Scott McMillan v. Darren Chaker ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT A. MCMILLAN; THE No. 17-56676
MCMILLAN LAW FIRM, APC,
D.C. No.
Plaintiffs-Appellants, 3:16-cv-02186-WQH-MDD
v.
MEMORANDUM*
DARREN D. CHAKER, DBA Counter
Forensics, an individual, and as trustee of
PLATINUM HOLDINGS GROUP TRUST;
et al.,
Defendants-Appellees.
SCOTT A. MCMILLAN; THE No. 18-55343
MCMILLAN LAW FIRM, APC,
D.C. No.
Plaintiffs-Appellees, 3:16-cv-02186-WQH-MDD
v.
NICOLE CHAKER, an individual, and as
trustee of THE NICOLE CHAKER
REVOCABLE LIVING TRUST, U/A dated
August 18, 2010,
Defendant-Appellant.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted January 7, 2020
Pasadena, California
Before: WATFORD, BENNETT, and LEE, Circuit Judges.
Plaintiffs Scott McMillan and The McMillan Law Firm appeal the dismissal
of their Racketeer Influenced and Corrupt Organizations Act (RICO) claims and
the district court’s decision that Plaintiffs failed to personally serve Vania Chaker.
Defendant Nicole Chaker cross-appeals the district court’s decision to decline
supplemental jurisdiction over Plaintiffs’ state law civil extortion claim and to
deny as moot her anti-SLAPP motion to strike the state law claim and for an award
of attorneys’ fees.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review the
dismissal of Plaintiffs’ RICO claims de novo, construing material facts in the
complaint as true and in the light most favorable to the nonmoving parties. See
Howard v. Am. Online Inc., 208 F.3d 741, 746 (9th Cir. 2000). “A district court’s
refusal to exercise supplemental jurisdiction is reviewed for abuse of discretion.”
Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001).
Plaintiffs’ First Amended Complaint (FAC) alleges a substantive RICO
violation against Darren Chaker based on the predicate act of extortion and a RICO
conspiracy violation against all Defendants. To qualify as a predicate act of
2
extortion supporting a violation of 18 U.S.C. § 1962(c), “the conduct must be
capable of being generically classified as extortionate.” Scheidler v. Nat’l Org. for
Women, Inc., 537 U.S. 393, 409 (2003). The generic definition of extortionate
conduct is “obtaining something of value from another with his consent induced by
the wrongful use of force, fear, or threats.” United Bhd. of Carpenters & Joiners
of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 843 (9th Cir.
2014) (quoting United States v. Nardello, 393 U.S. 286, 290 (1969)).
Plaintiffs failed to allege extortionate conduct because there are no
allegations that Darren Chaker obtained property from Plaintiffs that he could
“exercise, transfer, or sell.” See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also
fails because there are no allegations to support the “with [Plaintiffs’] consent”
element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843. Indeed,
the FAC expressly states that Darren Chaker used Plaintiffs’ names and logo
without their consent. Thus, the district court properly dismissed the substantive
RICO violation claim.
The district court also properly dismissed the conspiracy claim because the
“failure to adequately plead a substantive violation of RICO precludes a claim for
conspiracy.” Howard, 208 F.3d at 751. Because we conclude that the RICO
conspiracy claim was properly dismissed and that was the only claim brought
against Vania Chaker, we need not decide whether the district court erred by
3
determining that Plaintiffs failed to personally serve Vania Chaker with the FAC.
As for Nicole Chaker’s cross-appeal, the district court did not abuse its
discretion by refusing to exercise supplemental jurisdiction over the remaining
state law claim after properly dismissing the RICO claims. See 28 U.S.C.
§ 1367(c)(3); Ove, 264 F.3d at 826. And without a state law claim, it was proper
for the district court to decline to address the anti-SLAPP motion. See Hilton v.
Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only
entertain anti-SLAPP special motions to strike in connection with state law claims .
. . .”). In any case, Nicole Chaker waived the arguments she makes on cross-
appeal because she failed to raise them below. See Broad v. Sealaska Corp., 85
F.3d 422, 430 (9th Cir. 1996). Nothing in her motion to dismiss or anti-SLAPP
motion alerted the district court that it should retain jurisdiction over the state law
claim and rule on her anti-SLAPP motion should the court dismiss the RICO
claims.
The parties shall bear their own costs on appeal.
AFFIRMED.1
1
We DENY Darren Chaker’s Motion to Strike Volume Eight of the Excerpts of
Record and All References Thereto. Dkt. No. 134.
4