# Opposition Brief — Pitts v. Turner & Boisseau > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0447%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1030 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0447%3A2. Public record. Not legal advice.