                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0234n.06

                                             No. 12-5766

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

CONNIE MATHEWS,                                     )
                                                    )
                                                                                   FILED
                                                                                Mar 05, 2013
       Plaintiff-Appellant,                         )
                                                                         DEBORAH S. HUNT, Clerk
                                                    )
v.                                                  )
                                                    )
PODS ENTERPRISES, INC.; MEMPHIS                     )       ON APPEAL FROM THE
PORTABLE STORAGE, dba PODS;                         )       UNITED STATES DISTRICT
JUDSON KROEZE,                                      )       COURT FOR THE WESTERN
                                                    )       DISTRICT OF TENNESSEE
       Defendants-Appellees,                        )
                                                    )
and                                                 )
                                                    )
MANNSDALE MANAGEMENT GROUP, et                      )
al.,                                                )
                                                    )
       Defendants.




       BEFORE: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.


       PER CURIAM. Connie Mathews, a Tennessee citizen, appeals through counsel a district

court order dismissing her complaint alleging a Racketeer Influenced and Corrupt Organizations Act

(RICO) claim, as well as state law claims.

       Seeking two million dollars in damages, Mathews filed a complaint and amended complaint

(R.E. 26) against a number of defendants alleged to be involved in the ownership and administration

of PODS Enterprises, Inc. The complaint alleged that Mathews stored property worth $310,000 with

the defendants in 2006. She did not pay the storage fees, and her property was auctioned for
No. 12-5766
Mathews v. PODS Enters., et al.

approximately one percent of that amount. The money was used to pay the fees, with the balance

remitted to Mathews. Mathews alleged that the defendants violated RICO by engaging in mail and

wire fraud when they communicated with her by mail and telephone without informing her of the

date, time, and location of the auction of her property. She also alleged that defendants violated

RICO by engaging in money laundering, and committed several state torts. Mathews claimed that

defendants had committed RICO violations in auctioning the property of other customers as well.

       Service was not perfected against several of the named defendants. Those who were served

moved to dismiss the complaint (R.E. 29), and Mathews filed a response (R.E. 35). The district

court granted defendants’ motion and dismissed the RICO claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) (R.E. 36 & 37). The district court declined to exercise supplemental jurisdiction

over the state law claims, which were dismissed without prejudice. Mathews filed a motion to alter

the judgment (R.E. 38), which the district court denied (R.E. 40).

       On appeal, Mathews reasserts the claims of mail and wire fraud underlying the alleged RICO

violation. She has abandoned her claims of money laundering and has not appealed the dismissal

of her state-law claims. She argues that the district court made an improper factual finding that the

defendants incorrectly informed her of the location of the auction. The district court apparently

based this statement on a finding in a similar state court action that Mathews filed but eventually

voluntarily dismissed. The state court found that defendants’ advertisement of the auction

inadvertently listed the wrong location, and that people who attended that location were directed to

the correct place (R.E. 20, Ex. B). Mathews does not acknowledge having seen the advertisement.

       We review the dismissal of a complaint under Rule 12(b)(6) de novo; the dismissal will be

upheld where the complaint does not state a claim that is plausible on its face. Brown v. Cassens

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Mathews v. PODS Enters., et al.

Transp. Co., 675 F.3d 946, 953 (6th Cir. 2012). In order to plead fraud, as required by Federal Rule

of Civil Procedure 9(b), a complaint must allege the existence of a fraudulent scheme and the

fraudulent intent of the participants in the scheme, among other elements. Heinrich v. Waiting

Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012). The complaint in this case lacked

any plausible claim that defendants were engaged in a fraudulent scheme or acted with fraudulent

intent. Defendants auctioned the stored property in order to recover the unpaid storage fees, and

remitted the balance to Mathews. There was no plausible allegation that defendants acted with intent

to defraud. See id. at 404. The argument that the district court made an improper finding of fact that

defendants misinformed Mathews of the location of the auction is irrelevant. Even accepting the

complaint’s allegation that Mathews was never informed of the location of the auction, the complaint

failed to set forth a plausible claim of mail or wire fraud to support the claim of a RICO violation.

       Accordingly, the district court’s dismissal of the complaint is affirmed.




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