Morrell v. Lunceford

• Decision Date: 18 August 2011
• Docket Number: CIVIL ACTION 09-00753-KD-C
• Parties: JUDY MORRELL, et al., Plaintiffs, v. THOMAS DAVID LUNCEFORD, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

JUDY MORRELL, et al., Plaintiffs,

v.THOMAS DAVID LUNCEFORD, et al., Defendants.

CIVIL ACTION 09-00753-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Dated: August 18, 2011

REPORT AND RECOMMENDATION

Plaintiffs, proceeding pro se and in forma pauperis, filed a complaint under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq., as well as 18 U.S.C. §§ 81, 918. Because Plaintiffs are proceeding in forma pauperis under 28 U.S.C. § 1915, the Court may dismiss their action at any time if it finds the complaint is deficient for one of the reasons enumerated in § 1915(e)(2)(B). See Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (applying § 1915(e) to non-prisoner actions). Inasmuch as Plaintiffs' motion to proceed without prepayment of fees was referred to undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(1),¹ it is recommended that this action be dismissed without prejudice pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted.

I. Nature of Proceedings.

On November 16, 2009, Plaintiffs filed a complaint in this Court against Thomas David Lunceford ("Lunceford") and Judith S. Kelly ("Kelly"), alleging diversity jurisdiction under 28U.S.C. § 1332.² (Doc. 1). Plaintiffs allege claims against Defendants Lunceford and Kelly for "Tort[i]ous Interference" in violation of "28 U.S.C. § 1961," "Fraud and Misrepresentation Pursuant to 18 U.S.C.," and "Arson and Attempted Murder Pursuant to 18 U.S.C. Sections 81 and 918." (Doc. 1 at 13, 17, 24). Plaintiffs seek $1,000,000 in compensatory damages, as well as punitive damages. (Id. at 27). On December 21, 2009, and August 19, 2010, Defendants filed answers to Plaintiffs' complaint denying Plaintiffs' allegations and asserting that the complaint fails to state a claim upon which relief could be granted. (Docs. 10, 21).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiffs are proceeding in forma pauperis, the Court is reviewing the complaint under 28 U.S.C. § 1915(e)(2)(B).³ Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, the claim seeks to enforce a right that clearly does not exist, id., or there is an affirmative defense which would defeat the claim, such as the statute of limitations, res judicata, collateral estoppel, or absolute immunity. Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990).

Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. See Mitchell v. Farcass, 112 F.3d 1483, 1491 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level" and must be a "'plain statement' possess[ing] enough heft to 'sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 555, 557 (second brackets in original) (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at ----, 129 S. Ct. at 1949. It is only those well-pleaded factual allegations that a court will consider as true. Id. at ----, 129 S. Ct. at 1950. However, when a successful affirmative defense, such as a statute of limitations, appears on the face of a complaint, dismissal for failure to state a claim is also warranted. Jones v. Bock, 549 U.S. 199, 215 (2007).

When considering a pro se litigant's allegations, a court gives them a liberal construction holding them to a more lenient standard than those of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court, does not have "license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Invs. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds, Iqbal, 556 U.S. ---, 129 S. Ct. 1937 (2009). Furthermore, a pro se litigant "is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure." Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

III. Discussion.

In their complaint, Plaintiffs assert three federal law claims against Defendants Lunceford and Kelly arising out of Plaintiffs' lease of a restaurant property located in Gulf Shores, Alabama, from Defendants. (Doc. 1 at 4-26). Plaintiffs allege, generally, that Defendants sought to defraud them with respect to the terms and conditions of the lease and then attempted to intimidate them into abandoning the lease agreement by setting fire to the restaurant building while Plaintiff Morrell and her husband were asleep inside. (Id.). For each of the reasons set forth below, Plaintiffs' allegations fail to state a claim upon which relief can be granted.

A. Counts One and Two: Claims Asserted Under "28 U.S.C. Section 1961" and "18 U.S.C."

In Count One of the complaint, Plaintiffs seek to impose liability on Defendants pursuant to "28 U.S.C. § 1961" for fraud and deceit related to the lease of the restaurant property, conversion of Plaintiffs' funds to their own use, and "intentionally and improperly interfer[ing]" with Plaintiffs' restaurant business, "causing financial harm" and "destroying Plaintiff's business and lives." (Doc. 1 at 13-17). In Count Two of the complaint, Plaintiffs similarly seek to impose liability on Defendants pursuant to "18 U.S.C." for deceiving and defrauding Plaintiffs with respect to the profitability of the restaurant and the condition of the building and equipment, converting Plaintiffs' funds to their own use, interfering with Plaintiffs' business, and burning down the building while Plaintiff Morrell and her husband were asleep inside. (Doc. 1 at 17-24).

Because Plaintiffs are proceeding pro se and because the statute cited by Plaintiffs, 28 U.S.C. § 1961, governs the award of post-judgment interest in federal court litigation, the Court interprets Plaintiffs' allegations in Counts One and Two as intending to assert claims under 18U.S.C. § 1961,⁴ et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Under the law of this Circuit, civil RICO claims must be pled with greater specificity than a typical civil claim, and they must satisfy the requirements of Federal Rule of Civil Procedure 9(b).⁵ See Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316-17 (11th Cir. 2007). Therefore, "RICO complaints must allege: (1) the precise statements, documents, or misrepresentations made; (2) the time and place of and person responsible for the statement; (3) the content and manner in which the statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud." Id.

As discussed above, Plaintiffs allege that Defendants "concocted a malicious and fraudulent scheme" to convert Plaintiffs' funds to their own use by coercing Plaintiffs into leasing a restaurant property from Defendants based on lies concerning the profitability and condition of the property. After Plaintiffs entered into the lease agreement, Defendants interfered with Plaintiffs' business in an effort to intimidate Plaintiffs into abandoning their lease on the property. The intimidation tactics culminated in Defendant Lunceford setting fire to the restaurant building while Plaintiff Morrell and her husband were asleep upstairs, resulting in "financial ruin and possible loss of their lives." (Doc. 1 at 13-24). Plaintiffs allege that Defendant Lunceford pled guilty to arson in connection with the fire at the restaurant and is now incarcerated. (Id. at 13). Defendant Kelly was a witness for the prosecution against Lunceford and was not charged. (Id.)."The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U.S.C. §§ 1961-1968, provides a private right of action for treble damages to '[a]ny person injured in his business or property by reason of a violation' of the Act's criminal prohibitions." Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 641 (2008) (quoting § 1964(c)). Specifically, § 1964

provides, in part:

(c) 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 and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee . . . .

18 U.S.C. § 1964(c).

"Section 1962 contains RICO's criminal prohibitions." Bridge, 553 U.S. at 647. At issue here is § 1962(c), which makes it "'unlawful for any person employed by or associated with' an enterprise engaged in or affecting 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.'" Id. (quoting 18 U.S.C. § 1962(c)). "The term 'racketeering activity' is defined to include a host of so-called predicate acts, including "any act or threat involving . . . arson, . . . which is chargeable under State law and punishable by imprisonment for more than one year. . . ."⁶ 18 U.S.C. § 1961(1)(A).

To state a claim for a violation of § 1962(c), a plaintiff must show: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). A...