Opposition Brief — Pitts v. Turner & Boisseau

ll

In The

Supreme Court of the United States

October Term, 1988

*—

DR. ROBERT E. PITTS,

Petitioner,

TURNER AND BOISSEAU, CHARTERED, LEE TURNER,

ELDON L. BOISSEAU, HAL D. MELTZER, JOHN L. CAR-

MICHAEL, DEBORAH L. CARNEY, CASEY LAW,

CYNTHIA G. BARRETT, INTERSTATE NATIONAL

INSURANCE, MAGINNIS AND ASSOCIATES, ROBERT

T. STEPHAN, HAROLD S. YOUNGENTOB, H. PHILLIP

ELWOOD, ARTHUR E. PALMER, EDWIN D. SMITH,

AND JUSTICE B. KING,

Respondents.

-.

» 4

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

+

BRIEF IN OPPOSITION TO CERTIORARI

+

Louts F. EisENBARTH

Attorney of Record

Jerrrey W. JONEs

SLOAN, ListROM, EISENBARTH, SLOAN

& GLASSMAN

714 Capitol Federal Building

Topeka, Kansas 66603

(913) 357-6311

Attorneys for Respondents

December 16, 1988

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

3\f

QUESTION PRESENTED

(Respondents are not satisfied with the manner in

which Petitioner has framed the issues. In accordance

with Supreme Court Rule 34.2, Respondents submit the

following which they believe to be the only legal issue

genuinely presented in this case.)

HAS PETITIONER DEMONSTRATED ANY REASON

JUSTIFYING THE ISSUANCE OF A WRIT OF

CERTIORARI?

ii

TABLE OF CONTENTS

Page

Ouestion Presented... ....1++s<senen keene i

Table of Contents ....: . +i sss0400 6 Omen ii

Table of Authorities.......+:.t3k00beeane eee iii

Statement of the Case. « ..50:sks) sage 1

Argument ........5550565s000800e eee een 4

Conclusion ...... 120020506 ¢08 50 een 17

Appendix. .......5+0ss0sss06406) eee App. 1

iii

TABLE OF AUTHORITIES

Cases:

Brannon v. Eisenstein, 804 F.2d 1041 (8th Cir. 1986) ..... 8

Brown v. Chaffee, 612 F.2d 497, 501 (10th Cir. 1979) 13, 14

Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct.

2894, 2911-12, 57 L.Ed.2d 895 (1978) ............... 6

Chavez v. City of Santa Fe Housing Authority, 606

Ce ee 5

Clulow v. State of Oklahoma, 700 F.2d 1291, 1303

Aaa ceases sieeene ses navdcessan ed 14

Condict v. Condict, 815 F.2d 579 (10th Cir. 1987)...... 12

Duane v. Altenburg, 297 F.2d 515 (7th Cir. 1962)....... 9

Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d

Ua ee Raia acd ehesedeyssenetbecesssces 5

Goetz v. Windsor Central School District, 593 F.Supp.

ST RM Rs WON sons ecccccectccesenccesecé 14

Harlow v. Fitzgerald, 457 U.S. 800, 808, 102 S.Ct.

Seats atom, Fe bee. SPO CISEZ) ... 2.202. cceceeee 5

Hayduk v. Lanna, 775 F.2d 441 (1st Cir. 1985) ......... 9

Holmberg v. Morrisette, 800 F.2d 205 (8th Cir. 1986) ....12

Jackson v. Alexander, 465 F.2d 1389 (10th Cir. 1972) ..... 4

Jones v. Intermountain Power Project, 794 F.2d 546,

a ae 16

Lipin Enterprises, Inc. v. Lee, 803 F.2d 322 (7th Cir.

SUR ir ere er ee eee 12

iv

TABLE OF AUTHORITIES—Continued

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982)...............

Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482,

D Rees Se GHEE bs bi canidccvencccedcsssases

Morgan v. Bank of Waukegan, 804 F.2d 252 (8th Cir.

| Per Ey eee Terre rrr rr Try Trey Tre re

Phelps v. Washburn University of Topeka, 632 F.Supp.

455, 461-62 (D.Kan. 1986)...............--+----

Phillips v. Fisher, 445 F.Supp. 552, 554 (D.Kan.

MPPs 46a 56.0.s8c kane wees ens ace Oooh cukeeGktye ts

Schreiber Distributing Co. v. Serv-Well Furniture Co.,

Inc., 806 F.2d 1393 (9th Cir. 1986)..............

Sedima, S.P.R.L. v. Imrex Company, 473 U.S. 479, 105

S.Ct. 3275, 87 L.Ed.2d 346 (1986)........ 9, 10,

Sooner Products Co. v. McBride, 708 F.2d 510, 512

3 eo ee . . Perrrrrrrrery terre rere rr

Superior Oil Co. v. Fulmer, 785 F.2d 252 (8th Cir.

Mic ccdikchniiakanbh > eebvadee eas saaen tauaee

Taylor v. Bear Stearns and Company, 572 F.Supp.

667, 662 CN.DSGe. 1963). ... 2c cccsccvccccccceess

Torwest DBC, Inc. v. Dick, 810 F.2d 925, 927-29

ROO Ga CUED eo indcccencasnsdbecteannseavennne

United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86

S.Ct. 1130, 1138. 16 L.Ed.2d 218 (1966)........

11, 12

Vv

TABLE OF AUTHORITIES-Continued

Page

STATUTES:

6 UDA. Bectiom FROME), 05 vcsaduacevawciasenss ay Pe

18 U.S.C. Section 1961(4)...... Rie eee .F

1S WEG. GO Fels cnc ccdndwcdeabeuiesuencul 1, 8

ES Wa. I Bee ok a hyn ossudhaesseauesneaseoenl 6

56 WG BI Te kno cance nn ncekcss sneieee 6

GE UB. Bee BI bs bend ch akeekanees el 1, 4, ta 34

42 US.C. Gocthom BIGGAD. o. nc cccccccccs i, 4, 1d Be Be

G2 UGL.. HOC Pe a coos 5coe see ivekacnceeiaees 14

RULEs:

Fed.R.Civ.P. Rule 9(b), 28 U.S.C. .......... meee 8

US, Sageome Coust Role 07.1 «0 ociccsvccccscasnccsdes -

STATEMENT OF THE CASE

Respondents respectfully submit this brief in opposi-

tion to the petition for writ of certiorari filed on behalf of

Robert E. Pitts, D.D.S., (hereinafter, “Pitts”). For the rea-

sons offered herein, Respondents contend the requested

writ of certiorari is not warranted. Pitts has failed to raise

any genuine legal issues worthy of review by this Court;

there is no valid reason why the extraordinary remedy of

a writ of certiorari should issue in this case. The decision

of the United States Court of Appeals for the Tenth

Circuit, 850 F.2d 650 (1988), affirming the decision of the

United States District Court for the District of Kansas, is a

decision supported by the prevailing case law and prece-

dents. That decision should be effectively affirmed by

denial of Pitts’ petition for writ of certiorari.

A. Nature of the Proceedings Below:

Pitts brought this case in the United States District

Court for the District of Kansas, where it was designated

Case No. 84-4342. His Complaint/Amended Complaint

(filed 10/15/84 and 7/25/86, respectively) alleged viola-

tions of the Racketeer Influenced and Corrupt Organiza-

tions Act (i-e., RICO), 18 U.S.C. §1961 et seq.; civil rights

claims pursuant to 42 U.S.C. §§1983 and 1985(2); and

pendent common-law claims for fraud, legal malpractice,

breach of fiduciary duty, breach of contract, and tortious

interference with existing and prospective business

advantages.

All the Respondents (defendants in the district court)

filed motions to dismiss for failure to state a claim upon

which relief can be granted. On August 26, 1986, the

district court dismissed Pitts’ Complaint/ Amended Com-

plaint. That court ruled that Pitts’ RICO and Civil Rights

allegations failed to state claims upon which relief could

be granted. The district court also held that there was no

substantial federal question supporting federal jurisdic-

tion, and therefore dismissed Pitts’ pendent claims as

well.

Pitts duly perfected an appeal to the United States

Court of Appeals for the Tenth Circuit, where the case

was docketed as No. 86-2442. Briefs were filed, and on

July 5, 1988, the Tenth Circuit affirmed the lower court’s

dismissal of Pitts’ @bmplaint/Amended Complaint. The

decision of the Tenth Circuit is reported at 850 F.2d 650.

Pitts thereafter timely filed his petition for writ of

certiorari with this Court, which docketed this case as

No. 88-823 on November 17, 1988.

B. Allegations of Pitts Complaint/Amended Complaint

Summarized below are the allegations made by Pitts

in his Complaint/ Amended Complaint in District Court

Case No. 84-4342. While Respondents do not admit those

allegations, Respondents recognize that those allegations

must be accepted as true by each court which reviews the

sufficiency of Pitts’ pleadings.

Pitts was a dentist licensed to practice in Kansas. In

approximately 1982, he became the subject of an investi-

gation by the Kansas Dental Board. This investigation

eventually escalated into a proceeding for revocation of

Pitts’ dental license. Respondent Turner and Boisseau,

Chartered, represented Pitts before the Kansas Dental

ee

Board. Respondents Lee Turner, Eldon L. Boisseau, Hal

D. Meltzer, John L. Carmichael, Deborah L. Carney and

Casey Law are or weve shareholders and/or employees of

Turner and Boisseau, Chartered. Respondent Cynthia G.

Barrett was a member and Secretary of the Kansas Dental

Board, and Respondents Harold S. Youngentob, H. Phillip

Elwood and Arthur E. Palmer were employed by the

Board as attorneys.

In approximately May, 1984, the Kansas Dental Board

issued its order revoking Pitts’ license to practice den-

tistry in Kansas. On June 12, 1984, Pitts filed a civil rights

lawsuit in the United States District Court for the District

of Kansas, designated Case No. 84-4207. Named as defen-

dants therein were the Kansas Dental Board, all its indi-

vidual members (including Barrett) and the

aforementioned attorneys employed by the Board. That

case was eventually dismissed by the District Court, and

that dismissal was recently affirmed per curiam by the

Tenth Circuit, (Case No. 87-2401, October 20, 1988).

Barrett was insured by Respondent Interstate

National Insurance, through its agent, Respondent

Maginnis and Associates. Pursuant to this contract of

insurance, Turner and Boisseau, Chartered, was engaged

to represent Barrett in Case No. 84-4207. Respondent

Robert T. Stephan also entered his appearance as Attor-

ney General of the State of Kansas representing the Kan-

sas Dental Board and Barrett. Respondents Edwin P.

Smith and Justice B. King were retained to defend Youn-

gentob, Elwood and Palmer in Case No. 84-4207.

In this case, Pitts alleges that Turner and Boisseau,

Chartered, and its various shareholders and employees,

breached fiduciary duties owed to him, breached their

contract with him and committed legal malpractice by

appearing adversely to him in Case No. 84-4207. He

makes a similar claim against Stephan, based on allega-

tions that Stephan was also one of his attorneys in the

proceeding before the Kansas Dental Board. The remain-

ing Respondents are alleged to have tortiously interfered

with Pitts existing and prospective business advantages.

In an effort to invoke the jurisdiction of the federal

courts, the Complaint/Amended Complaint charac-

terized the alleged conspiracy against Pitts in Case No.

84-4207 as violations of RICO, and of 42 U.S.C. §§1983

and 1985(2). The “predicate acts” underlying Pitts’ RICO

claim were alleged instances of mail and wire fraud. His

civil rights claims were based on allegations that Respon-

dents engaged in state action by virtue of Attorney Gen-

eral Stephan’s appearance in Case No. 84-4207 and the

general conspiracy among all Respondents, and that

Respondents discriminated against him based upon his

religious beliefs and practices. The alleged purpose

behind this grand conspiracy theory was to thwart Pitts

in his attempt to challenge the revocation of his license in

Case No. 84-4207. Pitts claims to have been injured in his

person and property as a result of this alleged conspiracy.

sa.

-

ARGUMENT

In Respondents’ view, the sole issue presented is

whether Pitts has demonstrated any reason justifying the

issuance of the writ of certiorari he seeks. Respondents

|

respectfully submit that Pitts has not done so, and that

his petition should therefore be denied.

The factors which govern consideration of petitions

for writ of certiorari are enumerated in Supreme Court

Rule 17.1. Summarized, those reasons include:

1) conflicts in decisions between federal courts of

appeal;

2) conflicts between federal decisions and decisions

of a state court of last resort;

3) departure from the accepted and usual course of

judicial procedure;

4) necessity for settlement by this Court of an

important question of federal law.

Rule 17.1 requires that “special and important reasons”

exist before this Court will exercise its judicial discretion

to review a case on writ of certiorari. Fay v. Noia, 372 U.S.

391, 436, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963).

Pitts has not overtly addressed any of the factors

enumerated in Supreme Court Rule 17.1. Virtually his

entire petition consists of a rambling, repetitious and

emotion-filled recitation of his factual allegations. Those

allegations were insufficient as a matter of law to support

federal jurisdiction, and were incapable of amendment

sufficient to state a federal claim.

Generally speaking, a complaint should be dismissed

for failure to state a claim upon which relief can be

granted only if it appears beyond doubt that the plaintiff

can prove no set of facts that would entitle him to relief.

See Chavez v. City of Santa Fe Housing Authority, 606 F.2d

282 (10th Cir. 1979). However, this Court in Harlow v.

Fitzgerald, 457 U.S. 800, 808, 102 S.Ct. 2727, 2733, 73

|

L.Ed.2d 396 (1982) emphasized its “expectation that

insubstantial suits need not proceed to trial. . . . [U]nless

the complaint states a compensable claim for relief... , it

should not survive a motion to dismiss” (quoting Butz v.

Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-12, 57

L.Ed.2d 895 (1978)).

As Respondents will demonstrate below, both the

District Court and the Court of Appeals correctly fol-

lowed the overwhelming weight of authority in conclud-

ing that Pitts had failed to invoke any federal right of

action or to raise a substantial federal question. His Com-

plaint/ Amended Complaint was -properly dismissed on

that basis, and his petition for writ certiorari should

similarly be denied:

A. RI€O Claims

Subsection (c) of 18 U.S.C. §1964 creates a civil cause

of action under the RICO statute. A cause of action under

§1964(c) has three basic components: (1) a violation of

§1962, (2) an injury to business or property, and (3) a

causal link between the violation and the injury.

A “violation of §1962” can and must be broken down

into several constituent elements. Generally speaking,

§1962 can be violated by any one of the following four

types of prohibited activities:

(a) using income derived from a pattern of rack-

eteering activity to acquire an interest in an

enterprise;

(b) acquiring or maintaining an interest in an enter-

prise through a pattern of racketeering activity;

7

(c) conducting the affairs of an enterprise through a

pattern of racketeering activity; and

(d) conspiring to commit any of the above offenses.

Three important concepts are embodied in each of

these prohibited activities. The first is an “enterprise”,

which is defined in §1961(4) as “any individual, partner-

ship, corporation, association, or other legal entity, and

any union or group of individuals associated in fact

although not a legal entity.” Depending upon the applica-

ble subsection, the “enterprise” can be the perpetrator,

the victim or the prize involved in the prohibited activity.

The “enterprise” must engage in or otherwise affect inter-

state commerce.

The second important concept, “racketeering activ-

ity”, is defined in §1961(1). Generally speaking “racke-

teering activity” can be any act included in a veritable

laundry list of enumerated criminal offenses, which may

be summarized as follows:

(a) a variety of serious criminal offenses chargeable

under state law;

(b) numerous acts indictable under a variety of fed-

eral criminal statutes, including mail fraud, wire

fraud, and obstruction of justice;

(c) certain labor-related federal offenses; and

(d) any offense involving fraud connected with a

case under Title II, fraud in the sale of securities,

or felonious dealing with dangerous drugs in a

manner punishable under federal law.

These offenses are sometimes referred to as the “predic-

ate acts.” Even in a civil RICO action the plaintiff must

sufficiently allege that the defendant has committed

“predicate acts” criminal in nature.

The third important concept is the “pattern.” A “pat-

tern” of racketeering activity is defined in §1961(5) as “at

least two acts .. . , one of which occurred after the

effective date of this chapter and the last of which

occurred within ten years . . . after the commission of a

prior act... ."

In summary, a viable RICO claim requires sufficient

allegations of each of the following elements:

1) A defendant, who, through the commission of at

least two “predicate acts” within the applicable

time period,

2) which acts constitute a “pattern”;

3) of “racketeering activity”,

4) directly or indirectly participates in the conduct

of

5) an “enterprise”,

6) the activities of which affect interstate commerce,

7) thus injuring plaintiff in his business or property

as a result.

See Brannon v. Eisenstein, 804 F.2d 1041 (8th Cir. 1986);

Taylor v. Bear Stearns and Company, 572 F.Supp. 667, 682

(N.D. Ga. 1983).

Pitts asserted a RICO claim as his first ground for

invoking federal jurisdiction. His RICO claim was set

forth in conclusory fashion, however, in language which

essentially “parrots” the RICO statutes. The District

Court dismissed Pitts’ RICO claims, and the Tenth Circuit

affirmed, on the ground that they were insufficient as a

matter of law. Two valid reasons support these decisions.

First, Pitts pled his allegations of fraud (which are at

the core of his RICO claim) in a generic fashion. He did

not specify the time, the place, the particular representa-

tion, who allegedly made the representation or who

relied upon it, in his pleading. This inadequacy in the

pleading of fraud constituted the first ground upon

which the District Court dismissed Pitts’ RICO claims.

Rule 9(b) of the Federal Rules of Civil Procedure, 28

U.S.C., requires allegations of fraud to be stated with

particularity. This general requirement has been applied

many times to cases involving fraud, Jackson v. Alexander,

465 F.2d 1389 (10th Cir. 1972); Duane v. Altenburg, 297 F.2d

515 (7th Cir. 1962); and to cases involving conspiracy to

defraud, Hayduk v. Lanna, 775 F.2d 441 (1st Cir. 1985).

Several courts have also applied Rule 9 to RICO actions

which allege wire and/or mail fraud as the underlying

predicate acts. See, e.g., Schreiber Distributing Co v. Serv-

Well Furniture Co., Inc., 806 F.2d 1393, 1400-01 (9th Cir.

1986). Pitts’ patent failure to plead his allegations of

fraud with specificity provided an adequate ground for

dismissal of his RICO claims.

A second, even more compelling reason exists in

support of the dismissal of Pitts’ RICO claims. This rea-

son involves Pitts’ allegation of a “pattern” of racketeer-

ing activity under RICO. The concept of a “pattern” is the

sine quo non of a RICO action; it is the engagement in a

“pattern” of activity that separates the racketeer from the

isolated offender.

In Sedima, S.P.R.L. v. Imrex Company, 473 U.S. 479, 105

S.Ct. 3275, 87 L.Ed.2d 346 (1986), this Court drew new

attention to the “pattern” requirement under RICO:

10

As many commentators have pointed out, the defini-

tion of a “pattern of racketeering activity” differs

from the other provisions in §1961 in that it states

that a pattern ‘requires at least two acts of racketeer-

ing activity,, §1961(5) (emphasis added) not that it

‘means’ two such acts. The implication is that while

two acts are necessary, they may not be sufficient.

Indeed, in common parlance two of anything do not

generally form a ‘pattern’.

Sedima, 473 U.S. at 496, 105 S.Ct. at 3285, 87 L.Ed.2d at

358-59, fn. 14 (emphasis in original). This Court focused

on the legislative history to support this view of the

pattern requirement:

The legislative history supports the view that two

isu'ated acts of racketeering activity do not constitute

a pattern. As the Senate Report explained: “The target

of [RICO] is thus not sporadic activity. The infiltra-

tion of legitimate business normally requires more

than one ‘racketeering activity’ and the threat of

continuing activity to be effective. It is this factor of

continuity plus relationship which combines to pro-

duce a pattern.’ S. Rep. No. 91-617, p. 158 (1969)

(emphasis added). Similarly, the sponsor of the Sen-

ate bill, after quoting this portion of the Report,

pointed out to his colleagues that ‘(t]he term ‘pattern’

itself requires the showing of a relationship . . . . So,

therefore, proof of two acts of racketeering activity,

without more, does not establish a pattern... .” 116

Cong. Rec. 18940 (1970) (statement of Sen.

McClellan). See also id. at 35193 (statement of Rep.

Poff) (RICO ‘not aimed at the isolated offender’).

House Hearings at 665. Significantly, in defining ‘pat-

tern’ in a later provision of the same bill, Congress

was more enlightening: ‘criminal conduct forms a

pattern if it embraces criminal acts that have the

same or similar purposes, results, participants, vic-

tims, or methods of commission, or otherwise are

interrelated by distinguishing characteristics and are

not isolated events.’ 18 U.S.C. §3575(e) [18 U.S.C.S.

11

§3575(e)]. This language may be useful in interpret-

ing other sections of the Act. CL Lannelli v. United

States, 420 U.S. 770, 789, 43 L.Ed. 2d 616, 95 S.Ct. 1284

(1975).

Id.

A number of Federal Courts of Appeal have heeded

what they deemed to be this Court's call to placesnew

emphasis upon, and to conduct deeper analysis inte, the

“pattern” requirement. As this Court suggested, both the

concept of “relationship” and that of “continuity” (which

together form the “pattern”) have been scrutinized. By

and large, these new decisions have stressed the need for

“continuity”, that is, the threat of continuing racketeering

activity in addition to the “related” racketeering activity

which has gone before.

The opinion of the Tenth Circuit in the appeal-at-bar

provides a case in point. There, the court quoted from its

own earlier decision in Torwest DBC, Inc. v. Dick, 810 F.2d

925, 927-29 (10th Cir. 1987), discussing the requirements

of pleading a RICO violation:

A violation of section 1962(c) thus ‘requires (1) con-

duct (2) of an enterprise (3) through a pattern (4) of

racketeering activity.’ Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346

(1985). RICO defines racketeering activity as, inter

alia, any act that is indictable under 18 U.S.C. §1341

(mail fraud) or 18 U.S.C. §1343 (wire fraud). See 18

U.S.C. §1961(1)(B). RICO also states that a ‘ “pattern

of racketeering activity” requires at least two acts of

racketeering activity.’ 18 U.S.C. §1961(5).

. [T]o establish a RICO pattern, a plaintiff must

also demonstrate continuity, that is, ‘the threat of

continuing activity.’ Sedima, 105 S.Ct. at 3285 n. 14.

12

This element is derived from RICO’s legislative his-

tory, which indicates that RICO does not apply to

‘sporadic activity’ or to the ‘isolated offender’. Id.

‘The continuity requirement has been the source of

considerable difficulty. Courts generally agree that to

make an adequate showing of continuity under Sed-

ima, a plaintiff must demonstrate some facts from

which at least a threat of ongoing illegal conduct may

be inferred. A scheme to achieve a single discrete

objective does not in and of itself create a threat of

ongoing activity, even when that goal is pursued by

multiple illegal acts, because the scheme ends when

the purpose is accomplished.’

850 F.2d at 652.

See also, Condict v. Condict, 815 F.2d 579 (10th Cir. 1987);

Lipin Enterprises, Inc. v. Lee, 803 F.2d 322 (7th Cir. 1986);

Schreiber Distributing Co. v. Serv-Well Furniture Co., supra;

Morgan v. Bank of Waukegan, 804 F.2d 970 (7th Cir. 1986);

Superior Oil Co. v. Fulmer, 785 F.2d 252 (8th Cir. 1986);

Holmberg v. Morrisette, 800 F.2d 205 (8th Cir. 1986).

The aforementioned cases, and the reasoning they

exemplify, represent the dominant trend in the Circuit

Court decisions post-Sedima. Applying that reasoning to

the alleged facts of this case, one finds that Pitts has

alleged a single conspirational scheme to injure him. That

scheme had a single alleged purpose - to deprive Pitts of

any avenue of relief from the order of the Kansas Dental

Board revoking his license to practice dentistry — and the

alleged scheme would necessarily be at an end when that

objective was accomplished. As pointed out by the Tenth

Circuit in its opinion below, it is conceptually impossible

to construct a “pattern” out of the allegations in this case.

On this ground, Pitts’ RICO claim was properly

dismissed.

13

B. Civil Rights Claims

Pitts asserted that Respondents had violated 42

U.S.C. §§1983 and 1985(2). The allegations in his Com-

plaint/ Amended Complaint were insufficient as a matter

of law to state a claim against Respondents under either

of those statutes, however.

To establish a claim under 42 U.S.C. §1983, Pitts was

required to show, among other things, that Respondents

acted “under color of state law.” Lugar v. Edmondson Oil

Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982). Pitts conceded in his Brief to the Tenth Circuit that

“the [private party] defendants herein are sued in their

capacity as wrongful conspirators with state actors.” Brief

of Appellant at 38. Therefore, the focus of inquiry turns

to whether the state actors acted “under color of state

law.”

In order to sufficiently plead that action was taken

“under color of state law”, it is not enough to simply

allege, as Pitts did, that the actor was an employee of the

state. “Acting under color of state law as required by

section 1983 is defined as the ‘[m]isuse of power, pos-

sessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of

state law.’ ” Brown v. Chaffee, 612 F.2d 497, 501 (10th Cir.

1979) (quoting Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct.

473, 482, 5 L.Ed.2d 492 (1961)).

Pitts’ Complaint/Amended Complaint failed com-

pletely to allege how the state actors misused the power

of their official positions. Indeed, Pitts did not even spe-

cifically plead what action it was which supposedly was

14

taken “under color of state law”. The gist of Pitts’ allega-

tions are that Stephan acted as a private attorney for Pitts

in his proceeding before the Kansas Dental Board, but

then turned against Pitts by representing Barrett and the

Kansas Dental Board in Case No. 84-4207. It is well

settled that an attorney who defends a personal lawsuit

does not act under color of state law even though that

attorney has state authority. Brown v. Chaffee, supra; Phil-

lips v. Fisher, 445 F.Supp. 552, 554 (D.Kan. 1977); Goetz v.

Windsor Central School District, 593 FSupp 526, 528-29

(N.D.N.Y. 1984). Pitts’ claim under 42 U.S.C. §1983 failed

to include a sufficient allegation of state action by

Respondents, and so that claim was properly dismissed

by the District Court.

Pitts also alleged in a conclusory fashion that

Respondents violated 42 U.S.C. §1985(2). First of all,

without even addressing the substantive elements of a

§1985(2) claim, Pitts’ Complaint/Amended Complaint

were subject to dismissal based upon his failure to allege

a conspiracy with specificity. See Phelps v. Washburn Uni-

versity of Topeka, 632 F.Supp. 455, 461-62 (D.Kan. 1986)

(conclusory allegations of a conspiracy without support-

ing facts are insufficient to state a claim under 42 U.S.C.

Section 1985(2)); See also, Sooner Products Co. v. McBride,

708 F.2d 510, 512 (10th Cir. 1983); Clulow v. State of Okla-

homa, 700 F.2d 1291, 1303 (10th Cir. 1983) (conclusory

allegations of a conspiracy without supporting facts are

insufficient to state a claim under 42 U.S.C. Section

1985(3)).

15

In addition to his fatally deficient allegations of a

conspiracy, Pitts also failed to adequately allege the sub-

stantive elements of a §1985(2) claim. The pertinent por-

tion of 42 U.S.C. § 1985(2) provides:

“If two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat,

any party or witness in any court of the United States

from attending such court, or from testifying to any

matter pending therein, freely, ful’y, and truthfully,

or to injure such party or witness in his person or

property on account of his having so attended or

testified, or to influence the verdict, presentment, or

indictment of any grand or petit juror in any such

court, or to injure such juror in his person or prop-

erty on account of any verdict, presentment, or

indictment lawfully assented to by him, or of his

being or having been such juror... ”

Pitts’ Compiaint/Amended Complaint failed to

allege that Respondents used “force, intimidation or

threat” to deter him from “attending” or “testifying” “in

any court of the United States”. Nor did the Complaint /

Amended Complaint allege that Respondents injured him

“in his person or property on account of his having so

attended or testified”. Nor did the Complaint /Amended

Complaint allege that Respondents “influence[d] the ver-

dict, presentment or indictment of any grand or petit

jur[y]”. In short, Pitts’ Complaint/Amended Complaint

utterly failed to allege even a single fact which would fall

within the ambit of 42 U.S.C. §1985(2). Thus, the dis-

missai of his purported claim under that statute was

correct.

16

Cc. Pendent Claims

Generally, whenever there is no basis for federal

jurisdiction, common law claims asserted pendently

should be dismissed. Indeed, in the absence of an inde-

pendent basis for federal jurisdiction, pendent claims

literally must be dismissed for lack of constitutional

power on the part of the federal courts to exercise pen-

dent jurisdiction. As this Court stated in United Mine

Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 1138, 16

L.Ed.2d 218 (1966), this power exists when there is a

substantial federal claim and when both the state and

federal claims “derive from a common nucleus of opera-

tive fact”, so that plaintiff would “ordinarily be expected

to try them all in one judicial proceeding.” See also, Jones

v. Intermountain Power Project, 794 F.2d 546 (10th Cir.

1986). In Jones, the Tenth Circuit stated:

A substantial federal claim is one that has ‘substance

sufficient to confer subject matter jurisdiction on the

court.’ The district court lacks subject matter jurisdic-

tion when the federal claim ‘clearly appears to be

immaterial and made solely for the purpose of

obtaining jurisdiction or where such a claim wholly

insubstantial and frivolous.’ Bell v. Hood, 327 US.

678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). As

the Ninth Circuit noted:

If a federal claim against a party is dismissed before

trial, the pendent state law claims should often be

dismissed as well. United Mine Workers v. Gibbs, 383

U.S. 715, 726, [86 S.Ct. 1130, 1138, 16 L.Ed. 2d 218]

(1966)...

Traver v. Meshiry, 627 F.2d 934, 939 (9th Cir. 1980)

(emphasis added).

Jones, 794 F.2d at 549.

17

The motions to dismiss of Respondents which the

District Court eventually sustained were filed shortly

after Pitts filed his original Complaint. As Pitts has

pointed out in his petition to this Court, approximately

two years of discovery took place before he filed his

Amended Complaint. The District Court’s order and

judgment of dismissal promptly followed the filing of

Pitts’ Amended Complaint, and was based on the law

briefed by Respondents in their long-pending motions to

dismiss. Pitts thus had two years of discovery in which to

frame an Amended Complaint which could withstand

Respondents’ motions to dismiss, but he failed to do so.

The First Amended Complaint, filed after two years of

discovery, still failed to allege a cognizable federal claim

or raise a substantial federal question. The dismissal of

Pitts’ pendent claims along with his spurious federal

claims was mandatory under the law of United Mine

Workers v. Gibbs, supra.

,%

vw

CONCLUSION

Pitts has presented no conflict between decisions, nor

has he demonstrated sufficient departure from accepted

judicial procedure to warrant this Court’s review of this

case on writ of certiorari. The decision of the United States

Court of Appeals for the Tenth Circuit, affirming the deci-

sion of the United States District Court for the District of

Kansas, dismissing Pitts’ Complaint/ Amended Complaint,

was correct and in accordance with the weight of authority

and precedence in all respects. Respondents

18

humbly urge this Court to deny Pitts’ petition for writ of

certiorari.

Respectfully submitted,

Louis F. EIsENBARTH

Attorney of Record

JerFreY W. JONeEs

SLOAN, LIsTROM, EISENBARTH,

SLOAN AND GLASSMAN

714 Capitol Federal Bldg.

Topeka, Kansas 66603

(913) 357-6311

Attorneys for Respondents

Turner & Boisseau, Chartered,

Lee Turner, Eldon Boisseau,

Hai D. Meltzer,

John L. Carmichael, Deborah L.

Carney and Casey Law

Mary P. Wettic

Assistant Attorney General

Kansas Judicia! Center, 2nd Floor

Topeka, Kansas 66612

Attorneys for Respondents,

Cynthia G. Barrett

and Robert T. Stephan

MIcHAELA NICOLARSEN

BLACKWELL, SANDERS, MATHENY

Weary & LomBARDI

40 Corporate Woods, Suite 210

9401 Indian Creek Parkway

Overland Park, KS 66225-5388

Attorneys for Respondents

Harold S. Youngentob, H. Phillip

Elwood, Arthur E. Palmer,

Edwin D. Smith & Justice B. King

19

J. Rocer HENprix

Marsuatt, Davis, HeNprix & SCHENK

210 Commerce Bank Bldg.

31st & Topeka Blvd.

Topeka, KS 66611

Attorneys for Respondents

Interstate National Insurance

and Maginnis & Associates

Jerry R. PALMER

112 S.W. 6th Street

Suite 102

Topeka, Kansas 66603

Attorney for Respondent

Cynthia G. Barrett

MArTHA CoFFMAN-GALLAGHER

7 Eleventh

P.O. Box 1392

Lawrence, KS 66044-5892

Attorney for Respondent

Casey Law

App. 1

APPENDIX

Rule 17.1 of the Rules of the Supreme Court of the

United States, 28 U.S.C., provides:

1. A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted

only when there are special and important reasons

therefor. The following, while neither controlling nor

fully measuring the Court’s decision, indicate the

character of reasons that will be considered.

(a) When a federal court of appeals has ren-

dered a decision in conflict with the decision of

another federal court of appeals on the same

matter; or has decided a federal question in a

way in conflict with a state court of last resort; or

has so far departed from the accepted and usuai

court of judicial proceedings, or so far sanc-

tioned such a departure by a lower court, as to

call for an exercise of this Court’s power of

supervision.

(b) When a state court of last resort has

decided a federal question in a way in conflict

with the decision of another state court of last

resort or of a federal court of appeals.

(c) When a state court or a federal court of

appeals has decided an important question of

federal law which has not been, but should be,

settled by this Court, or has decided a federal

yn in a way in conflict with applicable

ecisions of this Court.

18 U.S.C. § 1964 (c) provides:

(c) Any person injured in his business or property

by reason of a violation of section 1962 of this chap-

ter may sue therefor in any appropriate United States

district court and shall recover threefold the damages

he sustains and the cost of the suit, including a

reasonable attorney’s fee.

App. 2

18 U.S.C. § 1962 provides:

(a) It shall be unlawful for any person who has

received any income derived, directly or indirectly,

from a pattern of racketeering activity or through

collection of an unlawful debt in which such person

has participated as a principal within the meaning or

section 2, title 18, United States Code, to use or

invest, directly or indirectly, any part of such income,

or proceeds of such income, in acquisition of any

interest in, or the establishment or operation of, any

enterprise which is engaged in, or the activities of

which affect, interstate or foreign commerce. A pur-

chase of securities on the open market for purposes

of investment, and without the intention of control-

ling or participating in the control of the issuer, or of

assisting another to do so, shall not be unlawful

under this subsection if the securities of the issuer

held by the purchaser, the members of his immediate

family, and his or their accomplices in any pattern or

racketeering activity or the collection of an unlawful

debt after such purchase do not amount in the aggre-

gate to one percent of the outstanding securities of

any one class, and do not confer, either in law or in

fact, the power to elect one or more directors of the

issuer.

(b) It shall be unlawful for any person through a

pattern of racketeering activity or through collection

of an unlawful debt to acquire or maintain, directly

or indirectly, any interest in or control of any enter-

prise which is engaged in, or the activities of which

affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed

by or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indi-

rectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or collec-

tion of unlawful debt.

App. 3

(d) It shall be unlawful for any person to conspire

to violate any of the provisions of subsections (a), (b),

or (c) of this section.

(footnote omitted).

18 U.S.C. § 1961(1), (4), and (5) provide:

As used in this chapter-

(1) “racketeering activity” means (A) any act or

threat involving murder, kidnapping, gambling,

arson, robbery, bribery, extortion, or dealing in nar-

cotic or other dangerous drugs, which is chargeable

under State law and punishable by imprisonment for

more than one year; (B) any act which is indictable

under any of the following provisions of title 18,

United States Code: Section 201 (relating to bribery),

section 224 (relating to sports bribery), sections 471,

472, and 473 (relating to counterfeiting), section 659

(relating to theft from interstate shipment) if the act

indictable under section 659 is felonious, section 664

(relating to embezzlement from pension and welfare

funds), sections 891-894 (relating to extortionate

credit transactions), section 1084 (relating to the

transmission of gambling information), section 1341

(relating to mail fraud), section 1343 (relating to wire

fraud), section 1503 (relating to obstruction of jus-

tice), section 1510 (relating to obstruction of criminal

investigations), section 1511 (relating to the obstruc-

tion of State or local law enforcement), section 1951

(relating to interference with commerce, robbery, or

extortion), section 1952 (relating to racketeering), sec-

tion 1953 (relating to interstate transportation of

wagering paraphernalia), section 1954 (relating to

unlawful welfare fund payments), section 1955 (relat-

ing to the prohibition of illegal gambling businesses),

sections 2314 and 2315 (relating to interstate trans-

portation of stolen property), sections 2341-2346

(relating to trafficking in contraband cigarettes), sec-

tions 2421-24 (relating to white slave traffic), (C) any

act which is indictable under title 29, United States

App. 4

Code, section 186 (dealing with restrictions on pay-

ments and loans to labor organizations) or section

501(c) (relating to embezzlement from union funds),

or (D) any offense involving fraud connected with a

case under title 11, fraud in the sale of securities, or

the felonious manufacture, importation, receiving,

concealment, buying, selling, or otherwise dealing in

narcotic or other dangerous drugs, punishable under

any law of the United States;

(4) “enterprise” includes any individual, partner-

ship, corporatic., association, or other legal entity,

and any union or group of individuals associated in

fact although not a legal entity;

(5) “pattern of racketeering activity” requires at

least two acts of racketeering activity, one of which

occurred after the effective date of this chapter and

the last of which occurred within ten years (exclud-

ing any period of imprisonment) after the commis-

sion of a prior act of racketeering activity;

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immu-

nities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. For

the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

42 U.S.C. § 1985(2) provides:

(2) If two or more persons in any State or Terri-

tory conspire to deter, by force, intimidation, or

App. 5

threat, any party or witness in any court of the

United States from attending such court, or from

testifying to any matter pending therein, freely, fully,

and truthfully, or to injure such party or witness in

his person or property on account of his having so

attended or testified, or to influence the verdict, pre-

sentment, or indictment of any grand or petit juror in

any such court, or to injure such juror in his person

or property on account of any verdict, presentment,

or indictment lawfully assented to by him, or of his

being or having been such juror; or if two or more

persons conspire for the purpose of impeding, hin-

dering, obstructing, or defeating, in any manner, the

due course of justice in any State or Territory, with

intent to deny to any citizen the equal protection of

the laws, or to injure him or his property for lawfully

enforcing, or attempting to enforce, the right of any

person, or class of persons, to the equal protection of

the laws; ... in any case of conspiracy set forth in

this section, if one or more persons engaged therein

do, or cause to be done, any act in furtherance of the

object of such conspiracy, whereby another is injured

in his person or property, or deprived of having and

exercising any right or privilege of a citizen of the

United Siates, the party so injured or deprived may

have an action for the recovery of damages occa-

sioned by such injury or deprivation, against any one

or more of the conspirators.

Rule 9(b) of the Federal Rules of Civil Procedure, 28

U.S.C., provides:

(b) Fraud, Mistake, Condition of the Mind. In all

a verments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with

particularity. Malice, intent, knowledge, and other

condition of mind of a person may be averred

generally.