CA1: it wasn't mail fraud, and stop asking for more discovery

Sanchez v. Triple-S Management, No. 06-1925 affirms a grant of summary judgment to the defendants in a civil RICO case.  The plaintiffs lost a number of initial procedural skirmishes, and finally were faced with an Order to Show Cause why summary judgment should not be granted against them.  The plaintiffs essentially responded that they needed experts to analyze the documents (related to the insurance industry) they had, but in doing so they deviated from their prior RICO theory and into a theory which required pleading with particularity under FRCP 9(b).  While the First acknowledges that summary judgment on the court’s own motion is not a road to be traveled lightly, it concludes that the First didn’t err because: 1) there was enough discovery that the parties probably could understand the material facts; and 2) there was an opportunity to be heard on whether there were triable issues of material facts.  In this case, the District court looked right at the testimony of the plaintiffs in their own depositions.  Substantively, look at “Mail or wire fraud [they require] proof of (1) a scheme to defraud based on false pretenses; (2) the defendant's knowing and willing participation in the scheme with the specific intent to defraud; and (3) the use of interstate mail or wire communications in furtherance of the scheme.”  But, substantively, the best the defendants can muster is a “failure to disclose” and in the First that isn’t enough for mail fraud.