Antitrust Law Daily Wrap Up, RICO—M.D. Fla.: Reconsideration of dismissal of RICO lawsuit over abortion denied as racketeering claim was frivolous, (Jul 23, 2013)

By Tobias J. Gillett, J.D., LL.M.

The federal district court in Tampa has denied a motion for reconsideration of its dismissal for failure to state a claim of a RICO action against various pro-choice organizations and the federal government over abortion, finding that the “irrational” nature of the RICO theory in the amended complaint warranted its sua sponte dismissal (Howse v. Planned Parenthood Federation of America, July 22, 2013, Kovachevich, E.).

Torm Howse filed suit against various pro-choice organizations and United States government, asserting various claims, including a claim under the RICO Act seeking injunctions enjoining the practice of abortion, forbidding the use of public monies for abortion, and enjoining all government-sponsored programs to fund, practice, or promote contraception, sterilization, and loss of birth rate in general. In previous orders, the court dismissed his complaint without prejudice and then dismissed with prejudice the RICO claim in his amended complaint for “failure to allege facts which establish proximate causation.” The court also dismissed his other claims for lack of jurisdiction or mootness.

In his present motion, Howse sought reconsideration of the decision under Federal Rule of Civil Procedure 59(e), vacation of the court’s judgments, and recusal of District Court Judge Elizabeth A. Kovachevich.

Reconsideration. The court declined to grant Howse’s motion for reconsideration, finding his cause of action to be frivolous. The court noted that it “understood the ‘pattern of racketeering activity’ to be the submission of claim forms for reimbursement to the U.S. Government and state governments over a period of time by a person distinct from the enterprise.” Because the court had dismissed Howse’s RICO count for failure to state a claim, the court had not considered whether the claim also warranted dismissal as being “vexatious or frivolous.”

The court explained that a court may dismiss frivolous claims, those where “it appears from the face of the complaint that the factual allegations are clearly baseless or that the legal theories are indisputably meritless,” but that sua sponte dismissal by a district court is generally inappropriate. However, the court observed that Howse’s theory was “irrational,” and that his complaint was “difficult to understand, verging on incomprehensible, and more like a diatribe than a pleading in a federal lawsuit.” Although his amended complaint was “an improvement,” it still asserted the same “irrational” theory. Therefore, the court found Howse’s case to be “the rare case in which a dismissal for frivolousness would be justified.

Recusal. The court also denied Howse’s motion for recusal, observing that it “rest[ed] solely on rulings in this case, which is not a valid ground for recusal,” and that “[t]here is no evidence within the record which would cause a disinterested observer to doubt the Court’s impartiality.”

The case is No. 8:12-CV-2519-T-17AEP.

Attorneys: Blake Jonathan Delaney (Buchanan, Ingersoll & Rooney, PC) for Family Planning Councils of America.

Companies: Planned Parenthood Federation of America

Cases: RICO FloridaNews