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USCA1 Opinion
December 16, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1381
PAUL N. PAPAS, II,
Plaintiff, Appellant,
v.
LINDA RANDO BAINES, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Paul N. Papas, II on brief pro se.
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Harvey Weiner, Mark E. Young and Peabody & Arnold on brief for
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appellees, Saugus Federal Credit Union and Kristin O'Brien Bambury.
Lisa A. Wallace and The First National Bank of Boston-Law Office
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on brief for appellee John W. Shorrock.
Philip Burling, Anthony Mirenda and Foley, Hoag & Eliot on brief
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for appellee Arthur Cook.
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Per Curiam. Pro se plaintiff Paul Papas appeals
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from a district court judgment dismissing his thirty-one (31)
page complaint because Papas failed to file a "concise, clear
statement of his claims against each defendant" in accordance
with a previous court order. We affirm.
I. BACKGROUND
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Papas is presently incarcerated at the Southeast
Correctional Center in Bridgewater, Massachusetts. He filed
the instant complaint in October 1991. The complaint
identified eight defendants: Linda Rando Baines (Baines),
Schooner Broadcasting, Inc. (Schooner), Marshfield
Broadcasting, Inc. (Marshfield), Terre Marique Realty Trust
(TMRT), Saugus Federal Credit Union (SFCU), SFCU's Member
Service Manager - Kristin O'Brien Bambury (Bambury), John
Shorrock (a Bank of Boston Customer Service Representative),
and Saugus police officer Arthur Cook.1 A multitude of
federal and state claims for relief are asserted, including
conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act (RICO), the Privacy Act, various state and
federal civil rights statutes, (e.g., 42 U.S.C. 1983 and
M.G.L. c. 12, 11H and 11I) and other laws. Stripped of
legalese, the complaint alleges the following facts.
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1. The complaint also purported to sue "all presently
unknown defendants."
In 1991, Papas was engaged in mortgage brokering
through a business named Capital Return Company. (Complaint
7). In some undisclosed fashion, Papas allegedly became a
creditor of Schooner, a Massachusetts corporation which owns
and operates an FM radio station (WFAL, Falmouth) under an
FCC license. (Id., s 10, 27). Linda Rando Baines is
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Schooner's President and General Manager and a trustee of
Terre Marique Realty Trust (TMRT), an entity which allegedly
holds title to property that is the site of Schooner's radio
tower. (Id., 12). Papas alleged that Baines, Marshfield
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and TRMT schemed to devalue Schooner and hide its assets so
as to deny Papas and other creditors their money. (Id. 9-
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12). Toward that end, and to conceal allegedly false public
filings and prevent Papas from petitioning Schooner into
involuntary bankruptcy, Baines allegedly conspired with the
SFCU, Bambury, Shorrock, and Cook to cause Papas's false
arrest and imprisonment. (Id. 9, 15).
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Papas alleged the following additional facts
regarding his false arrest claim. On May 2, 1991, Papas
opened a joint account at SFCU with his minor daughter.2 On
May 18th, he deposited a sight draft which was accepted by
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2. While the complaint names Papas's daughter as a
plaintiff, this court's May 22, 1992 order left Papas the
sole appellant. See Cheung v. Orchestra Foundation of
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Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)(non-attorney
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parent must be represented by counsel to sue on behalf of his
child).
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the bank teller. Papas then withdrew $50.00. Bambury then
allegedly arrived at the bank and immediately withdrew the
funds from Papas's account without notice to him, allegedly
violating SFCU's fiduciary duties to Papas. After
communicating with Shorrock and Baines, Bambury resolved to
treat the sight draft as a fraudulent check. She did not
notify Papas of her resolution. Bambury contacted police
officer Cook. Papas attempted to make another withdrawal on
May 21st, but was told the funds had not cleared and that he
should return later. On May 23, 1991, Bambury told Papas
that the funds were available. Papas returned to SFCU and
attempted to make a withdrawal. He was arrested by officer
Cook and charged with uttering and attempted larceny by
fraudulent check. The complaint ( 26) alleged that these
charges were later dismissed with prejudice. Papas claimed
over $9 million in damages for the defendants' respective
roles in his demise.3
On December 10, 1991, SFCU and Bambury moved to
strike the complaint under Fed. R. Civ. 12(e) and (f),
contending that it was so vague, ambiguous and scandalous
that they could not frame a responsive pleading and that the
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3. After the district court allowed Papas's motion to
proceed in forma pauperis, the eight named defendants were
served by certified mail. Four of the eight - Baines,
Schooner, TMRT, and Marshfield - have not acknowledged
service of the complaint. We note that Baines personally
signed the certified mail return receipt which accompanied
the summons and complaint.
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complaint generally did not appear to state claims upon which
relief could be granted. SFCU and Bambury acknowledged that
Papas opened an account at SFCU and subsequently attempted to
deposit a $3000 "sight draft" which Bambury determined to be
fraudulent. As a result, officer Cook arrested Papas.
Contrary to the allegation in the complaint, SFCU and Bambury
contended that Papas was convicted of forgery, uttering a
forged instrument, and attempted larceny and sentenced to two
and one-half years in prison. They submitted certified
copies of records of Papas's criminal proceedings in the
Massachusetts state courts in support of their contention.4
On December 11, 1991, Cook filed an answer to the
complaint which denied most of the factual allegations and
alleged, inter alia, that the complaint failed to state a
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claim upon which relief could be granted. On December 18,
1991, Shorrock filed a motion for summary judgment with
supporting affidavits which also showed that Papas was
convicted of the aforementioned offenses. Shorrock contended
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4. Papas was first convicted in the Lynn district court. He
appealed to the jury of six session in Peabody, but
ultimately pled guilty. Papas submitted an opposition to
SFCU's motion to strike wherein he claimed that he entered an
Alford plea that is inadmissible in this civil action and
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that he is presently incarcerated on another matter. Under
the applicable Massachusetts law, Papas's guilty plea could
be treated as an admission in the instant civil action,
although it would not have collateral estoppel effect. See
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United States v. One Parcel of Real Property, 900 F.2d 470,
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473 (1st Cir. 1990), (citing Aetna Cas. & Sur. Co. v.
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Niziolek, 395 Mass. 737, 481 N.E. 2d 1356, 1363 (footnote
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omitted)).
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that the complaint was frivolous because Papas's arrest,
conviction and incarceration arose from the very incident on
which the complaint was based.5
On January 3, 1992, the district court endorsed
SFCU's and Bambury's motion to strike as follows
ALLOWED. The present complaint is
unintelligible. The plaintiff is to
file a concise, clear statement of
his claims against each defendant
within twenty days or this matter
will be dismissed.
The court also issued a separate scheduling order which set
deadlines for discovery and dispositive motions.
On January 15, 1992, Papas filed a motion for
clarification of the court's order to file a clear statement
of his claims. Papas queried whether the court's order
pertained only to his claims against SFCU and Bambury or to
all defendants, while pointing out that defendant Cook had
filed an answer. Papas also sought additional time to
respond to the court's order.6 The district court endorsed
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5. On December 18, 1991, Papas filed a "Response to
Defendants Shorrock, Bambury and Saugus Federal Credit Union"
which appended an incident report Bambury prepared describing
the events that led to Papas's arrest. Papas argued that the
complaint was not so vague as to prevent Bambury and SFCU
from admitting the factual allegations set forth therein. In
a separate opposition to Shorrock's motion for summary
judgment, Papas argued that his complaint is not solely based
on his transactions at SFCU. The district court did not rule
on Shorrock's motion for summary judgment.
6. Cook filed an opposition to Papas's motion which
construed the court's January 3, 1992 order as applying to
Papas's claims against all defendants and asked that the
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this motion, "DENIED. The court's order is clear and will be
strictly enforced." The court extended Papas's filing
deadline from January 23 to February 7, 1992.
Papas filed an eight-page "Clearer Statement" of
his claims on or about February 5, 1992. While purporting to
relate only to Papas's claims against Bambury and SFCU, this
document alleged (p. 2, 3) that "[t]his complaint is a
result of a single scheme devised and executed by Defendant
Linda Rando Baines to rest control and shares from a partner
of Defendant Schooner Broadcasting, Inc., and convert the
assets of that corporation for personal gain, make the shares
worthless, then sell the assets (hiding the main asset), for
a devalued price and circumvent the lien . . . Papas has on .
. . Schooner's FM radio license." The "Clearer Statement"
further alleged that Baines purchased property for Schooner's
radio tower through a straw, then placed that property in a
realty trust (presumably, TRMT, although it is not so pled),
with the specific intent of excluding the property from
Schooner's assets. Papas claimed that Baines, Schooner and
Marshfield joined in an effort to deny him payment for
services he rendered in securing financing for TRMT. Papas
reiterated his claim that Baines and Schooner filed false
public documents, specifying as his grounds that any public
filings that did not show Papas as a lienholder were false.
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complaint be dismissed.
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Papas also claimed that SFCU and Bambury violate RICO every
time they file reports without showing him as a
shareholder.7 In short, the "Clearer Statement" essentially
realleged that Baines, Schooner and Marshfield enlisted SFCU,
Bambury, Shorrock and Cook to deny Papas monies he claims to
have rightfully deposited in SFCU.
On March 11, 1992, the district court issued a
memorandum and order dismissing the suit for Papas's failure
to file a more definite statement in accordance with the
court's previous order.8 The court noted that the complaint
was predicated on Papas's arrest, while the "Clearer
Statement" was based on an alleged struggle for control of a
corporation (i.e., Schooner). The court held that the
"Clearer Statement" was not "clear, concise and direct" and
did not plead fraud with particularity as required by Fed. R.
Civ. P. 9(b). The court accorded Papas's filings a liberal
construction under Haines v. Kerner, 404 U.S. 519 (1972)
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(reversing dismissal of pro se prisoner's complaint under
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7. Papas attached a copy of the Saugus Police Department's
May 23, 1991 booking sheet to his "Clearer Statement" to
support his claim that the charges against him were
dismissed. However, no such disposition is recorded on this
document.
8. As the "Memorandum and Order" was followed by a separate
"Order of Dismissal," the district court properly entered
judgment on a "separate document" as required by Fed. R.
Civ. P. 58. See Fiore v. Washington County Community Mental
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Health Center, 960 F.2d 229, 236 (1st Cir. 1992)(en
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banc)(noting order on separate document satisfies Rule 58).
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Fed. R. Civ. P. 12(b)(6)), and held that neither the
complaint nor the "clearer statement" passed muster because
they were "prolix, confusing, and contain[ed] material which
is vague, scandalous and even unnecessary." The court noted
that "no connection among the defendants is drawn; no roles
in the conspiracy are assigned. . . . If there were some
basis to the plaintiff's allegations that certain defendants
were engaged in a struggle for control of a corporation,
there is no basis to conclude that those same defendants
engaged in that struggle to deprive the plaintiff of his
fee." As the order of dismissal did not specify otherwise,
we presume it to be with prejudice. Velazquez-Rivera v. Sea-
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Land Service, Inc., 920 F.2d 1073, 1075 n. 5 (1st Cir.
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1990).9
II. ANALYSIS
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The sole issue on appeal is whether the district
court abused its discretion in dismissing this action because
Papas failed to comply with the court's order to file a more
definite statement of his claims. "The choice of sanctions
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9. Papas filed a motion to strike the district court's
memorandum and order under Fed. R. Civ. P. 12(e) on the
ground that it contained "immaterial, impertinent, defamatory
and scandalous matter." The district court did not act on
this motion. We conclude that this motion, which Papas served
before he filed his notice of appeal, poses no jurisdictional
bar. Rule 12(e) applies to pleadings, not court orders. The
motion was frivolous on its face, and it did not warrant
treatment under Fed. R. Civ. P. 59(e). We do not regard this
motion as undermining Papas's notice of appeal.
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for failing to comply with a court order lies with the
district court, and we may not lightly disturb a decision to
dismiss." Velazquez-Rivera, 920 F.2d at 1075. "A complaint
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that fails to comply with Rule 8 may be dismissed with
prejudice pursuant to Fed. R. Civ. P. 41(b) after allowing
time to file an amended complaint." Mangan v. Weinberger,
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848 F.2d 909, 911 (8th Cir. 1988), cert. denied, 488 U.S.
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1013 (1989). However, we have repeatedly cautioned that
dismissal with prejudice is a severe sanction that "should be
employed only when the district court, in the careful
exercise of its discretion, determines that none of the
lesser sanctions available to it would truly be appropriate."
Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st
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Cir. 1977). A second opportunity to amend may be warranted
where a pro se plaintiff has made a good faith effort to
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comply with an order for a more definite statement, but has
fallen short. See, e.g., Pardee v. Moses, 605 F.2d 865, 866-
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67 (5th Cir. 1979). In this case, we hold that the
district court did not abuse its discretion in dismissing the
present action, notwithstanding the fact that Papas is pro se
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and was given only one opportunity to amend his complaint.
The complaint was long and confusing. The order requiring a
clearer statement of Papas's claims was wholly justified.
That order squarely warned Papas that his complaint was
"unintelligible" and that a clearer statement of his claims
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against "each defendant" was required or his complaint would
be dismissed. In addition, both Cook's answer and SFCU's
motion to strike asserted that the complaint failed to state
a claim upon which relief could be granted, while Shorrock's
motion for summary judgment argued that the complaint was
frivolous. Faced with these warnings, Papas's "Clearer
Statement" essentially reiterated his initial allegations and
failed to identify a viable basis for relief.10 Rather,
Papas simply appears to be trying to relitigate the criminal
charges that resulted in his arrest and conviction by
accusing the defendants of committing fraud and perjury
during the course of the events that led to his arrest.
To be sure, the fact that Papas attempted to comply
with the court's order, as evidenced by his timely filing of
the "Clearer Statement," militates against dismissal. In
addition, this case was not long pending (5 months). There
was no pattern of delay. However, in this case not only did
the "Clearer Statement" fail to rectify the original fault
but the record suggests that Papas is attempting to use the
judicial process to harass those parties who participated in
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10. We reject Papas's claim that the order of dismissal
applies only to those defendants who moved to strike his
complaint in the first place (SFCU and Bambury). The
district court had inherent power to dismiss Papas's claims
against the non-moving defendants. Link v. Wabash Railroad
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Co., 370 U.S. 626, 629-30 (1961).
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the events which led to his arrest and conviction.11 Under
these circumstances, we think that dismissal without further
leave to amend was justified. See Ruth v. First National
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Bank of New Jersey, 410 F. Supp. 1233, 1234 (D.N.J. 1976)
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(dismissing complaint for bank funds as frivolous where
complaint was based on same transaction for which plaintiff
had been convicted of fraud).
Papas argues that the district court erred in
dismissing his case before all the named defendants had been
served, particularly where the district court denied his
request for clarification of the order for a more definite
statement. That some of the defendants had not been served
effectively did not deprive the district court of power to
dismiss the complaint as to these defendants. Cf. Diaz v.
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Stathis, 440 F. Supp. 634, 637 (D. Mass. 1977), aff'd, 576
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F.2d 9 (1st Cir. 1978) ("[W]here presented with a motion to
dismiss filed by some defendants to an action, the court,
where appropriate, may consider the sufficiency of the
complaint as against all defendants.") And, where Papas's
"Clearer Statement" contained allegations regarding Baines,
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11. While the district court did not expressly refer to this
as a reason for dismissal, "[u]nless the district court
explicitly limits its rationale for dismissing the case, it
is proper in reviewing for 'extreme' misconduct to consider
all of the aggravating circumstances together." Enlace
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Mercantil Internacional v. Senior Industries, 848 F.2d 315,
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317 (1st Cir. 1988).
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Schooner and Marshfield, he does not appear to have been
prejudiced by the denial of his request for clarification.
Papas further argues that his complaint and
supplemental filings pled fraud with sufficient
particularity, in that he essentially claims that the all the
statements of Bambury, Shorrock, Cook and Baines were false
and, to the extent that these defendants communicated by FAX
or telephone, in violation of RICO. Apart from the fact that
Papas's claims appear to be no more than a transparent
attempt to impose RICO liability on the defendants who
participated in the events that led to Papas's arrest and
prosecution, such broad assertions do not plead a "pattern of
racketeering" for RICO purposes. See Fleet Credit Corp. v.
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Sion, 893 F.2d 441, 444 (1st Cir. 1990). Finally, Papas
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argues that the court's order is wholly ineffective because
it lacks the appropriate 54(b) certification and the court
could not have dismissed his claims against all parties. As
the order of dismissal embraced all claims and parties, no
54(b) certification was required.
Judgment affirmed.
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Document Info
Docket Number： 92-1381
Filed Date： 12/16/1992
Precedential Status： Precedential
Modified Date： 9/21/2015