Jussi K. Kivisto vs Miller, Canfield, Paddock & Stone, PLC , 413 F. App'x 136 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12654 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 25, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:08-cv-61519-MGC
JUSSI K. KIVISTO,
llllllllllllllllllll l Plaintiff-Appellant,
versus
MILLER, CANFIELD, PADDOCK AND STONE, PLC,
HODGSON RUSS, LLP,
SUSAN I. ROBBINS,
GEOFFREY M. CHIN,
BRIAN K. DUFFEY, et al.,
lllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 25, 2011)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Jussi K. Kivisto, proceeding pro se, appeals from the district court’s dismissal
for failure to state a claim of his civil complaint based on the federal Racketeer
Influenced and Corrupt Organization (“RICO”) statute, 18 U.S.C. § 1961 et seq.; and
42 U.S.C. §§ 1983, 1985(2) and (3). After careful review, we affirm.
We review de novo the district court’s grant of a motion to dismiss under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim, accepting the allegations in the
complaint as true and construing them in the light most favorable to the plaintiff.
American Dental Association v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010).
Under Fed.R.Civ.P. 8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” In Twombly, the
Supreme Court held that:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations, citations,
and alterations omitted). Further, “[f]actual allegations must be enough to raise a
right to relief above the speculative level . . . on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).” Id. (quotations and citations
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omitted). To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face;” when
plaintiffs “have not nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed.” Id. at 570.
In Iqbal, the Supreme Court held that “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. In considering a motion to dismiss, a court should “1) eliminate any
allegations in the complaint that are merely legal conclusions; and 2) where there are
well-pleaded factual allegations, ‘assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.’” American Dental, 605 F.3d at
1290 (quoting Iqbal, 129 S.Ct. at 1950). Further, “courts may infer from the factual
allegations in the complaint ‘obvious alternative explanation[s],’ which suggest
lawful conduct rather than the unlawful conduct the plaintiff would ask the court to
infer.” Id. (quoting Iqbal, 129 S.Ct. 1951-52). Finally, because this is an
interpretation of Rule 8, the Twombly plausibility standard applies to all civil actions.
Id. (citing Iqbal, 129 S.Ct. at 1953).
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Section 1962(c) of the RICO statutes requires that a plaintiff prove that a
defendant participated in the conduct of an enterprise’s affairs “through a pattern of
racketeering activity.” 18 U.S.C. § 1962(c). Thus, to establish a federal civil RICO
violation, the plaintiff must show “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Williams v. Mohawk Indus. Inc., 465 F.3d 1277,
1282 (11th Cir. 2006) (quotation omitted). In addition, plaintiffs in a civil RICO
action must also satisfy the requirements of § 1964(c), which requires (1) a showing
of an injury to “business or property,” and (2) that such injury was “by reason of” the
substantive RICO violation. Id.; 18 U.S.C. § 1964(c). “Racketeering activity” is
defined to include specified predicate acts such as mail fraud and extortion. 18
U.SC.§ 1961(1). In order to prove a pattern of racketeering in a civil RICO case, “a
plaintiff must show at least two racketeering predicates that are related, and that they
amount to or pose a threat of continued criminal activity.” American Dental, 605
F.3d at 1290-91. When a civil RICO claim is brought with respect to a closed period
of time (such as alleged fraud arising from the settlement of a lawsuit), continuity
cannot be shown by allegations of a scheme that lasted only nine months. See
Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1264-67 (11th Cir. 2004) (applying
federal precedent in the context of a Florida RICO claim). An open-ended continuity
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cannot be shown by conclusory allegations that once begun, the alleged misconduct
threatens to continue into the future. Id. at 1267-69.
Extortion is defined as “the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force, violence, or fear, or
under color of official right.” 18 U.S.C. § 1951(b)(2). “Mail or wire fraud occurs
when a person (1) intentionally participates in a scheme to defraud another of money
or property and (2) uses the mails or wires in furtherance of that scheme.” American
Dental, 605 F.3d at 1290 (quotation omitted). Further, RICO allegations based on
predicate acts of mail fraud “must comply not only with the plausibility criteria
articulated in Twombly and Iqbal but also with Fed.R.Civ.P. 9(b)’s heightened
pleading standard, which requires that in alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake.” American Dental,
605 F.3d at 1291 (quotation and alteration omitted). Accordingly, a plaintiff must
allege, as to each defendant, “(1) the precise statements, documents, or
misrepresentations made; (2) the time, place, and person responsible for the
statement; (3) the content and manner in which these statements misled the Plaintiffs;
and (4) what the defendants gained by the alleged fraud.” Id. (quotation omitted).
In a case involving multiple defendants, the complaint must not lump together all of
the defendants, as “the complaint should inform each defendant of the nature of his
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alleged participation in the fraud.” Ambrosia Coal & Constr. Co. v. Morales, 482
F.3d 1309, 1317 (11th Cir. 2007) (quotation omitted).
Section 1962(d) of the RICO statutes make it illegal for anyone to conspire to
violate one of the substantive provisions of RICO, including § 1962(c). 18 U.S.C. §
1962(d). “A plaintiff can establish a RICO conspiracy claim in one of two ways: (1)
by showing that the defendant agreed to the overall objective of the conspiracy; or (2)
by showing that the defendant agreed to commit two predicate acts.” American
Dental, 605 F.3d at 1293 (quotation omitted). Further, “[t]o be guilty of conspiracy,
. . . parties must have agreed to commit an act that is itself illegal -- parties cannot be
found guilty of conspiring to commit an act that is not itself against the law.”
Jackson, 372 F.3d at 1269 (quotation omitted).
To succeed on 42 U.S.C. § 1983 claim, a party must establish that the offending
conduct was committed by a person acting under color of state law and that the
conduct deprived him of rights secured by the Constitution or laws of the United
States. Fullman v. Graddick, 739 F.2d 553, 561 (11th Cir. 1984). A plaintiff
claiming a conspiracy under § 1983 must make particularized allegations that a
conspiracy exists. See Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir.1984). A
private party can be viewed as a “state actor” for § 1983 purposes “[o]nly in rare
circumstances.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). Following
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Iqbal, “complaints in § 1983 cases must now contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery under
some viable legal theory.” Randall v. Scott, 610 F.3d 701, 708 n.2 (11th Cir. 2010)
(quotation omitted).
Section 1985 covers conspiracies to interfere with civil rights. See 42 U.S.C.
§ 1985. “The purpose of § 1985 was to stifle the serious class-based deprivation of
constitutional rights by private parties, not to serve as a general federal tort law.”
Trawinski v. United Technologies, 313 F.3d 1295, 1299 (11th Cir. 2002). Section
1985(2) provides a cause of action for obstruction of justice where “two or more
persons conspire for the purpose of impeding, hindering, obstructing, or defeating,
in any manner, the due course of justice in any State or Territory, with intent to deny
to any citizen the equal protection of the laws . . . .” 42 U.S.C. § 1985(2).
Section 1985(3) provides a remedy for a conspiracy to interfere with civil
rights. See 42 U.S.C. § 1985(3). To state a claim under § 1985(3), a plaintiff must
allege: (1) a conspiracy; (2) for the purpose of depriving a person or class of persons
of the equal protection of the laws, or of equal privileges and immunities under the
laws; and (3) an act in furtherance of the conspiracy, (4) resulting in an injury to
person or property, or a deprivation of any right or privilege of a citizen of the United
States. Childree v. UAP/GA AG CHEM, Inc., 92 F.3d 1140, 1146-47 (11th Cir.
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1996). To prove the second element, the plaintiff must show that the deprivation of
rights or privileges occurred as a result of “some racial, or . . . otherwise class-based,
invidiously discriminatory animus behind the conspirators’ actions.” Id. at 1147(quotations omitted).
First, because Kivisto failed to sufficiently plead facts that any of the
defendants committed either mail fraud or extortion, the district court did not err in
dismissing his substantive RICO claims. Second, because Kivisto did not plausibly
allege sufficient facts regarding the defendants’ agreement to engage in the ongoing
conduct of an enterprise through a pattern of racketeering activity, the district court
did not err in dismissing his RICO conspiracy claims.
Finally, Kivisto declares that the defendants discriminated against him based
on his Finnish origin, but besides his bare assertions, Kivisto’s second amended
complaint contains no factual allegations showing that his constitutional or civil
rights have been infringed by a conspiracy or otherwise. Thus, the district court did
not err in dismissing his various civil rights claims. Accordingly, we affirm.
AFFIRMED.
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