Commercial Litigation and Arbitration

RICO Plaintiff Can’t Sue for Injury to 3rd Party—Pro Se Can’t Represent Another—Non-Party Can’t Appeal—Awareness of Fraud Bars Mail Fraud Claim—Vague Allegations ≠ RICO Claim—No FRAP 38 Sanctions for Pro Se for Bad Legal Args

Miller v. Pocono Ranch Lands Prop. Owners Ass’n Inc., 2014 U.S. App. LEXIS 3191 (2d Cir. Feb. 21, 2014):

Pro se appellant Marlene Miller appeals the District Court's order dismissing her third amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). For the reasons set forth below, we will affirm the District Court's judgment.

This case concerns a land dispute. In 2010, Miller acquired a parcel of property from her aunt, Maria Grusha. That property is located within the Pocono Ranch Lands Property Owners Association Inc. ("the Association"). Miller's third amended complaint — the operative complaint in this appeal — alleges that the Association, the individuals who control it, and certain Lehman Township officials (collectively, "the defendants") have acted improperly in the following ways: (1) they have failed to recognize that Miller's property is deeded commercial, not residential; (2) they have sent fee and assessment bills to her; (3) they denied her request for a variance that would have allowed her to use the property for commercial purposes; and (4) by placing an easement on the property and refusing to allow her to use the property for commercial purposes, they have effectively taken the property. Based on these allegations, she asserted numerous federal and state claims.


As an initial matter, the Court was correct to hold that Miller, as a pro se plaintiff, is not permitted to represent Grusha in this action. See Lazaridis v. Wehmer, 591 F.3d 666, 672 (3d Cir. 2010). This same prohibition prevents her from representing her late uncle's estate. See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (per curiam). The District Court thus did not err in dismissing those claims that Miller purported to assert on behalf of others, although we stress that the dismissal as to these claims is without prejudice. See, e.g., Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 135 (2d Cir. 2009). Further, since Grusha herself did not participate in the action before the District Court, she is not a proper party in this appeal. See United States v. Stoerr, 695 F.3d 271, 275-76 (3d Cir. 2012). Accordingly, we will consider only Miller's claims.


Finally, Miller claims that the defendants violated the civil RICO statute. See 18 U.S.C. § 1962(c). In order to state a RICO claim, Miller must plausibly allege the following elements: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (footnote omitted). In order to have standing to litigate a civil RICO claim, a plaintiff must show that she suffered an injury to her business or property and that the injury was proximately caused by the defendant's racketeering activities. See, e.g., Maio v. Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000).


There are a few problems with Miller's RICO claim. First, her allegations concerning the defendants' alleged misconduct are vague and conclusory, and are simply insufficient to state a valid RICO claim. See, e.g., Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004). Moreover, Miller has not pleaded that she suffered the requisite injury to her business or property. While Miller alleges that Grusha was injured, a plaintiff cannot sustain a RICO claim based on "harm flowing merely from the misfortunes visited upon a third person by the defendant's acts." Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 521 (3d Cir. 1998) (quotation marks omitted). Further, although Miller contends that the defendants committed mail or wire fraud by sending assessment bills to her, Miller also asserts that she knew, even before she owned the property, that these bills were unwarranted; it does not appear that she has ever made any payment on them. Thus, Miller cannot establish either that the defendants committed fraud or that she suffered an injury. See Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 746-47 (3d Cir. 1996).

Appellees, for their part, ask us to impose damages and costs for the filing of a frivolous appeal under Federal Rule of Appellate Procedure 38. An appeal is deemed frivolous if it is "wholly without merit." Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991). While Rule 38 damages might be appropriate if Miller had filed this appeal with the aid of counsel, "an unrepresented litigant should not be punished with damages for [her] failure to appreciate legal subtleties in legal arguments." Beam v. Bauer, 383 F.3d 106, 109 (3d Cir. 2004). Accordingly, we will not impose damages against Miller; we will, however, tax costs against her under Federal Rule of Appellate Procedure 39(a)(2).

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