YP – Steven Patterson files motions to dismiss Bob Wilson’s claim

COMES NOW Defendant Steven A. Patterson (hereinafter, “Mr. Patterson”) in
the above styled and numbered cause, by and through his attorneys of record, Hiram C.
Eastland, Jr. and Mike Greer, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure and respectfully submits this his Motion to Dismiss any and all claims asserted
against him because Plaintiff has failed to state a legally cognizable claim or cause of
action against Mr. Patterson upon which relief can be granted. In support of this motion,
Mr. Patterson states as follows:
I.
Plaintiffs have failed to state a claim upon which relief can be granted.
II.
Plaintiffs allege a claim for common law fraud. In order to state a claim for fraud,
a plaintiff must plead the alleged fraud with particularity. State Industries v. Hodges, 919
So. 2d 943, 946 (Miss. 2006); Stephens v. Equitable Life Assurance Society, 850 So. 2d
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78 (Miss. 2003). Furthernore, a plaintiff must sufficiently plead the requisite elements of
fraud: (1) the falsity of a representation to the plaintiff by the defendant, and (2) the right
of the plaintiff to rely on the representation of the defendant. The Plaintiffs have failed to
meet these pleading requirements.
III.
Plaintiffs’ claims for fraud, although mischaracterized in the Amended Complaint
as misrepresentations, are actually plead as omissions. For fraud based upon an
omission, the defendant must owe a fiduciary duty to the plaintiff. Taylor v. Southern
Farm Bureau Cas. Co., 954 So.2d 1045, 1049 (Miss. App. 2007). Mr. Patterson did not
owe any fiduciary duty to Plaintiffs.
IV.
Plaintiffs allege that Mr. Patterson conspired with others to commit common law
fraud. In order to show a conspiracy, a plaintiff must allege an agreement by coconspirators
to enter into the conspiracy. Plaintiffs did not specifically allege any
conspiratorial agreement between Mr. Patterson and others and thus fails to meet the
pleading requirement of a conspiracy. Similarly, allegations of legal conclusions merely
labeling Mr. Patterson as being engaged in a conspiracy to defraud Plaintiffs do not
constitute sufficient factual pleadings of fraud.
V.
Plaintiffs alleges RICO violations of 18 USC § 1962(c) against Defendant
Scruggs, and Plaintiffs are apparently attempting to allege RICO conspiracy violations of
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18 U.S.C. § 1962(d) against Mr. Patterson and other Defendants by alleging they
conspired to violate RICO § 1962(c). Plaintiffs, however, do not specifically allege a
statutory 18 U.S.C. § 1962(d) RICO conspiracy claim.
VI.
In order to state a claim under RICO, a plaintiff must allege the existence of a
valid enterprise. Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007). Further, the
defendant cannot be the enterprise alleged under a § 1962(c) RICO action. Id. at 357.
Plaintiff alleges the enterprise to be SMBD, a defendant corporation, and thus fails to
meet this pleading requirement.
VII.
In order to state a RICO claim based upon underlying RICO predicate acts of mail
and wire fraud, a plaintiff must allege plead the alleged fraud with particularity under
F.R.C.P 9(b). Williams v. WMX Technologies, Inc., 112 F.3d 175, 177-78 (5th Cir.
1997); Tel-Phonic Services, Inc., 975 F.2d 1134, 1138 (5th Cir. 1992). Plaintiff fails to
plead several of the mail and wire fraud predicates with sufficient particularity.
VIII.
Additionally, to state a valid RICO claim, the Plaintiff must also plead a pattern of
racketeering demonstrating sufficient continuity. In re Burzynski, 989 F.2d 733, 742 (5th
Cir. 1993). Plaintiff has failed to meet this pleading requirement.
IX.
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Under 18 U.S.C. § 1964(c), a plaintiff must also plead and prove that the
defendant’s actions were the proximate cause of his injuries. Holmes v. Sec. Investor
Prot. Corp., 503 U.S. 258, 268 (1992). The plaintiff is required to allege more than mere
labels and conclusions. Norris v. Hearst Trust, 500 F.3d 454, 464 (5th Cir. 2007).
Plaintiffs have failed to meet this pleading requirement.
X.
Plaintiff’s § 1962(d) conspiracy claims must be dismissed as the substantive
RICO claim plead against the other defendants is deficient. Nolan v. Nucentrix
Broadband Networks, Inc., 293 F.3d 926, 930 (5th Cir. 2002). Further, such a 1962(d)
conspiracy claim in any event fails because Plaintiffs did not sufficiently plead factual
allegations that Mr. Patterson entered into an agreement to violate RICO. See, Tel-Phonic
Services, Inc., at 1140-41. Conclusory allegations that defendants “conspired” will not
suffice. Guichard v. State Farm Fire & Casualty Co., 1995 WL 702510, * 2 (E.D. La.
1995).
XI.
Plaintiff’s claims for deprivation of Due Process must be dismissed as the
allegations do not qualify as state action. See Holloway v. Walker, 784 F.2d 1287 (5th
Cir. 1986); Parratt v. Taylor. 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
Due Process does not apply to acts of private parties.
WHEREFORE, for the foregoing reasons and the reasons set forth in the
accompanying memorandum in support, incorporated herein by reference, Mr. Patterson
respectfully requests this Court to grant his motion to dismiss all of Plaintiffs’ claims.
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This the 21st day of August, 2009.

Here is a memorandum in support of motion to dismiss:

Defendant Steven A. Patterson (“Mr. Patterson”), through his undersigned
counsel, hereby submits this memorandum of law in support of motion to dismiss the
Amended Complaint pursuant to F.R.C.P. 9, 12(b)(6) on the grounds that the Amended
Complaint fails to state a claim upon which relief may be granted. In support thereof,
Mr. Patterson states:
I. STANDARD OF REVIEW
Plaintiff, William Roberts Wilson, Jr. and Roberts Wilson, Jr. P.C., successor to WM
Roberts Wilson, Jr., P.A., (“Plaintiff” or “Wilson”), must plead sufficient facts to state
claims for relief that are plausible on their face. Elsensohn v. St. Tammany Parish
Sheriff’s Office, 530 F.3d 368, 371-72 (5th Cir. 2008). The Amended Complaint “must
allege ‘more than labels and conclusions.’” Norris v. Hearst Trust, 500 F.3d 454, 464 (5th
Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966,
167 L.Ed. 2d 929 (2007)). “[C]onclusory allegations or legal conclusions masquerading
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as factual conclusions” require reversal. United States v. White, 306 Fed. Appx. 838,
839-40 (5th Cir. 2007). “Dismissal is proper if the complaint lacks an allegation
regarding a required element necessary to obtain relief.” Id. Thus, Plaintiff’s Amended
Complaint must sufficiently plead “either direct allegations on every material point
necessary to sustain a recovery … or contain allegations from which an inference fairly
may be drawn that evidence on these material points will be introduced at trial.” Id.
Furthermore, the standard for Plaintiff to plead fraud claims and RICO claims
based upon fraudulent RICO predicate acts is high. Federal Rule of Civil Procedure 9(b)
requires fraud claims to be plead with particularity, including alleged RICO claims based
upon mail and wire fraud RICO predicate acts. Williams v. WMX Technologies, Inc.,
112 F.3d 175, 177-78 (5th Cir. 1997). Therefore, at a minimum, the Plaintiff must
sufficiently plead allegations of “the particulars of ‘time, place, and contents of the false
representations, as well as the identity of the person making the representation and what
he obtained thereby.’” Tel-Phonic Services, Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1138
(5th Cir. 1992); accord, United States ex rel. Thompson v. Columbia/HCA Healthcare
Copr., 125 F.3d 899, 903 (5th Cir. 1997); Taylor v. Crye-Leike, Inc., 2000 U.S. Dist.
LEXIS 9876, (N.D. Miss. 2000); Allen v. Mac Tools, Inc., 671 So.2d 636, 642
(Miss.1996).
Similarly, the pleadings must allege criminal violations for Mr. Patterson’s
alleged misconduct. Mere breaches of the rules of professional responsibility do not
constitute underlying support for RICO violations, much less support for RICO claims
against Mr. Patterson, who the Plaintiff concedes had no rules of professional
responsibility governing his conduct. See, St. Germain v. Howard, 556 F.3d 261, 263 (5th
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Cir. 2009).
As discussed below, Plaintiff has failed to sufficiently plead such allegations, and
the Amended Complaint must be dismissed.
II. ARGUMENT
A. Plaintiff Failed to Plead the Count 1 Common Law Fraud Claim With
Sufficient Particularity and the Claim Must be Dismissed
Mississippi Rule of Civil Procedure 9(b) states that “in all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated with
particularity.” The Amended Complaint must be dismissed since the pleadings fail to
sufficiently allege fraud. State Industries v. Hodges, 919 So. 2d 943, 946 (Miss. 2006);
Stephens v. Equitable Life Assurance Society, 850 So. 2d 78 (Miss. 2003). In
accordance with Rule 9, well-established Mississippi Supreme Court case law has found
that fraud “will not be inferred or presumed and may not be charged in general terms.
The circumstances of the alleged fraud such as the time, place and contents of any false
representation or conduct must be stated.” Howard v. Estate of Harper, 947 So. 2d 854
(Miss. 2006) (citation omitted); Allen v. Mac Tools, Inc., 671 So. 2d 636, 642 (Miss.
1996).
Wilson’s fraud claim falls far short of the 9(b) requirements. Allegations such as:
“Wilson relied on the words, verbal and written, of the Hinds County Circuit Court . . .,”
“Wilson relied on the robe and the seat behind the bench . . .,” “Wilson relied on every
word in filings by Scruggs . . .” are completely vague and certainly do not state the time,
place and manner in a way that is consistent with a heightened pleading standard.
The essential elements of fraud are the falsity of a representation and the alleged
victim’s right to rely on the representation. Qualcomm, Inc. v. American Wireless
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License Group, LLC, 980 So. 2d 261, 274 (2007).
1. Plaintiff Does Not Adequately Plead a Cause of Action for Fraud by
Omission, as He Cannot Show a Fiduciary Duty on Behalf of Mr.
Patterson and Does Not Allege an Agreement Between Mr. Patterson and
Judge Delaughter
Black’s Law Dictionary defines a “fraudulent misrepresentation” as: “[a] false
statement that is known to be false . . .” whereas an “omission” is defined as:
“[s]omething that is left out.” BLACK’S LAW DICTIONARY 452, 500 (2d pocket ed.
1996)(emphasis added).
None of the actions cited by Wilson amount to “representations.” If anything,
Plaintiff’s assertions must be characterized as “omissions,” as the “affirmative acts of
fraud against Wilson” listed in paragraph 34 of the Amended Complaint all concern a
lack of knowledge. See, Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208, 214 (5th Cir.
1983).
In Mississippi, an omission can constitute fraud only where the defendant owes
the plaintiff a fiduciary duty. Taylor v. Southern Farm Bureau Cas. Co., 954 So.2d 1045,
1049 (Miss. App. 2007) (holding that, in Mississippi, defendant must have a duty to
disclose fact omitted for fraud by omission).
Plaintiff concedes in paragraphs 35-36 that Mr. Patterson was not an officer of the
Court, and specifically excepted Mr. Patterson from alleged fraud of concealment or
omission. Plaintiff’s Amended Complaint, pg. 9 paragraph 35(a). Claims for fraud
against Mr. Patterson must therefore be dismissed, as he had no affirmative duty to
disclose anything to Wilson. Indeed, as adverse counsel, no named defendant owed
Wilson a fiduciary duty. See James v. Chase Manhattan Bank, 173 F.Supp.2d 544, 550
(N.D. Miss. 2001)(holding that attorneys owe no duty, fiduciary or otherwise, to an
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adverse party in a case he is litigating); see also Roussel v. Robbins, 688 So.2d 714, 725
n. 4 (Miss. 1996).
Additionally, Plaintiff’s conclusory allegations that Mr. Patterson engaged in
common law fraud through conspiracy1 does not sufficiently state a claim for relief, as a
Plaintiff “must allege ‘more than labels and conclusions.’” Norris, 500 F.3d at 464;
Twombly, 127 S.Ct. at 1966.
Judge Delaughter is the only person who could be said to have had a fiduciary
duty to Wilson; however, the Complaint alleges that the only parties with knowledge of
any rulings-for-recommendation trade-off were Mr. Scruggs and Mr. Langston.
Plaintiff’s Amended Complaint, pg. 7 paragraph 27. At most, the Amended Complaint
accuses Mr. Patterson of being involved in the hiring of Ed Peters. Such allegations do
not establish a conspiracy to commit fraud—Peters, as a practicing attorney, could
certainly participate in legal matters. Wilson further acknowledges that Mr. Patterson has
never been admitted to the Mississippi Bar, and does not make any allegations that Mr.
Patterson knew that ex-parte communications were being conducted. As no facts have
been pled that sufficiently establish an agreement for purposes of a conspiracy to defraud,
Count One against Mr. Patterson should be dismissed. See Southwest Louisiana
Healthcare System v. MBIA Ins. Corp., 2006 WL 1228903, *3 (W.D. La. 2006); Guidry
v. U.S. Tobacco Co., Inc., 188 F.3d 619, 632 (5th Cir. 1999).
1 Specifically, Wilson alleges that: “all of the defendants, along with Langston and others, had engaged in a
conspiracy to illegally influence Judge DeLaughter . . .” Plaintiff’s Amended Complaint, pg. 5 paragraph
23, “Steven A. Patterson . . . did enter into a conspiracy to illegally and feloniously corrupt and improperly
influence Hinds County Circuit Judge Bobby B. DeLaughter in Scruggs’s favor and against Wilson . . .”
Id., “[a]ll of the Defendants in the instant action worked in concert and, together with their unnamed coconspirators,
to accomplish their intended goal . . .” Id. at pg. 13 paragraph 43.
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B. Plaintiffs Failed to Plead Sufficient Civil RICO Claims
1. The Required Elements of Civil RICO
To state a cause of action under civil RICO, a plaintiff must sufficiently allege
that the defendant was: 1) a person, 2) who was engaged in a pattern of racketeering
activity, 3) in connection with the acquisition, establishment, conduct or control of an
enterprise. Whelan v. Winchester Production Co., 319 F.3d 225, 229 (5th Cir. 2003).
Wilson’s Amended Complaint appears to allege two separate RICO claims—the
first brought under 1962(c) only against Defendant Scruggs, and the second under
1962(d) against the remaining defendants, including Defendant Patterson. The § 1962(c)
claim is fatally deficient and should be dismissed, as Plaintiff fails to plead a valid
enterprise, a sufficient pattern of predicate acts, or adequate continuity. Wilson’s
dependent 1962(d) claim must be dismissed, as claims of a RICO conspiracy can only
exist alongside a valid substantive RICO violation. See Johnston v. Wilbourn, 760
F.Supp. 578, 589 (S.D.Miss. 1991); Bonton v. Archer Chrysler Plymouth, Inc., 889 F.
Supp. 995, 1005 (S.D. Tex. 1995)(dismissing § 1962(d) claim for lack of substantive
RICO violation). Plaintiff’s 1962(d) claim against Defendant Patterson should
additionally be dismissed as the Amended Complaint is completely devoid of any
allegation that Patterson even knew of, much less agreed to, any conspiracy to bribe
Judge DeLaughter. Finally, all claims based upon civil RICO should be rejected by this
Court due to the fact that Plaintiff does not and indeed cannot prove proximate causation,
a necessary element to any civil claim.
2. Wilson’s § 1962(c) Claim Against Defendant Scruggs is Deficient
i. Plaintiff Fails to Allege a Valid Enterprise Under 1962(4)
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The Amended Complaint names Defendant SMBD, Inc., a corporate entity, as the
RICO enterprise. Plaintiff’s Amended Complaint, pg. 15 paragraph 48. Specifically, the
Complaint reads that: “Defendant SMBD is an ‘enterprise’ within the meaning of
§ 1961(4) of the Racketeering Influenced and Corrupt Organizations Act …” Id. Based
upon this language, it appears that Wilson is attempting to bring a 1962(c) claim against
SMBD and Mr. Scruggs. If this is indeed the case, his effort to plead a valid enterprise
fails, as the corporation cannot be both the Defendant and the enterprise. See Abraham v.
Singh, 480 F.3d 351, 357 (5th Cir. 2007)(holding that defendant must be distinguishable
from enterprise).
ii. Plaintiff Fails to Allege a Sufficient Pattern of Predicate Acts
To properly plead the pattern of racketeering required for civil RICO, a Plaintiff
must allege at least two qualifying predicate racketeering acts. Bruno v. Starr, 2005 WL
1955167 (E.D.La. 2005)(citing In re MasterCard Int’l. Internet Gambling Litigation, 313
F.3d 257 (5th Cir. 2002); see also H.J. Inc. v. Northwestern Bell Telephone Co., 109
S.Ct. 2893, 106 L. Ed. 2d 195, 492 U.S. 229, 237-38 (1989)(holding that “the statement
that a pattern ‘requires at least’ two predicates implies ‘that while two acts are necessary,
they may not be sufficient.’”)(quoting Sedima, S.P.R.L. v. Imrex Co., Inc., 105 S.Ct.
3275, 87 L.Ed. 2d 346, 473 U.S. 479, 496 n. 14).
Plaintiff first points to Scrugg’s guilty plea in the case of Jones v. Scruggs;
however, Mr. Scruggs pled guilty to conspiracy under § 371. This does not qualify as an
act of racketeering under 18 U.S.C. § 1961(1). See TransFirst Holdings, Inc. v. Phillips,
2007 WL 1468553, * 4 (N.D. Tex. 2007)(stating that list of predicates in 1961(1) is
exclusive); Willims v. Hollingsworth Group, Inc., 238 F.3d 426, *2 (6th Cir.
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2000)(rejecting use of § 371 as RICO predicate due to omission from § 1961(1)); see also
U.S. v. Boylan, 898 F.2d 230, 238 (1st Cir. 1990); U.S. v. Ruggiero, 726 F.2d 913, 920
(2d Cir. 1984). Because § 371 is not listed within § 1961, Plaintiff cannot use Scrugg’s
guilty plea as a predicate act to establish a pattern of racketeering.
Next, Wilson makes several vague allegations of mail and wire fraud, stating that
Defendant Scruggs “has engaged in conduct in violation of 18 U.S.C. §§ 1341 (mail
fraud) and 1343 (wire fraud) by mailing or causing to be mailed various documents, and
by making or causing to be made telephone calls or emails in interstate commerce, for the
purpose of carrying out his schemes to defraud Wilson and the Plaintiff in the Jones
case.” Plaintiff’s Amended Complaint, pg. 16, paragraph 54. Such broad, vague
proclamations do not qualify as predicates, as allegations of mail and wire fraud must be
pled with particularity. FED. R. CIV. PRO 9(b); Tel-Phonic Services, Inc. v. TBS Intern.,
Inc., 975 F.2d 1134, 1138 (5th Cir. 1992). Pleading with particularity, at the very
minimum, requires a Plaintiff to state such basics as time, place, and manner of an
alleged fraudulent act. ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 349
(5th Cir. 2002).
Wilson does specifically allege an instance of wire fraud based upon a wire
transmission from the Scruggs Law Firm to Balducci. Plaintiff’s Amended Complaint pg.
18, paragraph 58. As both Scruggs and Balducci were residents of the state of
Mississippi, however, the alleged transmission is presumed to be intrastate, and thus does
not amount to wire fraud. See Smith v. Ayers, 845 F.2d 1360, 1366 (5th Cir.
1988)(refusing to find wire fraud where plaintiff pled communications that were
presumed to be intrastate in nature).
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Two other cases, Eaton v. Frisby and Kirk v. Pope, are mentioned in the Amended
Complaint. The relevance of these cases is unclear, as Wilson never alleges that the
Scruggs Law Firm (the purported enterprise), was in any way involved in these cases. To
be considered as a predicate act for purposes of § 1962(c), the act must be related to the
said enterprise. U.S. v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992). As stated by the
Second Circuit, “[t]he requisite vertical nexus between the RICO enterprise and the
predicate racketeering acts may be established by evidence that the defendant was
‘enabled to commit the predicate offenses solely by virtue of his position in the enterprise
or involvement in or control over the affairs of the enterprise,’ or that ‘the predicate
offenses are related to the activities of the enterprise.” Id. (quoting United States v.
Robilotto, 828 F.2d 940, 947-48 (2d Cir. 1987). As the Scruggs Firm was not alleged to
be involved in these cases, and because Peters was not employed by the Scruggs Firm
during that period, neither case is sufficiently related to the enterprise to constitute
predicate acts for purposes of RICO.
iii. Plaintiff Fails to Allege Sufficient RICO Continuity
Even assuming arguendo that Plaintiff were successful in pleading the minimum
amount of RICO predicate acts to withstand a motion to dismiss, he still falls short of
alleging a sufficient pattern of racketeering. A Plaintiff must additionally show that the
alleged illegal acts had sufficient continuity2. See In re Burzynski, 989 F.2d 733, 742
(5th Cir. 1993). There are two types of continuity: open-ended and closed-ended. H.J.
Inc., 492 U.S. at 229.
2 Under United States Supreme Court precedent, continuity is required to establish a pattern of
racketeering. H.J. Inc., 492 U.S. at 229.
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In the present case, Wilson alleges that the scheme to defraud consisted of a plan
to “defraud Wilson of asbestos fees, tobacco proceeds, and other amounts Wilson was
lawfully entitled to recover from Scruggs, by bribing the Circuit Court judge hearing the
case.” Plaintiff’s Amended Complaint, pg. 15, paragraph 51. Clearly, such a scheme had
a definite ending point—the termination of the pending lawsuit. Additionally, SMBD,
the enterprise pled by Wilson, is no longer operational. Thus, Wilson’s case should be
evaluated under a closed-ended continuity theory. See Walker v. Allianz Life Ins. Co. of
North America, 2009 WL 1883418, *5 (N.D. Tex. 2009)(explaining that open-ended
continuity applies only to those alleged schemes that threaten to continue in the future);
see also U.S. v. Bustamante, 45 F.3d 933, 941 (5th Cir. 1995)(concluding that because
defendant was no longer in office, closed-ended continuity applied).
The only other acts that Wilson attempts to plead as predicates are 1) Mr. Scruggs
plea to one count of mail fraud for Joey Langston and Tim Balducci’s Entry of
Appearance in Wilson’s case, 2) an allegation of mail fraud concerning Judge
Delaughter’s Memorandum Opinion in Wilson’s case, and 3) an allegation of mail fraud
regarding an Order Quantifying Monies Due in Wilson’s case. All of these alleged
predicates, however, relate to a single, otherwise lawful transaction—a prior lawsuit
between Wilson and Scruggs. Courts have consistently refused to find continuity in such
cases. Burzynski, 989 F.2d at 742-43 (5th Cir. 1993); Delta Truck & Tractor, Inc. v. J.I.
Case Co., 855 F.2d 241, 244 (5th Cir. 1988).
In Delta Truck & Tractor, the Plaintiff alleged predicates of mail and wire fraud
relating to one overarching scheme—the merger of two companies. 855 F.2d at 244.
The Fifth Circuit, overruling its prior decision in the case of R.A.G.S. Couture, Inc. v.
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Hyatt, dismissed the claim, stating that “Delta has alleged as a pattern activity nothing
more than numerous predicate acts which were necessary segments of an otherwise
legitimate and singular commercial endeavor—the Case/Tenneco acquisition of IH and
related efforts to combine the dealer network. Delta’s claim that the method of
termination of one or all dealerships fraudulently violated contractual rights or legal
duties does not plead a RICO violation.” Id.
Nor is the temporal span adequate to show continuity. The only three possibly
sufficient predicates of alleged mail fraud occurred between January 19th and July 7th,
2006—a little over six months. It is well settled that allegations of predicates that occur
over a short period of time and that are related to a single transaction do not establish a
pattern of racketeering. H.J. Inc., 492 U.S. at 229; Bruno v. Starr, 2005 WL 2060899, *4
(E.D. La. 2005); Butler v. BancorpSouth Bank, 2007 WL 3237927, *3 (S.D.Miss.
2007)(finding 6 months insufficient for RICO continuity); Fowler v. Burns Intern. Sec.
Services, Inc., 763 F.Supp. 862, 865 (N.D.Miss. 1991)(refusing to find continuity for
predicate acts occurring over 9 month period); Johnston, 760 F.Supp. at 588. (finding acts
occurring over period of 9 months insufficient for RICO continuity). Since he has not
met the essential element of continuity, Wilson’s RICO claims should be dismissed.
iv. Plaintiff Fails to Show Proximate Causation
The federal RICO statutes applicable to §§ 1962(c) and 1962(d) require a plaintiff
to plead and prove that the defendant’s actions were the “but for” and proximate cause of
his injuries. Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992); Anza v. Ideal
Steel Supply Corp., 547 U.S. 451, 457-58, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006). The
Fifth Circuit has held that a person will be considered injured “by reason of” a RICO
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violation if the predicate acts alleged in the Complaint constitute 1) factual (but for)
causation and 2) legal (proximate) causation of the alleged injury. Ocean Energy II, Inc.
v. Alexander and Alexander, Inc., 868 F.2d 740, 744 (5th Cir. 1989)(emphasis added).
To withstand a motion to dismiss, “a complaint must allege ‘more than labels and
conclusions.’” Norris v. Hearst Trust, 500 F.3d 454, 464 (5th Cir. 2007)(quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929
(2007)). Additionally, ‘[f]actual allegations must be enough to raise a right of relief
above a speculative level’. Id.
For Wilson to prove causation, he must show that, “but for” the alleged promise
of a judgeship, Delaughter would have ruled in Wilson’s favor. This assumption is
fatally problematic, as it would require this Court to engage in psychic guesswork.
Causation cannot be premised upon such weak inferences in the Fifth Circuit. See
Johnson v. Sawyer, 4 F.3d 369, 398 (5th Cir. 1993)(stating that “it is settled law in this
Court that a finding of causation ‘may not rest on speculation and conjecture.’”)(quoting
Nichols Const. Corp. v. Cessna Aircraft Co., 808 F.2d 340, 346 (5th Cir. 1985).
Traditional tort principles dictate that if the wrongful act did not cause the injury,
the wrongdoer cannot be liable. See Prosser & Keeton on Torts, § 41 at 263 (5th ed.
1984). Even if all of Wilson’s assertions are true, the Amended Complaint does not
allege that DeLaughter agreed to render a different verdict in exchange for a judgeship
consideration. Nor does it assert that DeLaughter ruled in a way that conflicted with
existing precedent. Such inferences are simply too speculative to establish causation in a
civil RICO case.
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3. Wilson’s § 1962(d) Claim is Deficient
Although Wilson did not properly allege the appropriate RICO conspiracy statue,
it appears that Wilson attempts to allege a 1962(d) claim against Patterson and the
remaining defendants. This additional claim should be dismissed for several reasons.
First, as noted above, the substantive RICO claim is deficient. See Nolan v. Nucentrix
Broadband Networks, Inc., 293 F.3d 926, 930 (5th Cir. 2002)(recognizing that a 1962(d)
claim is dependent upon the validity of substantive 1962(c) violation). For this reason
alone, the 1962(d) is invalid.
Additionally, the 1962(d) claims must be dismissed because Wilson did not plead
the existence of any agreement between the defendants. See Rouser v. Johnson, 36 F.3d
90, * 4 (5th Cir. 1994)(dismissing RICO conspiracy claims for failure to sufficiently plead
facts establishing agreement). Conclusory allegations that the defendants “conspired” is
simply not enough to establish a claim under 1962(d). Guichard v. State Farm Fire &
Casualty Co., 1995 WL 702510, * 2 (E.D. La. 1995). As the Fifth Circuit aptly noted in
Tel-Phonic Services, Inc., “[b]ecause the core of a RICO civil conspiracy is an agreement
to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must
allege specifically such agreement.” 975 F.2d at 1140. In the Amended Complaint,
Wilson makes only the following allegations concerning Mr. Patterson: 1) that he helped
retain the services of Ed Peters, a good friend of Judge Delaughter, and that he paid
Peters, and was in frequent contact with him, 2) that Peters relayed information from Mr.
Patterson to Judge DeLaughter, constituting ex-parte communications, 3) that Patterson
pled guilty to § 371, 4) that Patterson “conspired to violate 18 U.S.C. § 1962(c),” and 5)
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that Patterson bribed Judge DeLaughter. Plaintiff’s Amended Complaint, pg. 7,
paragraph 27; pg. 11, paragraph 42; pg. 19, paragraph 65-66.
None of the first three allegations amount to predicate acts or an agreement to
commit predicate acts. At most, the first two actions would be ethical violations if
committed by a lawyer. See St. Germain, 556 F.3d at 263. (finding that mere ethical
violations do not constitute RICO predicates). Nevertheless, the Amended Complaint
itself even recognizes that Mr. Patterson is not and has never been, an attorney.
Plaintiff’s Amended Complaint, pg. 9 paragraph 35(a). The third allegation regarding
§ 371, as noted previously, is not a RICO predicate act under the statute. Thus, even if
Mr. Patterson did commit, or agreed for someone else to commit, any of these actions,
Wilson has not stated facts to support a RICO conspiracy claim.
Finally, the Amended Complaint states that each defendant engaged in “one
predicate act of racketeering activity, namely, the bribery of Judge DeLaughter.”
Plaintiff’s Amended Complaint, pg. 19 paragraph 66. This bribery, according to Wilson,
concerned consideration for a federal judgeship. Id. at 7, paragraph 27. The particular
facts alleged by Wilson himself, however, do not allege that Patterson even knew about
any possible desire on behalf of Delaughter to obtain a federal position. Plaintiff’s
Amended Complaint, pg. 7, paragraph 27. Obviously, if Mr. Patterson was not even
aware that Judge DeLaughter desired a federal judgeship, he certainly could not be guilty
of bribing him with this promise. Bribery, as defined by the United States Supreme
Court, requires a quid pro quo agreement—an offer of this for that. U.S. v. Sun-Diamond
Growers of California, 526 U.S. 398, 404-05, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999).
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In sum, because the Amended Complaint does not allege that Mr. Patterson
himself offered, or agreed for someone else to offer, Judge Delaughter a judicial position
in exchange for favorable rulings in the Wilson case, the 1962(d) claim against him must
be dismissed for failure to state a claim upon which relief can be granted.
C. Plaintiff’s Due Process Claims are Deficient
In order to have a claim for deprivation of substantive due process, Wilson must
allege a deprivation of a protected interest in life, liberty, or property. U. S. CONST.
amend. V. While it is not completely clear, the Amended Complaint appears to allege a
deprivation of the property of access to courts because Judge Delaughter ruled against
him in his suit against Mr. Scruggs. Plaintiff’s Amended Complaint, pg. 20, paragraph
74. This type of claim has been pointedly rejected by the Fifth Circuit and the United
States Supreme Court. See Holloway v. Walker, 784 F.2d 1287 (5th Cir. 1986); Parratt v.
Taylor. 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)(overruled on other
grounds).
Constitutional rights of Due Process protect a citizen only from governmental
action; the Fifth and Fourteenth Amendments have no application to private actors.
Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 461, 72
S.Ct. 813, 96 L.Ed. 1068 (1952). In the present case, Judge Delaughter was a public
official, and Wilson is alleging that Mr. Patterson, along with the other defendants,
conspired with Judge Delaughter to constitutionally deprive him of his right to access the
courts. Plaintiff’s Amended Complaint, pg. 20 paragraph 74. Even viewed in the light
most favorable to the Plaintiffs, Wilson’s Due Process claims are not sufficient to survive
a motion to dismiss, especially as against Mr. Patterson.
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First, the alleged loss is not a result of any state procedure or regulation. To be
sure, Wilson notes in his Complaint that the Judicial Cannons of Ethics, along with
Mississippi Bar Rules of Professional Conduct and state criminal laws, prohibit the
bribing of judges. Plaintiff’s Amended Complaint, pg. 9-10 paragraph 35. Thus, even if
all of Wilsons’ allegations were true, the deprivation of a fair trial would, at most, amount
to an unauthorized act by a state employee.
The United States Supreme Court rejected a similar claim in the case of Parratt v.
Taylor. 451 U.S. at 541. There, a prisoner was alleging a Due Process violation after
prison officials allowed someone to steal his personal property. Id. at 529. The Court
recognized the problem with allowing Due Process claims in such cases, stating that:
“[a]lthough [the Plaintiff] has been deprived of property under color of state law, the
deprivation did not occur as a result of some established state procedure. Indeed, the
deprivation occurred as a result of the unauthorized failure of agents of the State to
follow established state procedure. There is no contention that the procedures themselves
are inadequate, nor is there any contention that it was practicable for the State to provide
a predeprivation hearing.” Id. at 543; See also Hudson v. Palmer, 468 U.S. 517, 533, 104
S.Ct. 3194, 82 L.Ed.2d 393 (1984)(standing for same proposition in cases of intentional
property deprivation by rogue state agents). In the present case, Wilson at most alleges
an unauthorized property deprivation by a state employee. This does not state a claim
under the Due Process Clause.
The Fifth Circuit has been faced with, and has rejected, this precise claim. In the
case of Holloway v. Walker, several oil-company owners alleged that an improperlyinfluenced
judge deprived them of Due Process by denying them a fair trial. 784 F.2d at
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1291. Utilizing the U.S. Supreme Court’s prior Parratt opinion, the Court confirmed that
random and unauthorized acts by a state employee cannot constitute this type of
constitutional violation. Id. at 1292-93.
For all of the reasons stated herein, Wilson’s Due Process claims should be
dismissed in their entirety3.
CONCLUSION
For the reasons stated herein, all of Plaintiff’s claims against Mr. Patterson in the
Amended Complaint should be dismissed.

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