                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0025n.06
                           Filed: January 13, 2009

                                            No. 08-5346

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


LARRY S. MELTON, JOHN MELTON,                             )
AMERICAN HOME FINANCIAL SERVICES, et al.,                 )
                                                          )
       Plaintiffs-Appellants,                             )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE WESTERN
                                                          )        DISTRICT OF TENNESSEE
HAROLD WALDEN BLANKENSHIP, FRANKIE K.                     )
STANFILL, DIANE TUCKER, RICHARD                           )
WALKER, et al.,                                           )
                                                          )
       Defendants-Appellees.                              )
                                                          )



BEFORE: GUY and GRIFFIN, Circuit Judges; and WATSON, District Judge.*

       GRIFFIN, Circuit Judge.

       Plaintiffs filed a civil RICO claim against defendants, arguing that defendants conspired

against them in a previous suit by maliciously filing a counterclaim that lacked a factual basis.

Because we conclude that the remedy for this alleged injury lies in state law claims of malicious

prosecution and abuse of process, and because neither of these acts are RICO predicates, we affirm

the district court’s judgment dismissing all claims as to all defendants.

                                                 I.


       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5346
Melton, et al. v. Blankenship, et al.


       The present dispute arose from two separate lawsuits: Melton v. Bank of Lexington, et al.,

02-1152 (W.D. Tenn. filed June 21, 2002) (hereinafter “Melton I”), a civil action; and In re Harold

Walden Blankenship, 06-11119 (Bankr. W.D. Tenn. filed May 23, 2006). Plaintiffs in the case at

bar were plaintiffs in Melton I. Harold Walden Blankenship, one of the defendants in Melton I, was

represented by Kevin Carter, Frankie K. Stanfill, and Bradley Kirk, attorneys affiliated with the law

firm of Carter, Stanfill & Kirk, PLLC. The three attorneys and the law firm were defendants

themselves in Melton I and are defendants in this action (“Stanfill Defendants”).

       The present appeal is in reaction to a counterclaim that Blankenship filed against the Melton

I plaintiffs. Plaintiffs argue that defendant Carter informed Blankenship that the Melton I plaintiffs

intended to settle their claims with all of the Melton I defendants, except for those involving

Blankenship, Blankenship’s father, and the Stanfill Defendants, and that Blankenship needed to file

a counterclaim to prevent this settlement from occurring. Plaintiffs allege that Blankenship and the

Stanfill Defendants “conspired, planned and endeavored to cause harm to the Plaintiffs’ property and

business by bringing a counterclaim in [Melton I] . . . without probable cause and based on false

representations in an attempt to deceive and defraud the Plaintiffs herein through the federal court

system.” Plaintiffs note that defendants “used the United States mails and wires in their scheme to

deceive and defraud . . . .” Plaintiffs allege that the Stanfill Defendants used “Blankenship, to pursue

their own purposes with the aid and assistance of Defendant, Diane Tucker.” The counterclaim was

filed on August 5, 2004. Plaintiffs argue further that on May 23, 2006, the Stanfill Defendants, in

cooperation with defendants Ken Walker, Richard Walker, and Walker, Walker & Walker, PLC


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(“Walker Defendants”), filed a bankruptcy petition in Blankenship’s name that contained fraudulent

allegations. The heart of plaintiffs’ complaint is that they relied to their detriment on the fraudulent

representations contained in the counterclaim and bankruptcy petition. Blankenship, through his

attorney Ken Walker, voluntarily withdrew the bankruptcy petition.

       Blankenship attempted to end his participation in the lawsuit during July 2006, when he

spoke with Johnny and Larry Melton and drafted an affidavit stating that he filed the counterclaim

because the Stanfill Defendants convinced him that it was the only way to protect his interests and

prevent the Melton I plaintiffs from settling with the remaining Melton I defendants. Blankenship

stated that the Stanfill Defendants “were my attorneys and I depended on them for the proper legal

advice in dealing with this litigation.” The district court eventually terminated the countersuit in

favor of the Melton I plaintiffs.

       Following the district court’s dismissal of the counterclaim, plaintiffs filed the instant action

in the United States District Court for the Western District of Tennessee against Blankenship, the

Stanfill Defendants, the Walker Defendants, and John Does 1-5. Plaintiffs allege that defendants

“conspired, planned and endeavored to cause harm to the Plaintiffs’ property and business” and that

they utilized the United States mails and wires as part of this scheme. The four-count complaint

alleges that: (1) defendants engaged in a pattern of racketeering activity in violation of the Racketeer

Influence and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c); (2) defendants conspired

to engage in racketeering activity in violation of RICO, 18 U.S.C. § 1962(d); (3) defendants filed a




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Melton, et al. v. Blankenship, et al.


“frivolous, baseless case against them” causing them damages and amounting to malicious

prosecution; and (4) defendants’ actions constituted the common law tort of abuse of process.

       Defendant Diane Tucker filed a motion to dismiss for failure to state a claim upon which

relief could be granted. Plaintiffs responded, and the Stanfill Defendants filed a reply joining the

motion. The district court granted defendants’ motion to dismiss, dismissed plaintiffs’ RICO claims,

and declined to exercise jurisdiction over defendants’ remaining state law claims. Plaintiffs timely

appealed.

                                                 II.

       Plaintiffs argue that the district court erred in ruling that they failed to state a RICO claim.

We review de novo a district court’s grant of a motion to dismiss. Doe v. Bredesen, 507 F.3d 998,

1002 (citing United States v. Bowman, 173 F.3d 595, 597 (6th Cir. 1999)). A complaint requires a

“short and plain statement of the claim” showing that the pleader is entitled to relief. Conley v.

Gibson, 355 U.S. 41, 47 (1957). However, “a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65

(2007) (citation omitted). When considering a motion to dismiss, courts “are not bound to accept

as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286

(1986) (citations omitted).

       To state a civil RICO claim, a plaintiff must establish four elements: “(1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity.” Moon v. Harrison Piping Supply, 465


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No. 08-5346
Melton, et al. v. Blankenship, et al.


F.3d 719, 723 (6th Cir. 2006) (quoting Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496

(1985)). Plaintiffs must establish that defendants “engaged in a ‘pattern of racketeering activity’

consisting of at least two predicate acts of racketeering activity occurring within a ten-year period.”

Id. (quoting 18 U.S.C. § 1961(5)). Specifically, plaintiffs must establish a predicate act enumerated

in 18 U.S.C. § 1961(1). Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d

315, 322 (6th Cir. 1999).

        Plaintiffs contend that defendants engaged in “fraud in association with litigation, mail and

wire fraud, bankruptcy fraud, and tampering with a witness.” However, a closer examination of

plaintiffs’ arguments reveals that plaintiffs are in effect alleging that defendants engaged in malicious

prosecution and abuse of process, and that they used the mails and wires to do so by filing

Blankenship’s counterclaim and bankruptcy petition. Rather than deny this, plaintiffs argue that the

case law “is clear that, in certain circumstances, an attorney and/or law firm can violate the mail and

wire fraud statutes by perpetrating frauds involving litigation.” To support their argument, plaintiffs

rely on cases from other circuits in which the attorneys involved did far more than simply render

legal advice and file documents in the course of litigation.

        For example, in plaintiffs’ lead case, Handeen v. Lemaire, 112 F.3d 1339 (8th Cir. 1997), the

defendant law firm went well beyond merely offering legal advice or filing legal documents. In

Handeen, the defendant law firm conspired with the other defendants to mail checks to a defendant’s

parents so the parents could mail the checks to the Bankruptcy Trustee and hide the fact that the




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No. 08-5346
Melton, et al. v. Blankenship, et al.


defendant had moved out of state to accept a higher paying job. Id. at 1344. Clearly, the attorneys

in Handeen were involved in a level of fraud that far exceeded zealous advocacy.

       The court in Handeen was careful to note that it would be “extremely difficult to fathom any

scenario in which an attorney might expose himself to RICO liability by offering conventional advice

to a client or performing ordinary legal tasks (that is, by acting like an attorney).” Id. at 1349. The

Eighth Circuit distinguished between criminal enterprises and the attorneys who represent them,

holding that “[f]urnishing a client with ordinary professional assistance, even when the client

happens to be a RICO enterprise, will not normally rise to the level of participation sufficient” to

establish RICO liability. Id. at 1348. In the instant case, the district court ruled that “[d]efendants

provided legal advice only to Blankenship, and those efforts and subsequent filings can not be

considered RICO predicate acts.” We agree. To the extent that defendants were overly zealous or

malicious, the remedy lies in a state law action for malicious prosecution or abuse of process, not

in a federal RICO claim. Plaintiffs must assert predicate acts described in 18 U.S.C. § 1961(1), and

they have not done so. Plaintiffs’ assertion of predicate acts in their complaint is merely a “legal

conclusion couched as a factual allegation,” and thus not sufficient to survive a motion to dismiss.

Papasan, 478 U.S. at 286.

       Plaintiffs argue correctly that they have established conduct which states a claim for

malicious prosecution and abuse of process under state law. But the district court did not hold

otherwise; it merely refused to exercise supplemental jurisdiction over these state law claims because

it had dismissed the claims that formed the basis for its original jurisdiction. It was not an error to


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Melton, et al. v. Blankenship, et al.


do so. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (stating that, “[i]t has

consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s

right.”). Thus, we affirm the dismissal of the RICO claims.

                                                 III.

       Defendant Tucker filed the motion to dismiss, and the Stanfill Defendants joined it.

Plaintiffs argue that the district court erred by dismissing the claims against all of the defendants,

rather than limiting its order to those defendants who moved to dismiss. Specifically, defendants

assert that the district court erred by dismissing the claims against the nonmoving defendants:

Blankenship, the Walker Defendants,1 and John Does 1-5. The district court dismissed the John Doe

defendants in a separate order, holding that “[t]he allegations made against the Doe defendants are

the same that were made against the other defendants and which have now been dismissed. Thus,

the Doe defendants would have been dismissed in that order if they had been already [] named.”

Plaintiffs do not cite any authority for the proposition that a district court errs by dismissing

nonmoving defendants when it determines that the complaint has failed to state a claim.

       Plaintiffs have alleged the same RICO claims against all of the parties. Logically, if they

have failed to state a RICO claim regarding the moving parties, they have also failed to state a claim

against the nonmoving parties. It is true that a “district court should proceed with great caution when


       1
        The district court did not specifically mention Blankenship or the Walker Defendants in its
order granting the motion to dismiss; it simply ruled that “[d]efendants’ motions to dismiss are
GRANTED, and Plaintiffs’ claims under RICO are hereby dismissed.” However, in issuing its order
dismissing the John Doe defendants, the district court clarified that it had dismissed “all defendants,
except the Doe defendants.” (Emphasis added.)

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No. 08-5346
Melton, et al. v. Blankenship, et al.


dismissing a claim sua sponte.” Boddie v. Am. Broad. Cos., 731 F.2d 333, 336 n.2 (6th Cir. 1984).

However, the district court did not sua sponte dismiss plaintiffs’ claim; it sua sponte dismissed the

nonmoving parties who were in the same factual and procedural posture as the moving parties.

Plaintiffs had the opportunity to argue the sufficiency of their claim against the defendants; the

failure of Blankenship and the Walker Defendants to file their own motion to dismiss does not cure

the defects in plaintiffs’ complaint that prevented it from surviving a motion to dismiss. Thus, we

affirm the district court’s judgment regarding the nonmoving defendants.

                                                IV.

       Next, plaintiffs allege that the district court erred in denying their motion to amend the

complaint to include, inter alia, the Blankenship affidavit. A district court’s denial of a motion to

amend is reviewed for an abuse of discretion. Miller v. Admin. Office of Courts, 448 F.3d 887, 898

(6th Cir. 2006). We have held that a district court “abuses its discretion when we are left with the

definite and firm conviction that its conclusion was a clear error of judgment.” Days Inns

Worldwide, Inc. v. Patel, 445 F.3d 899, 906 (6th Cir. 2006) (citing In re Bever, 300 B.R. 262, 264

(B.A.P. 6th Cir. 2003)). Plaintiffs argue that “the District Court abused its discretion by denying

their motions to amend the Complaint because the Plaintiffs’ motions were filed early in the

litigation and the Defendants would not have been prejudiced at all by the Plaintiffs’ amendment.”

This is not sufficient to demonstrate an abuse of discretion. At best, plaintiffs have shown that it




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No. 08-5346
Melton, et al. v. Blankenship, et al.


would have been permissible for the district court to have granted their motion; they have not shown

that the district court abused its discretion by refusing to do so.2

                                                   V.

        Finally, plaintiffs argue that the district court improperly converted the motion to dismiss into

a motion for summary judgment without notifying plaintiffs. Plaintiffs note correctly that generally

a district court must convert a motion to dismiss into a motion for summary judgment if it considers

material outside of the pleadings. The district court undoubtedly referred to material outside of the

pleadings. Specifically, the court referred to Blankenship’s affidavit and deposition, both of which

were submitted as exhibits to defendants’ reply brief in support of the motion to dismiss. However,



        2
           Furthermore, although not argued by the parties, we lack jurisdiction to resolve this issue
because it was not raised in plaintiffs’ notice of appeal. Rule 3(c)(1)(B) of the Federal Rules of
Appellate Procedure requires the parties to “designate the judgment, order, or part thereof being
appealed” in the notice of appeal. Plaintiffs’ notice of appeal specifically states that they “are
appealing the dismissal of this case by Order entered on the 6th day of March, 2008, docket #58
. . . . ” Docket #58 is the district court’s dismissal of the underlying claim. The district court denied
plaintiffs’ motion to amend with docket #46, and their second motion to amend with docket #53.

         The Supreme Court has held that “Rule 3's dictates are jurisdictional in nature, and their
satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248 (1992); see also
Isert v. Ford Motor Co., 461 F.3d 756, 759 (6th Cir. 2006) (describing Rule 3's requirements as
“mandatory and jurisdictional in nature”). Plaintiffs’ failure to reference the order denying their
motion to amend in the notice of appeal prevents this court from reviewing it. “Congress has limited
this Court’s appellate review to issues designated in the notice of appeal.” United States v. Glover,
242 F.3d 333, 335 (6th Cir. 2001); see also Brown v. Cassens Transport Co., 546 F.3d 347, 352 (6th
Cir. 2008) (“The plaintiffs filed a motion for leave to file an amended complaint, but they did not
appeal the district court’s denial of this motion in their Notice of Appeal. Therefore, that decision
is not before us.”); Caldwell v. Moore, 968 F.2d 595, 596 (6th Cir. 1992) (“where a notice of appeal
specifies a particular order, only the specified issues related to that order may be raised on appeal.”).
Thus, we conclude that this issue is not properly before the court.

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No. 08-5346
Melton, et al. v. Blankenship, et al.


the district court did not explicitly convert the motion to dismiss to a motion for summary judgment.

Thus, we must determine whether the district court properly considered the Blankenship statements

in the context of a motion to dismiss, or whether the district court erred by converting the motion

into a motion for summary judgment without giving proper notice to plaintiffs of its intention to do

so.

       Defendants note that we have identified circumstances in which a district court may consider

non-record material without converting the motion to dismiss into a motion for summary judgment.

In Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997), we held that while “a plaintiff is under

no obligation to attach to his complaint documents upon which his action is based . . . a defendant

may introduce certain pertinent documents if the plaintiff fails to do so.” The present case differs

from Weiner in that defendants did not file the Blankenship exhibits in response to plaintiffs’

complaint; rather, they filed them in response to plaintiffs’ supplemental brief. After defendants

filed the motion to dismiss, the district court ordered supplemental briefing on the question of

whether malicious prosecution and abuse of process can serve as a predicate act for purposes of

RICO. In their supplemental brief, plaintiffs rely heavily on the Blankenship affidavit. Plaintiffs

use the phrase “smoking gun” five times to describe the statement, but did not attach the statement

as an exhibit. We conclude that allowing defendants to introduce the statement that plaintiffs relied

upon is within the bounds of Weiner and that the district court could consider it without converting

the motion to dismiss into a motion for summary judgment.




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No. 08-5346
Melton, et al. v. Blankenship, et al.


       In the alternative, if the district court was required to treat the motion to dismiss as a motion

for summary judgment, such error was harmless. Plaintiffs cannot claim to have lacked notice that

the court would consider the Blankenship exhibits when plaintiffs themselves referred to the exhibits

in their own brief. See Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 393 (6th Cir.

1975) (holding that a party who itself referred to evidence outside the record cannot claim unfair

surprise when the district court treats the motion to dismiss as a motion for summary judgment).

                                                 VI.

       For the reasons stated above, we affirm the judgment of the district court.




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