SOUTH EAST ENTERPRISE GROUP LLC et al v. GILL et al

Filing 53

ORDER granting in part and denying in part 34 Motion for Judgment on the Pleadings. Ordered by US DISTRICT JUDGE CLAY D LAND on 05/29/2015. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SOUTH EAST ENTERPRISE GROUP
LLC, et al.,

*
*

Plaintiffs,
*
vs.

CASE NO. 4:15-cv-25 (CDL)
*

JOHN GILL, et al.,
*
Defendants.
*
O R D E R
This action is the third in a series of civil cases before
this Court involving the same main characters fighting over the
Gill Family Cornerstone Trust enterprise, built by John Gill.
Before the fighting began, John Gill amassed an empire of rental
properties, took a vow of poverty, placed the properties into
holding
continued

trusts
to

that

manage

benefitted
the

the

properties

Cornerstone
(and

derive

Trust,

and

benefit

from

them) with the help of Kevin Hartshorn and Dan Van Gasken.

But

then John Gill was convicted of crimes in Florida, and he fled
the country instead of reporting to prison.

The power vacuum

created by John Gill’s absence pitted Hartshorn and Van Gasken
against John Gill’s brother Loren.

They have been fighting in

this Court ever since, most recently filing this third separate
lawsuit.

Contending that this latest action is nothing new,

Defendants seek judgment on the pleadings based on res judicata.

In the first action, Eastern Property Development, LLC and
South

East

Enterprise

Group,

LLC

v.

Loren

Gill,

4:11-cv-62

(“Trespass Action”), Eastern Property and SEE, which are managed
by Hartshorn and Van Gasken,

accused Loren of breaking into

their offices, changing their locks, diverting their funds to
his bank account, and generally meddling with their operations
during the summer of 2011.
claims

against

Loren

Eastern Property and SEE brought

Gill

for

trespass,

interference with contractual relations.

conversion,

and

In September 2012, a

jury found in favor of Eastern Property and SEE and against
Loren Gill on those claims.
In the second action, Kaitlyn Gill and Lauren Gill v. Loren
Gill and Elm Leasing, LLC, 4:12-cv-77 (“Elm Leasing Action”),
John Gill’s daughters—Kaitlyn and Lauren, who were beneficiaries
of the Cornerstone Trust—formed an alliance with Van Gasken,
trustee

of

Cornerstone
Loren of
assets

the

real

Trust,

estate

against

their

working with John

to

Loren’s

own

holding

Gill

company.

trusts

uncle

Loren.

to divert
The

that

Gill

benefit
They

the

accused

Cornerstone Trust
daughters

brought

claims against Loren under the federal Racketeer Influenced and
Corrupt

Organizations

Act

(“RICO”),

18

U.S.C. §§

Van Gasken did not assert RICO claims in that case.

1962,

1964.

Rather, Van

Gasken brought a conversion claim against Loren Gill on behalf
of the real estate holding trusts.

2

In September 2014, a jury

found in favor of Van Gasken on his claim against Loren Gill.
And the jury found that while Loren Gill engaged in a pattern of
racketeering

activity,

that

pattern

of

racketeering

activity

caused $0 in damages to the Gill daughters.
In the present action, Plaintiffs SEE, Eastern Property,
Hartshorn as trustee of the Cornerstone Trust, Van Gasken as
trustee of the real estate holding trusts, Order of the IAL,
Inc., and Multi Marts Corp. square off against Defendants John
Gill, Loren Gill, Michael Gill (John and Loren’s brother), PMCA,
LLC (a company the Gill brothers control), and Steve Thomas.
Plaintiffs

allege

a

federal

RICO

claim

against

Defendants,

claiming that Defendants formed an enterprise in 2011 and, using
the U.S. mail and interstate wire communications, have engaged
in a fraudulent scheme to deprive Plaintiffs of money and injure
their business.

Am. Compl. ¶¶ 37, 68, ECF No. 23.

Based on the

same allegations, Plaintiffs also assert state law claims for
interference with contract and interference with a prospective
business advantage.
Defendants seek judgment on the pleadings, arguing that all
of Plaintiffs’ claims are barred by res judicata.
alternatively

seek

dismissal

of

Plaintiffs’

RICO

Defendants
claims

for

failure to state a claim and Plaintiffs’ failure to comply with
the Court’s rules regarding RICO claims.

3

As discussed below,

Defendants’ Motion for Judgment on the Pleadings (ECF No. 34) is
granted in part and denied in part.
JUDGMENT ON THE PLEADINGS STANDARD
“Judgment on the pleadings is appropriate where there are
no material facts in dispute and the moving party is entitled to
judgment as a matter of law.”
F.3d

1329,

omitted).

1335
“In

(11th

Cir.

determining

Perez v. Wells Fargo, N.A., 774
2014)

(internal

whether

a

party

quotation
is

marks

entitled

to

judgment on the pleadings,” the Court must “accept as true all
material facts alleged in the non-moving party’s pleading” and
“view those facts in the light most favorable to the non-moving
party.”

Id.
FACTUAL ALLEGATIONS

Plaintiffs

base

their

claims

in

the

present

action

on

Defendants’ alleged conduct during two main timeframes: 2011 and
2015.

Plaintiffs allege that during 2011:

1. Loren Gill forged papers stating that he was a trustee of
the real estate holding trusts managed by SEE and Eastern
Property, then sent those papers via interstate wire
communications. Am. Compl. ¶ 49.
2. Relying on the forged document stating that he was a
trustee of the real estate holding trusts, Loren Gill sent
an interstate wire communication purporting to fire Van
Gasken from his role as trustee.
Id. ¶ 50.
Loren Gill
also used the forged documents to assume management of SEE
and Eastern Property.
Id. ¶ 51.
He also opened a bank
account in Columbus, Georgia so that he could divert money
to himself from SEE and Eastern Property, and he used the
interstate wires to divert the funds. Id. ¶¶ 52-53.

4

3. Loren Gill filed a fraudulent Notice of Claim of Ownership
in the Muscogee County, Georgia Superior Court stating that
Loren Gill was the president of Multi Marts and that Van
Gasken had never owned any Multi Marts stock, then caused
the notice to be sent via U.S. mail. Id. ¶ 54.
4. Loren Gill made an affidavit falsely stating that he was a
trustee of the real estate holding trusts, then filed it in
the Muscogee County, Georgia Superior Court and caused it
to be sent via U.S. mail. Id. ¶ 55.
5. Loren Gill created a fraudulent deed purporting to transfer
property owned by Van Gasken to himself, then caused the
deed to be mailed via U.S. mail and to be recorded in the
County Recorder’s Office in Pierce County, Washington. Id.
¶ 56. He also filed a lien on the property. Id. ¶ 57.
6. Loren Gill filed a false statement in this Court swearing
that he was a trustee of the real estate holding trusts
when he knew he was not. Id. ¶ 59.
7. John Gill induced Loren Gill to
Plaintiffs’ property. Id. ¶¶ 35, 61.

threaten

to

injure

8. Loren Gill sent a letter via U.S. mail to every SEE and
Eastern Property tenant instructing the tenants to pay
their rent to his company, even though his company had no
authority to receive the payments. Id. ¶ 64.
Plaintiffs allege that during 2015:
1. Defendants forged Van Gasken’s letter of resignation from
his position as trustee of the real estate holding trusts
and caused it to be sent through the U.S. mail and to be
recorded in the Muscogee County, Georgia Superior Court,
creating an encumbrance on all properties held by those
trusts. Id. ¶ 40.
2. Defendants forged Hartshorn’s resignation from his position
as trustee of the Cornerstone Trust and caused it to be
sent through the U.S. mail and to be recorded in the
Muscogee County, Georgia Superior Court, then sent an
“acceptance” of Hartshorn’s resignation via interstate wire
communication. Id. ¶¶ 41, 43.
3. Defendants forged Van Gasken’s signature on a purported
mortgage securing a purported debt owed by one of the real
estate holding trusts to Elm Leasing, which is Loren Gill’s

5

company, and caused it to be sent through the U.S. mails
and to be recorded in the Lee County, Alabama Recorder’s
Office. Id. ¶ 42.
4. Defendants forged a quitclaim deed purporting to convey
properties from the Order of the IAL to an entity owned by
John Gill, then they caused it to be sent through the U.S.
mail and to be recorded in the Muscogee County, Georgia
Superior
Court,
creating
an
encumbrance
on
those
properties. Id. ¶ 44.
5. Defendants forged a quitclaim deed purporting to convey
properties from Multi Marts to an entity owned by John
Gill, then caused it to be sent through the U.S. mail and
to be recorded in the Muscogee County, Georgia Superior
Court, creating an encumbrance on those properties.
Id.
¶ 45.
6. Defendants sent a letter via U.S. mail to tenants of SEE
and Eastern Property, directing that all future rent
payments be directed to PMCA, LLC. Id. ¶¶ 46-47.
7. Defendants forged a transfer assignment document that
purported to transfer ownership of 50,000 shares of Multi
Marts stock from Van Gasken to John Gill and sent the
document via interstate wire communication. Id. ¶ 48.
Plaintiffs contend that each one of these actions is a
separate predicate act within the meaning of RICO and that these
acts proximately caused injury to their business and property.
Id. ¶ 68.

Plaintiffs acknowledge that they are not seeking

damages for the conversion the jury found in the Elm Leasing
Action; these facts are simply offered in support of Plaintiffs’
allegation that Defendants engaged in a pattern of racketeering
activity.

Id. ¶ 25 n.2.
DISCUSSION

Defendants

argue

that

the

present

action

involves

essentially the same claims asserted by the same parties in the
6

previous Trespass and Elm Leasing Actions.

Defendants therefore

maintain that this action is barred by res judicata.1

Defendants

also contend that Plaintiffs’ RICO claim must be dismissed even
if

it

is

not

barred

by

res

judicata

because

Plaintiffs’

allegations do not support that claim and because Plaintiffs did
not comply with the Court’s local rules regarding RICO claims.
The Court first addresses Defendants’ res judicata defense.
A.

Res Judicata

“Res judicata bars the filing of claims which were raised
or could have been raised in an earlier proceeding.”
v.

Rubbermaid,

Inc.,

193

F.3d

1235,

1238

(11th

Ragsdale

Cir.

1999).

“Under Eleventh Circuit precedent, a claim will be barred by
prior

litigation

if

all

four

of

the

following

elements

are

present: (1) there is a final judgment on the merits; (2) the
decision was rendered by a court of competent jurisdiction; (3)
the parties, or those in privity with them, are identical in
both suits; and (4) the same cause of action is involved in both
cases.”

Id.

It is undisputed that there was a final judgment

on the merits rendered by a court of competent jurisdiction in
the

Trespass

and

Elm

Leasing

Actions.

Plaintiffs

maintain,

however, that neither the parties nor the claims in the previous
actions

are

the

same

as

those

1

in

the

present

action,

and

Defendants do not argue that Plaintiffs’ claims are precluded by the
related principle of collateral estoppel.

7

therefore, res judicata does not bar their present claims.

The

Court

are

must

therefore

determine

whether

the

same

parties

involved, and, if they are, whether the same claims are being
asserted.

The Court applies the following principles to make

this determination.
In determining whether the same parties are involved, the
general rule is that “one is not bound by a judgment in personam
in a litigation in which he is not designated as a party or to
which he has not been made a party by service of process.”
Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th
Cir.

2010)

(internal

quotation

marks

omitted).

several exceptions to this general rule.

There

are

A nonparty may be

bound by a judgment if “a substantive legal relationship existed
between the person to be bound and a party to the judgment.”
Id.

A

nonparty

may

also

be

bound

if

“the

nonparty

was

adequately represented by someone who was a party to the suit.”
Id.

And a nonparty may be bound if the nonparty agreed to be

bound by the prior litigation, if “the nonparty assumed control
over the litigation in which the judgment was issued,” if “a
party attempted to relitigate issues through a proxy,” or if “a
statutory

scheme

nonlitigants.”

foreclosed

successive

litigation

by

Id.

Upon determining that the same parties are involved in both
actions, the Court must next decide whether the same claims are

8

being asserted.

If an action “arises out of the same nucleus of

operative facts, or is based upon the same factual predicate, as
a former action, . . . the two cases are really the same ‘claim’
or ‘cause of action’ for purposes of res judicata.”

Griswold,

598 F.3d at 1293 (alteration in original) (internal quotation
marks omitted).

Guided by these principles, the Court compares

the claims asserted in the present action with those in the
previous Trespass and Elm Leasing Actions.
1.

The Barred Claims
a.

Plaintiffs

EASTERN PROPERTY AND SEE CLAIMS
LOREN GILL IN TRESPASS ACTION
allege

that

Loren

Gill

relied

AGAINST

on

forged

documents to assume control of Eastern Property and SEE during
2011 and to divert Eastern Property and SEE funds to his own
account.

Am. Compl. ¶¶ 49-53.

These are the facts that Eastern

Property and SEE relied on to establish their claims in the
Trespass

Action.

Plaintiffs

appear

to

concede

that

Eastern

Property and SEE cannot recover damages from Loren Gill for this
conduct because they already received a judgment against him in
the Trespass Action.

So, to the extent that Eastern Property

and SEE intend to assert additional damages claims against Loren
Gill for that conduct, those claims are barred.
not

necessarily

mean

that

Eastern

Property,

But this does
SEE,

and

other

parties may not rely on evidence of Loren Gill’s conduct to

9

establish a pattern of racketeering activity.
that

res

judicata

bars

Eastern

Property

It simply means

and

SEE

from

re-

litigating their Trespass Action claims against Loren Gill.
b.

VAN GASKEN’S RICO CLAIMS AGAINST LOREN GILL
BASED ON ELM LEASING ACTION FACTS

Van Gasken, in his capacity as trustee of the real estate
holding trusts, received a judgment against Loren Gill on his
conversion claim in the Elm Leasing Action, so

res judicata

obviously bars him from re-litigating that claim.

Plaintiffs

acknowledge that they are not seeking additional damages based
on the conversion.

Am. Compl. ¶ 25 n.2.

Defendants also argue that Van Gasken could have brought
his present RICO claims in the Elm Leasing Action.

Since the

parties (Van Gasken and Loren Gill) are the same, the Court next
evaluates whether the claims are the same.

In deciding whether

two cases comprise the same cause of action, the Court must
“line up the former and current cases side-by-side to assess
their factual similarities.”
N.Y.,

Inc.,

assessing

610

the

F.3d

factual

1296,

Borrero v. United Healthcare of
1309

(11th

similarities,

the

Cir.

2010).

Court

must

And

in

determine

whether there is a disparity in facts and evidence needed to
prove

the

two

claims.

Id.

For

example,

in

Borrero,

the

Eleventh Circuit concluded that the plaintiffs’ contract-based
claims were not the same cause of action as the RICO claims

10

raised in a prior action because the evidence presented in the
prior action was only tangentially relevant to the claims raised
in the new action.
In the Elm Leasing Action, Van Gasken brought a conversion
claim based on Loren Gill’s plot to “take back” the real estate
holding trust assets for John Gill.
continued for several years.

That plot began in 2005 and

Though Van Gasken insists that the

Elm Leasing Action only involved actions that John Gill and
Loren Gill took between 2005 and 2009, the evidence at trial
included evidence that by the fall of 2011 (well before Van
Gasken filed his claims against Loren Gill in late 2012), Van
Gasken knew that Loren Gill was working with John Gill to find a
solution for the money problems John Gill faced while a fugitive
and that John Gill had instructed Loren Gill to “burn” the whole
Cornerstone Trust enterprise if he could not convince Van Gasken
to send money to John Gill.
While evidence of fraud and collusion might be tangential
and

unnecessary

in

a

run-of-the-mill

conversion

case,

that

evidence was essential to Van Gasken’s claim in the Elm Leasing
Action.

Van Gasken’s theory of the case was that Loren Gill

colluded with John Gill to defraud him into transferring assets
from the real estate holding trusts benefitting the Cornerstone
Trust to Elm Leasing.

Van Gasken relied on that evidence to

support his claim that Loren Gill worked for years with John

11

Gill to convert Cornerstone Trust assets.

He also relied on

that

Gill

evidence

to

establish

that

Loren

fraudulently

concealed the conversion; without the fraudulent concealment,
Van Gasken’s claims would have been time-barred.

Van Gasken did

not assert his claims under a RICO theory in the Elm Leasing
Action

based

on

the

Gill

brothers’

plot

to

take

back

the

Cornerstone Trust properties for John Gill, but the Court is
satisfied that he could have, as the Gill daughters did.

Res

judicata thus bars Van Gasken’s present RICO claim against Loren
Gill that is based on the 2011 conduct related to the real
estate holding trust assets.
any

state

law

claims

against

To the extent Van Gasken asserts
Loren

Gill

based

on

that

2011

conduct, those claims are likewise barred.2

2

Defendants contend that there is sufficient identity of the parties
for Van Gasken’s RICO claims to be barred against all the present
Defendants, who are alleged to be co-conspirators with Loren Gill.
While it is true that the courts generally find that sufficient
identity of parties exists between co-conspirators, that is only when
the co-conspirators were at least alleged in the prior action.
See,
e.g., Powell v. Gorham, No. 2:13-cv-0055-LSC, 2013 WL 3151632, at *11
(N.D. Ala. June 14, 2013) (collecting cases).
In the Elm Leasing
Action, Van Gasken established that Loren Gill conspired with his
brother John Gill to defraud Van Gasken into converting Cornerstone
Trust assets. But it was not clear in the Elm Leasing Action that Van
Gasken was alleging that the conspiracy included Steve Thomas, Michael
Gill, and PMCA, LLC.
So Van Gasken’s RICO claim against those
Defendants is not barred by res judicata.
As for the claims against John Gill, it is not clear that the
Court could have exercised personal jurisdiction over him in the Elm
Leasing Action because he was (and still is) a fugitive who lives at
an undisclosed location outside the United States.
For that reason,
the Court concludes that Van Gasken’s RICO claim against John Gill is
not barred by res judicata.

12

2.
As
parties
claims

to

Remaining Claims Are Not Barred
the

and/or
are

remaining
the

not

claims,

claims

barred

are

by

res

the

Court

different,

finds

and

judicata.

that

the

therefore,

the

Defendants

argue

generally that there is sufficient identity of the parties and
claims to bar all of Plaintiffs’ present RICO claims.

They lump

all Plaintiffs together, all Defendants together, and all of the
basic

claims

analysis.

together,

which

makes

for

a

rather

muddled

But the parties and claims cannot be painted with

such a broad brush.

The Court thus endeavors to address the

parties and claims separately.
a.

RICO CLAIMS BASED ON TRESPASS ACTION FACTS

Defendants contend that none of the Plaintiffs may pursue
their RICO claims because they are based in part on the facts
that gave rise to the Trespass Action.

These facts include

allegations that Loren Gill relied on forged documents to assume
control of Eastern Property and SEE during 2011 and to divert
Eastern Property and SEE funds to his own account.
¶¶ 49-53.

Am. Compl.

Defendants contend that Eastern Property and SEE are

barred from asserting their RICO claims in the present action
because they could have raised them in the Trespass Action.

And

Defendants appear to assert that all of the other Plaintiffs are
barred from raising RICO claims based on the Trespass Action
facts because SEE and Eastern Property are barred from raising

13

them

and

there

is

sufficient

identity

Plaintiffs and SEE and Eastern Property.
however,

that

Eastern

Property

and

SEE

between

the

other

The Court concludes,
are

not

barred

from

asserting their RICO claims in the present action, including any
claims

based

in

part

on

the

facts

underlying

the

Trespass

Action, so none of the other Plaintiffs are barred.
Again, res judicata bars only claims that “were raised or
could have been raised in an earlier proceeding.”
F.3d at 1238 (emphasis added).

Ragsdale, 193

In the Trespass Action, SEE and

Eastern Property pursued claims based on Loren Gill’s conduct
during June of 2011.

Compl. ¶ 12, ECF No. 1 in 4:11-cv-62.

It

is not clear, however, that SEE and Eastern Property could have
brought a RICO action based on the handful of wrongful acts
Loren

Gill

committed

during

the

summer

of

2011.

The

Court

granted a temporary restraining order in June 2011 barring Loren
Gill from entering the premises of SEE and Eastern Property and
from holding himself out as acting for either entity.

Order

Granting Mot. for TRO, ECF No. 14 in 4:11-cv-62.

When Loren

Gill

a

later

violated

the

TRO

and

the

Court

held

contempt

hearing, he promised that he would not violate the TRO again.
Hr’g Tr. 90:9-21, Aug. 30, 2011, ECF No. 31 in 4:11-cv-62.
“Essential

to

any

successful

RICO

claim

are

the

basic

requirements of establishing a RICO enterprise and a ‘pattern of
racketeering activity.’”

Jackson v. BellSouth Telecomms., 372

14

F.3d 1250, 1264 (11th Cir. 2004).

“A pattern of racketeering

activity, for purposes of the RICO Act, requires at least two
acts

of

Inc.,

racketeering

465

(internal

F.3d

activity.”

1277,

quotation

1283

marks

Williams

v.

Cir.

2006)

(11th

omitted)

(finding

Mohawk

Indus.,

(per

curiam)

that

plaintiffs

alleged a pattern of racketeering activity because they alleged
that

the

defendant

predicate
requires

acts).
proof

themselves.

“committed
But

of

“a

pattern

something

That

hundreds,

beyond

something

racketeering activity.”

of

is

even

racketeering

the

the

thousands,

two

activity

predicate

threat

of

of”

acts

continuing

Jackson, 372 F.3d at 1265 (internal

quotation marks omitted).
To prove a pattern of racketeering activity, there must be
either

“a

series

of

substantial period of

related

predicates

extending

over

a

time” or “a specific threat” that the

racketeering acts will extend “indefinitely into the future.”
Id.

When

they

filed

the

Trespass

Action,

SEE

and

Eastern

Property were aware of a handful of wrongful acts that occurred
over a very short period of time, and Loren Gill promised under
threat of contempt that he would not commit any more wrongful
acts.

Based on these facts, SEE and Eastern Property would not

have been able to allege the continuity required for a RICO
claim.
have

The Court finds that SEE and Eastern Property could not

brought

the

RICO

claim

when

15

they

pursued

the

Trespass

Action.

Res

judicata

thus

does

not

bar

their

current

RICO

claims.3

And because res judicata does not bar the RICO claims

of SEE and Eastern Property based on the Trespass Action facts,
it also does not bar any other Plaintiffs’ RICO claims based on
those

facts

(even

if

there

were

sufficient

identity

of

the

parties).
b.

RICO CLAIMS
FACTS

BASED

ON

ELM

LEASING

ACTION

Defendants argue that if Van Gasken’s RICO claim based on
Loren Gill’s 2011 conduct related to the real estate holding
trust assets is barred by res judicata, then all of the other
Plaintiffs’
remaining

RICO

claims

Plaintiffs

were

are

likewise

either

parties

barred
in

because

the

Elm

the

Leasing

Action or there is sufficient identity between Van Gasken and
the

present

Plaintiffs.

The

Court

finds

this

argument

unpersuasive.
i.

Claims
Action

of

Parties to the Elm Leasing

Hartshorn was a party to the Elm Leasing Action because the
original plaintiffs in that case accused him of breaching his
fiduciary duty to the Cornerstone Trust.

Hartshorn brought a

crossclaim seeking a declaration that Loren Gill and others were
not trustees of the Cornerstone Trust.
3

He did not, however,

Again, Plaintiffs do not appear to seek damages based on these facts;
rather, they intend to rely on these facts to prove a pattern of
racketeering activity.

16

assert any crossclaims for damages against Loren Gill on behalf
of

the

parties

Cornerstone
to

the

Elm

Trust.
Leasing

SEE

and

Action

Eastern
because

Properties
they

properties that were at issue in that case.

were

managed

the

SEE and Eastern

Properties did not assert any crossclaims against Loren Gill.
“Under Fed. R. Civ. P. 13(g), cross claims are permissive
rather than compulsory and a party to an action has the option
to pursue it in an independent action.”

Dunn v. Sears, Roebuck

& Co., 645 F.2d 511, 512 n.1 (5th Cir. Unit A May 1981).

And,

simply bringing a crossclaim does not generally require a party
to bring all other crossclaims it might have had.

Answering

Serv., Inc. v. Egan, 728 F.2d 1500, 1503 (D.C. Cir. 1984).

For

these reasons, res judicata does not bar a party who decides not
to bring a crossclaim in one action from asserting the claim in
a later action.

Dunn, 645 F.2d at 512 n.1.

The claims of

Hartshorn, SEE, and Eastern Property based on Loren Gill’s 2011
conduct related to the real estate holding trust assets are thus
not barred by res judicata.
ii.

Claims of Order of the IAL and Multi
Marts

Order of the IAL and Multi Marts were not parties in the
Elm Leasing Action.

And the present pleadings certainly do not

establish that there is sufficient identity between them and Van
Gasken such that their claims should be barred.

17

The pleadings

do not establish that either Order of the IAL or Multi Marts
agreed to be bound by the prior litigation, that either of those
entities

assumed

control

over

the

prior

litigation,

or

that

either entity is just a proxy through which plaintiffs in the
prior

actions

are

attempting

to

re-litigate

issues.

The

pleadings also do not establish that either Order of the IAL or
Multi Marts was adequately represented in the prior action or
that

a

substantive

legal

relationship

existed

between

parties and the plaintiffs to the prior litigation.

those

Although

Van Gasken is president of Multi Marts, the Elm Leasing Action
did

not

involve

Multi

Marts

properties,

and

no

asserted on behalf of (or against) Multi Marts.

claims

were

Furthermore,

Van Gasken appeared in the Elm Leasing Action in his capacity as
trustee of the real estate holding trusts, not in his individual
or another capacity.

See Hurt v. Pullman Inc., 764 F.2d 1443,

1448 (11th Cir. 1985) (“Under basic principles of res judicata
jurisprudence, for a party to be bound by or take advantage of a
prior suit that party or its privy must not only have been
present in both suits, but it has to appear in the same capacity
in both suits.”).

In sum, the present pleadings do not reflect

that Order of the IAL and Multi Marts had an opportunity to
litigate

any

of

their

claims

in

the

Elm

Leasing

Therefore, their claims are not barred by res judicata.

18

Action.

c.

VAN
GASKEN’S
CONDUCT

CLAIMS

ARISING

FROM

2015

Defendants argue that if Van Gasken’s RICO claim based on
Loren Gill’s 2011 conduct related to the real estate holding
trust assets is barred by res judicata, then his entire RICO
claim

is

barred,

including

alleged conduct during 2015.

his

claim

based

on

Defendants’

In support of their argument,

Defendants cite precedent from other circuits suggesting that
res judicata bars a claim if a plaintiff could have amended his
complaint to assert it before adjudication on the merits in a
prior action.

See, e.g., Dubuc v. Green Oak Twp., 312 F.3d 736,

750 (6th Cir. 2002).

In Dubuc, for example, the Sixth Circuit

reasoned that the plaintiff could have amended his complaint to
include

new

allegations

of

First

Amendment

retaliation

occurred before his first lawsuit was dismissed.

Id.

that

Because

he did not, the Sixth Circuit found that the claims based on the
new allegations were barred.

The Sixth Circuit emphasized that

its

read

analysis

“should

not

be

to

preclude

the

victim

of

ongoing retaliation from filing multiple suits. If retaliation
persists after the victim prevails in an initial suit . . . then
res judicata would not affect access to the courts.”

Id.

Here, there is no way the claims based on the 2015 alleged
conduct could have been adjudicated in the Elm Leasing Action.
The alleged conduct did not occur until well after the case was

19

tried by a jury and a judgment was entered.
the

present

alleged

Complaint

racketeering

suggests

activities

disputes in this Court.

that
so

A fair reading of

Defendants

they

could

slowed

their

litigate

their

But when they lost the prior actions,

they resumed their alleged racketeering activities, causing new
damages.

Under these circumstances, the Court declines to find

that the new claims are barred by res judicata.

Defendants are

not entitled to judgment on the pleadings on claims based on
their alleged 2015 conduct related to the real estate holding
trusts.
3.

Summary

Res judicata only bars (1) Eastern Property and SEE from
re-litigating the claims they brought in the Trespass Action and
(2) Van Gasken from re-litigating any claims against Loren Gill
arising solely from the conduct giving rise to the Elm Leasing
Action.
B.

Motion to Dismiss Claims Not Barred by Res judicata

Defendants argue that even if Plaintiffs’ RICO claims are
not barred by
First,

res judicata, they should

Defendants

contend

that

the

RICO

still

be dismissed.

claims

should

be

dismissed because the factual allegations do not support a RICO
claim.

Defendants point out that several of Plaintiffs’ factual

allegations
documents.

relate

to

the

mailing

or

sending

of

litigation

Plaintiffs concede that “absent an intent to deceive

20

the victim, the mailing of litigation documents, even perjurious
ones,

did

not

violate

the

mail-fraud

statute.”

Raney

v.

Allstate Ins. Co., 370 F.3d 1086, 1088 n.2 (11th Cir. 2004) (per
curiam)

(internal

quotation

marks

omitted).

But

Plaintiffs’

RICO claims are not based entirely on the allegations regarding
litigation documents.

The presence of these allegations does

not justify dismissal of Plaintiffs’ RICO claims.
Second, Defendants argue that the RICO allegations are so
vague that they do not put Defendants on proper notice of what
conduct Plaintiffs contend supports their claims.
context,

the

Court

is

satisfied

that

the

When read in

allegations

in

Plaintiffs’ Complaint give Defendants sufficient notice of the
basis for Plaintiffs’ claims.
Finally, Defendants argue that Plaintiffs’ Complaint should
be dismissed because Plaintiffs did not comply with the Court’s
local rules on RICO Interrogatories.
supplemented

their

RICO

Plaintiffs, however, have

Interrogatories,

and

the

Court

finds

that dismissal is not warranted on this ground.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for
Judgment on the Pleadings (ECF No. 34) is granted as to (1) SEE
and Eastern Property’s claims against Loren Gill that are the
same as the claims they brought in the Trespass Action and (2)
Van Gasken’s claims against Loren Gill that are based solely on

21

Defendants’

2011

trust assets.

conduct

related

to

the

real

estate

holding

The motion is denied as to all other claims.

IT IS SO ORDERED, this 29th day of May, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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