* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### November 2, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

EARL L. PAGEL, Plaintiff-Appellant,

v. WASHINGTON MUTUAL BANK, INC., and LUNDBERG & ASSOCIATES, Defendants-Appellees. No. 05-4020 (D.C. No. 2:04-CV-684-DS)

(D. Utah)

ORDER AND JUDGMENT *

Before TYMKOVICH, PORFILIO , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Earl L. Pagel, proceeding pro s e, appeals the order entered by the district court dismissing his compla int pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Plaintiff is also appealing the district court’s postjudgment rulings. Exercising jurisdiction pursuant to 28 U. S.C. § 1291, we affirm. In his complaint, plaintiff asserted a number of fe deral and state claims against defendants, alleging that they and/or theirpredecessors violated state and federal law in connection with proceedings that the y initiated in state court to foreclose on real property that he owned in the State of Utah. As summarized by the district court, in response to motions to dismi ss that were filed by defendants, plaintiff informed the district court “that his cla ims for fraud, conversion and violation of Utah’s [Pattern of Unlawful] Activity Act are time-barred and must be dismissed,” and plaintiff made “it clear that th e only claims he [was] pursuing [were] the federal RICO statute claims and a claim for breach of contract.” R., Vol. II, Doc. 22 at 1-2. Having clarified what claims were before it, the di strict court then proceeded to dispose of plaintiff’s claims and his postjudgment motions in three separate orders. First, in an order entered in Nov ember 2004, the court concluded that plaintiff failed to state a claim under the fe deral RICO statute, 18 U.S.C. § 1962(c), because he did not allege sufficient fac ts to establish that defendants were engaged in a “pattern of racketeering activity .” As the court explained:-3- To successfully state a federal 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) (quoting Sedima, S.P.R.L. v. Imrex Co., Inc. , 473 U.S. 479, 496 (1985)). . . .

. . . . The “pattern” element “‘requires the showing of a r elationship between the predicate [racketeering acts] . . . and the threat of continuing activity’–that is, ‘continuity plus relationship.’” Resolution Trust Corp. v. Stone , 998 F.2d 1534, 1543 (10th Cir. 1993) [(quotation omitted)]. Plaintiff has failed to establish the pattern element. His complaint alleges only a sing le transaction, a single harm and a single victim–himself. Courts have held that when there is “only one purpose, one result, one set of participants, one victim and one method of commission,” there is “no continuity and . . . no pattern of racketeering activity.” Meadow Limited Partnership v. Heritage Savings and Loan Association , 639 F. Supp. 643[, 650] (E.D. Va. 1986) [(quotation omitted)]. This case is clearly not a RICO case. R., Vol. II, Doc. 22 at 2-3. In its November 2004 order, the district court also concluded that plaintiff had failed to state a claim against defendant Washi ngton Mutual Bank, Inc. for breach of contract. The court analyzed the breach of contract claim as follows:

The only remaining claim is Washington Mutual’s all eged breach of contract in failing to adhere to the 1993 Bankruptcy Court Order (“Order”). Here again Plaintiff has failed t o state a claim for which relief may be granted. . . . [T]he Order is not a contract; it is a court ruling. Plaintiff’s remedy, if he believed D efendant failed to comply with the Order, would have been to move the bankruptcy court to hold Defendant in contempt and compel Defe ndant’s compliance with the Order. Plaintiff has no claim for breach of contract in this court based on Defendant [Washingt on Mutual’s] alleged noncompliance with a bankruptcy court order

.-4-

Id. at 3. Although the district court’s analysis of the breac h of contract claim was framed in terms of a failure to state a claim, we w ill treat the court’s dismissal of the claim as a dismissal under Fed. R. Civ. P. 12(b )(1) for lack of subject matter jurisdiction, as the court’s ultimate conclusion wa s that plaintiff was pursuing the claim in the wrong court. Further, the court speci fically stated that it was granting “Washington Mutual’s Motion to Dismiss und er Rules 12(b)(6) For Failure to State a Claim and 12(b)(1) for Lack of S ubject Matter Jurisdiction . . . .” R., Vol. II, Doc. 22 at 3. Second, in an order entered in January 2005, the di strict court denied plaintiff’s motion for a rehearing. After concludi ng that it would treat the motion as a timely motion to alter or amend the judgment u nder Fed. R. Civ. P. 59(e), the court rejected plaintiff’s argument that it committ ed manifest error by “inadvertently overlook[ing an] amendment filed jus t prior to the court’s ruling [on defendants’ motions to dismiss] that would have cured pleading deficiencies.” R., Vol. II, Doc. 24. According to the court, plai ntiff’s amended allegations still fell short because he was attempt[ing] to show a pattern of racketeering acti vity with broad, general statements, such as “Without proof [Washing ton Mutual] has completely overhauled the former Texas operations, it can only be presumed [Washington Mutual] continues to disobey c ourt orders and clients’ instructions as prescribed,” and “[Lundber g & Associates] maintained a policy of undermining clients’ Chapter13 filings to-5-

explicitly foreclose on clients’ real estate, for w hich Plaintiff will provide impeccable testimony at trial.” These stat ements of opinion, without any specific factual allegations, are insuf ficient to establish a RICO pattern. Id. , Doc. 36 at 3 (quoting id. , Doc. 21 at 9). Finally, in an order entered in February 2005, the district court denied two additional postjudgment motions that plaintiff file d. In one of the motions, plaintiff requested leave, pursuant to Fed. R. Civ. P. 15, “to amend ‘Plaintiff’s Response to Defendant Washington Mutual’s Motion to Dismiss,’ . . . and retract Plaintiff’s former statement, [that] he will no longer pursue state claims.” Id. , Doc. 40 at 1. In support of the motion, plaintiff argued that he had erroneously concluded at the time he responded to defendants’ m otions to dismiss that the state claims were time-barred under Utah law. Spec ifically, plaintiff claimed that he had “just found out Utah Code § 78-12-40 provide s for commencement of new action within one-year upon failure of a suit; for which Plaintiff’s former suit is still active, thus Plaintiff’s claims are not time barred.” R., Vol. II, Doc. 40 at 1. The district court rejected plaintiff’s argument, c oncluding that “[b]ecause the plaintiff’s former case has been closed for more th an a year, and because it failed on the merits, . . . Utah Code Annotated § 78-12-40 does not apply.” Id. , Doc. 471 Because we conclude that the district court acted p roperly when it initially

dismissed plaintiff’s state claims based on plainti ff’s express representation to the court that he was no longer pursuing the claims, we do not need to address defendants’ argument that the district court did no t have subject matter jurisdiction over the claims because there was a la ck of complete diversity of citizenship between the parties and an insufficientamount in controversy. Simply put, plaintiff abandoned the state claims, and the district court did not err in refusing to reinstate the claims after plaintiff fa iled to show that the claims had any merit under state law. -6- at 2. The court therefore denied plaintiff’s motio n to amend his response to Washington Mutual’s motion to dismiss. 1 Id. Plaintiff’s second motion was entitled “Motion for a Comprehensive Review,” id. , Doc. 38, and the district court treated the motio n as a second motion for reconsideration, id. , Doc. 47 at 2. In support of the motion, plaintif f advanced three arguments. First, plaintiff argued that the district court failed to address his position that a bankruptcy court order is a quasi-c ontract. Second, plaintiff argued that the district court erred by failing to allow him to conduct discovery with regard to the “pattern” element of his RICO cl aim. Third, plaintiff argued that the district court’s ruling on the pattern iss ue was not in accordance with other circuit court rulings. The district court re jected each of these arguments, concluding: (1) that it was “not aware of any decis ions holding that failure to adhere to a bankruptcy reorganization plan constitutes breach of contract,” id. at 3; (2) that plaintiff was not entitled to condu ct discovery on the pattern issue because he had failed to plead specific facts showing that other individuals2 Because plaintiff is proceeding pro se, we have als o reviewed his pleadings

liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972). -7- had been injured by defendants’ alleged racketeering activity, id. ; and (3) that plaintiff had failed to present any newly discovere d evidence or show any manifest error of law with regard to the court’s ruling on the pattern issue, id. at 4. As required when addressing appeals from Rule 12(b) (1) and 12(b)(6) dismissals, we have reviewed the district court’s dismissal order de novo. See Ordinance 59 Ass’n v. United States Dep’t of the Interior Sec’y , 163 F.3d 1150, 1152 (10th Cir. 1998). By contrast, we have review ed the court’s denial of plaintiff’s Rule 59(e) motion for an abuse of discretion. See Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir. 1997). We have also reviewed the district court’s additional postjudgment rulings for an abuse of discretion. 2We conclude that the district court did not commit reversible error in d ismissing plaintiff’s complaint and in denying the requested postjudgment relief, and we affirm the district court for substantially the same reasons stated in its th ree orders. We also reject plaintiff’s argument that he allegedsufficient facts to establish a pattern of racketeering activity becaus e he alleged that defendants engaged in multiple predicate racketeering acts ove r a period of several years. In this circuit, it is well established that a single scheme to accomplish one discrete-8-

goal, directed at a finite group of individuals, wi th no potential to extend to other persons or entities, rarely will suffice to establi sh a threat of continuing racketeering activity. See Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1556 (10th Cir. 1992); Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1516 (10th Cir. 1990); Phelps v. Wichita Eagle-Beacon , 886 F.2d 1262, 1273-74 (10th Cir. 1989). We see no circumstances here that requ ire a departure from this general rule. Instead, as the district court found , plaintiff “alleges only a single transaction, a single harm and a single victim–hims elf.” R., Vol. II, Doc. 22 at 2- 3. Moreover, while plaintiff attempted to plead a larger racketeering enterprise extending beyond his own circumstances, we agree wi th the district court that his allegations are wholly conclusory, and therefore in sufficient to show a threat of continuing racketeering activity beyond his own alleged injuries. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (“[C]oncluso ry allegations without supporting factual averments are insufficient to st ate a claim on which relief can be based.”). The district court’s dismissal and postjudgment ord ers are AFFIRMED. We also AFFIRM the judgment that the district courtentered awarding defendant Lundberg & Associates attorneys’ fees in the amountof $3,202.50 under Utah Code Annotated § 76-10-1605(8). Although this appe al borders on being frivolous and we have considered sanctioning plaint iff for pursuing meritless-9-

claims, we DENY Lundberg & Associates’ motion for an award of damages and costs under Fed. R. App. P. 38. Finally, we DENY the request for appointment of counsel that is set forth at the end of plaintiff’s opening brief.

Entered for the Court
Bobby R. Baldock Circuit Judge