Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1988)

Martha McCUTCHEON, Plaintiff-Appellant,v.AUTEK, INC., a California corp., Samuel McCutcheon, JeffreyLum and Auber Ryals, Defendants-Appellees.

No. 87-1770.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 26, 1988.* Decided April 4, 1988.

Before KOELSCH, J. BLAINE ANDERSON and FARRIS, Circuit Judges.


MEMORANDUM** 

The district court did not err in dismissing without leave to amend Martha McCutcheon's complaint purportedly based upon the fraud and obstructing provisions of the federal Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961(1), 1964(c)), and in incidentally dismissing her state claims resting as they did upon pendent jurisdiction.

In her pleading, McCutcheon failed to state with "particularity" as required by Fed. R. Civ. P. 9(b), pertaining to fraud, the "time, place and specific content of the false representations as well as the parties to the misrepresentations" (Schreiber Distrib. Co. v. Serve-Well Furniture Co., 806 F.2d 1393, 1400-01 (9th Cir. 1986)), and the hearing on defendant's motion to dismiss her complaint disclosed without peradventure that, she could not, even if permitted to amend, cure the fraud deficiency or bring herself within the obstructing provision of the Act so as to defeat ultimate dismissal of her suit. See Schreiber, supra.

McCutcheon, it is true, did not in her opening brief in this court assign as error the district court's assessment of monetary sanctions upon her and her then attorney, jointly and severally. But she did tender that issue in her reply brief. Although appellees have objected to this tardy assignment, we nevertheless in the interest of justice deny their motion to strike and will consider the matter. Appellees are in no way prejudiced by our ruling (they were permitted to file and did file a supplemental brief regarding the propriety of the assessment). Moreover, we note that McCutcheon prepared her opening brief pro se (having dispensed with the services of her established attorney). Thus, we extend her a greater measure of indulgence than we would a counseled litigant. However, a careful study of the record can only lead to the conclusion that the complaint and contemplated litigation was patently frivolous and within the purview of Fed. R. Civ. P. 11. See Golden Eagle Distrib. Co. v. Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986).

The general tenor of appellant's abortive lawsuit is reflected in the extravagant monetary demands she makes. She asks (1) for damages in the sum of $31,924,078.00, such damages to be trebled; (2) for special damages in the sum of $65,000.00 and an amount for medical damages and future loss of earnings in a sum to be proved at trial; and (3) for exemplary or punitive damages in the sum of $70,000,000.00.

The record also warrants the conclusion that the amount of the sanctions imposed jointly and severally upon appellant and her counsel was not unreasonable. Partial compensation of $7,000.00 was assessed to appellees for the services of their lawyers and $500.00 as a penalty against "plaintiff and her attorney of record, Michael Radosevich, for repeated failures to comply with the filing deadlines specified in the Local Rules."

However, we reject appellees' request for sanctions on this appeal.

The judgment is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3