United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
to the District Judge's Order of Reference,
Doc. 9, this cause is before the undersigned for a
recommendation on Defendant's Motion to Dismiss.
Doc. 7. For the reasons that follow, the Motion
to Dismiss should be GRANTED.
filed his complaint in May 2017, alleging that Defendant, his
former employer, violated the civil Racketeer Influenced and
Corrupt Organizations Act (“RICO”) during the
course of his employment. Doc. 3 at 3, 5-6.
Specifically, Plaintiff contends that he initially worked for
Defendant in a contract position as a video-encoder. Doc.
3 at 5. He was hired as a full-time employee as part of
Defendant's networking group, which necessitated a move
from Dallas to Austin. Doc. 3 at 5. In his rambling
and disjointed complaint, Plaintiff alleges that during and
after his employment, (1) Defendant's hiring manager and
“his coterie” had him purchase a home that was
not in a “prime location” and sent someone to
break into the house; (2) his manager, Michael Raftelis,
caused “shoulder-instability” in Plaintiff's
child in early 2012, and Raftelis and his coterie used
electronic means to lead physicians to not correctly diagnose
the child's scoliosis; (3) Raftelis watched all of
Plaintiff's and his families' activities and spread
rumors regarding Plaintiff's skills; (4) Raftelis used
another person to “deny access to home- reference lab,
where 3rd party devices were tested”; and (5)
Defendant's hiring manager is “unable to verify
[Plaintiff's] employment, ” and Plaintiff thus
assumes he “was framed after [he] resigned.”
Doc. 3 at 5. Plaintiff seeks over $11 million in
damages, health care coverage for his family for life, and
the redaction of false statements from the Federal Register
about Defendant's settlement of an anti-trust suit filed
by the Department of Justice in relation to Defendant's
acquisition of DirecTV. Doc. 3 at 6. Defendant now
moves to dismiss the case pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Doc. 7.
plaintiff fails to state a claim for relief under Rule
12(b)(6) when the complaint does not contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A plaintiff's complaint should
“contain either direct allegations on every material
point necessary to sustain a recovery . . . or contain
allegations from which an inference fairly may be drawn that
evidence on these material points will be introduced at
trial.” Campbell v. City of San Antonio, 43
F.3d 973, 975 (5th Cir. 1995) (quotation omitted).
RICO claims under 18 U.S.C. § 1962 must allege the
existence of “(1) a person who engages in (2) a pattern
of racketeering activity, (3) connected to the acquisition,
establishment, conduct, or control of an enterprise.”
Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007)
(quotation omitted). To avoid dismissal for failure to state
a claim, a civil RICO plaintiff must plead specific facts,
not mere conclusory allegations, which establish the
existence of an enterprise. Elliott v. Foufas, 867
F.2d 877, 881 (5th Cir. 1989). The enterprise must be an
entity “separate and apart from the pattern of activity
in which it engages.” Id. (citation omitted).
In other words, the “person” and the
“enterprise” at issue must be distinct.
See Cedric Kushner Promotions, Ltd. v.
King, 533 U.S. 158, 162 (2001). Accordingly,
the “enterprise is not a pattern of racketeering
activity, but must exist separate and apart from the pattern
of racketeering activity in which it engages.”
Whelan v. Winchester Prod. Co., 319 F.3d 225, 229
(5th Cir. 2003) (citation omitted). Employees who, in the
course of their employment, associate to commit RICO
predicate acts do not form a distinct RICO
“enterprise.” Id. A “pattern of
racketeering activity” consists of two or more
predicate criminal acts that are (1) related and (2) amount
to or pose a threat of continued criminal activity.
Abraham, 480 F.3d at 355. The predicate acts can be
either state or federal crimes. St. Germain v.
Howard, 556 F.3d 261, 263 (5th Cir. 2009) (per curiam).
establish injury, the plaintiff must allege financial harm to
his business or property. See In re Taxable Mun.
Bond Sec. Litig., 51 F.3d 518, 522-23 (5th Cir. 1995).
This must be “a conclusive financial loss” of the
plaintiff's own money. Id. at 523. To
sufficiently allege causation in relation to his damages, the
plaintiff must show that a RICO predicate offense was the
but-for and proximate cause of his claimed injuries. Hemi
Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 9
(2010). Finally, apart from the substantive elements of a
RICO claim, a plaintiff must bring such a claim within four
years of the date he discovers the injury giving rise to his
claim. Rotella v. Wood, 528 U.S. 549, 553-54 (2000).
argues, inter alia, that Plaintiff's complaint
fails to state a claim under Rule 12(b)(6) because, as an
initial matter, Plaintiff has not sufficiently alleged either
injury or the requisite causation necessary to maintain
standing to bring a RICO claim. Doc. 8 at 11-13.
Defendant further argues that some of the events Plaintiff
alleges in his complaint occurred outside RICO's
four-year statute of limitations, namely his being hired to a
full-time position by Defendant in 2010 and the alleged
injuries to Plaintiff's child in 2012. Doc. 8 at
13. Finally, Defendant contends that Plaintiff failed to
adequately allege a distinct RICO participant and enterprise
or a pattern of racketeering activity. Doc. 8 at 13-14.
responds that, since leaving his job with Defendant, (1) he
has been unable to obtain employment or gain admission to a
Ph.D. program; (2) his college transcript has been tampered
with; and (3) only a company such as Defendant could
“create so much havoc” in his life. Doc. 11
at 1. He argues that he cannot identify all persons who
“colluded” against him because Defendant has not
given him his personnel file. Doc. 11 at 2.
Additionally, Plaintiff contends that he did not receive a
copy of Defendant's motion, which he alleges creates
circumstantial evidence of mail delay or theft. Doc. 11
complaint does not plead specific facts to state a civil RICO
claim. His complaint stems from allegations against
Defendant's employees who he contends committed various
acts against him, but such acts do not form a distinct RICO
“enterprise.” Whelan, 319 F.3d at
229. Additionally, Plaintiff does not adequately
specify two or more criminal acts that are (1) related and
(2) amount to or pose a threat of continued criminal
activity. Abraham, 480 F.3d at 355. In short,
Plaintiff has pled only conclusory allegations, which cannot
establish the existence of an enterprise. Elliott,
867 F.2d at 881.
has Plaintiff pled sufficient facts to establish that he
suffered any concrete, conclusive injury to his business or
property as a result of Defendant's actions. In re
Taxable Mun. Bond Sec. Litig, 51 F.3d at 523.
Indeed, Plaintiff acknowledges in his complaint that he
“le[ft] the company on [his] own” when another
employee told him that he “should look for a more
engineering-oriented firm where [he could] grow [his] career
better.” Doc. 3 at 5. Thus, he cannot plead
that a RICO predicate offense was the but-for and proximate
cause of any of his injuries. Hemi Grp., 559 U.S. at