## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTHUR DURAN,

Plaintiff-Appellant,

v. DEAN CARRIS; DOS GRIEGOS CORPORATION; DOS GRIEGOS LIMITED, Defendants-Appellees. No. 00-2114

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-98-1508-JP)

Submitted on the briefs: Arthur Duran, Pro Se. Joseph F. Canepa of Canepa, Vidal, Ahern & Hyatt, S anta Fe, New Mexico, for Defendants-Appellees.

Before BALDOCK , ANDERSON , and HENRY , Circuit Judges.

PER CURIAM

.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- Plaintiff-appellant Arthur Duran appeals the distri ct court’s order granting defendants’ motion to dismiss his second amended co mplaint for failure to state a claim upon which relief can be granted pursuant t o Fed. R. Civ. P. 12(b)(6). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1

I. Because, in his brief, plaintiff failed to provide this court with a complete recitation of the underlying facts of this case, th e following depiction of the factual background is gleaned from the district cou rt’s order, Mr. Duran’s second amended complaint, and defendants’ brief. In 1995, defendants were seeking to build a subdivision on property adjacent to that ow ned by Mr. Duran. An easement and boundary dispute arose and defendants refused to accept a surveyor’s report obtained by Mr. Duran to settle the dispute. When Mr. Duran threatened defendants with a lawsuit, defendant Dea n Carris allegedly threatened to tie him up in court disputes for ten years. At the time this dispute arose, Mr. Duran sat on th e county subdivision review committee that was considering defendants’ application for approval of the-3-

planned subdivision. Mr. Duran alleged that while he was still serving on this committee, Mr. Carris attempted to bribe him by off ering to sell him the disputed land at a favorable price in return for his vote an d influence with the committee to gain approval for the subdivision. Mr Duran also a lleged that Mr. Carris blamed him for the fact that the approval had been delayed and threatened him in order to prevent him from speaking out against the subdivisi on. Mr. Duran averred that Mr. Carris, wearing dark glasses and smoking a cigar, told him that if they were in Chicago, “he wouldn’t be around.” R. Vol. 1, ta b 39 at 5-6. In October 1995, Mr. Duran filed suit in New Mexico state court over the property dispute. Defendants counterclaimed, a lleging trespass because Mr. Duran was building a rock wall on land allegedl y owned by defendants. Defendants ultimately quitclaimed the disputed prop erty to Mr. Duran and dismissed their counterclaim. In 1997, Mr. Duran filed a second lawsuit in New Me xico state court seeking to reform his deed and to quiet title to th e disputed property that was the subject of the 1995 lawsuit. He claimed that this second lawsuit was necessary because defendants had prevented him from litigatin g these issues in the first lawsuit. Again defendants counterclaimed, alleging slander of title based on
Mr. Duran’s lis pendens on the property, and for abuse of process. In the summer of 1998, the district court granted defendants’ mot ion for summary judgment, and-4-

defendants dismissed their counterclaims. At the t ime of this appeal, Mr. Duran was in the process of appealing this state court de cision. On December 10, 1998, Mr. Duran filed his first complaint in federal district court. The complaint at issue here, his s econd amended complaint, was filed on October 8, 1999. In this complaint, Mr. D uran alleged that defendants’ actions, by and through Mr. Carris, violated the Ra cketeer Influenced and Corrupt Organizations Act of 1970 (RICO), 18 U.S.C. §§ 1961 -68, and a number of state laws. The district court granted defendants’ motio n to dismiss, concluding that Mr. Duran’s second amended complaint failed to stat e a claim under RICO, and declining pendant jurisdiction over Mr. Duran’s state law claims. In so doing, the court determined that Mr. Duran failed to establish a pattern of racketeering or that the alleged predicate acts posed a threat of c ontinued criminal activity. The court concluded that the matter was basically “a bo undary dispute and a dispute over prescriptive rights between adjoining landowne rs,” which was settled and unlikely to occur again. R. Vol. 1, tab 51 at 8. Mr. Duran appeals.

II. “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, b ut to assess whether the plaintiff’s complaint alone is legally sufficient t o state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226,-5-

1236 (10th Cir. 1999) (quotation omitted). The leg al sufficiency of a complaint is a question of law; hence, a Rule 12(b)(6) dismissal is reviewed de novo. Id. In reviewing the district court’s decision we accep t as true all well-pleaded allegations in the complaint and construe them in f avor of the nonmoving party. Id. “Granting defendant’s motion to dismiss is a hars h remedy which must be cautiously studied, not only to effectuate the spir it of the liberal rules of pleading but also to protect the interests of justice.” Cottrell, Ltd. v. Biotrol Int’l, Inc. , 191 F.3d 1248, 1251 (10th Cir. 1999) (quotations om itted). Section 1962(c) of RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or th e activities of which affect, interstate or foreign commerce, to conduct or parti cipate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” RICO defines “pattern of racketeering activity” as requiring “at least two acts of racketeering act ivity” within a ten-year period. Id. § 1961(5). In his complaint, Mr. Duran alleges that defendants engaged in a pattern of racketeering activity including extortion and bribe ry. In order to satisfy RICO’s pattern requirement, Mr. Duran must show two elements--“a relationship between the predicates” and “the threat of continuing activity.” H.J. Inc. v. Northwestern Bell Tel. Co. , 492 U.S. 229, 239 (1989) (quotation omitted). Interpreting RICO’s-6-

legislative history, the Supreme Court stated that the pattern element is not satisfied by a showing of relatedness alone. Id. at 240. “[I]t must also be shown that the predicates themselves amount to, or that t hey otherwise constitute a threat of, continuing racketeering activity.” Id. Mr. Duran has alleged two predicate acts--bribery and extortion. He claims that Carris’s offer to sell him the disputed land i n exchange for his favorable consideration of defendants’ application for approv al of the subdivision constituted bribery. He further contends that Mr. Carris committed extortion when he threatened Mr. Duran with bodily injury in order to prevent him from speaking out against the subdivision, when he threatened to tie him up in court for ten years, and when he filed counterclaims in Mr. D uran’s two lawsuits. The district court concluded, and we agree, that, e ven if the acts Mr. Duran alleged are related as part of a common scheme, he has failed to show that they pose a threat of continuing criminal activity. At best, what Mr. Duran alleged is “actually a closed-ended series of predicate act s constituting a single scheme . . . to accomplish a discrete goal [approva l of the subdivision] directed at a finite group of individuals [Mr. Duran] ‘with no potential to extend to other persons or entities.’” Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1556 (10th Cir. 1992) ( quoting Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1516-7-

(10th Cir. 1990)). Therefore, “[t]hey do not . . . satisfy the H.J. Inc. test of continuity.” Id. We reject Mr. Duran’s argument that, because, in 19 95, Mr. Carris threatened to keep him involved in litigation for t en years, the threat of continued criminal activity is met. Mr. Duran initiated all of the litigation surrounding this dispute, and it appears that, except for Mr. Duran’ s state court appeal of the grant of summary judgment in his last action, the litigat ion is complete. At most, what Mr. Duran alleged is a property dispute which turne d hostile at times. He has not, however, alleged the type of long-term criminal act ivity envisioned by Congress when it enacted RICO. Therefore, the district court’s grant of defendants’ motion to dismiss Mr. Duran’s RICO claims in his second am ended complaint was appropriate.

III. Lastly, we address defendants’ request for sanction s alleging that Mr. Duran’s pro se brief was actually “ghost-written” b y his former attorney, Harry Snow. We issued a show cause order requesting thatMr. Duran and Mr. Snow show cause as to why this court should not sanctionthis behavior. We have received and considered the parties’ response. This court is concerned with attorneys who “author[ ] pleadings and necessarily guide[] the course of the litigation with an unseen hand.” Johnson-8-

v. Bd. of County Comm’rs , 868 F. Supp. 1226, 1231 (D. Colo. 1994). Fed. R. Civ. P. 11(a) requires that “[e]very pleading, written m otion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or if the party is not represented by an attorney, shall be signed by the party.” Mr. Snow’s actions in providing substantial legal a ssistance to Mr. Duran without entering an appearance in this case not only afford s Mr. Duran the benefit of this court’s liberal construction of pro se pleadings, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), but also inappropriately shield s Mr. Snow from responsibility and accountability for his actions and counsel. As stated in a recent law review article: The duty of candor toward the court mandated by Mod el Rule 3.3 is particularly significant to ghostwritten ple adings. If neither a ghostwriting attorney nor her pro se litigant cli ent disclose the fact that any pleadings ostensibly filed by a self-repre sented litigant were actually drafted by the attorney, this could itself violate the duty of candor. The practice of undisclosed ghostwriting m ight be particularly problematic in light of the special le niency afforded pro se pleadings in the courts. This leniency is d esigned to compensate for pro se litigants’ lack of legal assi stance. Thus, if courts mistakenly believe that the ghostwritten ple ading was drafted without legal assistance, they might apply an unwar ranted degree of leniency to a pleading that was actually drafted wi th the assistance of counsel. This situation might create confusion forthe court and unfairness toward opposing parties. It is therefor e likely that the failure to disclose ghostwriting assistance to courts and opposing parties amounts to a failure to “disclose a materia l fact to a tribunal when disclosure is necessary to avoid assisting a c riminal or fraudulent act by the client,” which is prohibited by Model Rule 3.3. Undisclosed ghostwriting would also likely qualify as professional misconduct under Model Rules 8.4(c) and (d), prohib iting conduct-9-

involving a misrepresentation, and conduct that is prejudicial to the administration of justice, respectively. John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687, 2697 (1999) ( citing Model Rules of Prof’l Conduct R 3.3(a)(2)) (footnot es omitted). It is disingenuous for Mr. Duran and Mr. Snow to ar gue that ghost writing represents a positive contribution such as reduced fees or pro bono representation. Either of these kinds of professional representatio n are analogous to the concept of rescue in the field of torts. A lawyer usually has no obligation to provide reduced fee or pro bono representation; that is a m atter of conscience and professionalism. Once either kind of representatio n is undertaken, however, it must be undertaken competently and ethically or lia bility will attach to its provider. Competence requires that a lawyer conduct a reasona ble inquiry and determine that a filed pleading is not presented fo r an improper purpose, the positions taken are nonfrivolous, and the facts pre sented are well grounded. Fed. R. Civ. P. 11(b). Ethics requires that a lawy er acknowledge the giving of his advice by the signing of his name. Besides the imprimatur of professional competence such a signature carries, its absence re quires us to construe matters-10-

differently for the litigant, as we give pro se lit igants liberal treatment, precisely because they do not have lawyers. See Haines, 404 U.S. at 520-21. We determine that the situation as presented here c onstitutes a misrepresentation to this court by litigant and attorney. See Johnson , 868 F. Supp. at 1231-32 (strongly condemning the pr actice of ghost writing as in violation of Fed. R. Civ. P. 11 and ABA Model Co de of Professional Responsibility DR 1-102(A)(4)). Other jurisdiction s have similarly condemned the practice of ghost writing pleadings. See, e.g., Ellis v. Maine , 448 F.2d 1325, 1328 (1st Cir. 1971) (finding that a brief, “prepar ed in any substantial part by a member of the bar,” must be signed by him); Ellingson v. Monroe (In re Ellingson) , 230 B.R. 426, 435 (Bankr. D. Mont. 1999) (finding “[g]host writing” in violation of court rules and ABA ethics); Wesley v. Don Stein Buick, Inc. , 987 F. Supp. 884, 885-86 (D. Kan. 1997) (expressing legal and ethical concerns regarding the ghost writing of pleadings by attorneys); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr. , 968 F. Supp. 1075, 1077 (E.D. Va. 1997) (finding it “improper for lawyers to draft orassist in drafting complaints or other documents submitted to the Court on behalf of litigants designated as pro se”); United States v. Eleven Vehicles , 966 F. Supp. 361, 367 (E.D. Pa. 1997) (finding that ghost writing by attorney for pro se litigant implicates attorney’s duty of candor to the court, interferes with the co urt’s ability to supervise the2 “[A]ttorneys must recognize that if they continue t o provide assistance to

an ostensibly pro se litigant throughout the course of the litigation, then disclosure of drafting assistance alone would be in sufficient to satisfy their obligations to the court.” Rothermich, supra at 2712 & n.211. -11- litigation, and misrepresents the litigant’s right to more liberal construction as a pro se litigant). We recognize that, as of yet, we have not defined w hat kind of legal advice given by an attorney amounts to “substantial” assis tance that must be disclosed to the court. Today, we provide some guidance on the matter. We hold that the participation by an attorney in drafting an appellate brief is per se substantial, and must be acknowledged by signature. 2 In fact, we agree with the New York City Bar’s ethics opinion that “an attorney must refuse to provide ghostwriting assistance unless the client specifically commits h erself to disclosing the attorney’s assistance to the court upon filing.” Rothermich, supra at 2712 ( citing Committee on Prof’l and Judicial Ethics, Ass’n of the Bar of the City of New York, Formal Op. 1987-2 (1987)). We caution, howev er, that the mere assistance of drafting, especially before a trial court, will not totally obviate some kind of lenient treatment due a substantially pro se litigant. See id. at 2711-12. We hold today, however, that any ghostwriting of an otherwi se pro se brief must be acknowledged by the signature of the attorney invol ved.3 “It is also important to recognize the Model Rule 1 .16, generally

prohibiting withdrawal that would materially harm the client’s interest, is of particular importance to any analysis of ghostwriting.” Rothermich, supra at 2697. -12- Finally, in response to this court’s show cause ord er, Mr. Snow claimed the high ground for “representing” Mr. Duran on app eal at a reduced fee. He suggests that his representation of Mr. Duran in th e trial court afforded him enough familiarity with the case to be able to offe r Mr. Duran assistance with his appeal at a much reduced fee. We note the irony in Mr. Snow’s rationalization that he should be commended for assisting Mr. Duranon appeal at a reduced rate and yet failing to continue that representation on appeal, or to even acknowledge that some form of assistance was given. 3 We do not allow anonymous testimony in court; nor does this circuit allow ghostwritten briefs. Therefore, we admonish Mr. Snow that this behavior will not be tolerated b y this court, and future violations of this admonition will result in the po ssible imposition of sanctions. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.