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NORTHLAND INS. CO. v. SHELL OIL CO.

July 11, 1996

NORTHLAND INSURANCE COMPANY, on behalf of itself and all others similarly situated, Plaintiff,
v.
SHELL OIL COMPANY, et al., Defendants.



The opinion of the court was delivered by: ROSEN

 ROSEN, Magistrate Judge:

 INTRODUCTION

 Presently before the court is the motion of Philip Stephen Fuoco, Esquire, counsel for the plaintiff, to vacate the RICO case management order pursuant to Fed. R. Civ. P. 8. The defendants have opposed the motion. After careful consideration of the parties' submissions and the oral argument conducted on the record on July 8, 1996, and for the reasons noted herein, the motion shall be denied.

 BACKGROUND

 On November 2, 1995, Northland Insurance Company and Prudential Property and Casualty Insurance Company filed a putative class action on behalf of insurers who assert subrogation rights against the defendants, E.I. duPont de Nemours and Company (hereinafter "DuPont"), Shell Oil Company (hereinafter "Shell") and Hoechst-Celanese Corporation (hereinafter "Celanese") as a result of the defendants' allegedly defective polybutylene plumbing systems. (Complaint P 1). On December 15, 1995, prior to the filing of an answer by any defendant, the plaintiff filed the First Amended Complaint, dropping Prudential as a plaintiff and making several changes to the body of the complaint. The plaintiff asserts, in an amended complaint painted with extraordinarily broad strokes, a right to legal, declaratory and injunctive relief, claiming that its subrogation rights from claims paid by class member insurance companies to policyholders who have suffered damages to their property as a result of leaks in polybutylene plumbing systems were usurped by the settlements of policyholders with the defendants. According to DuPont, the defendants supplied raw material plastic resins to other companies that manufactured the component parts of these plumbing systems. (Memorandum of Defendant DuPont in Opposition at 2) (hereinafter "DuPont Br.").

 The plaintiff labels the counts as follows: Count I, Intentional Interference with Performance of Contract (Restatement of Contracts); Count II, Intentional Interference with Contract (Common Law); Count III, Unlawful Interference with Prospective Economic Advantage; Count IV, Direct Cause of Action for Damages Sustained as a Result of Failure of Polybutylene Plumbing Systems; Count V, 18 U.S.C. § 1962(c); Count VI, Conspiracy, 18 U.S.C. § 1962(d); and Count VII, Supplemental Party Jurisdiction.

 Substantively, the complaint makes only generalized and vague allegations against the defendants. For example, in Count IV, "Direct Cause of Action for Damages Sustained as a Result of Failure of Polybutylene Plumbing Systems," the plaintiff asserts that the defendant companies "committed consumer fraud, advertising fraud, and violations of numerous state and federal consumer protection statutes in the course of manufacturing, promotion, marketing and sale of the Polybutylene plumbing systems." (Complaint P 67d). However, the plaintiff does not state the specific bases for these general assertions of fraud. Nor does the plaintiff identify the particular statutes violated. Further illustrative of the complaint's ambiguity, Count V, the RICO count, does not describe with specificity the factual bases to support the elements for a RICO fraud claim. Rather, after a series of general and conclusory statements regarding the defendants' activities, the plaintiff refers the defendants and this court to the RICO statute itself for a description of the allegedly violative activity, stating:

 
75. Plaintiffs and the class were directly injured in their business and property by defendants' participation in this pattern of unlawful activity, as more fully described in 18 U.S.C. §§ 1961(1), (5).

 (Complaint P 75) (emphasis added). The plaintiff concludes on this basis that the defendants are liable, "in an amount not presently ascertainable." (Complaint P 76). Additionally, in Count V, the complaint implicates a non-party, the Plumbing Claims Group, in the allegedly unlawful acts of the defendants, while acknowledging that "the PCG is a separate entity, distinct from all defendants, which could exist separately from the pattern of unlawful activity alleged herein." (Complaint P 71).

 On February 22, 1996, following a status and case management conference during which the parties both recognized the certain complexity of the case, this court exercised its discretion under Rule 15B.6, General Rule for the District of New Jersey (hereinafter "Local Rule"), to order preparation of a RICO Case Statement. The plaintiff, without requesting permission from this court, filed its statement under seal. Subsequently, this court advised the plaintiff that a motion would be required to prohibit disclosure of the statement. The present motion followed.

 The plaintiff has advanced several arguments in support of vacating the order: (i) that the complaint, as amended, is pled with sufficient specificity for the purposes of Fed. R. Civ. P. 8, thus the RICO Case Statement is unnecessary; (ii) that the information contained within is for the benefit of the court alone, and thus there is "no reason why a RICO statement cannot be filed in camera and under seal"; (iii) that the RICO Case Statement resembles contention interrogatories, which the Federal Rules do not permit at the initial stages of discovery; (iv) that Fed. R. Civ. P. 12(e) does not provide authority for the RICO Case Statement; and (v) that the notice requirements for federal pleading prohibit the RICO Case Statement. Essentially, the plaintiff argues that the court has no authority to require the entry of the RICO Case Statement. In support of the plaintiff's assertions, Northland analogizes the Statement to either a heightened pleading requirement, violative of Supreme Court jurisprudence under Leatherman v. Tarrant County Narcotics Intelligence Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), or a court prepared discovery request, violative of Third Circuit jurisprudence under Sempier v. Johnson & Higgins, 45 F.3d 724, cert. denied U.S. , 115 S. Ct. 2611, 132 L. Ed. 2d 854 (1995).

 Conversely, the defendants assert that the Federal Rules, Local Rules and Acts of Congress are replete with authority to support the RICO Case Statement practice. The defendants rely upon the Judicial Improvements Act, 28 U.S.C. § 2071, et seq., Federal Rules 83, 12(e), 9(b) and 16, and Local Rules 1A and 15.

 DISCUSSION

 The rule-making authority of local federal courts is primarily located in the Judicial Improvements Act, 28 U.S.C. § 2071 et seq., and Federal Rule of Civil Procedure 83. Section 2071 provides that:

 
The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 *fn1" of this title.

 28 U.S.C. § 2071(a) (emphasis added). The section further requires that public notice and an opportunity for comment accompany any rule promulgated by any court other than the Supreme Court. *fn2" Federal Rule of Civil Procedure 83 incorporates the dictates of section 2071, providing in relevant part that:

 
Each district court, acting by a majority of its judges, may, after giving appropriate public notice and an opportunity for comment, make and amend rules governing its practice. A local rule shall be consistent with -- but not duplicative of -- Acts of ...

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