1:21-cv-23436
S.D. Fla.Jun 22, 2022Background
- Plaintiff Jacob Millner alleges he was induced into OPM Wealth, a cryptocurrency-based pyramid scheme, purchased its highest "Zeus" plan in April–May 2020 and lost his investment after receiving no products or promised returns.
- Defendants include OPM Wealth founders (Floyd Scott Agee, Jr. and Stefan Dessalines), marketer 7th Level Communications, LLC (Missouri LLC; sole member Jeremy Miner), and promoter Don Gillette (Miami resident who directly contacted Millner).
- Claims asserted: federal RICO (18 U.S.C. § 1962), RICO conspiracy, Florida RICO, FDUTPA, and fraudulent inducement; alleged predicate acts include wire/communications fraud, theft, and money laundering.
- Procedural posture: 7th Level moved to dismiss for lack of personal jurisdiction and failure to plead fraud; it also moved to strike. The court denied the motion to strike and vacated its prior dismissal after plaintiff timely filed an amended complaint under FRCP 15.
- The court found § 1965(d)’s nationwide service-of-process provision supplies statutory basis for personal jurisdiction over 7th Level; the amended complaint pleads fraud and RICO (including conspiracy) with the particularity required by Rule 9(b); the FDUTPA claim also survives given alleged Florida contacts via Gillette.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction | RICO § 1965(d) authorizes nationwide service/process, so jurisdiction over 7th Level is proper | No sufficient contacts with Florida or forum; due process bars jurisdiction because Millner is not in Florida and alleged acts did not occur there | § 1965(d) provides statutory basis for jurisdiction; nationwide service plus defendant's U.S. presence satisfies due process; jurisdiction exists |
| Fraud pleading (Rule 9(b)) | Amended Complaint identifies who, what, when, where, how (agents/coaches, marketing materials, April–May 2020 timeframe, screenshots) | Fraud not pled with specificity; complaint improperly lumps defendants together | Court: pleading meets Rule 9(b); identifies statements, actors, timeframe, and means; not a shotgun pleading |
| RICO conspiracy particularity | Allegations show agreement and coordinated roles (7th Level supplied coaches to close victims) | Conspiracy claim insufficiently particular; 9(b) should govern | Court: Rule 9(b) particularity does not apply to RICO conspiracy; allegations read as a whole plausibly allege conspiracy |
| FDUTPA and Florida nexus | FDUTPA applies to non-resident consumers and extraterritorial conduct in commerce; Gillette targeted Millner from Florida | Insufficient connection to Florida to sustain FDUTPA claim | Court: FDUTPA claim adequately pled—alleged deceptive acts involved Florida-based defendant (Gillette) and targeted a Florida nexus; claim survives |
Key Cases Cited
- Republic of Panama v. BCCI Holdings (Lux.), 119 F.3d 935 (11th Cir. 1997) (RICO's nationwide service provision can provide statutory basis for personal jurisdiction)
- Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015) (describing and rejecting "shotgun" pleadings; pleading must give fair notice to each defendant)
- Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194 (11th Cir. 2001) (Rule 9(b) requires pleading who, what, when, where, and how for fraud)
- Ambrosia Coal & Construction Co. v. Pages Morales, 482 F.3d 1309 (11th Cir. 2007) (clarifying Rule 9(b) pleading standards)
- Mizarro v. Home Depot, Inc., 544 F.3d 1230 (11th Cir. 2008) (discussing sufficiency of fraud pleadings under Rule 9(b))