                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0880n.06

                                            No. 14-1139
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                              Nov 21, 2014
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


CLARENCE OTWORTH,                                 )
                                                  )
        Plaintiff-Appellant,                      )
                                                  )          ON APPEAL FROM THE
v.                                                )          UNITED STATES DISTRICT
                                                  )          COURT FOR THE WESTERN
WANDA BUDNIK, LISA SWANSON,                       )          DISTRICT OF MICHIGAN
PAUL ALLEN BIXLER, F.E. TRONCONE,                 )
P. BRIAN MOORE, PHILLIP C. BODLE,                 )
BARBARA A. IBOLD, JONATHAN                        )                   OPINION
MEADE, AND UNKNOWN PARTIES,                       )
                                                  )
        Defendants-Appellees.                     )
                                                  )


Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Of all the tax avoidance schemes, this

case almost certainly involves one of the strangest. In his complaint, Clarence Otworth alleges

that the Village of Lakewood Club was falsely incorporated in 1967 and has been illegally

assessing taxes on his property ever since. By collecting mortgage payments from him, Otworth

asserts that Fifth Third Bank has been complicit in this illicit collection scheme.

       Otworth brought suit against local officials and Fifth Third employees, alleging violations

of the Racketeer Influenced and Corrupt Organizations Act (RICO), fraud, and breach of

fiduciary duty. Otworth, however, has failed to state a claim upon which relief may be granted.

Accordingly, we AFFIRM the district court’s judgment granting defendants’ motions to dismiss.
No. 14-1139
Otworth v. Budnik et al.


                                       I. BACKGROUND

       According to Otworth, “Lakewood Club is an unincorporated village that has

successfully pretended to be incorporated since June 28, 1967.” R. 1 (Complaint at ¶ 34) (Page

ID #5). By “masquerading as a legitimate Michigan Municipality,” Otworth alleges, Lakewood

Club has been able to levy property taxes illegally against him. Id. at ¶ 36 (Page ID #5). As

Otworth’s mortgagor, Fifth Third Bank is allegedly a co-conspirator in this scheme—it collects

mortgage payments from Otworth, and then directs part of the payment to offset Otworth’s

property taxes. In his complaint, Otworth charges officials from Lakewood Club and employees

at Fifth Third Bank with violations of RICO, fraud, and breach of fiduciary duty. Id. at ¶¶ 210-

229 (Page ID #18-22). The district court granted defendants’ motions to dismiss. See R. 72

(Dist. Ct. Op. & Order 5) (Page ID #343). On appeal, Otworth contends that the district judge

erred in its decision below. In addition, he alleges that the district court failed to take judicial

notice of various Michigan laws, which he believes compels the conclusion that the Village of

Lakewood Club was illegally incorporated. Appellant Br. at 4.

                                        II. DISCUSSION

       We review the district court’s decision to grant defendants’ motions to dismiss de novo.

See Seaton v. TripAdvisor LLC, 728 F.3d 592, 596 (6th Cir. 2013). Under the Supreme Court’s

decisions in Iqbal and Twombly, “a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face’” in order “[t]o survive a motion to

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,



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550 U.S. 544, 570 (2007)). Although “[m]atters outside of the pleadings are not to be considered

by a court in ruling on a 12(b)(6) motion to dismiss,” documents attached “‘to a motion to

dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and

are central to [the plaintiff’s] claim.’” Weiner v. Klais & Co., 108 F.3d 86, 88-89 (6th Cir. 1997)

(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).

Here, Otworth’s claims fail on their face, making dismissal appropriate. “Pro se complaints are

to be held ‘to less stringent standards than formal pleadings drafted by lawyers,’ and should

therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (citation

omitted).

A. RICO

       In order properly to allege a RICO claim, Otworth must show “‘(1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity.’”      Heinrich v. Waiting Angels

Adoption Servs., Inc., 668 F.3d 393, 404 (6th Cir. 2012) (quoting Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 496 (1985)). “A plaintiff must allege each element” in order “to properly state a

claim” upon which relief may be granted. Id. In addition, a plaintiff must show injury to his or

her business or property. See Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556, 562

(6th Cir. 2013) (en banc).

       Otworth’s complaint names two RICO-related “injuries”—physical injury in the form of

a torn aorta from the “emotional stress of being forced to continue to pay a property tax to an

unincorporated village” and money damages “in an amount to be proven at trial.”                R. 1



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(Complaint at ¶¶ 135-36, ¶ 218) (Page ID #12, 20). Yet, as we held in Jackson, physical injuries

are not cognizable under RICO. 731 F.3d at 565. Liberally construed, the request for money

damages could convey a claim for compensatory damages based on the money Otworth was

forced to pay towards property taxes levied by the Village.

       Yet, in order to recover such damages, Otworth must show that either the Village of

Lakewood Club or Fifth Third Bank engaged in a pattern of racketeering activity. Under RICO,

Otworth must show that the defendants committed one of the predicate acts of racketeering, as

identified in 18 U.S.C. § 1961(1)(B). Otworth’s complaint is not altogether clear on this point.

At various places, he alleges theft, see R. 1 (Complaint at ¶ 63) (Page ID #7); unlawful threat of

foreclosure, see id. at ¶ 94 (Page ID #9); mortgage fraud, see id. at ¶ 64 (Page ID #7); unlawful

assessment, collection, and receipt of property taxes, see id. at ¶ 62, 109-10 (Page ID #7, 10);

and mail fraud, see id. at ¶ 155 (Page ID #14). Of these charges, theft, unlawful threat of

foreclosure, and mortgage fraud are not recognized as predicate acts under RICO, and can be

dismissed immediately. 18 U.S.C. § 1961(1)(B); cf. McDonald v. Schencker, 18 F.3d 491, 495-

96 (7th Cir. 1994) (noting that conversion is not a per se predicate act under §1961(1)(B), and

ultimately concluding that the offense conduct “does not constitute a predicate act for purposes

of RICO.”).

       Although the unlawful collection of debt is considered a predicate offense, RICO defines

“unlawful debt” as a debt “incurred or contracted in gambling activity” or “which is

unenforceable under State or Federal law in whole or in part . . . because of the laws relating to



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usury.” 18 U.S.C. § 1961(6). Otworth’s complaint comes within neither category. Similarly,

although mail fraud is also considered a predicate offense, Otworth’s complaint is bare of any

factual allegations that would render his legal claim plausible. In paragraph after paragraph, he

alleges that the defendants engaged in mail fraud and racketeering, stating, for example, that

“Swanson knowingly committed mail fraud every July when she mailed demands for the

payment of property taxes to the people who own land in the Village of Lakewood Club.” R. 1

(Complaint at ¶ 155) (Page ID #14). Yet nowhere in his complaint does Otworth assert facts

sufficient to turn his claim into a viable one.

       Instead, case law indicates that, regardless of any alleged irregularities in Lakewood

Club’s initial incorporation, Otworth cannot now challenge its existence, because the

community’s residents and the State of Michigan have acquiesced in its existence for decades.

See, e.g., Stuart v. Sch. Dist. No. 1 of Vill. of Kalamazoo, 30 Mich. 69, 72-73 (1874) (describing

doctrine of acquiescence and noting that “[i]f every municipality must be subject to be called

into court at any time to defend its original organization and its franchises at the will of any

dissatisfied citizen who may feel disposed to question them, . . . it may very justly be said that

few of our municipalities can be entirely certain of the ground they stand upon, and that any

single person, however honestly inclined, if disposed to be litigious, or over technical and

precise, may have it in his power in many cases to cause infinite trouble, embarrassment, and

mischief.”). Otworth has never rebutted these points. The district court did not, in sum, err in

granting defendants’ motion to dismiss.



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B. Fraud

       Otworth’s fraud claims are of a piece. As the district court pointed out, the elements of a

fraud claim are slightly different in Ohio and Michigan. See R. 61 (Report & Recommendation

at 8-9) (Page ID #261-62). While Lakewood Club is located in Michigan, most of the defendants

are in Ohio. Still, the choice of law is ultimately immaterial, as Otworth’s claim would fail

under both Michigan and Ohio law.

       To succeed on a claim of fraud, both Michigan and Ohio require Otworth to show that the

defendants “knowingly” made a false representation. Roberts v. Saffell, 760 N.W.2d 715, 719

(Mich. Ct. App. 2008); Carter-Jones Lumber Co. v. Denune, 725 N.E.2d 330, 333 (Ohio Ct.

App. 1999). Here, Otworth alleges that the defendants “know[] the Village of Lakewood Club is

not incorporated.” See, e.g., R. 1 (Complaint at ¶ 71) (Page ID #8). Yet simply alleging

knowledge in the circumstances of this case is insufficient. Cf. Fed. R. Civ. P. 9(b). Otworth

must provide a factual basis to show defendants plausibly could have known their statements to

be false—particularly, again, in light of case law which suggests that municipalities can be

incorporated by acquiescence. This he has not done. Otworth’s fraud claims fail on their face.

C. Breach of Fiduciary Duty

       Finally, Otworth alleges breach of fiduciary duty. Yet, in order to proceed, Otworth must

show that the defendants actually owed him a fiduciary duty. Defendants include employees

from Fifth Third Bank, which serves as Otworth’s mortgagor, and local government officials.

Neither group owed Otworth a fiduciary duty. Michigan and Ohio courts have found that lenders



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Otworth v. Budnik et al.


generally do not owe a fiduciary duty to their borrowers. See, e.g., Farm Credit Servs. of

Michigan’s Heartland, P.C.A. v. Weldon, 591 N.W.2d 438, 447 (Mich. Ct. App. 1998); Needham

v. The Provident Bank, 675 N.E.2d 514, 522 (Ohio Ct. App. 1996). Nor does a fiduciary

relationship exist in the levying and collection of taxes—there is simply no expectation of a

relationship here built on trust and confidence.

       To be sure, it is possible that a fiduciary duty might arise in certain circumstances,

depending on the specific facts of the situation and whether “both parties understand that a

special trust or confidence has been reposed.” Stone v. Davis, 419 N.E.2d 1094, 1098 (Ohio

1981). Yet Otworth’s complaint fails to specify any facts sufficient for his claim to rise above a

mere unilateral allegation. The district court correctly granted defendants’ motions to dismiss.

D. Judicial Notice

       On appeal, Otworth argues that the district court erred by failing to take “judicial notice”

of the exhibits he attached to his complaint. We construe his appeal as arguing that the district

court failed to consider the exhibits as part of the pleadings pursuant to Federal Rule of Civil

Procedure 10(c). See, e.g., Thomas v. Publishers Clearing House, Inc., 29 F. App’x 319, 322

(6th Cir. 2002) (“Rule 10(c) allows the incorporation of exhibits or writings attached to a

pleading, Fed. R. Civ. P. 10(c), and ‘makes them an integral part of the pleadings for all

purposes.’”) (quoting 5 Charles Alan Wright & Arthur R. Miller, Fed. Practice & Proc. § 1327

(2d ed. 1990)). However, the exhibits attached were merely copies of relevant statutory and

legal documents that Plaintiff relied on to support his conclusion that the Village is illegally



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incorporated. Because a court considering a motion to dismiss “is not obligated to accept alleged

legal conclusions as true,” the court is not required to draw the same conclusion that Plaintiff

drew from the exhibits. Never Tell Farm, LLC v. Airdrie Stud, Inc., 123 F. App’x 194, 197 (6th

Cir. 2005).   However, whether the district court failed to consider the exhibits is immaterial.

Under Ohio law regarding acquiescence in municipal status, as discussed above, Plaintiff cannot

now challenge the Village’s authority to collect taxes.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment granting

defendants’ motions to dismiss.




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