Millie Ogden v. Wells Fargo Bank , 674 F. App'x 650 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 03 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
MILLIE OGDEN, No. 15-55373
Plaintiff-Appellant, D.C. No.
2:14-cv-03579-DMG-SH
v.
WELLS FARGO BANK, NA, MEMORANDUM*
Defendant,
and
GRANT KWOK; YIM FONG KWOK;
HOWARD HSU,
Defendants-Appellees.
MILLIE OGDEN, No. 15-55374
Plaintiff-Appellant, D.C. No.
2:14-cv-03579-DMG-SH
v.
WELLS FARGO BANK, NA,
Defendant-Appellee,
and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
GRANT KWOK; YIM FONG KWOK;
HOWARD HSU,
Defendants.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted December 5, 2016
Pasadena, California
Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.
Millie Ogden appeals from the district court’s dismissal with prejudice of
her Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims against
Grant Kwok, Yim Fong Kwok, Howard Hsu (collectively, “the individual
defendants”), and Wells Fargo Bank, N.A. We have jurisdiction pursuant to 28
U.S.C. § 1291, and affirm.1
To state a RICO claim, a plaintiff must allege, among other things, that an
enterprise’s racketeering activities proximately caused, i.e., “led directly to,” her
injuries. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006). Here,
Ogden’s Second Amended Complaint (“SAC”) does not plausibly allege that any
of the alleged enterprises’ actions proximately caused her injuries. See, e.g.,
1
As the parties are familiar with the facts and procedural history, we
restate them here only as necessary to explain our decision.
2
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To 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.’” (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007))). Rather, the SAC indicates that Cesar Ascarrunz’s actions
directly led to Ogden’s alleged injuries and are therefore a superseding cause
interrupting the “direct relation between the injury asserted and the injurious
conduct alleged.” Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992).
While Ascarrunz may have been a part of one of the alleged enterprises at some
point in time, he clearly was not when he took his actions against Ogden. See, e.g.,
Reves v. Ernst & Young, 507 U.S. 170, 185 (1993) (stating that RICO “liability
depends on showing that the defendants conducted or participated in the conduct of
the ‘enterprise’s affairs,’ not just their own affairs” (quoting 18 U.S.C. § 1962(c)).
As a result, proximate causation is wanting in this case and the district court’s
dismissal of Ogden’s RICO claims against the individual defendants may be
affirmed on that ground. See, e.g., ASARCO, LLC v. Union Pac. R.R. Co., 765
F.3d 999, 1004 (9th Cir. 2014) (noting that a district court may be affirmed “on
any ground supported by the record”).
Additionally, because the SAC fails to state a RICO claim against Grant
Kwok, it also fails to state a RICO claim against his former employer Wells Fargo.
3
See Oki Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768, 773 (9th Cir.
2002) (“Only if [the employee] is liable for [the plaintiff’s] loss would we
additionally consider whether [the employer] was also liable under the doctrine of
respondeat superior.”).
“Although leave to amend should be given freely, a district court may
dismiss without leave where a plaintiff’s proposed amendments would fail to cure
the pleading deficiencies and amendment would be futile.” Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). Ogden has
not identified a factual allegation that could plausibly get her RICO claims over the
proximate-cause hurdle. Therefore, dismissal with prejudice was warranted.
AFFIRMED.
4