                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MALI CHAGBY, Individually and on                 No. 09-55326
Behalf of All Others Similarly Situated,
                                                 D.C. No. 2:08-cv-04425-GHK-
             Plaintiff - Appellant,              PJW

  v.
                                                 MEMORANDUM *
TARGET CORPORATION, and its
wholly owned subsidiaries TARGET
STORES, TARGET FINANCIAL
SERVICES, TARGET BRANDS
TARGET.COM,

             Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                           Submitted August 28, 2009 **
                             San Francisco, California

Before: BEEZER, HALL and T.G. NELSON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff-appellant Mali Chagby appeals the district court’s grant of a Fed. R.

Civ. P. 12(b)(6) motion to dismiss in favor of defendant-appellees Target

Corporation and its wholly-owned subsidiaries (collectively “Target”) and the

district court’s dismissal of Chagby’s entire complaint. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a district court’s grant of a motion to

dismiss for failure to state a claim. Edwards v. Marin Park, Inc., 356 F.3d 1058,

1061 (9th Cir. 2004). We may affirm on any ground supported by the record. See

Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1132 (9th Cir. 2002). We review a

district court’s dismissal of a complaint for abuse of discretion. Hearns v. San

Bernardino Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008). We affirm.

      The facts of the case are known to the parties. We do not repeat them below.

                                            I

      The district court properly dismissed Chagby’s 18 U.S.C. § 1962(c) RICO

claim for failing to sufficiently allege an enterprise, the requisite predicate acts and

that those acts caused injury to Chagby’s business or property. Chagby’s

arguments that the district court erred in its analysis are unpersuasive, and so we

affirm.




                                            2
                                            A

       The district court held that Chagby had insufficiently alleged an enterprise

between Target and its advertising agency because Chagby did not properly plead a

“common purpose” and an “ongoing organization,” as required in this Circuit. See

Odom v. Microsoft Corp., 486 F.3d 541, 552 (9th Cir. 2007) (en banc). Chagby’s

pleadings on both elements are conclusory and merely identify the correct legal

labels, rather than alleging facts to support liability.

       Chagby’s alternative theory that an enterprise existed between Target

Corporation and its wholly-owned subsidiaries fails to meet the distinctiveness

requirement of civil RICO claims. See, e.g., Living Designs Inc. v. E.I. Dupont de

Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005).

       We refuse to embrace Chagby’s assertion that we should infer an enterprise

from the alleged predicate acts. The failure to include “+CRV” language in

advertising circulars does not create an obvious inference of fraud, much less an

inference that an enterprise was established to propagate that fraud.

                                            B

       The district court concluded that Chagby failed to allege the predicate acts of

mail and wire fraud with sufficient particularity. See Fed. R. Civ. P. 9(b). The

allegations in Chagby’s complaint are cursory and fail to identify the responsible


                                             3
parties, the exact nature of their involvement and how the mail and wires were

used. The mere inclusion of “false” advertisements in the complaint does not

render Target able to “prepare an adequate answer from the allegations,” the main

purpose of Fed. R. Civ. P. 9(b). Odom, 486 F.3d at 553 (internal quotations

omitted).

                                         C

      The district court concluded that Chagby failed to allege that Target’s

actions had caused injury to Chagby’s business or property. The $.96 fee that

Chagby paid was properly charged by Target under California law. It does not

amount to a cognizable injury for the purposes of a RICO claim because Chagby

paid the correct amount and was not overcharged.

                                         II

      The district court correctly dismissed Chagby’s derivative RICO claims.

Chagby’s other RICO claims included conspiracy, respondeat superior and aiding

and abetting claims. Chagby’s § 1962(d) conspiracy claim was properly dismissed

because the designs of the alleged conspiracy would not have violated RICO. See

Howard v. Am. Online, Inc., 208 F.3d 741, 751 (9th Cir. 2000). Her respondeat

superior and aiding and abetting claims were also properly dismissed because those

claims cannot stand in the absence of a properly pleaded RICO claim.


                                         4
                                          III

      Chagby’s entire complaint was dismissed for violating the Fed. R. Civ. P.

8(a) requirement of a “short and plain statement.” Chagby waived this issue on

appeal by failing to contest the dismissal in her opening brief and by giving it only

cursory treatment in her reply brief. See Barnett v. U.S. Air, Inc., 228 F.3d 1105,

1111 n.1 (9th Cir. 2000) (en banc) (noting that the Ninth Circuit “consistently

regard[s] issues raised for the first time in reply briefs as waived”), rev’d on other

grounds, 535 U.S. 391 (2002).

      AFFIRMED.




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