Thursday, December 17, 2009

When's The Right Time To Raise Rule 11 in A Pleading?

Chile Response

Anyone remember the RICO suits brought by the Republic of Chile against several banks over Pinochet and alleged money-laundering?

This is the one where Pedro Martinez-Fraga got conflicted out and had to hand it over to Bilzin's William Hill.

Well in a recent response to a motion to dismiss filed by one of the banks, there appears this curious paragraph:
We are dismayed that counsel for PNC would raise the earlier sending of a Rule 11 letter to predecessor counsel. That letter was directed at the initial complaint, a pleading that has long since been withdrawn (although it was withdrawn for reasons wholly unrelated to anything in the letter). No subsequent letters have been received and we would not expect to receive one, given the overwhelming evidence of wrongdoing by the bank. We understand that Rule 11 letters are confidential among counsel, and object to counsel raising it to try to gain some sort of litigation advantage here. Further, despite PNC's aggressive rhetoric, one similarly situated bank involved in the Pinochet enterprise has already settled with the Republic of Chile.1 Moreover, one other bank facing similar claims by the Republic of Chile likewise took an aggressive approach and filed a Rule 11 motion. That motion was filed at 5:30 p.m. on September 3, 2009 and denied by the court 20 minutes later, without the need for a response from the Republic of Chile. We expect that, because counsel for these banks are in close communication, the court's off-hand denial of the Rule 11 motion in the other case has counseled Riggs' counsel from making a similar motion. Nonetheless, we categorically deny making any litigation decisions in this case based on the Rule 11 letter, and ask that the Court disregard the reference in this motion.
Hmm, let's see the reference to the Rule 11 letter in the motion to dismiss:
After receiving our motion to dismiss and our strong Rule 11 letter, CDE dismissed everything except its Florida RICO counts and filed a second amended complaint. Unfortunately for CDE, even this latest amendment still cannot save this case from dismissal.
There's also this:
Despite the Local Rule’s clear command, a motion to dismiss [DE 23] and a Rule 11 letter, all squarely notifying CDE that they would be well-advised to specify some act post-March 11, 2004 -- after three long complaints and a 39-page Civil RICO Case Statement, they still have not specified one. As a result, they are time-barred.
The underlying legal issue is whether or not the injury discovery rule -- long applicable to federal RICO claims -- applies to Florida RICO claims as well.

The bank's reply is due January 4.

5 comments:

  1. Inappropriate if the pleading was withdrawn.

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  2. Somebody tell Bill Hill that his opposition memo alternates between left and full justification.

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