                            NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                            SEP 23 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ESTATE OF JOHNSON CLARK and                       No.   12-17064
ESTATE OF LOUISE H. CLARK,
                                                  D.C. No. 3:12-cv-00137-CRB
              Plaintiffs,

 and                                              MEMORANDUM*

PETER CARSON CLARK,

              Plaintiff-Appellant,

 v.

WILLIAM HORWICH; et al.,

              Defendants-Appellees.



ESTATE OF JOHNSON CLARK;                         No.    12-17577
ESTATE OF LOUISE H. CLARK,
                                                 D.C. No. 3:12-cv-00137- CRB
              Plaintiffs,

 and

PETER CARSON CLARK,

              Plaintiff - Appellee,

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 v.

WILLIAM HORWICH; et al.,

              Defendants - Appellants,

 and

JON BERKLEY MANAGEMENT, INC.;
et al.,

              Defendants.


                     Appeal from the United States District Court
                       for the Northern District of California
                     Charles R. Breyer, District Judge, Presiding

                              Submitted March 1, 2016**
                               San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Plaintiff Peter Clark appeals the district court’s dismissal of his amended

complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       The district court did not err by dismissing Clark’s claims that arose before he

filed for Chapter 11 bankruptcy. “[T]he bankruptcy trustee [has] the exclusive right

to sue on behalf of the estate.” Estate of Spirtos v. One San Bernardino County



         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                           2
Superior Court Case, 443 F.3d 1172, 1176 (9th Cir. 2006). Clark does not have

standing to bring those claims.

      Clark’s only post-petition claim is his RICO claim, and the district court did

not err by dismissing it. To prove a RICO claim, Clark had to show: “(1) conduct

(2) of an enterprise (3) through a pattern (4) of racketeering activity (known as

‘predicate acts’) (5) causing injury to plaintiff’s business or property.” United Bhd.

of Carpenters & Joiners of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d

834, 837 (9th Cir. 2014). Clark alleged that Defendants engaged in various types of

mail fraud, wire fraud, and bankruptcy fraud. These charges can serve as RICO

predicate acts, but here, Clark did not provide sufficient factual allegations “to raise

a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). Because Clark did not properly allege any predicate acts by

Defendants, and because the district court correctly decided that any amendments

would be futile, the district court did not err by dismissing his RICO claim.

      The district court properly denied Clark’s motion to compel arbitration under

the Federal Arbitration Act (FAA). “[T]he FAA does not itself confer jurisdiction

on federal district courts over actions to compel arbitration or to confirm or vacate

arbitration awards, nor does it create a federal cause of action giving rise to federal

question jurisdiction under 28 U.S.C. § 1331.” United States v. Park Place


                                            3
Associates, Ltd., 563 F.3d 907, 918 (9th Cir. 2009) (citation omitted). Having

dismissed Clark’s RICO claim—his only basis for federal jurisdiction—the district

court did not err by denying Clark’s motion to compel arbitration. For the same

reason, the district court did not err in dismissing Clark’s state law claims without

prejudice.

      Last, the district court did not abuse its discretion by denying Defendants’

motion for a prefiling order. A prefiling order is an “extreme remedy” that should

be used “only in exigent circumstances,” De Long v. Hennessey, 912 F.2d 1144,

1147 (9th Cir. 1990), and we cannot say that the decision not to impose one in the

proceedings below was an abuse of discretion.

      AFFIRMED.




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