Mali Chagby v. Target Corporation

FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MALI CHAGBY, Individually and on No. 09-55326
Behalf of All Others Similarly Situated,
D.C. No. 2:08-cv-04425-GHK-
Plaintiff - Appellant, PJW
v.
MEMORANDUM *
TARGET CORPORATION, and its
wholly owned subsidiaries TARGET
STORES, TARGET FINANCIAL
SERVICES, TARGET BRANDS
TARGET.COM,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted August 28, 2009 **
San Francisco, California
Before: BEEZER, HALL and T.G. NELSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff-appellant Mali Chagby appeals the district court’s grant of a Fed. R.
Civ. P. 12(b)(6) motion to dismiss in favor of defendant-appellees Target
Corporation and its wholly-owned subsidiaries (collectively “Target”) and the
district court’s dismissal of Chagby’s entire complaint. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim. Edwards v. Marin Park, Inc., 356 F.3d 1058,
1061 (9th Cir. 2004). We may affirm on any ground supported by the record. See
Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1132 (9th Cir. 2002). We review a
district court’s dismissal of a complaint for abuse of discretion. Hearns v. San
Bernardino Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008). We affirm.
The facts of the case are known to the parties. We do not repeat them below.
I
The district court properly dismissed Chagby’s 18 U.S.C. § 1962(c) RICO
claim for failing to sufficiently allege an enterprise, the requisite predicate acts and
that those acts caused injury to Chagby’s business or property. Chagby’s
arguments that the district court erred in its analysis are unpersuasive, and so we
affirm.
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A
The district court held that Chagby had insufficiently alleged an enterprise
between Target and its advertising agency because Chagby did not properly plead a
“common purpose” and an “ongoing organization,” as required in this Circuit. See
Odom v. Microsoft Corp., 486 F.3d 541, 552 (9th Cir. 2007) (en banc). Chagby’s
pleadings on both elements are conclusory and merely identify the correct legal
labels, rather than alleging facts to support liability.
Chagby’s alternative theory that an enterprise existed between Target
Corporation and its wholly-owned subsidiaries fails to meet the distinctiveness
requirement of civil RICO claims. See, e.g., Living Designs Inc. v. E.I. Dupont de
Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005).
We refuse to embrace Chagby’s assertion that we should infer an enterprise
from the alleged predicate acts. The failure to include “+CRV” language in
advertising circulars does not create an obvious inference of fraud, much less an
inference that an enterprise was established to propagate that fraud.
B
The district court concluded that Chagby failed to allege the predicate acts of
mail and wire fraud with sufficient particularity. See Fed. R. Civ. P. 9(b). The
allegations in Chagby’s complaint are cursory and fail to identify the responsible
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parties, the exact nature of their involvement and how the mail and wires were
used. The mere inclusion of “false” advertisements in the complaint does not
render Target able to “prepare an adequate answer from the allegations,” the main
purpose of Fed. R. Civ. P. 9(b). Odom, 486 F.3d at 553 (internal quotations
omitted).
C
The district court concluded that Chagby failed to allege that Target’s
actions had caused injury to Chagby’s business or property. The $.96 fee that
Chagby paid was properly charged by Target under California law. It does not
amount to a cognizable injury for the purposes of a RICO claim because Chagby
paid the correct amount and was not overcharged.
II
The district court correctly dismissed Chagby’s derivative RICO claims.
Chagby’s other RICO claims included conspiracy, respondeat superior and aiding
and abetting claims. Chagby’s § 1962(d) conspiracy claim was properly dismissed
because the designs of the alleged conspiracy would not have violated RICO. See
Howard v. Am. Online, Inc., 208 F.3d 741, 751 (9th Cir. 2000). Her respondeat
superior and aiding and abetting claims were also properly dismissed because those
claims cannot stand in the absence of a properly pleaded RICO claim.
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III
Chagby’s entire complaint was dismissed for violating the Fed. R. Civ. P.
8(a) requirement of a “short and plain statement.” Chagby waived this issue on
appeal by failing to contest the dismissal in her opening brief and by giving it only
cursory treatment in her reply brief. See Barnett v. U.S. Air, Inc., 228 F.3d 1105,
1111 n.1 (9th Cir. 2000) (en banc) (noting that the Ninth Circuit “consistently
regard[s] issues raised for the first time in reply briefs as waived”), rev’d on other
grounds, 535 U.S. 391 (2002).
AFFIRMED.
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