Bordelon v. Wells Fargo Financial Louisiana, LLC et al

Filing 35

ORDER AND REASONS granting in part and denying in part 9 Motion to Dismiss; Bordelon's civil RICO claim against Adcock is DISMISSED WITH PREJUDICE. In all other respects, the motion is DENIED. Signed by Judge Lance M Africk on 6/6/2018. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD W. BORDELON

CIVIL ACTION

VERSUS

No. 18-2563

WELLS FARGO FINANCIAL
LOUISIANA, LLC, ET AL.

SECTION I

ORDER AND REASONS
This case concerns a foreclosure proceeding in state court. Pro se plaintiff
Donald Bordelon (“Bordelon”) alleges that defendants “have been involved in an
ongoing enterprising . . . to, through a series of false or misleading statements,
foreclose on his immovable property” in Metairie, Louisiana “using false documents
filed with the clerk or in court.” 1 According to Bordelon, “[t]he conspiracy involves
falsely alleging that [he] was in default on a mortgage not secured by [ ] that
property . . . and then commencing [a] state court lawsuit [in the 24th Judicial
District Court] to foreclose on it when in fact that [n]ote had been paid off.” 2
Before the Court is a motion 3 filed by defendant Herschel Adcock, Jr.
(“Adcock”) to dismiss certain claims 4 against him pursuant to Federal Rule of Civil
Procedure 12(b)(6). 5 Bordelon opposes 6 the motion.

R. Doc. No. 27, ¶ 2.
Id. ¶ 3.
3 R. Doc. No. 9.
Adcock gave permission for the Court to apply the motion to
Bordelon’s first amended complaint. See R. Doc. No. 26.
4 In his first amended complaint, Bordelon added a state law fraud claim against
Adcock. See R. Doc. No. 27, ¶ 4, 50-52. The Court gave Adcock an opportunity to
respond to Bordelon’s first amended complaint by June 4, 2018 at 12:00 noon, see R.
Doc. No. 31, but Adcock declined the opportunity. Because Adcock has not moved to
dismiss this claim, the Court does not consider the claim’s viability at this time.
1
2

1

I.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court
may dismiss a complaint, or any part of it, where a plaintiff has not set forth wellpleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).

A plaintiff’s factual allegations must “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. A complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570)).
In addition to Federal Rule of Civil Procedure 12(b)(6), Adcock also invokes
Federal Rule of Civil Procedure 12(b)(1). Adcock argues that, assuming that the
Court dismisses Bordelon’s civil RICO claim against him, the Court should dismiss
Bordelon’s state law claims against him for lack of jurisdiction. See R. Doc. No. 9-1,
at 7-9.
Yet even if the Court dismissed Bordelon’s RICO claim against Adcock, the
remaining defendants in this action have not moved the Court to dismiss Bordelon’s
federal law claims against them. Unless and until those claims are dismissed, the
Court will have original jurisdiction over this action under Title 28, United States
Code, § 1331. Further, the Court will have supplemental jurisdiction “over all other
claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United
States Constitution.” 28 U.S.C. § 1367(a); see Arena v. Graybar Elec. Co., 669 F.3d
214, 221 (5th Cir. 2012) (“The principle of pendent jurisdiction is codified in 28
U.S.C. § 1367 and gives the court discretion to exercise jurisdiction over state-law
claims when: (1) federal question jurisdiction is proper, and (2) the state-law claims
derive from a common nucleus of operative facts.”). “Such supplemental jurisdiction
shall include claims that involve the joinder or intervention of additional parties.”
28 U.S.C. § 1367(a).
Thus, Adcock is simply incorrect that the dismissal of Bordelon’s RICO claim
against him will deprive the Court of jurisdiction over Bordelon’s state law claims
against him, as the remaining federal claims provide the Court with a basis for
exercising supplemental jurisdiction over the state law claims.
6 R. Doc. No. 30.
5

2

A facially plausible claim is one where “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. If the well-pleaded factual
allegations “do not permit the court to infer more than the mere possibility of
misconduct,” then “the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2))
(alteration in original).
On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the
complaint, any documents attached to the complaint, and any documents attached
to the motion to dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In
assessing the complaint, the Court must accept all well-pleaded factual allegations
as true and liberally construe all such allegations in the light most favorable to the
plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997).
II.
Adcock challenges Bordelon’s civil RICO claim against him, as well as
Bordelon’s claim against him for intentional infliction of emotional distress. The
Court will consider the viability of each of these claims in turn.
A.
i.

3

Civil claims under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”) “have three common elements: ‘(1) a person who engages in (2) a pattern of
racketeering activity, (3) connected to the acquisition, establishment, conduct, or
control of an enterprise.’” St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009)
(quoting Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007)).

RICO defines

“person” to include “any individual or entity capable of holding a legal or beneficial
interest in property.” 18 U.S.C. § 1961(3).
“A pattern of racketeering activity consists of two or more predicate criminal
acts that are (1) related and (2) amount to or pose a threat of continued criminal
activity.” St. Germain, 556 F.3d at 263. “The predicate acts can be either state or
federal crimes.” Id.; see 18 U.S.C. § 1961(1) (providing an extensive definition of
“racketeering activity”).

“Predicate acts are ‘related’ if they have the same or

similar purposes, results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and are not isolated
events.” In re Burzynski, 989 F.2d 733, 742 (5th Cir. 1993) (internal quotation
marks omitted in part).
“To establish continuity, plaintiffs must prove ‘continuity of racketeering
activity, or its threat.’” Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer,
90 F.3d 118, 122 (5th Cir. 1996) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229,
241 (1989)). “This may be shown by either a closed period of repeated conduct, or
an open-ended period of conduct that ‘by its nature projects into the future with a
threat of repetition.’” Id. (quoting H.J. Inc., 492 U.S. at 241).

4

A closed period of conduct may be demonstrated by proving a series of
related predicates extending over a substantial period of time. An
open period of conduct involves the establishment of a threat of
continued racketeering activity. This may be shown where there exists
a specific threat of repetition extending indefinitely into the future, or
where it is shown that the predicates are a regular way of conducting
defendant’s ongoing legitimate business.
Id. (internal quotation marks and citations omitted).

“[W]here alleged RICO

predicate acts are part and parcel of a single, otherwise lawful transaction,”
however, “[i]t is unnecessary to delve into the arcane concepts of closed-end or openended continuity under RICO,” because Fifth Circuit precedent illustrates that “a
‘pattern of racketeering activity’ has not been shown” in such cases. Id. at 123
(referencing In re Burzynski, 989 F.2d at 733, Calcasieu Marine National Bank v.
Grant, 943 F.2d 1453 (5th Cir. 1991), and Delta Truck & Tractor, Inc. v. J.I. Case
Co., 855 F.2d 241 (5th Cir. 1988)).
With respect to the “enterprise” requirement, RICO defines an “enterprise” to
include “any individual, partnership, corporation, association, or other legal entity,
and any union or group of individuals associated in fact although not a legal entity.”
18 U.S.C. § 1961(4). “An association-in-fact enterprise ‘(1) must have an existence
separate and apart from the pattern of racketeering, (2) must be an ongoing
organization and (3) its members must function as a continuing unit as shown by a
hierarchical or consensual decision making structure.’”

Allstate Ins. Co. v.

Plambeck, 802 F.3d 665, 673 (5th Cir. 2015) (quoting Calcasieu Marine Nat’l Bank,
943 F.2d at 1461).

5

“RICO does not require than an enterprise be a separate business-like
entity.” Id. “Instead, an association-in-fact enterprise includes ‘a group of persons
associated together for a common purpose of engaging in a course of conduct,’ and
that enterprise can be proved with ‘evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as a continuing
unit.’” Id. (quoting Boyle v. United States, 556 U.S. 938, 944-45 (2009)).
The Fifth Circuit has explained that “[t]he linchpin of enterprise status is the
continuity or ongoing nature of the association.” Id. “The enterprise must have
continuity of its structure and personnel, which links the defendants, and a common
or shared purpose.” Calcasieu Marine Nat’l Bank, 943 F.2d at 1462. “Thus, two
individuals who join together for the commission of one discrete criminal offense
have not created an ‘association-in-fact’ enterprise, even if they commit two
predicate acts during the commission of this offense, because their relationship to
one another has no continuity.” Montesano v. Seafirst Commercial Corp., 818 F.2d
423, 427 (5th Cir. 1987). “However, if the individuals associate together to commit
several criminal acts, their relationship gains an ongoing nature, coming within the
purview of RICO.” Id.
ii.
Adcock argues that, “[e]ven if the allegations in [Bordelon’s] complaint are
accepted as true, the alleged enterprise will cease to exist once the litigation”—i.e.,
the foreclosure action—“comes to an end.” 7 Further, Adcock argues that, “although

7

R. Doc. No. 9-1, at 5.
6

[Bordelon] may allege a number of predicate acts which occurred during the course
of the litigation, these predicate acts do not establish a continuing enterprise where
they relate to ‘the commission of one discrete criminal offense.’” 8
Adcock also argues that “the continuity element necessary to establish a
‘pattern’ of racketeering activity is absent,” because “[a]ll of the alleged predicate
acts have occurred during the course of a single, otherwise lawful endeavor—a
lawsuit aimed at foreclosing and seizing [Bordelon’s] immovable property.” 9
According to Adcock, “[o]nce that foreclosure is dismissed or complete, the alleged
scheme will be over without a threat of it continuing.” 10
For his part, Bordelon points the Court to a nonprecedential Sixth Circuit
case, Slorp v. Lerner, Sampson & Rothfuss, 587 Fed. App’x 249 (6th Cir. 2014), to
support his contention has he has stated a viable civil RICO claim against Adcock in
his first amended complaint. 11 He also disputes Adcock’s understanding of the case
law on which Adcock relies. 12

Id. at 5-6 (alteration removed) (quoting In re Burzynski, 989 F.2d at 743).
Id. at 7.
10 Id.
11 R. Doc. No. 30, at 6.
12 See id. at 6-11. The Court notes that, in his opposition, Bordelon highlights
newspaper reports regarding lawsuits involving Wells Fargo. See id. at 9-10. In his
view, “[t]he [C]ourt need look no further than the newspaper headlines to find that
Wells Fargo as a regular course of business creates false loan documents.” Id. at 9.
However, Bordelon does not mention these lawsuits in his first amended
complaint. See generally R. Doc. No. 27. As the Court previously explained, a court
presented with a Rule 12(b)(6) motion limits its review “to the complaint, any
documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star
Fund V, 594 F.3d at 387.
8
9

7

iii.
Having considered Bordelon’s factual allegations and applicable Fifth Circuit
case law, the Court concludes that Bordelon’s civil RICO claim against Adcock fails,
because Bordelon has not alleged that Adcock has engaged in “a pattern of
racketeering activity” that is “connected to the acquisition, establishment, conduct,
or control of an enterprise.” St. Germain, 556 F.3d at 263. Bordelon’s allegations
against Adcock revolve around Adcock’s actions as counsel for Bordelon’s adversary
in an ongoing state court foreclosure proceeding. 13

As Judge Vance thoroughly

explained when evaluating the viability of a civil RICO claim in an analogous case,
a foreclosure proceeding “is by its nature a one-time resolution of disputed property
rights.” Castrillo v. Am. Home Mortg. Servicing, Inc., 670 F. Supp. 2d 516, 531
(E.D. La. 2009). Thus, even assuming that Bordelon has in fact alleged two or more
predicate acts committed by Adcock, Adcock’s “conduct . . . implicates, at best,
‘[p]redicate acts . . . threatening no future criminal conduct.’” Id. (quoting H.J. Inc.,
492 U.S. at 242) (emphasis added) (alteration in original).

Further, even if Bordelon had mentioned these lawsuits in his first amended
complaint, “[p]leading the mere existence of lawsuits is not the same as pleading
the facts that demonstrate predicate illegal acts as the defendant’s regular way of
doing business.” Word of Faith, 90 F.3d at 124 (emphasis added). The Court also
notes that the filing of a lawsuit against Wells Fargo does not itself establish that
Wells Fargo in fact committed a wrong.
13 See generally R. Doc. No. 27, ¶¶ 10-28; see also R. Doc. No. 28, ¶ 2 (Bordelon’s
RICO statement) (contending that Adcock “signed the pleading[s] in the state court
action and knew they were untrue”).
8

Further, “[i]t is not relevant to the Court’s analysis that the state court
foreclosure proceeding . . . is ongoing and has not ended.”

Id. (citing In re

Burzynski, 989 F.2d at 741).
Although the state court foreclosure proceeding may extend somewhat
into the future, it is unlikely to “continue[ ] indefinitely.” It is instead
likely to be a short-term event, and “[s]hort-term criminal conduct is
not the concern of RICO.” Moreover, the Court presumes that the
[24th Judicial District Court] is capable of detecting and preventing
fraudulent foreclosure actions.
Id. (internal citations omitted) (alterations in original).
As the Fifth Circuit has noted, “where alleged RICO predicate acts are part
and parcel of a single, otherwise lawful transaction, a ‘pattern of racketeering
activity’ has not been shown.”

Word of Faith, 90 F.3d at 123.

A state court

foreclosure proceeding fits this mold. See Howell v. Adler, No. 16-14141, 2017 WL
1064974, at *6 (E.D. La. Mar. 21, 2017) (Africk, J.) (“Further, all of the alleged
predicate acts occurred during the course of a single, otherwise lawful endeavor—a
lawsuit aimed at seizing and selling Howell’s mother’s condo unit.”); Castrillo, 670
F. Supp. 2d at 531 (“Like the litigation in In re Burzynski, the allegedly fraudulent
debt collection in this case—essentially an eviction proceeding—is a ‘single, discrete’
transaction.” (quoting Word of Faith, 90 F.3d at 123)).
The Court need not discuss the distinguishing features of the nonprecedential
Sixth Circuit case on which Bordelon relies, as the Fifth Circuit has forged a path
for the Court to follow. Because Bordelon “has failed to sufficiently allege a threat
that [Adcock] will engage in repeated, long-term criminal activity,” Bordelon’s civil
RICO claim against Adcock must be dismissed.
9

Id.; see also Howell, 2017 WL

1064974, at *6 (“Simply put, there can be no pattern of racketeering activity where
the plaintiff alleges ‘conduct that [has] an inherent and definite termination point
and [does] not present a future threat of repetition.’” (quoting Larco Towing, Inc. v.
Newpark Drilling Fluids, LLC, No. 09-2928, 2010 WL 1416550, at *2 (E.D. La. Mar.
31, 2010) (Engelhardt, J.))).
B.
i.
To state a claim for intentional infliction of emotional distress under
Louisiana law, “a plaintiff must establish (1) that the conduct of the defendant was
extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was
severe; and (3) that the defendant desired to inflict severe emotional distress or
knew that severe emotional distress would be certain or substantially certain to
result from his conduct.” White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
“Louisiana courts . . . have set a very high threshold on conduct sufficient to
sustain an emotional distress claim, and the Louisiana Supreme Court has noted
that courts require truly outrageous conduct before allowing a claim even to be
presented to a jury.” Perrone v. Rogers, 234 So. 3d 153, 157 (La. Ct. App. 1st Cir.
2017).

“Outrageous conduct is a nebulous concept, as it does not refer to any

specific type of conduct and it may even refer to a pattern of conduct.” Id. “Conduct
which is merely tortuous or illegal does not rise to the level of being extreme and
outrageous.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1025 (La. 2000). Rather,
outrageous conduct is “conduct which is so outrageous in character, and so extreme

10

in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Stevenson v. Lavalco,
Inc., 669 So. 2d 608, 611 (La. Ct. App. 2d Cir. 1996).
“The distress suffered must be such that no reasonable person could be
expected to endure it.” Perrone, 234 So. 3d at 158. “Liability arises only where the
mental suffering or anguish is extreme.” Id.
Further, the defendant’s knowledge that plaintiff is particularly
susceptible to emotional distress is a factor to be considered. But the
mere fact that the actor knows that the other will regard the conduct
as insulting, or will have his feelings hurt, is not enough. The actor’s
conduct must be intended or calculated to cause severe emotional
distress and not just some lesser degree of fright, humiliation,
embarrassment, worry or the like.
Id. (internal citation omitted).
ii.
In his first amended complaint, Bordelon alleges that, as a result of the
actions of Adcock and his co-defendants, he “has suffered extreme emotional
distress, has lost sleep and appetite and has been fearful of leaving his home lest he
return to find it padlocked.” 14 Adcock argues that these allegations, “even if true,
fail to meet the high threshold for severe emotional distress as required under
Louisiana law to sustain a claim for intentional infliction of emotional distress.” 15

14
15

R. Doc. No. 27, ¶ 28.
R. Doc. No. 9-1, at 10.
11

This is the only basis on which he challenges Bordelon’s claim for intentional
infliction of emotional distress. 16
The problem for Adcock, however, is that he overlooks the established
practice in this circuit that “pro se complaints are held to less stringent standards
than formal pleadings drafted by lawyers.” Miller v. Stanmore, 636 F.2d 986, 988
(5th Cir. 1981). When considered from this vantage point, the Court concludes
Bordelon’s allegations concerning the emotional distress that he has suffered are
sufficient to survive a Rule 12(b)(6) motion to dismiss. Considering the limited
basis on which Adcock urges dismissal of Bordelon’s claim for intentional infliction
of emotional distress, the Court will not dismiss such claim at this time.
III.
Finally, the Court must consider whether to dismiss Bordelon’s civil RICO
claim against Adcock with or without prejudice. Pro se litigants such as Bordelon
are “entitled to special accommodation by the judiciary.” Castro Romero v. Becken,
256 F.3d 349, 353 (5th Cir. 2001). “Generally a district court errs in dismissing a
pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the
plaintiff an opportunity to amend.” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998) (per curiam); see also Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)
(“Dismissing an action after giving the plaintiff only one opportunity to state his
case is ordinarily unjustified.”).

See id. (“For this reason, alone, [Bordelon] fails to state a claim for intentional
infliction of emotional distress and his claim [for intentional infliction of emotional
distress] should be dismissed.”).
16

12

At some point, however, “a court must decide that a plaintiff has had fair
opportunity to make [her] case; if, after that time, a cause of action has not been
established, the court should finally dismiss the suit.” Id.; cf. Parra v. Coloplast
Corp., No. 16-14696, 2017 WL 24794, at *5 (E.D. La. Jan. 3, 2017) (Vance, J.)
(“Because plaintiffs have already had one opportunity to amend their petition and
continue to provide nothing more than conclusory allegations, the petition will be
dismissed with prejudice.”). For example, if a court concludes that a plaintiff has
alleged his “best case,” then dismissal with prejudice is appropriate. Bazrowx, 136
F.3d at 1054.
With respect to Bordelon’s civil RICO claim against Adcock, the Court
concludes that Bordelon has alleged his best case. After receiving Adcock’s motion
to dismiss and thus being made aware of the claim’s deficiencies, Bordelon amended
his complaint, yet he was unable to successfully address these deficiencies—an
unsurprising result, given the event from which Bordelon’s case arises and the
nature of the deficiencies identified.
As such, the Court will dismiss Bordelon’s civil RICO claim against Adcock
with prejudice.
IV.
Accordingly,
IT IS ORDERED that the motion is GRANTED IN PART and DENIED
IN PART.

13

IT IS FURTHER ORDERED that Bordelon’s civil RICO claim against
Adcock is DISMISSED WITH PREJUDICE. In all other respects, the motion is
DENIED.
New Orleans, Louisiana, June 6, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

14