Ahmed v. Rosenblatt

• Court: Court of Appeals for the First Circuit
• Decided: July 14, 1997
• Docket: 96-1145
• Status: Published

Opinion

USCA1 Opinion

____________________


Nos. 96-1145

               97-1037


                                    MALEK AHMED,


                                Plaintiff, Appellant,


                                         v.


                JON ROSENBLATT, CAROL ROSENBLATT, CHARLES GREENWOOD,

                  IRWIN LOFT, MORTGAGE GUARANTEE TITLE COMPANY, AND

                                   WILLIAM LARSON,


                               Defendants, Appellees.


                                ____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF RHODE ISLAND


                [Hon. Raymond J. Pettine, Senior U.S. District Judge]


                                ____________________


Before


                                Selya, Circuit Judge,

                            Coffin, Senior Circuit Judge,

                              and Lynch, Circuit Judge.


                                ____________________


Kevin McBurney for appellant.

               Melissa E. Darigan for appellee Mortgage Guarantee and Title

          Company.

               Christopher M. Orton  with whom Francis  X. Flaherty was  on

          brief for appellee Charles Greenwood.


                                ____________________


                                    July 14, 1997

                                 ___________________



COFFIN, Senior Circuit Judge.  Malek Ahmed ("Ahmed") appeals


          the 
             district 
                      court's grant of summary judgment for the defendants,


          who he maintains conspired to deprive him of property he owned in


          Providence, Rhode Island.1   Specifically,  Ahmed challenges  the


          dismissal  of  his claims  under  the  Racketeering  and  Corrupt


          Organizations  Act  ("RICO"),  arguing  that  his  complaint  was


          sufficiently detailed to establish  fraud when given the  lenient


          reading he should have been afforded as a pro se plaintiff.  In a


          related 
                 appeal, 
                        Ahmed 
                              contends that the district court erred in not


          setting  aside the dismissal  under Rule 60(b).   We affirm  both


          judgments.


                                      I.  FACTS


               We recite the facts in the light most favorable to the


          plaintiff, the non-moving party.  See McEvoy Travel Bureau, Inc.


          v. Heritage Travel, Inc., 904 F.2d 786, 787 (1st Cir. 1990). 


          However, we must emphasize that while Ahmed would prefer us to


          assess this case and the underlying facts on the basis of the


          Amended Complaint he has submitted on appeal, we are limited in


1    The 
                       original 
                               named 
                                     defendants in this case were:  Charles

          Greenwood ("Greenwood"), an attorney who represented Ahmed in the

          transactions at issue; Irwin Loft ("Loft"), a potential purchaser

          and  agent for  and principal  of Capital  Center Associates  Six

          ("CCAS"), a corporate entity and co-defendant; William T.  Larson

          ("Larson"), 
                     another 
                            potential purchaser; Mortgage Guarantee & Title

          Company 
                 ("MGT"), and Jon and Carol Rosenblatt ("the Rosenblatts").

          Ahmed's claim against  the Rosenblatts  was dismissed  separately

          earlier.  


                                         -2-



our review to the record below, and specifically to the complaint


          that was filed with the district court.2  See Fed. R. App. P. 10.


               The facts of this case concern various transactions relating


          to property held by Ahmed at 47 Maple Street ("47 Maple") in


          Providence.  Ahmed initially entered into a purchase and sale


          agreement with one William Larson in October of 1988, contingent


          upon Larson obtaining financing.  Ahmed retained defendant


          Charles Greenwood to represent him in the transaction, and


          received a $5,000 deposit from Larson which he gave to Greenwood


          to hold in escrow.  On October 20, 1988, Larson notified Ahmed


          that he had been unable to obtain financing; Ahmed asserts that


          he then requested Greenwood to return Larson's deposit, but that


          this was not done until December 20.  


               On December 16, Ahmed entered into a second purchase and


          sale agreement for 47 Maple, this time with Irwin Loft/CCAS.3 


          Ahmed again was represented by Greenwood,4 and he received a


          $25,000 deposit from Loft.  On December 19, the first potential


          purchaser, Larson, recorded his agreement.  On December 23, Loft


          requested that defendant MGT place a lien on Maple Street in


          order to secure his deposit.  


2    We therefore consider the amended complaint only in the

          context of the Rule 60(b) motion.


               3    This contract  contained an extension  of the time  for

          performance to August 1, 1989.  Ahmed contends that his signature

          on this extension was forged.  


               4    Some 
                        time 
                             after this meeting, Loft retained Greenwood to

          represent him in an unrelated eviction proceeding.


                                         -3-



On March 8, 1989, shortly before the closing between Ahmed


          and Loft/CCAS, Loft gave Ahmed an additional $30,000.  The


          closing itself occurred on March 14, but was followed the next


          day by the filing of a lis pendens by Larson, based on his


          earlier agreement with Ahmed.  This lien was discovered by MGT,


          which informed Ahmed that the closing with Loft would be voided


          as a result.  Larson then sued Ahmed for specific performance. 


               On July 12, Ahmed executed in favor of Loft a number of


          documents denominated "Promissory Note Secured by Mortgage,"


          relating to 47 Maple and several other properties.  He maintains


          that he thought these were just receipts for the moneys he had


          received from Loft,5 though Loft contends that the documents were


          intended to create security for the money he had given to Ahmed. 


          Loft unsuccessfully attempted to foreclose on these notes for


          non-payment by Ahmed in 1991 and 1992, and then transferred them


          to Jon and Carol Rosenblatt on April 17, 1993.  Ahmed


          subsequently brought suit on February 17, 1995, alleging that the


          above incidents were all part of a scheme concocted by the


          defendants to defraud him of his interest in 47 Maple and the


          related properties.  


               A magistrate judge issued a report and recommendation that


          Ahmed's complaint be dismissed, saying that Ahmed had failed to


          plead predicate acts, pattern, and enterprise, as required for


          the RICO claim.  Judge Pettine subsequently accepted these


5    On 
                      July 
                           12, 
                               1989, Loft gave Ahmed an additional $30,000,

          bringing the total amount he had paid to $85,000.


                                         -4-



recommendations, stating in his order that Ahmed had failed to


          plead sufficient facts to establish instances of mail and wire


          fraud, a pattern of racketeering activity, or the existence of an


          enterprise affecting interstate commerce.  Judge Pettine further


          found that Ahmed was afforded appropriate leniency as a pro se


          litigant.  Ahmed sought relief under Rule 60(b), claiming the


          district court erred in dismissing his complaint, but the


          district court rejected this.  Ahmed appeals both the original


          judgment and the denial of his post-judgment motion.


                               II.   The First Appeal.


Ahmed raises three claims in his challenge to the district


          court's grant of summary judgment.  Our review is plenary. 


          Feinstein v. Resolution Trust Corp., 942 F.2d 34, 34 (1st Cir.


          1991).


          A.   Dismissal of the RICO claim.


               Ahmed argues that the district court wrongly concluded that


          he failed to plead sufficient facts to demonstrate a RICO


          violation.  We begin by briefly reviewing the well established


          requirements for such a claim.


               A RICO plaintiff must allege a pattern of racketeering


          activity involving at least two predicate acts, the second of


          which must occur within 10 years of the first.  18 U.S.C. S


          1961(5).  Predicate acts under this statute are acts indictable


          under any one or more of certain specified laws, including the


          mail and wire fraud statutes.  See Feinstein, 942 F.2d at 42; see


          also McEvoy, 904 F.2d at 788.  Furthermore, a RICO plaintiff must


                                         -5-



allege the existence of an enterprise, which the statute defines


          as including: "any individual, partnership, corporation,


          association, or other legal entity, and any union or group of


          individuals associated in fact although not a legal entity."  18


          U.S.C. S 1961(4).  Ahmed's complaint fails to establish any of


          these three requirements with sufficient detail to survive


          summary judgment.  


               Turning first to predicate acts, we previously have noted


          "[i]t is not enough for a plaintiff to file a RICO action, chant


          the statutory mantra, and leave the identification of predicate


          acts to the time of trial."  See Feinstein, 942 F.2d  at 42. 


          Ahmed's pleading contains only the bald assertion that the


          defendants (unspecified) used the U.S. mails to fraudulently


          convey their interests in Ahmed's properties, that the defendants


          (again unspecified) used the U.S. Postal Service by mailing


          unspecified materials, and that the defendants used wire


          communications.


               Despite well settled law in this circuit that RICO pleadings


          of mail and wire fraud must satisfy the particularity


          requirements of Rule 9(b), see Feinstein, 942 F.2d at 42; New


          England Data Services, Inc. v. Becher, 829 F.2d 286, 290 (1st


          Cir. 1987),  and that  under 9(b), a pleader must state the time,


          place and content of the alleged mail and wire communications


          perpetrating that fraud, see Becher, 829 F.2d at 291, Ahmed's


          complaint supplies no times, places, or contents.  The record is


          similarly devoid of evidence which would support Ahmed's


-6-



contentions.  He has therefore failed to show the required


          predicate acts.  


               Failure to plead predicate acts adequately is enough to sink


          his RICO claim.  We nonetheless briefly consider the other RICO


          elements.  Following the Supreme Court's lead in H.J., Inc. v.


          Northwestern Bell Tel. Co., 492 U.S. 229, 238 (1989), we have


          held that a plaintiff seeking to establish a RICO "pattern" must


          show that the predicate acts are related and that they amount to


          or pose the threat of continued criminal activity (the


          "continuity" requirement).  See Feinstein, 942 F.2d at 44; see


          also McEvoy, 904 F.2d at 788. 


               In order to demonstrate relatedness, the predicate acts must


          have the same or similar purposes, participants, victims, or


          methods, or otherwise be interrelated by distinguishing


          characteristics and not be isolated events.  See Feinstein, 942


          F.2d at 44; see also Fleet Credit Corp. v. Sion, 893 F.2d 441,


          445 (1st Cir. 1990).  Ahmed's minimal assertions do not permit us


          to realistically assess the purposes, participants, or methods of


          the alleged acts to determine their relatedness.   


               In supporting the continuity prong of the pattern


          requirement, a plaintiff must show either that the related


          predicates "amounted to" continued criminal activity or that


          there was, even though the predicate acts did not span a


          significant time, a "threat" or realistic prospect of continued


          activity in time yet to come.  See Feinstein, 942 F.2d at 45. 


          Here, absent sufficient allegations of both predicate acts and


-7-



relatedness, the "amounted to" threshold has not been reached. 


          Similarly, the "threat" approach is unavailable; there is no


          allegation that, after the attempted foreclosure, such conduct


          was an ongoing entity's way of doing business.


               Finally, on the enterprise element, Ahmed fails to allege


          that the defendants were together part of any legal entity, and


          again, the complaint's mere allegation that an enterprise existed


          does nothing to support that claim or demonstrate how the


          defendants were purportedly associated in fact.  We therefore


          must conclude that Ahmed failed to make his case on this point as


          well.  


               Because Ahmed failed to establish any of the three necessary


          elements of a RICO claim, the district court properly dismissed


          his complaint.  


          B.   The Becher second determination.


               Ahmed attempts to resuscitate his claim under the "second


          determination" approach we adopted in Becher, 829 F.2d at 290. 


          We said there that Rule 9(b) has a special gloss in the RICO


          context in cases where a plaintiff's specific allegations make it


          likely that a defendant has used interstate mails or wire, and


          where this information is in the exclusive control of the


          defendant:  before granting a motion to dismiss, a district court


          should make a second determination as to whether further


          discovery is warranted and, if so, the plaintiff should be


          provided with the opportunity to amend the complaint after the


          completion of this discovery.  See id.  Ahmed contends that the


-8-



magistrate judge and the district court judge erred in not


          conducting such a second determination.  We disagree.


               We must stress again that the application of the 


          second determination is neither automatic, nor of right, for


                                Feinstein
                                                                Becher
          every plaintiff.  See          , 942 F.2d  at 44.  Furthermore,


          not every use of the mails or wires in furtherance of an unlawful


          scheme to deprive another of property constitutes wire or mail


          fraud.  See McEvoy, 904 F.2d at 791.  Ahmed failed to supply


          specific allegations which would indicate that critical


          information was in the sole possession of the defendants, and


          hence that further discovery or the opportunity to amend his


          complaint was warranted.6  Ahmed therefore was not entitled to a


          Becher second determination.   


          C.   Pro se leniency.


               Finally, Ahmed contends that he should have been accorded


          greater leniency due to his pro se status.  Our judicial system


          zealously guards the attempts of pro se litigants on their own


          behalf.  We are required to construe liberally a pro se complaint


          and may affirm its dismissal only if a plaintiff cannot prove any


          set of facts entitling him or her to relief.  See Rockwell v.


          Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994).  However, pro


          se status does not insulate a party from complying with


6    Much 
                        of 
                          Ahmed's 
                                  "support" for his contentions of fraud in

          his original complaint consists of conclusory statements  without

          any 
             supporting 
                        data. 
                              
                              His brief on appeal suffers from a different,

          though related,  ailment,  in that  it  attempts to  draw  causal

          relationships through positing  rhetorical questions to which  it

          then 
              supplies 
                      self-serving answers, again with little or no support

          from the documents in the record.


                                         -9-



procedural and substantive law.  See 


          United States Dep't. of Commerce


          1994).  The policy behind affording pro se plaintiffs liberal


          interpretation is that if they present sufficient facts, the


          court may intuit the correct cause of action, even if it was
                                               Eagle Eye Fishing Corp. v.
                                          , 20 F.3d 503, 506 (1st Cir.


          imperfectly pled.  This is distinct from the case at hand, in


          which the formal elements of the claim were stated without the


          requisite supporting facts.


               Ahmed's pro se status was clearly recognized by both the


          magistrate judge and district court:  the magistrate judge noted


          in his report and recommendation that Ahmed was proceeding pro


          se, while Judge Pettine's order specifically recognized that


          Ahmed was pro se and that his complaint was therefore to be


          construed liberally.7  However, Judge Pettine also stated that


          even under a liberal interpretation of his complaint, Ahmed


          failed to adequately allege the elements of a RICO violation.  We


          agree.


                       III.   The Second Appeal:  Rule 60(b).


               We now turn to Ahmed's claim that the district court erred


          in dismissing his claim for relief under Rule 60(b).  We begin


          with a short synopsis of the procedural history of this second


          part of the appeal.


7    We 
                      also 
                           note 
                               that 
                                    Ahmed 
                                          was briefly represented by Arthur

          Chatfield, III, who filed a supplemental objection to  Magistrate

          Judge Lovegreen's report and recommendation on October 10,  1995,

          prior to  Judge Pettine's Order  adopting the  same.   Therefore,

          although 
                  we 
                    have 
                         assessed Ahmed's claim under the liberal standards

          appropriate to a pro se plaintiff, it appears he was not entirely

          bereft of benefits of counsel during this process.


                                        -10-



Ahmed's original appellate brief was filed with this court


          on June 7, 1996.  Before defendants had filed their briefs, Ahmed


          filed a motion to amend his complaint and filed an amended


          complaint with the circuit.  We denied his motion, and ordered


          that any request to amend be presented to the district court. 


          Ahmed therefore filed a motion to reopen, reconsider, and rehear


          in the district court under Rule 60(b).  At the district court's


          request, we remanded to permit the 60(b) motion to go forward,


          whilst retaining jurisdiction over the original appeal and


          staying proceedings on it.  


               The defendants filed timely objections, and a hearing was


          held by the magistrate judge, who denied plaintiff's motion on


          the ground that he had failed to meet Rule 60(b)'s criteria.  He


          specifically found that the amended complaint, though longer and


          more detailed than that originally filed by Ahmed, was in


          substance the same.  He also found that exceptional circumstances


          were not present in this case, and that, due to the amount of


          time that had passed since judgment was rendered, it would be


          prejudicial to the defendants to assume the burden of defending


          the case at that point.   Ahmed objected to this order; Judge


          Pettine affirmed it.  Ahmed then appealed that denial to this


          circuit, where it was consolidated with his earlier appeal.  


               Our review of the denial of a motion under Rule 60(b) is for


          abuse of discretion.  See Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir.


          1995).  Our review is limited to the denial of the 60(b) motion,


          not the merits of the underlying judgment.  See id.  We will find


-11-



an abuse of discretion only when we are left with a definite and


          firm conviction that the lower court committed a clear error of


          judgment in the conclusion it reached when weighing all the


          relevant factors.  See United States v. Boch Oldsmobile, Inc.,


          909 F.2d 657, 660 (1st Cir. 1990).  Such is not the case here.  


               Ahmed raises claims under both Rule 60(b)(1) and 60(b)(6)


          and we discuss these separately.  


          A.   Rule 60(b)(1).


               Ahmed first contends that the lower courts committed a


          "mistake" under Rule 60(b)(1) in not according him a second


          determination under Becher prior to dismissing his complaint


          under Rule 12(b)(6).8  As discussed above, Ahmed was not entitled


          to a Becher second determination because he failed to allege


          specific facts which would require the district court to initiate


          additional proceedings.  However, even if this were not the case,


          Ahmed's claim on this point would still fail:  in this circuit,


          wrongly deciding a point of law is not a "mistake" as we have


          defined that term under Rule 60(b)(1).  See Hoult, 57 F.3d at 5;


          see also Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.


          1971).


8    Rule 60(b)(1) permits a court to relieve a party from a

          final judgment, order  or proceeding for "mistake,  inadvertence,

          surprise, or excusable neglect...."


                                        -12-



B.   Rule 60(b)(6).


               Ahmed next claims that he is entitled to relief under Rule


                                           Rule 60(b)(6) motions should be


extraordinary relief exist.  See Valley Citizens for a Safe


          Environment v. Aldridge, 969 F.2d 1315, 1317 (1st Cir. 1992). 


          Under the Federal Rules, district courts have broad discretion to


          determine whether such circumstances exist.  See id. 


          Additionally, a 60(b)(6) movant must make a suitable showing that


          the movant has a meritorious claim.      Cotto
          60(b)(6), the catchall clause.9
          granted only where exceptional circumstances justifying
                                               See       v. United States,


          993 F.2d 274, 280 (1st Cir. 1993).


               While we have no doubt that Ahmed has experienced a


          disquieting set of reversals and possible breaches of faith with


          various parties, he simply has been unable to demonstrate a


          colorable claim under RICO.  There has been no showing, beyond


          counsel's hyperbolic assertions, that extraordinary circumstances


          justifying such exceptional relief exist here.  In this


          situation, we are therefore loath to disturb the well reasoned


          decision of the lower court which had before it all the documents


9    Rule 
                        60(b)(6) 
                                provides 
                                         that the court may relieve a party

          from a final judgment, order, or proceeding for "any other reason

          justifying relief from the operation of the judgment."


               Since 
                    Rule 
                         60(b)(6) is designed as a catchall, a motion under

          it is  appropriate only  when  none of  the first  five  sections

          pertain, and section (6) may  not be used as means to  circumvent

          those five preceding sections.  See Simon v. Navon, No.  96-2314,

          slip op.  at 10  (1st Cir.  June 2,  1997).   Ahmed is  therefore

          analytically 
                      inconsistent
                                  in seeking relief under both sections (1)

          and 
             (6), 
                  for 
                      if relief is hypothetically appropriate under section

          (1), then it should not be sought under section (6) as well.


-13-



we have now reviewed, as well as the parties and their counsel,


          and as such was in a superior position to make a determination on


          this issue.    


               As the Supreme Court noted in           v. United States,


          340 U.S. 193, 211-12 (1950), in affirming the denial of a 60(b)


          motion, "[t]here must be an end to litigation someday...."  That


          day has arrived for this particular case.  Both judgments of the


          district court are affirmed.10


MGT maintains in its brief on appeal that Ahmed's  RIC
                                             Ackermann
               10                                                         O

          claim is barred by the four year statute of limitations for  such

          actions; since we have affirmed the district court's dismissal of

          this 
              claim 
                    on the ground that Ahmed did not sufficiently plead the

          RICO 
              claim, 
                     we do not address the statute of limitations argument.


                                        -14-