UNITED STATES COURT OF APPEALS TENTH CIRCUIT

ALLEN REED DAVISON, II, Plaintiff - Appellant,

v. GRANT THORNTON LLP; BRYAN CAVE LLP; SCOTT CU RTIN, 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-C V-02309-JAR-JPO) (D. Kansas)

ORDER AND JUDGMENT *

* After examining the briefs and the appella te record, this panel has determined unanimously that oral argument would not mate rially 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 This order a nd judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its pe rsuasive 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 Court2 Before HARTZ , McKAY , and MATHESON , Circuit Judges.

Plaintiff Allen Davison II sued Defendant s Grant Thornton LLP, Bryan Cave LLP, and partners of both firms, alleging that they had misrepresent ed 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 ou r analysis differs somewhat from that of the district court. I. BACKGROUND Plaintiff was a CPA and licensed attorn ey working for Grant Thornton, an accounting firm. Grant Thornton was investigat ed by the Internal Revenue Service (IRS) and the Senate Finance Committe e for promoting corporate tax shelters. Represented by Bryan Cave, a law firm, Grant Thornton and se veral of its partners disavowed knowledge of the tax shelters and blamed Plaintiff a nd another Grant Thornton tax partner for the misconduct. The investigations resulted in a number of civil actions against Plaintiff and Grant Thornton by Grant Thornt on’s clients. The federal go vernment ultimately obtained a civil injunction preventing Plaintiff from providing federal tax advice.3 Plaintiff sued Grant Thornton, several of its partners, Bryan Ca ve, and one of its partners in the United States District Court for the District of Kansas. The complaint alleged that they had “grossly misrepresented (a t 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 contractua l 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-questi on jurisdiction and the only federal statute identified in the comp laint 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 seco nd column; and “Racketeer Influenced and Corrupt Organizati on Act (RICO)” in the third. Id. Additionally, on the complaint’s cover sheet, Plaintiff indicated th at he was bringing th e action under RICO. Defendants moved to dismiss the complaint fo r lack of subject-matter jurisdiction. They argued (1) that there was not complete diversity un der 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 elemen ts of a RICO claim. Plaintiff responded that there was diversity jurisdiction and th at there was federal-question jurisdiction because Defendants violated “R ICO, the Internal Revenue Code, federal securities law,4 federal banking laws, interstate commerc e 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, challengi ng only the court’s ru ling on federal-question jurisdiction.
II. DISCUSSION We review de novo the district court’s di smissal 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 liber ally but we do not act as the litigant’s advocate. See Merryfield v. Jordan , 584 F.3d 923, 924 n.1 (10t h Cir. 2009). “For a case to arise under federal law within the mean ing of § 1331, the plaintiff’s well-pleaded complaint must establish one of two things: either that fe deral law creates the cause of action or that the plaintiff’s right to re lief necessarily depend s on resolution of a substantial question of federal law.” Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) (interna l quotation marks omitted). The district court held that it lacked jurisdiction becau se the complaint failed to state a claim under Rule 12(b)(6). “A determ ination that a claim lacks merit, however, does not necessarily mean it is so lacking as [to defeat fede ral-question jurisdiction].” Harline v. Drug Enforcement Admin. , 148 F.3d 1199, 1203 (10th Cir. 1998); see Bell v.5 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 § 13 31 jurisdiction when sh e 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 quota tion marks omitted). “D ismissal for lack of subject-matter jurisdiction b ecause of the inadequacy of the federal claim is proper only when the claim is so insubs tantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of mer it as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 89 (1998) (i nternal quotation marks omitted). When applying this standard, we have explained that “[t]he complaint must identify the statutory or constitutional provisi on under which the clai m 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 co mplaint referenced 42 U.S.C. § 1983 but wholly failed to include allegations suppor ting 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 plainti ff must allege four elements: (1) conduct (2) of an enterprise (3) through a pa ttern (4) of racketeering activity.” Robbins v. Wilkie , 300 F.3d 1208, 1210 ( 10th Cir. 2002) (internal quotati on marks omitted). Racketeering6 activity is “any act in violation of specified state and federal crimes , including wire fraud, bank fraud, and fraud in th e sale of securities.” Resolution Trust Corp. v. Stone , 998 F.2d 1534, 1543 (10th Cir. 1993). The specified crimes are fo und 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 a llege 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) (b rackets, citations, emphasis, and internal quotation marks omitted). Plaintiff’s complaint totally fa ils to set forth a RICO claim. In particular, it makes no attempt to identify predicate offenses und er § 1961(1), and we can discern none. Perhaps Defendants’ alleged false statements to the government could conceivably have violated 18 U.S.C. § 10 01, but that statute is not liste d in § 1961(1) as racketeering activity. Nor do Plaintiff’s allegations come cl ose to stating the offe nse 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 provis ions that purportedly apply to his claims. But a mere list of stat utes 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 consid er them when they were not identified in the complaint.7 Finally, Plaintiff argues that he should ha ve been given “a limited evidentiary hearing to clarify [his] jurisd iction[al] position.” Aplt. Br. at 4. But Plaintiff did not request an evidentiary heari ng from the district court, a nd evidence is irrelevant in determining the adequacy of a pleading. III. CONCLUSION We AFFIRM the district court’s di smissal for lack of jurisdiction.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge