Opposition Brief — Birnbaum v. Ray

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No. 00-982 JAN 16 2001

OFFIC® OF THE Ci. ek

os ah te

IN THE Borne

Supreme Court of the United States

UDO BIRNBAUM,

Petitioner,

v.

RICHARD RAY, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS

BETTY DAVIS AND BECKY MALONE

Rosert S. Davis

Counsel of Record

FLowErS Davis, L.L.P.

Attorneys for Respondents

Betty Davis and Becky Malone

815 Rice Road

Tyler, Texas 75703

(903) 534-8063

164645 aq Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Table of Cited Authorities .. ... 0 cic ccc ce eelens

Reasons for Denying the Writ .................

ek a ear Pome oo err eee

Course of Proceedings and Dispositions Below ...

ok ee re ee ree

FS kai Fes BE se he

Birnbaum’s First Argument .................

Respondents’ Response to First Argument .....

Birnbaum’s Second Argument ...............

Respondents’ Response to Second Argument ...

Birnbaum’s Third Argument .................

Respondents’ Response to Third Argument ....

Birnbaum’s Fourth Aigument Ne SP Perry eee.

Respondents’ Response to Fourth Argument ...

I ks ae i a re ae re oa

Page

12

17

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Bogney v. Jones, 904 F.2d 272 (5" Cir. 1990) ..... 8

Brown v. NationsBank Corp., 188 F.3d 579 (5" Cir.

1999) ...< «sucess aeate een es ae ones 9

Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. —

Dallas 1994, writ denied) .............-e.008: 10, 11

Chappell v. Robbins, 73 F.3d 918 (9 Cir. 1996) .. 13

Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496,

SS L. Bd. 2b SOF Cee oben bis box nena saacs 10

Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.

26 80 (9987) n.c'ckeugeeass bie eee ee, 8

Cook v. Reno, 74 F.3d 97 (5® Cir. 1996) ......... 4

Cooper v. Parrish, 203 F.3d 937 (6" Cir. 2000) ... ay

Crawford-El v. Britton, 523 U.S. 574, 118 S. Ct.

1584, 140 L. Ed. 2d 759 (1998) .............. 8, 11

Crowe v. Henry, 115 F.3d 294 (5® Cir. 1997) ..... 15

Davis v. Bayless, 70 F.3d 367 (5" Cir. 1995) ...... 9

Delcourt v. Silverman, 919 S.W.2d 777 (Tex. App. —

Houston [14" Dist.] 1996, writ denied) ........ 11

ili

Cited Authorities

Page

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206

| Pe Py rr rome: per pe fst: oe passim

Garry v. Geils, 82 F.3d 1362 (7 Cir. 1996) ...... 5

H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S.

229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989)

SE Dey Oe Pe OR Py OL EE yew See 13,14

Jordahl v. Democratic Party of Va., 122 F.3d 192

EL aot eck dss Clas Gee S oa BC 5

Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211,

Me Re Es oT a er eS re 4

Kamilewicz v. Bank of Boston, 92 F.3d 506 (7® Cir.

1996), cert. denied, 520 U.S. 1204, 117 S. Ct.

Boe, £37 5 EE. 26 744 CA997) on oc ke icin 6,8

Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901

F.2d 404 (5" Cir.), cert. denied, 498 U.S. 895, 111

S. Ct. 244, 112 L. Ed. 2d 203 (1990) .......... 15

Langford v. Rite-Aid of Alabama, Inc., 231 F.3d 1308,

GE pe I ad drs Cause sk BY Vhs s besa coe 13

Lovelace v. Software Spectrum, Inc., 78 F.3d 1015

cog SG ee ee ee ee ree 15

iv

Cited Authorities

Page

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 83 S. Ct. 671, 9 L. Ed. 2d

DET CAGED 6 0.0685 6e045 0s es 4

McLaughlin v. Anderson, 962 F.2d 187 (2d Cir.

SOE. Kc bcc cawank Khas cehed eas aes 14

Melder v. Morris, 27 F.3d 1097 (5" Cir. 1994) .... 16

Mireles v. Waco, 502 U.S. 9, 112 S. Ct. 286,

COG Ta. Se Ce io neh owas eee oe 11,12

Mylett v. Mullican, 992 F.2d 1347 (5S Cir. 19953) .. 10

O'Neal v. Mississippi State Board of Nursing, 113

Pee Ga SUED 05s okies boss es Cs 10

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107

=. <A. 8089, SS 1 Be Pr kv cc cee skek. 5

Ritter v. Ross, 992 F.2d 750 (7 Cir. 1993) ....... 5

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44S. Ct.

BAD, GE 1. BG, BG GR CASES nck ce cwnanas passim

Rotella v. Wood, 528 U.S. 549, 120 S. Ct. 1075, 145

Pe ge, Se ee er ry ere ae

Ruhrgas v. Marathon Oil Co., 526 U.S. 574, 119

S. Ct. 1563, 143 L. Ed. 2d 760 (1999) ......... 4

Vv

Cited Authorities

Page

Sojourner T. v. Edwards, 974 F.2d 27 (5" Cir. 1992)

PGE MRA SSA Eas 4

Stachon v. United Consumers Club, Inc., 229 F.3d

673 {7° Ce: BOO}: a RASA AEA 13

Stegmaier v. Trammell, 597 F.2d 1027 (5® Cir. 1979)

5a Gs Sa as ee ee Oe ee 4

Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099,

S35 5. BE Oe Sat Cae a ck va hens kee 10

Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971)

eRe Paws ee CRESS ee oe ee Ow ae 7

Statutes:

Oe PE da obs ce cee a 15

ate Fe Eg ery a eer err <s

FS UG Oe eee is hr Ha ae 15

SE TEEG.. Fe ek cae ee ie hiss 13, 14

TOUS S Beer oo ee Se a: 14

Te ans 6 TOE ce 14

USC 60 oe eee 6, 12

vi

Cited Authorities

Page

Rules:

Pan GG PE sc accccteécadcsenane ee 13

Pep, B.C. B. SOD i608 ddctvsich eee 9, 12, 15, 16

rap. R. Cov. BP. RO. is bce edeees 1, 8,9, 12, 13

rep. R. CWP. GY ua cissce tien eee 13

l

REASONS FOR DENYING THE WRIT

Respondents Betty Davis and Becky Malone would

respectfully show unto this Honorable Court that Petitioner

Birnbaum’s arguments are without merit. The United States

Court of Appeals for the Fifth Circuit correctly affirmed the

District Court’s dismissal of Birnbaum’s claims, whether due

to lack of jurisdiction or for Birnbaum’s failure to state a

claim upon which relief could be granted. Further, neither

the legislative intent of Congress nor previous decisions of

this Court prohibit the dismissal of civil RICO claims

pursuant to either the Rooker/Feldman Doctrine or Federal

Rule of Civil Procedure 12(b)(6).

STATEMENT OF THE CASE

In his Petition for Writ of Certiorari, Petitioner Bimbaum

(hereinafter “Birnbaum”) has misstated the facts of this

litigation. Respondents Betty Davis and Becky Malone

submit the following summary of facts relevant to this Court’s

decision.

COURSE OF PROCEEDINGS AND

DISPOSITIONS BELOW

On March 30, 1999, Birnbaum filed his Complaint

alleging numerous violations of the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. § 1961

et seq., by ten defendants. Nine defendants, including Betty

Davis and Becky Malone, filed motions to dismiss or

alternatively to abate the proceedings. The tenth defendant,

Kerry Young, filed a motion for summary judgment.

Birnbaum amended his petition. Thereafter, United States

Magistrate Judge Stickney filed Findings, Conclusions, and

2

Recommendation regarding the dispositive motions.

The District Court adopted the Magistrate Judge’s findings

and dismissed Birnbaum’s complaint for failure to state a

claim.

On October 14, 1999, Birnbaum filed a notice of appeal,

seeking review of the District Court judgment. In an

unpublished opinion, the Fifth Circuit affirmed the District

Court’s judgment on the ground that the District Court had

been without jurisdiction to entertain Birnbaum’s claim.

Relying on this Court’s opinions in District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 476, 482,

103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983), and Rooker v.

Fidelity Trust Co., 263 U.S. 413, 415, 44 S. Ct. 149, 68

L. Ed. 2d 362 (1923), the Fifth Circuit noted that a federal

district court lacks subject matter jurisdiction to review state-

court litigation and issues inextricably intertwined with that

litigation. The Fifth Circuit affirmed the District Court’s

judgment, finding that Birnbaum’s federal claims arose solely

from state-court litigation and were inextricably intertwined

with the state-court litigation.

STATEMENT OF FACTS

William Jones and Birnbaum were neighbors in Van

Zandt County, Texas. This litigation arises from a dispute

involving a beaver dam on Birnbaum’s property. Jones, with

the assistance of his attorney, Richard Ray, sued Birnbaum

in 1994 under the Texas Water Code in the hope of causing

Birnbaum to remove the dam and recovering damages from

Birnbaum for damages caused to Jones’s real property by

the dam (the “Beaver Dam Case”). The suit was filed in the

294" Judicial District Court of Van Zandt County, Texas. At

trial, a jury determined that Birnbaum allowed a dam or dams

3

on his property to cause upstream flooding on Jones’s

property. The jury awarded no damages to Jones, but awarded

him $10,000 in attorney’s fees. Birnbaum was unsatisfied

with the trial court action, and filed the instant suit in federal

district court. Among other things, Birnbaum alleged that

the defendants “attempted to enrich themselves by using their

relationships in the Court to extort legal fees, moneys, and

other valuable things, by the use of fraudulent documents,

arguments, and corrupt court process as weapons for

malicious prosecution.” For cause of action, Birnbaum

alleged that the defendants violated 18 U.S.C. § 1961 et seq.

(civil RICO) by engaging in racketeering activity, conspiracy,

and fraud.

Birnbaum asserted numerous specific acts of misconduct

on the part of Respondents Betty Davis, Court Coordinator,

and Becky Malone, Court Reporter. Birnbaum’s sole

allegations against Betty Davis concerned the issuance or

non-issuance of notices and the relaying of simple

information about the Beaver Dam Case. All of the alleged

activities were patently “judicial” in nature. Th¢ allegation

against Malone was that she simply had no record of a

transcript of a hearing or hearings.

ARGUMENTS

BIRNBAUM’S FIRST ARGUMENT:

1. The Appeals Court’s decision that the Rooker/Feldman

doctrine bars this civil RICO cause conflicts with the

legislative intent of RICO as expressed in this Court’s

Rotella v. Wood. (“The object of civil RICO is thus not

merely to compensate victims but to turn them into

prosecutors, ‘private attorneys general,’ dedicated to

eliminating racketeering activity.”)

4

RESPONDENTS’ RESPONSE:

Petitioner Birnbaum makes three discernible arguments

in his initial issue. First, Birnbaum contends that the Fifth

Circuit erred by deciding his case on different grounds than

those relied upon by the federal district court. Second,

Birnbaum asserts that the issues in the state-court case were

“entirely different” from those in the federal litigation and

were not “inextricably intertwined” as determined by the Fifth

Circuit. Third, Birnbaum asserts that the Fifth Circuit’s

Rooker/Feldman Doctrine dismissal of his appeal was

inappropriate because civil RICO is a statutory cause of

action, and not subject to Rooker/Feldman. Each of these

contentions is erroneous, and Respondents Davis and Malone

will address each one in turn.

The Fifth Circuit was entitled to affirm the district court’s

dismissal on any proper ground. See Sojourner T. v. Edwards,

974 F.2d 27, 30 (5® Cir. 1992); Stegmaier v. Trammell,

597 F.2d 1027, 1038 (5 Cir. 1979). Indeed, it was incumbent

upon the Fifth Circuit to initially address the district court’s

jurisdiction, as issues of subject matter jurisdiction must

precede any determination of the merits of a case. Ruhrgas

v. Marathon Oil Co., 526 U.S. 574, 583, 119 S. Ct. 1563,

1569, 143 L. Ed. 2d 760 (1999); Cook v. Reno, 74 F.3d 97,

99 (5" Cir. 1996). Jurisdictional issues, particularly the

' Article III case or controversy requirement, should be

examined on appeal even if not raised by the parties or the

court below. See Juidice v. Vail, 430 U.S. 327, 331, 97

S. Ct. 1211, 1215, 51 L. Ed. 2d 376 (1977); McCulloch v.

Sociedad Nacional de Marineros de Honduras, 372 U.S. 10,

16, 83 S. Ct. 671, 674, 9 L. Ed. 2d 547 (1963). Therefore,

the Fifth Circuit did not err in affirming the District Court’s

judgment on different grounds than those relied upon by that

court.

5

Contrary to his assertion in this Court, Birnbaum’s civil

RICO issues were inextricably intertwined with the state-

court action. The Rooker/Feldman Doctrine precludes lower

federal courts from exercising jurisdiction over claims that

would require them to review a state-court action. District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

483, 103 S. Ct. 1303, 1316, 75 L. Ed. 2d 206 (1983); Rooker

v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149,

150, 68 L. Ed. 2d 362 (1923). Review of a state-court action

is possible only in the state-court system and then to the

United States Supreme Court. Garry v. Geils, 82 F.3d 1362,

1366 (7" Cir. 1996). The Doctrine bars federal district court

review of claims that were actually raised in state court and

those claims that are inextricably intertwined with state-court

determinations. Ritter v. Ross, 992 F.2d 750, 753 (7% Cir.

1993). The key inquiry is whether “the district court is in

essence being called upon to review the state-court decision.”

Feldman, 460 U.S. at 483-84 n.16, 103 S. Ct. 1316 n.16.

If adjudication of a claim in federal court would require

the court to determine that a state-court judgment was

erroneously entered or was void, the claim is inextricably

intertwined with the merits of the state-court judgment.

See, e.g., Jordahl v. Democratic Party of Va., 122 F.3d 192,

202 (4" Cir. 1997). “Where federal relief can only be

predicated upon a conviction that the state court was wrong,

it is difficult to conceive the federal proceeding as, in

substance, anything other than a prohibited appeal of the

state-court judgment.” Pennzoil Co. v. Texaco, Inc., 481

U.S. 1, 25, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) (Marshall,

J., concurring).

The Fifth Circuit correctly determined that Birnbaum’s

federal claims were inextricably intertwined with the state-

court action. Birnbaum’s entire federal complaint relies on

6

the assertion that the state-court proceeding is void because

of the racketeering activities of Respondents Davis, Malone,

and others. In order to grant Birnbaum relief on his civil

RICO claim, the federal district court would have had to

review the state-court proceedings and determine that they

were fraudulent and therefore void. Birnbaum’s state action

and federal claims were inextricably intertwined, and the

Fifth Circuit correctly affirmed dismissal of Birnbaum’s

complaint on Rooker/Feldman grounds.

Birnbaum also asserts that the Rooker/Feldman Doctrine

is inapplicable to his RICO claims because civil RICO is a

statutory cause of action. This contention is unsupported by

any authority. Further, this Court has given at least tacit

approval to the dismissal of RICO claims pursuant to the

Rooker/Feldman Doctrine by denying a writ of certiorari in

such a case. See Kamilewicz v. Bank of Boston, 92 F.3d 506,

512 (7" Cir. 1996), cert. denied, 520 U.S. 1204, 117 S. Ct.

1569, 137 L. Ed. 2d 714 (1997) (federal appellate court

affirmed a district court’s dismissal of RICO claims on

grounds of lack of jurisdiction pursuant to the Rooker/

Feldman Doctrine, and this Court denied certiorari).

BIRNBAUM’S SECOND ARGUMENT:

2. Whether 18 U.S.C. § 1964(c) “civil RICO” permits the

use of the Rooker/Feldman Doctrine to keep plaintiff

from showing his cause is an important issue of federal

law that this Court should establish.

RESPONDENTS’ RESPONSE:

Birnbaum has confused this Court’s holdings regarding

Congress’s intent in establishing a civil cause of action for

7

victims of racketeering. He insists that Congress’s legislative

intent in enacting civil RICO prohibits the Fifth Circuit’s

use of the Rooker/Feldman Doctrine to “keep a plaintiff from

showing his cause.” Birnbaum relies on this Court’s

statements in Rotella v. Wood for support of his allegations.

That reliance is misplaced.

Birnbaum’s reliance on Rotella and previous Clayton Act

decisions is confused. Neither Rotella nor any Clayton Act

decision prohibits a finding that the Rooker/Feldman

Doctrine precludes federal district court jurisdiction, and

Birnbaum has cited none. Rotella teaches that “there is a

clear legislative record of congressional reliance on the

Clayton Act when RICO was under consideration.” Rotella

v. Wood, 528 U.S. 549, 120 S. Ct. 1075, 1082, 145 L. Ed. 2d

1047 (2000). “Both statutes share a common congressional

objective of encouraging civil litigation to supplement

Government efforts to deter and penalize the respectively

prohibited practices.” Jd. Therefore, this Court used previous

holdings in Clayton Act cases to determine that the “injury

and pattern discovery rule” did not govern the start of the

limitations period for civil RICO claims. 120 S. Ct. at 1082-

83. In fact, the Court used Clayton Act precedent to bar

recovery for Rotella and other RICO plaintiffs who did not

discover a pattern of racketeering practices within the

applicable four-year statute of limitations. Jd. (citing Zenith

Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338,

91 S. Ct. 795, 806, 28 L. Ed. 2d 77 (1971). Rotella does not

address the Rooker/Feldman Doctrine.

Birnbaum particularly relies upon this Court’s statement

that “(t]he object of civil RICO is thus not merely to

compensate victims but to turn them into prosecutors, ‘private

attorneys general,’ dedicated to eliminating racketeering

8

activity.” However, he cites no authority for his conclusion

that this object of RICO allows a private RICO plaintiff to

challenge a state-court decision in federal district court.

Federal RICO statutes do not provide a vehicle to attack state-

court judgments nor to sanction the conduct of state-court

judges taken within the scope of their judicial authority. See

Bogney v. Jones, 904 F.2d 272, 274 (5" Cir. 1990); see also

Kamilewicz v. Bank of Boston, 92 F.3d 506, 512 (7 Cir.

1996), cert. denied, 520 U.S. 1204, 117 S. Ct. 1569, 137 L.

Ed. 2d 714 (1997) (affirming district court’s dismissal of

RICO claims on grounds of lack of jurisdiction pursuant to

the Rooker/Feldman Doctrine).

BIRNBAUM’S THIRD ARGUMENT:

3. The Appeals Court’s decision to affirm the granting of

individual FRCP Rule 12(b)(6) motions to dismiss upon

claims of immunity conflicts with this Court’s opinion

in Crawford-El. (“This Court has never indicated that

qualified immunity is relevant to the existence of the

plaintiffs cause of action.”)

RESPONDENTS’ RESPONSE:

Contrary to Birnbaum’s assertion, a federal district court

may dismiss a plaintiff’s cause of action pursuant to Federal

Rule of Civil Procedure 12(b)(6) on the ground that the

defendant enjoys immunity from suit. A court may dismiss a

complaint under Rule 12(b)(6) where it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief. Conley v. Gibson,

355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

Where a defendant’s immunity from suit precludes the

plaintiff’s claim, a court may properly dismiss the plaintiff’s

9

claim pursuant to Rule 12(b)(6). See, e.g., Cooper v. Parrish,

203 F.3d 937, 946 (6" Cir. 2000) (district court properly

dismissed plaintiff’s claim pursuant to Rule 12(b)(6) on

ground of judicial immunity); Brown v. NationsBank Corp.,

188 F.3d 579, 588 (5® Cir. 1999) (applying immunity to civil

RICO case); Davis v. Bayless, 70 F.3d 367, 376 (S® Cir. 1995)

(affirming district court’s Rule 12(b)(6) dismissal of court-

appointed receiver on grounds of judicial immunity).

Birnbaum contended that certain alleged, isolated events

on the part of Davis and Malone made them racketeers. The

sole allegations against Betty Davis regarded issuance or

non-issuance of notices and the relaying of simple information

about the Beaver Dam Case. Specifically, Birnbaum

complained of the following: (1) issuance of notice of a

pretrial conference instead of a trial; (2) informing Birnbaum

that his opponent’s Motion for Default Judgment was moot;

(3) failing to set a hearing on a Petition addressed to the

United States Department of Justice; (4) failing to issue an

Order of Recusal or Order of Referral of the Motion for

Recusal; (5) failing to send a notice that the administrative

judge had appointed a new judge; (6) failing to issue a notice

that the judge had made a notation on the docket that a

mediator had been appointed; (7) issuing a notice of hearing

despite the fact that no motion had been filed; (8) upon

“information and belief,” backdating a notice of setting for

trial; (9) failing to issue a notice of a hearing on recusal; and

(10) using the wrong words “motion for entry of judgment”

in a notice concerning a hearing on a “Motion for Judgment

on Verdict.” All of these activities are patently “judicial” in

nature. The allegation against Malone is that she simply had

no record of a transcript of a hearing or hearings. These are

precisely the kind of allegations that Rule 12(b)(6), Rule 9(b),

and the doctrines of judicial and qualified immunity were

designed to prevent.

10

“It is generally understood that a judge, and those

similarly situated, have absolute immunity for judicial acts.”

Mylett v. Mullican, 992 F.2d 1347, 1352 (5® Cir. 1993).

Courts examine the character of a governmental officer’s

duties and the relationship to the parties when determining

whether he or she is entitled to absolute immunity. /d. (citing

Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed.

2d 331 (1978)). “If the functions are of a judicial nature then

we must weigh the costs and benefits of denying or affording

absolute immunity.” O’Neal v. Mississippi State Board of

Nursing, 113 F.3d 62, 65 (5" Cir. 1997). The following six

factors are characteristics of the judicial process and are

instructive in determining whether a defendants is entitled

to absolute immunity: (1) the need to assure that the

individual can perform his functions without harassment or

intimidation; (2) the presence of safeguards that reduce the

need for private damages actions as a means of controlling

unconstitutional conduct; (3) insulation from political

influence; (4) the importance of precedent; (5) the adversarial

nature of the process; and (6) the correctability of error on

appeal. See id. (citing Cleavinger v. Saxner, 474 U.S. 193,

202, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985)). “No one factor

is controlling and the list of considerations is not intended

to be exclusive.” Mylett, 992 F.2d at 1353.

In Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App. — Dallas

1994, writ denied), the court of appeals explained the doctrine

of derived judicial immunity in Texas as follows:

Judges are immune from tort liability for acts

performed or not performed in the course of

judicial proceedings over which they have

jurisdiction. Turner v. Pruitt, 161 Tex. 532, 342

S.W.2d 422, 423 (1961). When judges delegate

11

their authority or appoint persons to perform

services for the court, their judicial immunity may

follow that delegation or appointment. In Texas,

judicial immunity applies to officers of the court

who are integral parts of the judicial process, such

as a prosecutor performing typical prosecutorial

functions, court clerks, law clerks, bailiffs,

constables issuing writs, and court-appointed

receivers and trustees. . . .

891 S.W.2d at 707; see also Delcourt v. Silverman,

919S.W.2d 777, 782 (Tex. App. — Houston [14" Dist.] 1996,

writ denied) (policy underlying derived judicial immunity is

to prevent harassment and intimidation that might otherwise

result if disgruntled litigants could vent anger by suing person

who either presents decision-maker with adverse information

or renders adverse opinion).

Further, this Court’s opinion in Crawford-El v.

Britton, 523 U.S. 574, 118 S. Ct. 1584, 140 L. Ed. 2d 759

(1998), is misplaced. Crawford-El did not address Rule

12(b)(6) dismissal on immunity grounds. To the contrary,

Crawford-El discussed the relative summary judgment

burden on the parties in a civil rights claim that required

proof of motive. 523 U.S. at 598, 118 S. Ct. at 1596-97.

Crawford-El is inapposite to the present case.

With respect to each of the alleged acts of misconduct,

Davis and Malone were clearly performing official duties as

Court Coordinator and Court Reporter, respectively, for the

294" Judicial District Court. If particular acts are scrutinized

in isolation, then any alleged mistake by a judicial actor in

excess of his or her authority would become a “nonjudicial”

act. See Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286,

12

2881, 116 L. Ed. 2d 9 (1991). None of the allegations

concerning Davis and Malone, however they are scrutinized,

meets the pleading requirements of Rule 9(b). As the District

Court correctly decided, Birnbaum should not be able to

surmount the pleading requirements and Respondents’

entitlement to judicial immunity by offering only wild

allegations and a clear misunderstanding of the litigation

process and Respondents’ duties.

The District Court did not err in determining that

Respondents were entitled to judicial immunity from

Birnbaum’s claims.

BIRNBAUM’S FOURTH ARGUMENT:

4. Whether 18 U.S.C. § 1964(c) “civil RICO” permits

dismissal of individual defendants under FRCP 12(b)(6)

when plaintiff has plead all the elements of civil RICO

and brought evidence of each defendant’s conduct is an

important Issue of Federal Law that this Court should

establish.

RESPONDENTS’ RESPONSE:

Rule 12(b)(6), and indeed all of the Federal Rules of

Civil Procedure, apply to civil RICO actions. Federal Rule

of Civil Procedure 1 provides:

These rules govern the procedures in the United

States district courts in all suits of a civil nature

whether cognizable as cases of law or in equity

or in admiralty, with the exceptions stated in

Rule 81.

13

Fep. R. Civ. P. 1. Rule 81 excepts bankruptcy actions,

copyright actions, and certain admiralty actions from the

application of the Federal Rules of Civil Procedure.

See Fep. R. Civ. P. 81 (comprehensive exceptions to

application of procedural rules). Rule 81 does not except civil

RICO actions from the applicability of the Federal Rules of

Civil Procedure.

In addition to the general applicability of Rule 12(b)(6)

to civil RICO actions, several federal appellate courts have

affirmed Rule 12(b)(6) dismissals of civil RICO actions. See,

e.g., Stachon v. United Consumers Club, Inc., 229 F.3d 673,

677 (7 Cir. 2000) (affirming district court’s dismissal of

civil RICO claims pursuant to Rule 12(b)(6)); Langford v.

Rite-Aid of Alabama, Inc., 231 F.3d 1308, 1314-15 (11" Cir.

2000). See also Chappell v. Robbins, 73 F.3d 918, 925

(9" Cir. 1996) (affirming district court’s 12(b)(6) dismissal

of civil RICO cause of action on ground of absolute

immunity).

As noted above, the sole allegations against Respondent

Betty Davis regarded the issuance or non-issuance of notices

and the relaying of simple information about the Beaver Dam

Case, all of which activities were patently “judicial” in nature.

The allegation against Respondent Malone was that she had

no record of a transcript of a hearing or hearings. However,

Birnbaum alleged that the acts of Davis and Malone

constituted RICO predicate acts of mail and wire fraud.

The RICO statute provides explicitly that there must be

a “pattern” of racketeering activity and that “pattern” is

defined to “require[ ] at least two acts of racketeering

activity.” 18 U.S.C. § 1961(5) (emphasis added); see also

H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237-

14

38, 109 S. Ct. 2893, 2899-2900, 106 L. Ed. 2d 195 (1989);

McLaughlin v. Anderson, 962 F.2d 187, 192 (2d Cir. 1992)

(noting that the “bare minimum of a RICO charge is that a

defendant personally committed or aided and abetted the

commission of two predicate acts”).

Plaintiff alleged violations of subsections (c) and (d) of

section 1962 of the RICO statutes. Those subsections

provide:

(c) It shall be unlawful for any person employed

by or associated with any enterprise engaged in,

or the activities of which affect, interstate ...

commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity

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

to violate any of the provisions of subsection . . .

Pee

18 U.S.C. § 1962(c), (d). A RICO “pattern of racketeering

activity requires at least two acts of racketeering activity.”

§ 1961(5). Relevant to Birnbaum’s claims, “racketeering

activity” means:

(B) any act which is indictable under. . . title 18,

United States Code: . . . section 1341 (relating to

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

15

18 U.S.C. § 1961(1). The elements of mail fraud as a

predicate offense for civil RICO purposes are:

(1) A scheme or artifice to defraud or to obtain

money or property by means of false or fraudulent

pretenses, representations or promises.

(2) Interstate or intrastate use of the mails for the

purpose of furthering or executing the scheme or

artifice to defraud.

(3) the use of mails by the defendant connected

with the scheme [or] artifice to defraud.

(4) Actual injury to the business or property of

the plaintiff.

See 18 U.S.C. § 1341; Landry v. Air Line Pilots Ass'n Int'l

AFL-CIO, 901 F.2d 404, 428 (5" Cir.), cert. denied, 498 U.S.

895, 111 S. Ct. 244, 112 L. Ed. 2d 203 (1990). These elements

also apply to wire fraud. Crowe v. Henry, 115 F.3d 294, 297

(5" Cir. 1997) (Both “RICO mail fraud and wire fraud require,

inter alia, evidence of intent to defraud ....”, quoting

Landry). Fraudulent intent may be found from circumstantial

evidence that one party arranged matters with another party

in such a way as would facilitate the commission of fraud,

especially where the evidence further shows that the first

party gained money or advantage at the expense of the second.

Id.

Finally, Federal Rule of Civil Procedure 9(b) requires

specificity in allegations of fraud. To satisfy that rule, it is

not enough that the plaintiff simply allege fraudulent intent

as a conclusory fact. Lovelace v. Software Spectrum, Inc., 78

F.3d 1015, 1018-1019 (5 Cir. 1996). Furthermore, “rote

16

conclusory allegations that the defendants ‘knowingly did

this’ or ‘recklessly did that’ ” fail to meet the heightened

pleading requirements of Rule 9(b). Lovelace, at 1019 (citing

Melder v. Morris, 27 F.3d 1097 (5" Cir. 1994)).

Bimbaum clearly failed to state a claim under civil RICO.

Regarding Malone, Birnbaum did not allege a pattern of

racketeering activity. He only complained of one act

committed by Malone. Regarding both Davis and Malone,

Birnbaum failed to state a claim under civil RICO because

he failed to plead allegations that constituted fraud, use of

the mails or wire, or a pattern of racketeering. None of the

alleged activities of Davis or Malone involved fraud, and

Birnbaum failed to adequately allege fraud, which must be

specifically pleaded. See Fep. R. Civ. P. 9(b). Further,

Birnbaum failed to adequately plead that Davis or Malone

profited from the outcome of the Beaver Dam Case.

Birnbaum’s Amended Complaint failed in all respects to

satisfy his burden.

17

CONCLUSION

This Court should deny Birnbaum’s petition for writ of

certiorari. Birnbaum has presented no meritorious grounds

for this Court to grant his petition. He has not identified any

error in the Fifth Circuit’s decision or demonstrated that it

conflicts with the decision of another United States Court of

Appeals. Further, Birnbaum has not identified an important

question of federal law that has not been previously settled

or considered by this Court.

Wherefore, Respondents Davis and Malone respectfully

request that this Court deny Birnbaum’s petition.

Respectfully submitted,

Rosert S. Davis

Counsel of Record

FLowers Davis, L.L.P.

Attorneys for Respondents

Betty Davis and Becky Malone

815 Rice Road

Tyler, Texas 75703

(903) 534-8063