From judydoc@the-spa.com Wed Feb 24 02:18:39 1999
Date: Tue, 23 Feb 1999 13:20:01 -0500
From: Judy Morris 
To: bhammel@graham.main.nc.us
Subject: What the Judge Said


I think basically what the judge is saying, although it took him 13
pages to say it, is that my lawsuit is too long.  However, I appreciate
his effort reviewing it, which he obviously did, and  in citing similar
dismissed lawsuits so that I know I'm not the first, nor the last
person, to have attempted such a monumental undertaking.  Maybe I did go
overboard, but, in my defense, so did UNUM in their attempts to deny my
claims and those of many others (as noted by other judges).  Of course,
it's hard for me to imagine how someone can get justice in a system
that, on the one hand complains of too many facts, yet on the other says
there's not enough detail.    But then nothing about this whole ordeal,
or the legal system is making much sense these days.  After I rest for a
few days, I think I'll be able to put together something nice and short
and sweet for him.  Then they'll probably complain they need more
information.
Judydoc

MEMORANDUM AND ORDER
February 19, 1999

FREEDMAN, S.J.

I. INTRODUCTION
    A Massachusetts citizen, plaintiff Judy E. Morris, MD ('plaintiff"),
acting pro se and on behalf of "The Citizens of the Commonwealth of
Massachusetts" and 'The Citizens of the United States of America," filed
a 290-page complaint on October 20,1998, against 60 named parties and
1000 unnamed conspirators.  The named defendants include, among others:
UNUM Life Insurance company of America ("UNUM") and thirty three of tis
employees, officers, and shareholders; the Commonwealth of
Massachusetts, two of its agencies, and numerous state officials;
several private businesses and individuals, including a credit reporting
company and a large accounting firm; and the plaintiff's former
employer, Harrington Memorial Hospital ("Harrington") in Southbridge,
Massachusetts, and its chief executive officer. [ASIDE:  He forgot to
mention three private investigating agencies - JM].  The suit arises
from UNUM's denial of benefits to the plaintiff under both her own
individual disability insurance policy and a group disability insurance
policy for Harrington employees.

    The plaintiff has attached to her complaint a ten-page glossary, the
individual policy that plaintiff purchased from UNUM, her employee
benefit plan from Harrington, and a 145-page document entitled "An
Indictment of UNUM Insurance Company," which recites at length the trek
that the plaintiff has taken to reach federal court.  Despite naming the
Commonwealth of Massachusetts as a defendant, the complaint alleges
federal jurisdiction under the diversity principles of 28 U.S.C. §
1332.  The complaint also alleges jurisdiction under the federal
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §
1962.  Viewed in its best light, the complaint contains a prolix
collection of demands for relief based upon the following accusations:
breach of contract, negligent and intentional infliction of emotional
distress, violation of the Massachusetts Insurance and consumer
protection laws, and the RICO statute.  The predicate acts underlying
the plaintiff's RICO claims include, among others: mail fraud, wire
fraud, "fraudulent inducement," misrepresentation, surveillance,
attempted and premeditated murder, reckless endangerment, "attempted
vehicular homicide," stalking, harassment, fraud, extortion, "illegal
practice of medicine without a license in Massachusetts," conspiracy,
money laundering, and "funny accounting."  The complaint also requests
class certification under the Massachusetts Consumer Protection Act,
Mass. Gen. Laws. ch. 93A, and immediate injunctive relief against UNUM.

    Not surprisingly, many of the named defendants have moved to dismiss
the complaint.  The plaintiff has opposed these motions.

II.  DISCUSSION

   The plaintiff's complaint possesses a fatal flaw that stops this case
in its tracks.  A fundamental rule of procedure in federal civil actions
thwarts the plaintiff from proceeding any further with her voluminous
complaint as presently constructed.

A.  Fed. R. Civ. P. 8

    Rule 8 of the Federal Rules of Civil Procedure requires that a
pleader set forth "a short and plain statement of the claim showing that
the pleader is entitled to relief."  Fed. R. Civ. P. 8(a).  Similarly,
Rule 8(e)(1) requires that "[e]ach averment of a pleading shall be
simple, concise, and direct."  Notice pleading under Rule 8 ordinarily
requires a pleader "to set forth factual allegations, either direct or
inferential, respecting each material element necessary to sustain
recovery under some actionable legal theory."  Gooley v. Mobil Oil
Corp., 851 F. 2d 513, 515 (1st Cir. 1988).  The statement of legal
claims "should be plain because the principal function of pleadings
under the Federal Rules is to give the adverse part [ies] fair notice of
the claim[s] asserted so as to enable [them] to answer and prepare for
trial."  Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1980) (citing 2A
Moore's Federal Practice paragraph 8.13, at 8-61 (2d ed. 1987)); see
Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n.3 (1984)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))("although the Federal
Rules of Civil Procedure do not require a claimant to set forth an
intricately detailed description of the asserted basis for relief, they
do require that the pleadings 'give the defendant fair notice of what
the plaintiff's claim is and the grounds on which it rests.'")

    The Court "has the power to dismiss a complaint when a plaintiff
fails to comply with the Federal Rules of Civil Procedure, including
Rule 8(a)(2)'s 'short and plain statement' requirement."  Kuehl v. FDIC,
8 F. 3d 905,908 (1st Cir. 1993).  When confusion and verbosity replace
fair notice, '"[t]he striking of a pleading as violative of [the]
principles [of Rule 8] is within the sound discretion of the court; but
as a general rule motions to strike are not favored and an entire
pleading should be stricken only where ther is a gross violation of Rule
8.'" Newman v. Commonwealth of Massachusetts, 115 F.R.D. 341, 343-44 (D.
Mass. 1987) quoting 2A James Wm. Moore et al., Moore's Federal Practice
paragraph 8.13, at 8-81 (2d ed 1986)); see also Martin v. Hunt, 28 F.R.D
35, 35-36 (D. Mass. 1961) (district court has and should exercise th[e]
power to strike [a pleading] in toto when confronted with a complaint"
consisting of "a prolix and verbose series of allegations" that detail
"matters of an evidentiary nature"); Passic v. Michigan, 98 F. Supp.
1015, 1016-17 (E.D. Mich. 1951) ("The law does not require, nor does
justice demand that a judge must grope through two thousand pages or
irrational, prolix, and redundant pleadings....in order to determine the
grounds of [the] complaint").

   "Unnecessary prolixity in a pleading places an unjustified burden on
the court and the party who must respond to it because they are forced
to select the relevant material from a mass of verbiage." 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1281, at 522
(2d ed. 1990).  Although the Court reviews pro se complaints more
liberally than the formal complaints that attorneys prepare, see Haines
v. Kerner, 404 U.S. 519, 519 (1972) (allegations of pro se complaint
held to "less stringent standards than formal pleadings drafted by
lawyers"), "pro se status does not insulate a party from complying with
procedural and substantive law," Amhed v. Rosenblatt, 118 F. 3d 886, 890
(1st Cir. 1997) (affirming dismissal of pro se RICO complaint for
pleading failures).

   In this case, the plaintiff's complaint represents an egregious
violation of Rule 8.  Disregarding the 145-page appended diatribe
incorporated by reference into the complaint, see Complaint at 197, the
290-page complaint itself is ridiculously massive, ramblingly verbose,
and remarkably incoherent, containing scores of conclusory
asseverations, outlandish accusations, and elaborate recitations of
evidentiary material.  Instead of the required short statement of her
legal claims, the plaintiff's infelicitously drafted allegations accuse
UNUM--and every person and governmental organization with whom it
appears the plaintiff has come into contact regarding her quest for
benefits under her disability policies--or engaging in a widespread
criminal conspiracy.

    The plaintiff riddles the first 118 pages of the complaint with
Biblical quotation, a rambling diatribe on the insurance industry, its
regulation by the state and federal governments, a recitation of
hornbook RICO law, and detailed descriptions of herself, her allegedly
disabling illness, and the numerous defendants.  The complaint then
names several "Nondefendant CoConspirators" who have "sanctioned or
perpetrated the crimes" alleged.  These seventeen listed conspirators
include, among others, the Federal Bureau of Investigation, United
States Senators Edward Kennedy and John Kerry, United States
Representative Richard Neal, the Governor and Attorney General of Maine,
as well as the Boston Globe, New York Times, Wall Street Journal, and
their reporters.  So as not to exclude anyone, the complaint names "John
and Jane Does 1-1000" as additional conspirators.

    Among her vitriolic and cumbersome condemnations of UNUM and the
health insurance industry, the plaintiff explains that she has brought
this suit "to rid [UNUM] and other insurance companies and regulatory
agencies of organized crime and organized crime-like activities in the
business of insurance."  Complaint at 5.  Accordingly, the plaintiff
seeks relief not only for her own claimed damages but also on behalf of
"all citizens" of the Commonwealth of Massachusetts and the United
States, and includes a 30-plus page list of people who were "victims" of
the alleged RICO violations of "UNUM and its co-conspirators." See
complaint at 224-57.

   In the last 171 pages of complaint, the plaintiff sets forth her
state and federal causes of action, interspersed with legal citations,
fifteen pages of newpaper articles about UNUM, selections from the
company's annual report, and several quotations from various books,
memoranda and codes, including Lewis Carroll's "Alice's Adventures in
Wonderland and Throught the Looking-Glass" and the American Medical
Association's Code of Medical Ethics.  The complaint's sections
detailing the defendants' "pattern of racketeering activity" takes up
seventy pages alone, and repeatedly accuses UNUM and its fifty-nice
named conspirators of committing murder and attempted murder.

   Simply put, the complaint is impossible to review effectively and
respond to in any meaningful manner.  The majority of vague and
conclusory factual allegations provide the Court and the named
defendants with no adequate means of discerning what role, if any, which
defendants played in the alleged conspiracies and wrongdoing.  Despite
breaking down the defendants into groups, the plaintiff accuses every
defendant of responsibility for causing her injury in every action.  Yet
the allegations of a massive criminal conspiracy fail to identify
particular dates or particular individuals involved in a majority of the
purported incidents. For this reason, the complaint clearly violates the
Rule 8's basic tenet of giving defendants adequate notice of their
alleged wrongdoing and enabling them to frame a defense.

   The Court notes that the present pleading bears a remarkable
resemblance to a poorly drafted complaint that the First circuit deemed
unfit for a courtroom;

             The complaint certainly is argumentative, prolix, redundant
and verbose, and attached to it, labeled exhibits, are lengthy letters
and
             affidavits containing evidentiary matter, including
purported statements made by some of the defendants, and in the letters
even
             legal arguments supported by citation of cases.  It is hard
to imagine a pleading more completely at variance with both the letter
             and the spirit of Rule 8(e)(1) which requires that each
averment of a pleading be "simple, concise and direct."  We think the
             defendants' motion to strike should have been granted
promptly, whereby the issues might have been clarified for the benefit
             of all concerned.

McCoy v. Providence Journal Co., 190 F.2d 760, 766 (1st Cir.), cert.
denied, 342 U.S. 894 (1951).

    In attempting to defend her verbosity, the plaintiff states early in
the complaint that it is "necessarily lengthy due to the complexity of
the action, the pleading requirements of RICO, the multiple schemes,
myriad cover-ups, and other misdeeds wich plaintiff has painstakingly
documented in this action before the court."  Complaint at 9.  Despite
the particularity requirements of Fed. R. Civ. P. 9, the law does not
excuse a civil RICO complaint alleging fraud from following the notice
pleading directed by Rule 8 that mandates short and plain statements;
the complaint must strive for harmony between the rules.  See New Eng.
Data Servs. v Becher, 829 F. 2d 286, 289-90 (1st cir. 1987); Mcginty v.
Beranger Volkswagen, Inc., 633 F. 2d 226, 229 (1st cir. 1980); see also
Ouaknine v. Macfarlane, 897 F. 2d 75, 79 (2d Cir. 1990).  The
complaint's rambling, all-inclusive summations of the plaintiff's
conspiracy theory, however, falls well outside the acceptable limits of
Rule 8.  As several courts have reiterated, "'[c]omplaints which ramble,
which needlessly speculate, accuse and condemn, and which contain
circuitous diatribes far removed from the heart of the claim do not
comport with [the] goals [of the pleading rules] and this system' [and]
must be dismissed." Green v. Commonwealth of Massachusetts, 108 F.R.D.
217, 218 (D. Mass. 1985) (quoting Prezzi v. Berzak, 57 F. R. D. 149, 151
(S.D.N.Y. 1972)).

    Because of the plaintiff's misguided and bewildering attempts at
documenting her claims, the complaint is neither short, nor plain.  None
of its averments attempt to convey her claims simply, concisely, or
directly.  Accordingly, the complaint merits dismissal and the plaintiff
merits a severe rebuke.  Just as the courts in this jurisdiction have
not hesitated to dismiss poorly pleaded complaints, see Newman, 115 F.R.
D. at 344 (dismissing disorganized, verbose and argumentative complaint
with 70 pages of attached exhibits under Rule 8); Martin, 28 F.R.D. at
35-36 (dismissing 47 page "argumentative, redundant and verbose"
complaint), this Court will also not hesitate for a moment to dismiss
the plaintiff's 400-page opus.

   After an exhaustive reading of her complaint and attachments, the
Court will allow the plaintiff to file an amended complaint that
complies with Rule 8 and states in a short and plain manner any viable
legal claims against UNUM, without any of the improperly venomous
accusations that mark her first pleading.  As the Court preliminarily
perceives that the sole merit emanating from the plaintiff's mass of
verbiage takes the form of a claim under the Employee Retirement Income
Security Act (ERISA), 29 U.S C. § 1001 et seq., the Court strongly
recommends that plaintiff secure the services of counsel to prepare a
complaint based on an ERISA cause of action.  See Pilot Life Ins. Co. v.
Dedeaux, 481 U.s. 41, 53 (1987) (holding under exclusive civil
enforcement provisions of 29 U.S.C § 1132 (a),
that "a plan participant or beneficiary may sue to recover benefits due
under the plan, to enforce the participants's rights under the plan, or
to clarify rights to future benefits."), Wolf v. Reliance Standard Life
Ins. Co., 71 F. 3d 444, 447 (1st Cir. 1995) ("The Pilot Life decision
explains that ERISA's preemption clause and civil enforcement scheme
entirely displaced state law causes of action for benefits claims under
ERISA plans.").

B.  Fed. R. Civ. P. 12 (f)
    Rule 12 (f) of the Federal Rules of Civil Procedure gives this court
"considerable discretion in striking 'any redundant, immaterial,
impertinent or scandalous matter.'" Alvarado-Morales v. digital
Equipment Corp., 843 F. 2d 613, 618 (1st Cir. 1988) (quoting Fed. R.
Civ. P. 12(f)); see also Jones v. Winnepesaukee Realty, 990 F. 2d 1,5
(1st Cir. 1993) ("Trial judges enjoy great latitude in carrying out
case-management functions."); Martin, 28 F.R.D. at 35 (court can and
should employ Rule 12(f) to dismiss when complaint "contains certain
material which is both impertinent and scandalous").  In this case, the
plaintiff's complaint is replete with literally dozens of pages of
scurrilous accusations and information wholly irrelevant to the alleged
causes of action.  Allegations unnecessarily impugning the moral
character of defendants have no place in this Court.  If the plaintiff
chooses to amend the complaint, the Court will not look kindly on any
accusations that the plaintiff may recover damages in a civil lawsuit
because UNUM and its vast array of alleged conspirators attempted to
cause her to commit suicide and to murder her.  In any amended
complaint, the Court strongly recommends to the plaintiff that she omit
any of the scandalous and impertinent matter pervading the present
pleading, or face dismissal with prejudice.

C.  Jurisdiction
    A  "lack of 'complete diversity' between the parties deprives the
federal courts of jurisdiction over the lawsuit."  Sweeney v. Westvaco
Co., 926 F. 2d 29, 41 (1st Cir.) (citing Strawbridge v. Curtiss, 7 U.s.
(3 Cranch) 267 (1806)), cert. denied, 502 U.S. 899 (1991).  The
plaintiff alleges that diversity jurisdiction exists, but her naming the
Commonwealth of Massachusetts and numerous Massachusetts citizens as
defendants defeats complete diversity.  Further,  based on the
Commonwealth's immunity under the Eleventh Amendment of the United
States Constitution, the Court strongly recommends to the plaintiff that
she exclude the Commonwealth of Massachusetts and its agents in any
amended federal complaint.  See Pennhurst v. State Sch. & Hosp. V.
Halderman, 465 U.S. 89, 100 (1984) (state's consent to waive Eleventh
Amendment immunity to lawsuits in federal court must be "unequivocally
expressed"); Inacom Corp. v. Commonwealth of Massachusetts, 2 F. Supp.
2d 150, 154 (D. Mass. 1998) (dismissing case where Massachusetts did not
waive Eleventh Amendment immunity to federal suit by litigating case
prior to motion to dismiss); (Eleventh Amendment requires dismissing
RICO claim against state that has not waived immunity.)

III.  CONCLUSION

    After a careful review of the plaintiff's complaint and all of the
attached exhibits, the Court GRANTS the motions to dismiss pursuant to
Fed. R. Civ. P. 8 by defendants UNUM and Robert Crispin (Docket No. 21)
and Betty Rae Poppo (Docket No. 12).  The plaintiff's complaint is
dismissed with respect to all defendants without prejudice.  All other
motions are DENIED as moot.

    The Court givest he plaintiff the opportunity to amend the complaint
so it conforms with Rule 8.  Plaintiff has 30 (thirty) days from the
date of this order to file and amended complaint.  Her failure to do so
may result in dismissal without leave to amend.  Should the plaintiff
fail to comply with the Court's order, the Court will not hesitate to
resort to stiffer measures.  See HMG Property Investors, Inc. v. Parque
Industrial Rio Canas, Inc. 847 F. 2d 908, 918 (1st cir. 1988) ("where a
non-compliant litigant has manifested a disregard for orders of the
court and been suitably forewarned of the consequences of continued
intransigence, a trial judge need not first exhaust milder sanctions
before resorting to dismissal [with prejudice]"); 5 charles A. Wright &
Arther R. Miller, Federal Practice and procedure §1217, at 178 (1990)
("[I]n some circumstances if a party fails or refuses to file an amended
and simplified pleading or does not exercise good faith in purporting to
do so, the severe sanction of a dismissal on the merits may be
warranted.").

   It is so ordered.

  Senior United States District Judge - Frank H. Freedman

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Created: February 24, 1999


Last Updated: May 28, 2000