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Richardson v. Cella

United States District Court, Fifth Circuit

August 26, 2013

RACHELE CELLA RICHARDSON, ET AL
v.
GEORGE A. CELLA, III, ET AL., SECTION

ORDER AND REASONS

ELDON E. FALLON, District Judge.

Before the Court is Defendant George A. Cella, III's Motion to Dismiss for Failure to State a Claim. (R. Doc. 8). The Court, after hearing oral arguments by counsel and after reviewing the submitted memoranda and applicable law, now issues this Order and Reasons.

I. BACKGROUND

This case alleges civil violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, arising out of several loans issued by Defendant New York Life Insurance Company ("New York Life") to Defendant George A. Cella, III under New York Life Policy # 45907359 (the "Policy"). According to their Complaint, Plaintiffs Rachele Cella Richardson and Brandy Cella, George Cella's adult daughters, own the Policy, which insures George's life.[1] Rachele is the sole beneficiary.

In their Complaint, Plaintiffs allege that George Cella sought and obtained loans under the Policy beginning in 2006. Plaintiffs allege that George Cella, on several occasions, filled out a New York Life policy loan request form, supplying Rachele's tax identification number and signing Rachele's and Brandy's names without their knowledge or authorization. Plaintiffs further allege that George submitted the forms via facsimile or other wire transmission.

Plaintiffs allege that George acted as an officer of two entities, Horizon Security Vault Complex, Inc. ("Horizon") and A. Levet Properties Partnership ("ALPP"). ALPP owns and leases retail space located at 4545 and 4531 Veterans Memorial Boulevard in Metairie, Louisiana, and paid premiums under the Policy. Horizon operates a business at 4545 Veterans Memorial Boulevard. Plaintiffs allege that George used Horizon's "resources, employees, facilities... equipment [and] letterhead" in completing the loan request forms.

According to the Complaint, George received checks payable to Rachele and Brandy at Horizon's place of business, again signed Rachele's and Brandy's names without their knowledge or authorization when endorsing the checks, and deposited the checks in his personal checking account. Plaintiffs allege that these loans have devalued the Policy and thereby caused them damages. Plaintiffs assert causes of action under RICO, specifically 18 U.S.C. § 1962(a), (b), and (c). Plaintiffs seek treble damages pursuant to RICO Section 1964(c), in addition to attorney fees.

Plaintiffs further allege that George's actions violated Louisiana law. Plaintiffs allege that George is liable for fraud, unjust enrichment, intentional infliction of emotional distress, negligent infliction of emotional distress, and conversion. Finally, Plaintiffs allege that New York life is liable for negligence and for breach of contract as a result of its disbursement of the loan funds.

II. PENDING MOTION

Defendant George A. Cella, III filed the instant Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7). (R. Doc. 8). George asserts that Plaintiffs were aware of and participated in all activities relating to the Policy.

George argues first that Plaintiffs lack standing under Title 18, United States Code Section 1962(a), because they have not alleged an injury resulting from the investment of racketeering income that is separate from the injury caused by the predicate acts themselves, as the case law requires. Similarly, George argues that Plaintiffs lack standing under Section 1962(b) because they have not alleged a separate injury caused by George's acquisition or control of an interest in a RICO enterprise.

George argues that the Plaintiffs' Section 1962(c) claims fail for several reasons. First, George argues that the Plaintiffs have not adequately pled the "enterprise" element of a Section 1962(c) claim for three reasons: first, George cannot be both the defendant "person" and the "enterprise"; second, the relationship between George, ALPP, Horizon, and New York Life cannot constitute an "association in fact" enterprise because Plaintiffs do not allege that these entities share an overarching structure or function as a unit; and third, the Plaintiffs allege only the incidental use of resources to commit predicate acts-more specifically, the sending and receiving of faxes and mail correspondence and the endorsing of checks using Horizon's pens, mailbox, and fax machine. George also argues that Plaintiffs have not adequately pled the "pattern of racketeering" element of Section 1962(c) because they do not allege a risk of expanded future criminal activity and additional victims.

George argues further that Plaintiffs' RICO claims are based on predicate allegations of mail and wire fraud, and that therefore their Complaint is subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), namely that "the circumstances constituting fraud... shall be stated with particularity." George also argues that Plaintiffs have failed to allege a sufficient effect on interstate commerce, and that the RICO claims are timebarred. Finally, George argues that the RICO claims should be dismissed for failure to join Priscilla Cella.

With regard to the state-law claims, George argues that this Court should decline to exercise its supplemental jurisdiction. George further argues that various aspects of these claims are time-barred, inadequately pled, or without basis in Louisiana law.

Plaintiffs' oppose George's Motion. (R. Doc. 16). Plaintiffs argue that George stole the Plaintiffs' identities, and that he is therefore responsible under Sections 1962(a) and 1962(b). As to Section 1962(c), Plaintiffs argue that George is the defendant "person" whereas the "enterprise" consists of the relationship between George, ALPP, Horizon, and New York Life, which constitutes an "association in fact" enterprise based on their Complaint. Plaintiffs further argue that their Complaint sufficiently alleges the use of "resources" as predicate acts. Finally, Plaintiffs argue that they have adequately alleged the "pattern of racketeering" element of Section 1962(c) because the alleged scheme involved several independent fraudulent acts occurring over a period of time. As to the time-bar, Plaintiffs argue that they discovered the scheme in March of 2012, and that each injury in a pattern has a separate accrual date. As to the failure to join Priscilla Cella, Plaintiffs argue that she is not an indispensable party because no evidence suggests that George ever used Priscilla's name to obtain loans against the policy, and because only Rachele and Brandy are the current owners of the policy. The Plaintiffs further argue that their state-law claims are sufficiently pled and not time-barred.

III. LAW AND ANALYSIS

A. Standard of review

The Federal Rules of Civil Procedure permit a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A district court must construe facts in the light most favorable to the nonmoving party, as a motion to dismiss under 12(b)(6) "is viewed with disfavor and is rarely granted." Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), as revised (Dec. 16, 2011) (quotation marks and citation omitted). Dismissal is appropriate only if the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To satisfy this standard, the complaint must provide more than conclusions, but it "need not contain detailed factual allegations." Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). Yet, it must allege enough facts to move the claim "across the line from conceivable to plausible." ...


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