Cory v. Bailey
Filing
31
MEMORANDUM AND ORDER granting 24 Motion to Dismiss. Signed by District Judge Monti L. Belot on 03/31/2015. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BILL S. CORY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MARTIN BAILEY,
Defendant.
CIVIL ACTION
No.
14-1258-MLB
MEMORANDUM AND ORDER
This case comes before the court on defendant’s amended motion
to dismiss. (Doc. 24). The motion has been fully briefed and is ripe
for decision.
(Docs. 25, 29, 30).
Defendant’s motion is granted for
the reasons herein.
I.
Facts
Defendant Martin Bailey is a resident of Texas and owns Fat
City, Co., a cattle operation in Texas. Plaintiff Bill Cory, a Kansas
resident, sells dairy hay to purchasers throughout the United States.
The hay is picked up and paid for by the purchaser at the Coop
Elevator in Concordia, Kansas.
In June 2011, defendant visited plaintiff’s farm but did not
purchase hay.
hay.
In July 2011, defendant called plaintiff to purchase
In August and September 2011, defendant purchased five loads of
hay and paid by check.
On September 6 and 13, defendant sent trucks
to Kansas to purchase hay but defendant did not pay for the hay that
was loaded onto the trucks.
On September 14, 2011, plaintiff
requested payment of $15,992.35 for the five loads of hay.
has not submitted a payment to plaintiff for the hay.
Defendant
Plaintiff brought this action asserting a claim for relief under
the civil federal Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. §§ 1961–1968 (“RICO”), and alleging a violation of the
Kansas Consumer Protection Act (KCPA).
(Doc. 20).
Defendant moves
to dismiss the amended complaint on the basis that it fails to state
a claim.
II.
(Doc. 24).1
Motion to Dismiss Standards: FRCP 12(b)(6)
The standards this court must utilize upon a motion to dismiss
are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).
All well-
pleaded facts and the reasonable inferences derived from those facts
are viewed in the light most favorable to plaintiff.
Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
Shero v.
In the
end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
1
Plaintiff contends that defendant’s motion to dismiss is
untimely because defendant filed an answer prior to filing his motion
to dismiss. Defendant filed a premature answer to plaintiff’s amended
complaint on December 12, 2014. (Doc. 14). Plaintiff then filed his
amended complaint on January 20, 2015. (Doc. 20). Defendant filed
his motion to dismiss six days later. (Doc. 22). Defendant then
filed an amended motion to dismiss after receiving plaintiff’s new
address. (Doc. 24). Defendant’s motion to dismiss is timely. Fed.
R. Civ. P. 12(b). Moreover, it is clear from Rule 12(h) that a motion
arguing a defense of failure to state a claim may be made after an
answer is filed without fear of waiver.
-2-
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
III. Analysis
A.
RICO
Section 1962(c) of RICO makes it illegal “for any person employed
by or associated with any enterprise engaged in, or the activities of
which
affect,
participate,
interstate
directly
or
or
foreign
indirectly,
commerce,
in
the
to
conduct
conduct
of
or
such
enterprise’s affairs through a pattern of racketeering activity or
collection of unlawful debt.”
under
§
1962(c),
a
18 U.S.C. § 1962(c).
plaintiff
must
allege
that
To state a claim
defendant:
(1)
participated in the conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity. Tal v. Hogan, 453 F.3d 1244, 1269 (10th
Cir. 2006).
Defendant contends that plaintiff’s amended complaint must be
dismissed because plaintiff has failed to allege that defendant
engaged in a pattern of racketeering activity.
is broadly defined by the statute.
offenses included in definition).
Racketeering activity
See 18 U.S.C. § 1961(1) (listing
A pattern of racketeering activity
“requires at least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the last of
which occurred within ten years (excluding any period of imprisonment)
after the commission of a prior act of racketeering activity.”
18
U.S.C. § 1961(5); see also Deck v. Engineered Laminates, 349 F.3d
1253, 1257 (10th Cir. 2003) (stating that a “pattern of racketeering
activity” must include at least two predicate acts).
Furthermore,
plaintiff
between
“must
show
two
elements–-‘a
relationship
predicates’ and ‘the threat of continuing activity.’”
-3-
the
Duran v.
Carris, 238 F.3d 1268, 1271 (10th Cir. 2001) (citing H.J. Inc. v. Nw.
Bell Tel. Co., 492 U.S. 229, 239 (1989)).
Plaintiff’s amended complaint alleges that defendant committed
wire fraud by making fraudulent representations to plaintiff during
telephone calls in August and September 2011 and that defendant
violated 18 U.S.C. § 2314 by transporting stolen hay in September
2011.
These crimes constitute predicate acts under RICO.
U.S.C. § 1961(1).
See 18
Plaintiff, however, has failed to establish a
threat of continuing activity.
To establish continuity, a plaintiff
must demonstrate either “a closed period of repeated conduct” or “past
conduct that by its nature projects into the future with a threat of
repetition.”
H.J. Inc. v. Northwestern Bell, 492 U.S. 229, 239, 109
S. Ct. 2893, 2900 (1989).
Close-ended continuity requires “a series
of related predicates extending over a substantial period of time.
Predicate acts extending over a few weeks or months and threatening
no future criminal conduct do not satisfy this requirement.” Id.
Open-ended continuity requires a clear threat of future criminal
conduct related to past criminal conduct.
Id.
The alleged conduct spans only two months in 2011.
plaintiff
has
failed
to
alleged
close-ended
Therefore,
continuity.
Id.
Plaintiff contends that he has established a threat of future criminal
conduct
because
his
amended
complaint
states
that
“upon
recent
information and belief, Bailey has continued to conduct his hay
business the past three years the same as previously, and will
continue in the same mode of operation in the future.”
4).
(Doc. 20 at
This is not sufficient to establish a threat of continuing
activity.
Plaintiff must allege additional facts “showing that the
-4-
scheme was not an isolated occurrence.”
923, 928 (10th Cir. 1987).
Condict v. Condict, 826 F.2d
Plaintiff’s conclusory allegations that
defendant is continuing to operate his business in the same manner as
he did in September 2011 is not sufficient. Id. “Rather, this is but
an unsuccessful effort to dress a garden-variety fraud and deceit case
in RICO clothing.”
Id. at 929.
Defendant’s motion to dismiss plaintiff’s RICO claim is granted.
B.
KCPA
Defendant moves for dismissal of plaintiff’s KCPA claim on the
basis that defendant cannot recover under the statute for alleged
fraud by a consumer.
K.S.A. 50–626(a) provides that “No supplier
shall engage in any deceptive act or practice in connection with a
consumer transaction.”
A supplier is a seller, who in the ordinary
course of business, engages in consumer transactions, whether or not
dealing directly with a consumer.
K.S.A. 50–624(j).
A consumer is
an individual who seeks or acquires property or services for personal
purposes.
K.S.A. 50–624(b).
A consumer transaction is a sale of
property for value to a consumer. K.S.A. 50–624(c).
According
to
the
facts
alleged
in
the
amended
complaint,
plaintiff is the supplier and defendant is the consumer.
Therefore,
plaintiff has failed to allege sufficient facts to support a violation
of the KCPA.
Defendant’s
motion
to
dismiss
the
KCPA
claim
is
therefore
granted.
IV.
Conclusion
Defendant’s amended motion to dismiss the amended complaint is
granted.
(Doc. 24).
-5-
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).
The response to any motion
for reconsideration shall not exceed 3 double-spaced pages.
No reply
shall be filed.
IT IS SO ORDERED.
Dated this
31st
day of March 2015, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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