Unpublished Disposition, 921 F.2d 281 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1991)

STEPHEN WEEKS COMPANY LTD., Stephen Weeks, Plaintiffs-Appellants,v.The CANNON GROUP, INC., et al, Defendants-Appellees.

No. 89-56022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 1990.Decided Jan. 2, 1991.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


MEMORANDUM* 

Stephen Weeks and Stephen Weeks Company Limited ("Weeks") appeal the dismissal with prejudice under Federal Rule of Civil Procedure 12(b) (6) of a second amended complaint stating Racketeer Influenced and Corrupt Organizations Act ("RICO") claims against The Cannon Group, Cannon Films and individual defendants ("Cannon"). We reverse on the ground the complaint sufficiently alleges violations of RICO.

* Dismissal under Rule 12(b) (6) is appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Jarvis v. Regan, 833 F.2d 149, 151 (9th Cir. 1987). The necessary elements of a civil RICO violation are: (1) a "pattern of racketeering activity," including at least two "predicate acts," (2) a criminal enterprise in which defendants participate, and (3) a causal relationship between the predicate acts and the harm suffered. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); 18 U.S.C. §§ 1961 et seq. Cannon argues Weeks has failed to allege facts in support of requirements (1) and (3). We do not agree.

"The elements of the alleged mail and wire fraud consist of, first, a scheme or artifice devised with specific intent to defraud and, second, use of the United States mails or interstate telephone wires in furtherance thereof." California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1469 (9th Cir. 1987). In his second amended complaint, Weeks alleges as the predicate acts to establish his RICO claim that Cannon made deliberate misstatements concerning the distribution of the film in telephone calls with Weeks, and that Cannon mailed him false royalty statements.

In Sun Savings and Loan Assn. v. Dierdorff, 825 F.2d 187 (9th Cir. 1987), this court held that mailings need not be "an essential part of the scheme" or "occur concurrently with the fraudulent acts" in order to constitute predicate acts for a RICO claim. Id. at 196. "The requirement that the mailings be 'in furtherance' of the scheme 'is satisfied if the completion of the scheme or the prevention of its detection is in some way dependent upon the mailings.' " Id. (quoting United States v. Sampson, 371 U.S. 75, 80 (1962)). In Sun Savings, the mailings were "part of [defendant's] attempts to evade detection...." Sun Savings, 825 F.2d at 196. Weeks alleges the telephone calls and mailings were in furtherance of the scheme to defraud him of monies owed to him by the agreement. This is sufficient to state a RICO claim.

Weeks has also alleged the mail and wire fraud proximately caused his injury. The mail and wire fraud allegedly delayed detection of Cannon's scheme to defraud him of the monies owed.

REVERSED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3