UNITED STATES COURT OF APPEALS
for the Fifth Circuit
No. 95-30254
THE SUCCESSION OF LULA BELLE WARDLAW,
through its executor, Marvin E. Owen,
Plaintiff-Appellant,
VERSUS
THE WHITNEY NATIONAL BANK, ET AL.,
Defendants-Appellees.
AND
PREMIER BANK,
Defendants.
Appeal from the United States District Court
For the Eastern District of Louisiana
(94-CV-2026-N)
December 5, 1995
Before DAVIS AND PARKER, Circuit Judges and BUNTON, 1 District Judge.
PER CURIAM:2
Appellant challenges the district court's order of dismissal dated February 14, 1995, which
dismissed the RICO counts against Appellees Whitney National Bank and James Cleveland Langlois,
Jr., for failure to state a claim. Appellant argues that the district court erred in dismissing the claims
because Appellant made a specific showing of a pattern of racketeering. We reverse the district
court's order and remand the case to the district court so that it may consider the closed-ended
1
District Judge of the Western District of Texas, sitting by designation.
2
Local Rule 47.5 provides: "The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless expense
on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
concept for determining whether Appellant alleged a pattern of racketeering activity.
I. STANDARD OF REVIEW
This Court reviews a district court's dismissal for failure to state a cause of action de novo.
Techman v. DSC Comm. Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Barrientos v. Reliance Standard
Life Ins., 911 F.2d 1115, 1116 (5th Cir. 1990). The Court applies the same standards applicable to
the district court. Manges v. McCamish, 37 F.3d 221 (5th Cir. 1994). Specifically, a claim must not
be dismissed unless the plaintiff cannot prove any set of facts in support of her claim that would
entitle her to relief. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).
Furthermore, the plaintiff's allegations are to be taken as true and resolved in the light most favorable
to the plaintiff. Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
II. ELEMENTS OF A RICO CLAIM
To establish a RICO violation, the plaintiff must allege the existence of : 1) a person who
engages in a pattern; 2) of racketeering activity; 3) connected to the acquisition, establishment,
conduct, or control of an enterprise. Calcasieu Marine Nat'l Bank v. Grant, 943 F.2d 1453, 1461 (5th
Cir. 1991)(emphasis omitted). The district court dismissed the RICO claims because it believed that
"Plaintiff ha[d] not made a specific showing that defendants' acts constitute[d] a pattern of
racketeering activity that poses a threat of future criminal conduct." ROA at 1317. Consequently,
the district court did not address whether there were sufficient allegations as to the other elements
required to comprise a RICO claim.
III. DISCUSSION
In order to prove a "pattern" of racketeering activity a plaintiff must show at least two
racketeering predicates that are related and that amount to, or threaten the likelihood of, continued
criminal activity. H.J. Inc. v. Northwestern Bell. Tele. Co., 109 S.Ct. 2893, 2899-2905 (1989). In
other words, the plaintiff must prove continuity of racketeering activity, or the threat of continued
racketeering activity to satisfy the pattern requirement. Id.
The Supreme Court has stated that "[c]ontinuity is both a close- and open-ended concept,
referring either to a closed period of repeated conduct, or the past conduct that by its nature projects
into the future with the threat of repetition. Id. at 2902 (emphasis added).
Appellant has alleged that Appellees engaged in a series of related RICO predicates extending
over a substantial period of time. It appears that the district court only considered the open-ended
concept of proving a pattern of racketeering activity when it stated that "the bare allegation that
because these defendants did something fraudulent once, they are likely to do it again, is insufficient
to establish the threat of future criminal conduct." ROA at 1315. This suggests the court believed
that Appellant had to show that future criminal conduct was likely. There is no indication that the
district court considered that a "pattern" could be established by a closed period of repeated conduct.
Because Appellant has alleged a series of RICO predicates extending over several years, we reverse
the order of dismissal for failure to state a claim for relief and remand this case to the district court
so that it can determine whether Appellant has sufficiently alleged a pattern of racketeering activity
utilizing the closed-ended concept.
REVERSED AND REMANDED.