# Petition for Writ of Certiorari — Donner v. Appalachian Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0116%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 503 U.S. 984 ## Text a I s.., , ans ar } 8 | . ourt, U.S. t fe j 9 ‘ej TLED ST sak 24 1998 | NO. “Aaa int CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1991 MIRIAM DONNER, Petitioner, vs. APPALACHIAN INSURANCE COMPANY, a Rhode Island corporation, CITY OF MIAMI, VERNON HETHERINGTON, FOWLER, WHITE, BURNETT, HUR- LEY, BANICK & KNIGHT, P.A. a/K/a FOWLER, WHITE, BURNETT, HURLEY, BANICK & STRICK- ROOT, P. A., a Florida professional association, PHILLIP W. KNIGHT, and MICHAEL J. MURPHY, Respondents ON PETITION FOR WRIT OF CERTIORARI TO DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PETITION FOR WRIT OF CERTIORARI Miriam Donner, in proper person P. O. BOx 1232 Hallandale, Fla. 33008 QUESTIONS PRESENTED FOR REVIEW 1. May a state court dismiss with prejudice federal [42 U.S.C. §1983 and 18 U.S.C. §1964(c)] claims solely in reliance upon its own state-law-based rule of inm- munity for litigation-related misconduct? 2. Are a municipality, its officer, insurer, and counsel "absolutely immunity" under 42 U.S.C. § 1983 for conspiring un- der color of state law to conceal, and withhold production of, information and public records, requested in state-court- litigation pretrial discovery, by fraudu- lently responding that the information and records do not exist and in furtherance of that conspiracy also denying the right of access to those public records in defiance of an extrajudicial demand (under a state “public records" law) for access thereto? 3. Does any such immunity exist under 18 U.S.C. § 1964(c) (RICO)? 4. Did the complaint state § 1983 and RICO claims by alleging that the said con- spiracy was under color of state law, that the false discovery responses were served by mail over a period of several years in a state-court damage suit for false arrest, federal civil rights violations, etc., that the fraud was concealed for over ten years, and that the conspiracy prejudicially interfered in that suit with plaintiffs' (First and Fourteenth Amend- ment) right of access to the court, delay- ed for ten years the progress of that suit, caused loss of relevant evidence, faded memories of witnesses, added expense and mental anguish and also prejudiced her claims against other defendants? 5. Did the lower court err in dis- missing the complaint with prejudice without even one opportunity to amend? il TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW .... j TABLE OF AUTHORITIES ........ Vii ee I Ss ke ek 1 CONCISE JURISDICTIONAL STATEMENT .. 1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ........ 2 STATEMENT OF THE CASE ........, 3 A. SUMMARY OF COMPLAINT ....... 4 B. DISMISSAL OF THE COMPLAINT WITH i Se i, Cc. APPEAL AND AFFIRMANCE ...... 14 SUMMARY OF ARGUMENT ..........419 ee Se 5 eg kk ke we we I. THIS COURT IS VESTED WITH CERTIO- RARI JURISDICTION TO REVIEW THE FLORIDA STATE COURT JUDGMENT ... 22 A. PRESERVATION OF ISSUES ae fo - As PRESERVATION OF ISSUES AT TRIAL LEVEL ....... 24 (a) 42 U.S.C. SEC. 1983 ACTION . 26 (Db) RICO CAUSE OF ACTION .... 31 iii (Cc) LEAVE TO AMEND ....--.-.- 33 PRESERVATION OF ISSUES ON APPEAL ... +s «6 © © © « e 39 STATE COURTS MUST APPLY FEDERAL, LAW TO ISSUES OF IMMUNITY IN REGARD TO FEDERAL ACTIONS .....-.. 37 FEDERAL LAW DOES NOT IMMUNIZE DEFENDANTS’ ALLEGED MISCONDUCT... . . 38 NO SUCH IMMUNITY ARISES UNDER 42 U.S.C. SEC. 1983 .. 38 DONNER‘’S SEC. 1983 CLAIMS ARE NOT FOR DEFAMATION; NOR DOES CONCEALMENT OF INFORMATION EVEN CONSTITUTE A "STATEMENT" 41 DEFENDANTS’ REFUSAL OF DONNER’S PUBLIC RECORDS DEMAND IN FURTHERANCE OF THEIR CONSPIRACY TO CON- CEAL RECORDS WAS NOT "IN A JUDICIAL PROCEEDING". 42 INTERROGATORIES AND REQUESTS FOR PRODUCTION WERE UNKNOWN TO THE COMMON LAW ...... 44 COMPLAINT DOES NOT ALLEGED THAT CONSPIRACY WAS ENTERED INTO IN A JUDICIAL PROCEEDING 47 NO SUCH IMMUNITY ARISES UNDER FEDERAL CIVIL RICO ..... 50 lv If. DISCRETION SHOULD BE EXERCISED IN FAVOR OF ACCEPTING JURISDICTION 51 CUNCLUSION . 1+ s+ s+ ws ew tb we www es 8 DEN UULE “se 6 «Gs es @ ow eu Al-A17 MAY 7, 1991 OPINION OF DISTRICT COURT OF APPEAL, THIRD DISTRICT .... Al FINAL ORDER OF DISMISSAL ENTERED MARCH 27, 1990 BY CIRCUIT COURT OF 11TH JUDICIAL CIRCUIT OF FLORIDA .. . AS APRIL 26, 1990 ORDER ON PLAINTIFF’S MOTION FOR REHEARING AND ADDENDUM TO MOTION FOR REHEARING ENTERED BY CIRCUIT COURT OF 11 JUDICIAL CIRCUIT OF FLORIDA .. 4 1 « s+ «ee Ae OCTOBER 29, 1991 ORDER OF FLORIDA SUPREME COURT DENYING PETITION FOR WRIT OF CERTIORARI .. ++ BOAR ee ee eS cy PEP! U.S. v. Peters, 732 F.2d 1004 [2G Gab. Beee) « «a es 6 we le) ee ee U.S. v. Vaughan, 797 F.2d 1485 (9th Car. 1986) . «+6 «© © © 8s 6 «© © 38,52 Vance v. Indian Hammock Hunt & Riding Club, 403 So.2d 1367 (1981) .. 24 Wells Fargo Armored Services Corp. v. Sunshine Security & Detective Agency, Inc., 575 So. 2a 179 (Fla. 1991) — a a Wolff v. McDonnell, 418 U.S. 539 (1974) 29 Wright v. Yurko, 446 So.2d 1162 (Fla. Dist. Ct. App. 1984) ...... 22 Zinermon v. Burch, 110 S.Ct. 975 (1990) i ¢ 6 * & es « 3ac47 U. S. Const., amend. I ..... 2,30,A12 U. S. Const., amend. XIV, sec. 2 2,30,A12 18 U. "” “CO. SOC. 1341 . 2. 2 « 6 « « 2,31,AL6 46 U.S.C. Sec. 1963 . . .« « « 6 « « « 2,80 18 U.S.C. Sec. 1961(1) +’ oe + « © 6 See 18 U.S. ‘ in 1) QO ~ O fox No No > ~ > Me UsmeGs. ONG. 2966 «a «& s acs a> ee 43 U.S.C. Sec. 1964(c) . . 2,13,21,50,A16 28 U.S.C. Sec. 1257(a) 2 42 U.S.C. Sec. 1983 passim sec. 46.021, Fla. Stat. 29 sec. 90.201(1), Fla. Stat. ee a ee oe ae ee sec. 119.01, et seq., Fla. Stat. » « « 43 Filia. R. Civ. P. 1.530(a) oe ee a ee raQ. BR. Civ. PP. 1.530(b) » » «© «© © « « £8 Fla. R. Jud. Admin. 2.060(1) a & © ste McCormick, Evidence Sec. 335 (2nd ed 1972) NO WN xi OPINION BELOW The opinion of the District Court of Appeal of Florida, Third District, is reported as Donner y. Appalachian Insur- ance Co., 580 So.2d 797 (1990) and is reprinted at pages 1-4 of the appendix, post. That is the only reported opinion in this case. Various other, unreported orders of the trial court, the Third Dis- trict, and the Florida Supreme Court are reprinted at pages 5-11 of the appendix.’ CONC ISDICTIONAL STATEMENT The District Court of Appeal of Flor- ida entered judgment May 7, 1991. Rehear- ing was denied July 3, 1991. That judgment includes legal reasoning with citation of authorities "which [The Florida Star v. B. 1 The names of all parties appear in the caption of the case. There are no par- ent or subsidiary companies. 1 J.F., 530 So. 2d 286 (Fla. 1988) has held} is subject to discretionary review by the [Florida] state court of last resort" as contemplated by Sup. cCt. R. 13.1. The "State court of last resort," the Florida Supreme Court, denied a petition for dis- cretionary review of that judgment on Oct- ober 29, 1991. This petition was timely filed "within 90 days after the order denying discretionary review." Jurisdic- tion of this Court to review that judgment is invoked under 28 U.S.C. Sec. 1257 (a). CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const., amend. I, U.S. Const., amend XIV, sec. 1, 42 U.S.C. sec. 1983, 18 U.S.C. sec. 1961 (1970) (amended 1984, 1986, 1988, and 1989), ib U.S.C. sec. 1962 (1970) (amended 1988), 18 U.S.C. sec. 1964(c), and 18 U.S.C. sec. 1341 (1970) (amended 1988), involved in this case, are quoted, in pertinent part, at pages 12-17 of the appendix. STAT OF THE CASE Petitioner Donner seeks review of a Florida state appellate court affirmance of a judgment of dismissal with prejudice, granting defendants’ motions to dismiss the complaint in Case No. 89-37625. Don- ner, aS plaintiff, instituted that case in 1989 in the Eleventh Judicial Circuit of Florida. Donner’s complaint named as de- fendants Appalachian Insurance Company ("Appalachian"), City of Miami, Florida ("the City"), City of Miami Police Officer Vernon Hetherington ("Hetherington"), Fowler, White, Burnett, Hurley, Banick & Knight, P. A. ("Fowler"), and attorneys Phillip W. Knight ("Knight") and Michael J. Murphy ("Murphy"). A. SUMMARY OF COMPLAINT The allegations of Donner’s complaint may be summarized as follows. In previously-filed Circuit Case No. 76-8301, Donner had sued Hetherington, the City, and their insurer, Appalachian. In that earlier 1976 suit, Metropolitan Dade County, Florida ("Dade County") and cer- tain county correctional officers (not parties to the case at bar) were also joined as defendants. In that earlier suit for damages, Donner claimed that, while exercising her "First Amendment" right to picket and gather signatures on a peti- tion, she was falsely arrested on a charge of breach of peace by Hetherington, acting within the course and scope of his employ- ment as a City of Miami Police Officer "under color of state law," and was there- by deprived of her "civil rights"; as a result of that arrest, she was imprisoned in the Dade County Women’s Annex as a pretrial detainee for five days; the per- sonnel of that Annex, acting within the course and scope of their employment as employees of Dade County and "under color of state law," assaulted her, stripped her naked, and left her in a cold solitary cell (all in full view of male prison per- sonnel) without clothing, blankets, tow- els, linen, medical attention, exercise facilities, running water, operable toi- let, or elements of personal hygiene for four days; the breach of peace charge was ultimately dismissed. Insurer Appalachian retained the Fow- ler law firm to represent defendants in Case No. 76-8301 and supervised their ren- dition of legal services. Attorneys Knight and Murphy, in the employ of that firn, appeared in that case as defense counsel. The City and Hetherington denied that the arrest was without "probable cause." In Case No. 76-8301, “under color of state law," the City, Hetherington, Appa- lachian, the Fowler law firm, and Knight, in conspiracy with one another, engaged in the following pattern of fraudulent misre- presentation and concealment. The City’s April 12, 1976 answers to interrogatories, served by mail upon Don- ner by defense counsel Knight, falsely represented that witnesses to the arrest were “unknown."* In truth, names and ad- * ¥hose same answers to interrogator- ies falsely stated that the City’s insurer is "unknown" -- even though it was Appala- chian that had retained the Fowler law firm. That same firm served Hetherington’s answer to an insurance interrogatory, dis- closing only Appalachian’s policy. Then, in response to Donner’s request for pro- duction of all policies, the City misre- presented the insurance coverage as limit- ed just to the Appalachian policy, produc- 6 dresses of witnesses to the arrest incid- ent were known to defendants since 1975 but those witnesses were no longer avail- able to testify when finally years later Donner learned of them. Hetherington’s answers to interroga- tories, served in 1977 by mail upon Donner by defense counsel Knight, falsely repre- sented that the only statement given by Hetherington concerning the incident was a July 1, 1975 statement. Knight wrote a letter to the trial judge, falsely repre- senting that the City had only that July 1, 1975 statement and a June 23, 1975 statement of Officer Parker. In 1978, Knight mailed Donner the City’s responses to her requests for production, falsely representing that all records requested ed just the Appalachian policy, and con- cealed three other policies. 7 therein and ordered to be produced had been produced, and he mailed her a like false response to her motion for discovery Sanctions. He even served upon her by mail Hetherington’s false disclaimer of the authenticity of the two statements that the City had produced. In addition to the officers’ afore- mentioned statements that were produced, other requested-to-be-produced statements were known to, and in the custody of, the City, its counsel, and Appalachian but were not produced and in fact were con- cealed. Donner’s complaint describes those concealed statements and explains their evidentiary significance favorable to her case and their relevance to the issues of both liability and damages. At the 1980 trial in that case, the court directed a verdict in favor of the City, Hetherington and Appalachian and en- tered judgment on that directed verdict. One year later, that verdict and judgment were reversed on appeal. Donner v. Hether- ington, 399 So.2d 1011 (Fla. Dist. Ct. App. 1981). That action remains (now six- teen years later) still pending in the trial court. If not for that misrepresent- ation and concealment, Donner would have had access to those withheld records and could have presented additional evidence at the 1980 trial that would have contra- dicted and impeached Hetherington’s test- imony and would have avoided entry of that directed verdict and the expense and men- tal anguish attendant upon the aforemen- tioned appeal. At that 1980 trial, after that verdict was directed, the jury re- turned a $15,000 verdict on Donner’s claims against Dade County and its correc- tional officers. The amount of that ver- dict was impaired as a result of the una- vailability to Donner of those concealed records. All those representations were known by defendants to be false when made or were made without knowledge of whether they were true, were made with the inten- tion that Donner rely upon their truth, and were material to the preparation and presentation of her case for trial, not only against Hetherington, the City, and Appalachian, but also against Dade County and its correctional officers, and Donner did So rely to her detriment. On October 28, 1981, Donner made a "public records demand" upon the City Attorney, upon the Fowler law firm, and upon Murphy to produce their respective case files relating to the claims asserted in Case No. 76-8301. Included in those files were the concealed statements, re- cords referring thereto, and records con- firming defendants’ knowledge of the con- cealed items of information. In response to that request, in order to conceal that scheme, and in order to deprive Donner of her claims asserted in Case No. 76-8301, the City, Fowler and Murphy, in conspiracy with one another and with the other defendants and "under color of state law," responded that the demanded public records would be produced only "when donkeys fly." Donner was forced to initiate Case No. 81-369 EX, a mandamus proceeding against Murphy, Fowler, and the City, to gain access to those records. That proceeding resulted in the issuance of a writ of mandamus requiring those re- cords custodians to produce the demanded F! public records and on August 19, 1985 public records were for the first time produced to Donner for inspection. During the four-year duration of that mandamus proceeding, Case No. 76-8301 was stayed and further delayed. Also as a re- sult of that conspiracy, Donner suffered mental anguish, evidence useful in prose- cuting her claims (including claims for violation of her "civil rights") has been lost, and memories of witnesses useful in prosecuting her claims (including claims for violations of her "civil rights") prejudicially faded. B. D e) COMPLAINT WITH PREJUDICE In Case No. 89-37625, two motions to dismiss the complaint were filed, one in behalf of Hetherington and the City and the other in behalf of Appalachian, Fow- ler, Knight and Murphy. Appalachian’s 12 motion asserted as a ground "absolute pri- vilege" for "statements or pleadings made in the course of judicial proceedings" but cited no supporting authority. The motion filed in behalf of the City and Hethering- ton asserted no such "privilege." The tri- al court granted both motions to dismiss and dismissed the complaint with preju- dice, but without specifying the ground for dismissal. (appendix 5-7) Donner’s timely-filed motion for rehearing and timely addendum thereto pointed out that the complaint sets out causes of action under Florida state law, under "18 U.S.C. Sec. 1964(c)," and under "42 U.S.C. Sec. 1983." Her motion alternatively requested at least one opportunity to amend the com- plaint. That motion for rehearing and add- endum thereto were denied.(appendix 8-9) 13 C. APPEAL AND AFFIRMANCE Donner appealed that dismissal to the District Court of Appeal of Florida, Third District. Donner briefed as issues pre- sented for review her contentions that "all elements of a federal civil rights action are alleged" (Donner’s Initial and Reply Briefs), that "all elements of a federal civil RICO action are alleged" (Donner’s Initial and Reply Briefs), and that no privilege for statements made in the course of judicial proceedings applies under Sec. 1983 or RICO to defendants’ alleged misconduct (Donner’s Initial and Reply Briefs).* In regard to the above- quoted issues, Donner argued that privi- lege under Sec. 1983 "is an issue of fed- * Donner also presented as an issue on appeal, and briefed argument in regard to, the trial court’s erroneous denial of her request for leave to amend the complaint. 14 eral, not Florida, law," and that, under federal law, neither defendants’ conceal- ment of witnesses’ names (requested in interrogatories) and of records (requested to be produced in pretrial discovery and in public records demands) nor _ their fraudulent misrepresentations in further- ance thereof, nor their conspiracy in that regard were immunized from Sec. 1983 or RICO liability by any "litigation" or jud- icial-proceeding "privilege." (Donner’s Initial and Reply Briefs) Those appellate arguments were supported by citations to federal precedent. Additionally, Donner’s Initial and Reply Briefs argued, and cited, in the context of federal RICO, federal cases affirming mail fraud con- victions for false statements and false answers to interrogatories in judicial proceedings. The Third District affirmed with an opinion. (appendix 1-4) In regard to Case No. 76-8301, the Third District stated: "Following a series of false starts, frustrated discovery forays, and appeals, the 1976 action languishes below awaiting retrial." (appendix 1-2) The opinion next adverts to Donner’s public records mandamus proceed- ing, "seeking access to the litigation files from" Case No. 76-8301, to her suc- cessful prosecution of that proceeding, and to her allegation that only when those files were produced under the writ of mandamus did she uncover defendants’ "alleged fraudulent misrepresentations made during discovery" in Case No. 76- 8301. According to that opinion, Donner then filed Case No. 89-37625 and ",.. [pled] multiple causes of action arising from alleged fraudulent mis- representations ... The trial court dismissed that complaint with preju- dice for failure to state a claim." 16 a (appendix 2-3) No reference is made in that opinion to the federal nature of claims pled in Donner’s complaint. Nor are any federal cases cited. The Third Dis- trict merely states: We agree with the trial court that the complaint Ms. Donner filed in this action failed to state a cogniz- able claim. See Ponzoli & Wassenberg, P. A. v. Zuckerman, 545 So.2d 309 (Fla. 3d DCA 1989), rev. denied, 554 So. 2d 1170 (Fla. 1989) (statements made in the course of judicial pro- ceedings enjoy ab-clute privilege); Wright v. Yurko, *46 So. 2d 1162 (Fla. 5th DCA 1984); Perl v. Omni Int’l of Miami, Ltd., 439 So. 2d 316 (Fla. 3d DCA 1983) (Same). (appendix 3) Footnote 3 to the opinion below relegates Donner rather to the trial court to apply in the pending 1976 action for "sanctions" in regard to the alleged discovery violations.‘ Donner timely moved for rehearing, * Footnote 3 also notes that the opin- ion should not be read as barring amend- ment of the complaint in Case No. 76-8301. 17 pointing out that the Third District’s re- liance upon Florida state court case pre- cedents concerning state law on the issue of immunity overlooked the fact that her complaint stated federal Sec. 1983 and RICO causes of action and that, under How- lett by and through Howlett v. Rose, 110 S.Ct. 2430 (1990), Martinez v. State of California, 444 U.S. 277 (1980), Briscoe v. LaHue, 460 U.S. 325 (1983), and other cited federal cases, federal, not state, law is controlling. That motion alterna- tively requested clarification of the opinion to refer to the federal nature of those causes of action to aid this Court in adjudicating a petition for writ of certiorari. That motion was denied. Don- ner’s petition to the Florida Supreme Court for review of the appellate affirm- ance was also denied. (appendix 10 and 11) 18 Ss OF The Third District’s erroneous re- liance upon Florida state law as immun- izing defendants against liability under Sec. 1983 and RICO is reviewable by this Court even though the Third District omit- ted any mention of the federal nature of those causes of action. The test to be applied under Street v. New York, 394 U.S. 576, 581-584 (1969) is whether the federal nature of those causes of action was at the trial level preserved for review and was at the appellate level presented for review. That test is fully satisfied by the record below. The Third District’s reliance upon state law as immunizing defendants from liability in regard to those federal claims directly conflicts with this Court’s recent decision in Howlett, 110 19 S.Ct. 2430, requiring the application of federal law. In regard to the Sec. 1983 clain, this Court has recognized only limited immunity in the context of "defamation" for "statements made in the course of jud- icial proceedings." That immunity is here inapplicable for the following reasons: Donner’s Sec. 1983 claim is not for "de- famation"; defendants’ concealment of re- cords and information cannot be character- ized as "statements"; neither Donner’s extrajudicial demand for access to public records nor defendants’ extrajudicial den- ial thereof was "in a judicial proceed- ing"; pretrial discovery was not known to the common law when Sec. 1983 was enacted; and the underlying conspiracy was not alleged to have been formulated ina judi- Cial proceeding. 20 That in-any-event-inapposite immunity is not applicable to Donner’s RICO claim for the additional reason that this Court noted in Briscoe v. LaHue, 460 U.S. 325, 339 n.22 (1983) -- that statements made in the course of judicial proceedings are not immune from criminal liability. Under 18 U.S.C. Sec. 1964(c), conduct that gives rise to criminal liability also gives rise to civil liability. This Court should exercise its dis- cretion by accepting certiorari jurisdic- tion. The Third District’s decision con- flicts with decisions of this Court and of the Courts of Appeal and deprives Donner of any federal remedy for the damage caus- ed by defendants’ misconduct under color of state law that has so long delayed and frustrated her prosecution of Case No. 76- 8301, a sixteen-year-old action. 21 ARGUMENT I. THIS COU IS VESTED WI CERTI- ORARI JURISDICTION TO REVIEW THE FLORIDA A CO JUDGM This Court is vested with jurisdic- tion to review the Florida state court judgment because that judgment disposes of an important issue of immunity, regarding Donner’s federally-based causes of action, in a way that conflicts with applicable decisions of this Court and of United States courts of appeal. That conflict is no less real simply because the Third District’s opinion chose not to mention the federal nature of the issues disposed of by its judgment. The Third District grounds its decision, that the complaint "failed to state a cogniz- able claim," solely upon Ponzoli & Wassen- berg, P. A. v. Zuckerman, 545 So. 2d 309, Wright v. Yurko, 446 So.2d 1162, and Perl 22 ‘. ‘lo Lam) td., 439 So. 2d 316, all cited as applying a privilege immunizing statements made in the course of judicial proceedings. Those cases con- cerned only non-federal claims. The Third District omits mention of federal law Simply by omitting reference to the fed- eral nature of Donner’s pleaded claims. A. PRESERVATION OF ISSUES FOR REVIEW That omission does not foreclose this Court’s exercise of certiorari jurisdic- tion. In Street v. New York, 394 U.S. 576, 581-584 (1969), even though no mention of the federal issue appeared in the state court judgment, jurisdiction was held to exist where the record below demonstrated that the federal issue had been preserved at the state court trial level for appel- late review and had been raised on appeal to the New York state appellate court. The 23 record at bar meets those criteria. 1. PRESERVATION OF ISSUES AT TRIAL LEVEL First of all, at the trial level, the federal nature of Donner’s Sec. 1983 and RICO claims, not only was explicitly arti- culated in her timely motion for rehearing and addendum thereto,® but also appeared on the face of the complaint. In pleading a statutory cause of action in a Florida state court, it is not necessary to in- Clude any reference to the statute, so long as the complaint’s factual allega- tions plead all the elements of the cause of action. City of Lakeland v. Select Ten- ures. inc., i239 Fia. 338, 176 So. 274, 277 (1937); Vance v. Indian Hammock Hunt & Riding Club, 403 So.2d 1367, 1369 (1981). >" Fla. R. Civ. P. 1.530(a) and (b) authorizes service of a motion for rehear- ing of a judgment within ten days after entry thereof. 24 City of Lakeland, 176 So. at 277 explained that Florida courts are required to take "public cognizance of all public stat- utes." That rule has now been codified in Sec. 90.201(1), Fla. Stat., mandating that the trial court judicially notice federal (and state) law. The commentary accompany- ing that statute further states that Flor- ida law is in accord with the statement in McCormick, Evidence Sec. 335 (2nd ed 1972) that "state courts will notice the federal law that is controlling." Furthermore, in Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla. 1971), the Florida Supreme Court held that the trial court is con- fined "strictly to the allegations within the four corners of the complaint" in adjudicating a motion to dismiss. Florida additionally subscribes to the familiar rule that "[i]f a complaint states a cause 25 of action upon any ground, a motion to dismiss the complaint for failure to state a cause of action should be denied." t v. McGahey C Ssler-Plymouth, Inc., 180 So.2d 354, 355 (Fla. Dist. Ct. App. 1965). It will be seen that the factual allegations within the four corners of Donner’s complaint do plead elements of federal Sec. 1983 and RICO claims.°® (a) 42 U.S.C. SEC. 1983 ACTION First to be considered is Donner’s Sec. 1983 claim. Gomez v. Toledo, 446 U.S. 635, 640 (1980) holds that such a claim is alleged simply by stating that defendant deprived plaintiff of a federal right un- * It will also be seen (in section C of this Argument, post) that, within the four corners of the complaint, appear allegations of misconduct that do not con- stitute "statements made in the course of judicial proceedings" immune from Sec. 1983 and RICO liability. 26 der color of state law. Since the defend- ant City is a local governmental unit, Since its insurer and defense counsel allegedly acted in behalf of, and in "con- Sspiracy" with, the City, and since Hether- ington allegedly also "conspired" with them, all were properly alleged to have acted "under color of state law."’ Adickes Vv. S.H, Kress & Co., 398 U.S. 144, 150-152 (1970); la v. Shapi , 708 F.2d 967, = ’ Cities are inciuded among the "per- sons" subject to liability under Sec. 1983. Monell v. Department of Social Ser- vices of City of New York, 436 U.S. 658, 690 (1978). While Monell limits the City’s own liability just to acts of official municipal policy, the alleged misconduct of the City acting through its attorneys in Case No. 76-8301 meets that criterion; Fla. R. Jud. Admin. 2.060(1) provides: "In all matters concerning ... de- fense of any proceeding in the court, the attorney of record shall be the agent of the client and any ... act by the attorney in the proceeding shall be accepted as the act of the client." 27 974 (5th Cir. 1983); Harrison v. Spring- Gale Water & Sewer Commission, 780 F.2d 1422, 1426 n.4, 1430, n.14 (8th Cir. 1986). Donner’s complaint also sufficient- ly alleged that defendants’ misconduct deprived her of rights secured by the Constitution and under federal law -- her right of meaningful access to court to prosecute Case No. 76-8301. In Ryland v,. Shapiro, 708 F.2d 967 (5th Cir. 1983), the Fifth Circuit held that Ryland’s similar complaint, alleging that defendants’ mis- conduct under color of state law delayed for eleven months Ryland’s right of access to state court in regard to Ryland’s state court wrongful death action, pled a cog- nizable Sec. 1983 claim for at least nom- inal damages for First and Fourteenth Amendment violations. Ryland, 708 F.2d at 971-973 cites California Motor Transport 28 nlimited, 404 U.S. 508 (1972) (right of access to courts is aspect of First Amendment right to peti- tion); v. McDonn [ooeae U.S. 539, 579 (1974) (Due Process Clause protects right of access to courts to present claims concerning violations of funda- mental constitutional rights); Logan vy. Zimmerman, 455 U.S. 422, 428 (1982) (cause of action is species of property® pro- tected by Due Process Clause). Ryland, 708 F.2d at 975 aptly reasoned: The defendants’ actions could have ®* In Ryland, 708 F.2d at 973, it is noted that Ryland’s wrongful death action had the "property" attribute of inherit- ability under Louisiana law. In regard to a Sec. 1983 claim, Smith v. City of Fon- tana, 818 F.2d 1411, 1416-1417 (9th Cir. 1987), cert. denied, 108 S.Ct. 311 (1987), holds that inheritability is determined by state law and, in that regard, Sec. 46.021, Fla. Stat. treats Donner’s claims as inheritable. 29 prejudiced the Rylands’ chances of recovery in state court because the resulting delay would cause stale evidence and the fading of material facts in the minds of potential wit- nesses. Moreover, it could well prove more expensive to litigate such action. Finally, any interference with a substantive constitutional right, such as the right of access to the courts, may by itself amount to a constitutional deprivation (unless reasonably justified by countervail- ing state interest). The allegations of Donner’s complaint in Case No. 89-37625 are even more compel- ling than were those in Ryland because allegedly defendants’ under-color-of- Sstate-law misconduct delayed for many years and damaged Donner’s’' underlying causes of action in Case No. 76-8301 that included, not only state-law based claims for false arrest and false imprisonment, but also federally-based claims for First and Fourteenth Amendment violations under 30 Sec. 1983.” (b) RICO CAUSE OF ACTION Donner’s complaint also stated ele- ments of a RICO claim. Allegedly defend- ants’*® conspired to send through the mail 9 Compare also Zinermon v. Burch, 110 S.Ct. 975 (1990) (availability of state court remedy to correct Bill of Rights violation does not foreclose Sec. 1983 action); Flores v. Perez, 617 F.2d 1386, 1388, 1392 (9th Cir. 1980), cert. denied, 449 U.S. 875 (1980) (Sec. 1983 damages for mental anguish recoverable for discrimina- tory state action resulting in delay); Memphis Community School District v. Sta- chura, 477 U.S. 299, 308 n. 11 (1986) (at least nominal Sec. 1983 damages recover- able for constitutional deprivation); Davis v. Village Park II Realty Co., 578 F.2d 461, 463-464 (2d Cir. 1978) (Sec. 1983 damages recoverable for emotional distress and, absent proof of actual in- jury, nominal damages recoverable for con- stitutional deprivation); Dykes v. Hose- mann, 743 F.2d 1488, 1500 (llth Cir. 1984) (en banc) (nominal and punitive Sec. 1983 damages recoverable). *° It has been held that treble RICO damages constitute a "penalty" for which a City may not be held liable. Gentry v. Township of Gloucester, 736 F.Supp. 1322 (D.N.J. 1990)However, the remaining defendants are not thereby exempted. 31 an extended series of fraudulent pretrial discovery responses, comprising a "pat- tern"? of mail fraud violative of 18 U.S.C. Sec. 134177,**, extending over a continuum of several years, depriving Don- ner of her property interest in the claims H.J., Inc. v. Northwestern Bell Telephone Co., 109 S.Ct. 2893, 2901 (1989); see also Morley v. Cohen, 888 F.2d 1006 (4th Cir. 1989) (fraudulent 1976 and 1977 misrepresentation concealed until 1981). ‘2 U.S. v. Peters, 732 F.2d 1004, 1006-1007 (1st Cir. 1984) (affirming mail- fraud conviction under count charging false answers to pretrial discovery interrogatories); U.S. v. Leyden, 842 F.2d 1026, 1029 (8th Cir. 1988), citing Peters as illustrative of the applicability of "mail fraud" to "legal proceedings"; U.S. v. Vaughan, 797 F.2d 1485, 1492-1493 (9th Cir. 1986) (affirming attorney’s mail fraud conviction for petition and follow- up letters he knew to be false in admini- strative proceeding); Tafflin v. Levitt, 110 S.Ct. 792, 798-799 (1990) (many RICO cases involve state fraud claims). ** 18 U.S.C. Sec. 1961(1) defines a violation of sec. 1341 as a "racketeering activity." 32 eee she asserted in Case No. 76-8301.?% (c) LEAVE TQ AMEND Even if, arguendo, some element of Donner’s RICO action were pled imperfect- ly, that circumstance could not explain either the initial complaint’s dismissal with prejudice or the Third District’s affirmance of that dismissal with preju- dice. Such a dismissal would be precluded, first, by her well-pled Sec. 1983 claim and, second, by Florida cases uniformly holding that a plaintiff is entitled to at least one opportunity to amend unless the allegations of the complaint confirm that amendment would be futile. Posey _v. Magill, 530 So.2d 985 (Fla. Dist. Ct. App. 1988); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d ‘* Logan v. Zimmerman, 455 U.S. 422, 428 (1982) (cause of action is species of property protected by Due Process Clause). 33 90 (Fla. Dist. Ct. App. 1980); Tucker v. Bray, 458 So. 2d 841, at 842 (Fla. Dist. Ct. App. 1984). Wells Fargo Armored Ser- vices Corp. ——————— (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. is U.s.@, section 1964(c) reads in pertinent part: Any person injured in his busi- ness or property by reason of a vio- lation of section 1962 of this chap- ter may sue therefor in any appropri- ate United States district court and Shall recover threefold the damages he sustains and the cost of the suit, including ‘a reasonable attorney’s fee. 18 U.S.C. section 1341 (1970) {amended 1988) reads in pertinent part: Whoever, having devised or intending to devise any scheme or artifice to defraud ... for the purpose of exe- cuting such scheme or artifice or attempting to do SO, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service ... or knowingly Causes to be _ delivered by mail according to the directions thereon, Or at the place at which it is dir- ected to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0116%3A1. Public record. Not legal advice.