Cordero-Hernandez v. Hernandez-Ballestero

United States Court of Appeals
For the First Circuit

No. 04-2435

ANA M. CORDERO-HERNÁNDEZ,

Plaintiff, Appellant,

PARIS PARIS BOUTIQUE, INC.,

Plaintiff,

v.

MARÍA TERESA HERNÁNDEZ-BALLESTEROS; GEORGE MOLL;
ARNALDO PEÑALVERT-VÁZQUEZ; ELBA MARÍA MARTÍNEZ;
FIRSTBANK OF PUERTO RICO, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.

Alexander Zeno for appellant.
William Santiago-Sastre, with whom Meléndez Perez, Moran &
Santiago was on brief, for appellee First Bank of Puerto Rico.

June 2, 2006
 STAHL, Senior Circuit Judge. The Paris Paris Boutique

was a small shop located in San Juan, Puerto Rico. It was founded

several years ago by María Teresa Hernández-Ballesteros

(Hernández), an entrepreneur who has also founded and operated at

least two other shops in San Juan. Under Hernández's management,

the shop apparently dealt primarily in women's clothing and

accessories, and had at least two employees, a professional manager

and a sales clerk. It purchased clothing from Puerto Rican and New

York-based retailers and sold the goods to walk-in customers,

primarily targeting passing tourists.

Hernández decided to give up the business in 2000 or

2001, and put Paris Paris Boutique, Inc. on the market. Among a

number of interested buyers, Ana M. Cordero-Hernández (Cordero) won

out. This suit was brought by Cordero and the boutique over the

fallout from that purchase. Cordero and the Paris Paris company

alleged various fraud- and contract-related claims against

Hernández and George Moll, who was the realtor on the sale of the

boutique. They also brought claims against Arnaldo Peñalvert-

Vázquez (Peñalvert), Hernández's accountant; FirstBank of Puerto

Rico, which holds the mortgage that Cordero assumed when she

purchased the property; and Elba María Martínez (Martínez), the

proprietor of the building in which the Paris Paris was located.

Cordero purchased 100% of the shares of the boutique from

Hernández on St. Valentine's Day, 2001. The purchase price for the

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store was $69,000 in cash and the assumption of $156,000 in debt

owed by Hernández to FirstBank. Included in the deal were promises

by Hernández to offer training to Cordero in dealing with suppliers

and in the other particulars of running the store, but none of

these promises were ever honored. While Cordero had also been

promised an easy and immediate monthly profit, earnings lagged

behind expectations, and Cordero and the store quickly began to

experience financial difficulties. Cordero argues that the store's

plight was worsened by the fact that Hernández almost immediately

set up a new dress shop, named El Sol de Puerto Rico, in the same

building as the Paris Paris.

Soon after she established El Sol, Hernández put it on

the market, just as she had done with the Paris Paris. Believing

that she had herself been defrauded, suspecting that Hernández was

planning to perpetrate a similar fraud in the upcoming sale of El

Sol, and hoping to catch Hernández in a pattern of fraudulent

activity, Cordero hired two investigators to come to El Sol and

pretend to be interested purchasers. Hernández allegedly made

representations about the new store to this pair, Damian Soto and

Ester Morell, that sounded in the same register as her

representations to Cordero about Paris Paris -- high margins,

valuable inventory, established clientele, and easy money. The

hired detectives did not, of course, buy El Sol, and neither did

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anyone else. Finding no buyer, Hernández abandoned the store less

than a year after opening it.

Meanwhile, in May 2001, with her financial problems

worsening, Cordero and the Paris Paris company filed voluntary

petitions for bankruptcy protection under Chapter 11. In the

course of the bankruptcy proceedings, Cordero attempted to assert

a handful of legal claims against Hernández and the other

defendants in this action, all involved in the sale of the Paris

Paris or the establishment of El Sol, and these claims were

eventually removed to federal district court. In her original

complaint in the district court, Cordero alleged that Hernández and

her agents had misrepresented the value and profitability of the

Paris Paris Boutique, and that Hernández had breached her contract

with Cordero and had engaged in unfair competition by opening the

competing store in the same building as the Paris Paris. In

particular, she alleged that Hernández, personally and through Moll

and Peñalvert, misled her about the past profitability of the store

and about its likely value going forward. She also alleged that

FirstBank of Puerto Rico, which provided partial financing for the

deal, had failed to abide by several of its own risk-management

policies, was less than fully candid with Cordero about its

interest in the transaction going ahead, and so ultimately

contributed to Cordero's injuries. In addition, Cordero also

claimed that Hernández had violated an implied contractual

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obligation not to compete with her by opening up the new shop in

the same building as the Paris Paris, and that Martínez, who leased

space to both the Paris Paris and El Sol, violated a term of

Cordero's lease by permitting Hernández to open her new store next

door to the Paris Paris.

Cordero amended her complaint in April 2002 to include a

cause of action under the Racketeer Influenced and Corrupt

Organizations (RICO) Act, 18 U.S.C. § 1964(c). In the newly added

portion of the complaint stating a claim under RICO, Cordero

incorporated her fraud allegations against all defendants, and

further alleged that the defendants together comprised an

enterprise organized for the purpose of defrauding potential buyers

of the boutiques they developed. The specific RICO predicate that

Cordero attempted to allege was interstate wire fraud under 18

U.S.C. § 1343 (defining wire fraud) and § 1961(5) (incorporating

wire fraud as a RICO predicate): Cordero claimed that Hernández,

along with other defendants, made fraudulent representations first

to Cordero and later to her hired investigators, and that some of

these representations were made over the phone. Cordero never

explicitly alleged, however, that the phone calls were interstate

calls nor stated specifically during which calls, when, and by

whom, the fraudulent representations were made, failings which are

the nub of this appeal.

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 A drawn-out discovery battle ensued, during which Cordero

filed no fewer than four motions to compel discovery from a

seemingly reluctant set of defendants, and the court noted in one

of its orders compelling discovery that it was running out of

patience with the parties. Early on in the discovery period,

defendants moved together for 12(b)(6) dismissal for failure to

state a claim, and Cordero responded. Discovery proceeded apace,

while the motion to dismiss lingered on the docket. A year later,

the district court issued an order dismissing the RICO action with

prejudice pursuant to the defendants' 12(b)(6) motion and

dismissing the state law claims, over which it claimed1 only

supplemental jurisdiction, without prejudice.2

1
The district court asserted that its jurisdiction over the
state law claims was under the supplemental jurisdiction provision
of 28 U.S.C. § 1367, and declined to exercise that supplemental
jurisdiction. Never discussed was the possibility that the state
law claims related to the original bankruptcy proceedings and thus
came within the court's bankruptcy jurisdiction under 28 U.S.C. §
1334, but appellant does not raise the issue and does not seek
independent reinstatement of the state law claims.
2
Plaintiff accuses the court of dismissing the case sua
sponte, but there is some difference between dismissal of a claim
that has never been challenged, see, e.g., Cepero-Rivera v.
Fagundo, 414 F.3d 124, 130 (1st Cir. 2005), and dismissal where, as
here, the court acts in response to a defendant's motion but on
grounds not fully briefed by the movant. Nevertheless, if the
district court had any doubt that plaintiffs understood that they
were in danger of having their complaint dismissed on grounds they
had not had an opportunity to argue, the safest course would have
been to give notice of the proposed grounds for dismissal and to
take arguments on the question. See Ruiz Varela v. Sanchez Velez,
814 F.2d 821, 823 (1st Cir. 1987). While here we think the
defendants may not have raised the issue with sufficient clarity to
have given plaintiffs reason to anticipate dismissal on those

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 In order to make out a civil claim under RICO by way of

wire fraud, a plaintiff must allege that a group of defendants

"engaged in a scheme to defraud with the specific intent to defraud

and that they used . . . the interstate wires in furtherance of the

scheme," McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904

F.2d 786, 790 (1st Cir. 1990), and in particular that defendants

engaged in at least two instances of such predicate wire use, Ahmed

v. Rosenblatt, 118 F.3d 886, 888 (1st Cir. 1997). The Federal

Rules of Civil Procedure usually permit a plaintiff to make general

allegations in a complaint, see Fed. R. Civ. P. 8, but require more

specific pleading where a plaintiff alleges fraud, see id., 9(b).

In particular, under Rule 9 "the pleader is required 'to go beyond

a showing of fraud and state the time, place and content of the

alleged mail and wire communications perpetrating that fraud.'" N.

Bridge Assocs., Inc. v. Boldt, 274 F.3d 38, 43 (1st Cir. 2001)

(quoting Feinstein v. Resolution Trust Corp., 942 F.2d 34, 42 (lst

Cir. 1991)). "It is not enough for a plaintiff to file a RICO

claim, chant the statutory mantra, and leave the identification of

predicate acts to the time of trial." Id. (quoting Feinstein, 942

F.2d at 42). As noted, while plaintiffs asserted conclusorily in

grounds, we find any resultant error to have been harmless. If
there was error, it did not unduly prejudice appellant, because she
has now fully argued her position, both here and in a motion to
reconsider submitted to the district court, and after hearing
arguments we are convinced that the substance of the district
court's determination was correct. See Cepero-Rivera, 414 F.3d at
130.

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their amended complaint that they were alleging wire fraud, they

did not make the requisite allegations identifying specific

interstate phone calls by time, place, and content.3

Failure to plead with specificity in a RICO action may

merit dismissal. See id. at 44. Because, however, it will often

be difficult for a plaintiff to plead with specificity when the

facts that would support her claim are solely in the possession of

a defendant, we held in New England Data Services, Inc. v. Becher,

829 F.2d 286 (1st Cir. 1987), that a court faced with an

insufficiently specific claim may permit limited discovery in order

to give a plaintiff an opportunity to develop the claim and amend

the complaint. Id. at 290. Among the particular facts that a

plaintiff might under some circumstances have difficulty proving

without access to discovery is whether or not a particular

3
On a motion to dismiss, a court is required to accept as true
all well-pleaded factual allegations and draw reasonable inferences
in favor of the plaintiff. In re Stone & Webster, Inc., Sec.
Litig., 414 F.3d 187, 200 (1st Cir. 2005). The court need not
accept a plaintiff's assertion that a factual allegation satisfies
an element of a claim, however, nor must a court infer from the
assertion of a legal conclusion that factual allegations could be
made that would justify drawing such a conclusion. Resolution
Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir. 1993); see also
5B Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1357 (3d ed. 2004) ("[T]he court will not accept
conclusory allegations concerning the legal effect of the events
the plaintiff has set out if these allegations do not reasonably
follow from the pleader's description of what happened . . . .").
The court was under no obligation to read the plaintiffs'
complaint, which failed to allege with specificity the factual
predicates for a RICO violation, as implying that a RICO claim
could have been made out with specificity.

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communication passed over the interstate wires, and Becher

discovery therefore may be called for, though is not necessarily

required, when the interstate nature of a wire transaction is in

question. But Becher discovery (with concomitant leave to amend)

"is neither automatic, nor of right, for every plaintiff." Ahmed,

118 F.3d at 890. The threshold questions are whether "the specific

allegations of the plaintiff make it likely that the defendant used

interstate mail or telecommunications facilities, and the specific

information as to use is likely in the exclusive control of the

defendant." Becher, 829 F.2d at 290.

The court here considered, and decided against,

permitting further discovery under Becher. In doing so, the court

noted that discovery had already proceeded for three years.

Finding inter alia that the plaintiffs had not been diligent in

attempting to collect information that would allow them to fully

allege a RICO claim, cf. N. Bridge Assocs., 274 F.3d at 44, the

court thought there was no need to drag the case on further, and

dismissed the RICO claim with prejudice and the state law claims

without. Cordero timely appealed, arguing that the court's denial

of Becher discovery was in error.4 We conclude that the district

4
The only issue on appeal is whether the district court should
have given plaintiffs both more discovery and subsequent leave to
amend the complaint. This is because this case is not one in which
the deficiency in the pleading is a mere drafting oversight. The
question of Becher discovery plays no role in such a case, because
the issue of a drafting oversight or other inadvertent deficiency
in the pleading is a formal one that goes to the sufficiency of the

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court's order dismissing the suit was justified. There was no

showing under Becher that the defendants were in exclusive control

of any crucial information, and appellant had not demonstrated a

high likelihood that useful information would result from further

discovery.

First, there is little indication that the discovery

requested by the appellant would have produced any information that

would have permitted her to allege the requisite two interstate

communications with particularity. Appellant conceded below, in

her motion to reconsider, that all she was seeking was the

fulfillment of then-pending discovery requests, but every

indication is that appellant's discovery efforts were never

directed towards producing information that would enable her to

make out a RICO claim. The district court's opinion noted that

discovery had been underway for three years, and Cordero avers that

throughout that time the defendants in the case were stubbornly

written complaint itself and not to the underlying case that the
complaint is supposed to express. In such a case, the liberal
approach the Federal Rules take to pleading would almost certainly
demand that a plaintiff be given leave to amend. Here, however,
appellant has conceded that leave to amend without more discovery
would be useless. In a motion to reconsider filed with the
district court after the entry of judgment, plaintiffs asserted
that they "could not specify" which communications were interstate
communications because they did not have information to back up
such specific claims. On appeal, appellant argues on various
grounds that leave to amend without further discovery should have
been granted, but those arguments are precluded by this earlier
concession. Leave to amend standing alone is thus off the table,
and we need consider only whether further discovery should have
been ordered under Becher.

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resistant to her efforts to eke information out of them. She

attributes her lack of knowledge about the interstate nature of any

communications to the defendants' foot-dragging throughout the

discovery process.

Cordero cites to her early discovery requests pressing

Hernandez and other defendants for telephone records in order to

demonstrate that continued discovery would have been useful, but it

would require a strained reading of those requests to conclude that

Cordero had requested phone records relating to the sale of

Hernandez's stores or that any potentially useful request was

pending at the time the case was dismissed.5 The discovery

5
The requests are unhelpful to appellant for two reasons.
First, George Moll, the only defendant now argued to have engaged
in interstate communications, responded to the request to the
apparent satisfaction of the plaintiffs, meaning no discovery
request was pending against the one defendant whose response could
perhaps have fleshed out the RICO claim.
Second, the requests asked various defendants for records
showing dialed telephone numbers and to identify "which of those
numbers belong to a potential customer of Paris Paris Boutique,
Inc., El Sol de Puerto Rico, and/or any other business deal between
yourself and Mrs. Hernandez-Ballesteros." The implication on
appeal is that this request would have produced identifiable
records of telephone calls involving the sale of the Paris Paris,
but the request asks only for numbers "belong[ing] to customer[s]
of" Hernandez's various enterprises, and not for potential buyers
of those stores. Were there any doubt about how expansively the
question might be construed, we note that Moll responded to the
discovery request by saying, "I don't have that kind of
information. As a real estate broker, my job merely consisted in
obtaining a buyer for the purchase of Hernandez's business(es). As
such, I was contacted by the prospective buyers of Paris Paris'
shares and of El Sol de Puerto Rico." Plaintiffs' acceptance of
this response indicates that Moll correctly interpreted the
question to relate only to customers and not buyers of the stores,
and that plaintiffs never sought telephone records relating to the

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requests do not suggest that Cordero would be able to produce

information about the interstate nature of any communication with

any particular person during the course of the (allegedly

fraudulent) sale of the Paris Paris. The district court, which has

the best information about compliance with discovery, evidently so

concluded, disagreeing with plaintiffs that the problem was a

problem of obstruction on the part of the defendants.6 It did not

demonstrably err in concluding under Becher that further discovery

was unlikely to produce information that would make it possible for

plaintiffs to satisfactorily plead their complaint.

Nor is it anywhere explained why Cordero could not have

alleged interstate communications on the basis of information

already in her possession if there was any interstate activity to

be alleged. Cordero had hired detectives who allegedly spoke on

the telephone with defendant Moll. If these detectives called Moll

while Moll was in Puerto Rico and they were themselves in New York

sale of the store.
6
Cordero filed four motions to compel discovery. The first,
second, and fourth were all granted, and the third was never
decided. The docket sheet thus indicates that Cordero had some
difficulty getting the defendants to produce some of the
information she requested. On the other hand, it is instructive
that the district court, while it threatened to impose sanctions on
the defendants at one point, and on both parties at another, never
did impose such sanctions, suggesting that in its view the parties'
responses to one another's discovery requests were at least
minimally satisfactory. Because management of discovery is
primarily the business of the district court, the record ultimately
compels the conclusion that the district court was satisfied with
the efforts each party made to comply with discovery.

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or otherwise in another state, that information was in fact

uniquely in the plaintiffs' possession, not the defendants'. Thus

it is not clear why Cordero insists on appeal that discovery was

necessary in order to reveal information about the interstate

nature of any communications.

Becher discovery balances the general liberal pleading

policy of the Federal Rules against the more specific policy that

requires heightened pleading in fraud cases in order to filter out

frivolous, harassing claims. The decision to grant or deny Becher

discovery must be based, in the final analysis, on good, common

sense, and here there is every reason to doubt that any of the

calls between Cordero and the defendants were interstate calls, as

all parties were, so far as the record reveals, based in Puerto

Rico at all relevant times.7 Cf. N. Bridge Assocs., 274 F.3d at 44

(where allegations "strongly suggest" fraud was conducted without

use of interstate wires, Becher discovery was inappropriate). It

is also telling that Cordero failed to even allege interstate

communications on information and belief. Without any independent

reason to believe that the alleged calls were interstate

7
The hired detective, Esther Morrell, was a resident of New
York, a fact noted in the complaint. Her affidavit, however, gives
no indication that she performed any part of her investigation
while based anywhere but Puerto Rico. The question on appeal under
Becher is whether the district court was compelled to conclude that
it was likely that additional discovery would have produced useful
evidence, and the state of residence of the detective is not
enough, standing alone, to tip the balance in the appellant's
favor.

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communications, the district court could permissibly have weighed

Cordero's failure to allege such in favor of an inference that the

calls were all intrastate. While information-and-belief pleading

is not sufficient to satisfy the rule requiring pleading with

particularity, see Becher, 829 F.2d at 288 (citing Wayne

Investment, Inc. v. Gulf Oil Corp., 739 F.2d 11, 13 (1st Cir.

1984)), in this case such pleading would have at least given the

district court some reason to think that interstate communications

might be at issue. Because there was no allegation that any calls

went over the interstate wires nor a credible suggestion from the

plaintiffs that the obstacle to their making such allegations was

insufficient discovery, this case appears on its face to be not a

RICO action, but an instance of that "localized fraud" that

"Congress intended to exclude from the scope of" the wire fraud

statute. United States v. Giovengo, 637 F.2d 941, 943 (3d Cir.

1980). Since, as we have noted, the appellant has conceded that on

the basis of information currently in her possession she could not

make out a RICO claim, and because the district court by all

appearances correctly determined that further discovery was

unlikely to produce more and relevant information, it properly

dismissed the suit.

For the foregoing reasons, the order of the district

court is affirmed.

Dissent follows.

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 CYR, Senior Circuit Judge (dissenting). The majority

opinion, affirming the dismissal of the Cordero RICO claim, with

prejudice, fundamentally misinterprets and misapplies circuit

precedent, see New England Data Servs., Inc. v. Becher, 829 F.2d

286 (1st Cir. 1987), and discounts that (i) the plaintiff

diligently complied in good faith with all district court

procedures and orders; (ii) the defendants repeatedly and without

explanation flouted district court orders directing them to respond

to the plaintiff’s legitimate discovery requests; and (iii) the

district court’s sua sponte alternative rationale for the Rule

12(b)(6) dismissal – never raised in the defendants’ motion to

dismiss – unfairly blindsided the plaintiff. Therefore, I

respectfully dissent.

Cordero contends on appeal that, even assuming arguendo

that her amended complaint did not allege with sufficient

particularity the requisite interstate communication to establish

predicate acts of mail/wire fraud, she was and remains prepared to

amend the complaint to cure the putative pleading defect.

Specifically, she assures this court that she possesses a "good

faith" basis for alleging that defendant George Moll telephoned her

hired investigator, Esther Morell, at her New York residence for

the purpose of arranging an appointment for Morell, posing as a

prospective buyer, to visit the store. Further, Cordero maintains

that she could amend her complaint to allege that the advertisement

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relating to the sale of the store, which the defendants had placed

in a local newspaper, would have reached prospective buyers beyond

Puerto Rico.

However, the majority opinion tellingly fails to consider

this pleading proffer. Moreover, it fails as well to explain why

these allegations would not cure the putative pleading defect. The

majority instead dismisses the Cordero argument on the ground that

it was somehow reasonable for the district court, acting pursuant

to its broad discretion under Becher, to dismiss the RICO

complaint, with prejudice, because all parties in the case were

based in Puerto Rico, and following three years of discovery it

seemed unlikely that Cordero could establish that any interstate

communication occurred during the course of the defendants’ alleged

scheme.

I

In order adequately to appreciate the gravity of the

legal error and inequity inherent in the majority holding, it is

necessary to outline the procedural history in greater detail. The

record demonstrates that: (i) the defendants consistently asserted

the untenable position that the Cordero RICO claim is patently

frivolous and undeserving of serious consideration, thus entitling

defendants unilaterally to decline her discovery requests and to

disregard the district court orders compelling discovery; (ii) the

defendants have never denied – either in the district court or on

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appeal – that they violated discovery rules; (iii) the defendants

ignored and failed to comply with the district court's orders,

without explanation; and (iv) neither the defendants nor the

district court ever placed Cordero on notice that the adequacy of

the “interstate communication” allegation in her amended complaint

was in question.

Defendants’ recalcitrance began early on. Hernandez and

Moll failed to answer, then defaulted after Cordero submitted her

original complaint for breach of contract. When these defaults

were vacated, defendants did not submit a motion to dismiss, and

the ensuing scheduling-conference order stated that the parties

mutually agreed to conduct discovery (viz., depositions,

interrogatories, and document requests).

On May 1, 2002, Cordero submitted a thirteen-page amended

complaint, which added the RICO count and attached the sworn

statement of her hired investigator, Esther Morell. The amended

complaint alleged that (i) defendants had engaged in “wire fraud in

violation of 18 U.S.C. § 1341,” (ii) defendants “conspired to sell

[the two stores] to several persons with the aid of the telephone

and other means,” (iii) defendants “posted advertisements on the

store and on [sic] at least one local newspaper seeking potential

buyers,” (iv) these advertisements “induced potential buyers to

call Mr. Moll to arrange a meeting,” (v) “Mrs. Morell called Mr.

Moll at the telephone number provided by him on the advertisements

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and arranged with him for a viewing of the store,” and (vi) Mrs.

Morell was a resident of Brentwood, New York. In her scheduling-

conference memorandum, Cordero further stated that she would

present, as documentary evidence, “[a]ll paperwork related to the

attempt by [defendants] to sell El Sol de Puerto Rico to . . . Ms.

Esther Morell.” The defendants submitted no opposing scheduling

conference memorandum.

In its scheduling conference order, the district court

(i) granted defendants until November 6 to submit a motion to

dismiss, upon pain of waiver, (ii) authorized continuation of the

parties’ mutually agreed-upon discovery (including the production

of documents), and (iii) scheduled the jury trial for April 14,

2003. The defendants failed to file a motion to dismiss by the

court-ordered deadline, electing instead, on November 18, to file

an untimely motion to extend the deadline until November 27. On

November 27, prior to the district court's allowance of the motion

to extend the deadline, the defendants filed their motion to

dismiss.

The defendants sought dismissal of the RICO claim

exclusively on the grounds that (i) Cordero’s “improbable”

allegations of fraud did not constitute “racketeering activity,”

and (ii) Cordero obviously “concocted” a RICO claim, by hiring

Morell to serve as a prospective buyer of El Sol, for the mere

purpose of coercing the defendants into settling the contract

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dispute. At no point in their motion did defendants remotely raise

the argument that Cordero’s amended complaint failed adequately to

allege the occurrence of any interstate communication in

furtherance of the alleged fraudulent scheme. Their motion

concluded with the request that the district court dismiss the RICO

claim “on the above stated grounds.”

Not surprisingly, the Cordero opposition to the motion to

dismiss focused exclusively on the grounds for dismissal raised in

the defendants’ motion to dismiss, and never discussed the adequacy

of her “interstate communication” allegation. Cordero aptly

pointed out that the defendants’ factual contention that she had

fabricated the RICO claim was not proper grist for a Rule 12(b)(6)

dismissal, since the issue was whether her mail/wire fraud

allegations were adequately pled, not whether she had adduced

evidence to prove her allegations. Cordero reiterated that the

verified and sworn statements attached to her amended complaint

were “very fact specific” in their disputation of the defendants’

“speculative” contentions, and further alleged that the defendants

engaged in a fraudulent scheme – viz., not one, but a series of at

least two fraudulent sales. She also noted, correctly, that the

RICO statute did not require that she prove that Morell had

actually been injured by the defendants’ scheme. In a footnote

describing the elements of mail and wire fraud, Cordero asserted

that the fraud statutes do not require that an alleged use of the

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mails or the wires itself have been a vehicle for making a

fraudulent representation, but instead may simply have been

“incidental” to or in furtherance of the scheme.

Cordero observed yet again that her amended complaint had

alleged that defendants “tried to sell [El Sol] by placing ads in

the newspaper [El Dia Nueva] to attract other victims,” and that

“we have been able to obtain through discovery the names of other

unsuspecting potential victims who approached [defendants] after

reading the newspaper advertisements.” Cordero expressly offered

to provide the discovery documents to the court, if required. She

stated, for example: “We have alleged two wire fraud acts in the

Complaint [and] [i]f there is a need for it, we will present to the

jury other acts of fraud which have and will continue to be

discovered through the discovery process.” She asserted: "We will

[prove the allegations in the complaint] on [sic] trial with the

evidence already at hand and with any additional evidence obtained

through discovery,” and in the same vein, that “[d]uring trial, we

will present the evidence available before the Complaint was filed,

plus all evidence gathered as a result of the discovery process.”

(Emphasis added.) From November 2002 through August 2004, the

defendants’ motion to dismiss languished on the docket, unresolved.

From January through December 2003, Cordero lodged four

motions to compel discovery, in which she contended that the

defendants blatantly and without explanation ignored her discovery

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requests for more than a year, including her requests for their

telephone records, in direct contravention of the district court

scheduling orders. Defendants Hernandez and Moll filed no

oppositions to any of these motions. On March 23, 2003, the

district court ordered defendants “to immediately and adequately

answer all of Plaintiff’s interrogatories,” and “to comply with the

discovery of documents and all other disclosures as requested by

Plaintiff and required by Rule 26.” Although the court decided to

impose no sanctions on defendants, it stated: “defendants are

forewarned that failure to comply with this order will result in

the imposition of sanctions.”

Six months later, Cordero submitted another motion to

compel discovery, contending that defendants had yet to comply with

the discovery orders. Cordero requested, inter alia, a status

conference to resolve the discovery violation issue. Once again,

the defendants failed to respond to the Cordero motion. On August

22, the district court directed the parties to meet within fifteen

days in an effort to resolve their discovery disputes, and to

inform the court regarding the results of their efforts within five

days thereafter. The court stated: “[T]his case has been lagging

behind the established discovery schedule due to discovery disputes

that could be easily resolved with effective communication and

collaboration between the parties. . . . [T]he court forewarns that

-21-
[sic] parties that if further intervention on our part is needed,

we will not hesitate to impose the necessary sanctions.”

Within days of the district court order, Cordero

conscientiously submitted an informative motion, stating that she

had attempted to arrange a meeting with the defendants, but that

the defendants had asserted schedule conflicts. Cordero announced

her intention to submit another motion to compel discovery in the

event defendants failed to comply with the district court order to

arrange a meeting of the parties. The defendants submitted no

informative motion to the court. On November 7, two months after

the deadline for filing the informative motion, Cordero submitted

a stipulation, for herself and in behalf of the defendants, stating

that the parties had been unable to resolve their discovery

disputes.

Thereafter, Cordero submitted a fourth motion to compel

discovery, once again requesting that the defendants supply, inter

alia, their telephone records, and yet again requesting that the

court impose sanctions for the unexcused discovery violations.

Nevertheless, the defendants failed to respond to the motion,

whereupon the district court referred the motion to a magistrate

judge for appropriate action. The magistrate judge directed

Hernandez to respond to the motion to compel not later than

December 30, 2003, otherwise “this motion shall be automatically

granted.” Once again, Hernandez submitted no response. On

-22-
February 23, 2004, Cordero submitted an informative motion

detailing the discovery materials withheld by the defendants.

On August 30, 2004, nearly two years after defendants

submitted their motion to dismiss, and without having resolved the

pending issue relating to the defendants’ noncompliance with the

discovery orders, the district court, sua sponte, dismissed the

RICO claim, with prejudice, on the ground – never raised in the

motion to dismiss – that her amended complaint failed adequately to

plead any occurrence of the requisite interstate communication, and

that the existence of any such communication was improbable given

that all parties resided in Puerto Rico. Additionally, the

district court stated that Cordero was neither entitled to more

Becher discovery nor to amend her complaint, given that (i) she had

been granted three years to discover the requisite interstate

communication, yet failed to do so; (ii) the court had granted

several Cordero motions to compel discovery from the defendants;

and (iii) Cordero already had amended her complaint once to include

the RICO count. Cordero now appeals from the district court

judgment. Yet the intractability of the defendants persists, as

they now decline to submit the required appellate briefs in support

of the district court rationale which they presumptively support.

-23-
 II

Assessed against the record on appeal, the district court

decision is plainly wrong and demonstrably inequitable,

notwithstanding the salvage attempts advanced by the majority.

As its initial premise, the majority opinion asserts that

the amended complaint submitted by Cordero is too “conclusory,” in

that it “never explicitly alleged . . . that the phone calls were

interstate.” Quite the contrary. The amended complaint explicitly

alleges that the defendants committed wire fraud in violation of 18

U.S.C. § 1341 by “conspir[ing] to sell [the two stores] to several

persons with the aid of the telephone and other means,” and by

“post[ing] advertisements on the store and on [sic] at least one

local newspaper seeking potential buyers.” More specifically, the

amended complaint then alleges that Moll and Morell, who was a

resident of New York, engaged in at least one telephone

conversation for the purpose of arranging a meeting at El Sol.

In its effort to skirt the longstanding rule which

requires that pleadings be liberally read, see E. Food Servs. v.

Pontifical Catholic Univ. Servs. Ass’n, 357 F.3d 1, 8 (1st Cir.

2004), the majority seeks to cast these concrete factual

allegations as too “conclusory,” or as mere “legal conclusions,”

with no explanation whatsoever as to how an alleged phone

conversation between a resident of Puerto Rico and a resident of

New York misses the mark. The only missing information is the

-24-
specific date or dates of the alleged telephone communication,

which information was the target of the Cordero discovery requests

for phone itemizations. While one might well grant that these

initial allegations could have been even more specific (e.g., by

including the dates of the phone calls), it is utterly unfair to

characterize the amended complaint as incurably lacking in

specificity respecting the occurrence of an interstate

communication. More importantly, the entire purpose of the rule

allowing for liberal amendment of pleadings is to permit a

plaintiff, who in good faith but mistakenly fails to allege facts

with sufficient specificity, a fair opportunity to cure just such

deficiencies once brought to his attention. Cordero has been

afforded no such opportunity.

A. The Discovery Delays and/or Violations

In its purported deference to the district court’s

superior sense for whether continued discovery would likely

disclose evidence of an interstate communication, the majority

opinion endorses the district court's discretionary decision to

deny further Becher discovery on the ground that Cordero had not

been diligent in pursuing discovery. Whatever the scope of the

discretion Becher would accord the district court in this matter,

the instant record contains not a shred of evidence that Cordero

was lacking in diligence, nor did the district court cite any such

evidence. Thus, the rationale adopted by the majority ultimately

-25-
relies on utter deference to the district court decision,

notwithstanding the undisputed allegations that out-of-state

parties are involved in this case.

The majority opinion first suggests that Cordero did not

even request discovery information which reasonably might lead to

evidence of interstate communications, or in the alternative, that

Cordero somehow “accepted” that no such evidence was in defendants’

possession when she did not object to Moll’s response to the

“customer” interrogatory. The proposition that the defendants were

in “substantial compliance” with discovery orders, which was not

even broached by the district court, is demonstrably flawed.

First, Cordero never “accepted” Moll’s rather lame

“customer” answer; she simply chose not to submit yet another

motion to compel against Moll, focusing instead on Hernandez.

Elsewhere in the discovery requests submitted to Moll, Cordero

clearly had requested Moll's phone records in relation to his

attempts to sell the two stores. Further, it cannot be seriously

maintained that Cordero did not seek – from all defendants (not

only Moll) – detailed itemizations of their phone records during

the time period encompassing the sale of the two stores. In

letters to defense counsel summarizing her documentary requests,

Cordero made her intended target pellucid: “List of all the

telephone numbers belonging to, or used by, Mrs. Hernandez

Ballesteros and/or Mr. George Moll, and/or itemized bills of such

-26-
telephones, and/or authorization to get such bills, for the period

1/1/00 to 12/31/02." Cordero has never suggested that Moll was

the only defendant likely to have contacted Morell in New York.

Second, the defendants have never contended, despite four

motions to compel, see infra, that they were in substantial

compliance with these discovery requests. Indeed, the district

court deliberately bypassed any determination as to whether or not

the defendants were in substantial compliance. Thus, the majority

opinion purports to adopt a finding of fact never made below. It

suggests that we should infer from the district court’s refusal to

impose sanctions that the defendants were in substantial compliance

with their discovery obligations, yet it is uncontested that the

district court ordered the defendants to comply, a determination

which was plainly superfluous had they already been in substantial

compliance. The district court’s refusal to impose sanctions

suggests, at most, that it did not care to inquire into the extent

of the defendants’ noncompliance, and that absent that

determination and an additional finding that the defendants’

noncompliance was deliberate and in bad faith, sanctions could

neither be imposed nor upheld. See, e.g., Koken v. Black & Veatch

Constr., Inc., 426 F.3d 39, 53 (1st Cir. 2005).

As Cordero undeniably sought the defendants’ phone

records, the only issue on appeal is whether the district court

correctly held her accountable for discovery delays. As the above-

-27-
cited procedural history abundantly demonstrates, see supra Section

I, Cordero assiduously complied with all scheduling orders and

deadlines, promptly submitted motions to compel discovery whenever

defendants balked, and kept the district court currently informed.

In contrast, the defendants blithely ignored the district

court's orders, as well as its deadlines, declining even to respond

to or deny Cordero's discovery allegations. The record utterly

betrays the defendants’ litigation strategy: decline to take

Cordero’s RICO allegations seriously, decline to cooperate with her

legitimate discovery attempts, and outwait the district court’s

patience until, hopefully, the case "goes away." Not even the

ablest revisionist recordreading could warrant affirmance of the

insupportable district court finding that Cordero was less than

diligent in her conduct of discovery.8 For instance, the magistrate

judge directed that the defendants respond to the fourth Cordero

motion to compel discovery by December 30, 2003, otherwise “this

motion shall be automatically granted.” The defendants submitted

8
As noted, supra, in ruling on the early Cordero motions to
compel discovery, the district court forewarned defendants against
persisting in their discovery abuses upon pain of sanctions.
Inexplicably, starting in August 2004, the district court began to
issue orders in which it suggested, without explanation, that the
“parties” were to blame for discovery delays, and threatened to
sanction the parties. Yet, the defendants had neither alleged
discovery abuses by Cordero, nor sought sanctions against her. In
any event, the defendants thereafter failed to respond to the
fourth motion to compel filed by Cordero, which was “automatically
granted” on December 30, 2003. Hence, the defendants effectively
admitted that they – not Cordero – caused the alleged discovery
delays.

-28-
no response contravening the Cordero allegations of discovery

violations, and defendants now persist in their silence by

absenting themselves as parties to this appeal. Thus, the record

plainly warrants the clear and fair conclusion that the defendants,

per their own admission, failed to comply with applicable discovery

rules and orders. The readiness of the majority to overlook the

district court decision to bypass the pivotal issue as to who

caused the discovery delays is of monumental consequence to

Cordero. Surely it is entirely reasonable to anticipate that, had

defendants provided the requested discovery materials and telephone

records, Cordero may well have obtained additional evidence with

which to plead the requisite interstate communication with greater

specificity.

The majority opines that a Rule 12(b)(6) dismissal was

warranted because all “parties” in the case are Puerto Rico-based,

yet it is sufficiently alleged in the Cordero complaint that one of

the prospective buyers of El Sol and target of defendants’

fraudulent representations is a resident of New York. That

undisputed fact distinguishes the instant case from those in which

all persons allegedly targeted by the fraud were from within the

same State, hence it could simply be presumed that the fraudulent

scheme was “localized.” I can find no authority for the view that

the non-resident must be an actual litigant in the case, especially

since the Cordero RICO claim depends upon proof of a “pattern” of

-29-
racketeering activity inflicted against various third parties. If,

as alleged, defendants used interstate communications to lure a

third party into their scheme, and if that third party resided

outside the state, it is not at all clear how the district court

can assume that no evidence of interstate communications could be

retrieved from the defendants during discovery.

B. Right to Amend the Interstate Communication Allegation

The majority then turns to the district court's

alternative ground for dismissal: the failure adequately to plead

the time, place, or content of a particular telephone call. The

results are no better, however. Continuing to focus exclusively on

whether Cordero was entitled to further Becher discovery, the

majority seeks to avoid Cordero's discrete contention on appeal

that she was entitled, at least, to an opportunity to amend her

complaint based on her pleading proffer on appeal. Thus, the

majority opinion misapplies the fundamental principles established

by this court in Becher.

In the most typical Becher scenario, the plaintiff

submits a RICO claim, but before discovery commences the defendants

file a motion to dismiss, asserting that the complaint does not

allege the fraudulent conduct with sufficient specificity as to

time, place, and content. The Becher case recognizes that, where

this particularized evidence of a fraudulent scheme likely is

within the exclusive possession and control of defendants, the

-30-
district court should consider whether to allow the plaintiff

limited discovery to enable compliance with these heightened

pleading requirements. Should the plaintiff be unable to

demonstrate at this early stage that the defendants likely have

such evidence, however, the complaint properly may be dismissed on

the assumption that the plaintiff utilized all the evidence at her

disposal in making good faith allegations of fraud, and as yet

possesses no other evidence which would cure the pleading

deficiency. Obviously, in such a scenario Becher discovery is

futile, just as allowing the plaintiff an opportunity to amend her

complaint would be futile.

In implicitly rejecting the contention that Cordero is

entitled (at least) to an opportunity to amend her complaint, the

majority mechanically applies Becher in circumstances far removed

from the typical scenario described above. First, the defendants

never sought to prevent Becher discovery; indeed, the district

court scheduling orders indicate that defendants readily agreed to

discovery on the RICO claim. Further, even if the district court

correctly held that Cordero received all the Becher discovery she

wanted or deserved, Becher does not authorize dismissal, with

prejudice, at so late a post-discovery stage in the proceedings,

without first allowing the plaintiff an opportunity to come forward

with any curative materials plaintiff already may have gathered

during discovery, as well as curative materials she may have had in

-31-
her possession and control prior to the commencement of discovery.

In other words, once the plaintiff has learned for the first time

that the court considers her allegation defective, Becher does not

disentitle her from curing the defect if she can do so. In

opposing the defendants’ motion to dismiss, Cordero repeatedly

informed the court that, if so ordered, she was prepared to proffer

“evidence available before the Complaint was filed,” as well as

“the evidence already at hand.”

For example, Cordero contends on appeal that she can

amend her complaint to allege a particular telephone call from Moll

to Morell at her New York cell phone number. That telephone call,

even if it contained no fraudulent representation, plainly

satisfied the mail-and-wire-fraud statute requirement that the

interstate communication must “further” the alleged fraudulent

scheme to sell the stores, since Moll allegedly utilized the phone

call to arrange a time for Morell to visit El Sol. See, e.g.,

United States v. Pimental, 380 F.3d 575, 586 (1st Cir. 2004)

(noting that, under mail/wire fraud statutes, the interstate

communication need not itself contain fraudulent representations,

provided defendants use the communication to execute the fraudulent

scheme). Furthermore, this is not the type of evidence which

implicates Becher, since presumably the Morell cell phone records

have always been in Cordero’s control and possession, and not in

the defendants’ possession, even before discovery commenced in this

-32-
case. The majority advances no contention that the proffered

allegation would not cure the pleading deficiency which the

district court identified.

Similarly, Cordero contends on appeal that she can amend

her complaint to allege that the newspaper advertisements for the

sale of El Sol constituted an interstate wire communication –

hardly a farfetched allegation. El Nuevo Dia, a local newspaper,

surely circulates to some extent outside of Puerto Rico (e.g., in

mainland libraries), and indeed, it is published as well on the

newspaper’s internet website, see www.endi.com.;

www.clasificados.endi.com/clasificados. (listing real estate

classifieds). Cf. United States v. Runyan, 290 F.3d 223, 238-39

(5th Cir. 2002) (noting that transmission of information over

internet satisfies “interstate” requirement). The defendants

reasonably could have foreseen that their advertisements would

reach prospective off-island purchasers.

Rather than assess Cordero’s pleading proffer on its

merits, however, the majority asserts that she conceded that she

could not cure the putative pleading deficiency with information

she already had on hand, but needed further discovery. It cites

her postjudgment motion for reconsideration, in which she argued:

We do not argue against this
Court’s assertion that a
R.I.C.O. cause of action must
be stated with specificity, the
elements of the federal
criminal action in particular.

-33-
 However, although we have been
aware all along that interstate
communications were used, we
could not specify which because
the defendant’s (sic) were
dragging their feet, with this
Court’s approval through its
inaction. Not much need be
argued, the Court is well aware
of our efforts and of the
defendant’s (sic) obstruction
to them. What is surprising is
that now the Court uses the
defendant’s (sic) failures to
comply with the laws and the
Court’s orders against the
victims of those failures. We
really don’t understand this
Court’s posture in light of all
the abuses by the defendants
before, and during the case.”

The majority’s assessment of the legal import of the quoted

language is seriously flawed.

First, after Cordero filed the instant appeal, the

district court granted her motion to withdraw the pending motion

for reconsideration. Thus, the reconsideration motion is a legal

nonentity. Had the majority truly wanted to hold Cordero to the

contents of the motion to withdraw, fairness would demand that we

dismiss this appeal for lack of jurisdiction, allow her to

reinstate her motion to reconsider in the district court, and await

the district court’s disposition of that motion on its merits. The

majority cannot have it both ways.

Second, the passage cited from the motion is not even a

concession. Cordero submitted her motion to reconsider only four

-34-
days after judgment, and she elected to focus on the unfairness of

the district court’s unexpected holding that she was responsible

for discovery delays. In that fuller context, the intent of her

language is clear: how could the district court dismiss her RICO

claim because no evidence of an “interstate communication” had

turned up when it was the defendants who were fully responsible for

that failure? Cordero simply asserts that, before the court

dismissed her RICO claim, she had the right to expect that the

defendants would fully comply with her discovery requests and turn

over all the evidence in their exclusive possession concerning

interstate communications which remained in defendants' exclusive

possession. At this juncture, Cordero reasonably may not have

reviewed the voluminous material that she had on hand for evidence

that defendants had engaged in an interstate phone conversation or

placed their advertisement in a newspaper with interstate

circulation. Whatever the reason, the fact that she did not

include this alternative argument in her motion obviously does not

constitute a forfeiture of her right to make that argument on her

appeal from the underlying judgment of dismissal. See Colon-

Santiago v. Rosario, 438 F.3d 101, 111 (1st Cir. 2006) (“[A]lthough

a party may file a motion for reconsideration, filing such a motion

in no way obligates a party to bring up every possible reason for

reconsideration or else waive the right on appeal to challenge any

argument not brought up.”). Once the district court granted her

-35-
motion to withdraw her motion to reconsider, therefore, Cordero

remained free to appeal the underlying sua sponte dismissal on any

ground she would have raised had she received prior notice and

opportunity to be heard, including that she possesses evidence upon

which she could base a good-faith allegation that Moll made an

interstate communication to Morell in New York.

Finally, the majority opinion’s characterization of the

motion language as a “concession” makes no sense. Cordero’s

pleading proffer on appeal states unequivocally that she has two

specific pieces of evidence on hand which will cure the “interstate

communication” allegation, yet the majority has not attempted to

identify any sound basis for concluding that the Cordero proffer

would not effect a cure. There is no record evidence to suggest

that Cordero is lying, nor have defendants contested the bona fides

of her proffer (or for that matter any other issue). To suggest

that the Cordero motion to reconsider intentionally or irrevocably

conceded the opposite proposition effectively penalizes Cordero for

failing to muster all her arguments in her motion for

reconsideration, a penalty specifically proscribed by our case law.

See Colon-Santiago, 438 F.3d at 111.

C. Due Process

The core problem with the rationale adopted in the

majority opinion is that normally we liberally allow motions to

amend in reviewing Rule 12(b)(6) dismissals. See E. Food Servs.,

-36-
357 F.3d at 8 (noting that leave to amend “is often granted not

only pretrial but after a dismissal for failure to state a claim

where the court thinks that the case has some promise and there is

some excuse for the delay”). The liberal nature of the rule should

obtain with special force in the instant case since Cordero was

never placed on notice of the alleged pleading deficiency prior to

the dismissal of her complaint by the district court:

Sua sponte dismissal is
rarely appropriate . . . . “Sua
sponte dismissals are strong
medicine, and should be
dispensed sparingly.” “The
general rule is that ‘in
limited circumstances, sua
sponte dismissals of complaints
under Rule 12(b)(6) . . . are
appropriate,’ but that ‘such
dismissals are erroneous unless
the parties have been afforded
notice and an opportunity to
amend the complaint or
otherwise respond.’”

Cepero-Rivera v. Fagundo, 414 F.3d 124, 130 (1st Cir. 2005)

(citations omitted).

Here, however, the "alternative rationale" adopted by the

district court utterly blindsided Cordero. The majority implies

that the district court’s dismissal with prejudice may not be a

true sua sponte dismissal, in that this is not a case where

defendants failed to raise an issue in their motion to dismiss, but

where the grounds for dismissal were not “fully briefed.” In all

fairness, however, the defendants are not guilty of briefing the

-37-
issue of the inadequacy of the interstate communication allegation

less than “fully.” The defendants’ motion to dismiss did not even

remotely mention or challenge the adequacy of the Cordero

“interstate communication” allegation. The defendants explicitly

moved for dismissal only “on the above stated grounds.” As no one

contested the adequacy of this latter allegation, Cordero was

reasonably entitled to conclude that the defendants were conceding

the allegation, and she therefore rationally refrained from

interposing opposition.

Thus, endorsement of the district court’s sua sponte

rationale implicitly would demand that the Cordero opposition to

the motion to dismiss have contained a refutation of every

conceivable ground for dismissal, even including those never raised

in the defendants’ motion. Never before have we held plaintiffs to

so impossible a standard. Moreover, had the district court been

concerned about this matter, at the very least it should have given

Cordero notice and an opportunity to be heard on the issue prior to

deciding whether to dismiss her amended complaint. At that

juncture, Cordero could have made the pleading proffer to the

district court in the first instance, then requested leave to amend

the complaint to cure the putative defect, rendering the instant

appeal utterly unnecessary.

Citing Cepero-Rivera v. Fagundo, 414 F.3d 124, 130 (1st

Cir. 2005), the majority opinion proposes that any due process

-38-
violation is harmless because Cordero has made her arguments on

appeal, and those arguments have been dismissed on the merits. A

sua sponte dismissal may be harmless in some circumstances, but

this certainly is not such a case. Cepero, for example, found a

dismissal harmless because the plaintiff’s claim, even if not

subject to dismissal under Rule 12(b)(6), nonetheless was subject

to dismissal on summary judgment (viz, failure of plaintiff to

establish a prima facie case). Here, by contrast, the defendants

never moved for summary judgment, and the only ground for dismissal

was failure to allege, not failure to make an adequate Rule 56

proffer. Hence, the district court’s sua sponte dismissal of the

Cordero RICO claim can only be deemed “harmless” if, on appeal, we

afford her the opportunity to present her arguments regarding her

ability to amend her complaint to cure the putative deficiency in

her interstate communication allegation, as she would have done had

the district court given her notice and an opportunity to be heard

before the court dismissed her complaint. See Curley v. Perry,

246 F.3d 1278, 1284 (10th Cir. 2001) (“We hold similarly that the

lack of prior notice of a sua sponte dismissal with prejudice for

failure to state a claim is harmless when, as here, the plaintiff

has a reasonable post-judgment opportunity to present his arguments

to the district court and the appellate court, including the

opportunity to suggest amendments that would cure the complaint's

deficiencies.”); Buchanan v. Manley, 145 F.3d 386, 389 (D.C. Cir.

-39-
1998) (same). As the majority opinion does not accord her that

very opportunity, see supra Section II.B., I am unable to discern

how any due process violation may be considered “harmless.”

After reviewing the record, it is not difficult to

comprehend the district court’s pique at the lengthy delays, but

its impatience was plainly misdirected at the wrong party. A Rule

12(b)(6) dismissal, with prejudice, cannot be affirmed merely on an

unarticulated hunch that a RICO claim lacks merit. Although

procedural rules are designed to filter out non-meritorious claims,

plainly not all claims can be adjudicated under Rule 12(b)(6),

which inquires only whether the plaintiff has pleaded a cause of

action, as distinguished from whether she has proven it. As the

defendants’ intransigence precluded the completion of discovery,

the Cordero claim has yet to be tested under the more demanding

summary judgment rubric.

III

The majority’s implicit decision to deny the reasonable

request that Cordero be accorded her first adequate opportunity to

address the “interstate communication” issue entails several

serious consequences which surely ought, in all fairness, not be

allowed to obtain. First, it penalizes an exemplary plaintiff who

doggedly pursued discovery, and played by the rules. Second, it

rewards defendants who egregiously assumed they may ignore a legal

claim which they consider non-meritorious, and that if they can

-40-
ignore it long enough, the trial court ultimately will oblige by

dismissing the claim in utter exasperation. Such blatant

shenanigans can be countenanced only at the expense of establishing

an extremely unwise precedent. The correct course would be to

vacate the dismissal with prejudice, remand the case to the

district court, either for a definitive disposition of the Cordero

discovery motions on the merits, or permit Cordero an opportunity

to amend her complaint to cure the putative deficiency in her

“interstate communication” allegation. For these reasons, I

respectfully dissent.

-41-