IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20576

Summary Calendar

ERIKA ARROYO,

Plaintiff-Appellant,

v.

OPRONA, INC., ROSEN SWISS AG, and CHRIS F. YOXALL,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-852

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit 

Judges.

PER CURIAM:*

Plaintiff-Appellant Erika Arroyo (“Arroyo”) appeals the district court’s 

judgment dismissing her federal Racketeer Influenced and Corrupt 

Organizations Act (“RICO”) claims and remanding her remaining state law 

claims to state court. Because Arroyo’s complaint failed to sufficiently allege 

facts that support the standing requirement under the RICO statute for her

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 30, 2018

Lyle W. Cayce

Clerk

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civil RICO claims against Defendants-Appellees Oprona, Inc. (“Oprona”), 

Rosen Swiss AG (“Rosen Swiss”), and Chris F. Yoxall (“Yoxall”), we AFFIRM.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Oprona employed Arroyo as a finance manager in its Houston, Texas 

office from December 2013 to August 2015.1 Arroyo’s duties as the supervisor 

of the financial staff at Oprona primarily related to overseeing Oprona’s 

accounting, payroll, and taxes. Yoxall, an Oprona vice president, supervised 

Arroyo.

During her employment, Arroyo became aware that Yoxall was using

company funds for the payment of his personal expenses. Reviewing the 

accounting records, Arroyo discovered thousands of dollars had been 

transferred to Yoxall’s personal accounts from Oprona’s accounts in a way 

indicating that Yoxall was attempting to evade federal income taxes. 

Particularly, in April 2015, Yoxall requested that Arroyo prepare and sign a 

$96,922 check from Oprona’s business account for his personal income taxes 

due to the IRS. Yoxall claimed that Oprona’s parent company based out of 

Switzerland, Rosen Swiss, approved the payment that he requested. After 

consulting with the chief financial officer of Rosen Swiss, Oliver Kille (“Kille”),

who stated that Yoxall’s requested payment would not be authorized, Arroyo 

refused to sign and prepare the $96,922 check for Yoxall. 

Despite Arroyo’s refusal to prepare and sign the check, the check was 

still prepared and processed by another staff member for Yoxall. At an annual 

financial meeting held at Rosen Swiss’s headquarters in Stans, Switzerland

the same month, Arroyo voiced her concerns to Kille regarding Yoxall’s use of 

company funds to pay his personal expenses. To support her allegations, after 

 

1 We accept all well-pleaded facts as true and view the facts in the light most favorable 

to Arroyo. See Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012) (citing Jebaco Inc. v. 

Harrah’s Operating Co., 587 F.3d 314, 318 (5th Cir. 2009)).

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returning to Houston, Arroyo sent financial records to Rosen Swiss’s

headquarters that detailed Yoxall’s improper use of Oprona’s funds. 

Thereafter, Arroyo began to gradually lose her duties at Oprona. In May 

2015, Arroyo was moved out of her office and had some of her responsibilities 

passed over to a newly hired employee. In July 2015, Yoxall removed more of

Arroyo’s duties and supervisory authority. Eventually, Yoxall asked Arroyo to 

voluntarily resign from her position. On August 5, 2015, after Arroyo refused 

to resign, Oprona terminated Arroyo’s employment.

In March 2016, Arroyo filed this lawsuit against Oprona, Rosen Swiss, 

and Yoxall in Texas state court alleging Texas state law claims and claims for 

violations of the federal civil RICO statute. Particularly, Arroyo alleged that 

Oprona, Yoxall, and Rosen Swiss engaged in a RICO conspiracy involving the 

RICO predicate acts of mail fraud, 18 U.S.C. § 1341, wire fraud, 18 U.S.C. § 

1343, witness tampering, 18 U.S.C. § 1512(b), and retaliation against a 

witness, 18 U.S.C. § 1513(e), that directly related to her termination of 

employment at Oprona.

The suit was subsequently removed to federal court based on federal 

question jurisdiction. On November 1, 2016, the district court granted Arroyo’s 

motion for leave to amend her complaint, where she continued to assert her

federal civil RICO and state law claims. Oprona, Yoxall, and Rosen Swiss filed 

motions to dismiss Arroyo’s amended complaint. After adopting the magistrate 

judge’s report and recommendation, the district court dismissed Arroyo’s 

complaint against Rosen Swiss without prejudice on grounds of insufficient 

service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). 

Additionally, the district court dismissed the federal civil RICO claims against 

Yoxall and Oprona based on Arroyo’s failure to state a plausible claim for relief

pursuant to Federal Rule of Civil Procedure 12(b)(6). Arroyo timely appealed. 

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II. DISCUSSION

a. RICO Claims

We review a district court’s grant of a Rule 12(b)(6) motion to dismiss de 

novo. Bass, 669 F.3d at 506. “Dismissal is appropriate when the plaintiff has 

not alleged enough facts to state a claim to relief that is plausible on its face or 

has failed to raise [her] right to relief above the speculative level.” Id. “[W]e 

may affirm the district court on any grounds raised below and supported by 

the record.” Welborn v. Bank of New York Mellon Corp., 557 F. App’x 383, 386 

(5th Cir. 2014) (per curiam) (unpublished) (citing Raj v. Louisiana State Univ.,

714 F.3d 322, 330 (5th Cir. 2013)). As a preliminary matter, “[a] plaintiff must 

establish standing to bring a civil RICO claim” under the RICO statute. 

Jackson v. Nat’l Ass’n for Advancement of Colored People, 546 F. App’x 438, 

442 (5th Cir. 2013) (per curiam) (unpublished) (citing Price v. Pinnacle Brands, 

Inc., 138 F.3d 602, 606 (5th Cir. 1998)). “‘Any person injured in his business or 

property by reason of a violation of section 1962’ may sue pursuant to the civil 

cause of action created by RICO.” Id. (quoting 18 U.S.C. § 1964).

Here, Arroyo has no standing under the RICO statute to assert her civil 

RICO claims. See 18 U.S.C. § 1964(c). The injury Arroyo allegedly suffered

stems from her loss of employment after she refused to participate in the 

scheme headed by Yoxall to defraud the IRS and reported Yoxall’s conduct to 

Rosen Swiss. “Whistle blowers do not have standing to sue under RICO for the 

injury caused by the loss of their job.” Cullom v. Hibernia Nat’l Bank, 859 F.2d 

1211, 1215 (5th Cir. 1988). “[B]eing discharged for either reporting a RICO 

violation or refusing to participate in a RICO violation does not flow from the 

predicate acts” and fails to establish standing to sue under the RICO statute. 

See id. at 1217. In other words, Arroyo’s injury resulted from Oprona’s decision 

to terminate her employment and not from the alleged predicate acts. See 

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Jackson, 546 F. App’x at 442 (“[T]he central question we must ask is whether 

the alleged violation led directly to the plaintiff’s injuries.”) (quotation marks 

and alterations omitted). Arroyo, as an employee allegedly discharged for 

reporting and refusing to participate in an activity that violated RICO, lacks 

standing to sue under the RICO statute.2 See id. at 443 (citing Hollander v. 

Flash Dancers Topless Club, 173 F. App’x 15, 17 (2d Cir. 2006) (per curiam) 

(unpublished)).

b. Denial of Leave to Amend

“The district court is entrusted with the discretion to grant or deny a 

motion to amend and may consider a variety of factors including undue delay, 

bad faith or dilatory motive on the part of the movant, repeated failures to cure 

deficiencies by amendments previously allowed, undue prejudice to the 

opposing party . . ., and futility of the amendment.” Marucci Sports, L.L.C. v. 

Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quotation 

marks omitted). Arroyo failed to explain in either the district court or in this 

appeal “what facts [she] would have added or how [she] could have overcome 

the deficiencies found” in regards to her lack of standing under the RICO 

statute to assert her claims. See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 

2009) (internal quotation marks and citation omitted). Arroyo “gives no 

indication that [she] did not plead [her] best case in [her] complaint.” Id. Thus, 

 

2 Because Arroyo’s RICO claims are dismissed due to her lack of standing to sue under 

the RICO statute, this court need not address the alternative grounds for dismissal asserted 

by Rosen Swiss under Rule 12(b)(5) based on insufficient service of process. Even if Rosen 

Swiss had been properly served, Arroyo would not be able to successfully assert her civil 

RICO claims. See Jackson, 546 F. App’x at 443.

Arroyo also does not dispute in her brief the appropriateness of the district court’s 

decision to remand her remaining state law claims. Since Arroyo did not brief this issue on 

appeal, it is waived. See Noatex Corp. v. King Constr. of Houston, 732 F.3d 479, 485 n.8 (5th 

Cir. 2013) (“[I]t has long been the rule in this circuit that any issues not briefed on appeal

are waived . . . .”).

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we conclude that Arroyo’s request for leave to amend her complaint was 

properly denied.

In light of the foregoing, the judgment of the district court is AFFIRMED. 

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