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

### SEP 4 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GUST MARION JANIS, GEORGE MARION JANIS, JASON GUST JANIS, BETTY K. JANIS, and TRISTA VEE JANIS,

Plaintiffs-Appellants, and MAGIC SOIL AMENDMENTS, a family business relationship and JANIS TRUCKING, a family business relationship,

Plaintiffs, v. ED STORY & ASSOCIATES; ED STORY, as an individual; CLYDE COYE, an individual; AUCTION MCCORMICK AUCTION CO., a.k.a. McCormick Auction Company; KEN MCCORMICK, an individual; HAROLD S. TAXEL, an individual; GRETA GLAVIS, an individual; JAMES P. HILL, an individual; ASSOCIATED COMMERCIAL CORPORATION, a California corporation; MARK SEYMOUR; ROBERT CAMPENALLA, an individual; JOSEPH KINNEY, an individual; LONNIE J. OLSEN, an individual; HAROLD “BUD” LOCKE, an individual; JEFFERY WILLIAM DICK, an individual; EWING BROTHERS TOWING SERVICE, a family owned and No. 96-4168 (D.C. No. 94-CV-48) (D. Utah)* This order and judgment is not binding precedent, e xcept under the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.

1 The dismissal of a complaint without prejudice is o rdinarily a non-final, nonappealable order. See Mobley v. McCormick , 40 F.3d 337, 339 (10th Cir. 1994). “If it is clear that the plaintiff may not start over again with a properly drawn complaint, because of limitations problems orotherwise, the action is treated as final and the order is appealable.” Bra gg v. Reed , 592 F.2d 1136, 1138 (10th Cir. 1979). Here, because we are unable to d etermine with any certainty whether plaintiffs’ claims would now be barred by the various applicable statutes of limitations, we treat the district court’s dismi ssal as an appealable final order. -2- operated business under laws of Nevada, Defendants-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs, all members of the Janis family or Jani s family-owned businesses, appeal the district court’s dismissal o f their amended complaint without prejudice. 1 The district court dismissed the complaint for la ck of subject-3-

matter jurisdiction because there was not complete diversity among the parties, and because plaintiffs failed to state a cognizable claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Plaintiffs assert that the district court erred (1) by not allowing them to file affidavits and proof of citizenship; (2) concluding their RICO claims were vague, conclusory and without factual support without allo wing an opportunity to cure the defects by amendment; and (3) refusing to allownondiverse plaintiff, Gust Marion Janis, to create diversity by assigning or s elling his rights in the lawsuit.
I In a lengthy complaint, plaintiffs, acting pro se, alleged facts supporting their claims that defendants improperly and fraudul ently seized property belonging to the Janis family or the Janis family b usinesses. The magistrate judge delayed for approximately one year before recommend ing dismissal without prejudice for lack of diversity, but granted plaint iffs the opportunity to correct the jurisdictional deficiencies by amendment. Plaintif fs filed objections to the recommendation, but no amended complaint. Followin g consideration of the objections, the district court dismissed the actionwithout prejudice as frivolous under 28 U.S.C. § 1915(d). The district court deni ed plaintiffs’ request to amend, finding amendment to be futile. The defendants wer e never served.-4-

On appeal, this court concluded that a magistrate j udge’s delay could result in a statute of limitations obstacle if plaintiffs were forced to refile their action after dismissal. Janis v. Ed Story & Assocs. , Nos. 95-4108, 95-4109, 95-4115, 95-4132, 1996 WL 221476, **1 (10th Cir. May 2, 1996 ) (unpublished order and judgment). Concluding that plaintiffs could cure t he diversity problem by deleting nondiverse parties from its complaint, we reversed and remanded the case to give plaintiffs an opportunity to amend. I n so doing, however, we cautioned that plaintiffs “should amend their compl aint carefully,” pointing out that the proposed amended complaint they submitted to this court with their opening brief (but did not file in the district cou rt), was also jurisdictionally deficient on diversity grounds. Id. We stated that “[r]epeated failure to cure deficiencies by amendment is itself grounds for denying leave to amend.” Id. (citing Castleglen, Inc. v. Resolution Trust Corp. , 984 F.2d 1571, 1585 (10th Cir. 1993)). We also directed the district court to rec onsider plaintiffs’ request for service of process. Plaintiffs filed their amended complaint on August 9, 1996. They state in their brief that they deleted two defendants, “Holl and Equipment Company, Inc., a Utah corporation, and Jensen, a defendant who res ides in the State of Utah.” Appellant’s Opening Br. at 5. The district court n oted that plaintiffs added Magic Soil Amendments Company and Janis Trucking Company as plaintiffs and what2 The record on appeal consists of a copy of plaintif fs’ 78-page amended complaint; we do not have a copy of the 235-page or iginal complaint. We therefore defer to the district court’s representat ion of the additions appearing in the amended complaint. -5- appears to be a cause of action under RICO, but didnot address if any defendants were omitted. 2 The district court again found that certain parti es were not diverse. In considering plaintiffs’ RICO claims as an alternate basis for invoking federal jurisdiction, the court concluded that, eve n construing the complaint liberally for pro se litigants, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), the RICO claims were “vague, conclusory, andlack[ed] sufficient factual particularity.” I R., Order dated Sept. 10, 1995, at 6. We affirm.
II We review de novo a district court’s determination of its own subject matter jurisdiction. See Gaines v. Ski Apache , 8 F.3d 726, 729 (10th Cir. 1993). “To determine whether a party has adequately presented facts sufficient to establish federal diversity jurisdiction, appellate courts must look to the face of the complaint, ignoring mere conclusory allegations of jurisdiction.” Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc

. , 929 F.2d 1519, 1521 (10th Cir. 1991) (citation omitted). Jurisdiction in fed eral courts is limited. A presumption exists against jurisdiction, and the party asserting jurisdiction bears-6-

the burden of proof. See id. “Statutes conferring diversity jurisdiction are t o be strictly construed.” Crowley v. Glaze , 710 F.2d 676, 678 (10th Cir. 1983). The district court concluded that although plaintif f Gust Marion Janis, currently incarcerated in California, alleged he is a resident of Utah, the amended complaint reveals that before his incarceration he was a Nevada resident, the stated residence of several of the defendants. He alleges in an affidavit attached to plaintiffs’ brief (which was not submitted to th e district court), that in 1992, he and his wife rented a home in Washington. While wa iting to move in, they attempted to vacation in Canada. The border office rs arrested Gust Marion on an outstanding warrant from California and on state drug charges. Following his release on bond, he and his wife traveled to Las Ve gas, Nevada, to assist with the family business. He contends that, while there, he leased a home in the name of John Farley, for use by family members in Nevada onbusiness. Gust Marion claims that before he and his wife could leave Neva da for Utah, he was again arrested on the outstanding California warrant. He was arraigned and then extradited to California where he was convicted andsentenced to three life sentences, two ten-year sentences, and one twenty-y ear sentence, all without possibility of parole. Gust Marion contends that in the original complainthe “did not understand” the diversity requirements and incorrec tly stated his place of-7-

permanent residence as California. Declaration of Gust Marion Janis at 6. He claims he still did not understand diversity when, in the objections to the magistrate judge’s recommendation for dismissal of the original complaint, he stated that he was living and residing in Washingto n. Id. Now, claiming that he has “studied diversity” and correctly understands the diversity requirements, id. , he declares that his mother’s home in West Jordan, Utah, is his permanent residence where he intends to live if he is ever re leased from prison, id. at 5. He therefore asserts that Utah, not Nevada, should be considered his domicile for diversity purposes. Diversity must be established on the face of the co mplaint, although where the complaint is lacking, we may also look to the r ecord. See Penteco Corp. Ltd. Partnership , 929 F.2d at 1521. The record consists only of th e amended complaint, so we must rely solely on plaintiffs’ av erments to determine whether diversity exists. The amended complaint states that once Gust Marion was released on bail following his extradition to California, he and his wife returned “to his home in Las Vegas,” I R., Amended Complaint at 44, and thatGust Marion’s “home located at 3719 Misty Grove, Las Vegas, Nevada was broken into,” and his wife’s hand gun was stolen, id. at 45. We have held that a previous admission of residency in a complaint is admissible evidence of residency in a subsequent-8-

action. See State Farm Mut. Auto. Ins. Co. v. Dyer , 19 F.3d 514, 519 (10th Cir. 1994) (holding that evidentiary admission by defend ant of plaintiff’s residency in wrongful death action was admissible against defend ant in a later declaratory judgment action); Dugan v. EMS Helicopters, Inc. , 915 F.2d 1428, 1431 (10th Cir. 1990) (prior inconsistent pleadings admissible against pleader in subsequent action). This rationale is equally applicable to i nconsistent statements in the same action. Further, Gust Marion did not travel to Utah upon hi s release on bond in California, but instead returned to his home in Nev ada. Although “[r]esidence alone is not the equivalent of citizenship,” Dyer , 19 F.3d at 520, it is prima facie evidence of domicile. We do not believe that the r eferences here to Gust Marion’s residence rather than his domicile or citi zenship are fatal to the district court’s determination of no diversity. See id. We are urged to conclude that Gust Marion should be considered a resident of Utah simply because he has stated his intent to live in Utah if he is ever released from prison. In this regard, plaintiffs r ely on Singletary v. Continental Illinois National Bank & Trust Co. , 9 F.3d 1236 (7th Cir. 1993). That court stated that the state of citizenship of an incarcer ated plaintiff “should be the state of which he was a citizen before he was sent to pri son unless he plans to live elsewhere when he gets out, in which event it shoul d be that state.” Id. at 1238.-9-

We do not adopt this holding, which would empower an incarcerated plaintiff to manufacture diversity jurisdiction. Absent evidence to the contrary, we have recognizeda presumption in favor of an established domicile over a newly acquired on e. See Dyer , 19 F.3d at 519. In order to prove a change in domicile, a party mus t show (1) physical residence in the new location; and (2) intent to stay in the new location for an indefinite period of time. See Crowley , 710 F.2d at 678. Even though Gust Marion was born and raised in Utah , and certain of his family members continue to reside there, this does not determine his residency. As to his stated intention to live there, [m]ere mental fixing of citizenship is not sufficie nt. What is in another man’s mind must be determined by what he do es as well as by what he says. . . . Words may be evidence of a man’s intention to establish his domicile at a particular place of res idence, but they cannot supply the fact of his domicile there. Stine v. Moore , 213 F.2d 446, 448 (5th Cir. 1954) (quoted favorab ly in part in Walden v. Broce Constr. Co. , 357 F.2d 242, 245 (10th Cir. 1966)). By his own admission, Gust Marion was living in Las Vegas, Nevada, at the time of his arrest, and had no physical presenc e in Utah thereafter. We recognize that his incarceration prevents his physi cal presence outside the state of his confinement, and hampers any overt acts which c ould facilitate his intent to change domicile. Moreover, under the circumstances presented here, it is highly-10-

unlikely Gust Marion will ever reside outside priso n walls. See Johnston v. Cordell Nat’l Bank , 421 F.2d 1310, 1312 (10th Cir. 1970) (holding that the two elements necessary to the establishment of a new do micile or citizenship are “intent and some act or acts to carry such intentio n into effect”). We agree with the district court that Gust Marion w as a resident of Nevada before his incarceration and when he filed the amen ded complaint. Considering the state-hopping he admitted to in his various ple adings, his statement of intent to reside in Utah if he is ever released appears to be yet another attempt to create diversity for the purpose of invoking federal juris diction. We hold that Gust Marion’s residence and domicile remain in Nevada, w hich defeats diversity jurisdiction.
III Next, plaintiffs assert that the district court err ed in concluding that plaintiffs’ RICO claims were too vague, conclusory, and factually insufficient to state a claim upon which relief could be granted. They further argue that the district court should have allowed an amendment to their complaint to cure the defects.3 A claim under § 1962(d), based on allegations of a conspiracy to violate

§ 1962(a), (b), or (c), necessarily is predicated o n the sufficiency of the substantive claims. Accordingly, here we look to the sufficiency of plaintiffs’ § 1962(c) claims. Section 1962(c) provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of whi ch affect, interstate or foreign commerce, to conduct or participate, dir ectly or indirectly, in the conduct of such enterprise’s affairs througha pattern of racketeering activity or collection of unlawful deb t. -11- In their amended complaint, plaintiffs asserted RIC O claims based on alleged violations of 18 U.S.C. § 1962(c) and (d). 3 In order to establish a civil RICO violation under 18 U.S.C. § 1962(c), plaintiff s must plead “(1) conduct (2) of an enterprise (3) through a pattern (4) of r acketeering activity.” Sedima,
S.P.R.L. v. Imrex Co. , 473 U.S. 479, 496 (1985) (footnote omitted). “Co nducting an enterprise that affects interstate commerce is o bviously not in itself a violation of § 1962, nor is mere commission of the predicate offenses.” Id. “RICO’s legislative history reveals Congress’ intent that t o prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, andthat they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Tel. Co. , 492 U.S. 229, 239 (1989); see also Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1555 (10th Cir. 1992) (holding that in order to satisfy the pattern requirement of RICO, plaintiffs must establish-12-

“‘ continuity plus relationship ’”) (quoting Sedima , 473 U.S. at 496 n.14) (further quotation omitted) (alteration in original). The relationship test can be met by establishing th at the predicate acts “‘have the same or similar purposes, results, parti cipants, victims, or methods of commission, or otherwise are interrelated by distin guishing characteristics and are not isolated events.’” H.J. Inc. , 492 U.S. at 240 (quoting 18 U.S.C. § 3575(e)(3)). In order to show continuity, “the plaintiff must de monstrate either ‘a closed period of repeated conduct’ or ‘past conduct that b y its nature projects into the future with a threat of repetition.’” Boone , 972 F.2d at 1555 (quoting Phelps v. Wichita-Eagle Beacon , 886 F.2d 1262, 1273 (10th Cir. 1989) (further quo tation omitted)). In their amended complaint, plaintiffs assert that “[b]eginning on or about June 1, 1990, and thereafter to or about April 4, 1 992,” the defendants engaged in “a pattern of racketeering activity within the mean ing of 18 U.S.C. § 1961(1)(A) or (B) and (5).” Appellants’ Br. at 42. Plaintiff s state that “[i]n approximately 1991 and continuously thereafter, the precise start ing date being unknown,” defendants engaged in activities against plaintiffs in violation of RICO. I R., Amended Complaint at 51. They assert that defe ndants combined, confederated, conspired and agreed to tre spass, break and enter into business dwellings, storage yards, repai r facilities, terminals, and personal dwellings and homes to stea l personal and business property for the purpose of obtaining mone y from the-13-

plaintiffs and other companies by means of extortio n as that term is defined in 18 USC § 1951(b)(2). The extortionate c onduct, obstructed, delayed or affected commerce or the mov ement of articles and commodities in commerce as defined in 18 USC § 1951(b)(3). The acts included conduct reasonablycalculated to induce fear or economic loss by wrongfully deprivin g and withholding, from plaintiffs all the property liste d in the attached Exhibit A-1, A-2, and A-3, as if fully restated her ein, and monies due and owning (sic) plaintiffs from clients and custom ers purchasing articles, commodities in commerce, as well as leasi ng and renting trucks and equipments to transport articles and com modities in commerce, that were rightfully owned by plaintiffs, and rightfully due and owing plaintiffs. Id. at 52. In presenting their RICO claims, plaintiffs fail in most instances to allege specific details, such as time, location, or the capacity or identity of certain individuals involved with specific instances of all eged illegal conduct. Their claims appear to be nothing more than a reiteration of their state law claims as RICO violations. A determination that plaintiffs h ave stated adequate RICO claims would require incalculable searching throughtheir lengthy complaint in an effort to match the factual assertions with the ele ments of the RICO statute. While recognizing our need to give plaintiffs latit ude in pleading, we do not act as their advocate. See Hall , 935 F.2d at 1110. Plaintiffs’ amended complaint fails to state with s ufficient particularity a redressable claim under RICO. Plaintiffs’ brief do es not suggest that further-14-

amendment would serve to correct the deficiencies. We therefore affirm the dismissal of plaintiffs’ RICO claims.
IV Finally, plaintiffs allege that the district court erred in dismissing the amended complaint without affording them another op portunity to amend after Gust Marion assigned and sold his interest in the c ause of action. In the alternative, plaintiffs appear to argue that the di strict court should have afforded them an opportunity to drop Gust Marion from the su it. The district court is the proper forum to seek leav e to file a curative amendment. When, as here, plaintiffs failed to re quest leave to amend, we do not require the district court to read the minds of lit igants to determine if an ability or willingness to amend exists. See Nulf v. International Paper Co. , 656 F.2d 553, 563 (10th Cir. 1981) (if court were to accept claim that litigant intended to move district court for permission to amend, any litigant would be able to claim intentions after-the-fact which were incorrectly pr esented below). Plaintiffs’ seventy-eight-page amended complaint re fers to nine different claims for relief. The factual allegations are ove rwhelmed by involved subjective descriptions which are difficult to follow. Many o f plaintiffs’ allegations are irrelevant, immaterial, or conclusory. Despite thi s court’s cautionary advice upon remand and plaintiffs’ opportunity to amend, see Janis , 1996 WL 221476, at **1,-15-

our review of the amended complaint reveals neitherthe requisite proof of diversity nor a cognizable federal question claim. We deny plaintiffs’ request for remand for further amendment.
AFFIRMED. Entered for the Court James K. Logan Circuit Judge