Cobb v. JPMorgan Chase Bank, N.A. et al

Filing 121

ORDER CONTINUING AUGUST 9, 2013 HEARING AND ORDERING SUPPLEMENTAL BRIEFING ON RICO INJURY. Motion Hearing set for 10/11/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 8/5/13. (jjoS, COURT STAFF) (Filed on 8/5/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JASON COBB,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 13-01955 JSW

v.

ORDER CONTINUING AUGUST
9, 2013 HEARING AND
ORDERING SUPPLEMENTAL
BRIEFING ON RICO INJURY

JPMORGAN CHASE, et al.,
Defendants.
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This matter is set hearing on a number of motions on August 9, 2013. The Court has

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reviewed and considered the motions, and it finds that supplemental briefing on the issue of

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RICO injury is warranted. Accordingly, the Court CONTINUES the hearing set for August 9,

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2013 to October 11, 2013 at 9:00 a.m. in Courtroom 11, so that the Court may hear these

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motions in conjunction with the motion to dismiss filed by Stanford Hospital and Clinics, which

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raises similar issues.

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In order to state a Civil RICO claim, Plaintiff Jason Cobb (“Cobb”) must allege facts

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showin, inter alia, injury to his “‘business or property.’” Living Designs, Inc. v. E.I. Dupont de

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Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005) (quoting Grimmett v. Brown, 75 F.3d 506,

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510 (9th Cir.1996), in turn citing 18 U.S.C. §§ 1964(c), 1962(c)). This requires the Court to

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examine the allegations of Cobb’s complaint to determine if he has alleged a “harm to a specific

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business or property interest - a categorical inquiry typically determined by reference to state

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law.” Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005); see also Newcal Industries, Inc. v. Ikon

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Office Solution, 513 F.3d 1038, 1055 (9th Cir. 2008) (“injury is compensable under RICO if the

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injury constitutes ‘harm to a specific business or property interest’ and if the alleged business or

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property interest is cognizable under state law”). Cobb also must show “some tangible financial

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loss” connected with the harm to his business or property interest. Diaz, 420 F.3d at 900; see

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also Canyon County v. Sygenta Seeds, Inc., 519 F.3d 969, 975 (9th Cir. 2008).

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In order to show that he has alleged RICO injury, Cobb makes reference to a number of

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cases, including an unidentified civil case in state court. Courts have concluded that a cause of

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action is a species of property. See, e.g., Malley-Duff & Associates, Inc. v. Crown Ins. Co., 792

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F.2d 341, 354 (3rd Cir. 1986); Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (“[A]

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cause of action is a species of property protected by the Fourteenth Amendment Due Process
Clause.”); Parker v. Walker, 5 Cal. App. 4th 1173, 1182-83 (1992) (citing, inter alia, Cal. Civ.

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For the Northern District of California

United States District Court

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Code §§ 663, 953) (cause of action to recover money damages is a form of property under

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California law).

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However, it is not clear to the Court that Cobb has set forth sufficient facts to support

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RICO injury on this theory, and it requests supplemental briefing on this issue from Cobb and

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the Defendants who have been named in the RICO and RICO Conspiracy claims for relief.

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The Court notes that the Ninth Circuit has not yet held that incurring legal fees can give rise to

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RICO injury. See, e.g., Thomas v. Baca, 308 Fed. Appx. 87, 88 (9th Cir. 2009). In addition,

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although some courts have concluded that incurring legal fees could establish RICO injury,

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those courts have done so where a plaintiff incurred fees in prior litigation and the fees were

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proximately caused by conduct that would qualify as a RICO predicate act. See, e.g., Burger v.

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Kuimelis, 325 F. Supp. 2d 1026, 1035-36 (N.D. Cal. 2004) (citing cases).

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In contrast, courts have not been willing to find RICO injury where the fees were

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incurred to pursue a RICO claim. See, e.g. Walter v. Palisades Collection LLC, 480 F. Supp. 2d

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797, 805 (E.D. Pa. 2007); Menjivar v. Trophy Properties IV DE, LLC, 2006 WL 2884396, at

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11-12 (N.D. Cal. Oct. 10, 2006). Those courts have reasoned that the “RICO injury

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requirement would be a nullity if paying an attorney to initiate the RICO action itself sufficed as

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damages.” Walter, 480 F. Supp. 2d at 805; see also Menjivar, 2006 WL 2884396, at 12 (“If

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legal fees associated with a RICO lawsuit itself could constitute the RICO injury, the injury

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requirement would cease to have any meaning.”).

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Accordingly, it is HEREBY ORDERED that the “RICO Defendants” shall file

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supplemental brief on this issue that shall not exceed seven pages by no later than August 16,

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2013. Cobb shall file supplemental opposition briefs and, if he chooses, may file a single

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opposition that responds to all arguments, by no later than August 30, 2013. Defendants may

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file reply briefs by no later than September 6, 2013.

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If the Court finds that the motions are suitable for disposition without oral argument, it
shall notify the parties in advance of the hearing date. The Court HEREBY ADVISES Cobb
that a Handbook for Pro Se Litigants, which contains helpful information about proceeding

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For the Northern District of California

United States District Court

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without an attorney, is available through the Court’s website or in the Clerk’s office. The Court

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also advises Cobbthat he may wish to seek assistance from the Legal Help Center. Cobb may

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call the Legal Help Center at 415-782-8982 or sign up on the 15th Floor of the Courthouse,

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Room 2796, for a free appointment with an attorney who may be able to provide basic legal

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help, but not legal representation.

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IT IS SO ORDERED.
Dated: August 5, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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