Joseph Rae v. Union Bank, a Banking Corp., 725 F.2d 478 (9th Cir. 1984). · Go Syfert
Joseph Rae v. Union Bank, a Banking Corp., 725 F.2d 478 (9th Cir. 1984). Cases Citing This Book View Copy Cite
244 citation events (74 in the last 25 years) across 52 distinct courts.
Strongest positive: Rhoades v. Powell (caed, 1986-09-05) · Strongest negative: Schreiber Distributing Co. v. Serv-Well Furniture Company (ca9, 1986-12-24)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Schreiber Distributing Co. v. Serv-Well Furniture Company (2×) also: Cited as authority (rule)
9th Cir. · 1986 · signal: but see · confidence high
Hirsch v. Enright Refining Co., 751 F.2d 628, 633-34 (3d Cir.1984); Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 401-02 (7th Cir.1984), aff'd on other grounds, --- U.S. ----, 105 S.Ct. 3291 , 87 L.Ed.2d 437 (1985); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984); United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982), cert. denied, 459 U.S. 1105 , 103 S.Ct. 729 , 74 L.Ed.2d 953 (1983); Bennett v. Berg, 685 F.2d 1053, 1061-62 (8th Cir.1982), aff'd in part, rev'd in part in reh'g en banc, 710 F.2d 1361 (1983), cert. denied, 464 U.S. 1008 , 104 S.Ct.…
discussed Cited as authority (verbatim quote) Rhoades v. Powell (2×) also: Cited as authority (rule)
E.D. Cal. · 1986 · quote attribution · 1 verbatim quote · confidence high
the portion of the rico statute applicable here is ... 1962(c)
discussed Cited as authority (rule) Gage v. Banner Health
D. Ariz. · 2025 · confidence medium
Typically, courts find good cause for a stay of 27 discovery when a pending motion to dismiss does not require additional factual 28 development, see Wood, 644 F.2d at 801-02 ; Rae v. Union Bank, 725 F.2d 478, 481 (9th 1 Cir. 1984) (approving discovery stay in the absence of factual issues relevant to pending 2 Rule 12(b)(6) motion), or when a potentially dispositive issue like immunity is pending, 3 see Little, 863 F.2d at 685 (“Here, the judge stayed discovery until the issue of immunity 4 was decided.”); see also Leibel v. City of Buckeye, 382 F. Supp. 3d 909, 912-3 (D.
discussed Cited as authority (rule) Wasae v. Blinken
W.D. Wash. · 2025 · confidence medium
The two issues presented in 13 the motion is (1) whether Wasae has claimed an outstanding mandatory, nondiscretionary duty 14 that Defendants have failed to perform, and, if so, (2) whether Defendants have unreasonably 15 delayed performing that duty. 16 ARGUMENT 17 A stay would conserve the Court’s and parties’ resources while the Court considers the pending dispositive motion. 18 This Court has wide discretion to stay discovery while a dispositive motion is pending. 19 Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); Jarvis v. Regan, 833 F.2d 149, 155 (9th 20 Cir. 1987).
discussed Cited as authority (rule) Zhang v. Dehart
W.D. Wash. · 2024 · confidence medium
For good cause, the parties request that the 22 Court stay discovery until after this motion is decided. 23 This Court has wide discretion to stay discovery while a motion to dismiss is pending. 24 Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); Jarvis v. Regan, 833 F.2d 149, 155 (9th 1 Cir. 1987).
discussed Cited as authority (rule) Pabst v. The Peoples Gas Light and Coke Company
N.D. Ill. · 2024 · confidence medium
Cir. 1990); Puckett v. Tenn. Eastman Co., 889 F.2d 1481, 1489 (6th Cir. 1989); Garbade v. Great Divide Mining and Milling Corp., 831 F.2d 212, 213 (10th Cir. 1987); Bishop v. Corbitt Marine Ways, Inc., 802 F.2d 122, 122 (5th Cir. 1986); Schofield v. First Commodity Corp., 793 F.2d 28, 29 (1st Cir. 1986); Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315 (2d Cir. 1985); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 263 (3d Cir. 1995); Haroco, Inc. v. American Nat'l Bank and Trust Co. of Chicago, 747 F.2d 384, 400 (7th Cir.1984), aff'd on other grounds, 473 U.S. 606…
discussed Cited as authority (rule) Pabst v. The Peoples Gas Light and Coke Company
N.D. Ill. · 2024 · confidence medium
Cir. 1990); Puckett v. Tenn. Eastman Co., 889 F.2d 1481, 1489 (6th Cir. 1989); Garbade v. Great Divide Mining and Milling Corp., 831 F.2d 212, 213 (10th Cir. 1987); Bishop v. Corbitt Marine Ways, Inc., 802 F.2d 122, 122 (5th Cir. 1986); Schofield v. First Commodity Corp., 793 F.2d 28, 29 (1st Cir. 1986); Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315 (2d Cir. 1985); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 263 (3d Cir. 1995); Haroco, Inc. v. American Nat'l Bank and Trust Co. of Chicago, 747 F.2d 384, 400 (7th Cir.1984), aff'd on other grounds, 473 U.S. 606…
discussed Cited as authority (rule) Jimenez v. Government Employees Insurance Company
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 motion.
discussed Cited as authority (rule) BLOOM v. Zuffa, LLC
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 is to “evaluate the propriety of an order staying or limiting discovery with the goal of 2 accomplishing the objectives of Rule 1.” Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 603 (D. 3 Nev. 2011 ).
discussed Cited as authority (rule) Gonzalez-Pozo v. Empire Fire And Marine Insurance Company
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149 , 26 155 (9th Cir. 1987) (affirming stay of discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th 27 Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) (same). 2 The Court notes that these District of Nevada cases are persuasive authority, and the Court is not 1 and decides whether discovery should be stayed; however, a district judge decides the dispositive 2 motion.
discussed Cited as authority (rule) Speaks v. Employers Holdings Inc.
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 Nev. 2011 ).
discussed Cited as authority (rule) Speaks v. Employers Holdings Inc.
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 Nev. 2011 ).
discussed Cited as authority (rule) Turner v. Harvard MedTech of Nevada LLC
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) 27 (affirming stay of discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. 1 the discovery was necessary to decide the dispositive motion); Kamm v. Cal. City Dev.
discussed Cited as authority (rule) Wooters v. Experian Information Solutions, Inc.
D. Nev. · 2023 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) 27 (affirming stay of discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. 1 The Ninth Circuit has also held that a district court may not stay discovery when discovery is 2 needed to litigate the dispositive motion.
cited Cited as authority (rule) Speer v. Mondejar
D. Nev. · 2023 · confidence medium
Rae 15 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
discussed Cited as authority (rule) HUB International Northwest LLC v. Larson
W.D. Wash. · 2023 · signal: cf. · confidence medium
Cf. Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) 12 (affirming stay of discovery where plaintiff “failed to point to any specific information 13 obtainable through discovery that would have enabled [plaintiff] to state a federal cause of 14 action”).
discussed Cited as authority (rule) M. v. Crum
D. Alaska · 2022 · confidence medium
Apr. 29, 2022) (collecting cases and interpreting Ninth Circuit case law to mean that when a court is convinced plaintiff could not state a claim for relief is one scenario where it would be appropriate to stay discovery but not the only scenario); see also Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) (affirming discovery stay without discussing “convinced” or “immediate and clear possibility” standards); Jeter v. President of the United States, 670 F. App’x 493, 494 (9th Cir. 2016) (same); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same). 39 Docket 40 at 3 …
cited Cited as authority (rule) PlayUp, Inc. v. Mintas
D. Nev. · 2022 · confidence medium
Corp., 5 F.3d 378, 383 (9th Cir. 1993); Rae v. Union 8 Bank, 725 F.2d 478, 481 (9th Cir. 1984).
cited Cited as authority (rule) Hillcrest Investments, Ltd. v. Chicago Title Insurace Company
D. Nev. · 2022 · confidence medium
Rae 15 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
discussed Cited as authority (rule) Allegiant Travel Company v. R2 Solutions LLC
D. Nev. · 2022 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 This Court, however, has found the preliminary peek test to be problematic because it is 2 often inaccurate and inefficient. 3 First, applying the preliminary peek test does not always lead to “accurate results” in 4 which the cases that will ultimately be dismissed are stayed…
discussed Cited as authority (rule) Greenwood v. Steele
W.D. Wash. · 2022 · confidence medium
DiMartini v. Ferrin, 889 F.2d 922, 926 (9th Cir. 2 1989), amended at 906 F.2d 465 (9th Cir. 1990); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 3 1984). 4 Here, the pending motion to dismiss challenges the legal sufficiency of all claims asserted 5 in the amended complaint.
discussed Cited as authority (rule) Page v. Shumaker Mallory, LLP
D. Nev. · 2022 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 motion.
discussed Cited as authority (rule) White v. Skagit Bonded Collectors LLC
W.D. Wash. · 2022 · confidence medium
Although a court may relieve a party from the 19 burdens of discovery while a dispositive motion is pending, this is the exception and not the rule. 20 See Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); cf. Gray v. First Winthrop Corp., 133 21 F.R.D. 39, 40 (N.D.
discussed Cited as authority (rule) Jaramillo, II v. Area 15 Las Vegas LLC
D. Nev. · 2021 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming discovery 27 stay without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 answered affirmatively, the Court may stay discovery.
discussed Cited as authority (rule) Schrader v. Wynn
D. Nev. · 2021 · confidence medium
See also Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (affirming stay of 27 discovery without discussing whether court was convinced plaintiff could not state a claim before entering stay); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same); Clardy v. Gilmore, 773 F. App’x 958 , 959 (9th Cir. 2019) 1 Nev. 2011 ).
discussed Cited as authority (rule) Arimilli v. Rezendes
D. Ariz. · 2021 · confidence medium
Under RICO, an enterprise must be “a being different from, not the 26 same as or part of, the person whose behavior the act was designed to prohibit.” Rae v. 27 Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (internal quotations and citation omitted). 28 For instance, a plaintiff may satisfy this requirement by naming a defendant corporate 1 officer as the “person” and the defendant’s corporation as the enterprise.
discussed Cited as authority (rule) Winters v. Loan Depot LLC
D. Ariz. · 2021 · confidence medium
“Staying discovery pending resolution of a motion to 17 dismiss is permissible when the motion raises only legal issues.” Lazar, 2014 WL 18 12551210 at *1 (citing Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987); Rae v. Union 19 Bank, 725 F.2d 478, 481 (9th Cir. 1984)).
cited Cited as authority (rule) Licari v. Hughes
D. Nev. · 2021 · confidence medium
Rae 18 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
cited Cited as authority (rule) Shahrokhi v. Tao
D. Nev. · 2021 · confidence medium
Rae 13 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
discussed Cited as authority (rule) Quintero v. Bureau Of Land Management
D. Nev. · 2021 · confidence medium
Nev. 1983) (citations omitted). 15 “The trial court’s decision to allow or deny discovery is reviewable only for abuse of 16 discretion.” Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (citations omitted). 17 When deciding whether to grant a stay of discovery pending the decision of a dispositive 18 motion, the courts in the District of Nevada apply a two-step analysis.
cited Cited as authority (rule) Licari v. Hughes
D. Nev. · 2021 · confidence medium
Rae 16 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
discussed Cited as authority (rule) New World Medical Inc v. Microsurgical Technology Inc
W.D. Wash. · 2021 · confidence medium
See, e.g., Wenger v. 17 Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002) (finding “no error” in staying discovery pending 18 motion to dismiss); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (affirming trial court’s 19 decision to stay discovery pending resolution of a motion to dismiss); Bosh v. United States, No. 20 C19-5616 BHS, 2019 WL 5684162 , at *2 (W.D.
discussed Cited as authority (rule) Wilmington Trust Company v. The Boeing Company
W.D. Wash. · 2020 · confidence medium
Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984). 2 The Court must construe and administer the Federal Rules of Civil Procedure to “secure 3 the just, speedy, and inexpensive determination of every action and proceeding.” Fed.
cited Cited as authority (rule) Czerniewski v. Keppel
D. Nev. · 2020 · confidence medium
Rae 22 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
discussed Cited as authority (rule) Molina v. City of Portland
D. Or. · 2020 · confidence medium
“Dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief.” Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984) (citing Rae v. Union Bank, 725 F.2d 478, 479 (9th Cir. 1984)).
cited Cited as authority (rule) Cai v. Switch, Inc.
D. Nev. · 2020 · confidence medium
Rae 22 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
cited Cited as authority (rule) Carley v. Gentry
D. Nev. · 2019 · confidence medium
Rae 13 v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984); White v. Am.
discussed Cited as authority (rule) Mark Moran v. Hugh Bromma
9th Cir. · 2017 · confidence medium
The relevant inquiry is whether “[t]he associated in fact enterprise ... is ‘a being different from, not the same as or part of, the person whose behavior [RICO] was designed to prohibit’ ” and whether “the enterprise can[ ] be either formally or practically separable from the person.” Living Designs, 431 F.3d at 362 (second alteration in original) (quoting Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984)).
cited Cited as authority (rule) Negrete v. Allianz Life Insurance Co. of North America
C.D. Cal. · 2013 · confidence medium
Dupont de Nemours & Co., 431 F.3d 353 , 362 (9th Cir.2005) (quoting Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984)).
cited Cited as authority (rule) Aversano v. GREENBERG TRAURIG, LLP
C.D. Cal. · 2010 · confidence medium
Chang v. Chen, 80 F.3d 1293 , 1298 (9th Cir.1996); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984); Medallion TV Enters., Inc. v. SelecTV of Cal., Inc., 627 F.Supp. 1290, 1294 (C.D.Cal. 1986).
discussed Cited as authority (rule) California Pharmacy Management, LLC v. Zenith Insurance
C.D. Cal. · 2009 · confidence medium
However, Defendants’ argument, and their authorities in support thereof, are more relevant to a situation in which a RICO plaintiff alleges that a single individual constitutes an “enterprise.” See Mot. at 14 (citing River City Mkts., Inc. v. Fleming Foods West, Inc., 960 F.2d 1458, 1461 (9th Cir.1992); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984)).
cited Cited as authority (rule) Bodam v. GTE, Corp.
C.D. Cal. · 2002 · confidence medium
Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984).
discussed Cited as authority (rule) James v. Meow Media, Inc.
unknown court · 2000 · confidence medium
Hirsch v. Enright Refining Co., 751 F.2d 628, 634 (3d Cir.1984)(stating, “a violation of section 1962(c) by a corporate entity requires an association with an enterprise that is not the same corporation”); Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 400 (7th Cir,1984)(stating, “section 1962(c) requires separate entities as the liable person and the enterprise”), aff'd on other grounds, 473 U.S. 479 , 105 S.Ct. 3292 , 87 L.Ed.2d 346 (1985)(per curiam); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984) (stating “if Union Bank is the enterprise, it cannot also be…
discussed Cited as authority (rule) Sea-Land Service, Inc. v. Atlantic Pacific International, Inc. (2×) also: Cited "see"
D. Haw. · 1999 · confidence medium
Thus, in order to state a claim under § 1962(c), a plaintiff must allege an “enterprise” that is distinct and separate from the “person.” Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984).
discussed Cited as authority (rule) Sea-Land Service, Inc. v. Atlantic Pacific International, Inc. (2×) also: Cited "see"
D. Haw. · 1999 · confidence medium
Thus, in order to state a claim under § 1962(c), a plaintiff must allege an “enterprise” that is distinct and separate from the “person.” Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984).
cited Cited as authority (rule) Pesci v. Internal Revenue Service
D. Nev. · 1999 · confidence medium
Rae v. Union Bank, 725 F.2d 478, 479 (9th Cir.1984).
cited Cited as authority (rule) Riggs v. Clark County School District
D. Nev. · 1998 · confidence medium
Rae v. Union Bank, 725 F.2d 478, 479 (9th Cir.1984).
discussed Cited as authority (rule) Schwartz v. the Upper Deck Co.
S.D. Cal. · 1997 · confidence medium
Plaintiffs Meet the Separate “Person” and “Enterprise” Requirements of 18 U.S.C. § 1962 (c) Upper Deck argues that “a single entity cannot be both the RICO enterprise and the RICO defendant.” (relying on Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984) (noting that a RICO enterprise could not simply be the defendant in a RICO case)).
discussed Cited as authority (rule) 96 Cal. Daily Op. Serv. 7190, 96 Daily Journal D.A.R. 11,794 S & N Equipment Company, an Arizona General Partnership v. Casa Grande Cotton Finance Co., an Arizona Corporation Chickasha Cotton Oil Company, a Delaware Corporation
9th Cir. · 1996 · confidence medium
There is even more reason not to reach the merits of an alternate ground that has not been considered by the district court. 27 To establish a violation of § 1972, a plaintiff must show that "(1) 'the banking practice in question was unusual in the banking industry,' (2) 'an anti-competitive tying arrangement' existed, and (3) 'the practice benefits the bank.' " Bieber v. State Bank of Terry, 928 F.2d 328, 330 (9th Cir.1991) (quoting Rae v. Union Bank, 725 F.2d 478, 480 (9th Cir.1984)). 16 We conclude that on the basis of the record before us, the record is insufficiently developed as to two …
discussed Cited as authority (rule) S & N Equipment Co. v. Casa Grande Cotton Finance Co.
9th Cir. · 1996 · confidence medium
To establish a violation of § 1972, a plaintiff must show that “(1) ‘the banking practice in question was unusual in the banking industry,’ (2) ‘an anti-competitive tying arrangement’ existed, and (3) ‘the practice benefits the bank.’ ” Bieber v. State Bank of Terry, 928 F.2d 328, 330 (9th Cir.1991) (quoting Rae v. Union Bank, 725 F.2d 478, 480 (9th Cir.1984)). 16 We conclude that on the basis of the record before us, the record is insufficiently developed as to two of the three requirements. 17 As to the question whether the conditions placed on the loan were unusual in the b…
Retrieving the full opinion text from the archive…
Joseph RAE, Et Al., Plaintiffs-Appellants,
v.
UNION BANK, a Banking Corporation, Et Al., Defendants-Appellees
83-2189.
Court of Appeals for the Ninth Circuit.
Feb 6, 1984.
725 F.2d 478
1984 U.S. App. LEXIS 25766
Terry W. Aron, Tucson, Ariz., for plaintiffs-appellants., Richard Calvin Cooledge, Brown & Bain, Phoenix, Ariz., for defendants-appellees.
Goodwin, Pregerson, Nelson.
Cited by 207 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: E.D. California (1)
PREGERSON, Circuit Judge:

After a series of loans, extensions, and modifications, Union Bank foreclosed on certain property of the appellants, Joseph Rae, et al., (Rae). Rae brought suit in federal court against Union Bank and certain of its employees, alleging various contract and tort theories. The court dismissed the complaint for lack of diversity jurisdiction. Rae amended to add federal question claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Bank Holding Company Act. The district court found that the federal claims were wholly insubstantial and frivolous and dismissed them without leave to amend. The court also dismissed the remaining pendent state claims. We affirm.

A ruling on a motion to dismiss for failure to state a claim upon which relief can be granted is a ruling on a question of law, freely reviewable by the court of appeals. Alonzo v. ACF Property Management, Inc., 643 F.2d 578, 579 (9th Cir. 1981). A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. [*480] Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

I. The Anti-Tying Claim

A plaintiff must plead and prove three things to recover under the anti-tying provision of the Bank Holding Company Act, 12 U.S.C. § 1972(1). First, the plaintiff must show that the banking practice in question was unusual in the banking industry. Second, the plaintiff must show an anti-competitive tying arrangement. Third, the plaintiff must demonstrate that the practice benefits the bank. Parsons Steel, Inc. v. First Alabama Bank of Montgomery, 679 F.2d 242, 246 (11th Cir.1982).

Here, the anti-tying claim of Rae’s complaint alleges only that “Defendants’ actions as recited above constituted a tying arrangement prohibited by 12 U.S.C. Section 1972(1)(A) and (C).” Various references to loan conditions and extensions of credit accompanied by provisions designed to protect the bank’s security are all that is “recited above.” That simply is not enough to state a claim. There is no factual allegation in the complaint that the bank tied a loan to any other product, service, or benefit. Moreover, there is no factual allegation that the bank would benefit in any other way than by getting additional protection for its loans. There is not even an allegation that the banking practice was unusual. Finally, no tying claim can be stated against the individual defendants. Section 1972 does not cover natural persons. See Nesglo, Inc. v. Chase Manhattan Bank, N.A., 506 F.Supp. 254, 265 (D.P.R.1980).

Given the very basic lack of an anti-competitive tie, the district court found that the allegation of additional facts consistent with the complaint could not possibly cure the deficiency. Rae had been given leave to amend one time already. Thus, the district court properly dismissed the anti-tying claim without leave to amend. See Bonan-no v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962) (leave to amend should be granted unless allegations of other facts consistent with the challenged pleading cannot possibly cure the deficiency).

II. The RICO Claim

The RICO claim in the first amended complaint alleges only

The scheme to defraud, false claims through fraud and activities by defendants as alleged in the facts of this Complaint, were in violation of the Federal Anti-racketeering Statute, 18 U.S.C. 1962.
Pursuant to 18 U.S.C. 1964, plaintiffs are entitled to recovery of treble damages, costs of suit and reasonable attorney’s fees.

All other allegations of the complaint are incorporated by reference. The portion of the RICO statute applicable here is 18 U.S.C. § 1962(c) which provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. [1]

Rae’s complaint does not allege that any defendants were associated with or employed by an enterprise, [2] nor does it identi[*481] fy the requisite RICO enterprise. Rae apparently is now arguing that Union Bank was the enterprise with whom the individual appellees interacted. See Appellant’s Brief at 25-26. If Union Bank is the enterprise, it cannot also be the RICO defendant. See United States v. Computer Sciences Corporation, 689 F.2d 1181, 1182, 1190 (4th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983) (“We conclude that ‘enterprise’ was meant to refer to a being different from, not the same as' or part of, the person whose behavior the act was designed to prohibit .... ”). Thus, Rae can state no RICO cause of action against Union Bank itself.

Nor does the first amended complaint allege collection of an unlawful debt or a pattern of racketeering activity. Not one word is said about collection of an unlawful debt anywhere in the complaint or the exhibits attached thereto. A pattern of racketeering activity requires at least two predicate offenses within ten years. 18 U.S.C. § 1961(5). No predicate offenses are identified in the complaint or exhibits. Appellant’s brief states that “individual Appellees conducted or participated in Union Bank’s affairs vis-a-vis the Appellants in a manner which involved fraud in the sale of securities arising from the original SEC action against Appellant Rae.” Appellant’s Brief at 26. An SEC action against appellant Rae can hardly be a predicate offense chargeable to appellees.

Rae has been given several opportunities to specify predicate offenses and has failed. The district court was correct in dismissing his complaint without leave to amend. The district court was obviously also correct in dismissing the pendent state claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

III. The District Court’s Decision to Stay Discovery

The trial court’s decision to allow or deny discovery is reviewable only for abuse of discretion. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 n. 1 (9th Cir.1977).

Rae cites authorities holding that discovery relevant to issues raised by a Rule 12(b) motion should be allowed. The authorities are not applicable. As the district court correctly observed, discovery is appropriate where there are factual issues raised by the motion. Here, there were no factual issues. The district court took all the facts alleged in the complaint as true and decided that the facts as alleged did not add up to either an anti-tying claim or a civil RICO claim. Rae has failed to point to any specific information obtainable through discovery that would have enabled appellants to state a federal cause of action. Thus, the district court did not abuse its discretion in staying Rae’s discovery pending resolution of the Rule 12(b) motion.

AFFIRMED.

1

. The first amended complaint does not allege either (1) the investment of income from a racketeering activity in an enterprise engaged in or affecting interstate commerce, 18 U.S.C. § 1962(a), or (2) the acquisition or maintenance of an interest in such enterprise through racketeering activities, 18 U.S.C. § 1962(b). Therefore, subsection (c) of § 1962 appears to be the relevant one.

2

. According to 18 U.S.C. § 1961(4), “ ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”