United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court on defendant American National
Bank's motion for partial summary judgment (filing
22) and the corresponding motion for partial summary
judgment (filing 31) filed by defendants Rodney L.
Laible; RD Industries, Inc.; the RD Family Partnership; and
RDI Building, LLC (collectively, Laible). The Court will
grant the motions for summary judgment and, absent a federal
question, will dismiss the plaintiffs' remaining
state-law claims without prejudice.
plaintiffs are Anthony Saldi, his wife Debra, and TBD
Enterprises, an LLC managed by Anthony (collectively, Saldi).
Filing 1; filing 23 at 2.Saldi was
attempting to develop property in Omaha, so Saldi and Laible
borrowed money from American National, including a $2.3
million construction loan in 2006. Filing 23 at 3.
Saldi signed a deed of trust granting American National a
security interest in at least some of the development
property. Filing 23 at 4. The parties' dispute
about which properties were subject to a security interest is
at the heart of their dispute. According to Saldi, he and his
wife allowed American National to perfect a security interest
in Lots 2 and 3 of the development property, but not Lot 1.
Filing 37-34 at 3-4.
2009, the debt was past due and American National advised
that it would not entertain an extension. Filing 37-10 at
2. Saldi and Laible sued one another. Filing 37-11
at 2. Saldi and Laible entered into a settlement
agreement under which Laible agreed to assume all liability
on the American National debts. Filing 37-11 at 3.
Pursuant to the settlement agreement, American National and
Laible restructured the loans to release Saldi from any
personal guaranties and establish an extended payment
schedule for Laible. Filing 37-14 at 3-4;
see filing 37-15. But the deeds of trust
against the property continued to stand as collateral.
Filing 37-14 at 4.
2011, American National agreed to extend the deadline for
Laible to pay. Filing 37-21. In July, American
National extended the deadline again. Filing 37-23.
On August 1, American National sent Saldi a letter advising
him of the extension. Filing 37-24. On November 8,
American National sent Saldi another letter, noting that
Saldi had sued Laible again. Filing 37-35. The
letter advised that taxes and special assessments had not
been paid on the development properties, and instructed Saldi
that it was his obligation under the trust deed to keep
current on taxes and special assessments. Filing
37-35. The letter provided "initial notice to you
that a default exists under the Deed of Trust for failure to
timely pay taxes and assessments and accrued interest"
and that if those matters were not addressed, "a formal
Notice of Default will be filed of record and [American
National] may initiate foreclosure proceedings based upon
this default." Filing 37-35.
November 21, 2011, American National issued a notice of
default, specifically referencing a security interest in Lot
1. Filing 23 at 5. In February 2012, American
National held a trustee's sale and issued a trustee's
deed to itself for Lot 1, among other property. Filing 23
at 5. In March, American National recorded the deed.
Filing 23 at 5. Saldi filed a lis pendens
for Lot 1, which American National moved in state district
court to cancel. Filing 23 at 5. In January 2013,
the state court found that American National held a deed of
trust for property including Lot 1, and ordered cancellation
of the lis pendens. Filing 23 at 6. In
February, American National transferred certain properties,
including Lot 1, to Laible. Filing 23 at 6.
sued Laible again in state district court, alleging that Lot
1 had been lost because Laible did not pay the debt to
American National. Filing 23 at 6. Saldi then filed
a separate suit against Laible and American National in state
court, asserting claims similar to those presented in this
case, but without a federal claim. Filing 23 at 7.
Saldi voluntarily dismissed that case on the same day that
this one was filed, adding a claim under the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1961 et seq. Filing 23 at 7; see
filing 1 at 7-8. American National and Laible move to
dismiss the RICO claim. Filing 22; filing
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). The movant bears the initial
responsibility of informing the Court of the basis for the
motion, and must identify those portions of the record which
the movant believes demonstrate the absence of a genuine
issue of material fact. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts
showing that there is a genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
allegations, generally speaking, are that American National
and Laible engaged in a scheme to unlawfully steal Lot 1, by
altering records to fabricate a security interest pursuant to
which American National conducted a "sham
foreclosure" after Laible deliberately defaulted on the
underlying loan. See filing 36 at 14. The question
is whether any of that, even if true, would violate RICO.
prove a RICO violation, a plaintiff must produce evidence (1)
that an enterprise existed; (2) that the enterprise affected
interstate or foreign commerce; (3) that the defendant
associated with the enterprise; (4) that the defendant
participated, directly or indirectly, in the conduct of the
affairs of the enterprise; and (5) that the defendant
participated in the enterprise through a pattern of
racketeering activity by committing at least two racketeering
(predicate) acts. Aguilar v. PNC Bank, N.A., No.
15-3514, 2017 WL 490410, at *7 (8th Cir. Feb. 7, 2017).
American National and Laible both argue that they did not
engage in any predicate acts, and that there is no pattern of
racketeering activity. Filing 23;filing