Unpublished Disposition, 940 F.2d 667 (9th Cir. 1991)

MEMORANDUM^* 

Former Mayfair Hotel tenant Tilden Chapman and representatives of Ewtim Atanasow, a deceased tenant, appeal the district court's grant of summary judgment and various other pre-trial motion rulings. Chapman and Atanasow sued their former attorneys, the owners of the Mayfair, and a court clerk, alleging conspiracy to interfere with their civil rights in violation of 42 U.S.C. § 1985; conspiracy against the rights of citizens in violation of 18 U.S.C. § 241; various violations of the Racketeer Influencing and Corrupt Organizations Act, 18 U.S.C. § 1961 et. seq.; breach of contract; attorney malpractice; and intentional infliction of emotional distress. We affirm.

BACKGROUND

The instant suit can be traced back to a state court eviction action brought by the Mayfair Hotel owners¹  against Chapman, Atanasow, and other tenants of the hotel. In response, the tenants sued the owners for wrongful eviction and won a verdict of more than one million dollars in compensatory and punitive damages. Apparently the tenants did not pay their legal bills promptly, so their trial lawyers²  brought a state court collection action against them. The tenants cross-complained, essentially alleging that the lawyers conspired with the hotel owners to prevent the tenants from collecting their judgment. Ultimately, the fee dispute was settled except for a slander claim. That claim also eventually was settled.

Chapman and Atanasow subsequently filed in federal court the suit at issue in this appeal, essentially alleging that the trial lawyers, the post-trial lawyers who represented them in the fee dispute,³  and a court clerk⁴  conspired with the hotel owners to deter Chapman and Atanasow from pursuing their legal rights and collecting their judgment.

After Chapman and Atanasow filed their complaint, the district court entered a default judgment for failure to answer against post-trial lawyer Capata. The court then dismissed the complaint with leave to amend. After Chapman and Atanasow filed a first amended complaint, the court vacated the default judgment. The court then dismissed the first amended complaint with leave to amend as to the federal claims. Chapman and Atanasow filed a second amended complaint. The court dismissed with prejudice the claims against the post-trial lawyers, with leave to amend only the RICO claims against the remaining parties. Chapman and Atanasow filed a third amended, and finally a fourth amended complaint. They sought to file a fifth amended complaint to add claims of treason and murder, but their request was denied. Their request to join the state court slander action was also denied, as was their motion to disqualify Judge Letts. Finally, the court granted summary judgment in favor of the trial lawyers and the hotel owners. The court denied Chapman and Atanasow's motion for reconsideration. Chapman and Atanasow now appeal.

DISCUSSION

We begin by reviewing the summary judgment as all of the other issues are peripheral. To establish a RICO violation, a plaintiff must prove "(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). Chapman and Atanasow have offered no proof of the alleged "illicit Hong Kong enterprise." Similarly, they have submitted no affidavits adequately establishing a genuine issue of material fact of a conspiracy to "deter [ ] plaintiffs from from adjudication of their legal actions." Thus, there is no genuine issue of material fact as to the existence of an enterprise, a necessary element of a RICO action. Chapman and Atanasow have wholly failed in their burden of bringing forth evidence to support their lengthy, wild allegations which include those of extortion, murder, bribery of a state court judge, and numerous, interwoven conspiracies. Thus, the summary judgment is affirmed.

We will summarily address the remaining issues. The district court's decision to set aside the default judgment against Capata was not an abuse of discretion. Mitchell v. Los Angeles Community College District, 861 F.2d 198, 202 (9th Cir.), cert. denied, 490 U.S. 1081 (1989).

Based our de novo review of the following three issues, we affirm (1) the court's dismissal of the original complaint without leave to amend the state claims; (2) the court's dismissal of the second amended complaint without leave to amend the Sec. 1985 conspiracy claim; and (3) the court's dismissal with prejudice of the second amended complaint with prejudice as to the post-trial lawyers.

Because we are informed by the trial lawyers and the hotel owners that the state court slander case was settled, the issue of whether the court erred by denying the request to join the slander case is moot. Doremus v. Board of Education, 342 U.S. 429, 433 (1952). The district court did not abuse its discretion in denying Chapman and Atanasow's request to file a fifth amended complaint, Ferris v. Santa Clara County, 891 F.2d 715, 718-19 (9th Cir. 1989), cert. denied, 111 S. Ct. 141 (1990). We affirm the denial of the motion to disqualify Judge Letts as no adequate grounds were set forth. Finally, we affirm the denial of the motion for reconsideration.

CONCLUSION

We have carefully reviewed the record and have found no evidence to support Chapman's claims. The judgment is affirmed.⁵ 

AFFIRMED.