Opposition Brief — Ahmed v. Greenwood

Be, se . oD

CLERK

No. 97-1004

In The

Supreme Court of the United States

October Term, 1997

+

MALEK AHMED,

Petitioner,

CHARLES GREENWOOD and

MORTGAGE GUARANTEE AND TITLE COMPANY,

Respondents.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

*

BRIEF OF RESPONDENT CHARLES GREENWOOD

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

+

CurisTOPpHER M. Orton, Esq.

Counsel of Record

Francis X. FLAHERTY, Esq.

Law Orrice FrRANcis X. FLAHERTY

The Summit West, Suite 210B

300 Centerville Road

Warwick, Rhode Island 02886

(401) 737-8700

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Bee GE NN 32's Scie ied EAN Hie. 2 eke iii

a ge | Per reer ec er eee eee 1

A. Statement of Procedural History .......... 1

i EE EUR. 04 bg awinbe'g eee ec guess sie 7

ie ety See ee eT EN TEP PREEETOCI: £ PETE 10

A. PLAINTIFF HAS FAILED TO ESTABLISH

FOR THE UNITED STATES SUPREME

COURT A BASIS UPON WHICH THE

COURT COULD RELY IN GRANTING

CERTIORARI JURISDICTION ............. 10

B. PLAINTIFF IS MISTAKEN IN HIS BELIEF

THAT THE FIRST CIRCUIT COURT OF

APPEALS SHOULD HAVE REVIEWED HIS

PROPOSED AMENDED COMPLAINT AS

THOUGH IT HAD BEEN CONSIDERED BY

THE RHODE ISLAND FEDERAL DISTRICT

COURT UNDER A RULE 12(b)(6) STAN-

CO TEE tet ET eT eee Tere ee 11

C. THE FIRST CIRCUIT COURT OF APPEAL’S

DECISION IN THE UNDERLYING CASE IS

NOT IN CONFLICT WITH ANY DECI-

SIONS OF OTHER UNITED STATES

COURTS OF APPEAL ON ANY IMPOR-

TANT MATTER AND AS SUCH CANNOT

PROVIDE THE PETITIONER WITH

GROUNDS FOR GRANT OF WRIT OF CER-

| | | ES CREE torres | Aart Seen eee 13

TABLE OF CONTENTS - Continued

Page

D. GREENWOOD OBJECTS TO SECTION III

OF PLAINTIFF’S PETITION IN THAT IT

CONTAINS MISSTATEMENTS OF FACT

AND INAPPROPRIATE FORM............ 17

E. THE ASSERTION IN SECTION III OF PLAIN-

TIFF’S PETITION, THAT THE RHODE

ISLAND DISTRICT COURT AND THE FIRST

CIRCUIT COURT OF APPEALS COMMITTED

ERRONEOUS FACTUAL FINDING, DOES

NOT PROVIDE A BASIS UPON WHICH THE

UNITED STATES SUPREME COURT COULD

RELY IN GRANTING CERTIORARI JURIS-

LES wi dete ccsWésdisscdvnbebuatnicess 19

EGR oka sv cnad atccuacdawaeetenetaweua 20

iii

TABLE OF AUTHORITIES

Page

Cases: |

Ahmed v. Rosenblatt, et al., 118 F.3d 886 (1st Cir.

ena ses 46s bukGNRe bass ckaWvis vsvs ine ss 5

Feinstein v. Resolution Trust Corp., 942 F.2d 34 (1st

Se CEs Lik Sa Miran ONE vin 4M UO Ld ose AKO HS 5

First American Corp., et al. v. Sheikh Zayed Bin Sul-

tan Al-Nahyan, et al., 948 FSupp. 1107 (D.C.

i eS SRR Er DSS 9 eae eg ge a 16

Forsyth v. Hammond, 17 S.Ct. 665, 106 U.S. 506, 41

rR Se hi a ies 00 sp eaes ones 4s >> 13

In re: Harvard Knitwear, Inc., 153 B.R. 617 (E.D.N.Y.

Palle shins EWS. 6 WN igs Hil Sink Kix soe oooh ee awe 16

Joseph Victori Wines, Inc. v. Vina Santa Carolina S.A.

et al., 993 FSupp. 347 (S.D.N.Y. 1996)............. 16

Layne & Bowler Corp. v. Western Well Works, Inc., et al.,

43 S.Ct. 422, 261 U.S. 387, 67 L.Ed. 712 (1923)....14, 17

New England Data Services, Inc. v. Becher, 829 F.2d

I I oA kink sinc bn eee ta sve be et-sce sce a ie

Teamsters, Chauffeurs, Warehousemen and Helpers

Union, Local No. 59 v. Super Line Transportation

Company, Inc., 953 F.2d 17 (1st Cir. 1992).......... 12

STATUTES

EE hone std h oan ncsecssneccuce 1

ee ee a as a 6 oR N Rae Abe e ss oan sees 2

iv

TABLE OF AUTHORITIES —- Continued

Page

RULES

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I. STATEMENT OF THE CASE

A. Statement of Procedural History.

On or about February 17, 1995 Plaintiff Malek Ahmed

(hereinafter “Plaintiff”) filed a verified complaint in the

United States District Court for the District of Rhode

Island.' In his complaint, the Plaintiff alleged a violation

of the Racketeer Influenced and Corrupt Organizations

Act (hereinafter “RICO”), 18 U.S.C. § 1961, et seq., as well

as other federal and state law claims. The verified com-

piaint was filed by Plaintiff pro se. It names Defendant

Charles Greenwood (hereinafter “Greenwood”) and

Defendant Mortgage Guarantee and Title Company (here-

inafter “MGT”) as Defendants. The complaint also named

Jon Rosenblatt, Carol Rosenblatt, Irwin Loft, Capitol Cen-

ter Associates Six, and William Larson as Defendants.

Only Greenwood and MGT remain in this action.

Both Greenwood and MGT filed motions te . smiss

the Plaintiff’s original complaint alleging thai .. rassed to

state a claim upon which relief could be granted and that

it failed to plead fraud with particularity. See, F.R.C.P.

12(b)(6), 9(b). Those motions were referred to the United

States Magistrate Judge Robert W. Lovegreen for report

and recommendation to Senior United States District

Court Judge Raymond J. Pettine. The Magistrate’s report

was handed down on September 4, 1995.2 The recommen-

dation was that each count of the Plaintiff’s complaint be

dismissed. In reaching that decision, Lovegreen found

1 Pet. App. pgs. 31-43.

2 Pet. App. pgs. 17-30.

that the Plaintiff’s complaint failed to set forth the ele-

ments needed to state a cause of action under the Federal

RICO Statute.

The Plaintiff, acting pro se, objected to Lovegreen’s

report and recommendation. Subsequently, Plaintiff

retained the services of Attorney Arthur E. Chatfield, III.

Attorney Chatfield filed a supplemental objection to the

Report and Recommendation on or about October 11,

1995.

Judge Pettine adopted the Magistrate’s report and

recommendation in its entirety pursuant to 29 U.S.C.

§ 636(B)(1).4 Judge Pettine specifically found that the

Plaintiff had failed to plead sufficiently specific facts to

establish instances of mail and wire fraud, a pattern of

racketeering activity, or the existence of an enterprise

affecting interstate commerce.5 The District Court deter-

mined that the Plaintiff's original verified complaint

failed to adequately plead any of the elements necessary

to establish a Federal RICO claim. Judge Pettine ruled

that, despite being pro se, the Plaintiff still had the bur-

den of pleading specific facts to back up his claims.® Even

being afforded the benefit of leniency given to pro se

litigants, the Plaintiff failed to meet this burden.” Judge

Pettine dismissed the Plaintiff's original complaint on

November 15, 1997.

3 Pet. App. pgs. 22-27.

+ Pet. App. pgs. 14-16.

> Id.

6 Pet. App. pg. 15.

7 i.

———

The Plaintiff appealed the Rhode Island District

Court’s Dismissal order. That appeal was docketed in the

First Circuit Court of Appeals at Appeal No. 96-1145. The

Plaintiff filed his brief on June 7, 1996. Immediately there-

after, and prior to Greenwood and MGT submitting their

briefs, the Plaintiff filed a motion to amend his complaint,

along with a proposed amended complaint, in the First

Circuit Court of Appeals.® The Plaintiff’s motion was

denied by the First Circuit.? The Defendants filed their

briefs opposing Plaintiff’s original appeal in September of

1996.

The Plaintiff then filed a motion to vacate his com-

plaint’s dismissal in the Rhode Island District Court,

claiming relief under each and every subsection of Rule

60(b).!° Timely objections to the motion were filed by

both Defendants.'! On October 1, 1996 a hearing was held

before Mag:strate Judge Lovegreen.

The Magistrate heard arguments from all parties. The

issue presented to the magistrate was whether or not

Plaintiff was entitled to have the order dismissing his

complaint vacated under Rule 60(b). The Magistrate

issued an order from the bench finding that the Plaintiff

had failed to meet the criteria under any of the subsec-

tions of the Federal Rule 60(b).!2 The Magistrate recom-

mended denial of the Plaintiff’s motion.

8 Pet. App. pg. 10.

9 Id.

$0: id.

11 Jd.

12 Id.

In determining whether Rule 60(b)(6) applied to the

Plaintiff’s circumstance, the Court reviewed the Plain-

tiff’s proposed amended complaint. The Magistrate found

that despite being longer and more detailed than the

Plaintiff’s original verified complaint, in substance it was

the same complaint that had been previously dismissed.'*

As such, Plaintiff had failed to prove to the District Court

that he would be able to assert a meritorious claim

sounding in RICO. Proof of the existence of a meritorious

claim is a pre-condition to the grant of Rule 60(b)(6)

relief.!4 In addition, the Magistrate found that the Plain-

tiff had failed to prove the existence of exceptional cir-

cumstances, and that both Greenwood and MGT would

be prejudiced by having to assume the burden and

expense of defending the case at that point in time.!5 The

Plaintiff had failed to meet the preconditions and criteria

necessary for relief under Federal Rule of Civil Procedure

60(b)(6) or the other subsections of Rule 60(b).

The Plaintiff objected to the Magistrate’s order. The

matter was transferred to Judge Pettine for review. On

December 20, 1996 Judge Pettine affirmed and approved |

Magistrate Lovegreen’s order.’© The Plaintiff appealed |

the denial of Rule 60(b) relief to the First Circuit. The |

issues asserted in Plaintiff's second appeal were his

beliefs that the dismissal of his complaint should have |

been vacated under Federal Rule 60(b)(1) or 60(b)(6).!7

3 Td.

14 Pet. App. pg. 12.

1S Pet. App. pg. 10.

16 Id.

17 Pet. App. pgs. 10-13.

EEE

Plaintiff’s second appeal, of Judge Pettine’s denial of

his Rule 60(b) motion, was docketed in the First Circuit

Court of Appeals at Appeal No. 97-1037. Plaintiff’s two

appeals, 96-1145 and 97-1037, were consolidated for pur-

poses of oral argument. The Appeals Court rendered a

decision affirming both the judgments entered by the

Rhode Island Federal District Court.!® That decision, the

one which this petition arises out of, is published at

Ahmed v. Rosenblatt, et al., 118 F.3d 886 (1st Cir. 1997).

In ruling upon Plaintiff's first appeal, the First Cir-

cuit found that the Plaintiff’s original verified complaint

failed to plead any of the elements needed to establish a

RICO claim, including the predicate acts of mail and wire

fraud,19 that the acts were related and posed a continuous

threat of criminal activity needed to prove a pattern?° and

the existence of an enterprise.?! The First Circuit also held

that the Plaintiff was not entitled to a ‘second determina-

tion’ under the Becher case 2? because there had never at

any time been any indication by the Plaintiff that critical

information regarding mail and wire fraud was in the

sole possession of the Defendants.?5

On the issue of pro se leniency, the Court found that

the policy behind affording that leniency was to protect

18 Pet. App. pgs. 1-13.

19 Pet. App. pgs. 5-7.

20 Id.

21 Td.

22 New England Data Services, Inc. v. Becher, 829 F.2d 286 (1st

Cir. 1987); Feinstein v. Resolution Trust Corp., 942 F.2d 34 (ist Cir.

1991).

23 Pet. App. pgs. 7-8.

the pro se party who had pled sufficient facts but the

incorrect cause of action.?4 In that situation, the court

could assist the pro se Plaintiff by correcting the defective

complaint. In the Plaintiff's case, the opposite scenario

was presented, Plaintiff had stated a proper cause of

action, but not the facts supporting it.25 The Court found

that the Rhode Island District Court had afforded Plain-

tiff the appropriate leniency.”°

In deciding Plaintiff’s second appeal, the Court of

Appeals reviewed the Rhode Island District Court’s

denial of Plaintiff’s Rule 60(b) motion for an abuse of

discretion.27 The Court acknowledged that the District

Court had reviewed Plaintiff's proposed amended com-

plaint in the context of that motion.?® The Court of

Appeals found that the District Court had not abused its

discretion in denying the Plaintiff’s claim for relief under

Rule 60(b)(6), because the Plaintiff had failed to demon-

strate either a colorable RICO claim or exceptional cir-

cumstances which would have entitled him to the

requested relief.29 The court affirmed both of the District

Court’s judgments.

24 Pet. App. pgs. 8-9.

25 Id.

26 Pet. App. pg. 9.

27 Pet. App. pgs. 23 (Ftnt. 2), 10-13.

28 Pet. App. pgs. 2-3 (Ftnt. 2), 10.

29 Pet. App. pgs. 11-13.

B. Statement of Facts

Plaintiff filed his original complaint in the Rhode

Island District Court on February 17, 1995. Affording the

Plaintiff the appropriate leniency and assuming that his

allegations are true, which Defendant Greenwood has

consistently maintained that they are not, the following

are the facts which the Plaintiff has alleged in support of

his RICO claim.

The Plaintiff’s verified complaint alleges that in

October of 1988 he had entered into a purchase and sale

agreement with Defendant William Larson for the sale of

47 Maple Street in Providence, Rhode Island.* Plaintiff

was the owner of that real property.3! The agreement was

contingent upon Larson obtaining financing. The Plaintiff

hired Greenwood as an attorney to represent him in the

sale of that property and to draft the purchase and sale

agreement.%? Larson placed a $5,000 deposit on the prop-

erty, which Greenwood held in escrow for the Plaintiff’s

benefit.57 On October 20, 1988, Plaintiff was notified by

Larson that he would be unable to obtain financing.*4

Plaintiff alleges that he then instructed Greenwood to

return the $5,000 deposit to Larson, but that he failed to

do so.35

30 Pet. App. pg. 33.

31 Td.

32 id.

= id.

34 Id.

35 Id.

On December 16, 1988 Plaintiff entered into a second

purchase and sale agreement relative to the same piece of

property, 47 Maple Street.5° The agreement was executed

between the Plaintiff and Irwin Loft, who was acting as

an agent of or principal for Capitol Center Associates Six

(Loft Agreement).%7 It is alleged by Plaintiff that he was

represented by Greenwood at that time.*® Plaintiff

received a $25,000.00 deposit when the Loft Agreement

was executed.°*?

On December 19, 1988, Larson recorded the Larson

Agreement in the land evidence records for the City of

Providence.” Loft, on behalf of Capitol Center Associates

Six, requested that MGT place a lien upon the real prop-

erty at 47 Maple Street on December 27, 1988.4! The lien

was to secure the $25,000 given to the Plaintiff.42 Subse-

quently, on March 8, 1989, Defendant Capitol Center

Associates Six gave Plaintiff an additional $30,000 in “ear-

nest money” for the purchase of 47 Maple Street. The

closing on the Loft Agreement took place on March 14,

1989.44 On March 15, 1989 Larson filed a Lis Pendens

against the property at 47 Maple Street based on the

36 Pet. App. pg. 34.

37 Id.

38 Id.

39 Id.

40 Id.

41 [d.

42 [d.

43 Id.

* id.

Zz

Larson Agreement.** On March 16, 1989, Plaintiff was

informed by MGT that the closing would be voided due

to the cloud Larson’s lien had created on the title of 47

Maple Street. Plaintiff alleges that the Loft Agreement

contained a forged set of signatures which purportedly

extended the time for performance of the agreement until

August 1, 1989.47 Plaintiff denies ever signing that exten-

sion.

Larson sued the Plaintiff on March 18, 1989 for speci-

fic performance under the Larson Agreement.*? It is

alleged by the Plaintiff that Greenwood filed an answer

on behalf of the Plaintiff before he was ever informed that

he was being sued.%°

Plaintiff alleges that on or about July 12, 1989 Green-

wood and Loft requested that the Plaintiff executed a

number of documents which he thought were

“receipts.”5! Plaintiff received an additional $30,000.00

from Capital Center Associate Six when he signed those

“documents.”52 Plaintiff alleges that he subsequently

determined that those “receipts” were actually Prom-

issory Notes and a Mortgage Deed on 47 Maple Street

and two other properties then owned by the Plaintiff.5°

45 Id.

46 Id.

47 Pet. App. pg. 36.

48 Id.

49 Pet. App. pg. 34.

50 Id.

51 Pet. App. pg. 35.

52 Id.

533 Id.

10

The notes and mortgage ran to the benefit of Loft individ-

ually and were to secure the $85,000.00 given to the

Plaintiff as payment toward the purchase of 47 Maple

Street.>4

After unsuccessful attempts by Loft to foreclose upon

the Plaintiff’s property in both 1991 and 1992, Loft trans-

ferred the Promissory Notes and Mortgage Deed to Jon

and Carol Rosenblatt.°°

Plaintiff’s verified complaint alleges that the Defen-

dants violated the Racketeering Influenced and Corrupt

Organizations Act by conspiring with one another to

defraud the Plaintiff out of his interests in real property

on Maple Street.5° He further alleges that in carrying out

their scheme to defraud the Plaintiff, that the Defendants

committed mail and wire fraud in violation of Federal

Law.5”? Defendant Greenwood denies all of the Plaintiff's

allegations relative to the RICO count.

Il. ARGUMENT

A. PLAINTIFF HAS FAILED TO ESTABLISH FOR

THE UNITED STATES SUPREME COURT A

BASIS UPON WHICH THE COURT COULD '

RELY IN GRANTING CERTIORARI JURIS-

DICTION.

Plaintiff Ahmed, as Petitioner to this court for Writ of

Certiorari, has the burden of clearly and concisely articu-

lating for both the court and opposing parties the issues

4 Id.

55 Pet. App. pgs. 36, 37.

56 Pet. App. pgs. 37-39.

57 Pet. App. pg. 39.

eee

11

upon which he believes certiorari jurisdiction can be

granted, as well as the specific facts which support those

issues.°8 Plaintiff Ahmed’s petition fails to meet this bur-

den. Reading the petition, it is difficult, if not impossible,

to decipher the reasoning upon which Plaintiff relies in

support of his request for grant of writ of certiorari. As

such, responding to Mr. Ahmed’s claims is clearly

attended by obstacles. Plaintiff’s failure to succinctly

establish understandable grounds for the granting of his

petition should result in the denial of the same.

B. PLAINTIFF IS MISTAKEN IN HIS BELIEF

THAT THE FIRST CIRCUIT COURT OF

APPEALS SHOULD HAVE REVIEWED HIS

PROPOSED AMENDED COMPLAINT AS

THROUGH IT HAD BEEN CONSIDERED BY

THE RHODE ISLAND FEDERAL DISTRICT

COURT UNDER A RULE 12(b)(6) STANDARD.

As explained in the reply’s statement of the case

(supra), Plaintiff Ahmed pursued a Rule 60(b)(6) motion

seeking to vacate the Rhode Island Federal District

Court’s dismissal of his original complaint. In support of

said motion, Ahmed submitted a proposed amended

complaint for the court’s review. If the district court had

granted the Rule 60(b)(6) motion, it was Ahmed’s intent

to file and proceed with the litigation based upon the

proposed amended complaint.

In deciding whether to grant a Rule 60(b)(6) motion,

it is incumbent upon the district court to determine the

58 Sup. Ct. R. 10.

12

existence or absence of a number of essential criteria. One

of the issues that the court must resolve in deciding

whether to set aside a judgment under Rule 60(b)(6) is

whether the moving party possesses a potentially mer-

itorious claim, which if proven will bring success in its

wake.5? This criteria allows the court to avoid undertak-

ing what would otherwise turn out to be the empty

exercise of reinstating a claim which is doomed to fail.

The moving party must satisfy this precondition prior to

being entitled to Rule 60(b)(6) relief.

In applying the Rule 60(b)(6) standard to Plaintiff

Ahmed’s motion, the Rhode Island Federal District Court

was required to review the proposed amended complaint

in the context of a Rule 60(b)(6) motion.®! The district

court found that the amended complaint, although longer

and more detailed than the original complaint, was in

substance the same, and did not persuade the court that

Ahmed’s claim was potentially meritorious.®

Section I of Ahmed’s petition to this court erro-

neously asserts that the district court reviewed the pro-

posed amended complaint in the context of a Rule

12(b)(6) motion.® This is an attempt by the Plaintiff to

have the proposed amended complaint reviewed under a

de novo standard. The Plaintiff, under the law, is not

59 Teamsters, Chauffeurs, Warehousemen and Helpers Union,

Local No. 59 v. Super Line Transportation Company, Inc., 953 F.2d

17, 21 (ist Cir. 1992).

60 Id.

61 Pet. App. pgs. 2-3 (Ftnt. 2), 10-13.

62 Id.; Pet. App. pgs. 10, 11-13.

6 Petition pgs. 5-6.

13

entitled to such a review. Clearly, the district court

reviewed the proposed amended complaint strictly in

connection with its consideration of Ahmed’s rule

60(b)(6) motion to vacate.** As such, the First Circuit

appropriately reviewed the district court’s denial of that

motion for an abuse of discretion.© Plaintiff is incorrect

in his assertion that the court’s consideration of the

motion to vacate and its examination of the amended

complaint in conjunction therewith should have been

reviewed on appeal under a de novo standard.

The erroneous contentions of Section I of Ahmed’s

petition does not provide this court with a basis upon

which certiorari jurisdiction could be founded.

C. THE FIRST CIRCUIT COURT OF APPEAL’S

DECISION IN THE UNDERLYING CASE IS

NOT IN CONFLICT WITH ANY DECISIONS

OF OTHER UNITED STATES COURTS OF

APPEAL ON ANY IMPORTANT MATTER

AND AS SUCH CANNOT PROVIDE THE

PETITIONER WITH GROUNDS FOR GRANT

OF WRIT OF CERTIORARI.

Certiorari jurisdiction of the United States Supreme

Court is not available to a party as a matter of right, but

rather is a matter of judicial discretion.© It is a power

which should be exercised sparingly.*” A Petition for Writ

64 Pet. App. pgs. 2-3 (Ftnt. 2), 10-13.

65 Pet. App. pgs. 10-13.

66 Sup. Ct. R. 10.

67 Forsyth v. Hammond, 17 S.Ct. 665, 106 U.S. 506, 41 L.Ed.

1095 (1897).

14

of Certiorari will be granted only for compelling rea-

sons.® It is very important that the court be consistent in

not granting the Writ of Certiorari except in cases involv-

ing principles the settlement of which is of importance to

the public as distinguished from that of the parties, and

in cases where there is a real and embarrassing conflict of

opinion and authority between the Circuit Courts of

Appeal.®? Supreme Court Rule 10 states that one of the

reasons considered by the Court in deciding whether or

not to exercise its discretion over certiorari jurisdiction is

whether the underlying decision of the Court of Appeals

is in conflict with the decision of another United States

Court of Appeals on the same important matter.7°

Section II of Plaintiff Ahmed’s petition attempts to

present the argument that the First Circuit Court of

Appeal’s decision in this case is in conflict with decisions

of other United States Courts of Appeal.7! The Petitioner

states:

“{The Plaintiff] should have been afforded a

liberal interpretation of the ‘second determina-

tion’ Becher principle, especially in the face of

the other circuit’s opinions that would be in

disagreement with the First Circuit’s.”72

68 Sup. Ct. R. 10.

69 Layne & Bowler Corporation v. Western Well Works, Inc., et

al., 43 S.Ct. 422, 423-424, 261 U.S. 387, 392-393, 67 L.Ed. 712

(1923).

70 Sup. Ct. R. 10(a).

71 Petition at pgs. 7, 10.

72 Petition at pg. 4.

15

Despite this assertion, Ahmed fails to identify a single

case from another circuit court which supports his belief

of the existence of a conflict over an important issue of

law.

The First Circuit, when considering a Plaintiff's abil-

ity to state a claim sounding in RICO, where the predicate

acts giving rise to that claim are alleged mail and wire

fraud, found:

“In a RICO mail and wire fraud case, in regards

to the details of just when and where the mail

and wires were used, we hold that dismissal

should not be automatic once the lower court

determines that 9(b) was not satisfied. In an

appropriate case, where, for example the speci-

fic allegations of the Plaintiff make it likely that

the Defendant used interstate mail and telecom-

munications facilities, and the specific informa-

tion as to use is likely in the exclusive control of

the Defendant, the Court should make a second

determination as to whether the claim as pre-

sented warrants the allowance of discovery and

if so, thereafter provide an opportunity to

amend the defective complaint.”75

It is the application of this legal principle by the First

Circuit to the underlying case which the Plaintiff claims

created a “disagreement” with other courts of appeal.

In an effort to support this alleged conflict, Ahmed

cites two district court cases and a bankruptcy case out of

the Eastern District of New York.74 None of these cases,

73 New England Data Services, Inc. v. Becher, 829 F.2d 286, 290

(1st Cir. 1987).

74 Petition at pg. 9.

16

as cited by the Plaintiff, contain any legal issues which

are in conflict with the legal standards set out in the

Becher case. In fact, none of the three cited cases even

mention the ‘second determination’ issue. Two of the

cases do not concern RICO causes of action at all,75 and as

such are clearly irrelevant to this petition, and the third

case, in which a RICO claim is alleged, has no bearing

upon the ‘second determination’ issue because the case is

not considered in a 12(b)(6) context.76

What the Plaintiff is doing is attempting to create the

appearance of a conflict between the courts of appeal

where none exists. The true basis of the Plaintiff's claim

to entitlement of certiorari jurisdiction, although it is

couched in terms of a conflict, is his disagreement with

how the lower courts applied the legal standard applica-

ble to Federal Rule 12(b)(6) to his claim. Plaintiff states:

“It is unreasonable for the First Circuit to sug-

gest that the pro se complaint does not accord

itself favorably with this standard.”77

The “standard” to which Plaintiff refers is the Rhode

Island District Court’s application of the Rule 12(b)(6)

standard to his original complaint, and the First Circuit

Court of Appeal’s affirmation of the District Court's dis-

missal of it.

75 In re: Harvard Knitwear, Inc., 153 B.R. 617 (E.D.NY 1993);

Joseph Victori Wines, Inc. v. Vina Canta Carolina.S.A., et al., 933

F.Supp. 347 (S.D.N.Y. 1996).

76 First American Corp., et al. v. Sheikh Zayed Bin Sultan Al-

Nahyan, et al., 948 F.Supp. 1107 (D.C. 1996).

77 Petition at pg. 7.

17

The Plaintiff should not be allowed to conjure up a

basis for granting his petition. Despite Plaintiff’s asser-

tions, there is no conflict of importance between the

courts of appeal due to the issues arising out of this case.

What the Plaintiff has alleged is a misapplication of a rule

of law to his factual claim. Although Greenwood has no

doubt that this alleged misapplication is important to the

Plaintiff, it is of little importance to the public as a

whole.”8 This Court should not grant the Plaintiff’s peti-

tion for Writ of Certiorari based upon an alleged misap-

plication of a properly stated rule of law.79

D. GREENWOOD OBJECTS TO SECTION III OF

PLAINTIFF’S PETITION IN THAT IT CON-

TAINS MISSTATEMENTS OF FACT AND

INAPPROPRIATE FORM.

Greenwood asserts that the information set forth in

his statement of the case contained herein provides an

accurate rendition of what the Plaintiff pled in his origi-

nal complaint as submitted in the District Court. Section

III of the Plaintiff’s petition is an attempt to mislead the

Court, by providing a blurred picture of what was prop-

erly before the District Court. The information contained

in Section III is a combination of allegations made in

Plaintiff’s original complaint, Plaintiff’s proposed

amended complaint, unfounded lega! opinions, Plaintiff's

78 Sup. Ct. R. 10; Layne & Bowler Corporation; 43 S.Ct. at

423-424, 261 U.S. at 392-393, 67 L.Ed. 712.

79 Sup. Ct. R. 10.

18

“hyperbolic assertions” and rank speculation. It is vir-

tually impossible to decipher the origins of the informa-

tion contained in this section of the petition, and

Greenwood objects to having to do so in an effort to

respond to it.

In addition, Defendant Greenwood objects to Plain-

tiff’s characterization in this section of the petition of the

existence of “proven facts.”®° All of the “facts” contained

in this section of the petition, at best, were simply allega-

tions of the Plaintiff. In the context of the District Court's

consideration of Defendants’ 12(b)(6) motion, the allega-

tions from the Plaintiff's original complaint were

accepted as true. This, however, clearly does not establish

those “facts” as proven. In fact, much of the information

that the Plaintiff would have this Court believe to be

“proven facts,” is in reality unfounded legal opinions,

speculation and unreasonable assumptions of the Plain-

tiff.6! The Court should disregard these tactics of the

Plaintiff.

Greenwood also objects to the Plaintiff’s use in Sec-

tion III of his petition of quotations without providing the

slightest indication as to their origin.®? It is impossible for

80 Pet. pages 10-24.

81 For example, see petition, pages 13, (” . . . the agreement

was considered null and void . . . ”), 13-14 (“ .. . the agreement

would have been null and void without ambiguity”), 15

(“Greenwood drafted the 2nd PSA and ran the risk of

committing malpractice, .. . ”), 17-18 (“An ‘earnest money’

payment is a unilateral exchange, and there was no reciprocal

obligation on the part of the Plaintiff”).

82 Petition, page 11 (footnote 8), 17, 22.

19

Greenwood to fashion a response to information which

simply appears from nowhere, hanging in mid-air.

For these reasons, Plaintiff’s petition should be

denied.

E. THE ASSERTION IN SECTION III OF PLAIN-

TIFF’S PETITION, THAT THE RHODE

ISLAND DISTRICT COURT AND THE FIRST

CIRCUIT COURT OF APPEALS COMMITTED

ERRONEOUS FACTUAL FINDINGS, DOES

NOT PROVIDE A BASIS UPON WHICH THE

UNITED STATES SUPREME COURT COULD

RELY IN GRANTING CERTIORARI JURIS-

DICTION.

Once the Plaintiff’s hyperbolic assertions are weeded

from Section III of his petition, it appears that Plaintiff is

arguing that the lower courts misapplied the facts before

them, did not provide Plaintiff with the reasonable infer-

ences that flowed from those facts, and as a result

improperly dismissed a properly plead RICO cause of

action. This argument is meritless. The Plaintiff has con-

tinuously refused to recognize that the minimal facts

which he was able to plead were insufficient to support a

colorable RICO claim. Not once through the litigation of

this matter through innumerable forums has Plaintiff

been able to clearly and concisely explain to any Court,

how the alleged facts established the existence of an

enterprise between Greenwood, a lawyer, and Mortgage

Guarantee and Title Company, a title company hired by a

third-party to do title work, nor has Plaintiff been able to

clearly explain how this alleged enterprise engaged in a

20

pattern of racketeering which threatened to continue into

the future.

The District Court and Court of Appeals considered

the facts before them, they afforded the Plaintiff the

leniency to which he was entitled, they drew the infer-

ences which reasonably flowed from those facts, and

taking all of that into consideration concluded that the

factual basis of a RICO action had not and could not be

pled. This Court should be reluctant to grant a petition

for Writ of certiorari when the asserted error consists of

alleged erroneous factual findings.®? The Plaintiff's peti-

tion for grant of Writ of Certiorari should be denied.

Ill. CONCLUSION

Plaintiff has failed to establish for this court any basis

upon which certiorari jurisdiction could be granted. As

such, and for the reasons set forth above, the Plaintiff's

petition for Writ of Certiorari should be denied.

Respectfully submitted,

Respondent,

Charles Greenwood,

By His Attorneys,

CHRISTOPHER M. Orton, Esq.

Counsel of Record

Francis X. FLAHERTY, Esq.

Law Orrice Francis X. FLAHERTY

The Summit West, Suite 210B

300 Centerville Road

Warwick, Rhode Island 02886

(401) 737-8700

83 Sup. Ct. R. 10.