FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12347

Non-Argument Calendar

________________________

D. C. Docket No. 07-00042-CV

ALONZO AUSTIN,

Plaintiff-Appellant,

versus

GLOBAL CONNECTION,

SAM ABDALLAH,

CEO/CFO,

RACHELLE COPELAND,

GLOBAL CONNECTION, INC. OF AMERICA,

GLOBAL CONNECTION INC., OF ALABAMA,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(December 17, 2008)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Alonzo Austin, pro se, appeals the district court’s denial of his motion to

strike Global Connection’s motion for summary judgment, and its grant of

summary judgment to Global Connection in his pro se suit alleging fraud, wire and

mail fraud under 18 U.S.C. §§ 1341, 1343, and violations under the Racketeer

Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962. On appeal,

Austin first argues that the district court abused its discretion in denying his motion

to strike because Global Connection untimely filed its motion for summary

judgment. Second, Austin argues that the district court erred in granting summary

judgment to Global Connection, a telephone service provider, because Global

Connection failed to produce any evidence relating to Austin’s account with

Global Connection. He argues that he never received the 100 free long distance

minutes that Global Connection agreed to provide him in exchange for directly

charging Austin’s credit card for his telephone service. He also challenges the

district court’s failure to compel Global Connection to timely produce an exhibit

and witness list for trial, or to order a pretrial conference.

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 Austin’s amended complaint also named as defendants Sam Abdallah and Rachelle 1

Copeland, the CEO and CFO of Global Connection, respectively. Austin does not challenge on

appeal, however, their dismissal as parties, and thus has abandoned that issue. Horsley v. Feldt,

304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Additionally, although Austin’s two motions for

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I. Austin’s Motion to Strike

Prior to filing its untimely motion for summary judgment, Global

Connection, through counsel, advised the court that it was experiencing technical

difficulties and thus requested a brief filing extension. In denying Austin’s motion

to strike, the magistrate judge explained that Global Connection had contacted the

court regarding these difficulties, and that the court had granted Global Connection

permission to file its motion on February 1, 2008. Accordingly, the district court

did not abuse its discretion by allowing Global Connection to file its motion for

summary judgment one day late, and subsequently denying Austin’s motion to

strike.

II. Summary Judgment

We review a district court’s grant or denial of summary judgment de novo.

Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). We consider

only the evidence that was before the district court, and view all such evidence in

the light most favorable to the nonmoving party. Id. Summary judgment is

appropriate when there exists no genuine issue of material fact, and the evidence

compels judgment as a matter of law in favor of the moving party. Id. at 836-37;

Fed.R.Civ.P. 56(c). A party opposing summary judgment may not rest upon mere

summary judgment were denied, he does not raise those issues on appeal, and they likewise are

abandoned. Id.

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allegations or denials of pleadings, but must set forth specific facts showing a

genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

a. Count I - Fraud

Under Alabama law, the elements of fraud are: “(1) a misrepresentation,

(2) of a material existing fact, (3) on which the plaintiff relied, and (4) which

proximately caused injury or damage to the plaintiff.” Wright v. AmSouth

Bancorporation, 320 F.3d 1198, 1204 (11th Cir. 2003) (quotation omitted). To

prevail on a promissory fraud claim based upon a promise to act or not to act in the

future, “the plaintiff must show that at the time of the alleged misrepresentation

(that is, the promise), the defendant intended not to do the act or acts promised, but

intended to deceive the plaintiff.” Id. (quotation omitted).

The district court did not err in granting summary judgment in favor of

Global Connection on Austin’s fraud claim because the evidence submitted,

including the records relating to Austin’s account, demonstrated that Austin

received the 100 free minutes of long distance service that he claimed. Thus, there

exists no genuine issue of material fact, and the district court did not err in granting

summary judgment in favor of Global Connection on Austin’s fraud claim.

Holloman, 443 F.3d at 836-37.

b. Counts II and III - Wire and Mail Fraud

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The federal wire and mail fraud statutes are criminal statutes which do not

provide for civil remedies. See 18 U.S.C. § 1341 (mail fraud), 18 U.S.C. § 1343

(wire fraud); Johnson Enter. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d

1290, 1316-17 (11th Cir. 1998) (recognizing §§ 1341 and 1343 as criminal

statutes). Furthermore, the Supreme Court has explained that private citizens lack

“a judicially cognizable interest in the prosecution or nonprosecution of another.”

Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 767 n.13, 125 S.Ct. 2796,

2809, 162 L.Ed.2d 658 (2005). Thus, Austin cannot bring civil claims under the

criminal federal wire and mail fraud statutes. See 18 U.S.C. §§ 1341, 1343.

Accordingly, the district court properly granted summary judgment in Global

Connection’s favor. Holloman, 443 F.3d at 836-37.

c. RICO Violations

The RICO act provides for civil liability. 18 U.S.C. § 1962(a)-(d). “The

four elements of civil RICO liability are (1) conduct (2) of an enterprise

(3) through a pattern (4) of racketeering activity.” Langford, 231 F.3d at 1311.

“[T]he Supreme Court has observed that two isolated acts of racketeering activity

do not constitute a pattern.” Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386,

1397 (11th Cir. 1994) (quotations omitted) (citing Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 496 n.14, 105 S.Ct. 3275, 3285 n.14, 87 L.Ed.2d 346 (1985)).

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Rather, a pattern is produced through the combination of “continuity plus

relationship,” which requires that the predicate acts have, in part, a similar purpose,

result, or victim, and that they occurred over a substantial period of time. Id.

“Predicate acts extending over a few weeks or months and threatening no future

criminal conduct do not satisfy [the continuity] requirement.” Id. (citing H.J. Inc.

v. Northwestern Bell Tel. Co., 492 U.S. 229, 241-42, 109 S.Ct. 2893, 2902, 106

L.Ed.2d 195 (1989)).

The record evidence, viewed in the light most favorable to Austin, fails to

establish that Global Connection committed either wire or mail fraud, the alleged

underlying racketeering activity, which is a requisite element of a RICO claim.

Langford, 231 F.3d at 1311. Moreover, the alleged incidents of wire and mail

fraud do not constitute a pattern of racketeering activity for the purposes of the

RICO Act because there were only two acts complained of, the acts did not occur

over a substantial amount of time, and Austin did not show a threat of future

occurrences. Cox, 17 F.3d at 1397. Accordingly, the evidence does not establish

the requisite elements of a RICO claim, and Global Connection was thus entitled to

summary judgment. Holloman, 443 F.3d at 836-37.

III. Scheduling Order

District courts have the power to manage their own dockets, and we review a

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district court’s exercise of that power only for abuse of discretion. Young, 358

F.3d at 863-64. The district court did not abuse its discretion in failing to compel

Global Connection to produce its exhibit and witness list, or in failing to order that

the scheduled pretrial conference be held. Regarding the exhibit list, Austin did

not immediately object to the magistrate’s failure to compel the list, but rather filed

a motion for summary judgment, the outcome of which could potentially make the

issue of Global Connection’s exhibit list moot. As to the pretrial conference

scheduled for February 2008, both Austin and Global Connection had filed their

motions for summary judgment by February 1, 2008, thus potentially making the

issue of a pretrial conference moot. Additionally, Austin raised no objection to

either of these issues until after the magistrate had already recommended granting

summary judgment in favor of Global Connection, at which point these issues were

essentially moot. Accordingly, the district court did not abuse its discretion in

rejecting Austin’s arguments and not requiring Global Connection to comply with

the scheduling order.

AFFIRMED.

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