United States Court of Appeals
For the First Circuit
No. 99-1192
CLAUDIO GONZALEZ-MORALES, ISABEL MATEO,
CONJUGAL PARTNERSHIP OF GONZALEZ-MATEO,
AND LA AMERICANA HOME CENTER & DISTRIBUTING CO., INC.
Plaintiffs, Appellants,
v.
RENE HERNANDEZ-ARENCIBIA, JANE DOE, AND
CONJUGAL PARTNERSHIP OF HERNANDEZ-DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fusté, U.S. District Judge]
Before
Torruella, Chief Judge
Selya and Lipez, Circuit Judges.
Pablo J. Santiago-Hernández on brief for appellants.
Jorge A. Fernández-Reboredo on brief with Rivera &
Fernández-Reboredo for appellees.
August 14, 2000
LIPEZ, Circuit Judge. This convoluted dispute arises
out of Rene Hernández-Arencibia's efforts to collect on a
promissory note signed by Claudio González-Morales and Isabel
Mateo-González to finance their hardware concern, La Americana
Home Center & Distributing Co., Inc ("La Americana").1 To
recover the allegedly outstanding debt, Hernández filed suit in
the San Juan Superior Court for the Commonwealth of Puerto Rico
and obtained an ex parte attachment order. With these Puerto
Rico proceedings ongoing, the Gonzálezes sued Hernández, his
wife "Jane Doe," and their conjugal partnership 2 in federal
court, claiming that the attachment of their property violated
the due process clause of the Fourteenth Amendment, the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §
1961 et seq. (RICO), and Puerto Rico law. The district court
dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for
"failure to state a claim upon which relief can be granted." We
now affirm.
1
The Gonzálezes, their conjugal partnership, and La
Americana (which the Gonzálezes own) are all plaintiffs in this
suit. For ease of reference, we refer to the plaintiffs
collectively as the Gonzálezes.
2
The complaint alleges on information and belief that
Hernández is married to a "Jane Doe . . . who is presumptively
the co-administrator of the conjugal partnership." Complaint ¶
5. As the complaint exclusively challenges Hernández's
conduct, we simply refer to Hernández.
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I.
We recite the facts as alleged in the complaint. See
Langadinos v. American Airlines, 199 F.3d 68, 69 (1st Cir.
2000). Claudio and Isabel González purchased a hardware
business from Maderera Hato Rey, Inc. ("Maderera"), a retailer
of lumber and construction materials owned by Hernández. As
part of the purchase, the Gonzálezes personally guaranteed a
$400,000 promissory note, with requirements of monthly payments
and payment of the balance due on July 31, 1995. Unable to make
all payments, the Gonzálezes owed about $50,000 at the time the
note was due. As a result, Hernández filed several suits in the
Puerto Rico courts, including suits to evict La Americana from
its rented premises (filed by Pego Realty Corp., owned by
Hernández), a suit for rent, and a suit to recover the
promissory note debt (filed by Hernández personally).
When Hernández filed suit to collect on the promissory
note, he simultaneously moved for an ex parte attachment of the
Gonzálezes' property. The Puerto Rico court ordered Hernández
"to show by authentic means the existence of indebtedness [and]
that it is for an amount certain, payable on demand, and due"
and also to show "the extraordinary circumstances that would
warrant the attachment writ be granted without a hearing."
Hernández filed a motion in compliance, offering the contract
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for the sale of the hardware business (which included the terms
of the promissory note), a document allegedly establishing
Hernández's rights to collect on the note, and a sworn
affidavit. The court granted a writ of attachment and Hernández
seized various equipment from La Americana. Following the
attachment, the court evaluated motions and heard argument as to
whether Hernández could personally collect on a promissory note
issued to his company, Maderera, an issue which turned on
whether the note had properly been assigned to Hernández. The
court eventually determined that Hernández had made a sufficient
showing to move forward and that the attachment would remain in
effect until "testimonial proof is heard." Although the
complaint is unclear, at some point Hernández apparently posted
a bond in connection with the attachment.
The Gonzálezes then brought the instant suit in federal
court, arguing that Hernández had violated their constitutional
rights (a claim brought under 42 U.S.C. § 1983), RICO, and a
number of Puerto Rico laws. The district court dismissed the
suit for "failure to state a claim upon which relief can be
granted," Fed. R. Civ. P. 12(b)(6), because the Gonzálezes had
not demonstrated state action as required by § 1983 and because
they had failed to allege facts sufficient to establish a RICO
violation. As no federal claims had been properly pled, the
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district court dismissed the Puerto Rico law counts. See
Camelio v. American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).
The Gonzálezes filed a motion to alter or amend the judgment,
arguing, inter alia, that Hernández was a "state actor" because
he used attachment procedures that the Supreme Court of Puerto
Rico had declared unconstitutional in Rivera v. Stowell, 93
J.T.S. 111 (1993). Rejecting this view, the trial court denied
the motion. On appeal, the Gonzálezes argue that the district
court erred in dismissing their claim that the attachment
violated due process and their RICO claim.3
Our review under Rule 12(b)(6) is plenary. See
Langadinos, 199 F.3d at 69. "[W]e may affirm a dismissal for
failure to state a claim only if it clearly appears, according
to the facts alleged, that the plaintiff cannot recover on any
viable theory." Id. (quoting Correa-Martinez v.
Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).
II.
The Gonzálezes allege that Hernández violated their due
process rights by attaching their property. They invoke 42
3 The Gonzálezes' brief focuses exclusively on the attachment
and RICO issues. While the Gonzálezes' assert that "the amended
complaint contains other distinct actionable claims under §
1983," they fail to develop any argument in favor of these
supposed other claims. See United States v. Hughes, 211 F.3d
676, 684 n.6 (1st Cir. 2000) (party waives issue by failing to
develop argument).
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U.S.C. § 1983, which provides a cause of action for "deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws." Section 1983, however, does not provide
relief against most private individuals: the deprivation must be
caused by a person acting "under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia." Id. As the "color of"
law requirement restricts § 1983 to "state action," Lugar v.
Edmondson Oil Co., 457 U.S. 922, 935 (1982), the alleged
deprivation must be "fairly attributable to the State," id. at
937.
The "fair attribution" test requires both a state
policy and a state actor. The state policy component requires
that the deprivation "be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed
by the state or by a person for whom the State is responsible."
Id. at 940. The state actor component requires that "the party
charged with the deprivation must be a person who may fairly be
said to be a state actor." Id. 940-41; accord Casa Marie, Inc.
v. Superior Court of Puerto Rico, 988 F.2d 252, 258 (1st Cir.
1992). A defendant may be a state actor because he is a state
official, because he acted together with a state official, or
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because his conduct is otherwise chargeable to the State. See
Casa Marie, 988 F.2d at 258.
Citing Lugar, the Gonzálezes argue that Hernández can
be sued under § 1983 because he used the state courts to attach
their property unconstitutionally. Although "something more
than mere resort to a state court is required" to transform a §
1983 defendant into a state actor, Casa Marie, 988 F.2d at 259,
Lugar makes clear that in some circumstances the private use of
a state's attachment proceedings can give rise to a § 1983
claim. See 457 U.S. at 941. The Supreme Court stated:
While private misuse of a state
statute does not describe conduct that can
be attributed to the State, the procedural
scheme created by that statute obviously is
the product of state action. This is
subject to constitutional restraints and may
be properly addressed in a § 1983 action, if
the second element of the state-action
requirement [a "state actor"] is met as
well.
Id. Applying this dichotomy, the Supreme Court held that the
count of the petitioner's complaint which attacked the
attachment as "malicious, wanton, willful, opressive [sic],
[and] unlawful", did not state a constitutional claim since it
only alleged the private misuse of the state procedures. Id. at
940. A second count of the complaint, however, challenged the
state statute as procedurally defective under the Fourteenth
Amendment. See id. at 940-41. The fact that the challenged
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scheme allowed a private party to invoke the state power of
attachment upon ex parte application created a sufficient nexus
between state and individual to demonstrate state action and
permit a § 1983 suit against the individual who sought the
attachment. See id. at 942.
The Gonzálezes claim that they too have alleged
reliance by the defendants on unconstitutional attachment
procedures because Puerto Rico Civil Procedure Rule 56.4,
governing ex parte attachments, is unconstitutional. Rule
56.4's language does not explicitly require a showing of either
exigent circumstances or documentary proof that a debt is due.
See Connecticut v. Doehr, 501 U.S. 1, 18 (1991) (holding that
attachment statute allowing tort plaintiff to attach property ex
parte without a showing of exigent circumstances violated due
process); Mitchell v. W.T. Grant Co., 416 U.S. 600, 609 (1974)
(noting that ex parte procedure requiring documentary proof of
debt due provides due process). In Rivera v. Stowell, 93 JTS
111 (1993), the Supreme Court of Puerto Rico recognized the
difficulties with Rule 56.4's language:
Rule 56.4 currently in force is
unconstitutional inasmuch as it permits that
a court issue an attachment order, without
holding a previous hearing, in those
situations in which the claimant: has not
alleged or demonstrated having a previous
proprietary interest in the attached object,
Mitchell, ante; has not alleged or
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demonstrated the existence of extraordinary
circumstances, Doehr, ante; nor has alleged
or demonstrated the possibility of
prevailing by means of documentary proof
whereby it may be established the debt is
determinate, due and payable on demand.
Only in these three situations may a Court
defer holding such a hearing after the
attachment has been effected.4
While Rivera makes plain that some applications of Rule
56.4 are constitutionally deficient, the Gonzálezes cannot state
a § 1983 claim by citing those deficiencies. Instead, they must
allege constitutional deficiencies in the ex parte procedures
used to attach their property. The Gonzálezes' complaint makes
clear that in this case the court required Hernández to
demonstrate both proof of debt and exigent circumstances before
authorizing the ex parte attachment. The complaint states that
the Court issued the following order:
In 15 days the party plaintiff (that
is: Hernández) shall strictly comply with
4We note that the parties failed to provide a translation of
Rivera as we require. See Local Rule 30(d) ("Whenever an
opinion of the Supreme Court of Puerto Rico is cited in a brief
or oral argument which does not appear in the bound volumes in
English, an official, certified or stipulated translation
thereof . . . shall be filed."). While "we may commission
unofficial translations and impose on the offending parties the
costs incurred and, where appropriate, sanctions," Lama v.
Borras, 16 F.3d 473, 478 n.6 (1st Cir. 1994), in this case we
simply rely on the quotations in the parties' briefs. To the
extent that the Gonzálezes would offer additional arguments
based on portions of the Rivera opinion that they did not
translate, they waive those arguments by failing to provide the
translation.
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Rivera v. Stowell, 93 J.T.S. 111 and show by
authentic means (fehacientemente) the
existence of the indebtedness, that is for
an amount certain, payable on demand, and
due, etc. See 93 JTS page 10934. In the
same fashion [Hernández] must show by his
sworn statement the extraordinary
circumstances that would warrant that the
attachment writ be granted without a
hearing.
Complaint ¶ 14. In order to establish state action, the
complaint must at least allege that these attachment procedures
were unconstitutional.5
The Gonzálezes do not argue that the trial court's
decision to require proof of indebtedness and exigent
circumstances violated their constitutional rights. Instead,
the adjective-laden and often repetitive allegations of the
thirty-six page complaint challenge the attachment proceedings
on three other grounds that are not actionable under § 1983.
First, the Gonzálezes challenge Hernández's allegedly bad
motives in moving for the attachment, arguing that Hernández
sought the attachment to "vex, annoy, and harass the
5Of course, "[t]he court is not required to accept legal
conclusions as true when considering a motion to dismiss." New
England Cleaning Servs., Inc. v. American Arbitration Assoc.,
199 F.3d 542, 545 (1st Cir. 1999). Thus, a court could still
dismiss the Gonzálezes' complaint under Rule 12(b)(6) on the
ground that the procedures described in the complaint did not,
as a matter of law, violate due process. We need not explore
this issue, as the Gonzálezes fail even to allege that the
procedures actually used by the Puerto Rico court were
constitutionally defective.
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plaintiffs," Complaint ¶ 6, and to "cause economic harm . . .
and humiliate" them, id. ¶ 7. Second, the Gonzálezes allege
that Hernández lied to the court to obtain the attachment. The
complaint accuses Hernández of "false representations, spurious
documents, and brazen trickery," id. ¶ 89, and states that "the
defendant at all times knew, willfully ignored, and kept from
the Court" the fact that the attachment was inappropriate, id.
¶ 7. Third, the Gonzálezes challenge the evidentiary basis for
the court's decision, pointing to supposed deficiencies in the
proof on exigent circumstances and the existence of a debt, see
id. ¶¶ 8, 79-81, 86-88, 96-97.6
At bottom, then, the Gonzálezes allege nothing more
than improper motives and misrepresentations on the part of
Hernández and an incorrect assessment of evidence by the Puerto
Rico court. While the Gonzálezes point to problems with Puerto
Rico Civil Procedure Rule 56.4, they do not challenge the Rivera
procedures actually employed by the trial court.7 As a result,
6
Challenges to the Puerto Rico court's evaluation of
evidence, as the district court noted, are "obviously
inappropriate." See generally Hill v. Town of Conway, 193 F.3d
33, 41 (1st Cir. 1999) ("[F]ederal courts do not have
jurisdiction pursuant to § 1983 to review the judgments and
decisions of state courts." (quoting Erwin Chemerinsky, Federal
Jurisdiction 423 (1994))).
7
Although the Gonzálezes imply that the court's post-
attachment hearings were inadequate, the constitutional
challenge in the complaint is not directed at this issue and the
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the § 1983 complaint against Hernández was properly dismissed
for a lack of state action. See Gene Thompson Lumber Co. v.
Davis Parmer Lumber Co., 984 F.2d 401, 404 (11th Cir. 1993) (no
§ 1983 claim for mere misuse of attachment procedures); Jones v.
Poindexter, 903 F.2d 1006, 1011 (4th Cir. 1990) (same, regarding
misuse of state process); Hassett v. LeMay Bank & Trust Co., 851
F.2d 1127, 1130 (8th Cir. 1988) (same, regarding misuse of
replevin).
III.
The Gonzálezes also argue that the district court erred
in dismissing their RICO claim. See 18 U.S.C. 1962(c). In
pertinent part, § 1962(c) reads as follows:
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 enterprises's affairs
through a pattern of racketeering activity
or collection of unlawful debt.
Gonzálezes fail to offer developed argument on this point. See
Complaint ¶¶ 95-97; see also Doyle v. Hasbro, 103 F.3d 186, 190
(1st Cir. 1996) ("In conducting our review of the case, we are
limited to those allegations contained in the amended
complaint."); United States v. Hughes, 211 F.3d 676, 684 n.6
(1st Cir. 2000) (arguments not developed are waived).
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To establish a "pattern of racketeering activity," the RICO
plaintiff must point to at least two predicate acts enumerated
in 18 U.S.C. § 1961(1). See Feinstein v. Resolution Trust
Corp., 942 F.2d 34, 41 (1st Cir. 1991). However,
"[r]acketeering acts . . . do not constitute a pattern simply
because they number two or more." Roeder v. Alpha Indus., Inc.,
814 F.2d 22, 30 (1st Cir. 1987); see Fleet Credit Corp. v. Sion,
893 F.2d 441, 444 (1st Cir. 1990). The plaintiff must also show
that the acts are related and that they demonstrate a threat of
continued criminal activity. See H.J. Inc. v. Northwestern Bell
Tel. Co., 492 U.S. 229, 239 (1989).
The Gonzálezes allege that the pattern of racketeering
activity consisted of "extortion" and "attempted extortion"
through the filing of various suits in response to the non-
payment of the promissory note. See § 1961(1)(A) (racketeering
activity includes "any act or threat involving . . . extortion
. . . which is chargeable under State law and punishable by
imprisonment for more than one year").8 Although we will assume
that the filing of frivolous suits may constitute RICO extortion
8The Gonzálezes also point to "predicate acts" of assault,
illegal eviction from their property, and fraud under Puerto
Rico law in obtaining the attachment. These violations,
however, are not enumerated as predicate acts under § 1961(1)
(listing criminal activity that can be considered predicate act
for RICO purposes).
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in some instances, see, e.g., Lemelson v. Wang Labs., Inc., 874
F. Supp 430, 433 (D. Mass. 1994), in this case the Gonzálezes do
not make out the kind of pattern that poses "a threat of
continued criminal activity." H.J. Inc., 492 U.S. at 239.
Courts "have consistently held that a single episode does not
constitute a 'pattern,' even if that single episode involves
behavior that amounts to several crimes (for example, several
unlawful mailings)." Apparel Art Int'l, Inc. v. Jacobson, 967
F.2d 720, 723 (1st Cir. 1992) (Breyer, C.J.). "Instead, courts
have tended to find RICO 'patterns' only where the defendant's
conduct consists of 'multiple criminal episodes' over long
periods of time." Schultz v Rhode Island Hospital Trust Nat'l
Bank, N.A., 94 F.3d 721, 731-32 (1st Cir. 1996); see also H.J.
Inc., 492 U.S. at 242 ("Congress was concerned in RICO with
long-term criminal conduct.").
As the Gonzálezes acknowledge in the complaint, all of
the "predicate acts . . . have their origin in the forementioned
[sic] Contract for Purchase of Assets." Complaint ¶ 103. The
mere fact that separate proceedings were instituted (one to
evict La Americana from the rental property, another to collect
on the promissory note, etc.) does not convert what is
essentially a single episode into the kind of pattern that
demonstrates a threat of continued activity. See J.D. Marshall
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Int'l Inc., v. Redstart, Inc., 935 F.2d 815, 820-21 (7th Cir.
1991) (no pattern in "a single scheme . . . involv[ing] a single
victim . . . predicated upon a single transaction--the Purchase
Agreement."); SIL-SLO Inc. v. SFHC, Inc., 917 F.2d 1507, 1516
(10th Cir. 1990) ("At most, what has been alleged is a business
deal gone sour . . . constitut[ing] a single scheme to
accomplish one discrete goal, directed at one individual with no
potential to extend to other persons or entities."). Similarly,
the fact that some of the local court suits are still pending
does not constitute long-term conduct demonstrating a threat of
future activity. See Kehr Packages, Inc. v. Fidelcor, Inc., 926
F.2d 1406, 1417-19 (3d Cir. 1991) ("[I]t is of little importance
that a particular injury was inflicted over an extended period
of time, rather than all at once."); United States Textiles,
Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1269 (7th Cir. 1990)
("[I]dentical economic injuries . . . stemming from a single
contract were not the type of injuries which Congress intended
to compensate via the civil provisions of RICO.").
In short, the Gonzálezes have not alleged a pattern of
racketeering activity. Thus, we need not address whether the
other elements of RICO (such as the allegation of an
"enterprise") were pled appropriately. The RICO claim was
properly dismissed.
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Affirmed.
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