ARTSEN v. HARTE (2025)

ORDER

THIS CAUSE came before the Court upon Defendants K. Philip Harte, Esq., United States Fire Insurance Company, Adalberto Vigil, and Elena Vigil-Farinas, Esq.’s (collectively, “Defendants”) Motion to Dismiss Plaintiff's Second Amended Complaint. (“Motion” or “Mot.”) (ECF No. 20). Plaintiff filed a Response in opposition to the Motion (“Resp.”) (ECF No. 21), and Defendants filed a Reply in support of the Motion (ECF No. 22). The Motion is now ripe for review. As set forth below, the Court GRANTS the Motion.

I. BACKGROUND 1

Plaintiff Dionne Artsen (“Plaintiff”) is an individual residing in Georgia. SAC ¶ 1. Defendant K. Philip Harte, Esq. (“Harte”) is an assistant state attorney in the Monroe County State Attorney's Office. Id. ¶ 4. Defendant Adalberto Vigil (“Vigil”) is a licensed bail bondsman in the state of Florida. Id. ¶ 5. Defendant Elena Vigil-Farinas, Esq. (“Vigil-Farinas”) is an attorney licensed to practice law in the state of Florida and is Vigil's sister. Id. ¶¶ 6, 18. Defendant United States Fire Insurance Company (“USFI”) is a foreign profit corporation with its principal place of business in New Jersey. Id. ¶ 7.

The instant Action stems from the criminal cases, State of Florida vs. Julius Handsome Hepburn, Case No. 24-CF-000180-AM (“First Criminal Matter”) and State of Florida vs. Julius Handsome Hepburn and Dionne Artsen, Case No. 24-CF-000957-AM (“Second Criminal Matter”). Id. ¶ 13. In the First Criminal Matter, Julius Hepburn (“Hepburn” or “Mr. Hepburn”) was arrested on February 17, 2024, and Plaintiff, a long-time friend of Hepburn, put up Plaintiff's house as collateral for Hepburn's bond. Id. ¶¶ 14–15. After Hepburn was arrested in the Second Criminal Matter on August 21, 2024, Plaintiff, at the request of “Vigil, et al.,” paid a new bond premium in the amount of $20,500 on August 23, 2024. Id. ¶¶ 16–17. Plaintiff's house continued to be encumbered as collateral. Id. ¶ 17. Subsequently, Plaintiff alleges that Hepburn was “re-arrested on September 4, 2024, and was not bondable due to the First Criminal Matter.” Id.

Plaintiff alleges that Harte, Vigil, and Vigil-Farinas, acting as a “Cabal,” advised Plaintiff “that it was appropriate and legally permissible to issue a second bond, despite the fact that Mr. Hepburn's first bond release was revoked.” Id. ¶ 19. Plaintiff further alleges that prior to posting the second bond, the Cabal requested Plaintiff “to have the funds ‘cleared’ through a ‘Nebbia Hearing’ to ascertain that the funds were acceptable under Florida Law.” Id. Plaintiff alleges that Vigil-Farinas created a fraudulent document, under the direction of Harte and Vigil, entitled “ ‘[Mr. Hepburn's] Petition to Release Nebbia Hold[,]’ ” and that Harte signed off on the release of the Nebbia hold. Id. ¶¶ 20, 24, 26. Plaintiff further alleges that Harte, Vigil, and Vigil-Farinas prepared a “bogus ‘Court Order[ ]’ ” that approved the Nebbia release, ordered the sheriff to accept the bond, the premium of which was paid by Plaintiff, and ordered the sheriff to release Hepburn from custody. Id. ¶¶ 28, 33. Plaintiff alleges that the Monroe County Jail, upon receipt of the fraudulent documents from “the State Attorney's email[,]” accepted the documents, “allowed the bond to be posted in the Second Criminal Matter[,]” and released Hepburn. Id. ¶¶ 38–39.

Next, Plaintiff alleges that the Cabal, in an attempt to mask its unlawful actions, “created a bogus hearing on the bond issue, which did not occur, but resulted in someone from the Clerk's Office removing all of [Plaintiff's] filings in the Second Criminal Matter.” Id. ¶ 44. As such, Plaintiff alleges that “with the removal of [the] aforementioned documents, it is as if the Cabal's illegality never occurred[.]” Id. ¶ 48. Plaintiff has now demanded the return of his $20,500 bond payment from Harte, Vigil, and Vigil-Farinas. Id. ¶ 52.

On February 24, 2025, Plaintiff filed the instant suit against Defendants. See (ECF No. 1). Thereafter, Plaintiff filed his SAC asserting the following claims against Defendants: (1) violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act against Harte, Vigil, and Vigil-Farinas (Count I); (2) civil theft against Vigil (Count II); (3) fraud against Harte, Vigil, and Vigil-Farinas (Count III); and (4) negligence against USFI (Count IV). See generally SAC. Now, before the Court is Defendants’ Motion. See generally Mot. Therein, Defendants contend that Counts I and IV of the SAC should be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), Counts II and III should be dismissed for failure to include a required party pursuant to Federal Rule of Civil Procedure 12(b)(7), and that if the Court dismisses Count I then it should dismiss the entire Action for lack of subject matter jurisdiction. See generally id.

II. LEGAL STANDARD

A. Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). This requirement “give[s] the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and alterations omitted). The court takes the plaintiff's factual allegations as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).

A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers “a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

B. Subject Matter Jurisdiction

The Court is obligated to inquire into the question of its jurisdiction over cases brought before it. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level.”); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.”). The Eleventh Circuit maintains two forms of attack on subject matter jurisdiction: factual and facial. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). A factual attack challenges the existence of jurisdiction “in fact, irrespective of the pleadings, and matters outside the pleadings ․ [I]n a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not attach, and the court is free to weigh the evidence.” Id. (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Thus, in a factual attack on jurisdiction, the plaintiff bears the burden of proving to the court that jurisdiction exists. OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002).

Where the court determines subject matter jurisdiction is lacking, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also Ruhrgas AG, 526 U.S. at 577, 119 S.Ct. 1563 (“Without jurisdiction the court cannot proceed at all in any case.”) (citations and annotations omitted). Thus, the dismissal of all claims upon which a case's federal jurisdiction is premised creates grounds for dismissal of the action altogether. See, e.g., Bonilla v. Librati, 631 F. Supp. 3d 1237, 1242 (S.D. Fla. 2022); Barry v. Wells Fargo Clearing Servs., LLC, No. 1:21-CV-01150, 2022 WL 1144717, at *2 (N.D. Ga. Mar. 8, 2022), appeal dismissed, No. 22-11134-AA, 2022 WL 2443539 (11th Cir. June 1, 2022).

III. DISCUSSION

In the Motion, Defendants first argue that Count I should be dismissed with prejudice for failure to state a claim because Plaintiff: (1) fails to allege that Defendants committed at least two predicate acts; (2) fails to allege continuity; (3) fails to articulate legally recognized damages; and (4) amendment would be futile. Mot. at 2–7. Second, Defendants argue that Counts II and III should be dismissed for failure to add an indispensable party, Hepburn, whose absence will subject Defendants to a risk of inconsistent obligations. Id. at 8–11. Third, Defendants argue that Count III should be dismissed for failure to state a claim for negligence. Id. at 11–14. Fourth, Defendants argue that if the Court dismisses Count I, the only count alleging a federal question, then the Court should dismiss the entire Action for lack of subject matter jurisdiction. Id. at 14–15.

In response, Plaintiff first argues that he has stated a claim for Count I because the SAC: (1) pleads at least two predicate acts of wire fraud; (2) alleges open-ended continuity; and (3) alleges that it is unknown what each Defendant received from the scheme. Resp. at 3–7. Second, Plaintiff argues that Hepburn is not an indispensable party because he was not part of the Cabal and was not involved in the alleged scheme. Id. at 7–8. Third, Plaintiff argues that the SAC pleads “a claim [for] negligence against USFIC because USFIC knew or should have known Florida's bail laws, the purpose of Nebbia hearings[,] and the consequences of bond revocation because of new criminal charges[,] yet [USFIC] allowed the Enterprise/Cabal's shenanigans to continue.” Id. at 9. Fourth, Plaintiff argues that because Count I survives Defendants’ Motion, Defendants’ “subject matter jurisdiction challenge fails.” Id.

A. Failure to State a Claim: Count I

In Count I, Plaintiff asserts a RICO claim against Harte, Vigil, and Vigil-Farinas based on their allegedly “corrupt enterprise to scam and wrongfully deprive Plaintiff ․ of his funds, [and] cripple and deny Plaintiff ․ access to the Court[.]” SAC at 1. Plaintiff specifically alleges that Harte, Vigil, and Vigil-Farinas “committed a pattern of at least two distinct but related RICO predicate acts under 18 U.S.C. § 1962[,]” and those “distinct but related RICO predicate acts include, but are not limited to, wire fraud in violation of 18 U.S.C. § 1343, and obstruction of justice in violation of 18 U.S.C. § 1503[.]” Id. ¶ 59.

In order to establish a federal civil RICO violation under 18 U.S.C. § 1962(a)-(d), “the plaintiff must satisfy four elements of proof: ‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’ ” Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 (11th Cir. 2006) (quoting Jones v. Childers, 18 F.3d 899, 910 (11th Cir. 1994)). In addition to the aforementioned substantive elements, a party bringing a federal civil RICO claim must also satisfy the requirements of 18 U.S.C. § 1964(c), which requires the party to show (1) requisite injury to business or property, and (2) that such injury was by reason of the substantive RICO violation(s). Id. at 1283. To establish the third and fourth elements, a pattern of racketeering activity, a plaintiff must allege at least two qualifying predicate acts, each of which must constitute a violation of one of the state or federal laws described in 18 U.S.C. § 1961(1). Spataru v. Fed. Aviation Admin., No. 4:20-CV-10087-KMM, 2020 WL 5525049, at *3 (S.D. Fla. Aug. 13, 2020). Further, the Eleventh Circuit has held that “a pattern of racketeering activity requires proof of something beyond the two predicate acts themselves. That something is the threat of continuing racketeering activity.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1265 (11th Cir. 2004) (emphasis in original) (internal quotations omitted).

In the SAC, Plaintiff alleges that the two predicate acts “include, but are not limited to, wire fraud in violation of 18 U.S.C. § 1343, and obstruction of justice in violation of 18 U.S.C. § 1503[.]” SAC ¶ 59. However, in the Response, Plaintiff concedes Defendants’ argument that “obstruction of justice claims stemming from state court proceedings cannot serve as a predicate act under RICO.” Resp. at 3–5. Instead, Plaintiff argues that he has still sufficiently alleged two or more predicate acts “because he has alleged multiple instances of wire fraud[.]” Id.; see 18 U.S.C. § 1961(1). In the Reply, Defendants state that “for the purposes of a motion to dismiss ․ the wire from [Plaintiff] to ․ Vigil was done from a Bahamian bank to a Monroe County, Florida bank, which, if considered wire fraud, would constitute interstate wire fraud—sufficient to allege a single predicate act under Federal RICO.” Reply at 5. However, Defendants argue that Plaintiff fails to allege a second predicate act of wire fraud because he fails to allege that any other communications were transmitted in interstate or foreign commerce, as required to state a claim for wire fraud pursuant to the wire fraud statute, 18 U.S.C. § 1343. Id. at 6.

For this case, the Court need only address whether Plaintiff has alleged a pattern of racketeering activity. First, the Court notes that Plaintiff's fraud allegations are subject to the heightened pleading standard under Fed. R. Civ. P. 9(b). See Crawford's Auto Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 945 F.3d 1150, 1158–59 (11th Cir. 2019) (analyzing RICO claims for wire fraud under Rule 9(b)); Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (same). Rule 9(b) “requires that in alleging fraud or mistake, a party must state with particularity circumstances constituting the fraud or mistake.” Am. Dental Ass'n, 605 F.3d at 1291 (internal quotation marks and citation omitted). In so doing, a plaintiff “must allege: (1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [p]laintiff; and (4) what the defendants gained by the alleged fraud.” Id. (citation omitted). The plaintiff must also allege facts with respect to each defendant's participation in the fraud. Id.

Next, “[a] person commits wire fraud when they (1) intentionally participate in a scheme to defraud another of money or property and (2) use the wires in furtherance of that scheme.” Crawford's Auto Ctr., Inc. v., 945 F.3d at 1158 (citing Am. Dental Ass'n, 605 F.3d at 1290). The wire fraud statute reads in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses ․ transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000.00 or imprisoned not more than five years, or both.

18 U.S.C. § 1343.

Plaintiff argues that he has plead at last two predicate acts of wire fraud. Resp. at 3–4. For support, Plaintiff points the Court to paragraphs 17, 19, 33, 36–39 in the SAC:

Plaintiff ․ was again requested by ․ Vigil, et al., to pay a new bond premium for the Second Criminal Matter, which he did on August 23, 2024, in the amount of $20,500.00. Plaintiff[’s] ․ house continued to be encumbered as collateral. However, Mr. Hepburn's freedom was short-lived as he was rearrested on September 4, 2024, and was not bondable due to the First Criminal Matter.

[T]he Cabal, in a very organized, criminal manner, advised Plaintiff ․ that it was appropriate and legally permissible to issue a second bond, despite the fact that Mr. Hepburn's first bond release was revoked. However, prior to posting the second bond, certain members of the well organized Cabal requested Plaintiff ․ to have the funds ‘cleared’ through a ‘Nebbia Hearing’ to ascertain that the funds were acceptable under Florida law.

Additionally, ․ Vigil-Farinas ․ was a part of the Cabal as a preparer of the fraudulent documents, see, Exhibits 1 and 2, that led to the bogus ‘Court Order.’ A copy of the email from ․ Vigil-Farinas ․ to ․ Harte ․ and other Cabal Members, regarding her creation o[f] the documents and ․ Harte[’s] ․ approval of same, is attached hereto as Exhibit 3.

The fraudulent Stipulated Order includes the signature of ․ Harte ․ who elevated himself to ‘Judge’ by his signature and approved the Nebbia, with ․ [Vigil] as the named surety. See, Exhibit 2. However, the Cabal reached a dilemma in its scheme to defraud Plaintiff ․ when the Jail refused to accept the document to release Mr. Hepburn, as the document was not official. This information of this wrongdoing was obtained by a public records request under Florida Statute § 119 to the Monroe County Jail, see attached ‘Composite Exhibit 4’ [which] consists of documents demonstrating the following: a. The public records request under Florida Statute § 119 to Monroe County Detention Center on behalf of [Plaintiff]. b. Response from Monroe County Detention Center providing the State Attorney's transmittal of the ‘Order’ and c. The transmittal from the State Attorney's Office to the Jail. In order for the fraudulent Stipulated Order, see, Exhibit 2, to appear official without it being official, certain members of the Cabal and others used the State Attorney's email, obviously without authority, to portray to the Jail that it was “official” when it is clearly bogus. See, Exhibit 4c. Upon receipt of said fraudulent documents via email, directly from the State Attorney's Office, the Jail accepted the same and allowed the bond to be posted in the Second Criminal Matter, releasing Mr. Hepburn.

Id. (quoting SAC ¶¶ 17, 19, 33, 36–39).

From what the Court can tell, the SAC alleges the following communications: “Vigil, et al.”/the Cabal requesting that Plaintiff pay a new bond premium for the Second Criminal Matter sometime between August 21, 2024 and August 23, 2024, and advising Plaintiff it was appropriate to issue a second bond, SAC ¶¶ 17, 19; Plaintiff paying the bond premium of $20,500 on August 23, 2024, id. ¶ 17; “certain members of the well-organized Cabal[’s]” request to Plaintiff to have the funds cleared through a Nebbia Hearing, id. ¶ 19; Vigil-Farinas creating the fraudulent documents titled “[Mr. Hepburn's] Petition to Release Nebbia Hold[ ]” and “States Stipulated Order Granting Bond Nebbia Approval[,]” id. ¶¶ 20, 33; an email from Vigil-Farinas to Harte “and other Cabal Members,” regarding Vigil-Farinas's creation of the documents and Harte's approval of the same, id. ¶ 33; an email from the Monroe County State Attorney's Office, sent by “certain members of the Cabal and others[,]” to the jail transmitting the fraudulent documents, id. ¶ 38.²

First, the Court notes that Defendants are correct that allegations of “intrastate communications must be disregarded when considering whether federal wire fraud occurred.” See Reply at 2. “To violate the wire fraud statute, [18 U.S.C. § 1343], a communication must be transmitted ‘in interstate or foreign commerce.’ ” Nero, Sr. v. Mayan Mainstreet Inv 1 LLC, No. 614CV1363ORL40TBS, 2014 WL 12610668, at *17 (M.D. Fla. Nov. 13, 2014) (citing 18 U.S.C. § 1343), report and recommendation adopted sub nom. Nero v. Mayan Mainstreet Inv 1 LLC, No. 614CV1363ORL40TBS, 2014 WL 12610670 (M.D. Fla. Dec. 10, 2014), aff'd, 645 F. App'x 864 (11th Cir. 2016) (dismissing civil RICO claim predicated on wire fraud where “all of the parties resid[ed] in Florida, and there [was] no indication that any of the filings [the plaintiff] complain[ed] about w[ere] transmitted across state lines”); see also Dennis v. General Imaging, Inc., 918 F.2d 496, 511 (5th Cir. 1990) (dismissing civil RICO claim where the plaintiff “d[id] not allege that any of the thirty one telephone calls he cites as separate incidents of wire fraud were made interstate and there is no evidence to support a finding that any of them were interstate calls”); Smith v. Ayres, 845 F.2d 1360, 1366 (5th Cir. 1988) (“As several courts have recognized, the statute requires that the wire communication cross state lines.”). As such, the communications alleged by Plaintiff regarding Defendants’ creation of the fraudulent documents, emails to one another, and emails to the jail, do not support a claim for wire fraud because Defendants all reside in Florida, and Plaintiff has not alleged, nor is there any evidence, that these communications crossed state lines. See Nero, Sr., 2014 WL 12610668, at *17; see generally SAC.

However, as discussed above, Plaintiff also alleges that he had the following communications with Defendants: “Vigil, et al.”/the Cabal requesting that Plaintiff pay a new bond premium for the Second Criminal Matter sometime between August 21, 2024 and August 23, 2024, and advising Plaintiff it was appropriate to issue a second bond, SAC ¶¶ 17, 19; Plaintiff paying the bond premium of $20,500 on August 23, 2024, id. ¶ 17; and “certain members of the well-organized Cabal[’s]” request to Plaintiff to have the funds cleared through a Nebbia Hearing, id. ¶ 19. Viewing these allegations in the light most favorable to Plaintiff, these communications could be interstate communications since Plaintiff resides in Georgia and Defendants reside in Florida. See id. ¶¶ 1, 4–6. Nevertheless, even accepting that these were all communications made in interstate commerce and accepting that Plaintiff paying the bond premium of $20,500 on August 23, 2024 constitutes a single predicate act of wire fraud, Plaintiff fails to allege a second predicate act of wire fraud based on the other communications because Plaintiff fails to “state with particularity the circumstances constituting [the alleged] fraud[,]” as required under Rule 9(b). See Am. Dental Ass'n, 605 F.3d at 1291.

As stated above, a plaintiff satisfies Rule 9(b) if the complaint alleges: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [p]laintiff; and (4) what the defendants gained by the alleged fraud.” Id. (citation omitted). The plaintiff must also allege facts with respect to each defendant's participation in the fraud. Id. Here, as to the aforementioned alleged communications between Defendants and Plaintiff, Plaintiff does not include the time, place, or form of the statements, i.e. whether, for example, the statements were made over the phone or over email. See SAC ¶¶ 17, 19. Plaintiff also does not identify which Defendant is responsible for making each statement. See id. Accordingly, the SAC fails to allege with particularity at least two predicate acts to support Plaintiff's RICO claim. As such, Count I of the SAC is subject to dismissal.

The Court will next address Defendants’ argument that Count I is also subject to dismissal due to Plaintiff's failure to allege continuity, as required to establish a pattern of racketeering activity. See Mot. at 4–7. The Court finds that Count I is independently subject to dismissal due to Plaintiff's failure to allege the required continuity element of his RICO claim. See Ferrell v. Durbin, 311 F. App'x 253, 256 (11th Cir. 2009) (“Although Appellants very likely failed to allege facts sufficient to satisfy several of the necessary elements, we focus in particular on the continuity requirement. With respect to that requirement, it is clear that Appellants’ allegations are insufficient.”). As detailed above, the Eleventh Circuit has held that “a ‘pattern of racketeering’ activity requires proof of something beyond the two predicate acts themselves. That something is the threat of continuing racketeering activity.” Jackson v. BellSouth Telecommunications, 372 F.3d at 1265 (emphasis in original) (internal quotations omitted). “The continuity element of a pattern of racketeering activity is crucial to a valid RICO claim in order to ensure that the crime alleged is the sort of offense that RICO is designed to address—one that is part of a pattern of ongoing, continuing criminality or that involves criminality that promises to continue into the future.” Id. “There are two types of continuity that may establish a federal RICO claim: closed-end continuity and open-ended continuity.” Daedalus Cap. LLC v. Vinecombe, No. 8:12-CV-2533-T-35TBM, 2014 WL 11412838, at *7 (M.D. Fla. Sept. 29, 2014), aff'd, 625 F. App'x 973 (11th Cir. 2015).

Defendants argue that Plaintiff has failed to allege either closed-ended continuity or open-ended continuity. Mot. at 4–7. In response, Plaintiff argues that he has “pled open-ended continuity[.]” Resp. at 5–7. As such, the Court focuses its analysis on whether Plaintiff has sufficiently alleged open-ended continuity.

“Open-ended continuity can be established by showing that the misrepresentations were part of the ‘regular way of doing business’ or threaten repetition in the future.” Ferrell v. Durbin, 311 F. App'x at 257–58. However, “single schemes with a specific objective and a natural ending point can almost never present a threat of continuing racketeering activity.” Id. Further, “courts do ‘not look favorably on relying on many instances of mail and wire fraud to form a pattern[.]’ ” Kawasaki Kisen Kaisha, Ltd. v. All City Used Auto Parts, Inc., No. 3:07-CV-86-HES-MCR, 2008 WL 11433249, at *3 (M.D. Fla. Feb. 19, 2008) (quoting Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 781 (7th Cir. 1994)). “[T]he general jurisprudence is ‘replete with examples of failed attempts to dress up state fraud claims as suave RICO cases using the expansive definitions of mail and wire fraud.’ ” Id. (quoting Uniroyal Goodrich Tire Co. v. Mutual Trading Co., 63 F.3d 516, 523 (7th Cir. 1995)).

Here, the SAC fails to plead open-ended continuity. Rather, it pleads a single scheme with a discrete goal to deny Plaintiff of his funds and access to the courts. See generally SAC. The SAC does not any plead facts that plausibly allege that Defendants have made this kind of scheme their regular way of doing business, nor does it plausibly allege that Defendants would, or could, repeat this scheme in the future against Plaintiff or anyone else. See generally id. In support of his theory of open-ended continuity, Plaintiff argues that the SAC “establishes [that] both the racketeering acts themselves include a specific threat of repetition extended indefinitely into the future and that the predicate acts or offenses are part of an ongoing entity's regular way of doing business.” Resp. at 5–6 (emphasis in original). Plaintiff further avers that the SAC:

[P]roffers [that] the Enterprise/Cabal's scheme that was used to defraud [Plaintiff] could be effortlessly repeated in any instance where a criminal defendant is re-arrested after being released on bond. The preparation of a fraudulent petition to release Nebbia hold, a stipulated order granting bond Nebbia approval, the signing off of the phony stipulated order granting bond Nebbia approval, and submission of the fraudulent documents to the jail via e-mail from the State Attorney's Office could occur in situations where an uninformed individual, unaware that a criminal defendant is denied bond following their re-arrest under Florida Statutes § 903.0471, is both willing and able to pay the bail bond premium after the defendant is taken into custody again.

Id. at 6.

As factual support for this argument, Plaintiff only cites to paragraphs 34 and 35 of the SAC, which, in relevant part, state, “[i]t is currently unknown wh[at] each member of the Cabal has received from this criminal scheme[,]” and “[t]t is further currently unknown if and how many times certain members of the Cabal repeated this scam on other victims.” SAC ¶¶ 34–35. However, a conclusory allegation that an act has potentially occurred multiple times in the past or has the possibility to continue in the future is insufficient to establish open-ended continuity. See Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 138 (11th Cir. 2011) (“An open-ended continuity cannot be shown by conclusory allegations that once begun, the alleged misconduct threatens to continue into the future.”); Birmingham v. Doe, No. 21-CV-23472, 2022 WL 18134962, at *23 (S.D. Fla. Dec. 6, 2022), report and recommendation adopted sub nom. Birmingham v. ROFX.net, No. 21-23472-CIV, 2023 WL 112308 (S.D. Fla. Jan. 5, 2023) (“A conclusory allegation that acts will continue until the defendants are prevented from continuing to commit such acts is insufficient to establish open-ended continuity.”); see also Ashcroft, 129 S.Ct. at 1949 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

Upon review of the SAC, viewing it in the light most favorable to Plaintiff, there are no allegations that support Plaintiff's contention that this was Defendants’ “regular way of doing business” or that the “scheme that was used to defraud [Plaintiff] could be effortlessly repeated in any instance[.]” See Resp. at 5–6; see generally SAC. Plaintiff fails to allege any actual facts showing Defendants engaged in the type of conduct complained of with any other person or otherwise show Defendants engaged in this behavior in the ordinary course of business.³ See generally SAC. As such, Count I is independently subject to dismissal due to Plaintiff's failure to establish a pattern of racketeering based on a theory of open-ended continuity.

Accordingly, Count I of the SAC is dismissed for failure to state a claim. Further, the Court dismisses Count I with prejudice as Plaintiff has already had opportunity to amend his complaint and further leave to amend would be futile. Next, the Court turns to Defendants’ fourth argument that if the Court dismisses Count I, the only count alleging a federal question, then the Court should dismiss the entire Action for lack of subject matter jurisdiction. See Mot. at 14–15.

B. Lack of Subject Matter Jurisdiction: Remaining Counts

As noted, Defendants argue that if Count I is dismissed, the Court should then dismiss the entire Action for lack of subject matter jurisdiction. Id. In response, Plaintiff argues that because Count I should survive Defendants’ Motion, Defendants’ subject matter jurisdiction challenge fails. Resp. at 9.

Under 28 U.S.C. § 1367, this Court has supplemental jurisdiction “in any civil action of which the district courts have original jurisdiction ․ over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However, the Court is afforded the discretion to decline to exercise supplemental jurisdiction over such a claim where the Court has “dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3); Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1350 (11th Cir. 1998). As the Supreme Court has consistently recognized, “pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). The Eleventh Circuit encourages district courts to dismiss any remaining state claims when all federal claims are dismissed prior to trial. See, e.g., Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (per curiam). Dismissal of state claims should usually be done without prejudice so that a plaintiff may seek relief in state court. See Vibe Micro, Inc., 878 F.3d at 1296 (citing Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999)).

Here, since the Court has dismissed Plaintiff's federal claim, no federal claims remain and no other basis for jurisdiction applies. Accordingly, at this juncture, the Court declines to exercise supplemental jurisdiction over the remaining claims and will dismiss those claims without prejudice. See Bonilla v. Librati, 631 F. Supp. 3d at 1248.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that the Motion to Dismiss (ECF No. 20) is GRANTED. Count I of the Second Amended Complaint (ECF No. 15) is DISMISSED WITH PREJUDICE. Counts II, III, and IV of the Second Amended Complaint are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is INSTRUCTED to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of July, 2025.

FOOTNOTES

2.   As referenced above, Defendants, in their Reply, concede that Plaintiff may have sufficiently alleged a “single predicate act under Federal RICO[ ]” because “the wire from [Plaintiff] to ․ Vigil [of the $20,5000] was done from a Bahamian bank to a Monroe County, Florida bank, which, if considered wire fraud, would constitute interstate wire fraud[.]” Reply at 5 (emphasis in original). The Court is confused by this statement for two reasons. First, nowhere in the SAC or its attachments does the Court see a mention or reference to a Bahamian bank. See generally SAC. Second, Defendants seem to be implying that to state a claim for wire fraud, a plaintiff must specifically allege an interstate wire transfer of funds. If that is indeed what Defendants are implying, they are incorrect. See, e.g., U.S. v. Patterson, 534 F.2d 1113, 1114 (5th Cir. 1976) (stating that a phone call suffices as a wire communication for purposes of RICO claims); U.S. v. Roemmele, No. 04-60206-CR, 2011 WL 4625357, at *11 (S.D. Fla. Aug. 3, 2011), report and recommendation adopted, No. 04-60206-CR, 2011 WL 4625348 (S.D. Fla. Oct. 3, 2011) (“Courts have long held that internet communications, wire transfers, telephonic communications, and facsimile transfers are all governed by the wire fraud statute.”) (citing cases); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (the Eleventh Circuit adopting as binding precedent all the decisions the former Fifth Circuit handed down prior to the close of business on September 30, 1981). However, regardless of whether Plaintiff has sufficiently alleged a single predicate act constituting wire fraud, the Court agrees with Defendants’ overarching argument that Plaintiff has failed to allege at least two acts constituting wire fraud. Although, the Court comes to that conclusion based in part on reasons not discussed by Defendants, as discussed below.

3.   Moreover, the threat of continuity is undermined by other allegations in the SAC that this scheme was only able to occur based on “the inaction and/or deliberate ignorance of what was transpiring” by additional parties, not named in this Action, including the circuit court judge in the Sixteenth Judicial Circuit in and for Monroe County, the Clerk's Office of the Sixteenth Judicial Circuit in and for Monroe County, the Monroe County State Attorney's Office, and the Monroe County Jail. See SAC ¶ 61.

K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE