Non-Specific JMOL Motion Waives Unspecified Arguments — Third Circuit Does Not Reach Viability of Intracorporate Conspiracy Doctrine under RICO — Joint and Several RICO Liability

From State Farm Mut. Auto. Ins. Co. v. Lincow, 2011 U.S. App. LEXIS 19185 (3d Cir. Sept. 16, 2011):

Mintz first contends that the District Court erroneously held that he waived or abandoned his request for judgment as a matter of law on all issues. Regarding the other issues aside from RICO distinctiveness, the District Court correctly reasoned that Mintz had failed to make a sufficiently specific motion under Rule 50(a) of the Federal Rules of Civil Procedure at the close of State Farm's case and, therefore, Mintz waived his post-trial arguments for judgment as a matter of law. See Fed. R. Civ. P. 50(a)(2) (A motion for judgment as a matter of law "must specify the judgment sought and the law and facts that entitle the movant to the judgment"); see also Williams v. Runyon, 130 F.3d 568, 571-72 (3d Cir. 1997) ("[A] defendant's failure to raise an issue in a Rule 50(a)(2) motion with sufficient specificity to put the plaintiffs on notice waives the defendant's right to raise the issue in [his] Rule 50(b) motion."). Regarding Mintz's challenge on RICO distinctiveness, the District Court did not err in finding that, although Mintz indicated he would argue this issue in his motion for post-trial relief, he did not argue the issue in his later briefs, thus he abandoned the distinctiveness argument. Accordingly, we hold that the District Court did not err in concluding that Mintz waived or abandoned his arguments for judgment as a matter of law. See Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997) ("[A]n argument consisting of no more than a conclusory assertion . . . will be deemed waived."). ***

[A]s the District Court noted and State Farm urges, the intracorporate conspiracy doctrine is not universally accepted, and it is questionable whether the Defendant's version is completely accurate. See State Farm Mut. Auto. Ins. Co. v. Lincow, 715 F. Supp. 2d 617, 640 (E.D. Pa. 2010) (noting that the Third Circuit has never decided whether the intracorporate conspiracy doctrine bars § 1962(d) claims, that a circuit split exists among other Courts of Appeals on this issue, and that defendants relied on distinguishable precedent in advancing their argument).

Mintz contends that the verdict is defective because it allows for joint and several liability.... Although there is little law directly on point, numerous RICO criminal forfeiture cases indicate that the nature of the RICO offense mandates joint and several liability. See Fleischhauer v. Feltner, 879 F.2d 1290, 1301 (6th Cir. 1989); United States v. Caporale, 806 F.2d 1487, 1506-09 (11th Cir. 1986), cert. denied, 482 U.S. 917 (1987); United States v. Benevento, 663 F. Supp. 1115, 1118-19 (S.D.N.Y. 1987), aff'd, 836 F.2d 129 (2d Cir. 1988) (per curiam).

Note that there is a split in the Circuits as to the viability of the intracorporate conspiracy doctrine. See Joseph, Civil RICO: A Definitive Guide § 15(C) (4th ed. 2010) (the better view is that the doctrine is applicable and bars § 1962(d) RICO claims against a parent corporation and its wholly-owned subsidiary, unless “something more” is alleged).

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