James Johnson v. U.S. Bank National Association ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1268n.06
No. 11-3310
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 12, 2012
JAMES JOHNSON, KATHY FRY, and ) DEBORAH S. HUNT, Clerk
ELLA GEARY, on behalf of themselves )
and all others similarly situated, )
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) SOUTHERN DISTRICT OF OHIO
)
U. S. NATIONAL BANK ASSOCIATION )
and NATIONAL CITY BANK, )
)
Defendants-Appellees. )
Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge*.
PER CURIAM. Originally the sole plaintiff in this putative class action, James
Johnson filed a complaint alleging a RICO conspiracy under 18 U.S.C. § 1962(d) by
defendants U. S. National Bank Association and National City Bank. Johnson claimed that
the two banks had maintained accounts for – and conspired with – a commercial customer
that performed “payment processing services” for various telemarketers, with knowledge
that some of those telemarketers were engaged in fraudulent activities, and that he,
Johnson, was a victim of that fraud. The defendants responded with motions to dismiss
under Federal Rule of Civil Procedure 12, and Johnson filed an amended complaint adding
*
The Hon. Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 11-3310
Johnson v. U.S. National Bank Association
Kathy Fry as a plaintiff. The defendants again filed Rule 12 motions, which the district
court granted, finding that the amended complaint failed to state a RICO claim against
either defendant. However, the district court also allowed Johnson and Fry to file a second
amended complaint and, some six weeks later, a third amended complaint, adding Ella
Geary as a plaintiff. The amendments represented an effort by the plaintiffs to address the
deficiencies in their pleadings that had caused the district court to dismiss the complaint.
To no avail. The defendants refiled their motions to dismiss, and the district court
again ordered a dismissal, this time with prejudice. In a careful and well-analyzed
discussion of the pleadings under the applicable standards announced in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
district court noted that the plaintiffs had not alleged that the defendants had themselves
engaged in fraudulent activity, but claimed instead that bank officials “knew about the
operation of th[e] criminal enterprise based on several indicators, or 2012 WL 947139,
No. 10-345 (E.D. Pa. Mar. 21, 2012), or distinguishable on the facts, in the case of
Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783 (6th Cir. 2012).
AFFIRMED.
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