Opinion
Case No. 2:03CV00682 DB
November 8, 2003
ORDER
Before the Court is defendant, Zions First National Bank's, motion to dismiss for: (1) lack of standing to assert claims; (2) unauthorized practice of law; (3) failure to state a claim upon which relief can be granted and (4) failure to comply with the pleading requirements of Fed.R.Civ.P, 9(b). Defendant argues that dismissal is appropriate because Phillip Tinsley III, currently representing plaintiff Phillip Tinsley Jr. "pro se," is not an attorney licenced to practice in the state of Utah, and his Complaint fails to comply with pleading requirements, for lack of required particularity, and fails to state a claim upon which relief can be granted.
I. Failure to state a claim
In reviewing a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) the Court accepts as true the factual allegations pleaded in plaintiff's complaint. Resler v. Financial Group, Inc., 668 F. Supp. 1454, 1456 (10th Cir. 1985). All reasonable inferences are drawn in favor of the plaintiff. Dismissal is only appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Dep't of Energy Stripper Well Exemption Litig., 743 F. Supp. 1467, 1469 (10th Cir. 1990).
Defendant argues that plaintiff's Complaint should be dismissed because it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). This Court agrees. Plaintiff's Complaint alleges three causes of action: (1) mail fraud in violation of 18 U.S.C. § 1341; (2) wire fraud in violation of 18 U.S.C. § 1343; and (3) racketeering under RICO in violation of 18 U.S.C. § 1961 and 1962. Private litigants cannot sue to redress the offenses defined in 18 U.S.C. § 1341 and § 1343. Oppenheim v. Sterling, 368 F.2d 516, 518-19 (10th Cir. 1966), See also Napper v. Anderson, Henley, Shields, Bradford and Pritchard, 500 F.2d 634, 636 (5th Cir. 1974)("The wire fraud act, 18 U.S.C. § 1343, is closely analogous to the mail fraud statute, 18 U.S.C. § 1341, and likewise evidences no intent of Congress to grant additional federal question jurisdiction in civil cases"). No private right of action exists under either statute. Id. Therefore plaintiff's first and second cause of action are dismissed with prejudice.
Plaintiff's third cause of action alleges that defendant engaged in a pattern of racketeering activity under RICO in violation of 18 U.S.C. § 1961 and 1962. "To survive a Rule 12(b)(6) motion [to dismiss], a civil RICO claim must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1362 (10th Cir. 1989). Plaintiff's Complaint fails to state a claim under RICO because the Complaint does not allege a "pattern of racketeering activity." Id. at 1362, A "pattern of racketeering activity" requires "more than just a multiplicity of racketeering predicates." H. J. INC. v. Northwestern Bell Telephone Co. 492 U.S. 229, 238-39. To prove a pattern of racketeering activity, a plaintiff must show both "relationship" and "continuity" of the racketeering activity. Id. at 239. Therefore, plaintiff must show that "the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." Id.
Plaintiff has failed to allege both the relationship and continuity of the racketeering activity. Plaintiff's RICO claim consists of one four sentence paragraph and is set forth in it's entirety in the following paragraph:
a. The fraudulent letter from Mr. Chris Davis of Zions Bank was the first instance/the beginning of a pattern of racketeering activity.
b. Disobedience to the wire transfer order was the second instance of racketeering activity.
c. The evidence of theft of over $86,000 via the internet was the third and final instance of racketeering activity.
d. Zions Bank/the President of Zions Bank is guilty of violating this Title and its Sections based upon prima facie evidence.
Even accepting all facts set forth in plaintiff's Complaint as true and drawing all reasonable inference in favor of plaintiff, defendant did not engage in a "pattern of racketeering activity" as required by 18 U.S.C. § 1961 (1) or (5) or 18 U.S.C. § 1962. H.J. INC. 492 U.S. at 238 ("proof of racketeering activity, without more, does not establish a pattern"). Accordingly, plaintiff's third cause of action is dismissed with prejudice.
This Court has considered plaintiff's Complaint accepting as true all factual allegations pleaded by plaintiff and drawing all reasonable inferences in favor of the plaintiff. The Court finds that plaintiff has failed to state a claim upon with relief can be granted under 18 U.S.C. § 1343, 18 U.S.C. § 1341, 18 U.S.C. § 1961 (1)-(5) and 18 U.S.C. § 1962. Accordingly, the Court GRANTS defendant's motion to dismiss.
Because the Court finds sufficient grounds to dismiss plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6), this Court will not review defendant's alternative grounds for dismissal.
IT IS SO ORDERED.