United States District Court, E.D. Louisiana
DONALD W. BORDELON
WELLS FARGO FINANCIAL LOUISIANA, LLC, ET AL.
ORDER & REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE.
the Court are two motions-a motion to dismiss filed by
defendant Wells Fargo Financial Louisiana LLC
(“WFFL”) and a partial motion to dismiss filed
by defendant Wells Fargo Bank, N.A. (“Wells Fargo
Bank”) (collectively, “the Wells Fargo
defendants”). The Wells Fargo defendants move to
dismiss pro se plaintiff Donald W. Bordelon's
(“Bordelon”) claims for violation of the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), fraud, and intentional infliction of
emotional distress pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the following reasons, the motions
case concerns a state court foreclosure proceeding. Bordelon
alleges that the defendants “have been involved in an
ongoing enterprise . . . 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 note 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 Note had
been paid off.”
complaint, Bordelon alleges and it is undisputed that he, his
parents, and his then-wife Geraldine signed a note in 2000
(“the 2000 Note”). Exhibit A to Bordelon's first
amended complaint is a copy of the 2000 Note, marked as
February 16, 2015, Wells Fargo Bank-acting as a loan servicer
for WFFL-filed a notice of reinscription on a loan recorded
in Jefferson Parish in 2000.According to Bordelon, the notice
appears to reference the 2000 Note. One year later, on February
16, 2016, attorney Herschel Adcock filed a petition in state
court to enforce a note on behalf of WFFL, naming the four
signatories listed on the 2000 Note as the
defendants. The petition states that the defendants
defaulted on a note “signed by Donald and Geraldine
Bordelon on July 7, 2003 ‘in the original amount of
$72, 354.40'” (“the 2003 Note”) by
failing to make payments when they were due.
to the petition is a lost note affidavit describing the 2003
Note.However, attached to the lost note
affidavit is the 2000 Note-not the 2003 Note,
despite the substance of the affidavit. WFFL later
filed an amended and supplemental petition requesting that
“all references to a 2000 promissory note . . . be
amended to reflect that the Note was signed in
2003.” According to Bordelon, in addition to
being sued by the Wells Fargo defendants, he has been
receiving demand letters claiming he owes money to an
“unidentified lender” “up and through at
least April 26, 2018.”
alleges that “these actions were components in a
carefully constructed scheme to deprive him of his home based
on a Note which had been paid and which he did not
owe.” As a result of “this campaign of
false mailings . . . and the bogus lawsuit filed in Jefferson
Parish Court, ” Bordelon asserts that he “has
suffered pecuniary loss in the depreciation of the value of
his home . . . [and] extreme emotional
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
district court may dismiss a complaint or part of a complaint
when a plaintiff fails to set forth well-pleaded factual
allegations that “raise a right to relief above the
speculative level.” See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Cuvillier v.
Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The 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 547)).
facially plausible claim is one in which “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. 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.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)) (alteration in original).
Court will generally not look beyond the factual allegations
in the pleadings to determine whether relief should be
granted. See Hicks v. Lingle, 370 Fed.Appx. 497, 498
(5th Cir. 2010); Baker v. Putnal, 75 F.3d 190, 196
(5th Cir. 1996). In assessing the complaint, however, a court
must accept all well-pleaded facts as true and liberally
construe all factual allegations in the light most favorable
to the plaintiff. Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999). “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to
relief.'” Cutrer v. McMillan, 308
Fed.Appx. 819, 820 (5th Cir. 2009) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
established practice in this circuit is that pro se
“complaints are held to less stringent standards than
formal pleadings drafted by lawyers.” Miller v.
Stanmore, 636 F.2d 986, 988 (5th Cir. 1981) (citation
omitted). In accordance with this practice, the Court
construes Bordelon's pleadings liberally. Harrison v.
HICO, Inc., No. 05-2096, 2006 WL 508055, at *2 (E.D. La.
Feb. 21, 2006) (Africk, J.) (citing United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996)).
has asserted three claims against WFFL: violation of RICO,
fraud, and intentional infliction of emotional
distress. Bordelon asserts the same claims against
Wells Fargo Bank, in addition to one other claim-violation of
the Fair Debt Collection Practices Act
(“FDCPA”). In their present motions, WFFL and
Wells Fargo Bank move to dismiss Bordelon's RICO, fraud,
and intentional infliction of emotional distress
claims. Although Wells Fargo Bank filed its
motion to dismiss after WFFL, the legal arguments in both
motions are identical. Hence, the Court will consider them
Bordelon asserts that the defendants violated RICO by
“falsely dunn[ing] [him] for monies from the year 2000
note which had been paid in full, submitt[ing] false
documents . . . and then fil[ing] a foreclosure
petition” against him.
RICO claims “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 a “person” to include
“any individual or entity capable of holding a legal or
beneficial interest in property.” 18 U.S.C. §
respect to the second element, “[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.” Id.
“The predicate acts can be either state or federal
crimes.” Id.; see also 18 U.S.C.
§ 1961(1) (providing an extensive list of crimes that
constitute “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) (quoting H.J. Inc. v. Nw.
Bell Tel. Co., 492 U.S. 229, 240 (1989)).
establish the continuity prong of the second element,
“plaintiffs must prove ‘continuity of
racketeering activity, or its threat.'” Zastrow
v. Houston Auto Imports Greenway Ltd., 789 F.3d
553, 561 (5th Cir. 2015) (quoting Word of Faith
World Outreach Ctr. Church, Inc. v. Sawyer, 90
F.3d 118, 122 (5th Cir. 1996)). “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).
Continuity over a closed period requires proof of a series of
related predicates extending over a substantial period of
time. . . . Predicate acts extending over a few weeks or
months and threatening no future criminal conduct do not
satisfy this requirement. . . . Continuity over an open
period requires a threat of continued racketeering activity.
. . . This may be established where the predicate acts
themselves involve a distinct threat of long-term
racketeering activity or are part of an ongoing entity's
regular way of doing 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, according to the Fifth Circuit, “a
‘pattern of racketeering activity' has not been
shown.” Word of Faith, 90 F.3d at 123
(referencing In re Burzynski, 989 F.2d at 743,
Calcasieu Marine Nat'l Bank v. Grant, 943 F.2d
1453, 1464 (5th Cir. 1991), and Delta Truck &
Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 244 (5th
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 tha[t] an enterprise be a separate
business-like entity.” Id. (citation omitted).
“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. U.S., 556 U.S. 938,
Fifth Circuit has explained, “The 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. 1987).
“However, if the individuals associate together to
commit several criminal acts, their relationship gains an
ongoing nature, coming within the purview of RICO.”
present motions, the Wells Fargo defendants argue that
Bordelon has failed to state a claim under RICO because he
has not demonstrated that the defendants were part of an
enterprise. Citing the U.S. Supreme Court's
decision in Boyle, the Wells Fargo defendants assert
that Bordelon has not established “that this alleged
enterprise is (1) a continuing unit that (2) functions with a
common purpose.” In addition, they argue that activity
occurring over the course of a single lawsuit does not
constitute a “pattern of racketeering activity”
because that activity is part of a “single lawful
endeavor.” The Court agrees and concludes that
Bordelon's civil RICO claims against the Wells Fargo
defendants fail because Bordelon has not adequately alleged
that the defendants engaged in “a pattern of
racketeering activity” that is part of an
“enterprise.” St. Germain, 556 F.3d at
Bordelon's allegations involving the Wells Fargo
defendants are based solely on their conduct in furtherance
of the state court proceeding against Bordelon and others to
enforce a note. However, a foreclosure proceeding
“is by its nature a one-time resolution of disputed
property rights.” See Castrillo v. Am. Home Mortg.
Servicing, Inc., 670 F.Supp.2d 516, 531 (E.D. La. Nov.
16, 2009) (Vance, J.). “[W]here alleged RICO predicate
acts are part and parcel of a single, otherwise lawful
transaction, a ‘pattern of racketeering activity'
has not been shown.” Word of Faith, 90 F.3d at
123. A state court foreclosure proceeding fits this mold.
See Howell v. Adler, No. 16-14141, 2017 WL 1064974,
at *6 (E.D. La. Mar. 21, 2017) (Africk, J.) (“Further,
all of the alleged predicate acts occurred during the course
of a single, otherwise lawful endeavor-a lawsuit aimed at
seizing and selling Howell's mother's condo
unit.”) Furthermore, even assuming that Bordelon has
established that the Wells Fargo defendants committed two or
more predicate criminal acts,  their “conduct . . .
implicates, at best, ‘[p]redicate acts . . .
threatening no future criminal conduct.'”
Castrillo, 670 F.Supp.2d at 531 (quoting H.J.
Inc., 492 U.S. at 242) (alteration in original). Such
acts are not sufficient to show continuity, which is required
to establish a pattern of racketeering activity. H.J.
Inc., 492 U.S. at 242.
is not relevant to the Court's analysis that the state
court foreclosure proceeding . . . is ongoing and has not
ended.” Castrillo, 670 F.Supp.2d at 531
(citing In re Burzynski, 989 F.2d at 741).
“Although the state court foreclosure proceeding may
extend somewhat into the future, it is unlikely to
‘continue[ ] indefinitely.' It is instead likely to
be a short-term event, and ‘[s]hort-term criminal
conduct is not the concern of RICO.'” Id.
(internal citations omitted) (alterations in original).
a non-precedential Third Circuit case, Bordelon asserts that
“RICO is not defined by long term open end continuity
[i]f the conduct is sufficiently
outrageous.” However, well-pleaded RICO claims
undoubtedly must include allegations demonstrating
continuity, regardless of the “outrageous” nature
of the predicate acts. See, e.g., RJR
Nabisco, Inc. v. European Cmty., 136 S.Ct. 2090, 2102
n.6 (referring to the “pattern of racketeering
activity” element as including a “continuity
requirement”); Malvino v. Delluniversita, 840
F.3d 223, 231 (5th Cir. 2016) (explaining that, to establish
a pattern of racketeering activity, “a plaintiff must
show . . . the threat of continuing activity”);
Calcasieu Marine Nat'l Bank, 943 F.2d at 1461
(“A RICO association in fact enterprise must be shown
to have continuity.”) (citation omitted). Bordelon has
not adequately alleged continuity of either racketeering
activity or a relationship among the defendants intended to
further multiple criminal acts. Consequently, his RICO claims
must be dismissed.
also asserts that the Wells Fargo defendants committed fraud
when they 1) filed a notice of reinscription on what he
alleges was a “cancelled note” and 2) sent him
demand letters for “twice the size of the debt . . .
[the] foreclosure petition [says] is actually
owed.” According to the Wells Fargo defendants,
however, Bordelon's fraud claim must be dismissed because
he “has not pleaded fraud with
particularity.” They argue that, because
Bordelon's complaint only includes one paragraph alleging
facts intended to form the basis of a claim for fraud, he has
failed to meet the heightened pleading requirement for fraud
claims. The Wells Fargo defendants also argue
that Bordelon's fraud claims are barred by
Louisiana's one-year prescriptive period for delictual
alleges violations of Louisiana Civil Code article 1953,
which states that “[f]raud is a misrepresentation or a
suppression of the truth made with the intention either to
obtain an unjust advantage for one party or to cause a loss
or inconvenience to the other. Fraud may also result from
silence or inaction.” La. Civ. Code Ann. art. 1953. To
establish fraud pursuant to article 1953, two elements must
be met: “(1) an intent to defraud or to gain an unfair
[ ]advantage and (2) a resulting loss or damage.”
Paulsen v. State Farm Ins. Co., No. 06-9546, 2008 WL
417738, at *4 (E.D. La. Feb. 13, 2008) (Africk, J.)
(alteration in original) (quoting Tubos de Acero de Mex.,
S.A. v. Am. Int'l Inv. Corp., 292 F.3d 471, 479 (5th
Rule of Civil Procedure 9 provides a heightened pleading
standard for fraud claims. “In alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be
alleged generally.” Fed.R.Civ.P. 9(b). “To
adequately plead fraudulent intent, a plaintiff must allege
‘specific facts that support an inference of
fraud.'” Christensen v. WMA Consumer Servs.,
Inc., No. 03-1545, 2003 WL 22174240, at *2 (E.D. La.
Sept. 5, 2003) (Barbier, J.) (quoting Tuchman v. DSC
Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)).
Fifth Circuit “interprets Rule 9(b) strictly, requiring
the plaintiff to ‘specify the statements contended to
be fraudulent, identify the speaker, state when and where the
statements were made, and explain why the statements were
fraudulent.'” Flaherty & Crumrine Preferred
Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th
Cir. 2009), cert. denied, 558 U.S. 873 (2009)
(citation omitted). “In other words, ‘the who,
what, when and where must be laid out. . . .'”
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