Sumit Ghosh, individually and on behalf of Investments USA, Inc., a Nevada corporation; v. Uniti Bank, a California corporation

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUMIT GHOSH, individually and on
behalf of Investments USA, Inc., a Nevada
corporation; et al.,
Plaintiffs–Appellants,
v.
UNITI BANK, a California corporation
Defendant–Appellee.
No. 12-56219
D.C. No. 2:10-cv-07412-DSF-
AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 14, 2014
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FILED
MARCH 31 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Pasadena, California
Before: PAEZ and NGUYEN, Circuit Judges, and MOTZ, Senior District Judge.**
Sumit Ghosh (“Ghosh”), the sole shareholder of Plaintiff-Appellant
Investments, USA, Inc. (“Investments”), challenges the district court’s dismissal of
his complaint alleging that Uniti Bank (“Uniti”) violated both the Racketeering
Influenced and Corrupt Organizations Act (“RICO”) and 42 U.S.C. § 1982 by
engaging in fraudulent lending practices that discriminated against Investments on
the basis of Ghosh’s Indian-American origin.
Anosuya Datta (“Datta”), who controls both Plaintiff-Appellant Citywide
Funding (“Citywide”) and Plaintiff-Appellant Sadarang American International
PAC, Inc. (“Sadarang”), challenges the district court’s grant of Uniti’s motion for
summary judgment on her claim that Uniti violated 42 U.S.C. § 1983. Datta
alleged that Uniti acted under color of state law by summoning Los Angeles Police
and Fire Department personnel to events at property owned by Uniti and leased by
Sadarang, and by influencing the LAFD’s subsequent decision to stop issuing
permits for Sadarang’s use of the leased space as a banquet hall.
** The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.

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We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo the
district court’s decisions, we affirm. See Skilstaf, Inc v. CVS Caremark Corp., 669
F.3d 1005, 1014 (9th Cir. 2012) (reviewing de novo a district court’s dismissal);
Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 776 (9th Cir. 2010) (reviewing
de novo questions of law decided on summary judgment).
We first address Ghosh’s claims. A civil RICO plaintiff must allege a
pattern of racketeering activity in order to state a claim under 18 U.S.C. § 1962.
Sedima S.P.R.L. v. Imrex Co., Inc, 473 U.S. 479, 481–82 (1985). Ghosh and
Investments, however, alleged only that Uniti engaged in fraudulent and predatory
lending practices—acts that are not among the statutorily enumerated examples of
racketeering activity provided by 18 U.S.C. § 1961(1)(B). See 18 U.S.C. §
1961(1)(B). Because the list of criminal acts in § 1961(1)(B) is exhaustive, the
district court properly dismissed Ghosh’s and Investments’ complaint for failure to
state a RICO claim upon which relief may be granted.1
Furthermore, because Ghosh was not a party to the loan agreement between
Uniti Bank and Investments, he lacked standing to pursue a personal claim under
42 U.S.C. § 1982. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479–80
(2006) (holding that the sole shareholder of a company lacked standing to state a
1At oral argument, Appellants appropriately abandoned their RICO claim.

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personal § 1981 claim where the defendant allegedly breached its contract with the
plaintiff’s company because of racial animus toward the plaintiff). Investments’
complaint, meanwhile, failed to allege any facts that support its contention that
Uniti treated Investments differently than similarly-situated mortgagees on account
of Ghosh’s racial identity. See, e.g. Daniels v. Dillard’s, Inc., 373 F.3d 885, 887
(8th Cir. 2004) (observing that “disparate impact discrimination under sections
1981 and 1982 will not lie”); see also Gen. Bldg. Contractors Ass’n, Inc. v. Penn,
458 U.S. 375, 391 (1982) (noting that § 1981 can only be violated by purposeful
discrimination); Denny v. Hutchinson Sales Corp., 649 F.2d 816, 822 (10th Cir.
1981) (requiring a plaintiff to prove discriminatory purpose to state a § 1982
claim). For this reason, Investments did not establish a factual basis for its
allegations of racial discrimination, and the district court appropriately dismissed
its claim under 42 U.S.C. § 1982. See Iqbal v. Ashcroft, 556 U.S. 662, 678, 681
(2009).
Finally, Datta’s § 1983 claim required her to show that Uniti both deprived
her of a right secured by the Constitution, and acted under color of state law. 42
U.S.C. § 1983; Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). Datta,
however, failed to demonstrate “joint action” between Uniti representatives and
members of the LAFD with respect to the LAFD’s decision to stop issuing event

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permits for the space Datta leased from Uniti. See, e.g., Collins, 878 F.2d at 1154
(9th Cir. 1989) (applying the “joint action” test where plaintiff alleged that state
action existed from government presence at a private enforcement action);
Howerton v. Gabica, 708 F.2d 380, 383–84 (9th Cir. 1983) (same). Because Datta
did not demonstrate a substantial degree of cooperative action between Uniti
employees and government officials, she failed to establish that Uniti acted under
color of state law when it summoned city personnel to the premises, or when Datta
was subsequently denied permits from the city. See Collins, 878 F.2d at 1154
(“Joint action therefore requires a substantial degree of cooperative action.”). For
this reason, the district court’s decision on summary judgment was appropriate
with respect to Datta’s claim under § 1983.
AFFIRMED.

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