James Johnson, et al v. U.S. Bank National Association, et al
Filing
Per Curiam OPINION filed : AFFIRMED, decision not for publication. Martha Craig Daughtrey, Circuit Judge; John M. Rogers, Circuit Judge and Jack Zouhary, U.S. District Judge., NDO--[Edited 12/12/2012 by MMD]
Case: 11-3310
Document: 006111529049
Filed: 12/12/2012
Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1268n.06
No. 11-3310
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 12, 2012
JAMES JOHNSON, KATHY FRY, and
ELLA GEARY, on behalf of themselves
and all others similarly situated,
Plaintiffs-Appellants,
v.
U. S. NATIONAL BANK ASSOCIATION
and NATIONAL CITY BANK,
Defendants-Appellees.
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DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge*.
PER CURIAM. Originally the sole plaintiff in this putative class action, James
Johnson filed a complaint alleging a RICO conspiracy under 18 U.S.C. § 1962(d) by
defendants U. S. National Bank Association and National City Bank. Johnson claimed that
the two banks had maintained accounts for – and conspired with – a commercial customer
that performed “payment processing services” for various telemarketers, with knowledge
that some of those telemarketers were engaged in fraudulent activities, and that he,
Johnson, was a victim of that fraud. The defendants responded with motions to dismiss
under Federal Rule of Civil Procedure 12, and Johnson filed an amended complaint adding
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The Hon. Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by
designation.
Case: 11-3310
Document: 006111529049
Filed: 12/12/2012
Page: 2
No. 11-3310
Johnson v. U.S. National Bank Association
Kathy Fry as a plaintiff. The defendants again filed Rule 12 motions, which the district
court granted, finding that the amended complaint failed to state a RICO claim against
either defendant. However, the district court also allowed Johnson and Fry to file a second
amended complaint and, some six weeks later, a third amended complaint, adding Ella
Geary as a plaintiff. The amendments represented an effort by the plaintiffs to address the
deficiencies in their pleadings that had caused the district court to dismiss the complaint.
To no avail. The defendants refiled their motions to dismiss, and the district court
again ordered a dismissal, this time with prejudice. In a careful and well-analyzed
discussion of the pleadings under the applicable standards announced in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
district court noted that the plaintiffs had not alleged that the defendants had themselves
engaged in fraudulent activity, but claimed instead that bank officials “knew about the
operation of th[e] criminal enterprise based on several indicators, or
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