Waldner v. North American Truck & Trailer, Inc. et al

Filing 362

ORDER granting 350 Motion for Summary Judgment. Signed by U. S. District Judge Lawrence L. Piersol on 3/15/13. (DJP)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

MAR 15 2013

SOUTHERN DIVISION

ROGERD. WAUDNER,
Plaintiff;
vs.
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ALLISON BOADE, M.D.;
KAREN SNOW;!
THURMAN, CQMES, FOLEY & CO., LLP;
WARNER TRU¢K CENTER OF UTAH;
ACTION CARRiER, INC.;
MICHAEL L. WALSH;
WENDY L. W A~SH;
GALLEY W. SMITH;
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BRADLEY HARTKE;
DOUGLAS HARTKE;
JACK MAKLER;
RICHARD D'M{\RTINI;
JANE DOES I-tkl;
JOHN DOES 1-14;
ROBERT TH01vfAS MOORE; and
A. THOMAS PqKELA,
Defend$ts.

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Civ. 10-4056-LLP

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ORDER GRANTING DEFENDANT
THURMAN, COMES, FOLEY & CO.,
LLP'S MOTION FOR SUMMARY
JUDGMENT

Plaintiff Roger D. Waldner is an inmate at the Federal Prison Camp in Duluth,
Minnesota. Docket 1 at 1. On May 20, 2010, plaintiff filed a pro se lawsuit against more than
sixty named defendants, alleging that defendants engaged in a broad conspiracy to defraud him
in violation ofth~ Racketeer Influenced and Corrupt Organizations Act ("RICO"). Id.
On Septdnber 23,2011, after receiving and considering various dispositive motions, the
Court dismissed ~aldner's claims against the majority of the defendants. Docket 281. The
Court dismissed two more defendants on May 25, 2012. Docket 344. Waldner's claims against

Thunnan, Comes, Foley & Co., LLP (hereinafter "Thunnan, Comes & Foley"), however,
remain. Accordingly, defendant Thunnan, Comes & Foley moves for summary judgment on the
grounds that no genuine issues of material fact exist and defendant is entitled to judgment as a
matter oflaw. Docket 350. Waldner does not oppose this motion. For the reasons set forth
herein, the Court grants defendant's motion for summary judgment.

FACTUAL BACKGROUND
In the light most favorable to Waldner, the facts are as follows:
In 2002, Waldner initiated bankruptcy proceedings on behalf ofH&W Motor Express
Company, his so~ely owned corporation. See In re H & W Motor Express Co., 343 B.R. 208
(Bankr. N.D. IoWa 2006). After the close of those proceedings, numerous creditors filed state­
court lawsuits against Waldner in Iowa and South Dakota alleging that Waldner violated various
contracts. In 2007, Waldner pleaded guilty to having made false statements during the federal
bankruptcy proc~edings. See United States v. Waldner, 564 F. Supp. 2d 911 (N.D. Iowa 2008).
Consequently, Wialdner was sentenced to ten years in prison.
This case 'arose out of a dispute between Waldner, William Rush, and their respective
business entities.!Rush is the majority shareholder and chief executive officer of North
American Truck ~ Trailer, Inc. ("NATT"), and at the outset of this case, Waldner accused Rush
of conspiring with a multitude oflawyers, accountants, financial institutions, corporations, and
federal prisoners ito defraud Waldner. Docket 1. Thunnan, Comes & Foley is one such entity
accused of conspiring with Rush to defraud Waldner. More specifically, Waldner alleges that
Thurman, ComeS & Foley perfonned periodic audits offonner defendant NATT, during which
time "they becante aware that Carolina and Mid-States had fraudulently double-financed lease
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contracts and double-sold equipment contracts with banks and lending institutions, and that the
proceeds of such icriminal activity had been deposited in the common bank account maintained
by the Rush Criminal Enterprise Companies." Docket 1 at ~~ 209-210. Moreover, Waldner
claims that ThuIl'flan, Comes & Foley "knew that payments which they received for their goods
or services carne from said tainted bank account. Id. at ~ 210.
Therefore, because Thurman, Comes & Foley "were aware of the existence of the Rush
Criminal Enterprfse Companies ... , knew of the plan to commit criminal fraud to enrich the
Rush Criminal E*terprise Companies and knew that the plan called for some conspirators to
perpetrate the cri~es and others to provide support," Waldner asserts that defendants knowingly
joined and supported the conspiracy in violation of 18 U.S.C. §§ 1962(c) and (d). Id. at WI,
211-213. Beyond these alleged facts, Waldner has not provided the court with any additional
information regarding the claims he has asserted against Thurman, Comes & Foley.
STANDARD OF REVIEW

"Summarr judgment is appropriate when the evidence, I viewed in a light most favorable
to the non-movin~ party, demonstrates that there is no genuine issue of material fact, and that
the moving partyiis entitled to judgment as a matter o flaw." Clark v. Kellogg, Co., 205 F.3d
1079, 1082 (8th ¢ir. 2000); see also Fed. R. Civ. P. 56(a). "Once the motion for summary
judgment is mad¢ and supported, it places an affirmative burden on the non-moving party to go
beyond the pleadings and by affidavit or otherwise designate specific facts showing that there is

1 The evi~ence includes the pleadings, depositions, documents, electronically stored
information, stipulations, answers to interrogatories, admissions, and affidavits. Fed. R. Civ. P.
56(c).

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a genuine issue for trial." Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir.
1992) (internal quotations and citations omitted). "Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). Although "the court is
required to ... gilve [the nonmoving] party the benefit of all reasonable inferences to be drawn
from the underlying facts," Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir.
1980), the nonmoving party may not "rest upon mere denials or allegations." Forrest v. Kraft
Foods, Inc., 285 r.3d 688, 691 (8th Cir. 2002). Instead, the nonmoving party must "set forth

specific facts su~cient to raise a genuine issue for trial." Id.
Prisoners who proceed pro se are entitled to the benefit ofliberal construction at the
pleading stage. Quam v. Minnehaha Cnty. Jail, 821 F.2d 522, 522 (8th Cir. 1987). Nonetheless,
the summary jud¥ment standard set forth in Rule 56 of the Federal Rules of Civil Procedure
remains applicab~e to prisoners proceeding pro se. Id. The district court is not required to
"plumb the record in order to find a genuine issue of material fact." Barge v. Anheuser-Busch,
Inc., 87 F.3d 256, 260 (8th Cir. 1996). Moreover, the court is not "required to speculate on

which portion of~e record the nonmoving party relies, nor is it obligated to wade through and
search the entire record for some specific facts that might support the nonmoving party's claim."
Id. Courts must remain sensitive, however, "to the special problems faced by prisoners

attempting to proceed pro se in vindicating their constitutional rights, and [the Eighth Circuit
does] not approve summary dismissal of such pro se claims without regard for these special
problems." Nickens v. White, 622 F.2d 967,971 (8th Cir. 1980).

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DISCUSSION

"To recover in a civil suit for a violation of RICO, a plaintiff must prove: (1) that the
defendant violated 18 U .S.C. § 1962; (2) that the plaintiff suffered injury to business or
property; and (3) that the plaintiffs injury was proximately caused by the defendant's RICO
violation." Fogie v. THORN Americas, Inc., 190 F.3d 889, 894 (8th Cir. 1999) (citations
omitted). In the ip.stant case, Waldner has alleged that Thurman, Comes & Foley violated
subsections (c) a~d (d) of 18 U.S.C. § 1962. Docket 1 at ~ 1,214. Under subsection (c), it is
"unlawful for any person employed by or associated with any enterprise engaged in, or the
activities of whi~h affect, interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or
collection of unlawful debt." To state a claim under § 1962(c), "a plaintiff must establish (1) the
existence of an enterprise2 ; (2) defendant's association with the enterprise; (3) defendant's
participation in predicate acts of racketeering; and (4) defendant's actions constitute a pattern of
racketeering actitity." United Healthcare Corp. v. Am. Trade Ins. Co., 88 F.3d 563, 570 (8th
Cir. 1996). Morebver, "the plaintiff must demonstrate that 'he has been injured in his business
or property by thb conduct constituting the violation.' " Id. (quoting Sedima, S.P.R.L. v.Imrex

2 An enterprise must possess three characteristics: "[a] common or shared purpose, some
continuity of structure and personnel, and an ascertainable structure distinct from that inherent in
a pattern of racketeering." McDonough v. Nat 'I Home Ins. Co., 108 F.3d 174, 177 (8th Cir. 1997)
(internal citation~ omitted). The Eighth Circuit has defined "continuity of structure" as " 'an
organizational pattern or system of authority that provides a mechanism for directing the group's
affairs on a continuing, rather than an ad hoc basis.' " Rolfes v. MBNA Am. Bank NA., 416 F.
Supp. 2d 745, 751 (D.S.D. 2005) (quoting United States v. Kragness, 830 F.2d 842, 856 (8th Cir.
1987». To estabt'sh the third characteristic, a distinct structure, a plaintiff must show "that the
common activiti s of the enterprise extend beyond the minimal association necessary to sustain
the pattem of ra i eteering." McDonough, 108 F.3d at 177 (internal citations omitted).

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Co., 473 U.S. 479, 496 (1985». Subsection (d) incorporates the conduct prohibited in
subsection (c) by making it "unlawful for any person to conspire to violate any of the provisions
of subsection (a), (b), or (c) of[§ 1962J." To establish that a defendant engaged in a conspiracy
to violate RICO, a plaintiff must present "additional evidence3 that the defendant entered into an
agreement to breach the statute." Handeen v. Lemaire, 112 F.3d 1339, 1354 (8th Cir. 1997)
(citations omitted).
Despite Waldner'S allegations, Thurman, Comes & Foley maintains that it "has never
provided auditing or any other services to NA IT, or to its subsidiaries, or to William Rush."
Docket 351 at 8; Docket 352 atW 6-7; Docket 353

at~~

4-5. Accordingly, defendant "has not

and could not become aware ofNAIT's alleged criminal activity, and was never paid by NAIT
with funds of any sort." As previously noted, Waldner has not filed objections to Thurman,
Comes & Foley'$ motion for summary judgment, nor has he offered evidence to support his
allegations against the defendant. In other words, even if the Court were to assume the existence
ofan enterprise, y.taldner has not disputed the defendant's assertion that it had no association
with such enterprise. Moreover, Waldner has not disputed defendant's claim that it did not
participate in racketeering activities. Finally, Waldner has not established that the defendant
entered into an agreement to breach § 1962(c). The Court therefore finds that there are no
material facts in dispute and that Thurman, Comes & Foley is entitled to summary judgment as
a matter oflaw.

3 " 'The additional evidence required to show a RICO conspiracy 'need only establish a
tacit understanding between the parties, and ... may be shown wholly through the circumstantial
evidence of [each defendant'sJ actions.' " Handeen, 112 F.3d at 1355 (quoting United States v.
Darden, 70 F.3d.1507, 1518 (8th Cir. 1995».

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Accordingly, it is
ORDERED that defendant's motion for summary judgment (Docket 350) is granted.
Dated thi$ 15th day 0 f March, 2013.
BY THE COURT:

ruu~l~~
awrence L. Piersol
United States District Judge

ATTEST:
JOSEPH HAAS, CLERK

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