Ahmed v. Rosenblatt, s. 96-1145

Decision Date06 May 1997
Docket NumberNos. 96-1145,97-1037,s. 96-1145
Citation118 F.3d 886
Parties, RICO Bus.Disp.Guide 9308 Malek AHMED, Plaintiff, Appellant, v. Jon ROSENBLATT, Carol Rosenblatt, Charles Greenwood, Irwin Loft, Mortgage Guarantee Title Company, and William Larson, Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Kevin McBurney, Pawtucket, RI, for appellant.

Melissa E. Darigan, Providence, RI, for appellee Mortgage Guarantee and Title Company.

Christopher M. Orton with whom Francis X. Flaherty was on brief, Warwick, RI, for appellee Charles Greenwood.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

COFFIN, Senior Circuit Judge.

Malek Ahmed ("Ahmed") appeals the district court's grant of summary judgment for the defendants, who he maintains conspired to deprive him of property he owned in Providence, Rhode Island. 1 Specifically, Ahmed challenges the dismissal of his claims under the Racketeering and Corrupt Organizations Act ("RICO"), arguing that his complaint was sufficiently detailed to establish fraud when given the lenient reading he should have been afforded as a pro se plaintiff. In a related appeal, Ahmed contends that the district court erred in not setting aside the dismissal under Rule 60(b). We affirm both judgments.


We recite the facts in the light most favorable to the plaintiff, the non-moving party. See McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 787 (1st Cir.1990). However, we must emphasize that while Ahmed would prefer us to assess this case and the underlying facts on the basis of the Amended Complaint he has submitted on appeal, we are limited in our review to the record below, and specifically to the complaint that was filed with the district court. 2 See Fed. R.App. P. 10.

The facts of this case concern various transactions relating to property held by Ahmed at 47 Maple Street ("47 Maple") in Providence. Ahmed initially entered into a purchase and sale agreement with one William Larson in October of 1988, contingent upon Larson obtaining financing. Ahmed retained defendant Charles Greenwood to represent him in the transaction, and received a $5,000 deposit from Larson which he gave to Greenwood to hold in escrow. On October 20, 1988, Larson notified Ahmed that he had been unable to obtain financing; Ahmed asserts that he then requested Greenwood to return Larson's deposit, but that this was not done until December 20.

On December 16, Ahmed entered into a second purchase and sale agreement for 47 Maple, this time with Irwin Loft/CCAS. 3 Ahmed again was represented by Greenwood, 4 and he received a $25,000 deposit from Loft. On December 19, the first potential purchaser, Larson, recorded his agreement. On December 23, Loft requested that defendant MGT place a lien on Maple Street in order to secure his deposit.

On March 8, 1989, shortly before the closing between Ahmed and Loft/CCAS, Loft gave Ahmed an additional $30,000. The closing itself occurred on March 14, but was followed the next day by the filing of a lis pendens by Larson, based on his earlier agreement with Ahmed. This lien was discovered by MGT, which informed Ahmed that the closing with Loft would be voided as a result. Larson then sued Ahmed for specific performance.

On July 12, Ahmed executed in favor of Loft a number of documents denominated "Promissory Note Secured by Mortgage," relating to 47 Maple and several other properties. He maintains that he thought these were just receipts for the moneys he had received from Loft, 5 though Loft contends that the documents were intended to create security for the money he had given to Ahmed. Loft unsuccessfully attempted to foreclose on these notes for non-payment by Ahmed in 1991 and 1992, and then transferred them to Jon and Carol Rosenblatt on April 17, 1993. Ahmed subsequently brought suit on February 17, 1995, alleging that the above incidents were all part of a scheme concocted by the defendants to defraud him of his interest in 47 Maple and the related properties.

A magistrate judge issued a report and recommendation that Ahmed's complaint be dismissed, saying that Ahmed had failed to plead predicate acts, pattern, and enterprise, as required for the RICO claim. Judge Pettine subsequently accepted these recommendations, stating in his order that Ahmed had failed to plead sufficient facts to establish instances of mail and wire fraud, a pattern of racketeering activity, or the existence of an enterprise affecting interstate commerce. Judge Pettine further found that Ahmed was afforded appropriate leniency as a pro se litigant. Ahmed sought relief under Rule 60(b), claiming the district court erred in dismissing his complaint, but the district court rejected this. Ahmed appeals both the original judgment and the denial of his post-judgment motion.

II. The First Appeal.

Ahmed raises three claims in his challenge to the district court's grant of summary judgment. Our review is plenary. Feinstein v. Resolution Trust Corp., 942 F.2d 34, 34 (1st Cir.1991).

A. Dismissal of the RICO claim.

Ahmed argues that the district court wrongly concluded that he failed to plead sufficient facts to demonstrate a RICO violation. We begin by briefly reviewing the well established requirements for such a claim.

A RICO plaintiff must allege a pattern of racketeering activity involving at least two predicate acts, the second of which must occur within 10 years of the first. 18 U.S.C. § 1961(5). Predicate acts under this statute are acts indictable under any one or more of certain specified laws, including the mail and wire fraud statutes. See Feinstein, 942 F.2d at 42; see also McEvoy, 904 F.2d at 788. Furthermore, a RICO plaintiff must allege the existence of an enterprise, which the statute defines as including: "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). Ahmed's complaint fails to establish any of these three requirements with sufficient detail to survive summary judgment.

Turning first to predicate acts, we previously have noted "[i]t is not enough for a plaintiff to file a RICO action, chant the statutory mantra, and leave the identification of predicate acts to the time of trial." See Feinstein, 942 F.2d at 42. Ahmed's pleading contains only the bald assertion that the defendants (unspecified) used the U.S. mails to fraudulently convey their interests in Ahmed's properties, that the defendants (again unspecified) used the U.S. Postal Service by mailing unspecified materials, and that the defendants used wire communications.

Despite well settled law in this circuit that RICO pleadings of mail and wire fraud must satisfy the particularity requirements of Rule 9(b), see Feinstein, 942 F.2d at 42; New England Data Services, Inc. v. Becher, 829 F.2d 286, 290 (1st Cir.1987), and that under 9(b), a pleader must state the time, place and content of the alleged mail and wire communications perpetrating that fraud, see Becher, 829 F.2d at 291, Ahmed's complaint supplies no times, places, or contents. The record is similarly devoid of evidence which would support Ahmed's contentions. He has therefore failed to show the required predicate acts.

Failure to plead predicate acts adequately is enough to sink his RICO claim. We nonetheless briefly consider the other RICO elements. Following the Supreme Court's lead in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 238, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989), we have held that a plaintiff seeking to establish a RICO "pattern" must show that the predicate acts are related and that they amount to or pose the threat of continued criminal activity (the "continuity" requirement). See Feinstein, 942 F.2d at 44; see also McEvoy, 904 F.2d at 788.

In order to demonstrate relatedness, the predicate acts must have the same or similar purposes, participants, victims, or methods, or otherwise be interrelated by distinguishing characteristics and not be isolated events. See Feinstein, 942 F.2d at 44; see also Fleet Credit Corp. v. Sion, 893 F.2d 441, 445 (1st Cir.1990). Ahmed's minimal assertions do not permit us to realistically assess the purposes, participants, or methods of the alleged acts to determine their relatedness.

In supporting the continuity prong of the pattern requirement, a plaintiff must show either that the related predicates "amounted to" continued criminal activity or that there was, even though the predicate acts did not span a significant time, a "threat" or realistic prospect of continued activity in time yet to come. See Feinstein, 942 F.2d at 45. Here, absent sufficient allegations of both predicate acts and relatedness, the "amounted to" threshold has not been reached. Similarly, the "threat" approach is unavailable; there is no allegation that, after the attempted foreclosure, such conduct was an ongoing entity's way of doing business.

Finally, on the enterprise element, Ahmed fails to allege that the defendants were together part of any legal entity, and again, the complaint's mere allegation that an enterprise existed does nothing to support that claim or demonstrate how the defendants were purportedly associated in fact. We therefore must conclude that Ahmed failed to make his case on this point as well.

Because Ahmed failed to establish any of the three necessary elements of a RICO claim, the district court properly dismissed his complaint.

B. The Becher second determination.

Ahmed attempts to resuscitate his claim under the "second determination" approach we adopted in Becher, 829 F.2d at 290. We said there that Rule 9(b) has a special gloss in the RICO context in cases where a plaintiff's specific allegations make it likely that a defendant has used interstate mails or wire, and where this information is in the exclusive control of the...

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