Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1498
ÚRSULA VÁZQUEZ-BALDONADO,
Plaintiff, Appellant,
v.
ALICIA DOMENECH and JOSÉ M. REYES-REYES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Mauricio Hernández-Arroyo and Law Offices of Mauricio
Hernández-Arroyo, Esq., on brief for appellant.
March 13, 2015
BARRON, Circuit Judge. Úrsula Vázquez-Baldonado appeals
the District Court's denial, with prejudice, of her motion for
default judgment against defendants José Reyes-Reyes and Alicia
Domenech. Vázquez also appeals the dismissal of her complaint. We
affirm.
Vázquez alleged in her first complaint that Domenech
engaged in a conspiracy to defraud Vázquez and others by falsely
representing Domenech's ability to obtain immigration benefits for
her clients. Vázquez sought civil damages under the Racketeer
Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C.
§§ 1961-68.1 RICO liability attaches for a "pattern of
racketeering activity," id. §§ 1962, 1964, and such a pattern
requires "at least two acts of racketeering activity," id.
§ 1961(5), with qualifying predicate acts of racketeering activity
enumerated in § 1961(1).
The defendants "failed to plead or otherwise defend," and
the clerk thus entered a default under Federal Rule of Civil
Procedure 55(a). Vázquez then moved the District Court for entry
of default judgment under Rule 55(b)(2). But the District Court
1
Her first complaint also raised a number of other claims
under Puerto Rico law. The District Court dismissed them for
failure to state a claim due to inadequate pleading of necessary
factual allegations. Vázquez states in her brief on appeal that
this dismissal was erroneous. But because this argument is
presented, without citation of authority, in a single sentence in
a section of the brief titled "Summary of the Legal Argument" and
is not developed further, we deem her argument waived. Rodríguez
v. Municipality of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011).
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denied Vázquez's motion without prejudice because, among other
reasons, the complaint and the motion did not state a claim for
civil RICO liability. See Feliciano-Hernández v. Pereira-Castillo,
663 F.3d 527, 537 n.5 (1st Cir. 2011) ("[A] district court may,
after entry of default, still conclude that a complaint fails to
state a claim."). Specifically, the District Court explained that
"[a]lthough the complaint lists a series of predicate and non-
predicate acts [to RICO liability], it appears that plaintiff only
provides some factual support for wire fraud." Then, quoting
Feinstein v. Resolution Trust Corp., 942 F.2d 34, 42 (1st Cir.
1991), the District Court concluded that "[i]t is not enough for a
plaintiff to file a RICO action, chant [the] statutory mantra, and
leave the identification of the predicate acts to the time of
trial." And, the District Court specifically warned that, if the
plaintiff failed to correct these defects in an amended complaint,
she risked dismissal with prejudice for want of prosecution.
In response, Vázquez filed an amended complaint and again
sought default judgment from the District Court. The District
Court again denied the motion, this time with prejudice for want of
prosecution. In doing so, the District Court once more concluded
that Vázquez had failed to plead facts adequate to establish the
existence of at least two predicate racketeering acts and also went
on to conclude that Vázquez had failed adequately to plead other
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essential elements of her claim, including the continuity of
racketeering activity and the elements of a RICO conspiracy.
In this appeal, Vázquez contends her amended complaint
did sufficiently allege the elements of the RICO conspiracy and
that the racketeering activity was continuous. But Vázquez does
not address the District Court's holding that her complaint failed
to state a claim because it did not plausibly allege the existence
of at least two predicate RICO acts, as defined by the statute.
See 18 U.S.C. § 1961(1) (listing various acts and criminal offenses
that qualify as "racketeering activity"). And that means she has
waived her challenge to the District Court's determination that her
amended complaint failed to state a claim. Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("[W]e
deem waived claims not made or claims adverted to in a cursory
fashion, unaccompanied by developed argument. . . . Judges are not
mind-readers, so parties must spell out their issues clearly,
highlighting the relevant facts and analyzing on-point
authority.").
Vázquez does argue that even if her amended complaint
failed to state a claim, the District Court abused its discretion
by denying her motion for default judgment with prejudice instead
of granting leave to file a second amended complaint. But having
already given Vázquez a chance to amend the complaint to address
its defects and warning that her failure to do so might result in
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dismissal with prejudice, the District Court did not abuse its
discretion in doing what it warned it might. See Torres-Vargas v.
Pereira, 431 F.3d 389, 393 (1st Cir. 2005) ("Where, as here, the
court appropriately forewarns a plaintiff of the consequences of
future noncompliance with an unambiguous order, the court need not
exhaust less toxic sanctions before dismissing a case with
prejudice.").
The judgment of the District Court is thus affirmed.
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