Alonzo Austin v. Global Connection ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 17, 2008
No. 08-12347 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00042-CV
ALONZO AUSTIN,
Plaintiff-Appellant,
versus
GLOBAL CONNECTION,
SAM ABDALLAH,
CEO/CFO,
RACHELLE COPELAND,
GLOBAL CONNECTION, INC. OF AMERICA,
GLOBAL CONNECTION INC., OF ALABAMA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(December 17, 2008)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Alonzo Austin, pro se, appeals the district court’s denial of his motion to
strike Global Connection’s motion for summary judgment, and its grant of
summary judgment to Global Connection in his pro se suit alleging fraud, wire and
mail fraud under 18 U.S.C. §§ 1341, 1343, and violations under the Racketeer
Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962. On appeal,
Austin first argues that the district court abused its discretion in denying his motion
to strike because Global Connection untimely filed its motion for summary
judgment. Second, Austin argues that the district court erred in granting summary
judgment to Global Connection, a telephone service provider, because Global
Connection failed to produce any evidence relating to Austin’s account with
Global Connection. He argues that he never received the 100 free long distance
minutes that Global Connection agreed to provide him in exchange for directly
charging Austin’s credit card for his telephone service. He also challenges the
district court’s failure to compel Global Connection to timely produce an exhibit
and witness list for trial, or to order a pretrial conference.1
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Austin’s amended complaint also named as defendants Sam Abdallah and Rachelle
Copeland, the CEO and CFO of Global Connection, respectively. Austin does not challenge on
appeal, however, their dismissal as parties, and thus has abandoned that issue. Horsley v. Feldt,
304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Additionally, although Austin’s two motions for
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I. Austin’s Motion to Strike
Prior to filing its untimely motion for summary judgment, Global
Connection, through counsel, advised the court that it was experiencing technical
difficulties and thus requested a brief filing extension. In denying Austin’s motion
to strike, the magistrate judge explained that Global Connection had contacted the
court regarding these difficulties, and that the court had granted Global Connection
permission to file its motion on February 1, 2008. Accordingly, the district court
did not abuse its discretion by allowing Global Connection to file its motion for
summary judgment one day late, and subsequently denying Austin’s motion to
strike.
II. Summary Judgment
We review a district court’s grant or denial of summary judgment de novo.
Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). We consider
only the evidence that was before the district court, and view all such evidence in
the light most favorable to the nonmoving party. Id. Summary judgment is
appropriate when there exists no genuine issue of material fact, and the evidence
compels judgment as a matter of law in favor of the moving party. Id. at 836-37;
Fed.R.Civ.P. 56(c). A party opposing summary judgment may not rest upon mere
summary judgment were denied, he does not raise those issues on appeal, and they likewise are
abandoned. Id.3
allegations or denials of pleadings, but must set forth specific facts showing a
genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).
a. Count I - Fraud
Under Alabama law, the elements of fraud are: “(1) a misrepresentation,
(2) of a material existing fact, (3) on which the plaintiff relied, and (4) which
proximately caused injury or damage to the plaintiff.” Wright v. AmSouth
Bancorporation, 320 F.3d 1198, 1204 (11th Cir. 2003) (quotation omitted). To
prevail on a promissory fraud claim based upon a promise to act or not to act in the
future, “the plaintiff must show that at the time of the alleged misrepresentation
(that is, the promise), the defendant intended not to do the act or acts promised, but
intended to deceive the plaintiff.” Id. (quotation omitted).
The district court did not err in granting summary judgment in favor of
Global Connection on Austin’s fraud claim because the evidence submitted,
including the records relating to Austin’s account, demonstrated that Austin
received the 100 free minutes of long distance service that he claimed. Thus, there
exists no genuine issue of material fact, and the district court did not err in granting
summary judgment in favor of Global Connection on Austin’s fraud claim.
Holloman, 443 F.3d at 836-37.
b. Counts II and III - Wire and Mail Fraud
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The federal wire and mail fraud statutes are criminal statutes which do not
provide for civil remedies. See 18 U.S.C. § 1341 (mail fraud), 18 U.S.C. § 1343(wire fraud); Johnson Enter. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d
1290, 1316-17 (11th Cir. 1998) (recognizing §§ 1341 and 1343 as criminal
statutes). Furthermore, the Supreme Court has explained that private citizens lack
“a judicially cognizable interest in the prosecution or nonprosecution of another.”
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 767 n.13, 125 S.Ct. 2796,
2809, 162 L.Ed.2d 658 (2005). Thus, Austin cannot bring civil claims under the
criminal federal wire and mail fraud statutes. See 18 U.S.C. §§ 1341, 1343.
Accordingly, the district court properly granted summary judgment in Global
Connection’s favor. Holloman, 443 F.3d at 836-37.
c. RICO Violations
The RICO act provides for civil liability. 18 U.S.C. § 1962(a)-(d). “The
four elements of civil RICO liability are (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.” Langford, 231 F.3d at 1311.
“[T]he Supreme Court has observed that two isolated acts of racketeering activity
do not constitute a pattern.” Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386,
1397 (11th Cir. 1994) (quotations omitted) (citing Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 496 n.14, 105 S.Ct. 3275, 3285 n.14, 87 L.Ed.2d 346 (1985)).
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Rather, a pattern is produced through the combination of “continuity plus
relationship,” which requires that the predicate acts have, in part, a similar purpose,
result, or victim, and that they occurred over a substantial period of time. Id.“Predicate acts extending over a few weeks or months and threatening no future
criminal conduct do not satisfy [the continuity] requirement.” Id. (citing H.J. Inc.
v. Northwestern Bell Tel. Co., 492 U.S. 229, 241-42, 109 S.Ct. 2893, 2902, 106
L.Ed.2d 195 (1989)).
The record evidence, viewed in the light most favorable to Austin, fails to
establish that Global Connection committed either wire or mail fraud, the alleged
underlying racketeering activity, which is a requisite element of a RICO claim.
Langford, 231 F.3d at 1311. Moreover, the alleged incidents of wire and mail
fraud do not constitute a pattern of racketeering activity for the purposes of the
RICO Act because there were only two acts complained of, the acts did not occur
over a substantial amount of time, and Austin did not show a threat of future
occurrences. Cox, 17 F.3d at 1397. Accordingly, the evidence does not establish
the requisite elements of a RICO claim, and Global Connection was thus entitled to
summary judgment. Holloman, 443 F.3d at 836-37.
III. Scheduling Order
District courts have the power to manage their own dockets, and we review a
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district court’s exercise of that power only for abuse of discretion. Young, 358
F.3d at 863-64. The district court did not abuse its discretion in failing to compel
Global Connection to produce its exhibit and witness list, or in failing to order that
the scheduled pretrial conference be held. Regarding the exhibit list, Austin did
not immediately object to the magistrate’s failure to compel the list, but rather filed
a motion for summary judgment, the outcome of which could potentially make the
issue of Global Connection’s exhibit list moot. As to the pretrial conference
scheduled for February 2008, both Austin and Global Connection had filed their
motions for summary judgment by February 1, 2008, thus potentially making the
issue of a pretrial conference moot. Additionally, Austin raised no objection to
either of these issues until after the magistrate had already recommended granting
summary judgment in favor of Global Connection, at which point these issues were
essentially moot. Accordingly, the district court did not abuse its discretion in
rejecting Austin’s arguments and not requiring Global Connection to comply with
the scheduling order.
AFFIRMED.
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