AD-X International, Inc. v. Kolbjornsen ( 2004 )


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  •                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 27 2004
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    AD-X INTERNATIONAL, INC.;
    ALL STATES MEDIA, INC.; ALL
    STATES LEGAL REFERRAL
    SERVICES, INC.; ALL STATES
    CAPITAL CORPORATION;                Nos. 03-1192, 03-1219, 04-1033
    LARRY MACPHALE,                       (D.C. No. 99-D-332 (CBS))
    (D. Colo.)
    Plaintiffs-Appellants-
    Cross-Appellees,
    v.
    KENNETH E. KOLBJORNSEN;
    HANNELORE S. KOLBJORNSEN,
    Defendants-Appellees-
    Cross-Appellants,
    and
    MICHAEL M. NOYES; THE LAW
    OFFICES OF MICHAEL M. NOYES;
    DAVID FOGEL; FOGEL &
    BLUESTEIN; DONALD
    MCNURLIN; MCNURLIN &
    ASSOCIATES; MICHAEL
    MERRION; THE OFFICES OF
    MICHAEL MERRION, CPA; DOUG
    ENGLER; DOUGLAS ENGLER,
    P.C.; ANDREW SNYDER; THE
    LAW FIRM OF ANDREW SNYDER;
    NATIONAL LAWYERS REFERRAL
    NETWORK, INC.; LAWYERS
    AMERICA, INC.,
    Defendants-Appellees.
    ORDER AND JUDGMENT           *
    Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
    HENRY , Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    these appeals.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
    therefore ordered submitted without oral argument.
    Plaintiffs filed this action for bankruptcy fraud, misrepresentation, and
    racketeering against Kenneth and Hannelore Kolbjornsen, their now-defunct
    corporations, and several legal and financial professionals who allegedly assisted
    the Kolbjornsens in orchestrating and then concealing a pre-petition transfer of
    assets intended to deprive the creditor plaintiffs of any recovery in a Chapter 13
    proceeding filed by Mr. Kolbjornsen. The district court dismissed the complaint
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    -2-
    against the professional defendants, but plaintiffs went to trial and obtained
    a substantial money judgment against the Kolbjornsens. Plaintiffs now appeal
    (in No. 03-1192) the dismissal of their claim against the professional defendants
    under the Racketeering Influenced and Corrupt Organizations Act (RICO),
    
    18 U.S.C. §§ 1961
    , 1962, 1964. The Kolbjornsens cross-appeal (in No. 03-1219)
    the judgment entered on the jury verdict against them. We affirm both rulings.      1
    Plaintiffs’ Appeal
    The district court granted the professional defendants’ motion to dismiss
    the RICO claim, concluding that the pertinent allegations lacked “the level of
    particularity required to state a claim for [] relief.” Aplt. App., Doc. 8, at 144.
    Predicate acts of fraud for a RICO claim must satisfy the heightened pleading
    standard of Fed. R. Civ. P. 9(b).    Cayman Exploration Corp. v. United Gas Pipe
    Line Co. , 
    873 F.2d 1357
    , 1362 (10 th Cir. 1989); accord Lum v. Bank of Am. , 
    361 F.3d 217
    , 220 (3d Cir. 2004). On de novo review,         Robbins v. Wilkie , 
    300 F.3d 1208
    , 1209 (10 th Cir. 2002), we agree that the broad-brushed and conclusory
    allegations involving the professional defendants were deficient under Rule 9.
    1
    The third appeal in the caption, No. 04-1033, was opened when plaintiffs
    filed a “Certificate of Compliance and Amendment to Notice of Appeal” to notify
    this court of the disposition of a post-trial motion filed after the other appeals
    were commenced. Plaintiffs have now moved to dismiss No. 04-1033, stating that
    they had mistakenly added the reference to an amended notice and “did not intend
    [to] . . . initiate a new appeal.” We grant the motion.
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    Indeed, at the hearing on the motion to dismiss, plaintiffs’ counsel repeatedly
    stated that the complaint was framed (inappropriately) in reference to the general
    notice pleading standards of Fed. R. Civ. P. 8, and now on appeal plaintiffs make
    virtually no effort to demonstrate how the pertinent allegations are sufficient
    under the proper legal standard applied by the district court. Instead, they focus
    on the district court’s denial of their informal request to amend their complaint to
    correct its deficiencies. This line of attack, however, is foreclosed by circuit
    precedent.
    Plaintiffs did not file a motion for leave to amend their complaint, much
    less detail the additional factual allegations they could provide to shore up their
    RICO claim against the professional defendants. Rather, at the hearing on the
    motion to dismiss, plaintiffs’ counsel merely made a generic “offer that if
    additional allegations to supplement those [made] will satisfy the Court, we’d
    request the opportunity to do so.” Aplt. App., Doc. 7, at 118. In the district
    court’s view, it was “disingenuous” to make this belated provisional offer: “If
    [plaintiffs] really wanted to amend, the time to seek to amend would have been
    before today’s hearing so that the Court would have had something else to look at
    [to] figure out if [plaintiffs] have more to say than what [they have] already said.”
    
    Id.
     The district court’s handling of the matter was appropriate under   Calderon v.
    -4-
    Kansas Department of Social & Rehabilitation Services           , 
    181 F.3d 1180
    , 1186-87
    (10 th Cir. 1999).   2
    Plaintiffs focus much of their briefing on a motion they filed for relief
    under Fed. R. Civ. P. 60(b) after they appealed from the entry of final judgment
    incorporating the dismissal of the professional defendants and the subsequent
    verdict against the Kolbjornsens. The denial of the Rule 60(b) motion is beyond
    the scope of this appeal, which is limited to orders in existence when the notice of
    appeal was filed.        See, e.g. , EEOC v. Wal-Mart Stores, Inc.   , 
    187 F.3d 1241
    , 1250
    (10 th Cir. 1999); Breeden v. ABF Freight Sys., Inc.        , 
    115 F.3d 749
    , 752 (10 th Cir.
    1997); Nolan v. United States Dep’t of Justice        , 
    973 F.2d 843
    , 846 (10 th Cir.
    1992). In any event, our conclusion that the district court proceeded correctly on
    the motion to dismiss would undercut plaintiffs’ claim that the court abused its
    discretion in denying their Rule 60(b) motion challenging that disposition.
    Kolbjornsens’ Appeal
    The Kolbjornsens appeal from the entry of judgment on the jury’s award of
    compensatory and punitive damages against them on plaintiffs’ RICO claims.
    2
    Plaintiffs now assert they had a right to amend their pleadings, with or
    without leave of court, because some of the defendants had not yet answered the
    complaint. Even if that were true, they “failed to     exercise their right to amend
    prior to the trial court’s decision” and thereafter they “could have amended their
    complaint only by leave of court.”     Glenn v. First Nat’l Bank in Grand Junction   ,
    
    868 F.2d 368
    , 370 (10 th Cir. 1989) (emphasis altered).
    -5-
    They contend that the district court erred in instructing the jury regarding the
    “enterprise” and “person” elements of a RICO claim.           See 
    18 U.S.C. § 1962
    (c)
    (making it unlawful “for any person” who is “associated with any enterprise” to
    conduct its affairs through a pattern of racketeering activity). Specifically, they
    argue that Kenneth Kolbjornsen’s bankruptcy estate does not constitute a RICO
    enterprise and that, in any event, the estate lacks the requisite distinctness from
    the person (debtor Kenneth Kolbjornsen) who allegedly used it as a vehicle for
    racketeering activity. Neither of these contentions has merit.
    In addition to individuals associated in fact,      any legal entity may qualify as
    a RICO enterprise.    
    Id.
     § 1961(4). Indeed, because the enterprise must be
    separate from the pattern of racketeering itself,       United States v. Turkette , 
    452 U.S. 576
    , 583 (1981), and distinct from the person engaging in it,         Cedric Kushner
    Promotions, Ltd. v. King , 
    533 U.S. 158
    , 161-62 (2001), RICO requirements are
    most easily satisfied when the enterprise is a formal legal entity.       Bennett v. Berg ,
    
    685 F.2d 1053
    , 1060 (8 th Cir. 1982), adopted on reh’g en banc , 
    710 F.2d 1361
    ,
    1363-64 (8th Cir. 1983);    see also United States v. Blinder , 
    10 F.3d 1468
    , 1474
    (9th Cir. 1993). A bankruptcy estate is clearly such an entity. The only published
    decision to address the matter had no difficulty concluding that a bankruptcy
    estate qualified as a RICO enterprise.      Handeen v. Lemaire , 
    112 F.3d 1339
    , 1353
    -6-
    (8th Cir. 1997); see also Gunther v. Dinger , 
    547 F. Supp. 25
    , 27 (S.D.N.Y. 1982)
    (same conclusion as to probate estate). We agree.
    Basically the same reasons undercut the Kolbjornsens’ argument that the
    requisite distinction between “enterprise” and “person” was lacking here. They
    insist that a bankruptcy estate and debtor are legally indistinguishable. On the
    contrary, “the debtor and the bankruptcy estate are distinct entities in an
    individual’s bankruptcy proceeding.”       Katz v. Comm’r , 
    335 F.3d 1121
    , 1127
    (10 th Cir. 2003). Indeed, the creation of the estate as a formal entity in its own
    right is the immediate consequence of filing a bankruptcy case. 
    11 U.S.C. § 541
    .
    Though speaking about a corporation rather than a bankruptcy estate, the Supreme
    Court’s analysis of the RICO distinctiveness requirement in      Cedric Kushner
    Promotions is instructive: “The corporate owner/employee, a natural person, is
    distinct from the corporation itself, a legally different entity with different rights
    and responsibilities due to its different legal status. And we can find nothing in
    the statute that requires more ‘separatedness’ than that.” 
    533 U.S. at 163
    . As the
    facts here reflect, a debtor may “victimize” an estate or use it as a “vehicle” for
    unlawful activity directed at others just as an owner/employee may exploit his
    relationship with a corporation.     See 
    id. at 164
    . To paraphrase the Court, we
    conclude that “the statute requires nothing more than the formal legal distinction
    between [debtor] and [estate] that is present here.”    
    Id. at 165
    .
    -7-
    Appeal No. 04-1033 is DISMISSED on plaintiffs-appellants’ own motion;
    the district court’s order dismissing the claims against the professional defendants
    is AFFIRMED in appeal No. 03-1192; and the money judgment entered on the
    jury verdict in favor of the plaintiffs is AFFIRMED in appeal No. 03-1219.
    Entered for the Court
    Stephanie K. Seymour
    Circuit Judge
    -8-