[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
FILED
Nos. 05-15402 & 05-16523 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________________________ July 13, 2006
THOMAS K. KAHN
D. C. Docket No. 05-01662-CV-AR-S CLERK
ANGIE CARTER,
d.b.a. Fairview Video,
MARY HALL, et al.,
Plaintiffs-Appellants,
versus
MGA, INC., and all Holding
Companies and Affiliated Entities
d.b.a. Movie Gallery,
UNITED PARCEL SERVICE, INC. (UPS),
SELECT MEDIA SERVICES, LLC, et al.,
Defendants-Appellees.
_________________________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________________________
(July 13, 2006)
Before EDMONDSON, Chief Judge, and DUBINA and HULL, Circuit Judges.
PER CURIAM:
Plaintiffs Angie Carter, Mary Hall, Maurice King, and William Harris
appeal the district court’s dismissal under Rule 12(b)(6) of their civil RICO claim.
No reversible error has been shown; we affirm.
We review de novo the district court’s grant of the motion to dismiss under
12(b)(6), accepting the factual allegations in the complaint as true and construing
them in the light most favorable to Plaintiffs. Hill v. White, 321 F.3d 1334, 1335
(11th Cir. 2003).
Plaintiffs are the owners of video rental stores in Alabama. Plaintiffs sell
and rent only nonpornographic materials. Defendant Movie Gallery, successor in
interest to M.G.A., Inc., sells and rents pornographic and nonpornographic
materials. Defendants Mile High Media, Inc., LFP, Inc., Digital Sin, Inc., and
Fraserside Holding produce pornographic movies. Defendant UPS transported in
interstate commerce pornographic materials from these companies to Movie
Gallery. Defendant Select Media sold pornographic magazines to Movie Gallery.
Plaintiffs allege that Defendants violated 18 U.S.C. 1962(c)-(d)1 by
conspiring to distribute and by actually distributing obscenity and by using the
1
Plaintiffs did not actually state that Defendants violated section 1962(c) in the complaint, but
instead that Defendants violated 1462(c). As the text of that paragraph seemed to indicate section
1962(c) was intended, we will address that claim.
2
proceeds of that distribution to allow Movie Gallery to sell and to rent
nonpornographic materials at a price less than Plaintiffs were able to sell and rent
nonpornographic materials.
To state a claim for violation of section 1962(c), Plaintiffs must allege facts
showing “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity.” Jones v. Childers, 18 F.3d 899, 910 (11th Cir. 1994) (quoting Sedima
S.P.R.L. v. Imrex Co., 105 S.Ct. 3275, 3285 (1985). A pattern of racketeering
activity is defined as two predicate acts committed within a ten-year period. Green
Leaf Nursery v. E.I. DuPont De Nemours Co., 341 F.3d 1292, 1306 (11th Cir.
2003). Plaintiffs alleged that Defendants violated two federal obscenity statutes,
18 U.S.C. §§ 1462 and 1465, on 27 September 2004 and 22 October 2004. Both
violation of the statutes are identified as predicate acts in 18 U.S.C. 1961.2
Plaintiffs must allege facts sufficient to show a violation of these obscenity
statutes to survive a motion to dismiss. See Republic of Panama v. BCCI
Holdings (Luxembourg) S.A., 119 F.3d 935, 949 (11th Cir. 1997) (“In order to
survive a motion to dismiss, a plaintiff must allege facts sufficient to support each
of the statutory elements for at least two of the pleaded predicate acts.”).
2
Plaintiffs also alleged that Defendants violated 18 U.S.C. § 1466, but this statute is not listed in
18 U.S.C. § 1961 as a possible predicate act.
3
Plaintiffs, however, did not allege facts that would show -- or create a reasonable
inference -- that the pertinent materials were obscene. The only facts Plaintiffs
state about the pertinent materials are their titles. These titles create a reasonable
inference that at least some of the materials were pornographic but are insufficient
to create a reasonable inference that the materials were obscene. Plaintiffs’
statements that the materials are obscene are insufficient to survive a motion to
dismiss. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002) (“[C]onclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal.”). Therefore, the
district court properly dismissed the section 1962(c) claim.
Section 1962(d) makes it illegal to conspire to violate a substantive RICO
provision. To state a claim under this section, Plaintiffs must allege facts to
support an agreement to violate a substantive provision of the RICO statute.
Jackson v. Bell South Telecomm., 372 F.3d 1250 (11th Cir. 2004). But Plaintiffs
alleged no facts to show or to create a reasonable inference that Defendants made
an agreement. Plaintiffs’ conclusory allegations that Defendants conspired with
each other are insufficient to survive a motion to dismiss. Therefore, the section
1962(d) claims were properly dismissed.
4
Plaintiffs argue that they were held to a higher standard of pleading than
that required by Federal Rule of Civil Procedure 8. But the district court never
said it applied a higher standard to RICO pleadings, and Defendants never argued
that a higher standard should be used. As discussed above, Plaintiffs did not
allege facts sufficient to support their claims and thus did not meet the
requirements of Rule 8.
AFFIRMED.
5