RICO suit — Motion for a More Definite Statement (10/21/98)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LIBERTY LOBBY, INC., and WILLIS A. CARTO Plaintiffs v. MARK WEBER, et al. Defendants		Civil Action No. 1:98CV0236 (HHK)

Memorandum of points and authorities in support of defendant Greg Raven’s motion for more definite statement, FRCP 12(e)

The Facts

Plaintiffs have filed a massive complaint with the court, making broad allegations of a conspiracy of defendants related to RICO violations, Sherman Anti-Trust Act violations, and defamatory statements. Plaintiff’s complaint arises out a complex series of allegedly related events and dozens of statements on information and belief, without even a single piece of supporting evidence, which date back to 1952 or before. Federal jurisdiction and venue is claimed under Title 18 USC Section 1961 et seq and under diversity statutes.

The suit seems to have serious problems with jurisdiction, venue, res judicata, and collateral estoppel of legal and factual claims made, but it is impossible to respond to or even sort out Plaintiffs’ new causes of action. Plaintiff generally allege that all defendants engaged in various conduct which resulted in harm to Plaintiff. The acts of a single defendant become the acts of all defendants with no explanation as to how this could be. These allegations against all defendants make no sense at all because one of the defendants in this case, Legion for the Survival of Freedom, a non-profit corporation, is not capable of performing the alleged acts.

Plaintiffs’ vague and ambiguous statements are so egregious that the defendant Legion is claimed to be under the control of plaintiff Willis Carto to this day! (see paragraphs 224, 345, 360, 437, 487, 489, 529, 531, 720, 722 of Complaint). If plaintiff Carto still controls the Legion (which he continues to claim in recent court filings in bankruptcy court in California), then how can the Legion defend itself against this Complaint (and perhaps more to the point, why is it a named defendant in the first place?).

Neither are the roles of Harvey Taylor or Jack Riner clear, as there are no specific claims against either. Jack Riner is listed as a Carto-appointed director of the LSF and has been a director for at least ten years (paragraph 16 of Complaint). Plaintiffs are asking the Court to believe that somehow Taylor (in northern California) and Riner (in Indiana) participated in the alleged acts, most of which are alleged to have been perpetrated from the Legion office in southern California. If plaintiffs have specific claims showing wrongdoing between Taylor and Riner, and defendant Raven, these should be made clear so defendant Raven can respond substantively.

Here are some examples of areas in which lack of specificity and other defects cry out for more definite statement.

Plaintiffs allege that all defendants have engaged in bribery:

416. The defendants have violated Title 18, U.S.C. Section 1961 by engaging in racketeering activity, including bribery.

417. The defendants have attempted to bribe persons associated with the plaintiffs on at least two occasions during the past five years.

They go on, however, to make allegations of bribery attempts by Defendants Marcellus and Berg only. If Plaintiffs believe others such as defendant Raven were involved, the nature and extent of that involvement must be made clear to make possible a substantive response.

Plaintiffs allege that all defendants have engaged in extortion:

431. The defendants have violated Title 18, U.S.C. Section 1961 by engaging in racketeering activity including extortion.

432. After defendant Raven, armed with a loaded weapon, accompanied by defendants Hulsy, Marcellus, Weber and O’Keefe, assaulted Carto and his wife Elisabeth Carto, at the offices of the LSF on October 15, 1993, officers from the Costa Mesa Police Department arrived. Carto attempted to resolve the matter by advising the police officers that he and his associates, although injured, would agree to refrain from filing criminal complaints. Hulsy stated, on behalf of himself and those who had accompanied him in the assault, defendants Raven, Marcellus, Weber and O’Keefe, that he would agree not to press criminal charges against Carto and his wife, Only if Carto turns over all the assets and complete control of the Legion.

This issue of Carto’s attempted armed take-over of the Legion offices (to which paragraph 432 deceitfully refers) is res judicata, with Carto taking nothing from the Legion. If Plaintiffs have evidence or law that would allow them to reopen this case at this late date, that should be presented.

The Complaint in this section goes on to allege other acts of extortion. Many of these allegations lack specificity, and include reference to other entities that are neither named as defendants, nor described in such a way that they may be located.

Plaintiffs also allege robbery:

458. The defendants have violated Title 18, U.S.C. Section 1961 by engaging in racketeering activity, including robbery.

459. After defendant Hulsy, accompanied by defendant Raven, who wielded a loaded pistol, as well as by other defendants, broke into the LSF offices by force, they seized personal property belonging to Carto and to Liberty Lobby.

This again arises from Carto’s attempted violent take-over of LSF offices. His personal property was not seized, rather, the police would not allow him to take his possessions with him after his arrest and subsequent trip to jail. The next day, accompanied by a law enforcement official, Carto visited LSF offices and was allowed to take his possessions. Carto subsequently sued LSF twice, claiming yet more possessions (including a rubber boat!), and these suits are now settled, making this issue res judicata.

The Complaint in this section goes on to allege other acts of robbery. Many of these allegations lack specificity, and cannot be responded to substantively by defendant Raven without clarification from Plaintiffs.

Plaintiffs further allege violation of the Sherman Anti-Trust Act:

521. The defendants were engaged among themselves and with others through contracts, combinations and conspiracy to cause unreasonable restraint of trade and commerce among the several states, all in violation of Title 15 U.S.C. Section 1.

522. The defendants engaged in concerted action to effect unreasonable restraint on trade….

527. … d) In an effort to interfere with the relationship which existed between the plaintiffs and their bank, The National Capital Bank, during 1994, defendant Raven, on behalf of the defendants, made false and serious accusations in writing to an officer of that bank accusing the plaintiffs of having committed unlawful acts.

The nature and extent of these false and serious accusations are not specified, making it impossible for defendant Raven to respond substantively. This section of the Complaint goes on to allege other violations of the Sherman Anti-Trust Act. Many of these allegations lack specificity, and include reference to other entities that are not named as defendants, who cannot be identified as described in the Complaint, or whose connection with the defendants (if any) is not stated.

Plaintiffs also allege defamation (libel and slander), regarding a letter sent to Andrew Gray:

572. During 1997 and prior thereto, defendant Weber, on his own behalf and on behalf of the other defendants, made numerous telephone calls and sent numerous letters to Andrew Gray, the copy editor of The Barnes Review, hereinafter TBR, a publication organized by plaintiff Carto and a publication which Carto served as publisher at its inception and which Carto continues to serve as publisher.

Plaintiffs do not produce the evidence that they believe supports the statement that Weber’s actions were done on behalf of the other defendants, and what role if any the other defendants played in the writing and mailing of this letter. Without this evidence, it is not possible for defendant Raven to respond substantively to this allegation.

Plaintiffs also allege defamation (libel and slander), regarding a letter apparently sent to advertisers of Plaintiff:

588. On or about October 15, 1997, and both prior to and subsequent to that time period, the defendants, upon information and belief, both caused to be published and published letters and other documents to persons and entities which had previously placed advertisements in The Spotlight, a publication of plaintiff Liberty Lobby, for the express purpose of encouraging advertisers to cease and desist from placing advertisements in The Spotlight.

589. The letters were signed A Concerned Patriot and the authors of the letter asserted I am not a supporter or representative of the Legion [the Legion for the Survival of Freedom]. The letter asserted that the signer of the letter was an advertiser.

From the Plaintiffs’ own statement, this communication came from someone not a supporter or representative of the Legion. If Plaintiffs believe they have evidence to the contrary, this must be presented so defendant Raven can respond substantively.

Plaintiffs also allege defamation (libel) in connection with a letter to Mike Piper:

609. Defendant Weber, acting on behalf of all of the defendants, sent unsolicited defamatory documents to Piper.

Plaintiffs also allege defamation (libel) in connection with documents sent to Paul Croke:

626. Defendant Weber, acting on behalf of all of the defendants, sent unsolicited defamatory documents to Paul Croke.

Plaintiffs also allege defamation (slander) in connection with phone calls to Paul Croke:

642. Defendant Weber, acting on behalf of all of the defendants, placed unsolicited telephone calls to Paul Croke.

Plaintiffs do not produce the evidence that they believe supports the statement that Weber’s actions were done on behalf of the other defendants, and what role if any the other defendants played in the making of these phone calls. Without this evidence, it is not possible for defendant Raven to respond substantively to this allegation.

Prior Adjudication or Prior Active Cases

The importance of clarification is heightened because of the numerous previous lawsuits between the parties, as mentioned in passing in some of the points above. It appears that many of the allegations and legal claims made by plaintiffs have been or already have been adjudicated. Without being inclusive or exclusive these cases are:

Legion et al v. Foundation to Defend the First Amendment et al, Orange County (California) Superior Court case number 719141, filed October 18, 1993. Action arising out of Carto’s attempted violent take-over of Legion offices on the pretext that he was acting on behalf of the landlord, the FDFA, which he controls. Complaint for forcible entry and detainer of a residence, trespass, breach of contract (covenant of quiet enjoyment), assault, battery, false imprisonment, for temporary and permanent injunction and declaratory relief. Cross-complaint by Carto claiming Legion possessed his property (after his ejection and subsequent arrest). Settled.

Kerr, Carto v. Legion, Orange County (California) Superior Court case number 720973, filed November 19, 1993. Suit brought by Carto in an attempt to depose the legally-constituted board of directors of Legion. Ruling in favor of defendant. Upheld on appeal (GO16137).

HEF v. Institute for Historical Review [IHR is a dba for the Legion], Orange County (California) Superior Court case number 726195, filed March 3, 1994. Harassment suit by Carto involving a non-existent entity, and a fraudulent note. Ruling in favor of defendant. Appeal dismissed.

HEF v. Institute for Historical Review, a subdivision of the Legion for the Survival of Freedom, a non-profit Texas corporation, Orange County (California) Superior Court case number 726201, filed March 3, 1994. Harassment suit by Carto involving a non-existent entity and a fraudulent note. Dismissed.

Legion for the Survival of Freedom, Inc. v. Willis Carto et al., San Diego (California) Superior Court case number N64584, filed July 22, 1994. Action arising out of the diversion of $7.5 million dollars of the Legion by Carto et al. Multi-million dollar ruling in favor of the Legion. The appeal has been stayed by the bankruptcy filings of the Cartos and Liberty Lobby.

Incorporators of the Legion for the Survival of Freedom Inc. v. Andrew Allen, Friedrich Berg, and John Curry, Harris County (Texas) District Court case number 94-040825, filed August 18, 1994. An attempt by Carto to circumvent the adverse Kerr, Carto ruling in a different forum. Ruling in favor of defendants. The appeal has been stayed by the bankruptcy filing of Willis Carto.

Legion v. Jean Scott, Orange County Superior court case number 736417, filed September 28, 1994. Action arising out of Carto’s continuing efforts to hold himself out as representing the Legion. Dismissed.

Willis Carto, Foundation to Defend the First Amendment v. William S. Hulsy, Orange County (California) Superior Court case number 743630, filed March 2, 1995. Harassment suit by Carto against Legion attorney Hulsy. On-going.

Michael Scott v. Institute for Historical Review, Orange County (California) Superior Court case number 744002, filed March 10, 1995. Harassment suit by one of Carto’s cat’s-paws, based on a fraudulent note given to Scott for no consideration by a corporation controlled by Carto. Dismissed just prior to trial.

Willis Carto et al. v. Larry Rooker et al., Orange County (California) Superior Court case number 745594, filed April 12, 1995. Refiled in the United States District Court of the Southern District of California as case number 95CV1001 (AJB). Carto’s so-called civil rights suit arising out of a police raid on his southern California home. Virtually all of this case has been dismissed, and the defendants have made an offer of settlement to which Carto has failed to respond.

Elisabeth Carto v. Institute for Historical Review, Harbor (California) Municipal Court case number 95C4868, filed September 6, 1995. Harassment suit by Carto claiming that donations made by E. Carto’s mother were really loans that had to be repaid to E. Carto. Cross-complaint for conversion. Dismissed.

Carto v. Raven, Weber, Orange County (California) Superior Court case number 783094, filed August 15, 1997. Action arising out of Carto’s claim that defendants were in possession of his property (this claim was virtually identical to a claim made in Carto’s cross-complaint in the Legion v. FDFA case). Settled.

Liberty Lobby and Willis Carto v. US Postal Service and Thomas Lennon, Inc., US District Court (DC) case number CIV 98-1109, filed May 11, 1998. Ruling from the bench for defendants; written ruling forthcoming.

Liberty Lobby Title 11 Bankruptcy, US Bankruptcy Court for the District of Columbia case number 98-01046, filed May 13, 1998. On-going.

Willis and Elisabeth Carto Title 7 Bankruptcy, US Bankruptcy Court for the Southern District of California case number 98-08050 H7, filed June 19, 1998. On-going.

Because of the long history of litigation between the main parties, there seems to be substantial overlap between claims and allegations in the instant case and on-going, settled, and dismissed cases between these two parties, including:

The facts alleged in paragraphs 6, 31, 344, 345, 678, and others, seem to have been adjudicated adversely to plaintiffs in Kerr, Carto v. Legion;

The facts alleged in paragraphs 88 through 219, 325, and others, seem to have been adjudicated in Legion v. Carto;

The facts alleged in paragraphs 322-346, 342-348, and others, seem to have been or are being adjudicated in Carto v. Rooker;

The facts alleged in paragraphs 4, 6, 19, 30, 32, 33, 45, 48, 344, 345, and others have been adjudicated adversely to Plaintiffs in Incorporators v. Allen, Berg, and Curry;

One might reasonably conclude that the bulk of the operative facts in plaintiffs’ Background section have been adjudicated (or are in the process of adjudication) in prior lawsuits, to the detriment of plaintiffs. Without a final and correct presentation of plaintiffs’ claims, defendant Raven cannot respond substantively without waiving jurisdictional claims or other defenses.

In those few cases noted above not brought by Carto, Carto was compelled to make a mandatory cross-complaint for any alleged wrongdoing by California Code of Civil Procedure 426.30(a), which reads:

Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any related action assert against the plaintiff the related cause of action not pleaded.

(This is similar to FRCP 13(a)). Therefore, to the extent that allegations of wrongdoing by defendants in the instant action were known in time to be presented as cross-complaints by Carto in earlier actions, they should be excluded from the instant action. Lacking specificity as to the plaintiffs’ knowledge of these earlier claims, defendant Raven cannot make this determination.

The Law

Rule 12(e) provides:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.

A Motion brought pursuant to FRCP Rule 12(e) should be granted when the Complaint is so general that ambiguity arises in determining the nature of the claim or the parties against whom it is being made.

In connection with plaintiffs’ complaint, it is not at all clear what connections there are among the various defendants, and why the acts of some defendants are attributable to others. The situation in the instant case is similar to that in Van Dyke Ford, Inc. v. Ford Motor Co., (1975) 399 F.Supp. 277, 284 wherein the Court granted defendant’s motion for a more definite statement pursuant to FRCP 12(e). In Van Dyke, plaintiffs stated generally and without specification, that defendants had acted improperly and wrongfully against plaintiffs. These allegations were especially vague and ambiguous because it was apparent not all plaintiffs and not all defendants were included in each wrongdoing. The Court determined that specific identification of the parties and their connection to the activities alleged by the plaintiffs were required to enable each defendant to plead intelligently, and, on that basis, defendant’s FRCP 12(e) Motion was granted. See also, Weiszmann v. Kirkland and Ellis (1990) 732 F.Supp. 1540.

Conclusion

On the basis of the foregoing, defendant Greg Raven respectfully requests that Plaintiffs be required to file more definite statement pursuant to Federal Rules of Civil Procedure 12(e).

Respectfully submitted,

Greg Raven
Defendant in Pro Se
Dated: October 21, 1998