Lindsey et al v. Aycox et al
Filing
146
ORDER granting 144 Motion for Summary Judgment. Plaintiffs' claims against the Wedgeworths made pursuant to 18 U.S.C. 1962 are Dismissed with Prejudice, and their state law claims against the Wedgeworths are Dismissed without prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 5/4/2016 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THOMAS M. LINDSEY and
TARI L. METZGER
v.
PLAINTIFFS
CAUSE NO. 1:14CV260-LG-JCG
RODERICK AYCOX; SELECT MANAGEMENT
RESOURCES LLC; BONNIE WEDGEWORTH;
RICHARD WEDGEWORTH; and
UNKNOWN DEFENDANTS
DEFENDANTS
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FILED BY
DEFENDANTS RICHARD AND BONNIE WEDGEWORTH
BEFORE THE COURT is the [144] Motion for Summary Judgment filed by
the Defendants Richard and Bonnie Wedgeworth (“Defendants” or “the
Wedgeworths”). Plaintiffs Thomas M. Lindsey and Tari L. Metzger did not respond
to the Motion and the time for doing so has now expired. Having considered the
Motion and the relevant law, the Court is of the opinion that the Motion should be
granted with respect to Plaintiffs’ federal RICO claims. The Court will dismiss
those claims with prejudice. The Court declines to exercise supplemental
jurisdiction over the remaining state law claims and will dismiss those claims
without prejudice.
BACKGROUND
On July 3, 2014, Plaintiffs Lindsey and Metzger, who are proceeding pro se,
filed a 33-page Complaint. Plaintiffs identified as named Defendants Roderick
Aycox, Select Management Resources LLC (“SMR”), Bonnie Wedgeworth, Richard
Wedgeworth, the City of Gulfport, and the Gulfport Police Department.1 Plaintiffs’
claims stem from the repossession of their vehicles in 2012 and 2013 after they
defaulted on title loans acquired from a company allegedly owned by Defendant
Select Management Resources.
Specifically, Plaintiffs claim that, in 2012, the day after Plaintiff Metzger
defaulted on a title loan for her vehicle, “they observed an un-marked all black tow
truck block Metzger’s car in the parking lot of her apartment . . . .” (Compl. 7, ECF
No. 1). Two men “jumped out of the tow truck” and one of them yelled at Metzger
“that she better give them her car or they were going to call the Biloxi police
department and have her arrested . . . .” (Id.). Plaintiffs allege that “because of the
threat made to harm her reputation Metzger gave the men her car and it was later
sold at auction.” (Id.).
Plaintiffs also state that “[o]n or about 2013 Plaintiff Lindsey defaulted on a
title loan” for his vehicle. They further state that “[o]n or about November 29th[,]
2013 at or around 3:30 a.m. Lindsey heard a vehicle pull into the yard of his friend’s
home” and then saw “an un-marked all black tow truck parked in front of his Dodge
truck, and an un-identified white male was directing the driver of the tow truck to
the front of Lindsey’s truck.” (Id.). Plaintiff Lindsey claims that he asked the men
if they had a court order and then told them to leave the property unless they had
1
The City and the Police Department have both been terminated as
defendants in this action. The claims against Defendants Aycox and SMR have
been sent to mandatory arbitration.
2
one. (See id. at 7-8). He also states that he then got into the truck and attempted
to reverse it while it was being hoisted onto the tow truck. (See id.). According to
the Complaint, “seven Gulfport police officers arrived and instead of preventing the
two men from stealing Lindsey’s truck, they instead did not leave until the tow
truck was allowed to forcefully take Lindsey’s truck away against his will or with
[sic] his consent without lawful judicial order or service of such.” (See id.).
Plaintiffs allege that the Wedgeworths are the owners of All South Recovery
(“ASR”), which they contend was the towing company that towed the vehicles.
DISCUSSION
A motion for summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a motion for
summary judgment, the Court views the evidence in the light most favorable to the
non-movant. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005).
Even so, summary judgment is appropriate if the non-movant fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case and on which that party has the burden of proof at trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiffs have not submitted any argument or evidence in opposition to
Defendants’ Motion. Nevertheless, Defendants have the burden of establishing the
absence of a genuine issue of material fact and, unless they have done so, the Court
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may not grant the Motion, regardless of whether any response was filed. Hibernia
Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th
Cir. 1985). But the Court will not, in the absence of proof, assume that Plaintiffs
could or would prove the necessary facts. See Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
Construing Plaintiffs’ Complaint liberally, the only remaining Counts against
the Wedgeworths are for violations of 18 U.S.C. §§ 1962(a)-(d) (part of the federal
RICO statute) and for violations of Mississippi Code § 97-43-5 (Mississippi’s RICO
statute). Plaintiffs also seek return of allegedly converted property, which the
Court construes as a state law claim for conversion. Having reviewed Defendants’
Motion and the supporting evidence, the Court finds that Defendants have met
their burden of establishing the absence of a genuine issue of material fact on the
federal claims stated against them under § 1962, and, thus, are entitled to
judgment as a matter of law on those claims. The Court will therefore dismiss the §
1962 claims with prejudice. The Court declines to exercise jurisdiction over the
remaining state law claims, as discussed below, and will dismiss those claims
without prejudice.
18 U.S.C. § 1962(a)
“Subsection 1962(a) prohibits a person who has received income from a
pattern of racketeering activity from investing that income in an enterprise.” N.
Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 202 (5th Cir.
2015). “To state a claim under § 1962(a),” a plaintiff must show: ‘(1) the existence of
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an enterprise, (2) the defendant’s derivation of income from a pattern of
racketeering activity, and (3) the use of any part of that income in acquiring an
interest in or operating the enterprise.” Id. (citation omitted). “Reduced to its
simplest terms, this subsection prohibits a person who has received income from a
pattern of racketeering from investing that income in an enterprise.” Tatum v.
Smith, 887 F. Supp. 918, 925 (N.D. Miss. 1995).
Plaintiffs admitted in their depositions that they have no evidence that the
Wedgeworths and/or ASR used any part of their income, if any, from repossession of
the vehicles to acquire an interest in or operate an alleged RICO enterprise.
Therefore, summary judgment in favor of the Wedgeworths is appropriate on this
claim. See N. Cypress, 781 F.3d at 202.
18 U.S.C. § 1962(b)
“To state a claim under § 1962(b), [Plaintiffs] had to show that [their] injuries
were proximately caused by a RICO person gaining an interest in, or control of, the
[RICO] enterprise through a pattern of racketeering activity . . . .” N. Cypress, 781
F.3d at 202 (citation and quotation marks omitted). Plaintiffs’ conclusory
allegations in their Complaint and/or depositions relating to the Wedgeworths’
acquisition of an interest in and/or control of a RICO enterprise are insufficient to
overcome summary judgment. See Whelan v. Winchester Prod. Co., 319 F.3d 225,
230 (5th Cir. 2003) (affirming summary judgment in favor of defendants on §
1962(b) claim where plaintiff “offer[ed] only conclusory allegations in support of
5
claims that the . . . defendants . . . violated § 1962(b) by acquiring or increasing
their interests in an enterprise through racketeering”).
Furthermore, “[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 v. Howard, 556 F.3d 261, 263 (5th Cir.
2009); see 18 U.S.C. § 1961. “The predicate acts can be either state or federal
crimes.” St. Germain, 556 F.3d at 263.
Even assuming arguendo that any repossession was illegal, Defendants have
pointed to the absence of evidence of more than one racketeering activity, and
Plaintiffs have not met their burden of producing evidence otherwise. Namely,
while it is undisputed that ASR repossessed Plaintiff Lindsey’s vehicle, there is no
competent summary judgment evidence that ASR repossessed Plaintiff Metzger’s
vehicle. The single repossession of Plaintiff Lindsey’s vehicle does not constitute a
“pattern.” See 18 U.S.C. § 1961(5). For all these reasons, then, summary judgment
will be granted on Plaintiffs’ § 1962(b) claim against the Wedgeworths. See, e.g.,
Trugreen Landcare, L.L.C. v. Scott, 512 F. Supp. 2d 613, 624-25 (N.D. Tex. 2007).
18 U.S.C. § 1962(c)
Section 1962(c) states in pertinent part that no “person employed by or
associated with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, [may] conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs through a pattern of racketeering activity
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. . . .”2 Therefore, Plaintiffs’ 1962(c) claim fails because, as shown above, there is no
genuine issue of material fact with respect to the “pattern of racketeering” element.
See Zastrow v. Houston Auto Imports Greenway Ltd., 789 F.3d 553, 560 (5th Cir.
2015).3
18 U.S.C. § 1962(d)
“Subsection 1962(d) prohibits a conspiracy to violate §§ 1962(a), (b), or (c).”
N. Cypress, 781 F.3d at 203. “To prevail on a RICO conspiracy claim, [Plaintiffs]
had to demonstrate ‘(1) that two or more people agreed to commit a substantive
RICO offense and (2) that [the Wedgeworths] knew of and agreed to the overall
objective of the RICO offense.’” Id. (citation omitted).
As is clear by their deposition testimony, Plaintiffs cannot come forward with
any evidence – only speculation – that the Wedgeworths were aware of any
conspiracy and acted in furtherance thereof. See, e.g., Van Duzer v. U.S. Bank Nat’l
Ass’n, 995 F. Supp. 2d 673, 692 (S.D. Tex. Jan. 31, 2014). There is no “evidence
2
That section also refers to the collection of an unlawful debt. There is no
unlawful debt involved in this action, as both Plaintiffs concede that they are not
challenging the debt owed for their vehicles, but, instead, the manner in which the
vehicles were repossessed.
3
The United States Supreme Court has also said that “‘to conduct or
participate, directly or indirectly, in the conduct of such enterprise’s affairs,’
§1962(c), one must participate in the operation or management of the enterprise
itself.” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). Regardless of if Plaintiffs
could show two predicate acts, there is no evidence of this essential element, either.
See Zastrow, 789 F.3d at 561 n.7; Pemex Exploracion y Produccion v. BASF Corp.,
No. H-10-1997, 2013 WL 5514944, at *60 (S.D. Tex. Oct. 1, 2013); see also Celotex,
477 U.S. at 322.
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from which a reasonable fact-finder could conclude that [the Wedgeworths] agreed
to commit a substantive RICO offense and knew of and agreed to the overall
objective of the RICO offense.” See Pemex Exploracion y Produccion v. BASF Corp.,
No. H-10-1997, 2013 WL 5514944, at *61 (S.D. Tex. Oct. 1, 2013). Lacking such
evidence, Plaintiffs’ claim against the Wedgeworths for RICO conspiracy fails as a
matter of law, and the Wedgeworths are entitled to summary judgment on this
claim.4 See id.
State Law Claims
The basis of the Court’s jurisdiction over the Wedgeworths is the federal
RICO statute. The “general rule is to dismiss state claims when the federal claims
to which they are pendent are dismissed.” Parker & Parsley Petroleum v. Dresser
Indus., 972 F.2d 580, 585 (5th Cir. 1992). Indeed, “[u]nder 28 U.S.C. § 1367(c)(3)
this court has broad discretion to decline to exercise supplemental jurisdiction
where it has dismissed all claims over which it had original jurisdiction.” Matherne
v. Larpenter, 54 F. Supp. 2d 684, 688 (E.D. La. 1999). The Court, having dismissed
Plaintiffs’ federal RICO claims against the Wedgeworths, declines to exercise
supplemental jurisdiction over the state law claims against them, and will dismiss
4
Although not raised by Defendants, the Court is of the opinion that the
conspiracy claim would still fail because Plaintiffs cannot prove an underlying
violation of §§ 1962(a), (b), or (c), as established herein. See, e.g., Dixon v. Ford
Motor Credit Co., 137 F. Supp. 2d 702, 709 (E.D. La. 2000) (“Thus, in the absence of
valid claims under subsections (a), (b), or (c), a claim under subsection (d) must also
fail.”); Conwill v. Greenberg Traurig, L.L.P., No. 09-4365, 2011 WL 1103728, at *7
(E.D. La. Mar. 22, 2011); RA Invs. I, LLC v. Deutsche Bank AG, No. 3:04-cv-1565-G,
2005 WL 1356446, at *11 (N.D. Tex Jun 6, 2005).
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those claims without prejudice. See, e.g., Terrell v. Hancock Bank, 7 F. Supp. 2d
812, 818-19 (S.D. Miss. 1998).
Plaintiffs’ Claims Against Defendants Aycox and SMR
Almost a year ago, the Court ordered Plaintiffs’ claims against Defendants
Aycox and SMR to arbitration. (See Order, ECF No. 44). As those claims are now
the only remaining claims, the Court will order that Plaintiffs inform the Court of
the status of the arbitration, so that this action may be concluded in a timely
manner.
CONCLUSION
The Court is of the opinion that no genuine issues of material fact remain
with respect to Plaintiffs’ federal RICO claims against the Wedgeworths. As a
result, the Court will dismiss those claims with prejudice. The Court will dismiss
the remaining state law claims against the Wedgeworths without prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that the [144] Motion
for Summary Judgment filed by the Defendants Richard and Bonnie Wedgeworth is
GRANTED. Plaintiffs’ claims against the Wedgeworths made pursuant to 18
U.S.C. § 1962 are DISMISSED WITH PREJUDICE, and their state law claims
against the Wedgeworths are DISMISSED WITHOUT PREJUDICE.
Plaintiffs are ORDERED to file a written report with this Court within
seven days of the date of this Order with respect to the status of the sole
remaining claims in this action against Defendant Aycox and Select Management
Resources, which are subject to the Court’s arbitration [44] Order. Failure to
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comply with this Order may result in the Court lifting the stay with
respect to those claims and thereafter dismissing those claims.
SO ORDERED AND ADJUDGED this the 4th day of May, 2016.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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