Connie Mathews v. PODS ENTERPRISES, INC.; MEMPHIS PORTABLE STORAGE, dba PODS; JUDSON KROEZE

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0234n.06
No. 12-5766
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CONNIE MATHEWS,
Plaintiff-Appellant,
v.
PODS ENTERPRISES, INC.; MEMPHIS
PORTABLE STORAGE, dba PODS;
JUDSON KROEZE,
Defendants-Appellees,
and
MANNSDALE MANAGEMENT GROUP, et
al.,
Defendants.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
BEFORE: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
PER CURIAM. Connie Mathews, a Tennessee citizen, appeals through counsel a district
court order dismissing her complaint alleging a Racketeer Influenced and Corrupt Organizations Act
(RICO) claim, as well as state law claims.
Seeking two million dollars in damages, Mathews filed a complaint and amended complaint
(R.E. 26) against a number of defendants alleged to be involved in the ownership and administration
of PODS Enterprises, Inc. The complaint alleged that Mathews stored property worth $310,000 with
the defendants in 2006. She did not pay the storage fees, and her property was auctioned for

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No. 12-5766
Mathews v. PODS Enters., et al.
approximately one percent of that amount. The money was used to pay the fees, with the balance
remitted to Mathews. Mathews alleged that the defendants violated RICO by engaging in mail and
wire fraud when they communicated with her by mail and telephone without informing her of the
date, time, and location of the auction of her property. She also alleged that defendants violated
RICO by engaging in money laundering, and committed several state torts. Mathews claimed that
defendants had committed RICO violations in auctioning the property of other customers as well.
Service was not perfected against several of the named defendants. Those who were served
moved to dismiss the complaint (R.E. 29), and Mathews filed a response (R.E. 35). The district
court granted defendants’ motion and dismissed the RICO claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) (R.E. 36 & 37). The district court declined to exercise supplemental jurisdiction
over the state law claims, which were dismissed without prejudice. Mathews filed a motion to alter
the judgment (R.E. 38), which the district court denied (R.E. 40).
On appeal, Mathews reasserts the claims of mail and wire fraud underlying the alleged RICO
violation. She has abandoned her claims of money laundering and has not appealed the dismissal
of her state-law claims. She argues that the district court made an improper factual finding that the
defendants incorrectly informed her of the location of the auction. The district court apparently
based this statement on a finding in a similar state court action that Mathews filed but eventually
voluntarily dismissed. The state court found that defendants’ advertisement of the auction
inadvertently listed the wrong location, and that people who attended that location were directed to
the correct place (R.E. 20, Ex. B). Mathews does not acknowledge having seen the advertisement.
We review the dismissal of a complaint under Rule 12(b)(6) de novo; the dismissal will be
upheld where the complaint does not state a claim that is plausible on its face. Brown v. Cassens
-2-

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No. 12-5766
Mathews v. PODS Enters., et al.
Transp. Co., 675 F.3d 946, 953 (6th Cir. 2012). In order to plead fraud, as required by Federal Rule
of Civil Procedure 9(b), a complaint must allege the existence of a fraudulent scheme and the
fraudulent intent of the participants in the scheme, among other elements. Heinrich v. Waiting
Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012). The complaint in this case lacked
any plausible claim that defendants were engaged in a fraudulent scheme or acted with fraudulent
intent. Defendants auctioned the stored property in order to recover the unpaid storage fees, and
remitted the balance to Mathews. There was no plausible allegation that defendants acted with intent
to defraud. See id. at 404. The argument that the district court made an improper finding of fact that
defendants misinformed Mathews of the location of the auction is irrelevant. Even accepting the
complaint’s allegation that Mathews was never informed of the location of the auction, the complaint
failed to set forth a plausible claim of mail or wire fraud to support the claim of a RICO violation.
Accordingly, the district court’s dismissal of the complaint is affirmed.
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