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-
Cordero-Hernandez v. Hernandez-Ballestero
Court: Court of Appeals for the First Circuit
Date filed: 2006-06-02
Citations: 449 F.3d 240
Copy Citations