Rolle v. Houston et al
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the motions to dismiss filed by Defendant Bell, Houston, Smith, and Matthews are GRANTED; Count I of plaintiff's complaint is DISMISSED with prejudice; Counts II through VI of plaintiff's co mplaint are DISMISSED, but without prejudice, Plaintiff's Motion to Alter or Amend is DENIED, and his Motion to Strike is DENIED as moot; Defendant Bell and Montgomery's Joint Motion to Compel Plaintiff's Deposition is DENIED as moot as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/28/2014. (AHI )
2014 Mar-28 PM 01:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
DOROTHY HOUSTON, et al.,
Civil Action No. CV-12-S-3313-NE
MEMORANDUM OPINION AND ORDER
Plaintiff, Dr. Kevin Rolle, asserts claims for violations of the Racketeer
Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§ 1961 et seq.
(“RICO”) (Count I), as well as state-law claims of defamation, negligence,
wantonness/recklessness, invasion of privacy/false light, and common law civil
conspiracy (Counts II through VI).1 The six-count complaint names five individuals
as defendants: i.e., Kevin Matthews; James Montgomery; Tony Smith; Dorothy
Houston; and Tom Bell.2 The gravamen of plaintiff’s complaint is that those
defendants conspired “to systematically destroy the personal and professional
reputation of [plaintiff] by distributing documents which they knew, or should have
known, were false as the result of an intentional alteration.”3
See doc. no. 3 (Amended Complaint).
See id. ¶¶ 3–7.
Id. ¶ 1 (alteration supplied).
Between October 19, 2012, and January 25, 2013, each defendant filed a
responsive motion to plaintiff’s Amended Complaint. Thereafter, on July 19, 2013,
the court entered a Memorandum Opinion and Order holding that
defendant James Montgomery’s motion to dismiss the claims against
him is GRANTED. All claims asserted by plaintiff against James
Montgomery are DISMISSED with prejudice. Defendant Tom Bell’s
motion for a more definite statement of Count I is also GRANTED.
Plaintiff is ORDERED to file, on or before July 26, 2013, a more
definite statement of that Count in the form of a RICO case statement,
as stated above.
Defendant Kevin Matthews’s motion to dismiss is DENIED.
Defendant Dorothy Houston’s motion to dismiss Count I is DENIED as
moot. Defendant Tony Smith’s motion to dismiss is DENIED as to
Counts II through VI, and DENIED as moot as to Count I. The motion
for a protective order filed jointly by defendants James Montgomery and
Tom Bell is DENIED as moot.4
Plaintiff filed a revised RICO case statement on July 26, 2013,5 alleging that
“[t]he Defendants and other, unknown individuals acted as an enterprise and engaged
in a campaign, primarily through electronic mail, to spread false information about
the Plaintiff in an attempt to have his employment terminated for their own financial
benefit.”6 Plaintiff further alleged that such actions: “constitute violations of wire
Doc. no. 52 (Memorandum Opinion and Order), at 25 (footnotes omitted).
Doc. no. 53 (Plaintiff’s RICO Case Statement).
Id. at ECF 4–5. “ECF” is the acronym for “Electronic Case Filing,” a system that allows
parties to file and serve documents electronically. See Atterbury v. Foulk, No. C-07-6256 MHP,
2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 permits citations to the
“page numbers generated by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5
fraud under 18 U.S.C. § 1343”; “form the pattern of racketeering and are the basis of
Kevin Matthews’[s,] Tony Smith’s, Dorothy Huston’s [sic] and Tom Bell’s violation
of 18 U.S.C. § 1962(c)”; and “constitute the primary overt acts taken in furtherance
of the conspiracies under 18 U.S.C. § 1962(d).”7
The remaining parties to the case subsequently filed additional motions that are
now before the court. Defendants Bell, Houston, Smith, and Matthews have each
filed separate motions to dismiss Count I of plaintiff’s complaint — i.e., plaintiff’s
revised RICO case statement — for failing to state a claim upon which relief can be
granted.8 Defendant Bell and former defendant James Montgomery have also filed
a joint motion to compel the deposition of plaintiff.9 Finally, plaintiff has filed a
(D.D.C. 2011) (citing The Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law
Review Ass’n et al., 19th ed. 2010)). Even so, the Bluebook recommends “against citation to ECF
pagination in lieu of original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated
otherwise, this court will cite the original pagination in the parties’ pleadings. When the court cites
to pagination generated by the ECF header, it will, as here, precede the page number with the letters
Doc. no. 53 (Plaintiff’s RICO Case Statement), at ECF 4 (alterations supplied).
Doc no. 54 (“Defendant, Tom Bell’s, Motion to Dismiss”); doc. no. 59 (“Motion to
Dismiss” filed by Dorothy Houston); doc. no. 61 (“Defendant, Tony Smith’s, Motion to Dismiss”);
doc. no. 67 (“Defendant, Kevin Matthews’. [sic] Motion to Dismiss”). All defendants also assert
that the entirety of plaintiff’s complaint should be dismissed, but only defendants Houston and Smith
provide an argument as to why: i.e., if the court dismisses plaintiff’s RICO claim, “the Court will
no longer have subject-matter jurisdiction over the state claims.” Doc. no. 61 (Motion to Dismiss
filed by Tony Smith), at 1; see also doc. no. 59 (Motion to Dismiss filed by Dorothy Houston), at
2 n.1 (“Should this Court find that the RICO claim is due to be dismissed for failure to state a claim,
the entire Complaint should be dismissed for lack of subject matter jurisdiction.”). That argument
will be addressed in Part III.C, infra.
Doc. no. 68.
“Motion to Alter or Amend” the court’s order dismissing defendant James
Montgomery, as well as a motion to strike an exhibit attached to defendant Houston’s
motion to dismiss.10
Upon consideration of the motions, briefs, and legal authorities, this court
concludes that all defendants’ motions to dismiss are due to be granted. Plaintiff’s
“Motion to Alter or Amend” is due to be denied. Defendants Bell and Montgomery’s
joint motion to compel and plaintiff’s motion to strike are due to be denied as moot.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” That rule
must be read in conjunction with Rule 8(a), which requires that a pleading contain
only a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). While that pleading standard does not require
“detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), it does demand “more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
Doc. no. 62 (Motion to Alter or Amend); doc. no. 63 (Response to the Second Motion to
Dismiss Filed by Dorothy Huston [sic] and Motion to Strike Exhibit A to the Motion).
is plausible on its face.” [Twombly, 550 U.S.] at 570. A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id., at 556. The plausibility standard is not akin to
a “probability requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied). A plaintiff is required to provide “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557). But when “there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id. at 679.
II. FACTS AS ALLEGED
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453 (2006)] (stating that on a motion
to dismiss, the court must “accept as true the factual allegations in the
amended complaint”); Marsh v. Butler County, 268 F.3d 1014, 1023
(11th Cir. 2001) (en banc) (setting forth the facts in the case by
“[a]ccepting all well-pleaded factual allegations (with reasonable
inferences drawn favorably to Plaintiffs) in the complaint as true”).
Because we must accept the allegations of plaintiff’s complaint as true,
what we set out in this opinion as “the facts” for Rule 12(b)(6) purposes
may not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
Plaintiff, Kevin Rolle, is the Executive Vice President of Alabama A&M
University (“the University”).11
All defendants are now — or have at various times in the past been — affiliated
with the University in some capacity. For example, defendant Kevin Matthews is a
compliance officer with the University’s Research Institute.12 The Institute assists the
University in obtaining research contracts.13 Defendant Dorothy Houston is a former
professor and vice president at the University, and owns Technical Management
Training Group, Inc.14 That company receives contracts from the University’s
Research Institute.15 Defendant Tom Bell is a former member of the Board of
Trustees, and a current member of the Board of Directors of the Research Institute.16
Doc. no. 3 (Amended Complaint) ¶ 16.
Id. ¶ 17.
Id. ¶ 20.
Doc. no. 3 (Amended Complaint) ¶ 21.
Defendant Tony Smith is an “active participant” in the University’s Alumni
Plaintiff’s Underlying Conviction and the Subsequent Clerical Error
Plaintiff pled guilty in the United States District Court for the Middle District
of Georgia on December 12, 2008 to the offense of “Less Than Safe Driving —
Alcohol Use,” a crime that occurred while he was operating a motor vehicle on a
United States military installation.18 A clerical error caused the record of the
conviction to incorrectly reflect that plaintiff had pled guilty to driving under the
influence of marijuana.19 That error was subsequently corrected, but the notation of
the clerk’s error only appeared on a single page of court records.20
The “Altered” Conviction Records
One or more of the defendants created a group e-mail account in the Fall of
2010 for the purpose of sharing “information among themselves and disseminat[ing]
false and/or misleading information without fear of reprisal.”21 Defendant Matthews
obtained a copy of plaintiff’s 2008 guilty plea and distributed the records to the other
Id. ¶ 19.
Id. ¶ 24.
Id. ¶ 25.
Id. ¶ 26.
Id. ¶ 23 (alteration supplied).
defendants through his personal email account.22 The distributed records were
“altered” by omitting the notation correcting the initial clerical error.23 Thus, the
altered records reflected only the original error that plaintiff pled guilty to driving
under the influence of marijuana.24 Plaintiff alleges that defendants knew that the
records were altered,25 and that they conspired to promulgate the erroneous
information in order to damage plaintiff’s reputation and employment.26
Subsequently, defendants Matthews, Houston, and Smith further disseminated
the altered records via e-mail to “numerous individuals,” including Alabama State
Representative Mike Ball and Alabama Governor Robert Bentley.27 They also sent
the records to the Mayor of Huntsville, the University’s Alumni Association, and
members of the Madison County Commission, the Huntsville City Council, and the
North Alabama Legislative delegation.28
Defendant Bell sent a memorandum to Velma Tribute, the Secretary of the
Alabama A&M Board of Trustees, on June 4, 2011, “requesting an opportunity to
Doc. no. 53 (Plaintiff’s RICO Case Statement), at ECF 5–6.
Id. at ECF 6.
Doc no. 3 (Amended Complaint) ¶ 30.
Id. ¶¶ 40, 68.
Doc. no. 53 (Plaintiff’s RICO Case Statement), at ECF 6–7.
Doc. no. 3 (Amended Complaint) ¶ 31.
present to the board an issue as to the character of one of our VP’S [sic] concerning
a DUI and driving under the influence of marijuana in Georgia . . . .”29 Defendant
Smith transmitted the records to the State of Alabama School Board through his
personal e-mail account,30 and defendant Matthews distributed them to media
outlets.31 Additionally, defendant Matthews represented to the University’s Public
Safety Department that plaintiff was a marijuana trafficker who was convicted of
driving under the influence of marijuana.32 Matthews knew these representations
were false, but provided a copy of the altered records to the Public Safety
As a result of defendants’ dissemination of the altered records, plaintiff
incurred attorney’s fees to appear before the University’s Board of Trustees and rebut
allegations that his guilty plea was related to the use of marijuana.34 Plaintiff’s
personal and professional reputation has been harmed by defendants’ publication of
the altered records.35
Doc. no. 53 (Plaintiff’s RICO Case Statement), at ECF 7.
Doc. no. 3 (Amended Complaint) ¶ 33.
Id. ¶ 34.
Id. ¶ 35.
Id. ¶ 37.
Id. ¶¶ 38, 46–47, 53. Plaintiff does not allege that he actually lost his job as a result of
defendants’ actions, and plaintiff does not claim lost wages as an element of damages.
Plaintiff’s RICO Case Statement
In addition to the facts asserted in his Amended Complaint, plaintiff also filed
a RICO case statement, in an attempt to comply with the court’s order to file a more
definite statement in accordance with the heightened pleading requirements of
Federal Rule of Civil Procedure 9(b), which provides, in pertinent part that, when
“alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”36
See also Liquidation Commission of Banco
Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1355 (11th Cir. 2008) (“When a RICO
claim is based on predicate acts involving fraud, those predicate acts must be pleaded
with particularity, in accordance with Fed. R. Civ. P. 9(b).” (citing Ambrosia Coal &
Construction Co. v. Pages Morales, 482 F.3d 1309, 1316–17 (11th Cir. 2007))).
In his RICO case statement, plaintiff reasserts the same facts summarized
above, albeit with somewhat more factual specificity. For example, in describing one
email, plaintiff states:
An email that appears to have been sent by Tony Smith was sent
on February 28, 2011, at approximately 10:02 PM to numerous
individuals with the subject matter “AAMU Management and Trustees
need to be VACATED!” Attached to this email were 4 PDF documents
that, upon information and belief, were the altered records showing
falsely that Kevin Rolle had been convicted of driving under the
Doc. no. 53 (Plaintiff’s RICO Case Statement); see also doc. no. 52 (Memorandum
Opinion and Order), at 25.
influence of marijuana.37
Approximately five pages of plaintiff’s RICO case statement contain further detailed
descriptions of emails sent by one or more of the defendants that erroneously
attributed plaintiff’s guilty plea to driving under the influence of marijuana, rather
While plaintiff admits that there was no criminal conviction for any of
defendants’ actions, he claims that the predicate act of disseminating the emails
“pose[s] a threat of continued criminal activity inasmuch as, upon information and
belief, one or more of the Defendants continues to publish known false information
regarding Kevin Rolle.”39
Finally, plaintiff makes broad, nonspecific conclusions in several places in his
statement that defendants have profited from spreading false information about him:
The defendants acted as individuals engaged in a common
enterprise through electronic mail of publishing false information
regarding the Plaintiff for their own financial benefit.
Because each of the named Defendants had a long-standing
relationship with the university, they enjoyed privileges and
accommodations which resulted in their sustained financial gain. The
Defendants apparently saw Dr. Rolle, and some other new members of
the University’s Administration, and his/their efforts to reform the
Id. at ECF 7.
See id. at ECF 4–8.
Id. at ECF 8 (alteration supplied).
culture at the University, as a threat to their sustained financial gain.
Upon information and belief, the purpose and goal of the
enterprise is to perpetuate a system whereby each of the conspirators
may enjoy and [sic] level of privilege and access at the University with
[sic] leads to each conspirator’s personal financial gain or access.
The enterprise exists to publish false information regarding the
Plaintiff for the financial benefit of the individual Defendants.40
Notably, however, plaintiff admits that he “does not currently have information
regarding the benefit to the enterprise in attempting to have him fired from his
position within Alabama A&M University.”41 Plaintiff also does not claim that he
was actually fired by the University.
Plaintiff’s Motion to Alter or Amend
As an initial matter, the court will consider plaintiff’s “Motion to Alter or
Amend this Court’s Order dismissing Plaintiff’s claims against Defendant James
Montgomery,” in which plaintiff states that the motion is made “pursuant to Rule
60(b) of the Federal Rules of Civil Procedure.”42
Id. at ECF 9–11 (alterations supplied).
Id. at ECF 11.
Doc. no. 62 (Motion to Alter or Amend), at 1.
A motion to alter or amend a judgment should be made pursuant to Federal
Rule of Civil Procedure 59(e), not Rule 60(b). See Fed. R. Civ. P. 59(e). Rule 59(e)
states: “A motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” Id. As plaintiff filed his motion on September 10,
2013 — 53 days after the court’s July 19, 2013 order — the motion to alter or amend
was not timely.
Nevertheless, the court treats a Rule 59(e) motion filed out of time as a motion
for relief from judgment under Rule 60(b). See, e.g., Jones v. Southern Pan Services,
450 F. App’x 860, 862 (11th Cir. 2012) (“An untimely Rule 59(e) motion is properly
treated by the district court as a Rule 60(b) motion to vacate the judgment . . . .”
(citing Mahone v. Ray, 326 F.3d 1176, 1177 n.1 (11th Cir. 2003))). So construed, the
motion is not time-barred, because it was brought within a year of the court’s order
dismissing defendant James Montgomery. See Fed. R. Civ. P. 60(c)(1) (“A motion
under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2),
and (3) no more than a year after the entry of the judgment or order or the date of the
Federal Rule of Civil Procedure 60(b) addresses the grounds upon which a
court may accord relief from a final judgment or order. The rule reads as follows:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
the judgment is void;
(5) the judgment has been satisfied, released or discharged; it
is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). To prevail on a Rule 60(b) motion, the movant “must
demonstrate a justification so compelling that [the district court is] required to vacate
its order.” Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006) (quoting Cavaliere
v. Allstate Insurance Co., 996 F.2d 1111, 1115 (11th Cir. 1993)). A movant’s burden
on a Rule 60(b) motion is heavy. See id.
Plaintiff has failed to meet his burden in this case. Plaintiff does not cite any
of the six enumerated grounds under which a party may seek relief from judgment
under Rule 60(b) as the basis for his motion. Instead, he broadly states that, “[o]n
July 26, 2013,” following the court’s dismissal of defendant James Montgomery,
“Plaintiff filed his RICO statement which provided details as to all of the Plaintiff’s
claims against Defendant James Montgomery in this matter.”43 Plaintiff does not
even assert an argument as to why the court should reconsider its July 19, 2013 order
dismissing Montgomery from the action. As the court noted in that order, “Plaintiff
has already amended his complaint once, and he provides no reason why ‘justice . .
. requires’ a third opportunity to properly state claims against Montgomery.”44 The
same reasoning applies with more force here. Once again, plaintiff has presented no
compelling reason (or, indeed, any reason at all) why the court should reconsider its
order dismissing defendant James Montgomery with prejudice from this action.
Accordingly, plaintiff’s motion is denied.
Defendants’ Motions to Dismiss
All of the remaining defendants filed separate motions to dismiss. Even so, the
motions assert essentially the same argument: i.e., that plaintiff’s revised RICO Case
Statement merely restates the same general allegations that were deemed deficient in
his Amended Complaint.45 Because plaintiff has failed to adequately state a claim
Id. ¶ 4.
Doc. no. 52 (Memorandum Opinion and Order), at 11 n.42 (quoting Fed. R. Civ. P.
See doc. no. 54 (Defendant, Tom Bell’s, Motion to Dismiss) ¶ 3; doc. no. 59 (“Motion to
Dismiss” filed by defendant Dorothy Houston) ¶ 6; doc. no. 61 (Defendant, Tony Smith’s, Motion
to Dismiss) ¶ 2; doc. no. 67 (Defendant, Kevin Matthews’. [sic] Motion to Dismiss) ¶ 3.
under RICO, the defendants’ motions to dismiss are due to be granted.
Legal standards for stating a fraud-based RICO claim
The section of RICO defining “prohibited activities” provides in relevant part
(a) It shall be unlawful for any person who has received any
income derived, directly or indirectly, from a pattern of racketeering
activity or through collection of an unlawful debt in which such person
has participated as a principal within the meaning of section 2, title 18,
United States Code, to use or invest, directly or indirectly, any part of
such income, or the proceeds of such income, in acquisition of any
interest in, or the establishment or operation of, any enterprise which is
engaged in, or the activities of which affect, interstate or foreign
commerce. . . .
(b) It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful debt to acquire
or maintain, directly or indirectly, any interest in or control of any
enterprise which is engaged in, or the activities of which affect,
interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a pattern
of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any
of the provisions of subsection (a), (b), or (c) of this section.
18 U.S.C. § 1962. As thus phrased, RICO essentially is a criminal statute. See
Katzman v. Victoria’s Secret Catalogue, 167 F.R.D. 649, 654 (S.D.N.Y. 1996)
(Sweet, J.) (“The RICO provisions of the Organized Crime Control Act of 1970 were
enacted expressly, as set forth in the preamble to the Act, ‘to seek the eradication of
organized crime in the United States.’ Pub. L. No. 91-452 (1970).”).
The Act nevertheless provides civil penalties for private parties who have been
injured “by reason of” a RICO violation. 18 U.S.C. § 1964(c). As Senior Judge
Robert W. Sweet of the United States District Court for the Southern District of New
York aptly observed in his opinion in the Katzman case,
“Civil RICO is an unusually potent weapon — the litigation equivalent
of a thermonuclear device.” Miranda v. Ponce Fed. Bank, 948 F.2d 41,
44 (1st Cir. 1991). Because the “mere assertion of a RICO claim . . . has
an almost inevitable stigmatizing effect on those named as defendants,
. . . courts should strive to flush out frivolous RICO allegations at an
early stage of the litigation.” Figueroa Ruiz v. Alegria, 896 F.2d 645,
650 (1st Cir. 1990).
167 F.R.D. at 655 (alterations in original). The four elements of a civil RICO action
are “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”
Durham v. Business Management Associates, 847 F.2d 1505, 1511 (11th Cir. 1988)
(quoting Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985)). The pivotal
points of proof for civil plaintiffs, however, are demonstration of “a pattern” of
“racketeering activity.” A “pattern” is established by “at least two” predicate acts of
“racketeering activity” within a ten year period, 18 U.S.C. § 1961(5), and must either
amount to or pose a threat of “continuing racketeering activity.” See H.J., Inc. v.
Northwestern Bell Telephone Co., 492 U.S. 229, 240 (1989) (emphasis in original).
The phrase “racketeering activity” is defined in section 1961(1)(B) as meaning,
among other things, “any act which is indictable under” a specified list of federal
criminal offenses, including wire fraud under 18 U.S.C. § 1343.46
The Eleventh Circuit has explained on multiple occasions that “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.” McCulloch v. PNC Bank, Inc., 298 F.3d 1217, 1225 (11th Cir. 2002)
(internal quotation marks omitted) (quoting Pelletier v. Zweifel, 921 F.2d 1465, 1498
(11th Cir. 1991), abrogated on other grounds by Douglas Asphalt Co. v. QORE, Inc.,
657 F.3d 1146 (11th Cir. 2011)).
Where, as here, a civil RICO claim is based on predicate acts involving fraud,
a plaintiff must plead the facts of the complaint with particularity, in order to comport
with Rule 9(b). Liquidation Commission of Banco Intercontinental, 530 F.3d at
The wire fraud statute, 18 U.S.C. § 1343, provides:
Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, transmits or causes to be transmitted by
means of wire, radio, or television communication in interstate or foreign commerce,
any writings, signs, signals, pictures, or sounds for the purpose of executing such
scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than
five years, or both.
18 U.S.C. § 1343.
1355–56 (citing Ambrosia Coal, 482 F.3d at 1316–17).
To satisfy the Rule 9(b) standard, RICO complaints must allege: (1) the
precise statements, documents, or misrepresentations made; (2) the time
and place of and person responsible for the statement; (3) the content
and manner in which the statements misled the Plaintiffs; and (4)
what the Defendants gained by the alleged fraud.
Ambrosia Coal, 482 F.3d at 1316–17 (emphasis and footnote supplied) (citing Brooks
v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1380–81 (11th Cir.
1997)). A plaintiff cannot “lump together all of the defendants in their allegations
of fraud,” but must instead make “specific allegations with respect to each
defendant.” Id. at 1317 (alteration supplied).
Application of the legal standards to defendants’ actions
Plaintiff has failed to allege with specificity what the defendants gained, or
stood to gain (if anything), by the alleged fraud. Plaintiff’s broad, conclusory
allegations that defendants financially gained from painting him in a false light,
without any more detail, cannot possibly satisfy the heightened pleading standard of
In Bridge v. Phoenix Bond and Indemnity Co., 553 U.S. 639 (2008), the Supreme Court
held that “a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an
element of its claim or as a prerequisite to establishing proximate causation, that it relied on the
defendant’s alleged misrepresentations.” 553 U.S. at 661. Plaintiff argues that the Bridge decision
has altered the Eleventh Circuit’s pleading requirements, and that plaintiff need not plead that he
himself was misled, only that he was injured by defendants’ misrepresentations. See, e.g., doc. no.
60 (Response to the Second Motion to Dismiss Filed by Tom Bell) ¶¶ 24–26. Regardless of
plaintiff’s interpretation of the Bridge decision, however, the decision itself clearly does not
implicate the fourth Ambrosia Coal requirement: i.e., that the plaintiff must allege that the
defendants gained something by the alleged fraud.
Rule 9(b). Indeed, plaintiff expressly admitted that he “does not currently have
information regarding the benefit to the enterprise in attempting to have him fired
from his position from Alabama A&M University.”48 Thus, plaintiff has failed to
comport with the fourth element of the Ambrosia Coal pleading requirements, and his
complaint is due to be dismissed on those grounds.49
In addition, however, even if plaintiff had pled the “benefit to the enterprise”
with more specificity, defendants’ actions, as alleged by plaintiff, cannot possibly
constitute wire fraud under 18 U.S.C. § 1343. Plaintiff does not allege that any of the
defendants have attempted to defraud anyone (plaintiff or otherwise) of money or
property. Indeed, other than plaintiff’s vague assertions that he was a “threat to
[defendants’] sustained financial gain,” plaintiff has failed to plead that defendants’
actions implicated money or property whatsoever.50
Further, plaintiff has failed to demonstrate that defendants’ actions pose a
threat of continuing racketeering activity. Even if the court were to construe the
Id. at ECF 11.
Subsequent to its Ambrosia Coal decision, the Eleventh Circuit noted in United States v.
Williams, 527 F.3d 1235 (11th Cir. 2008), that, in the context of criminal wire fraud prosecution,
“[w]ire fraud does not require the government to prove actual financial loss or that the defendant
benefitted from her scheme.” Id. at 1245. Williams does not affect the pleading standard for civil
RICO actions alleging wire fraud, or otherwise affect the Ambrosia Coal standard, however. See,
e.g., Merritt v. Lake Jovita Homeowner’s Association, Inc., 358 Fed. App’x 47, 49 (11th Cir. 2009)
(quoting Ambrosia Coal as the applicable standard for the level of specificity required in a civil
RICO pleading alleging mail or wire fraud).
Doc. no. 53 (Plaintiff’s RICO Case Statement), at ECF 9 (alteration supplied).
definition of “racketeering activity” so broadly as to encompass the sending of
defamatory emails, the Eleventh Circuit has definitively held that, “where the RICO
allegations concern only a single scheme with a discrete goal, the courts have refused
to find a closed-ended pattern of racketeering . . . .”
Jackson v. BellSouth
Telecommunications, 372 F.3d 1250, 1267 (11th Cir. 2004) (alteration supplied)
(holding that multiple predicate acts failed to state a claim under RICO where the
predicate acts were in furtherance of a singular scheme with a singular goal, because
they failed to allege a pattern of continuity).
In sum, Count I of plaintiff’s claim is due to be dismissed, not only because
plaintiff has failed to comport with the pleading requirements of Rule 9(a), but also
because defendants’ actions, even if pled with specificity, cannot possibly constitute
a civil RICO violation under 18 U.S.C. § 1962.51
Plaintiff’s Supplemental State Law Claims
As the dismissal of plaintiff’s civil RICO claim will leave this court with no
independent jurisdictional foundation for plaintiff’s supplemental state law claims,
In addition to the reasons stated above, all of the emails at issue appear to have been
exchanged among recipients within the State of Alabama. It is not at all clear to the court that
entirely intrastate email communications are “communication[s] in interstate or foreign commerce,”
as required by 18 U.S.C. § 1343. See United States v. Philips, 376 F. Supp. 2d 6, 8 (D. Mass. 2005)
(holding that a wire transmission must itself cross state lines, and not merely “use a mechanism of
interstate commerce,” in order to implicate 18 U.S.C. § 1343). As the issue has not been addressed
in the Eleventh Circuit, however, and because plaintiff’s complaint is due to be dismissed on other
grounds, the court will decline to rule on the matter.
the court declines to assume jurisdiction over those claims. See 28 U.S.C. §
1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if . . . the district court has dismissed all claims over
which it has original jurisdiction . . . .”); Carnegie-Mellon University v. Cohill, 484
U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will
point toward declining to exercise jurisdiction over the remaining state-law claims.”);
see also L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir.
1984) (“[I]f the federal claims are dismissed prior to trial, [United Mine Workers v.]
Gibbs[, 383 U.S. 715, 726 (1966)] strongly encourages or even requires dismissal of
state claims.” (alterations supplied) (citing Gibbs, 383 U.S. at 726 (“Certainly, if the
federal claims are dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well.”))). Accordingly,
those claims will be dismissed, but without prejudice, so that plaintiff may have the
opportunity to pursue those claims in the appropriate state forum.
In accordance with the foregoing, the motions to dismiss filed by Defendants
Bell, Houston, Smith, and Matthews are GRANTED. Count I of plaintiff’s complaint
is DISMISSED with prejudice. Counts II through VI of plaintiff’s complaint are
likewise DISMISSED, but without prejudice, so that plaintiff may pursue those
claims in an appropriate state court action. Plaintiff’s Motion to Alter or Amend is
DENIED, and his Motion to Strike is DENIED as moot. Defendant Bell and former
Defendant James Montgomery’s Joint Motion to Compel Plaintiff’s Deposition is
likewise DENIED as moot. The Clerk is directed to close this file.
DONE and ORDERED this 28th day of March, 2014.
United States District Judge
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