
USCA1 Opinion

	




                                ____________________          Nos. 96-1145               97-1037                                    MALEK AHMED,                                Plaintiff, Appellant,                                         v.                JON ROSENBLATT, CAROL ROSENBLATT, CHARLES GREENWOOD,                  IRWIN LOFT, MORTGAGE GUARANTEE TITLE COMPANY, AND                                   WILLIAM LARSON,                               Defendants, Appellees.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                            Coffin, Senior Circuit Judge,                              and Lynch, Circuit Judge.                                ____________________               Kevin McBurney for appellant.               Melissa E. Darigan for appellee Mortgage Guarantee and Title          Company.               Christopher M. Orton  with whom Francis  X. Flaherty was  on          brief for appellee Charles Greenwood.                                ____________________                                    July 14, 1997                                 ___________________               COFFIN, Senior Circuit Judge.  Malek Ahmed ("Ahmed") appeals          the              district                       court's grant of summary judgment for the defendants,          who he maintains conspired to deprive him of property he owned in          Providence, Rhode Island.1   Specifically,  Ahmed challenges  the          dismissal  of  his claims  under  the  Racketeering  and  Corrupt          Organizations  Act  ("RICO"),  arguing  that  his  complaint  was          sufficiently detailed to establish  fraud when given the  lenient          reading he should have been afforded as a pro se plaintiff.  In a          related                  appeal,                         Ahmed                               contends that the district court erred in not          setting  aside the dismissal  under Rule 60(b).   We affirm  both          judgments.                                      I.  FACTS               We recite the facts in the light most favorable to the          plaintiff, the non-moving party.  See McEvoy Travel Bureau, Inc.          v. Heritage Travel, Inc., 904 F.2d 786, 787 (1st Cir. 1990).           However, we must emphasize that while Ahmed would prefer us to          assess this case and the underlying facts on the basis of the          Amended Complaint he has submitted on appeal, we are limited in               1    The                        original                                named                                      defendants in this case were:  Charles          Greenwood ("Greenwood"), an attorney who represented Ahmed in the          transactions at issue; Irwin Loft ("Loft"), a potential purchaser          and  agent for  and principal  of Capital  Center Associates  Six          ("CCAS"), a corporate entity and co-defendant; William T.  Larson          ("Larson"),                      another                             potential purchaser; Mortgage Guarantee & Title          Company                  ("MGT"), and Jon and Carol Rosenblatt ("the Rosenblatts").          Ahmed's claim against  the Rosenblatts  was dismissed  separately          earlier.                                           -2-          our review to the record below, and specifically to the complaint          that was filed with the district court.2  See Fed. R. App. P. 10.               The facts of this case concern various transactions relating          to property held by Ahmed at 47 Maple Street ("47 Maple") in          Providence.  Ahmed initially entered into a purchase and sale          agreement with one William Larson in October of 1988, contingent          upon Larson obtaining financing.  Ahmed retained defendant          Charles Greenwood to represent him in the transaction, and          received a $5,000 deposit from Larson which he gave to Greenwood          to hold in escrow.  On October 20, 1988, Larson notified Ahmed          that he had been unable to obtain financing; Ahmed asserts that          he then requested Greenwood to return Larson's deposit, but that          this was not done until December 20.                 On December 16, Ahmed entered into a second purchase and          sale agreement for 47 Maple, this time with Irwin Loft/CCAS.3           Ahmed again was represented by Greenwood,4 and he received a          $25,000 deposit from Loft.  On December 19, the first potential          purchaser, Larson, recorded his agreement.  On December 23, Loft          requested that defendant MGT place a lien on Maple Street in          order to secure his deposit.                 2    We therefore consider the amended complaint only in the          context of the Rule 60(b) motion.               3    This contract  contained an extension  of the time  for          performance to August 1, 1989.  Ahmed contends that his signature          on this extension was forged.                 4    Some                         time                              after this meeting, Loft retained Greenwood to          represent him in an unrelated eviction proceeding.                                         -3-               On March 8, 1989, shortly before the closing between Ahmed          and Loft/CCAS, Loft gave Ahmed an additional $30,000.  The          closing itself occurred on March 14, but was followed the next          day by the filing of a lis pendens by Larson, based on his          earlier agreement with Ahmed.  This lien was discovered by MGT,          which informed Ahmed that the closing with Loft would be voided          as a result.  Larson then sued Ahmed for specific performance.                On July 12, Ahmed executed in favor of Loft a number of          documents denominated "Promissory Note Secured by Mortgage,"          relating to 47 Maple and several other properties.  He maintains          that he thought these were just receipts for the moneys he had          received from Loft,5 though Loft contends that the documents were          intended to create security for the money he had given to Ahmed.           Loft unsuccessfully attempted to foreclose on these notes for          non-payment by Ahmed in 1991 and 1992, and then transferred them          to Jon and Carol Rosenblatt on April 17, 1993.  Ahmed          subsequently brought suit on February 17, 1995, alleging that the          above incidents were all part of a scheme concocted by the          defendants to defraud him of his interest in 47 Maple and the          related properties.                 A magistrate judge issued a report and recommendation that          Ahmed's complaint be dismissed, saying that Ahmed had failed to          plead predicate acts, pattern, and enterprise, as required for          the RICO claim.  Judge Pettine subsequently accepted these               5    On                       July                            12,                                1989, Loft gave Ahmed an additional $30,000,          bringing the total amount he had paid to $85,000.                                         -4-          recommendations, stating in his order that Ahmed had failed to          plead sufficient facts to establish instances of mail and wire          fraud, a pattern of racketeering activity, or the existence of an          enterprise affecting interstate commerce.  Judge Pettine further          found that Ahmed was afforded appropriate leniency as a pro se          litigant.  Ahmed sought relief under Rule 60(b), claiming the          district court erred in dismissing his complaint, but the          district court rejected this.  Ahmed appeals both the original          judgment and the denial of his post-judgment motion.                               II.   The First Appeal.               Ahmed raises three claims in his challenge to the district          court's grant of summary judgment.  Our review is plenary.           Feinstein v. Resolution Trust Corp., 942 F.2d 34, 34 (1st Cir.          1991).          A.   Dismissal of the RICO claim.               Ahmed argues that the district court wrongly concluded that          he failed to plead sufficient facts to demonstrate a RICO          violation.  We begin by briefly reviewing the well established          requirements for such a claim.               A RICO plaintiff must allege a pattern of racketeering          activity involving at least two predicate acts, the second of          which must occur within 10 years of the first.  18 U.S.C. S          1961(5).  Predicate acts under this statute are acts indictable          under any one or more of certain specified laws, including the          mail and wire fraud statutes.  See Feinstein, 942 F.2d at 42; see          also McEvoy, 904 F.2d at 788.  Furthermore, a RICO plaintiff must                                         -5-          allege the existence of an enterprise, which the statute defines          as including: "any individual, partnership, corporation,          association, or other legal entity, and any union or group of          individuals associated in fact although not a legal entity."  18          U.S.C. S 1961(4).  Ahmed's complaint fails to establish any of          these three requirements with sufficient detail to survive          summary judgment.                 Turning first to predicate acts, we previously have noted          "[i]t is not enough for a plaintiff to file a RICO action, chant          the statutory mantra, and leave the identification of predicate          acts to the time of trial."  See Feinstein, 942 F.2d  at 42.           Ahmed's pleading contains only the bald assertion that the          defendants (unspecified) used the U.S. mails to fraudulently          convey their interests in Ahmed's properties, that the defendants          (again unspecified) used the U.S. Postal Service by mailing          unspecified materials, and that the defendants used wire          communications.               Despite well settled law in this circuit that RICO pleadings          of mail and wire fraud must satisfy the particularity          requirements of Rule 9(b), see Feinstein, 942 F.2d at 42; New          England Data Services, Inc. v. Becher, 829 F.2d 286, 290 (1st          Cir. 1987),  and that  under 9(b), a pleader must state the time,          place and content of the alleged mail and wire communications          perpetrating that fraud, see Becher, 829 F.2d at 291, Ahmed's          complaint supplies no times, places, or contents.  The record is          similarly devoid of evidence which would support Ahmed's                                         -6-          contentions.  He has therefore failed to show the required          predicate acts.                 Failure to plead predicate acts adequately is enough to sink          his RICO claim.  We nonetheless briefly consider the other RICO          elements.  Following the Supreme Court's lead in H.J., Inc. v.          Northwestern Bell Tel. Co., 492 U.S. 229, 238 (1989), we have          held that a plaintiff seeking to establish a RICO "pattern" must          show that the predicate acts are related and that they amount to          or pose the threat of continued criminal activity (the          "continuity" requirement).  See Feinstein, 942 F.2d at 44; see          also McEvoy, 904 F.2d at 788.                In order to demonstrate relatedness, the predicate acts must          have the same or similar purposes, participants, victims, or          methods, or otherwise be interrelated by distinguishing          characteristics and not be isolated events.  See Feinstein, 942          F.2d at 44; see also Fleet Credit Corp. v. Sion, 893 F.2d 441,          445 (1st Cir. 1990).  Ahmed's minimal assertions do not permit us          to realistically assess the purposes, participants, or methods of          the alleged acts to determine their relatedness.                  In supporting the continuity prong of the pattern          requirement, a plaintiff must show either that the related          predicates "amounted to" continued criminal activity or that          there was, even though the predicate acts did not span a          significant time, a "threat" or realistic prospect of continued          activity in time yet to come.  See Feinstein, 942 F.2d at 45.           Here, absent sufficient allegations of both predicate acts and                                         -7-          relatedness, the "amounted to" threshold has not been reached.           Similarly, the "threat" approach is unavailable; there is no          allegation that, after the attempted foreclosure, such conduct          was an ongoing entity's way of doing business.               Finally, on the enterprise element, Ahmed fails to allege          that the defendants were together part of any legal entity, and          again, the complaint's mere allegation that an enterprise existed          does nothing to support that claim or demonstrate how the          defendants were purportedly associated in fact.  We therefore          must conclude that Ahmed failed to make his case on this point as          well.                 Because Ahmed failed to establish any of the three necessary          elements of a RICO claim, the district court properly dismissed          his complaint.            B.   The Becher second determination.               Ahmed attempts to resuscitate his claim under the "second          determination" approach we adopted in Becher, 829 F.2d at 290.           We said there that Rule 9(b) has a special gloss in the RICO          context in cases where a plaintiff's specific allegations make it          likely that a defendant has used interstate mails or wire, and          where this information is in the exclusive control of the          defendant:  before granting a motion to dismiss, a district court          should make a second determination as to whether further          discovery is warranted and, if so, the plaintiff should be          provided with the opportunity to amend the complaint after the          completion of this discovery.  See id.  Ahmed contends that the                                         -8-          magistrate judge and the district court judge erred in not          conducting such a second determination.  We disagree.               We must stress again that the application of the           second determination is neither automatic, nor of right, for                                Feinstein                                                                Becher          every plaintiff.  See          , 942 F.2d  at 44.  Furthermore,          not every use of the mails or wires in furtherance of an unlawful          scheme to deprive another of property constitutes wire or mail          fraud.  See McEvoy, 904 F.2d at 791.  Ahmed failed to supply          specific allegations which would indicate that critical          information was in the sole possession of the defendants, and          hence that further discovery or the opportunity to amend his          complaint was warranted.6  Ahmed therefore was not entitled to a          Becher second determination.             C.   Pro se leniency.               Finally, Ahmed contends that he should have been accorded          greater leniency due to his pro se status.  Our judicial system          zealously guards the attempts of pro se litigants on their own          behalf.  We are required to construe liberally a pro se complaint          and may affirm its dismissal only if a plaintiff cannot prove any          set of facts entitling him or her to relief.  See Rockwell v.          Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994).  However, pro          se status does not insulate a party from complying with               6    Much                         of                           Ahmed's                                   "support" for his contentions of fraud in          his original complaint consists of conclusory statements  without          any              supporting                         data.                                                             His brief on appeal suffers from a different,          though related,  ailment,  in that  it  attempts to  draw  causal          relationships through positing  rhetorical questions to which  it          then               supplies                       self-serving answers, again with little or no support          from the documents in the record.                                         -9-          procedural and substantive law.  See           United States Dep't. of Commerce          1994).  The policy behind affording pro se plaintiffs liberal          interpretation is that if they present sufficient facts, the          court may intuit the correct cause of action, even if it was                                               Eagle Eye Fishing Corp. v.                                          , 20 F.3d 503, 506 (1st Cir.          imperfectly pled.  This is distinct from the case at hand, in          which the formal elements of the claim were stated without the          requisite supporting facts.               Ahmed's pro se status was clearly recognized by both the          magistrate judge and district court:  the magistrate judge noted          in his report and recommendation that Ahmed was proceeding pro          se, while Judge Pettine's order specifically recognized that          Ahmed was pro se and that his complaint was therefore to be          construed liberally.7  However, Judge Pettine also stated that          even under a liberal interpretation of his complaint, Ahmed          failed to adequately allege the elements of a RICO violation.  We          agree.                       III.   The Second Appeal:  Rule 60(b).               We now turn to Ahmed's claim that the district court erred          in dismissing his claim for relief under Rule 60(b).  We begin          with a short synopsis of the procedural history of this second          part of the appeal.               7    We                       also                            note                                that                                     Ahmed                                           was briefly represented by Arthur          Chatfield, III, who filed a supplemental objection to  Magistrate          Judge Lovegreen's report and recommendation on October 10,  1995,          prior to  Judge Pettine's Order  adopting the  same.   Therefore,          although                   we                     have                          assessed Ahmed's claim under the liberal standards          appropriate to a pro se plaintiff, it appears he was not entirely          bereft of benefits of counsel during this process.                                        -10-               Ahmed's original appellate brief was filed with this court          on June 7, 1996.  Before defendants had filed their briefs, Ahmed          filed a motion to amend his complaint and filed an amended          complaint with the circuit.  We denied his motion, and ordered          that any request to amend be presented to the district court.           Ahmed therefore filed a motion to reopen, reconsider, and rehear          in the district court under Rule 60(b).  At the district court's          request, we remanded to permit the 60(b) motion to go forward,          whilst retaining jurisdiction over the original appeal and          staying proceedings on it.                 The defendants filed timely objections, and a hearing was          held by the magistrate judge, who denied plaintiff's motion on          the ground that he had failed to meet Rule 60(b)'s criteria.  He          specifically found that the amended complaint, though longer and          more detailed than that originally filed by Ahmed, was in          substance the same.  He also found that exceptional circumstances          were not present in this case, and that, due to the amount of          time that had passed since judgment was rendered, it would be          prejudicial to the defendants to assume the burden of defending          the case at that point.   Ahmed objected to this order; Judge          Pettine affirmed it.  Ahmed then appealed that denial to this          circuit, where it was consolidated with his earlier appeal.                 Our review of the denial of a motion under Rule 60(b) is for          abuse of discretion.  See Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir.          1995).  Our review is limited to the denial of the 60(b) motion,          not the merits of the underlying judgment.  See id.  We will find                                        -11-          an abuse of discretion only when we are left with a definite and          firm conviction that the lower court committed a clear error of          judgment in the conclusion it reached when weighing all the          relevant factors.  See United States v. Boch Oldsmobile, Inc.,          909 F.2d 657, 660 (1st Cir. 1990).  Such is not the case here.                 Ahmed raises claims under both Rule 60(b)(1) and 60(b)(6)          and we discuss these separately.            A.   Rule 60(b)(1).               Ahmed first contends that the lower courts committed a          "mistake" under Rule 60(b)(1) in not according him a second          determination under Becher prior to dismissing his complaint          under Rule 12(b)(6).8  As discussed above, Ahmed was not entitled          to a Becher second determination because he failed to allege          specific facts which would require the district court to initiate          additional proceedings.  However, even if this were not the case,          Ahmed's claim on this point would still fail:  in this circuit,          wrongly deciding a point of law is not a "mistake" as we have          defined that term under Rule 60(b)(1).  See Hoult, 57 F.3d at 5;          see also Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.          1971).               8    Rule 60(b)(1) permits a court to relieve a party from a          final judgment, order  or proceeding for "mistake,  inadvertence,          surprise, or excusable neglect...."                                        -12-          B.   Rule 60(b)(6).               Ahmed next claims that he is entitled to relief under Rule                                           Rule 60(b)(6) motions should be          extraordinary relief exist.  See Valley Citizens for a Safe          Environment v. Aldridge, 969 F.2d 1315, 1317 (1st Cir. 1992).           Under the Federal Rules, district courts have broad discretion to          determine whether such circumstances exist.  See id.           Additionally, a 60(b)(6) movant must make a suitable showing that          the movant has a meritorious claim.      Cotto          60(b)(6), the catchall clause.9          granted only where exceptional circumstances justifying                                               See       v. United States,          993 F.2d 274, 280 (1st Cir. 1993).               While we have no doubt that Ahmed has experienced a          disquieting set of reversals and possible breaches of faith with          various parties, he simply has been unable to demonstrate a          colorable claim under RICO.  There has been no showing, beyond          counsel's hyperbolic assertions, that extraordinary circumstances          justifying such exceptional relief exist here.  In this          situation, we are therefore loath to disturb the well reasoned          decision of the lower court which had before it all the documents               9    Rule                         60(b)(6)                                 provides                                          that the court may relieve a party          from a final judgment, order, or proceeding for "any other reason          justifying relief from the operation of the judgment."               Since                     Rule                          60(b)(6) is designed as a catchall, a motion under          it is  appropriate only  when  none of  the first  five  sections          pertain, and section (6) may  not be used as means to  circumvent          those five preceding sections.  See Simon v. Navon, No.  96-2314,          slip op.  at 10  (1st Cir.  June 2,  1997).   Ahmed is  therefore          analytically                       inconsistent                                  in seeking relief under both sections (1)          and              (6),                   for                       if relief is hypothetically appropriate under section          (1), then it should not be sought under section (6) as well.                                        -13-          we have now reviewed, as well as the parties and their counsel,          and as such was in a superior position to make a determination on          this issue.                   As the Supreme Court noted in           v. United States,          340 U.S. 193, 211-12 (1950), in affirming the denial of a 60(b)          motion, "[t]here must be an end to litigation someday...."  That          day has arrived for this particular case.  Both judgments of the          district court are affirmed.10                    MGT maintains in its brief on appeal that Ahmed's  RIC                                             Ackermann               10                                                         O          claim is barred by the four year statute of limitations for  such          actions; since we have affirmed the district court's dismissal of          this               claim                     on the ground that Ahmed did not sufficiently plead the          RICO               claim,                      we do not address the statute of limitations argument.                                        -14-
