Kim v. Kimm, 884 F.3d 98

Daniel Kim, a defendant in earlier trademark suit Sik Gaek, Inc. v. Yogi's II, sued the Sik Gaek owners, their lawyers, and an accountant under RICO, alleging a scheme to extort $2 million via fraudulent trademark-related litigation.
In Sik Gaek I, the district court granted summary judgment for Kim on August 14, 2014; remaining claims later dismissed.
Kim's RICO complaint alleged predicate acts (mail fraud, wire fraud, obstruction) based primarily on defendants’ litigation activities: preparing, signing, and filing sworn declarations and court filings in Sik Gaek I.
Defendants moved to dismiss under Rule 12(b)(6); district court dismissed Kim’s amended complaint, holding litigation activities alone cannot constitute RICO predicate acts and denying leave to amend as futile.
Kim’s motion to disqualify one defense attorney (Kimm) was denied as moot after dismissal; defendants’ motion for sanctions under Rule 11 and §1927 was denied.
The Second Circuit affirmed: litigation-only misconduct (a single frivolous/fraudulent lawsuit) does not, without more, qualify as a RICO predicate act; denial of leave to amend, denial of disqualification, and denial of sanctions were not abuses of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether litigation activities can be RICO predicate acts	Kim: preparing/filing fraudulent declarations and filings in Sik Gaek I were mail/wire fraud and obstruction predicates	Defs: litigation activity cannot serve as RICO predicates; allowing it would chill access to courts and multiply litigation	Court: Litigation activities alone (a single frivolous fraudulent suit) cannot constitute RICO predicate acts; dismiss complaint
Leave to amend	Kim: should be allowed to add additional allegations about litigation-related predicate acts	Defs: amendments would be futile because litigation acts are legally insufficient	Court: Denial not an abuse; proposed amendments futile
Disqualification of defense counsel (advocate-witness rule)	Kim: Kimm should be disqualified because he may be a fact witness	Defs: motion moot after dismissal; no jury testimony expected	Court: Denial was not an abuse; motion moot after dismissal
Sanctions under Rule 11 / §1927	Defs: Kim’s suit was frivolous and multiplied proceedings	Kim: claims were legally plausible given lack of binding precedent in this Circuit	Court: Denial affirmed; claims were not entirely without color and some courts supported similar theories

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (explains RICO elements and private right of action)
Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: plausibility)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard and plausibility test)
DeFalco v. Bernas, 244 F.3d 286 (Second Circuit setting out RICO element framework)
Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512 (litigation activities absent corruption cannot be civil-RICO predicate)
Raney v. Allstate Ins. Co., 370 F.3d 1086 (meritless litigation not RICO predicate)
Deck v. Engineered Laminates, 349 F.3d 1253 (same: frivolous litigation not extortion under RICO)
Sykes v. Mel Harris & Assocs., LLC, 780 F.3d 70 (discussed mass-debt-collection scheme where litigation was one component; distinguishable)
Fishoff v. Coty Inc., 634 F.3d 647 (claims not foreclosed where nonbinding authority exists)