Davit, John J. v. Davit, Cathy C. , 173 F. App'x 515 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006*
Decided March 29, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1061
JOHN J. DAVIT, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 C 4883
CATHY C. DAVIT, et al.,
Defendants-Appellees. Mark R. Filip,
Judge.
ORDER
John Davit filed a lawsuit in federal district court under the Racketeer
Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962, seeking
damages for conduct during earlier state-court divorce proceedings. The district
court dismissed the suit for lack of jurisdiction under the Rooker-Feldman doctrine.
*
On January 23, 2006, we granted William J. Stogsdill, Jr.’s motion for non-
involvement. Accordingly, this appeal has been submitted without the filing of a brief
by Stogsdill. After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1061 Page 2
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). Alternatively the district court dismissed
the suit under Fed. R. Civ. P. 12(b)(6) for Davit’s failure to state a RICO claim, and
additionally dismissed the state judges who presided over the divorce proceeding on
the basis of judicial immunity. We affirm the dismissal based on the alternate
grounds provided by the district court.
John and Cathy Davit dissolved their marriage in the Circuit Court of
DuPage County, Illinois in 1998. The state appellate court affirmed in 2000, and
the Illinois Supreme Court denied review in 2001. John Davit, apparently
displeased with the outcome of the divorce proceeding, filed a pro se complaint in
federal court in 2003 against his ex-wife, Cathy Davit; two state judges who
presided over the divorce proceedings, Judges Rodney Equi and James Jerz; Mrs.
Davit’s attorney in the divorce proceedings, William Stogsdill, Jr.; one of Mr. Davit’s
own former attorneys from the divorce proceedings, Joseph Glimco III; and the
Village of Lisle.
John Davit claimed that his ex-wife made financial misrepresentations
during the divorce that amounted to fraud. Next he claimed that his ex-wife’s
attorney Stogsdill conspired with the judges in the divorce proceeding in a crooked
plan to control the evidence that was admitted and to overlook evidence of his ex-
wife’s forgery. He also claimed that Stogsdill conspired with the Lisle Police
Department to overlook an alleged assault on Davit’s son by one of his ex-wife’s
friends. Davit claimed that his former attorney Glimco aided Stogsdill in the
“overall extortion and racketeering plan.” Finally he claimed that Judges Equi and
Jerz, who both presided over portions of the state divorce proceedings, misused
their judicial authority in their corrupt administration of the case. In 2004, John
Davit amended his complaint, claiming that the defendants’ collective actions
violated RICO and that the defendants had conspired to financially destroy him by
falsely accusing him of hiding $2 million.
In dismissing Davit’s suit under Rooker-Feldman, the district court reasoned
that John Davit’s alleged injuries “resulted from and are inextricably intertwined
with the state court decisions that he views as unfavorable to him.” It also ruled
that Judges Equi and Judge Jerz enjoy “absolute judicial immunity.”
The court then held that to the extent that the Rooker-Feldman doctrine did
not bar Davit’s federal RICO claims, Davit failed to state a cause of action, see Fed.
R. Civ. P. 12(b)(6). First the court held that Davit did not state a claim under 18
U.S.C. § 1962(a) because he “failed to allege that any of the Defendants have
utilized income received from a pattern of racketeering activity in the operation of
the Circuit Court of DuPage County.” Davit did not state a claim under § 1962(b)
No. 05-1061 Page 3
because he did not allege “that the Defendants acquired or maintained any interest
in the DuPage County Court system.” Davit also failed to state a claim under
§ 1962(c) because, other than the allegations against the judges who were
dismissed, there were no allegations that any of the defendants participated in the
operation or management of the Circuit Court of DuPage County. Finally the court
explained that Davit’s reliance on 18 U.S.C. § 1503 and §§ 1510-13 was also
misplaced. The rulings on these other statutes are not challenged here.
We first address the district court’s dismissal under Rooker-Feldman, the
doctrine under which federal district courts lack jurisdiction over cases brought by
state-court losers who seek review and rejection of state court judgments. See
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 125 S.Ct. 1517, 1521-22 (2005).
John Davit argues that the district court did not lack jurisdiction over his federal
complaint because he was not seeking review or rejection of state court rulings.
Instead he contends that the defendants conspired to deny him an honest tribunal
in his divorce case “with intent toward their extortion plot for the alleged $2 million
of John Davit.” We recently reaffirmed our precedent holding that the Rooker-
Feldman doctrine does not apply to claims that a “defendant in a civil rights suit ‘so
far succeeded in corrupting the state judicial process as to obtain a favorable
judgment.’” Loubser v. Thacker, No. 05-3058, 2006 WL 549011, at *2 (7th Cir. Mar.
8, 2006) (quoting Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995)). And
though Davit’s suit was not brought under § 1983, he raised similar claims of
judicial corruption that went to the heart of the administration and resolution of his
divorce proceedings. Thus, though the state court judgment is related to his RICO
claim, he is not jurisdictionally barred by Rooker-Feldman.
But we affirm the district court’s dismissal based on its alternative holding
that Davit failed to state a RICO cause of action against the defendants. Davit does
not argue that the district court erred in dismissing his RICO suit for failure to
state a legal claim. And we have repeatedly held that, in the case of alternative
holdings, failure to address one of the holdings results in waiver of any claim of
error with respect to the court’s decision on that issue. Hess v. Reg-Ellen Machine
Tool Corp., 423 F.3d 653, 664-65 (7th Cir. 2005); Jones v. Union Pac. R.R., 302 F.3d
735, 741 (7th Cir. 2002); Kauther SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th
Cir. 1998). Davit has thus waived any claim under RICO. Moreover, because Davit
purports to allege fraudulent activity among all defendants, the heightened
pleading requirements of Fed. R. Civ. P. 9(b) apply. Lachmund v. ADM Investor
Services, Inc., 191 F.3d 777, 782 (7th Cir. 1999); Goren, 156 F.3d at 726. And we
agree that the factual particularities that the district court found missing, even
after Davit amended his complaint, doom his RICO claims. See Lachmund, 191
F.3d at 782 (outlining pleading standard for § 1962(a), (c), (d)); Reynolds v. East
No. 05-1061 Page 4
Dyer Development Co., 882 F.2d 1249, 1251 (7th Cir. 1989) (outlining pleading
standard for § 1962(a), (b)).
Additionally the district court correctly dismissed all claims against the two
state judges. Davit concedes that the state judges were properly dismissed based on
judicial immunity, yet he contends that the judges may still be held criminally
liable under RICO. Although RICO created a private civil cause of action to
supplement the government’s criminal enforcement ability, see Goren v. New Vision
International, Inc., 156 F.3d 721, 726 (7th Cir. 1998), Davit cannot bring criminal
charges against anyone. A private individual does not have standing to demand the
criminal prosecution of another individual, let alone standing to prosecute the
individual himself. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Johnson
v. City of Evanston, Ill., 250 F.3d 560, 563 (7th Cir. 2001). Davit cannot circumvent
the judicial immunity doctrine by enforcing a criminal statute through its civil
enforcement provision.
Accordingly, we AFFIRM the district court’s dismissal of Davit’s action
because he failed to state a claim upon which relief could be granted, and because
the judges are absolutely immune.