Red Rock Investments v. Jafco Ltd

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 24, 2004
• Docket: 95-20368
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 95-20368 Summary Calendar _______________

RED ROCK INVESTMENTS and OMNI REALTY PARTNERS,

Plaintiffs,

KELLY BUSTER,

Intervenor-Plaintiff,

TRIUMPH PARTS, INC., and TRUMAN HEDDINS,

Plaintiffs-Appellants,

VERSUS

JAFCO LTD., INC GITA RAHASYA ASHRAMS, BANFINANZ LTD., KENNETH B. CARNESI, CARNESI & ASSOCIATES, and ROSS A. HAMPE,

Defendants,

MILTON Z. MENDE and BRITISH BANCORPORATION, LTD., also known as BBC,

Intervenor-Defendants,

BRITISH BANCORPORATI and ZENNICH NOHRIN ZENNICHI NORHRIN KABUSHIKI KAISYA,

MITSUBISHI BANK,

Defendant-Appellee * * * * * * * * * *

WOODROW W. ROARK,

BANFINANZ LTD., KENNETH B. CARNESI, CARNESI & ASSOCIATES, and ROSS A. HAMPE,

MITSUBISHI BANK, LTD.,

Intervenor-Defendant- Appellee,

ZEN-NICHI NOHRIN K. K., doing business as Jafco Ltd., and GITA RAHASYA ASHRAMS,

Intervenors-Defendants.

_________________________

Appeal from the United States District Court for the Southern District of Texas

February 16, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 Triumph Parts, Inc. (“Triumph”), and its principal, Truman

Heddins, appeal the dismissal with prejudice of their claims

against Mitsubishi Bank, Limited (“Mitsubishi”).1 Finding neither

error nor abuse of discretion, we affirm.

I.

Triumph and Heddins alleged a scheme by various persons to

defraud investors by falsely representing that certain Japanese

promissory notes2 were guaranteed by Mitsubishi. They further

alleged that these persons, who are defendants in related cases,

offered them one of the promissory notes as collateral for a

promised multi-million-dollar loan.

The note in question was issued by Zen-Nichi Nohrin Kabushiki

Kaisha, a Japanese corporation that also operated under the name

JAFCO, which had opened an account at one of Mitsubishi’s Tokyo

branches. Mitsubishi had verified JAFCO’s identity, legal

capacity, and financial condition pursuant to its internal

operating procedures.

The promised loan fell through, and Heddins claimed that he

lost ownership of Triumph as a result. Triumph and Heddins sued

1 This appeal originates from a dispute between several plaintiffs and defendants. Multiple lawsuits were filed and subsequently were consolidated. Not all of the parties are before us on appeal. For convenience, however, we refer to Triumph and Heddins as “the plaintiffs,” to Mitsubishi as “the defendant,” and to the defendants not before us as the “non-party defendants.” 2 This particular type of promissory note, called a yakusoku tegata, is a unique Japanese financial instrument. Its closest American equivalent is a post- dated check, as opposed to a certified check (as the plaintiffs once claimed). The bank acts as the place of payment for these instruments, but will pay only such funds as remain in the accounts of the person who drew the note.

3 the non-party defendants, but not Mitsubishi, in the Eastern

District of Texas. The district court there appointed a receiver,

who presented the note in question to Mitsubishi’s New York branch.

Mitsubishi refused to honor the note on the ground that JAFCO no

longer had any funds on deposit with the bank.

The receiver sued Mitsubishi, JAFCO, and one of the non-party

defendants for breach of contract, fraud, conspiracy, and

racketeering. Before being assigned to a discovery track, the

receiver’s suit was transferred to the Southern District of Texas

and consolidated with the related actions. Triumph and Heddins

substituted in as parties when the district court relieved the

receiver of his position (at his request).

The district court stayed discovery, requesting briefing on

the financial nature of the notes at issue in all of the

consolidated suits. Mitsubishi argued that the note in this appeal

was a promissory noteSSi.e., like a post-dated check as opposed to

a certified checkSSand that it created no legal obligation running

from Mitsubishi to the plaintiffs. Mitsubishi moved for summary

judgment, urging the district court that resolution of this issue

in its favor would dispose of the plaintiffs’ fraud, conspiracy,

and racketeering claims against Mitsubishi.

Triumph and Heddins admitted that (1) the note was like a

post-dated check rather than a certified check and (2) their

counsel had advised them that the note would have been treated like

a promissory note under Japanese law. Those admissions

notwithstanding, the plaintiffs argued that they were entitled

4 (1) to discover all documents relating to Mitsubishi’s relationship

with JAFCO and its Mitsubishi account; (2) to depose Mitsubishi’s

expert on Japanese law; and (3) to depose any Mitsubishi officer

who had dealt with JAFCO in opening the account. The plaintiffs

failed to establish with particularlity how such discovery would

raise a genuine issue of material fact.

The district court allowed the parties to supplement their

pleadings with regard to the nature of the notes in question. The

plaintiffs offered unsworn and unsupported assertions that they

needed full discovery of Mitsubishi’s relationship with JAFCO in

order to prove their claims of fraud, conspiracy, and racketeering.

They again failed to establish with particularity that such

discovery would raise a genuine issue of material fact.

The court ruled, on summary judgment, that the notes at issue

were like post-dated checks rather than certified checks, that

Mitsubishi had no obligations to the plaintiffs in that regard, and

that the plaintiffs had no claim for breach of contract. The court

then gave the plaintiffs another opportunity to identify a genuine

issue of material fact as to any claim that, if proven true, would

permit recovery under the law. The plaintiffs responded by filing

a motion for limited discovery under FED. R. CIV. P. 56(f), but they

merely reassertedSSin a general and conclusory fashionSSthat they

needed discovery to establish their claims. They once again failed

to establish with any particularity how such discovery would raise

a genuine issue of material fact.

Mitsubishi moved for summary judgment on the fraud,

5 conspiracy, and racketeering claims. The court noted that many of

Mitsubishi’s summary judgment arguments rested on the inadequacy of

the complaint, which the plaintiffs had not amended since the court

had held that the note was promissory note and not a certified

check. The court gave the plaintiffs thirty days to amend.

The plaintiffs did so, making several important changes. They

withdrew the breach of contract claim and all references to the

note as a certified check rather than as a promissory note, and

they also added claims of negligent misrepresentation and

negligence.

Mitsubishi moved for dismissal of the amended complaint under

FED. R. CIV. P. 12(b) or, in the alternative, for summary judgment

under rule 56. The plaintiffs renewed their discovery request.

Mitsubishi argued that discovery was unnecessary because of defects

in the complaint; it argued in the alternative, if the motion was

to be treated as a motion for summary judgment, that the plaintiffs

had failed to meet their rule 56(f) burden to justify discovery.

The district court noted that Mitsubishi had already given the

plaintiffs the material they had asked for in their document

production requests to MitsubishiSSi.e., documents concerning

Mitsubishi’s knowledge of (1) JAFCO, (2) JAFCO’s intended use of

the promissory note forms, and (3) JAFCO’s financial condition and

business. The court found that the plaintiffs had failed to

specify what further information they needed and how that

information would help them defend against summary judgment. The

court also concluded that no hypothetical discovery could help the

6 plaintiffs, because of the defects in their pleadings.

The district court then dismissed all of the plaintiffs’

claims against Mitsubishi with prejudice. Having done so, and

having severed the claims of the plaintiffs against Mitsubishi, the

court entered final judgment for Mitsubishi under FED. R. CIV. P.

54(b).

II.

We review the dismissal of the plaintiffs’ claims de novo.

The plaintiffs alleged six causes of action in the district court:

(1) fraud; (2) conspiracy to defraud; (3) pattern of racketeering;

(4) racketeering conspiracy; (5) negligent misrepresentation; and

(6) negligence.

The plaintiffs claimed that Mitsubishi defrauded them and

conspired to defraud them. The court found that the plaintiffs had

failed to allege that Mitsubishi, as distinguished from the non-

party defendants, had made any representations to the plaintiffs.

None of the documents allegedly used to defraud the plaintiffs was

prepared by Mitsubishi.

The plaintiffs have thus failed to allege a necessary element

of fraud. See South Hampton Co. v. Stinnes Corp., 733 F.2d 1108,

1120 (5th Cir. 1984) (citing Stone v. Lawyers Title Ins. Corp., 554

S.W.2d 183, 185 (Tex. 1977), and Oilwell Div., U.S. Steel Corp. v.

Fryer, 493 S.W.2d 487, 491 (Tex. 1973)); Eagle Properties, Ltd. v.

Scharbauer, 807 S.W.2d 714, 723 (Tex. 1990). By failing to allege

any misrepresentation by Mitsubishi, the plaintiffs also failed to

7 allege a concerted action to defraud, a necessary element of a

conspiracy to defraud. See Schlumberger Well Surveying Corp. v.

Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex. 1968); Bayou

Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 815 (Tex. AppSSHouston

[1st Dist.] 1994, no writ).

Furthermore, the plaintiffs’ allegations failed to allege

fraud and conspiracy to defraud with sufficient particularity to

escape FED. R. CIV. P. 9(b)’s pleading standard for those offenses.

The plaintiffs’s allegations, as amended, were general and did not

state the time, place, or content of any misrepresentation by

Mitsubishi to the plaintiffs, or the identity of the person making

the misrepresentation. They therefore did not satisfy rule 9(b).

See Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1138

(5th Cir. 1992) (citations omitted); Unimobil 84, Inc. v. Spurney,

797 F.2d 214, 217 (5th Cir. 1986).

The plaintiffs also asserted that Mitsubishi had engaged in a

pattern of racketeering in violation of the Racketeer Influenced

and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(a), (c),

and (d) (West 1984 & Supp. 1995). They further claimed that

Mitsubishi conspired with JAFCO and an unrelated defendant to

violate § 1962.

Once again, the plaintiffs have failed to allege a necessary

element of their claims. Specifically, they failed to allege with

particularity that Mitsubishi had engaged in a single predicate act

of racketeering, let alone enough acts to establish a pattern.

They did claim generally that Mitsubishi had engaged in mail and

8 wire fraud, which are predicate acts under RICO. See 18 U.S.C.

§ 1961(1)(B) (West Supp. 1995). Their specific allegations of mail

and wire fraud, however, referred only to one of the non-party

defendants, and not to Mitsubishi.

The plaintiffs thus have failed to meet rule 9(b)’s

particularity requirement, which applies to the pleading of fraud

as a predicate act in a RICO claim. See Tel-Phonic, 975 F.2d at

1138. This failure to allege a predicate act at all is also fatal

to the claim of a racketeering conspiracy, because it prevents

plaintiffs from successfully alleging an agreement to commit

predicate acts. See id. at 1140-41.

The plaintiffs have also failed to allege a necessary element

of their negligent misrepresentation claim. They have failed to

establish justifiable relianceSSindeed, any reliance at allSSon

information supplied by Mitsubishi. See Rosenthal v. Blum, 529

S.W.2d 102, 104 (Tex. App.SSWaco 1975, writ ref’d n.r.e.); Blue

Bell v. Peat, Marwick, Mitchell & Co., 715 S.W.2d 408, 411 (Tex.

App.SSDallas 1986, writ ref’d n.r.e.). The only allegations of

reliance they put forward are instances of reliance on information

supplied by non-party defendants. The first contact they allege

between themselves and Mitsubishi is when the receiver presented

the note in question to Mitsubishi for payment.

Finally, the plaintiffs alleged negligence on the part of

Mitsubishi in failing to investigate JAFCO’s financial condition

and its use of the note forms. A bank, however, owes no legal duty

of care to investigate or disclose its customers’ conduct or intent

9 to third parties with whom the bank’s customers do business. See

Inglish v. Union State Bank, 911 S.W.2d 829, 834-35 (Tex.

App.SSCorpus Christi 1995, no writ). This claim therefore fails as

a matter of law.

In sum, the plaintiffs’ pleadings are defective with respect

to every claim they allege. The district court granted them

several opportunities to remedy the defects, and the plaintiffs

still failed to do so.

III.

The plaintiffs claim that they needed discovery in order to

defend their claims against a motion for summary judgment. We

review a decision to deny further discovery for abuse of

discretion. The district court did not abuse its discretion in

denying such discovery.

Despite plaintiffs’ protestations to the contrary, we have

held that “[r]ule 56 does not require that any discovery take place

before summary judgment can be granted; if a party cannot

adequately defend his motion, Rule 56(f) is his remedy.”

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.

1990) (citations omitted). Additionally, a plaintiff must allege

specific facts that explain his inability to defend the motion for

summary judgment; he cannot rely on general assertions that

discovery will produce unspecified but necessary facts. See id.

With respect to the claims of fraud and conspiracy to defraud,

the court noted that Mitsubishi had already produced documents

10 responsive to the plaintiffs’ document production requests. The

court found that the plaintiffs had failed to specify what further

information was required and how such material would help them

defend against the motion for summary judgment. See Krim v.

BancTexas Group, Inc., 989 F.2d 1435, 1443 (5th Cir. 1993).

Moreover, no discovery could remedy the plaintiffs’ failure to

allege a misrepresentation by Mitsubishi, a necessary element of

the fraud and conspiracy to defraud claims.

With respect to the RICO claims, the court found that the

plaintiffs once again had failed to specify what information they

needed and how such information would assist them in opposing

summary judgment. And, once again, no discovery could remedy the

plaintiffs’ failure to allege a predicate act in support of their

RICO claims.

With respect to the negligent misrepresentation claim, the

plaintiffs did not need any discovery from Mitsubishi to remedy

their failure to allege justifiable reliance on information

supplied by Mitsubishi. Knowledge of such reliance is entirely

within the control of the plaintiffs, yet they still failed to

allege it after several opportunities to amend. Finally, because

Mitsubishi owed no legal duty of care to the plaintiffs regarding

its relationship with JAFCO, the plaintiffs’ requested discovery

cannot, as a matter of law, uncover facts relevant to a claim of

negligence against Mitsubishi.

We agree with the district court that the plaintiffs’

pleadings were defective and that they were not entitled to further

11 discovery prior to the entry of summary judgment. Accordingly, we

AFFIRM.