Huff et al v. FirstEnergy Corp. et al

Filing 31

Memorandum Opinion and Order: Plaintiffs' motion (Doc. No. 10 ) to strike FirstEnergy defendants' motion to dismiss is denied. Plaintiff Reggie Huff's motion (Doc. No. 23 ) for the Court to take judicial notice of matters out side the pleadings is denied. Plaintiffs' motion (Doc. No. 11 ) to amend is denied. FirstEnergy defendants' motion (Doc. No. 7 ) to dismiss is granted. All claims in the complaint are hereby dismissed with prejudice. Judge Sara Lioi on 9/17/2013. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

REGGIE HUFF, et al.,
PLAINTIFFS,
vs.

FIRSTENERGY CORP., et al.,
DEFENDANTS.

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CASE NO. 5:12CV2583
JUDGE SARA LIOI

MEMORANDUM OPINION

On October 16, 2012, plaintiffs, Reggie Huff and Lisa Huff, filed a pro se
complaint in this Court alleging: violations of the federal Racketeer Influenced and
Corrupt Organizations Act (“federal RICO”), 18 U.S.C. §§ 1962(b), (c), and (d);
violations of Ohio’s “corrupt activity” law (“Ohio RICO”), Ohio Rev. Code § 2923.32;1
conspiracy under federal and Ohio law; and violations of their civil rights under 42
U.S.C. § 1983 (Doc. No. 1, Complaint). Plaintiffs originally named eleven defendants
(not counting John Doe defendants), including corporate entities, private individuals, and
current and former Ohio Supreme Court justices. The complaint further alleged a vast
conspiracy to deprive plaintiffs of their right to a fair disposition of a personal injury
action in state court.
The allegations in the 43-page complaint are confusing, rambling, and, at
times, inflammatory. Although much thought and attention appears to have gone into its

1

Ohio Rev. Code § 2923.34 provides individuals with a civil cause of action for violations of § 2923.32,
which is otherwise a criminal statute.

preparation, the complaint is ultimately held together by a string of conclusory
allegations.2 These allegations were immediately met with a motion to dismiss (Doc. No.
7), which is the subject of this Memorandum Opinion The motion is fully briefed and
ripe for resolution (Doc. Nos. 12, 15, opposition brief and reply, respectively).
I.

BACKGROUND
A.

The Underlying State Court Action

The facts and circumstances of this RICO-based fraud case can be traced
to a personal injury proceeding originating in the court of common pleas sitting in
Trumbull County, Ohio.3 In June 2004, plaintiff Lisa Huff was injured by a falling tree
limb near utility lines owned and maintained by defendant Ohio Edison. According to the
complaint, the tree in question was located on property that was covered by an easement
owned by Ohio Edison. (Compl. ¶ 35.)
Plaintiffs filed suit against Ohio Edison, defendant FirstEnergy
Corporation, and Asplundh Tree Expert Company, the company hired to inspect and
maintain trees and vegetation along Ohio Edison’s power lines. The state trial court
granted summary judgment to the defendants, finding that they owed no duty to Lisa
Huff. With respect to Ohio Edison, the trial court found that it did not have actual or
constructive notice of any defects in the tree or that it posed any threat of injury. Huff v.
2

What the complaint lacks in factual support, however, it makes up for in numerous legal citations, stray
social commentary on corruption in our society, and attacks upon the federal and state justice systems.
3
The history of that litigation is set forth in Huff v. FirstEnergy Corp., 130 Ohio St. 3d 196 (2011), which
is frequently referenced in plaintiffs’ complaint and is therefore properly before this Court. See Cataldo v.
U.S. Steel Corp., 676 F.3d 542, 555 (6th Cir.), cert. denied, 133 S. Ct. 1239 (2013). Moreover, the Court
may take judicial notice of proceedings in other courts. See Buck v. Thomas M. Cooley Law School, 597
F.3d 812, 816 (6th Cir. 2010). However, because plaintiffs contest some of the factual findings made by the
Ohio Supreme Court (and its ultimate ruling), which, plaintiffs believe, were fueled by bribery, the Court
will confine its consideration of the relevant facts to those set forth in plaintiffs’ complaint, and will view
those factual allegations in a light most favorable to plaintiffs.
2

FirstEnergy Corp., 130 St. 3d 196, 199 (2011). The state court of appeals reversed,
finding that there was a question of fact as to whether Lisa Huff had enforceable rights
under the contract between Ohio Edison Company and Asplundh as a third-party
beneficiary. Id.
The Ohio Supreme Court first denied discretionary review. On
reconsideration, it granted jurisdiction, and reversed the court of appeals, finding that the
underlying tree and vegetation maintenance contract did not create any duty to Lisa Huff.
Id. In reaching this conclusion, the court emphasized that “[t]he contract was not entered
into for the general benefit of the public walking on public roads. It was designed to
support the electrical service offered by Ohio Edison.” Id. at 201.
B.

Federal Racketeering and Conspiracy

On October 16 2012, plaintiffs4 filed suit in this Court against various
private and public entities and individuals. The private entities and individuals included:
FirstEnergy Corp., Ohio Edison, FirstEnergy PAC FSL, Leila Vespoli, Anthony
Alexander, and James Pearson (hereinafter “FirstEnergy defendants”). It is alleged that
defendant Vespoli is General Counsel for FirstEnergy Corp., Ohio Edison, FirstEnergy
PAC FSL and Senior Executive VP for FirstEnergy Corp. (Compl. ¶ 30.) The complaint
further provides that defendant Alexander is President and Chief Executive Officer of
FirstEnergy Corp., and defendant Pearson serves as Treasurer for FirstEnergy PAC FSL.
(Id. ¶¶ 31-32.) The public individuals, whom plaintiffs described as “nominal
defendants,” include former Justice Robert Cupp, former Justice Lundgerg-Straton,

4

Plaintiff Reggie Huff is Lisa Huff’s husband. (Compl. ¶ 26.)
3

Justice Terrance O’Donnell, Justice Judith Lanzinger, and Chief Justice Maureen
O’Conner (hereinafter “judicial defendants”). In an opinion and order dated February 20,
2013, the Court dismissed the judicial defendants from this action on the basis of judicial
immunity. (Doc. No. 18.)5
Plaintiffs have alleged a conspiracy between judicial defendants and
FirstEnergy defendants to influence litigation involving FirstEnergy defendants. In the
complaint, plaintiffs aver:
Plaintiffs, as life long registered Republicans, are suing the Defendants
for using large campaign cash payments . . . , including an illegal
“STRAW DONOR” scheme (See U.S. v. O’DONNELL 608 F.3d 546
(9th cir. June 14 2010)), paid to a super majority of Republican Justices
of the Ohio Supreme Court in order to launder bribes in the form of
“stream of benefits” with the specific intent to retain the Ohio Supreme
Court Justice’s services for specific favorable action on a “as needed”
basis[.]
(Compl. ¶ 12.)6
1.

“Straw Donor” Scheme

According to the complaint, FirstEnergy defendants relied on bribes and a
“straw donor” scheme to ensure that the judicial defendants would ultimately rule in Ohio
Edison’s favor in Lisa Huff’s personal injury action. The straw donor scheme was
allegedly executed by Vespoli and Alexander, who would (along with their spouses)
make individual donations to the judicial defendants in an apparent effort to circumvent

5

In that same opinion, the Court dismissed plaintiff Lisa Huff, finding that she had failed to sign the
complaint. In an opinion and order dated July 15, 2013, the Court reinstated Lisa Huff as a party plaintiff.
(Doc. No. 27.)
6
Unless otherwise noted, all complaint quotes have been reproduced with bolding, underlying, and
typographical errors as they appear in the original document.
4

the monetary limits placed on corporate campaign contributions. (Id. ¶¶ 38-39.)
Specifically, the complaint provides that:
In the weeks that preceded the foreseeable tree incident on June 14th
2004, which was well publicized, . . . LELIA L. VESPOLI &
ANTHONY J. ALEXANDER became aware of the case and concerned
that the unique facts might be problematic for FIRSTENERGY & OHIO
EDISON COMPANY’S interests. Defendants VESPOLI &
ALEXANDER, (Also referred to from time to time as the Executive
Defendants) being both intelligent and experienced Ohio Attorneys,
anticipated that the lawsuit could be pushed all the way to the Ohio
Supreme Court. Defendants VESPOLI & ALEXANDER, and others yet
to be identified employees and/or individuals, recognized a need to have
the Ohio Supreme Court destroy the suit no matter what path it took in
getting to that Court. Plaintiffs allege that their lawsuit was not the only
future legal issue that the [FirstEnergy defendants] were hoping to
influence at the Ohio Supreme Court nor is the initial motivation
ultimately relevant to this cause.
The Executive Defendants were fully aware of the effectiveness and value
of lobbying the executive and legislative branches of government and the
value of large campaign cash contributions in gaining and increasing
lobbying access to public officials while in power. The Executive
Defendants were extremely well compensated from Defendant
FIRSTENERGY, in part, for finding and executing ways to enhance its
influence footprint. At that time Defendants VESPOLI &
ALEXANDER, became frustrated that the judiciary was the one branch
of the government that they could not legally lobby and that campaign
contribution limits were comparatively low which reduced their ability to
stand out on the [judicial defendants] donor lists which typically put
largest donors at the top of the list. Due to this unacceptable limitation on
influence Defendants VESPOLI & ALEXANDER devised a scheme and
artifice to thwart the very purpose for the unique contribution limits for
judicial candidates through a straw donor scheme in violation of Ohio
Revised Code 3517.13(G)(2)(a) & 3517.13(G)(1).
(Compl. ¶¶ 37-38.)
Plaintiffs aver that the “so-called personal contributions” of Vespoli,
Alexander, and their spouses “align[ed] perfectly” with FirstEnergy PAC FSL
contributions, and suggest that unidentified evidence “supports allegations that spouses
5

likely did not write separate checks or transfer funds in their own names independently,
which is legal only as a segregated act from the overall pattern of unlawful conduct.”
(Compl. ¶ 39(A) and (D).) According to plaintiffs, “[t]his fact supports the conclusion
that contributions were not the product of an independent family decision and did not
involve actual losses to the spouse as they were to be reimbursed or had already been
remunerated by FIRSTENERGY.” (Id. ¶ 39(D).) Plaintiffs conclude that the “straw
donor scheme is a linchpin anchoring the motives and machinations of a true scheme to
defraud the public, the State of Ohio, the United States and the Plaintiffs of honest
services by and through the bribery of public officials, namely a super majority of the
Ohio Supreme Court Justices.” (Id. ¶ 41.)
2.

Bribery Scheme

With respect to the related bribery scheme, the complaint provides:
This case involves the allegation of a quid pro quo between the
[FirstEnergy] Defendants . . . and five Republican Justices of the Ohio
Supreme Court . . . that may have been implicit in the beginning but
nonetheless became explicit and specific under extreme pressure of the
exigent need for a string of specific unimaginable favorable and improper
official acts. An express about face from the established proper course of a
case for the unique and exclusive benefit of large cash donors upon illegal
campaign cash influence and ex parte prodding (See statement
attributed to Attorney David J. Betras on pages 30-32) formed an
agreement to accept past, present and future cash payments as a $150,000
+ bribe and payoff for the set of unique, special, specific AND improper
official acts needed to prevail in a major civil suit [the Huff personal
injury action].7
(Compl. ¶ 13).

7

Plaintiffs allege in their complaint that the underlying personal injury action was potentially worth “TENS
to the HUNDREDS of MILLIONS of DOLLARS . . . .” (Compl. ¶ 43.)
6

Plaintiffs surmise, without support, that after the court of appeals reversed
the state trial court’s judgment in the personal injury action, FirstEnergy defendants
“maxed out collective direct cash payments” to the judicial defendants in an effort to
secure a favorable ruling in the Ohio Supreme Court. (Compl. ¶ 43.) The complaint goes
on to provide, in conclusory fashion:
On August 25th 2010 the Ohio Supreme Court, undoubtedly fully
aware of the legal problems, properly DENIED the . . . appeal. Only
two (2) of the Republican Justices targeted for influence got the message
and voted to violate the Court’s mandate in favor of the [FirstEnergy
defendants], that being Justices Cupp and Lundberg Stratton. This
event represented the first time that any case highlighting
FIRSTENERGY as a major party of interest was lost before the Ohio
Supreme Court. This event was beyond unacceptable to the [FirstEnergy
defendants]. Evidence supports the fact that the [FirstEnergy defendants]
became incensed that all their cash payments had not created a special
enough status (acted as a bribe) entitling them to an automatic review by
the [judicial defendants] they put in power even when a mere review was
not adequate.
The preponderance of evidence supports a finding by the trier of fact that
after their appeal was properly DENIED the [FirstEnergy defendants]
were unable to resist the exigent need to utilize their bought and paid for
political influence to gain access to the Republican Justices, ex parte, and
communicate explicitly and/or implicitly the unacceptable nature of their
failure to perform their end of the quid pro quo.
(Compl. ¶¶ 45, 46.) According to the complaint, the judicial defendants’ “end of the quid
pro quo” arrangement was to commit an “unprecedented reversal of the already
established proper course of the case to an improper course which simply never happens
naturally or organically.” (Id. ¶ 47.) In addition to the Ohio Supreme Court’s decision, on
reconsideration, to grant discretionary review, the complaint cites to the “principle of law
known as stare decisis[,]” unidentified statements made by third-parties to the Ohio
Supreme Court[,] the fact that plaintiffs’ former counsel was purportedly “literally
7

stunned by the conduct of the Ohio Supreme Court,” and the Ohio Supreme Court’s
discussion of “de novo” review in an unrelated case to support the alleged bribery
scheme. (Id.)
II.

STANDARD OF REVIEW
FirstEnergy defendants bring the present motion under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, maintaining that the complaint fails to state a cause
of action. To satisfy the pleading requirements of Rule 8, a complaint “must contain . . . a
short and plain statement of the claim showing that the pleader is entitled to relief[.]”
Fed. R. Civ. P. 8(a)(2). In reviewing a complaint in the context of a motion to dismiss
under Rule 12(b)(6), the court must construe the complaint in the light most favorable to
the plaintiff and accept all well-pleaded material allegations in the complaint as true. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
A complaint need not set down in detail all the particulars of a plaintiff’s
claim. However, “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (This
standard requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”) “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555); see
Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000) (the court should not accept
conclusions of law or unwarranted inferences couched in the form of factual allegations).
The complaint “must contain either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (emphasis in original)
8

abrogated on other grounds, Buckhannon Bd. & Care Home, Inc. v. Va. Dep’t of Health
and Human Resources, 532 U.S. 598 (2001)).
Because plaintiffs’ RICO claims require proof of mail or wire fraud as an
element, the plaintiffs must also satisfy the heightened particularity requirements of
Federal Rule of Civil Procedure 9(b) with respect to the elements of fraud. Heinrich v.
Waiting Angels Adoption Servs., Inc., 688 F.3d 393, 403 (6th Cir. 2012). “Rule 9(b) states
that ‘in alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.’” Id. (quoting Fed. R. Civ. P. 9(b). This includes alleging
the “time, place, and content” of the alleged fraudulent acts; the existence of “the
fraudulent scheme,” the “intent” of the participants in the scheme, and “the injury
resulting from the fraud.” Heinrich, 688 F.3d at 403 (internal quote and cite omitted). See
Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir. 1984) (upholding the district
court’s dismissal of RICO claims where the complaint failed to allege adequate
particularity).8
In considering the motion to dismiss, the Court is mindful that pro se
complaints must be held “to less stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see Estelle v. Gamble, 429 U.S.
97, 106 (1976). Nonetheless, “pro se plaintiffs are not automatically entitled to take every
case to trial.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). “As [the Sixth
Circuit] has noted, the lenient treatment generally accorded to pro se litigants has limits.”
8

In Chesbrough v. VPA, P.C., 655 F.3d 461, 466 (6th Cir. 2011), the Sixth Circuit observed that the
heightened pleading standard served “to prevent fishing expeditions, to protect defendants’ reputations
from allegations of fraud, and to narrow potentially wide-ranging discovery to relevant matters.” (internal
quotations and citations omitted).
9

Id. (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). For example, where “a
complaint consist[s] of nothing more than naked assertions, and set[s] forth no facts upon
which a court could find a violation of the Civil Rights Acts, [it] fails to state a claim
under Rule 12(b)(6).” Yusuf v. Vasser College, 35 F.3d 709, 713 (2d Cir. 1994) (internal
quotation and citation omitted); see Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)
(the court is not required to “guess as to the nature of the claims asserted”), abrogated on
other grounds, Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc).
Indeed, courts have been unwilling to “abrogate basic pleading essentials in pro se suits.”
Wells, 891 F.2d at 594.
III.

LAW AND DISCUSSION
A.

Plaintiffs’ Motion to Strike

As a preliminary matter, the Court must address plaintiffs’ motion to strike
(Doc. No. 10). FirstEnergy defendants oppose the motion (Doc. No. 14), and plaintiffs
have filed a reply (Doc. No. 16). By their motion, plaintiffs seek to strike defendants’
entire Rule 12(b)(6) motion on the grounds that it relies upon matters that are beyond the
pleadings. Specifically, plaintiffs complain that defendants have cited “extrinsic, false
and out of context matters namely the idea that Plaintiffs have been sanctioned for
‘frivolous’ litigation.” (Doc. No. 10-1 at 3, Page ID # 245.) While plaintiffs insist that
these prior sanctions were “directed at obstructing justice for the benefit of well funded
racketeers that had arranged to have litigation fixed rather than face severe punishment as
commanded in Law[,]” plaintiffs argue that this extrinsic evidence is “immaterial,” and
can only serve to distract the Court and prejudice plaintiffs. (Id.)

10

Plaintiffs also take issue with the fact that defendants represented in their
dispositive motion that the state appellate court affirmed a finding that Ohio Edison
“owed no traditional tort duty to Ms. Huff.” (Doc. No. 10-1 at 3, Page ID # 245 [quoting
Doc. No. 7-1 at 3, Page ID # 154].) Plaintiffs insist that this statement is false, arguing
that the appellate court did not conduct a de novo review, but, instead, sustained all of
Lisa Huff’s assignments of error. According to plaintiffs, this is a key issue in the present
litigation.
FirstEnergy defendants argue that “‘[a] motion to dismiss is not actually a
‘pleading’ from which matter could be struck.’” (Doc. No. 14 at 1. Page ID # 313
[quoting Clark v. Walt Disney Co., No. 2:08-cv-982, 2009 WL 1026451, at *1 (S.D. Ohio
Apr. 15, 2009) (further citations omitted)].) This Court agrees. Under Rule 12(f) of the
Federal Rules of Civil Procedure, “a court may strike only material that is contained in
the pleadings.” Fox v. Mich. State Police Dept., 173 F. App’x 372, 375 (6th Cir. 2006).
Because Fed. R. Civ. P. 7(a) confines its definition of pleadings to “(1) a complaint; (2)
an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party
complaint; and (7) if the court orders one, a reply to an answer[,]” a motion to dismiss
cannot be considered a pleading within the meaning of Rule 7(a).9 See also Fox, 173 F.
App’x at 375 (“Exhibits attached to a dispositive motion are not ‘pleadings’ within the
meaning of Fed. R. Civ. P. 7(a) and are therefore not subject to a motion to strike under
Rule 12(f).”)

9

Plaintiffs appear to concede this fact in their reply brief, though they persist in arguing that the Rule
12(b)(6) motion can be struck. (See Doc. No. 16 at 1, Page ID # 382.)
11

Moreover, it is well settled that federal courts may consider matters that
are of public record or otherwise appropriate for taking judicial notice without converting
a Rule 12(b)(6) motion to a Rule 56 motion. New England Health Care Employees
Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003); see Amini v.
Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001); Jackson v. City of Columbus, 194 F.3d
737, 745 (6th Cir. 1999), abrogated on other grounds, Swierkiewicz v. Sorema, 534 U.S.
506, 510 n.2 (2002). Court rulings and sanctions awards are matters of public record, and
matters of which a court may properly take judicial notice. 10 Buck v. Thomas M. Cooley
Law School, 597 F.3d 812, 816 (6th Cir. 2010) (“Although typically courts are limited to
the pleadings when faced with a motion under Rule 12(b)(6), a court may take judicial
notice of other court proceedings without converting the motion into one for summary
judgment.”) (citing Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th Cir.
2008)).
Thus, and for all of the reasons set forth above, plaintiffs’ motion to strike
FirstEnergy defendants’ motion to dismiss is DENIED. However, the Court finds it
unnecessary to consider whether plaintiffs have been sanctioned in other courts in order
to resolve the pending dispositive motion. The question of sanctions is not before this
Court. FirstEnergy defendants’ motion merely requests that the Court evaluate the
sufficiency of the complaint to determine whether it fails to state a cause of action under

10

The Court takes judicial notice of the fact that the state appellate court did find that Ohio Edison owed no
duty to Lisa Huff under traditional tort law. See Huff, 130 Ohio St. 3d at 199 (citing Huff v. FirstEnergy
Corp., 2009-T-0080, 2010 WL 1253754 (Ohio Ct. App. 11th Dist. Mar. 31, 2010)). Instead, the state
appellate court relied on the third-party tree maintenance contract to find the duty owed to Lisa Huff.
12

any of the pleaded statutes. Therefore, the Court shall confine itself to the analysis laid
out in Rule 12(b)(6).
B.

Plaintiffs’ Motion to Take Judicial Notice

While plaintiffs complain that FirstEnergy defendants have relied upon
matters outside of the four corners of the complaint in moving for dismissal under Rule
12(b)(6), plaintiff Reggie Huff, himself, moves the Court to take judicial notice of
matters outside the pleadings. In a motion filed May 13, 2013, Reggie Huff invites the
Court to take judicial notice of recently publicized remarks made by former Michigan
Supreme Court Justice Elisabeth Weaver (Doc. No. 23).11 These remarks, which were
made in connection with a book written by the former Michigan justice, purportedly
criticize some of her fellow jurists for allegedly engaging in various questionable
conduct. (See Doc. No. 23-2, News Article.) Plaintiff Reggie Huff also requests that the
Court take judicial notice of “the entire book” written by Weaver. (Doc. No. 23 at 2, Page
ID # 417.) He suggests that this evidence demonstrates “the conduct complained of [in
plaintiffs’ complaint] is in fact not an extreme rarity in modern times and/or in similar
situations[,]” and renders FirstEnergy defendants’ implausibility defense “frivolous.” (Id.
at 1-2, Page ID # 416-17.)
FirstEnergy defendants oppose the motion, arguing both that the remarks
and the book fail to meet the federal evidentiary criteria for judicial notice, and that the
evidence is irrelevant to the question of the plausibility of plaintiffs’ claims. Rule 201(b)
of the Federal Rules of Evidence provides that: “[t]he court may judicially notice a fact

11

This motion is fully briefed. (See FirstEnergy defendants’ opposition brief at Doc. No. 24, and plaintiff
Reggie Huff’s reply at Doc. No. 25.)
13

that is not subject to reasonable dispute because it: (1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The
Court agrees that former Justice Weaver’s attacks upon her former colleagues are neither
generally known within this Court’s jurisdiction, nor can the veracity of these matters be
accurately and readily determined from well-accepted sources. As such, the motion to
take judicial notice is DENIED.
Additionally, the Court finds it necessary to comment on the difference
between possibility and plausibility. Federal Civil Rules of Procedure 8 and 9(b) require
more than the theoretical possibility that public corruption may exist. Rather, such legal
conclusions “must be supported by factual allegations” that give rise to an inference that
the defendant is, in fact, liable for the misconduct alleged. Iqbal, 556 U.S. at 679. The
factual allegations must show more than a possibility that the defendant acted unlawfully.
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. at 678 (quoting Twombly, 550 U.S. at 557). The fact that plaintiffs perceive a general
culture of corruption in our society, and can point to unrelated instances in the news and
in other settings, brings them no closer to stating a cause of action for fraud against the
defendants in this case. With that, the Court now turns to plaintiffs’ complaint, and the
allegations against FirstEnergy defendants.

14

C.

Rooker-Feldman Doctrine

FirstEnergy defendants contend that plaintiffs’ claims should be dismissed
for lack of subject matter jurisdiction because they are barred by the Rooker-Feldman
doctrine. Specifically, they argue that plaintiffs are impermissibly attempting to
collaterally attack the Ohio Supreme Court’s decision, on reconsideration, to overturn the
state appellate court’s decision remanding the personal injury action back to the trial
court. According to FirstEnergy defendants, this Court cannot rule in plaintiffs’ favor
“without reviewing and potentially rejecting the merits of the state-court decision.” (Doc.
No. 7-1 at 7, Page ID # 158.)
Plaintiffs insist that they are not attempting to re-litigate any claims raised
in state court. While they maintain that the “final legal conclusion in state court is
wrong,” they represent that they are seeking redress for the deprivation of the right to
engage in state court in an environment free of the taint of judicial corruption. (Doc. No.
12 at 10, Page ID # 273.) As such, they maintain that their complaint puts the RookerFeldman doctrine “out of sight.” (Id.)
The Rooker-Feldman doctrine arose from two Supreme Court decisions
interpreting 28 U.S.C. § 1257(a), a statute which is “designed to prohibit end-runs around
state court judgments that might occur when parties go into federal court essentially
seeking a review of a state-court decision.”12 Kovacic v. Cuy. County Dep’t of Children
and Family Servs., 606 F.3d 301, 308 (6th Cir. 2010). Because § 1257(a) limits review of
12

See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust.
Co., 263 U.S. 413 (1923).

15

final judgments or decrees by the highest court of the State to certiorari review by the
United States Supreme Court, the Rooker-Feldman doctrine, by negative inference,
precludes such review by lower federal courts. Id. at 308-09.
Application of the Rooker-Feldman doctrine “is confined to cases of the
kind from which the doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and judgment of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.
Ct. 1517, 161 L. Ed. 2d 871 (2005) (“[t]he Rooker-Feldman doctrine merely recognizes
that 28 U.S.C. § 1331 is a grant of original jurisdiction, and does not authorize district
courts to exercise appellate jurisdiction over state-court judgments, which Congress has
reserved to this court, see § 1257(a)”). However, when a “federal plaintiff ‘present[s]
some independent claim, albeit one that denies a legal conclusion that a state court has
reached in a case to which he was a party . . . , then there is jurisdiction and state law
determines whether the defendant prevails under principles of preclusion.’” Exxon, 544
U.S. at 293 (citation and quotation omitted). See Lawrence v. Welch, 531 F.3d 364, 368
(6th Cir. 2008) (“In the wake of Exxon, this circuit has ‘distinguished between plaintiffs
who bring an impermissible attack on a state court judgment—situations in which
Rooker-Feldman applies—and plaintiffs who assert independent claims before the district
court—situations in which Rooker-Feldman does not apply.’”) (quoting Pittman v.
Cuyahoga County Dep’t of Children and Family Servs., 241 F. App’x 285, 287 (6th Cir.
2007) (further citation omitted)).

16

Thus, following the decision in Exxon, the pertinent inquiry is to
determine the “source of the injury” that is addressed by a plaintiff’s federal cause of
action. See Kovacic, 606 F.3d at 309 (applying the “source of the injury” inquiry and
rejecting the previously embraced “inextricably intertwined” standard); Lawrence, 531
F.3d at 368-69 (same); McCormick v. Braverman, 451 F.3d 382, 394-95 (6th Cir. 2006)
(same). Under this inquiry, “[i]f the source of the injury is the state court decision, then
the Rooker-Feldman doctrine would prevent the district court from asserting jurisdiction.
If there is some other source of injury, such as a third party’s actions, then the plaintiff
asserts an independent claim.” McCormick, 451 F.3d at 393.
In the present case, FirstEnergy defendants contend that plaintiffs are
seeking to “vindicate wrongs allegedly caused by the Ohio Supreme Court’s decision in
[the state court action],” and argue that “the Court cannot make that determination
without reviewing and potentially rejecting the merits of the state-court decision.” (Doc.
No. 7-1 at 7, Page ID # 158.) In support of their position, defendants cite to various
complaint allegations that suggest that the source of plaintiffs’ injury is the state court
ruling. (See Compl. ¶¶ 47(g), 63, 65, 75, 78, 81, 85.)
Plaintiffs counter, emphasizing that their claims:
in this suit are completely independent of the personal injury claims of any
state court case. Plaintiffs are resigned to the existence of the final
judgment in Ohio Supreme Court Case No. 10-0857 and its legal affect
[sic] that being the permanent destruction of their “property”. Plaintiff’s
are not asking this Court to “review and reject” that judgment or to “set
aside” the judgment as an appellate court might do. Plaintiff’s cause
therefore is not a “de facto appeal.”
(Doc. No. 12 at 9, Page ID #272.) Consistent with this position, the complaint repeatedly
provides that plaintiffs have been harmed by the deprivation of the “honest services” of
17

public officials “by and through the bribery of public officials, namely a super majority
of the Ohio Supreme Court Justices.” (Compl. ¶ 41; see Compl. ¶ 63 [harmed “by
depriving Plaintiffs and the Citizens of Ohio of the honest services of (Nominal
Defendants) Ohio Public Officials free of corruption and unlawful influence.”]; Compl.
¶¶ 65, 75, 78, 81, 85 [same].)
Courts are far from uniform in their treatment of similar allegations. In
Karas v. Robbins, Civ. A. No. 08-5264 (SRC), 2009 WL 2912778 (D. N.J. Sept. 9,
2009), a plaintiff filed a federal action alleging that her rights to a fair adjudication of her
state landlord-tenant were violated by various state court judges, who allegedly accepted
bribes and kickbacks in exchange for a ruling in favor of the plaintiff’s tenants. The court
found that the Rooker-Feldman doctrine barred the federal action because the federal
action was “inextricably intertwined” with the prior state action, noting that a ruling by
the district court in favor of plaintiff would “have the effect of overruling and/or vacating
the orders and judgments rendered by the state court judges during the course of the state
court action.” 2009 WL 2912778, at *5. Similarly, in Castiglione v. Papa, 1:09-CV-0967
(LEK/DRH), 2010 WL 2044688 (N.D. N.Y. May 24, 2010), a plaintiff brought suit
against state judges and private individuals alleging that defendants conspired to deprive
her of her rights in probate to the proceeds of her father’s estate. In imposing a RookerFeldman doctrine bar to the federal action, the district court reasoned that the federal
claims were merely asserted as “a way of explaining the state court decisions” that
plaintiff was requesting that the federal court review and reject. 2010 WL 2044688, at *7,

18

aff’d, 423 F. App’x 10 (2d Cir. 2011).13 Nonetheless, in reaching this conclusion, the
court stressed that the allegations of conspiracy and bribery were “wholly conclusory,
completely unsupported by facts[.]” Id.
The Seventh Circuit reached a contrary result in Loubser v. Thacker, 440
F.3d 439 (7th Cir. 2006). There, the plaintiff alleged that defendants, her former husband,
judges, court reports and others involved in her divorce proceedings, conspired to defraud
her by corrupting those state court proceedings. In reversing the district court’s dismissal,
the court reasoned that “[t]he claim that a defendant in a civil rights suit ‘so far succeeded
in corrupting the state judicial process as to obtain a favorable judgment’ is not barred by
the Rooker-Feldman doctrine.” Loubser, 440 F.3d at 441 (citing Nesses v. Shepherd, 68
F.3d 1003, 1005 (7th Cir. 1995)). See also Davit v. Davit, 173 F. App’x 515, 517 (7th
Cir. 2006) (reversing the district court’s finding that Rooker-Feldman barred a civil
RICO claim that defendants conspired to deprive plaintiff of a fair state court domestic
relations proceeding, but affirming the district court’s alternative ruling that the
complaint failed to state a cause of action under Rule 12(b)(6)).
A district court in the Northern District of Alabama was faced with
complaint allegations that contained the same general flavor as those presented in
plaintiffs’ complaint. Blackburn v. Calhoun, No. 207CV166, 2008 WL 850191 (N.D.

13

The court found that “[w]hile Plaintiff seeks to frame her current action in terms of constitutional
violations and various claims not before the state court, this Court cannot overlook the plain fact that her
Amended Complaint consists of an array of reasons why her father’s will should not have been admitted to
probate. Plaintiff is essentially complaining that she suffered a lesser inheritance than she was rightfully
due as a result of the state court’s conclusion regarding the authenticity of the will and codicil. Insofar as
she seeks a determination from this Court that the will and codicil were not authentic, but rather the result
of forgery and fraud committed primarily by [certain defendants], Plaintiff is asking this court to review
and reject the state court’s decision to allow probate of the will.” Id. at *21.
19

Ala. Mar. 4, 2008). There, the plaintiff alleged a civil RICO conspiracy that involved
“corrupt judges” throwing cases in favor of attorneys who rewarded the judges with “inkind” benefits.14 Id. at *11. He further alleged that his state court domestic relations
proceeding fell victim to this RICO scheme, which had the effect of depriving him of his
right to the honest services of the judge that presided over his state court action. As
predicate acts to support RICO, plaintiff cited bribery under Alabama law, extortion,
money laundering, mail fraud and wire fraud. The court held that Rooker-Feldman did
not bar the plaintiff’s claims, underscoring the fact that the plaintiff was not challenging
the state court domestic relations judgment against him, but merely pointed to them as
“RICO byproducts.” Blackburn, 2008 WL 850181, at *21.
Like the plaintiff in Blackburn, plaintiffs insist that the source of their
injury is the deprivation of a state judicial process free of the taint of public corruption,
and that the denial of Lisa Huff’s personal injury claim is merely a “RICO proceed.”
(Doc. No. 12 at 9, Page ID # 272.) By alleging the deprivation of the honest services of
the judicial defendants through bribery, the Court finds that plaintiffs have identified an
injury separate and apart from the rulings issued in state court.15 The fact that the
complaint’s primary focus is on the alleged erroneous nature of the state high court’s
resolution of the underlying personal injury case makes this an exceedingly close call.
Nonetheless, the Court believes that the Sixth Circuit’s practice of “tighten[ing] the

14

The judges and the co-conspirator attorneys were all members of an exclusive hunting club. It was
alleged that, as part of the conspiracy, the attorneys “paid” the judges for their favoritism by absorbing the
club dues owed by the judges. Id. at *11.
15

While the Court finds that this is a separate injury for purposes of Rooker-Feldman analysis, it also
finds—as set forth infra—that the injury is not cognizable under civil RICO. Nonetheless, the Court finds it
advantageous to treat issues of jurisdiction and cognizability separately.
20

scope” of the doctrine and its admonition that the source of the injury controls place the
Rooker-Feldman doctrine “out of reach” in this case. See, generally, Kovacic, 606 F.3d at
309.
D.

Federal and State RICO Claims

FirstEnergy defendants next contend that plaintiffs’ claims must be
dismissed for failure to state a cause of action. Plaintiffs assert substantive federal RICO
claims under 18 U.S.C. §§ 1962(b) and (c). Under § 1962(b), plaintiffs must plead facts
tending to establish that FirstEnergy defendants “(1) acquired or maintained (2) through a
pattern of racketeering activity or the collection of an unlawful debt (3) an interest in or
control of an enterprise (4) engaged in, or the activities of which affect, interstate or
foreign commerce.” Advocacy Org. for Patients & Providers Auto Club Ins. Ass’n, 176
F.3d 315, 321-22 (6th Cir. 1999) (internal quotation and citation omitted). To state a civil
RICO claim under § 1962(c), plaintiffs must plead the following elements: “(1) conduct
(2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima. S.P.R.L. v.
Imrex Co., Inc., 473 U.S 479, 496 (1985); Moon v. Harrison Piping Supply, 465 F.3d
719, 723 (6th Cir. 2006).
1.

Racketeering Activity

“Racketeering activity” is defined in 18 U.S.C. § 1961(1) as any one of a
numerous list of state and federal offenses that qualify as racketing activity. Plaintiffs
assert that FirstEnergy defendants engaged in racketing activity by committing mail and
wire fraud, in violation of 18 U.S.C. § 1341 and § 1343, and honest services mail and

21

wire fraud, in violation of § 1346. (Compl. ¶ 61.)16 FirstEnergy defendants contend that
plaintiffs have failed to adequately plead these predicate acts.
a.

Honest Services Fraud

Plaintiffs allege that FirstEnergy defendants employed two mechanisms to
deprive plaintiffs of their right to honest services of the judicial defendants: a straw-man
donor scheme and a bribery scheme. A claim of honest-services fraud must allege the
fraudulent deprivation of honest services through a bribery or kickback scheme. Skilling
v. United States, 130 S. Ct. 2896, 2931 (2010). Therefore, a straw-man donor scheme,
whose aim was allegedly to circumvent campaign donation limitations, cannot support a
claim of honest services fraud. See United States v. Turner, 465 F.3d 667, 669 (6th Cir.
2006) (use of “straw” donor scheme to avoid the personal campaign contribution limit
constituted a scheme to deprive citizens of the right to honest elections and not the right
to the honest services of elected officials) (emphasis added).
However, a bribery scheme may support a claim for honest services fraud,
Skilling, 130 S. Ct. at 2931, so long as a plaintiff pleads facts establishing sufficient
grounds to infer “a quid pro quo”—that “the payor provided a benefit to a public official
intending that he will thereby take favorable official acts that he would not otherwise
take.” United States v. Wright, 665 F.3d 560, 568 (3d Cir. 2012). Where, as here, the
alleged bribe is a campaign contribution, the facts must show that the contribution was
given “in return for a specific official action . . . No generalized expectation of some
16

While the complaint only identifies as predicate acts mail fraud and wire fraud, considering the
complaint as a whole, and applying a liberal interpretation appropriate for pro se complaints, the Court
finds that the complaint also pleaded honest services mail and wire fraud as predicate acts.

22

future action will do.” United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011);
see United States v. Terry, 707 F.3d 607, 613 (6th Cir. 2013) (“A donor who gives money
in the hope of unspecified future assistance does not agree to exchange payments for
actions. No bribe thus occurs if the elected official later does something that benefits the
donor. On the other hand, if the donor . . . makes a contribution so that an elected official
will ‘do what I ask him to do,’ and the official . . . accepts the payment with the same
understanding, the donor and the official have formed a corrupt bargain.”) (internal
record citation omitted).
Here, plaintiffs allege the existence of a quid pro quo agreement whereby
the judicial defendants agreed to take “unique, special, specific AND improper official
acts needed to prevail in a major civil suit [the Huff personal injury suit][,]” in exchange
for a $150,000 bribe. (Compl. ¶ 13.) Such an agreement, properly supported by factual
allegations, would seem to satisfy the quid pro quo necessary to mark the “difference
between a run-of-the-mine contribution and a bribe.” Terry, 707 F.3d at 613.
Nonetheless, the only facts offered in support of this conclusory allegation
include the existence of campaign contributions, the reversal, on reconsideration, by the
Ohio Supreme Court, the fact that this ruling benefited FirstEnergy defendants, plaintiffs’
belief that such a ruling was “unprecedented”17 and legally erroneous,18 and that
17

FirstEnergy defendants properly observe that the Ohio Supreme Court often considers matters on
reconsideration; a fact to which this Court may take judicial notice (See Doc. No. 7-1 at 157 [collecting
examples of 20 cases in which the Ohio Supreme Court granted motions for reconsideration in the last year,
alone].)
18
Plaintiffs point to a number of extraneous rulings and events that they believe support a finding that
reversal on reconsideration was legally erroneous. For example, plaintiffs note that, in another case, the
Ohio Supreme Court is alleged to have made the reasonable representation that, upon de novo review, it
does not defer to the trial court on issues of law. (Compl. ¶ 47(g)). Of course, the mere fact that the Ohio
Supreme Court’s de novo review led to a result consistent with that originally taken by the trial court does
not establish an abdication of judicial responsibility, let alone collusion.
23

plaintiffs’ counsel was “literally stunned” by the Ohio Supreme Court’s ruling.19 (Compl.
¶ 47.) Close-in-time contributions, standing alone, will not suffice to establish a quid pro
quo agreement. Siegelman, 640 F.3d at 1171. Moreover, the fact that plaintiffs and their
counsel disagree with the ruling is insufficient to establish that it was the unlawful result
of bribery. See Dennis v. Sparks, 449 U.S. 24, 28 (1980); Castiglione, 2010 WL 2044688,
at *10 (that the ruling in state court favored the defendants, and therefore is consistent
with a bribery scheme “falls far short of stating a plausible claim”). If such were the case,
every dissatisfied state court litigant could maintain a bribery action in federal court.
Plaintiffs attempt to fill in the gaps with additional conclusory allegations
that the reversal “smacks of a payoff[,]” that plaintiffs are “forced to suspect” that “an
unlawful ex parte influence was involved” in the ruling, and that FirstEnergy defendants
“were unable to resist the exigent need to utilize their bought and paid for political
influence to gain access to the [judicial defendants], ex parte, and communicate explicitly
and/or implicitly the unacceptable nature of their failure to perform their end of the quid
pro quo.”20 (Compl. ¶¶ 10, 46.) On a Rule 12(b)(6) motion, however, these conclusory
allegations must be disregarded. Iqbal, 556 U.S. at 678.
In opposition to the motion to dismiss, plaintiffs also point to unrelated
criminal public corruption trials over which this Court has presided in the past, their

19

Additionally, plaintiffs reference “willfully materially false representations to the Supreme Court of
Ohio” by certain non-party individuals, but fail to specify with particularity the nature of the statements.
(Compl. ¶ 47(f)).
20
The only ex parte communications plaintiffs allude to in their complaint involve an alleged text message
exchange between their former counsel and non-party former justice Yvette McGee Brown, in which
Brown allegedly indicated that she believed that one of her fellow justices was rude during oral argument,
and Attorney Betras’s comment that it was his belief that Brown was the most attractive justice on the
court. (Compl. ¶¶ 50-51.) While this exchange may suggest possible inappropriate conduct on the part of
plaintiffs’ former counsel, it does not support allegations of a quid pro quo bribery scheme.
24

suspicions as to why the Ohio Supreme Court voted unanimously to reverse the court of
appeals when only five justices voted to reconsider the appeal, and a 2003 law review
article that plaintiffs believe demonstrates that courts engage in “docket clearing”
techniques. (Doc. No. 12 at 2-14, Page ID # 265-277.) The existence of evidence of
unrelated public and judicial corruption, however, cannot support a complaint against
FirstEnergy defendants. Likewise plaintiffs’ views on the justice system do not excuse
the pleading requirements in federal court.
At its core, plaintiffs’ allegations of honest services fraud comprise
nothing more than innocuous facts mixed with conclusory allegations. The complaint is
wholly lacking in any factual support for plaintiffs’ suspicions of fraud. See Bishop v.
Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (“Even under Rule 12(b)(6), a
complaint containing a statement of facts that merely creates a suspicion of a legally
cognizable right of action is insufficient.”) To allow this case to go forward on these
allegations would unnecessarily expose defendants’ reputations to unsubstantiated
allegations of wrongdoing and amount to condoning a “fishing expedition in order to find
a cause of action.” Hollowell v. Cincinnati Ventilating Co., 711 F. Supp. 2d 751, 769
(E.D. Ky. 2010) (quoting Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 204 (3d Cir.
2006)); see Chesbrough, 655 F.3d at 466. Thus, the Court concludes that the complaint
fails to satisfy the general pleading requirements of Rule 8, and the more demanding
pleading requirements of Rule 9(b) to establish the predicate acts of honest services
fraud.
Traditional Mail and Wire Fraud
Plaintiffs also attempt to establish the existence of traditional mail and
25

wire fraud as predicate acts for their RICO claims. Mail fraud consists of “(1) a scheme
to defraud, and (2) use of the mails in furtherance of the scheme.” United States v.
Jamieson, 427 F.3d 394, 402 (6th Cir. 2005). “The elements of wire fraud are essentially
the same except that one must use the wires in furtherance of the scheme to defraud.”
Heinrich, 668 F.3d at 404 (citation omitted).
For purposes of mail and wire fraud, the scheme to defraud must include
an intent to “deprive another . . . of money or property[.]” See United States v.
Cunningham, 679 F.3d 355, 370 (6th Cir. 2012). According to the complaint, FirstEnergy
defendants intended to deprive plaintiffs of Lisa Huff’s personal injury claim. (Compl. ¶
63.) FirstEnergy defendants argue that, “[e]ven if a civil claim could be money or
property for purposes of §§ 134 and 1343,” plaintiffs have failed to allege facts that
would plausibly suggest that the property was lost due to alleged fraud. (Doc. No. 7-1 at
12, Page ID # 163.) Plaintiffs offer the same conclusory allegations relating to the quid
pro quo bribery scheme that failed to plausibly support a claim for honest service fraud to
support their traditional mail and wire fraud claims, which the Court has already
determined fall far short of satisfying Rule 8 and Rule 9(b).
Additionally, plaintiffs’ allegations regarding the straw-donor scheme fail
to state a claim for traditional mail or wire fraud because, “[i]n the context of election
fraud [through a straw-donor scheme], the government and citizens have not been
deprived of any money or property,” but “have simply lost the intangible right to elect the
official . . . .” Turner, 465 F.3d at 680. Indeed, plaintiffs do not even allege that the strawdonor scheme was “intend[ed] to deprive” them—or someone else—“of money or
property.” Cunningham, 679 F.3d at 370 (internal quotation marks omitted). To the
26

contrary, they assert that the intent was “to thwart the . . . contribution limits” (Compl. ¶
38) and “to influence the judicial candidates[.]” (Id. ¶ 39(I)).Thus, the complaint fails to
state a claim for mail or wire fraud.21
2.

Pattern of Racketeering Activity

To establish a “pattern of racketeering activity,” a plaintiff must allege “at
least two predicate acts of racketeering activity occurring within a ten-year period[,]”
Moon, 465 F.3d at 723, and “show that the racketeering predicates are related, and that
they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tele.
Co., 492 U.S. 229, 239 (1989) (emphasis in original). “Continued activity” may be plead
by demonstrating “a series of related predicates extending over a substantial period of
time” (“closed continuity”), or “past conduct that by its nature projects into the future
with a threat of repetition” (“open-ended continuity”). Moon, 465 F.3d at 724 (internal
quotation and citation omitted).
With respect to closed continuity, “racketeering activity lasting only ‘a
few weeks or months and threatening no future criminal conduct’ is insufficient.” Moon,
465 F.3d at 726 (quoting H.J. Inc., 492 U.S. at 242). FirstEnergy defendants argue that,
even if plaintiffs had established the existence of two predicate acts, they have alleged
“[n]o other schemes, purposes, or injuries” beyond those related to the underlying state
personal injury case. (Doc. No. 7-1 at 165 [quoting Moon, 465 F.3d at 725].)
In Venmco, Inc. v. Camardella, 23 F.3d 129, 134-35 (6th Cir.), cert.
21

The Court observes that the complaint fails to plead with any particularity the dates on which the mails or
wires were utilized and by whom. (See Compl. at ¶ 42 [alleging simply “extensive use of the mails and
wires”].) The Court could, in its discretion, permit plaintiffs to amend to “flesh out” the particularities of
these incidents. Nevertheless, for reasons to be discussed shortly, plaintiffs have more fundamental
problems with the allegations in the complaint that cannot be cured by amendment.
27

denied, 513 U.S. 1017 (1994), the Sixth Circuit held that a single scheme to defraud,
growing out of a contract dispute, did not have the necessary continuity to support a
finding of a pattern of racketeering activity. While the court noted that the existence of a
single fraudulent scheme did not “automatically preclude the finding of a pattern,” the
court found that the single fraudulent scheme spanning 17 months was insufficient to
support a RICO claim. Id. at 134-35; see Polzin v. Barna and Co., No. 3:07-CV-127,
2007 WL 2710705, at *8 (E.D. Tenn. Sept. 14, 2007) (single fraudulent scheme
involving contract dispute did not support close-ended continuity).
While the complaint alleges, in conclusory fashion, that the personal
injury lawsuit “was not the only future legal issue” that FirstEnergy defendants were
hoping to influence, no other litigation is identified, and the remainder of the complaint
focuses exclusively on the now completed state court personal injury action. (Compl. ¶¶
37, 41, 43-47.) This one alleged fraudulent scheme, which affording a liberal construction
to plaintiffs’ complaint lasted 14 months and had as its sole objective “to have the Ohio
Supreme Court destroy the suit no matter what path it took in getting to that Court[,]” see
Compl. ¶ 37, is insufficient to show “long term criminal conduct.” See H.J. Inc., 492 U.S.
at 242; see, e.g., Moon, 465 F.3d at 726 (single scheme to terminate the plaintiff’s own
worker’s compensation benefits did not establish close-ended continuity).
Likewise, the Court finds that plaintiffs have insufficiently plead factual
allegations that would support a finding of open-ended continuity. “While closed-end
continuity looks at a substantial but finite period of time over which the alleged predicate
acts took place, open-ended continuity contemplates short-term racketeering activity that
could continue into the future.” HMV Properties, LLC v. IDC Ohio Mgt., LLC, No. 2:0828

cv-895, 2011 WL 53166, at *9 (S.D. Ohio Jan. 6, 2011) (citing Thompson v. Paasche,
950 F.2d 306, 311 (6th Cir. 1991)). Here, plaintiffs have alleged a terminable scheme that
played out to its conclusion with the Ohio Supreme Court’s adverse ruling in 2011.
Because plaintiffs have failed to allege any facts indicating that the scheme (either
through bribery or “straw-donor” contributions) would continue into the future, they
cannot establish open-ended continuity. See, e.g., Intergo, LLC v. Switzerland & AM.
Trust, LLC, No. 3:10CV2519, 2012 WL 671415, at *3 (N.D. Ohio Feb. 29, 2012). Thus,
the Court finds that the complaint fails to set forth allegations to support a pattern of
racketeering activity.
3.

Existence of an Enterprise

The RICO statute defines an “enterprise” to include “any individual,
partnership, corporation, association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity[.]” 18 U.S.C. § 1961(4). The
enterprise must be separate from the “‘person . . . participating in an enterprise’s affairs,’”
and thus “a corporation cannot be named as the liable ‘person’ and simultaneously fulfill
the ‘enterprise’ requirement as well.” Puckett v. Tenn. Eastman Co., 889 F.2d 1481, 1489
(6th Cir. 1989).
The complaint alleges that each of FirstEnergy, Ohio Edison, and
FirstEnergy PAC is “an enterprise within the meaning of” 18 U.S.C. § 1961(4). (Compl.
¶¶ 56-58, 67-69.) Because these same entities are also defendants in this action and
allegedly engaged in the harm the complaint attempts to address, the complaint fails to
establish “distinct entities that represent the ‘person’ and the ‘enterprise[.]’” Puckett, 889
F.2d at 1489, and, consequently, the claim fails on this basis, as well.
29

4.

Standing to Bring RICO

FirstEnergy defendants insist that plaintiffs lack standing to bring a civil
RICO claim under federal law because they have not alleged a cognizable injury relating
to their business or property. A plaintiff claiming civil RICO violations “only has
standing if . . . he has been injured in his business or property by the conduct constituting
the violation.” Sedima, 473 U.S. at 496; see 18 U.S.C. § 1964(c) (limiting recovery to
those who have been “injured in [their] business or property by reason of” racketeering).
While plaintiffs assert, in conclusory fashion, that they have been “injured in their
business and/or property,” the only interest they allege has been damaged is the interest
in the personal injury action and underlying personal injuries, themselves. FirstEnergy
defendants argue these alleged injuries cannot bestow standing under the RICO statute.
“Whether a person has a ‘property’ interest is traditionally a question of
state law.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012) (citing
Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982)). For that reason, “‘[i]njury to
property’ for RICO purposes is generally determined by state law.” Isaak v. Trumbull
Sav. & Loan Co.,117 Ohio St. 3d 192, 223 (6th Cir. 1999) (internal citation omitted). The
Ohio Supreme Court has generally rejected the notion that an unliquidated personal
injury claim is a property interest. See Groch v. Gen’l Motors Corp., 117 Ohio St. 3d 192,
222-23 (Ohio 2008).22 Courts in other jurisdictions agree and have concluded that the
“loss of an opportunity to pursue an unliquidated tort claim is not an injury to business or
22

In Groch, the court found that a claim that could not accrue because of the passing of the ten-year repose
period was not an existing, identifiable property interest, whereas a settlement in a tort action was. Id. at
223.

30

property” as required to establish RICO standing. Wais v. Mackay, No. 09-1103, 2009
WL 4884204, at *11 (E.D. Pa. Dec. 15, 2009) (further citation omitted); Circiello v.
Alfano, 612 F. Supp. 2d 111, 115 (D. Ma. 2009) (collecting cases and noting that, “[t]he
few courts to have addressed the issue have uniformily concluded that damages from an
unliquidated personal injury lawsuit are not ‘property’ within the meaning of the RICO
statute”).
Likewise, recovery for personal injuries “is not allowed under civil RICO
because it is not an injury to business or property.” Brown v. Cassens Transp. Co., 675
F.3d 946, 959 (6th Cir. 2012); James v. Meow Media, Inc., 90 F. Supp. 2d 798, 816
(W.D. Ky. 2000) (personal injuries and mental suffering were not property interests
under RICO). Moreover, “pecuniary losses proximately resulting from a personal injury
caused by a RICO violation . . . are also not recoverable[.]” Brown, 675 F.3d at 959. As
such, neither plaintiffs’ “economic hardship,” nor their assertion of “lost opportunity” are
compensable because both are “nothing more than pecuniary losses flowing from . . . a
personal injury.”23 Evans v. City of Chicago, 434 F.3d 916, 931 (7th Cir. 2006).
5.

Ohio Substantive RICO

Plaintiffs also bring a substantive RICO claim under Ohio law. Ohio’s
statute “is patterned after the federal RICO Act[,]” and therefore, “analysis of the [Ohio
statute] is analogous to that of the federal RICO statute.” Powell v. Wal-Mart Stores, Inc.,

23

Additionally, plaintiffs cannot establish standing based on alleged deprivation of “honest services,”
inasmuch as this is not considered an injury to property for purposes of civil RICO. See United States v.
Kincaid-Chauncey, 556 F.3d 923, 941 n.14 (9th Cir. 2009); Hollander v. Flash Dancers Topless Club, 173
F. App’x 15, 17-19 (2d Cir. 2006); see also Turner, 465 F.3d at 680 (“In the context of election fraud, the
government and citizens have not been deprived of any money or property because the relevant salary
would be paid regardless of the fraud.”)
31

No. 1:06CV00603, 2007 WL 987321, at *2 (N.D. Ohio Mar. 30, 2007), aff’d, 303 F.
App’x 284 (2008). Plaintiffs incorporate the same factual allegations offered in support
of their federal RICO claims into their state RICO claim under Ohio Rev. Code §
2923.32 (Compl. ¶ 66), and offer conclusory allegations to support the same bribery and
straw-donor contribution schemes that they attempt to use to support their federal RICO
claims. (Compl. ¶ 74.) Thus, plaintiffs’ Ohio RICO claim is subject to dismissal for the
same reasons that their federal claims fail to state a cause of action.
6.

RICO Conspiracy

FirstEnergy defendants also maintain plaintiffs have failed to allege a
RICO conspiracy under federal and Ohio law. “To plausibly state a claim for a violation
of 18 U.S.C. § 1962(d), plaintiffs “must successfully allege all the elements of a RICO
violation, as well as alleg[e] ‘the existence of an illicit agreement to violate the
substantive RICO provisions.’”24 Heinrich, 668 F.3d at 393 (quoting United States v.
Sinito, 723 F.2d 1250, 1260 (6th Cir. 1983)).
The only allegation connecting FirstEnergy defendants to the judicial
defendants provides that these parties “formed an agreement to accept past, present and
future cash payments as a $150,000 + bribe and a payoff for . . . improper acts.”
(Compl. ¶ 13.) This conclusory allegation fails to allege “when, where, or between whom
any alleged illicit agreement was made.” See Mierzwa v. Safe & Secure Self Storage,
LLC, 493 F. App’x 273, 276 (3d Cir. 2012) (“[C]onclusory allegations that defendants
24

Ohio Rev. Code § 2923.34(B) authorizes a civil action for conspiracy to violate the Ohio RICO
provisions. While the Ohio statute is broader than the federal RICO conspiracy statute, see State v. Siferd,
151 Ohio App. 3d 103, 119 (Ohio Ct. App. 3d Dist. 2002), it, like its federal counterpart, requires proof that
the conspiracy was designed to engage in racketeering activity. See Nat’l Cent. Fin. Enters., Inc. v. J.P.
Morgan Chase Bank, 604 F. Supp. 2d 1128, 1157 (S.D. Ohio 2009).
32

conspired for the purpose of defrauding him are simply inadequate to plead a valid
[RICO conspiracy] claim.”). Moreover, the complaint fails to allege that any of the
individual FirstEnergy defendants (Vespoli, Alexander and Pearson) ever interacted in
any way with the judicial defendants to create an understanding that favorable rulings
were a condition of campaign contributions.25 Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 178-79 (3d Cir. 2010), cert denied, 131 S. Ct. 1798
(2011). Thus, even if plaintiffs had sufficiently plead the elements of substantive RICO,
the failure to adequately allege a RICO conspiracy would doom this claim. Ultimately,
the Court must conclude that plaintiffs have failed, as a matter of law, to state claims
under federal and Ohio law for racketeering and conspiracy.
E.

Section 1983 Claim

In Claim Six of the complaint, plaintiffs allege due process claims under
42 U.S.C. § 1983 against defendants Vespoli, Alexander and Pearson. (Doc. 1 at 41-42).
Specifically, plaintiffs claim as follows:
The conduct of Defendants VESPOLI, ALEXANDER &
PEARSON involving corruption of the legal process, collusion,
destruction of discoverable evidence and Bribery of Ohio
Judicial Officials all support Plaintiffs charge of repeated willful
violation or derogation of their 5th + 14th Amendment right to due
process and the right to possess and protect the full value of their
property. Said derogation involving complete obstruction of the
fundamental right to appear and litigate civil claims and the right
to defend and protect one’s person, property and livelihood by way
of court petition for relief.
All

of

the

material

conduct

of

25

Defendants

VESPOLI,

Conclusory allegations that Vespoli and Alexander, at some unspecified point in time, “devised a
scheme” to bribe the judicial defendants through the use of bribes and straw-donor contributions are
insufficient to tie the defendants to the same conspiracy. See Twombly, 550 U.S. at 556 (“[A]n allegation of
parallel conduct and a bare assertion of conspiracy will not suffice.”)
33

ALEXANDER & PEARSON detailed in part herein, both
individually and in collusion, resulting in direct and indirect
control of the courts wherein the authority of the courts was
converted to the personal control and use of the Defendants
VESPOLI, ALEXANDER & PEARSON. Said conduct making
Defendants VESPOLI, ALEXANDER & PEARSON actual
and/or de facto state actors by controlling both sides of litigation
eliminating and/or seizing the power of the state to insure due
process and dispense justice.
(Compl. ¶¶ 83-84.)
To set forth a cognizable § 1983 claim, a plaintiff must establish that (1)
he was deprived of a right secured by the Constitution or the laws of the United States,
and (2) the deprivation was caused by a person acting under color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988); Simescu v. Emmet County Dep’t of Soc. Services, 942
F.2d 372, 374 (6th Cir. 1991). Here, defendants Vespoli, Alexander and Pearson are
private parties.
In general, a plaintiff cannot assert a claim under §1983 against a private
party based on private conduct “no matter how discriminatory or wrongful” the party’s
conduct may have been. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003). However,
“[i]f a private party has conspired with state officials to violate constitutional rights, then
that party qualifies as a state actor and may be liable pursuant to § 1983 . . . .” Cooper v.
Parrish, 203 F.3d 937, 952 n.2 (6th Cir. 2000).
The Supreme Court has specifically ruled that where a plaintiff alleges
“that an official act of the defendant judge was the product of a corrupt conspiracy
involving bribery of the judge . . . private parties conspiring with the judge were acting
under color of state law.” Dennis, 449 U.S. at 28. Yet, the Supreme Court has cautioned
that “merely resorting to the courts and being on the winning side of a judgment does not
34

make a party a co-conspirator or a joint actor with the judge.” Id.
Thus, in the wake of the Supreme Court’s ruling in Iqbal, district courts
afford no assumption of truth to a plaintiff’s bare allegations that a judicial decision is the
result of private parties conspiring with the judges to deprive a plaintiff of his
constitutional rights. See, generally, Iqbal, 556 U.S. at 678. While plaintiffs argue that
they need not demonstrate an illegal quid pro quo agreement made with “express terms,”
they still must come forward with factual allegations that take their claim from possible
to plausible. “[A]n allegation of parallel conduct and a bare assertion of conspiracy will
not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory
allegation of agreement at some unidentified point does not supply facts adequate to
show illegality.” Twombly, 550 U.S. at 556-57; see Gutierrez v. Lynch, 826 F.2d 1534,
1538 (6th Cir. 1987) (“It is well settled that conspiracy claims must be pled with some
degree of specificity and that vague and conclusory allegations unsupported by material
fact will not be sufficient to state a claim under § 1983.”) Plaintiffs rely on the same
speculative allegations of collusion and conspiracy to support their § 1983 action that
they offered in support of their RICO claims. (Compl. ¶ 82.) Plaintiffs allege no facts
that, if viewed in the light most favorable to plaintiffs, would support a finding that
FirstEnergy defendants entered into a conspiracy with the judicial defendants to deprive
plaintiffs of their civil rights through bribery. Plaintiffs’ § 1983 claim is also subject to
dismissal.
F.

Motion to Amend

Plaintiffs seek leave to amend their complaint to allege “potentially
material events that have occurred since the original file date of this cause and to add
35

material information regarding tangible damages to Plaintiff’s property, an implicit quid
pro quo and to correct a few minor clerical errors, etc.” (Doc. No. 11 at 1, Page ID #
250.) FirstEnergy defendants oppose any effort to amend on futility grounds (Doc. No.
13), and plaintiffs have filed a reply (Doc. No. 17).26 “[G]enerally, ‘[i]f it is at all possible
that the party against whom the dismissal is directed can correct the defect in the pleading
or state a claim for relief, the court should dismiss with leave to amend.’” Brown v.
Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011) (quoting 6 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 1483 (3d ed.
2010)). Dismissal with leave to amend is particularly preferable “‘where deficiencies in a
complaint are attributable to oversights likely the result of an untutored pro se litigant’s
ignorance of special pleading requirements[.]’”27 Brown, 415 F. App’x at 614-15
(quoting Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990)). Nevertheless, it
remains the case that “leave to amend should be denied if the amendment . . . would be
futile.” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 495 (6th Cir. 2011)
(internal quotation omitted); Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593,
605 (6th Cir. 2001). “Amendment of a complaint is futile when the proposed amendment
would not permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cnty.,

26

In their brief in opposition to FirstEnergy defendants’ motion to dismiss, plaintiffs also indicate that, “[i]f
Plaintiffs are allowed to amend and supplement, the elements of an unlawful quid pro quo and bribery
affected by this stunning information will be pled in allowing Defendants a full opportunity to defend
against their own argument that just backfired.” (Doc. No. 12 at 9, Page ID # 272.)
27
The Court acknowledges that an exception to the particularity requirement of Rule 9(b) exists where the
relevant facts “lie exclusively within the knowledge and control of the opposing party . . . .” Craighead v.
E.F. Hutton & Co., Inc., 899 F.2d 485, 489 (6th Cir. 1990) (citation omitted). In such a case, it would be
inappropriate to dismiss an action pursuant to Rule 9(b) when the facts underlying the claims are within the
defendant’s control, especially when no discovery has been conducted. See Michaels Bldg. Co. v.
Ameritrust Co., N.A., 848 F.2d 674, 680 (6th Cir. 1988). However, plaintiffs have failed to allege that
FirstEnergy defendants are in control of any records that arguably could provide the factual allegations
needed to rescue their claims from dismissal.
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408 F.3d 803, 817 (6th Cir. 2005).
Although this Court construes plaintiffs’ pro se motion liberally, it finds
that it would be futile for plaintiffs to amend to add the factual allegations and legal
arguments detailed in their motion to amend. Plaintiffs wish to amend the complaint to
add five categories of allegations. First, they seek to amend to allege that former Ohio
Supreme Court Justice Yvette McGee Brown was recently made a partner at Jones Day,
the law firm defending the present action on behalf of FirstEnergy defendants. Plaintiffs
argue that former Justice McGee Brown is “heavily involved in this case[,]” and the fact
that she “effectively works for the Defendants and their counsel she is no longer free to
testify to anything that could in the slightest way affect the Defendant[’]s defense of this
case.”28 (Doc. No. 17 at 2, Page ID # 386.) Plaintiffs suggest that Justice McGee Brown’s
association with Jones Day would result in the firm “attempt[ing] to obstruct access to a
key witness[,]” and claim that this appointment is “no insignificant event especially in the
context of recent public comments Justice McGee Brown has made concerning the
[judicial defendants] to this suit.” (Doc. No. 11 at 1, Page ID # 250.)
While the Court does not share plaintiffs’ concerns that this appointment
would compromise Justice McGee Brown’s ability to participate (should she be called) as
a witness in this case, the more pressing problem for plaintiffs is that they fail to
demonstrate how this fact could be used to support and bolster their otherwise deficient
claims. There are no allegations that Justice McGee Brown was a party to the alleged
28

Plaintiffs further offer, gratuitously and in conclusory fashion, that “[a] Federal Judge is not so naïve as
to not know what is going on here and maybe that is the point. Spread the misconduct out so broadly that it
becomes too big to fail and too scary even for a Federal Judge to be able to control and allow justice to
prevail. Which is exactly why the Defendants must not be allowed to benefit in anyway from this
extraordinary misconduct and should properly pay a heavy price for it.” (Doc. No. 17 at 2, Page ID # 386.)
37

conspiracy (only that plaintiffs’ own counsel exchanged unrelated text messages with her
regarding the alleged rudeness of another justice and Ms. McGee Brown’s personal
appearance), nor would her recent employment decision in any way cure any of the
complaint deficiencies outlined above.
Second, plaintiffs seek to amend to add the details relating to the fees and
expenses they have incurred in prosecuting the underlying state personal injury action.
Apparently responding to FirstEnergy defendants’ argument relating to standing,
plaintiffs assert that “an actual cash investment establishes an irrefutable tangible interest
in the subject property[.]” (Doc. No. 11 at 1, Page ID # 250.) As previously discussed, the
unliquidated personal injury action, and any damages or costs associated with pursing
that claim, are not comnpensable. See Section III, D. 4, infra.; Brown, 675 F.3d at 959
(“Any pecuniary losses proximately resulting from a personal injury caused by a RICO
violation, e.g., attorney fees, lost wages, and medical expenses, are also not recoverable
because they, too, do not implicate harm to any legal entitlement.”); Evans, 434 F.3d at
926 (same).
Third, plaintiffs wish to add unidentified facts and legal argument relating
to their research of the cases FirstEnergy defendants cited showing that the Ohio
Supreme Court regularly permits reconsideration of discretionary appeals. According to
plaintiffs, their research will show that reconsideration always favored “large corporate
donors.” (Doc. No. 11 at 2, page ID # 251.) However, even if the facts do support a
finding that large corporate donors benefit from reconsideration, these facts would not
take plaintiffs’ allegations of fraud and conspiracy against FirstEnergy defendants from
possible to plausible. Moreover, it would be neither appropriate nor helpful to permit
38

plaintiffs to amend the complaint to add legal argument regarding the relevance of the
cases cited by FirstEnergy defendants in their motion to dismiss.
Fourth, plaintiffs identify a March 16, 2009 blog (attached to the motion to
amend as Doc. No. 11-1), which purports to be a news article prepared by an unknown
individual discussing various encounters with Ohio Edison, and the author’s views on the
matters. One of the encounters discussed in the article involved Lisa Huff and the
underlying personal injury action. The blog makes reference to an alleged taped
conversation between Reggie Huff and an Ohio Edison employee. Plaintiffs suggest that
this article places FirstEnergy defendants “in a poor light” and provides “motive” as to
why Ohio Edison would not have wanted to risk a “publicized trial.” (Doc. No. 11 at 2-3,
Page ID # 251-52.) Plaintiffs fail to demonstrate how any of the alleged facts set forth in
this blog could be used to cure the deficiencies in the complaint. While plaintiffs suggest
that the article shows that Ohio Edison is “indifferen[t] to the health and safety of the
public” (Id.), this fact does not establish that FirstEnergy defendants engaged in the
wrongdoing alleged in the complaint. Moreover, the fact that Ohio Edison arguably
received negative press in its dealings with the public does not bridge the gap between
possible and plausible.
Fifth and finally, plaintiffs request leave to amend to include “some
potentially material information about the Defendants’ efforts to buy influence of the
Ohio Supreme Court at the exact time the Court was to rule on discretionary jurisdiction
in the Plaintiff’s personal injury suit.” (Doc. No. 11 at 3, Page ID # 252.) Plaintiffs
maintain that campaign finance reports, filed September 3, 2010, reveal that employees
of FirstEnergy made campaign contributions to Chief Justice O’Conner and Justice
39

Lanzinger immediately prior to the Ohio Supreme Court’s ruling in the personal injury
action. Plaintiffs fail to indicate why they were unable to incorporate these public records
into their complaint prior to the filing of the present motion. More fundamentally, the
existence of additional campaign contributions close-in-time to an official act is not
enough to establish a quid pro quo agreement, and the Court is not required to accept
plaintiffs’ bare legal conclusions as what these contributions suggest. Iqbal, 556 U.S. at
678 (holding that a court is “not bound to accept as a true legal conclusion couched as a
factual allegation[,]” and should disregard “mere conclusory statements”).
Ultimately, the Court finds that it would be futile to permit plaintiffs to
amend their complaint. The proposed factual allegations in their motion to amend mirror
those that have been found to be insufficient under Rule 8 and Rule 9(b). Such an
amendment would not survive a motion to dismiss because the factual allegations offered
do not state any claims for relief which are plausible, and do not, otherwise, cure the
numerous deficiencies in the complaint set forth above. Accordingly, plaintiffs’ motion to
amend is DENIED.

40

IV.

CONCLUSION
For all of the foregoing reasons, FirstEnergy defendants’ motion to

dismiss is GRANTED. All claims in the complaint are hereby DISMISSED with
prejudice.
IT IS SO ORDERED.

Dated: September 17, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

41