Robinson et al v. Castle et al
Filing
67
ORDER denying 30 Motion; granting 35 Motion to Dismiss. Case terminated on 08/29/2011; denying 54 Motion for Partial Summary Judgment; denying 57 Motion for Partial Summary Judgment; granting 61 Motion to Dismiss. Case terminated on 08/29/2011; granting 62 Motion to Dismiss. Case terminated on 08/29/2011.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALBERT M. ROBINSON, et al,
Plaintiffs,
VS.
JACK HUSTON CASTLE, et al,
Defendants.
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§ CIVIL ACTION NO. H-11-649
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MEMORANDUM AND ORDER
Plaintiffs sue, on various theories, for harm they allegedly suffered as a
consequence of dental services they received. Pending before the Court are: (1) two
Motions for Partial Summary Judgment filed by Plaintiffs Albert and Anita Robinson
(Doc. Nos. 54 and 57); (2) the Motion to Dismiss filed by Defendants the New Jersey
Judiciary, the Mercer-Vincinage Family Division, Ms. Sue Regan, Ms. Sandra L. Terry,
and Mr. Doug Meckel (collectively the “New Jersey Defendants”) (Doc. No. 35); (3) the
Motion to Dismiss filed by Defendants Dr. Kent Ziegenbein and Dr. Larry Earl Freeman
(Doc. No. 61); (4) two Motions to Dismiss filed by Defendants Mr. Jack Huston Castle
and Dentist Choice 1 L.P. (Doc. Nos. 31 and 62); and (5) the Motion to Declare Plaintiffs
Vexatious Litigants filed by Defendants Ziegenbein and Freeman (Doc. No. 30).
After considering all of the parties’ Motions, the responses thereto, and the
applicable law, the Court finds that the New Jersey Defendants’ Motion to Dismiss (Doc.
No. 35) must be granted; that Defendants Ziegenbein and Freeman’s Motion to Dismiss
(Doc. No. 61) must be granted; that Defendants Castle and Dentist Choice 1 L.P.’s
Motions to Dismiss (Doc. Nos. 31 and 62) must be granted; that Defendants Ziegenbein
1
and Freeman’s Motion to Declare Plaintiffs Vexatious Litigants (Doc. No. 30) must be
denied; and that all other pending Motions must be denied as moot.
I.
BACKGROUND
Plaintiffs Albert and Anita Robinson filed their “First Amended Original Petition”
(hereinafter “Amended Complaint”) naming as Defendants Jack Huston Castle, Dr. Larry
Freeman, Dr. Kent Ziegenbein, Dentist Choice 1 L.P. (“Dentist Choice”), Dr. Bahman
Safari, Texas Dental Associates P.A.1 (“Texas Dental”), the New Jersey Judiciary, the
Mercer-Vincinage Family Division (pled as “Mercer County Domestic Violence Team”),
Sandra L. Terry, Doug Meckel, and Sue Regan. 1 (Doc. No. 55.) For purposes of the
motions to dismiss, the Court accepts the following factual allegations in Plaintiffs’
complaint as true. Frame v. City of Arlington, 575 F.3d 432, 434 (5th Cir. 2009).
Plaintiffs Albert and Anita Robinson are a married couple currently residing in
Florida. (Pl. Am. Compl. ¶ 6-7.) At an unspecified point in time, Defendant Jack Huston
Castle formed the Texas Dental and Dentist Choice companies, both of which operated
under the name “Lovett Dental.” (Id. ¶ 24.) Defendant Castle is not a dentist. (Id.) After
forming Lovett Dental, Castle entered into an agreement with Defendant Ziegenbein
under which Ziegenbein assumed an ownership interest in Texas Dental and Dentist
Choice and worked as a dentist at both. (Id.) Castle owned all of the dental equipment,
leased the office space, managed the patient records, hired office staff, and directed
Defendant Ziegenbein. (Id. ¶ 25.) Defendant Ziegenbein paid Castle a portion of the
monthly revenue generated by Lovett Dental. (Id.) According to Plaintiffs, “operat[ing] a
dental service without a license issued by the Texas State Board of Dental Examiners
1
Defendants Texas State Board of Dental Examiners and Sherri Meek were dismissed from this case on
May 23, 2011.
2
(TSBDE)…was the main goal of Defendant Castle and Defendant Ziegenbein’s illegal
scheme.” (Id. ¶ 26.)
Between 2005 and 2007, Plaintiffs Albert and Anita Robinson obtained dental
services from Lovett Dental after seeing advertisements for Lovett Dental in the
telephone book. (Id. ¶ 49.) These advertisements stated that Dentist Choice “was a dental
service provider that was licensed and regulated by the state of Texas.” (Id.) Defendant
Safari performed an “inadequate root canal” on Mr. Robinson, which had to be redone.
(Id. ¶ 50.) Mr. Robinson still suffers from the pain of the root canal. (Id.) Defendant
Freeman performed an “inadequate root canal” on Mrs. Robinson, as a result of which
she has had to seek “additional and ongoing dental services.” (Id. ¶ 149.)
Plaintiffs filed suit against some or all Defendants in the 151st District Court for
Harris County. (Id. ¶ 33.) During the litigation, Defendants Freeman and Ziegenbein’s
attorneys produced what the Plaintiffs claim were altered medical records of Plaintiff
Mrs. Robinson. (Id. ¶ 51.) The attorneys also improperly combined attorneys’ fees for
Defendants Freeman and Ziegenbein, charging fees for Defendant Freeman before he was
a party to the suit. (Id. ¶¶ 34-39.) Defendants Freeman and Ziegenbein were awarded
these improperly-combined attorneys’ fees in State Court (Id. ¶ 33), but that order was
later vacated. (Id. ¶ 55.) Although the fees known by Plaintiffs to be improper were
ultimately removed, Plaintiffs were not given an opportunity to prove or seek discovery
as to the invalidity of other aspects of the remaining fees. (Id.)
During the litigation, Mr. Robinson received a phone call from Dentist Choice’s
attorney demanding $10,000, and stating that if the money was not provided, the attorney
3
would tell the State Court of Mr. Robinson’s prior arrest in New Jersey and Mr.
Robinson’s other litigation. (Id. ¶¶ 55-56.)
In December 2008, Defendant Castle conspired with Defendants Meckel and
Terry (employees of the Mercer-Vincinage Family Division in New Jersey) to have a
fraudulent restraining order issued against Mr. Robinson for an incident that allegedly
took place in New Jersey in 1990. (Id. ¶ 41.) This Temporary Restraining Order (TRO)
was “entered into the National Registry” in 2008, and faxed to Mr. Robinson in Texas in
September of 2009. (Id. ¶ 41.) Mr. Robinson attempted to purchase a gun in Florida in
September 2009, but the vendor refused because of the outstanding TRO. (Id. ¶ 43.) The
TRO affected Mr. Robinson’s business such that he could not “work on, test, transport,
modify, inspect, touch, develop, or sell [his] shotgun system.” (Id. ¶ 61.) Mr. Robinson
believes that the envelope in which the TRO was sent did not look to be 20 years old, but
rather “it looked as if it was just manufactured and placed into the file recently.” (Id. ¶
47.)
II.
NEW JERSEY DEFENDANTS’ MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION
Defendants the New Jersey Judiciary, the Mercer-Vincinage Family Divison, Sue
Regan, Sandra L. Terry, and Douglas Meckel (“New Jersey Defendants”) file this Motion
to Dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2).
A.
Legal Standard
This court must dismiss a case when the plaintiff fails to establish personal
jurisdiction. FED. R. CIV. P. 12(b)(2). “Absent a rule or statute to the contrary, ... a federal
court [may] exercise jurisdiction over only those defendants who are subject to the
4
jurisdiction of courts of the state in which the court sits.” Point Landing, Inc. v. Omni
Capital International, Ltd., 795 F.2d 415, 419 (5th Cir. 1986), aff'd sub nom. Omni
Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987). A non-resident
defendant is subject to personal jurisdiction in the United States District Court for the
Southern District of Texas if two criteria are met: (1) the non-resident defendant must be
amenable to service of process under Texas’ long arm statute, and (2) the exercise of
personal jurisdiction must be consistent with due process. Stripling v. Jordan Prod. Co.,
234 F.3d 863, 869 (5th Cir. 2000). Because the Texas long-arm statute, codified in the
Texas Civil Practice and Remedies Code at §§ 17.041 to 17.045, is coterminous with the
Due Process Clause of the Fourteenth Amendment to the United States Constitution, the
Court’s constitutional due process inquiry addresses both prongs of the due process
analysis. Command-Aire Corp. v. Ontario Mechanical Sales and Service Inc., 963 F.2d
90, 93-94 (5th Cir. 1992).
To comport with constitutional due process, a plaintiff must show: (1) that the
defendant purposefully availed herself of the benefits and protections of Texas law,
thereby establishing “minimum contacts” with Texas such that the defendant could
reasonably have anticipated being haled into court there; and (2) that, under the
circumstances, the exercise of personal jurisdiction “does not offend traditional notions of
fair play and substantial justice.” Id. at 94 (citing Asahi Metal Industry Co. v. Superior
Court of California, 480 U.S. 102 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462
(1985); and Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir. 1990)).
The minimum contacts requirement can be met through contacts sufficient to
confer either general or specific jurisdiction. Cent. Freight Lines, Inc. v. APA Transp.
5
Corp., 322 F.3d 376, 381 (5th Cir. 2003). A court may exercise general jurisdiction when
a defendant’s contacts with the forum state are substantial, continuous, and systematic,
even though unrelated to the litigation. Id. Specific jurisdiction exists “[w]hen a
nonresident defendant has purposefully directed its activities at the forum state and the
litigation results from alleged injuries that arise out of or relate to those activities.” Id.
(citation omitted).
“When a nonresident defendant presents a motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing the district court’s jurisdiction
over the nonresident.” Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985) While
the plaintiff bears the burden of proving that jurisdiction exists, he or she need only
present a prima facie showing, and need not establish jurisdiction by a preponderance of
the evidence. Love N' Care, Ltd. v. InstaMix, Inc., 438 F.3d 465, 469 (5th Cir. 2006).
B.
Analysis
As against the New Jersey Defendants, Plaintiffs Mr. and Mrs. Robinson have
alleged violations of the Second Amendment to the U.S. Constitution; violations of 18
U.S.C. §§ 1951, 1962, and 1343; violations of 42 U.S.C. § 1983; and common law
conspiracy and defamation claims. (Doc. No. 55.) The New Jersey Defendants have
moved to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2).
It is difficult to locate any facts in Plaintiffs’ Amended Complaint that tie the New
Jersey Defendants to this forum in any meaningful way so as to give rise to either general
6
or specific jurisdiction. 2 The two apparent connections between the New Jersey
Defendants and the Texas forum are that the New Jersey Defendants (1) received
returned mail which indicated that Mr. Robinson had moved to Texas, (Pl. Am. Compl. ¶
47), and (2) faxed a copy of the Temporary Restraining Order (“TRO”) to Texas after
Mr. Robinson asked them to do so. (Id. ¶ 41; Doc. No. 35, at 2.) The Plaintiffs plead no
other facts to suggest that anything could have given the New Jersey Defendants reason
to believe they might be haled into court in Texas. The one affirmative act that these
Defendants took in relation to Texas—faxing the TRO to Plaintiff Mr. Robinson—was
taken only at Mr. Robinson’s request. (Id.) The contacts alleged by Plaintiffs are not
substantial or continuous enough to establish general jurisdiction, nor were they
purposely directed at the forum so as to give rise to specific jurisdiction. The New Jersey
Defendants’ Motion to Dismiss for lack of personal jurisdiction must therefore be
GRANTED.
III.
DEFENDANTS FREEMAN AND ZIEGENBEIN’S MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED
A. Legal Standard
A court may dismiss a complaint for “failure to state a claim upon which relief
can be granted.” FED. R. CIV. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss,
a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff’s
2
The Plaintiffs have asserted that this Court has personal jurisdiction over the New Jersey Defendants
because the New Jersey Defendants waived service. (Pl. Am. Compl. ¶ 3.) It appears that the Plaintiffs
believe that the New Jersey Defendants’ “Waiver of Service” pursuant to Federal Rule of Civil Procedure
4(d) was sufficient to waive objections to personal jurisdiction. However, the language of Rule 4(d) itself
makes clear that waiver of service of a summons “does not waive any objection to personal jurisdiction or
venue.” FED. R. CIV. P. 4(d)(5). The New Jersey Defendants therefore have not waived objections to
personal jurisdiction.
7
grounds for entitlement to relief—including factual allegations that when assumed to be
true ‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
That is, a complaint must contain sufficient factual matter that, if it were accepted as true,
would “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. ---,
129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim need not give
rise to “probability,” but need only plead sufficient facts to allow the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). A pleading also need not contain detailed factual allegations,
but go beyond mere “labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
While the court must accept well-pleaded facts as true, Iqbal, 129 S. Ct. at 1950,
it should neither “strain to find inferences favorable to the plaintiffs” nor “accept
‘conclusory allegations, unwarranted deductions, or legal conclusions.’” R2 Investments
LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (quoting Southland Sec. Corp. v.
Inspire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir. 2004)). The court should not
evaluate the merits of the allegation, but must satisfy itself only that plaintiff has
adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s
Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
B. Analysis
The number of claims asserted in this suit and the disjointed design of Plaintiffs’
Amended Complaint make it difficult to discern which claims are asserted against which
Defendants. It appears that as against Defendants Ziegenbein and Freeman, Plaintiffs
8
assert claims for violations of 18 U.S.C. § 1962 (the Racketeer Influenced and Corrupt
Organizations Act, or “RICO”); violations of 42 U.S.C. 1983; violations of 18 U.S.C.
873; and medical malpractice.
1. Claims Under 18 U.S.C. § 1962 (RICO Claims)
RICO provides for civil liability for activities in violation of 18 U.S.C. § 1962. In
order successfully to bring an action under RICO, a plaintiff must allege “(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); see also Crowe v. Henry, 43 F.3d 198, 204
(5th Cir. 1995). Defendants Ziegenbein and Freeman contend that Plaintiffs have failed
adequately to allege the necessary elements of a RICO claim and that, even if sufficient
facts had been pleaded to support a claim under RICO, Plaintiffs would not have standing
to assert a RICO claim.
The threshold requirement for stating a civil cause of action under RICO is that
that the plaintiff must be “‘injured in his business or property by reason of a violation’ of
the [RICO]’s substantive restrictions.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451,
453 (2006) (quoting 18 U.S.C. § 1964(c)); see also Hughes v. Tobacco Inst., Inc., 278
F.3d 417, 422 (5th Cir. 2001). Thus, “the plaintiff only has standing if, and can only
recover to the extent that, he has been injured in his business or property by the conduct
constituting the [RICO] violation.” It is well-settled that injury to business or property
for the purpose of asserting a RICO claim excludes personal injuries. Hughes v. Tobacco
Inst., Inc., 278 F.3d 417, 422 (5th Cir. 2001); Borskey v. Medtronics, 105 F.3d 651, 651
(5th Cir. 1996) (upholding the district court’s rejection of a RICO action on the grounds
that RICO has no applicability to an action for damages from personal injuries).
9
Pecuniary consequences that arise from personal injuries are likewise not
compensable claims under RICO. See, e.g., Fisher v. Halliburton, 2009 WL 5170280 at
*5 (S.D. Tex. Dec. 17, 2009) (holding that plaintiffs’ alleged loss of “continued
compensation” directly resulted from their personal injuries, and was thus not a
cognizable injury under RICO); Gaines v. Tex. Tech Univ., 965 F.Supp. 886, 890 (N.D.
Tex. 1996) (holding that the impairment of future earning capacity as a result of a
personal injury is not recoverable under RICO); Borskey v. Medtronics, Inc., 1995 WL
120098, at *3 (E.D. La. Mar. 15, 1995) (holding that plaintiffs’ medical expenses were so
closely tied to their alleged personal injuries that such expenses could not be covered
under RICO).
In the present case, Plaintiffs’ alleged damages include (1) “physical pain in the
past and future,” (2) “mental anguish in the past and future,” (3) “disfigurement in the
past and future,” (4) “medical expenses in the past and future,” (5) “loss of earning
capacity in the past and future,” and (6) “loss of consortium in the past and future.” (Pl.
Am. Compl. ¶ 103.) These alleged damages are limited to personal injuries and injuries
arising out of personal injuries. Because personal injuries and their resulting pecuniary
consequences are not an “injury to business or property” under § 1964(c), Plaintiffs’
alleged injuries do not confer standing to bring a civil claim under RICO.
Because Plaintiffs do not have standing to bring claims against Defendants
Ziegenbein and Freeman under RICO, Plaintiffs have failed to state a claim under 18
U.S.C. § 1962 upon which relief can be granted.
2. Claims Under 42 U.S.C. § 1983
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Plaintiffs claim that Defendants Ziegenbein and Freeman attempted to evade a
medical malpractice suit in State Court by stating that their business was not a medical
service provider, and then reversed course to argue that it was a medical service provider
when such an argument would help them on the issue of attorney’s fees. (Pl. Am. Compl.
¶ 88.) According to Plaintiffs, this change in course was ultimately denied by the State
Court. (Pl. Am. Compl. ¶ 54.)
Notwithstanding the questionable litigation tactics allegedly employed by these
Defendants, the facts as pleaded in Plaintiffs’ Amended Complaint do not give rise to a
claim under 42 U.S.C. § 1983. Section 1983 creates a cause of action for the deprivation
of “rights, privileges, or immunities secured by the Constitution and laws” by a person
acting under color of law. 42 U.S.C. § 1983. Defendants Ziegenbein and Freeman, as
private health care providers, were not acting under color of law. Plaintiffs therefore have
failed to state a claim under 42 U.S.C. § 1983 for which relief can be granted.
3. Claims Under 18 U.S.C. § 873
Plaintiffs also assert a claim under 18 U.S.C. § 873, the portion of the United
States Code dealing with criminal blackmail. This portion of the United States Code does
not give rise to civil claims for damages, and Plaintiffs therefore cannot state a claim
upon which relief can be granted under this Section.
4. Medical Malpractice Claims
Defendants Ziegenbein and Freeman move to dismiss Plaintiffs’ medical
malpractice claims on the basis that Plaintiffs have failed to state a claim for relief for
medical malpractice under Chapter 74 of the Texas Civil Practice and Remedies Code.
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The essential elements of a claim for medical malpractice include: (1) a
physician’s duty to act according to a certain standard of care; (2) breach of that standard
of care; (3) an injury to the plaintiff; and (4) a causal connection between the breach of
care and the injury. Grider v. O’Brien, 260 S.W.3d 49, 57 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied); see also Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
Even accepting all of Plaintiffs’ well-pleaded facts as true, Plaintiffs’ allegations
are insufficient to state a claim for medical malpractice against Dr. Freeman. Plaintiffs
allege that Defendant Freeman “took out his personal anger” on Plaintiff Mrs. Robinson.
(Pl. Am. Compl. ¶ 153.) Plaintiffs’ complaint further alleges that Defendant Freeman
“failed to consult a specialist” and failed to “keep adequate records,” “monitor plaintiff’s
condition,” or “perform an adequate” root canal. (Id. ¶ 148.) Plaintiffs ultimately
conclude that “Defendant Freeman’s breach of duty proximately caused injury to [Mrs.
Robinson].” (Id. ¶ 151.) Even if these facts would be sufficient to allege breach, they are
insufficient on the issue of causation. The assertion that Freeman’s breach of duty
proximately caused Mrs. Robinson’s injury is a legal conclusion, unsupported by any
facts.
With regard to Defendant Ziegenbein, there is nothing in the complaint that goes
to the issue of causation at all. The Plaintiffs offer no connection between Defendant
Ziegenbein’s alleged breach (and with regard to Defendant Ziegenbein it is not entirely
clear what the breach might be) and Mr. Robinson’s resulting injuries. Absent any facts
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supporting causation, Plaintiffs have failed to state a medical malpractice claim upon
which relief can be granted. 3
Because Plaintiffs’ Amended Complaint fails to state any claim against
Defendants Ziegenbein and Freeman on which relief can be granted, Defendants
Ziegenbein and Freeman’s Motion to Dismiss must be GRANTED.
IV.
DEFENDANTS JACK HUSTON CASTLE AND DENTIST CHOICE 1
L.P.’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF CAN BE GRANTED
A. Legal Standard
The legal standard for deciding whether to grant Defendant Castle’s Motion to
Dismiss for Failure to State a Claim Upon Which Relief Can be Granted under Federal
Rule of Civil Procedure 12(b)(6) is the same standard employed above with regard to
Defendants Ziegenbein and Freeman’s Motion to Dismiss for Failure to State a Claim.
B. Analysis
1. RICO Claims
Plaintiffs assert civil RICO claims against Mr. Castle and the New Jersey
Defendants based upon their conspiracy “to cause a fraudulent Restraining Order to issue
against [Mr. Robinson].” (Pl. Am. Compl. ¶ 41.) 4 RICO provides for civil liability for
3
Defendants also assert that Plaintiffs’ medical malpractice claims must be dismissed because Plaintiffs
fail to plead facts to show that the suit was filed within the applicable statute of limitations. (Doc. No. 18, at
16.) A motion to dismiss for failure to state a claim under Rule 12(b)(6) is a valid means to raise a statute of
limitations defense if the defense clearly appears on the face of the complaint. Washington v. City of
Gulfport, Miss., 351 F. App’x 916, 918 (5th Cir. 2009). The statute of limitations for medical malpractice
claims requires that such claims be filed within two years of the alleged violation. TEX. CIV. PRAC. REM.
CODE § 74.251. Putting aside the issue of the pleading burden, it appears from the face of Plaintiffs’
complaint that the medical malpractice claim was not brought within the applicable statute of limitations.
Plaintiffs’ injuries took place between 2005 and 2007. (Pl. Am. Compl. ¶ 49.) Their first complaint was not
filed until February 15, 2011. (Doc. No. 1.) Thus, accepting the facts in Plaintiffs’ Amended Complaint as
true, the medical malpractice claim at issue was not brought within the relevant statute of limitations.
4
As discussed above, these claims are dismissed with regard to the New Jersey Defendants based upon this
court’s lack of personal jurisdiction.
13
activities undertaken in violation of 18 U.S.C. § 1962. As discussed above, to
successfully bring an action under RICO, a plaintiff must allege “(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). The standing issues that were dispositive as to
Plaintiffs’ RICO claims against Defendants Ziegenbein and Freeman are absent here, as
Plaintiffs allege injuries unrelated to personal injuries, and based instead upon the impact
of the TRO on Mr. Robinson’s ability to “work on, test, transport, modify, inspect, touch,
develop, or sell” a number of firearms or firearm related systems. (Pl. Am. Compl. ¶¶ 6086.)
Instead, Defendants argue that Plaintiffs have not adequately alleged two or more
acts of racketeering as required by 18 U.S.C. § 1961(5). See In re MasterCard Intern.
Inc., 313 F.3d 257, 261 (5th Cir. 2002) (“A pattern of racketeering activity requires two
or more predicate acts and a demonstration that the racketeering predicates are related
and amount to or pose a threat of continued criminal activity.”). Such predicate acts are
limited to those described in 18 U.S.C. § 1961(1), including acts that are indictable under
any of the statutes enumerated in that section.
As RICO predicate acts, Plaintiffs allege that Defendant Castle committed mail
fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, and
witness tampering and retaliation in violation of 18 U.S.C. §§ 1512 and 1513. (Pl. Am.
Compl. ¶¶ 59-86, 111-140.)
a. Mail and Wire Fraud
To state a claim for fraud as a RICO predicate, a plaintiff must allege that:
(1) [A] material misrepresentation was made; (2) the representation was
false; (3) when the representation was made, the speaker knew it was false
14
or made it recklessly without any knowledge of the truth and as a positive
assertion; (4) the speaker made the representation with the intent that the
other party should act upon it; (5) the party acted in reliance on the
representation; and (6) the party thereby suffered injury.
Bradley v. Phillips Petroleum Co., 527 F. Supp. 2d 625, 648 (S.D. Tex. 2007) (quoting In
re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001)). The Fifth Circuit has also
held that while the fifth element, reliance upon the defendants’ representations, “is not an
element of statutory mail or wire fraud,” it is required when violations of those statutes
are alleged as RICO predicates. MasterCard, 313 F.3d 257, 263 (5th Cir. 2002). Further,
when fraud is used as the predicate for a RICO allegation, the pleading requirements of
Federal Rule of Civil Procedure 9(b) apply, requiring the plaintiff to “state with
particularity the circumstances constituting fraud or mistake.” Williams v. WMX
Technologies, Inc., 112 F.3d 175, 177 (5th Cir. 1997). The elements of a wire fraud claim
under 18 U.S.C. § 1343 are the same as those for a mail fraud claim under § 1341, except
that the use of the wire for wire fraud must be interstate. Walsh v. America’s Tele–
Network Corp., 195 F. Supp. 2d 840, 846 (E.D. Tex. 2002).
Plaintiffs’ complaint is limited to very general assertions, and therefore fails under
the applicable pleading requirements. Plaintiffs claim that “Defendant Castle used the
United States Postal Service in an attempt to extort monies from us,” apparently in the
form of attorney’s fees in the underlying state claim. (Pl. Am. Compl. ¶ 11.) Plaintiffs fail
to explain how Defendant Castle utilized the Postal Service to extort money. Plaintiffs
further allege that Defendant Castle “used printed matter in the form of telephone books
ads [sic] in order to carry out fraud on my wife and persons like us.” (Id. ¶ 121.) Plaintiffs
fail to explain what these printed ads stated beyond the fact that Dentist Choice “was a
15
dental service provider that was licensed and regulated by the state of Texas.” (Id. ¶ 49.)
From the face of the complaint, it appears that all information provided by the printed
ads—that Dentist Choice provided dental services and was licensed to do so—was true
information. There are thus insufficient facts to indicate mail fraud.
Plaintiffs further state that Defendants Castle and Dentist Choice have “a history
and pattern of wire fraud as they have been running the fraudulent ads to further the
enterprise known as Lovett Dental.” (Pl. Am. Compl. ¶ 122.) Plaintiffs do not explain in
what ways Defendants Castle and Dentist Choice actually engaged in the alleged wire
fraud.
Ultimately, Plaintiffs present no plausible allegations that any of the Defendants
had either intent to defraud, or reckless indifference as to the truth or falsity of their
representations. Bradley v. Phillips Petroleum Co., 527 F. Supp. 2d 625, 648 (S.D. Tex.
2007). At a more basic level, though, Plaintiffs fail to plead facts to support an inference
that the communications themselves were actually fraudulent or violated federal law.
Elliott v. Foufas, 867 F.2d 877, 882 (5th Cir. 1989).
b. Witness Tampering
Plaintiffs also allege violations of 18 U.S.C. § 1512 as a RICO predicate. Section
1512(a)(1) is violated when someone “kills or attempts to kill another person, with intent
to” prevent that person from testifying or producing records in an official proceeding, or
communicating information to law enforcement or a judge which relates to the
commission of a federal offense. 18 U.S.C. § 1512(a)(1). Section 1512(a)(2) is violated
when one “uses physical force or the threat of physical force” against someone with the
16
intent to “influence, delay, or prevent the testimony of any person in an official
proceeding.” 18 U.S.C. § 15(a)(2).
Plaintiffs allege that Defendant Castle engaged in a number of acts to prevent
Plaintiffs from pursuing their claims in court. Defendant Castle allegedly (1) knowingly
intimidated or corruptly persuaded another person to “discredit, influence, delay, or
prevent” the testimony of the Plaintiffs (Pl. Am. Compl. ¶ 127); (2) “corruptly persuaded
a party to list [Mrs. Robinson’s] collector vehicle as being ‘stolen’ in order to prevent her
from pursuing this matter in court” (Id. ¶ 132); and (3) knowingly used the creation of a
fraudulent restraining order to prevent the testimony of both Plaintiffs (Id. ¶ 136).
Plaintiffs do not allege the use of force or threats of force in conjunction with the alleged
witness tampering. Absent such allegations, there are no violations of 18 U.S.C. § 1512
which could serve as a predicate for the “pattern of racketeering” required under RICO.
Because Plaintiffs have not alleged a “pattern of racketeering activity,” they have
failed to state a claim under RICO for which relief can be granted.
2. Second Amendment Violations
Plaintiffs allege violations of Mr. Robinson’s Second Amendment rights based
upon the impact the allegedly fraudulent TRO had on his ability to sell firearms and
firearm-related apparatuses. Because the Second Amendment applies only to government
action, Presser v. Illinois, 116 U.S. 252, 265 (1886); McDonald v. City of Chicago, Ill.,
561 U.S. ---, 130 S. Ct. 3020 (2010), Plaintiffs’ claims against private parties under the
Second Amendment fail to state a claim upon which relief can be granted.
3. Conspiracy
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Plaintiffs’ conspiracy claim against Defendants Castle and Dentist Choice alleges
that Defendant Castle worked in unison with the New Jersey Defendants to have Mr.
Robinson arrested or to otherwise bar him from giving testimony in his medical
malpractice suit. The complaint is unclear as to whether Plaintiffs intend this conspiracy
claim to be related to the alleged RICO violations, or whether Plaintiffs intend to allege
conspiracy as a separate, common law claim. (Pl. Am. Compl. ¶¶ 96-99.) If the
conspiracy reference is meant to relate to Plaintiffs’ RICO claims, then it fails for the
reasons stated above.
Assuming that Plaintiffs intend to assert a civil conspiracy claim, a separate
analysis must be conducted. A civil conspiracy is an agreement by two or more persons
to accomplish an unlawful purpose. The elements of civil conspiracy are: “(1) two or
more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or
course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate
result.” Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).
Plaintiffs’ complaint is deficient as to at least one of these elements. Plaintiffs do
allege that there were two or more persons involved (Castle, Meckel, and the “Domestic
Violence Team”). (Pl. Am. Compl. ¶ 96.) They also allege that there was an object to be
accomplished—namely “the ultimate goal of having [Mr. Robinson] arrested…or in the
least barring [him] from giving testimony in the medical malpractice case against
Defendant[s] Castle, Freeman, and Ziegenbein.” (Pl. Am. Compl. ¶ 96.)
With regard to the third element of conspiracy, a meeting of minds, Plaintiffs’
complaint is devoid of facts, stating only that there was an “agreement” between
Defendant Castle and the New Jersey Defendants (Pl. Am. Compl. ¶ 98), and that
18
Defendants were working “in unison.” (Id. ¶ 96.) The complaint fails to indicate how the
Defendants came to work together, or what the nature of their agreement was. The
Plaintiffs’ pleadings fare even worse as to the fourth element, an unlawful, overt act.
Plaintiffs do not mention any unlawful acts that could serve as the basis for a finding of
conspiracy as to Defendant Castle. The acts upon which Plaintiffs base their conspiracy
claim relate to the generation of the TRO. However, there are no facts anywhere in the
Amended Complaint (other than Plaintiffs’ unsupported conclusions) to indicate that
Defendant Castle was at all connected with the issuance of the restraining order, or that
the restraining order was issued unlawfully. Because Plaintiffs have not plead sufficient
facts to show that there was an unlawful, overt act in furtherance of the alleged
conspiracy, Plaintiffs have failed to state a claim for civil conspiracy upon which relief
can be granted.
4. Medical Malpractice
It is not clear that Plaintiffs assert a claim for medical malpractice against Mr.
Castle. If Plaintiffs did intend such a claim, it would fail under Rule 12(b)(6) for the same
reasons described above with regard to the medical malpractice claims against
Defendants Ziegenbein and Freeman.
5. 42 U.S.C. § 1983
The claim against Defendant Castle for violations of 42 U.S.C. § 1983 fails for
the reasons stated above with regard to the § 1983 claims against Defendants Ziegenbein
and Freeman.
19
Because Plaintiffs’ Amended Complaint fails to state any claim against
Defendants Castle and Dentist Choice on which relief can be granted, Defendants Castle
and Dentist Choice’s Motion to Dismiss must be GRANTED.
V.
MOTION TO DECLARE PLAINTIFFS VEXATIOUS LITIGANTS
Defendants Ziegenbein and Freeman have filed a Motion to Declare Plaintiffs
Vexatious Litigants. (Doc. No. 30.) This Motion is based upon the number of defendants
joined in this suit (Id. at 1), and the “similar unwarranted lawsuits against Defendants in
the past,” (Id. at 2). Defendants assert that Plaintiffs have filed ten lawsuits in the past six
years; those not currently pending have been dismissed or resolved in defendants’ favor.
(Id. at 4.) Declaring Plaintiffs vexatious litigants in order to prevent future filing is
appropriate where those plaintiffs consistently abuse the court system and harass their
opponents. Farguson v. MBank Houston, N.A., 808 F.2d 358, 359-360 (5th Cir. 1986).
While the Court is sensitive to Defendants’ concerns, Plaintiffs have not yet
received a warning from this Court (nor from any other courts of which the Court is
aware) that would have alerted them to the possibility that they might be declared
vexatious litigants. Because these litigants are pro se and lack legal experience and
expertise, this Court believes that more warning is warranted before designating Plaintiffs
vexatious litigants. That said, the Court conveys its most serious concern as to Plaintiffs’
use of this forum to redress their grievances against these Defendants. The Plaintiffs are
hereby on notice that frivolous claims filed with the Southern District of Texas in the
future are likely to lead to a designation of Plaintiffs as vexatious litigants.
VI.
CONCLUSION
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The New Jersey Defendants’ Motion to Dismiss (Doc. No. 35) is GRANTED.
Defendants Ziegenbein and Freeman’s Motion to Dismiss (Doc. No. 61) is GRANTED.
Defendants Castle and Dentist Choice’s Motion to Dismiss (Doc. No. 62) is GRANTED.
Plaintiffs’ Motions for Partial Summary Judgment (Doc. Nos. 54 and 57) are DENIED as
moot. Defendants Ziegenbein and Freeman’s Motion to Declare Plaintiffs Vexatious
Litigants (Doc. No. 30) is DENIED.
For all the reasons stated above, Plaintiffs’ Amended Complaint is DISMISSED
WITH PREJUDICE.
IT IS SO ORDERED.
SIGNED this 29th day of August, 2011.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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