John Doe PLLC v. Seatree PLLC et al

Filing 62

MINUTE ORDER granting in part and deferring in part defendant's 7 Motion to Dismiss; granting plaintiff's 39 Motion for Leave to File Supplement to Original Complaint treated as a motion to amend the complaint. If ICT wishes to amend its complaint, it shall file an amended complaint within twenty-eight (28) days of this Minute Order; denying without prejudice plaintiff's 54 Motion for Declaratory Judgment. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ICT LAW AND TECHNOLOGY
GROUP, PLLC,
Plaintiff,

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C17-1681 TSZ
v.
MINUTE ORDER
SEATREE PLLC, and JAMES J.
NAMIKI,

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Defendants.

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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
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(1)
Defendant’s Motion to Dismiss, docket no. 7, is GRANTED in part and
DEFERRED in part, as follows:
(a)
Counts I and II are DISMISSED without prejudice. The Complaint,
docket no. 1, does not plausibly allege that Mr. Namiki or Seatree PLLC were
persons acting under the color of state law sufficient to state a 42 U.S.C. § 1983
claim against them. Naffe v. Frey, 789 F.3d 1030, 1035–36 (9th Cir. 2015).
(b)
Count III, brought under the Racketeer Influenced and Corrupt
Organizations Act (RICO), is DISMISSED without prejudice.
(c)
Count IV is DISMISSED with prejudice. Plaintiff did not properly
remove the state court action alleged in the Complaint in accordance 28 U.S.C.
§ 1446.

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MINUTE ORDER - 1

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(2)
Plaintiff’s Motion for Leave to File Supplement to Original Complaint,
docket no. 39, is treated as a motion to amend the Complaint. The motion is GRANTED.
2 If ICT wishes to amend its complaint, it shall file an amended complaint within twentyeight (28) days of this Minute Order.
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(3)
If ICT seeks to re-plead a RICO claim, it shall submit with its amended
4 complaint a RICO case statement, which shall include the facts upon which ICT is
relying to support its RICO claim as a result of the “reasonable inquiry” required by
5 Federal Rule of Civil Procedure 11. The RICO statement shall be in a form using the
numbers and letters as set forth below, and shall state in detail and with specificity the
6 following information:
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1.

RICO Provision: State whether the alleged unlawful conduct
is in violation of 18 U.S.C. §§ 1962(a), (b), (c), and/or (d).

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2.

Defendants: List each RICO defendant and state the alleged
misconduct and basis of liability of each RICO defendant.

3.

Other RICO Violators: List all alleged RICO violators other
than the RICO defendants listed above, and state the alleged
misconduct of each alleged wrongdoer.

4.

Victims: List the alleged victims and state how each victim
was allegedly injured.

5.

Pattern of Racketeering Activity: Describe in detail the
pattern of racketeering activity or collection of unlawful debts
alleged for each RICO claim. A description of the pattern of
racketeering shall include the following information:

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a.

List the alleged predicate acts and the specific statutes
that were allegedly violated;

b.

Provide the dates of the predicate acts, the participants
in the predicate acts, and a description of the facts
surrounding the predicate acts;

c.

If the RICO claim is based on the predicate offenses of
mail fraud, wire fraud, or fraud in the sale of securities,
then state the circumstances constituting fraud “with
particularity,” Fed. R. Civ. P. 9(b), including the time,
place, and contents of the alleged misrepresentations,
and the identity of persons to whom and by whom the
alleged misrepresentations were made;

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MINUTE ORDER - 2

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d.

State whether there has been a criminal conviction for
violation of the predicate acts and, if so, provide
particulars;

e.

State whether civil litigation has resulted in a judgment
with respect to the predicate acts and, if so, provide
particulars; and

f.

Describe how the predicate acts are both “related” and
“continuous” within the meaning of H.J. Inc. v. Nw.
Bell Tel. Co., 492 U.S. 229, 239 (1989), and its
progeny, including Allwaste, Inc. v. Hecht, 65 F.3d
1523, 1527 (9th Cir. 1995).

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6.

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Enterprise: Describe in detail the alleged enterprise and
specify what structure it had. A description of the enterprise
shall include the following information:
a.

State the names of the individuals, partnerships,
corporations, associations, or other legal entities, that
allegedly constitute the enterprise;

b.

Describe the structure, purpose, function, and course
of conduct of the enterprise;

c.

State whether any defendants are employees, officers,
or directors of the alleged enterprise or are associated
with the alleged enterprise;

d.

Describe the alleged relationship between the activities
of the enterprise and the alleged pattern of racketeering
activity, and discuss how the racketeering activity
differs from the usual and daily activities of the
enterprise, if at all; and

e.

Describe how the enterprise was affected by or
benefitted from the alleged pattern of racketeering
activity.

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7.

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Interstate or Foreign Commerce: Describe the effect of the
activities of the enterprise on interstate or foreign commerce.

8.

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If the complaint alleges a violation of 18 U.S.C. § 1962(a),
provide the following information: (i) State who received the
income derived from the pattern of racketeering activity or

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through the collection of an unlawful debt; and (ii) Describe
the use or investment of such income.

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9.

If the complaint alleges a violation of 18 U.S.C. § 1962(b),
provide the following information: (i) Describe in detail the
acquisition or maintenance of any interest in or control of the
alleged enterprise; and (ii) State whether the same entity is
both the liable “person” and the “enterprise” under § 1962(b).

10.

If the complaint alleges a violation of 18 U.S.C. § 1962(c),
provide the following information: (i) State who is employed
by or associated with the enterprise; and (ii) State whether the
same entity is both the liable “person” and the “enterprise”
under § 1962(c).

11.

If the complaint alleges a violation of 18 U.S.C. § 1962(d),
describe in detail the alleged conspiracy.

12.

Injury to Business or Property: Describe (i) the alleged injury
to business or property, and (ii) the direct causal relationship
between the alleged injury and the violation of the RICO Act.

13.

Damages: List the damages sustained by reason of the
alleged violation of § 1962, indicating the amount for which
each defendant is allegedly liable.

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(4)
Plaintiff’s motion for declaratory judgment under 28 U.S.C. § 2201(a),
14 docket no. 54, is DENIED without prejudice. A party may not make a motion for
declaratory judgment; instead, the party must bring an action for declaratory judgment.
15 Kam-Ko Bio-Pharm Trading Co., Ltd. v. Mayne Pharma Inc., 560 F.3d 935, 943 (9th Cir.
2009).
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(5)
The Clerk is directed to send a copy of this Minute Order to all counsel of
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Dated this 6th day of June, 2018.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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