USCA1 Opinion
____________________
Nos. 96-1145
97-1037
MALEK AHMED,
Plaintiff, Appellant,
v.
JON ROSENBLATT, CAROL ROSENBLATT, CHARLES GREENWOOD,
IRWIN LOFT, MORTGAGE GUARANTEE TITLE COMPANY, AND
WILLIAM LARSON,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
____________________
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
Kevin McBurney for appellant.
Melissa E. Darigan for appellee Mortgage Guarantee and Title
Company.
Christopher M. Orton with whom Francis X. Flaherty was on
brief for appellee Charles Greenwood.
____________________
July 14, 1997
___________________
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.
I. FACTS
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
1 The
original
named
defendants in this case were: Charles
Greenwood ("Greenwood"), an attorney who represented Ahmed in the
transactions at issue; Irwin Loft ("Loft"), a potential purchaser
and agent for and principal of Capital Center Associates Six
("CCAS"), a corporate entity and co-defendant; William T. Larson
("Larson"),
another
potential purchaser; Mortgage Guarantee & Title
Company
("MGT"), and Jon and Carol Rosenblatt ("the Rosenblatts").
Ahmed's claim against the Rosenblatts was dismissed separately
earlier.
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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.
2 We therefore consider the amended complaint only in the
context of the Rule 60(b) motion.
3 This contract contained an extension of the time for
performance to August 1, 1989. Ahmed contends that his signature
on this extension was forged.
4 Some
time
after this meeting, Loft retained Greenwood to
represent him in an unrelated eviction proceeding.
-3-
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
5 On
July
12,
1989, Loft gave Ahmed an additional $30,000,
bringing the total amount he had paid to $85,000.
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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. S
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
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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. S 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
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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 (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
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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
defendant: before granting a motion to dismiss, a district court
should make a second determination as to whether further
discovery is warranted and, if so, the plaintiff should be
provided with the opportunity to amend the complaint after the
completion of this discovery. See id. Ahmed contends that the
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magistrate judge and the district court judge erred in not
conducting such a second determination. We disagree.
We must stress again that the application of the
second determination is neither automatic, nor of right, for
Feinstein
Becher
every plaintiff. See , 942 F.2d at 44. Furthermore,
not every use of the mails or wires in furtherance of an unlawful
scheme to deprive another of property constitutes wire or mail
fraud. See McEvoy, 904 F.2d at 791. Ahmed failed to supply
specific allegations which would indicate that critical
information was in the sole possession of the defendants, and
hence that further discovery or the opportunity to amend his
complaint was warranted.6 Ahmed therefore was not entitled to a
Becher second determination.
C. Pro se leniency.
Finally, Ahmed contends that he should have been accorded
greater leniency due to his pro se status. Our judicial system
zealously guards the attempts of pro se litigants on their own
behalf. We are required to construe liberally a pro se complaint
and may affirm its dismissal only if a plaintiff cannot prove any
set of facts entitling him or her to relief. See Rockwell v.
Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994). However, pro
se status does not insulate a party from complying with
6 Much
of
Ahmed's
"support" for his contentions of fraud in
his original complaint consists of conclusory statements without
any
supporting
data.
His brief on appeal suffers from a different,
though related, ailment, in that it attempts to draw causal
relationships through positing rhetorical questions to which it
then
supplies
self-serving answers, again with little or no support
from the documents in the record.
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procedural and substantive law. See
United States Dep't. of Commerce
1994). The policy behind affording pro se plaintiffs liberal
interpretation is that if they present sufficient facts, the
court may intuit the correct cause of action, even if it was
Eagle Eye Fishing Corp. v.
, 20 F.3d 503, 506 (1st Cir.
imperfectly pled. This is distinct from the case at hand, in
which the formal elements of the claim were stated without the
requisite supporting facts.
Ahmed's pro se status was clearly recognized by both the
magistrate judge and district court: the magistrate judge noted
in his report and recommendation that Ahmed was proceeding pro
se, while Judge Pettine's order specifically recognized that
Ahmed was pro se and that his complaint was therefore to be
construed liberally.7 However, Judge Pettine also stated that
even under a liberal interpretation of his complaint, Ahmed
failed to adequately allege the elements of a RICO violation. We
agree.
III. The Second Appeal: Rule 60(b).
We now turn to Ahmed's claim that the district court erred
in dismissing his claim for relief under Rule 60(b). We begin
with a short synopsis of the procedural history of this second
part of the appeal.
7 We
also
note
that
Ahmed
was briefly represented by Arthur
Chatfield, III, who filed a supplemental objection to Magistrate
Judge Lovegreen's report and recommendation on October 10, 1995,
prior to Judge Pettine's Order adopting the same. Therefore,
although
we
have
assessed Ahmed's claim under the liberal standards
appropriate to a pro se plaintiff, it appears he was not entirely
bereft of benefits of counsel during this process.
-10-
Ahmed's original appellate brief was filed with this court
on June 7, 1996. Before defendants had filed their briefs, Ahmed
filed a motion to amend his complaint and filed an amended
complaint with the circuit. We denied his motion, and ordered
that any request to amend be presented to the district court.
Ahmed therefore filed a motion to reopen, reconsider, and rehear
in the district court under Rule 60(b). At the district court's
request, we remanded to permit the 60(b) motion to go forward,
whilst retaining jurisdiction over the original appeal and
staying proceedings on it.
The defendants filed timely objections, and a hearing was
held by the magistrate judge, who denied plaintiff's motion on
the ground that he had failed to meet Rule 60(b)'s criteria. He
specifically found that the amended complaint, though longer and
more detailed than that originally filed by Ahmed, was in
substance the same. He also found that exceptional circumstances
were not present in this case, and that, due to the amount of
time that had passed since judgment was rendered, it would be
prejudicial to the defendants to assume the burden of defending
the case at that point. Ahmed objected to this order; Judge
Pettine affirmed it. Ahmed then appealed that denial to this
circuit, where it was consolidated with his earlier appeal.
Our review of the denial of a motion under Rule 60(b) is for
abuse of discretion. See Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir.
1995). Our review is limited to the denial of the 60(b) motion,
not the merits of the underlying judgment. See id. We will find
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an abuse of discretion only when we are left with a definite and
firm conviction that the lower court committed a clear error of
judgment in the conclusion it reached when weighing all the
relevant factors. See United States v. Boch Oldsmobile, Inc.,
909 F.2d 657, 660 (1st Cir. 1990). Such is not the case here.
Ahmed raises claims under both Rule 60(b)(1) and 60(b)(6)
and we discuss these separately.
A. Rule 60(b)(1).
Ahmed first contends that the lower courts committed a
"mistake" under Rule 60(b)(1) in not according him a second
determination under Becher prior to dismissing his complaint
under Rule 12(b)(6).8 As discussed above, Ahmed was not entitled
to a Becher second determination because he failed to allege
specific facts which would require the district court to initiate
additional proceedings. However, even if this were not the case,
Ahmed's claim on this point would still fail: in this circuit,
wrongly deciding a point of law is not a "mistake" as we have
defined that term under Rule 60(b)(1). See Hoult, 57 F.3d at 5;
see also Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.
1971).
8 Rule 60(b)(1) permits a court to relieve a party from a
final judgment, order or proceeding for "mistake, inadvertence,
surprise, or excusable neglect...."
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B. Rule 60(b)(6).
Ahmed next claims that he is entitled to relief under Rule
Rule 60(b)(6) motions should be
extraordinary relief exist. See Valley Citizens for a Safe
Environment v. Aldridge, 969 F.2d 1315, 1317 (1st Cir. 1992).
Under the Federal Rules, district courts have broad discretion to
determine whether such circumstances exist. See id.
Additionally, a 60(b)(6) movant must make a suitable showing that
the movant has a meritorious claim. Cotto
60(b)(6), the catchall clause.9
granted only where exceptional circumstances justifying
See v. United States,
993 F.2d 274, 280 (1st Cir. 1993).
While we have no doubt that Ahmed has experienced a
disquieting set of reversals and possible breaches of faith with
various parties, he simply has been unable to demonstrate a
colorable claim under RICO. There has been no showing, beyond
counsel's hyperbolic assertions, that extraordinary circumstances
justifying such exceptional relief exist here. In this
situation, we are therefore loath to disturb the well reasoned
decision of the lower court which had before it all the documents
9 Rule
60(b)(6)
provides
that the court may relieve a party
from a final judgment, order, or proceeding for "any other reason
justifying relief from the operation of the judgment."
Since
Rule
60(b)(6) is designed as a catchall, a motion under
it is appropriate only when none of the first five sections
pertain, and section (6) may not be used as means to circumvent
those five preceding sections. See Simon v. Navon, No. 96-2314,
slip op. at 10 (1st Cir. June 2, 1997). Ahmed is therefore
analytically
inconsistent
in seeking relief under both sections (1)
and
(6),
for
if relief is hypothetically appropriate under section
(1), then it should not be sought under section (6) as well.
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we have now reviewed, as well as the parties and their counsel,
and as such was in a superior position to make a determination on
this issue.
As the Supreme Court noted in v. United States,
340 U.S. 193, 211-12 (1950), in affirming the denial of a 60(b)
motion, "[t]here must be an end to litigation someday...." That
day has arrived for this particular case. Both judgments of the
district court are affirmed.10
MGT maintains in its brief on appeal that Ahmed's RIC
Ackermann
10 O
claim is barred by the four year statute of limitations for such
actions; since we have affirmed the district court's dismissal of
this
claim
on the ground that Ahmed did not sufficiently plead the
RICO
claim,
we do not address the statute of limitations argument.
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