismissed those claims on res judicata
grounds, and alternatively, for failure to state a claim. ECF No. 9. On December 21,
2017, the Eighth Circuit reversed the res judicata ruling, but affirmed the dismissal of the
state-law fraud claims because Plaintiff “failed to allege sufficient facts to support those
claims.” 1 ECF No. 16 at 2. The Eighth Circuit then remanded the remaining contract
claims to this Court for further proceedings. Plaintiff now asks this Court to clarify that
the dismissal of her state-law fraud claims was without prejudice. Defendants have not
responded to Plaintiff’s motion, and the time to do so has passed.

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The Court also dismissed Plaintiff’s claims for violation of the Racketeer
Influenced and Corrupt Organization (“RICO”) Act, 18 U.S.C. §§ 1961-1968, and the
Eighth Circuit affirmed this dismissal. In her current motion, Plaintiff concedes that she
cannot state a RICO claim. Therefore, the dismissal of the RICO claim is with prejudice. 

In light of the Eighth Circuit’s grounds for affirming the dismissal of the state-law
fraud claims, the Court concludes that the dismissal of these claims is without prejudice
to Plaintiff seeking leave to amend, in order to cure the pleading deficiencies.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to clarify is GRANTED in
part, as set forth above. ECF No. 25. Any motion for leave to amend the complaint in
the manner discussed in Plaintiff’s motion shall be filed no later than March 19, 2018,
and shall include as an attachment the proposed amended complaint.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 7th day of March, 2018. 

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