A Short Prelude

This one is quite interesting:  Basically the attorney is claiming that
all of the State Offices and Officials have BLANKET immunity under both
the US Constitution and State Law.  I believe we fought a war with
England a little over two hundred years ago when King George pulled the
same thing.  See 
The Declaration of Independence

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MOTION OF DEFENDANTS SENATOR LINDA j. MELCONIAN, CHAIRPERSON JOINT
INSURANCE COMMMISSION; THE OFFICE OF CONSUMER AFFAIRS AND BUSINESS
REGULATION; THE ATTORNEY GENERAL (L. SCOTT HARSHBARGER); THE DIVISION OF
INSURANCE; LINDA RUTHARDT, COMMISSIONER FOR THE DIVISION OF INSURANCE;
WALTER MARCINKUS, SENIOR INSURANCE EXAMINER; SOLMARIA MARQUEZ, DIRECTOR
OF THE DIVISION OF INSURANCE; MICHAEL GOETZ, ESQ; AND THE COMMONWEALTH
OF MASSACHUSETTS TO DISMISS COMPLAINT PURSUANT TO F.R. CIV. P. 12(B)(1)
AND 12(B)(6).

     The Attoney General, on behalf of the defendants Senator Linda J.
Melconian, Chairperson Joint Insurance Commission; the Office of
Consumer Affairs and Business Regulation; the Attorney General (L. Scott
Harshbarger); the Division of Insurance; Linda ruthardt, Commissioner
for the Division of Insurance; Walter Marcinkus, Senior Insurance
Examiner; solmaria Marquez, Director of the Division of Insurance,
Michael Goetz, Esq; and the Commonwealth of Massachusetts
("Commonwealth"), moves this Court pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6) for an order dismissing the Complaint in its entirety and
for an entry of judgment in favor of the Commonwealth, and in support of
this motion states the following:

    1. The Eleventh Amendment to the U.S. Constitution deprives this
Court of subject matter jurisdiction in this claim as to all claims
against the Commonwealth defendants, both those suggested under the
Racketeer and Corrupt Organizations Act, 18 USC § 1961 et seq ("RICO"),
and the purported state-law tort claims.

    2.  Even absent the eleventh Amendment bar, this Court must dismiss
the RICO action because the RICO allegations are not pleaded with the
particularity required under F.R.Civ.P. 9(b).

   3.  Even absent the eleventh Amentment bar, to the extent the
complaint purports to assert tort claims against Commonwealth
defendants, such claims must be dismissed because this Court cannot
properly execise supplemental jurisdiction over them, even if they were
valid claims, which they are not, once the RICO action is dismissed.

    4.  Even absent the Eleventh Amendment bar, and even could this
Court properly assert supplemental jurisdiction over the state-law tort
claims, this Court would have to dismiss the state-law tort claims
because the Commonwealth is immune from claims for intentional tort
(such as the suggested misrepresentation and intentional infliction of
emotional distress) pursuant to the Massachusetts Tort Claims Act,
M.G.L. c. 258, §10(c), and cannot be sued for negligence-based calims in
the absense of proper presentment of such claims pursuant to the same
Act, id. §4.

    5.  In further support of its motion, the Commonwealth defendants
submit the attached Memorandum of Law and incorporates it by reference.

   Wherefore, for all or any of the above reasons, the Commonwealth
defendants respectfully move this Court for an Order dismissing this
action in its entirety and for the entry of judgement in its favor.

Respectfully submitted
(Names of all defendants)

by its attorney: Scott Harshbarger
By: H. Gregory Williams
Assistant Attorney General
Western Massachusetts Division
436 Dwight Street
Springfield, MA  01103

MEMORANDUM IN SUPPORT OF DEFENDANTS SENATOR LINDA J. MELCONIAN,
CHAIRPERSON JOINT INSURANCE COMMISSION, THE OFFICE OF CONSUMER AFFAIRS
AND BUSINESS REGULATION; THE ATTORNEY GENERAL (l. SCOTT HARSHBARGER);
THE DIVISION OF INSURANCE; LINDA RUTHARDT, COMMISSIONER FOR THE DIVISION
OF INSURANCE; WALTER MARCINKUS, SENIOR
INSURANCE EXAMINER; SOLMARIA MARQUEZ, DIRECTOR OF THE DIVISION OF
INSURANCE; MICHAEL GOETZ, ESQ; AND THE COMMONWEALTH OF MASSACHUSETTS TO
DISMISS COMPLAINT PURSUANT TO F.R.CIV.P. 12(B)(1) AND 12(B)(6).

  The Attoney General, on behalf of the defendants Senator Linda J.
Melconian, Chairperson Joint Insurance Commission; the Office of
Consumer Affairs and Business Regulation; the Attorney General (L. Scott
Harshbarger); the Division of Insurance; Linda ruthardt, Commissioner
for the Division of Insurance; Walter Marcinkus, Senior Insurance
Examiner; solmaria Marquez, Director of the Division of Insurance,
Michael Goetz, Esq; and the Commonwealth of Massachusetts ("Commonwealth
defendants"), moves this Court pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6) for an order dismissing the Complaint in its entirety and for
an entry of judgment in favor of all Commonwealth defendants. The Court
is deprived of subject-matter jurisdiction in this action by the
Eleventh Amendment, and the complaint fails to state a claim upon which
relief may be granted in any event.  (Even if it did, it is telling that
no relief is sought from any Commonwealth defendant).  In support of and
filed with that motion, the Commonwealth submits this memorandum.

SUMMARY OF ARGUMENT

   This Court must dismiss this action, which purports to assert RICO
violations and some state-law tort actions against the Commonwealth
defendants, on the ground that this court is deprived of jurisdiction
over the Commonwealth defendants for both the RICO and the tort claims
by the eleventh Amendment.  Even if this Court did have jurisdiction
over the RICO claims, those claims would have to be dismissed because
violations of RICO are not pleaded with particularity required by
F.R.Civ.P. 9(b).  Further, even if this Court had jurisdiction over the
RICO claims and the tort claims, it could not exercise supplemental
jurisdiction over the state claims one the RICO claims were dismissed,
and the state-law claims are not valid in any event because of the
operation of various defenses afforded the Commonwealth defendants by
the Massachusetts Tort Claims Act, M.G.L. c 258, §§4 and 10.  for these
reasons, this Court must dismiss this action in its entirety as to the
Commonwealth defendants.

ARGUMENT
I.  THIS ACTION MUST BE DISMISSED AS TO ALL COMMONWEALTH  DEFENDANTS
BECAUSE THERE IS NO DIVERSITY JURISDICTION AND THE ELEVENTH AMENDMENT
DEPRIVES THIS COURT OF JURISDICTION AS TO THE COMMONWEALTH; IN ADDITION,
SUPPLEMENTAL JURISDICTION CANNOT BE TAKEN OF THE STATE-LAW CLAIMS

A.  This Court Must Dismiss the RICO Claims Because the Eleventh
Amendment Deprives This Court of Jurisdiction Over the Commonwealth
Defendants For Such Claims

    The bases of federal jurisdiction which the plaintiff Judy Morris,
MD ("Morris") (Footnote1) alleges are diversity of citizenship under 28
U.s.c. 4 and a purported federal question arising under the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §1961 et seq
("RICO").  That there is no diversity is obvious--Morris, a
Massachusetts resident, is asserting claims against the Commonwealth of
Massachusetts and various of its agencies and employees.  That leaves
RICO as a purported basis for federal juridiction.  But this Court is
deprived by the Eleventh Amendment of jurisdiction over the Commonwealth
defendants for RICO claims.  E.g., Ricotta v State of California, 4 F.
Supp. 2d 961, 976 (S.D. Cal. 1998); Robinson v. California Bd. of Prison
Terms, 997 F. Dupp. 1303, 1307 (C.D. Cal. 1998).  "'Without a clear
showing that Congress intended abrogation of the Eleventh Amendment
governmental immunity, this Court will not infer that the RICO Act
depreived the State[] of its protection.'"  Molina v State of New York,
956 F. Supp. 257, 260 (E. D. N. Y. 1995), quoting Productions & Leasing,
Ltd. v. Hotel Conquistador, Inc., 573 F. Supp. 717, 720 (D. Nev. 1982),
aff'd 709 F.2d 21 (9th Cir. 1983)).  Simply put, RICO does not override
this Commonwealth's immunity to suits brought under RICO in Federal
Court.  E.g., Molina, 956 F. Supp. at 260 (citations omitted). (Footnote
2)

Footnote 1: Although Morris purports to represent "the Citizens of the
Commonwealth of Massachusetts and the Citizens of the United States of
America" in addition to herself (complaint, Paragraph 34, pag, 83), she
cannot represent anyone other than herself in this Court. LR, D. Mass.
83.5.3(c) ("A person who is not a member of the bar of this court...will
be allowed to appear and practice before the court only in [her] own
behalf"]; see also F.R. Civ. P. 11(a) ("Every pleading....if the party
is not represented by an attorney, shall be signed by the party
[emphasis added]").

Footnote 2: Numerous cases besides thsoe cited in the text have held
that RICO claims against States, their agencies and state officials sued
in their official capacities, are barred by the Eleventh Amendment.
See, e.g., Bair v. Krug, 853 F.2d 672, 674-75(9th Cir. 1988); Gaines v.
Texas Tech. Univ. , 965 F. Supp. 886, 889 (N.D. Tex. 1997).

   In pertinent part, the Eleventh Amendment prohibits federal courts
from hearing "any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State."  U.S. const.,
amend XI.  Although this test refers only to actions brought against a
"State" by citizens of "another State," the Amendment has been
consistently applied as well to actions brought against a state's
agencies or officials by its own citizens.  See, e.g., Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89 (1984); Will v. Michigan Dep't
of State Police, 491 U.s. 58, 71 (1989).

   In essence, the eleventh Amendment acts as a "withdrawal of
jurisdiction" which "effectively confers and immunity from suit" to
unconsenting states.  Puerto Rico aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc. 506 U.S. 139, 144 (1993).  In other words "'and unconsenting
State is immune from suits brought in federal courts by her own citizens
as well as by citizens of another state.'"  Id. quoting Edelman v.
Jordan, 415 U.s. 651, 662-63 (1974); see also Green v. Mansour, 474 U.s.
64, 68 (1985) (discussing Pennhurst); Alabama v. Pugh, 438 U.s. 781, 782
(1978) (per curiam).

   The Commonwealth could theoretically have consented to be sued for
RICO violations in federal court.  The onus of establishing consent is
on Morris, the party having hte burden of proving that jurisdiction
exists.  See coventry Sewage Assocs. v. Dworkin Realty Co., 71 F.3d 1, 4
(1st Cir. 1995); O'Toole v. Arlington Trust Co., 681 F2d 94, 98 (1st
cir. 1982)).  Not surprisingly, in the face of overwhelming case law to
the effect that Congress did not intent do abrogate state sovereign
immunity as to RICO and that states have not consented to federal
jurisdiction for RICO violations, Morris has pointed to nothing that
even remotely indicates such consent.  This Court must dismiss the RICO
claims on the ground that it is deprived by the eleventh Amendment of
jurisdiction over the Commonwealth defendants for such claim.

B.  This court Must dismiss the State-law Claims Because The Eleventh
Amendment Deprives This Court Of Jurisdiction Over the Commonwealth
Defendants For Such Claims and Cannot Properly Exercise Supplemental
Jurisdiction over Such Claims, Which Are Not Valid In Any Event

1.  This court Must Dismiss The State-law Claims Because The Eleventh
Amendment Deprives This Court Of Jurisdiction over The Commonwealth
Defendants For Such Claims.

The complaint sets out several "state causes of action," only a few of
which seem aimed at any commonwealth defendant. (Footnote 3) (The
Commonwealth notes that no relief is sought from any Commonwealth
defendant, under any theory of recovery).  As to any of these claims,
which allege negligence or intentional torts, no consent by the
Commonwealth to be sued in federal court can be implied from the
Massachusetts Tort Claims Act, M.G.L. c. 258, §1 et seq ('Act").
Original jurisdiction under the Act for the tort claims it covers arises
in "[t]he superior court' of the Commonwealth. Id. at §3.

Accordingly, the Supreme Judicial Court, on a certified question from a
court in this district, has held that the Act asserts "neither an
express nor a necessarily implicit consent by the Commonwealth to suit
in Federal court." Irwin v Comm'r of Dep't of Youth Servs., 388 Mass.
810,819 (1983) (emphasis added).  See also Edelman, 415 U.S. at 673
(even though state may consent to be sued in its own courts, waiver of
Eleventh Amendment immunity in federal courts will not be readily
inferred); Pennhurst, 465 U.S. at 99 n.9 ("[T]he court consistently has
held that a State's waiver of sovereign immunity in its own court is not
a waiver of the Eleventh Amendment immunity in the federal courts.")

Just as with the RICO claims, Morris has the burden of proving that this
Court has jurisdiction over the Commonwealth for state-law tort claims.
E.g. Coventry Sewage Assocs., 71 F.3d at 4.  Again, not surprisingly in
the fact of such case law as irwin, 388 Mass. at 819, Morris has not met
that burden.  Having failed in her burden to establish jurisdiction in
this Court, its agencies or employees, Morris is faced with the
effective immunity of all the Commonwealth defendants from suit.  See
Puerto Rico Aqueduct, 506 U.S. at 144. The complaint as to the
Commonwealth defendants must therefor be dismissed in its entiretly

Footnote 3: Paragraphs 55-57 (pages 119-41) are clearly intended to
apply only to UNUM since they allege breach of contract, violation of
M.G. L. c. 93A, and violation of certain insurance statutes, M.G.L. c.
175 and 176.

2.  Even If This Court Were Not Deprived Of Jurisdiction Over the
State-law Claims by The Eleventh Amendment, It Could Not Properly
Exercise Supplemental Jurisdiction over Such Claims.

Even were any of the state tort calims viable, which is not the case,
this Court would err in retaining supplemental jurisdiction over any of
them one this Court dismisses, as it must under the Eleventh Amendment,
the federal (RICO) claim on which jurisdiction in this Court is based.
Camelio v American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998) (once RICO
claims dismissed, state law claims such as negligent infliction of
emotional distress would have to be dismissed).  Failure to do so would
be error.  Id  "'[I]f the federal claims are dismissed before trial,
even though not unsubstantial in a juridictional sense, the state claims
should be dismissed as well.'' Id., quoting United Mine Workers v. Gibb,
383 U.S. 715, 726 (1966).  This all state claims must fall with the RICO
claim.

3.  Even If This Court Were Not Deprived Of Jurisdiction Over the
State-law Claims by the Eleventh Amendment, And Even If It Could
Properly Exercise Supplemental Jurisdiction Over Such Claims, The
State-law Claims Are Not Valid Because of Several State-law Defenses.

Even if this Court had jurisdiction over the state claims, or could
properly exercise supplemental jurisdiction over them, they would have
to be dismissed in any event because each is subject to a specific
state-law defense.  The main state claim directed at the Commonwealth is
Paragraph 58 (pgs. 141-42) ("Duties of the Insurance Commissioner"),
which is discussed above; no private cause of action such as Morris
implies is created by this statute. Although paragraph 59 (pags. 142-48)
chiefly concerns UNUM, it also alleges that the Division of Insurance
"colluded with UNUM, in fabricating an ambiguity [apparently in the
languiage of Morris's disability policies] that never existed, and
fabricatign false statements to justify UNUM's denial of plaintiff's
claims."  complaint par. 59L., pag 145.  But even if this Court had
jurisdiction over such a claim, it would have to dismiss this claim
because the Commonwealth and its agencies (Footnote 4) are immune from
claims of intentional tort---including, specifically,
misrepresentation.  M.G.L. c. 258, §10(c); see, Armstrong v. Lamy, 938
F. Supp. 1018 (D. Mass. 1996).  Paragraph 60 alleges negligent
infliction of emotional distress, but only UNUM is specifically
mentioned.  Even were this claim intended to apply to any Commonwealth
defendant, and if this court had jurisdiction here, this count would
have to be dismissed because Morris has made no presentment of any
negligence claim against the Commonwealth as required by M.G.L. c. 258,
§4. (presentment must be in strict compliance with Act).  Paragraph 60
alleges intentional infliction of emotional distress; again, this claim
seems mostly aimed at UNUM.  The "Department of Insurance" is mentioned
in subpart "I" but to the extent that this claim is intended against the
Division of Insurance, it must be dismissed because, again, the
Commonwealth is immune from claims of intentional tort ---including,
specifically "intentional mental distress".  M.G.L. c. 258, §10 (c);
e.g., Armstrong, 938 F. Supp. at 1044.  for these reasons, all state-law
tort claims must be dismissed.

(Footnote:  Although public employees may be defendants as to claims
alleging intentional acts, no such allegations are leveled against any
individual defendant here.  The paucity of allegations against
individual defendants--to the extent such allegations are made, they are
made in the RICO context--is set out below in Section II. A general
allegation that these employees, and Senator Melconian and Attorney
General Harshbarger, somehow failed in their duties as public officers
must be viewed as a negligence allegation, which would have to be
dismissed for failure to present under M.G.L. c. 258, §4.  Were more
specific allegations made, the Commonwealth defendants, under one or
more of the defenses afforded them under M.G.L. c 258 c §10, including
but not limited to, §10(b) (discretionary function) and §10(j) (failure
to diminish harmful consequences of third-person act).  given the other
defenses available and the inchoate nature of the claims against he
Commonwealth defendants, these potentional defenses are not discussed at
length here.)

II.  EVEN IF THIS COURT HAD JURISDICTION OVER THE COMMONWEALTH FOR
ALLEGED RICO VIOLATIONS THE COMPLAINT MUST BE DISMISSED BECAUSE THE RICO
VIOLATIONS ARE NOT PLEADED WITH THE REQUISITE PARTICULARITY

Even were the Commonwealth defendants subject to this Court's
jurisdiction for RICO claims, Morris has failed to allege the predicate
acts of each RICO violation as to each Commonwealth defendant with
sufficient particularity.  "It is settled law in this circuit that Fed.
R. Civ. P. (b), which requires a party to plead fraud with
particularity, extends to pleading predicate acts of mail and wire fraud
under RICO."  Feinstein v Resolution Trust corp., 942 F. 2d 34, 42 (1st
Cir. 1991), citing New Engliand Data Servs., Inc. V. Becher, 829 F. 2d
286, 290 (1st Cir. 1987).  "It is not enough for a plaintiff to file a
RICO claim, chant the statutory mantra, and leave the identification of
predicate acts to the time of trial."  Feinstein, 942 F. 2d at 42.  Bald
and conclusory allegations such as the ones which Morris suggests do not
meet these requirements.  See, e.g., Monarch Normandy Square Partners v.
Normandy Square Assocs. Ltd. Partnership, 817 F. Supp. 908, (D. Kan.
1993).  Specifically, when the alleged RICO violations are mail fraud or
wire fraud, as here, the complaint must specify what statements were
made in what documents or oral presentations, the time and place of each
statement and the identity of the persons responsible for making them,
the content of the statements and the manner in which they misled the
plaintiff, and what the defendants obtained as a consequence of the
fraud.  See, e.g., Amalgamated Bank of New York v. March, 823 F. Supp.
209., 217 (S.D.N.Y. 1993); see also, e.g., Fleet Credit Corp. v. Sion,
893 F. 2d 441, 445 (1st Cir. 1990), quoting New England Data Servs.,
Inc., 829 F. 2d at 291 ("plaintiff must go beyond a showing of fraud and
state the time, place and content of the alleged mail and wire
communication perpetrating that fraud"). (Footnote 5)  The Complaint
does not approach fulfilling these specificity requirements and so would
have to be dismissed even if this Court had jurisdiction over the
Commonwealth defendants.

Footnote 5:  The mail fraud statute does not protext the 'intangible
right of the citizenry to good government.'  McEvoy Travel Bureau, Inc.
V Heritage Travel, Inc., 904 F. 2d 786, 792-93 (1990), quoting McNally
v. United States, 483 U.S. 350, 356-59 & N. 8(1987).  Such amorphous
dissatisfaction, whether or not justified, seems to form the impetus,
however unfocused, of Morris's inclusion of the Commonwealth defendants
in this action.  But RICO cannot be used as a surrogate for local law,
as a panacea to redress every instance of man's inhumanity to man [sic],
or as a terrible sword capable of righting all the wrongs of a trouble
world. Miranda, 948 F.2d at 49.

This Circuit has recognized that "[c]ivil RICO is an unusually potent
weapon---the litigations equivalent of a thermonuclear device."  Miranda
v. Ponce Fed. Bank, 948 F. 2d 41, 44 (1st Cir. 1991)  Thus such
allegations must withstand rigorous scrutiny. "[I]t woudl be unjust if a
RICO plaintiff could defeat a motion to dismiss simply by asserting an
inequity attributable to a defendant's conduct and tacking on the
self-serving conclusion that the conduct amounted to racketeering." Id.
Although Morris recognizes the need for specificity in alleging RICO
violations (e.g., Complaint, Paragraph 5, pag. 9; paragraph 29, pg. 58),
her claims do not even satisfy thsi sweeping threshold description.
"[T]o avert dismissal under Rule 12(b)(6), a civil RICO complaint must,
at a bare minimum, state facts sufficient to portray (i) specific
instances of racketeering activity within the reach of the RICO statute,
and (ii) a causal nexus between that activity and the harm alleged."
Miranda, 948 F. 2d at 44.  The Morris complaint does not meet these
minumum requirements.  Yet further, a "claim cannot succeed unless the
injuries of which the plaintiff complains were caused by one or more of
the specified acts of racketeering."  Camelio, 137 F. 3d at 669-70.  At
least one of the defendants's acts (Footnote 6) must be shown to be the
proximate cause, not merely a "cause in fact," of the plaintiff's
claimed injury.  Id., at 670.  Not surprisingly, Morris makes no such
allegation as to any Commonwealth defendant.

Footnote 6: Among numerous pleading requirements enabling a purported
RICO claim to withstand a motion to dismiss, not all of which are
addressed here(mostly because of the Eleventh Amendment bar to this
Court's jurisdiction), a plaintiff asserting a RICO claim must allege a
pattern of racketeering, which "pattern" requires  a showing of at least
two acts of racketeering, which "pattern" requires a showing of at least
two acts of racketeering activity within a ten year period.  See, e.g.,
Feinstein, 942 F.2d at 42.  These two predicate acts must be acts
chargeable or indictable under any one or more of certain specified
criminal laws, and further, a RICO plaintiff must demonstrate that the
predicate acts are related and that they amount to or pose a threat of
continued criminal activity.  Libertad v. Welch, 53 F.3d 428, 444(1st
Cir. 1995).  Indeed, "[a] RICO claim is deficient if it 'fails to allege
any facts demonstrating a knowing agreement involving each of the
defendants to commit at least two predicate acts.'"  Amalgamated Bank of
New York, 823 F. Supp. a6 217, quoting Metro Furniture Rental, Inc. v.
Alessi, 770 F. Supp. 198, 201 (S.D.NY. 1991) (emphasis added).  Morris
makes no such allegations here, as to any Commonwealth defendant.
Indeed, the only specific act so much as mentioned is one 1997 letter
which Commissioner Ruthardt allegedly "directed."  Complaint, Paragraph
76, page 222.

A review of the allegations as to each Commonwealth defendant
demonstrates the vague and conclusory nature of these purported RICO
claims:

1.  Division of Insurance:  The chief allegation against the Division,
phrased differently at several points in the complaint, is that it
"engaged in acts and omissioins due to collusion and aiding and abetting
UNUM....in the fraudulent denial of plaintiff's insurance  benefits by
extortion, as well as overt acts of mail and wire fraud.  They are
derelict in their duties as public officers in not investigating,
refusing to investigate, or thwarting investigation of plaintiff's
allegations."  (Complaint, Paragraph 92, p. 270). ( Footnote 7).  In
another allegation, Morris quotes part of M.G.L. c. 175, §4, in an
apparent attempt to create a duty on the Division to have taken some
specific action in her case.  (Complaint, Paragraph 58, pags. 141-42).
(Footnote 8).  There is no indication that the statute sought to create
a private cause of action upon it's "breach." (Footnote 9).  More to the
point, that statute concerns the duties of the Commissioner to
investigate certain aspects of an insurer's business affairs only upon
the specific request of five (5) or more persons with a pecuniary
interest in such affairs, which persons must submit detailed affidavits
demonstrating their belief that the insurer "is in unsound condition."
Id.  (Emphasis added).  Morris does not allege that that statutory
condition was ever met, and indeed referes in that same paragraph to the
"complaint of  'a'  policyholder." (Complaint, Paragraphn 58, pag. 142);
emphasis added. Such inexplicit allegations do not approach the
requisite specificity for claims of fraud, and especially do not
describe a RICO predicate act "indictable under any one or more of
certain specified criminal laws."  Feinstein, 942 F. 2d at 42.

Footnote 7:  A similar vague allegations suggests that Division
"defendants did nothing to rectify the situation when alerted that there
were problems with UNUM claims handling, integrity and honesty and in
fact, participated further in the scheme to defraud plaintiff by causing
more delays and by issuing false statements and failing to retract them
after being made aware of their falsity."  Complaint, Paragraph 58, pag.
141.  But Morris offers no details whatever about how "delays" were
caused, and to what; she identifies no "false statements." Similarly,
Morris alleges that the Division "colluded with UNUM, in fabricating an
ambiguity [apparently in the language of her disability policies] that
never existed, and fabricating false statements to justify UNUM's denial
of plaintiff's claims." Complaint, Paragraph 59, pag 145.  Again, there
is no allegation even as to what the "ambiguity" is, and none as to any
specifics about alleged "false statements."  Another cloudy allegation
is to the effect that all the Division does upon receiving a complaint
letter is "forward [it] to the very insurance company that is abusing
the claimant."  Complaint, paragraph 73, page 178.  No specificity at
all is offered in support of this conclusion.

Footnote 8:  It is impossible to discern whether this allegation is
meant to be one for fraud.  If it is, on the other hand, intended to be
one for some unnamed intentional tort, the Commonwealth is immune from
it pursuant to M.G.L. c. 258, §10(c).  If it is meant to assert some
kind of claim in negligence, it must be dismissed for failure to have
presented the claim pursuant to M.G.L. c. 258, §4.  See, e.g.
Richardson, 424 Mass. at 261-62.

Footnote 9: In determining whether an implied privte right of action
exists in a statute, courts look to legislative intent, keeping in mind
that there is a strong presumption against such inferences.  See
Maldonado v. Dominguez, 137 F.3d 1, 7 (1st Cir. 1998).  There can be no
such intent as to this statute because it specifically provides for a
different "private right of action" (the five-plaintiff procedure) than
the one which Morris would presumably urge.

2.  Walter Marcinkus, Senior Insurance Examiner; Solmaria Marquez,
Director; and Michael Goetz, Attorney.  The only allegations mentioning
these Division of Insurance employees is one in which they "and other
unknown co-conspirators" either allegedly "wrote or directed the writing
of letters containing deceptions or fraud meant to deter, delay,
obstruct, or otherwise prevent plaintiff from recovery of benefits
rightfully owed her, failed to do their duty as public officers, and
conspired to aid and abet UNUM.....in Racketeering in violation of
U.S.C.A. 1962(d)." Complaint, paragraph 76, pag. 222.  Morris does not
describe or even identify any of the letters referred to, or even try to
describe the "deceptions" or "fraud" which they contain.  She does not
suggest how any of these employees "failed" in their duty as public
officers, and offers no hint of what any of them did in to furtherance
of a "conspiracy."

3.  Linda Ruthardt, Commissioner.  Morris alleges that a letter "written
at the direction of" (but apparently not actually written by)
Commissioner Ruthardt dated August 27, 1997 contained "a total
falsehood," which turns out to be a statement that UNUM denial of her
claim was supported by an independent medical examination.  Complaint,
paragraph 76, pag. 222.  Morris further alleges that she had told "the
defendants" that she had not had such an exam, but the "the defendants"
sent the letter again a month later to "plaintiff's elected officials."
Complaint, Paragraph 76, page 222.  Even though this is as explicit as
the complaint gets, such allegations do not rise to a level of
specificity required for allegations of RICO violations.  There is scant
indication of what statements were made; there is no indication as to
who actually made the statements, no suggestion as to how the statements
misled Morris, and certainly no hint as to what any Division of
Insurance Defendant obtained as a consequence of the alleged "fraud."
E.g., Amalgamated Bank of New York, 823 F. Supp. at 217.

4.  Senator Linda J. Melconian.  The only mention of Senator Melconian
is that Morris "contacted [her] and never heard back from [her]."
Complaint, paragraph 50, pag 115.  To the extent this is intended as an
allegation against Senator Melconian, it does not approach constituting
a proper allegation under any conceivable cause of action. The complaint
as to Senator Melconian must be dismissed on that basis alone.

5.  Division of Consumer Protection.  The only allegations even
mentioning the Division of Consumer Protection is one suggesting that it
"referred plaintiff's complaints about the Department [sic] of Insurance
to the Department [sic] of Insurance."  Complaint, paragraph 50, pag.
115; emphasis added.

This allegation, if such it was intended to be, is not specific enough
to support any claimed cause of action, and certainly not one for an
indictable offense supporting the alleged RICO violation.

6.  Scott Harshbarger, Attorney General. Again, there are apparently no
allegations directed specifically against the Attorney General. The
complaint offeres two newspaper quotes about the Attorney General
(Complaint, paragraphs 50 and 89, pags. 116 and 263) but no allegations
of any purported wrongdoing---or indeed any action or omission on the
part of the Attorney General.

In summary, no allegation against any Commonwealth defendant so much as
approximates the level of specificity required to support allegations of
RICO violations---and, again, no relief is requested of any Commonwealth
defendant under any theory. Even if this Court were not deprived of
jurisdiction over these defendants for RICO violations, these claims
would have to be dismissed for failure to meet Rule 9 pleading
requirements for such allegations.

CONCLUSION
For the reasons set out above, the Commonwealth defendants respectfully
move this Court for an Order allowing their motion to dismiss the
complaint for lack of subject-matter jurisdiction and for failure to
state a claim upon which relief may be granted.

Respectfully Submitted,

Senator Linda J. Melconian, the Office of Consumer Affairs and Business
Regulation, the Attorney General (L. Scott Harshbarger), the Division of
Insurance, Linda Ruthardt, Walter Marcinkus, Solmaria Marquez, Michael
Goetz, and the Commonwealth of Massachusetts
By their attorney,
Scott Harshbarger
Attorney General
By: H. Gregory Williams
Assistant Attorney General
Western Massachusetts Division
436 Dwight Street
Springfield, MA  01103

[Filed December 28, 1998, but original received document is undated.]

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Created: January 10, 1999


Last Updated: May 28, 2000