                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1268n.06

                                             No. 11-3310

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                               FILED
                                                                                           Dec 12, 2012
JAMES JOHNSON, KATHY FRY, and                       )                                DEBORAH S. HUNT, Clerk
ELLA GEARY, on behalf of themselves                 )
and all others similarly situated,                  )
                                                    )
        Plaintiffs-Appellants,                      )    ON APPEAL FROM THE UNITED
                                                    )    STATES DISTRICT COURT FOR THE
v.                                                  )    SOUTHERN DISTRICT OF OHIO
                                                    )
U. S. NATIONAL BANK ASSOCIATION                     )
and NATIONAL CITY BANK,                             )
                                                    )
        Defendants-Appellees.                       )




        Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge*.


        PER CURIAM. Originally the sole plaintiff in this putative class action, James

Johnson filed a complaint alleging a RICO conspiracy under 18 U.S.C. § 1962(d) by

defendants U. S. National Bank Association and National City Bank. Johnson claimed that

the two banks had maintained accounts for – and conspired with – a commercial customer

that performed “payment processing services” for various telemarketers, with knowledge

that some of those telemarketers were engaged in fraudulent activities, and that he,

Johnson, was a victim of that fraud. The defendants responded with motions to dismiss

under Federal Rule of Civil Procedure 12, and Johnson filed an amended complaint adding


       *
         The Hon. Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 11-3310
Johnson v. U.S. National Bank Association

Kathy Fry as a plaintiff. The defendants again filed Rule 12 motions, which the district

court granted, finding that the amended complaint failed to state a RICO claim against

either defendant. However, the district court also allowed Johnson and Fry to file a second

amended complaint and, some six weeks later, a third amended complaint, adding Ella

Geary as a plaintiff. The amendments represented an effort by the plaintiffs to address the

deficiencies in their pleadings that had caused the district court to dismiss the complaint.


       To no avail. The defendants refiled their motions to dismiss, and the district court

again ordered a dismissal, this time with prejudice. In a careful and well-analyzed

discussion of the pleadings under the applicable standards announced in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the

district court noted that the plaintiffs had not alleged that the defendants had themselves

engaged in fraudulent activity, but claimed instead that bank officials “knew about the

operation of th[e] criminal enterprise based on several indicators, or <red flags,’ of

fraudulent telemarketing.” The district court ultimately held that such an allegation did not

constitute a plausible RICO claim because it did not give rise to an inference that the

defendants actually knew of the fraudulent activities and agreed to conspire with those

engaged in unlawful conduct through a RICO enterprise. The district court also found that

the plaintiffs had failed to plead facts plausibly alleging a pattern of predicate acts in

furtherance of the RICO enterprise.




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No. 11-3310
Johnson v. U.S. National Bank Association

       Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in dismissing

the complaint. Because the reasons why judgment should be entered for the defendants

have been fully articulated by the district court, the issuance of a detailed opinion by this

court would be duplicative and would serve no useful purpose. Accordingly, we affirm the

judgment of the district court based upon the reasoning set out by that court in its order

dated March 22, 2011. In addition, we have examined the additional citations forwarded

by the plaintiffs under Federal Rule of Appellate Procedure 28(j) and find that they are

either not persuasive, in the case of Reyes v. Zion First National Bank, 2012 WL 947139,

No. 10-345 (E.D. Pa. Mar. 21, 2012), or distinguishable on the facts, in the case of

Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783 (6th Cir. 2012).


       AFFIRMED.




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