Paul A. Sims v. the Ohio Casualty Insurance Company

*The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, was present for oral argument, but subsequently recused himself from this case. He took
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0836n.06
Filed: October 11, 2005
No. 03-6398
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAUL A. SIMS; WARREN L. PULLIAM;
JANICE L. PULLIAM; CHAPLIN
INSURANCE AGENCY, INC.; W & J
PULLIAM, INC.; KERRY W. PULLIAM,
Plaintiffs-Appellants,
v.
THE OHIO CASUALTY INSURANCE
COMPANY; NELSON BANCORP, INC.;
PEOPLE’S STATE BANK; JAMES O.
KING, JR.; BARNETT BANK OF
TAMPA, N.A., also known as Bank of
America; PRUDENTIAL INSURANCE
C O M P A N Y O F A M E R I C A ;
PRUDENTIAL BACHE-SECURITIES,
INC., also known as Prudential Securities,
Incorporated; U.S. MORTGAGE &
TRUST COMPANY, INC.; J.R. HORN,
also known as Marion A. Horn; FIRST
UNION BANK, N.A., also known as
Atlantic National Bank, also known as
Wachovia Bank, N.A.; UNKNOWN
DEFENDANTS; ATLANTA NATIONAL
BANK, also known as Wachovia Bank,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
AMENDED
Before: BOGGS, Chief Judge; and GIBBONS, Circuit Judge. *

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Sims v. Ohio Casualty Insurance Co., 03-6398
no part in the court’s consideration or decision of the case. Nevertheless, we are still able to decide
this case. See Leaman v. Ohio Dep’t of Mental Retardation & Dev. Disabilities, 825 F.2d 946, 948-
50 (6th Cir. 1987) (en banc) (concluding that one judge’s recusal after oral argument in an en banc
case did not prevent deciding the merits of the appeal); see also Benzon v. Morgan Stanley Distribs.,
Inc., -- F.3d --, 2005 WL 2000927 (6th Cir. Aug. 22, 2005) (deciding case with two-judge panel
when third judge “was present at oral argument but did not take part in the consideration or decision
of the case”); United States v. Ashley, 37 F.3d 678, 678 (D.C. Cir. 1994) (deciding case with two
judges as one judge who was present for oral argument “took no part in its final disposition”);
Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130, 1131 (D.C. Cir. 1994) (same); United States v.
Trammel, 899 F.2d 1483, 1484 (6th Cir. 1990) (deciding case with two-judge panel after third judge
who was present for oral argument resigned).
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JULIA SMITH GIBBONS, Circuit Judge. In the mid-1980s, two agents of Prudential
Insurance Company defrauded Prudential and various other financial institutions. Plaintiff-appellant
Warren Pulliam assisted in the fraud by using his position as President of defendant-appellee People’s
State Bank to certify checks and allow overdrafts at People’s on the two agents’ accounts when he
knew that there were insufficient funds in the accounts to cover those checks. Pulliam was charged
criminally and then convicted for his role in the scheme. He signed a settlement agreement with
People’s and defendant-appellee James King, a director of People’s, agreeing to reimburse People’s
for the loss. Other banks subsequently sued People’s for the losses they incurred. Defendant-appellee
Ohio Casualty Insurance Company eventually paid a settlement on behalf of People’s. Ohio Casualty
sued Pulliam to recoup the amount that it paid in the settlement and obtained a $200,000 jury verdict.
In 2002, Pulliam and the other plaintiffs-appellants (collectively “plaintiffs”) filed suit in Kentucky
state court against Ohio Casualty, People’s, Prudential, King, and the other defendants-appellees in
this action, claiming that the $200,000 judgment awarded to Ohio Casualty was obtained in violation
of various Kentucky state law provisions and in violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq. The case was removed to the federal district

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Sims v. Ohio Casualty Insurance Co., 03-6398
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court. The district court dismissed the plaintiffs’ case for failure to state a claim under RICO and
failure to comply with the RICO statute of limitations. It also resolved some of the state law claims.
Upon motion of the plaintiffs, the district court vacated the portion of its opinion addressing the state
law claims and remanded those claims to the Kentucky state court. The plaintiffs filed a notice of
appeal from the district court’s first opinion, challenging its conclusions on the federal claims (which
did not change in the altered opinion). For the following reasons, we affirm the district court’s
decision.
I.
The plaintiffs first argue that this court does not have jurisdiction to hear their appeal because
the district court did not address all of their claims, such as their claim for declaratory judgment. In
this case, the district court remanded all remaining claims back to the state court. “The remand ends
further action by the district court.” In re Romulus Cmty. Sch., 729 F.2d 431, 440 (6th Cir. 1984).
The order is therefore a final judgment pursuant to 28 U.S.C. § 1291. Id. at 440-41.
II.
The plaintiffs next challenge the district court’s conclusion that their RICO claims were barred
by the statute of limitations. They contend that the limitations period should not have begun to run
because the defendants concealed the pertinent facts necessary for the plaintiffs to know that they had
a RICO claim.
The Supreme Court has imposed a four-year statute of limitations on RICO claims. Agency
Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 156 (1987). The four-year period begins to
run when a party knew, or through exercise of reasonable diligence should have discovered, that the
party was injured by a RICO violation. Rotella v. Wood, 528 U.S. 549, 553-55 (2000).

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Sims v. Ohio Casualty Insurance Co., 03-6398
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The plaintiffs’ complaint bases their RICO claims on the actions of People’s and King in
making Pulliam sign a restitution agreement and option agreement, the actions of People’s and King
in entering into a 1988 settlement agreement with Pulliam, the actions of People’s and Barnett Bank
in settling Barnett’s claim against People’s, and the actions of Ohio Casualty in paying People’s
settlement with Barnett and subsequently obtaining a jury verdict against Pulliam. They allege that
People’s and Ohio Casualty did not disclose the terms of the settlement reached between People’s and
Barnett and that Ohio Casualty failed to properly defend the Barnett action, eventually causing
Pulliam to incur liability. Thus, the sum of plaintiffs’ RICO claims is that the defendants colluded
to deny Pulliam the right to assert his defenses, cross-claims, and counterclaims in the 1992 federal
lawsuit brought by Ohio Casualty against Pulliam.
The plaintiffs argue on appeal that they did not know the amount of money Prudential had paid
Barnett in a settlement and thus could not ascertain whether the sum recovered from Prudential by
Barnett was available as a set-off for the amount Barnett sought to recover from People’s. Because
of this alleged concealment, the plaintiffs claim that they could not have learned of the facts
underlying their cause of action until July 14, 2000, when Ohio Casualty produced a copy of the
settlement agreement, or until April 17, 2002, when the plaintiffs were able to verify the authenticity
of the settlement agreement.
Despite the plaintiffs’ contentions, the district court correctly held that their RICO claims were
barred by the applicable statute of limitations. In April 1997, the plaintiffs filed a lawsuit in the
Middle District of Florida against Ohio Casualty, Barnett, and the Prudential companies. That lawsuit
alleged RICO violations and RICO conspiracy. In the complaint, the plaintiffs alleged that the Ohio
Casualty judgment obtained in 1992 against Pulliam “was a direct and proximate result of the

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conspiracy and collusion of the defendants” to prevent Pulliam from asserting “his available defenses,
cross-claims, and counter-claims.” Specifically, the plaintiffs referenced the various facts, including
that People’s and Ohio Casualty entered into a settlement with Barnett and that People’s did not assert
the defenses available to it against Barnett, forming the basis for the plaintiffs’ current lawsuit before
this court.
Thus, although it is likely that the plaintiffs knew of the facts underlying their RICO claims
as early as 1992 when Ohio Casualty obtained a judgment against Pulliam, at a minimum it is evident
that the 1997 Middle District of Florida litigation set forth RICO claims based on the same underlying
facts as presented in the current case. While the exact amount of the settlement between Ohio
Casualty or People’s and Barnett may not have been known until 2000, the plaintiffs had the
necessary information to file RICO claims in at least 1997, as evidenced by the fact that they did file
a lawsuit under RICO at that time. As this court has held, “the running of the statute of limitations
begins when a plaintiff is put on inquiry notice—that is, when the plaintiff has been presented with
evidence suggesting the possibility of fraud.” Isaak v. Trumbull Sav. & Loan Co., 169 F.3d 390, 399
(6th Cir. 1999) (quotation marks and citation omitted). A plaintiff need only be aware of “storm
warnings” but does not need to “hear[] thunder and see[] lightening.” Id. Even if the plaintiffs did
not know the exact amount of the settlement, such detail was unnecessary as the plaintiffs certainly
were aware of the “storm warnings” underlying their RICO charges. As this court’s precedent makes
clear, the plaintiffs need not be aware of every minute fact underlying their RICO claims. The district
court correctly concluded that the statute of limitations period ended in April 2001 at the latest and

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Sims v. Ohio Casualty Insurance Co., 03-6398
1Because we conclude that the statute of limitations bars the plaintiffs’ RICO claims, we
need not address the plaintiffs’ argument that the district court erred in holding that the plaintiffs
failed to state a claim in their complaint for RICO violations.
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that the plaintiffs’ complaint filed in November 2002 was untimely.1
III.
Next, the plaintiffs contend that the district court should have granted them leave to amend
the complaint to cure the defects identified by the district court in determining that the complaint did
not state a federal cause of action. Initially, we note that the plaintiffs never sought leave to amend
their complaint. The district court was not required to offer the plaintiffs the opportunity to amend
their complaint in lieu of dismissing it. See Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776,
784 (6th Cir. 2000) (noting that “the granting of a defendant’s motion to dismiss does not ordinarily
afford the unsuccessful plaintiffs any ‘opportunity to further clarify their allegations’ with proof and
evidence”). Moreover, even if the plaintiffs had moved to amend, the district court could have
properly denied their motion. The plaintiffs’ complaint was filed outside the statute of limitations
period for RICO claims, and no amendment could have cured this defect.
IV.
Finally, the plaintiffs contend that the case should be remanded to the district court because,
as they concede, defendants J.R. Horn and the United States Mortgage & Trust Company were not
properly served with process. The plaintiffs were responsible for obtaining proper service on these
parties and have not, before this appeal, argued that they were not properly served. They cannot now
use this argument to obtain further review of their case by the district court. In any event, Horn and
United States Mortgage & Trust Company would be entitled to raise the arguments advanced by the

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other defendants in this case, namely that the plaintiffs’ RICO claims were barred by the statute of
limitations. We affirm the district court’s dismissal of the plaintiffs’ complaint as to these two
defendants.
V.
For the foregoing reasons, we affirm the district court’s decision dismissing the plaintiffs’
complaint.

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