Antitrust Law Daily Wrap Up, RICO—DNev: Consumer’s Complaint Against Sears Did Not Assert Viable RICO Violation, (Mar 21, 2013)

By E. Darius Sturmer, J.D.

A Nevada individual failed to state a claim for violation of the RICO Act stemming from an apparent consumer product dispute with retailer Sears, Roebuck & Co., the federal district court in Las Vegas has decided (Liptak v. Ally Bank, March 18, 2013, Dawson, K.).

The consumer offered a motley assortment of factual allegations against Sears, including that he was deprived of a jury trial in a small claims case against the company in Texas as a result of a procedural motion and that “by such institutional corruption posing as error, [he had] no heating or cooling in most of his home for over two years.” However, he failed to allege with specificity any acts by Sears that would involve a RICO violation. Nor did he allege any other element of a RICO cause of action, the court added. Therefore, any RICO claims against Sears were dismissed.

The court refused to allow the plaintiff to file an amended complaint in the matter to cure the identified deficiencies, noting that such an amendment would be futile. The suit was clearly precluded by both the Rooker-Feldman doctrine and issue and claim preclusion, the court said. Even if the doctrine did not apply to bar the suit, venue in Nevada was inappropriate. “It appears clear, from the allegations of his complaint,” the court remarked, that the only reason the consumer filed suit in Nevada “was because he has been declared a vexacious litigant in the Northern District of Texas,” where the conduct relevant to the claims actually occurred.

The case is No. 2:12-CV-00882-KJD-GWF.

Attorneys: Jonathan D. Dykstra (Severson & Werson, APC) for Ally Bank.

Companies: Sears, Roebuck & Co.

Cases: RICO NevadaNews