Opinion
2:22-cv-02429-TLP-atc
06-26-2023
DWAYNE ANDERSON, Plaintiff, v. FIRST HORIZON BANK, et al., Defendants.
REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL
ANNIE T. CHRISTOFF, UNITED STATES MAGISTRATE JUDGE
On June 28, 2022, Plaintiff Dwayne Anderson filed a pro se complaint against Defendants First Horizon Bank (“FHB”), D. Bryan Jordan, Kevin Beeson, and an unnamed bank manager, alleging claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Tennessee Consumer Protection Act (“TCPA”), and common law fraud. (ECF No. 1.) Also on June 28, 2022, Anderson filed a motion to proceed in forma pauperis (ECF No. 2), which was subsequently granted (ECF No. 6). This case has been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Admin. Order 2013-05, Apr. 29, 2013.)
For the reasons set forth below, it is recommended that Anderson's complaint be dismissed sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim upon which relief may be granted.
PROPOSED FINDINGS OF FACT
In his complaint, Anderson alleges that he used an FHB automated teller machine (“ATM”) on May 30, 2022, and withdrew $100 from his Money Network debit card account, but that the ATM failed to dispense the funds, while simultaneously charging him a $3.50 convenience fee. (ECF No. 1, at 1-2.)
On May 31, 2022, Anderson went to FHB's headquarters at 165 Madison Avenue, Memphis, Tennessee, to report his alleged loss of funds at the ATM from the day before. (Id. at 2.) Anderson alleges:
[D]efendant Manager, a Black Female, had instructed me to contact Money Network regarding such. Defendant Manager had failed to provide me whether she was actually the Manager of said defendant FHB and whether the said instruction she had provided me to have funds refunded was accurate and had further disregarded the fact that I was illegally charged said $3.50 convenience fee, and defendant Manager had failed to provide me an appropriate investigation on the subject matters.(Id. at 2.) Anderson also alleges that Defendant Kevin Beeson, FHB's Executive Vice President, “failed to properly oversee the Bank's employees' actions.” (Id.) Finally, Anderson alleges that Defendant D. Bryan Jordan, FHB's CEO, “engaged in covering up the Bank Employees' wrongdoing and covering up my formal complaints against the employees of FHB.” (Id. at 2.)
Anderson asserts that these acts constitute violations of RICO, the TCPA, and common law fraud, and he seeks $5,000,000 in compensatory damages and $500,000 in punitive damages.
PROPOSED CONCLUSIONS OF LAW
I. 28 U.S.C. § 1915(e)(2) Screening
Under Local Rule 4.1(b)(2), the Clerk of the Court will only issue summonses in cases with non-prisoner pro se plaintiffs who are proceeding in forma pauperis at the Court's direction after the Court conducts a screening under § 1915(e)(2)(B). Under that provision, the Court shall dismiss the case at any time if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” This Report and Recommendation constitutes the Court's screening.
II. Standard of Review for Failure to State a Claim
To determine whether Plaintiff's complaint states a claim for which relief may be granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citations and quotations omitted). The Court “construes the complaint in a light most favorable to [the] plaintiff” and “accepts all factual allegations as true” to determine whether they plausibly suggest an entitlement to relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012).
Pleadings provide facial plausibility when they present “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. However, “pleadings that . . . are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice' of the nature of the claim, but also ‘grounds' on which the claim rests.”).
“[A] pleading filed pro se is to be liberally construed and held to less stringent standards than a pleading filed by counsel.” Kondaur Cap. Corp. v. Smith, 802 Fed.Appx. 938, 945 (6th Cir. 2020) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); see also Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562 (6th Cir. 2011) (finding the less stringent standard applies to pro se complaints, “however inartfully pleaded”). Nevertheless, pro se litigants “are not exempt from the requirements of the Federal Rules of Civil Procedure.” Wright v. Penguin Random House, 783 Fed.Appx. 578, 581 (6th Cir. 2019) (citing Fox v. Mich. State Police Dep't, 173 Fed.Appx. 372, 376 (6th Cir. 2006)); see also Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, but it would also transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.”); Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011) (“[A] court cannot ‘create a claim which a plaintiff has not spelled out in his pleading.'”) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)). “A pro se complaint must still ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Shelby v. Greystar Mgmt. Servs., L.P., No. 2:17-cv-02650-SHM-cgc, 2018 WL 386647, at *2 (W.D. Tenn. Jan. 11, 2018) (quoting Barnett v. Luttrell, 414 F. App'x. 784, 786 (6th Cir. 2011)).
III. Anderson's RICO Claim
Section 1964(c) of RICO authorizes civil suits and provides in pertinent part: “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court ....” 18 U.S.C. § 1964(c). Section 1962(c) makes it unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). To establish a violation of Section 1962, a plaintiff must show: “(1) there were two or more predicate offenses; (2) the existence of an enterprise engaged in or affecting interstate or foreign commerce; (3) a nexus between the pattern of racketeering activity and the enterprise; and (4) an injury to [his or her] business or property by reason of the above.” Frank v. D'Ambrosi, 4 F.3d 1378, 1385 (6th Cir. 1993) (citing Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 274 n.5 (9th Cir. 1988)).
“An essential element of any civil RICO claim is a showing that ‘there were two or more predicate offenses.' The predicate offenses that amount to ‘racketeering activity' are identified in 18 U.S.C. § 1961(1).” Moses v. Gardner, No. 14-cv-2706-SHL-dkv, 2017 WL 1364977, at *5 (W.D. Tenn. Apr. 12, 2017), aff'd, No. 17-5497, 2017 WL 9251805 (6th Cir. Nov. 9, 2017) (quoting Frank, 4 F.3d at 1385)). “Thus, to establish a pattern of racketeering activity, a plaintiff must allege at least two predicate offenses that amount to or pose a threat of continued criminal activity.” Id. (citing Brown v. Cassens Transp. Co., 546 F.3d 347, 354 (6th Cir. 2008)). In this case, Anderson fails to identify a single predicate offense, much less two or more predicate offenses, that might constitute a pattern of racketeering activity. The only alleged wrongdoing by Defendants consists of the purported failure by the ATM to dispense the withdrawal funds, while simultaneously changing him a $3.50 convenience fee, followed by Anderson's vague suspicions that Defendants failed to appropriately investigate his allegations concerning the ATM. (ECF No. 1, at 1-2.)
More to the point, “it is axiomatic that a civil RICO claim alleging racketeering activity with a single objective and a single victim is not sufficient to establish a pattern of racketeering activity, as it does not sufficiently evidence long-term criminal conduct.” Moses, 2017 WL 1364977, at *5 (quoting Vemco, Inc. v. Camardella, 23 F.3d 129, 135 (6th Cir. 1995) (“We cannot conclude that [the plaintiff's] alleged actions here, involving a single victim and a single scheme for a single purpose over seventeen months, constitute the type of ‘long-term criminal conduct' Congress sought to prohibit with RICO.”)). Even if Anderson's allegations constituted a pattern of racketeering activity, which they do not, all the alleged wrongdoing was directed at Anderson, and the only objective alleged was to deprive him of the ATM withdrawal funds and to charge him a convenience fee. (ECF No. 1, at 1-2.) Anderson's allegations involving “a single objective and a single victim are not sufficient to establish a pattern of racketeering activity, as they do not sufficiently evidence long-term criminal conduct.” Clair v. Bank of Am., N.A., No. 16-cv-2263-SHL-dkv, 2016 WL 6092715, at *6 (W.D. Tenn. Oct. 19, 2016). As a result, it is recommended that Anderson's RICO claim be dismissed with prejudice.
IV. Anderson's State Law Claims
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over claims if it has dismissed all claims over which it has original subject matter jurisdiction. Moses v. Gardner, No. 14-cv-02706-SHL-dkv, 2016 WL 11249025, at *16 (W.D. Tenn. Oct. 11, 2016), report and recommendation adopted, 2017 WL 1364977 (W.D. Tenn. Apr. 12, 2017), aff'd, No. 17-5497, 2017 WL 9251805 (6th Cir. Nov. 9, 2017); see also Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (“If the federal claims are dismissed before trial, the state claims generally should be dismissed as well.”) (quoting Wojnicz v. Davis, 80 Fed.Appx. 382, 384-85 (6th Cir. 2003)).
In this case, the Court has original subject matter jurisdiction over only Anderson's RICO claim, and he fails to allege any jurisdictional basis over his state law claims for common law fraud and violations of the TCPA. Because this Court recommends dismissal of Anderson's RICO claim, it is further recommended that the Court decline to exercise supplemental jurisdiction over his state law claims. See Tallent v. Knight, No. 22-5126, 2022 WL 18862074, at *2 (6th Cir. Sep. 7, 2022) (“The district court declined to exercise supplemental jurisdiction over the [plaintiff's] state-law claims, reasoning that they were subject to dismissal because all of her federal claims were dismissed. If a district court dismisses a plaintiff's federal claims, it is not required to exercise jurisdiction over her state-law claims.”) (citations omitted).
RECOMMENDATION
For the foregoing reasons, the Court recommends that Anderson's RICO claim be dismissed with prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. It is further recommended that the Court decline to exercise supplemental jurisdiction over his state law claims and that they be dismissed without prejudice.
NOTICE
Within fourteen (14) days after being served with a copy of this report and recommendation disposition, a party may serve and file written objections to the proposed findings and recommendations. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Failure to file objections within fourteen (14) days may constitute waiver of objections, exceptions, and further appeal.