Angelica Limcaco v. Steve Wynn

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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12 | ANGELICA LIMCACO, RowecMehe

IS Plaintiff, ORDER re: Defendants’

14 v. Motions to Dismiss First

15 | STEVE WYNN, et al., él ol. top [S7, 98,

16 Defendants.

18 Currently before the Court are five motions to

19] dismiss Plaintiff Angelica Limcaco’s (“Plaintiff” or

20 | “Limcaco”) First Amended Complaint (“FAC”) filed by

21] Defendants Wynn Resorts, Ltd. (“Wynn Resorts”) and

22 | Matthew Maddox (“Maddox”) [57], Defendant Steve Wynn

23} (“Wynn”) [58], Defendant Kimmarie Sinatra (“Sinatra”)

24 [61], Defendant Barbara Buckley (“Buckley”) [91], and

25 | Defendant ML Strategies, LLC (“ML Strategies”) [108].

26 | Having reviewed all papers submitted pertaining to the

27 | Motions, the Court NOW FINDS AND RULES AS FOLLOWS: the

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1 Court GRANTS with prejudice Wynn Resorts and Maddox’s

2 motion; GRANTS with prejudice Buckley’s motion; GRANTS

3 with prejudice Wynn’s motion; GRANTS with prejudice

4 Sinatra’s motion; and GRANTS with prejudice ML

5 Strategies’s motion.

6 I. BACKGROUND

7 A. Factual Background

8 Plaintiff alleges the following in her FAC:

9 Around July 2005, Plaintiff reported to human

10 resources that a coworker at Wynn Las Vegas casino and

11 resort (“WLV”) had been raped and impregnated by Steve

12 Wynn. See FAC ¶ 40, ECF No. 50. Plaintiff’s superior,

13 Doreen Whennen (“Whennen”), threatened Plaintiff to

14 remain silent about the reported rape allegations

15 (“Limcaco Sexual Assault Report”). Id. Still, Whennen

16 demanded that Plaintiff disclose her other allegations

17 of sexual assault against Wynn. Id. ¶ 44. But, when

18 Plaintiff did so, Whennen took no action. Id. After

19 Plaintiff met with then-president and Chief Operating

20 Officer of WLV, Andrew Pascal, to express concerns about

21 the allegations, Plaintiff was terminated, unable to

22 find work, and forced into bankruptcy. Id. The

23 coworker’s abrupt removal without explanation,

24 Plaintiff’s termination, and WLV’s intimidation tactics

25 induced Plaintiff to fear for her safety if she came

26 forward with her sexual assault allegations. Id. ¶ 45.

27 Defendants Wynn Resorts (owner of WLV), Steve Wynn

28 (former Wynn Resorts Chief Executive Officer), Matthew

1 Maddox (Wynn Resorts executive), and Kimmarie Sinatra

2 (former Wynn Resorts General Counsel and executive)

3 (referred to collectively as the “Wynn Defendants”)

4 sought to protect their interests in gaming licenses by

5 withholding the Limcaco Sexual Assault Report from the

6 Nevada Gaming Control Board (“NGCB”). Id. ¶ 45. In a

7 bid to open the Encore Boston Harbor resort and casino,

8 Defendants also withheld the Limcaco Sexual Assault

9 Report from the Massachusetts Gaming Commission (“MGC”)

10 in violation of the Massachusetts Gaming Act (“MGA”).

11 Id. ¶ 3.

12 Further, Defendants did not disclose to the MCG

13 information regarding the involvement of convicted felon

14 Charles Lightbody in the gaming license process. Id. ¶¶

15 3-4. The Wynn Defendants partnered with FBT Everett

16 Realty, LLC (“FBT”), of which Lightbody was part owner,

17 in the sale of land for the casino project. Id. ¶ 56.

18 The Wynn Defendants also hired ML Strategies, a

19 political consulting firm, to assist their acquisition

20 of gaming licenses in Massachusetts for the Wynn Boston

21 Casino. Id. ¶ 39. ML Strategies knew of and/or

22 discussed Lightbody’s role in the FBT and Wynn Resorts

23 land deal. Id. Thus, in its representative capacity

24 for Wynn Defendants, ML Strategies violated the MGA by

25 failing to disclose to the MGC (1) information about

26 Lightbody and (2) information about the Limcaco Sexual

27 Assault Report. Id.

28 The Wynn Defendants and ML Strategies also withheld

1 the Limcaco Sexual Assault Report from litigation with

2 Wynn Resorts’ co-founder and former Vice Chairman Kazuo

3 Okada regarding alleged improper payments and the

4 pursuit of a casino in Macau. Id. ¶ 6-7. The Wynn

5 Defendants and ML Strategies still did not disclose the

6 Limcaco Sexual Assault Report to the MGC in 2016 after

7 the sexual assault allegations became a central issue in

8 the Okada litigation. Id. ¶ 7.

9 The existence of the Limcaco Sexual Assault Report

10 became public following the publication of an article by

11 the Wall Street Journal on or around January 26, 2018.

12 Id. ¶ 9. Both the NGBC and MGC began investigations

13 into the matter, threatening the Massachusetts casino

14 license and the $2.6 billion project. Id. ML

15 Strategies assisted Defendant Maddox and other parties

16 with preserving the gaming licenses in the wake of the

17 MGC investigations. Id.

18 Limcaco filed suit (“Nevada Action”) in the United

19 States District Court for the District of Nevada

20 (“Nevada District Court”) on September 4, 2018, alleging

21 wrongful termination in violation of Title VII of the

22 Civil Rights Act of 1964 against WLV and Steve Wynn.

23 Id. ¶ 11. Elayna Youchah (“Youchah”) represented WLV in

24 the Nevada Action. Id. ¶ 14. District Judge Miranda Du

25 presided over the Nevada Action and Magistrate George

26 Foley served as Magistrate Judge. Id.

27 The outcome of the Nevada Action was directly tied

28 to the Wynn Defendants’ illicit efforts to protect their

1 Massachusetts casino license. Id. ¶ 24. On December 3,

2 2018, a merit selection panel was designated to fill the

3 vacancy of Magistrate Foley, who retired before the

4 conclusion of the Nevada Action. Id. ¶ 87(m)(i). On

5 the panel sat Defendant Buckley, executive director of

6 the Legal Aid Center of Southern Nevada (“LACSN”). Id.

7 ¶ 38. LACSN receives funding from Wynn Resorts. Id.

8 The Wynn Defendants intended to use their payments to

9 LACSN to influence Defendant Buckley in elevating

10 Youchah to the court, where WLV’s motion to dismiss was

11 pending, thereby influencing the outcome of the Nevada

12 Action. Id. ¶ 87(m)(vi).

13 All filings in the Nevada Action had been made by

14 Youchah until April 2, 2019, when a colleague of

15 Youchah’s filed a notice of appearance and a reply brief

16 without Youchah’s name. Id. ¶ 87(h). Youchah had at

17 that point been selected to fill the magistrate judge

18 vacancy. Id. at 46 n.21. The court granted WLV’s

19 motion to dismiss on April 18, 2019. Id. ¶ 87(m)(iii).

20 Although Judge Du may not have known of the Wynn

21 Defendants and Buckley’s coordination, she rendered a

22 favorable decision to Youchah, who may have had “greater

23 credibility” as Judge Du’s new colleague on the court.

24 Id. ¶ 87(m)(vi). On April 30, 2019, MGC allowed Wynn

25 Resorts to keep its gaming license, but it fined Wynn

26 Resorts $35,000,000 and installed the firm Miller and

27 Chevalier to monitor Maddox. Id. ¶ 87(j). On May 17,

28 2019, Youchah was publicly announced as the replacement

1 for Magistrate Foley in the Nevada District Court. Id.

2 ¶ 87(l).

3 Following the dismissal of the Nevada Action, Wynn

4 Resorts sponsored LACSN’s annual awards event on

5 December 13, 2019. Id. ¶ 87(m)(v). Sinatra was part of

6 a group that donated an additional $250,000 to LACSN on

7 November 8, 2019. Id. While Wynn Resorts’ donations

8 between April 2019 and April 2020 were originally set

9 forth in a 2017 Memorandum of Understanding (“MOU”), the

10 MOU provided that Wynn Resorts could revoke the

11 donations at its sole discretion. Id.

12 The Wynn Defendants’ payments to influence the

13 outcome of the Nevada Action represent just one instance

14 of a pattern of illegal conduct. Id. ¶ 26. In addition

15 to concealing the Limcaco Sexual Assault Report and

16 involvement of Lightbody, Steve Wynn was involved in

17 Elliot Broidy’s1 conspiracy to violate the Foreign

18 Agents Registration Act, id. ¶ 27, and Maddox remains

19 under investigation by the MGC and Miller and Chevalier

20 for improper conduct, id. ¶ 28.

21 B. Procedural Background

22 On December 16, 2020, Plaintiff initiated this

23 civil Racketeer Influenced and Corrupt Organizations Act

24 (“RICO”) action [1] against the Wynn Defendants. On

25 March 15, 2021, Plaintiff filed her FAC [50], adding a

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1 According to the FAC, Elliot Broidy was a “top Republican

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National Convention fundraiser” with whom Wynn conspired with.

28 FAC ¶ 27.

1 cause of action, as well as adding Buckley and ML

2 Strategies (collectively, together with the Wynn

3 Defendants, “Defendants”).

4 In brief, the FAC alleges that the Wynn Defendants

5 made conditional payments to a public official,

6 Defendant Buckley, in an effort to influence the Nevada

7 Action, which arose out of Plaintiff’s prior report of a

8 rape allegation against Defendant Wynn. See FAC ¶ 1,

9 ECF No. 50. The FAC further alleges that this conduct

10 coincided with Defendants’ efforts to save casino gaming

11 licenses in Massachusetts that were at risk of being

12 revoked after the Wall Street Journal published an

13 article reporting numerous allegations of sexual

14 misconduct by Defendant Wynn and publicly revealed the

15 details of Plaintiff’s prior report. See id. ¶¶ 1, 9.

16 Plaintiff brings four causes of action in the FAC: (1)

17 violation of RICO, 18 U.S.C. § 1962(c) (against all

18 Defendants); (2) violation of RICO, 18 U.S.C. § 1962(c)

19 (against Defendants Wynn, Maddox, Sinatra, Buckley, and

20 ML Strategies); (3) conspiracy to violate RICO, 18

21 U.S.C. § 1962(d) (against all Defendants); and (4)

22 independent action in equity to set aside and vacate

23 judgment due to extrinsic fraud or mistake (against all

24 Defendants). See generally id.

25 All Defendants filed motions to dismiss the FAC

26 [57, 58, 61, 91, 108]. Defendants Wynn [59], Sinatra

27 [61], and Buckley [91] also joined Defendants Wynn

28 Resorts and Maddox’s motion to dismiss [57]. Defendant

1 ML Strategies filed a joinder [107] to all other

2 Defendants’ motions to dismiss.

3 On May 3, 2021, the Court granted [105] Defendants’

4 Motion for a Finding of Good Cause to Continue Fed. R.

5 Civ. P. 16(b) Scheduling Conference [69] and continued

6 the Scheduling Conference to August 24, 2021.

7 II. LEGAL STANDARD

8 A. Rule 12(b)(2)

9 Federal Rule of Civil Procedure (“Rule”) 12(b)(2)

10 provides a basis for moving to dismiss a claim for lack

11 of personal jurisdiction. Fed. R. Civ. P. 12(b)(2).

12 Once personal jurisdiction is challenged, the plaintiff

13 bears the burden of demonstrating that jurisdiction is

14 appropriate. See, e.g., Boschetto v. Hansing, 539 F.3d

15 1011, 1015 (9th Cir. 2008); Pebble Beach Co. v. Caddy,

16 453 F.3d 1151, 1154 (9th Cir. 2006). Where the motion

17 is “based on written materials rather than an

18 evidentiary hearing, the plaintiff need only make a

19 prima facie showing of jurisdictional facts” to survive

20 dismissal. Mavrix Photo, Inc. v. Brand Techs., Inc.,

21 647 F.3d 1218, 1223 (9th Cir. 2011).

22 “The plaintiff cannot ‘simply rest on the bare

23 allegations of [the] complaint,’ but uncontroverted

24 allegations in the complaint must be taken as true.”

25 Id. (quoting Schwarzenegger v. Fred Martin Motor Co.,

26 374 F.3d 797, 800 (9th Cir. 2004)). If, however, the

27 defendant presents evidence contradicting the

28 allegations in the complaint, the plaintiff must “come

1 forward with facts, by affidavit or otherwise,

2 supporting personal jurisdiction.” Barantsevich v. VTB

3 Bank, 954 F. Supp. 2d 972, 982 (C.D. Cal. 2013) (quoting

4 Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)).

5 “[D]isputed allegations in the complaint that are not

6 supported with evidence or affidavits cannot establish

7 jurisdiction[.]” AMA Multimedia, LLC v. Wanat, 970 F.3d

8 1201, 1207 (9th Cir. 2020). Although the court “may not

9 assume the truth of allegations in a pleading which are

10 contradicted by affidavit,” factual disputes must be

11 resolved in the plaintiff’s favor. Mavrix Photo, 647

12 F.3d at 1223 (citations omitted).

13 “Personal jurisdiction over [a nonresident]

14 defendant is proper where permitted by a long-arm

15 statute and where the exercise of jurisdiction does not

16 violate federal due process.” AMA Multimedia, 970 F.3d

17 at 1207 (citing Pebble Beach, 453 F.3d at 1154). Where

18 no applicable federal statute governs personal

19 jurisdiction, “the district court applies the law of the

20 state in which the court sits.” Mavrix Photo, 647 F.3d

21 at 1223. “Because ‘California’s long-arm statute allows

22 the exercise of personal jurisdiction to the full extent

23 permissible under the U.S. Constitution,’ our inquiry

24 centers on whether exercising jurisdiction comports with

25 due process.” Picot v. Weston, 780 F.3d 1206, 1211 (9th

26 Cir. 2015) (quoting Daimler AG v. Bauman, 571 U.S. 117,

27 125 (2014)); see Cal. Code Civ. Proc. § 410.10.

28 Constitutional due process requires that a

1 nonresident defendant have “certain minimum contacts

2 with [the forum state] such that the maintenance of the

3 suit does not offend ‘traditional notions of fair play

4 and substantial justice.’” Goodyear Dunlop Tires

5 Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011)

6 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

7 (1945)). Depending on the nature and extent of the

8 defendant’s contacts with the forum state, a court may

9 exercise either general or specific jurisdiction.

10 Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S.

11 Ct. 1773, 1780 (2017). General jurisdiction exists when

12 the defendant’s contacts “are so continuous and

13 systematic as to render [it] essentially at home in the

14 forum State.” Daimler, 571 U.S. at 139 (internal

15 quotation marks and citation omitted). By contrast,

16 specific jurisdiction exists when the suit “aris[es] out

17 of or relate[s] to the defendant’s contacts with the

18 forum.” Id. at 127 (citations omitted).

19 B. Rule 12(b)(6)

20 Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

21 allows a party to move for dismissal on one or more

22 claims if a pleading fails to state a claim upon which

23 relief can be granted. Fed. R. Civ. P. 12(b)(6).

24 Pursuant to Rule 8(a), a complaint must contain “a short

25 and plain statement of the claim showing that the

26 pleader is entitled to relief” to give the defendant

27 “fair notice of what the . . . claim is and the grounds

28 upon which it rests.” Bell Atl. Corp. v. Twombly, 550

1 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a).

2 Dismissal is proper “where the complaint lacks a

3 cognizable legal theory or sufficient facts to support a

4 cognizable legal theory.” Mendiondo v. Centinela Hosp.

5 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (citing

6 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

7 (9th Cir. 1988)).

8 “To survive a motion to dismiss, a complaint must

9 contain sufficient factual matter, accepted as true, to

10 ‘state a claim to relief that is plausible on its

11 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

12 (quoting Twombly, 550 U.S. at 570). While a complaint

13 need not contain detailed factual allegations, it must

14 provide more than “labels and conclusions” or “a

15 formulaic recitation of the elements of a cause of

16 action.” Twombly, 550 U.S. at 555. The plaintiff must

17 allege enough facts “to raise a right to relief above

18 the speculative level.” Id. In evaluating a Rule

19 12(b)(6) motion, a court must take all well-pleaded

20 allegations of material fact as true and construe them

21 in the light most favorable to the plaintiff. Great

22 Minds v. Off. Depot, Inc., 945 F.3d 1106, 1109 (9th Cir.

23 2019). A court may generally consider only “the

24 complaint itself and its attached exhibits, documents

25 incorporated by reference, and matters properly subject

26 to judicial notice.” In re NVIDIA Corp. Sec. Litig.,

27 768 F.3d 1046, 1051 (9th Cir. 2014).

28 ///

1 III. DISCUSSION

2 A. Judicial Notice

3 1. Wynn Resorts & Maddox’s Requests for Judicial

4 Notice

5 Before turning to the merits of Defendants’

6 motions, the Court first addresses the numerous requests

7 for judicial notice made in connection with the present

8 motions. A court may take judicial notice of an

9 adjudicative fact that is “not subject to reasonable

10 dispute because it: (1) is generally known within the

11 trial court’s territorial jurisdiction; or (2) can be

12 accurately and readily determined from sources whose

13 accuracy cannot reasonably be questioned.” Fed. R.

14 Evid. 201(b). Matters of public record may be

15 judicially noticed, but disputed facts contained therein

16 may not. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d

17 988, 999 (9th Cir. 2018). “[A]ccuracy is only part of

18 the inquiry under Rule 201(b).” Id. “A court must also

19 consider—and identify—which fact or facts it is noticing

20 from” the documents. Id.

21 Wynn Resorts and Maddox filed two requests seeking

22 judicial notice of the following twelve documents:

23 (1) the order dismissing Plaintiff’s claims in the

24 Nevada Action, dated April 18, 2019 (“Exhibit A”);

25 (2) the docket in the Nevada Action, as of February 22,

26 2021 (“Exhibit B”); (3) Plaintiff’s complaint filed in

27 Limcaco v. Wynn Las Vegas, LLC, et al., Eighth Judicial

28 District Court, Clark County, Nevada, Case No. A-19-

1 796060-C (“Plaintiff’s State Case”), dated June 4, 2019

2 (“Exhibit C”); (4) Plaintiff’s amended supplemental

3 brief filed in Limcaco v. Wynn Las Vegas, LLC, et al.,

4 U.S. Court of Appeals for the Ninth Circuit, Case No.

5 19-15949, dated April 14, 2020 (“Exhibit D”); (5) the

6 order staying Plaintiff’s State Case, dated October 17,

7 2019 (“Exhibit E”); (6) the press release from the

8 Nevada District Court announcing the appointment of

9 Elayna J. Youchah as a U.S. Magistrate Judge, dated May

10 17, 2019 (“Exhibit F”); (7) the MGC’s decision and order

11 regarding its investigation of Wynn MA, LLC and Wynn

12 Resorts, Ltd, dated April 30, 2019 (“Exhibit G”); (8)

13 the order appointing a merit selection panel to make a

14 recommendation for the replacement of Magistrate Judge

15 Carl W. Hoffman, Jr. and Magistrate Judge George W.

16 Foley, Jr., dated December 3, 2018 (“Exhibit H”);

17 (9) Plaintiff’s petition for a writ of certiorari in

18 Limcaco v. Wynn Las Vegas, LLC, et al., U.S. Supreme

19 Court, Case No. 20-949, dated March 22, 2021 (“Exhibit

20 I”); (10) an excerpt of the order list denying

21 certiorari in Limcaco v. Wynn Las Vegas, LLC, et al.,

22 U.S. Supreme Court, Case No. 20-949, dated March 22,

23 2021 (“Exhibit J”); (11) Wynn Resorts, Ltd.’s

24 environmental, social, and governance report for the

25 year 2017 (“Exhibit K”); and (12) a press release titled

26 “Wynn Resorts Issues 2017 Global Sustainability Report,”

27 dated May 22, 2018 (“Exhibit L”). See generally Wynn

28 Resorts & Maddox’s Req. for Judicial Notice, ECF No. 57-

1 2; Wynn Resorts & Maddox’s Suppl. Req. for Judicial

2 Notice, ECF No. 74-1.

3 Exhibits A through E, I, and J are court filings

4 and records in related proceedings and thus properly

5 subject to judicial notice. See Reyn’s Pasta Bella, LLC

6 v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006)

7 (taking judicial notice of pleadings, memoranda, and

8 other court documents). The Court takes judicial notice

9 of the existence of these proceedings, the dates of

10 filing, the Plaintiff’s claims, and the courts’

11 dispositions. See Exs. A-E, ECF Nos. 57-3 to -7; Exs.

12 K-L, ECF Nos. 74-2 to -3. The Court does not, however,

13 take judicial notice of these documents for the truth of

14 the matters asserted therein. See Lee v. City of Los

15 Angeles, 250 F.3d 668, 690 (9th Cir. 2001).

16 Exhibits F and H are also susceptible to judicial

17 notice because, as official documents from the Nevada

18 District Court, they are not subject to reasonable

19 dispute. See Dehoog v. Anheuser-Busch InBev SA/NV, 899

20 F.3d 758, 763 n.5 (9th Cir. 2018) (taking judicial

21 notice of “government documents, court filings, press

22 releases, and undisputed matters of public record”).

23 The Court notices that Youchah’s appointment as a U.S.

24 Magistrate Judge was announced on May 17, 2019, and that

25 she was to assume the position on August 6, 2019. See

26 Ex. F, ECF No. 57-8. The Court also notices the fact

27 that the Chief Judge of the Nevada District Court

28 appointed nine members to serve on the merit selection

1 panel. See Ex. H, ECF No. 57-11. These facts “can be

2 accurately and readily determined” from the press

3 release and order, and Plaintiff does not dispute their

4 veracity. Fed. R. Evid. 201(b).

5 Accordingly, Wynn Resorts & Maddox’s requests for

6 judicial notice are GRANTED as to Exhibits A, B, C, D,

7 E, F, H, I, and J. The Court DENIES the requests for

8 judicial notice as to Exhibits G, K, and L because they

9 are not necessary to the resolution of Defendants’

10 motions to dismiss the FAC.

11 2. Plaintiff’s Requests for Judicial Notice

12 Plaintiff filed nine requests for judicial notice.

13 The first five requests were filed before the conclusion

14 of briefing on the present motions. Plaintiff then

15 filed three more requests. Following the third,

16 Defendants objected to the later-filed requests for

17 judicial notice on the grounds that (1) the documents

18 are not relevant to Defendants’ motions or Plaintiff’s

19 allegations, (2) their contents are not judicially

20 noticeable, and (3) Plaintiff’s requests for judicial

21 notice are effectively improper sur-replies. See

22 generally Defs.’ Objs. to Pl.’s Reqs. for Judicial

23 Notice, Dkt. Nos. 117, 122, 126, ECF No. 127. Plaintiff

24 filed a reply to Defendants’ objections, arguing that

25 her requests are proper and the documents are relevant.

26 See generally Reply Brief in Supp. of Pl.’s Reqs. for

27 Judicial Notice, ECF No. 128. Doubling down, Plaintiff

28 thereafter filed her ninth request for judicial notice.

1 i. Plaintiff’s Later-Filed Requests for

2 Judicial Notice

3 The Court does not take judicial notice of the

4 seventeen documents identified in Plaintiff’s later-

5 filed requests. See generally Pl.’s Req. for Judicial

6 Notice re Defs.’ MTDs and Mot. to Stay Disc., ECF No.

7 117; Pl.’s Req. for Judicial Notice re Defs.’ MTDs, ECF

8 No. 122; Pl.’s Req. for Judicial Notice re Defs.’ MTDs,

9 ECF No. 126; Pl.’s Req. for Judicial Notice re Defs.’

10 MTDs, ECF No. 129. All but five of these documents were

11 available before the close of briefing and even before

12 the operative FAC was filed. The Court sees no reason

13 why Plaintiff could not have discovered and included any

14 pertinent information from those documents in her

15 oppositions. Although they do not directly respond to

16 Defendants’ reply briefs, Plaintiff’s requests for

17 judicial notice contain argument—specifically aimed at

18 establishing open-ended continuity—such that they could

19 be construed as improper sur-replies or at least as

20 attempts to bolster her FAC. See L.R. 7-10 (“Absent

21 prior written order of the Court, the opposing party

22 shall not file a response to the reply.”).

23 Moreover, assuming they were properly filed, the

24 documents of which Plaintiff seeks judicial notice would

25 not necessarily be as helpful as she claims. See Khoja,

26 899 F.3d at 999 (“Just because the document itself is

27 susceptible to judicial notice does not mean that every

28 assertion of fact within that document is judicially

1 noticeable for its truth.”); Von Saher v. Norton Simon

2 Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.

3 2010) (“Courts may take judicial notice of publications

4 introduced to indicate what was in the public realm at

5 the time, not whether the contents of those articles

6 were in fact true.” (internal quotation marks and

7 citation omitted)); Gerritsen v. Warner Bros. Ent. Inc.,

8 112 F. Supp. 3d 1011, 1029–30 (C.D. Cal. 2015)

9 (declining to take judicial notice of newspaper articles

10 and press releases because “it [was] irrelevant, for

11 purposes of defendants’ motion to dismiss, that the

12 information in the press releases and news articles was

13 publicly available”).

14 Finally, the documents are not pertinent or

15 necessary to the Court’s resolution of the present

16 motions, and the Court does not rely upon them. On this

17 basis, the Court therefore DENIES Plaintiff’s four

18 later-filed requests for judicial notice. Defendants’

19 objections are OVERRULED.

20 The Court next considers Plaintiff’s first five

21 requests for judicial notice.

22 ii. Plaintiff’s First Five Requests for

23 Judicial Notice

24 In her first request, Plaintiff asks the Court to

25 take judicial notice of: (1) Sinatra’s separation

26 agreement with Wynn Resorts that was filed with the SEC,

27 stating that Sinatra “agree[d] to cooperate with [Wynn

28 Resorts]” through December 31, 2018; (2) the docket from

1 the Nevada Action, as of February 22, 2021; (3) the

2 order appointing a merit selection panel that included

3 Peterson and Buckley to make a recommendation for the

4 replacement of vacancies in the Nevada District Court,

5 dated October 2, 2018; (4) an announcement from the

6 Clark County Bar Association’s website that the deadline

7 to submit applications to fill Magistrate Judge Foley’s

8 vacancy was November 30, 2018; (5) the order appointing

9 a merit selection panel that included Buckley to make a

10 recommendation for the replacement of Magistrate Judge

11 Carl W. Hoffman, Jr. and Magistrate Judge George W.

12 Foley, Jr., dated December 3, 2018; (6) the order

13 appointing a merit selection panel that included

14 Peterson and Buckley to make a recommendation regarding

15 vacancies, dated January 2, 2019; (7) the press release

16 announcing Youchah’s selection to fill the vacancy of

17 Magistrate Judge Foley, dated May 17, 2019; (8) the

18 “Case Query” page of the Nevada Action; (9) Buckley’s

19 biography; (10) Sinatra’s biography; and (11) LACSN’s

20 Form 990 for the year 2019. See generally Pl.’s First

21 Req. for Judicial Notice, ECF No. 87.

22 Nearly all of these documents are properly subject

23 to judicial notice. See Dehoog, 899 F.3d 758, 763 n.5

24 (9th Cir. 2018) (taking judicial notice of “government

25 documents, court filings, press releases, and undisputed

26 matters of public record”). The Court notes that the

27 source of Buckley’s and Sinatra’s biographies are not

28 clearly ascertainable. But Defendants do not object to

1 them, and the facts Plaintiff seek to be judicially

2 noticed—Buckley’s and Sinatra’s roles in LACSN—are not

3 disputed. Accordingly, the Court GRANTS Plaintiff’s

4 first request for judicial notice.

5 The Court notes that all of the facts Plaintiff

6 asks the Court to judicially notice are already alleged

7 in the FAC—for example, the fact that Buckley and

8 Peterson, Wynn’s counsel, were named on the same merit

9 selection panel on January 2, 2019, FAC ¶ 87(m)(iii);

10 Youchah filed motions and reply briefs as lead counsel

11 WLV in February and March 2019, FAC ¶ 87(f); Youchah’s

12 colleague filed a notice of appearance on April 2, 2019,

13 FAC ¶ 20; the Nevada District Court granted WLV’s motion

14 to dismiss without leave to amend on April 18, 2019, FAC

15 ¶ 114; Youchah’s selection to fill the vacancy of

16 Magistrate Judge Foley was publicly announced on May 17,

17 2019, FAC ¶ 19; Youchah’s representation of WLV ended on

18 May 28, 2019, FAC ¶ 87(l); Buckley is the executive

19 director of LACSN, FAC ¶ 1; Sinatra is on the board of

20 directors of LACSN, FAC ¶ 22; and LACSN’s Form 990

21 indicates that LACSN paid Buckley approximately $238,100

22 in 2019, FAC ¶ 38. The allegations in the FAC are taken

23 as true in resolving Defendants’ motions to dismiss, and

24 it is unnecessary to judicially notice these facts.

25 In her second request, Plaintiff seeks judicial

26 notice of ten Wall Street Journal articles from January

27 2018 to April 2019 regarding sexual assault allegations

28 against Wynn and the MGC’s investigation. See generally

1 Pl.’s Second Req. for Judicial Notice, ECF No. 88.

2 Again, most of the highlighted facts are already alleged

3 in the FAC or are reasonable inferences that can be

4 drawn from its allegations. Other highlighted

5 statements are imbued with speculation or subject to

6 varying interpretations. See, e.g., Ex. E, ECF No.88-5

7 (“In the past week, company executives appeared to be

8 trying to mount a defensive strategy against the

9 allegations through a series of highly unusual moves.”).

10 Defendants do not oppose Plaintiff’s request, however,

11 so the Court takes judicial notice of these articles for

12 the limited purpose of establishing what was publicly

13 known or reported at the time. See Von Saher, 592 F.3d

14 at 960 (explaining that courts may take judicial notice

15 of news articles and other publications “to indicate

16 what was in the public realm at the time, not whether

17 the contents of those articles were in fact true”);

18 Khoja, 899 F.3d at 1000 (“It is improper to judicially

19 notice a [document] when the substance of the [document]

20 is subject to varying interpretations, and there is a

21 reasonable dispute as to what the [document]

22 establishes.” (internal quotation marks and citation

23 omitted)). Plaintiff’s second request for judicial

24 notice is GRANTED, but the Court does not judicially

25 notice the statements contained in the news articles for

26 their truth.

27 ///

28 ///

1 In her third request, Plaintiff requests judicial

2 notice of certain documents related to the MGC’s

3 investigation, including: (1) an investigative report

4 regarding the suitability of Wynn MA, LLC and others,

5 dated March 15, 2019; (2) a notice of hearing dated

6 March 26, 2019 regarding the April 2019 hearing to

7 determine the suitability of Wynn MA, LLC and others;

8 (3) an excerpt from the transcript of the hearing on

9 April 4, 2019; and (4) a press release from the MGC,

10 dated April 30, 2019, which states that Maddox will be

11 fined and monitored but the relevant qualifiers will

12 retain their casino licenses. See generally Pl.’s Third

13 Req. for Judicial Notice, ECF No. 89. Although the

14 investigative report may be judicially noticeable as the

15 public report of a governmental body, Plaintiff does not

16 make clear what facts it seeks judicial notice of from

17 the 209-page document. Additionally, the occurrence and

18 outcome of the MGC hearing is already alleged in the

19 FAC. FAC ¶¶ 15, 87(g). Further, the Court does not and

20 need not rely on these documents in its decision on the

21 present motions. The Court therefore DENIES Plaintiff’s

22 third request for judicial notice.

23 In her fourth request, Plaintiff seeks judicial

24 notice of court filings in other proceedings,

25 specifically a motion to intervene and a complaint. See

26 generally Pl.’s Fourth Req. for Judicial Notice, ECF No.

27 90. Plaintiff appears to rely on the truth of the

28 allegations contained in these filings to support her

1 allegations of prior criminal investigations involving

2 Defendants and gaming licenses. See id. at 3:8-10

3 (describing the filings as “verifiable evidence”). This

4 could be problematic because, although court filings and

5 other matters of public record generally are judicially

6 noticeable, disputed facts asserted therein are not.

7 Khoja, 899 F.3d at 999 (9th Cir. 2018). And typically,

8 allegations in motions and complaints are disputed.

9 Here, however, the allegations indicate other criminal

10 investigations already referenced in the FAC, and

11 Defendants do not oppose this request. The Court GRANTS

12 Plaintiff’s fourth request for judicial notice, but it

13 does not judicially notice any disputed facts within the

14 court filings.

15 Finally, in her fifth request, Plaintiff requests

16 judicial notice of a Wall Street Journal article titled

17 “Steve Wynn May Face Justice Department Action for Role

18 in China’s Push to Expel Business,” dated May 26, 2021.

19 See generally Pl.’s First Req. for Judicial Notice re

20 Defs.’ MTDs, ECF No. 114. As with the other Wall Street

21 Journal articles, the Court GRANTS this request and

22 takes judicial notice of this article as indicative of

23 what was in the public realm at the time, but not for

24 the veracity of its contents. See Von Saher, 592 F.3d

25 at 960.

26 ///

27 ///

28 ///

1 3. ML Strategies’s Requests for Judicial Notice

2 ML Strategies filed two requests for judicial

3 notice of the following documents published on the MGC’s

4 website: (1) MGC’s “Instructions for Application for a

5 Gaming License-RFA Phase 1 Application”; and (2) MGC’s

6 “Phase I Suitability Decision” for Wynn MA, LLC. See

7 generally ML Strategies’s Req. for Judicial Notice in

8 Supp. of MTD, ECF No. 108-2; ML Strategies’s Req. for

9 Judicial Notice in Supp. of Reply, ECF No. 115-1.

10 Although they may be judicially noticeable, see Daniels-

11 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th

12 Cir. 2010), the Court declines to take judicial notice

13 of these documents because they are unnecessary to the

14 determination of the present motions and the Court does

15 not rely on them. ML Stategies’s requests for judicial

16 notice are DENIED.

17 B. Defendant Buckley’s MTD FAC [91]

18 Buckley moves to dismiss the FAC for lack of

19 personal jurisdiction pursuant to Rule 12(b)(2) and for

20 failure to state a claim pursuant to Rule 12(b)(6).

21 Plaintiff argues that RICO’s nationwide service of

22 process provision, 18 U.S.C. § 1965(b), confers personal

23 jurisdiction over Buckley and that Buckley is otherwise

24 subject to specific jurisdiction in California. Pl.’s

25 Opp’n to Buckley’s MTD 5:10-7:27, ECF No. 101. The

26 Court concludes that it lacks personal jurisdiction over

27 Buckley under either theory and does not address

28 Buckley’s arguments advanced under Rule 12(b)(6).

1 1. Jurisdiction Under RICO

2 Congress authorizes nationwide service of process

3 upon RICO defendants if “the ends of justice” require

4 it. 18 U.S.C. § 1965(b). “Under 18 U.S.C. § 1965(b), a

5 court may exercise personal jurisdiction over non-

6 resident participants in an alleged RICO conspiracy,

7 even if those parties would otherwise not be amenable to

8 jurisdiction in that court.” Rupert v. Bond, 68 F.

9 Supp. 3d 1142, 1161 (N.D. Cal. 2014). “[T]he right to

10 nationwide service in RICO suits is not unlimited,”

11 however, and “merely naming persons in a RICO complaint

12 does not, in itself, make them subject to section

13 1965(b)’s nationwide service provisions.” Butcher’s

14 Union Loc. No. 498, United Food & Com. Workers v. SDC

15 Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986). “In

16 order to establish personal jurisdiction under Section

17 1965(b), Plaintiff[] must show: (1) the Court has

18 personal jurisdiction over at least one of the

19 participants in the action; (2) there is no other

20 district in which a court will have personal

21 jurisdiction over the alleged co-conspirators; and (3)

22 the facts show a single nationwide RICO conspiracy

23 exists.” Gilbert v. Bank of Am., No. C 13-01171 JSW,

24 2014 WL 4748494, at *4 (N.D. Cal. Sept. 23, 2014)

25 (internal quotation marks omitted) (citing Butcher’s

26 Union, 788 F.2d at 539).

27 Buckley challenges the second and third prongs,

28 arguing that: (1) Plaintiff makes no effort to show that

1 there is no other district in which a court would have

2 personal jurisdiction over all Defendants; and (2)

3 Plaintiff fails to allege a multidistrict conspiracy

4 that encompasses Buckley. Buckley’s MTD 7:16-8:12. The

5 Court agrees with Buckley that, at a minimum, Plaintiff

6 has not established the second prong.

7 Plaintiff concedes that Wynn, Maddox, Sinatra,

8 Buckley, and Wynn Resorts could be subject to

9 jurisdiction in Nevada but argues that the FAC’s

10 allegations do not establish that all Defendants would

11 be amenable to jurisdiction in Nevada or elsewhere.

12 Pl.’s Opp’n to Buckley’s MTD 5:4-7. To support her

13 contention, Plaintiff points to allegations that ML

14 Strategies “is a Delaware limited liability company

15 registered to do business in the Commonwealth/State of

16 Massachusetts,” that it “was hired by the Wynn

17 Defendants to assist in acquiring gaming licenses in

18 Massachusetts,” and that ML Strategies’s alleged

19 predicate acts primarily involve misrepresentations to

20 the MGC. Id. at 6:9-14 (citing FAC ¶¶ 39, 96(a)).

21 Based on these allegations, Plaintiff concludes “there

22 is no indication that Nevada has jurisdiction over ML

23 Strategies.” Id. at 6:14-15. Plaintiff further asserts

24 that “there is no indication that Massachusetts has

25 jurisdiction over Buckley, as the allegations pertaining

26 to her surround conduct in Nevada (and aimed at

27 [Plaintiff]).” Id. at 6:15-17 (citing FAC ¶ 96(c)-(e)).

28 ///

1 Plaintiff has not met its burden to show that there

2 is no other district in which a court would have

3 personal jurisdiction over all of the alleged co-

4 conspirators. Indeed, the allegations in the FAC

5 indicate that all Defendants—except perhaps the most

6 recently added ML Strategies—would be subject to

7 jurisdiction in Nevada. Plaintiff’s conclusory

8 assertion that “there is no indication” that ML

9 Strategies is amenable to jurisdiction in Nevada (or

10 Buckley, in Massachusetts) is insufficient to establish

11 jurisdiction under § 1965(b). See Huntair, Inc. v.

12 Gladstone, 774 F. Supp. 2d 1035, 1039–40 (N.D. Cal.

13 2011) (finding the plaintiffs’ statement that they “are

14 not aware of any other district in which a court would

15 have personal jurisdiction over all of the defendants”

16 was “conclusory” and “insufficient to meet [the

17 plaintiffs’] burden to demonstrate that jurisdiction

18 under § 1965(b) would be appropriate”); see also

19 Barantsevich v. VTB Bank, 954 F. Supp. 2d 972, 989–90

20 (C.D. Cal. 2013) (“While it is not clear that there is

21 another district that could exercise jurisdiction over

22 all defendants, plaintiff has the burden of showing

23 affirmatively that this is the case.”). Because

24 Plaintiff fails to allege sufficient facts showing that

25 no other district court could exercise jurisdiction over

26 all Defendants, she may not rely on § 1965(b) to supply

27 a basis for personal jurisdiction. See, e.g., Wegner v.

28 Wells Fargo Bank, N.A., 791 F. App’x 669, 671 (9th Cir.

1 2020); Elofson v. Bivens, 774 F. App’x 409, 410 (9th

2 Cir. 2019), cert. denied, 140 S. Ct. 903 (2020).

3 2. Specific Jurisdiction

4 “There are three requirements for a court to

5 exercise specific jurisdiction over a nonresident

6 defendant: (1) the defendant must either purposefully

7 direct his activities toward the forum or purposefully

8 avail[ ] himself of the privileges of conducting

9 activities in the forum; (2) the claim must be one which

10 arises out of or relates to the defendant’s forum-

11 related activities; and (3) the exercise of jurisdiction

12 must comport with fair play and substantial justice,

13 i.e. it must be reasonable.” Axiom Foods, Inc. v.

14 Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir.

15 2017) (internal quotation marks and citation omitted).

16 The plaintiff bears the burden of establishing the first

17 two prongs of the test. Id. “If the plaintiff meets

18 that burden, ‘the burden then shifts to the defendant to

19 “present a compelling case” that the exercise of

20 jurisdiction would not be reasonable.’” Id. at 1068-69

21 (quoting Schwarzenegger v. Fred Martin Motor Co., 374

22 F.3d 797, 802 (9th Cir. 2004)).

23 Because Plaintiff’s claims sound in tort, the Court

24 uses the “effects” test to analyze the purposeful

25 direction prong. See Calder v. Jones, 465 U.S. 783

26 (1984). The “effects” test requires Plaintiff to show

27 that Buckley “(1) committed an intentional act, (2)

28 expressly aimed at the forum state, (3) causing harm

1 that [Buckley] knows is likely to be suffered in the

2 forum state.” Id. (citation omitted).

3 In this case, Plaintiff fails to satisfy the

4 purposeful direction test because she does not show that

5 Buckley committed any intentional acts expressly aimed

6 at California. Plaintiff argues that Buckley committed

7 an intentional act—conspiring with the Wynn Defendants

8 to elevate Youchah to a magistrate judge position—aimed

9 at California because “the actions were directed at

10 [Plaintiff], a California resident,” and “the harm is

11 felt in California” since Plaintiff is the aggrieved

12 party. Pl.’s Opp’n to Buckley’s MTD 7:21-25. But “mere

13 injury to a forum resident is not a sufficient

14 connection to the forum.” Walden v. Fiore, 571 U.S.

15 277, 290 (2014). “The proper question is not where the

16 plaintiff experienced a particular injury or effect but

17 whether the defendant’s conduct connects him to the

18 forum in a meaningful way.” Id. The relevant conduct

19 in this case took place in Nevada and Massachusetts, and

20 Plaintiff’s only allegations specific to Buckley are

21 confined to Nevada. The mere fact that Buckley’s

22 conduct allegedly affected Plaintiff, who has

23 connections to California, does not subject Buckley to

24 specific jurisdiction in California. See id. at 285,

25 291 (“[T]he plaintiff cannot be the only link between

26 the defendant and the forum.”). Accordingly, this Court

27 lacks specific jurisdiction over Buckley.

28 ///

1 In sum, Plaintiff establishes neither jurisdiction

2 under RICO, 18 U.S.C. § 1965(b), nor specific

3 jurisdiction over Buckley. Plaintiff does not allege

4 any other basis for personal jurisdiction over Buckley.

5 The Court therefore GRANTS Buckley’s motion to dismiss

6 for lack of personal jurisdiction.

7 C. Defendants Wynn Resorts & Maddox’s MTD FAC [57]

8 Defendants Wynn Resorts and Maddox move to dismiss

9 Plaintiff’s claims on the grounds that: 1) they are

10 barred by the affirmed dismissal of the Nevada Action;

11 and 2) the RICO claims are substantively defective. See

12 Wynn Resorts & Maddox’s MTD at 2:11-3:13.

13 1. Dismissal of the Prior Nevada Action

14 Defendants contend that this action is an improper

15 collateral attack on the prior judgment in the Nevada

16 Action. Id. at 16:22-23. Defendants argue that

17 Plaintiff’s fourth cause of action confirms this because

18 Plaintiff could have availed herself of Rule 60(b)(3) or

19 otherwise moved to recuse the judge in the Nevada

20 Action. Id. at 16:22-17:10. Defendants also argue that

21 RICO cannot be used to avoid the preclusive effect of a

22 prior judgment, and raise issues of res judicata and

23 collateral estoppel. Id. at 16:16-21. The Court will

24 examine these arguments in turn below.

25 ///

26 ///

27 ///

28 ///

1 i. Plaintiff’s Fourth Cause of Action:

2 Independent Action in Equity to Set Aside

3 and Vacate Judgment

4 Defendants argue that Plaintiff’s fourth cause of

5 action fails because “such a claim is available only

6 when there is no adequate remedy at law.” Id. at 16:28-

7 17:1. According to Defendants, Plaintiff could have

8 moved, in the Nevada District Court, for relief from

9 judgment under Rule 60(b)(3) and for recusal under 28

10 U.S.C. § 144 if she believed that the judge in the

11 Nevada Action could not impartially decide the Rule

12 60(b)(3) motion. Id. at 17:2-15.

13 Rule 60(b) enumerates six grounds for a court,

14 “[o]n motion and just terms,” to relieve a party from a

15 final judgment. Fed. R. Civ. P. 60(b). Motions under

16 Rule 60(b)(1)-(3), which include those based on fraud or

17 mistake, must be made “no more than a year after the

18 entry of the judgment or order or the date of the

19 proceeding.”2 Fed. R. Civ. P. 60(c)(1). This deadline

20 has long passed, so Plaintiff cannot seek relief under a

21 Rule 60(b)(3) motion. But Rule 60 has an exception for

22 fraud committed on the court, which provides that

23 “[t]his rule does not limit a court’s power to entertain

24 an independent action to relieve a party from a

25 2 Rule 60(b)(1)-(3) permits relief from a final judgment

based on “mistake, inadvertence, surprise or excusable neglect”;

26 “newly discovered evidence that, with reasonable diligence, could

not have been discovered in time to move for a new trial under

27 Rule 59(b)”; and “fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an opposing

28 party,” respectively.

1 judgment, order, or proceeding . . . or set aside a

2 judgment for fraud on the court.” Fed. R. Civ. P.

3 60(d). Such relief is not subject to the one-year time

4 limit. United States v. Sierra Pac. Indus., Inc., 862

5 F.3d 1157, 1167 (9th Cir. 2017).

6 If, however, the fraud was known at the time of

7 entry of judgment, relief for fraud on the court is

8 unavailable. Id. at 1168-69 (“[R]elief is available for

9 ‘after-discovered fraud.’” (quoting Hazel-Atlas Glass

10 Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944))).

11 Although Defendants’ argument suggests that Plaintiff

12 had knowledge of the alleged conflict of interest prior

13 to the dismissal of the Nevada Action, Plaintiff alleges

14 that she did not become aware of it until February 2020—

15 after the April 2019 dismissal of the Nevada Action—and

16 promptly raised it in the Ninth Circuit. FAC ¶¶ 114-

17 115; see Opp’n to Wynn Resorts & Maddox’s MTD 9:28-10:6.

18 Even assuming that the alleged fraud was “after-

19 discovered,” Plaintiff’s allegations nevertheless fail

20 to state a claim for fraud on the court. An independent

21 action in equity to set aside a judgment “should be

22 available only to prevent a grave miscarriage of

23 justice.” United States v. Beggerly, 524 U.S. 38, 47

24 (1998); see also Sierra Pac. Indus., 862 F.3d at 1167

25 (indicating that showing fraud on the court requires

26 more “than the lower showing required for relief under

27 Rule 60(b)(3)”). The relevant inquiry is whether the

28 fraudulent conduct “harmed the integrity of the judicial

1 process,” not whether it “prejudiced the opposing

2 party.” Sierra Pac. Indus., 862 F.3d at 1168 (quoting

3 United States v. Est. of Stonehill, 660 F.3d 415, 444

4 (9th Cir. 2011)). “Fraud on the court must be an

5 intentional, material misrepresentation. . . [and] must

6 involve an unconscionable plan or scheme which is

7 designed to improperly influence the court in its

8 decision.” Id. (internal quotation marks and citations

9 omitted). Additionally, the relevant misrepresentations

10 must go “to the central issue in the case” and “affect

11 the outcome of the case.” Id. (quoting Est. of

12 Stonehill, 660 F.3d at 448, 452).

13 Here, Plaintiff alleges that WLV “took steps to

14 elevate its[] lead counsel, Elayna Youchah, to take over

15 the vacancy of the Magistrate who presided over the

16 Nevada Action” while the Nevada Action was pending and

17 after Youchah had filed a motion to dismiss, and these

18 efforts were not disclosed to Plaintiff or to the court.

19 FAC ¶ 115. Plaintiff alleges that WLV and its parent

20 company, Wynn Resorts, were in a conditional payment

21 arrangement with Buckley, who was on the merit selection

22 panel that selected Youchah. Id. ¶ 116. Plaintiff also

23 alleges that subsequent donations were issued to Buckley

24 and her foundation, LACSN, “which

25 coincided with a decision dismissing the [Nevada

26 Action].” Id. Plaintiff further alleges that the Wynn

27 Defendants “attempted to secure a judgment against

28 Plaintiff by defrauding the Nevada District Court” in an

1 “attempt[] to salvage their gaming licenses tied to a

2 $2.6 billion casino project in Massachusetts.” Id.

3 ¶ 117. According to Plaintiff, “[t]hese were deceptive

4 actions that the Wynn Defendants took against the court

5 and Plaintiff.” Id.

6 These allegations fail to state a facially

7 plausible claim of fraud on the court. First, it is not

8 clear that Defendants’ conduct constitutes fraud. See

9 Sierra Pac. Indus., 862 F.3d at 1168 (“[M]ere

10 nondisclosure of evidence is typically not enough to

11 constitute fraud on the court.”). Plaintiff cites no

12 authority that Defendants had a duty to disclose their

13 donations to LACSN for the merit selection panel’s

14 consideration of Youchah for a magistrate judgeship.3

15 Second, Plaintiff does not plausibly allege that the

16 non-disclosures were material to the outcome of the

17 Nevada Action. Relying on circumstantial allegations,

18 Plaintiff asks the Court to infer that her Nevada Action

19 would not have been dismissed on statute of limitations

20 grounds. But Plaintiff must first plead sufficient

21 factual content to “make such an inference reasonable.”

22 See Iqbal, 556 U.S. at 678. In short, it might be

23

24 3 Plaintiff asks the Court to infer that the “conditional

payment[s]” and “donations” were made to Buckley, rather than the

25 non-profit LACSN. See, e.g., FAC ¶ 116. In support of this

proposition, Plaintiff points to her allegations that Buckley is

26 the executive director of the LACSN and derives her salary from

it, see, e.g., id. ¶¶ 21, 38, and argues that “all inferences

27

must be read in the light most favorable to [Plaintiff],” see

28 Opp’n to Buckley’s MTD 20:5-7.

1 “conceivable,” but it is not “plausible,” see Twombly,

2 550 U.S. at 570, that Defendants’ allegedly fraudulent

3 conduct “harmed the integrity of the judicial process,”

4 Sierra Pac. Indus., 862 F.3d at 1168. See Iqbal, 556

5 U.S. at 678 (“Where a complaint pleads facts that are

6 ‘merely consistent with’ a defendant's liability, it

7 ‘stops short of the line between possibility and

8 plausibility of ‘entitlement to relief.’” (quoting

9 Twombly, 550 U.S. at 557)). There is no reason to

10 believe the Nevada District Court would have decided the

11 case differently if Defendants had disclosed their

12 donations, or if Defendant had never donated at all.

13 Plaintiff’s factual allegations, taken as true, are not

14 sufficient to meet the “demanding standard” of a “grave

15 miscarriage of justice,” as required for an independent

16 action in equity to set aside a judgment. Beggerly, 524

17 U.S. at 47. Plaintiff fails to plausibly allege that

18 permitting an independent action to proceed would

19 prevent a “grave miscarriage of justice”—particularly

20 where the Ninth Circuit affirmed the Nevada District

21 Court’s decision and the Supreme Court denied

22 Plaintiff’s petition for writ of certiorari.

23 Furthermore, the Court agrees with Defendants’

24 contention that the proper recourse is “not to file an

25 action in this district court seeking to overturn a

26 judgment duly rendered in another district.” Wynn

27 Resorts & Maddox’s MTD 7:11-15. “When a court

28 entertains an independent action for relief from the

1 final order of another court, it interferes with and

2 usurps the power of the rendering court just as much as

3 it would if it were reviewing that court’s equitable

4 decree. Although justice may occasionally demand that

5 sort of interference, the identification of those rare

6 situations is committed to the sound discretion of the

7 district court.” Treadaway v. Acad. of Motion Picture

8 Arts & Scis., 783 F.2d 1418, 1422 (9th Cir. 1986).

9 Given Plaintiff’s failure to state a plausible claim,

10 the Court does not consider this case one of those

11 “rare” instances warranting, much less demanding,

12 interference. The interest of comity thus supports

13 declining jurisdiction over Plaintiff’s independent

14 action in equity to set aside the judgment in the Nevada

15 Action.

16 Accordingly, the Court DISMISSES Plaintiff’s fourth

17 cause of action.

18 ii. Res Judicata

19 Defendants argue that res judicata prevents

20 Plaintiff from using RICO to relitigate her failed

21 wrongful termination claim. Wynn Resorts & Maddox’s MTD

22 17:17-19. The Court concludes that res judicata does

23 not bar Plaintiff’s RICO claims.

24 Because the allegedly preclusive decision was

25 rendered by a federal court exercising federal-question

26 jurisdiction, its preclusive effect is determined by

27 federal law. Taylor v. Sturgell, 553 U.S. 880, 891

28 (2008). Res judicata, or claim preclusion, “bars a

1 party in successive litigation from pursuing claims that

2 ‘were raised or could have been raised in [a] prior

3 action.’” Media Rts. Techs., Inc. v. Microsoft Corp.,

4 922 F.3d 1014, 1020 (9th Cir. 2019) (quoting Owens v.

5 Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th

6 Cir. 2001)). Res judicata applies when the prior action

7 “(1) involved the same ‘claim’ or cause of action as the

8 later suit, (2) reached a final judgment on the merits,

9 and (3) involved identical parties or privies.” Mpoyo

10 v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th

11 Cir. 2005) (quoting Sidhu v. Flecto Co., 279 F.3d 896,

12 900 (9th Cir. 2002)).

13 In determining whether the prior action involved

14 the same claim or cause of action, the Ninth Circuit

15 considers four criteria: “(1) whether the two suits

16 arise out of the same transactional nucleus of facts;

17 (2) whether rights or interests established in the prior

18 judgment would be destroyed or impaired by prosecution

19 of the second action; (3) whether the two suits involve

20 infringement of the same right; and (4) whether

21 substantially the same evidence is presented in the two

22 actions.” Media Rts. Techs., 922 F.3d at 1026 (quoting

23 Mpoyo, 430 F.3d at 987). Of these, “the common-nucleus

24 criterion is the ‘most important.’” Id. at 1028

25 (quoting Harris v. Cnty. of Orange, 682 F.3d 1126, 1132

26 (9th Cir. 2012)). Courts employ a “transaction test to

27 determine whether . . . two suits share a common nucleus

28 of operative fact.” Id. at 1026 (quoting Mpoyo, 430

1 F.3d at 987). “Whether two events are part of the same

2 transaction or series depends on whether they are

3 related to the same set of facts and whether they could

4 conveniently be tried together.” Id. at 1027 (quoting

5 Mpoyo, 430 F.3d at 987).

6 Here, the common-nucleus criterion disfavors

7 application of res judicata. The present action and the

8 Nevada Action do not arise from “the same transactional

9 nucleus of facts.” To be sure, both cases involve

10 similar facts related to Plaintiff’s termination and

11 Plaintiff prays, in part, for the same relief she sought

12 in the Nevada Action—namely, damages for her allegedly

13 unlawful termination. But the Nevada Action centered on

14 Plaintiff’s termination from Wynn Resorts, whereas the

15 present action is predicated on Defendants’ alleged

16 interference with the Nevada Action and other conduct

17 allegedly intended to secure casino licenses in

18 Massachusetts. Compare Sidhu v. Flecto Co., 279 F.3d

19 896, 900 (9th Cir. 2002) (finding that two suits did not

20 arise out the same transactional nucleus of facts where

21 the first action was predicated on the plaintiff’s

22 layoff from work and the second action was predicated on

23 the union’s refusal to return the plaintiff to work),

24 with Mpoyo, 430 F.3d at 987 (finding common-nucleus

25 criterion satisfied where both actions related to events

26 leading to the plaintiff’s termination and the Title

27 VII, FLSA, and FMLA claims would form a convenient trial

28 unit).

1 Moreover, Plaintiff could not have raised, much

2 less conveniently tried, in the Nevada Action the

3 allegedly improper influence on, and dismissal of, that

4 earlier suit for the simple reason that such dismissal

5 had not yet occurred. See Media Rts. Techs., 922 F.3d

6 at 1021 (“[C]laim preclusion does not apply to claims

7 that were not in existence and could not have been sued

8 upon—i.e., were not legally cognizable—when the

9 allegedly preclusive action was initiated.”); Lucky

10 Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140

11 S. Ct. 1589, 1596 (2020) (“Claim preclusion generally

12 ‘does not bar claims that are predicated on events that

13 postdate the filing of the initial complaint.’” (quoting

14 Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292,

15 2305 (2016))).

16 The other criteria are not as clear cut. The

17 second criterion—whether rights or interests established

18 in the prior judgment would be destroyed or impaired by

19 prosecution of the second action—is unhelpful here.

20 Although allowing Plaintiff to proceed with the instant

21 action may disrupt Defendants’ freedom from liability as

22 established by the Nevada Action, this is not as

23 material to the analysis. See United States v.

24 Liquidators of Eur. Fed. Credit Bank, 630 F.3d 1139,

25 1151 n.7 (9th Cir. 2011) (“Resolution of that factor

26 depends only on our conclusion about res judicata.”).

27 Weighing this criterion too heavily would generally

28 preclude any independent action from setting aside a

1 judgment. And, while the Court declines to entertain

2 Plaintiff’s independent action here, Rule 60(d)

3 contemplates the availability of such actions where

4 appropriate.

5 Next, Plaintiff insists that the third criterion—

6 whether the same right has been infringed—is not

7 satisfied because the Nevada Action involved Plaintiff’s

8 “right to be free from wrongful termination,” while the

9 present action involves her “right to be free from

10 improper and criminal influence when litigating claims

11 before a court.” Opp’n to Wynn Resorts and Maddox’s MTD

12 12:8-12. Yet, in the FAC, Plaintiff seeks the same

13 damages sought in the Nevada Action and expounds a

14 theory that presumes her right to redress for wrongful

15 termination. Finally, as to the fourth criterion which

16 concerns whether the same evidence is presented in the

17 two actions, Plaintiff’s claims in the present action

18 will involve evidence beyond what is required for claims

19 brought in the Nevada Action, but Plaintiff will also

20 need to present some of the same evidence to establish

21 her damages.

22 Although the latter three criteria do not point to

23 a conclusive outcome, the common-nucleus criterion

24 counsels against claim preclusion. The common-nucleus

25 criterion is the “most important” and is generally

26 considered “outcome-determinative.” Media Rts. Techs.,

27 922 F.3d at 1028 (collecting cases). On this basis, the

28 Court concludes that the Plaintiff’s RICO claims do not

1 involve the same claim or cause of action as the Nevada

2 Action, and res judicata does not apply to bar

3 Plaintiff’s RICO claims.

4 iii. Collateral Estoppel

5 Defendants next argue that collateral estoppel bars

6 Plaintiff’s claim, even if res judicata does not,

7 because Plaintiff raised its “central RICO theory” in a

8 supplemental brief to the Ninth Circuit, which rejected

9 it, and the Supreme Court denied Plaintiff’s petition

10 for a writ of certiorari on the same grounds. Wynn

11 Resort & Maddox’s MTD 19:14-20:16. Defendants contend

12 that the Ninth Circuit already considered and rejected

13 the following allegations, which form Plaintiff’s theory

14 of injury in the present action: “(a) Youchah was under

15 consideration for a magistrate judge position at the

16 time of the dismissal order, and (b) Defendants had paid

17 hundreds of thousands of dollars to LACSN in an apparent

18 bid to elevate Youchah and influence the decision.” Id.

19 at 19:27-20:3.

20 “Issue preclusion, also known as collateral

21 estoppel, bars the relitigation of issues actually

22 adjudicated in previous litigation.” Janjua v. Neufeld,

23 933 F.3d 1061, 1065 (9th Cir. 2019) (internal quotation

24 marks and citation omitted). Issue preclusion applies

25 where four conditions are met: “(1) the issue at stake

26 was identical in both proceedings; (2) the issue was

27 actually litigated and decided in the prior proceedings;

28 (3) there was a full and fair opportunity to litigate

1 the issue; and (4) the issue was necessary to decide the

2 merits.” Id. (citations omitted).

3 Here, there is a serious question as to whether the

4 fourth condition is met, such that the Court cannot

5 conclude issue preclusion applies. Although the Ninth

6 Circuit stated that “the arguments raised in

7 [Plaintiff]’s supplemental brief lack merit,” it

8 reasoned that “[Plaintiff’s] ‘newly discovered’ evidence

9 does not reveal any error in judgment made by the

10 district court ‘in the conclusion it reached upon

11 weighing the relevant factors.’” Limcaco v. Wynn, 809

12 F. App’x 465, 467 (9th Cir. 2020) (citation omitted),

13 cert. denied sub nom. Limcaco v. Wynn Las Vegas, LLC,

14 141 S. Ct. 1688 (2021). In other words, the Ninth

15 Circuit considered Plaintiff’s allegations of improper

16 judicial influence in determining whether the Nevada

17 District Court had abused its discretion. Arguably,

18 however, Plaintiff’s allegations were either unnecessary

19 to the Ninth Circuit’s decision or considered merely

20 incidentally, and therefore the Court cannot conclude

21 that issue preclusion applies. See Resol Tr. Corp. v.

22 Keating, 186 F.3d 1110, 1115-16 (9th Cir. 1999).

23 Nevertheless, even though the Court cannot find

24 that issue preclusion applies, Plaintiff’s claims fail

25 on the pleadings as discussed below.

26 ///

27 ///

28 ///

1 2. Sufficiency of the RICO Claims

2 RICO creates a private right of action for “[a]ny

3 person injured in his business or property by reason of

4 a violation of [18 U.S.C. § 1962].” 18 U.S.C.

5 § 1964(c). Plaintiff’s first, second, and third causes

6 of action are based on alleged RICO violations under 18

7 U.S.C. § 1962(c) and (d). See FAC ¶¶ 88-111.

8 Section 1962(c), as relevant here, makes it

9 “unlawful for any person employed by or associated with

10 any enterprise engaged in, or the activities of which

11 affect, interstate or foreign commerce, to conduct or

12 participate, directly or indirectly, in the conduct of

13 such enterprise’s affairs through a pattern of

14 racketeering activity.” 18 U.S.C. § 1962(c).

15 Section 1962(d) makes it separately “unlawful for

16 any person to conspire to violate any of the provisions

17 of subsection (a), (b), or (c) of this section.” 18

18 U.S.C. § 1962(d). “[F]ailure to adequately plead a

19 substantive violation of RICO precludes a claim for

20 conspiracy” to violate RICO under § 1962(d). Howard v.

21 Am. Online Inc., 208 F.3d 741, 751 (9th Cir. 2000).

22 Defendants assert that Plaintiff lacks RICO

23 standing and Plaintiff’s allegations are insufficient to

24 state a claim under § 1962(c) and (d). See Wynn Resorts

25 & Maddox’s MTD 10:1-16:10, 20:17-25:24. The Court

26 concludes that Plaintiff’s lack of RICO standing

27 requires dismissal of her RICO claims and need not reach

28 Defendants’ other arguments.

1 i. RICO Standing

2 “To allege civil RICO standing under 18 U.S.C.

3 § 1964(c), a plaintiff must show: (1) that his alleged

4 harm qualifies as injury to his business or property;

5 and (2) that his harm was ‘by reason of’ the RICO

6 violation.” Painters & Allied Trades Dist. Council 82

7 Health Care Fund v. Takeda Pharms. Co. Ltd., 943 F.3d

8 1243, 1248 (9th Cir. 2019) (internal quotation marks and

9 citation omitted), cert. denied, 141 S. Ct. 86, 207

10 (2020). Defendants contend that Plaintiff fails to

11 satisfy either requirement. See Wynn Resorts & Maddox’s

12 MTD 10:1-16:10.

13 Not all injuries are compensable under RICO. See

14 RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2108

15 (2016) (“RICO’s private cause of action [is cabined] to

16 particular kinds of injury—excluding, for example,

17 personal injuries.”). “The injury to business or

18 property must be a ‘concrete financial loss, and not

19 mere injury to a valuable intangible property

20 interest.’” Thomas v. Baca, 308 F. App’x 87, 88 (9th

21 Cir. 2009) (citation omitted); see also Canyon Cnty. v.

22 Syngenta Seeds, Inc., 519 F.3d 969, 975 (9th Cir. 2008).

23 Additionally, “[w]ithout a harm to a specific business

24 or property interest-a categorical inquiry typically

25 determined by reference to state law-there is no injury

26 to business or property within the meaning of RICO.”

27 Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en

28 banc) (per curiam). To establish that an injury was “by

1 reason of” a RICO violation, “the plaintiff is required

2 to show that a RICO predicate offense ‘not only was a

3 “but for” cause of his injury, but was the proximate

4 cause as well.’” Hemi Grp., LLC v. City of New York,

5 559 U.S. 1, 9 (2010) (quoting Holmes v. Sec. Inv’r Prot.

6 Corp., 503 U.S. 258, 268 (1992)).

7 a. Injury to Business or Property

8 As to the injury requirement, Defendants argue that

9 “Plaintiff does not plausibly allege an injury to

10 business or property because Plaintiff was not denied

11 access to the courts,” and any alleged harm is

12 “speculative and premised on the fact that she would

13 have succeeded in [the Nevada Action].” Wynn Resorts &

14 Maddox’s MTD 15:20-16:10. Plaintiff asserts that she

15 “alleges a plausible injury to her business or property

16 because she alleges damages arising out of honest

17 services fraud.” Opp’n to Wynn Resorts & Maddox’s MTD

18 8:15-16. In Plaintiff’s view, she was “deprived of the

19 recovery of her actual damages outlined in the Nevada

20 [Action],” which consist of $931,666.67 (based on her

21 salary), and “substantial expenses” incurred “in

22 connection with the Nevada [Action] and related

23 litigation,” including attorney’s fees. Id. at 8:24-

24 9:5; FAC ¶¶ 98, 104, 110.

25 Plaintiff appears to conflate the actionable

26 injuries under honest services fraud and RICO. The

27 honest services doctrine arises under the intangible

28 rights theory of damages. See Skilling v. United

1 States, 561 U.S. 358, 400 (2010) (“[A]ctionable harm lay

2 in the denial of that party’s right to the offender’s

3 ‘honest services.’”). The FAC asserts causes of action

4 under civil RICO, however, and honest services fraud is

5 merely an alleged predicate act.4 “[The Ninth Circuit]

6 has specifically held . . . that the deprivation of

7 honest services alone ‘does not constitute concrete

8 financial loss’ for purposes of pleading RICO’s

9 statutory standing requirement.” Portfolio Invs. LLC v.

10 First Sav. Bank Nw., 583 F. App’x 814, 816 (9th Cir.

11 2014) (quoting Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir.

12 2001)). Plaintiff thus cannot simply rely on an

13 intangible right to receive honest services and must

14 still plead a cognizable RICO injury that occurred “by

15 reason of” a RICO violation. See Painters & Allied

16 Trades, 943 F.3d at 1248.

17 Taking Plaintiff’s allegations as true, the Court

18 is presented with three bases upon which Plaintiff seeks

19 to establish injury to her business or property: (1) the

20 loss of opportunity to pursue her claims in the Nevada

21 Action; (2) the damages she sought in the Nevada Action;

22 and (3) the legal fees and other expenses she incurred

23 in connection with the Nevada Action. None of

24 Plaintiff’s alleged injuries meet RICO’s standing

25

4 The Ninth Circuit has not definitively stated that honest

26 services fraud may serve as a predicate act. See Portfolio Invs.

LLC v. First Sav. Bank Nw., 583 F. App’x 814, 816 (9th Cir. 2014)

27

(declining to reach the issue of “whether honest-services fraud

28 can ever serve as a predicate RICO act”).

1 requirement.

2 1. Loss Of Opportunity to Pursue

3 Claims

4 Plaintiff cannot claim injury based on the loss of

5 opportunity to pursue her claims in the Nevada Action

6 because she was not denied access to the courts. See

7 Avalos v. Baca, 596 F.3d 583, 594 (9th Cir. 2010)

8 (“[E]ven if the right to a judicial proceeding is a

9 property right under California law, [the plaintiff]

10 suffered no ‘harm’ to that right because he was able to

11 file his claim . . . in the district court.”).

12 Plaintiff not only litigated her claims in the Nevada

13 District Court, but also sought appellate review in the

14 Ninth Circuit and filed a petition for writ of

15 certiorari, which the Supreme Court denied. To the

16 extent Plaintiff claims she was deprived of a fair

17 opportunity to litigate, that alleged injury fails to

18 meet the standing criteria because it is neither

19 concrete nor financial.

20 2. Damages in the Nevada Action

21 Perhaps recognizing that her loss of the Nevada

22 Action cannot constitute a cognizable injury under RICO,

23 Plaintiff asserts that she “has been injured in her

24 business and property” because she “has been deprived of

25 the recovery of her actual damages outlined in the

26 Nevada [Action]”—specifically, $807,083.22—as stated in

27 her initial disclosures served upon the defendants in

28 that action. The Court rejects this theory.

1 Plaintiff cannot turn an injury arising under an

2 intangible rights theory into a concrete financial loss

3 sufficient for RICO standing by presuming success in a

4 cause of action that has yet to be litigated on the

5 merits. Plaintiff ignores the actual litigation of her

6 claims in the Nevada Action and claims the damages

7 sought in that matter as a business or property interest

8 in this civil RICO action. Although “California law

9 recognizes a cause of action as a form of property,” it

10 is entirely uncertain whether Plaintiff would have

11 prevailed in the Nevada Action if it had not been time-

12 barred. See Thomas v. Baca, 308 F. App’x 87, 88 (9th

13 Cir. 2009) (rejecting alleged injury to the plaintiffs’

14 cause of action as insufficiently concrete to establish

15 RICO standing where it was unknown whether the

16 plaintiffs would prevail in the cause of action or

17 whether the defendants’ conduct would alter the

18 outcome). “Injury to business or property requires

19 tangible and concrete financial loss, rather than

20 speculative or uncertain harm.” Comm. to Protect our

21 Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp.

22 3d 1132, 1169 (E.D. Cal. 2017). Recovery in a case,

23 particularly one alleged to have not been litigated on

24 the merits, is inherently speculative.5

25

5 Put another way, the Court does not find Plaintiff’s

26 theory of injury—that she has been injured in the entire amount

of actual damages sought in the Nevada Action, which was

27 dismissed at the motion to dismiss stage—to be plausible. See

Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a

28 plausible claim for relief . . . [is] a context-specific task

1 Moreover, notwithstanding the questionable

2 legitimacy of claiming the deprivation of a right to

3 litigate and concurrently seeking recovery without

4 exercising that right, the Ninth Circuit has indicated

5 that standing cannot be established when the alleged

6 injury results from wrongful termination not caused by

7 predicate RICO acts. See Reddy v. Litton Indus., Inc.,

8 912 F.2d 291, 294 (9th Cir. 1990) (holding that the

9 plaintiff “lacks standing to sue under § 1962(c) because

10 the injury he suffered was the result of his alleged

11 wrongful termination and was not caused by predicate

12 RICO acts”).

13 3. Legal Fees

14 Nor can Plaintiff establish RICO injury based on

15 the legal fees and other expenses she incurred in

16 connection with the Nevada Action. The Ninth Circuit

17 generally has not recognized legal fees as a valid

18 injury to business or property under RICO. Thomas, 308

19 F. App’x at 88 (“This court has not recognized the

20 incurment of legal fees as an injury cognizable under

21 RICO, and we decline to do so here.”); see also Ogden v.

22 Wells Fargo Bank, N.A., No. CV 14-3579 DMG (SH), 2015 WL

23 13413390, at *2 (C.D. Cal. Feb. 20, 2015) (collecting

24 cases). Plaintiff offers no argument or citations to

25 support a contrary view.6

26

that requires the reviewing court to draw on its judicial

27 experience and common sense.”).

6 Even were the Court to conclude that legal fees qualify as

28 cognizable injury under RICO, Plaintiff’s FAC fails to satisfy

1 In sum, Plaintiff fails to establish RICO standing

2 in that she does not allege a cognizable injury.

3 b. Injury “By Reason of” a RICO Violation

4 While Plaintiff lacks RICO standing on the basis of

5 injury alone, the Court nevertheless addresses the

6 second element of RICO standing—whether Plaintiff’s

7 injury was “by reason of” a RICO violation.

8 As articulated, an injury is “by reason of” a RICO

9 violation if “a RICO predicate offense ‘not only was a

10 “but for” cause of [the] injury, but was the proximate

11 cause as well.’” Hemi Grp., 559 U.S. at 9 (quoting

12 Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268

13 (1992)). “Proximate cause for RICO purposes . . .

14 should be evaluated in light of its common-law

15 foundations; proximate cause thus requires ‘some direct

16 relation between the injury asserted and the injurious

17 conduct alleged.’” Id. (citation omitted). “A link

18 that is ‘too remote,’ ‘purely contingent,’ or

19 ‘indirec[t]’ is insufficient.” Id. Here, Plaintiff can

20 the causation inquiry required for RICO standing. Courts have

found proximate cause where a plaintiff is “forced to incur”

21 significant legal fees and expenses, but that is not the case

here since Plaintiff voluntarily chose to pursue this litigation.

22 Compare City of Almaty v. Khrapunov, 956 F.3d 1129, 1133 (9th

Cir. 2020) (finding no proximate cause where the plaintiff did

23 not show “that it was forced to spend its money or that it was

otherwise shortchanged by Defendants’ actions”), with Harmoni,

24 914 F.3d at 652 (finding proximate cause where the plaintiffs

were “forced to incur significant expenses responding to the

25 administrative review because refusing to respond was not a

viable option”). “RICO doesn’t provide for the recovery of

26 losses caused by self-inflicted wounds.” Bryant v. Mattel, Inc.,

No. CV 04-9049 DOC RNBX, 2010 WL 3705668, at *15 (C.D. Cal. Aug.

27 2, 2010) (rejecting claimed injury based on incurred attorneys’

fees and costs for a forensic auditor where the auditor was

28 appointed at the counter-claimant’s request).

1 show neither but-for nor proximate causation to

2 establish RICO standing.

3 Turning first to but-for causation, the Court notes

4 that Defendants’ alleged undue influence is not the only

5 cause of the Nevada Action’s dismissal. The Nevada

6 District Court dismissed the case because the statute of

7 limitations had run. The Court thus has no occasion to

8 believe the Nevada Action was dismissed for any other

9 reason than on the procedural grounds subsequently

10 affirmed by the Ninth Circuit. See Limcaco v. Wynn, 809

11 F. App’x 465, 466-67 (9th Cir. 2020).

12 Second, Plaintiff cannot show proximate causation

13 to establish RICO standing. Even with the most generous

14 reading, the FAC’s attempted connection of Plaintiff’s

15 injury to Defendants’ alleged actions cannot be

16 characterized as anything but indirect. According to

17 Plaintiff, Wynn Resorts made conditional payments to

18 LACSN, a nonprofit run by Buckley, who was thereby

19 influenced to persuade the merit selection panel to

20 elevate Youchah to fill the vacancy of the magistrate

21 judge in the Nevada Action. FAC ¶¶ 20-24. Plaintiff

22 alleges that, around March and April 2019, Youchah was

23 selected for the magistrate position, the LACSN received

24 a payment, the Nevada Action was dismissed, and the MGC

25 rendered a decision allowing the Wynn Defendants to

26 retain their gaming licenses in Massachusetts. Id. ¶

27 96(c). Plaintiff points to this timeline as well as

28 other circumstantial evidence, including additional

1 conditional payments made to the LACSN, to support

2 proximate causation. See Pl’s Opp’n to Wynn Resorts &

3 Maddox’s MTD 7:13-8:4.

4 Defendants argue, and the Court agrees, that

5 Plaintiff’s theory depends on an attenuated chain of

6 causation that requires numerous implausibly speculative

7 assumptions to link the LACSN payments to Plaintiff’s

8 alleged injury. Wynn Resorts & Maddox’s MTD 7:13-8:4.

9 Specifically, Plaintiff’s theory of causation involves

10 at least the following steps: (1) in August 2017, Wynn

11 Resorts agreed to make a series of five payments of

12 $100,000, which were revocable in Wynn Resorts’

13 discretion, FAC ¶ 37; (2) in September 2018, Plaintiff

14 filed her complaint in the Nevada Action, id. ¶ 82; (3)

15 in December 2018, the Nevada District Court appointed a

16 nine-member merit selection panel regarding the

17 vacancies for two magistrate judge positions and Buckley

18 is placed on the panel, id. ¶ 87(d); (4) in March or

19 April 2019, the nine-member merit selection panel that

20 included Buckley recommended Youchah’s appointment, id.

21 ¶ 20; and (5) in April 2019, the Nevada Action was

22 dismissed, and the LACSN received its scheduled donation

23 from Wynn Resorts, id. ¶ 96(c), Ex. A. In short,

24 Plaintiff’s theory “is anything but straightforward,”

25 given the multiple intervening steps in the causal chain

26 between the alleged injurious conduct and Plaintiff’s

27 alleged injury. See Hemi Grp., 559 U.S. at 15; see also

28 Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461

1 (2006) (“When a court evaluates a RICO claim for

2 proximate causation, the central question it must ask is

3 whether the alleged violation led directly to the

4 plaintiff’s injuries.”). Moreover, as Defendants note,

5 Plaintiff’s “theory of liability rests on the

6 independent actions of third and even fourth parties.”

7 Wynn Resorts & Maddox’s MTD 14:4-5 (quoting Hemi Grp.,

8 559 U.S. at 15).

9 Plaintiff attempts to resist this conclusion by

10 analogizing to Bieter Co. v. Blomquist, 987 F.2d 1319

11 (8th Cir 1993). See Pl’s Opp’n to Wynn Resorts &

12 Maddox’s MTD 6:16-8:4. Plaintiff argues that honest

13 services fraud can cause proximate harm to business or

14 property and insists that, like the circumstances in

15 Bieter, the relevant events all occurred around the same

16 month. But Plaintiff’s reliance on this out-of-circuit

17 decision is unavailing. On the issue of proximate

18 cause, the Bieter court concluded that “[a] finding that

19 bribery of a councilmember proximately caused a

20 plaintiff’s injury can . . . rest on evidence of that

21 individual’s influence over the proceedings.” Bieter,

22 987 F.2d at 1327. Notably absent in the present action

23 are any allegations supporting Plaintiff’s conclusory

24 assertion of improper influence over the Nevada Action.

25 Taking Plaintiff’s allegations of a cascading chain

26 of events as true, starting with Wynn Resorts’ pledge to

27 donate to LACSN approximately two years before the

28 dismissal of the Nevada Action, Plaintiff stops short of

1 alleging causation and instead leaves it to the Court to

2 fill in the blank. Plaintiff draws a correlation

3 between Youchah’s elevation to the magistrate judge

4 position and the Nevada judge’s rendering a favorable

5 decision to Youchah’s client, but Plaintiff makes no

6 factual allegations as to how Youchah’s new role

7 affected the disposition of the case. Despite

8 Plaintiff’s allegation that she “has been deprived on

9 the recovery of her actual damages outlined in the

10 Nevada [Action]” as a “direct and proximate result of

11 Defendants’ racketeering activities,” FAC ¶¶ 98, 104,

12 110, Plaintiff does not plead “sufficient factual

13 matter” to permit the Court to draw a “reasonable

14 inference” of proximate causation. See Iqbal, 556 U.S.

15 at 678. “[T]he Court [is not] required to accept as

16 true allegations that are merely conclusory, unwarranted

17 deductions of fact, or unreasonable inferences.” Khoja,

18 899 F.3d at 1008 (quoting In re Gilead Scis. Sec.

19 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)).

20 The closest Plaintiff comes to alleging a causal

21 connection between the alleged corrupt elevation of the

22 magistrate judge and dismissal of the Nevada Action is

23 the suggestion that Youchah carried “greater

24 credibility” as a defense attorney-turned-magistrate.

25 See FAC ¶ 24 (“Judge Du, even if unaware of the RICO

26 Defendants[’] coordination, rendered a decision

27 favorable to Youchah (who was then Judge Du’s new

28 colleague and someone with presumably ‘greater

1 credibility’ due to her new position as a Judge in the

2 same Court).”) If any other connective tissue exists

3 between Defendant’s donations and the dismissal of the

4 Nevada Action, Plaintiff does not allege it. Further,

5 Plaintiff presents no authority to support the

6 allegation that Defendants’ conferral of greater

7 credibility in their defense attorney constitutes undue

8 influence rising to the level of depriving her of the

9 opportunity to litigate on the merits.

10 In sum, accepting the allegations in the FAC as

11 true, and reading them in the light most favorable to

12 Plaintiff, the Court concludes that Plaintiff has not

13 plausibly alleged an injury “by reason of” a RICO

14 violation as required to establish RICO standing.

15 Plaintiff fails to allege facts showing a sufficient

16 causal nexus between Defendants’ alleged unlawful

17 conduct and her alleged loss of the actual damages

18 sought in the Nevada Action. Plaintiff’s RICO claims

19 thus fail to state a claim for relief.

20 3. Leave to Amend

21 Plaintiff has already amended her 66-page FAC as of

22 right following the benefit of previewing Defendants’

23 challenges to her complaint in their initial motions to

24 dismiss, including the deficiencies in her allegations

25 regarding injury to business or property and causation.

26 None of the arguments in her five oppositions and nine

27 requests for judicial notice indicate that she would be

28 able to cure the fatal flaw of lacking standing to

1 assert her RICO claims. Nor has Plaintiff proposed any

2 other allegations or theories that could cure this

3 deficiency.

4 Moreover, in the interest of comity, the Court

5 declines to further entertain Plaintiff’s independent

6 action in equity to vacate the judgment in the Nevada

7 Action. Because the Court concludes that the

8 deficiencies identified in this Order cannot be cured by

9 further amendment, the Court GRANTS Wynn Resorts and

10 Maddox’s motion to dismiss the FAC with prejudice. See

11 Pac. Recovery Sols. v. United Behav. Health, 508 F.

12 Supp. 3d 606, 619 (N.D. Cal. 2020) (dismissing the

13 plaintiffs’ substantive RICO and RICO conspiracy claims

14 with prejudice for lack of RICO standing).

15 D. Defendant Wynn’s MTD FAC [58], Defendant Sinatra’s

16 MTD FAC [61], and Defendant ML Strategies’s MTD FAC

17 [108]

18 In their separate motions, Defendants Wynn,

19 Sinatra, and ML Strategies argue that—in addition to the

20 defects identified in Wynn Resort and Maddox’s motion—

21 the FAC fails to state a plausible claim against each of

22 them because the allegations specific to them are also

23 deficient. Plaintiff’s failure to establish RICO

24 standing warrants dismissal of her RICO claims against

25 all Defendants. In light of the Court’s resolution of

26 Wynn Resorts and Maddox’s motion, which all other

27 Defendants joined, Defendants Wynn’s, Sinatra’s, and ML

28 Strategies’s motions to dismiss the FAC are GRANTED.

1 IV. CONCLUSION

2 Based on the foregoing, Wynn Resorts and Maddox’s

3 motion to dismiss the FAC is GRANTED with prejudice for

4 failure to state a claim. Buckley’s motion to dismiss

5 the FAC is GRANTED with prejudice for lack of personal

6 jurisdiction. The remaining motions to dismiss the FAC

7 filed by Wynn, Sinatra, and ML Strategies are GRANTED

8 with prejudice in light of the Court’s resolution of

9 Wynn Resorts and Maddox’s motion. All Defendants and

10 claims are dismissed.

11

12 IT IS SO ORDERED.

13 DATED: October 29, 2021

14

15

16 _______/s_/ _R_on_a_ld_ S_.W_._ L_ew__________________

Honorable Ronald S.W. Lew

17

Senior United States District Judge

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