Waldner v. North America Truck & Trailer, Inc.
| Decision Date | 23 September 2011 |
| Docket Number | CIV. 10-4056 |
| Court | U.S. District Court — District of South Dakota |
| Parties | ROGER D. WALDNER, Plaintiff, v. NORTH AMERICAN TRUCK & TRAILER, INC.; SIOUX FALLS KENWORTH, INC.; MID-STATES ACCEPTANCE CORP; CAROLINA COMMERCIAL TRUCK SALES, LLC; SIOUX FALLS TRAILER SALES, INC.; WILLIAM A. RUSH; KAREN A. RUSH; FREDERICK C. LOVR1EN, M.D.; ALLISON BOADE, M.D.; KATHY WATKINS; KATHY WILLIAMS; KAREN SNOW; MARCY TI10 RMODSG AAR1); KERRY SCHMIDT; RICHARD v. LONG; PARLIMAN & PARLIMAN; CADWELL, SANFORD, DEIBERT & GARRY; BRETT A. LOVRIEN; WILLEY, O'BRIEN & HANRAHAN. LC; RENEE K. HANRAHAN; BREIT LAW OFFICES PC; GLENN J. BOOMSMA; BRENDTRO LAW OFFICE; ZIMMER, DUNCAN & COLE, LLP; DANIEL K. BRENDTRO; RICE & EWINGER; CURT R. KWINGER; SUTTON LAW OFFICES; TERRY SUTTON; BARON, SAR, GOODWIN, GILL & LOHR; A. FRANK BARON; PACCAR, INC.; VOLVO TRUCK CORPORATION; UTILITY TRAILER MFG.; FISHBACK FINANCIAL CORPORATION; FIRST BANK & TRUST, formerly First National Bank; WALLWORK FINANCIAL CORPORATION; WELLS FARGO BANK NORTH DAKOTA, NA; US BANCORP LEASING AND FINANCIAL; EIDE BAILLY, LLP; McGLADREY & PULLEN, LLP; EAST VANDER WOUDE & GRANT CO. PC; THURMANB, COMES, FOLEY & CO., LLP; UTILITY TRAILER SALES OF CENTRAL CALIFORNIA, INC.; WARNER TRUCK CENTER OF UTAH; JOHN HAUKNECHT; DENTON HABER; ACTION CARRIER, INC.; MICHAEL L. WALSH; WENDY L. WALSH; GALLEY W. SMITH; BRADLEY HARTKE; DOUGLAS HARTKE; COMMUNITY BANK AT WINSLOW, formerly Winslow-Warren State Bank; ROBERT LYVERS; TERRI ROSE; VAL GUENZLER; CHEYANNE DOYLE; SCOTT D. WIELE; JACK MAKLER; MARK FARIS; DONALD WEBB; PETER HUESER; MARK THOMAS GEIS; JAMES SKRZYPEK; RICHARD D'MARTINI; TIMOTHY MUELLER; JANE DOES 1-14; JOHN DOES 1-14; ROBERT THOMAS MOORE; and A. THOMAS POKELA, Defendants. |
Multiple defendant move to dismiss plaintiff's claims against them pursuant to various sections Federal Rules of Civil Procedure 12 and 56. Plaintiff, Roger D. Waldner, resists.
FACTUAL BACKGROUND
The general, pertinent facts to this order, in the light most favorable to Waldner, the non-moving party, are as follows:
In 2002, Waldner initiated bankruptcy proceedings for H&W Motor Express Company, his solely-owned corporation. See In re II & W Motor Express Co., No. 02-2017 (Bankr. N.D. Iowa June 12, 2002). After the close of those proceedings, numerous creditors filed state court lawsuits in Iowa and South Dakota against Waldner alleging that he violated various contracts. In 2007, Waldner pled guilty to making false statements during H&W's 2002 federal bankruptcy action and was sentenced to ten years in prison. See United States v. Waldner, 564 F. Supp. 2d 911 (N.D. Iowa 2008). Waldner is currently incarcerated in federal prison.
This case is part of an on-going dispute between Waldner and William Rush and their respective business entities. Sioux Falls Kenworth Inc. is the wholly-owned subsidiary of North American Truck & Trailer. Rush is the majority shareholder and chief executive officer of North American Truck & Trailer.
In this action, Waldner filed a pro se complaint alleging that beginning in 2001, William Rush engaged in a broad conspiracy with a multitude of lawyers, accountants, financial institutions, corporations, and federal prisoners to defraud him. Based on this alleged fraud, Waldner asserts civil violations of the Racketeer Influenced and Corrupt Organizations Act(RICO) against over 60 different defendants. For clarity, the Court will discuss the individual facts pertaining to each defendant in connection with that defendant's motion.
Most defendants move to dismiss Waldner's claims against them pursuant to Rule 12(b)(6) or move for judgment on the pleadings under Rule 12(c). A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the complaint. Carton v. Gen. Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010). To survive a motion to dismiss, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this plausibility standard, the complaint must contain "more than labels and conclusions." Id. at 555. Instead, the complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
A complaint must only present a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint must be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2006). The court must accept the facts alleged as true, even if doubtful. Twombly, 550 U.S. at 555. Thus, a well-pleaded complaint may proceed even if it appears that recovery is very remote or unlikely. Id.; Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed. The standard for a Rule 12(c) motion is effectively the same as that for a Rule 12(b)(6) motion. Westcoot v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) ().
Defendants Daniel Brendtro and Brendtro Law Office (Brendtro) and Zimmer, Duncan, Cole LLP (ZDC) move for judicial notice of various documents related to the state court actions involving Waldner. Dockets 30 and 58. Other defendants request judicial notice of the state court documents from the actions involving Waldner. Dockets 33, 53, 77, 181, and 186.
If a party requests judicial notice of adjudicative facts, the court, if supplied with the necessary information, must take judicial notice of facts that can be accurately determined by looking to an independent source. See Fed. R. Evid. 201(c) (); id. at 201(a)(2) (); see also Adkins v. VIM Recycling, Inc., 644 F.3d 483,494 n.4 (7th Cir. 2011) ().
When ruling on a motion to dismiss under Rule 12(b)(6), courts can consider matters of public record in addition to the complaint's factual allegations. Illig v. Union Elec. Co., _____F.3d ____, No. 10-3488,2011 WL 3820865, at *4 (8th Cir. Aug. 31, 2011) ; see also State ex rel. Nixon v. Couer D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999) . The consideration of judicially noticed facts, such as public court records, does not convert a motion to dismiss into one for summary judgment. State ex rel Nixon, 16 F.3d at 1107.
Waldner agrees that judicial notice of the state court documents is proper. See Docket 262 at 20 (). The Court will take judicial notice of the state court documents that are part of the public record, as set forth in Dockets 30, 33, 53, 58, 77,181, and 186. Brendtro and ZDC's motion for judicial notice (Dockets 30 and 58) are granted.
Waldner asserts violations of 18 U.S.C. § 1964(c) against defendants, which creates a private civil cause of action for RICO violations. While the civil RICO statute does not contain a statute of limitations, the Supreme Court has reasoned that civil RICO actions are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 156 (1987) ().
There has been significant litigation over the rules used to determine when a civil RICO claim accrues for purposes of the statute of limitations. Over the years, the Circuit Courts of Appeal have announced four accrual rules: (1) the injury and pattern discovery rule; (2) the last predicate act rule; (3) the injury discovery rule; and (4) injury occurrence rule. Paul Batista, Statute of Limitations Defenses: General Four-Year Rule, Civ. RICO Prac. Manual § 4.13(2011). In Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997), the Supreme Court "cut the possibilities by one, in rejecting the last predicate act rule." Rotella v. Wood, 528 U.S. 549, 554 (2000) (citing Klehr, 521 U.S. 179). The Court also eliminated the injury and pattern discovery rule, id, which the Eighth Circuit had adopted earlier. See Granite Falls Bank v. Hendrickson, 924 F.2d 150, 154 (8th Cir. 1991) (). In Rotella, the Supreme Court reasoned that it did "not, however, settle upon a final rule," 528 U.S. at 554 n.2, which leaves the injury discovery rule or the injury occurrence rule as possible rules.
It appears that the Eighth Circuit has not addressed whether the injury discovery rule or the injury occurrence rule is the appropriate rule for determining when the statute of limitations accrues for a civil RICO action. But in Wal-Mart Stores v. Watson, 94 F. Supp. 2d 1027 (W.D. Ark. 2000), the District Court for the Western District of Arkansas addressed...
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