Jacqueline Wegner v. Wells Fargo Bank, Na ( 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NOT FOR PUBLICATION FILED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
JACQUELINE WEGNER, and as Personal No. 18-16278
Representative of the Estate of Ronile
Russell; RONILE RUSSELL, Deceased, D.C. No.
2:17-cv-01429-JCM-PAL
Plaintiffs-Appellants,
v. MEMORANDUM*
WELLS FARGO BANK, N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted January 21, 2020**
San Francisco, California
Before: W. FLETCHER and R. NELSON, Circuit Judges, and MOLLOY,***
District Judge.
Plaintiff Jacqueline Wegner, personally, and in her role as the representative
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
of her mother’s estate, appeals the district court’s dismissal of her complaint
alleging causes of action for defamation and violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”) against Wells Fargo and former Wells
Fargo executives (the “Individual Defendants”). We review the dismissal of
Wegner’s complaint de novo. Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir.
2016). In doing so, we take all allegations in the complaint as true and construe all
facts in the light most favorable to the nonmoving party. Knievel v. ESPN, 393
F.3d 1068, 1072 (9th Cir. 2005). We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.
1. The district court properly dismissed Wegner’s defamation claim
against all Defendants as barred by the statute of limitations. Regardless of
whether Nevada or California law applies, Wegner’s claim—which was filed
almost three years after Wegner became aware of the alleged defamatory
statement—is barred. Nev. Rev. Stat. § 11.190(4)(c) (two-year statute of
limitations); Cal. Civ. Proc. Code § 340(c) (one-year statute of limitations). And
Wegner’s argument that she is entitled tolling because she did not discover Wells
Fargo’s sales tactics until much later is without merit under both Nevada and
California law. Wegner was on notice of the core facts supporting her defamation
claim as of August 13, 2014; therefore, there are no grounds to toll the statute of
limitations. Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1990); Graham v. Hansen,
2
180 Cal. Rptr. 604, 609 (Cal. Ct. App. 1982).
2. The district court also correctly dismissed Wegner’s complaint as to
the Individual Defendants for lack of personal jurisdiction. Wegner does not argue
that the Individual Defendants are subject to general or specific jurisdiction in
Nevada. Instead, she claims that RICO’s nationwide jurisdiction provision in 18
U.S.C. § 1965(b) applies. That provision does not apply in this case, however,
because Wegner failed to allege facts sufficient to show that the court had personal
jurisdiction over at least one of the participants in the alleged multi-district
conspiracy, including via a theory of agency. Butcher’s Union Local No. 498 v.
SDC Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986). Nor has Wegner alleged facts
showing there is no other district in which a court would have personal jurisdiction
over all of the alleged co-conspirators. Id.
3. Finally, the district court correctly dismissed Wegner’s RICO claims
against all Defendants. Wegner’s first RICO cause of action was properly
dismissed because it is based on defamation, which is not a predicate act under
RICO. 18 U.S.C. § 1961(1). And Wegner’s remaining RICO claims, which all
sound in fraud, do not contain allegations meeting the heightened pleading
standard of Federal Rule of Civil Procedure 9(b). Lancaster Cmty. Hosp. v.
Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991).
AFFIRMED.
3