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Bordelon v. Wells Fargo Financial Louisiana, LLC

United States District Court, E.D. Louisiana

June 6, 2018


         SECTION I



         This case concerns a foreclosure proceeding in state court. Pro se plaintiff Donald Bordelon (“Bordelon”) alleges that defendants “have been involved in an ongoing enterprising . . . to, through a series of false or misleading statements, foreclose on his immovable property” in Metairie, Louisiana “using false documents filed with the clerk or in court.”[1] According to Bordelon, “[t]he conspiracy involves falsely alleging that [he] was in default on a mortgage not secured by [ ] that property . . . and then commencing [a] state court lawsuit [in the 24th Judicial District Court] to foreclose on it when in fact that [n]ote had been paid off.”[2]

         Before the Court is a motion[3] filed by defendant Herschel Adcock, Jr. (“Adcock”) to dismiss certain claims[4] against him pursuant to Federal Rule of Civil Procedure 12(b)(6).[5] Bordelon opposes[6] the motion.


         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court may dismiss a complaint, or any part of it, where a plaintiff has not set forth well-pleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's factual allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).

         A facially plausible claim is one where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. If the well-pleaded factual allegations “do not permit the court to infer more than the mere possibility of misconduct, ” then “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original).

         On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In assessing the complaint, the Court must accept all well-pleaded factual allegations as true and liberally construe all such allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).


         Adcock challenges Bordelon's civil RICO claim against him, as well as Bordelon's claim against him for intentional infliction of emotional distress. The Court will consider the viability of each of these claims in turn.



         Civil claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) “have three common elements: ‘(1) a person who engages in (2) a pattern of racketeering activity, (3) connected to the acquisition, establishment, conduct, or control of an enterprise.'” St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009) (quoting Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007)). RICO defines “person” to include “any individual or entity capable of holding a legal or beneficial interest in property.” 18 U.S.C. § 1961(3).

         “A pattern of racketeering activity consists of two or more predicate criminal acts that are (1) related and (2) amount to or pose a threat of continued criminal activity.” St. Germain, 556 F.3d at 263. “The predicate acts can be either state or federal crimes.” Id.; see 18 U.S.C. § 1961(1) (providing an extensive definition of “racketeering activity”). “Predicate acts are ‘related' if they have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” In re Burzynski, 989 F.2d 733, 742 (5th Cir. 1993) (internal quotation marks omitted in part).

         “To establish continuity, plaintiffs must prove ‘continuity of racketeering activity, or its threat.'” Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir. 1996) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989)). “This may be shown by either a closed period of repeated conduct, or an open-ended period of conduct that ‘by its nature projects into the future with a threat of repetition.'” Id. (quoting H.J. Inc., 492 U.S. at 241).

A closed period of conduct may be demonstrated by proving a series of related predicates extending over a substantial period of time. An open period of conduct involves the establishment of a threat of continued racketeering activity. This may be shown where there exists a specific threat of repetition extending indefinitely into the future, or where it is shown that the predicates are a regular way of conducting defendant's ongoing legitimate business.

Id. (internal quotation marks and citations omitted). “[W]here alleged RICO predicate acts are part and parcel of a single, otherwise lawful transaction, ” however, “[i]t is unnecessary to delve into the arcane concepts of closed-end or open-ended continuity under RICO, ” because Fifth Circuit precedent illustrates that “a ‘pattern of racketeering activity' has not been shown” in such cases. Id. at 123 (referencing In re Burzynski, 989 F.2d at 733, Calcasieu Marine National Bank v. Grant, 943 F.2d 1453 (5th Cir. 1991), and Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241 (5th Cir. 1988)).

         With respect to the “enterprise” requirement, RICO defines an “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “An association-in-fact enterprise ‘(1) must have an existence separate and apart from the pattern of racketeering, (2) must be an ongoing organization and (3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.'” Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673 (5th Cir. 2015) (quoting Calcasieu Marine Nat'l Bank, 943 F.2d at 1461).

         “RICO does not require than an enterprise be a separate business-like entity.” Id. “Instead, an association-in-fact enterprise includes ‘a group of persons associated together for a common purpose of engaging in a course of conduct, ' and that enterprise can be proved with ‘evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.'” Id. (quoting Boyle v. United States, 556 U.S. 938, 944-45 (2009)).

         The Fifth Circuit has explained that “[t]he linchpin of enterprise status is the continuity or ongoing nature of the association.” Id. “The enterprise must have continuity of its structure and personnel, which links the defendants, and a common or shared purpose.” Calcasieu Marine Nat'l Bank, 943 F.2d at 1462. “Thus, two individuals who join together for the commission of one discrete criminal offense have not created an ‘association-in-fact' enterprise, even if they commit two predicate acts during the commission of this offense, because their relationship to one another has no continuity.” Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir. ...

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