UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

ALLEN REED DAVISON, II,

 Plaintiff - Appellant,

v.

GRANT THORNTON LLP; BRYAN 

CAVE LLP; SCOTT CURTIN, partner at 

Grant Thornton, LLP; DEAN 

JORGENSON, partner at Grant Thornton, 

LLP; MARK STUTMAN, partner at 

Grant Thornton, LLP; STEPHEN 

CHIPMAN, partner at Grant Thornton, 

LLP; JOHN BARRIE, partner at Bryan 

Cave, LLP,

 Defendants - Appellees.

No. 14-3084

 (D.C. No. 2:13-CV-02309-JAR-JPO)

(D. Kansas)

ORDER AND JUDGMENT*

 

* After examining the briefs and the appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. 

P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 3, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

Before HARTZ, McKAY, and MATHESON, Circuit Judges. 

 

Plaintiff Allen Davison II sued Defendants Grant Thornton LLP, Bryan Cave LLP, 

and partners of both firms, alleging that they had misrepresented to the federal 

government his role in promoting tax shelters while he was a partner at Grant Thornton. 

Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction. The 

district court agreed because there was not complete diversity and the complaint’s 

passing reference to the Racketeer Influenced and Corrupt Organizations Act of 1970 

(RICO), 18 U.S.C. §§ 1961‒1968, was not enough for federal-question jurisdiction 

because the complaint did not allege any elements of a RICO claim. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm, although our analysis differs somewhat 

from that of the district court. 

I. BACKGROUND 

Plaintiff was a CPA and licensed attorney working for Grant Thornton, an 

accounting firm. Grant Thornton was investigated by the Internal Revenue Service (IRS) 

and the Senate Finance Committee for promoting corporate tax shelters. Represented by 

Bryan Cave, a law firm, Grant Thornton and several of its partners disavowed knowledge 

of the tax shelters and blamed Plaintiff and another Grant Thornton tax partner for the 

misconduct. The investigations resulted in a number of civil actions against Plaintiff and 

Grant Thornton by Grant Thornton’s clients. The federal government ultimately obtained 

a civil injunction preventing Plaintiff from providing federal tax advice. 
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Plaintiff sued Grant Thornton, several of its partners, Bryan Cave, and one of its 

partners in the United States District Court for the District of Kansas. The complaint 

alleged that they had “grossly misrepresented (at best) the role of [Plaintiff] relative to the 

role of [Grant Thornton] in researching, developing, advising, and promoting the tax 

advice challenged by the federal government. These actions by the Defendant violated 

numerous fiduciary and contractual duties and violated multiple statutes.” R. at 8–9. It 

also alleged that jurisdiction was proper “[b]ecause of the diversity of domicile of the 

defendants.” Id. at 10. It did not allege federal-question jurisdiction and the only federal 

statute identified in the complaint was RICO, which appears only in the complaint’s table 

setting forth “Relief and Damages Sought by the Plaintiff.” Id. at 9. The columns are 

labeled “Damage Claim Description,” “Amount,” and “Explanation.” Id. Row G has 

“Treble Factor” in the first column; 17,238,00 in the second column; and “Racketeer 

Influenced and Corrupt Organization Act (RICO)” in the third. Id. Additionally, on the 

complaint’s cover sheet, Plaintiff indicated that he was bringing the action under RICO. 

Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction. 

They argued (1) that there was not complete diversity under 28 U.S.C. § 1332 because 

Plaintiff resided in Kansas and so did partners of both Grant Thornton and Bryan Cave, 

and (2) that there was not federal-question jurisdiction under 28 U.S.C. § 1331 because 

Plaintiff had not adequately pleaded the elements of a RICO claim. Plaintiff responded 

that there was diversity jurisdiction and that there was federal-question jurisdiction 

because Defendants violated “RICO, the Internal Revenue Code, federal securities law, 
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federal banking laws, interstate commerce and the United States Constitution.” Id. at 43. 

He did not elaborate on that bald assertion. 

The district court agreed with Defendants and dismissed the case. With respect to 

federal-question jurisdiction, the court held that because Plaintiff had not adequately 

pleaded a RICO claim under Fed. R. Civ. P. 12(b)(6), it lacked federal-question 

jurisdiction. Plaintiff appeals, challenging only the court’s ruling on federal-question 

jurisdiction. 

II. DISCUSSION 

We review de novo the district court’s dismissal for lack of jurisdiction under Fed. 

R. Civ. P. 12(b)(1). See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). A 

pro se litigant’s pleadings are construed liberally but we do not act as the litigant’s 

advocate. See Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009). “For a case 

to arise under federal law within the meaning of § 1331, the plaintiff’s well-pleaded 

complaint must establish one of two things: either that federal law creates the cause of 

action or that the plaintiff’s right to relief necessarily depends on resolution of a 

substantial question of federal law.” Firstenberg v. City of Santa Fe, 696 F.3d 1018, 

1023 (10th Cir. 2012) (internal quotation marks omitted). 

The district court held that it lacked jurisdiction because the complaint failed to 

state a claim under Rule 12(b)(6). “A determination that a claim lacks merit, however, 

does not necessarily mean it is so lacking as [to defeat federal-question jurisdiction].” 

Harline v. Drug Enforcement Admin., 148 F.3d 1199, 1203 (10th Cir. 1998); see Bell v. 
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Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction . . . is not defeated . . . by the possibility 

that the averments might fail to state a cause of action on which petitioners could actually 

recover.” ). “A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable 

claim arising under the Constitution or laws of the United States.” Arbaugh v. Y&H 

Corp., 546 U.S. 500, 513 (2006) (internal quotation marks omitted). “Dismissal for lack 

of subject-matter jurisdiction because of the inadequacy of the federal claim is proper 

only when the claim is so insubstantial, implausible, foreclosed by prior decisions of this 

Court, or otherwise completely devoid of merit as not to involve a federal controversy.” 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (internal quotation marks 

omitted).

When applying this standard, we have explained that “[t]he complaint must 

identify the statutory or constitutional provision under which the claim arises, and allege 

sufficient facts to show that the case is one arising under federal law.” Martinez v. U.S. 

Olympic Comm., 802 F.2d 1275, 1280 (10th Cir. 1986). For example, we dismissed for 

lack of jurisdiction when a complaint referenced 42 U.S.C. § 1983 but wholly failed to 

include allegations supporting a constitutional claim. See Sanders v. Indep. Sch. Dist. 

No. I-2, 459 F.2d 51, 52 (10th Cir. 1972); see also Harline, 148 F.3d at 1202–06 (dueprocess claim was not colorable). 

To state a private RICO claim, “a plaintiff must allege four elements: (1) conduct 

(2) of an enterprise (3) through a pattern (4) of racketeering activity.” Robbins v. Wilkie, 

300 F.3d 1208, 1210 (10th Cir. 2002) (internal quotation marks omitted). Racketeering 
6 

activity is “any act in violation of specified state and federal crimes, including wire fraud, 

bank fraud, and fraud in the sale of securities.” Resolution Trust Corp. v. Stone, 998 F.2d 

1534, 1543 (10th Cir. 1993). The specified crimes are found at 18 U.S.C. § 1961(1). 

A pattern requires at least two predicate acts. In addition, to satisfy RICO’s 

pattern requirement, a plaintiff must allege not only that the defendants had 

committed two or more predicate acts, but also that the predicates 

themselves amount to, or that they otherwise constitute a threat of, 

continuing racketeering activity. 

Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010) (brackets, citations, emphasis, and 

internal quotation marks omitted). 

Plaintiff’s complaint totally fails to set forth a RICO claim. In particular, it makes 

no attempt to identify predicate offenses under § 1961(1), and we can discern none. 

Perhaps Defendants’ alleged false statements to the government could conceivably have 

violated 18 U.S.C. § 1001, but that statute is not listed in § 1961(1) as racketeering 

activity. Nor do Plaintiff’s allegations come close to stating the offense of obstruction of 

justice. See 18 U.S.C. § 1503. 

Plaintiff’s brief on appeal argues that the district court should not have limited its 

analysis to RICO and lists various statutes and constitutional provisions that purportedly 

apply to his claims. But a mere list of statutes without further explanation is hardly 

adequate to preserve an issue on appeal, see Bronson v. Swensen, 500 F.3d 1099, 1104 

(10th Cir. 2007), and we see no need to consider them when they were not identified in 

the complaint. 
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Finally, Plaintiff argues that he should have been given “a limited evidentiary 

hearing to clarify [his] jurisdiction[al] position.” Aplt. Br. at 4. But Plaintiff did not 

request an evidentiary hearing from the district court, and evidence is irrelevant in 

determining the adequacy of a pleading. 

III. CONCLUSION

We AFFIRM the district court’s dismissal for lack of jurisdiction. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge