United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
This matter is before the Court on plaintiff's motion for reconsideration of the dismissal of plaintiff's RICO and tortious interference claims (Counts I-V), or, in the alternative, to voluntarily dismiss the remaining counts of the third amended complaint (Counts VI-VIII). Defendants have responded in opposition, and the issues are fully briefed.
Plaintiff Raineri Construction, LLC (Raineri) is a construction contractor. Defendant Carpenters District Council of Greater St. Louis and Vicinity (CDC) is a labor union that represents carpenters and other skilled workers in collective bargaining with construction contractors. The ten individual defendants, Keith Taylor, Scott Byrne, Paul Higgins, Al Bond, Mark Kabuss, Michael Ebert, Christopher Woods, George Wingbermuehle III, Tod Wingbermuehle, and Terry Nelson, are officers or members of the CDC.
Plaintiff alleges that beginning in November 2011 and continuing to date, defendants have engaged in a conspiracy to extort money and inflict substantial damages upon plaintiff by threatening physical violence and property damage, stalking and harassing plaintiff's management and employees, defamation, filing frivolous complaints with the St. Louis City Building Department, the St. Louis County Department of Health, and the U.S. Department of Labor-Occupational Safety and Health Administration, and unlawfully interfering with plaintiff's existing and prospective business relations.
The Court has twice dismissed the alleged violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO) (Counts I-IV) for failure to state a claim. In response, plaintiff has amended its complaint in an effort to remedy the pleading defects in the RICO claims. Following plaintiff's third amended complaint, the Court granted defendants' motion to strike allegations and references pertaining to the dismissed counts as immaterial, impertinent, scandalous or otherwise unrelated to the remaining claims.
In the instant motion, plaintiff seeks reconsideration of the Court's dismissal of the RICO claims on the basis of "the Court's unwarranted refusal to allow [p]laintiff any discovery whatsoever to support its well-pleaded [RICO] allegations" and "recently disclosed predicate acts" cited in defendants' answer to the third amended complaint. [Docs. ## 103, 108]. In the alternative, plaintiff seeks to voluntarily dismiss the remaining claims in the complaint, "so as to conclude this action in the district court and to allow [p]laintiff to pursue an appeal with respect to the Court's dismissal of [p]laintiff's RICO claims." [Doc. #103].
A. Motion for Reconsideration
The Federal Rules of Civil Procedure do not address the standard by which courts are to assess motions to reconsider, and plaintiff does not cite any authority for its motion. Because plaintiff seeks review of a non-final order rather than a final judgment, the Court will construe plaintiff's motion as a Rule 60(b) motion. See Nelson v. Am. Home Assur. Co., 702 F.3d 1038, 1043 (8th Cir. 2012) ("[W]e have determined that motions for reconsideration are nothing more than Rule 60(b) motions when directed at non-final orders.'") (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006)). Rule 60(b) "provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, " such as newly discovered evidence that could not have been discovered with reasonable diligence, mistake or fraud. Robinson v. Armontrout, 8 F.3d 6, 7 (8th Cir. 1993).
Plaintiff has failed to provide a sufficient basis for relief upon any of the grounds enumerated in Rule 60(b). Plaintiff instead premises its motion for reconsideration on the lack of "discovery necessary to process its [RICO] claims, " "even though [p]laintiff specifically requested a Rule 16 conference." Pl.'s Reply, at *1 [Doc. #108]. During the pendency of this litigation, plaintiff has filed three amended complaints and the Court has ruled on two fully-briefed motions to dismiss with supplemental memoranda and notices filed by the parties. It is within the discretion of the district court to issue a scheduling order and allow for the commencement of discovery after resolution of a pending motion to dismiss.
Facial challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for relief, should  be resolved before discovery begins. Such a dispute always presents a purely legal question; there are no issues of fact because the allegations contained in the pleading are presumed to be true. Therefore, neither the parties nor the court have any need for discovery before the court rules on the motion.
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (internal citation omitted). After defendants filed their answer to the third amended complaint, the Court ordered the parties to submit a joint proposed scheduling plan for the purposes of commencing discovery. Neither party has done so.
Furthermore, the purpose of discovery is not to assist a plaintiff in articulating a plausible claim in drafting the complaint, but rather to allow parties to determine whether evidence exists to support a stated claim. "Discovery should follow the filing of a well-pleaded complaint. It is not a device to enable a plaintiff to make a case when [its] complaint has failed to state a claim." Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir. 1981); see also Brown v. Ameriprise Fin. Servs., Inc., 276 F.R.D. 599, 605 (D. Minn. 2011) ("A plaintiff must adequately plead a claim before obtaining discovery, not the other way around. [D]iscovery is not to be used to find a cause of action.") ...