IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JAMES A. SHAWVER, II, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-378-A

§

MANN BRACKEN, L.L.C., ET AL., §

§

Defendants. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of defendants, Mann

Bracken, L.L.C. ("Mann Bracken"), Chase Manhattan Bank USA, N.A.

("Chase"), James D. Branton ("Branton"), and Michael Austin

("Austin"), to dismiss for failure to state a claim upon which

relief can be granted. Having considered the motion and the

applicable authorities, the court has determined that it should

be granted.

I.

Plaintiff's Claims

Plaintiff, James A. Shawver, II, alleges in his complaint

that defendants violated the Federal Racketeer Influenced and

Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq.,

and the federal mail fraud statute, 18 U.S.C. § 1341. It should

be noted, however, that plaintiff's complaint consists of little

more than a series of conclusory allegations. The court

concludes that the only portion deserving of discussion is a

section where plaintiff alleges what he presents as predicate

 

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acts in violation of 18 U.S.C. §§ 1961, 1962 & 1341. Compl. at

4. That portion of the complaint states:

[1] On or about August 2, 2004, predicate

actor Michael Austin uttered a document through

the Untied [sic] States Mail which Michael Austin

knew was false with the intention that James A.

Shawver II rely on the false document to the

detriment of losing over nineteen hundred dollars.

[2] On or about April 12, 2005, predicate actor

James D. Branton uttered a document through the Untied

[sic] States Mail which James D. Branton knew was false

with the intention that James A. Shawver II rely on the

false document to the detriment of losing over twentyfive hundred dollars.

[3] On or about March 22, 2005, predicate

actor James D. Branton uttered a document through

the United States Mail which James D. Branton knew

was false with the intention that James A. Shawver

II rely on the false document to the detriment of

losing over three thousand dollars.

[4] On or about April 12, 2005, predicate

actor James D. Branton filed a groundless,

frivolous arbitration claim against James A.

Shawver II in the National Arbitration Forum in

violation of James A. Shawver II's due process

rights, with the intention that James A. Shawver

II lose over twenty-five hundred dollars.

[5] On or about March 22, 2005, predicate

actor James D. Branton filed a groundless,

frivolous arbitration claim against James A.

Shawver II in the National Arbitration Forum in

violation of James A. Shawver II's due process

rights, with the intention that James A. Shawver

II over [sic] three thousand dollars.

Id.

II.

Grounds of the Motion

 

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Defendants urge in their motion that (1) plaintiff does not

meet the RICO standing or injury requirement, (2) there is no

pleading or showing of continuity to create an enterprise, (3)

debt collection is not a RICO violation, (4) defendants' actions

do not constitute mail fraud, and (5) plaintiff has not properly

alleged a conspiracy charge under section 1962(d) 

In support of their motion, defendants argue, with

supporting documentation, that: 

The claims in this action arise out plaintiff's default of

his obligation to re-pay a debt owed to Chase on two charge

accounts. See Defs.' Mot., App. at 11-20. In March 2005

plaintiff owed $2,520.92 on Visa Account # 4266 8510 4535 6687;

and in February 2005 he owed $3,056.52 on Visa Account # 4266

9010 2598 3388. Id. at 15 and 20. Thereafter, Mann Bracken

filed claims on behalf of Chase in two arbitration proceedings

and obtained arbitration awards against Plaintiff in the amounts

of $2,881.62 and $3,480.94. Id. at 1-2.

Plaintiff did not respond to the motion.

III.

Applicable Legal Standards

The standards for deciding a motion to dismiss for failure

to state a claim are well settled. The court's task is to

determine "not whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support the

claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A

 

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complaint "should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to

relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court

construes the allegations of the complaint favorably to the

pleader. Scheuer, 416 U.S. at 236. However, the court does not

accept conclusory allegations or unwarranted deductions of fact

as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067

(5th Cir. 1994); Guidry v. Bank of LaPlace, 954 F.2d 278, 281

(5th Cir. 1992). "[D]ocuments that a defendant attaches to a

motion to dismiss are considered part of the pleadings if they

are referred to in the plaintiff's complaint and are central to

her claim." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,

498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. V. Zenith

Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).

IV.

Analysis

A. RICO Pleading Requirements.

The Fifth Circuit commands that all "civil RICO claim[s]

must involve: (1) a person who engages in (2) a pattern of

racketeering activity (3) connected to the acquisition,

establishment, conduct, or control of an enterprise." Delta

Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th

 

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In his complaint, plaintiff alleges a general violation of the

substantive RICO statute, 18 U.S.C. § 1962. However, that statute

contains four subsections of prohibited racketeering activity, none

of which plaintiff has specifically relied upon. See e.g. Crowe v.

Henry, 43 F.3d 198, 203 (5th Cir. 1995) (summarizing the

subsections of § 1962 in "their simplest terms"). Nevertheless,

the court need not determine which subsection plaintiff intended

to invoke if he fails to allege at least one of the elements

common to all civil RICO claims.

5

Cir. 1988) (emphasis in original).1 Based on the following the

court concludes that plaintiff has failed to plead facts

establishing a pattern of racketeering activity. "Because this

conclusion, alone, is dispositive, [the court] need not consider

whether [plaintiff] sufficiently alleged the other elements." 

See In re Mastercard Int'l, Inc., 313 F.3d 257, 261 (5th Cir.

2002). 

B. Plaintiff Fails to Allege a Pattern of Racketeering Activity.

"A pattern of racketeering activity requires two or more

predicate acts and a demonstration that the racketeering

predicates are related and amount to or pose a threat of

continued criminal activity." St. Paul Mercury Ins. Co. v.

Williamson, 224 F.3d 425, 441 (5th Cir. 2000); see also 18 U.S.C.

§ 1961(5). Stated another way, plaintiff must plead facts

establishing that (1) at least one of the defendants has

committed two or more predicate acts, and (2) the same defendants

will likely continue to commit these acts.

Section 1961 delineates all predicate acts that constitute

racketeering activity, including mail fraud. See 18 U.S.C. §

1961(1). As shown above, plaintiff pleads three alleged

 

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 In the fourth and fifth alleged predicate acts, plaintiff

asserts that defendants violated his right to due process. Because

alleged violations of due process are not RICO predicates, the court

in not considering those predicate acts further. See 18 U.S.C. §

1961(1)(B) (listing the predicate acts). 

3Plaintiff alleges that Austin and Branton both "knew" the

documents mailed to plaintiff were "false" and that they intended

for plaintiff to "rely on the false document." Compl. at 4. These

attempts to plead scienter are unavailing because they do not

explain, with particularity, how Austin and Branton knew the

document was false. See Tuchman, 14 F.3d 1061, 1068 ("Although

scienter may be 'averred generally', case law amply demonstrates that

pleading scienter requires more than a simple allegation that a

defendant had fraudulent intent").

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instances of mail fraud as RICO predicates.2 An element of RICO

mail fraud is scienter. See St. Paul Mercury Ins. Co., 224 F.3d

at 441; see also Crowe v. Henry, 115 F.3d 294, 297 (5th Cir.

1997). Thus, for the complaint adequately to allege predicate

acts, it must contain allegations of facts establishing that

these mailings were made with the intent to defraud. 

Plaintiff's complaint, however, fails to allege facts

establishing an intent to defraud. Plaintiff's allegations are

conclusory allegations, not specific facts that support an

inference of fraud. See Fed R. Civ. P. 9(b); see also Tuchman v.

DCS Communications Corp., 14 F.3d 1061, 1068 (5th Cir. 1994). 

Throughout his complaint, plaintiff refers to alleged acts of

fraud without ever explaining what specific action constituted

the fraud.3 To be sure, the court is mindful that the Fifth

Circuit will, in some cases, allow circumstantial evidence of

intent to defraud. See Landry v. Air Line Pilots Ass'n Int'l,

901 F.2d 404, 429 n.87 (5th Cir. 1990). Nevertheless, plaintiff

also failed to alleged any facts, such as a reckless disregard

 

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for the truth or falsity of the mailings, from which fraudulent

intent could be inferred.

Moreover, even had plaintiff pleaded such facts, the alleged

predicate acts are simply too isolated in light of the Fifth

Circuit's continuity requirement. See St. Paul Mercury Ins. Co.,

224 F.3d at 441. The alleged mail fraud is nothing more than

simple debt-collection. Cf. Delta Truck, 855 F.2d at 244

(dismissing civil RICO complaint where plaintiff "alleged as a

pattern of racketeering activity nothing more than numerous

predicate acts which were necessary segments of an otherwise

legitimate and singular commercial endeavor"). The court is

confident that, should the plaintiff settle his debts, the

mailings will cease. 

Therefore, the court concludes that plaintiff failed to

allege any facts establishing the intent to defraud on the part

of any defendants.

V.

O R D E R

For the reasons discussed herein,

The court ORDERS that the motion of defendants to dismiss

be, and is hereby, granted. 

The court further ORDERS that all claims asserted by

plaintiff against defendants in the above-styled action be, and

are hereby, dismissed.

 

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SIGNED October 6, 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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