                                                  NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ___________

                          No. 10-3187
                          ___________

      WINGATE INNS INTERNATIONAL, INC., a Delaware
      Corporation, successor in interest to HOTEL Franchising
       Partnership doing business as WINGATE INNS, L.P.

                                v.

HIGHTECH INN.COM, LLC, and Oregon Limited Liability Company;
 ENGINEERING DESIGN CORPORATION, an Oregon Corporation;
SHANTU N. SHAH, an individual; BAKULESH PATEL, an individual

                SHANTU N. SHAH, an individual,
                               Third Party Plaintiff

                                v.

    BUGGSI HOSPITALITY GROUP, LLC, an Oregon Limited
    Liability Company; RAJU PATEL, Chief Financial Officer of
       Buggsi Hospitality, an individual, ROBERT LOEWEN,
       Executive Vice President and Chief Financial Officer of
                Wyndham Group, LLC, an individual,
                                      Third Party Defendants

                     SHANTUN N. SHAH,
                                  Appellant
            ____________________________________

          On Appeal from the United States District Court
                    for the District of New Jersey
                (D.C. Civil Action No. 07-cv-05014)
          District Judge: Honorable Garrett E. Brown, Jr.
           ____________________________________

          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          May 23, 2011

                                1
              Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

                             (Opinion filed: May 26, 2011)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Shantu N. Shah, proceeding pro se, appeals from the order of the District Court

denying his motion for reconsideration and for default judgment and granting defendants‟

motion to dismiss. For the following reasons, we will affirm.

                                           I.

      In October 2007, Wingate Inns International, Inc. (“Wingate”) filed a complaint

in District Court against Hightech Inn.com, LLC (“Hightech”) and Bakulesh Patel

(“Bakulesh”) seeking to recover damages owed under a settlement agreement reached

after an alleged breach of a franchise agreement. Wingate also alleged that Shah was

secondarily liable for the damages. Shah answered the complaint and filed counterclaims

against Wingate, cross-claims against Hightech and Bakulesh, and a third-party

complaint against Buggsi Hospitality Group, LLC (“Buggsi”), Raju Patel (“Raju”), and

Robert Loewen (“Loewen”) (collectively “the defendants”). He alleged claims arising

under 18 U.S.C. § 1962(c) (substantive RICO claim), 18 U.S.C. § 1962(d) (conspiracy to

commit a violation under § 1962), Or. Rev. Stat. § 166.720 (Oregon RICO), N.J. Stat.

Ann. § 2C:41-2 (New Jersey RICO), 18 U.S.C. § 1951 (Hobbs Act), 18 U.S.C. § 666

(theft or bribery involving federal funds), and common law breach of fiduciary duty.


                                            2
       In April 2008, Wingate‟s claims against Hightech and Bakulesh were dismissed,

following a settlement agreement.

       Pursuant to Shah‟s motions, the District Court entered default against Hightech

and Bakulesh in April 2008, and against Buggsi and Raju in May 2008, for failure to

appear. In June 2008, upon defense counsel‟s motion, the court vacated the default

against Hightech and Bakulesh and granted a motion to allow all of the defendants to join

a motion to dismiss filed by Loewen and Wingate. In May 2009, Shah filed another

request for entry of default against the defendants because they entered appearances late

in the action.

       In December 2008, the District Court granted Loewen‟s motion to dismiss Shah‟s

third-party complaint.      The court granted Shah two thirty-day extensions to file an

amended third-party complaint. Shah did not file the amended complaint, but eventually

filed a motion for reconsideration.

       In December 2009, the court vacated the default against Raju. On the same day,

the District Court denied Shah‟s motion for reconsideration of its order dismissing his

claims against Loewen and granted Wingate‟s motion for judgment on the pleadings.1

The court granted Shah leave to amend his mail and wire fraud claims within thirty-days.

In January 2010, the District Court denied Shah‟s motions for entry of default against the

defendants and entry of default judgment against Buggsi. Instead of re-filing his mail

and wire fraud claims, Shah filed another motion for entry of default judgment against


       1
           Hightech, Bakulesh, and Raju joined the motion.


                                                3
Buggsi and Raju and a motion for reconsideration of the order dismissing his claims

against Wingate.

       On June 21, 2010, the District Court denied Shah‟s motions for reconsideration

and for default judgment, and granted the remaining defendants‟ (Hightech, Bakulesh,

Raju, and Buggsi) motion to dismiss. Shah filed a timely notice of appeal. We have

jurisdiction under 28 U.S.C. § 1291.

                                              II.

       A. Motion for Reconsideration

       We review a denial of a motion for reconsideration for abuse of discretion, while

reviewing the District Court‟s underlying legal determinations de novo and its factual

determinations for clear error. Max‟s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,

176 F.3d 669, 673 (3d Cir. 1999). A motion for reconsideration under Rule 59(e) must

rely on one of three grounds: (1) an intervening change in the law; (2) the availability of

new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.

N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

       The District Court granted Wingate‟s motion for judgment on the pleadings,

finding that Shah did not allege facts sufficient to sustain a RICO claim (under federal or

state laws) or a conspiracy under the federal RICO statute. 2 In his motion, Shah asked

the District Court to reconsider its decision in light of Beck v. Prupis, 529 U.S. 494

(2000), which he claimed overruled Lightning Lube v. Witco Corp., 4 F.3d 1153 (3d Cir.

       2
        In addition, the court determined that Shah‟s breach of fiduciary duty claim was merely
       an unsupported conclusory allegation. The court also found that Shah lacked standing to
       prosecute criminal acts under the Hobbs Act or the federal theft or bribery statutes.
                                               4
1993) and constituted a change in RICO law. For substantially the reasons stated by the

District Court, this argument is without merit. Accordingly, we conclude that the District

Court did not abuse its discretion in denying the motion to reconsider.

       B. Renewed Motion for Default Judgment

       We review a denial of a motion for default judgment for abuse of discretion.

Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). A District Court considers

whether the plaintiff would be prejudiced if default is denied, whether the defendant

appears to have a litigable defense, and whether the defendant‟s delay is due to culpable

conduct. Id. Shah argues that Buggsi filed “late answers or appearances without an

excusable reason.” However, as the District Court found, late filing and appearances

cannot stand as the basis for a default judgment. Accordingly, the District Court properly

denied default judgment.

       C. Motion to Dismiss

        Our review of a District Court‟s order granting a motion to dismiss is plenary.

See Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir. 2005). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to „state a claim for relief that is plausible on its face.‟” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In deciding a motion to dismiss, a court must determine whether the complaint “pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id.

       The District Court found that Shah failed to state a claim for relief under Federal

                                               5
Rule of Civil Procedure 12(b)(6). To survive dismissal under Rule 12(b)(6), a complaint

must contain more than “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Iqbal, 129 S. Ct. at 1949. His claims against

the moving defendants (Hightech, Bakulesh, Raju, and Buggsi) were the same as those he

raised against Wingate. As stated above, the District Court found that Shah failed to

allege sufficient facts to establish a pattern of racketeering, conspiracy under the RICO

statute, or any breach of fiduciary duty. The court properly concluded that the same

findings applied to Shah‟s claims against the moving defendants. Thus, we agree that

Shah filed to state a claim upon which relief can be granted.

                                              III.

       For the foregoing reasons, we will affirm the District Court‟s judgment. 3 Shah‟s

motion to strike Appellee‟s brief and index is denied.




       3
        Shah‟s motion to file a second reply brief is granted. We considered both of his reply
       briefs in reaching our decision.
                                               6
