FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 17, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
M. EUGENE GIBBS-SQUIRES;
BARBARA A. GIBBS,
Plaintiffs – Appellants,
v. No. 15-1044
(D.C. No. 1:14-CV-00488-MSK-CBS)
URBAN SETTLEMENT SERVICES, (D. Colo.)
d/b/a Urban Lending Solutions; THE
KORN LAW FIRM, P.A.; BENJAMIN D.
MOORE; DOES 3–5; BANK OF
AMERICA N.A.; NATIONSTAR
MORTGAGE,
Defendants – Appellees,
and
SPECIALIZED LOAN SERVICES,
Defendant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Pro se Plaintiffs Eugene Gibbs-Squires and Barbara Gibbs, a married couple,
appeal the district court’s dismissal of a lawsuit they brought under the Racketeer
Influenced and Corrupt Organizations Act (RICO). Plaintiffs applied to Bank of
America (BOA) for a modification of their home loan in 2009 under the Home
Affordable Modification Program (HAMP) recently created by Congress. Plaintiffs
contend they were repeatedly transferred between BOA employees, told that their
application was incomplete despite providing all requested documents, and ultimately
denied a loan modification. In 2012 BOA sold Plaintiffs’ mortgage to Nationstar
and/or Specialized Loan Services before a determination had been made on
Plaintiffs’ request for reconsideration of their modification denial.
Plaintiffs, residents of South Carolina, filed a complaint with the United States
District Court for the District of Colorado in which they alleged that Defendants
Bank of America, Nationstar, Specialized Loan Services, and Urban Settlement
Services, LLC violated the RICO Act by repeatedly using mail and wire to
knowingly give false information to Plaintiffs as part of a greater scheme to issue as
few HAMP loan modifications as possible. This was presumably because, although
the U.S. Department of the Treasury required BOA to participate in HAMP, BOA
found HAMP modifications unprofitable or administratively complex.
Shortly thereafter, Plaintiffs filed an amended complaint which added as
defendants Korn Law Firm, P.A., Nationstar’s counsel, as well as Benjamin D.
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Moore, a court official in South Carolina who apparently presided over foreclosure
proceedings on Plaintiffs’ home. The amended complaint also included numerous
other causes of action against all Defendants, whom Plaintiffs refer to collectively as
“the HAMP-less gang”1. Separately, Mr. Gibbs-Squires filed a variety of motions
seeking, among other things, an injunction against further foreclosure proceedings,
sanctions against various Defendants, and leave to amend the complaint.
Several Defendants filed motions to dismiss. Mr. Moore filed a motion
seeking dismissal for lack of personal jurisdiction, improper venue, insufficiency of
process, and failure to state a claim under Fed. R. Civ. P. 12(b)(2) and 12(b)(6).
BOA and Nationstar moved to dismiss the claims for lack of personal jurisdiction and
for failure to state a claim under Rule 12(b)(2) and 12(b)(6). Urban moved to dismiss
for failure to state a claim under Rule 12(b)(6).
The district court referred the various motions to a magistrate judge, who
issued a Recommendation on the motions. The magistrate judge first addressed the
Colorado court’s jurisdiction over the Defendants not domiciled in Colorado (Mr.
Moore, BOA, and Nationstar). When a RICO claim is brought against at least one
1
These additional causes of action are (1) a claim under the Equal Credit
Opportunity Act, 15 U.S.C. § 1691(e); (2) a claim under California’s Consumer
Legal Remedies Act, Cal. Civ. §§ 1750 et seq.; (3) a claim under California’s Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; (4) breach of contract; (5)
breach of the implied covenant of good faith and fair dealing; (6) promissory
estoppel; (7) fraudulent misrepresentation; (8) unjust enrichment and a demand for
restitution; (9) claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, and 1988
alleging that Defendants’ actions targeted African Americans as a group; and (10) a
claim invoking various provisions of the RICO Act, largely repeating the original
complaint and further alleging violations of the Hobbs Act, 18 U.S.C. § 1951
including illegally foreclosing on homes.
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defendant over whom a court has personal jurisdiction, the RICO Act permits any
summons to be served nationwide over other defendants, subjecting them to the
court’s jurisdiction if required by the ends of justice. See Cory v. Aztec Steel Bldg.,
Inc., 468 F.3d 1226, 1231 (10th Cir. 2006). However, the magistrate judge found
that neither personal jurisdiction nor the nationwide jurisdiction provided for under
the RICO Act existed over Mr. Moore, BOA, and Nationstar because Plaintiffs failed
to adequately plead the essential elements of a RICO enterprise or a pattern of
racketeering activity against Urban, the sole Colorado domiciliary. As for Plaintiffs’
other claims, the magistrate judge found the pleadings failed to satisfy Fed. R. Civ. P.
8’s requirement of a “short and plain statement” of the pertinent facts and relief
requested, and recommended that all Defendants’ motions to dismiss be granted.
Plaintiffs filed an objection to the Recommendation, and on review, the district
court adopted nearly all of the magistrate judge’s Recommendation regarding
jurisdiction, but found the complaint sufficiently alleged that BOA entered into an
agreement with Urban, a Colorado domiciliary, and directed it to participate in the
HAMP-avoidance scheme in various ways from Urban’s Colorado office. The court
accordingly ruled that BOA could not be dismissed at that stage for lack of traditional
personal jurisdiction, but dismissed all claims against Defendants Mr. Moore and
Nationstar.
The district court declined to dismiss the remaining claims against BOA and
Urban based on Fed. R. Civ. P. 8, as the magistrate judge recommended, but instead
reviewed them on their merits and found that Plaintiffs failed to state any valid
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claims under either RICO or the ten other statutory and common law claims against
BOA and Urban.
Finally, the district court denied Plaintiffs’ second request to amend their
complaint as futile because Plaintiffs’ proposed second amended complaint failed to
substantively add to existing arguments or properly include new ones.2 Plaintiffs
then appealed all adverse decisions in their case to this court.
We review dismissals for failure to state a claim under Fed. R. Civ. P 12(b)(6)
or for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) de novo. Childs v.
Miller, 713 F.3d 1262, 1264 (10th Cir. 2013) (failure to state a claim); AST Sports
Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008) (lack of
personal jurisdiction). We review denials of motions for leave to amend for abuse of
discretion. Hertz v. Luzenac Grp., 576 F.3d 1103, 1117 (10th Cir. 2009).
First, we hold that the district court properly dismissed all claims against
Defendants Mr. Moore and Nationstar. Neither Defendant would ordinarily be
subject to the jurisdiction of a court in Colorado, a state with which neither has
significant ties, and we agree with the district court that Plaintiffs failed to assert
jurisdiction over them through an adequately pled RICO claim. See Cory, 468 F.3d
at 1231 (permitting nationwide jurisdiction against all defendants jointly sued under
the RICO Act when at least one defendant is properly before the court). Plaintiffs
2
The court did allow the inclusion of a factual admission from the second
amended complaint to be incorporated into the original complaint, but this had no
effect on the court’s conclusion that the proposed amendment as a whole was futile
and should be denied.
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claim that mail and/or wire fraud satisfy the predicate “pattern of racketeering
activity” element necessary for a RICO claim. Bixler v. Foster, 596 F.3d 751, 760-61
(10th Cir. 2010). However, even taking all Plaintiffs’ allegations as true, the activity
Plaintiffs accuse BOA and its affiliates of does not, as a matter of law, constitute
fraud. Plaintiffs desire for a HAMP modification did not provide them with a
protected property interest that they were legally defrauded of under RICO. See
Edwards v. Aurora Lona Services, LLC, 791 F. Supp. 2d 144, 154-55 (D.D.C. 2011)
(reviewing cases holding that HAMP modifications cannot be a protected property
interest because the U.S. Department of the Treasury can alter or end the HAMP
program at any time).
We also hold that the district court properly dismissed all statutory and
common-law claims against BOA and Urban. In addition to the RICO claim
discussed above, the district court addressed, at length, each of Plaintiffs’ claims and
found each failed as a matter of law. We need not repeat its analysis here, but we
have reviewed and agree with each of the district court’s rulings.
Finally, we hold the district court acted within its discretion to deny Plaintiffs’
motion to amend because the proposed amendments added no new information to
assist the court in its analysis of the existing claims and did not demonstrate an
entitlement to relief. See Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Inv’r’s
Servs., 175 F.3d 848, 859 (10th Cir. 1999) (holding that denial of leave to amend is
appropriate when the proposed amendment would be futile).
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For the reasons given above as well as those articulated by the district court,
we AFFIRM the district court’s dismissal of each of Plaintiffs’ claims and denial of
Plaintiffs’ second Motion for Leave to Amend.
Entered for the Court
Monroe G. McKay
Circuit Judge
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