Title Kehr Packages, Inc. v. Fidelcor, Inc.
Date 1991
By
Subject Other\Concurring & Dissenting
Contents
Page 1
61 of 64 DOCUMENTS
KEHR PACKAGES, INC., CHARLES and EMILY McMURTRIE, and JAMES McMURTRIE, Appellants v. FIDELCOR, INC., FIDELITY BANK, THOMAS DONNELLY, NEIL COHEN, JAMES NOON, and MARIO GIANNINI, ESQ.
No. 90-1396
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
926 F.2d 1406; 1991 U.S. App. LEXIS 3529
November 6, 1990, Argued
March 6, 1991, Filed
PRIOR HISTORY: **1 On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil Action No. 89-06219.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiffs appealed from a judgment of the United States District Court for the Eastern District of Pennsylvania that dismissed their complaint alleging that defendants committed several violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961 et seq.
OVERVIEW: Defendant bank provided financing for a leveraged buyout of plaintiff company. Part of the loan proceeds was to be used as working capital for plain- tiff company. When plaintiff individuals discovered the amount of working capital was insufficient, defendants agreed to loan additional funds. However, they had no intention of doing so. As a result, plaintiff company went bankrupt. Plaintiffs sued defendants for several violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961 et seq. The district court dis- missed plaintiffs' suit, and they appealed. The court af- firmed. Plaintiffs alleged violations of § 1962 (a)-(d). To state a claim under § 1962(a), plaintiffs had to allege an injury specifically from the use or investment of income in the named enterprise. Here the injury alleged was the product of defendant officers' fraudulent activities, not the use or investment of income in any named enterprise. Therefore, § 1962(a) could not be a basis for liability. Under § 1962(b), plaintiffs had to allege a specific nexus between control of a named enterprise and the alleged racketeering. No such nexus was alleged here.
OUTCOME: Judgment dismissing plaintiffs' complaint alleging several violations of the Racketeer Influenced and Corrupt Organizations Act was affirmed. Plaintiffs
failed to state a cause of action for any of their claims because they did not allege their injury arose from the use or investment of income in a named enterprise and did not allege a specific nexus between control of the named enterprise and the alleged racketeering.
LexisNexis(R) Headnotes
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Motions to Dismiss
HN1 A district court can grant a Fed. R. Civ. P. 12 (b)(1) motion to dismiss for lack of subject matter jurisdiction based on the legal insufficiency of a claim. But dismissal under Fed. R. Civ. P. 12(b)(6) is proper only when the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly in- substantial and frivolous.
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Motions to Dismiss
HN2 Ordinarily, a court must assume jurisdiction over a case before deciding legal issues on the merits. A Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim is not subject to the same limitations. The claim need not be wholly insubstantial to be dismissed. The threshold to withstand a motion to dismiss under Fed. R. Civ. P.
12(b)(1) is thus lower than that required to withstand a
Fed. R. Civ. P 12(b)(6) motion.
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Motions to Dismiss
HN3 When subject matter jurisdiction is challenged un- der Fed. R. Civ. P 12(b)(1), the plaintiff must bear the
926 F.2d 1406, *; 1991 U.S. App. LEXIS 3529, **1
Page 2
burden of persuasion.
Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action
HN4 Under Fed. R. Civ. P. 12(b)(6) the defendant has the burden of showing no claim has been stated.
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Civil Procedure > Pleading & Practice > Pleadings > Amended Pleadings
HN5 Denials of leave to amend a complaint under Fed. R. Civ. P. 15(a) are reviewed for abuse of discretion. Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN6 The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.S. § 1964(c), authorizes civil suits by any person injured in his business or property by reason of a violation ofRICO, 18
U.S.C.S. § 1962.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN7 See 18 U.S.C.S. §1962(a)-(d).
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN8 Under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1962(a), a plaintiff must allege injury specifically from the use or investment of income in the named enterprise.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN9 Under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1962(b), a plaintiff must allege a specific nexus between control of a named enter- prise and the alleged racketeering activity.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN10 While an entity can be both an enterprise and a defendant for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.S. §
1962(a), such a dual role is impermissible in actions based onRICO, 18 U.S.C.S. § 1962(c).
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN11 A "pattern of racketeering activity" requires com-
mission of at least two predicate offenses on a specified list. The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961(1) and (5). But a pattern requires more than commission of the requisite number of predi- cate acts.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN12 A plaintiff must show that the racketeering acts are related and that they amount to or pose a threat of continued criminal activity.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN13 Allegations cannot constitute a Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C.S. §
1961 et seq., "pattern" unless they satisfy both the "relat- edness" and "continuity" tests. Both tests depend heavily on the specific facts of each case.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN14 There is a broad multi-factor test for relatedness, which focuses on whether the alleged predicate acts are interrelated by distinguishing characteristics and are not isolated events.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN15 Related predicate acts in furtherance of a single scheme can constitute a pattern if the acts constitute or present the threat of long-term continuous criminal activ- ity.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN16 Proof of multiple schemes is highly relevant to the question of continuity, but is not a prerequisite for a find- ing of a Racketeer Influenced and Corrupt Organizations Act pattern.
Criminal Law & Procedure > Criminal Offenses
> Racketeering > Racketeer Influenced & Corrupt
Organizations
HN17 Not every single scheme comprising two or more predicate acts will constitute a pattern. Continuity refers either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. A short-term scheme threatening no future criminal activity will not suffice.
Criminal Law & Procedure > Criminal Offenses >
926 F.2d 1406, *; 1991 U.S. App. LEXIS 3529, **1
Page 3
Fraud > Mail Fraud
HN18 The mail fraud statute prohibits any person from knowingly causing the use of the mails for the purpose of executing any scheme or artifice to defraud. 18 U.S.C.S.
§ 1341. The actual violation is the mailing, although the mailing must relate to the underlying fraudulent scheme. Moreover, each mailing that is incident to an essential part of the scheme constitutes a new violation.
Criminal Law & Procedure > Criminal Offenses > Fraud > Mail Fraud
HN19 The mailing need not contain any misrepresenta- tions. Rather, 'innocent' mailings -- ones that contain no false information -- may supply the mailing element. Criminal Law & Procedure > Criminal Offenses > Fraud > Mail Fraud
HN20 Under the mail fraud statute, a scheme or arti- fice to defraud need not be fraudulent on its face, but must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension. The scheme need not involve affirmative misrepresentation, but the statu- tory term "defraud" usually signifies the deprivation of something of value by trick, deceit, chicane or overreach- ing.
Criminal Law & Procedure > Criminal Offenses > Fraud > Mail Fraud
HN21 In determining the duration of a scheme involving mail fraud, the relevant criminal conduct is the defendant's deceptive or fraudulent activity, rather than otherwise in- nocent mailings that may continue for a long period of time.
COUNSEL:
Joel H. Slomsky, Esq. (Argued), DiGiacomo & Slomsky, Philadelphia, Pennsylvania, Attorney, for Appellants.
Walter Weir, Jr., Esq. (Argued), Patterson & Weir, Philadelphia, Pennsylvania, Attorney, for Appellees.
JUDGES:
Delores K. Sloviter, Chief Judge, * Scirica and Alito, Circuit Judges. Alito, Circuit Judge, concurring in part and dissenting in part.
* The Honorable Dolores K. Sloviter became
Chief Judge of the Third Circuit on February 1,
1991. OPINIONBY: SCIRICA
OPINION:
*1408 OPINION OF THE COURT SCIRICA, Circuit Judge.
This case requires us once again to address the question of what constitutes a "pattern of racketeering activity" under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.A. §§ 1961-68
(1984 & Supp. 1990). The district court held that plain- tiffs did not sufficiently allege such a pattern. We will affirm.
Plaintiffs Kehr Packages, Inc. ("Kehr"), James McMurtrie, Charles McMurtrie, and Emily McMurtrie filed suit against Fidelcor, Inc., Fidelity Bank, N.A.
("Fidelity"), Thomas Donnelly, Neil Cohen, James Noon, and Mario Giannini. The complaint contained both RICO and **2 pendent state law claims arising from an al- legedly fraudulent promise to lend money to Kehr. The substantive grounds for the RICO claims were allegations of mail fraud in violation of 18 U.S.C. § 1341. The dis- trict court permitted defendants to conduct discovery to determine whether subject matter jurisdiction existed. Following discovery, defendants filed a motion to dis- miss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1), and a motion for summary judgment. Plaintiffs opposed the motions and filed their own mo- tion for leave to file an amended complaint. The district court granted defendants' motion to dismiss and denied plaintiffs' motion for leave to amend. The court held that plaintiffs had not sufficiently alleged mail fraud, and as- suming they had alleged such fraud, the allegations in the complaint did not constitute a "pattern" under RICO. The district court denied plaintiffs' motion for leave to amend on the grounds that the proposed amended com- plaint would not cure the defects in the original. Plaintiffs
now appeal from these rulings.
I. STANDARD AND SCOPE OF REVIEW
Initially, we must decide what legal standard should govern this appeal. Defendants **3 filed a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b) (1). The district court granted this motion because it found the RICO claims in plaintiffs' complaints to be legally insufficient. Thus, although the court denominated its order as one under Rule 12 (b) (1), it appeared to dis- miss the complaint under Rule 12(b) (6) for failure to state a claim upon which relief could be granted.
The legal standards governing these two motions are different. HN1 A district court can grant a Rule 12 (b) (1) motion to dismiss for lack of subject matter jurisdiction based on the legal insufficiency of a claim. But dismissal is proper only when
926 F.2d 1406, *1409; 1991 U.S. App. LEXIS 3529, **3
Page 4
*1409 the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or
. . . is wholly insubstantial and frivolous." Bell v. Hood,
327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946). See also Oneida Indian Nation v. County of Oneida, 414
U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974)
(claim must be "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy").
HN2 Ordinarily, a court must assume jurisdiction over a case before deciding legal issues on the **4 merits. Bell, 327 U.S. at 682. A Rule 12 (b) (6) dismissal for failure to state a claim is not subject to the same lim- itations. The claim need not be wholly insubstantial to be dismissed. As this court has noted, "the threshold to withstand a motion to dismiss under Rule 12(b) (1) is thus lower than that required to withstand a Rule 12 (b)
(6) motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d
Cir. 1989).
In this case, we believe the district court's order should properly have been denominated a dismissal under Rule
12 (b) (6), and we will treat it as such. See Black v. Payne,
591 F.2d 83, 86 n.1 (9th Cir.) (treating dismissal under
Rule 12 (b) (1) as one under Rule 12(b) (6)), cert. denied,
444 U.S. 867, 100 S. Ct. 139, 62 L. Ed. 2d 90 (1979);
see also Kulick v. Pocono Downs Racing Ass'n, Inc., 816
F.2d 895, 899 (3d Cir. 1987) (considering whether to treat Rule 12 (b) (1) dismissal as one under Rule 12(b)
(6), but declining to reach issue). Although the court did not discuss the legal standards under which it decided defendants' motion, it considered only the allegations in the complaints and found them "lacking." The court also denied plaintiffs' motion for leave to amend because "it fail ed **5 to establish a valid claim under RICO , and therefore fail ed to correct the defects in the original complaint."
A plaintiff may be prejudiced if what is, in essence, a Rule 12 (b) (6) challenge to the complaint is treated as a Rule 12(b) (1) motion. HN3 When subject matter jurisdiction is challenged under Rule 12 (b) (1), the plain-
tiff must bear the burden of persuasion. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). On the other hand, HN4 under Rule 12(b)
(6) the defendant has the burden of showing no claim has been stated. In Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980), we found that transforming a 12(b) (1) motion into a 12 (b) (6) motion would "deprive the plaintiffs of the procedural safeguards to which they were entitled." Id. In this case, however, there is no reason not to treat the motion as having been made under Rule 12 (b) (6). In opposing defendants' motion to dismiss, plaintiffs rec- ognized that the motion had been made under Rule 12
(b) (1), but stated that "Plaintiffs are treating the Motion of Defendants entitled a 'Motion to Dismiss' as one filed under Rule 12 (b) (6)." Memorandum of Law in Support of Plaintiffs Answer **6 in Opposition to Defendants' Motion to Dismiss at 15. In this situation, there is no harm in treating the district court's dismissal as having been made under Rule 12 (b) (6). We stress, however, that challenges for failure to state a claim ordinarily should be made under Rule 12 (b) (6). See Bell v. Hood, 327 U.S.
678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946).
The district court denied plaintiffs' motion for leave to amend because the proposed amended complaint would also fail to withstand a motion to dismiss. HN5 Denials of leave to amend a complaint under Fed. R. Civ. P. 15(a) are reviewed for abuse of discretion. Kiser v. General Elec. Corp., 831 F.2d 423, 426-27 (3d Cir. 1987), cert. denied, 485 U.S. 906, 99 L. Ed. 2d 238, 108 S. Ct. 1078
(1988). However, reversal is proper when the district court bases its denial on an erroneous rule of law. Banks v. Wolk,
918 F.2d 418, 419 (3d Cir. 1990); Centifanti v. Nix, 865
F.2d 1422, 1431 (3d Cir. 1989).
Since plaintiffs sought to amend their complaint to rectify certain defects, the allegations in the proposed amended complaint are the relevant ones for purposes of this appeal. This fact is not of great significance, since the amended complaint adds little additional information to **7 that contained in the original. One difference is that the amended complaint drops Fidelcor,
926 F.2d 1406, *1410; 1991 U.S. App. LEXIS 3529, **7
Page 5
*1410 Inc. and Mario Giannini as defendants; thus, we do not consider any allegations against them. Since we have treated the district court's order as a Rule 12 (b) (6) dismissal, we must accept as true all factual allegations in the amended complaint and all reasonable inferences that can be drawn from them. The amended complaint must be construed in the light most favorable to the plaintiffs, and can be dismissed only if the plaintiffs have alleged no set of facts upon which relief could be granted. Banks,
918 F.2d at 419.
II. FACTUAL ALLEGATIONS
This case stems from the leveraged buyout of Kehr by James McMurtrie and Charles McMurtrie. The alle- gations of the amended complaint are as follows. See Amended Complaint at paras. 15-31. On December 12,
1986, the McMurtries entered into an agreement to pur- chase Kehr. Fidelity agreed to provide $4,165,000 in fi- nancing, secured by the assets and accounts of Kehr, and by real estate owned by Charles McMurtrie and his wife Emily McMurtrie. The terms of the loans ranged from five to seven years. Neil Cohen and James Noon handled this loan package **8 for Fidelity. At that time, Cohen was a commercial loan officer at the bank, and Noon was a vice-president.
The original understanding of the parties was that Fidelity would provide, as part of the total $4,165,000 loan, a credit line of $350,000 to be used as working cap- ital for Kehr. Id. at paras. 17-18. The eventual loan agree- ment included a $600,000 line of credit to be used as work- ing capital, and to finance closing costs and pay off Kehr's prior debts. However, at the settlement on December 12, James McMurtrie discovered that this line of credit would be insufficient to fund the necessary $350,000 in work- ing capital. During the settlement, Cohen and Noon, on behalf of Fidelity, made an oral commitment to lend an additional $185,000 for working capital. Cohen and Noon knew that Kehr would operate at a deficit during 1987, and that the working capital would be critically important. In reliance on this commitment, the McMurtries closed the deal and began operating Kehr. Id. at para. 31.
Between December, 1986 and August, 1987, Cohen and Noon informed James McMurtrie by telephone "nu- merous" times that the $185,000 would be available as promised. Id. at para. 32. **9 However, Cohen and Noon had no intention of providing the money, and "made such commitments in order to induce Plaintiffs to com- plete the settlement and to insure that Defendant Fidelity Bank would be the recipient of large monthly interest payments, profits and collateral." Id. at para. 33. Between December, 1986 and July, 1988, Fidelity mailed Kehr invoices for the loan payments. Apparently, during this period Kehr's financial situation became increasingly pre- carious.
By August, 1987, Cohen and Noon had left Fidelity. In September, responsibility for the Kehr loan was trans- ferred to Thomas Donnelly, a vice-president of Fidelity. The McMurtries believed Donnelly was a high level man- agement consultant who had lending authority. Id. at para.
41. In reality, he worked in Fidelity's Asset Recovery Group, where he was responsible for protecting and re- covering the bank's assets. James McMurtrie repeatedly demanded that Fidelity furnish the additional loan as promised, and Donnelly said that he would "review the credit file and terms and conditions of the loans to de- termine whether additional funds would be advanced by
Fidelity ." Id. at para. 38. The amended complaint does
**10 not allege that Donnelly ever represented that the funds would be provided. In addition, Donnelly told James McMurtrie that he would commission an appraisal of Kehr's assets, and asked McMurtrie to draft a "plan of attack" demonstrating how Kehr's financial situation could be improved. According to the amended complaint, this request was "part of the course of conduct of Mr. Donnelly aimed at misleading Plaintiffs into believing that he would attempt to secure additional working capi- tal." Id. at para. 42. However, Donnelly never intended to do so, and in fact had no lending authority. In December,
1987, Donnelly mailed two loan invoices to Kehr. Id. at para. 45.
926 F.2d 1406, *1411; 1991 U.S. App. LEXIS 3529, **10
Page 6
*1411 In the summer of 1988, the McMurtries found a buyer for Kehr. Fidelity apparently had the contrac- tual right to approve the sale, and Donnelly met with the prospective buyer on July 20, 1988. At this meeting, Donnelly announced that the Kehr loans were in default, and also disclosed that he worked in the Asset Recovery Group. On the same day, Donnelly mailed Kehr a notice of default and confessed judgment against the collateral. The buyer continued with the transaction, but Donnelly and Fidelity "unreasonably delayed" **11 approving the sale, despite knowing that the buyer faced a specific deadline. Id. at para. 54. As a result, the buyer withdrew its offer. In September, 1988, Donnelly ordered Kehr to cease operations and liquidate its assets.
III. STATUTORY LANGUAGE
HN6 The RICO statute authorizes civil suits by
"any person injured in his business or property by rea- son of a violation of 18 U.S.C. § 1962 ." 18 U.S.C.
§ 1964(c) (1988). Section 1962 contains four separate subsections, each addressing a different problem. HN7 Section 1962(a) prohibits "any person who has received any income derived . . . from a pattern of racketeering activity" from using that money to acquire, establish or operate any enterprise that affects interstate commerce. Section 1962(b) prohibits any person from acquiring or maintaining an interest in, or controlling any such enter- prise "through a pattern of racketeering activity." Section
1962(c) prohibits any person employed by or associated with an enterprise affecting interstate commerce from
"conduct ing or participat ing . . . in the conduct of such enterprise's affairs through a pattern of racketeering ac- tivity." Finally, section 1962(d) prohibits any person from
"conspir ing **12 to violate any of the provisions of subsections (a), (b), or (c)."
In this case, the amended complaint alleges viola- tions of §§ 1962(a), (b), (c) and (d). Case law has es- tablished separate requirements for certain subsections.
HN8 Under § 1962(a), a plaintiff must allege injury specifically from the use or investment of income in the named enterprise. Rose v. Bartle, 871 F.2d 331, 357-58
(3d Cir. 1989). But see Busby v. Crown Supply, Inc., 896
F.2d 833, 836-40 (4th Cir. 1990) (rejecting "investment use" rule). Fidelity and its parent companies are the named enterprises in this case. Amended Complaint at para. 61. The injury stems from the allegedly fraudulent activities of Noon, Cohen, and Donnelly, but is not specifically linked to the use or investment of income in any named enterprise. Thus, § 1962(a) cannot be a basis for liability in this case. Similarly, HN9 under § 1962(b), a plaintiff must allege a specific nexus between control of a named enterprise and the alleged racketeering activity. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 n.2 (3d Cir.
1989). Since the amended complaint does not allege such a nexus, the § 1962(b) count also must be dismissed.
The § 1962(c) **13 claim is not subject to these nexus limitations, and therefore is a possible basis for lia- bility here. However, HN10 while an entity can be both an enterprise and a defendant for purposes of § 1962(a), such a dual role is impermissible in actions based on §
1962(c). See Banks v. Wolk, 918 F.2d 418, 421 (3d Cir.
1990). Fidelity is named as both a defendant and an en- terprise. Since § 1962(c) is the only available basis for liability, Fidelity must be dismissed as a RICO defen- dant. Because Fidelity cannot be a RICO defendant, it cannot be held liable under a respondeat superior theory for the RICO violations of its employees. See Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1359
(3d Cir. 1987). We will consider separately the allegations against each individual defendant under § 1962(c). n1
n1 Because we hold that plaintiffs did not state a valid claim under § 1962(c), see infra at 1417-
19, we need not consider whether the dependent §
1962(d) claim has been properly alleged. Cf. Rose v. Bartle, 871 F.2d 331, 365-67 (3d Cir. 1989) (dis- cussing pleading requirements for § 1962(d) claim).
**14
IV. THE "PATTERN" REQUIREMENT
HN11 A "pattern of racketeering activity" requires commission of at least two predicate
926 F.2d 1406, *1412; 1991 U.S. App. LEXIS 3529, **14
Page 7
*1412 offenses on a specified list. 18 U.S.C.A. §§
1961(1), (5) (1984 & Supp. 1990). The predicate acts al- leged in this case are instances of mail fraud in violation of
18 U.S.C. § 1341. But a pattern requires more than com- mission of the requisite number of predicate acts. In H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229,
109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), the Supreme Court stressed that HN12 a plaintiff must show also "that the racketeering acts are related, and that they amount to or pose a threat of continued criminal activity." Id., 109
S. Ct. at 2900 (emphasis in original).
In H.J. Inc., customers of a telephone company al- leged that the company had been bribing state regulatory officials to gain approval for excessive telephone rates. This alleged bribery occurred over a six-year period and consisted of cash and in-kind payments, and negotiations for future employment with the company. Id., 109 S. Ct. at 2897. The Court held that these allegations stated a valid claim under RICO.
The Court emphasized that HN13 allegations cannot constitute a RICO "pattern" **15 unless they satisfy both the "relatedness" and "continuity" tests. Both tests depend heavily on the specific facts of each case. HN14 The Court adopted a broad multi-factor test for related- ness, which focuses on whether the alleged predicate acts
"'are interrelated by distinguishing characteristics and are not isolated events.'" Id., 109 S. Ct. at 2901 (quoting Dangerous Special Offender Sentencing Act, 18 U.S.C.
§ 3575(e) (1982), repealed by Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, § 212(a) (2), 98
Stat. 1987). The Court found that the allegations in H.J. Inc. satisfied this test, because the alleged acts of bribery were related by the common purpose of influencing state regulators. Id., 109 S. Ct. at 2906.
In discussing the continuity requirement, the Court rejected the theory that a RICO pattern requires proof that a defendant engaged in multiple criminal "schemes." Id., 109 S. Ct. at 2901. The Court noted that the concept
of a "scheme" appears nowhere in the statute or its leg- islative history, and is difficult to define. Rather, HN15 related predicate acts in furtherance of a single scheme can constitute a pattern if the acts constitute or present the
**16 threat of long-term continuous criminal activity.
HN16 Proof of multiple schemes is "highly relevant" to the question of continuity, but is not a prerequisite for a finding of a RICO pattern. Id.
Of course, HN17 not every single scheme compris- ing two or more predicate acts will constitute a pattern. Continuity refers "either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." Id., 109 S. Ct. at
2902. A short-term scheme threatening no future crimi- nal activity will not suffice. Although Congress intended a
"natural and common-sense approach to RICO's pattern element" and continuity "depends on the specific facts of each case," id., 109 S. Ct. at 2899, 2902, the Court delineated some parameters of the analysis. The Court stressed that continuity is "centrally a temporal concept." Id., 109 S. Ct. at 2902. Thus, the length of time over which the criminal activity occurs or threatens to occur is an important factor. As the Court noted, "predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned **17 in RICO with long-term criminal conduct." Id. One method of demonstrating con- tinuity is to show that "the predicate acts or offenses are part of an ongoing entity's regular way of doing business." Id. This showing can be made with respect to otherwise legitimate entities, or when "the predicate acts can be at- tributed to a defendant operating as part of a long-term association that exists for criminal purposes." Id.
This court has also noted other factors that are relevant to the "pattern" inquiry. In Barticheck v. Fidelity Union Bank/First Nat'l State, 832 F.2d 36, 39 (3d Cir. 1987), we focused on "the number of unlawful acts, the length of time over which the acts were committed, the similarity
926 F.2d 1406, *1413; 1991 U.S. App. LEXIS 3529, **17
Page 8
*1413 of the acts, the number of victims, the number of perpetrators, and the character of the unlawful activity." This approach is entirely consistent with H.J. Inc. See Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 596
(3d Cir. 1990). After H.J. Inc., however, "we must focus on these factors as they bear upon the separate questions of continuity and relatedness." Banks, 918 F.2d at 423.
In H.J. Inc., the Court found the requisite continuity. The Court first **18 noted that "the racketeering predi- cates occurred with some frequency over at least a 6-year period, which may be sufficient to satisfy the continuity requirement." 109 S. Ct. at 2906. Alternatively, the allega- tions sufficiently indicated that "the alleged bribes were a regular way of conducting the defendant's ongoing busi- ness, or a regular way of conducting or participating in the conduct of the alleged and ongoing RICO enterprise." Id.
Following H.J. Inc., this court affirmed dismissals in two cases for failure to allege a sufficient RICO pattern. In Marshall-Silver Construction Co. v. Mendel, 894 F.2d
593 (3d Cir. 1990), the complaint contained allegations of extortion and mail fraud in connection with the filing of a false bankruptcy petition. We noted that the predicate acts were concluded in less than seven months, and that
"the alleged illegal activity posed no threat of additional repeated criminal conduct over a significant period." Id. at 597 (emphasis in original). In Banks v. Wolk, 918 F.2d
418 (3d Cir. 1990), the plaintiffs alleged, among other things, that the defendants had used an inside partner to drive down the price of **19 certain real estate. We found no RICO pattern with respect to those defendants involved only in that scheme, noting that the injury to the plaintiff occurred during an eight month period, and that the scheme "was an attempt to defraud a single investor of his interest in a single piece of real estate over a relatively short period of time." Id. at 422. As in Marshall-Silver, we found no indication of additional conduct that would constitute a threat of long-term criminal activity.
In Swistock v. Jones, 884 F.2d 755 (3d Cir. 1989), we found the continuity requirement satisfied with respect to an alleged real estate fraud that lasted approximately one year. As we stressed in Marshall-Silver and Banks, however, the complaint in Swistock contained allegations of further misrepresentations by the defendants in regard to other potential transactions with the plaintiffs. Id. at
759. See Marshall-Silver, 894 F.2d at 597; Banks, 918
F.2d at 423. Thus, although a single fraudulent scheme can give rise to RICO liability, when that scheme is short- lived and directed at a limited number of people, this court has required some further indication that the defendant's
**20 fraudulent activities are likely to continue.
V. THE MAIL FRAUD ALLEGATIONS AND THEIR EFFECT ON THE PATTERN ANALYSIS
The district court found that the complaints failed to state valid claims of mail fraud. In some RICO cases, it will be clear that a defendant's actions do not constitute a pattern without an examination of the legal sufficiency of the predicate acts. But since the pattern inquiry must as- sess whether the defendant's actions "amount to or pose a threat of continued criminal activity," H.J. Inc., 109 S. Ct. at 2900, it is often helpful to examine the actions which are alleged to form the basis of criminal activity.
In cases involving allegations of mail fraud, this in- quiry is complicated by the nature of the statute. HN18 The mail fraud statute prohibits any person from know- ingly causing the use of the mails "for the purpose of ex- ecuting" any "scheme or artifice to defraud." 18 U.S.C.A.
§ 1341 (Supp. 1990). The actual violation is the mail- ing, although the mailing must relate to the underlying fraudulent scheme. Moreover, each mailing that is "in- cident to an essential part of the scheme" constitutes a new violation. Pereira v. United States, 347 U.S. 1, 8,
98 L. Ed. 435, 74 S. Ct. 358 (1954). HN19 The **21
mailing need not contain any misrepresentations. Rather,
"'innocent' mailings -- ones that contain no
926 F.2d 1406, *1414; 1991 U.S. App. LEXIS 3529, **21
Page 9
*1414 false information -- may supply the mailing ele- ment." Schmuck v. United States, 489 U.S. 705, 715, 103
L. Ed. 2d 734, 109 S. Ct. 1443 (1989).
The mailing element is not very helpful in examining the sufficiency of a RICO pattern allegation. The related- ness test will nearly always be satisfied in cases alleging at least two acts of mail fraud stemming from the same fraudulent transaction -- by definition the acts are related to the same "scheme or artifice to defraud." But the con- tinuity test requires us to look beyond the mailings and examine the underlying scheme or artifice. Although the mailing is the actual criminal act, the instances of deceit constituting the underlying fraudulent scheme are more relevant to the continuity analysis.
For example, the "number of unlawful acts" is a fac- tor in determining continuity. Barticheck v. Fidelity Union Bank/First Nat'l State, 832 F.2d 36, 39 (3d Cir. 1987). But the continuity question should not be affected by the fact that a particular fraudulent scheme involved numerous otherwise "innocent" mailings, rather than only a few. As the Court of Appeals for the Seventh **22 Circuit recently has reaffirmed:
Mail fraud and wire fraud are perhaps unique among the various sorts of "racketeering ac- tivity" possible under RICO in that the exis- tence of a multiplicity of predicate acts (here, the mailings) may be no indication of the req- uisite continuity of the underlying fraudulent activity.
Hartz v. Friedman, 919 F.2d 469, 473 (7th Cir. 1990)
(quoting Lipin Enters., Inc. v. Lee, 803 F.2d 322, 325
(7th Cir. 1986) (Cudahy, J., concurring)). Accord United
States Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d
1261, 1268 (7th Cir. 1990); Sutherland v. O'Malley, 882
F.2d 1196, 1205 n.8 (7th Cir. 1989); International Data
Bank, Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir. 1987)
(decided before H.J. Inc.). See also Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1278 (7th Cir. 1989) ("the num- ber of mail or wire fraud offenses is only tangentially
related to the underlying fraud, and can be a matter of happenstance.").
In this case, the loan invoices sent to Kehr consti- tute the main basis for the mail fraud allegations. But the quantity of otherwise innocent invoices cannot by itself transform defendants' alleged fraud into a RICO pattern.
**23 It should not be relevant, for example, that Fidelity sent invoices on a monthly basis, rather than quarterly or yearly. However, if a defendant committed numerous acts of deceit as part of multiple schemes or a single ongo- ing fraud, this fact would be relevant to the continuity question, although not necessarily dispositive. Moreover, it would be relevant if particular mailings, unlike those in this case, contained false or misleading statements or otherwise constituted separate deceptive acts.
The importance of focusing in the continuity analy- sis on deceptive activity rather than otherwise innocent mailings is demonstrated by the holding in H.J. Inc. that continuity can be shown when "the predicate acts or of- fenses are part of an ongoing entity's regular way of do- ing business." 492 U.S. 229, 109 S. Ct. at 2902. In that case, separate bribes to different government officials suf- ficiently indicated that bribery was a regular way of doing business for the defendant. Id. 109 S. Ct. at 2906. In this case, if we were to focus only upon the mailings, we would necessarily conclude that sending invoices was a regular way of conducting Fidelity's business. Such a holding would extend RICO's scope **24 to all alle- gations of mail fraud based upon two or more otherwise routine business mailings, a result we believe Congress did not intend. Rather, we must examine whether defen- dants' underlying deceptive activities constitute a regular way of doing business. This question was not faced in H.J. Inc., since each bribe in that case independently consti- tuted a criminal act, without reference to any underlying illegal scheme.
At this time, we need not decide precisely which types or combinations of fraudulent actions will present the req- uisite continuity. But we note that the mailings in this case present a different situation from that recently faced by the Court of Appeals for
926 F.2d 1406, *1415; 1991 U.S. App. LEXIS 3529, **24
Page 10
*1415 the First Circuit in Fleet Credit Corp. v. Sion,
893 F.2d 441 (1st Cir. 1990). In that case, the defendants obtained three separate business loans over a five year pe- riod and allegedly misappropriated the collateral for their personal use. The plaintiff's RICO claim was predicated on acts of mail fraud consisting of 95 checks allegedly used by the defendants to dissipate the collateral over a four and one-half year period. The court found that these actions constituted "long-term criminal conduct" under
**25 H.J. Inc. Id. at 446-47. The court noted that "had the number of acts alleged by the plaintiff been few or the period of time short, the predicate acts would not have amounted to continued criminal activity." Id. at 447.
The court noted, however, that each separate mailing constituted a new breach of the defendants' promise not to remove, transfer, or destroy the collateral. Id. at 443. Thus, the defendants' deceptive activities were ongoing during the entire four and one-half year period, and each mailing constituted a new fraudulent act. Moreover, dur- ing this period, the defendants applied for and received two new loans. In this case, by contrast, the mailings did not constitute separate fraudulent actions, but related entirely to the initial allegedly deceptive actions of the de- fendants. We do not believe that the Fleet court focused on the number and duration of the mailings without con- sidering their integral connection to the ongoing long- term deceptive activities. n2
n2 In dicta, the court noted that " a threat of criminal activity . . . is not established merely by demonstrating that common law fraud was a regular way of conducting the defendants' ongoing busi- ness. Rather, the plaintiff must demonstrate that the predicate acts -- here the acts of mail fraud -- were a regular way of conducting the ongoing busi- ness." Id. at 448 (emphasis in original). It does not appear that the court was emphasizing the mail- ings over the underlying fraud. Instead, the court likely was referring to the fact that a plaintiff must sufficiently allege a connection between a particu- lar fraudulent scheme and some mailing. See id. at
444-45 (apparently finding that plaintiffs did not sufficiently plead connection between certain alle-
gations of common law fraud and use of mails).
**26
We now examine the allegations of deceptive activ- ity in this case. HN20 Under the mail fraud statute, a scheme or artifice to defraud "need not be fraudulent on its face, but must involve some sort of fraudulent mis- representations or omissions reasonably calculated to de- ceive persons of ordinary prudence and comprehension." United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir.
1978). The scheme need not involve affirmative misrep- resentation, see United States v. Frankel, 721 F.2d 917 (3d Cir. 1983), but the statutory term "defraud" usually signi- fies "'the deprivation of something of value by trick, de- ceit, chicane or overreaching.'" McNally v. United States,
483 U.S. 350, 358, 97 L. Ed. 2d 292, 107 S. Ct. 2875
(1987) (quoting Hammerschmidt v. United States, 265
U.S. 182, 188, 68 L. Ed. 968, 44 S. Ct. 511 (1924)). Accord Carpenter v. United States, 484 U.S. 19, 27, 98 L. Ed. 2d 275, 108 S. Ct. 316 (1987).
The amended complaint alleges that Cohen and Noon misrepresented on numerous occasions that the additional funds would be provided. Since these appear to be action- able misrepresentations, we will assume without decid- ing that the amended complaint sufficiently alleges that Cohen and Noon have engaged in a "scheme or artifice to defraud" in violation of the mail **27 fraud statute. We also will assume without deciding that the invoices sent to Kehr satisfy the "mailing" element. Thus, we will assume that Cohen and Noon have committed predicate acts of mail fraud. We note, however, that the district court held that defendants' actions could not constitute mail fraud because plaintiffs "offer ed no evidence to suggest the statements the bank mailed out were inaccurate, or fraud- ulent in any way." This analysis was incorrect. As the Supreme Court recently held in Schmuck v. United States,
489 U.S. 705, 715, 103 L. Ed. 2d 734, 109 S. Ct. 1443
(1989), completely "innocent" mailings can satisfy the mailing element.
The allegations against Donnelly are of a different sort. The amended complaint asserts that Donnelly en- gaged in three separate deceptive actions after Cohen
926 F.2d 1406, *1416; 1991 U.S. App. LEXIS 3529, **27
Page 11
*1416 and Noon had left Fidelity. First, Donnelly's re- quest for a "plan of attack" was part of a scheme to "mis- lead Plaintiffs into believing that he would attempt to secure additional working capital." Amended Complaint at para. 42. Although Donnelly said that he would at- tempt to secure additional working capital, unlike Cohen and Noon he never represented that the capital would be provided. Second, Donnelly did not disclose **28 that he worked in the Asset Recovery Group, and that he had no lending authority. Third, he "unreasonably delayed" approving the proposed sale of Kehr.
Even construing the complaint in the light most favor- able to appellants, none of these allegations could form the basis for a separate mail fraud violation on the part of Donnelly. We recognize that the mail fraud statute has been "expansively construed." United States v. Boffa, 688
F.2d 919, 925 (3d Cir. 1982), cert. denied, 460 U.S. 1022,
75 L. Ed. 2d 494, 103 S. Ct. 1272 (1983). But none of Donnelly's alleged acts or omissions could be "reason- ably calculated to deceive a person of ordinary prudence and comprehension." Pearlstein, 576 F.2d at 535. Thus, the individual allegations against Donnelly do not consti- tute additional criminal activity that would help establish
"continuity" under RICO.
The "plan of attack" request falls squarely within the ambit of normal business communications, especially considering the financial state of Kehr, and contains no deceptive elements. Cf. Blount Financial Servs., Inc. v. Walter E. Heller & Co., 819 F.2d 151, 153 (6th Cir. 1987)
(plaintiff's reliance on defendant's quotation of interest rate was unreasonable in **29 business setting, and precluded mail fraud claim); McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786 (1st Cir.) (allega- tions of kickbacks, rebates and illegal rent payments could not be construed as scheme to deceive and thus could not be basis for mail fraud violation), cert. denied, 498 U.S.
992, 111 S. Ct. 536, 112 L. Ed. 2d 546 (1990). Likewise, the non-disclosure of Donnelly's job title cannot consti- tute mail fraud absent further allegations. Since Donnelly never represented that he had lending authority, or that the funds would be provided, his non-disclosure cannot reasonably be said to be deceptive. See, e.g., United States v. Von Barta, 635 F.2d 999, 1006-07 (2d Cir. 1980) (non- disclosure not actionable under mail fraud statute absent
some duty to disclose), cert. denied, 450 U.S. 998, 101
S. Ct. 1703, 68 L. Ed. 2d 199 (1981); see also Reynolds v. East Dyer Dev. Co., 882 F.2d 1249 (7th Cir. 1989)
(absent elaborate efforts at concealment, or larger pattern of misrepresentations or half-truths, mere non-disclosure cannot constitute mail fraud). n3
n3 Mail fraud can also be predicated on mail- ings made after the completion of the scheme, but which are "'designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehen- sion of the defendants less likely than if no mailings had taken place.'" United States v. Lebovitz, 669
F.2d 894, 896 (3d Cir.), cert. denied, 456 U.S. 929,
72 L. Ed. 2d 446, 102 S. Ct. 1979 (1982) (quot- ing United States v. Maze, 414 U.S. 395, 403, 38
L. Ed. 2d 603, 94 S. Ct. 645 (1974)). In this case, however, we find as a matter of law that Donnelly's alleged actions could not have served this purpose. A person of ordinary prudence and comprehension could not be misled by Donnelly's indications that he would look into whether Fidelity would provide additional funding. Cf. Pyramid Securities, Ltd. v. IB Resolution, Inc., 288 U.S. App. D.C. 157, 924
F.2d 1114, 1118, 1991 U.S. App. LEXIS 1350, *11
(D.C. Cir. 1991) (rejecting similar "lulling" claim in civil RICO action).
**30
Moreover, even if these actions were somehow de- ceptive, they were calculated only to mislead plaintiffs into believing that Donnelly would "attempt" to secure additional funds. Since Donnelly never indicated that the funds would be provided, there was no deceit nor fraud within the meaning of the mail fraud statute. By contrast, the deceptions of Cohen and Noon are alleged to have caused plaintiffs to close the deal and incur injury when the funds were not provided. We note that 18 U.S.C. §
1346, which amended the mail fraud statute to include schemes that "deprive another of the intangible right of honest services," does not apply to this case, since all of the defendants' alleged actions occurred prior to the effective date of the statute. See 18 U.S.C.A. § 1346
926 F.2d 1406, *1417; 1991 U.S. App. LEXIS 3529, **30
Page 12
*1417 (Supp. 1990) (effective Nov. 18, 1988) (overrul- ing McNally v. United States, 483 U.S. 350, 97 L. Ed. 2d
292, 107 S. Ct. 2875 (1987)). n4
n4 We follow the other Courts of Appeals that have held that § 1346 has no retroactive effect. See United States v. Telink, Inc., 910 F.2d 598, 601 n.2
(9th Cir. 1990); United States v. Granberry, 908
F.2d 278, 281 n.1 (8th Cir. 1990); McEvoy Travel
Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786,
791 (1st Cir.) (civil RICO case), cert. denied, 498
U.S. 992, 111 S. Ct. 536, 112 L. Ed. 2d 546 (1990); United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989); United States v. Stewart, 872 F.2d 957,
960 n.2 (10th Cir. 1989); Corcoran v. American Plan Corp., 886 F.2d 16, 19 n.4 (2d Cir. 1989); United States v. Davis, 873 F.2d 900, 902 (6th Cir.), cert. denied, 493 U.S. 923, 110 S. Ct. 292, 107 L. Ed. 2d 271 (1989).
**31
Finally, the allegation that Donnelly "unreasonably delayed" approving the sale of Kehr, while possibly amounting to a breach of contract, contains no deception that would bring it within the purview of the mail fraud statute. Cf. United States v. Kreimer, 609 F.2d 126, 128
(5th Cir. 1980) ("the mail fraud statute does not reject all business practices that do not fulfill expectations, nor does it taint every breach of a business contract. Its con- demnation of a 'scheme or artifice to defraud' implicates only plans calculated to deceive."); see also Amended Complaint at para. 83 (unreasonable delay not alleged as misrepresentation in common law fraud count).
We emphasize that the responsibility for determin- ing the factual sufficiency of fraud allegations remains with the fact-finder. In this case, though, the allegations against Donnelly simply contain no indication of the de- ception or overreaching which the mail fraud statute re- quires. We also recognize that appellants possibly could have demonstrated at trial that Donnelly was engaged in a common mail fraud scheme with Noon and Cohen. See, e.g., United States v. Camiel, 689 F.2d 31, 36 (3d Cir. 1982) (mail fraud **32 violation can be proved by showing common scheme rather than conspiratorial agreement). In this event, Donnelly would have been held
liable for the misrepresentations of Cohen and Noon. But for purposes of RICO continuity, the separate allegations against Donnelly do not add to the criminal activity al- leged against Cohen and Noon.
VI. THE "PATTERN" ALLEGATION IN THIS CASE
Plaintiffs in this case have not sufficiently alleged that defendants engaged in a "pattern of racketeering activ- ity." Since the complaint alleges numerous acts of mail fraud related to the common purpose of causing Kehr to default on its loans, the relatedness requirement is satis- fied. But the amended complaint does not set forth acts that "amount to or pose the threat of continuing criminal activity." Rather, as in Marshall-Silver and Banks, the allegations here involve a short-term attempt to force a single entity into bankruptcy, and contain no additional threat of continued criminal activity. Nor does this case involve a "long-term association that exists for criminal purposes." See H.J. Inc., 492 U.S. at 243, 109 S. Ct. at
2902.
We have established that the critical acts for purposes of the continuity **33 analysis are the misrepresenta- tions of Cohen and Noon. The same misrepresentations regarding the additional loan were repeated "numerous" times over an eight month period. H.J. Inc. holds that the actual or threatened duration of a scheme is an impor- tant factor in determining whether a defendant's actions amount to long-term criminal activity. When mail fraud is alleged, the question of duration becomes more difficult. As we noted in Marshall-Silver, "virtually every garden- variety fraud is accomplished through a series of wire or mail fraud acts that are 'related' by purpose and are spread over a period of at least several months." 894 F.2d at 597. In this case, the length of the scheme as originally con- ceived was indeterminate, since it would depend on how long Kehr could survive without the promised $185,000 in additional working capital. The mailing of loan invoices could possibly have continued for seven years, the term of the longest loan.
However, we do not place much emphasis on the fact that the mailings might have continued for years. As we have noted, a defendant's deceptive actions are more im- portant
926 F.2d 1406, *1418; 1991 U.S. App. LEXIS 3529, **33
Page 13
*1418 to the continuity analysis than otherwise inno- cent mailings. **34 Thus, the relevant criminal con- duct occurred during the initial eight month period, when the misrepresentations were made. We noted in Marshall- Silver that the duration of a scheme should not be afforded overriding significance "in the absence of a more signif- icant societal threat." Id. Since we found the scheme in that case to be sufficiently short-term, we did not rely on this statement and need not embrace it at this time. But see United States Textiles, Inc. v. Anheuser-Busch Cos., 911
F.2d 1261, 1268-69 (7th Cir. 1990) (adopting Marshall- Silver language). We do hold, however, that HN21 in de- termining the duration of a scheme involving mail fraud, the relevant criminal conduct is the defendant's decep- tive or fraudulent activity, rather than otherwise innocent mailings that may continue for a long period of time. Cf. United States Textiles, 911 F.2d at 1268 (noting that each mail and wire fraud count "relates back" to initial extor- tions, and that duration of transaction at issue was "pure happenstance in light of the underlying concern which is the 'continuity' of the criminal activity").
We must apply a "natural and common-sense ap- proach to RICO's pattern element." **35 H.J. Inc.,
492 U.S. at 237, 109 S. Ct. at 2899. Consequently, it should not be important that otherwise innocent mailings might continue long after the deceptive practices cease. If the term of the Kehr loans had been several decades rather than several years, it would not make the initial actions of Cohen and Noon any more deserving of RICO sanctions. Cf. Dana Corp. v. Blue Cross & Blue Shield, 900 F.2d 882,
887 (6th Cir. 1990) (repeated fraudulent misrepresenta- tions during seventeen year life of contract sufficient to state pattern). As in Marshall-Silver and Banks, an eight- month period of fraudulent activity directed at a single en- tity does not constitute a pattern, absent a threat of future criminal acts.
This case, therefore, is unlike H.J. Inc., which in- volved six years of bribes directed at five members of a regulatory agency. The alleged bribes were numerous and
varied, consisting of cash payments, job negotiations, and payments for meals and entertainment. See, 109 S. Ct. at 2897. Each separate bribe contributed to an ongoing scheme aimed at influencing future ratemaking decisions. This evidence led the Court to find sufficient indication
**36 that bribery was a regular way of doing business for the defendant.
Besides the significant disparity in longevity between the schemes in H.J. Inc. and the present case, there are other salient differences. First, there is no apparent threat that the misrepresentations of Cohen and Noon would have continued past the time they left Fidelity. By con- trast, the regulatory decisions involved in H.J. Inc. were a continuous part of the defendant's business, and thus the bribes likely would have continued into the future. Unlike Swistock, the additional confirmatory misrepresentations of Cohen and Noon did not concern future transactions, and thus do not pose a threat of additional criminal ac- tivity. There is no indication that Cohen or Noon made other false statements to Kehr, or treated other customers in a similar manner. Consequently, the allegations in the amended complaint do not indicate that fraud was "a reg- ular way of doing business" for any defendant. Cf. H.J. Inc., 109 S. Ct. at 2902. Nor, as we have noted, does this case involve a "long-term association that exists for criminal purposes." See id.
Second, the bribes in H.J. Inc. were individually
**37 directed at five different officials. As we noted in Swistock, the Supreme Court did not rely on the fact that the actual victims of the bribes -- the telephone com- pany's customers -- were numerous. See 884 F.2d at 758. However, it certainly should be relevant that the criminal activity was separately directed at several different people. Cf. Barticheck v. Fidelity Union Bank/First Nat'l State,
832 F.2d 36, 39 (3d Cir. 1987) ("the scheme involved the repetition of similar misrepresentations to more than twenty investors"). In this case, the direct target of the criminal activity was a single entity. Kehr's individual shareholders and guarantors, and the holders of
926 F.2d 1406, *1419; 1991 U.S. App. LEXIS 3529, **37
Page 14
*1419 pledged collateral, were affected only indirectly. Third, each bribe in H.J. Inc. separately contributed to the injury inflicted on the plaintiffs. Cf. Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir. 1986)
("occurrence of distinct injuries" is factor in pattern anal- ysis). In this case, the damage to plaintiffs was largely accomplished at the moment of settlement. Although the number of misrepresentations can be an important fac- tor, the confirmatory misrepresentations made after set- tlement **38 do not transform the actions of Cohen and Noon into a "pattern of racketeering activity." There is no allegation that Kehr was caused to forgo additional financing because of the false confirmations; on the con- trary, a buyer was found for Kehr after Cohen and Noon left Fidelity. Thus, the repeated misrepresentations did not contribute any injury additional to that already inflicted. Nor is it relevant that each loan payment constituted ad- ditional economic detriment to Kehr. Absent continuous long-term fraudulent activity, it is of little importance that a particular injury was inflicted over an extended period of time, rather than all at once. See United States Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1269 (7th Cir. 1990) ("Identical economic injuries . . . stemming from a single contract were not the type of injuries which Congress intended to compensate via the civil provisions of RICO.").
VII. CONCLUSION
Plaintiffs may have valid claims of common law fraud or breach of contract, but based on the allegations of the complaint and the proposed amended complaint, which we have assumed throughout are true, they cannot main- tain a RICO suit. Thus, we will affirm the dismissal **39 of the RICO and pendent state law claims against all de- fendants, and the denial of plaintiffs' motion for leave to amend their complaint.
CONCURBY:
ALITO (In Part)
DISSENTBY:
ALITO (In Part)
DISSENT:
ALITO, Circuit Judge, concurring in part and dissent- ing in part.
I concur in the decision of the court insofar as it affirms the dismissal of the plaintiffs' claims under 18 U.S.C. §
1962(a) and (b), but I would reverse the dismissal of plaintiffs' claims under 18 U.S.C. § 1962(c) and (d). As the majority notes, denial of plaintiffs' motion for leave to amend and the dismissal of their claims may be sus- tained only if the amended complaint proffered by the plaintiffs failed to state a claim upon which relief could be granted. Majority op. at 1408-10. The majority affirms the dismissal of the claims under 18 U.S.C. § 1962(c) and
(d) on the ground that the amended complaint did not sufficiently allege a "pattern" of racketeering activity. I respectfully disagree with the majority's analysis of the pattern requirement and with its application in the present case.
I.
The amended complaint alleged that the bank and several officers carried out a scheme to defraud the McMurtries, who obtained more than four million **40 dollars of secured loans to finance their leveraged buyout of Kehr Packages, Inc. The bank and its officers allegedly induced the McMurtries to enter into loan agreements that provided insufficient working capital for successful oper- ation of the company. This was accomplished, the com- plaint asserts, by fraudulent oral promises that additional financing would be provided. According to the complaint, the purpose of this scheme was to obtain large interest payments and, ultimately, the pledged collateral, which exceeded the value of the loans. The complaint alleged that the defendants, in carrying out this scheme, commit- ted numerous acts of mail fraud, 18 U.S.C. § 1341, during a period of one year and seven months, from December
1986 to July 1988.
The specific factual allegations in the complaint are set out in the majority opinion (at 1410-11), but the follow- ing salient allegations merit emphasis. At the settlement of the loans on December 12, 1986, two bank officers, Neil Cohen, a commercial loan officer, and James Noon, a vice president, orally promised that an additional $185,000 in working capital would be provided. App. 241a-42a. For the next
926 F.2d 1406, *1420; 1991 U.S. App. LEXIS 3529, **40
Page 15
*1420 eight months, Cohen and Noon **41 repeated this promise during "numerous" telephone conversations with James McMurtrie. Id. at 242a. Cohen and Noon, however, never intended to fulfill their promises but made them to obtain interest payments and the pledged collat- eral for their employer. Id. at 243a.
In September 1987, after Cohen and Noon had left the bank, Thomas Donnelly, another vice president, took over responsibility for the loan and began a "course of conduct . . . aimed at misleading plaintiffs into believing that he would attempt to secure additional working capi- tal" when his real purpose was to prepare for foreclosure on the assets of the company and the personal assets of the McMurtries. Id. at 243a-46a. To carry out this plan, Donnelly "act ed for months on the pretense of being a management consultant" (id. at 248a) although he actu- ally worked in the bank's Asset Recovery Group. Id. at
245a-46a, 248a. Donnelly promised to look into the ques- tion of increased working capital, when in fact he had no intention of doing so. Id. at 244a-46a. He also requested that plaintiffs draft a "plan of attack" for profitably oper- ating the company, although he was actually preparing for foreclosure. **42 Id. at 245a-46a. Finally, Donnelly undermined an agreement for sale of the company during the summer of 1988 by unreasonably delaying approval of the transaction, and in September 1989 he ordered Kehr to cease operations and liquidate. Id. at 248a-49a. I stress that these are merely the unproven factual allegations in the complaint, but at the present stage we are bound to accept them as true. In my view, these allegations suffi- ciently allege a "pattern of racketeering activity."
II.
The RICO statute, 18 U.S.C. § 1961(1) defines "rack- eteering activity" to mean any of a long list of predicate offenses, including mail fraud (18 U.S.C. § 1341). The statute states that a "'pattern of racketeering activity' re- quires at least two acts of racketeering activity" (18 U.S.C.
§ 1961(5)) (emphasis added). The complaint in this case alleges more than two such acts.
In H.J. Inc. v. Northwestern Bell Telephone Co., 492
U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), the Supreme Court held that a "pattern of racketeering activity" must satisfy two additional requirements not mentioned in the statute itself: "relatedness" and "con- tinuity." I agree with the majority that the complaint in the present **43 case satisfied the requirement of "re- latedness," and therefore the sole remaining hurdle is the requirement of "continuity."
In H.J. Inc., 492 U.S. at 241, 109 S. Ct. at 2902, the Supreme Court explained that "'continuity' is both a closed-and open-ended concept." For present purposes, I think it is helpful to discuss these two concepts in reverse order.
The open-ended concept of continuity refers to a se- ries of predicate acts that is cut short, either by law en- forcement efforts or other intervening events, but that threatened long-term criminal conduct. Id. In H.J. Inc., the Court gave several examples of how such threatened criminal conduct may be shown. In some cases, the Court noted (id.), it may be proven that the perpetrators ex- pressly threatened repeated acts of racketeering. In other cases, the Court observed (id.), it may be shown that the predicate offenses were part of an ongoing entity's regular way of doing business, thus giving rise to the inference that such offenses would have continued if not interrupted. In addition to these examples provided by the Supreme Court, several factors previously identified by this court are useful in determining whether **44 a threat of future racketeering acts has been alleged or shown. Factors such as the number of unlawful acts, the number of perpetrators, the number of victims, and the character of unlawful activity ( Barticheck v. Fidelity Union Bank/First National State, 832 F.2d 36, 39 (3d Cir.
1987)) may be indicative of threatened criminal conduct in particular cases. Based upon all of these factors and ex- amples, I fully agree with the majority that the complaint in the present case does
926 F.2d 1406, *1421; 1991 U.S. App. LEXIS 3529, **44
Page 16
*1421 not allege facts showing a threat of racketeer- ing activity extending beyond the end of the completed scheme alleged. I therefore turn to the concept of "closed- ended" continuity.
Although the discussion of this concept in H.J. Inc. is brief, the Court's opinion makes clear, in my view, that the predominant, if not sole, consideration in determin- ing whether a closed-ended pattern has been alleged or proven is the duration of the racketeering activity. The Court stated flatly (492 U.S. at 242, 109 S. Ct. at 2902) that " a party alleging a RICO violation may demon- strate continuity over a closed period by proving a series of related predicates extending over a substantial period of time." Likewise, the Court **45 observed (id.) that
"predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement." These statements do not seem to leave room for anything other than a measurement of the duration of the racketeering activity. To be sure, the Court noted (id.)
(emphasis added) that continuity is "centrally a tempo- ral concept," thus perhaps implying that the concept has another peripheral component. The Court, however, pro- vided no clue regarding the nature of any such additional component.
Whether or not closed-ended continuity contains any such additional component, it seems clear that several factors have no place in determining whether closed- ended continuity has been alleged or shown. First, the absence of any threat of future racketeering activity is irrelevant in determining whether closed-ended continu- ity is present. The threat of future criminal activity is the essence of open-ended continuity but has no bearing on closed-ended continuity, which refers by definition to repeated conduct that has fully run its course.
Second, many of the factors listed by this court in Barticheck and related cases, with the obvious **46 exception of "the length of time" of the criminal conduct
( Barticheck, 832 F.2d at 39), have no logical connec- tion to closed-ended continuity. Cf. Banks v. Wolk, 918
F.2d 418, 423 (3d Cir. 1990) ("After H.J. Inc., we must
focus on these factors as they bear upon the separate questions of continuity and relatedness.") Factors such as the number of unlawful acts, the number of perpetrators, the number of victims, the similarity of the acts, and the societal harm associated with the unlawful activity have nothing to do with the duration of the racketeering activ- ity. In addition, these factors, with the exception of the number of unlawful acts, are not logically related to the ordinary meaning of the term "continuous," which refers to an "uninterrupted extension" in space, time, or se- quence. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 493-94 (1971).
Since closed-ended continuity, as described in H.J. Inc., is primarily a question of duration, it is critical to zero in on the line between "a substantial period of time," which may satisfy H.J. Inc., and "a few weeks or months," which do not. 492 U.S. at 242, 109 S. Ct. at 2902. In cases decided after$ **47 H.J. Inc., this court has upheld the dismissal of complaints alleging racketeering activ- ity over closed-ended periods of less than seven months
( Marshall-Silver Construction Co., Inc. v. Mendel, 894
F.2d 593 (3d Cir. 1990)) and eight months ( Banks v. Wolk, supra). Since these periods are substantially shorter than that alleged in the present case, these precedents do not control our decision here.
By contrast, in Swistock v. Jones, 884 F.2d 755, 759
(3d Cir. 1989) (emphasis added), the court held that a complaint alleging predicate acts of wire and mail fraud
"over a period of approximately fourteen months" was sufficient to show "either the existence of a closed-ended period of repeated conduct of sufficient length or a threat of continuity. . . ." Although the majority attempts to dis- tinguish Swistock based on the presence in that case of open-ended continuity (typescript at 15), I believe the holding in Swistock rested on two independent grounds. I read Swistock to hold that, even without allegations sug- gesting the threat of future criminal conduct, the alleged acts of wire and mail fraud extending over 14 months sat- isfied the pattern requirement **48 by showing closed- ended
926 F.2d 1406, *1422; 1991 U.S. App. LEXIS 3529, **48
Page 17
*1422 continuity. Because the complaint in the present case alleges numerous acts of mail fraud extending over an even longer period (19 months), Swistock weighs in favor of reversal here.
The relevant legislative history points to the same re- sult. In concluding that the "pattern" element necessitates proof of "continuity," the Supreme Court relied n1 pri- marily upon the following passage from the Senate Report on RICO (S. Rep. No. 91-617, at 158 (1969) (emphasis added):
The target of RICO is . . . not sporadic ac- tivity. The infiltration of legitimate business normally requires more than one "racketeer- ing activity" and the threat of continuing ac- tivity to be effective. It is this factor of con- tinuity plus relationship which combines to produce a pattern.
This seminal passage appears to measure "continuity" by reference to the period of time normally required for the infiltration of legitimate business. As the Supreme Court has recognized, preventing the infiltration of legitimate business by organized crime was the major objective ex- pressed during congressional consideration of the RICO statute. n2
n1 H.J. Inc., 109 S. Ct. at 2900. See also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14, 105
S. Ct. 3275, 3285 n.14, 87 L. Ed. 2d 346 (1985).
**49
n2 In United States v. Turkette, 452 U.S. 576,
591, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981)
(footnote omitted), the Court wrote:
The legislative history forcefully sup- ports the view that the major purpose of RICO is to address the infiltra- tion of legitimate business by orga- nized crime. The point is made time and again during the debates and in the hearings before the House and Senate.
In light of this legislative history, closed-ended con- tinuity should not require racketeering activity extending over a longer period of time than Congress felt would nor- mally be required for the infiltration of a legitimate busi- ness by means of the various RICO predicates, such as murder, kidnapping, arson, bribery, or fraud. 18 U.S.C. §§
1961(1) and 1962(b). It would be anomalous to construe the concept of closed-ended continuity so narrowly that efficient campaigns to infiltrate legitimate businesses -- the heart of congressional concern when RICO was orig- inally enacted -- are excluded from the coverage of that concept. And there is no reason to suppose that Congress felt such campaigns ordinarily take longer than 19 months
(the period **50 at issue here) or 14 months (the pe- riod in Swistock). Accordingly, in my view, the 19 month period alleged in this case constituted, in the terminol- ogy of H.J. Inc., 492 U.S. at 242, 109 S. Ct. at 2902, a
"substantial" period of time, rather than "a few weeks or months," and thus satisfied closed-ended continuity.
III.
Although the complaint in this case alleges acts of mail fraud extending over a period of 19 months, the majority whittles this period down to eight months. The majority achieves this result in two stages. First, the ma- jority concludes that in RICO cases grounded on mail fraud predicates the duration of the racketeering activity should be measured, not by the duration of the mail fraud violations, which may be based on "innocent" mailings, but by the duration of the "instances of deceit." Majority typescript at 16-20. Second, the majority concludes that the only relevant "instances of deceit" in this case are the alleged misrepresentations of Cohen and Noon, because the allegations against Donnelly, when viewed in isola- tion, do not establish criminal conduct. Majority op. at
1415-17. I disagree with both parts of this analysis.
The first part of this analysis **51 is inconsistent with the plain language of the RICO statute. The statute,
18 U.S.C. § 1961(1), equates "racketeering activity" with the listed predicate offenses. n3 Therefore, the duration of racketeering activity for the purpose of judging closed- ended continuity
926 F.2d 1406, *1423; 1991 U.S. App. LEXIS 3529, **51
Page 18
*1423 must equal the duration of the related predicates.
n3 The statute provides in pertinent part (18
U.S.C. § 1961(1)) that "racketeering activity"
means any of a long list of predicates, including
"(B) any act which is indictable under any of the fol- lowing provisions of title 18, United States Code: .
. . section 1341 (relating to mail fraud)."
Moreover, even if it were proper in a case with mail fraud predicates to look beyond the duration of the mail fraud violations and measure the duration of the deceitful conduct, the focus of inquiry should be on the fraudulent scheme, not the repetition of fraudulent statements. If a fraudulent scheme is launched convincingly, there may be no need for a repetition of the fraudulent statements made at the outset. But as **52 long as the scheme con- tinues -- as long as the original false statements are left uncorrected and victims continue to be deceived -- the de- ceitful conduct must be regarded as continuing. Under the majority's analysis, the deceitful conduct in such a case would apparently be regarded as finished once the origi- nal false statements were made -- although the deceitful conduct would apparently be regarded as continuing if the original false statements were not entirely convincing and therefore had to be repeated over and over. This approach does not seem to make sense. n4
n4 The term "innocent mailings" confuses anal- ysis of the question before us. This is a term of art that was used in Schmuck v. United States, 489 U.S.
705, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989), and related cases to refer to mailings that contain no false information but form part of the execution of the criminal scheme. See 489 U.S. at 715, 109
S. Ct. at 1449. Since such mailings help to execute the criminal scheme, they are not really innocent.
The second part **53 of the majority's analysis is also flawed. The majority labors to show that if the al- legations against Cohen and Noon are disregarded, the remaining factual allegations against Donnelly would not establish that he committed mail fraud; the majority then reasons that the allegations against Donnelly should not be considered in calculating the duration of the deceitful activity. Majority typescript at 22-26.
In my view, there is no justification for examining the specific allegations against Donnelly in isolation. Fairly read, the complaint alleges that Cohen and Noon launched the fraudulent scheme with outright misrepresentations and that Donnelly later joined the scheme and perpet- uated it by means of statements and conduct that were misleading in light of what Cohen and Noon had said and done before. Consequently, I think it is entirely artificial to judge Donnelly's alleged behavior without considering its claimed role in the entire scheme.
In the present case, the complaint alleged that the fraudulent scheme and the mailings in furtherance of the scheme continued for 19 months. That period, I believe, is ample to show closed-ended continuity.
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