United States District Court, S.D. Florida, Miami Division
OMNIBUS ORDER ON MOTIONS TO DISMISS
Jonathan Goodman UNITED STATES MAGISTRATE JUDGE
case is about allegations, including those asserting
racketeering and racketeering conspiracy, of activities
designed to funnel the proceeds of unlawful activity into a
cat rescue charity. Specifically, the lawsuit alleges a
wide-ranging conspiracy to defraud the estate of Sally
Buehler (“Sally”), who is Plaintiff Carolyn Ellis
(“Plaintiff”)'s mother, and other decedents
and funnel the proceeds into Forgotten Felines, Inc.
(“Forgotten Felines”), a cat rescue charity.
are said to have nine lives,  but this cat-related lawsuit is
already on its fourth life and Plaintiff will be hard-pressed
to breathe a fifth life into some of her claims. But other
claims have survived for now in their fourth legal life,
though they may not live beyond the summary judgment stage.
legal details of this cat-focused alleged drama are outlined
filed a Corrected Second Amended Complaint
(“SAC”) -- the fourth version of the Complaint --
against Defendants Richard E. Warner (“Richard”),
Nancy A. Warner (“Nancy”), Richard Warner, P.A.
(“the Law Firm”), Pamela Steadman
(“Steadman”), Joy Tatgenhorst
(“Tatgenhorst”), and Forgotten Felines (referred
to collectively as “Defendants”). [ECF No. 86].
SAC includes six counts: tortious interference with
inheritance (Count 1); Racketeer Influenced and Corrupt
Organizations Act (“RICO”) (Count 2); conspiracy
to violate RICO (Count 3); Florida Criminal Practices Act
(“CRCPA”) (Count 4); Florida's Deceptive and
Unfair Trade Practices Act (“FDUTPA”) (Count
and constructive trust (Count 6). [ECF No. 86].
Richard, Nancy, and the Law Firm (“Warner
Defendants”) and Steadman, Tatgenhorst, and Forgotten
Felines (“Non-Warner Defendants”) filed motions
to dismiss Plaintiff's SAC, which include both
jurisdictional and sufficiency challenges. [ECF Nos. 93');">93');">93');">93;
101');">101]. Plaintiff filed responses in opposition to
Defendants' motions to dismiss. [ECF Nos. 96; 105].
Warner Defendants and Non-Warner Defendants each filed a
reply [ECF Nos. 100; 106].
review of the motions, responses, replies, and the record,
and for the reasons stated below, the Undersigned
grants in part and denies in part
Defendants' motions to dismiss. I am denying
Defendants' motions as to Counts 1 and 4 (tortious
interference with inheritance and CRCPA) but granting them as
to the remaining counts. The Undersigned dismisses
without prejudice Counts 2 and 3 (RICO and
conspiracy to commit RICO) and dismisses with
prejudice Counts 5 and 6 (FDUTPA and constructive trust).
However, if Plaintiff wishes to assert the two federal RICO
claims in a fifth version of the Complaint, then she will
need to file a Civil RICO Case Statement. Moreover, she will
still need to file a Civil RICO Case Statement in connection
with the existing CRCPA count, even if she does not file a
new version of the lawsuit.
Regarding Sally's Death and the Forged
Plaintiff's mother, died on May 22, 2011. [ECF No. 86,
¶¶ 36, 40]. From June 2006 to May 2011, Sally
worked for the Law Firm as a house sitter for properties
owned by the estates the Law Firm represented. [ECF No. 86,
¶¶ 36, 40]. Richard practices law at the Law Firm.
The Law Firm also employs Nancy (Richard's wife),
Steadman, and Tatgenhorst. [ECF No. 86, ¶ 16]. Plaintiff
alleges that Richard and Nancy established and are directors
of Forgotten Felines, a non-profit cat rescue charity. [ECF
No. 86, ¶ 15].
alleges that in January 2010, or five months before Sally
died, Nancy drafted and forwarded to Sally her estate
documents via email. [ECF No. 86, ¶ 37]. Plaintiff
alleges that these documents included a will, power of
attorney, and a healthcare proxy -- all of which listed
Plaintiff as a beneficiary or grantee of an entrusted power.
[ECF No. 86, ¶ 37].
then claims that at some undisclosed time (after January 2010
but before Sally's death), Nancy forged Sally's
estate documents so that Nancy could have power of attorney
and serve as Sally's healthcare proxy. [ECF No. 86,
¶ 38]. Plaintiff alleges that Nancy used these forged
documents to limit Sally's contact with her children
after she became ill and required hospitalization. [ECF No.
86, ¶¶ 38-39].
6, 2011, Plaintiff further alleges, Nancy emailed Plaintiff
that Sally had changed her mind about her estate plans
shortly before she died. [ECF No. 86, ¶ 43]. On June 9,
2011, Plaintiff alleges, Defendants emailed Plaintiff a copy
of Sally's new will, which was executed on April 30, 2011
(the “will”). [ECF Nos. 86, ¶ 44; 86-3].
This executed will did not include Plaintiff as a beneficiary
or grantee and instead granted 85% of the sales of
Sally's personal property to Forgotten Felines. [ECF No.
86-3]. The remaining 15% of the proceeds were granted to
Sally's son and Plaintiff's brother, Mark M. Buehler
(“Mark”), through $1, 000 increments if Mark
proved to be sober to Sally's personal representative,
and this determination could be revisited every six months.
[ECF No. 86-3]. If Mark was not sober, then the will provided
that Forgotten Felines would receive Mark's
distributions. [ECF No. 86-3].
alleges that Defendants “ultimately, destroyed, donated
or disposed of [Sally's] personal property, including but
not limited to sentimental journals, financial records and
photo-albums, leaving almost nothing to Sally Buehler's
children.” [ECF No. 86, ¶¶ 48-49].
further alleges that she began to doubt Defendants'
honesty in August of 2011 and that despite her continuous
demands to Defendants for information regarding Sally's
assets, Defendants refused to provide the requested
information. [ECF No. 86, ¶ 50].
Acts Alleged in Support of the RICO and CRCPA
alleges that Defendants operate an ongoing,
association-in-fact enterprise to undertake a coordinated
scheme of deceptive and unlawful acts to confiscate property,
unduly influence the estate plans of persons who seek legal
advice, and forge documents, all for the purposes of
self-aggrandizement. [ECF No. 86, ¶ 22].
claims that the documents prepared for Sally by Defendants
were forgeries and part of a larger scheme to steal
Plaintiff's inheritance. Plaintiff claims that (1)
Richard and the Law Firm falsely drafted the will, the power
of attorney, and healthcare proxy documents; (2) Tatgenhorst
falsely witnessed the will; and (3) Steadman falsely
notarized the will. [ECF No. 86, ¶ 54(A)]. Plaintiff
claims that these acts violate 18 U.S.C. § 1956(a)(3)(B)
(“Laundering of Monetary Instruments”) and
Florida Statutes §§ 817 (“Fraudulent
Practices”), 825.103 (“Exploitation of an Elderly
Person or Disabled Adult), 831.01 (“Forgery”),
and 831.02 (“Uttering Forged Instruments”). [ECF
No. 86, ¶ 54(A)].
alleges that Nancy used the forged healthcare proxy to admit
Sally into hospitals, to control outside communication with
Sally before her death and “inform[ed] Plaintiff on
multiple dates in May 2011 via telephone calls[.]” [ECF
No. 86, ¶ 54(B)]. Plaintiff claims that Nancy
“used the forged power of attorney to take the property
of Sally Buehler, by opening Sally's safe deposit box on
or near June 8, 2011 and then informing via telephone calls
Plaintiff on multiple dates thereafter that nothing was in
said box[.]” [ECF No. 86, ¶ 54(C)]. Plaintiff
claims that these acts violate 18 U.S.C. § 1343
(“Wire Fraud”) and Florida Statutes §§
817, 825.103, 831.01, and 831.02. [ECF No. 86, ¶¶
54(B) & (C)].
alleges that on June 14, 2011, Richard, on behalf of the Law
Firm, deposited Sally's forged will with the clerk of
court in Monroe County, Florida and mailed notice of this
filing to Plaintiff's siblings. Plaintiff claims that
this violates 18 U.S.C. § 1341 (“Mail
Fraud”) and Florida Statutes §§ 817, 825.103,
831.01, and 831.02. [ECF No. 86, ¶ 54(D)].
alleges that Forgotten Felines was falsely named the
beneficiary of Sally's will and received her property and
that this violates 18 U.S.C. § 1956(a)(3)(B) and (7)(A)
and Florida Statutes, §§ 817, 825.103, 831.01, and
831.02. [ECF No. 86, ¶ 54(E)].
also alleges that she contacted local law enforcement and the
FBI about Warner Defendants in 2012 and that Warner
Defendants attempted “to intimidate Plaintiff into
submissive acceptance of said losses by threatening through
third persons violence to Plaintiff and by directly
threatening Plaintiff with criminal prosecution and lawsuits
in violation of 18 U.S.C. § 1512(b)(3)
[Retaliation].” [ECF No. 86, ¶¶ 51-53,
54(G)]. Plaintiff alleges that Joseph Ardolino told Plaintiff
over the phone to stop causing problems for Warner Defendants
or “face the consequences.” [ECF No. 86, ¶
Allegations as to Pattern in Support of her RICO and CRCPA
alleges that Defendants' racketeering scheme has been
occurring for more than 10 years and victimized several other
clients in the Key West community, including Carolyn
Wilson-Garrrison, Harold Guppy, Benson Martin, Joan Temple,
Harry B. Decker, John Gergle, and Joseph Ardolino. [ECF No.
86, ¶¶ 29-35]. Plaintiff attaches Carolyn
Wilson-Garrison's and Harold C. Guppy, Jr.'s wills as
exhibits to the SAC. [ECF Nos. 86-1; 86-2].
alleges that Defendants also forged these non-party
victims' estate planning documents to disinherit their
family members. Plaintiff alleges that for these victims,
Defendants included as beneficiaries in the forged probate
documents nonprofits associated with Defendants'
enterprise, specifically Forgotten Felines and Whiskas &
Paws. [ECF No. 86, ¶¶ 29-35].
West Probate Proceeding
14, 2011, the will was deposited in the Monroe County Probate
Court in a Disposition of Personal Property Without
Administration (“Key West Probate Proceeding”).
[ECF No. 93');">93');">93');">93-2]. On June 21, 2011, Nancy filed a waiver to
serve as a personal representative for Sally's estate in
the Key West Probate Proceeding. [ECF No. 93');">93');">93');">93-1].
19, 2012, Plaintiff filed a petition in the Key West Probate
Proceeding and submitted several documents to the Court. The
application filed by Plaintiff shows that she claimed that
Sally's estate consisted of: (1) 3 glass lamps; (2) a
1987 Mazda truck; (3) costume jewelry; (4) $4, 800 in cash
contained in a safety deposit box; and (5) unknown amount(s)
in bank account(s). [ECF No. 93');">93');">93');">93-1]. On May 29, 2013, Mark
also filed a similar petition for disposition of personal
property without administration. [ECF No. 93');">93');">93');">93-2]. The estate
case was closed by Judge Tegan Slaton's Order, which was
Dated: July 12, 2013, and Sally's proceeds from her Safe
Deposit Box held by Capital Bank were distributed to Mark.
[ECF No. 93');">93');">93');">93-2].
to Dismiss Standard
reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must take all well-pleaded facts
in the plaintiff's complaint and all reasonable
inferences drawn from those facts as true. Jackson v.
Okaloosa Cty., Fla., 21 F.3d 1531, 1534 (11th Cir.
1994). “A pleading must contain ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.'” Ashcroft v. Iqbal,
556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).
While detailed factual allegations are not always necessary
to prevent dismissal of a complaint, the allegations must
“‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
complaint must provide “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 678
(explaining that the Rule 8(a)(2) pleading standard
“demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation”). Nor
can a complaint rest on “‘naked assertion[s]'
devoid of ‘further factual enhancement.'“
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)).
Supreme Court has emphasized that “[t]o survive a
motion to dismiss a complaint must contain sufficient
factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678.
(quoting Twombly, 550 U.S. at 570) (emphasis added);
see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d
1283, 1288-90 (11th Cir. 2010). “[C]onclusory
allegations, unwarranted deductions of fact, or legal
conclusions masquerading as facts will not prevent
dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
whether a complaint states a plausible claim for relief is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. Moreover, when
the “well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not show[n]-that the pleader
is entitled to relief.” Id. (internal
quotations omitted) (alteration in original).
the court is required to accept as true all allegations
contained in the complaint, courts “are not bound to
accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555;
Iqbal, 556 U.S. at 678. “Dismissal pursuant to
Rule 12(b)(6) is not appropriate unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.” Magluta v. Samples, 375 F.3d 1269,
1273 (11th Cir. 2004) (internal quotations omitted).
Although, as noted, a court must accept as true a
plaintiff's allegations, a court may dismiss a complaint
on a dispositive issue of law. Marshall Cty. Bd. of Educ.
v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th
of Federal Claims
Federal Question Jurisdiction and Warner Defendants'
alleges that this Court has federal question jurisdiction
over this case, pursuant to 18 U.S.C. § 1331, based on
her RICO claims. Warner Defendants seek to dismiss this case
based on the Rooker-Feldman doctrine. The
Rooker-Feldman doctrine “is a jurisdictional
rule that precludes the lower federal courts from reviewing
state court judgments.” Arthur v. JP Morgan Chase
Bank, N.A., 569 F. App'x 669, 675 (11th Cir. 2014)
(citing Alvarez v. Attorney Gen. for Fla., 679 F.3d
1257, 1262 (11th Cir. 2012)).
circumscribed by the Supreme Court's Exxon Mobil
Corporation. v. Saudi Basic Industries Corporation
decision (“Exxon”), the
Rooker-Feldman doctrine should be “confined to
. . . cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the
federal district court proceedings commenced and inviting
district court review and rejection of those
judgments.” 544 U.S. 280, 285 (2005); see also
Klayman v. Deluca, No. 15-cv-80310, 2016 WL 1045851, at
*6 (S.D. Fla. Mar. 16, 2016). A district court does not lack
jurisdiction under the Rooker- Feldman
doctrine merely “because a party attempts to litigate
in federal court a matter previously litigated in state
court.” Exxon, 544 U.S. at 293');">93');">93');">93.
Defendants rely on an Eleventh Circuit case decided before
the Exxon decision, (Siegel v. LePore, 234
F.3d 1163, 1172 (11th Cir. 2000)) for the proposition that if
“[a] federal claim is inextricably intertwined with a
state court judgment, ” then the federal court is
without jurisdiction over that claim. Cf. Klayman,
2016 WL 1045851, at *6 (juxtaposing post-Exxon
language to that of the Eleventh Circuit's
pre-Exxon language which barred claims under
Rooker-Feldman if they “inextricably
intertwined with a state-court judgment” that would
“effectively nullify the state court judgment” or
“succeed only to the extent that the state court
wrongly decided the issues”) (internal marks and
support of its “inextricably intertwined”
Rooker-Feldman argument, Warner Defendants claim
that any ruling on Plaintiff's SAC would either directly
affirm or contradict Judge Tegan Slaton's Order disposing
of Sally's estate without disposition in the Key West
Probate Proceeding. Warner Defendants claim that the correct
procedure would be for Plaintiff to instead challenge the
state court judgment by reopening the Key West Probate
Proceeding pursuant to Florida law.
Undersigned is not convinced by this argument. First,
Plaintiff seeks monetary damages under her tortious
interference, CRCPA, and RICO claims, which stem from
Defendants' allegedly fraudulent conduct. A court
awarding monetary damages for independent causes of action
would not nullify or reverse Judge Tegan Slaton's Order
distributing Sally's safety deposit funds to Mark.
See Merice v. Wells Fargo Bank, N.A., No.
15-80614-CIV-MARRA, 2016 WL 1170838, at *4 (S.D. Fla. Mar.
25, 2016) (“Awarding monetary damages would not void,
vacate, reverse, or otherwise modify the state-court
judgment, ” thus the court had subject-matter
jurisdiction over such claims) (internal citation omitted).
Plaintiff claims that her injuries are caused by, and seek
damages for, acts perpetrated by Defendants, and not by or
because of a final judgment. See Kohler v. Garlets,
578 F. App'x 862, 864 (11th Cir. 2014) (holding
Rooker-Feldman did not apply because appellant did
not seek appellate review and reversal of the state court
judgment); Arthur, 569 F. App'x at 675-76
(citing Truong v. Bank of Am., N.A., 717 F.3d 377,
383 (5th Cir. 2013) (finding that the Rooker-Feldman
doctrine did not bar a challenge to a foreclosure in part
when “the damages  requested were for injuries caused
by the banks' actions, not injuries arising from the
like the plaintiff in Laudien v. Caudill, 92
F.Supp.3d 614, 621 (E.D. Ky. 2015), Plaintiff “does not
challenge the outcome of the probate proceeding; rather, her
complaint is under [among other claims] the federal RICO
statute[, ]” thus Rooker-Feldman is
inapplicable. (internal citations omitted). “If a
federal plaintiff present[s] [an] independent claim, ”
then it is not a bar to the exercise of federal jurisdiction
that the “same or a related question” was at
issue between the parties in state court. See Exxon,
544 U.S. at 292-93');">93');">93');">93.
certainly some of Plaintiff's allegations
concern the Key West Probate Proceeding, the SAC
does not seek to overturn any state-court judgment, and the
Court is not reviewing the state-court judgment's
fact, Plaintiff's entire SAC is premised on
Defendants' alleged misconduct --forging her mother's
will, disposing of her property, and funneling her
mother's proceeds into Forgotten Felines. Nowhere in the
SAC does Plaintiff claim any injury caused by Judge Tegan
Slaton's Order itself. Thus, Rooker-Feldman does
not bar this Court federal question jurisdiction. Because
this Court has federal question jurisdiction, I will next
review the sufficiency of Plaintiff's federal claims for
RICO and RICO conspiracy (Counts 2 and 3).
RICO (Count II)
18 U.S.C. § 1964(c) provides a cause of action for
“[t]hose private plaintiffs who have been injured in
their business or property by reason of a RICO
violation.” In re Managed Care Litig., 298
F.Supp.2d 1259, 1282 (S.D. Fla. 2003). To prove a RICO claim,
a plaintiff must show: “(1) that the defendant (2)
through the commission of two or more acts (3) constituting a
‘pattern' (4) of ‘racketeering activity'
(5) directly or indirectly invests in, or maintains an
interest in, or participates in (6) an ‘enterprise'
(7) the activities of which affect interstate or foreign
commerce.” McCulloch v. PNC Bank, Inc., 298
F.3d 1217, 1225 (11th Cir. 2002); see also 18 U.S.C.
§§ 1962 (a)-(c). The RICO statute defines
“racketeering activity” as the enumerated crimes
listed in 18 U.S.C. § 1961(1).
Defendants challenge the RICO count based on insufficient
predicate acts and Plaintiff's purported failure to
establish the pattern requirement. Non-Warner Defendants
challenge the RICO count by arguing that Plaintiff failed to
prove gain for each defendant and that Plaintiff failed to
allege facts regarding each Defendant's individual
participation in the fraud. I address each argument in turn,
activity includes in its definition all of the predicate acts
alleged by Plaintiff: mail fraud; wire fraud; laundering of
monetary instruments; retaliation against a person assisting
law enforcement; and fraud and related activity in connection
with identification documents. See 18 U.S.C.
§§ 1961(1); 1341; 1343; 1956(a)(3)(B) & (7)(A);
1513(b)(2) & (e); and 1028. Plaintiff is required to
sufficiently allege at least two of the asserted acts to
state a RICO claim.
“[w]hen [as here] a RICO claim is based on predicate
acts involving fraud, those predicate acts must be pleaded
with particularity, in accordance with [Rule 9(b)].”
Liquidation Comm'n of Banco Intercont'l, S.A. v.
Renta, 530 F.3d 1339, 1355 (11th Cir. 2008) (internal
citations omitted). Allegations of fraud are subject to
heightened pleading standards and “must state with
particularity the circumstances constituting [the]
fraud.” Fed.R.Civ.p. 9(b). A complaint satisfies the
requirements of Twombly and Rule 9(b) when it
plausibly and particularly alleges the defendant's
fraudulent acts. Am. Dental Ass'n, 605 F.3d at
1291 (internal citation omitted).
to satisfy Rule 9(b), a plaintiff must allege “(1) the
precise statements, documents, or misrepresentations made;
(2) the time, place, and person responsible for the
statement; (3) the content and manner in which these
statements misled the Plaintiffs; and (4) what the defendants
gained by the alleged fraud.” Brooks v. Blue Cross
& Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81
(11th Cir. 1997) (internal citation omitted). Rule 9(b)
cannot be satisfied by “lumping” all
“Defendants” together in allegations of fraud.
Id. at 1381.
although Non-Warner Defendants claim that under
Brooks, Plaintiff must allege what each Defendant
gained by the fraud with specificity [ECF No. 101');">101, p. 9],
this is not the case. “Although Brooks does
hold that the plaintiffs must identify the role of
each defendant, it does not state that a plaintiff must
allege what each defendant gained from the
scheme, but what the defendants gained collectively from the
scheme.” Fla. Software Sys., Inc. v. Columbia/HCA
Healthcare Corp., 46 F.Supp.2d 1276, 1283 (M.D. Fla.
1999) (emphasis supplied).
Mail and Wire Fraud (18 U.S.C. §§ 1341
or wire fraud occurs when a person (1) intentionally
participates in a scheme to defraud another of money or
property and (2) uses the mails or wires in furtherance of
that scheme.” Am. Dental Ass'n, 605 F.3d
at 1290-91 (internal quotation and marks omitted); see
also U.S. v. Griffin, 699 F.2d 1102, 1105-06 (11th Cir.
1983) (noting that wire fraud can occur from an interstate
mail fraud is asserted as a predicate act for a civil RICO
claim, a plaintiff must establish not only the statutory
elements of mail fraud, but also that the defendant
‘had a conscious, knowing intent to defraud and that a
reasonably prudent person would have been deceived by [the
defendant's] misrepresentations.'” Bryan v.
Countrywide Home Loans, No. 8:08-CV-794-T-23EAJ, 2008 WL
4790660, at *3 (M.D. Fla. Oct. 27, 2008) (quoting Green
Leaf Nursery v. E.I. DuPont De Nemours & Co., 341
F.3d 1292, 1306 (11th Cir. 2003) (internal quotations
mail fraud, it is not necessary that the mailing
itself contain misrepresentations. It is necessary
only that the mail was used to aid in the carrying out of a
fraudulent scheme. Halpin v. David, No.
4:06CV457-RH/WCS, 2009 WL 1753759, at *10 (N.D. Fla. June 22,
2009). In Schmuck v. United States, 489 U.S. 705,
715 (1989), the Supreme Court of the United States
specifically acknowledged “that ‘innocent'
mailings-ones that contain no false information-may supply
the mailing element'” necessary for the crime of
mail fraud. Id. (citing Parr v. United
States, 363 U.S. 370, 390 (1960)). The Eleventh Circuit
also applies the holding in Schmuck to cases
involving wire fraud. See, e.g., United States v.
Phillips, 647 F.App'x 917, 918 (11th Cir. 2016)
(noting that an email need not include any misrepresentation
nor be essential to the success of the scheme -- the
email needs to be sent only as an essential part of the
scheme for a wire fraud conviction) (citing
Schmuck, 489 U.S. at 713-14).
the mailings and telephone calls alleged by Plaintiff involve
Sally's estate documents and her health, which were made
allegedly in furtherance of Defendants' scheme to forge
Sally's estate documents, dispose of and convert her
property proceeds away from Plaintiff, and funnel such funds
into Forgotten Felines. Based on the holding in
Schmuck, these allegations could be sufficient for
the predicate acts of mail and wire fraud to support a RICO
claim, even if Plaintiff fails to allege that there was
anything fraudulent in the mailings or wires themselves.
However, as explained below, Plaintiff's allegations of
mail and wire fraud fail for other reasons -- they are not
sufficiently pled under the heightened Rule 9(b) standard.
See Brooks, 116 F.3d at 1380-81.
alleges that Nancy committed wire fraud when she
“inform[ed] Plaintiff on multiple dates in May 2011 via
telephone calls” about Sally's health and, through
her forged healthcare proxy, controlled Sally's medical
decisions and admittance to hospitals before she died. [ECF
No. 86, ¶ 54(B)] (emphasis supplied). Plaintiff also
alleges that Nancy “used the forged power of attorney
to take the property of Sally Buehler, by opening Sally's
safety deposit box on or near June 8, 2011 and then informing
[her] via telephone calls  on multiple dates thereafter
that nothing was in said box.” [ECF No. 86, ¶
54(C)] (emphasis supplied).
alleges that Nancy intentionally defrauded her when she
called her in May 2011 regarding her ability to make medical
decisions on her mother's behalf and through other phone
calls at some unspecified time after June 8, 2011,
when she claims that nothing was in her mother's safety
box. But Plaintiff does not allege the time and the place
each statement was made, what Nancy's exact statements
were, and how such statements were made as an essential part
of the scheme.
next alleges that Warner Defendants committed mail fraud by
emailing or mailing Plaintiff, on June 9, 2011, a copy of the
forged will, and on June 14, 2011, mailing Plaintiff notice
that Sally's will was now deposited with the clerk of
court in Monroe County, Florida. [ECF No.
86, ¶¶ 44-45, 54 (D), 85]. Based on these
statements, it is unclear how or when the mailings were sent
to Plaintiff. For example, in paragraph 44 of the SAC,
Plaintiff claims that Nancy emailed Plaintiff a copy of the
forged will but in paragraph 85, she claims that she was
notified of the mail fraud through the U.S. postal service.
It is further unclear how each Warner Defendant participated
in the alleged mail fraud. Plaintiff fails to attach any of
the cited emails/letters to the SAC so it is impossible for
the Court to determine the precise statements made and who
was responsible for each statement.
then generally alleges that all Defendants committed mail and
wire fraud on June 6th and 9th of 2011 by informing her that
Sally had executed a will before she died and then sending
her the allegedly forged will. [ECF No. 86, ¶ 82]. Are
these acts of mail and wire fraud different than the emails
she alleges Nancy sent on June 6th and 9th of 2011 in
paragraphs 43 and 44 of the SAC? The Undersigned cannot tell
Defendants' exact statements, let alone whether the acts
occurred through the mail or wires. In addition,
Plaintiff's allegations for mail and wire fraud are
improperly lumped together for all Defendants, and I
therefore cannot decipher each Defendant's alleged
also alleges that Richard and the Law Firm committed mail and
wire fraud by unlawfully transferring monies received from
its victim-clients but she fails to allege what property was
transferred. [ECF No. 86, ¶ 57]. For Sally specifically,
Plaintiff fails to state any amount of proceeds from
Sally's estate that was transferred from one location to
another location, such as a transfer to a specific bank, into
a specific account on a specific day. For the purposes of an
alleging a RICO claim, Plaintiff's conclusory statement
is insufficient to establish Richard's and the Law
Firm's actions as the predicate acts of mail and wire
alleges that all Defendants claim to have other instruments
permitting them to make decisions on behalf of Sally but have
never produced them to Plaintiff. [ECF No. 86, ¶ 82]. Is
she referring to Nancy's personal representative and
healthcare proxy documents? Is she referring to another
document? Were such statements made over the phone or through
the mail? These questions are unanswered, leaving an unduly
vague assortment of nebulous allegations. As a result, such
sprawling, conclusory allegations do not meet the heightened
standard for pleading mail and wire fraud under Rule 9(b).
Brooks, 116 F.3d at 1381.
Laundering of Monetary Instruments
18 U.S.C. § 1956(a)(3)(B) states that
[w]hoever, with the intent -- to conceal or disguise the
nature, location, source, ownership, or control of property
believed to be the proceeds of specified unlawful activity;
or conducts or attempts to conduct a financial transaction
involving property represented to be the proceeds of
specified unlawful activity, or property used to conduct or
facilitate specified unlawful activity, shall be fined under
this title or imprisoned for not more than 20 years, or both.
18 U.S.C. § 1956(a)(3)(B)(emphasis supplied).
term “specified unlawful activity” is defined in
§ 1956(c)(7) and encompasses a considerable number of
federal crimes, including most of the crimes listed in 18
U.S.C. § 1961(1), an enumeration of the predicate acts
under RICO. Zigman v. Giacobbe, 944 F.Supp. 147,
156-57 (E.D.N.Y. 1996).
laundering allegations underlying a civil RICO claim need not
satisfy the heightened particularity standard in Rule 9(b),
unless the specified unlawful activity alleged is in fact
crimes subject to the heightened particularity standard.
Compare Liquidation Comm'n of Banco Intercont'l,
S.A., 530 F.3d at 1355-56 (holding that “RICO
predicate acts not sounding in fraud need not necessarily be
pleaded with particularity”); with Advanced Optics
Elecs., Inc. v. Robins, 633 F.Supp.2d 1237, 1254 (D.N.M.
2008) (“Moreover, if wire fraud were the underlying
offense [for a money laundering crime], then rule 9(b) would
apply, requiring particularity in the pleadings regarding the
claims that Defendants violated the federal money laundering
statute because (1) Richard and the Law Firm falsely drafted
the will, the power of attorney, and healthcare proxy
document; (2) Tatgenhorst falsely witnessed the will; (3)
Steadman falsely notarized the will; (4) Forgotten Felines
was falsely named the beneficiary of Sally's will and
received her property; (5) Warner Defendants and Tatgenhorst
refused to produce copies or originals of the healthcare
proxy and power of attorney for Sally; and (6) Richard and
the Law Firm unlawfully transferred monies received from the
assets of its victim clients. [ECF No. 86, ¶¶ 54(A)
& (E), 56-57].
Plaintiff claims that Defendants conducted the unlawful
financial transaction of improperly transferring Sally's
proceeds from her estate, forging Sally's estate
documents, and naming Forgotten Felines as the beneficiary of
most problematic to Plaintiff's allegations that money
laundering constitutes a predicate act under RICO is that she
fails to sufficiently allege that any proceeds or property
Defendants took are from a “specified unlawful
activity, ” which is required to sufficiently allege a
crime for money laundering. Zigman, 944 F.Supp. at
157; see also Advanced Optics Elecs., 633 F.Supp.2d
at 1254 (noting that this definition under the money
laundering statute “does not involve all transactions
in criminally derived property” rather ...