Diaz v. Parks

of dis- court’s denial the district showing, of discretion. not an abuse

covery was order is affirmed. court’s

The district Plaintiff-Appellant, DIAZ,

David Williams;

Daryl GATES; L. Willie Alatorre; Alarcon; Richard

Richard Braude; Bernson; Laura Marvin

Hal Feuer; Ferraro;

Chick; Michael John Holden, al., Galanter; et Nate

Ruth

Defendants, Parks, Los Chief of

Bernard C. Department,

Angeles Police

Defendant-Appellee.

No. 0256818. Appeals,

United States Court

Ninth Circuit. 22, 2005. March Argued and Submitted Yagman, R. Yagman, Marion Stephen Aug. Filed Reichmann, Yagman & Yagman & Joseph

Reichmann, Beach, CA, Kathryn S. Venice LA, Bloomfield, plain- Shreveport, tiff-appellant. Attorney, Delgadillo, City

Roekard J. Attorney, City Bogigian, Deputy Janet G. CA, defendant-appel- for the Angeles, Los lee. SCHROEDER, Judge, required

Before Chief RICO. See 18 U.S.C. 1964(c). REINHARDT, KOZINSKI, judge agreed district and KLEINFELD, THOMAS, WARDLAW, prejudice dismissed without and with leave FLETCHER, GOULD, BERZON, amend, W. to amend. Diaz did not and the CALLAHAN, Judges. BYBEE and Circuit judge preju- district then dismissed with A panel dice. divided of our court af- Opinion; PER Concurrence CURIAM (9th Gates, firmed. Diaz v. 380 F.3d 480 REINHARDT; by Judge Concurrence Cir.2004). We took the case en banc. KLEINFELD; Concurrence Judge Gates, (9th Cir.2004). Diaz v. 389 F.3d 869 BERZON; by Judge Dissent Judge GOULD. Analysis PER CURIAM. 1. The judge, citing district Oscar v. imprison- examine whether a false We Ass’n, University Cooperative Students ment that caused the victim to lose em- (9th Cir.1992) (en banc), 965 F.2d 783 rea ployment opportunities is sonably applied the law of RICO property” an to “business or within Oscar, as it existed at the time. we of RICO. held that provide RICO does not a cause of action types for all Facts interests, injuries resulting Diaz to be a victim of claims the Los “concrete financial loss.” Id. at 785. Os Angeles Department’s Police infamous car, a tenant in an apartment building, Rampart scandal. He sued over two hun- alleged that she co-plaintiff and her had people Ange- dred connected with the Los enjoyment “lost the use and ‘prop of their (LAPD) Department les Police or Los erty’' is, their rental interest” —as a —-that city Angeles government under the Rack- result of the racketeering activity in their eteer Corrupt Organiza- Influenced and building, which drug dealing, included vio (RICO), §§ tions Act 18 U.S.C. 1961- crimes, misdemeanors, lence and “other 1968, alleging that LAPD officers had “fa- nuisances, annoyances.” Id. at 784- bricated evidence” that he had committed 85. Because Oscar did not own her inter deadly weapon, assault with a and that est, reasoned, only way she could they “tampered had with witnesses and suffer a financial loss would be “if she had conspired to obtain false conviction” [a] an interest she could sublet and the racke ¶ him, against Compl. 16. As a conse- teering enterprise reduced the rent she claims, quence, “[ajmong other forms charge could apartment.” sublet her injury, lost employment, employ- [he] Id. 787. But Oscar never opportunities, ment and she had wanted or tried to sublet compensation other associated with said apartment or, matter, for that that she — business, employment opportunities, a right had rendering “[a]ny do so— in that [he] was rendered unable to pur- supposed loss ... purely speculative.” Id. gainful employment sue while defending Thus, we concluded that she had not suf against unjust himself charges and while fered concrete enough financial ¶ unjustly Compl. incarcerated.” purposes only injuries of RICO. The Oscar dismiss, Defendant Parks moved to ar- properly alleged “personal discomfort — guing, among things, annoyance,” other that Diaz (quoting Ingram id. lacked standing because he allege City did not Gridley, Cal.App.2d (1950)) (internal property” to “business or as P.2d quotation case, to afford a new leaving her unable omitted) and so personal, marks —were eventually caught Doe’s husband lawyer. proper- injury to “business there was and, in the act understand- Doe and Roe the statute. meaning of ty” within any of Roe’s fees. ably, pay refused to easelaw, the district Intervening payment full nonetheless demanded Roe to, has access obviously not have did judge services, forgave Doe’s legal for his A month standard. the Oscar clarified continuing exchange him in debts to judge dismissed district after the Id. at 765-66. sexual relations. Zirkle Mendoza we decided complaint, (9th Cir.2002), Co., wrongful 1163 exaction argued Doe that Roe’s Fruit al- laborers agricultural proper- a class of services was an where of sexual depressed had employers her RICO support that their therefore leged ty and could undocu- hiring by illegally disagreed: their Circuit claim. The Seventh wages. “[Wjhether at below-market mented workers interest amounts particular a not “show could agricultural workers question “ a property quintessentially wages, right’ ‘property a at And ‘sexual law.” Id. of state or con- they promised were showing Illinois, that where legal value labor’ has they But did wages.” higher tracted that contracts long have held the courts interest, the property an allege as a are unenforceable for sexual services un- to business relations entitlement “legal Thus, Id. public policy.” matter by the prohibited hampered schemes interest was property requisite at 1168 See id. statutes.” predicate stand for the missing. clearly Doe doesn’t suffi- interest property n. 4. We held cannot be employment that proposition under RICO. See provide cient to RICO, under or would property just such Diaz has at 1168. id. Circuit for the Seventh superfluous been relations. with his business interference provider employment to hold under services was sexual on the not elaborate 2. Mendoza did state law. to business “legal entitlement of the source of the

relations,” its discussion relegating the rela theory. After Doe had another injury to a footnote. We nature sour, alleged, she Roe turned tionship with approach believe the best-reasoned safety, which made her Roe threatened (7th Cir.1992), Roe, F.2d 763 Doe v. security system and invest a home her state law look to typically which we 769-70; work. Id. days of miss several inter- particular “whether 356, to determine Roe, 353, F.Supp. also Doe v. at 768. id. property,” amounts to est (N.D.Ill.1991). Naturally, she also that the lawyer. argued Doe a new hired un- attorney Roe her divorce Doe sued security the costs of wages, loss RICO, that Roe had defraud- alleging der other lawyer, and the new system and to coerce position and misused ed her 958 F.2d expenditures,” “miscellaneous period him over having into sex with her Here, too, property. Doe, little mon- who had years. of several disagreed: court attorney original divorce her ey, had left pro- between the distinction Doe blurs understanding on the retained Roe injuries. Con- ex-) (soon prietary would husband her suggest, Doe seems trary to what she retainer fee beyond the pay fees financial loss she can show whether to his sex- acceded already paid. She had definition, that she not, establish does was afraid because she ual overtures inju- has suffered a business on her stop working otherwise he would 1964(c). §of California Del- ry within the lished torts under law. See Sales, U.S.A., personal injuries earnings, Toyota Most la Penna v. Motor —loss consortium, guidance, Inc., loss of loss of 45 Cal.Rptr.2d Cal.4th pain and anguish, suffering, (1995) mental (discussing 902 P.2d 750-51 pecuni- entail some name a few—will torts of “interference with an busi- existing ary consequences.... com- ness contract” and “interference with earnings, purchase

Doe’s loss of her relations”); mercial see also Restatement a security system and her (Second) (inten- § 766A of Torts & cmt. e attorney plainly of a new derivatives tional with perform- interference another’s of her emotional therefore distress —and contract); ance of his own id. 766B & personal injuries reflect which are not (intentional cmts. c-d interference compensable under RICO. relations); prospective contractual Reeves Again, although at 770. Doe alleged Id. Hanlon, 1140, Cal.Rptr.3d 33 Cal.4th earnings,” “loss of was deemed insuffi- 513, (2004) (interference 289, 95 P.3d to qualify property cient as a or business with of performance contract is intentional interest “as by under RICO construed Illi- if “that defendant knew the interference Thus, injury law.” nois Id. to a busi- substantially to was certain or certain oc- property actually ness or was interest al- action”). cur as a result of his or her And leged.1 his claimed not financial loss? He could agree

We with Seventh Circuit. fulfill his employment pursue contract or a specific Without harm to a business or opportunities valuable be- employment categorical property inquiry interest —a jail. cause he was in by typically reference to determined state injury

law—there to is no three-judge panel 3. The to tried property within the of RICO. on distinguish theory Mendoza allege “that did not he lost actual Contrary suggestion, to the dissent’s employment, only that he ‘was rendered 914, dissent at approach our does not cre- ” gainful to pursue employment.’ unable liability every ate RICO wages for loss of Diaz, 380 F.3d at 484. This distinction Doe, resulting injury. from personal a untenable, speaks generally for Mendoza Oscar, tangible unlike some suffered finan- a “legal entitlement to rela business cial losses as a result her emotional distress, but, Oscar, tions.” 301 F.3d 1168 n. 4. Nor do like failed to allege endorse today, such a distinction for Cali any property harm to interest valid under protects legal fornia Diaz, hand, state law. law entitlement to on the other has alleged prospective both current property both the interest contractual and the financial loss. relations. alleges page supra. The harms he See There may amount be a difference cur practical intentional interference with between contract and prospective interference with rent and future purposes relations, instance, both of which are it may estab- RICO—for be easier alleged 1. The wages property recog- dissent that "Doe a claims earn interest Thus, same injury properly by or to business as Diaz: nized law. Illinois Doe does 7, employment wages,” speak lost earnings dissent at a 913 n. to whether loss of be could but it something injury loss plaintiff confuses the mere an to a interest a if (such wages) value proper- properly alleges to a it as such—as Diaz does. (such losses, ty right wages). merely interest as the earn Doe teaches that financial in- gave cluding wages, by Seventh Circuit no indication in them- Doe insufficient plaintiff right standing had loss of the selves to confer under RICO. “ activity damages produced prove ‘racketeering causation determine ” injury.’ current -at plaintiff employ- who has lost Id. 105 S.Ct. 3275. “Racketeering activity” concept, this difference is relevant ment —but is broad injury to there was an “busi- of no whether which “consists more and no less ness property.” predicate than commission of a act.” Id. contrast, By Similarly, the dissent seeks distin injury,” “racketeering under the Second theory guish Mendoza on the definition, Circuit’s was an “differ- farm loss of was the “di workers’ that occurring ent kind from as a result target” conspiracy, rect while Diaz’s predicate themselves, acts or not from,” “merely and a was derived acts, simply predicate caused of, “secondary imprison false effect” activity also which RICO caused 909, 911, ment. See dissent at Sedima, designed deter.” S.P.R.L. v. But lan this distinction founders (2d Cir.1984). Co., Imrex guage require of the statute: The While the Court “understood] that one ment for RICO [Second Circuit’s] concern over the “person injured his business consequences reading of an unbridled of a violation of section 1962.” reason statute,” the which had far expanded be- 1964(c). Supreme § And the 18 U.S.C. yond mob-related that concerns had already “by Court has told us reason it, 481, originally inspired see 473 U.S. proximate of’ cause incorporates stan 499, 3275, it rejected such a S.Ct. dard, Holmes v. Investor Prot. see Sec. construction: 258, 265-68, 112 1311, Corp., 503 S.Ct. U.S. (1992), generous 117 L.Ed.2d 532 which is engages pattern If the in a defendant unintended, enough though to include the racketeering activity in a manner forbid- foreseeable, consequences predi of RICO provisions, den and the by these racke- acts, Palsgraf v. Long cate Island R.R. injure plaintiff teering activities Co., 339, 99, N.E. 100-01 248 N.Y. plaintiff property, his business or (1928). 1964(c). § has a claim under There is statutory language no room in the for an wrong to Though suggest the dissent is additional, “racketeering amorphous in- approach our would confer jury” requirement. enough any plaintiff RICO-suave to al- lege right to employment, point it is Id. at S.Ct. approach out more that our allows claims similarly There in the statu- go than more restrictive is room forward its additional, amorphous tory But for an theory. language See dissent at 913-914. that, for an to be consequences, assuming they requirement policy these undesirable, prop- property, cannot blind us to the the business Sedima, erty target” statutory language. In S.P.R.L. interest have been the “direct Co., broad, predicate v. act. The statute Imrex U.S. (1985), but that the statute we have. Were the 87 L.Ed.2d 346 Court claims, in- the dissent we would examined the Second Circuit’s narrow standard as which, RICO, anomalous result that one could terpretation “[i]n re- destroying it under RICO for sponse perceived to what to be misuse of be liable it, if one aimed by private plaintiffs,” civil read bomb vari- owner, 1964(c), into if one aimed at the business missed ous limitations section includ- accident, if hit one ing racketeering the business requirement that the hap- aimed at the business owner who contractual Treating relations. the two as in the business at pened separate, the time. and denying recovery for the letting first but go the suit forward on the approach The dissent’s flawed is similar second, analytically is both cleaner and Platt, Grogan to that of 835 F.2d 844 language truer to the of the statute. (11th Cir.1988). Grogan, agents FBI If properly in- alleges in a that his wounded and slain shootout sued the juries “by reason of a violation of suspects responsible criminal in- their 1962,” section nothing prevent there is juries and deaths. The Eleventh Circuit him “su[ing] from therefor.” recovery, See 18 though plaintiffs denied even 1964(c). § U.S.C. apparently alleged had tracks “lost language of section which makes opportunities” as one of their forms of to, illegal among things, acquire other injury, id. at 848:2 maintain “enterprise,” control of an or con- plaintiffs may We do not hold that never affairs, participate duct or through its recover under RICO for the loss of em- “pattern racketeering activity.” Com- ployment opportunities. merely We ¶¶ 1962(b)-(c) § pare id. Compl. 26- appellants hold cannot recover alleges 27. Diaz LAPD and vari- pecuniary under RICO for those losses ous “enterprises” subdivisions are within properly that are most understood as 1961(4). § the meaning of 18 U.S.C. See part a personal injury claim. ¶ Compl. alleges 23. And he acts that Id. The Eleventh Circuit’s “most properly seem to fall within the definition of “racke- part subject understood as of’ test is 1961(1), teering activity,” § 18 U.S.C. critique the same as the dissent’s “direct 1961(5).3 “pattern,” seem to form a id. target” test. Diaz suffered types two (1) injuries: personal injury of false allegations Whether these of section (2) imprisonment property injury and 1962 violations are adequate is a matter on of interference with current or prospective which express no view.4 The district say “apparently” 2.We because the property Eleventh an to a by interest as defined Reading Circuit does not tell us how the claim Grogan, for lost state law. nothing we know employment opportunities was raised about right in Gro- how Florida law treated the to gan. entirely possible plaintiffs Grogan brought It is that the earn at the time lawsuit, Diaz, Grogan, allege right unlike nor whether he claimed failed to that his loss amounted to a employment recognized to interest. prop- that was as erty may why under state law. This Because the district court addressed part court treated it as of their plaintiff alleged proper whether injury, and so, Grogan claim. If is consistent with our not "by whether the reason of” the approach and that of the Seventh Circuit in violation, RICO we decline to address the certain, however, Doe. What we do know for requirement RICO causation in the first in- is that the expressly Eleventh Circuit does not Singleton Wulff, stance. See v. 428 U.S. plaintiff actually address the situation where a (1976) (“It 49 L.Ed.2d 826 interest, alleges state-protected as rule, course, general is the that a federal Diaz does here. appellate court does not consider an issue not speculates The dissent below.”). that Diaz must be in passed upon position Grogan, the same "[w]e because have no complaint clue from Diaz's what 'em- Nor, early stage litigation, at this do ployment' Diaz has to have lost.” appropriate speculate we deem it to as to the - point. Dissent at 913. That misses the We merits of Diaz's claim. dissent at 907 Cf. may precisely type employ- ("An know what might 908 n. 1 observer wonder if there lost, alleges ment Diaz any but we know substance at all to the RICO claim alleges Diaz.”). that his lost asserted racketeering activity to the “suf- duct unrelated stated that judge sought Although control. Congress of the same deficiencies many from fered] construction, Ram- another disagree ... identified” I with this we must previously case, City v. Los Serrano part-related law as it is determined follow the (AJWx) view, No. 00-13356 GAF Angeles, however, CV my Court. 2001) (order (C.D. dismissing Cal. June past time our is well lawmakers claims), ruling on dispositive but his RICO and take another look RICO consider him unnecessary for made it the statute so as to limit it to its amending of these deficiencies precisely state original purpose. We need not deter- to Diaz’s case.

applied incorpo- judge’s the district mine whether KLEINFELD, Judge, Circuit the defi- “many” ration reference BERZON, whom REINHARDT in a case was identified different ciencies join, concurring: Judges, Circuit adequate notice of the provide sufficient I I separate concur in the result. write Bonanno v. particular deficiencies. Cf. ly my analysis differs from that in (9th Cir.1962). Thomas, 320, 322 309 F.2d majority opinion. unauthored I focus the district that we have set aside Now language on the of the statute. Mendoza the district ruling standing, court’s us, Zirkle Fruit v. Co.1does bind should, if wishes to reinstate the judge he speaks mostly event causation dismissal, identify specific de- order Grogan standing. rather than v. Platt2 order, in a supplementary ficiencies Roe,3 Doe Eleventh Seventh given opportu- plaintiff should then be cases, statutory lan Circuit strain RICO’s complaint accordingly. amend his nity to reading of guage. A careful the statute REMANDED. AND REVERSED the “personal cannot be reconciled with injury” the Seventh and Elev exclusion REINHARDT, Judge, Circuit cases. enth Circuit concurring: statute tells us what kinds RICO per opin- curiam the court’s concur rise to claims. Some give separate Judge as in Kleinfeld’s ion as well “personal injury” the nature of Judge concurrence. I share Kleinfeld’s claims, are not. The section and some that, given the construction view claim, stating gives rise to section what by the has been afforded RICO in injured busi “Any person his says it Court, to read longer we are no free of a or reason violation ness Rather, anti-racketeering an statute. may there chapter of this sue section 1962 Sedima, S.P.R.L. v. Imrex starting with district appropriate in United States any for 496-500, Co., 473 U.S. telling The us what cou rt.”'4 words (1985), it has 87 L.Ed.2d 346 been “by gives to a claim are wrong kind rise scope both in and far stretched 1962.” The reason of a violation of section Congress originally in- beyond which proper “injured his business become, phrase through judicial and tended has limitation, speaking not to ty” is a further construction, pro- ranging act that wide the wrong, but rather to all of con- the nature of damages treble for kinds vides Roe, (7th Cir.1992). Co., 763 3. Doe V. 958 F.2d v. Zirkle Fruit 301 1163 Mendoza Cir.2002). (9lh 1964(c). 4. 18U.S.C. Platt, (11th Grogan F.2d 844 Cir. 1988). wrong. legitimate the harm caused There read way nature of ment.” is no “may phrase The word “therefor” the statute to exclude traditional personal a further limitation on the sue therefor” is from actionable racketeer- conduct, damages that can be awarded. The lan ing personal because traditional guage telling wrong gives injuries, us what kind of including kidnapping, murder and claim, though, “by expressly rise to a is reason of a listed section 1961 as only is “racketeering” violation of section 1962.” That give conduct can rise reading possible, per literal and it makes to claims under the statute.

fect sense. logic Here is plain express (1)

Section which section tells us the statute: section establishes giving defines the violations rise to civil civil cause for a of action violation of sec- claims, (2) 1962; says any “It shall be unlawful tion section uses a term person employed or associated with art defined 1961 to viola- section denote (3) in, tions; enterprise engaged expressly or the activities of section provides affect, Ibreign injuries, interstate or com- personal that various as well merce, directly or participate, wrongdoing, conduct other kinds of constitute the indirectly, in the conduct of such enter- rise to a giving misconduct cause of action. prise’s through a pattern way affairs racke- plain around this language teering activity why collection of statute. I part ways unlawful That is from language says Grogan Doe, quite plainly debt.”5 This the Seventh and Elev- that two of wrongdoing kinds violate this enth Circuit holding cases (not law: of an collection unlawful debt give claims cannot rise to RICO case) involved “racketeering standing. If they right, then activity.” Again, only this is the literal words “murder” “kidnapping” in the reading possible, perfect makes statute would have to be wrong, which is sense. impossible. statutory Our tools of con- struction do not include eraser. phrase activity” “racketeering is de- fined in section 1961. That extensive defi- That is not end of nition tangi- “by includes both direct inquiry. Conduct reason of’ a section “arson,” ble property, such as and also necessary, 1962 violation is but not suffi- cient, various wrongdoing kinds of that consti- for standing.6 For a injury.” tute “personal “per- Among upon state a claim which relief can be injury” wrongs sonal that can granted, plaintiff constitute must allege activity” “racketeering are “murder” and a section 1962 violation but also that he “kidnapping.” “injured “Murder” an injury is not or property.” property. It is a requirement This second of a more being. to a human problem, Likewise kid- problem though, Diaz. The a napping personal is also to a not whether gravamen complaint the of his human being. Murder kidnapping “personal and fall if injury,” is he even within “personal injury” the torts of nothing injury, but “wrongful and imprison- plainly death” “false could be a section violation. 1962(c) added). (emphasis 5. 18 prefer analysis U.S.C. would that the be made under "stating upon rubric a the of claim "standing” I have word used the here be- granted relief can be under section 1964.” generally cause the cases use it. I am They thing come to the same here. among prefer those who the to use term "standing” purposes, for Article III and the to wrong, get he lost chance inju- RICO the is whether problem The jail he in or ab- employment because property. or injury to business ry caused against defending himself racketeering a sorbed everyone who suffers Not criminal charges a he claims were the fraud- 1962 can by section state injury denoted racketeering. That Only police those to ulent result under section claim “injured claim he was his in- states a racketeering conduct caused whom can a or state business.” jury to business

claim. a not have to wear person A does suit A engaged and tie “business.” can cause kidnapping or

Murder not, might might employee salaried or person- as well property, or to business a ordinary speech, be characterized as suffered injury. Suppose America al “businessman,” a sole a proprietor but ransom of busi- kidnapping for frequent unquestionably a If runs countries do. service that some ness executives ransom, example, owner it For has been “business.” pays the business a Snowplowing” “AAA is businessman who imagine Or kidnapping. injured business, makes a service and his owns whom a business needs person that a a from it he comes around with living a when perhaps medical function is murdered' — truck pickup of his after through himself blade on front employs who researcher lawyers and are also a Dentists laboratory and obtains snowfall. incorporated own and run businesses. grants and businessmen who research millions dollars corner stands on a and contracts, person of other So is who employs dozens jobs picked up to do odd as an destroy get the waits to may murder well The people. prin- debts, There is business, independent contractor. pay its make unable work, among way to out who sole cipled sort employees out put all who a “business” and does proprietors has against them claims the business giving n They all contracts. not. do. of their breach corporation “person is laboratory about who seek to be people What “by of’ a injured in business” reason his common law sense of a employed, In these section 1962 violation—murder. relationship, someone master-servant assume, course, that a hypothetical, clear is not else? enterprise committed the racketeering do, all he meant whether wrongful section conduct sell services as a he meant to whether The signifi- the harm. conduct caused statutory construc- proprietor. Sound sole cases is to illus- hypothetical cance “attributing rational proceeds from tion injuries, 1962 personal trate section Judge Learned Congress.”7 As purpose in- kidnapping, may as murder such wrote, always some Hand “statutes “injury to business give rise deed accomplish, whose object purpose section 1964. property” under imaginative discovery is sympathetic and meaning.”8 If the guide to their injured the surest “person Diaz’s claim to be a sense, makes way one more statute as construed property” is tenuous his business or another not make as construed does hypotheti- in these than the victims’ claims arbitrary, cases, wholly He sense and sufficient nonetheless. cal arbitrary construction is dubious that, wholly the putative pleads result 737, Markham, (2d Rasmussen, 148 739 F.2d Longview 8. Cabell Fibre Co. v. 7. 1945). (9th 1992). Cir. Cir. of legisla- they attribution fecklessness to the apartments rented was not “financial purpose Congress property”10 ture. I cannot see what loss or “concrete financial dissented, limiting could intended to serve I taking position loss.”11 in in “person injured injury his to some business” dissent there was to property earning a living forms of but not others. because leasehold estate is itself proper- Many operate in part ty, damage firms with common and does not have to be “con- employees part law and in indepen- property crete” “financial” to be dam- contractors, dent many My individuals age. thought was that the majority one, work sometimes as sometimes right damage could be has to other, on depending what form of work is result “concrete financial give loss” to more attractive or available at the time. to a claim. example, rise For if racketeer- The distinction between “business” and conduct on ing freeway dents some- car, employment is so tenuous and uncertain one’s the car’s owner has suffered why it is hard injury property, we should attrib- if even he drives with it, ute to Congress purpose making of the dent neither the car gets fixed nor especially they since did not make it it. ex- sells He does any not suffer “concrete pressly. loss,” financial he has the same money before, amount that he did but statutory The manifest purpose re- injured. quiring injury “by reason of’ sec- misconduct, tion Judge also Gould point makes sensible property,” “business or is to exclude claims claims such as this one police for injuries, other kinds of even those ordinarily aris- misconduct are and should be ing racketeering from denoted brought conduct. U.S.C. 1983. do not person For example, physi- who disagree, suffered but I also do not see much risk of distress, cal inju- and mental but no opening floodgates by taking the ry to his property, business account words of the RICO statute to mean what racketeering misconduct of the sort de- Court has they told us noted sections 1962 and could Though not mean.12 the RICO statute allows upon state a claim could damages, allows, relief treble damages granted under section Congress trebled, 1964. to be allows limited to likely chose to address this sort harm in to limitation, That property. order upon to focus the harm racketeering particularly in light of the limited business does to interstate commerce. of a proportion considerable arrested, persons who are makes section As en for our banc decision in Oscar v. path 1983 more attractive relief University Co-operative Students Associa- cases, most practical there little tion,9 it help is not much in resolving this for us to put need an artificial dam the case. The issue Oscar was whether the channel. plaintiffs “injured in [their] business or property” by drug dealing next door. The lower courts have repeatedly majority Oscar did not think so adopted narrowing non-literal interpreta- RICO, because the reduction in the value tions so that it apply only would Ass'n, Sedima, Co., Oscar v. Coop. Univ. Students 12. See 9. S.P.R.L. v. Imrex 473 U.S. (9th Cir.1992) (en banc). F.2d 783 496-500, 87 L.Ed.2d 346 (1985). Id. at 787. Id. at 785.

907 GOULD, Judge, Circuit with whom mean if the “racketeering” would to what SCHROEDER, a special into BYBEE Judge, not converted Chief word by CALLAHAN, statute as construed of art the join, term Judges, Circuit lower courts’ view Supreme Court. The the dissenting: linguistic appeal. practical a lot has dissent, affirm respectfully I and would the “RICO” with- hear word

And who can the district court’s decision that there was eye, Edward G. seeing in the mind’s out standing under Diaz’s no RICO because Robinson, But Little the Su- Caesar?13 allege did an “in- complaint sufficiently not has decided that RICO’s stat- preme Court jury property” to business or within the just permit the utory language does meaning of the statute. it to businesses to limit dishonest courts money through fraud and make their majority acknowledges that the dis- passed, many as- was extortion. When “reasonably applied trict court the law of facilitating purpose to RICO cribed time,” as it at the standing RICO existed organized “mobsters against remedies Maj. Op. but then concludes that Court has As the criminals.”14 reasoning intervening of our decision of the statute since construed the words Co., 301 in Mendoza v. Zirkle Fruit then, way there to corral though,15 is (9th Cir.2002), requires now reversal. apply would to “rack- so that it RICO Mendoza’s determination of was may initially word eteering” as that facts, its con- understandable on where the it is defined understood been challenged under was aimed spiracy Judge dictionary.16 agree Gould directly wages farm suppressing the that, attempted murder and legal plaintiffs, agri- workers. There convictions, likely Diaz will face an assault Washington, cultural laborers eastern summary for against motion uphill battle fruit Washington’s indus- the heartland But this a motion dismiss judgment. pleaded had in their RICO try, upon failure to state claim fruit scheme growers’ that the defendant Federal Rule granted can relief systematically to un- illegally and hire was 12(b)(6). limit- We are of Civil Procedure immigrants in order to de- documented whether, if proved, question to the ed of documented workers. press complaint would state averments of the in But that case we did Id. at 1166-67. They statute. do. claim under the here, we face address the situation BERZON, Judge, concurring: Circuit alleged loss of where secondary effect of merely an indirect per opin- curiam I concur the court’s injury, non-compensable personal Judge separate Kleinfeld’s ion as well as Thus imprisonment.1 “false” Men- concurrence. Bros.1931). (Warner practice, esp. one that obtains est 13. Little Caesar extortion”). money through fraud or Sedima, 473 U.S. at S.Ct. alleg- charges that was on he 1. Diaz convicted Rampart Women, Scheidler, up, relying trumped es were Org. Inc. v. 15. See Nat’l Angeles Police 249, 256-262, tarnished Los scandal S.Ct. 510 U.S. premise he "un- Sedima, Department. The 99; at 499- see also U.S. L.Ed.2d underlying justly incarcerated” —which is 500, 105 S.Ct. 3275. highly questiona- of his RICO claim—is basis granted appellee’s motion that We Heritage Dictionary ble. 16. See The American notice, (2d ed.1985) judicial pursuant Federal (defining we take "dishon- "racket” 908 distinguishable in so far plainly injuries non-compensable as of were is

doza alleged under RICO. there was aimed at illegality majority The in wages. errs workers’ I Mendoza, extending improvidently and Corrupt Racketeer Influenced aim illegal scheme took dead at (“RICO”), Organizations Act 18 U.S.C. livelihoods, levels and workers’ wage 1961-68, §§ provides remedy a civil of tre here, in nothing a case like it. In apply damages “[a]ny injured in person ble his event, we sit en to re- any banc by of reason a viola case, by are not bound view Diaz’s chapter.” tion of section 1962 of this Id. at poses so prior opinion, Mendoza panel 1964(c). Sedima, See S.P.R.L. v. Imrex majority analyzing to the the law barrier Co., 479, 496, 3275, 473 U.S. 105 S.Ct. 87 standing. of RICO (“[T]he (1985) plaintiff only L.Ed.2d 346 I Diaz’s claim employ- would hold that of if, has and can recover to the from, loss was ment derived and second- that, injured extent he has been in his of, ary imprison- effect his false property by conduct con ment, any part and economic are losses violation.”). stituting the It well-estab person, to his not distinct injuries compensable lished that not all are injuries to or property his business within RICO, 496-97, 3275, under id. 105 S.Ct. By extending of RICO. Men- previous panel and en banc of our court doza, the majority split creates a with the held that the language of 18 U.S.C. Grogan 1964(c) Eleventh Circuit decision in v. § recovery excluded Platt, (11th Cir.1988), 835 F.2d 844 injuries, Oscar v. Univ. Co-op. Students Roe, Ass’n, (9th Cir.1992) (en Circuit 783, Seventh decision Doe v. 958 965 F.2d 785 (7th Cir.1992), banc) (“[I]t F.2d 763 both of which held is clear that personal RICO.”).2 that pecuniary losses incurred a result not compensable are under 201, post-conviction might Rule Evidence An conviction. observer wonder if appellant decisions rendered in Diaz's crimi there is substance at all to the RICO Appeal case. The by nal California Court af claim asserted Diaz. I Because conclude "attempted Diaz's correctly standing, firmed 1999 conviction for the district court found no murder, aggravated mayhem, grounds need not address other assault affir- likely produce great bodily supported by injury, may means mance that the record. assault weapon, with a semiautomatic discharging holding with enhancements for personal injuries firearm 2. Our Oscar causing great injury, bodily compensable firearm use and is in RICO accord great bodily injury,” circuits, see, infliction Cali with the decisions our sister Supreme e.g., Phanns., fornia Court United States Su Hamm v. Rhone-Poulenc Rorer Inc., 941, preme petitions (8th Cir.1999); Court denied his for further 187 F.3d 954 v. Bast Diaz, Cohen, Sinclair, People PC, 492, v. Cal.App.4th review. See 95 Dunn & F.3d 59 495 695, 799, (2002), (4th Cir.1995); Welch, Cal.Rptr.2d 115 801-02 Libertad v. 53 F.3d 22, (Feb. 2002), 428, (1st Roe, reh’g Cir.1995); 767; denied denied review F.2d at 17, 2002), denied, 907, (Apr. Genty 899, & cert. 537 U.S. Coip., v. Resolution Trust 242, (2002). (3d Cir.1991); 123 S.Ct. 154 L.Ed.2d 183 Grogan, Diaz 918-19 847; 835 F.2d at subsequently Co., Goodrich, petition filed a federal habeas Drake v. B.F. 782 F.2d (6th Cir.1986), the United States District Court for the Cen step as well as California, guidance tral District of analogous which has been with the Moreover, denied the district court. Court. See Holmes Sec. Investor Prot. petition, argued only Corp., that habeas that his 503 U.S. right process (1992) to a fair trial due (interpreting L.Ed.2d 532 RICO and juror; of a Clayton violated removal he did not stating Act in tandem and sufficiency support contest the "[Congress] evidence to used the same [in words action,” Oscar, “personal was not action- apartment of an the tenants (“It against a brought a RICO action building able under RICO. Id. 787-88 seeking cooperative clear, however, to injury student neighboring any plain- [the that to due the students’ for losses recover intangible core an tiffs suffered is at have] neighboring apart in the unruly behavior financial personal injury, not a loss to panel Our en bane Id. at 784-85. ment. personal inju- that a property.”). We held court’s dismissal of the district affirmed actionable, not ry action like nuisance is the tenants claims because plaintiffs’ prop- it flows a “even when from valuable injury or allege an to business did not erty Id. interest.” Id. at cognizable under RICO. property Oscar, then, a claim of false ar- Under rested on two bases. decision 785. Our inju- imprisonment, personal and as a rest First, showing injury held that we at all in a ry, compensable is not financial “proof of concrete loss” requires Okure, See, e.g., v. 488 U.S. action. Owens under RICO unless “not actionable and is 235, 251, 573, 240-41, 102 financial loss to the tangible result[s] [it] (1989) (explaining L.Ed.2d 594 1983 v. (citing Berg Id. 785 First plaintiff.” at (9th imprison- claims arrest and Co., based false 460, F.2d 464 Cir. Ins. 915 State as 1990)). personal ment are “best characterized allege any plaintiffs failed to subject to injury their be and are a state’s property, to actions” pecuniary cause, renters, they own the injuries); did not limitations personal statute of for (7th ed.1999) allege and therefore could property, Dictionary Black’s Law 790 value because of al decline “personal injury” include (defining at neighbors. Id. 786- acts their leged imprisonment”). allegation “false wages, even construed employment Diaz,3 favorably mere- most was best Second, we that the tenants’ concluded of, from, secondary and ly derived effect injury to property; not an their injury was im- alleged false underlying injury for rather, injury asserted was “the circumstance, This prisonment. which annoyance” and personal discomfort which, Mendoza, activities, squarely presents as a not raised nuisance defendants’ Act], injuries, only complaint alleged numerous Clayton 3. Diaz’s can assume and the employment, being, to have the same em- it intended them the relevant one "lost them.”); already given Reiter courts had ployment opportunities, and the 330, 339, 99 S.Ct. Corp., 442 U.S. v. Sonotone compensation with said busi- other associated 2326, (1979) (construing the 60 L.Ed.2d 931 ness, opportunities, employment property” language in or same "business pursue gain- plaintiff was rendered unable holding phrase Clayton "[t]he Act employment defending himself ful while property' also retains restrictive 'business charges unjustly against unjust while in- would, example, significance. for exclude It Depending on how one reads carcerated.” Sedima, suffered.”); injuries also alleged complaint, Diaz the loss of either J„ 509, (Marshall, S.Ct. U.S. 105 3275 incarcerated, or he while he was addition, ("In permits dissenting) the statute ability pursue gainful the loss proper recovery to business or Construing employment, Diaz's or both. person recovery ty. therefore excludes It we must review- generously, as injuries.”); v. Innovative Khurana al cf. see, dismissal, 12(b)(6) e.g., Pegram ing (5th Inc., Sys., Health Care Herdrich, n. S.Ct. 530 U.S. 1997). judges Although three of our cir Cir. (2000), allegation 147 L.Ed.2d 164 too, Oscar, they, agreed that cuit dissented in of actual to raise the issue of loss is sufficient compensable employment. J., (Kleinfeld, at 789 dissent RICO. 965 F.2d ing). (“Had injury to question Congress whether an Id. intended create sufficient for RICO damages remedy federal treble for cases purposes can be from a bodily derived non-com- involving injury, reputa- pensable personal injury. tion, anguish, mental emotional or the like, all will cause some financial Oscar, prior our en banc decision loss, it could have enacted statute refer- Mendoza, directly we did not address ring injury generally, without re- However, in question. Oscar we did language.”) strictive (quoting Morrison v. cite two from approvingly cases sister cir- Labs., Inc., Syntex 101 F.R.D. question by cuits that had answered (D.D.C.1984)). concluding plaintiffs allegations a of employment lost were insufficient Doe, In the Seventh Circuit considered a if they RICO were derived from in case which female had client sued her injuries. non-compensable personal See attorney former divorce under RICO for Oscar, (citing Grogan, 965 F.2d at 786 835 damages stemming from misuse of po- his 846-47); Doe, (citing at id. at 788 958 sition to coerce and intimidate her into 770). F.2d at having sexual with relations him. 958 F.2d at 765-67. plaintiff alleged inju- The In Grogan, estates deceased fed- ry to her property through, business and eral in a agents involved shootout with alia, inter a loss of employment wages, suspects brought criminal an action which cognizable injuries she against suspects seeking damages un- to her property under RICO. Id. at appellants argued der RICO. that “in- 769-70. The disagreed, Seventh Circuit jury to business or property” included the holding the plaintiffs claim of lost damages economic that resulted from the employment pay stemmed from emotional person, to the such as lost employ- distress, personal injury, that “[t]he wages. ment or The Eleventh Circuit con- are, property’ course, terms ‘business or cluded that the surviving relatives could preclude words of limitation which recov- recover RICO for the loss of ery injuries for personal and the pecuniary earning power employment resulting losses incurred therefrom.” Id. at claim, wrongful holding from their death 770. The court concluded: predicate act of killing RICO (murder death) of the officers wrongful Doe blurs the pro- distinction between personal injury, was a not an injury to prietary personal injuries. Con- their property” “business or for purposes trary what Doe to suggest, seems RICO, though even tangible there were whether she can show financial loss consequences economic not, by definition, resulted from does establish that she (“In view, Id. at deaths. our has property inju- suffered business or ordinary meaning phrase, ‘injured 1964(c). of the ry § in within or property’ business injuries excludes Most personal of earnings, —loss injuries, including pecuniary consortium, losses loss of guidance, loss of therefrom.”). The Eleventh Circuit anguish, mental pain and suffering, Grogan Congress concluded that if had to name a few—will pecuni- entail some intended the derivative damages ary consequences.... economic Doe’s loss of like of employment the loss to be recovera- earnings, purchase her a security sys- suit, ble under civil RICO it would not tem her a new attor- have used the ney restrictive “business or are plainly derivatives of her emo- 1964(c). property” language of 18 U.S.C. tional distress —and therefore reflect to their the form of compen- are not n. employment wages. Id. 1168 & under RICO. sable Mendoza, 4.5 now Relying majority on Id. at employ- concludes that Diaz’s claim lost imprisoned II wages when he was ment similarly allege injury sufficient to his Grogan Doe we cited both Because property. Maj. Op. precedent,4 favorably previous our district court relied surprising that the in Mendoza Although we said that “[t]he Oscar, them, conjunction allege[d] an to their employees lack of dismissing wages,” in the form of lost in that court my view district standing. employ- the loss of farm workers’ case majority applied the law. The properly target wages was the direct ment this, then holds that recognizes almost act, predicate designed a scheme dis- vitiates the our decision Mendoza prices by using farm labor drive down However, I have as trict court’s reliance. at 1168-69 illegal workers. reiterate, Men- and now mentioned above (“[T]he allege illegal that the employees face, is not the issue we did raise doza in to de- hiring scheme was divined order ex- properly cannot be distinguishable, and market.”), press normal id. at the labor apply to here. tended (“[T]he in- here was alleged scheme Mendoza, a contract ad- give growers documented farm tended to the In the of the vantage expense a at documented brought who suit asserted workers workers, injury.”). a ... It not that direct was alleging claim the eastern Diaz’s, case, alleged loss had like where Washington grower fruit defendants solely an effect employment workers of was indirect to hire undocumented conspired (his to Diaz false personal injury work- of a depress to the documented in order way, another imprisonment). 1166-67. The farm Stated wages. Id. at ers’ to in Mendoza was the fruit income laborers complaint alleged that workers’ secondary consequence alien or derivative knowingly illegal hired not growers workers, to the farm personal injury un- of a they knew that the workers because scheme to rather the direct result would be forced documented workers Diaz lowering wages. aimed at their lower than that accept wages significantly he) (nor false alleged can that his paid legally to has not would otherwise be to, way related imprisonment that the Id. We held authorized workers. at, or property. sufficiently alleged or directed his business farm plaintiff workers distress, Oscar, compensable they be un- (citing Grogan would not at 786 4. See 965 F.2d holding personal injuries RICO.”). its support of der RICO); compensable id. at 788 are not (Kleinfeld, J., Doe); (citing dissent- id. at 791 panel ''[W]hat stated: 5. The Mendoza holding (citing Grogan that the ing) sufficiently allege injury busi- required to [to pecuniary trans- presence of losses cannot precisely the em- property] is what ness or prop- personal injury injury into an form legal allege entitlement ployees here: (quoting at erty); Berg, also 915 F.2d unhampered schemes business relations concluding Grogan length "[w]e predicate statutes.” prohibited the RICO that, as a Circuit hold follow Eleventh the rule of Mendo- n. 4. context Id. at 1168 law, injury, including emo- matter of give nothing RICO stand- more than does distress, za compensable under sec- is not tional directly employees ing 1964(c) when Even if the directors tion of RICO. alleged illegal hampered scheme. pecuniary losses from emotional had incurred ”); much allegation injury more like that than to ‘business or property’ Oscar, (Kleinfeld, di- Gh’ogan,where the losses see also 965 F.2d at 791 J., rectly type from another of per- dissenting) (citing Grogan prop- stemmed for the injury wrongful sonal death —than like personal injury, osition that “murder is — Mendoza, that in the loss of wages injury where losses property, pecuniary alleged injury been precise flowing wrongful had aim from the death could alleged conduct illegal conspira- transform into cy growers.6 property”). Realizing that Mendoza alone cannot

Ill support holding, majority purports its Doe, majority acknowledges rely The that in describing Men- the Seventh ques- doza did not “elaborate” on the approach Circuit’s the “best-reasoned” bar, tion at its “relegating Maj. majority’s discussion of the one. at 899. Op. The Maj. nature of the to a footnote.” reading reliance is misplaced, its Op. above, explained 899. As I have Doe selective and incorrect. plaintiff The interpreted ap- case should not Doe several different ply, especially doing property, where so creates her business or all of which were split, circuit against runs declared aims found non-compensable by to be the Sev Congress, and is tension with enth Con- Circuit. Seventh af Circuit gress’s RICO. language of Instead of ex- firmed the district court’s dismissal tending Mendoza to the so case some of Doe’s claims because court it, that, simply matter, unlike would follow the Sev- determined as an initial the by enth and holding injuries Eleventh Circuits that alleged injuries were not to a busi claim employment interest, Diaz’s of loss was de- ness or property as determined from, secondary of, rived by Doe, and a effect his applicable the state law. 958 F.2d allegedly imprisonment, any false at (affirming eco- 767-68 the district court’s nomic part losses are of injury Diaz’s dismissal allegation of Doe’s of person, injuries not distinct to his her property busi- business or from her divorce property ness or within of lawyer’s coercive extraction of her sexual (hold- Grogan, RICO. See 835 F.2d at 847 legal services because “sexual labor no has ing Illinois,” that intertwined economic value in conse- and thus Doe’s sexual quences personal injuries of “are so funda- relations with her former attorney was not mentally part personal injuries a of that an injury to property her business or for they RICO). However, should be considered something purposes other also ai- Doe event, 6. ry we sit en standing: banc and are not to "determine whether by panel bound 'by [the decision. See workers’] Mendoza farm was reason of’ 35-1; 35(a); R.App. Fed. growers’ P. alleged Ninth Cir. R. violations.” 301 F.3d Calderon, Thompson panel 120 F.3d 1051 1168. While the discussed causation (9th 1997), 1168-72, grounds, Cir. pages, rev’d other for four id. touched 1489, U.S. upon "injury property” L.Ed.2d 728 (1998). might requirement It make sense to a defer to one in textual sentence and ac- previous panel's persuasive analysis companying footnote. Id. at 1168 & 4. As I n. question posed difficult explained, inju- Diaz’s case but have statement on Mendoza’s that is ry not the case with property which nei to business or can be Mendoza understood pondered ther standing nor ruled on the conspiracy depress wage is in the context aof rates, sues personal raised a claim incidental to but did not its own terms or reason- Further, injury. panel ing in resulting self- reach the case of lost income Mendoza’s "key described task” was the inqui- imprisonment. causation from false claiming plaintiffs Grogan days of she work—her leged that missed have a loss might alleged employ to the defen employment gainful —due intimi recognized under constant harassment ment dant’s (“As Maj. a Op. her. Id. at 766 result state law. at 902 n. applicable dation of and intimi this of harassment can be made of Diaz: pattern critique The same days dation, for several Doe missed work no from We have clue security an enhanced purchase and had to Diaz “employment” alleged what has The system garage.”). lost, her car and any, “unjustly” if while he was that such an incarcerated, Seventh Circuit concluded employ whether insufficient allegation still was ment would considered RICO claim because such bring law, By California or not. a non-compensable personal from stemmed say comparison, can some certain earnings, pur her injury: “Doe’s loss ty employment wages what loss of security system new and her of a chase because, Grogan unlike attorney employment plainly of new are case, plaintiffs we know for a fact her derivative of emotional distress —and gainfully employed: that case were reflect therefore They agents were of the Federal former Id. at compensable under RICO.” narrowly who es Investigation Bureau alia, added) (citing, (emphases inter suspected death battle with caped gun 847). Thus, although Grogan, F.2d at robbers, FBI the estates those bank it, recognize fails in Doe majority who not so fortunate. Gro agents Circuit addressed the same Seventh gan, majority F.2d at should allegation situation we face here—-an quali that FBI would concede stemming from employment wages fy state-protected property interest injury. al non-compensable test, and this under its own undermines he legedly missed work because was false majority’s on the argument, resting incarcerated, ly allegedly Doe missed while valid premise Grogan incorrect work to the continuous threats due involved, alleged, property right state was of her former attor harassment divorce or evoked. ney. plaintiffs alleged injury Both to busi wholly per derived from property ness or IV (false injuries imprisonment sonal distress, in respectively). This emotional Oscar, by quoting In with concluded majority’s pur truth the escapable belies Doe: from the Seventh Circuit’s approval for its ported reliance Doe extension aspects funda- “Perhaps [a the economic Mendoza; in con majority actually the is could, a theo- mentally personal injury] as Doe, just flict as it is conflict with matter, to injuries viewed retical Grogan.7 engaging but property,’ or ‘business a task majority metaphysical speculation such The denies creates a circuit federal Grogan, attempting disguise, philosophers, left to not the split with to best Oscar, (quot- distract, by judiciary.” 965 F.2d at 788 split detract the circuit or from concludes, If, majority wages. the majority correctly acknowledges Doe's ment incorrectly, allegation employment, but injury of lost allege any business did not to her Doe confusedly, injury that "no concludes plaintiff in property, neither has the or then property actually alleged.” or business alleged injury an to his busi- case at bar the injury Maj. Op. at the 900. Doe same property. ness or employ- or as Diaz: lost business 770). Doe, indirect, Following F.2d this ing hypothetical, and derivative today that an logic, allegation I would hold loss of whenever there is a personal per- that flows from a injury person of a who is otherwise em- separate injury sonal ployed.8 wrong theory Yet it is property, but rather is a deriv- imprudent practice for us ignore the part parcel underlying ative the set language Congress. restrictive Id. injury. non-compensable See (“In construing obliged a statute we are (“We F.2d do not hold Grogan, 835 effect, give if possible, every word Con- may never plaintiffs recover under used.”). gress If Diaz’s has suf- of employment opportu- loss RICO ficiently RICO, claim stated a then merely hold that appellants nities. We majority’s decision means that there is cannot recover under RICO for pe- those meaningful “injury prop- that are cuniary properly losses most un- erty” limitation at all. standing The ma- part derstood as of a jority’s view here takes beyond claim.”). otherwise, holding majori- bounds that were set Congress. In- ty opens door to plaintiffs the RICO deed, majority strains to expand RICO lawyer savvy enough to include an allega- well, for no good reason as per- wrongs tion that any degree other lead to sons with asserted like those employment, leaving of lost district courts urged by plain Diaz have a and satisfacto- appellate job panels undesirable ry remedy in bringing a U.S.C. “metaphysical speculation” against which action, asserted, if timely for violation of Doe courts In- Oscar and warned. I rights. their civil respectfully dissent.9 “injury giving stead of to business property” requirement “restrictive” mean- Reiter,

ing, 442 U.S. at

2326, as did the Eleventh Circuit in Gro-

gan Doe, and the Seventh Circuit in

majority’s goes interpretation far to read property” requirement “business statute, likely

out of the as there may be argues Cir.1999). majority my position (9th 8. The cre- While the ma- requirement standing ates a new jority for RICO does not address this RICO by Congress, argu- that was not set requirement, it is not clear that Diaz's com- merely point ment is off the mark. plaint out that sufficiently alleged Any causation. al- some direct to a business or legedly "injurious conduct” of the defendant- required statutory should be to meet Parks, ele- appellee LAPD by Chief was followed Congress, set ment which will be disre- intervening series independent causes garded majority’s theory under the "causing” Parks before employ- Diaz’s loss of almost will cause a when, loss if, prosecutor ment: who decided potential employment. some actual or Diaz; prosecute and how to the state trial case; judge presided jury who over the Diaz; Statutory 9. who U.S.C. convicted and the state courts of 1964(c) require- appeal also includes a subsequently causation that have affirmed his encompasses proximate ment factual and Ayling, conviction. Anderson v. 396 F.3d Cf. causation, 265, including (3d Cir.2005) as a "central (holding ]” that there was element! "direct relation between the asserted insufficient nexus between the injurious alleged." conduct part See and the defendants in be- Holmes, 268-69, 1311; 503 U.S. at cause the defendants’ actions were "filtered Employers through long also Or. intervening Laborers Health & Wel- chain of [a] Morris, Inc., causes”). Philip Trust Fund v. I conclude Because that the district fare Jacoby FELIX, Lee Petitioner- America, UNITED STATES Appellant, Plaintiff-Appellee,

v. MAYLE, Warden, A. Deneice YOUNG, George William Defendant- Respondent-Appellee. Appellant. No. 02-16614. No. 04-30289. Appeals, States Court of United of Appeals, United States Court Ninth Circuit. Ninth Circuit. 18, Aug. 2005. 10, Argued and June Submitted Porter, Public De- M. Federal David 19, Aug. Filed Office, Sacramento, CA, for Peti-

fender’s tioner-Appellant. Chan, of the California

Mathew Office CA, General, Sacramento,

Attorney

Respondent-Appellee. CANBY, FLETCHER, and

Before W.

TALLMAN, Judges. Circuit

ORDER original decision entered matter, reported in this at 379 F.3d

court Supreme reversed Court Felix, Mayle v. States. the United See

— U.S.-, 162 L.Ed.2d S.Ct. (2005). In the man accordance with Court, judgment

date July

of the district court entered respects inis all

AFFIRMED. sufficiently quirement by alleging causation. correctly "injury to business court found no contrast, RICO, majority con- By errs property” within the cluding there is to business compels that there the conclusion addressing property, then errs standing, it also and I need not reach whether standing requirement causation. has otherwise satisfied the re-

Case Details

Case Name: Diaz v. Parks

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 16, 2005

Citation: 420 F.3d 897

Docket Number: 02-56818

Court Abbreviation: 9th Cir.