                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       July 20, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    FRED M AR K B UR NETT;
    CA RO L AN N B UR NETT,

                Plaintiffs-Appellants,
                                                         No. 07-1000
    v.                                          (D.C. No. 06-cv-564-REB-CB S)
                                                           (D . Colo.)
    ROBERT L. AM REIN, an individual;
    KAREN L. AM REIN, an individual;
    B. DOUG GEORGE, an individual;
    DANIEL P. POW ELL, an individual,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




         Plaintiffs-appellants Fred M ark Burnett and Carol Ann Burnett (Burnetts)

appeal from the district court’s order granting defendants-appellees Robert L.

Amrein, Karen L. Amrein (Amreins), B. Doug George and Daniel P. Powell’s




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
motions to dismiss and/or for summary judgment that dismissed their complaint

with prejudice, and its order denying the Burnetts’ motion to vacate various

judgments of the Colorado state courts. W e have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

      Following the Burnetts’ unsuccessful defense of a state-court law suit

concerning their violation of protective covenants and an award of attorney fees

and costs in favor of the A mreins, they filed suit in federal district court against

the Amreins and their lawyers, M essrs. George and Powell. In the suit, they

sought damages under 18 U.S.C. § 1964(a), (c) of the Racketeer Influenced and

Corrupt Organizations Act (RICO) arising from defendants’ efforts to collect the

judgment for fees and costs. Specifically, the Burnetts claimed that the collection

efforts violated 18 U.S.C. §§ 1341, 1962(b). In a separate motion, they asked the

court to vacate the various adverse state-court judgments as void.

      The magistrate judge recommended that the Burnetts’ second amended

com plaint be dismissed w ith prejudice and their motion to vacate be denied. On

de novo review, the district court overruled the Burnetts’ objections, adopted the

recommendation and dismissed the action with prejudice.

      Dismissals under Fed. R. Civ. P. 9(b) for failure to plead fraud with

particularity and Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief are

reviewed de novo on appeal. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236

(10th Cir. 2000) (Rule 9(b)); Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d

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1226, 1236 (10th Cir. 1999) (Rule 12(b)(6)). A de novo standard of review also

applies to the denial of a motion to vacate a judgment as void under Rule

60(b)(4). Wilmer v. Bd. of County Com m’rs, 69 F.3d 406, 409 (10th Cir. 1995).

W e likewise review a grant of summary judgment de novo. Simms v. Okla. ex rel.

Dep’t of M ental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999).

         Applying a de novo standard of review, we affirm the judgment for

substantially the same reasons set forth in the magistrate judge’s well-reasoned

recommendation dated September 12, 2006, and adopted by the district court in

its order of October 3, 2006. Our analysis begins w ith the Burnetts’ failure to

properly plead a violation of § 1962(b). “To state a RICO claim, a plaintiff must

allege that the defendant violated the substantive RICO statute, 18 U.S.C. § 1962,

by setting forth four elements: (1) conduct (2) of an enterprise (3) through a

pattern (4) of racketeering activity.” Deck v. Engineered Laminates, 349 F.3d

1253, 1256-57 (10th Cir. 2003) (internal quotation marks omitted). The

magistrate judge found, and we agree, that “[a]t best, the [second amended

complaint] alleges that George and Powell attempted to collect a judgment that

the Burnetts allege is invalid.” R., Vol. II, Doc. 99 at 9. The Burnetts have failed

to cite, and we unaw are of any authority to suggest that these allegations support

the existence of an “enterprise” within the meaning of RICO.




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      Next, “[t]he elements of federal mail fraud as defined in 18 U.S.C. § 1341

are (1) a scheme or artifice to defraud or obtain property by means of false or

fraudulent pretenses, representations, or promises, (2) an intent to defraud, and

(3) use of the mails to execute the scheme.” United States v. Welch, 327 F.3d

1081, 1104 (10th Cir. 2003). The particularity requirements of Rule 9(b) apply

“to RICO predicate acts based on fraud.” Cayman Exploration Corp. v. United

Gas Pipe Line Co., 873 F.2d 1357, 1362 (10th Cir. 1989). “Thus, a complaint

alleging fraud [must] set forth the time, place and contents of the false

representation, the identity of the party making the false statements and the

consequences thereof.” Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir. 2006)

(internal quotation marks omitted), cert. denied, 127 S. Ct. 1334 (2007). W e

agree with the magistrate’s conclusion that the Burnetts’ second amended

complaint failed to plead the alleged fraud with the particularity required for

RICO claims, and instead contained nothing more than general allegations that

certain unknown mailings were false, without ever identifying the alleged falsity.

      Last, the district court correctly denied the Burnetts’ motion to vacate the

state-court judgments. As the court held, Fed. R. Civ. P. 60(b) “does not

authorize a federal district court to relieve the Burnetts of a judgment entered in

state court,” R., Vol. II, Doc. 99 at 19, because any such action would violate the

Rooker-Feldman doctrine. See Bolden v. City of Topeka, 441 F.3d 1129, 1139




                                          -4-
(10th Cir. 2006) (holding that the Rooker-Feldman doctrine “prohibits federal

suits that amount to appeals of state court judgments.”).

      The judgment is A FFIR MED. 1



                                               ENTERED FOR THE COURT
                                               PER CURIAM




1
  W e construe the Burnetts’ motion to disqualify every member of this court as a
motion pursuant to 28 U.S.C. § 455. Because they have not demonstrated any
valid grounds for disqualification, we deny the motion.

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