Sun Savings and Loan Association, a Corporation v. Daniel W. Dierdorff Mary Dierdorff

825 F.2d 187, 8 Fed. R. Serv. 3d 808, 1987 U.S. App. LEXIS 10981, 56 U.S.L.W. 2110
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 7, 1987
Docket86-5811
StatusPublished
Cited by197 cases

This text of 825 F.2d 187 (Sun Savings and Loan Association, a Corporation v. Daniel W. Dierdorff Mary Dierdorff) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sun Savings and Loan Association, a Corporation v. Daniel W. Dierdorff Mary Dierdorff, 825 F.2d 187, 8 Fed. R. Serv. 3d 808, 1987 U.S. App. LEXIS 10981, 56 U.S.L.W. 2110 (9th Cir. 1987).

Opinions

PREGERSON, Circuit Judge:

Appellant Sun Savings & Loan Association (“Sun”) brought an action against appellee Daniel Dierdorff (“Dierdorff”), Sun’s former president, alleging that Dier-dorff violated the federal Racketeering Influenced and Corrupt Organizations Act (“RICO”).1 The alleged racketeering activity consisted of four letters written by Dierdorff to various entities. In the letters, Dierdorff allegedly sought to cover up [190]*190a scheme in which he received kickbacks from Sun’s loan customers. Dierdorff moved to dismiss for lack of subject matter jurisdiction, arguing that Sun’s RICO claims were invalid. The district court dismissed the complaint without leave to amend. Sun appeals that ruling. We reverse on the ground that the complaint adequately alleges a RICO cause of action.

I.BACKGROUND

Dierdorff served as Sun’s president and chief executive officer from June 1980 until October 1984. Sun asserts that during his tenure Dierdorff solicited and received kickbacks from Sun’s customers for whom he approved large loans. On February 3, 1983, Dierdorff allegedly created a secret checking account at Sun under the fictitious name of “Dan Danzer.” Between February 3, 1983, and March 15, 1984, Dierdorff allegedly made cash deposits of $209,324 into the Danzer account. Sun avers that the money Dierdorff deposited was the money he received through the fraudulent kickback scheme.

Sun bases its RICO claim on four predicate acts of mail fraud. Dierdorff allegedly sent letters to certain state and federal agencies and to Sun’s outside auditor. In these letters, Dierdorff allegedly attempted to conceal his wrongdoings from the letters’ recipients and from Sun. Specifically Sun alleges:

1. On or about April 30, 1984, Dierdorff caused a letter to be produced and mailed by Sun’s Assistant Operations Administrator to the Internal Revenue Service. The letter falsely represented that Dierdorff properly provided a tax identification number for the Danzer account.

2. On or about September 26, 1984, Dier-dorff caused letters to be produced and mailed to both the Federal Home Loan Bank Board and the California Savings and Loan Commissioner. These letters represented that Dierdorff had done nothing “improper or illegal.”

3. On or about June 15, 1984, Dierdorff caused a letter to be produced and mailed to Arthur Young Company, outside auditors for Sun. The letter represented that proper loan committee approval was not obtained for loans in “some instances” and blamed this failure on “irregular committee meetings and not enough members on the committee.”

4.On or about June 20, 1984, Dierdorff caused a letter to be produced and mailed by Sun’s Vice President/Financial Manager to the California Department of Savings and Loan. The letter transmitted a copy of the June 15 letter to Arthur Young Company and thereby represented to the Department of Savings and Loan that proper loan committee approval was not obtained in some instances and that this failure was due to irregular committee meetings and an insufficient number of committee members.

Dierdorff resigned from his position with Sun effective October 22, 1984. As part of the termination agreement, Sun agreed not to bring any action against Dierdorff arising out of the employment agreement after October 21, 1985.

Sun filed this action on October 21, 1985. On December 6, 1985, Sun filed an amended complaint that added additional parties. On January 8, 1986, Dierdorff filed a motion to dismiss. The district court granted the motion and dismissed the action without leave to amend on the ground that no federal claim had been stated and that federal subject matter jurisdiction was therefore lacking.

The district court found plaintiff’s RICO allegations insufficient on two grounds. First, the court held that plaintiff failed to allege a “pattern of racketeering activity.” Second, the court held that the predicate acts were not conducted by an “enterprise.” Sun appeals both of these rulings and, in the alternative, argues that even if the district court was correct in dismissing the complaint, it should have allowed Sun leave to amend. Dierdorff argues on appeal that the district court’s rulings on the pattern and enterprise issues were correct and that, in any case, the complaint failed to allege the predicate acts of mail fraud.

[191]*191II. DISCUSSION

We review a district court’s dismissal of a complaint de novo. Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). A complaint should not be dismissed for failure to state a cause of action “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). All allegations of the complaint should be construed favorably to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90; De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979).

A. Rico Generally

RICO, at 18 U.S.C. § 1962(c), provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. (Emphasis added.)

The Supreme Court has stated that “RICO is to be read broadly.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985). Liability under § 1962(c) requires (1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Id. at 3285. “Racketeering activity” is any act indictable under several provisions of Title 18 of the United States Code, see 18 U.S.C. § 1961, and includes the predicate act alleged in this ease of mail fraud under 18 U.S.C. § 1341.

B. Pattern of Racketeering Activity

In Sedima, 105 S.Ct. 3275, the Supreme Court in a footnote explored the contours of RICO’s “pattern” requirement:

As many commentators have pointed out, the definition of a “pattern of racketeering activity” differs from the other provisions in § 1961 in that it states that a pattern “requires at least two acts of racketeering activity,” § 1961(5)(empha-sis added), not that it “means” two such acts. The implication is that while two acts are necessary, they may not be sufficient.

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825 F.2d 187, 8 Fed. R. Serv. 3d 808, 1987 U.S. App. LEXIS 10981, 56 U.S.L.W. 2110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sun-savings-and-loan-association-a-corporation-v-daniel-w-dierdorff-mary-ca9-1987.