Case: 17-20176      Document: 00514368125         Page: 1    Date Filed: 03/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-20176
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          March 1, 2018
                                                                           Lyle W. Cayce
DAVID VAN VELZER,                                                               Clerk


                                                 Plaintiff-Appellant

v.

AMEGY BANK; STEPHEN H. DONCARLOS; FRED HILTON,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2753


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       David Van Velzer appeals the dismissal of his civil action by the district
court for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Van Velzer asserted federal claims under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., and the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Van Velzer
also asserted several claims arising under Texas law. His complaint alleges


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-20176

that Amegy filed suit against him based on an alleged $25,000 credit card debt
for which he was not responsible. According to Van Velzer, the application for
the credit card was forged, and Van Velzer informed Amegy of this, but Amegy
continued to prosecute the lawsuit nevertheless. Amegy eventually dismissed
the case, but thereafter sent “a form 1099 for $25,000 to the IRS, for
cancellation of debt,” and it still reports the debt on Van Velzer’s credit report.
      Claims may properly be dismissed if the plaintiff fails to allege facts that,
if accepted as true, would entitle him to relief. FED. R. CIV. P. 12(b)(6). We
review a district court’s Rule 12(b)(6) dismissal “de novo, accepting all well-
pleaded facts as true and viewing those facts in the light most favorable to the
plaintiffs.”    Gonzalez v. Kay, 

, 603 (5th Cir. 2009) (citation
omitted).      However, we need “not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc.,

, 696 (5th Cir. 2005). A plaintiff must offer “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atlantic Corp. v. Twombly, 

, 555 (2007).
      Because the predicate act for Van Velzer’s RICO claim was mail fraud,
he also needed to meet the heightened pleading standard of Federal Rule of
Civil Procedure 9(b) as to that claim, which required him to “specify the
statements contended to be fraudulent, identify the speaker, state when and
where the statements were made, and explain why the statements were
fraudulent.” Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp.,

, 207 (5th Cir. 2009) (citation omitted).
      In this court, other than making conclusional assertions that his
complaint is sufficient, Van Velzer has failed to address either the applicability
of Rule 9(b) or the district court’s conclusion that he did not make sufficient
factual allegations. Van Velzer has thus waived the issues essential to his



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                                  No. 17-20176

appeal. See American States Ins. Co. v. Bailey, 

, 372 (5th Cir.
1998) (failure to provide legal or factual analysis of issue results in its waiver).
      In any event, the dismissal was proper because Van Velzer’s complaint
failed to allege facts that, if true, would have supported his bare legal claims
under the RICO statute and the FDCPA. Van Velzer’s complaint, like his
appeal brief, was comprised of “conclusory allegations, unwarranted factual
inferences, [and] legal conclusions.” 

. Accordingly,
Van Velzer’s federal claims deserved to be dismissed.            See FED. R. CIV.
P. 12(b)(6); Varela v. Gonzales, 

, 712 (5th Cir. 2014).
      After the district court dismissed Van Velzer’s federal claims, it declined
to maintain supplemental jurisdiction over Van Velzer’s state claims. See 28
U.S.C. § 1367.    The district court did not err in declining to exercise its
supplemental jurisdiction once it dismissed Van Velzer’s federal claims over
which it had original jurisdiction. See § 1367(c)(3); Brookshire Bros. Holding,
Inc. v. Dayco Prods., Inc., 

, 602 (5th Cir. 2009).
      Finally, we hold that Van Velzer’s argument that the dismissal of his
complaint under Rule 12(b)(6) violated his constitutional right to a jury trial
under the Seventh Amendment lacks merit. See Haase v. Countrywide Home
Loans, Inc., 

, 631 n.5 (5th Cir. 2014).
      The judgment is AFFIRMED.




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