On August 15, 2008, Peter Letterese must "file a
statement detailing the criteria set forth" in Rule 12.1. For convenience purpose, Rule 12.1 is excerpted here.
Except as otherwise ordered by a judge of this Court in a particular case or
except pursuant to written stipulation of all affected parties, in all civil
actions where a pleading contains a RICO cause of action pursuant to 18 U.S.C.
§§ 1961-1968 or §§ 772.101-772.104, Fla.Stat., the party filing the RICO claim
shall, within thirty (30) days of the filing (including filing upon removal or
transfer), serve a RICO Case Statement.
Consistent with counsel’s obligations
under Fed.R.Civ.P. 11 to make a reasonable inquiry prior to filing a pleading,
the RICO Case Statement shall include the facts relied upon to initiate the RICO
claim. In particular, the statement shall be in a form which uses the numbers
and letters set forth below, unless filed as part of an amended pleading (in
which case the allegations of the amended pleading shall reasonably follow the
organization set out below), and shall provide in detail and with specificity
the following information:
- State whether the alleged unlawful conduct is in
violation of 18 U.S.C. §§ 1962(a),(b), (c), and/or (d) or §§ 772.101(1), (2),
(3) and/or (4), Fla.Stat. If you allege violations of more than one subsection
of § 1962 or § 772.103, each must be treated or should be pled as a separate
RICO claim.
- List each defendant, and separately state the misconduct and
basis of liability of each defendant.
- List the wrongdoers, other than the
defendants listed above, and separately state the misconduct of each wrongdoer.
- List the victims, and separately state when and how each victim was injured.
- Describe in detail the pattern of racketeering/criminal activity or
collection of an unlawful debt for each RICO claim. A description of the pattern
of racketeering/criminal activity shall:
- separately list the predicate
acts/incidents of criminal activity and the specific statutes violated by each
predicate act/incident of criminal activity; 27
- separately state the dates of
the predicate acts/incidents of criminal activity, the participants and a
description of the facts surrounding each predicate act/incident of criminal
activity;
- if the RICO claim is based on the predicate offenses of wire fraud,
mail fraud, fraud in the sale of securities, fraud in connection with a case
under U.S.C. Title 11, or fraud as defined under Chapter 817, Fla.Stat., the
“circumstances constituting fraud or mistake shall be stated with
particularity”, Fed.R.Civ.P. 9(b) (identify the time, place, and contents of the
misrepresentation or omissions, and the identity of persons to whom and by whom
the misrepresentations or omissions were made);
- state whether there has been
a criminal conviction for any of the predicate acts/incidents of criminal
activity;
- describe in detail the perceived relationship that the predicate
acts/incidents of criminal activity bear to each other or to some external
organizing principle that renders them “ordered” or “arranged” or “part of a
common plan”; and f. explain how the predicate acts/incidents of criminal
activity amount to or pose a threat of continued criminal activity.
- Describe
in detail the enterprise for each RICO claim. A description of the enterprise
shall:
- state the names of the individuals, partnerships, corporations,
associations, or other entities constituting the enterprise;
- describe the
structure, purpose, roles, function, and course of conduct of the enterprise;
- state whether any defendants are employees, officers, or directors of the
enterprise;
- state whether any defendants are associated with the enterprise,
and if so, how;
- explain how each separate defendant participated in the
direction or conduct of the affairs of the enterprise;
- state whether you
allege (i) that the defendants are individuals or entities separate from the
enterprise, or (ii) that the defendants are the enterprise itself, or (iii) that
the defendants are members of the enterprise; and
- if you allege any
defendants to be the enterprise itself, or members of the enterprise, explain
whether such defendants are perpetrators, passive instruments, or victims of the
racketeering activity.
- State whether you allege, and describe in detail, how the pattern of
racketeering/criminal activity and the enterprise are separate or have they
merged into one entity.
- Describe the relationship between the
activities and the pattern of racketeering/criminal activity. Discuss how the
racketeering/criminal activity differs from the usual and daily activities of
the enterprise, if at all.
- Describe what benefits, if any, the enterprise and
each defendant received from the pattern of racketeering/criminal activity.
- Describe the effect of the enterprise’s activities on interstate or foreign
commerce.
- If the complaint alleges a violation of 18 U.S.C. § 1962(a) or §
772.103(1), Fla.Stat., provide the following information: a. describe the amount
of income/proceeds derived, directly or indirectly, from a pattern of
racketeering/criminal activity, or through the collection of an unlawful debt;
b. state who received the income/proceeds derived from the pattern of
racketeering/criminal activity or through the collection of an unlawful debt and
the date of that receipt; c. describe how and when such income/proceeds were
invested or used in the acquisition of the establishment or operation of the
enterprise; d. describe how you were directly injured by the investment or use;
and e. state whether the same entity is both the liable “person” and the
“enterprise” under the § 1962(a)/§ 772.103(1) claim.
- If the complaint
alleges a violation of 18 U.S.C. § 1962(b) or § 772.103(2), Fla.Stat., provide
the following information: a. describe in detail the acquisition or maintenance
of any interest in or control of the enterprise; b. describe when the
acquisition or maintenance of an interest in or control of the enterprise
occurred; c. describe howyou were directly injured by this acquisition or
maintenance of an interest in or control of the enterprise; and d. state whether
the same entity is both the liable “person” and the “enterprise” under the §
1962(b)/§ 772.103(2) claim.
- If the complaint alleges a violation of 18 U.S.C.
§ 1962(c) or § 772.103(3), Fla.Stat., provide the following information: 29 a.
state who is employed by or associated with the enterprise; b. describe what
each such person did to conduct or participate in the enterprise’s affairs; c.
describe how you were directly injured by such person’s conducting or
participating in the enterprise’s affairs; and d. state whether the same entity
is both the liable “person” and the “enterprise” under the § 1962(c)/§
772.103(3) claim.
- If the complaint alleges a violation of 18 U.S.C. §
1962(d) or § 772.103(4), describe in detail the conspiracy, including the
identity of the co-conspirators, the object of the conspiracy, and the date and
substance of the conspiratorial agreement.
- Describe the injury to business
or property.
- Describe the nature and extent of the relationship between the
injury and each separate RICO violation.
- For each claim under a subsection
of § 1962 or § 772.103, list the damages sustained by reason of each violation,
indicating the amount for which each defendants is liable.
- Provide any
additional information you feel would be helpful to the Court in processing your
RICO claim. Effective April 15, 1998.
Comments
(1998) Rule 12.1, modeled on
section 41.54 of the Manual for Complex Litigation, Third (1995), is designed to
establish uniform and efficient procedure for handling civil RICO claims
asserted under federal and Florida law. [...]
[Source:
http://www.flsd.uscourts.gov/localrules/localrules.pdf]