Duran v. Carris

• Decision Date: 31 January 2001
• Docket Number: No. 00-2114,00-2114
• Citation: 238 F.3d 1268
• Parties: (10th Cir. 2001) ARTHUR DURAN, Plaintiff-Appellant, v. DEAN CARRIS; DOS GRIEGOS CORPORATION; DOS GRIEGOS LIMITED, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1268

238 F.3d 1268 (10th Cir. 2001)

ARTHUR DURAN, Plaintiff-Appellant, v. DEAN CARRIS; DOS GRIEGOS CORPORATION; DOS GRIEGOS LIMITED, Defendants-Appellees No. 00-2114

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 31, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-98-1508-JP)

Submitted on the briefs: Arthur Duran, Pro Se.

Joseph F. Canepa of Canepa, Vidal, Ahern & Hyatt, Santa Fe, New Mexico, for Defendants-Appellees.

Before BALDOCK, ANDERSON, and HENRY, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Arthur Duran appeals the district court's order granting defendants' motion to dismiss his second amended complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). We exercise jurisdiction pursuant to 28 U.S.C. 1291, and we affirm.¹

I.

Because, in his brief, plaintiff failed to provide this court with a complete recitation of the underlying facts of this case, the following depiction of the factual background is gleaned from the district court's order, Mr. Duran's second amended complaint, and defendants' brief. In 1995, defendants were seeking to build a subdivision on property adjacent to that owned by Mr. Duran. An easement and boundary dispute arose and defendants refused to accept a surveyor's report obtained by Mr. Duran to settle the dispute. When Mr. Duran threatened defendants with a lawsuit, defendant Dean Carris allegedly threatened to tie him up in court disputes for ten years.

At the time this dispute arose, Mr. Duran sat on the county subdivision review committee that was considering defendants' application for approval of the planned subdivision. Mr. Duran alleged that while he was still serving on this committee, Mr. Carris attempted to bribe him by offering to sell him the disputed land at a favorable price in return for his vote and influence with the committee to gain approval for the subdivision. Mr Duran also alleged that Mr. Carris blamed him for the fact that the approval had been delayed and threatened him in order to prevent him from speaking out against the subdivision. Mr. Duran averred that Mr. Carris, wearing dark glasses and smoking a cigar, told him that if they were in Chicago, "he wouldn't be around." R. Vol. 1, tab 39 at 5-6.

In October 1995, Mr. Duran filed suit in New Mexico state court over the property dispute. Defendants counterclaimed, alleging trespass because Mr. Duran was building a rock wall on land allegedly owned by defendants. Defendants ultimately quitclaimed the disputed property to Mr. Duran and dismissed their counterclaim.

In 1997, Mr. Duran filed a second lawsuit in New Mexico state court seeking to reform his deed and to quiet title to the disputed property that was the subject of the 1995 lawsuit. He claimed that this second lawsuit was necessary because defendants had prevented him from litigating these issues in the first lawsuit. Again defendants counterclaimed, alleging slander of title based on Mr. Duran's lis pendens on the property, and for abuse of process. In the summer of 1998, the district court granted defendants' motion for summary judgment, and defendants dismissed their counterclaims. At the time of this appeal, Mr. Duran was in the process of appealing this state court decision.

On December 10, 1998, Mr. Duran filed his first complaint in federal district court. The complaint at issue here, his second amended complaint, was filed on October 8, 1999. In this complaint, Mr. Duran alleged that defendants' actions, by and through Mr. Carris, violated the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), 18 U.S.C. 1961-68, and a number of state laws. The district court granted defendants' motion to dismiss, concluding that Mr. Duran's second amended complaint failed to state a claim under RICO, and declining pendant jurisdiction over Mr. Duran's state law claims. In so doing, the court determined that Mr. Duran failed to establish a pattern of racketeering or that the alleged predicate acts posed a threat of continued criminal activity. The court concluded that the matter was basically "a boundary dispute and a dispute over prescriptive rights between adjoining landowners," which was settled and unlikely to occur again. R. Vol. 1, tab 51 at 8. Mr. Duran appeals.

II.

"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation omitted). The legal sufficiency of a complaint is a question of law; hence, a Rule 12(b)(6) dismissal is reviewed de novo. Id. In reviewing the district court's decision we accept as true all well-pleaded allegations in the complaint and construe them in favor of the nonmoving party. Id. "Granting defendant's motion to dismiss is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Cottrell, Ltd. v. Biotrol Int'l, Inc., 191 F.3d 1248, 1251 (10th Cir. 1999) (quotations omitted).

Section 1962(c) of RICO 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." RICO defines "pattern of racketeering activity" as requiring "at least two acts of racketeering activity" within a ten-year period. Id. 1961(5).

In his complaint, Mr. Duran alleges that defendants engaged in a pattern of racketeering activity including extortion and bribery. In order to satisfy RICO's pattern requirement, Mr. Duran must show two elements--"a relationship between the predicates" and "the threat of continuing activity." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989) (quotation omitted). Interpreting RICO's legislative history, the Supreme Court stated that the pattern element is not satisfied by a showing of relatedness alone. Id. at 240. "[I]t must also be shown that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity." Id.

Mr. Duran has alleged two predicate acts--bribery and extortion. He claims that Carris's offer to sell him the disputed land in exchange for his favorable consideration of defendants' application for approval of the subdivision constituted bribery. He further contends that Mr. Carris committed extortion when he threatened Mr. Duran with bodily injury in order to prevent him from speaking out against the subdivision, when he threatened to tie him up in court for ten years, and when he filed counterclaims in Mr. Duran's two lawsuits.

The district court concluded, and we agree, that, even if the acts Mr. Duran alleged are related as part of a common scheme, he has failed to show that they pose a threat of continuing criminal activity. At best, what Mr. Duran alleged is "actually a closed-ended series of predicate acts constituting a single scheme . . . to accomplish a discrete goal [approval of the subdivision] directed at a finite group of individuals [Mr. Duran] 'with no potential to extend to other persons or entities.'" Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1556 (10th Cir. 1992) (quoting Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir. 1990)). Therefore, "[t]hey do not . . . satisfy the H.J. Inc. test of continuity." Id.

We reject Mr. Duran's argument that, because, in 1995, Mr. Carris threatened to keep him involved in litigation for ten years, the threat of continued criminal activity is met. Mr. Duran initiated all of the litigation surrounding this dispute, and it appears that, except for Mr. Duran's state court appeal of the grant of summary judgment in his last action, the litigation is complete. At most, what Mr. Duran alleged is a property dispute which turned hostile at times. He has not, however, alleged the type of long-term criminal activity envisioned by Congress when it enacted RICO. Therefore, the district court's grant of defendants' motion to dismiss Mr. Duran's RICO claims in his second amended complaint was appropriate.

III.

Lastly, we address defendants' request for sanctions alleging that Mr. Duran's pro se brief was actually "ghost-written" by his former attorney, Harry Snow. We issued a show cause order requesting that Mr. Duran and Mr. Snow show cause as to why this court should not sanction this behavior. We have received and considered the parties' response.

This court is concerned with attorneys who "author[] pleadings and necessarily guide[] the course of the litigation with an unseen hand." Johnson v. Bd. of County Comm'rs, 868 F. Supp. 1226, 1231 (D. Colo. 1994). Fed. R. Civ. P. 11(a) requires that "[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or if the party is not represented by an attorney, shall be signed by the party." Mr. Snow's actions in providing substantial legal assistance to Mr. Duran without entering an appearance in this case not only affords Mr. Duran the benefit of this court's liberal construction of pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but also inappropriately shields Mr. Snow from responsibility and accountability for his actions and counsel.

As stated in a recent law review article:

The duty of candor toward the court mandated by Model Rule 3.3 is particularly significant to ghostwritten pleadings. If neither a ghostwriting attorney nor her pro se litigant client disclose the fact that any pleadings ostensibly filed by a self-represented...