Gutierrez v. Hiatt

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 30, 2009
No. 07-20606
Summary Calendar Charles R. Fulbruge III
Clerk
NORA SOTO GUTIERREZ
Plaintiff-Appellant
v.
SUSAN EISNER HIATT; SYLVIA R GARCIA
Defendants-Appellees
__________
No. 07-20902
__________
NORA SOTO GUTIERREZ
Plaintiff-Appellant
v.
PATRICE BARRON
Defendant-Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-171
No. 07-20606
c/w No. 07-20902
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Nora Soto Gutierrez appeals the dismissal for failure to state a claim,
pursuant to Federal Rule of Civil Procedure 12(b)(6), of her lawsuit under the
Racketeer Influenced and Corrupt Organizations Act (RICO). We review the
district court’s dismissal de novo, accepting all of Gutierrez’s allegations as true.
See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); Gen.
Elec. Capital Corp. v. Posey, 415 F.3d 391, 395 (5th Cir. 2005). Finding no error,
we AFFIRM.
Gutierrez asserts that dismissal of her claims under Rule 12(b)(6) was
error because she adequately pleaded a RICO violation. She further contends
that the district court’s dismissal orders are insufficient and deprived her of due
process because they do not provide reasons for the granting of the defendants’
motions. Gutierrez seeks remand for “a proper ruling” with a written opinion.
Gutierrez’s argument that the district court’s dismissal orders in the
instant case were improper for lack of findings and conclusions is without merit.
See Fed. R. Civ. P. 52(a)(3). Moreover, in stating that the defendants’ Rule
12(b)(6) motions were “meritorious and well-taken,” the district court accepted
the grounds for dismissal advanced by the defendants and thus implicitly found
that Gutierrez had failed to state a claim under RICO and that her claims were
alternatively barred by res judicata. Such a statement provides this court with
sufficient reasons to conduct effective review. Cf. McIncrow v. Harris County,
878 F.2d 835, 836 (5th Cir. 1989).
Applying de novo review and accepting all of Gutierrez’s allegations as
true, the district court did not err in its ruling. Gutierrez’s complaints did not
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 07-20606
c/w No. 07-20902
allege any RICO “enterprise.” See In re Burzynski, 989 F.2d 733, 743 (5th Cir.
1993). Moreover, the complaints did not allege the requisite “pattern of
racketeering activity” because Gutierrez did not plead two or more related acts
of racketeering that either constituted or threatened continued criminal activity.
See id. at 742. Thus, she failed to state a claim for a RICO violation. See id.Moreover, the claims Gutierrez raised were complaints against the
defendants for negligence and/or fraud arising out of her original wrongful-
termination lawsuit. As such, the claims were barred by her prior unsuccessful
state-court malpractice lawsuit against the same defendants. See Allen v.
McCurry, 449 U.S. 90, 94 (1980).
Accordingly, the district court’s dismissal of Gutierrez’s claims under Rule
12(b)(6) was proper. Her allegation that the July 3, 2007, dismissal orders were
not properly signed by the district court judge due to the proximity of the July
4 holiday is wholly speculative and finds no support in the record.
Gutierrez additionally argues that the district court erred in denying her
Federal Rule of Civil Procedure 60(b)(1) motion because she demonstrated
excusable neglect. She contends that the court’s scheduling order provided her
until July 21, 2007, to respond to the motions to dismiss and that the entry of a
dismissal order prior to that date was improper. Contrary to Gutierrez’s
assertions, the district court did not abuse its discretion in denying Gutierrez’s
Rule 60(b)(1) motion because her misunderstanding of the applicable time limits
does not give rise to the requisite excusable neglect. See Edward H. Bohlin Co.
v. Banning Co., 6 F.3d 350, 353, 357 (5th Cir. 1993).
AFFIRMED.
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