United States District Court, E.D. Louisiana
DONALD W. BORDELON
WELLS FARGO FINANCIAL LOUISIANA, LLC, ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
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.” 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.”
the Court is a motion filed by defendant Herschel Adcock, Jr.
(“Adcock”) to dismiss certain
claims against him pursuant to Federal Rule of
Civil Procedure 12(b)(6). Bordelon opposes the motion.
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)).
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).
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.
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.
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).
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).
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)).
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).
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)).
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. ...