Witt v. Snider et al

Filing 133

OPINION AND ORDER GRANTING MOTIONS TO DISMISS AND DISMISSING ACTION: The Court GRANTS the Defendants' Motions to Dismiss 30 , 32 , 66 , insofar as the Court DISMISSES Mr. Witts First Claim for Relief under the RICO Act for failure to state a claim under Rule 12(b)(6). Upon that dismissal, the remaining claims by Mr. Witt and all claims by Mr. Lane are DISMISSED for lack of federal subject-matter jurisdiction. In light of the dismissal of all claims, the Clerk of the Court shall terminate all remaining motions and close this case. By Chief Judge Marcia S. Krieger on 5/19/17. (msklc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-01303-MSK-CBS
MATTHEW WITT,1
Plaintiff,
v.
CHARLES D. SNIDER, JR.;
NOEL WEST LANE, III;
DAMON M. SEMMENS; and
DAVID E. KEIL,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING MOTIONS TO DISMISS AND
DISMISSING ACTION
______________________________________________________________________________
THIS MATTER comes before the Court, nominally pursuant to Mr. Witt’s Motion to
Dismiss (# 124), to which Mr. Semmens has filed a response (# 130). The discussion herein also
implicates Mr. Semmens’ prior Motion to Dismiss (# 30), Mr. Witt’s response (# 35), and Mr.
Semmens’ reply (# 42), as well as similar motions filed by other Defendants. There are a
number of other motions pending in this action, including several filed by Mr. Lane, but for the
reasons set forth herein, the Court need not reach those.
FACTS
Mr. Witt’s Amended Complaint (# 27) is a 59-page document thick with impertinent
details. Shorn of its excess, the factual allegations can be summarized fairly succinctly. Mr.

1

For reasons addressed herein, the Court has sua sponte modified the caption of the case to
reflect the current status of the parties.
1

Witt operated an entity called CCI that engaged in the business of commercial lending. In 2007,
Mr. Witt and CCI entered into a lending arrangement with Mr. Snider and Mr. Snider’s business,
Trico. That arrangement unraveled in 2008, with Mr. Witt and/or CCI bringing suit against Mr.
Snider and/or Trico. Mr. Witt alleges that, at this time, Mr. Snider “sw[ore] to Witt that he would
get revenge against him for the rest of Witt’s life.”
Separately, in 2008, Mr. Witt and CCI entered into a business arrangement with Mr. Lane
and his various business entities.2 In early 2009, Mr. Lane convinced Mr. Witt to hire him as an
officer of CCI, but that arrangement also ended acrimoniously shortly thereafter, with Mr. Witt
terminating Mr. Lane and accusing him of attempting to sabotage CCI and steal its business. As
with Mr. Snider, Mr. Witt alleges that Mr. Lane then threatened to “take down” CCI and Mr.
Witt
CCI filed a bankruptcy petition under Chapter 11 in April 2009; a Trustee was appointed
to represent CCI’s estate. Mr. Witt alleges that Mr. Lane “manipulate[d] the bankruptcy cases
and defame[d] Witt” by filing numerous frivolous adversary claims in that action, in violation of
11 U.S.C. § 152(4). Mr. Witt further alleges that both Mr. Snider and Mr. Lane jointly agreed at
this time to “abuse the bankruptcy process” and “retaliate against Witt,” albeit in ways that are
largely unspecified. The Complaint goes on to recite, in great detail, various events occurring
during the course of the bankruptcy case and “defamatory” statements that Mr. Lane purportedly
made to trustees and other creditors, accusing Mr. Witt of various acts of fraud or deceit. Little
2

At this point, the Complaint digresses into an extended recitation concerning a residential
mortgage loan that CCI made to an associate of Mr. Lane’s named Denver Haslam. The
property secured by the loan burned down in suspicious circumstances at a time when Mr. Lane
was under contract to purchase it from Mr. Haslam. The saga of the Haslam incident runs
throughout Mr. Witt’s Complaint here, occasionally propping up Mr. Witt’s allegations in other
respects, and it forms the backbone of Mr. Lane’s mammoth set of counter- and third-party
claims. Ultimately, however, the allegations concerning Ms. Haslam and the incident are of no
consequence to the analysis herein, and thus, the Court declines to summarize them further.
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of this detail is relevant, except perhaps for an allegations that from approximately 2010 until
“late 2012 and 2013,” Mr. Lane and Mr. Snider “each . . . made multiple threats against Witt of
violent retaliation and incarceration, and threatened to continue to destroy Witt’s companies and
his reputation,” unless Mr. Witt would agree to testify on their behalf in opposition to an
adversary proceeding brought by CCI’s Trustee. Mr. Witt alleges that these threats, for which no
additional detail is supplied, constitute witness tampering in violation of 18 U.S.C. § 1512 and
witness retaliation in violation of 18 U.S.C. § 1513. Eventually, Mr. Lane and Mr. Snider settled
their adversary claims with CCI’s Trustee.
In 2011, one of the Trustees that had represented a CCI entity during the bankruptcy
proceeding turned around and brought an adversary suit against Mr. Witt himself, accusing him
of misappropriating CCI assets. Once again, Mr. Witt’s Complaint goes into extensive detail
about this proceeding, but it is unclear what relevance these developments have to his claims
against the Defendants herein. At most, Mr. Witt appears to allege that Mr. Lane and Mr. Snider
were “leading the creditors who were pressuring [the Trustee] to sue Witt,” but otherwise makes
no allegations regarding them in this context. The proceeding ultimately resulted in a judgment
against Mr. Witt in excess of $1.5 million, a judgment that Mr. Witt unsurprisingly insists is
improper.
At some point in or about 2014, Mr. Lane and Mr. Snider “determined the best way to
continue advancing their shared goal of destroying the rest of Witt’s life was to purchase the
Judgment” described above. An entity named Rekon, owned by Mr. Snider and Mr. Lane,
offered to purchase the judgment from the Trustee for $16,000. The Trustee provisionally
accepted, and although Mr. Witt recites a wealth of additional information regarding the sale of
the judgment, little of it is significant. It is sufficient to note that Mr. Witt attempted to purchase

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the judgment himself, but the Trustee accepted Rekon’s bid of $18,000 and sold the judgment in
February 2014. Thereafter, it appears that Rekon commenced suit against Mr. Witt in Arapahoe
County, Colorado, accusing Mr. Witt of engaging in fraudulent transfers to shield his assets from
collection on that judgment. That proceeding is, by all appearances, ongoing.
Based on these allegations, Mr. Witt alleges eight claims for relief: (i) violation of the
Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961 et seq., in that
Mr. Lane and Mr. Snider formed a criminal enterprise in 2009 (and that Mr. Semmens and Mr.
Keil joined it later, as discussed herein) for the purpose of destroying Mr. Witt and CCI and
engaged in a pattern of racketeering acts including “extortion, bankruptcy fraud, witness
tampering, witness retaliation, and related tortious acts” to achieve that goal; (ii) violation of the
Colorado Corrupt Organizations Control Act (“CCOCA”), C.R.S. § 18-17-101 et seq., on the
same facts and others discussed below; (iii) a common-law tort claim for abuse of process,
apparently under Colorado law, against Mr. Snider, Mr. Lane, and Mr. Semmens, in that Rekon
and Mr. Semmens have commenced the proceeding in Arapahoe County alleging fraudulent
transfers, all “for no purpose other than to embarrass Witt”; (iv) common-law defamation against
Mr. Keil, arising primarily from statements Mr. Keil made to Mr. Witt’s co-workers in 2015,
accusing Mr. Witt of engaging in embezzlement; (v) common-law defamation against Mr.
Semmens, apparently on the theory that Mr. Semmens is vicariously liable for the defamatory
statements made by Mr. Keil, along with statements made by Mr. Semmens in the Arapahoe
County litigation; (vi) and (vii) the same defamation claim that is alleged against Mr. Semmens,
now alleged against Mr. Snider and Mr. Lane respectively; and (viii) a tort claim for outrageous
conduct, apparently under Colorado law, against all Defendants, based generally on the
allegations above.

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Three of the four Defendants – all but Mr. Lane –filed motions to dismiss Mr. Witt’s
claims against them pursuant to Fed. R. Civ. P. 12(b)(6). Mr. Lane instead filed a pro se Answer
and Counterclaims (# 84) that runs some 150 pages and asserts a broad range of claims against
Mr. Witt, the other Defendants in this matter, and various third parties. Before the Court could
rule on any motions, Mr. Witt filed for bankruptcy (# 103) on March 6, 2017, and a Trustee was
appointed to administer his estate. In light of that appointment, the Court amended the caption of
the action to substitute the Trustee for Mr. Witt and denied all the pending motions – including
the Defendants’ motions to dismiss – until the Trustee could examine Mr. Witt’s claims and
decide whether to pursue, modify, or withdraw them on behalf of the estate (# 106). The record
reflects that Mr. Witt’s bankruptcy case was short-lived, however; it was apparently dismissed
by the bankruptcy court on April 26, 2017. The dismissal of the bankruptcy case effectively
terminated the Trustee’s control over this case, placing it back in Mr. Witt’s hands. (As a result,
the Court has again amended the caption set forth above to reflect this state of affairs.)
Shortly thereafter, Mr. Witt filed the instant Motion to Dismiss (# 124), explaining that
he had become convinced that the case would be heard more expeditiously if pursued in state
court. He sought to dismiss3 his RICO claim without prejudice, thereby severing the predicate
for federal subject-matter jurisdiction and effectuating the dismissal of the action in its entirety.
Mr. Witt made clear that he intended to continue to pursue his state-law claims against the
Defendants in a new state-court action. Although the time to respond to this motion under D.C.
Colo. L. Civ. R. 7.1(d) has not yet run, at least one Defendant, Mr. Semmens, has already
opposed Mr. Witt’s requested dismissal. Mr. Semmens argues that Mr. Witt is engaging in

3

Mr. Lane’s filing of an Answer prevented Mr. Witt from effecting that dismissal as of
right under Fed. R. Civ. P. 41(a)(1). Thus, Mr. Witt requested the Court’s permission to dismiss
the action under Rule 41(a)(2).
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vexatious litigation designed to cause the Defendants to incur fees, yet prevent conclusive
adjudication of Mr. Witt’s (or, for that matter, the Defendants’ state-court) claims. Mr.
Semmens requests, alternatively, that the Court deny Mr. Witt’s request to dismiss the action,
that the Court grant the motion on the condition that Mr. Witt pay the Defendants’ accrued
attorney fees in part or whole, that the Court dismiss Mr. Witt’s claims with prejudice to prevent
them from being reasserted, or that the Court revive and determine the Defendants’ prior Rule
12(b)(6) motions.
The Court finds that it is sufficiently apprised of the issues here, and requires no further
briefing on Mr. Witt’s Motion to Dismiss to make a determination. D.C. Colo. L. Civ. R. 7.1(d).
ANALYSIS
The Court will not belabor its analysis of Mr. Witt’s Motion to Dismiss under Rule
41(a)(2). Regardless of whether the Court would be inclined to grant that motion, either
unconditionally or on certain conditions sought by Mr. Semmens, a curious feature of Rule
41(a)(2) presents an additional obstacle. Under the Rule, “if a defendant has pleaded a
counterclaim before being served with the plaintiff’s motion to dismiss, the action may be
dismissed over the defendant’s objection only if the counterclaim can remain pending for
independent adjudication.” Here, Mr. Lane has pled a counterclaim prior to Mr. Witt seeking to
dismiss, and although Mr. Lane has not yet responded to Mr. Witt’s motion, one may reasonably
anticipate that Mr. Lane might object to Mr. Witt dismissing his own action, taking Mr. Lane’s
counterclaims down in the process. Thus, the Court is faced with the question of whether Mr.
Lane’s counterclaims can, of their own accord, support federal subject-matter jurisdiction (and,
relatedly, can any such claim that supports such jurisdiction survive further review under Fed. R.
Civ. P. 8 and 12(b)(6)?).

6

The Court sees little cause to attempt to parse Mr. Lane’s extensive and rambling
counterclaims in order to answer that question. Instead, the Court finds it far easier to accept Mr.
Semmens’ invitation for the Court to return to the Defendants’ fully-briefed motions to dismiss
Mr. Witt’s claims under Rule 12(b)(6) – specifically including the RICO claim – and adjudicate
those. For the reasons set forth below, the Court finds that Mr. Witt has failed to state a
cognizable RICO claim. Dismissal of that claim disposes of the sole basis for federal subjectmatter jurisdiction here, requiring dismissal of the entire action – the very same relief that the
Defendants previously sought and which Mr. Witt seeks now.4
A. Standard of review
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-pleaded allegations in the Amended Complaint as true and view those allegations in the
light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training,
265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners
of the Amended Complaint, any documents attached thereto, and any external documents that are
referenced in the Amended Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan,
241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th
Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).

4

Because the Court dismisses Mr. Witt’s Complaint for failure to state a claim over which
this Court has jurisdiction under Rule 12(b)(6), it does not reach Mr. Semmens’ argument that
Mr. Witt should only be allowed to dismiss this action under Rule 41(a)(2) upon payment of the
Defendants’ attorney fees. Nothing in this dismissal precludes Mr. Semmens or any other
Defendant from now moving separately for an award of attorney fees against Mr. Witt, citing
authority that would justify such an award and making all other necessary showings. The Court
will consider the merits of such a request when, and if, it is made.
7

A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first
discards those averments in the Complaint that are merely legal conclusions or “threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at
678-79. The Court takes the remaining, well-pleaded factual contentions, treats them as true, and
ascertains whether those facts (coupled, of course, with the law establishing the requisite
elements of the claim) support a claim that is “plausible” or whether the claim being asserted is
merely “conceivable” or “possible” under the facts alleged. Id. What is required to reach the
level of “plausibility” varies from context to context, but generally, allegations that are “so
general that they encompass a wide swath of conduct, much of it innocent,” will not be
sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
B. RICO claim
Mr. Witt’s RICO claim is the linchpin that permits this federal court to exercise subjectmatter jurisdiction over this proceeding pursuant to 28 U.S.C. §1331. Accordingly, the Court
elects to first evaluate all of the Defendants’ motions as directed at the RICO claim.
To adequately plead a civil RICO claim, a plaintiff must allege three elements: (i)
conduct, (ii) of an enterprise, (iii) through a pattern of racketeering activity. Salinas v. U.S. 522
U.S. 52, 62 (1997).
RICO expressly defines the term “racketeering activity” to include violations of a wide
range of federal criminal statutes. 18 U.S.C. § 1961(1). As relevant here, that definition
includes the crimes of: (i) witness tampering, 18 U.S.C. § 1512; (ii) retaliating against a witness,
18 U.S.C. § 1513; and (iii) “any offense involving fraud connected with a case under title 11” –
that is, fraud in connection with a bankruptcy proceeding. A “pattern of racketeering activity”

8

requires allegations of at least two such acts, plus some indication of a threat of continuing
racketeering activity. Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010). A RICO “enterprise,”
in the context here, can consist of “a group of individuals associated in fact,” even if not a legal
entity, so long as it has: (i) a decision-making framework or mechanism for controlling the
group; (ii) individuals involved functioning as a continuing unit; and (iii) an existence separate
and apart from the pattern of racketeering activity itself (that is, that the question “would [the
enterprise] still exist were the predicate acts removed from the equation?” would be answered in
the affirmative). U.S. v. Smith, 413 F.3d 1253, 1266-67 (10th Cir. 2005); Amaya v. Bregman, 149
F.Supp.3d 1312, 1231 (D.N.M. 2015).
At the outset, the Court agrees generally with the Defendants that Mr. Witt’s Amended
Complaint violates Fed. R. Civ. P. 8(a)(2)’s requirement that a Complaint be a “short and plain
statement.” It is needlessly lengthy at 54 pages and 422 numbered paragraphs; it includes a
wealth of irrelevant allegations, such as those concerning Mr. Haslam and extensive recitations
of bankruptcy proceedings that have no bearing on the claims herein; it is painfully detailed in
meaningless respects and unduly vague in those circumstances where detail is critical; and it is
generally unfocused and confusing. For these reasons alone, the Court would be inclined to
dismiss it.
Next, the Court turns to the sufficiency with which Mr. Witt has pled the requisite
predicate acts. As noted above, the Amended Complaint somewhat obscures the alleged
predicate acts beneath a heap of factual and legal chaff.5 The following reflects the Court’s best

5

For example, the Amended Complaint repeatedly appears to suggest that tortious acts of
defamation can constitute predicate acts under RICO. See e.g. ¶ 8 (in the Amended Complaint’s
“RICO Statement,” asserting that “After being fired, Lane began making extremely defamatory
comments about Witt”); ¶ 66 (in the “Racketeering Activity” section, asserting that “... Lane
used an alleged creditor status to manipulate the bankruptcy cases and defame Witt”).
9

efforts to unearth those instances in which Mr. Witt has labeled a specific act as being one of the
types of predicate acts cognizable under RICO.
Extortion under state law
18 U.S.C. § 1961(A) defines “any act or threat involving . . . extortion . . . which is
chargeable under State law” as being “racketeering activity.”
The Amended Complaint makes several references to the crime of Extortion under
Colorado Law, C.R.S. § 18-3-207(1). ¶ 8.6 Under Colorado law, the crime of Extortion occurs
when two elements are satisfied: (i) a person, lacking legal authority to do so, makes a threat to
confine the victim or cause economic, reputational, or physical harm to the victim, with the
intent of coercing the victim to perform an act or refrain from performing an act, and (ii) the
person proposes to do so by resorting to an unlawful act or by threatening to invoke action by a
third party, such as law enforcement. C.R.S. § 18-3-207(1)(a), (b).
The word “extortion” or its cognates is used a handful of times in the Amended
Complaint. First, it is referred to in general terms in an introductory paragraph summarizing the
RICO claim. ¶ 8. Its next several uses are in a paragraph referring to conduct by Mr. Lane
directed at Mr. Haslam, not Mr. Witt. ¶ 37, 41, 236. These allegations are irrelevant to Mr.
Witt’s claims.
The term is next used in a summary paragraph, ¶ 245 (“Collectively the defendants have
participated in a pattern of racketeering activity including extortion. . .”), that cites to entirely
different paragraphs than those noted above, directing the reader back to paragraphs 49 and 110.
Following Mr. Witt’s lead, the Court returns back to those specific paragraphs. Paragraph 49

6

Citations consisting solely of a paragraph number are references to the given paragraph in
Mr. Witt’s Amended Complaint.
10

alleges that, at an indeterminate point in time, Mr. Lane “succeeded in obtaining $500,000 more
from [CCI] than [he] should have received, by threatening to make false allegations about [CCI]
that would destroy its business.” The Court finds this allegation to be too conclusory to suffice
under Iqbal for several reasons. First, the allegation that Mr. Lane “ma[d]e false allegations [to]
destroy [CCI]” is entirely conclusory; it reflects Mr. Witt’s impression of what Mr. Lane said,
not what Mr. Lane actually said. Moreover, the allegation fails to identify to whom Mr. Lane
made the threats, when he made them, and in what manner; all of these are facts necessary to
adequately allege a predicate act of Extortion.7 Kaplan v. Archer, 2012 WL 3277170 (D.Colo.
Jul. 3, 2012), citing Rini v. Zwirn, 886 F.Supp. 270, 299 (E.D.N.Y. 1995). Third, the allegation
fails to allege that Mr. Lane lacked any legal authority to obtain the additional $500,000; if Mr.
Lane had a legally-colorable claim to the additional funds, his resort to threats might be improper
or unethical, but it would not be Extortion. Thus, Paragraph 49 fails to adequately allege a RICO
predicate act of Extortion.
Moving on to Paragraph 110, it reads:

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The “when” would seem to be particularly important here. RICO claims are subject to a
four-year statute of limitations that begins to run on the date that plaintiff first had notice of the
injury he complains of. Rotella v. Wood, 528 U.S. 549, 552 (2000). In selecting that date, the
Supreme Court expressly rejected accrual methods that delayed the statute’s running until the
plaintiff discovered the existence and operation of the enterprise, or until the last predicate act in
the pattern. Id. at 553-55.
Here, Mr. Witt’s claimed injury seems to be the destruction of his business, CCI. It is not
clear when Mr. Witt specifically fixes the date of that “destruction” – he describes the
Defendants’ plan to destroy CCI as “beginning to succeed” in 2009 when CCI was “forced” into
filing for bankruptcy, ¶ 59, and CCI being dealt a “death blow” when he was denied Debtor in
Possession status a few months later (an event which “furthered” the Defendant’s goal), ¶ 98.
However, Mr. Witt did not commence this action until May 2016, meaning that the acts
constituting the RICO claim must have occurred on or after May 2012. The Defendants have not
raised statute of limitations as a basis for dismissal, and thus, the Court does not reach it at this
time; however, it appears that many of the most significant events underlying Mr. Witt’s RICO
claim fall outside that limitations period, making the need to fix precise dates for each pertinent
event even more important.
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From the time Lane and Snider made their first fraudulent claims
and defenses until they settled with [CCI’s bankruptcy Trustee] in
late 2012 and 2013 by dismissing 100% of the amounts they
alleged they were owed in their criminally fraudulent proofs of
claim, each of them made multiple threats against Witt including
death threats and incarceration, and threatened to continue to
destroy Witt’s companies and his reputation, unless he agreed to
testify in support of their positions in the litigation with [Mr. Witt].
Lane also, like he did with Haslam, threatened to have Witt
prosecuted for conspiring to commit fraud against IndyMac.
Before the Court can analyze this allegation, it must parse it. The Court understands the first
sentence to be primarily an allegation that Mr. Lane and Mr. Snider “made multiple threats
against Witt” to induce him to give certain testimony; the remainder of the sentence appears to
be a lengthy temporal clause locating when in time those threats were made – i.e. from the date
they filed claims in the bankruptcy to the date they settled with CCI’s Trustee. The second
sentence alleges a separate threat by Mr. Lane against Mr. Witt.
The Court quickly disposes of the second sentence, as Mr. Witt does not allege that Mr.
Lane’s threats to expose Mr. Witt’s alleged fraud against IndyMac were themselves “an unlawful
act” as required by C.R.S. § 18-3-207(1)(b), nor that Mr. Lane lacked legal authority to report
such fraud should he choose to do so. That leaves the first sentence’s allegation that Mr. Lane
and Mr. Snider made “multiple threats” to Mr. Witt to induce him to give testimony favoring
them in the bankruptcy proceeding. Once again, such allegations fail to do a lack of specificity.
Mr. Witt offers only his own conclusory interpretation of Mr. Lane and Mr. Snider’s statements,
not the statements themselves. The particular language used by Mr. Lane and Mr. Snider is
important, as certain types of threats – threats to kill him or seek his prosecution – might suffice
to satisfy C.R.S. § 18-3-207(1)(b), but more generalized “threats” – such as threats to “destroy
his companies and reputation” – may not. A threat to destroy Mr. Witt’s business or reputation
does not, in and of itself, constitute Extortion; there must be a explicit threat to achieve that
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destruction through the performance of a particular unlawful act. See generally Whimbush v.
People, 869 P2d 1245, 1249 (Colo. 1994) (holding as unconstitutional a prior version of the
statute that lacked the provisions of subsection (1)(b), as that prior version “draws no distinction
between [threats to perform] ‘lawful’ and ‘unlawful’ acts”). Paragraph 110 also leaves vague the
question of whether the “threats” Mr. Lane and Mr. Snider made to compel Mr. Witt’s testimony
may have been made with lawful authority, that is, through Mr. Lane and Mr. Snider’s power as
litigants to compel the testimony of knowledgeable witnesses. Once again, because the
allegations in Paragraph 110 are conclusory and incomplete, the Court finds that they are
insufficient to allege a predicate act of Extortion.
The Court then resumes its excursion through the remainder of the Amended Complaint
for other instances in which Mr. Witt expressly identifies a particular act as Extortion. In
paragraph 250, Mr. Witt alleges that Mr. Semmens “engag[ed] in extortion to further [the
enterprise’s] goal,” referring the reader to more than a dozen paragraphs found at paragraphs
266-275. Several of these paragraphs are mere statutory quotations of no particular pleading
value. The first paragraph that is actually pertinent, ¶ 268, is typical of Mr. Witt’s elusive
pleading style: it refers the reader back to back to paragraphs 48 and 49, as well as forward to
subsequent paragraphs 273 and 274. The Court pauses to examine each of these.
Paragraph 48 alleges that, shortly after his termination from CCI, Mr. Lane “engaged in a
pattern of sending voluminous communications to all of the officers and employees of [CCI] to
pressure CCI to fund construction draws above the limits in his loan agreements.” This does not
allege several of the elements of Extortion, most notably Mr. Lane’s lack of lawful authority to
“send[ ] voluminous communications,” nor Mr. Lane threatening to perform any unlawful act.
Moreover, as previously noted, Mr. Witt’s conclusory characterization of Mr. Lane’s

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communications does not suffice to plead the particular contents of the communications, nor the
date and recipients of such communications. Thus, Paragraph 48 fails to adequately allege a
predicate act of Extortion.
Paragraphs 273 and 274 are lengthy, and the Court will not repeat them verbatim. It is
sufficient to observe that they relate to communications in 2015 between Mr. Semmens and Mr.
Witt (or, perhaps, their lawyers), relating to Mr. Semmens’ making settlement demands upon Mr.
Witt in unspecified litigation (perhaps the Arapahoe County judgment collection suit). Mr. Witt
alleges that Mr. Semmens has threatened him with imprisonment, contempt proceedings, and
“brutal litigation” unless Mr. Witt agreed to accept a settlement offer. Putting aside profound
questions as to whether Mr. Witt has adequately alleged that Mr. Semmens lacked legal authority
to make the various threats described in these paragraphs, the Court is mindful of Bixler, 596
F.3d at 758, in which the 10th Circuit “refused to “recogniz[e] abusive litigation as a form of
extortion [because doing so] would subject almost any unsuccessful lawsuit to a colorable
extortion (and often a RICO) claim.” All of the allegations in Mr. Witt’s Paragraphs 273 and
274 turn on “abusive litigation” actions, and Bixler makes clear that such allegations “do[ ] not
state a RICO predicate act.”
Returning again, to the remaining instances of Mr. Witt alleging Extortion in the
Amended Complaint, paragraph 411 uses the term to describe the Defendants using “the pretext
of a legitimate legal claim . . . to extort money from him.” For the same reasons discussed
above, this generalized assertion of abusive litigation techniques fails to state a predicate act.
Paragraphs 414 and 416 essentially repeat the same allegations as Paragraphs 273 and 274, and
fail for the same reason.
Thus, Mr. Witt has not adequately alleged any predicate actions of Extortion.

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Witness Tampering
18 U.S.C. § 1512(a)(2) provides that a person who “uses physical force or the threat of
physical force against any person,” and does so with the intent to “influence, delay, or prevent
the testimony of any person in an official proceeding” or to “cause [the] person to withhold
testimony,” destroy evidence, evade process, or fail to appear as a witness, is guilty of the crime
of Witness Tampering.
Mr. Witt alleges that the Defendants committed the RICO predicate act of Witness
Tampering. His only allegations in this regard refer to Paragraph 110, quoted above, in which
Mr. Lane and Mr. Snider allegedly threatened him in order to induce him to give testimony
favorable to them in the bankruptcy proceeding. The Court’s prior discussion highlights several
defects with that contention as currently pled, all of which apply with equal force to Mr. Witt’s
allegation that such conduct constituted Witness Tampering. In addition, Paragraph 110 is
deficient in an additional respect: assuming Mr. Witt has adequately alleged that Mr. Witt and
Mr. Snider threatened him with physical force, he has not alleged that the purpose of such a
threat was to influence Mr. Witt’s testimony, 18 U.S.C. § 1512(a)(2)(A), or to induce Mr. Witt to
withhold testimony, 18 U.S.C. § 1512(a)(2)(B). Mr. Witt alleges only that Mr. Lane and Mr.
Snider threatened him “to testify in support of their positions in the litigation”; he does not allege
that such testimony was contrary to the testimony Mr. Witt would otherwise give. In other
words, Mr. Witt’s allegation is that susceptible to an interpretation that Mr. Witt was reluctant to
give truthful testimony that would harm CCI (and benefit Mr. Lane and Mr. Snider), and that Mr.
Lane and Mr. Snider made threats against Mr. Witt simply intended to compel Mr. Witt to
appear and give such truthful testimony. Such conduct would not constitute a violation of 18

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U.S.C. § 1512(a)(2). For these reasons, the Court finds that Mr. Witt has not adequately pled the
RICO predicate act of Witness Tampering.
Witness Retaliation
Similarly, 18 U.S.C. § 1513(b) provides that a person who “threatens” to “cause[ ] bodily
injury to another person or damages the tangible property of another person,” and who performs
such acts with the “intent to retaliate against any person for the attendance of a witness or party
at an official proceeding,” commits the crime of Witness Retaliation.
The Amended Complaint appears to allege a single instance of Witness Retaliation, in
that Mr. Lane and Mr. Snider “continued with multiple threats against Witt of violent retaliation
and incarceration, and made ongoing threats to destroy Witt’s life” after they settled their
adversary claims with CCI’s Trustee. As the preceding discussion establishes, Mr. Witt’s
conclusory characterization of the contents of these threats and the failure to identify the date,
content, and recipient of such threats render such allegations insufficient under Iqbal. Moreover,
threats of “incarceration” and generalized threats to “destroy Witt’s life” – as opposed to threats
of actual physical violence – would seem to fall outside the narrow scope of what 18 U.S.C. §
1513(b) covers. The statute expressly refers to threats of “bodily injury” and “damage[ to]
tangible property,” and although Mr. Witt has copiously alleged the Defendants’ intention to
violate his intangible property – that is, CCI – he offers no allegations that the Defendants
damaged or threatened to damage any tangible property belonging to him. Finally, the statute
applies only to retaliation relating to a person who has actually appeared as a witness at a
proceeding; here, Mr. Witt’s allegations seem to suggest that he refused to appear and testify
with regard to the adversary proceedings, thus removing such allegations from the statute’s reach
altogether. Thus, the Court finds that Mr. Witt’s vague and conclusory assertions that the

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Defendants threatened him physically following the settlement of the adversary proceedings fails
to adequately allege a predicate act of Witness Retaliation.
Bankruptcy Fraud
Finally, RICO recognizes fraud in connection with bankruptcy proceedings as predicate
acts. Because these predicate acts sound in fraud, they are subject to the heightened pleading
requirements of Fed. R. Civ. P. 9(b). First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385
F.3d 159, 178 (2d Cir. 2004). Thus, Mr. Witt must not only plead the particular details of each
fraudulent act – that is, “the identity of the person making the misrepresentation, the time, place,
and content of the misrepresentation, and the method by which the misrepresentation was
communicated” -- but he must also plead facts that give rise to a strong inference of fraudulent
intent on the Defendants’ part. Id.; Wade v. Hopper, 993 F.2d 1246, 1250 (7th Cir. 1993).
A person commits bankruptcy fraud when he or she “knowingly and fraudulently makes
a false declaration, certificate, verification, or statement under penalty of perjury . . . in relation
to any case under Title 11.” Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991). Mr. Witt
must also plead facts showing how he was injured by the Defendants engaging in fraud in CCI’s
bankruptcy. Id.
The Amended Complaint recites the various creditor claims that Mr. Lane filed in CCI’s
bankruptcy, all in April 2009. ¶ 67-71. Putting aside any other defects in Mr. Witt’s pleading of
predicate acts based on these filings, the allegations fail for a simple reason: they predate the
formation of the alleged RICO enterprise. Mr. Witt alleges that the enterprise – the combination
of Mr. Witt and Mr. Snider – “formed [when] they agreed among other things to a shared
purpose to use their companies’ alleged creditor status in the CCI case . . . to abuse the
bankruptcy process itself.” ¶ 76. The Amended Complaint appears to allege that this agreement

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occurred at the first creditors’ meeting on May 27, 2009. Thus, Mr. Lane’s allegedly fraudulent
presentation of claims in April 2009 could not have been acts in furtherance of a RICO enterprise
that was not formed until a month later; at best, they were acts that Mr. Lane took as an singular
individual. Thus, Mr. Lane’s filing of claims against CCI cannot constitute RICO predicate acts.
The Amended Complaint alleges that Mr. Lane and Mr. Snider filed additional claims
against CCI in the bankruptcy court in February 2010 (and again in 2011), but notably, it does
not proceed to assert that these claims were fraudulent. ¶ 102-104, 107. At this point in time,
CCI was represented by a U.S. Trustee, who sought to disallow Mr. Lane and Mr. Snider’s
claims. Again, it is notable that Mr. Witt does not allege that the Trustee ever sought to have Mr.
Lane and Mr. Snider’s claims deemed “fraudulent” in any way. Given the degree of particularity
that is required for claims of bankruptcy fraud, the Court cannot say that Mr. Witt has carried his
burden in pleading that the 2010 or 2011 claims filed by Mr. Lane and Mr. Snider constitute
bankruptcy fraud sufficient to constitute a RICO predicate act.
The remainder of the Amended Complaint goes on to describe later bankruptcy
proceedings, brought by CCI’s Trustee against Mr. Witt himself, but nothing in these allegations
indicate that any Defendant signed or submitted any fraudulent statement in connection with
them, only that CCI’s Trustee acted at their urging. Accordingly, the Court finds that Mr. Witt
has not sufficiently pled any RICO predicate act premised upon bankruptcy fraud.
Because the Court finds that Mr. Witt has not pled any RICO predicate acts, his RICO
claim must be dismissed for failure to state a claim.
The dismissal of the RICO clam is fatal to this Court’s subject-matter jurisdiction, which
is premised solely upon federal question jurisdiction under 28 U.S.C. § 1331. It does not appear
that there is any other basis for federal subject-matter jurisdiction; most notably, there is no

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indication that the parties are diverse, such that federal jurisdiction would be appropriate under
28 U.S.C. § 1332.
C. State law claims and counterclaims
Because the Court has concluded that it lacks subject-matter jurisdiction over Mr. Witt’s
federal claim, the exercise of supplemental jurisdiction over the state law claims is inappropriate.
28 U.S.C. § 1367(c)(3). Accordingly, the Court declines to reach the remainder of the
Defendants’ motions.
The Court also finds it appropriate to dismiss Mr. Lane’s counter- and other claims for
lack of subject matter jurisdiction. To the extent Mr. Lane piggybacks on Mr. Witt’s invocation
of federal jurisdiction, dismissal of Mr. Witt’s RICO claim deprives this Court of any subjectmatter jurisdiction. Whether Mr. Lane himself states a counter- or other claim that
independently gives rise to federal jurisdiction is a question whose consideration is immediately
hampered by several procedural defects.
First, it is difficult to ascertain exactly what document constitutes Mr. Lane’s actual
Answer. Docket # 81, 82, and 83 all purport to be Answers, all bear separate stamps indicating
that they were filed with the Clerk’s Office on February 10, 2017 (at 3:54 p.m, 3:55 p.m., and
3:56 p.m. respectively), and all three are at least somewhat distinct in their contents. On
February 24, 2017, Mr. Witt filed two more documents, Docket # 84 and 85, both purporting to
be Amended Answers. (It is not immediately clear to the Court whether these two documents
differ in their extensive content, although the Court notes that the docket indicates that Docket
#84 is 492 pages long, whereas Docket #85 is a mere 459 pages.)
Second, all five purported Answers are captioned as “Answer to Complaint and Motion
to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [...].” Taking this legend at face value –

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that is, understanding the documents to be both Answers and motions to dismiss-- the
documents run afoul of D.C. Colo. L. Civ. R. 7.1(d)’s requirement that “a motion shall be filed
as a separate document,” not included with any other filing.
Third, all versions of Mr. Lane’s purported Answers utterly fail to comply with Rule 8’s
“short and plain statement” requirement. Each one contains at least 150 pages of text, often
presented in a single paragraph that spans dozens of pages. The document repeatedly reference
multi-page bullet-pointed lists of “Allegations, Additional Parties, Individuals, Entities,
Agreements” containing dozens of names, but nowhere does Mr. Lane clearly delineate which
person(s) he intends to name as defendants on his claims. Mr. Lane asserts twenty
counterclaims, sounding in common-law fraud, various flavors of tortious interference with
existing and prospective contracts, breach of contract, various conspiracies to accomplish these
torts, and claims for “attorney misconduct,” among other things. Many of these “claims” are
nothing more than identical bits of cut-and-paste boilerplate bearing no relationship whatsoever
to the “claim” they support. For example, his Third Claim, sounding in “negligent interference
with contract,” consists of 24 paragraphs of allegations: two incorporate by reference all of the
preceding contents of the Answer; three recite the elements of common-law fraud and posit that
Mr. Lane should enjoy a discovery-based accrual date of 2015 for his common-law fraud claims
for limitations purposes, yet an accrual date of 2008 for damages purposes; and the remaining 19
paragraphs are assertions that Mr. Lane has been damaged in specified amounts in 19 different
respects by the conduct alleged in the remainder of the Answer. An identical set of 24
paragraphs support his Fourth Claim, sounding in tortious interference with contract; his Sixth
Claim, sounding in intentional interference with prospective advantage; his Seventh and Eighth

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Claims, sounding in fraud on the bankruptcy court and conspiracy to defraud the bankruptcy
court, and so on.
Extending Mr. Lane all the benefits of liberal construction that come with his pro se
status, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the Court nevertheless finds nothing in
Mr. Lane’s counterclaims that would constitute a well-pled claim over which this Court could
exercise subject-matter jurisdiction. Even if the Court were to assume that his claims captioned
“Fraud on the Bankruptcy Court” and “Internal Revenue Service Fraud” could conceivably
invoke federal law under 28 U.S.C. § 1331 -- a doubtful prospect in any event – the body of
those claims are nothing more than the same irrelevant boilerplate that underlies Mr. Lane’s
many other “claims.” In such circumstances, the Court is not inclined to search further for a
reason to exercise jurisdiction over Mr. Lane’s counterclaims. Accordingly, those claims are
dismissed for lack of subject-matter jurisdiction as well.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Defendants’ Motions to Dismiss (#
30, 32, 66), insofar as the Court DISMISSES Mr. Witt’s First Claim for Relief under the RICO
Act for failure to state a claim under Rule 12(b)(6). Upon that dismissal, the remaining claims
by Mr. Witt and all claims by Mr. Lane are DISMISSED for lack of federal subject-matter

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jurisdiction. In light of the dismissal of all claims, the Clerk of the Court shall terminate all
remaining motions and close this case.
Dated this 19th day of May, 2017.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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