Melcher v. Wiggins, Jr. et al

Filing 25

OPINION AND ORDER that the converted 14 Motion to Dismiss of Defendant, Matthew Drake Wiggins, Jr., is GRANTED and the RICO claim asserted against Wiggins by Plaintiff, John Ray Melcher, is DISMISSED.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JOHN RAY MELCHER
VS.
MATTHEW DRAKE WIGGINS, JR.
and CITY OF KEMAH

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CIVIL ACTION NO. G-13-388

OPINION AND ORDER
On April 21, 2014, the Court, as expressly allowed by Rule 12(d) of the Federal Rules
of Civil Procedure, converted the Motion to Dismiss of Defendant, Matthew Drake Wiggins,
Jr., into a Motion for Summary Judgment for the sole purpose of determining the date upon
which Plaintiff, John Ray Melcher, lost his interest in the Texas Avenue property in Kemah,
Texas, made the basis of his lawsuit. On May 13, 2013, Wiggins submitted authenticated
records which prove that Melcher lost all interest in the property through a foreclosure sale
on June 2, 2009. That evidence, in turn, proves that Melcher’s alleged RICO cause of action
against Wiggins accrued on that date and his lawsuit, filed on October 27, 2013, is timebarred under the four-year statute of limitations applicable to RICO claims. Rotella v. Wood,
147 F.3d 438, 439-40 (5th Cir. 1988, aff’d, 528 U.S. 549 (2000)) Melcher’s averment that
he did not discover Wiggins’ RICO scheme until May 2013 is irrelevant since Rotella holds
that limitations begin running upon the discovery of the injury in question, here, Melcher’s
loss of the property. Moreover, as Wiggins points out in his Reply, Melcher’s most recent

affidavit alleges factual knowledge he acquired in 2009 which clearly should have prompted
him to diligently investigate the circumstances surrounding his loss of the property.
It is, therefore, ORDERED that the converted Motion to Dismiss (Instrument no. 14)
of Defendant, Matthew Drake Wiggins, Jr., is GRANTED and the RICO claim asserted
against Wiggins by Plaintiff, John Ray Melcher, is DISMISSED.
DONE at Galveston, Texas, this

23rd

2

day of May, 2014.