Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellis v. Warner

United States District Court, S.D. Florida, Miami Division

February 16, 2017

RICHARD E. WARNER, et al., Defendants.



         This 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.

         Cats are said to have nine lives, [1] 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.

         The legal details of this cat-focused alleged drama are outlined below:

         Plaintiff 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].

         Plaintiff's 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 5);[2] and constructive trust (Count 6). [ECF No. 86].

         Defendants 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].

         Upon 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.

         Allegations Regarding Sally's Death and the Forged Documents

         Sally, 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].

         Plaintiff 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].

         Plaintiff 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].

         On June 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].

         Plaintiff 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].

         Plaintiff 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].

         Predicate Acts Alleged in Support of the RICO and CRCPA Claims

         Plaintiff 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].

         Plaintiff 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)].

         Plaintiff 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)].

         Plaintiff 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)].

         Plaintiff 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)].

         Plaintiff 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, ¶ 53].

         Plaintiff's Allegations as to Pattern in Support of her RICO and CRCPA Claims

         Plaintiff 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].

         Plaintiff 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].

         Key West Probate Proceeding

         On June 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].[3] 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].

         On June 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].

         Motion to Dismiss Standard

         In 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)).

         A 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)).

         The 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).

         Determining 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).

         While 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 Cir. 1993');">93');">93');">93).

         Analysis of Federal Claims

         A. Federal Question Jurisdiction and Warner Defendants' Rooker-Feldman Challenge

         Plaintiff 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.[4] 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)).

         As 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.

         Warner 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 citations omitted).

         In 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.

         The 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).

         Second, 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 foreclosure judgment”)).

         Essentially, 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.

         While 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 validity.

         In 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).

         B. RICO (Count II)

         Title 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).

         Warner 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.[5] I address each argument in turn, below.[6]

         i. Predicate Acts

         Racketeering 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.

         But “[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).

         Essentially, 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.

         However, 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).

         a. Mail and Wire Fraud (18 U.S.C. §§ 1341 & 1343)

         “Mail 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 telephone conversation).

         “Where 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 omitted).

         For 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).

         Here, 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.

         Plaintiff 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).

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 involvement.

         Plaintiff 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 fraud.

         Plaintiff 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.

         b. Laundering of Monetary Instruments

         Title 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).

         The 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).

         Money 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 fraud.”).

         Plaintiff 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].

         Essentially, 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 Sally's will.

         What is 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.