                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                         _____________________________
                                                               FILED
                          Nos. 05-15402 & 05-16523   U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                      _____________________________         July 13, 2006
                                                        THOMAS K. KAHN
                     D. C. Docket No. 05-01662-CV-AR-S        CLERK



ANGIE CARTER,
d.b.a. Fairview Video,
MARY HALL, et al.,

                                                   Plaintiffs-Appellants,
      versus

MGA, INC., and all Holding
Companies and Affiliated Entities
d.b.a. Movie Gallery,
UNITED PARCEL SERVICE, INC. (UPS),
SELECT MEDIA SERVICES, LLC, et al.,

                                                   Defendants-Appellees.

               _________________________________________

                 Appeals from the United States District Court
                     for the Northern District of Alabama
               _________________________________________

                                 (July 13, 2006)

Before EDMONDSON, Chief Judge, and DUBINA and HULL, Circuit Judges.
PER CURIAM:

       Plaintiffs Angie Carter, Mary Hall, Maurice King, and William Harris

appeal the district court’s dismissal under Rule 12(b)(6) of their civil RICO claim.

No reversible error has been shown; we affirm.

       We review de novo the district court’s grant of the motion to dismiss under

12(b)(6), accepting the factual allegations in the complaint as true and construing

them in the light most favorable to Plaintiffs. Hill v. White, 321 F.3d 1334, 1335

(11th Cir. 2003).

       Plaintiffs are the owners of video rental stores in Alabama. Plaintiffs sell

and rent only nonpornographic materials. Defendant Movie Gallery, successor in

interest to M.G.A., Inc., sells and rents pornographic and nonpornographic

materials. Defendants Mile High Media, Inc., LFP, Inc., Digital Sin, Inc., and

Fraserside Holding produce pornographic movies. Defendant UPS transported in

interstate commerce pornographic materials from these companies to Movie

Gallery. Defendant Select Media sold pornographic magazines to Movie Gallery.

       Plaintiffs allege that Defendants violated 18 U.S.C. 1962(c)-(d)1 by

conspiring to distribute and by actually distributing obscenity and by using the


   1
     Plaintiffs did not actually state that Defendants violated section 1962(c) in the complaint, but
instead that Defendants violated 1462(c). As the text of that paragraph seemed to indicate section
1962(c) was intended, we will address that claim.

                                                 2
proceeds of that distribution to allow Movie Gallery to sell and to rent

nonpornographic materials at a price less than Plaintiffs were able to sell and rent

nonpornographic materials.

       To state a claim for violation of section 1962(c), Plaintiffs must allege facts

showing “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering

activity.” Jones v. Childers, 18 F.3d 899, 910 (11th Cir. 1994) (quoting Sedima

S.P.R.L. v. Imrex Co., 105 S.Ct. 3275, 3285 (1985). A pattern of racketeering

activity is defined as two predicate acts committed within a ten-year period. Green

Leaf Nursery v. E.I. DuPont De Nemours Co., 341 F.3d 1292, 1306 (11th Cir.

2003). Plaintiffs alleged that Defendants violated two federal obscenity statutes,

18 U.S.C. §§ 1462 and 1465, on 27 September 2004 and 22 October 2004. Both

violation of the statutes are identified as predicate acts in 18 U.S.C. 1961.2

       Plaintiffs must allege facts sufficient to show a violation of these obscenity

statutes to survive a motion to dismiss. See Republic of Panama v. BCCI

Holdings (Luxembourg) S.A., 119 F.3d 935, 949 (11th Cir. 1997) (“In order to

survive a motion to dismiss, a plaintiff must allege facts sufficient to support each

of the statutory elements for at least two of the pleaded predicate acts.”).



  2
   Plaintiffs also alleged that Defendants violated 18 U.S.C. § 1466, but this statute is not listed in
18 U.S.C. § 1961 as a possible predicate act.

                                                  3
Plaintiffs, however, did not allege facts that would show -- or create a reasonable

inference -- that the pertinent materials were obscene. The only facts Plaintiffs

state about the pertinent materials are their titles. These titles create a reasonable

inference that at least some of the materials were pornographic but are insufficient

to create a reasonable inference that the materials were obscene. Plaintiffs’

statements that the materials are obscene are insufficient to survive a motion to

dismiss. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.

2002) (“[C]onclusory allegations, unwarranted deductions of facts or legal

conclusions masquerading as facts will not prevent dismissal.”). Therefore, the

district court properly dismissed the section 1962(c) claim.

      Section 1962(d) makes it illegal to conspire to violate a substantive RICO

provision. To state a claim under this section, Plaintiffs must allege facts to

support an agreement to violate a substantive provision of the RICO statute.

Jackson v. Bell South Telecomm., 372 F.3d 1250 (11th Cir. 2004). But Plaintiffs

alleged no facts to show or to create a reasonable inference that Defendants made

an agreement. Plaintiffs’ conclusory allegations that Defendants conspired with

each other are insufficient to survive a motion to dismiss. Therefore, the section

1962(d) claims were properly dismissed.




                                           4
      Plaintiffs argue that they were held to a higher standard of pleading than

that required by Federal Rule of Civil Procedure 8. But the district court never

said it applied a higher standard to RICO pleadings, and Defendants never argued

that a higher standard should be used. As discussed above, Plaintiffs did not

allege facts sufficient to support their claims and thus did not meet the

requirements of Rule 8.

      AFFIRMED.




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