Tal v. Hogan

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
June 29, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

MOSHE TAL; BRICKTOWN 2000,
INC.; TAL TECHNOLOGIES, INC.,

Plaintiffs - Appellants,
No. 03-6293
v.

DAN RANDOLPH HOGAN;
TMK/HOGAN JOINT VENTURE,
also known as Commercial Real Estate
Services; HOGAN PROPERTY
MANAGEMENT, LLC;
BRICKTOWN-TMK/HOGAN
PARKING, LLC., also known as
Bricktown-SMC/Hogan, LLC;
BRICKTOWN-TMK/HOGAN
ENTERTAINMENT, LLC, also known
as Bricktown Entertainement, LLC;
MARK D. ELGIN; STONEGATE
MANAGEMENT COMPANY, LLC;
ELGIN DEVELOPMENT COMPANY,
LLC; TDC COMPANY, LLC; TIANA
P. DOUGLAS,

Defendants - Appellees.
_____________________

THE CITY OF OKLAHOMA CITY;
OKLAHOMA CITY URBAN
RENEWAL AUTHORITY,

Amici-Curie.
 Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 02-CV-324-F)

Submitted on the Briefs: *

Moshe Tal, pro se, Plaintiff-Appellant.

James E. Dunn, James E. Dunn & Associates, P.C., of Oklahoma City, Oklahoma,
for Plaintiffs-Appellants Bricktown 2000, Inc. and Tal Technologies, Inc.

Melvin R. McVay, Jr., Robert N. Sheets, Lloyd T. Hardin, Jr., Heather L. Hintz,
Phillips, McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, Oklahoma,
for Defendants-Appellees Hogan, TMK/Hogan Joint Venture; Hogan Property
Management, LLC; Bricktown-TMK/Hogan Parking, LLC; Bricktown-
TMK/Hogan Entertainment, LLC; Mark D. Elgin; Stonegate Management
Company, LLC; Elgin Development Company, LLC, and TDC Company, LLC.

Gerard F. Pignato, Tom Cooper and Brad L. Roberson, Pignato & Cooper, P.C.,
Oklahoma City, Oklahoma, for Defendant-Appellee Tiana P. Douglas.

William R. Burkett, Daniel T. Brummitt, Office of Municipal Counselor,
Oklahoma City, Oklahoma, for Amicus Curiae The City of Oklahoma City.

Leslie V. Batchelor, Dan Batchelor, Center for Economic Development Law,
Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma City Urban Renewal
Authority.

Before BRISCOE, MURPHY and O’BRIEN, Circuit Judges.

*
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a); 10 th Cir. R. 34.1. The
case is therefore ordered submitted without oral argument.

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O’Brien, Circuit Judge.

This case is the latest in a long running dispute between Moshe Tal, the

founder and president of both Tal Technologies, Inc., (Tal, Inc.) and Bricktown

2000, Inc. (Bricktown, Inc.), and Oklahoma City, the Oklahoma City Urban

Renewal Authority (Renewal Authority) and various private Developers 1 over the

condemnation of Tal, Inc.’s land and Bricktown, Inc.’s failure to acquire

redevelopment rights for the area in downtown Oklahoma City known as

Bricktown. On March 14, 2002, Tal, Tal, Inc. and Bricktown, Inc. filed suit in

the United States District Court for the Western District of Oklahoma against the

Developers and the executive director of the Renewal Authority, Tiana Douglas,

alleging violations of the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. § 1962, and the Sherman Act, 15 U.S.C. § 2. They also

asserted pendant state law claims for tortious interference with business and

fraudulent condemnation of Tal, Inc.’s land. On September 30, 2003, the district

court dismissed the claims and the plaintiffs appealed. We exercise jurisdiction

1
The Developers include: Dan Randolph Hogan; TMK/Hogan Joint
Venture, a.k.a. Commercial Real Estate Services Joint Venture; Hogan Property
Management, LLC.; Bricktown-TMK/Hogan Parking, LLC, a.k.a. Bricktown-
SMC/Hogan, LLC; Bricktown-TMK/Hogan Entertainment, LLC, a.k.a. Bricktown
Entertainment, LLC; Mark D. Elgin; Stonegate Management Company, LLC;
Elgin Development Company, LLC; and TDC Company, LLC.

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under 28 U.S.C. § 1291 and AFFIRM.

B ACKGROUND

Under the Oklahoma Urban Redevelopment Law, 11 O KLA . S TAT . TIT . §§

38-101 to 123, cities in Oklahoma may create urban renewal authorities, which

can prepare urban renewal plans for specific urban renewal areas. 11 O KLA .

S TAT . TIT . §§ 38-101(11), 38-106(A). The powers of an urban renewal authority

are exercised by commissioners. 11 O KLA . S TAT . TIT . § 38-107(E). However,

under 11 O KLA . S TAT . TIT . § 38-107(F), urban renewal authorities “may employ

an executive director . . . and such other agents and employees, permanent and

temporary, as it may require. . . .” The urban renewal plans must meet the

requirements of the statute and be approved by the municipal governing body. 11

O KLA . S TAT . TIT . § 38-106. One statutory requirement is that the plan allow

private developers the opportunity to obtain redevelopment contracts. 11 O KLA .

S TAT . TIT . § 38-104.

Pursuant to the Oklahoma Urban Redevelopment Law, Oklahoma City

created the Renewal Authority, “a public body corporate.” 11 O KLA . S TAT . TIT . §

38-107(A). In 1976, the Renewal Authority proposed an Urban Renewal Plan

covering an area in Oklahoma City known as Bricktown. In 1993, the residents of

Oklahoma City approved a sales tax to be used to redevelop sections of the city

under the guidance of the Oklahoma City Metropolitan Area projects program

(MAPS). The Bricktown redevelopment plan was amended in 1997 as the MAPS

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Sports-Entertainment-Parking Support Redevelopment Plan. Tiana Douglas

served as the executive director of the Renewal Authority during the period at

issue.

On March 25, 1997, the City brought a condemnation action against Tal,

Inc. seeking to condemn two parcels of Tal, Inc.’s land, totaling 1.4 acres, that

fronted a canal running into Bricktown. The City’s intended use was public

parking, public recreation and parks. Tal, Inc. objected to the condemnation,

challenging the public necessity of the taking. The trial court overruled Tal,

Inc.’s objection and entered a condemnation order on August 28, 1997, which was

modified on October 2, 1997. The City then transferred the land to the Renewal

Authority “with the proviso that [the] City would receive the net proceeds from

the sale of the property by [the Renewal Authority] and that the price paid to the

Urban Renewal Authority for the property would be not less than the actual fair

market value of [the] property.” City of Okla. City v. Okla. City Urban Renewal

Auth., 988 P.2d 901, 905 (Okla. 1999) (Tal I) (internal quotations omitted).

Also in 1997, in an effort to encourage development of a new sports and

entertainment district by private developers, the city council approved the

Bricktown redevelopment plan. Tal I, 988 P.2d at 905. The Renewal Authority

requested proposals from developers interested in obtaining the redevelopment

contract for Bricktown. Tal, Inc. and Bricktown, Inc. applied for the contract but

“the City Council, after widely publicized hearings and based on an extremely

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close vote, ultimately awarded the [redevelopment contract] to . . . TMK/Hogan

rather than to Tal’s group. The final decision was made by the City Council only

after two years of public meetings, public notices, public hearings, and citizen

review.” 2 Id. The Renewal Authority then “received fair market value for the

[condemned] property” from the Developers in the amount of $3.3 million. Id.

Subsequently, Tal along with the organization Taxpayers Against Ripoffs

(TAR), filed a state qui tam action against the Renewal Authority alleging Tal,

Inc.’s land had been impermissibly taken for private use and the redevelopment

contract was awarded amid “bid-rigging.” They also demanded that the City file

a lawsuit to recover the property and declare the contract void. Tal I, 988 P.2d at

903-04. On January 26, 1999, the City filed a declaratory action against the

Renewal Authority to settle whether the condemnation and the transfer to the

Renewal Authority had been valid. Id. at 904. Tal and TAR sought to intervene

twice but were denied. See Tal I, 988 P.2d at 904-05; Okla. ex rel. Tal v. City of

Okla. City, 19 P.3d 268 (Okla. 2000), cert. denied, 534 U.S. 814 (2001) (Tal III). 3

2
Specifically, the Renewal Authority and TMK/Hogan entered into the
redevelopment contract on July 21, 1998. The city council also awarded a
parking redevelopment contract to Bricktown Parking Investors, LLC, on
December 19, 1997. Bricktown Parking Investors, LLC is not a party to the
present dispute.
3
Tal II was an attempt by Tal and TAR to challenge the operation of a
baseball stadium located in Bricktown. The district court dismissed and the
Oklahoma Supreme Court affirmed. See Okla. ex rel. Tal v. Norick, 991 P.2d
999, 1001 (Okla. 1999) (Tal II). Tal IV was an appeal of the award of attorney’s

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 On September 28 and November 2, 1999, almost two years after the entry

of the condemnation order, Tal, Inc. filed two motions to reconsider the

condemnation order based on newly discovered evidence. In both motions, Tal,

Inc. claimed the City had fraudulently deceived the court and delivered the land

to the Renewal Authority for sale to private developers, which it argued was a

non-public use. Tal, Inc. also argued the Renewal Authority had exceeded the

scope of its eminent domain power by condemning the land for use as parking, a

usage for which Tal, Inc. had already intended the land, and then by changing the

development of the land from parking to non-parking. The trial court denied both

motions. Tal, Inc. appealed to the Oklahoma Court of Civil Appeals which

construed the appeal as alleging that the City had obtained the condemnation

order by fraud. City of Oklahoma City v. Tal Techs., Inc., Case No. 94,045, at 5

n.3 (Okla. Civ. App. July 31, 2001). The Court of Civil Appeals affirmed,

holding Tal, Inc. had waived its fraud claim by failing to exercise due diligence in

discovering the fraud. It also concluded that the City had properly condemned

fees against Tal and TAR in Tal III. Although the Oklahoma Supreme Court
reversed the award of attorney’s fees, it did reiterate Tal III’s holding that Tal,
Inc. was precluded from asserting fraud was appropriate. See Okla. ex rel. Tal. v.
City of Okla. City, 61 P.3d 234, 247 (Okla. 2002) (Tal IV). The Oklahoma
Supreme Court recently dismissed as premature an appeal from summary
judgment in favor of the City and the Renewal Authority involving the validity of
the underlying transactions. See Okla. City Urban Renewal Auth. v. City of Okla.
City, 110 P.3d 550 (Okla. 2005) (Tal V). These enumerated Tal cases are separate
from the initial condemnation action and the corresponding direct appeals.

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Tal, Inc.’s land for a valid public purpose. Id. at 7. Tal, Inc.’s subsequent

petitions for certiorari to the Oklahoma Supreme Court and the United States

Supreme Court were denied. See Tal Techs., Inc. v. City of Okla. City, 535 U.S.

987 (2002).

On March 14, 2002, Tal, Bricktown, Inc. and Tal, Inc. filed a complaint

against the Developers and Douglas in the United States District Court for the

Western District of Oklahoma. They alleged the Developers and Douglas

conspired to fraudulently condemn Tal, Inc.’s land; plotted to monopolize under

the Sherman Act, 15 U.S.C. § 2; participated in “bid-rigging” in violation of

RICO, 18 U.S.C. § 1962, and engaged in tortious interference with business under

Oklahoma law. On April 1, 2002, Plaintiffs filed their First Amended Complaint.

Both the Complaint and the First Amended Complaint were signed by Tal,

appearing pro se for all three plaintiffs. On March 18, 2002, the district court,

acting sua sponte, ordered Bricktown, Inc. and Tal, Inc. to retain counsel within

thirty days. Tal filed a motion to reconsider, which was denied on July 2, 2002.

Thereafter, Tal, Inc. and Bricktown, Inc. secured counsel.

On May 31, 2002, the Developers and Douglas filed motions to dismiss the

First Amended Complaint. 4 The district court heard the motions on October 30,

2002, and entered a written order granting Defendants’ motions on October 31.

4
On June 4, 2002, the Renewal Authority and the City filed an amicus
curiae brief in support of the motions to dismiss.

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However, Bricktown, Inc. was granted leave to refile its RICO and Sherman Act

claims and Tal, Inc. was granted leave to refile its RICO claims. All of Tal’s

individual claims were dismissed.

On December 16, 2002, Tal, Inc. and Bricktown, Inc. filed a Second

Amended Complaint and a RICO Case Statement. Tal, Inc. realleged its

conspiracy to condemn by fraud claim against Douglas. 5 Tal, Inc. and Bricktown,

Inc. alleged RICO violations against the Developers under § 1962(b), against

Douglas under § 1962(c), and against the Developers and Douglas under §

1962(d). Bricktown, Inc. asserted conspiracy to monopolize under the Sherman

Act, 15 U.S.C. § 2, against the Developers and Douglas. The Second Amended

Complaint also included state law claims for tortious interference with business

against the Developers and conspiracy to condemn by fraud against Douglas. On

January 31, 2003, the Developers and Douglas filed motions to dismiss the

Second Amended Complaint under F ED . R. C IV . P. 12(b)(6).

On September 30, 2003, the district court granted the Developers and

Douglas’ motions to dismiss the Second Amended Complaint. This appeal

followed.

D ISCUSSION

5
The district court did not rule on the conspiracy to condemn by fraud
claim in its October 31, 2001 order because the claim had been voluntarily
withdrawn.

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 A motion to dismiss under F ED . R. C IV . P. 12(b)(6) “admits all well-

pleaded facts in the complaint as distinguished from conclusory allegations.”

Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). “The court’s function on a

Rule 12(b)(6) motion is not to weigh potential evidence that the parties might

present at trial, but to assess whether the plaintiff’s complaint alone is legally

sufficient to state a claim for which relief may be granted.” Sutton v. Utah State

Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation

omitted). The legal sufficiency of a complaint under Rule 12(b)(6) is a question

of law which this Court reviews de novo. Id.; see S. Disposal, Inc. v. Tex. Waste

Mgmt., 161 F.3d 1259, 1261-62 (10th Cir.1998). “In doing so, all facts alleged in

the complaint are taken as true and all reasonable inferences are indulged in favor

of the plaintiffs.” GF Gaming Corp. v. City of Black Hawk, Colo., 405 F.3d 876,

881 (10th Cir. 2005). “This court can affirm the district court’s dismissal on any

ground sufficiently supported by the record.” Id. at 882.

I. Tal’s Individual Claims

The district court dismissed Tal’s individual antitrust and RICO claims in

the First Amended Complaint for lack of standing. Tal challenges this ruling as

well as the district court’s order denying him the ability to represent Tal, Inc. and

Bricktown, Inc. pro se.

A. Standing to file antitrust and RICO claims

In order to have standing under Article III of the Constitution, a plaintiff

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must allege an “injury-in-fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). However, the standing requirements in the antitrust context are more

rigorous than that of the Constitution. Thus, “[h]arm to the antitrust plaintiff is

sufficient to satisfy the constitutional standing requirement of injury in fact, but

the court must make a further determination whether the plaintiff is a proper party

to bring a private antitrust action.” Assoc. Gen. Contractors of Calif., Inc. v.

Calif. State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983). This

additional determination stems from section 4 of the Clayton Act, 15 U.S.C. § 15,

which states “[a]ny person . . . injured in his business or property by reason of

anything forbidden in the antitrust laws may sue . . . and shall recover threefold

the damages . . . sustained, and . . . a reasonable attorney’s fee.” 6 Thus, antitrust

standing requires a private plaintiff to show “(1) an ‘antitrust injury’; and (2) a

direct causal connection between that injury and a defendant’s violation of the

antitrust laws.” Ashley Creek Phosphate Co. v. Chevron USA, Inc., 315 F.3d

1245, 1254 (10th Cir. 2003); see Sports Racing Services, Inc. v. Sports Car Club

of America, Inc., 131 F.3d 874, 882 (10th Cir. 1997); City of Chanute, Kan. v.

6
“The private antitrust action continues to be the principal mechanism by
which the antitrust laws are enforced. As many as 90% of antitrust cases are
brought by private plaintiffs.” H ERBERT H OVENKAMP , F EDERAL A NTITRUST
P OLICY : T HE L AW OF C OMPETITION AND I TS P RACTICE 593 (2d ed. 1999).

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Williams Natural Gas Co., 955 F.2d 641, 652 (10th Cir. 1992). 7 An antitrust

injury is defined as an “injury of the type the antitrust laws were intended to

prevent and that flows from that which makes defendants’ acts unlawful.”

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977).

Section 4 of the Clayton Act has been held to exclude personal injuries,

Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979), as well as derivative injuries

such as loss of stock value or employment opportunities. Sharp v. United

Airlines, Inc., 967 F.2d 404, 407-08 (10th Cir. 1992); Curtis v. Campbell-Taggart,

Inc., 687 F.2d 336, 338 (10th Cir. 1982). “It is settled law that shareholders and

employees do not have standing to sue for antitrust violations that injure a

corporation.” Jones v. Ford Motor Co., 599 F.2d 394, 397 (10th Cir. 1979). This

prohibition also includes corporate officers. Nat’l Indep. Theatre Exhibitors, Inc.

v. Buena Vista Distrib. Co., 748 F.2d 602, 608 (11th Cir. 1984) (“Neither an

officer nor an employee of a corporation has standing to bring an action in his

own right for an antitrust violation causing injury to the corporation and its

7
In Reazin v. Blue Cross and Blue Shield of Kansas, Inc., we pointed out
that there may be some interdependence between “antitrust injury” and “antitrust
standing.” 899 F.2d 951, 960-61 (10th Cir. 1990). In City of Chanute, we
clarified “[a]n antitrust injury is different from antitrust standing. Standing
cannot be established without an antitrust injury, but the existence of an antitrust
injury does not automatically confer standing.” 955 F.2d at 652 n.14 (internal
citation omitted and emphasis added). See also Bell v. Dow Chem. Co., 847 F.2d
1179, 1182 (5th Cir. 1988) (“Antitrust injury is a component of the standing
inquiry, not a separate qualification.”).

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business.”).

Similarly, RICO allows “[a]ny person injured in his business or property by

reason of a violation of section 1962 of this chapter [to] sue therefor in any

appropriate United States district court and . . . recover threefold the damages he

sustains and the cost of the suit, including a reasonable attorney's fee. . . .” 18

U.S.C. § 1964(c). “Congress modeled § 1964(c) on the civil-action provision of

the federal antitrust laws, § 4 of the Clayton Act. . . .” Holmes v. Secs. Investor

Protection Corp., 503 U.S. 258, 267 (1992). Thus, like the Sherman Act,

standing for private individuals under RICO requires a plaintiff to have “been

injured in his business or property by the conduct constituting the violation.”

Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479, 496 (1985). Similarly, corporate

presidents ordinarily do not have standing to assert an individual RICO claim for

conduct which harmed the corporation, because such injuries are derivative.

Manson v. Stacescu, 11 F.3d 1127, 1132-33 (2d Cir. 1993).

As the district court held, Tal does not have standing to assert his

individual RICO and antitrust claims because he has not shown that he suffered

an antitrust injury as a result of the Appellees’ actions. At best, Tal, Inc., as

owner of the condemned property, suffered from the alleged fraudulent

condemnation, and Bricktown, Inc., which submitted the redevelopment bid,

suffered from the alleged Sherman Act and RICO violations as they relate to the

award of development contracts. However, all of Tal’s claims derive from his

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role as the president of Tal, Inc. and Bricktown, Inc. These injuries are the

companies’ and the companies have the right to vindicate them. Tal cannot assert

personal injury based on the condemnation of property he did not own, nor may

he claim lost profits and business opportunities from the Appellees’ alleged “bid-

rigging.” Additionally, injury to his reputation, dignity and emotional damages

are not the type of injuries redressable by the antitrust laws or RICO which are

expressly limited to injuries to “business or property.” 15 U.S.C. § 15; 18 U.S.C.

§ 1964(c); see Reiter, 442 U.S. at 339; Manson, 11 F.3d at 1132.

B. Right to represent the corporations pro se

It has been our long-standing rule that a corporation must be represented by

an attorney to appear in federal court. 8 Consistent with that rule, Local Rule 17.1

8
See Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001) (“As
a general matter, a corporation or other business entity can only appear in court
through an attorney and not through a non-attorney corporate officer appearing
pro se.”); DeVilliers v. Atlas Corp., 360 F.2d 292, 294 (10th Cir. 1966) (“[A]
corporation can appear in a court of record only by an attorney at law.”); Flora
Constr. Co. v. Fireman’s Fund Ins. Co., 307 F.2d 413, 414 (10th Cir. 1962) (“The
rule is well established that a corporation can appear in a court of record only by
an attorney at law.”). See also Rowland v. California Men’s Colony, 506 U.S.
194, 201-02 (1993) (“It has been the law for the better part of two centuries . . .
that a corporation may appear in the federal courts only through licensed
counsel.”); Commercial & R.R. Bank of Vicksburg v. Slocomb, Richards & Co.,
39 U.S. (14 Pet.) 60, 65 (1840) (“[A] corporation cannot appear but by attorney. .
. .”) overruled in part by 43 U.S. (2 How.) 497 (1844); Osborn v. Bank of the
United States, 22 U.S. (9 Wheat.) 738, 830 (1824) (“A corporation, it is true, can
appear only by attorney, while a natural person may appear for himself.”). See
generally Strong Delivery Ministry Ass’n v. Bd. of Appeals of Cook County, 543
F.2d 32, 33-34 (7th Cir. 1976) (explaining the justification for the rule).

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of the United States District Court for the Western District of Oklahoma provides:

“[p]arties who are not natural persons may not appear pro se.” Thus, the district

court did not err in denying Tal the right to represent Tal, Inc. and Bricktown,

Inc. pro se and requiring the corporations to secure counsel.

Tal tries to avoid this result by arguing: (1) Oklahoma statutes give

directors the right to sue on behalf of the corporation; (2) allowing a shareholder

to be held liable for a company’s shortcomings but not allowing a shareholder to

appear pro se for the company creates a double standard; (3) small companies

may not be able to afford to hire an attorney; and (4) a company has a

constitutional right to allow its directors to represent it pro se.

Tal’s arguments are without merit. First, no Oklahoma statute confers on

directors the right to appear pro se, only the right to institute suits on behalf of a

corporation. See 18 O KLA . S TAT . TIT . § 1016(2). Moreover, such a right must be

exercised in conformity with court rules that require corporations to be

represented by counsel. See Massongill v. McDevitt, 828 P.2d 438, 439-40 (Okla.

Ct. App. 1989). Tal’s double standard argument ignores the benefits of corporate

status. Shareholders, including Tal, enjoy limited liability, unless the corporate

veil is pierced because the company is an instrumentality or alter ego of its

shareholders. See Key v. Liquid Energy Corp., 906 F.2d 500, 503-04 (10th Cir.

1990) (discussing piercing of corporate veil). Moreover, Tal’s argument ignores

his power as a director to institute a suit, through counsel, on behalf of Tal, Inc.

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and Bricktown, Inc. There is little reason to believe that a company director will

be hindered in advancing the interests of the company by requiring the company

to be represented by an attorney.

Finally, Tal seeks to stretch the Constitution beyond elastic limits by

arguing, “[i]f . . . a criminal defendant has the right to proceed Pro Se, the right

should [] apply with even greater force in a civil context. While criminal

defendants are entitled to representation by counsel at no charge, . . . no

comparable right exists for civil litigants.” (Tal’s Br. at 30.) Tal’s comparison

with a criminal defendant’s right to an attorney or to appear pro se fails for the

obvious reason that the Constitution only guarantees a right of representation to

criminal defendants. Tal may proceed pro se, but Tal, Inc. and Bricktown, Inc.

may not. Corporations bear the costs associated with filing suit until their claims

are vindicated.

II. Tal, Inc.’s Condemnation Claim and the Rooker-Feldman Doctrine

Tal, Inc. alleges Appellees violated RICO by engaging in a conspiracy to

condemn its property through fraud. The district court held this claim was barred

under the Rooker-Feldman doctrine as a prior state court case had addressed the

propriety of the condemnation. 9 Tal, Inc. tries to avoid this result by arguing: (1)

9
The Rooker-Feldman doctrine traces back to Justice Willis Van
Devanter’s seminal opinion in Rooker v. Fidelity Trust Coompany, 263 U.S. 413
(1923) and its elaboration in District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983).

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the City committed fraud on appeal to the Oklahoma Court of Civil Appeals and

this fraud creates new grounds for yet another appeal; (2) the Defendants in this

case were not the defendants in the prior case; (3) the state condemnation case is

still pending; (4) the Oklahoma courts ignored the difference in condemnation

powers possessed by municipalities and urban renewal authorities; and (5) the

condemned property was sold to the developers far below market value.

Pursuant to 28 U.S.C. § 1257(a), “federal review of state court judgments

can be obtained only in the United States Supreme Court.” Kiowa Indian Tribe of

Okla. v. Hoover, 150 F.3d 1163, 1169 (10th Cir. 1998). The Rooker-Feldman

doctrine precludes “cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1521-22 (2005).

Thus, the Rooker-Feldman doctrine prevents “a party losing in state court . . .

from seeking what in substance would be appellate review of [a] state judgment in

a United States district court, based on the losing party’s claim that the state

judgment itself violates the loser’s federal rights.” Johnson v. De Grandy, 512

U.S. 997, 1005-06 (1994).

The Rooker-Feldman doctrine “prohibits a lower federal court [both] from

considering claims actually decided by a state court, and claims inextricably

intertwined with a prior state-court judgment.” Kenmen Eng’g v. City of Union,

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314 F.3d 468, 473 (10th Cir. 2002) (internal citation and quotations omitted). 10 A

claim is inextricably intertwined if “the state-court judgment caused, actually and

proximately, the injury for which the federal-court plaintiff seeks redress.” Id. at

476. A federal case does not involve an “inextricably intertwined” state court

judgment if the complaint challenges the constitutionality of the state law, so long

as the state court did not address it and the plaintiff does not request the federal

court to upset the state court judgment. Id.

Here, the district court correctly concluded the Rooker-Feldman doctrine

precluded Tal, Inc.’s condemnation claim in federal court. Oklahoma courts

squarely considered and rejected Tal, Inc.’s claims that the initial condemnation

order had been obtained through fraud on the part of the City, City of Okla. City

v. Tal Techs., Inc., and that the property was undervalued. Tal I, 988 P.2d at 905

(“The property was appraised on three separate occasions by professional

appraisers before it was sold. The trial court found and the record supports that

the Urban Renewal Authority received fair market value for the property.”).

All of Tal, Inc.’s attempts to avoid this result are unavailing. It is true that

10
The Supreme Court has recently begun narrowing the scope of the
Rooker-Feldman doctrine. See Exxon Mobil Corp., 544 U.S. at 292 (holding
Rooker-Feldman inapplicable to parallel state and federal litigation); and Lance v.
Dennis, 126 S.Ct. 1198, 1202 (2006) (“The Rooker-Feldman doctrine does not bar
actions by nonparties to the earlier state-court judgment simply because, for
purposes of preclusion law, they could be considered in privity with a party to the
judgment.”) overruling in part, Kenmen Eng’g, 314 F.3d at 481. However, none
of these limitations are applicable to this case.

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new allegations of fraud might create grounds for appeal, but that appeal should

be brought in the state courts. See Rooker v. Fidelity Trust Co., 263 U.S. 413,

415 (1923). 11 Additionally, Tal, Inc. does not specifically raise new allegations of

fraud but only contends the City itself continues to make false claims: “[i]n its

9/20/00 response to [Tal, Inc.’s] Appeal, the City filed an Answer Brief which

contained numerous other false and/or inaccurate factual representations,

including, continuation of its false initial assertion that [Tal, Inc.’s] property was

condemned for ‘public use.’” (Corporate Br. at 7 (emphasis added).) Thus, the

Oklahoma Civil Court of Appeals was confronted with and reviewed the same

“fraud” as the trial court. Its holding is equally applicable to the “fraud” alleged

at the trial court level (or “before the trial court”) as it was to the “fraud”

allegedly perpetrated before its very eyes. Moreover, and not withstanding Tal,

Inc.’s disagreement, the Oklahoma courts’ determination that “public use”

11
In Rooker, the Court specifically stated that errors in state cases should
be reviewed and settled through the state appellate process.

If the constitutional questions stated in the bill actually arose in the
cause, it was the province and duty of the state courts to decide them;
and their decision, whether right or wrong, was an exercise of
jurisdiction. If the decision was wrong, that did not make the
judgment void, but merely left it open to reversal or modification in
an appropriate and timely appellate proceeding. Unless and until so
reversed or modified, it would be an effective and conclusive
adjudication.

Id.

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includes economic development does not constitute fraud. See Kelo v. City of

New London, 125 S. Ct. 2655, 2665-66 (2005) (holding “public purpose” allows

economic development by private parties if the development may lead to new jobs

or increased tax revenue).

Tal’s addition of new defendants in federal court also does not change the

nature of the underlying state court ruling which upheld the validity of the

condemnation. Lavasek v. White, 339 F.2d 861, 863 (10th Cir. 1965). 12 The state

condemnation proceeding need not be final in order to serve as grounds for

Rooker-Feldman preclusion. Kenmen Eng’g, 314 F.3d at 474.

Finally, Tal’s challenge to the Renewal Authority’s power of condemnation

is irrelevant to the present case because the City, not the Renewal Authority,

condemned the land. Even if the Oklahoma courts had ignored the allegedly

critical differences between the condemnation powers of municipalities and urban

renewal authorities, it would not eliminate Rooker-Feldman preclusion. The

12
In Lavasek, we confronted a challenge to the condemnation of land by the
State of New Mexico. There we held:

The substance of the instant action is not changed by naming as
defendants the present public officials and a county. The acts
complained of are the outgrowth of a condemnation, judicially
sanctioned, and remain the acts of the State of New Mexico through a
complete privity of parties. Nor does appellants’ claim of a denial of
constitutional rights alter the situation.

Id.

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doctrine would mean nothing if it applied only when federal courts agreed with

the state court holding. Tal, Inc. argued its case in the Oklahoma state courts and

even raised grounds for post-judgment relief. Its failure in state court does not

mean it can now seek to relitigate these issues in federal court. Just the opposite,

a loss in state court precludes a second round in federal court.

III. Tal, Inc. and Bricktown, Inc.’s Sherman Act claims

Tal, Inc. and Bricktown, Inc. alleged the Developers and Douglas conspired

to monopolize in violation of the Sherman Act. Specifically, Tal, Inc. and

Bricktown, Inc. claimed Appellees engaged in “bid-rigging” which led to the

award of the Bricktown redevelopment contract to the Developers. The district

court dismissed Tal, Inc.’s claim for lack of standing and held Defendants were

immune from liability for Bricktown, Inc.’s claim under Parker v. Brown, 317

U.S. 341 (1943), and the Noerr-Pennington doctrine. 13

A. Tal, Inc.’s antitrust standing

Like Tal, Tal, Inc. must allege, inter alia, a cognizable antitrust injury to

establish standing. Ashley Creek, 315 F.3d at 1254 . To establish an antitrust

injury, a plaintiff “must allege a business or property injury, an antitrust injury, as

defined by the Sherman Act.” City of Chanute, 955 F.2d at 652. The primary

13
The Noerr-Pennington doctrine is drawn from the Supreme Court’s
opinions in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.,
365 U.S. 127 (1961) and United Mine Workers of American v. Pennington, 381
U.S. 657 (1965).

-21-
concern of the antitrust laws is the corruption of the competitive process, not the

success or failure of a particular firm. Brunswick Corp., 429 U.S. at 488 (“The

antitrust laws . . . were enacted for the protection of competition not

competitors.”) (internal quotation omitted). Thus, when a company fails because

of legitimate competitive forces, it is not entitled to recover under the antitrust

laws. Additionally, “only buyers and sellers in the defendants’ market are within

the target of the antitrust laws.” Comet Mech. Contractors, Inc. v. E.A. Cowen

Constr., Inc., 609 F.2d 404, 406 (10th Cir. 1980); see Reibert v. Atlantic Richfield

Co., 471 F.2d 727, 731 (10th Cir. 1973). This excludes secondary or remote

injuries, such as those suffered by companies that desire to obtain a subcontract

from a company injured by an antitrust violation. Comet, 609 F.2d at 406-07.

Tal, Inc. lacks standing because it did not suffer a cognizable antitrust

injury. Tal, Inc. was not a buyer or seller in the affected market. Rather, Tal,

Inc.’s allegation of an antitrust violation centers around the alleged “bid-rigging”

between the Developers and Douglas which resulted in Bricktown, Inc.’s failure

to receive the Bricktown redevelopment contract. Tal, Inc. claims it would have

benefitted had Bricktown, Inc. received the redevelopment contract because Tal,

Inc. would have received redevelopment subcontracts from Bricktown, Inc. and it

owned land adjacent to Bricktown, Inc.’s proposed development area of

Bricktown which would have increased in value had Bricktown, Inc.’s bid been

accepted. This alleged injury, however, is insufficient to support Tal, Inc.’s

-22-
antitrust claim. The fact Tal, Inc. could potentially benefit as a result of a

derivative future business relationship with Bricktown, Inc. or through incidental

and speculative increases in property value is insufficient to constitute an antitrust

injury. Comet, 609 F.2d at 406-07. Accordingly, Tal, Inc. lacks standing to bring

its antitrust claim.

B. The dismissal of Bricktown, Inc.’s Sherman Act claim against the
Developers and Douglas

Bricktown, Inc. alleges both the Developers and Douglas engaged in a

conspiracy to rig bids in violation of the antitrust laws in order to ensure the

Developers were awarded the Bricktown redevelopment contract. The district

court determined the Developers and Douglas were immune under the Parker and

Noerr-Pennington immunity doctrines. It also questioned whether Bricktown,

Inc. had adequately stated an antitrust claim.

1. Parker and Noerr-Pennington immunity doctrines

Bricktown, Inc. argues the Parker and Noerr-Pennington immunity

doctrines are unavailable to Appellees because the Developers are private persons

and Douglas was acting outside of her official duties. Additionally, it argues

these immunity doctrines “do not apply when conspiracy to rig public bids are at

issue.” (Corporate Br. at 31.)

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 a. Parker immunity

Generally, a state’s anticompetitive actions are immune from civil antitrust

laws. Parker v. Brown, 317 U.S. 341, 350-52 (1943). This federalism-based state

immunity can, under certain circumstances, apply to municipalities. Cmty.

Commc’ns Co. v. City of Boulder, Colo., 455 U.S. 40, 51 (1982). To be protected,

a municipality must be “authorized by the State pursuant to state policy to

displace competition with regulation or monopoly public service.” Town of

Hallie v. City of Eau Claire, 471 U.S. 34, 39 (1985) (internal quotation omitted).

This requires that the state legislature authorize the challenged action and intend

to displace competition with regulation. Jacobs, Visconsi & Jacobs, Co. v. City

of Lawrence, Kan., 927 F.2d 1111, 1120 (10th Cir. 1991).

In this case, the State of Oklahoma authorized the creation of urban renewal

authorities. 11 O KLA . S TAT . TIT . §§ 38-101 to -123. The district court held that the

authorizing statutes “clearly contemplate anticompetitive activity.” (Appellants’

App., Ex. 3 at 23.) In support, the district court cited 11 O KLA . S TAT . TIT . § 38-

108(a) which gives an urban renewal authority the power “[t]o undertake and carry

out the urban renewal projects within its area of operation . . . and to make and

execute contracts . . . necessary or convenient to the exercise of its powers under

this article.”

We agree with the district court’s analysis. In an analogous case, Buckley

Construction, Inc. v. Shawnee Civic & Cultural Development Authority, we upheld

-24-
state immunity for a development authority that coordinated bidding under the

Oklahoma Public Competitive Bidding Act of 1974, 61 O KLA . S TAT . TIT . §§ 101-

136 (1981). 933 F.2d 853, 856 (10th Cir. 1991). We held the Competitive Bidding

Act “clearly contemplates anticompetitive activity,” in part because the statute

“gives the public agency discretion to reject any or all bids if it determines that is in

the best interest of the State of Oklahoma.” Id. Like the Oklahoma Competitive

Bidding Act at issue in Buckley Construction, the statute at issue in this case gives

urban renewal authorities the discretion to make contracts “necessary or convenient

to the exercise of its powers.” This language has a foreseeable anticompetitive

effect no less than the Competitive Bidding Act which was found to confer

immunity in Buckley Construction. Thus, the Renewal Authority was not required

to select the lowest bidder for the redevelopment contract if it was not “convenient

to the exercise of its powers.” Consequently, Douglas, as the executive director of

the Renewal Authority, is entitled to Parker immunity, regardless of anticompetitive

results or intent, assuming her actions were in furtherance of her Renewal Authority

responsibilities.

Bricktown, Inc. alleges Douglas was acting outside of her official

responsibilities by engaging in “bid-rigging.” However, no facts support Bricktown,

Inc.’s claim, and there is no evidence Douglas had a personal interest in the contract

being awarded to the Developers. Moreover, the city council approved her actions

by adopting resolutions in support of the Developers’ proposal. Bricktown, Inc.’s

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naked allegations of a “bid-rigging” conspiracy do not render Douglas’ actions

outside of her official duties and thus do not deprive her of immunity.

b. Noerr-Pennington immunity

A corollary of Parker immunity is the Noerr-Pennington doctrine, which

“exempts from antitrust liability any legitimate use of the political process by

private individuals, even if their intent is to eliminate competition.” Zimomra v.

Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1503 (10th Cir. 1997); see also City of

Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379-80 (1991). The doctrine

is grounded in the First Amendment and “arises from the [Supreme] Court’s

conclusion that the Sherman Act was not intended to derogate the First Amendment

right of citizens to petition the government for a redress of grievances.” GF

Gaming Corp., 405 F.3d at 883. The actual intent of the parties petitioning the

government or of the government agent involved is irrelevant. City of Columbia,

499 U.S. at 380; Zimomra, 111 F.3d at 1503.

Of course, this immunity does not encompass fraudulent or illegal actions.

Oberndorf v. City & County of Denver, 900 F.2d 1434, 1440 (10th Cir. 1990). But,

to establish fraud or illegality, there must be more than a mere allegation of a

“conspiracy.” City of Columbia, 499 U.S. at 383. “[C]ultivating close ties with

government officials is the essence of lobbying.” Boone v. Redevelopment Agency

of the City of San Jose, 841 F.2d 886, 894 (9th Cir. 1988). “It would be unlikely

that any effort to influence legislative action could succeed unless one or more

-26-
members of the legislative body became . . . co-conspirators in some sense with the

private party urging such action.” City of Columbia, 499 U.S. at 383. Therefore,

“[f]or purposes of Noerr-Pennington, there is no distinction between petitioning

government officials and conspiring with them.” GF Gaming Corp., 405 F.3d at

883.

Bricktown, Inc. argues the Developers are not entitled to Noerr-Pennington

immunity because they are private entities and because Noerr-Pennington immunity

does not apply when a “conspiracy to rig public bids [is] at issue.” (Corporate Br.

at 31.) However, Bricktown, Inc. is clearly wrong that the Noerr-Pennington

doctrine does not apply to private entities; that is precisely for whom the immunity

was created. Zimomra, 111 F.3d at 1503. Nor does the fact the alleged antitrust

violation is a “bid-rigging” claim automatically remove it from Noerr-Pennington

immunity. 14 The Developers, even though potentially acting with anticompetitive

intent, are covered under the Noerr-Pennington doctrine unless there is some

colorable claim of fraud or illegality. In this case, there is only an allegation the

Developers participated in an abstract “bid-rigging conspiracy.” Bricktown, Inc.

does not proffer any facts that, if credited, would support the charge of conspiracy

14
Perhaps Bricktown, Inc. believes immunity is unavailable because “bid-
rigging” has been held a per se violation of Section 1 of the Sherman Act. United
States v. Flom, 558 F.2d 1179, 1183 (5th Cir. 1977); United States v. Finis P.
Ernest, Inc., 509 F.2d 1256, 1261 (7th Cir. 1975). But a per se violation only
means that if the Developers are found to be guilty of the complained conduct,
they can offer no business justification, not that they cannot assert immunity.

-27-
or indicate any fraudulent behavior on the part of the Developers or Douglas.

Bricktown, Inc.’s only specific factual allegations are that the Developers “made

two out of the five Urban Renewal’s Commissioner[s] partners in a number of

business ventures; managed an office building of a third Commissioner below

market value; and similarly, [were] the landlord[s] of Urban Renewal and leased it

office space in one [of] the Hogan Team’s downtown buildings below market

value.” (Corporate Br. at 37.)

According to the Developers, Bricktown, Inc. is merely complaining that they

“vigorously petitioned [the Renewal Authority] to consider [their] proposal for the

development of South Bricktown, lobbied the city council in promotion of [their]

development proposal, lobbied the city council to adopt the resolutions that would

be necessary to implement that proposal, and made legal campaign contributions.”

(Developers’ Br. at 31.) We agree and reject Bricktown, Inc.’s challenge to the

district court’s application of Noerr-Pennington immunity.

2. Failure to adequately plead an antitrust violation

Even if the Developers and Douglas were not immune under Parker and

Noerr-Pennington, Bricktown, Inc. failed to allege sufficient facts to support its

antitrust claim. Bricktown, Inc. alleges it adequately plead an antitrust violation

because it “clearly alleged that the Defendants engaged in a conspiracy scheme of

bid-rigging (pre-determined before publication of bid), and that the submission of

TMK/Hogan’s RFP Proposal was collusive, fabricated, and non-competitive.”

-28-
(Corporate Br. at 31.)

“A complaint is subject to dismissal where it does little more than recite the

relevant antitrust laws.” TV Commc’ns Network, Inc. v. Turner Network Television,

Inc., 964 F.2d 1022, 1027 (10th Cir. 1992) (internal quotation omitted). Conclusory

allegations are insufficient. Id. at 1024. Bare bones accusations of a conspiracy

without any supporting facts are insufficient to state an antitrust claim. Mountain

View Pharmacy v. Abbott Labs., 630 F.2d 1383, 1388 (10th Cir. 1980). Moreover,

“[t]he use of antitrust ‘buzz words’ does not supply the factual circumstances

necessary to support . . . conclusory allegations.” TV Commc’ns, 964 F.2d at 1026.

Bid-rigging has been found to violate Section 1 of the Sherman Act when two

or more competitors coordinate their bids to a third party. United States v. Mobile

Materials, Inc., 881 F.2d 866, 869 (10th Cir. 1989). However, Bricktown, Inc.’s

bid-rigging antitrust claim suffers from the lack of factual support. 15 Its bald

allegations of “conspiracy” and “bid-rigging” are insufficient to support an antitrust

claim and are no better than claiming that the defendants violated “the antitrust

laws” in the abstract. Indeed, Douglas had no economic interest in the Developers

receiving the bid as she was not a competitor or owner, nor was there any evidence

of bribery. At best, the conduct complained of includes the Developers’ zealous

15
An additional problem with Bricktown, Inc.’s claim is that the alleged
bid-rigging involved Douglas who was a third party, and not a competitor. A
traditional bid-rigging claim involves collusion among competitors against the
third party who requested the bid. See Mobile Materials, 881 F.2d at 869.

-29-
lobbying of the city council to approve their proposed renovation plan. This

conduct does not constitute collusion among competitors to fix a bid price, nor is

there anything illegal about lobbying. Absent specific factual allegations that

support a claim of bid-rigging, Bricktown, Inc.’s use of antitrust buzz-words and

parroting of general antitrust theories is insufficient to support a Sherman Act

violation.

IV. Tal, Inc. and Bricktown, Inc.’s Rico Claims

As stated previously, Tal, Inc. and Bricktown, Inc. brought RICO claims

against the Developers under 18 U.S.C. § 1962(b), against Douglas under 18 U.S.C.

§ 1962(c) and against the Developers and Douglas under 18 U.S.C. § 1962(d). The

elements of a civil RICO claim are (1) investment in, control of, or conduct of (2)

an enterprise (3) through a pattern (4) of racketeering activity. 18 U.S.C. § 1962(a),

(b), & (c). 16 “Racketeering activity” is defined in 18 U.S.C. § 1961(1)(B) as any

“act which is indictable” under federal law and specifically includes mail fraud,

wire fraud and racketeering. These underlying acts are “referred to as predicate

acts, because they form the basis for liability under RICO.” BancOklahoma

Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1102 (10th Cir. 1999) (internal

16
Under 18 U.S.C. § 1964(c), persons injured in their business or property
by reason of a violation of § 1962 may bring a RICO claim and recover treble.
damages, costs and attorney’s fees.

-30-
quotation omitted). “[A] person does not have to be formally convicted of any

predicate act before liability under 18 U.S.C. § 1962[] may attach.” 17 Id.

In the Second Amended Complaint and RICO Case Statement, 18 Bricktown,

Inc. and Tal, Inc. alleged the Developers and Douglas engaged in predicate acts of

mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. §

1343 and bribery in violation of 18 U.S.C. § 201. 19 Specifically, Bricktown, Inc.

17
The Developers urge this Court to require an indictability standard in the
pleadings. The district court of Utah has required a plaintiff to show “that a party
has committed at least two indictable acts.” Bache Halsey Stuart Shields, Inc., v.
Tracy Collins Bank & Trust Co., 558 F.Supp. 1042, 1045 (D. Utah 1983) (internal
quotation omitted). Thus, “a party must allege two acts of ‘racketeering’ with
enough specificity to show there is probable cause the crimes were committed.
An offense is not ‘indictable’ merely because it is alleged. Rather, to be
indictable it must be ‘well-founded’ and based on probable cause.” Id. This
pleading standard, however, has never been adopted by this Court and has been
expressly rejected by the seventh circuit. Haroco, Inc. v. Am. Nat’l. Bank & Trust
Co. of Chicago, 747 F.2d 384, 403-04 (7th Cir. 1984). Although such a standard
would make this case easier to dispose of, a heightened pleading requirement is
not necessary to affirm the district court’s ruling, and we decline to consider it
here.
18
When evaluating the sufficiency of pleadings under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, we may consider the allegations made in a
plaintiff’s RICO Case Statement in conjunction with the complaint. See Fox v.
Maulding, 112 F.3d 453, 460 (10th Cir. 1997).
19
Bricktown, Inc. and Tal, Inc. also argue the City’s allegedly fraudulent
condemnation of Tal, Inc.’s land constitutes a predicate act for purposes of RICO,
relying on Pelfresne v. Stephens, 35 F.Supp.2d 1064 (N.D. Ill. 1999). However in
this case, unlike in Pelfresne, we are confronted with a state court determination
that the condemnation of Tal, Inc.’s land was proper and are barred by the
Rooker-Feldman doctrine from reconsidering this determination on its merits. We
cannot consider the condemnation as a possible predicate act without calling into
question the validity of the state court judgment. Thus, Tal, Inc.’s allegation that
the condemnation was fraudulent and constituted a predicate act for RICO

-31-
and Tal, Inc. allege the Developers fraudulently procured the Bricktown

redevelopment contract by misrepresenting to the Renewal Authority and the city

council that they were backed by Torchmark Corporation. They also allege the

Developers “acquired or maintained . . . interest in or control over” the Renewal

Authority and the city council through bribery. (Appellants’ App., Ex. 1 at 58.)

The district court dismissed the subsection (b) claim against the Developers for

failure to specifically allege predicate acts and failure to show an interest in or

control over the Renewal Authority or the city council. It dismissed the subsection

(c) claim against Douglas for failure to specifically allege predicate acts and failure

to show a continuing threat to other parties from the alleged RICO activities. The

district court also dismissed the subsection (d) claim against the Developers and

Douglas for failing to sufficiently allege a predicate violation of subsections (b) or

(c). Because subsections (b) and (c) both require allegations of racketeering

activity, we first determine whether Bricktown, Inc. and Tal, Inc. sufficiently

purposes is inextricably intertwined with the state court judgment and precluded
by Rooker-Feldman. See Kenmen Eng’g, 314 F.3d at 473 (precluding claims
inextricably intertwined with state court case); Fox, 112 F.3d at 460 (excluding
RICO claim barred by failure to raise issue in state court). As to Bricktown,
Inc.’s use of the condemnation claim as a predicate act, it also fails because the
City, which was responsible for the condemnation, is not a named defendant but
is the alleged “enterprise.” The defendant must be separate from the enterprise.
See Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161-63 (2001);
Brannon v. Boatmen’s First Nat’l Bank of Okla., 153 F.3d 1144, 1146 (10th Cir.
1998); Bd. of County Comm’rs of San Juan County v. Liberty Group, 965 F.2d
879, 885 (10th Cir. 1992). This is true even if we credited Plaintiffs’ statement
that the Renewal Authority was also involved in the fraudulent condemnation.

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alleged predicate acts that can serve as a basis for RICO liability.

A. Pattern of racketeering activity

Plaintiffs allege Defendants engaged in predicate acts of mail fraud, wire

fraud and bribery. To establish the predicate act of mail fraud, Bricktown, Inc. and

Tal, Inc. must allege “(1) the existence of a scheme or artifice to defraud or obtain

money or property by false pretenses, representations or promises, and (2) use of the

United States mails for the purpose of executing the scheme.” Bacchus Indus., Inc.

v. Arvin Indus., Inc., 939 F.2d 887, 892 (10th Cir. 1991). See United States v.

Kennedy, 64 F.3d 1465, 1475 (10th Cir. 1995). “The elements of wire fraud are

very similar, but require that the defendant use interstate wire, radio or television

communications in furtherance of the scheme to defraud.” BancOklahoma

Mortgage Corp., 194 F.3d at 1102 (internal quotation omitted).

[T]he common thread among . . . these crimes is the concept of “fraud.”
Actionable fraud consists of (1) a representation; (2) that is false; (3)
that is material; (4) the speaker’s knowledge of its falsity or ignorance
of its truth; (5) the speaker’s intent it be acted on; (6) the hearer’s
ignorance of the falsity of the representation; (7) the hearer’s reliance;
(8) the hearer’s right to rely on it; and (9) injury.

Id. at 1103. Failure to adequately allege any one of the nine elements is fatal to the

fraud claim.

The particularity requirement of Rule 9(b), Federal Rules of Civil Procedure,

-33-
applies to claims of mail and wire fraud. 20 Robbins v. Wilkie, 300 F.3d 1208, 1211

(10th Cir. 2002); Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 989-90

(10th Cir. 1992); Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d

1357, 1362 (10th Cir. 1989). Thus, “a complaint alleging fraud [must] ‘set forth the

time, place and contents of the false representation, the identity of the party making

the false statements and the consequences thereof.’” Koch v. Koch Indus., 203 F.3d

1202, 1236 (10th Cir. 2000) (quoting Lawrence Nat'l Bank v. Edmonds (In re

Edmonds), 924 F.2d 176, 180 (10th Cir. 1991)). A plaintiff asserting “fraud must

also identify the purpose of the mailing within the defendant's fraudulent scheme.”

McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992).

The federal anti-bribery statute, 18 U.S.C. § 201(b), requires the bribes to be

directed toward “public official[s]” or “person[s] . . . selected to be a public

official” within the meaning of 18 U.S.C. § 201(a). 21 Section 201(a) generally

limits application of the federal bribery statute to federal officials or persons “acting

for or on behalf of the United States, or any department, agency or branch of

Government thereof . . . .” 18 U.S.C. § 201(a)(1).

20
“In all averments of fraud or mistake, the circumstances constituting fraud
or mistake shall be stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.” F ED . R. C IV . P. 9(b).
21
18 U.S.C. § 201(a)(2) provides that “the term ‘person who has been
selected to be a public official’ means any person who has been nominated or
appointed to be a public official, or has been officially informed that such person
will be so nominated or appointed. . . .”

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 To determine whether any particular individual falls within this
category, the proper inquiry is not simply whether the person had
signed a contract with the United States or agreed to serve as the
Government's agent, but rather whether the person occupies a position
of public trust with official federal responsibilities. Persons who hold
such positions are public officials within the meaning of section 201
and liable for prosecution under the federal bribery statute.

Dixson v. United States, 465 U.S. 482, 496 (1984). The federal anti-bribery law

also applies to bribes offered to state and local officials if the “organization,

government, or agency receives in any one year period, benefits in excess of

$10,000 under a Federal program involving a grant, contract, subsidy, loan,

guarantee, insurance, or other form of Federal assistance.” 18 U.S.C. § 666(b).

Bricktown, Inc. and Tal, Inc. set forth their allegations of predicate acts in

Section X of their Second Amended Complaint. In support of their mail fraud

allegation, Bricktown, Inc. and Tal, Inc. listed forty-six letters with descriptions of

the parties, dates and general statements concerning the title or contents of the

letters. Tal, Inc. and Bricktown, Inc.’s allegations of mail fraud center around the

alleged “Torchmark misrepresentation.”

The “Torchmark misrepresentation” consists of TMK/Hogan’s alleged

intentional misrepresentation to the Renewal Authority and the city council during

the bidding process that it “was backed by the $11 billion Torchmark Corporation,”

(Appellants’ App., Ex. 2 at 2), which Tal, Inc. and Bricktown, Inc. allege “was a

major factor in [its] selection as [a] developer for the project, and in Plaintiffs’

failure to be selected as [the] developer . . . .” (Id., Ex. 1 at 29.) Tal, Inc. and

-35-
Bricktown, Inc. alleged that Stonegate, not Torchmark was “the true 50% partner

[with] Defendant Hogan Property in Defendant TMK/Hogan.” (Id., Ex. 2 at 3.) In

other words, “Defendants’ Torchmark Misrepresentation stated that Defendant

TMK/Hogan is a 50/50 joint venture between Defendant Hogan Property and

Torchmark Development Corporation, and not between Defendant Hogan Property

and Defendant Stonegate, as the official Oklahoma Secretary of State’s record

shows.” 22 (Id. at 5.)

In support of their “Torchmark misrepresentation” claim, Tal, Inc. and

Bricktown, Inc. alleged Hogan sent a letter to the Renewal Authority on July 26,

1996, detailing TMK/Hogan’s qualifications and financial responsibility which

included a statement that “Defendant TMK/Hogan’s 50% partner was Defendant

TDC, identified by Defendants therein as ‘a wholly owned subsidiary’ of

Torchmark.” (Id., Ex. 1 at 14-15.) Tal, Inc. and Bricktown, Inc. also alleged Hogan

and Elgin mailed various financial documents detailing information about

Torchmark on several occasions. 23 This material itself is not alleged to have been

false, but rather was used in support of the initial misrepresentation.

In the district court, the Developers argued Stonegate was a wholly owned

subsidiary of Torchmark. In support, they cited to the public records of the

22
Stonegate refers to Stonegate Management Company, LLC.
23
These primarily included Torchmark’s 1995 through 1998 10-K Annual
Report and Financial Statements. (Id. at 47-48.)

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Alabama Secretary of State which allegedly show that Torchmark formed TDC on

June 10, 1988, and was subsequently merged into TDC Company, LLC, on

November 24, 1999. Further, they argued that Oklahoma County Clerk records

indicated that TDC and Hogan Property Management filed a Fictitious Name

Certificate on January 12, 1996, which stated that those entities “associated

themselves as partners under the name of TMK/ Hogan Joint Venture.” 24

(Appellees’ Supp. App. Vol IV at 0966 (internal quotation omitted).) The

Developers also alleged that TDC assigned its interest in TMK/Hogan in November

1996 to its wholly-owned subsidiary Stonegate Management Corporation which was

then merged into Stonegate Management Company, LLC.

The Second Amended Complaint acknowledged that Stonegate Management

24
Exhibits attached to a complaint are properly treated as part of the
pleadings for purposes of ruling on a motion to dismiss. Indus. Constructors
Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir.
1994). Ordinarily, consideration of material attached to a defendant’s answer or
motion to dismiss requires the court to convert the motion into one for summary
judgment and afford the parties notice and an opportunity to present relevant
evidence. F ED . R. C IV . P. 12(b); David v. City & County of Denver, 101 F.3d
1344, 1352 (10th Cir. 1996). However, facts subject to judicial notice may be
considered in a Rule 12(b)(6) motion without converting the motion to dismiss
into a motion for summary judgment. See Grynberg v. Koch Gateway Pipeline
Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004) (citing 27A Fed. Proc., L.Ed. §
62:520 (2003)). This allows the court to “take judicial notice of its own files and
records, as well as facts which are a matter of public record.” Van Woudenberg
ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other
grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). However,
“[t]he documents may only be considered to show their contents, not to prove the
truth of matters asserted therein.” Oxford Asset Mgmt., Ltd v. Jaharis, 297 F.3d
1182, 1188 (11th Cir. 2002).

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Company was formed on November 22, 1999, and Stonegate Management

Corporation was merged into it on November 24, 1999. It also alleged TDC

Company, LLC, was created on November 22, 1999, and merged with Torchmark

Development Corporation on November 24, 1999. But the complaint specifically

alleged there was no affiliation between Stonegate and Torchmark Development. 25

According to Tal, Inc. and Bricktown, Inc., the purpose of the separate creation and

mergers of Torchmark Development Corporation, Torchmark Development

Company, Stonegate Management Corporation and Stonegate Management

Company was to “retroactively cover up and conceal [the] Torchmark

Misrepresentation . . . by representing that Defendant Elgin Development is the

owner of Defendant TDC and that TDC wholly owns Defendant Stonegate.”

(Appellants’ App., Ex. 2 at 3.)

The district court’s order did not specifically address the “Torchmark

misrepresentation.” Rather, it found that none of the alleged mail communications

sufficiently pled fraud with particularity. We disagree. The details of the

“Torchmark misrepresentation” alleged in the Second Amended Complaint coupled

with the documents listed in support of that claim sufficiently satisfy Rule 9(b)’s

requirements. Tal, Inc. and Bricktown, Inc. identified the parties, the dates, the

25
According to the Second Amended Complaint, “TMK/Hogan’s two
partners, as of 1996, were Defendants Hogan Property and Stonegate, and not . . .
any entity affiliated with Torchmark.” (Id. at 15.)

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content of the communications, how they were allegedly fraudulent and how they

furthered the fraudulent enterprise. Although the Developers’ argument that

Stonegate is a wholly owned subsidiary of Torchmark may be fully borne out by the

public records of Alabama and Oklahoma, we decline to consider these materials. 26

Rule 12(b)(6) motions to dismiss are not designed to weigh evidence or consider the

truth or falsity of an adequately pled complaint. Sutton, 173 F.3d at 1236. This is

especially controlling in the face of a direct claim to the contrary in the complaint

and in the absence of a ruling on the issue from the district court. Thus, Tal, Inc.

and Bricktown, Inc. sufficiently alleged an act of mail fraud based on the alleged

“Torchmark misrepresentation.”

In addition, we agree with the district court that the May 18, 1998 letter

authored by Mr. Tolbert, which was allegedly caused to be mailed by the

Developers, satisfies the requirements of Rule 9(b). This letter allegedly supported

TMK-Hogan’s earlier fraudulent statement on July 17, 1997— that the Bricktown

Association was a partner with TMK/Hogan. (Appellants’ App., Ex. 1 at 36-37.)

26
Even assuming that Stonegate is a wholly owned subsidiary of
Torchmark, that fact does not necessarily foreclose a claim of misrepresentation.
Tal, Inc. and Bricktown, Inc. might still have a claim if the bid submitted to the
Renewal Authority by the Developers claimed Torchmark was a partner in
TMK/Hogan, when in fact Stonegate, a wholly owned subsidiary of Torchmark,
was Hogan’s partner at the time of the bid. Whether the listing of a parent of a
wholly owned subsidiary as a partner in a development company, rather than the
actual subsidiary partner, in a bid constitutes misrepresentation is an issue we
decline to address.

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Like the “Torchmark misrepresentation,” this allegedly false statement was designed

to increase the appeal of TMK/Hogan as a developer and help it secure the award of

the development contract.

As to the remaining letters, we again agree with the district court that they

“appear to be innocuous business communications.” (Appellants’ App., Ex. 3 at

13.) While the Second Amended Complaint references these letters their fraudulent

nature is not apparent on their face. This is especially problematic because Tal, Inc.

and Bricktown, Inc. not only failed to allege how these communications were

fraudulent but also how they specifically furthered the fraudulent enterprise.

Moreover, eighteen of the forty-six exchanges occurred after July 21, 1998, the date

the contract was awarded to the Developers. Thus, the eighteen post-award letters

were at best concealment and could not have been used “for the purpose of

executing the scheme.” See Kann v. United States, 323 U.S. 88, 94-95 (1944);

United States v. Cardall, 885 F.2d 656, 680-82 (10th Cir. 1989). Therefore,

Bricktown, Inc. and Tal, Inc.’s allegations of mail fraud as a predicate act are

limited to the documents involving the Torchmark and Bricktown Association

misrepresentations.

In support of their wire fraud allegation, Bricktown, Inc. and Tal, Inc. list

twenty-seven telephone calls, emails, faxes and cable broadcasts involving

Appellees and the process granting the development contract to the Developers. All

but three of the electronic transmissions relied upon suffer from the same problems

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as the majority of the communications supporting the mail fraud claim. Only three

were alleged with sufficient particularity to establish cognizable claims for wire

fraud: (1) the August 1, 1997 submission by Douglas to the city council of a fax sent

to Douglas by TMK/Hogan, (Appellants’ App., Ex. 1 at 32-33); (2) the August 5,

1997 broadcast of the city council meeting where Douglas allegedly made an

intentionally fraudulent statement about her role in the selection process, (id. at 33,

53); and (3) telephone conversations occurring between May 11, 1998, and May 18,

1999, between Hogan, Elgin and Douglas and Mr. Tolbert, the president of the

Bricktown Association. (Id. at 36, 54.) Unlike the other twenty-four wire

communications alleged (and the forty-six letters), these three communications not

only describe the date, the parties to the communication and the subject matter, but

also how they were fraudulent and what they were designed to accomplish. Thus,

Bricktown, Inc. and Tal, Inc. adequately alleged three acts of mail fraud in violation

of 18 U.S.C. § 1343.

In support of their bribery claim under 18 U.S.C. § 201, Bricktown, Inc. and

Tal, Inc. list ten actions by both the Developers and members of the Renewal

Authority, including Douglas, that arguably benefitted each other. 27 However,

27
Included in these acts are: (1) the renting of office space to the Renewal
Authority at below-market rates; (2) bribing Renewal Authority Commissioner
Hall by making him a 50% partner in an East Wharf development project; (3)
bribing Renewal Authority Commissioner Nichols by offering the Mid-American
Tower at below-market rates; (4) securing Commissioner Talbot a position on the
Myriad Garden Trust and the Renewal Authority; (5) bribing Councilman

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Douglas, the Renewal Authority Commissioners and the city council are all

municipal state actors with no ties to federal programs apparent from the pleadings.

This is fatal to Bricktown, Inc. and Tal, Inc.’s bribery claim because they fail to

adequately allege that the relevant parties are “public officials” or acting on behalf

of the federal government under 18 U.S.C. § 201(a) or § 666. Bricktown, Inc. and

Tal, Inc. conceded to the district court that they could not state a claim against

Douglas under the federal anti-bribery statute but argued she violated a state anti-

bribery statute. 28 While violations of state bribery laws can serve as predicate acts

under RICO, see United States v. Welch, 327 F.3d 1081 (10th Cir. 2003), the

plaintiffs failed to plead that Douglas had violated a state anti-bribery statute in

either their RICO Case Statement or their Second Amended Complaint.

Additionally, as noted by the district court, Bricktown, Inc. and Tal, Inc. never

requested leave to amend their complaint in order to allege a violation of a state

anti-bribery statute. (Appellants’ App., Ex. 3 at 14.)

Liebmann by contributing to a political fundraiser which led to his appointment to
political positions with various City trusts; and (6) bribing Mayor Humphreys.
28
Specifically, they allege Douglas violated 21 O KLA . S TAT . TIT . § 381
which makes it a felony to:
give[], offer[], or promise[] to any executive, legislative, county,
municipal, judicial, or other public officer, or any employee of the
State of Oklahoma or any political subdivision thereof, . . . any gift
or gratuity whatever, with intent to influence his act, vote, opinion,
decision, or judgment on any matter, question, cause, or proceeding
which then may be pending, or may by law come or be brought
before him in his official capacity . . . .

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 Bricktown, Inc. and Tal, Inc.’s belated request on appeal that “if the Court

finds that some of the allegations stated in the almost 300 paragraphs and sub-

paragraphs are not too clear, at the least, the Court should point to the unclear

allegations and permit the Appellants to amend and clarify these issues,” comes too

late to offer escape from an adverse Rule 12(b)(6) order. (Corporate Br. at 43.)

Bricktown, Inc. and Tal, Inc. could and should have sought leave to amend their

Second Amended Complaint with the district court, not with this Court on appeal.

See The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1088 (10th Cir. 2005)

(“Courts have refused to allow a postjudgment amendment when, as here, the

moving party had an opportunity to seek the amendment before entry of judgment

but waited until after judgment before requesting leave.”) Thus the only allegations

sufficient to support a claim of a predicate act are the letters involving the

Torchmark and Bricktown Association misrepresentations and the three wire

communications which allege Douglas, Hogan and Elgin engaged in wire fraud.

As a final point, we question whether Plaintiffs’ allegations of predicate acts

satisfied the requirement of “a pattern of racketeering activity.” A “pattern” of

racketeering is defined as “at least two acts of racketeering activity, . . . which

occurred within ten years” of each other. 18 U.S.C. § 1961(5). However, because

“RICO is not aimed at the isolated offender,” Resolution Trust Corp., 998 F.2d at

1544, proof of two or more predicate acts are not sufficient to prove a pattern unless

there is a relationship between the predicate acts and a threat of continuing activity.

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H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989); Duran v. Carris,

238 F.3d 1268, 1271 (10th Cir. 2001). Continuity of threat requires both proof of “a

series of related predicates extending over a substantial period of time,” as well as a

“showing that the predicates themselves involve a distinct threat of long-term

racketeering activity . . . or that the predicates are a regular way of conducting the

defendant’s ongoing legitimate business or the RICO enterprise.” Resolution Trust

Corp., 998 F.2d at 1543. To determine continuity we examine both the duration of

the related predicate acts and the extensiveness of the RICO enterprise’s scheme.

Id. In determining the extensiveness of the predicate acts we consider a variety of

factors as well as “external facts that are not necessarily charged as predicate acts.”

Id. at 1544.

Here, none of the Appellants specifically allege a continuing threat by the

Developers and Douglas to control the Renewal Authority and the city council. The

allegations are confined to the award of one, albeit large, development contract to

the Developers. There is no reason to believe that the grant of one development

contract acquired through misrepresentation of financial backing and partnership

constitutes “a distinct threat of long-term racketeering activity.” Id. at 1543. In

theory, we could consider material outside of the alleged predicate acts to find a

more extensive threat to the Renewal Authority and the city council. Id. at 1544.

However, because the extensiveness of the threat is a question of fact, id., we will

assume for the purposes of this opinion that the predicate acts alleged by Bricktown,

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Inc. and Tal, Inc. establish a pattern of racketeering activity. We next consider

whether the pattern of racketeering activity states a claim under 18 U.S.C. §

1962(b), (c), or (d).

B. Section 1962(b)

18 U.S.C. § 1962(b) makes it illegal for “any person through a pattern of

racketeering activity or through collection of an unlawful debt to acquire or

maintain, directly or indirectly, any interest in or control of any enterprise which is

engaged in . . . interstate . . . commerce.” The purpose of the statute is “to prohibit

efforts to muscle in on legitimate business through the commission of a pattern of

racketeering activity.” S MITH & R EED , C IVIL RICO, ¶6.04[5][b]. To state a claim

under section 1962(b), the plaintiff must allege the defendant (1) acquired or

maintained an interest in or control of (2) an enterprise engaged in interstate

commerce (3) through a pattern (4) of racketeering activity, or collection of an

unlawful debt. See Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir.

1991). As with other section 1962 claims, the injury must be attributable to the

prohibited action. Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 941 F.2d

1220, 1231 (D.C. Cir. 1991).

Section 1962(b) claims are relatively uncommon because the first element

requires sufficient allegations of “an interest in or control of” an enterprise, as

opposed to the less demanding requirement of “association” with the enterprise in

section 1962(c) claims. “Interest in or control of” requires more than a general

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interest in the results of its actions, or the ability to influence the enterprise through

deceit. See Univ. of Maryland at Baltimore v. Peat, Marwick, Main & Co., 996 F.2d

1534, 1539-40 (3d Cir. 1993) (allegedly preparing false financial statements on

behalf of the enterprise is not participation). Rather, it requires some ownership of

the enterprise or an ability to exercise dominion over it. 29

Bricktown, Inc. and Tal, Inc.’s claims founder on the combination of elements

(1) and (4). They failed to adequately allege Appellees acquired or maintained an

interest in or control of the Renewal Authority or the city council through the

predicate acts. Bricktown, Inc. and Tal, Inc.’s alleged three acts of wire fraud fall

short of demonstrating control of or an interest in the Renewal Authority and the

city council; at best they show a misrepresentation to those bodies. Perhaps the

allegations of bribery might have been sufficient to demonstrate an interest in or

29
See United States v. Jacobson, 691 F.2d 110, 113 (2d Cir. 1982)
(“‘interest’ in fact encompasses all ‘property rights’ in a business enterprise” for
purposes of § 1962(b)); United States v. Martino, 681 F.2d 952, 954 (5th Cir.
1982) (en banc) (participation in the advantage, profit and responsibility of the
enterprise is an “interest”); Moffatt Enters., Inc. v. Borden Inc., 763 F.Supp. 143,
147 (W.D. Pa. 1990) (“it is clear that the ‘interest’ contemplated in . . . § 1962(b)
is in the nature of a proprietary one, such as the acquisition of stock, and that the
‘control’ contemplated is in the nature of the control one gains through the
acquisition of sufficient stock to affect the composition of a board of directors.”).
But see, Ikuno v. Yip, 912 F.2d 306, 310 (9th Cir. 1990) (“control within the
meaning of § 1962(b) need not be formal control and ‘need not be the kind of
control that is obtained, for example, by acquiring a majority of the stock of a
corporation.’”) (quoting Sutliff, Inc. v. Donovan Co., 727 F.2d 648, 653 (7th Cir.
1984)).

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control of the Renewal Authority or the city council, 30 if they had been adequately

plead. But in the absence of sufficient allegations of bribery, Bricktown, Inc. and

Tal, Inc. did not adequately allege the defendants acquired or maintained an interest

in or control of the Renewal Authority or the city council based on the three alleged

acts of wire fraud.

C. Section 1962(c):

18 U.S.C. § 1962(c) makes it illegal “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 enterprise’s affairs through a pattern of racketeering activity . . . .” To

survive a Rule 12(b)(6) motion, a civil RICO claim must allege the defendants (1)

participated in the conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity. Cayman Exploration Corp., 873 F.2d at 1362; see Sedima,

S.P.R.L., 473 U.S.at 496. The Supreme Court has adopted the “operation or

management” test to determine whether the defendant has conducted or participated

in the conduct of the enterprise by having some part in directing the affairs of the

enterprise. Reves v. Ernst & Young, 507 U.S. 170, 179 (1993). “For liability to be

imposed under that test, the defendants must have participated in the operation or

30
But see In re Am. Honda Motor Co., Inc. Dealerships Relations
Litigation, 941 F.Supp. 528, 556 (D. Md. 1996) (holding bribery fails to establish
investment in or acquiring interest in an enterprise for RICO purposes).

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management of the RICO enterprise,” BancOklahoma Mortgage Corp., 194 F.3d at

1100, “although it is not necessary for the participant to have significant control.”

Resolution Trust Corp., 998 F.2d at 1541(internal quotation omitted).

In this case, Bricktown, Inc. and Tal, Inc. have failed to allege sufficient

predicate acts to establish Appellees participated in the operation or management of

the Renewal Authority or the city council. All the alleged predicate acts relate to

TMK/Hogan’s bid for the award of the Bricktown development contract, and at most

involve an attempt to influence the Renewal Authority and the city council through

misrepresentations, not through operation or management. Misrepresenting material

facts to influence a selection process is a serious allegation to be sure, but does not

rise to the level of participation in the operation or management of the Renewal

Authority and the city council. Again, had Appellants adequately alleged Douglas

was involved in any of the predicate acts, this would be a different case, as it would

be if the Appellants had adequately alleged bribery. See Resolution Trust Corp.,

998 F.2d at 1542 (holding chief executive officer of the enterprise participated in

the conduct of the enterprise); Reves, 507 U.S. at 184 (noting “[a]n enterprise also

might be operated or managed by others associated with the enterprise who exert

control over it . . . by bribery.”) (internal quotations omitted). As it stands,

Appellants’ allegations of mail and wire fraud fail to establish a violation of §

1962(c).

D. Section 1962(d):

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 18 U.S.C. § 1962(d) makes it illegal “for any person to conspire to violate any

of the provisions of subsection (a), (b), or (c) of this section.” Tal, Inc. and

Bricktown, Inc.’s § 1962(d) claim also fails. By its terms, § 1962(d) requires that a

plaintiff must first allege an independent violation of subsections (a), (b), or (c), in

order to plead a conspiracy claim under subsection (d). See United States v.

Hampton, 786 F.2d 977, 978 (10th Cir. 1986) (“The object of a RICO conspiracy

must be to violate a substantive RICO provision.”); Schroder v. Volcker, 864 F.2d

97, 98 (10th Cir. 1988). If a plaintiff has no viable claim under § 1962(a), (b), or

(c), then its subsection (d) conspiracy claim fails as a matter of law. See Condict v.

Condict, 826 F.2d 923, 927 (10th Cir. 1987) (“[A]ny claim under § 1962(d) based

on a conspiracy to violate the provisions of 18 U.S.C. § 1962(a), (b), or (c) must

necessarily fall if the substantive claims are themselves deficient.”); BancOklahoma

Mortgage, 194 F.3d at 1103; Edwards v. First Nat’l Bank, Bartlesville, Okla., 872

F.2d 347, 352 (10th Cir. 1989); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147,

1151 (10th Cir. 1989); Torwest DBC, Inc. v. Dick, 810 F.2d 925, 927 n.2 (10th Cir.

1987). Because Appellants have failed to allege a sufficient claim under

subsections (b) or (c), their subsection (d) conspiracy claim fails as a matter of law.

V. Pendant State Law Claims

Tal argues the district court improperly declined to exercise its pendant

jurisdiction over the state law claims of fraudulent condemnation and tortious

interference with business, because they alleged violations of the Fifth and

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Fourteenth Amendments. Conversely, both Douglas and the City argue the tort

claim should be dismissed with prejudice. Douglas argues the tort claim is barred

by the statute of limitations. The City argues it is barred by the Oklahoma

Governmental Tort Claims Act. We need not decide these issues.

The district court was precluded from considering the Appellants’ Fifth

Amendment claim by the Rooker-Feldman doctrine. As for the other state law tort

claims, we note that “[t]he Fourteenth Amendment [is not] a font of tort law.”

Daniels v. Williams, 474 U.S. 327, 332 (1986). Additionally, the court was not

required to consider either the merits or the procedural issues attendant to the state

law claims. Because the district court properly dismissed all of Appellants’ federal

claims, it was well within its discretion under 28 U.S.C. § 1367(c)(3) to decline to

exercise supplemental jurisdiction over plaintiffs' state-law claims. Exum v. United

States Olympic Comm., 389 F.3d 1130, 1138-39 (10th Cir. 2004); Lancaster v.

Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir. 1998). The court, therefore,

did not err in dismissing the state interference with business claims without

prejudice.

C ONCLUSION

We AFFIRM the district court’s dismissal of Tal’s Complaint, and Tal, Inc.

and Bricktown, Inc.’s Second Amended Complaint under Rule 12(b)(6) of the

Federal Rules Civil Procedure. We also AFFIRM the district court’s dismissal of

the pendant state law claims without prejudice.

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