Rimas Kregzde v. Mohamad Sarebanha et al

Filing 29

(IN CHAMBERS) ORDER FOR PLAINTIFF TO SHOW CAUSE WHY RICO CLAIM SHOULD NOT BE DISMISSED WITHOUT LEAVE TO AMEND by Magistrate Judge Frederick F. Mumm. The Court ORDERS plaintiff to show cause in writing by Monday, November 27, 2017 why his RICO claim should not be dismissed without leave to amend. In responding to this order, plaintiff must address: (1) which crime(s) enumerated in Section 1961(1) serve as the "racketeering activity" that is the subject of his RICO claim; and (2) how the wrongdoing alleged in the Complaint meets the statutory definition(s) of the enumerated crime(s). (See document for further details.) Response to Order to Show Cause due by 11/27/2017. (sbou)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-1220 JGB (FFM)

Title

Rimas Kregzde v. Mohamad Sarebanha, et al.

Present: The Honorable

Date

November 17, 2017

Frederick F. Mumm, United States Magistrate Judge

James Munoz

N/A

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER FOR PLAINTIFF TO SHOW CAUSE WHY
RICO CLAIM SHOULD NOT BE DISMISSED WITHOUT LEAVE TO
AMEND

In the Complaint, plaintiff alleges that defendants violated RICO by conspiring to
harass him, obstruct justice, and suborn perjury in Orange County Superior Court No.
30-11 2014-00697685-CU-PA-CJC (the “Personal Injury Action”). (Docket No. 1-1,
¶ 25.) The elements of a civil RICO claim are: “(1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing
injury to plaintiff’s ‘business or property.’” Living Designs, Inc. v. E.I. Dupont de
Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (internal quotation marks omitted);
see 18 U.S.C. §§ 1962, 1964(c). “Racketeering activity” is defined under RICO as any
act involving one or more enumerated crimes that would be chargeable under state law
or indictable under federal law, as relevant. 18 U.S.C. § 1961(1) (“Section 1961(1)”).
The Complaint does not specify which of the crimes enumerated in Section
1961(1) constitute the “racketeering activity” purportedly at issue in the Complaint. (See
Docket No. 1-1, ¶¶ 24-28.) Reading the Complaint liberally, it appears that the
enumerated crimes most applicable to plaintiff’s allegations are: violation of 18 U.S.C.
§ 1503 (obstructing justice (“Section 1503”)), violation of 18 U.S.C. § 1512 (witness
tampering (“Section 1512”)), and violation of 18 U.S.C. § 1513 (retaliating against a
witness (“Section 1513”)). 18 U.S.C. § 1961(1)(B).
However, with certain exceptions not relevant here, each of the foregoing crimes
is premised on wrongful conduct occurring in, or directed toward, a proceeding in a
federal court or an equivalent federal tribunal. See 18 U.S.C. §§ 1503 (referring to
“court of the United States”), 1512 (referring to “official proceeding”), 1513 (same),
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-1220 JGB (FFM)

Date

Title

November 17, 2017

Rimas Kregzde v. Mohamad Sarebanha, et al.

1515 (a)(1)(A)-(D) (defining “official proceeding”). Wrongful conduct directed toward
state court proceedings does not fall within the conduct prohibited by Sections 1503,
1512, and 1513. See id.; see also Davit v. Davit, 366 F. Supp. 2d 641, 656 (N.D. Ill.
2004), aff’d, 173 F. App’x 515 (7th Cir. 2006) (plaintiff ex-husband could not use
defendants’ alleged obstruction of law enforcement, witness tampering, and retaliation in
state court divorce proceedings as RICO predicate acts; Sections 1512 and 1513 “relate
to federal investigations, agents, and proceedings that are not implicated here”).
The Personal Injury Action is a state court proceeding. Therefore, it appears to the
Court that the alleged wrongdoing occurring in connection with that action did not
violate Sections 1503, 1512, and 1513. In turn, it appears that plaintiff’s RICO claim
should be dismissed on the ground that plaintiff fails to allege the necessary element of
“racketeering activity.” Furthermore, it appears that curing this deficiency is not
possible.
Accordingly, the Court ORDERS plaintiff to show cause in writing by Monday,
November 27, 2017 why his RICO claim should not be dismissed without leave to
amend. In responding to this order, plaintiff must address: (1) which crime(s)
enumerated in Section 1961(1) serve as the “racketeering activity” that is the subject of
his RICO claim; and (2) how the wrongdoing alleged in the Complaint meets the
statutory definition(s) of the enumerated crime(s). If plaintiff contends that the
“racketeering activity” consists of violations of Sections 1503, 1512, and 1513, plaintiff
must also address how the alleged wrongdoing involves an “official proceeding,” as
defined by 18 U.S.C. § 1515 (a)(1)(A)-(D), or a “court of the United States.”

IT IS SO ORDERED.

:
Initials of Preparer
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JM
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