Angelica Limcaco v. Steve Wynn

• Court: District Court, C.D. California
• Decided: October 29, 2021
• Docket: 2:20-cv-11372
• Status: Unknown

Opinion

Jo-d9 □□ 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 | ANGELICA LIMCACO, RowecMehe IS Plaintiff, ORDER re: Defendants’ 14 v. Motions to Dismiss First 15 | STEVE WYNN, et al., él ol. top [S7, 98,

16 Defendants. 18 Currently before the Court are five motions to 19] dismiss Plaintiff Angelica Limcaco’s (“Plaintiff” or 20 | “Limcaco”) First Amended Complaint (“FAC”) filed by 21] Defendants Wynn Resorts, Ltd. (“Wynn Resorts”) and 22 | Matthew Maddox (“Maddox”) [57], Defendant Steve Wynn 23} (“Wynn”) [58], Defendant Kimmarie Sinatra (“Sinatra”) 24 [61], Defendant Barbara Buckley (“Buckley”) [91], and 25 | Defendant ML Strategies, LLC (“ML Strategies”) [108]. 26 | Having reviewed all papers submitted pertaining to the 27 | Motions, the Court NOW FINDS AND RULES AS FOLLOWS: the 28

1 Court GRANTS with prejudice Wynn Resorts and Maddox’s

2 motion; GRANTS with prejudice Buckley’s motion; GRANTS

3 with prejudice Wynn’s motion; GRANTS with prejudice 4 Sinatra’s motion; and GRANTS with prejudice ML 5 Strategies’s motion. 6 I. BACKGROUND 7 A. Factual Background 8 Plaintiff alleges the following in her FAC: 9 Around July 2005, Plaintiff reported to human 10 resources that a coworker at Wynn Las Vegas casino and 11 resort (“WLV”) had been raped and impregnated by Steve 12 Wynn. See FAC ¶ 40, ECF No. 50. Plaintiff’s superior, 13 Doreen Whennen (“Whennen”), threatened Plaintiff to 14 remain silent about the reported rape allegations 15 (“Limcaco Sexual Assault Report”). Id. Still, Whennen 16 demanded that Plaintiff disclose her other allegations 17 of sexual assault against Wynn. Id. ¶ 44. But, when 18 Plaintiff did so, Whennen took no action. Id. After 19 Plaintiff met with then-president and Chief Operating 20 Officer of WLV, Andrew Pascal, to express concerns about 21 the allegations, Plaintiff was terminated, unable to 22 find work, and forced into bankruptcy. Id. The 23 coworker’s abrupt removal without explanation, 24 Plaintiff’s termination, and WLV’s intimidation tactics 25 induced Plaintiff to fear for her safety if she came 26 forward with her sexual assault allegations. Id. ¶ 45. 27 Defendants Wynn Resorts (owner of WLV), Steve Wynn 28 (former Wynn Resorts Chief Executive Officer), Matthew 1 Maddox (Wynn Resorts executive), and Kimmarie Sinatra

2 (former Wynn Resorts General Counsel and executive)

3 (referred to collectively as the “Wynn Defendants”) 4 sought to protect their interests in gaming licenses by 5 withholding the Limcaco Sexual Assault Report from the 6 Nevada Gaming Control Board (“NGCB”). Id. ¶ 45. In a 7 bid to open the Encore Boston Harbor resort and casino, 8 Defendants also withheld the Limcaco Sexual Assault 9 Report from the Massachusetts Gaming Commission (“MGC”) 10 in violation of the Massachusetts Gaming Act (“MGA”). 11 Id. ¶ 3. 12 Further, Defendants did not disclose to the MCG 13 information regarding the involvement of convicted felon 14 Charles Lightbody in the gaming license process. Id. ¶¶ 15 3-4. The Wynn Defendants partnered with FBT Everett 16 Realty, LLC (“FBT”), of which Lightbody was part owner, 17 in the sale of land for the casino project. Id. ¶ 56. 18 The Wynn Defendants also hired ML Strategies, a 19 political consulting firm, to assist their acquisition 20 of gaming licenses in Massachusetts for the Wynn Boston 21 Casino. Id. ¶ 39. ML Strategies knew of and/or 22 discussed Lightbody’s role in the FBT and Wynn Resorts 23 land deal. Id. Thus, in its representative capacity 24 for Wynn Defendants, ML Strategies violated the MGA by 25 failing to disclose to the MGC (1) information about 26 Lightbody and (2) information about the Limcaco Sexual 27 Assault Report. Id. 28 The Wynn Defendants and ML Strategies also withheld 1 the Limcaco Sexual Assault Report from litigation with

2 Wynn Resorts’ co-founder and former Vice Chairman Kazuo

3 Okada regarding alleged improper payments and the 4 pursuit of a casino in Macau. Id. ¶ 6-7. The Wynn 5 Defendants and ML Strategies still did not disclose the 6 Limcaco Sexual Assault Report to the MGC in 2016 after 7 the sexual assault allegations became a central issue in 8 the Okada litigation. Id. ¶ 7. 9 The existence of the Limcaco Sexual Assault Report 10 became public following the publication of an article by 11 the Wall Street Journal on or around January 26, 2018. 12 Id. ¶ 9. Both the NGBC and MGC began investigations 13 into the matter, threatening the Massachusetts casino 14 license and the $2.6 billion project. Id. ML 15 Strategies assisted Defendant Maddox and other parties 16 with preserving the gaming licenses in the wake of the 17 MGC investigations. Id. 18 Limcaco filed suit (“Nevada Action”) in the United 19 States District Court for the District of Nevada 20 (“Nevada District Court”) on September 4, 2018, alleging 21 wrongful termination in violation of Title VII of the 22 Civil Rights Act of 1964 against WLV and Steve Wynn. 23 Id. ¶ 11. Elayna Youchah (“Youchah”) represented WLV in 24 the Nevada Action. Id. ¶ 14. District Judge Miranda Du 25 presided over the Nevada Action and Magistrate George 26 Foley served as Magistrate Judge. Id. 27 The outcome of the Nevada Action was directly tied 28 to the Wynn Defendants’ illicit efforts to protect their 1 Massachusetts casino license. Id. ¶ 24. On December 3,

2 2018, a merit selection panel was designated to fill the

3 vacancy of Magistrate Foley, who retired before the 4 conclusion of the Nevada Action. Id. ¶ 87(m)(i). On 5 the panel sat Defendant Buckley, executive director of 6 the Legal Aid Center of Southern Nevada (“LACSN”). Id. 7 ¶ 38. LACSN receives funding from Wynn Resorts. Id. 8 The Wynn Defendants intended to use their payments to 9 LACSN to influence Defendant Buckley in elevating 10 Youchah to the court, where WLV’s motion to dismiss was 11 pending, thereby influencing the outcome of the Nevada 12 Action. Id. ¶ 87(m)(vi). 13 All filings in the Nevada Action had been made by 14 Youchah until April 2, 2019, when a colleague of 15 Youchah’s filed a notice of appearance and a reply brief 16 without Youchah’s name. Id. ¶ 87(h). Youchah had at 17 that point been selected to fill the magistrate judge 18 vacancy. Id. at 46 n.21. The court granted WLV’s 19 motion to dismiss on April 18, 2019. Id. ¶ 87(m)(iii). 20 Although Judge Du may not have known of the Wynn 21 Defendants and Buckley’s coordination, she rendered a 22 favorable decision to Youchah, who may have had “greater 23 credibility” as Judge Du’s new colleague on the court. 24 Id. ¶ 87(m)(vi). On April 30, 2019, MGC allowed Wynn 25 Resorts to keep its gaming license, but it fined Wynn 26 Resorts $35,000,000 and installed the firm Miller and 27 Chevalier to monitor Maddox. Id. ¶ 87(j). On May 17, 28 2019, Youchah was publicly announced as the replacement 1 for Magistrate Foley in the Nevada District Court. Id.

2 ¶ 87(l).

3 Following the dismissal of the Nevada Action, Wynn 4 Resorts sponsored LACSN’s annual awards event on 5 December 13, 2019. Id. ¶ 87(m)(v). Sinatra was part of 6 a group that donated an additional $250,000 to LACSN on 7 November 8, 2019. Id. While Wynn Resorts’ donations 8 between April 2019 and April 2020 were originally set 9 forth in a 2017 Memorandum of Understanding (“MOU”), the 10 MOU provided that Wynn Resorts could revoke the 11 donations at its sole discretion. Id. 12 The Wynn Defendants’ payments to influence the 13 outcome of the Nevada Action represent just one instance 14 of a pattern of illegal conduct. Id. ¶ 26. In addition 15 to concealing the Limcaco Sexual Assault Report and 16 involvement of Lightbody, Steve Wynn was involved in 17 Elliot Broidy’s1 conspiracy to violate the Foreign 18 Agents Registration Act, id. ¶ 27, and Maddox remains 19 under investigation by the MGC and Miller and Chevalier 20 for improper conduct, id. ¶ 28. 21 B. Procedural Background 22 On December 16, 2020, Plaintiff initiated this 23 civil Racketeer Influenced and Corrupt Organizations Act 24 (“RICO”) action [1] against the Wynn Defendants. On 25 March 15, 2021, Plaintiff filed her FAC [50], adding a 26 1 According to the FAC, Elliot Broidy was a “top Republican 27 National Convention fundraiser” with whom Wynn conspired with. 28 FAC ¶ 27. 1 cause of action, as well as adding Buckley and ML

2 Strategies (collectively, together with the Wynn

3 Defendants, “Defendants”). 4 In brief, the FAC alleges that the Wynn Defendants 5 made conditional payments to a public official, 6 Defendant Buckley, in an effort to influence the Nevada 7 Action, which arose out of Plaintiff’s prior report of a 8 rape allegation against Defendant Wynn. See FAC ¶ 1, 9 ECF No. 50. The FAC further alleges that this conduct 10 coincided with Defendants’ efforts to save casino gaming 11 licenses in Massachusetts that were at risk of being 12 revoked after the Wall Street Journal published an 13 article reporting numerous allegations of sexual 14 misconduct by Defendant Wynn and publicly revealed the 15 details of Plaintiff’s prior report. See id. ¶¶ 1, 9. 16 Plaintiff brings four causes of action in the FAC: (1) 17 violation of RICO, 18 U.S.C. § 1962(c) (against all 18 Defendants); (2) violation of RICO, 18 U.S.C. § 1962(c) 19 (against Defendants Wynn, Maddox, Sinatra, Buckley, and 20 ML Strategies); (3) conspiracy to violate RICO, 18 21 U.S.C. § 1962(d) (against all Defendants); and (4) 22 independent action in equity to set aside and vacate 23 judgment due to extrinsic fraud or mistake (against all 24 Defendants). See generally id. 25 All Defendants filed motions to dismiss the FAC 26 [57, 58, 61, 91, 108]. Defendants Wynn [59], Sinatra 27 [61], and Buckley [91] also joined Defendants Wynn 28 Resorts and Maddox’s motion to dismiss [57]. Defendant 1 ML Strategies filed a joinder [107] to all other

2 Defendants’ motions to dismiss.

3 On May 3, 2021, the Court granted [105] Defendants’ 4 Motion for a Finding of Good Cause to Continue Fed. R. 5 Civ. P. 16(b) Scheduling Conference [69] and continued 6 the Scheduling Conference to August 24, 2021. 7 II. LEGAL STANDARD 8 A. Rule 12(b)(2) 9 Federal Rule of Civil Procedure (“Rule”) 12(b)(2) 10 provides a basis for moving to dismiss a claim for lack 11 of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). 12 Once personal jurisdiction is challenged, the plaintiff 13 bears the burden of demonstrating that jurisdiction is 14 appropriate. See, e.g., Boschetto v. Hansing, 539 F.3d 15 1011, 1015 (9th Cir. 2008); Pebble Beach Co. v. Caddy, 16 453 F.3d 1151, 1154 (9th Cir. 2006). Where the motion 17 is “based on written materials rather than an 18 evidentiary hearing, the plaintiff need only make a 19 prima facie showing of jurisdictional facts” to survive 20 dismissal. Mavrix Photo, Inc. v. Brand Techs., Inc., 21 647 F.3d 1218, 1223 (9th Cir. 2011). 22 “The plaintiff cannot ‘simply rest on the bare 23 allegations of [the] complaint,’ but uncontroverted 24 allegations in the complaint must be taken as true.” 25 Id. (quoting Schwarzenegger v. Fred Martin Motor Co., 26 374 F.3d 797, 800 (9th Cir. 2004)). If, however, the 27 defendant presents evidence contradicting the 28 allegations in the complaint, the plaintiff must “come 1 forward with facts, by affidavit or otherwise,

2 supporting personal jurisdiction.” Barantsevich v. VTB

3 Bank, 954 F. Supp. 2d 972, 982 (C.D. Cal. 2013) (quoting 4 Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)). 5 “[D]isputed allegations in the complaint that are not 6 supported with evidence or affidavits cannot establish 7 jurisdiction[.]” AMA Multimedia, LLC v. Wanat, 970 F.3d 8 1201, 1207 (9th Cir. 2020). Although the court “may not 9 assume the truth of allegations in a pleading which are 10 contradicted by affidavit,” factual disputes must be 11 resolved in the plaintiff’s favor. Mavrix Photo, 647 12 F.3d at 1223 (citations omitted). 13 “Personal jurisdiction over [a nonresident] 14 defendant is proper where permitted by a long-arm 15 statute and where the exercise of jurisdiction does not 16 violate federal due process.” AMA Multimedia, 970 F.3d 17 at 1207 (citing Pebble Beach, 453 F.3d at 1154). Where 18 no applicable federal statute governs personal 19 jurisdiction, “the district court applies the law of the 20 state in which the court sits.” Mavrix Photo, 647 F.3d 21 at 1223. “Because ‘California’s long-arm statute allows 22 the exercise of personal jurisdiction to the full extent 23 permissible under the U.S. Constitution,’ our inquiry 24 centers on whether exercising jurisdiction comports with 25 due process.” Picot v. Weston, 780 F.3d 1206, 1211 (9th 26 Cir. 2015) (quoting Daimler AG v. Bauman, 571 U.S. 117, 27 125 (2014)); see Cal. Code Civ. Proc. § 410.10. 28 Constitutional due process requires that a 1 nonresident defendant have “certain minimum contacts

2 with [the forum state] such that the maintenance of the

3 suit does not offend ‘traditional notions of fair play 4 and substantial justice.’” Goodyear Dunlop Tires 5 Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011) 6 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 7 (1945)). Depending on the nature and extent of the 8 defendant’s contacts with the forum state, a court may 9 exercise either general or specific jurisdiction. 10 Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. 11 Ct. 1773, 1780 (2017). General jurisdiction exists when 12 the defendant’s contacts “are so continuous and 13 systematic as to render [it] essentially at home in the 14 forum State.” Daimler, 571 U.S. at 139 (internal 15 quotation marks and citation omitted). By contrast, 16 specific jurisdiction exists when the suit “aris[es] out 17 of or relate[s] to the defendant’s contacts with the 18 forum.” Id. at 127 (citations omitted). 19 B. Rule 12(b)(6) 20 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 21 allows a party to move for dismissal on one or more 22 claims if a pleading fails to state a claim upon which 23 relief can be granted. Fed. R. Civ. P. 12(b)(6). 24 Pursuant to Rule 8(a), a complaint must contain “a short 25 and plain statement of the claim showing that the 26 pleader is entitled to relief” to give the defendant 27 “fair notice of what the . . . claim is and the grounds 28 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 1 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a).

2 Dismissal is proper “where the complaint lacks a

3 cognizable legal theory or sufficient facts to support a 4 cognizable legal theory.” Mendiondo v. Centinela Hosp. 5 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (citing 6 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 7 (9th Cir. 1988)). 8 “To survive a motion to dismiss, a complaint must 9 contain sufficient factual matter, accepted as true, to 10 ‘state a claim to relief that is plausible on its 11 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (quoting Twombly, 550 U.S. at 570). While a complaint 13 need not contain detailed factual allegations, it must 14 provide more than “labels and conclusions” or “a 15 formulaic recitation of the elements of a cause of 16 action.” Twombly, 550 U.S. at 555. The plaintiff must 17 allege enough facts “to raise a right to relief above 18 the speculative level.” Id. In evaluating a Rule 19 12(b)(6) motion, a court must take all well-pleaded 20 allegations of material fact as true and construe them 21 in the light most favorable to the plaintiff. Great 22 Minds v. Off. Depot, Inc., 945 F.3d 1106, 1109 (9th Cir. 23 2019). A court may generally consider only “the 24 complaint itself and its attached exhibits, documents 25 incorporated by reference, and matters properly subject 26 to judicial notice.” In re NVIDIA Corp. Sec. Litig., 27 768 F.3d 1046, 1051 (9th Cir. 2014). 28 /// 1 III. DISCUSSION

2 A. Judicial Notice

3 1. Wynn Resorts & Maddox’s Requests for Judicial 4 Notice 5 Before turning to the merits of Defendants’ 6 motions, the Court first addresses the numerous requests 7 for judicial notice made in connection with the present 8 motions. A court may take judicial notice of an 9 adjudicative fact that is “not subject to reasonable 10 dispute because it: (1) is generally known within the 11 trial court’s territorial jurisdiction; or (2) can be 12 accurately and readily determined from sources whose 13 accuracy cannot reasonably be questioned.” Fed. R. 14 Evid. 201(b). Matters of public record may be 15 judicially noticed, but disputed facts contained therein 16 may not. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 17 988, 999 (9th Cir. 2018). “[A]ccuracy is only part of 18 the inquiry under Rule 201(b).” Id. “A court must also 19 consider—and identify—which fact or facts it is noticing 20 from” the documents. Id. 21 Wynn Resorts and Maddox filed two requests seeking 22 judicial notice of the following twelve documents: 23 (1) the order dismissing Plaintiff’s claims in the 24 Nevada Action, dated April 18, 2019 (“Exhibit A”); 25 (2) the docket in the Nevada Action, as of February 22, 26 2021 (“Exhibit B”); (3) Plaintiff’s complaint filed in 27 Limcaco v. Wynn Las Vegas, LLC, et al., Eighth Judicial 28 District Court, Clark County, Nevada, Case No. A-19- 1 796060-C (“Plaintiff’s State Case”), dated June 4, 2019

2 (“Exhibit C”); (4) Plaintiff’s amended supplemental

3 brief filed in Limcaco v. Wynn Las Vegas, LLC, et al., 4 U.S. Court of Appeals for the Ninth Circuit, Case No. 5 19-15949, dated April 14, 2020 (“Exhibit D”); (5) the 6 order staying Plaintiff’s State Case, dated October 17, 7 2019 (“Exhibit E”); (6) the press release from the 8 Nevada District Court announcing the appointment of 9 Elayna J. Youchah as a U.S. Magistrate Judge, dated May 10 17, 2019 (“Exhibit F”); (7) the MGC’s decision and order 11 regarding its investigation of Wynn MA, LLC and Wynn 12 Resorts, Ltd, dated April 30, 2019 (“Exhibit G”); (8) 13 the order appointing a merit selection panel to make a 14 recommendation for the replacement of Magistrate Judge 15 Carl W. Hoffman, Jr. and Magistrate Judge George W. 16 Foley, Jr., dated December 3, 2018 (“Exhibit H”); 17 (9) Plaintiff’s petition for a writ of certiorari in 18 Limcaco v. Wynn Las Vegas, LLC, et al., U.S. Supreme 19 Court, Case No. 20-949, dated March 22, 2021 (“Exhibit 20 I”); (10) an excerpt of the order list denying 21 certiorari in Limcaco v. Wynn Las Vegas, LLC, et al., 22 U.S. Supreme Court, Case No. 20-949, dated March 22, 23 2021 (“Exhibit J”); (11) Wynn Resorts, Ltd.’s 24 environmental, social, and governance report for the 25 year 2017 (“Exhibit K”); and (12) a press release titled 26 “Wynn Resorts Issues 2017 Global Sustainability Report,” 27 dated May 22, 2018 (“Exhibit L”). See generally Wynn 28 Resorts & Maddox’s Req. for Judicial Notice, ECF No. 57- 1 2; Wynn Resorts & Maddox’s Suppl. Req. for Judicial

2 Notice, ECF No. 74-1.

3 Exhibits A through E, I, and J are court filings 4 and records in related proceedings and thus properly 5 subject to judicial notice. See Reyn’s Pasta Bella, LLC 6 v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) 7 (taking judicial notice of pleadings, memoranda, and 8 other court documents). The Court takes judicial notice 9 of the existence of these proceedings, the dates of 10 filing, the Plaintiff’s claims, and the courts’ 11 dispositions. See Exs. A-E, ECF Nos. 57-3 to -7; Exs. 12 K-L, ECF Nos. 74-2 to -3. The Court does not, however, 13 take judicial notice of these documents for the truth of 14 the matters asserted therein. See Lee v. City of Los 15 Angeles, 250 F.3d 668, 690 (9th Cir. 2001). 16 Exhibits F and H are also susceptible to judicial 17 notice because, as official documents from the Nevada 18 District Court, they are not subject to reasonable 19 dispute. See Dehoog v. Anheuser-Busch InBev SA/NV, 899 20 F.3d 758, 763 n.5 (9th Cir. 2018) (taking judicial 21 notice of “government documents, court filings, press 22 releases, and undisputed matters of public record”). 23 The Court notices that Youchah’s appointment as a U.S. 24 Magistrate Judge was announced on May 17, 2019, and that 25 she was to assume the position on August 6, 2019. See 26 Ex. F, ECF No. 57-8. The Court also notices the fact 27 that the Chief Judge of the Nevada District Court 28 appointed nine members to serve on the merit selection 1 panel. See Ex. H, ECF No. 57-11. These facts “can be

2 accurately and readily determined” from the press

3 release and order, and Plaintiff does not dispute their 4 veracity. Fed. R. Evid. 201(b). 5 Accordingly, Wynn Resorts & Maddox’s requests for 6 judicial notice are GRANTED as to Exhibits A, B, C, D, 7 E, F, H, I, and J. The Court DENIES the requests for 8 judicial notice as to Exhibits G, K, and L because they 9 are not necessary to the resolution of Defendants’ 10 motions to dismiss the FAC. 11 2. Plaintiff’s Requests for Judicial Notice 12 Plaintiff filed nine requests for judicial notice. 13 The first five requests were filed before the conclusion 14 of briefing on the present motions. Plaintiff then 15 filed three more requests. Following the third, 16 Defendants objected to the later-filed requests for 17 judicial notice on the grounds that (1) the documents 18 are not relevant to Defendants’ motions or Plaintiff’s 19 allegations, (2) their contents are not judicially 20 noticeable, and (3) Plaintiff’s requests for judicial 21 notice are effectively improper sur-replies. See 22 generally Defs.’ Objs. to Pl.’s Reqs. for Judicial 23 Notice, Dkt. Nos. 117, 122, 126, ECF No. 127. Plaintiff 24 filed a reply to Defendants’ objections, arguing that 25 her requests are proper and the documents are relevant. 26 See generally Reply Brief in Supp. of Pl.’s Reqs. for 27 Judicial Notice, ECF No. 128. Doubling down, Plaintiff 28 thereafter filed her ninth request for judicial notice. 1 i. Plaintiff’s Later-Filed Requests for

2 Judicial Notice

3 The Court does not take judicial notice of the 4 seventeen documents identified in Plaintiff’s later- 5 filed requests. See generally Pl.’s Req. for Judicial 6 Notice re Defs.’ MTDs and Mot. to Stay Disc., ECF No. 7 117; Pl.’s Req. for Judicial Notice re Defs.’ MTDs, ECF 8 No. 122; Pl.’s Req. for Judicial Notice re Defs.’ MTDs, 9 ECF No. 126; Pl.’s Req. for Judicial Notice re Defs.’ 10 MTDs, ECF No. 129. All but five of these documents were 11 available before the close of briefing and even before 12 the operative FAC was filed. The Court sees no reason 13 why Plaintiff could not have discovered and included any 14 pertinent information from those documents in her 15 oppositions. Although they do not directly respond to 16 Defendants’ reply briefs, Plaintiff’s requests for 17 judicial notice contain argument—specifically aimed at 18 establishing open-ended continuity—such that they could 19 be construed as improper sur-replies or at least as 20 attempts to bolster her FAC. See L.R. 7-10 (“Absent 21 prior written order of the Court, the opposing party 22 shall not file a response to the reply.”). 23 Moreover, assuming they were properly filed, the 24 documents of which Plaintiff seeks judicial notice would 25 not necessarily be as helpful as she claims. See Khoja, 26 899 F.3d at 999 (“Just because the document itself is 27 susceptible to judicial notice does not mean that every 28 assertion of fact within that document is judicially 1 noticeable for its truth.”); Von Saher v. Norton Simon

2 Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.

3 2010) (“Courts may take judicial notice of publications 4 introduced to indicate what was in the public realm at 5 the time, not whether the contents of those articles 6 were in fact true.” (internal quotation marks and 7 citation omitted)); Gerritsen v. Warner Bros. Ent. Inc., 8 112 F. Supp. 3d 1011, 1029–30 (C.D. Cal. 2015) 9 (declining to take judicial notice of newspaper articles 10 and press releases because “it [was] irrelevant, for 11 purposes of defendants’ motion to dismiss, that the 12 information in the press releases and news articles was 13 publicly available”). 14 Finally, the documents are not pertinent or 15 necessary to the Court’s resolution of the present 16 motions, and the Court does not rely upon them. On this 17 basis, the Court therefore DENIES Plaintiff’s four 18 later-filed requests for judicial notice. Defendants’ 19 objections are OVERRULED. 20 The Court next considers Plaintiff’s first five 21 requests for judicial notice. 22 ii. Plaintiff’s First Five Requests for 23 Judicial Notice 24 In her first request, Plaintiff asks the Court to 25 take judicial notice of: (1) Sinatra’s separation 26 agreement with Wynn Resorts that was filed with the SEC, 27 stating that Sinatra “agree[d] to cooperate with [Wynn 28 Resorts]” through December 31, 2018; (2) the docket from 1 the Nevada Action, as of February 22, 2021; (3) the

2 order appointing a merit selection panel that included

3 Peterson and Buckley to make a recommendation for the 4 replacement of vacancies in the Nevada District Court, 5 dated October 2, 2018; (4) an announcement from the 6 Clark County Bar Association’s website that the deadline 7 to submit applications to fill Magistrate Judge Foley’s 8 vacancy was November 30, 2018; (5) the order appointing 9 a merit selection panel that included Buckley to make a 10 recommendation for the replacement of Magistrate Judge 11 Carl W. Hoffman, Jr. and Magistrate Judge George W. 12 Foley, Jr., dated December 3, 2018; (6) the order 13 appointing a merit selection panel that included 14 Peterson and Buckley to make a recommendation regarding 15 vacancies, dated January 2, 2019; (7) the press release 16 announcing Youchah’s selection to fill the vacancy of 17 Magistrate Judge Foley, dated May 17, 2019; (8) the 18 “Case Query” page of the Nevada Action; (9) Buckley’s 19 biography; (10) Sinatra’s biography; and (11) LACSN’s 20 Form 990 for the year 2019. See generally Pl.’s First 21 Req. for Judicial Notice, ECF No. 87. 22 Nearly all of these documents are properly subject 23 to judicial notice. See Dehoog, 899 F.3d 758, 763 n.5 24 (9th Cir. 2018) (taking judicial notice of “government 25 documents, court filings, press releases, and undisputed 26 matters of public record”). The Court notes that the 27 source of Buckley’s and Sinatra’s biographies are not 28 clearly ascertainable. But Defendants do not object to 1 them, and the facts Plaintiff seek to be judicially

2 noticed—Buckley’s and Sinatra’s roles in LACSN—are not

3 disputed. Accordingly, the Court GRANTS Plaintiff’s 4 first request for judicial notice. 5 The Court notes that all of the facts Plaintiff 6 asks the Court to judicially notice are already alleged 7 in the FAC—for example, the fact that Buckley and 8 Peterson, Wynn’s counsel, were named on the same merit 9 selection panel on January 2, 2019, FAC ¶ 87(m)(iii); 10 Youchah filed motions and reply briefs as lead counsel 11 WLV in February and March 2019, FAC ¶ 87(f); Youchah’s 12 colleague filed a notice of appearance on April 2, 2019, 13 FAC ¶ 20; the Nevada District Court granted WLV’s motion 14 to dismiss without leave to amend on April 18, 2019, FAC 15 ¶ 114; Youchah’s selection to fill the vacancy of 16 Magistrate Judge Foley was publicly announced on May 17, 17 2019, FAC ¶ 19; Youchah’s representation of WLV ended on 18 May 28, 2019, FAC ¶ 87(l); Buckley is the executive 19 director of LACSN, FAC ¶ 1; Sinatra is on the board of 20 directors of LACSN, FAC ¶ 22; and LACSN’s Form 990 21 indicates that LACSN paid Buckley approximately $238,100 22 in 2019, FAC ¶ 38. The allegations in the FAC are taken 23 as true in resolving Defendants’ motions to dismiss, and 24 it is unnecessary to judicially notice these facts. 25 In her second request, Plaintiff seeks judicial 26 notice of ten Wall Street Journal articles from January 27 2018 to April 2019 regarding sexual assault allegations 28 against Wynn and the MGC’s investigation. See generally 1 Pl.’s Second Req. for Judicial Notice, ECF No. 88.

2 Again, most of the highlighted facts are already alleged

3 in the FAC or are reasonable inferences that can be 4 drawn from its allegations. Other highlighted 5 statements are imbued with speculation or subject to 6 varying interpretations. See, e.g., Ex. E, ECF No.88-5 7 (“In the past week, company executives appeared to be 8 trying to mount a defensive strategy against the 9 allegations through a series of highly unusual moves.”). 10 Defendants do not oppose Plaintiff’s request, however, 11 so the Court takes judicial notice of these articles for 12 the limited purpose of establishing what was publicly 13 known or reported at the time. See Von Saher, 592 F.3d 14 at 960 (explaining that courts may take judicial notice 15 of news articles and other publications “to indicate 16 what was in the public realm at the time, not whether 17 the contents of those articles were in fact true”); 18 Khoja, 899 F.3d at 1000 (“It is improper to judicially 19 notice a [document] when the substance of the [document] 20 is subject to varying interpretations, and there is a 21 reasonable dispute as to what the [document] 22 establishes.” (internal quotation marks and citation 23 omitted)). Plaintiff’s second request for judicial 24 notice is GRANTED, but the Court does not judicially 25 notice the statements contained in the news articles for 26 their truth. 27 /// 28 /// 1 In her third request, Plaintiff requests judicial

2 notice of certain documents related to the MGC’s

3 investigation, including: (1) an investigative report 4 regarding the suitability of Wynn MA, LLC and others, 5 dated March 15, 2019; (2) a notice of hearing dated 6 March 26, 2019 regarding the April 2019 hearing to 7 determine the suitability of Wynn MA, LLC and others; 8 (3) an excerpt from the transcript of the hearing on 9 April 4, 2019; and (4) a press release from the MGC, 10 dated April 30, 2019, which states that Maddox will be 11 fined and monitored but the relevant qualifiers will 12 retain their casino licenses. See generally Pl.’s Third 13 Req. for Judicial Notice, ECF No. 89. Although the 14 investigative report may be judicially noticeable as the 15 public report of a governmental body, Plaintiff does not 16 make clear what facts it seeks judicial notice of from 17 the 209-page document. Additionally, the occurrence and 18 outcome of the MGC hearing is already alleged in the 19 FAC. FAC ¶¶ 15, 87(g). Further, the Court does not and 20 need not rely on these documents in its decision on the 21 present motions. The Court therefore DENIES Plaintiff’s 22 third request for judicial notice. 23 In her fourth request, Plaintiff seeks judicial 24 notice of court filings in other proceedings, 25 specifically a motion to intervene and a complaint. See 26 generally Pl.’s Fourth Req. for Judicial Notice, ECF No. 27 90. Plaintiff appears to rely on the truth of the 28 allegations contained in these filings to support her 1 allegations of prior criminal investigations involving

2 Defendants and gaming licenses. See id. at 3:8-10

3 (describing the filings as “verifiable evidence”). This 4 could be problematic because, although court filings and 5 other matters of public record generally are judicially 6 noticeable, disputed facts asserted therein are not. 7 Khoja, 899 F.3d at 999 (9th Cir. 2018). And typically, 8 allegations in motions and complaints are disputed. 9 Here, however, the allegations indicate other criminal 10 investigations already referenced in the FAC, and 11 Defendants do not oppose this request. The Court GRANTS 12 Plaintiff’s fourth request for judicial notice, but it 13 does not judicially notice any disputed facts within the 14 court filings. 15 Finally, in her fifth request, Plaintiff requests 16 judicial notice of a Wall Street Journal article titled 17 “Steve Wynn May Face Justice Department Action for Role 18 in China’s Push to Expel Business,” dated May 26, 2021. 19 See generally Pl.’s First Req. for Judicial Notice re 20 Defs.’ MTDs, ECF No. 114. As with the other Wall Street 21 Journal articles, the Court GRANTS this request and 22 takes judicial notice of this article as indicative of 23 what was in the public realm at the time, but not for 24 the veracity of its contents. See Von Saher, 592 F.3d 25 at 960. 26 /// 27 /// 28 /// 1 3. ML Strategies’s Requests for Judicial Notice

2 ML Strategies filed two requests for judicial

3 notice of the following documents published on the MGC’s 4 website: (1) MGC’s “Instructions for Application for a 5 Gaming License-RFA Phase 1 Application”; and (2) MGC’s 6 “Phase I Suitability Decision” for Wynn MA, LLC. See 7 generally ML Strategies’s Req. for Judicial Notice in 8 Supp. of MTD, ECF No. 108-2; ML Strategies’s Req. for 9 Judicial Notice in Supp. of Reply, ECF No. 115-1. 10 Although they may be judicially noticeable, see Daniels- 11 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th 12 Cir. 2010), the Court declines to take judicial notice 13 of these documents because they are unnecessary to the 14 determination of the present motions and the Court does 15 not rely on them. ML Stategies’s requests for judicial 16 notice are DENIED. 17 B. Defendant Buckley’s MTD FAC [91] 18 Buckley moves to dismiss the FAC for lack of 19 personal jurisdiction pursuant to Rule 12(b)(2) and for 20 failure to state a claim pursuant to Rule 12(b)(6). 21 Plaintiff argues that RICO’s nationwide service of 22 process provision, 18 U.S.C. § 1965(b), confers personal 23 jurisdiction over Buckley and that Buckley is otherwise 24 subject to specific jurisdiction in California. Pl.’s 25 Opp’n to Buckley’s MTD 5:10-7:27, ECF No. 101. The 26 Court concludes that it lacks personal jurisdiction over 27 Buckley under either theory and does not address 28 Buckley’s arguments advanced under Rule 12(b)(6). 1 1. Jurisdiction Under RICO

2 Congress authorizes nationwide service of process

3 upon RICO defendants if “the ends of justice” require 4 it. 18 U.S.C. § 1965(b). “Under 18 U.S.C. § 1965(b), a 5 court may exercise personal jurisdiction over non- 6 resident participants in an alleged RICO conspiracy, 7 even if those parties would otherwise not be amenable to 8 jurisdiction in that court.” Rupert v. Bond, 68 F. 9 Supp. 3d 1142, 1161 (N.D. Cal. 2014). “[T]he right to 10 nationwide service in RICO suits is not unlimited,” 11 however, and “merely naming persons in a RICO complaint 12 does not, in itself, make them subject to section 13 1965(b)’s nationwide service provisions.” Butcher’s 14 Union Loc. No. 498, United Food & Com. Workers v. SDC 15 Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986). “In 16 order to establish personal jurisdiction under Section 17 1965(b), Plaintiff[] must show: (1) the Court has 18 personal jurisdiction over at least one of the 19 participants in the action; (2) there is no other 20 district in which a court will have personal 21 jurisdiction over the alleged co-conspirators; and (3) 22 the facts show a single nationwide RICO conspiracy 23 exists.” Gilbert v. Bank of Am., No. C 13-01171 JSW, 24 2014 WL 4748494, at *4 (N.D. Cal. Sept. 23, 2014) 25 (internal quotation marks omitted) (citing Butcher’s 26 Union, 788 F.2d at 539). 27 Buckley challenges the second and third prongs, 28 arguing that: (1) Plaintiff makes no effort to show that 1 there is no other district in which a court would have

2 personal jurisdiction over all Defendants; and (2)

3 Plaintiff fails to allege a multidistrict conspiracy 4 that encompasses Buckley. Buckley’s MTD 7:16-8:12. The 5 Court agrees with Buckley that, at a minimum, Plaintiff 6 has not established the second prong. 7 Plaintiff concedes that Wynn, Maddox, Sinatra, 8 Buckley, and Wynn Resorts could be subject to 9 jurisdiction in Nevada but argues that the FAC’s 10 allegations do not establish that all Defendants would 11 be amenable to jurisdiction in Nevada or elsewhere. 12 Pl.’s Opp’n to Buckley’s MTD 5:4-7. To support her 13 contention, Plaintiff points to allegations that ML 14 Strategies “is a Delaware limited liability company 15 registered to do business in the Commonwealth/State of 16 Massachusetts,” that it “was hired by the Wynn 17 Defendants to assist in acquiring gaming licenses in 18 Massachusetts,” and that ML Strategies’s alleged 19 predicate acts primarily involve misrepresentations to 20 the MGC. Id. at 6:9-14 (citing FAC ¶¶ 39, 96(a)). 21 Based on these allegations, Plaintiff concludes “there 22 is no indication that Nevada has jurisdiction over ML 23 Strategies.” Id. at 6:14-15. Plaintiff further asserts 24 that “there is no indication that Massachusetts has 25 jurisdiction over Buckley, as the allegations pertaining 26 to her surround conduct in Nevada (and aimed at 27 [Plaintiff]).” Id. at 6:15-17 (citing FAC ¶ 96(c)-(e)). 28 /// 1 Plaintiff has not met its burden to show that there

2 is no other district in which a court would have

3 personal jurisdiction over all of the alleged co- 4 conspirators. Indeed, the allegations in the FAC 5 indicate that all Defendants—except perhaps the most 6 recently added ML Strategies—would be subject to 7 jurisdiction in Nevada. Plaintiff’s conclusory 8 assertion that “there is no indication” that ML 9 Strategies is amenable to jurisdiction in Nevada (or 10 Buckley, in Massachusetts) is insufficient to establish 11 jurisdiction under § 1965(b). See Huntair, Inc. v. 12 Gladstone, 774 F. Supp. 2d 1035, 1039–40 (N.D. Cal. 13 2011) (finding the plaintiffs’ statement that they “are 14 not aware of any other district in which a court would 15 have personal jurisdiction over all of the defendants” 16 was “conclusory” and “insufficient to meet [the 17 plaintiffs’] burden to demonstrate that jurisdiction 18 under § 1965(b) would be appropriate”); see also 19 Barantsevich v. VTB Bank, 954 F. Supp. 2d 972, 989–90 20 (C.D. Cal. 2013) (“While it is not clear that there is 21 another district that could exercise jurisdiction over 22 all defendants, plaintiff has the burden of showing 23 affirmatively that this is the case.”). Because 24 Plaintiff fails to allege sufficient facts showing that 25 no other district court could exercise jurisdiction over 26 all Defendants, she may not rely on § 1965(b) to supply 27 a basis for personal jurisdiction. See, e.g., Wegner v. 28 Wells Fargo Bank, N.A., 791 F. App’x 669, 671 (9th Cir. 1 2020); Elofson v. Bivens, 774 F. App’x 409, 410 (9th

2 Cir. 2019), cert. denied, 140 S. Ct. 903 (2020).

3 2. Specific Jurisdiction 4 “There are three requirements for a court to 5 exercise specific jurisdiction over a nonresident 6 defendant: (1) the defendant must either purposefully 7 direct his activities toward the forum or purposefully 8 avail[ ] himself of the privileges of conducting 9 activities in the forum; (2) the claim must be one which 10 arises out of or relates to the defendant’s forum- 11 related activities; and (3) the exercise of jurisdiction 12 must comport with fair play and substantial justice, 13 i.e. it must be reasonable.” Axiom Foods, Inc. v. 14 Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 15 2017) (internal quotation marks and citation omitted). 16 The plaintiff bears the burden of establishing the first 17 two prongs of the test. Id. “If the plaintiff meets 18 that burden, ‘the burden then shifts to the defendant to 19 “present a compelling case” that the exercise of 20 jurisdiction would not be reasonable.’” Id. at 1068-69 21 (quoting Schwarzenegger v. Fred Martin Motor Co., 374 22 F.3d 797, 802 (9th Cir. 2004)). 23 Because Plaintiff’s claims sound in tort, the Court 24 uses the “effects” test to analyze the purposeful 25 direction prong. See Calder v. Jones, 465 U.S. 783 26 (1984). The “effects” test requires Plaintiff to show 27 that Buckley “(1) committed an intentional act, (2) 28 expressly aimed at the forum state, (3) causing harm 1 that [Buckley] knows is likely to be suffered in the

2 forum state.” Id. (citation omitted).

3 In this case, Plaintiff fails to satisfy the 4 purposeful direction test because she does not show that 5 Buckley committed any intentional acts expressly aimed 6 at California. Plaintiff argues that Buckley committed 7 an intentional act—conspiring with the Wynn Defendants 8 to elevate Youchah to a magistrate judge position—aimed 9 at California because “the actions were directed at 10 [Plaintiff], a California resident,” and “the harm is 11 felt in California” since Plaintiff is the aggrieved 12 party. Pl.’s Opp’n to Buckley’s MTD 7:21-25. But “mere 13 injury to a forum resident is not a sufficient 14 connection to the forum.” Walden v. Fiore, 571 U.S. 15 277, 290 (2014). “The proper question is not where the 16 plaintiff experienced a particular injury or effect but 17 whether the defendant’s conduct connects him to the 18 forum in a meaningful way.” Id. The relevant conduct 19 in this case took place in Nevada and Massachusetts, and 20 Plaintiff’s only allegations specific to Buckley are 21 confined to Nevada. The mere fact that Buckley’s 22 conduct allegedly affected Plaintiff, who has 23 connections to California, does not subject Buckley to 24 specific jurisdiction in California. See id. at 285, 25 291 (“[T]he plaintiff cannot be the only link between 26 the defendant and the forum.”). Accordingly, this Court 27 lacks specific jurisdiction over Buckley. 28 /// 1 In sum, Plaintiff establishes neither jurisdiction

2 under RICO, 18 U.S.C. § 1965(b), nor specific

3 jurisdiction over Buckley. Plaintiff does not allege 4 any other basis for personal jurisdiction over Buckley. 5 The Court therefore GRANTS Buckley’s motion to dismiss 6 for lack of personal jurisdiction. 7 C. Defendants Wynn Resorts & Maddox’s MTD FAC [57] 8 Defendants Wynn Resorts and Maddox move to dismiss 9 Plaintiff’s claims on the grounds that: 1) they are 10 barred by the affirmed dismissal of the Nevada Action; 11 and 2) the RICO claims are substantively defective. See 12 Wynn Resorts & Maddox’s MTD at 2:11-3:13. 13 1. Dismissal of the Prior Nevada Action 14 Defendants contend that this action is an improper 15 collateral attack on the prior judgment in the Nevada 16 Action. Id. at 16:22-23. Defendants argue that 17 Plaintiff’s fourth cause of action confirms this because 18 Plaintiff could have availed herself of Rule 60(b)(3) or 19 otherwise moved to recuse the judge in the Nevada 20 Action. Id. at 16:22-17:10. Defendants also argue that 21 RICO cannot be used to avoid the preclusive effect of a 22 prior judgment, and raise issues of res judicata and 23 collateral estoppel. Id. at 16:16-21. The Court will 24 examine these arguments in turn below. 25 /// 26 /// 27 /// 28 /// 1 i. Plaintiff’s Fourth Cause of Action:

2 Independent Action in Equity to Set Aside

3 and Vacate Judgment 4 Defendants argue that Plaintiff’s fourth cause of 5 action fails because “such a claim is available only 6 when there is no adequate remedy at law.” Id. at 16:28- 7 17:1. According to Defendants, Plaintiff could have 8 moved, in the Nevada District Court, for relief from 9 judgment under Rule 60(b)(3) and for recusal under 28 10 U.S.C. § 144 if she believed that the judge in the 11 Nevada Action could not impartially decide the Rule 12 60(b)(3) motion. Id. at 17:2-15. 13 Rule 60(b) enumerates six grounds for a court, 14 “[o]n motion and just terms,” to relieve a party from a 15 final judgment. Fed. R. Civ. P. 60(b). Motions under 16 Rule 60(b)(1)-(3), which include those based on fraud or 17 mistake, must be made “no more than a year after the 18 entry of the judgment or order or the date of the 19 proceeding.”2 Fed. R. Civ. P. 60(c)(1). This deadline 20 has long passed, so Plaintiff cannot seek relief under a 21 Rule 60(b)(3) motion. But Rule 60 has an exception for 22 fraud committed on the court, which provides that 23 “[t]his rule does not limit a court’s power to entertain 24 an independent action to relieve a party from a

25 2 Rule 60(b)(1)-(3) permits relief from a final judgment based on “mistake, inadvertence, surprise or excusable neglect”; 26 “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under 27 Rule 59(b)”; and “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing 28 party,” respectively. 1 judgment, order, or proceeding . . . or set aside a

2 judgment for fraud on the court.” Fed. R. Civ. P.

3 60(d). Such relief is not subject to the one-year time 4 limit. United States v. Sierra Pac. Indus., Inc., 862 5 F.3d 1157, 1167 (9th Cir. 2017). 6 If, however, the fraud was known at the time of 7 entry of judgment, relief for fraud on the court is 8 unavailable. Id. at 1168-69 (“[R]elief is available for 9 ‘after-discovered fraud.’” (quoting Hazel-Atlas Glass 10 Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944))). 11 Although Defendants’ argument suggests that Plaintiff 12 had knowledge of the alleged conflict of interest prior 13 to the dismissal of the Nevada Action, Plaintiff alleges 14 that she did not become aware of it until February 2020— 15 after the April 2019 dismissal of the Nevada Action—and 16 promptly raised it in the Ninth Circuit. FAC ¶¶ 114- 17 115; see Opp’n to Wynn Resorts & Maddox’s MTD 9:28-10:6. 18 Even assuming that the alleged fraud was “after- 19 discovered,” Plaintiff’s allegations nevertheless fail 20 to state a claim for fraud on the court. An independent 21 action in equity to set aside a judgment “should be 22 available only to prevent a grave miscarriage of 23 justice.” United States v. Beggerly, 524 U.S. 38, 47 24 (1998); see also Sierra Pac. Indus., 862 F.3d at 1167 25 (indicating that showing fraud on the court requires 26 more “than the lower showing required for relief under 27 Rule 60(b)(3)”). The relevant inquiry is whether the 28 fraudulent conduct “harmed the integrity of the judicial 1 process,” not whether it “prejudiced the opposing

2 party.” Sierra Pac. Indus., 862 F.3d at 1168 (quoting

3 United States v. Est. of Stonehill, 660 F.3d 415, 444 4 (9th Cir. 2011)). “Fraud on the court must be an 5 intentional, material misrepresentation. . . [and] must 6 involve an unconscionable plan or scheme which is 7 designed to improperly influence the court in its 8 decision.” Id. (internal quotation marks and citations 9 omitted). Additionally, the relevant misrepresentations 10 must go “to the central issue in the case” and “affect 11 the outcome of the case.” Id. (quoting Est. of 12 Stonehill, 660 F.3d at 448, 452). 13 Here, Plaintiff alleges that WLV “took steps to 14 elevate its[] lead counsel, Elayna Youchah, to take over 15 the vacancy of the Magistrate who presided over the 16 Nevada Action” while the Nevada Action was pending and 17 after Youchah had filed a motion to dismiss, and these 18 efforts were not disclosed to Plaintiff or to the court. 19 FAC ¶ 115. Plaintiff alleges that WLV and its parent 20 company, Wynn Resorts, were in a conditional payment 21 arrangement with Buckley, who was on the merit selection 22 panel that selected Youchah. Id. ¶ 116. Plaintiff also 23 alleges that subsequent donations were issued to Buckley 24 and her foundation, LACSN, “which 25 coincided with a decision dismissing the [Nevada 26 Action].” Id. Plaintiff further alleges that the Wynn 27 Defendants “attempted to secure a judgment against 28 Plaintiff by defrauding the Nevada District Court” in an 1 “attempt[] to salvage their gaming licenses tied to a

2 $2.6 billion casino project in Massachusetts.” Id.

3 ¶ 117. According to Plaintiff, “[t]hese were deceptive 4 actions that the Wynn Defendants took against the court 5 and Plaintiff.” Id. 6 These allegations fail to state a facially 7 plausible claim of fraud on the court. First, it is not 8 clear that Defendants’ conduct constitutes fraud. See 9 Sierra Pac. Indus., 862 F.3d at 1168 (“[M]ere 10 nondisclosure of evidence is typically not enough to 11 constitute fraud on the court.”). Plaintiff cites no 12 authority that Defendants had a duty to disclose their 13 donations to LACSN for the merit selection panel’s 14 consideration of Youchah for a magistrate judgeship.3 15 Second, Plaintiff does not plausibly allege that the 16 non-disclosures were material to the outcome of the 17 Nevada Action. Relying on circumstantial allegations, 18 Plaintiff asks the Court to infer that her Nevada Action 19 would not have been dismissed on statute of limitations 20 grounds. But Plaintiff must first plead sufficient 21 factual content to “make such an inference reasonable.” 22 See Iqbal, 556 U.S. at 678. In short, it might be 23

24 3 Plaintiff asks the Court to infer that the “conditional payment[s]” and “donations” were made to Buckley, rather than the 25 non-profit LACSN. See, e.g., FAC ¶ 116. In support of this proposition, Plaintiff points to her allegations that Buckley is 26 the executive director of the LACSN and derives her salary from it, see, e.g., id. ¶¶ 21, 38, and argues that “all inferences 27 must be read in the light most favorable to [Plaintiff],” see 28 Opp’n to Buckley’s MTD 20:5-7. 1 “conceivable,” but it is not “plausible,” see Twombly,

2 550 U.S. at 570, that Defendants’ allegedly fraudulent

3 conduct “harmed the integrity of the judicial process,” 4 Sierra Pac. Indus., 862 F.3d at 1168. See Iqbal, 556 5 U.S. at 678 (“Where a complaint pleads facts that are 6 ‘merely consistent with’ a defendant's liability, it 7 ‘stops short of the line between possibility and 8 plausibility of ‘entitlement to relief.’” (quoting 9 Twombly, 550 U.S. at 557)). There is no reason to 10 believe the Nevada District Court would have decided the 11 case differently if Defendants had disclosed their 12 donations, or if Defendant had never donated at all. 13 Plaintiff’s factual allegations, taken as true, are not 14 sufficient to meet the “demanding standard” of a “grave 15 miscarriage of justice,” as required for an independent 16 action in equity to set aside a judgment. Beggerly, 524 17 U.S. at 47. Plaintiff fails to plausibly allege that 18 permitting an independent action to proceed would 19 prevent a “grave miscarriage of justice”—particularly 20 where the Ninth Circuit affirmed the Nevada District 21 Court’s decision and the Supreme Court denied 22 Plaintiff’s petition for writ of certiorari. 23 Furthermore, the Court agrees with Defendants’ 24 contention that the proper recourse is “not to file an 25 action in this district court seeking to overturn a 26 judgment duly rendered in another district.” Wynn 27 Resorts & Maddox’s MTD 7:11-15. “When a court 28 entertains an independent action for relief from the 1 final order of another court, it interferes with and

2 usurps the power of the rendering court just as much as

3 it would if it were reviewing that court’s equitable 4 decree. Although justice may occasionally demand that 5 sort of interference, the identification of those rare 6 situations is committed to the sound discretion of the 7 district court.” Treadaway v. Acad. of Motion Picture 8 Arts & Scis., 783 F.2d 1418, 1422 (9th Cir. 1986). 9 Given Plaintiff’s failure to state a plausible claim, 10 the Court does not consider this case one of those 11 “rare” instances warranting, much less demanding, 12 interference. The interest of comity thus supports 13 declining jurisdiction over Plaintiff’s independent 14 action in equity to set aside the judgment in the Nevada 15 Action. 16 Accordingly, the Court DISMISSES Plaintiff’s fourth 17 cause of action. 18 ii. Res Judicata 19 Defendants argue that res judicata prevents 20 Plaintiff from using RICO to relitigate her failed 21 wrongful termination claim. Wynn Resorts & Maddox’s MTD 22 17:17-19. The Court concludes that res judicata does 23 not bar Plaintiff’s RICO claims. 24 Because the allegedly preclusive decision was 25 rendered by a federal court exercising federal-question 26 jurisdiction, its preclusive effect is determined by 27 federal law. Taylor v. Sturgell, 553 U.S. 880, 891 28 (2008). Res judicata, or claim preclusion, “bars a 1 party in successive litigation from pursuing claims that

2 ‘were raised or could have been raised in [a] prior

3 action.’” Media Rts. Techs., Inc. v. Microsoft Corp., 4 922 F.3d 1014, 1020 (9th Cir. 2019) (quoting Owens v. 5 Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th 6 Cir. 2001)). Res judicata applies when the prior action 7 “(1) involved the same ‘claim’ or cause of action as the 8 later suit, (2) reached a final judgment on the merits, 9 and (3) involved identical parties or privies.” Mpoyo 10 v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th 11 Cir. 2005) (quoting Sidhu v. Flecto Co., 279 F.3d 896, 12 900 (9th Cir. 2002)). 13 In determining whether the prior action involved 14 the same claim or cause of action, the Ninth Circuit 15 considers four criteria: “(1) whether the two suits 16 arise out of the same transactional nucleus of facts; 17 (2) whether rights or interests established in the prior 18 judgment would be destroyed or impaired by prosecution 19 of the second action; (3) whether the two suits involve 20 infringement of the same right; and (4) whether 21 substantially the same evidence is presented in the two 22 actions.” Media Rts. Techs., 922 F.3d at 1026 (quoting 23 Mpoyo, 430 F.3d at 987). Of these, “the common-nucleus 24 criterion is the ‘most important.’” Id. at 1028 25 (quoting Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 26 (9th Cir. 2012)). Courts employ a “transaction test to 27 determine whether . . . two suits share a common nucleus 28 of operative fact.” Id. at 1026 (quoting Mpoyo, 430 1 F.3d at 987). “Whether two events are part of the same

2 transaction or series depends on whether they are

3 related to the same set of facts and whether they could 4 conveniently be tried together.” Id. at 1027 (quoting 5 Mpoyo, 430 F.3d at 987). 6 Here, the common-nucleus criterion disfavors 7 application of res judicata. The present action and the 8 Nevada Action do not arise from “the same transactional 9 nucleus of facts.” To be sure, both cases involve 10 similar facts related to Plaintiff’s termination and 11 Plaintiff prays, in part, for the same relief she sought 12 in the Nevada Action—namely, damages for her allegedly 13 unlawful termination. But the Nevada Action centered on 14 Plaintiff’s termination from Wynn Resorts, whereas the 15 present action is predicated on Defendants’ alleged 16 interference with the Nevada Action and other conduct 17 allegedly intended to secure casino licenses in 18 Massachusetts. Compare Sidhu v. Flecto Co., 279 F.3d 19 896, 900 (9th Cir. 2002) (finding that two suits did not 20 arise out the same transactional nucleus of facts where 21 the first action was predicated on the plaintiff’s 22 layoff from work and the second action was predicated on 23 the union’s refusal to return the plaintiff to work), 24 with Mpoyo, 430 F.3d at 987 (finding common-nucleus 25 criterion satisfied where both actions related to events 26 leading to the plaintiff’s termination and the Title 27 VII, FLSA, and FMLA claims would form a convenient trial 28 unit). 1 Moreover, Plaintiff could not have raised, much

2 less conveniently tried, in the Nevada Action the

3 allegedly improper influence on, and dismissal of, that 4 earlier suit for the simple reason that such dismissal 5 had not yet occurred. See Media Rts. Techs., 922 F.3d 6 at 1021 (“[C]laim preclusion does not apply to claims 7 that were not in existence and could not have been sued 8 upon—i.e., were not legally cognizable—when the 9 allegedly preclusive action was initiated.”); Lucky 10 Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 11 S. Ct. 1589, 1596 (2020) (“Claim preclusion generally 12 ‘does not bar claims that are predicated on events that 13 postdate the filing of the initial complaint.’” (quoting 14 Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 15 2305 (2016))). 16 The other criteria are not as clear cut. The 17 second criterion—whether rights or interests established 18 in the prior judgment would be destroyed or impaired by 19 prosecution of the second action—is unhelpful here. 20 Although allowing Plaintiff to proceed with the instant 21 action may disrupt Defendants’ freedom from liability as 22 established by the Nevada Action, this is not as 23 material to the analysis. See United States v. 24 Liquidators of Eur. Fed. Credit Bank, 630 F.3d 1139, 25 1151 n.7 (9th Cir. 2011) (“Resolution of that factor 26 depends only on our conclusion about res judicata.”). 27 Weighing this criterion too heavily would generally 28 preclude any independent action from setting aside a 1 judgment. And, while the Court declines to entertain

2 Plaintiff’s independent action here, Rule 60(d)

3 contemplates the availability of such actions where 4 appropriate. 5 Next, Plaintiff insists that the third criterion— 6 whether the same right has been infringed—is not 7 satisfied because the Nevada Action involved Plaintiff’s 8 “right to be free from wrongful termination,” while the 9 present action involves her “right to be free from 10 improper and criminal influence when litigating claims 11 before a court.” Opp’n to Wynn Resorts and Maddox’s MTD 12 12:8-12. Yet, in the FAC, Plaintiff seeks the same 13 damages sought in the Nevada Action and expounds a 14 theory that presumes her right to redress for wrongful 15 termination. Finally, as to the fourth criterion which 16 concerns whether the same evidence is presented in the 17 two actions, Plaintiff’s claims in the present action 18 will involve evidence beyond what is required for claims 19 brought in the Nevada Action, but Plaintiff will also 20 need to present some of the same evidence to establish 21 her damages. 22 Although the latter three criteria do not point to 23 a conclusive outcome, the common-nucleus criterion 24 counsels against claim preclusion. The common-nucleus 25 criterion is the “most important” and is generally 26 considered “outcome-determinative.” Media Rts. Techs., 27 922 F.3d at 1028 (collecting cases). On this basis, the 28 Court concludes that the Plaintiff’s RICO claims do not 1 involve the same claim or cause of action as the Nevada

2 Action, and res judicata does not apply to bar

3 Plaintiff’s RICO claims. 4 iii. Collateral Estoppel 5 Defendants next argue that collateral estoppel bars 6 Plaintiff’s claim, even if res judicata does not, 7 because Plaintiff raised its “central RICO theory” in a 8 supplemental brief to the Ninth Circuit, which rejected 9 it, and the Supreme Court denied Plaintiff’s petition 10 for a writ of certiorari on the same grounds. Wynn 11 Resort & Maddox’s MTD 19:14-20:16. Defendants contend 12 that the Ninth Circuit already considered and rejected 13 the following allegations, which form Plaintiff’s theory 14 of injury in the present action: “(a) Youchah was under 15 consideration for a magistrate judge position at the 16 time of the dismissal order, and (b) Defendants had paid 17 hundreds of thousands of dollars to LACSN in an apparent 18 bid to elevate Youchah and influence the decision.” Id. 19 at 19:27-20:3. 20 “Issue preclusion, also known as collateral 21 estoppel, bars the relitigation of issues actually 22 adjudicated in previous litigation.” Janjua v. Neufeld, 23 933 F.3d 1061, 1065 (9th Cir. 2019) (internal quotation 24 marks and citation omitted). Issue preclusion applies 25 where four conditions are met: “(1) the issue at stake 26 was identical in both proceedings; (2) the issue was 27 actually litigated and decided in the prior proceedings; 28 (3) there was a full and fair opportunity to litigate 1 the issue; and (4) the issue was necessary to decide the

2 merits.” Id. (citations omitted).

3 Here, there is a serious question as to whether the 4 fourth condition is met, such that the Court cannot 5 conclude issue preclusion applies. Although the Ninth 6 Circuit stated that “the arguments raised in 7 [Plaintiff]’s supplemental brief lack merit,” it 8 reasoned that “[Plaintiff’s] ‘newly discovered’ evidence 9 does not reveal any error in judgment made by the 10 district court ‘in the conclusion it reached upon 11 weighing the relevant factors.’” Limcaco v. Wynn, 809 12 F. App’x 465, 467 (9th Cir. 2020) (citation omitted), 13 cert. denied sub nom. Limcaco v. Wynn Las Vegas, LLC, 14 141 S. Ct. 1688 (2021). In other words, the Ninth 15 Circuit considered Plaintiff’s allegations of improper 16 judicial influence in determining whether the Nevada 17 District Court had abused its discretion. Arguably, 18 however, Plaintiff’s allegations were either unnecessary 19 to the Ninth Circuit’s decision or considered merely 20 incidentally, and therefore the Court cannot conclude 21 that issue preclusion applies. See Resol Tr. Corp. v. 22 Keating, 186 F.3d 1110, 1115-16 (9th Cir. 1999). 23 Nevertheless, even though the Court cannot find 24 that issue preclusion applies, Plaintiff’s claims fail 25 on the pleadings as discussed below. 26 /// 27 /// 28 /// 1 2. Sufficiency of the RICO Claims

2 RICO creates a private right of action for “[a]ny

3 person injured in his business or property by reason of 4 a violation of [18 U.S.C. § 1962].” 18 U.S.C. 5 § 1964(c). Plaintiff’s first, second, and third causes 6 of action are based on alleged RICO violations under 18 7 U.S.C. § 1962(c) and (d). See FAC ¶¶ 88-111. 8 Section 1962(c), as relevant here, makes it 9 “unlawful for any person employed by or associated with 10 any enterprise engaged in, or the activities of which 11 affect, interstate or foreign commerce, to conduct or 12 participate, directly or indirectly, in the conduct of 13 such enterprise’s affairs through a pattern of 14 racketeering activity.” 18 U.S.C. § 1962(c). 15 Section 1962(d) makes it separately “unlawful for 16 any person to conspire to violate any of the provisions 17 of subsection (a), (b), or (c) of this section.” 18 18 U.S.C. § 1962(d). “[F]ailure to adequately plead a 19 substantive violation of RICO precludes a claim for 20 conspiracy” to violate RICO under § 1962(d). Howard v. 21 Am. Online Inc., 208 F.3d 741, 751 (9th Cir. 2000). 22 Defendants assert that Plaintiff lacks RICO 23 standing and Plaintiff’s allegations are insufficient to 24 state a claim under § 1962(c) and (d). See Wynn Resorts 25 & Maddox’s MTD 10:1-16:10, 20:17-25:24. The Court 26 concludes that Plaintiff’s lack of RICO standing 27 requires dismissal of her RICO claims and need not reach 28 Defendants’ other arguments. 1 i. RICO Standing

2 “To allege civil RICO standing under 18 U.S.C.

3 § 1964(c), a plaintiff must show: (1) that his alleged 4 harm qualifies as injury to his business or property; 5 and (2) that his harm was ‘by reason of’ the RICO 6 violation.” Painters & Allied Trades Dist. Council 82 7 Health Care Fund v. Takeda Pharms. Co. Ltd., 943 F.3d 8 1243, 1248 (9th Cir. 2019) (internal quotation marks and 9 citation omitted), cert. denied, 141 S. Ct. 86, 207 10 (2020). Defendants contend that Plaintiff fails to 11 satisfy either requirement. See Wynn Resorts & Maddox’s 12 MTD 10:1-16:10. 13 Not all injuries are compensable under RICO. See 14 RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2108 15 (2016) (“RICO’s private cause of action [is cabined] to 16 particular kinds of injury—excluding, for example, 17 personal injuries.”). “The injury to business or 18 property must be a ‘concrete financial loss, and not 19 mere injury to a valuable intangible property 20 interest.’” Thomas v. Baca, 308 F. App’x 87, 88 (9th 21 Cir. 2009) (citation omitted); see also Canyon Cnty. v. 22 Syngenta Seeds, Inc., 519 F.3d 969, 975 (9th Cir. 2008). 23 Additionally, “[w]ithout a harm to a specific business 24 or property interest-a categorical inquiry typically 25 determined by reference to state law-there is no injury 26 to business or property within the meaning of RICO.” 27 Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en 28 banc) (per curiam). To establish that an injury was “by 1 reason of” a RICO violation, “the plaintiff is required

2 to show that a RICO predicate offense ‘not only was a

3 “but for” cause of his injury, but was the proximate 4 cause as well.’” Hemi Grp., LLC v. City of New York, 5 559 U.S. 1, 9 (2010) (quoting Holmes v. Sec. Inv’r Prot. 6 Corp., 503 U.S. 258, 268 (1992)). 7 a. Injury to Business or Property 8 As to the injury requirement, Defendants argue that 9 “Plaintiff does not plausibly allege an injury to 10 business or property because Plaintiff was not denied 11 access to the courts,” and any alleged harm is 12 “speculative and premised on the fact that she would 13 have succeeded in [the Nevada Action].” Wynn Resorts & 14 Maddox’s MTD 15:20-16:10. Plaintiff asserts that she 15 “alleges a plausible injury to her business or property 16 because she alleges damages arising out of honest 17 services fraud.” Opp’n to Wynn Resorts & Maddox’s MTD 18 8:15-16. In Plaintiff’s view, she was “deprived of the 19 recovery of her actual damages outlined in the Nevada 20 [Action],” which consist of $931,666.67 (based on her 21 salary), and “substantial expenses” incurred “in 22 connection with the Nevada [Action] and related 23 litigation,” including attorney’s fees. Id. at 8:24- 24 9:5; FAC ¶¶ 98, 104, 110. 25 Plaintiff appears to conflate the actionable 26 injuries under honest services fraud and RICO. The 27 honest services doctrine arises under the intangible 28 rights theory of damages. See Skilling v. United 1 States, 561 U.S. 358, 400 (2010) (“[A]ctionable harm lay

2 in the denial of that party’s right to the offender’s

3 ‘honest services.’”). The FAC asserts causes of action 4 under civil RICO, however, and honest services fraud is 5 merely an alleged predicate act.4 “[The Ninth Circuit] 6 has specifically held . . . that the deprivation of 7 honest services alone ‘does not constitute concrete 8 financial loss’ for purposes of pleading RICO’s 9 statutory standing requirement.” Portfolio Invs. LLC v. 10 First Sav. Bank Nw., 583 F. App’x 814, 816 (9th Cir. 11 2014) (quoting Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir. 12 2001)). Plaintiff thus cannot simply rely on an 13 intangible right to receive honest services and must 14 still plead a cognizable RICO injury that occurred “by 15 reason of” a RICO violation. See Painters & Allied 16 Trades, 943 F.3d at 1248. 17 Taking Plaintiff’s allegations as true, the Court 18 is presented with three bases upon which Plaintiff seeks 19 to establish injury to her business or property: (1) the 20 loss of opportunity to pursue her claims in the Nevada 21 Action; (2) the damages she sought in the Nevada Action; 22 and (3) the legal fees and other expenses she incurred 23 in connection with the Nevada Action. None of 24 Plaintiff’s alleged injuries meet RICO’s standing 25 4 The Ninth Circuit has not definitively stated that honest 26 services fraud may serve as a predicate act. See Portfolio Invs. LLC v. First Sav. Bank Nw., 583 F. App’x 814, 816 (9th Cir. 2014) 27 (declining to reach the issue of “whether honest-services fraud 28 can ever serve as a predicate RICO act”). 1 requirement.

2 1. Loss Of Opportunity to Pursue

3 Claims 4 Plaintiff cannot claim injury based on the loss of 5 opportunity to pursue her claims in the Nevada Action 6 because she was not denied access to the courts. See 7 Avalos v. Baca, 596 F.3d 583, 594 (9th Cir. 2010) 8 (“[E]ven if the right to a judicial proceeding is a 9 property right under California law, [the plaintiff] 10 suffered no ‘harm’ to that right because he was able to 11 file his claim . . . in the district court.”). 12 Plaintiff not only litigated her claims in the Nevada 13 District Court, but also sought appellate review in the 14 Ninth Circuit and filed a petition for writ of 15 certiorari, which the Supreme Court denied. To the 16 extent Plaintiff claims she was deprived of a fair 17 opportunity to litigate, that alleged injury fails to 18 meet the standing criteria because it is neither 19 concrete nor financial. 20 2. Damages in the Nevada Action 21 Perhaps recognizing that her loss of the Nevada 22 Action cannot constitute a cognizable injury under RICO, 23 Plaintiff asserts that she “has been injured in her 24 business and property” because she “has been deprived of 25 the recovery of her actual damages outlined in the 26 Nevada [Action]”—specifically, $807,083.22—as stated in 27 her initial disclosures served upon the defendants in 28 that action. The Court rejects this theory. 1 Plaintiff cannot turn an injury arising under an

2 intangible rights theory into a concrete financial loss

3 sufficient for RICO standing by presuming success in a 4 cause of action that has yet to be litigated on the 5 merits. Plaintiff ignores the actual litigation of her 6 claims in the Nevada Action and claims the damages 7 sought in that matter as a business or property interest 8 in this civil RICO action. Although “California law 9 recognizes a cause of action as a form of property,” it 10 is entirely uncertain whether Plaintiff would have 11 prevailed in the Nevada Action if it had not been time- 12 barred. See Thomas v. Baca, 308 F. App’x 87, 88 (9th 13 Cir. 2009) (rejecting alleged injury to the plaintiffs’ 14 cause of action as insufficiently concrete to establish 15 RICO standing where it was unknown whether the 16 plaintiffs would prevail in the cause of action or 17 whether the defendants’ conduct would alter the 18 outcome). “Injury to business or property requires 19 tangible and concrete financial loss, rather than 20 speculative or uncertain harm.” Comm. to Protect our 21 Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 22 3d 1132, 1169 (E.D. Cal. 2017). Recovery in a case, 23 particularly one alleged to have not been litigated on 24 the merits, is inherently speculative.5

25 5 Put another way, the Court does not find Plaintiff’s 26 theory of injury—that she has been injured in the entire amount of actual damages sought in the Nevada Action, which was 27 dismissed at the motion to dismiss stage—to be plausible. See Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a 28 plausible claim for relief . . . [is] a context-specific task 1 Moreover, notwithstanding the questionable

2 legitimacy of claiming the deprivation of a right to

3 litigate and concurrently seeking recovery without 4 exercising that right, the Ninth Circuit has indicated 5 that standing cannot be established when the alleged 6 injury results from wrongful termination not caused by 7 predicate RICO acts. See Reddy v. Litton Indus., Inc., 8 912 F.2d 291, 294 (9th Cir. 1990) (holding that the 9 plaintiff “lacks standing to sue under § 1962(c) because 10 the injury he suffered was the result of his alleged 11 wrongful termination and was not caused by predicate 12 RICO acts”). 13 3. Legal Fees 14 Nor can Plaintiff establish RICO injury based on 15 the legal fees and other expenses she incurred in 16 connection with the Nevada Action. The Ninth Circuit 17 generally has not recognized legal fees as a valid 18 injury to business or property under RICO. Thomas, 308 19 F. App’x at 88 (“This court has not recognized the 20 incurment of legal fees as an injury cognizable under 21 RICO, and we decline to do so here.”); see also Ogden v. 22 Wells Fargo Bank, N.A., No. CV 14-3579 DMG (SH), 2015 WL 23 13413390, at *2 (C.D. Cal. Feb. 20, 2015) (collecting 24 cases). Plaintiff offers no argument or citations to 25 support a contrary view.6 26 that requires the reviewing court to draw on its judicial 27 experience and common sense.”). 6 Even were the Court to conclude that legal fees qualify as 28 cognizable injury under RICO, Plaintiff’s FAC fails to satisfy 1 In sum, Plaintiff fails to establish RICO standing

2 in that she does not allege a cognizable injury.

3 b. Injury “By Reason of” a RICO Violation 4 While Plaintiff lacks RICO standing on the basis of 5 injury alone, the Court nevertheless addresses the 6 second element of RICO standing—whether Plaintiff’s 7 injury was “by reason of” a RICO violation. 8 As articulated, an injury is “by reason of” a RICO 9 violation if “a RICO predicate offense ‘not only was a 10 “but for” cause of [the] injury, but was the proximate 11 cause as well.’” Hemi Grp., 559 U.S. at 9 (quoting 12 Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 13 (1992)). “Proximate cause for RICO purposes . . . 14 should be evaluated in light of its common-law 15 foundations; proximate cause thus requires ‘some direct 16 relation between the injury asserted and the injurious 17 conduct alleged.’” Id. (citation omitted). “A link 18 that is ‘too remote,’ ‘purely contingent,’ or 19 ‘indirec[t]’ is insufficient.” Id. Here, Plaintiff can

20 the causation inquiry required for RICO standing. Courts have found proximate cause where a plaintiff is “forced to incur” 21 significant legal fees and expenses, but that is not the case here since Plaintiff voluntarily chose to pursue this litigation. 22 Compare City of Almaty v. Khrapunov, 956 F.3d 1129, 1133 (9th Cir. 2020) (finding no proximate cause where the plaintiff did 23 not show “that it was forced to spend its money or that it was otherwise shortchanged by Defendants’ actions”), with Harmoni, 24 914 F.3d at 652 (finding proximate cause where the plaintiffs were “forced to incur significant expenses responding to the 25 administrative review because refusing to respond was not a viable option”). “RICO doesn’t provide for the recovery of 26 losses caused by self-inflicted wounds.” Bryant v. Mattel, Inc., No. CV 04-9049 DOC RNBX, 2010 WL 3705668, at *15 (C.D. Cal. Aug. 27 2, 2010) (rejecting claimed injury based on incurred attorneys’ fees and costs for a forensic auditor where the auditor was 28 appointed at the counter-claimant’s request). 1 show neither but-for nor proximate causation to

2 establish RICO standing.

3 Turning first to but-for causation, the Court notes 4 that Defendants’ alleged undue influence is not the only 5 cause of the Nevada Action’s dismissal. The Nevada 6 District Court dismissed the case because the statute of 7 limitations had run. The Court thus has no occasion to 8 believe the Nevada Action was dismissed for any other 9 reason than on the procedural grounds subsequently 10 affirmed by the Ninth Circuit. See Limcaco v. Wynn, 809 11 F. App’x 465, 466-67 (9th Cir. 2020). 12 Second, Plaintiff cannot show proximate causation 13 to establish RICO standing. Even with the most generous 14 reading, the FAC’s attempted connection of Plaintiff’s 15 injury to Defendants’ alleged actions cannot be 16 characterized as anything but indirect. According to 17 Plaintiff, Wynn Resorts made conditional payments to 18 LACSN, a nonprofit run by Buckley, who was thereby 19 influenced to persuade the merit selection panel to 20 elevate Youchah to fill the vacancy of the magistrate 21 judge in the Nevada Action. FAC ¶¶ 20-24. Plaintiff 22 alleges that, around March and April 2019, Youchah was 23 selected for the magistrate position, the LACSN received 24 a payment, the Nevada Action was dismissed, and the MGC 25 rendered a decision allowing the Wynn Defendants to 26 retain their gaming licenses in Massachusetts. Id. ¶ 27 96(c). Plaintiff points to this timeline as well as 28 other circumstantial evidence, including additional 1 conditional payments made to the LACSN, to support

2 proximate causation. See Pl’s Opp’n to Wynn Resorts &

3 Maddox’s MTD 7:13-8:4. 4 Defendants argue, and the Court agrees, that 5 Plaintiff’s theory depends on an attenuated chain of 6 causation that requires numerous implausibly speculative 7 assumptions to link the LACSN payments to Plaintiff’s 8 alleged injury. Wynn Resorts & Maddox’s MTD 7:13-8:4. 9 Specifically, Plaintiff’s theory of causation involves 10 at least the following steps: (1) in August 2017, Wynn 11 Resorts agreed to make a series of five payments of 12 $100,000, which were revocable in Wynn Resorts’ 13 discretion, FAC ¶ 37; (2) in September 2018, Plaintiff 14 filed her complaint in the Nevada Action, id. ¶ 82; (3) 15 in December 2018, the Nevada District Court appointed a 16 nine-member merit selection panel regarding the 17 vacancies for two magistrate judge positions and Buckley 18 is placed on the panel, id. ¶ 87(d); (4) in March or 19 April 2019, the nine-member merit selection panel that 20 included Buckley recommended Youchah’s appointment, id. 21 ¶ 20; and (5) in April 2019, the Nevada Action was 22 dismissed, and the LACSN received its scheduled donation 23 from Wynn Resorts, id. ¶ 96(c), Ex. A. In short, 24 Plaintiff’s theory “is anything but straightforward,” 25 given the multiple intervening steps in the causal chain 26 between the alleged injurious conduct and Plaintiff’s 27 alleged injury. See Hemi Grp., 559 U.S. at 15; see also 28 Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 1 (2006) (“When a court evaluates a RICO claim for

2 proximate causation, the central question it must ask is

3 whether the alleged violation led directly to the 4 plaintiff’s injuries.”). Moreover, as Defendants note, 5 Plaintiff’s “theory of liability rests on the 6 independent actions of third and even fourth parties.” 7 Wynn Resorts & Maddox’s MTD 14:4-5 (quoting Hemi Grp., 8 559 U.S. at 15). 9 Plaintiff attempts to resist this conclusion by 10 analogizing to Bieter Co. v. Blomquist, 987 F.2d 1319 11 (8th Cir 1993). See Pl’s Opp’n to Wynn Resorts & 12 Maddox’s MTD 6:16-8:4. Plaintiff argues that honest 13 services fraud can cause proximate harm to business or 14 property and insists that, like the circumstances in 15 Bieter, the relevant events all occurred around the same 16 month. But Plaintiff’s reliance on this out-of-circuit 17 decision is unavailing. On the issue of proximate 18 cause, the Bieter court concluded that “[a] finding that 19 bribery of a councilmember proximately caused a 20 plaintiff’s injury can . . . rest on evidence of that 21 individual’s influence over the proceedings.” Bieter, 22 987 F.2d at 1327. Notably absent in the present action 23 are any allegations supporting Plaintiff’s conclusory 24 assertion of improper influence over the Nevada Action. 25 Taking Plaintiff’s allegations of a cascading chain 26 of events as true, starting with Wynn Resorts’ pledge to 27 donate to LACSN approximately two years before the 28 dismissal of the Nevada Action, Plaintiff stops short of 1 alleging causation and instead leaves it to the Court to

2 fill in the blank. Plaintiff draws a correlation

3 between Youchah’s elevation to the magistrate judge 4 position and the Nevada judge’s rendering a favorable 5 decision to Youchah’s client, but Plaintiff makes no 6 factual allegations as to how Youchah’s new role 7 affected the disposition of the case. Despite 8 Plaintiff’s allegation that she “has been deprived on 9 the recovery of her actual damages outlined in the 10 Nevada [Action]” as a “direct and proximate result of 11 Defendants’ racketeering activities,” FAC ¶¶ 98, 104, 12 110, Plaintiff does not plead “sufficient factual 13 matter” to permit the Court to draw a “reasonable 14 inference” of proximate causation. See Iqbal, 556 U.S. 15 at 678. “[T]he Court [is not] required to accept as 16 true allegations that are merely conclusory, unwarranted 17 deductions of fact, or unreasonable inferences.” Khoja, 18 899 F.3d at 1008 (quoting In re Gilead Scis. Sec. 19 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)). 20 The closest Plaintiff comes to alleging a causal 21 connection between the alleged corrupt elevation of the 22 magistrate judge and dismissal of the Nevada Action is 23 the suggestion that Youchah carried “greater 24 credibility” as a defense attorney-turned-magistrate. 25 See FAC ¶ 24 (“Judge Du, even if unaware of the RICO 26 Defendants[’] coordination, rendered a decision 27 favorable to Youchah (who was then Judge Du’s new 28 colleague and someone with presumably ‘greater 1 credibility’ due to her new position as a Judge in the

2 same Court).”) If any other connective tissue exists

3 between Defendant’s donations and the dismissal of the 4 Nevada Action, Plaintiff does not allege it. Further, 5 Plaintiff presents no authority to support the 6 allegation that Defendants’ conferral of greater 7 credibility in their defense attorney constitutes undue 8 influence rising to the level of depriving her of the 9 opportunity to litigate on the merits. 10 In sum, accepting the allegations in the FAC as 11 true, and reading them in the light most favorable to 12 Plaintiff, the Court concludes that Plaintiff has not 13 plausibly alleged an injury “by reason of” a RICO 14 violation as required to establish RICO standing. 15 Plaintiff fails to allege facts showing a sufficient 16 causal nexus between Defendants’ alleged unlawful 17 conduct and her alleged loss of the actual damages 18 sought in the Nevada Action. Plaintiff’s RICO claims 19 thus fail to state a claim for relief. 20 3. Leave to Amend 21 Plaintiff has already amended her 66-page FAC as of 22 right following the benefit of previewing Defendants’ 23 challenges to her complaint in their initial motions to 24 dismiss, including the deficiencies in her allegations 25 regarding injury to business or property and causation. 26 None of the arguments in her five oppositions and nine 27 requests for judicial notice indicate that she would be 28 able to cure the fatal flaw of lacking standing to 1 assert her RICO claims. Nor has Plaintiff proposed any

2 other allegations or theories that could cure this

3 deficiency. 4 Moreover, in the interest of comity, the Court 5 declines to further entertain Plaintiff’s independent 6 action in equity to vacate the judgment in the Nevada 7 Action. Because the Court concludes that the 8 deficiencies identified in this Order cannot be cured by 9 further amendment, the Court GRANTS Wynn Resorts and 10 Maddox’s motion to dismiss the FAC with prejudice. See 11 Pac. Recovery Sols. v. United Behav. Health, 508 F. 12 Supp. 3d 606, 619 (N.D. Cal. 2020) (dismissing the 13 plaintiffs’ substantive RICO and RICO conspiracy claims 14 with prejudice for lack of RICO standing). 15 D. Defendant Wynn’s MTD FAC [58], Defendant Sinatra’s 16 MTD FAC [61], and Defendant ML Strategies’s MTD FAC 17 [108] 18 In their separate motions, Defendants Wynn, 19 Sinatra, and ML Strategies argue that—in addition to the 20 defects identified in Wynn Resort and Maddox’s motion— 21 the FAC fails to state a plausible claim against each of 22 them because the allegations specific to them are also 23 deficient. Plaintiff’s failure to establish RICO 24 standing warrants dismissal of her RICO claims against 25 all Defendants. In light of the Court’s resolution of 26 Wynn Resorts and Maddox’s motion, which all other 27 Defendants joined, Defendants Wynn’s, Sinatra’s, and ML 28 Strategies’s motions to dismiss the FAC are GRANTED. 1 IV. CONCLUSION 2 Based on the foregoing, Wynn Resorts and Maddox’s

3 motion to dismiss the FAC is GRANTED with prejudice for 4 failure to state a claim. Buckley’s motion to dismiss 5 the FAC is GRANTED with prejudice for lack of personal 6 jurisdiction. The remaining motions to dismiss the FAC 7 filed by Wynn, Sinatra, and ML Strategies are GRANTED 8 with prejudice in light of the Court’s resolution of 9 Wynn Resorts and Maddox’s motion. All Defendants and 10 claims are dismissed. 11 12 IT IS SO ORDERED. 13 DATED: October 29, 2021 14 15 16 _______/s_/ _R_on_a_ld_ S_.W_._ L_ew__________________ Honorable Ronald S.W. Lew 17 Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28