Angelica Limcaco v. Steve Wynn

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELICA C. LIMCACO, an individual, No. 21-56285
Plaintiff-Appellant, D.C. No.
2:20-cv-11372-RSWL-MAA
v.
STEVE WYNN, an individual; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted December 6, 2022
Pasadena, California
Before: R. NELSON, BADE, and FORREST, Circuit Judges.
Appellant Angelica Limcaco appeals the dismissal of her civil claim brought
under the Racketeer Influenced and Corrupt Organizations Act (RICO). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Limcaco asserts that she was wrongfully terminated from Wynn Las Vegas
(WLV) resorts in 2005, after reporting the alleged rape and impregnation of a former
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
coworker by Appellee Steve Wynn (Wynn). She alleges that she was threatened into
silence and therefore did not come forward with her claims until September 2018
when she sued in federal district court in Nevada (the Nevada Matter) under Title
VII of the Civil Rights Act. The district court dismissed the claim as time barred,
and we affirmed. Limcaco v. Wynn, 809 F. App’x 465, 467 (9th Cir. 2020), cert.
denied sub nom. Limcaco v. Wynn Las Vegas, LLC, 141 S. Ct. 1688 (2021).
Limcaco then sued in federal district court in California under RICO. The
core of Limcaco’s claim is that Appellees illegally influenced the appointment of
WLV’s counsel, Elayna Youchah, as a magistrate judge in the District of Nevada
where the Nevada Matter was pending.1 She contends that Appellees were part of a
RICO conspiracy to protect Wynn casino gaming licenses and that losing the Nevada
Matter would threaten those licenses. The district court again dismissed. We again
affirm.
1. The district court properly determined that it lacked personal jurisdiction
over Buckley. “[M]ere injury to a forum resident is not a sufficient connection to
the forum.” Walden v. Fiore, 571 U.S. 277, 290 (2014). “The proper question is
not where the plaintiff experienced a particular injury or effect but whether the
defendant’s conduct connects him to the forum in a meaningful way.” Id. Limcaco
1
The additional details surrounding the alleged conspiracy are numerous, attenuated
at best, and irrelevant to the disposition of this case.
2
fails to allege that Buckley directed any conduct at California or that her claims arise
out of that purposeful direction. See Mavrix Photo, Inc. v. Brand Techs., Inc., 647
F.3d 1218, 1227–28 (9th Cir. 2011).
The district court also properly determined that nationwide service of process
under 18 U.S.C. § 1965(b) was inappropriate. Nationwide service under § 1965(b)
requires a court to have personal jurisdiction over at least one of the participants, no
other district to be able to assert personal jurisdiction over all the alleged co-
conspirators, and facts showing the existence of a multidistrict conspiracy
encompassing defendants. See Butcher’s Union Loc. No. 498 v. SDC Inv., Inc., 788
F.2d 535, 539 (9th Cir. 1986). Limcaco’s allegations—that ML Strategies would
not be subject to jurisdiction in Nevada because it is a Delaware corporation licensed
in Massachusetts and engaged in illegal conduct there, and likewise that
Massachusetts lacks jurisdiction over Buckley because her actions occurred in
Nevada and were aimed at Limcaco in California—are merely conclusory.
Limcaco’s bare assertions that “there is no indication” that Nevada has jurisdiction
over ML Strategies, or that Massachusetts had jurisdiction over Buckley, do not
establish that § 1965(b) applies, particularly when the First Amended Complaint’s
(FAC) primary theory is that all the purported bad actors were engaged in a scheme
aimed at assisting a Nevada entity in securing gaming licenses in Massachusetts.
2. Limcaco similarly fails to satisfy statutory standing under RICO because
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she fails to allege an injury to business or property through a RICO violation. See
Just Film, Inc. v. Buono, 847 F.3d 1108, 1118–19 (9th Cir. 2017). Limcaco asserts
injuries under theories of honest services fraud, loss of chance to pursue her claim
(the Nevada Matter), lost damages from the Nevada Matter, and legal fees.
The district court did not err in concluding that “deprivation of honest services
alone does not constitute concrete financial loss for purposes of pleading RICO’s
statutory standing requirement.” Additionally, Limcaco’s assertion that she suffered
injury from the lost ability to pursue her claim is not concrete nor financial because
she litigated the Nevada Matter before the district court and this court on appeal.
Limcaco, 809 F. App’x at 467. Limcaco’s lost damages claim similarly fails because
it presupposes success on the merits, which were never addressed. Lastly, Limcaco
cites no case in which this court has ever recognized the incurment of legal fees as a
cognizable injury under RICO. Cf. Thomas v. Baca, 308 F. App’x 87, 88 (9th Cir.
2009) (“This court has not recognized the incurment of legal fees as an injury
cognizable under RICO, and we decline to do so here.”). Even if legal fees could be
a cognizable interest as “deprivation[s] of money,” Limcaco’s assertions still fail to
be sufficiently financial or concrete. Compare Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979) (“When a commercial enterprise suffers a loss of money it suffers
an injury in both its ‘business’ and its ‘property.’”) with Newcal Indus., Inc. v. Ikon
Off. Sol., 513 F.3d 1038, 1055 (9th Cir. 2008) (noting plaintiff’s burden to assert a
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cognizable injury).
Next, Limcaco cannot establish any injury “by reason of” a RICO violation
because she cannot show that Appellees’ conduct was the but-for or proximate cause
of any injury. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9 (2010). As the
district court noted, Limcaco’s complicated theory of causation turns on a
“cascading chain of events” spanning multiple years and involving several third
parties. Limcaco does not adequately allege that, but-for the Appellees’ unlawful
conduct in elevating Youchah, her injury would not have occurred because the
district court dismissed her claim as time barred, and we affirmed that dismissal on
appeal. Limcaco, 809 F. App’x at 467; see also Richards v. County of San
Bernardino, 39 F.4th 562, 572 (9th Cir. 2022). Similarly, Limcaco fails to
sufficiently allege proximate causation because her allegations are conditioned on
several independent events2 and do not show that “the alleged violation led directly
to the plaintiff’s injuries.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461
(2006).
2
These events include conditional payments allegedly connected to the Nevada
Matter (but to which Appellees had committed in 2017, before the Nevada Matter
was filed), Buckley’s service in 2018 on the multi-member panel recommending
finalists for a magistrate judge position, the district court’s selection of Youchah for
that position, and the dismissal of the Nevada Matter on timeliness grounds, which
coincided with a previously-scheduled donation from Wynn resorts to a non-profit
affiliated with Buckley.
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3. The district court did not abuse its discretion in denying Limcaco’s requests
for judicial notice.3 See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998
(9th Cir. 2018). The district court found that Limcaco’s first, untimely requests were
filed after the close of briefing and that most of the documents at issue were
discoverable and could have been included in her oppositions to the motion to
dismiss. And the court’s conclusion that Limcaco’s request could be construed as
an improper sur-reply or an attempt to bolster her FAC was not an abuse of
discretion. See Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002)
(explaining that the “district court has considerable latitude in managing the parties'
motion practice and enforcing local rules”). The district court also did not abuse its
discretion in denying the motion to take judicial notice of these documents, which it
did not rely upon, and which were not pertinent or necessary to its rulings on the
motions to dismiss. See, e.g., Great Basin Mine Watch v. Hankins, 456 F.3d 955,
976 (9th Cir. 2006).
The court also did not abuse its discretion in declining to notice particular
3
On appeal, Limcaco has filed three additional motions for judication notice of
documents that allegedly support RICO standing and show that “Appellees exert
improper influence over public officials in the ‘ongoing’ manner in which they ‘do
business.’” ECF Nos. 31, 58, and 71. We deny these motions because “a plaintiff
may not cure her failure to present the trial court with facts sufficient to establish the
validity of her claim by requesting that this court take judicial notice of such facts.”
Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958, 966 (9th Cir. 2011) (quoting
Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir. 2006) (en
banc)).
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facts within Limcaco’s second requests for judicial notice. One of those requests
contained 209 pages, and Limcaco did not identify any particular facts within these
documents. Thus, the court could not identify any judicially noticeable facts.
Khoja, 899 F.3d at 999 (“A court must also consider—and identify—which fact or
facts it is noticing . . .”).
4. The district court did not abuse its discretion in declining to grant further
leave to amend the FAC because amendment would be futile. See Kendall v. Visa
U.S.A., Inc., 518 F.3d 1042, 1051–52 (9th Cir. 2008). Limcaco filed the FAC after
Appellees filed their motion to dismiss; thus, Limcaco had notice of Appellees’
arguments. Nonetheless, Limcaco’s allegations in the FAC, and her arguments in
opposition to dismissal and in her requests for judicial notice, failed to cure the
deficiencies in her assertions of jurisdiction and in her RICO claims. Cafasso v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (noting that the
court’s discretion to deny leave to amend is “particularly broad where plaintiff has
previously amended the complaint.” (citation and quotations omitted)).
AFFIRMED.
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