Jennings v. Emry

Decision Date16 August 1990
Docket NumberNo. 89-3599,89-3599
Citation910 F.2d 1434
PartiesRICO Bus.Disp.Guide 7527 Stephen JENNINGS, D.C., Mary Jennings, Christine Jennings, David Jennings, Debbie Jennings, Lon A. Kaminsky, D.C., and Terry L. Kaminsky, Plaintiffs-Appellants, v. John EMRY, Linley Pearson, Patricia Alder, Kenneth Buehrle, Dave Sylvester, Don Dombrowski, Michael A. Minglin, Thomas G. Fisher, Aaron White, Marci Beyer, Rocky McClain, Richard McCord, Donna Bays-Beinhart, James Martin, Steven Kelman, D.C., John Henry Meyers, IV, Rebecca Rouch, Robert Simonson, D.C., Ronald Kolanko, D.C., Daniel A. Lane, Richard Hendrickson, David Miller, Scott Newman, Sheldon Breskow, Mark Lundy, and Mark Devine, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Kenneth C. Kern, Kern & Associates, Indianapolis, Ind., for plaintiffs-appellants.

Robert S. Spear, Asst. Atty. Gen., Office of Atty. Gen., David M. Haskett, Eric A. Riegner, Locke, Reynolds, Boyd & Weisell, Terrill D. Albright, Mary J. Harmon, Baker & Daniels, Indianapolis, Ind., John Emry, Franklin, Ind., Charles S. Brown, Jr., Brown & Brown, New Castle, Ind., James A. Gothard, Lawrence B. O'Connell, Gothard and O'Connell, Lafayette, Ind., James H. Ham, III, Douglas, Dormire & Powers, Fort Wayne, Ind., for defendants-appellees.

Before WOOD, Jr., and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(2). In this case, the statement in the Appellants' complaint is not short; rather, it is a lengthy 55 pages and 433 rhetorical paragraphs. The statement also is not plain; rather, it is prolix, disjointed, confusing, and at times unintelligible. And despite this length and complexity (or perhaps, in part, because of it), the complaint does not show that its pleaders are entitled to the relief they seek, relief for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-68. Acting on the Appellees' Rule 12(b)(6) motion, the court below dismissed the Appellants' claims for various reasons dealing with immunity, statute of limitations, collateral estoppel, standing, and pendent jurisdiction. We affirm, but on other grounds. See Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986); Brown v. Brienen, 722 F.2d 360 (7th Cir.1983). We have no particular objection to the district court's method of analysis. We simply find it unnecessary to examine that method in light of the evident failure of the Appellants' complaint to adequately state a claim for relief under RICO.

RICO is a complex statute, it is true. Thus, by necessity, most RICO complaints will be somewhat complex. The necessity for complexity, however, does not give litigants license to plead by means of obfuscation. See FED.R.CIV.P. 8(e)(1). A RICO complaint must be presented with intelligibility sufficient "for a court or opposing party to understand whether a valid claim is alleged and if so what it is." Old Time Enter., Inc. v. International Coffee Corp., 862 F.2d 1213, 1218 (5th Cir.1989). And it must be presented with clarity sufficient to avoid requiring a district court or opposing party to forever sift through its pages in search of that understanding. See id. at 1219. Regarding the Appellants' complaint, the absence of this intelligibility and clarity is notable. The complaint, indeed, is the apogee of pleading by means of obfuscation. For its complete failure to adduce an intelligent story, one that a court can follow without untoward effort, we are tempted to dismiss it. Due to the liberality with which we construe pleadings at this stage, however, we have resisted the temptation. To understand the complaint, we will make the untoward effort.

The gist of the Appellants' claim 1 is that Indiana chiropractors in general, and chiropractors Kaminsky and Jennings, in particular, are being "persecuted" by Indiana state law enforcement personnel who are "supported" by conspiratorial medical organizations. This "persecution" is evidenced by three investigations carried on by Indiana authorities, one each related to each of two Appellants--Kaminsky, and Jennings--and one related to a nonappealing plaintiff, P. Joseph Lisa.

Kaminsky's "persecution," apparently, began in May of 1981. Kaminsky, it seems, had purchased for $1,000 a "Doctor of Homeopathic Medicine" degree from an outfit in Florida and, apparently on the strength of that "degree," had advertised himself as an "M.D." and performed certain medical procedures. These actions caused some small displeasure in the medical community. Several physicians took action, notifying the Indiana Medical Licensing Board (IMLB) and the Tippecanoe County Prosecutor's Office (TCPO) of Kaminsky's deeds and various statutes that may have been infringed. This led to investigations of Kaminsky by the IMLB and the TCPO. The IMLB investigation was short and sweet: hearings were held in June; in July a decision was reached that Kaminsky had violated Indiana law; Kaminsky's license was suspended for six months (with a five year probationary period to follow) in August. 2 The TCPO's investigation was somewhat more involved. Tippecanoe County prosecutor Meyers and deputy prosecutors Beyer, Lane, and Rouch all participated. Eventually, they prosecuted. On June 23, 1982, the TCPO filed criminal charges against Kaminsky. Yet this was just the beginning. Soon, the Indiana Attorney General's Office (IAGO) was contacted and brought into the fray. Attorney General Pearson and deputy attorney generals Minglin, Emry, and Hendrickson all became involved in varying degrees. So too did investigators Alder and Bays-Beinhart of the Consumer Product Division of the IAGO (CPD), CPD chief counsel Miller, Indiana State Police (ISP) members White, McClain and McCord, and an apparent confidential informant named Martin.

At certain times some or all of these people wrote memoranda to each other discussing the Kaminsky case, made motions and appearances in court, obtained subpoenas and affidavits, gathered evidence from insurance companies, obtained information from Indiana State Chiropractic Association peer review committee member Kelman, observed Kaminsky and his patients, ran various sting operations on Kaminsky and his health clinic, and otherwise "harassed" or "threatened" Kaminsky, his patients, his acquaintances, and his lawyer. This activity bore fruit: Kaminsky's license was suspended on March 22, 1984 and then revoked on June 29, 1984 by the Indiana Board of Chiropractic Examiners (IBCE). 3 In county court, a civil injunction was obtained against Kaminsky and later, on June 28, 1986, Kaminsky pled guilty to a criminal misdemeanor charge. 4

Compared to Kaminsky's ordeal, Jennings's is refreshingly simple. Jennings and his health clinic apparently were being investigated by ISP member Buehrle. Buehrle, posing as a patient, ran a sting on Jennings's clinic. Evidence was gathered. In October, 1984, Buehrle and ISP member Sylvester entered Jennings's clinic and seized equipment and patient files. Thereafter the two examined the files. In November, Jennings went to court seeking a return of his equipment and files. In December "some of the confiscated items" were returned, but the investigation of Jennings continued. 5 In August, 1985, Jennings found out that the CPD was investigating him. In October, Jasper County prosecutor Fisher told Jennings that he was being investigated by the Grand Jury of Jasper County. Eventually, however, the Grand Jury returned a "no bill." About Jennings's further trials and tribulations, nothing more is known.

Unlike Kaminsky and Jennings, P. Joseph Lisa is not a chiropractor. He is a medical researcher and author. Nonetheless, like Kaminsky and Jennings, Lisa was "persecuted" by Indiana law enforcement personnel. Kaminsky and Jennings had hired Lisa to investigate a possible medical monopoly in Indiana. Lisa went to the IAGO and the TCPO to obtain information about Kaminsky's case. Amazingly, in both offices he was mistaken for an investigating member of a congressman's staff and was given access to attorney work product regarding the Kaminsky investigation. Minglin of the IAGO and Beyer of the TCPO eventually became suspicious about Lisa's credentials, however, and they got in touch with ISP member White. White was asked to investigate, and did investigate, Lisa. That investigation led to Lisa's arrest for misrepresentation and theft, his prosecution by Marion County deputy prosecutors Lundy, Devine, and Newman, and his eventual plea of guilty to charges of impersonating a public servant. 6

The Appellees assert that this story does not state a claim under any section of RICO. Their assertion is comprised of several arguments. First, the Appellees argue that allegations of a "pattern of racketeering activity" are required for all sections of RICO, and that the Appellants have failed completely to allege a pattern of racketeering activity. The Appellants argue to the contrary; they point out that besides its factual allegation section, the complaint contains a 16 page section entitled "Racketeering Activity" that is devoted to showing the numerous racketeering acts of the Appellees. But a review of this section shows it to be 16 pages of waste. Most all of the purported racketeering acts listed are outside the scope of 18 U.S.C. Sec. 1961, which defines the crimes (called "predicate acts") constituting racketeering acts. For example, the Appellants allege that the Appellees have committed numerous violations of state and federal antitrust law, yet violation of antitrust law is not a predicate act under RICO. The Appellants allege that the Appellees have committed numerous violations of civil...

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