923 F. 2d 863 - Perati v. Hertz Corporation

MEMORANDUM*

* Perati appeals the district court's dismissal of his civil RICO action against Hertz Corporation ("Hertz") and United Airlines, Inc. ("United") for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Appellees seek costs and attorneys' fees pursuant to Fed.R.App.P. 38. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988), and we affirm the district court and decline to grant an award under Rule 38.

We review de novo a dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Mishler v. Nevada State Bd. of Medical Examiners, 896 F.2d 408, 409 (9th Cir.1990). Dismissal is inappropriate unless " 'it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Love v. United States, 871 F.2d 1488, 1491 (9th Cir.1989) (citations omitted). Allegations in the complaint are accepted as true and are construed in the light most favorable to the plaintiff. Id.

Perati's claim against appellees is founded on 18 U.S.C. Sec. 1962(a)-(d) (1988). His only colorable RICO predicates derive from his allegation that Hertz and United committed mail fraud on several occasions in promoting their Travel Award Program. Mail fraud is indeed a "racketeering activity" under section 1961(1)(B). 18 U.S.C. Sec. 1961(1)(B) (1988). To prove mail fraud, however, one must show:

(1) the defendants formed a scheme or artifice to defraud; (2) the defendants used the United States mails or caused a use of the United States mails in furtherance of the scheme; and (3) the defendants did so with the specific intent to deceive or defraud.

Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1400 (9th Cir.1986); Rothman v. Vedder Park Management, 912 F.2d 315, 316 (9th Cir.1990).

Perati relies exclusively on appellees' brochure in support of his claim that they formed a scheme or artifice to defraud. Contrary to what he suggests, appellees' brochures did not say Travel Award Program travel certificates were good for round trip flights, or for flights between California and Mexico. The fact that Perati believed otherwise is inconsequential. The brochures warned him to check the published routings before participating in the program. His failure to do so does not somehow render appellees liable under civil RICO.

Appellees seek costs and attorneys' fees under Rule 38, which provides:

If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to appellee.

Fed.R.App.P. 38. An appeal is considered "frivolous" for purposes of Rule 38 " 'when the result is obvious or the appellant's arguments are wholly without merit.' " Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir.1989) (quoting McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir.1981)).

The result in this case is not "obvious," nor are Perati's arguments "wholly without merit." Appellees' request under Rule 38 is denied.

AFFIRMED.