Lewis v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION

Plaintiff

VERSUS NO. 21-198-SM-RLB

LOUISIANA STATE UNIVERSITY, ET AL.,

Defendants

ORDER AND REASONS

On March 4, 2022, Plaintiff Sharon Lewis (Plaintiff) filed her Second Amended

Complaint and first amended RICO Case Statement.1 Plaintiff alleges, among other

things, claims for relief arising out of alleged violations of the Racketeer Influenced

Corrupt Organizations Act (“RICO”).2 Now pending before the Court are the following:

Motion to dismiss the civil RICO claims in the Second Amended Complaint

for failure to state a claim, filed by Defendants Robert Barton, Vicki Crochet,

and William Shelby McKenzie (the “TP Defendants”);3

Motion to dismiss the civil RICO claims in the Second Amended Complaint

for failure to state a claim, filed by Defendant Verge Ausberry(“Ausberry”);4

Motion to dismiss the civil RICO claims in the Second Amended Complaint

for failure to state a claim, filed by Defendant Miriam Segar (“Segar”);5

Motion to dismiss the civil RICO claims in the Second Amended Complaint

for failure to state a claim, filed by Defendant Joseph Alleva (“Alleva”);6 and

Motion to dismiss the civil RICO claims in the Second Amended Complaint

for failure to state a claim, filed by Scott Woodward (“Woodward”).7

1 R. Doc. 219.

2 18 U.S.C. § 1961 et seq.

3 R. Doc. 224. Plaintiff filed an opposition. R. Doc. 231. The Taylor Porter Defendants filed a reply. R. Doc.

242.

4 R. Doc. 225. Plaintiff filed an opposition. R. Doc. 239. Ausberry did not file a reply.

5 R. Doc. 226. Plaintiff filed an opposition. R. Doc. 237. Segar filed a reply. R. Doc. 246.

6 R. Doc. 227. Plaintiff filed an opposition. R. Doc. 240. Alleva filed a reply. R. Doc. 244.

7 R. Doc. 228. Plaintiff filed an opposition. R. Doc. 236. Woodward filed a reply. R. Doc. 245.

BACKGROUND

Because the background facts are extensively set forth in the Court’s September 10,

2021 Order and Reasons,8 and the Court’s December 2, 2021 Order and Reasons,9 the

Court will set forth only the procedural developments that have occurred since the

December 2, 2021 Order and Reasons was issued.

In its December 2, 2021 Order and Reasons, the Court, among other things,

ordered that Plaintiff “may seek leave of Court on or before Friday, December 10, 2021,

to file a Second Amended Complaint” to, inter alia, “amend her civil RICO claims against

William Shelby McKenzie, Vicki Crochet, Robert Barton . . . Joseph Alleva, Miriam Segar,

Verge Ausberry, and Scott Woodward, in their individual capacities.”10 The Court further

ordered that on or before Friday, December 10, 2021, Plaintiff may seek leave of Court to

file her first amended RICO Case Statement into the record.11 The Court’s December 2,

2021 Order and Reasons further provided that “[i]f Plaintiff timely requests leave to file

her Second Amended Complaint, the motions to dismiss filed by William Shelby

McKenzie, Vicki Crochet, Robert Barton, James Williams, Mary Leach Werner, Miriam

Segar, Verge Ausberry, and Scott Woodward, to the extent seeking dismissal of Plaintiff’s

civil RICO claims based on injuries discovered on or after April 8, 2017, will be denied as

moot without prejudice.”12

On December 10, 2021, Plaintiff filed a motion for leave to file her Second

Amended Complaint and first amended RICO Case Statement, attaching her proposed

Second Amended Complaint and first amended RICO Case Statement to the motion for

8 R. Doc. 107.

9 R. Doc. 165.

10 R. Doc. 165 at pp. 53–54.

11 Id. at p. 54.

12 Id.

leave.13 The Court denied the motion because “[t]he proposed Second Amended

Complaint fail[ed] to comply with the Court’s December 2, 2021 Order and Reasons.”14

The Court set a telephone status conference for Monday, December 20, 2021 to discuss

Plaintiff’s proposed Second Amended Complaint.15

On December 17, 2021, Plaintiff filed a “Motion to Alter or Amend Judgment,”16

asking the Court to reconsider the portion of its December 2, 2021 Order and Reasons17

that dismissed, with prejudice, Plaintiff’s civil RICO claims against Leslie Miles (“Miles),

Garrett Danos (“Danos”), Robert Yarborough (“Yarborough”), Stanley Jacobs (“Jacobs”)

and William Jenkins (“Jenkins”). Oppositions to Plaintiff’s motion to alter or amend were

filed by Leslie Miles,18 the TP Defendants,19 Garrett “Hank” Danos, Stanley Jacobs, and

Robert “Bobby” Yarborough,20 Miriam Segar,21 and William “Bill” Jenkins.22 Plaintiff filed

replies.23 On January 19, 2022, the Court issued an Order and Reasons denying Plaintiff’s

“Motion to Alter or Amend Judgment.”24 In the Court’s January 19, 2022 Order and

Reasons, the Court ordered that on or before Thursday, January 27, 2022, Plaintiff may

seek leave to file a Second Amended Complaint and first amended RICO Case

Statement.25

On January 26, 2022, Plaintiff filed a motion for leave to file her Second Amended

13 R. Doc. 166.

14 R. Doc. 167.

15 Id.

16 R. Doc. 168.

17 R. Doc. 165.

18 R. Doc. 170.

19 R. Doc. 171.

20 R. Doc. 172.

21 R. Doc. 173.

22 R. Doc. 174.

23 R. Docs. 175, 176, 177, 178, and 180-1.

24 R. Doc. 185.

25 Id. at pp. 7–8.

Complaint and first amended RICO Case Statement, attaching her proposed Second

Amended Complaint and first amended RICO Case Statement to the motion for leave.26

Oppositions to the motion for leave were filed by the TP Defendants,27 the Board of

Supervisors of Louisiana State University, Mary Leach Werner, and James Williams,28

Verge Ausberry,29 Scott Woodward,30 Joseph Alleva,31 and Miriam Segar.32 Plaintiff did

not file replies.

On February 9, 2022, Plaintiff appealed the Court’s January 19, 2022 Order and

Reasons to the United States Court of Appeals for the Fifth Circuit.33 The Fifth Circuit

dismissed Plaintiff’s appeal based on lack of jurisdiction, and the mandate issued on May

20, 2022.34

On February 24, 2022, Plaintiff filed a motion for voluntary dismissal, with

prejudice, of her claims against Mary Leach Werner and James Williams.35 On February

25, 2022, the Court granted the motion, thereby dismissing, with prejudice, Plaintiff’s

claims against Mary Leach Werner and James Williams.36

Also on February 25, 2022, the Court held a video status conference, and during

the status conference, the parties discussed Plaintiff’s January 26, 2022 motion for leave

and whether Plaintiff’s proposed Second Amended Complaint and first amended RICO

Case Statement complied with the Court’s December 2, 2021 Order and Reasons.37 During

26 R. Doc. 190.

27 R. Doc. 192.

28 R. Doc. 193.

29 R. Doc. 194.

30 R. Doc. 195.

31 R. Doc. 193.

32 R. Doc. 194.

33 Lewis v. LSU, Docket No. 22-30072 (5th Cir).

34 Id. at R. Doc. 00516298191.

35 R. Doc. 209.

36 R. Doc. 210.

37 See R. Doc. 212 at p. 2.

the status conference, the Court denied Plaintiff’s January 26, 2022 motion for leave, and

in the Minute Entry following the status conference, the Court ordered that, on or before

Friday March 4, 2022, Plaintiff shall file a motion for leave to file a Second Amended

Complaint and first amended RICO Case Statement to incorporate the corrections,

clarifications, and additions discussed during the status conference.38

On March 3, 2022, Plaintiff filed a motion for leave to file her Second Amended

Complaint and first amended RICO Case Statement, attaching her proposed Second

Amended Complaint and first amended RICO Case Statement to the motion for leave.39

On March 4, 2022, the Court granted Plaintiff’s motion for leave.40 On that same date,

Plaintiff’s Second Amended Complaint and first amended RICO Case Statement were

filed into the record.41 The Court denied, without prejudice, the motions to dismiss

Plaintiff’s first amended complaint filed by William Shelby McKenzie, Vicki Crochet,

Robert Barton, James Williams, Mary Leach Werner, Miriam Segar, Verge Ausberry,

Scott Woodward, and Joseph Alleva.42

On March 4, 2022, the Court issued a briefing schedule providing that Defendants

shall file any motions to dismiss Plaintiff’s Second Amended Complaint on or before

Friday, March 25, 2022, that Plaintiff’s opposition to any motion shall be filed within 10

days of the filing of the motion, and that the mover may file a reply memorandum in

support of its motion to dismiss within five days of the filing of Plaintiff’s opposition.43

Plaintiff’s Second Amended Complaint alleges, inter alia, a private cause of action

38 See id.

39 R. Doc. 217.

40 R. Doc. 218.

41 R. Doc. 219.

42 R. Doc. 251.

43 See R. Doc. 220.

for damages under RICO against the TP Defendants, Verge Ausberry, Miriam Segar, Scott

Woodward, and Joseph Alleva.44 Specifically, Plaintiff alleges two types of RICO claims—

namely, a substantive racketeering claim pursuant to 18 U.S.C. §1962(c),45 and a

conspiracy-to-commit racketeering claim under 18 U.S.C. § 1962(d).46

Plaintiff alleges Joseph Alleva, Scott Woodward, Miriam Segar, Verge Ausberry,

Shelby McKenzie, Vicki Crochet, and Bob Barton constitute a RICO enterprise.47 Plaintiff

alleges the individual defendants engaged in conduct in violation of the following laws:

a. 18 U.S.C. § 1341 (mail fraud);

b. 18 U.S.C. § 1343 (wire fraud);

c. 18 U.S.C. § 1512 (concealing documents or obstructing official

proceedings);

d. 18 U.S.C. § 1513 (retaliation against a witness, victim, or an informant);

and

e. 18 U.S.C. § 1952 (interstate travel in aid of racketeering).48

Plaintiff alleges the enterprise, existing from 2013 to 2021, “utilized the above predicate

acts to control the LSU football program, retaliate against employees and students who

reported Title IX and criminal complaints against coaches and star football players and

capture and kill Title IX complaints against coaches, star football players and athletic

officials.”49

On March 25, 2022, motions to dismiss the civil RICO claims in Plaintiff’s Second

Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) were filed by the TP

44 R. Doc. 219 at ¶¶ 95–299.

45 Id. at ¶¶ 296–297.

46 Id. at ¶¶ 298–299.

47 Id. at ¶ 122.

48 Id. at ¶ 138.

49 Id. at ¶ 139.

Defendants,50 Verge Ausberry,51 Miriam Segar,52 Joseph Alleva,53 and Scott Woodward.54

RULE 12(b)(6) STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss

a complaint, or any part of it, for failure to state a claim upon which relief may be granted

if the plaintiff has not set forth factual allegations in support of her claim that would

entitle her to relief.55 “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”56

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”57 The court, however, does not accept as true legal conclusions or mere

conclusory statements, and “conclusory allegations or legal conclusions masquerading as

factual conclusions will not suffice to prevent a motion to dismiss.”58 “[T]hreadbare

recitals of elements of a cause of action, supported by mere conclusory statements” or

“naked assertion[s] devoid of further factual enhancement” are not sufficient.59

In summary, “[f]actual allegations must be enough to raise a right to relief above

the speculative level.”60 “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

50 R. Doc. 224.

51 R. Doc. 225.

52 R. Doc. 226.

53 R. Doc. 227.

54 R. Doc. 228.

55 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).

56 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

57 Id.

58 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.

2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

59 Iqbal, 556 U.S. at 663, 678 (citations omitted).

60 Twombly, 550 U.S. at 555.

show[n]’—that the pleader is entitled to relief.”61 “Dismissal is appropriate when the

complaint ‘on its face show[s] a bar to relief.’”62

In deciding a Rule 12(b)(6) motion to dismiss a civil RICO claim, a district court

“must consider the well pleaded facts of the complaint, including the RICO case statement

filed pursuant to the standing order.”63

Ordinarily, causation is a fact issue resolved by the finder of fact rather than in a

Rule 12(b)(6) motion to dismiss. However, proximate cause is a legal issue, not a fact

issue, in cases involving civil RICO claims64 because RICO is a statutory tort remedy

reflecting unique “ideas of what justice demands, or of what is administratively possible

and convenient.”65 As a result, it falls within the competence of this Court to decide

whether legal causation exists at the Rule 12(b)(6) stage in a civil RICO case.66

LAW AND ANALYSIS

18 U.S.C. § 1964(c) provides that “any person injured in his person or property by

reason of a violation of Section 1962” may recover treble damages and a reasonable

attorney’s fee.67 Plaintiff’s civil RICO claims are based upon violations of 18 U.S.C. §§

1962(c) and (d),68 which provide as follows:

(c) It shall be unlawful for any person employed by or associated with any

enterprise engaged in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly, in the conduct of

such enterprise's affairs through a pattern of racketeering activity or

61 Id. (quoting FED. R. CIV. P. 8(a)(2)).

62 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).

63 Dixon v. Ford Motor Credit Co., 1999 U.S. Dist. LEXIS 2089, at *4 (E.D. La. Feb. 24, 1999) (citing Guidry

v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992)).

64 Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 269 (1992); see also Brandeburg v. Seidel,

859 F.2d 1179 (4th Cir. 1988), overruled on other grounds, 517 U.S. 706 (1996).

65 Holmes, 503 U.S. at 269.

66 Brandenburg, 859 F.2d at 1189.

67 18 U.S.C. § 1964(c).

68 See R. Doc. 219 at ¶¶ 95–299; see also id. at ¶ 121 (“Plaintiff asserts claims for violations of U.S.C. Sec.

1962(c) and (d).”); R. Doc. 8 at ¶ 108 (“Plaintiff herein asserts her right to a private cause of action under

18 U.S.C. Section 1962(c) and (d).”).

collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the

provisions of subsection (a), (b), or (c) of this section.69

To state a RICO claim based on a violation of § 1962(c), a plaintiff is required to

allege a “RICO person” engaged in the “(1) conduct (2) of an enterprise (3) through a

pattern (4) of racketeering activity.”70 To state a RICO claim based on a violation of

§ 1962(d), a plaintiff must allege “(1) that two or more people agreed to commit a

substantive RICO offense and (2) that the defendants knew of and agreed to the overall

objective of the RICO offense.”71 Moreover, the “failure to plead the requisite elements of

. . . a § 1962(c) violation implicitly means that [the plaintiff] cannot plead a conspiracy to

violate [that] section.”72

“Racketeering activity,” as relevant to this case, encompasses those federal crimes

listed in 18 U.S.C. § 1961(1)(B), including mail fraud, wire fraud, evidence tampering,

retaliation, and interstate travel in aid of racketeering.73 To constitute a “pattern” of

racketeering activity, there must be “at least two acts of racketeering activity,” the last of

which occurred within ten years of the prior act of racketeering activity.74

I. A RICO plaintiff must plausibly allege she suffered injury and her

damages were proximately caused by a RICO violation.

An individual has a civil RICO claim under 18 U.S.C. § 1964(c), and a right to

recover treble damages and an attorney’s fee, “[i]f the defendant engages in a pattern of

racketeering activity in a manner forbidden by [§ 1962], and the racketeering activities

69 18 U.S.C. § 1962(c), (d).

70 Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 495 (1985).

71 N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 203 (5th Cir. 2015).

72 Nolen v. Nucentrix Broadband Networks Inc., 293 F.3d 926, 930 (5th Cir. 2002).

73 28 U.S.C. § 1961(1).

74 18 U.S.C. § 1961(5).

injure the plaintiff in his business or property.”75 The injury must be “by reason of,” or

caused by, a violation of § 1962.76 Thus, § 1964(c) imposes two requirements on the

plaintiff’s right to recover, namely, damage to business or property and causation.77

Some courts in the past have referred “to the independent § 1964(c) requirements

of damages and causation as ‘standing.’”78 The use of the phrase “standing” to refer to

statutory requirements has been referred to as “prudential standing,”79 rather than

constitutional standing. The Supreme Court in Lexmark International, Inc. v. Static

Control Components explained that a better way of phrasing the inquiry is to ask whether

the plaintiff has a cause of action under the statute, which is plainly not a jurisdictional

inquiry.80 Rather than examining jurisdiction, the Supreme Court explained, the inquiry

should be whether the plaintiff has stated a cause of action by alleging damage to business

or property and causation. The Lexmark court “construed federal causes of action in a

variety of contexts,” including in the civil RICO context, “to incorporate a requirement of

proximate causation.”81 Under a proximate cause analysis, courts ask “whether the harm

75 Sedima, S.P.R.L., 473 U.S. at 495.

76 18 U.S.C. § 1964(c).

77 Id. (providing a right of action to “[a]ny person injured . . . by reason of” the conduct constituting the

RICO violation); see also Sedima, 473 U.S. at 479.

78 Green v. Morningstar Inv. Mgmt. LLC, No. 17 C 5652, 2019 WL 216538, at *2 (N.D. Ill. Jan. 16, 2019).

Each of the Defendants argues Plaintiff lacks standing to bring her civil RICO claims. The Defendants argue

Plaintiff alleges employment-related injuries and personal injuries that are not cognizable under RICO, and

that Plaintiff fails to allege how such injuries were proximately caused by predicate acts of racketeering.

See, e.g., R. Doc. 227-1 at p. 6. The Defendants argue Plaintiff admits in her second amended complaint

that her damages are the direct and proximate result of retaliatory acts taken against her for reporting Title

IX violations. See, e.g., R. Doc. 224-2 at pp. 12–13.

79 Prudential standing, while not rooted in Article III of the U.S. Constitution, is judicially derived by the

Supreme Court. Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). It

encompasses “at least three broad principles: ‘the general prohibition on a litigant’s raising another person’s

legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the

representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests

protected by the law invoked.’” Id. (citing Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12 (2004)

(internal quotations omitted)).

80 Id.

81 Id. at 132 (citing Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268–70 (1992)).

alleged has a sufficiently close connection to the conduct the statute prohibits.”82

Proximate cause, in this context, “is employed . . . as a limiting principle intended to

stymie a flood of litigation, reserving recovery for those who have been directly affected

by a defendant’s wrongdoing.”83

“RICO standing” then, as the phrase was used by the Defendants in their motions

to dismiss, is not a jurisdictional matter, and, instead, is “properly characterize[d] as the

usual pleading stage inquiry: whether the plaintiff has plausibly pled a cause of action

under RICO.”84 To plead the elements of a civil RICO claim under § 1964(c), a plaintiff

must plead a § 1962 violation and injury to business or property proximately caused by a

RICO violation.85 The plaintiff bears the burden of establishing proximate cause and

damages.86 “Any recoverable damages occurring by reason of a violation of . . . [Section

1962] must flow from the commission of the predicate acts.”87 With respect to the

causation requirement, “a RICO predicate offense must not only [be] a but for cause of

[plaintiff’s] injury, but it must be the proximate cause as well.”88 To survive a Rule

12(b)(6) motion, a civil RICO plaintiff must sufficiently plead an injury resulting directly

from the alleged RICO violation.89

The Fifth Circuit has made it clear that proximate cause for purposes of RICO does

not turn on the question “of foreseeability; instead, a plaintiff must demonstrate the

82 Id. at 133.

83 St. Luke’s Health Network, Inc. v. Lancaster Gen. Hosp., 967 F.3d 295, 300 (3rd Cir. 2020).

84 Safe Streets All. v. Hickenlooper, 859 F.3d 865, 887 (10th Cir. 2017). See also HCB Fin. Corp. v.

McPherson, 8 F.4th 335, 339 (5th Cir. 2021) (explaining that “a motion to dismiss for lack of statutory

standing is analyzed under Rule 12(b)(6), not Rule 12(b)(1)”).

85 Cullom v. Hibernia National Bank, 857 F.2d 1211, 1214-1215 (5th Cir. 1988).

86 Arroyo v. Oprona, Inc., 736 F. App'x 427, 429 (5th Cir. 2018); Jackson v. NAACP, 546 F. App'x 438, 442

(5th Cir. 2013).

87 Cullom, 857 F. 2d at 1215 (quoting Sedima S.P.R.L v. Imex Co., 473 U.S. 474, 497 (1985)).

88 Jackson v. NAACP, 546 F.. Appx. 438, 442 (5th Cir. 2013) (internal quotations omitted).

89 See 6315 Mag., LLC v. Flot Nola, LLC, No. CV 20-1472, 2020 WL 4922361, at *10 (E.D. La. Aug. 21, 2020)

(citing Sedima 473 U.S. at 496.

alleged RICO violation ‘led directly’ to her injuries.”90 The Fifth Circuit has explained that

the proximate cause requirement is met when “the alleged violation ‘led directly’ to the

injuries.”91 The proximate cause requirement “forces the plaintiff to demonstrate a direct

relation between the injury suffered and the alleged injurious conduct. Thus, the concept

of direct injury refers to the relationship between the [plaintiff’s] injury and the

defendants' actions.”92 Courts frequently look to cases addressing the proximate cause

requirement in the antitrust context as informing the proximate cause analysis under

RICO.93

The Court will now examine Supreme Court precedent addressing proximate cause

under civil RICO. First, in Holmes v. Securities Investor Protection Corporation,

Securities Investor Protection Corporation (“SIPC”) brought civil RICO claims against

Robert G. Holmes and 75 others (collectively, “Holmes”), alleging Holmes manipulated

stock prices.94 SIPC was obligated to reimburse customers of certain broker-dealers if the

broker-dealers were unable to meet their financial obligations to their customers.95 Stock

prices plummeted after Holmes’ stock manipulation was detected, and, as a result, two

broker-dealers were unable to meet their financial obligations to their customers. SIPC,

as insurer against the loss sustained by the broker-dealers’ failure to meet their

obligations to their customers, was on the hook for nearly $13 million in customer claims.

The United States Supreme Court ruled SIPC could not recover against Holmes under

90 Molina-Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784–85 (5th Cir. 2020).

91 Id. at 784 (first citing Anza v. Identical Steel Supply Corp., 547 U.S. 451, 461, (2006) and then citing

Hemi Grp., LLC v. City of New York, 559 U.S. 1, 10, 12 (2010) (plurality opinion)).

92 Firestone v. Galbreath, 976 F.2d 279, 285 (6th Cir. 1992), certified question answered, 67 Ohio St. 3d

87, 616 N.E.2d 202 (1993).

93 See, e.g., Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 267 (1992) (stating that it

has been “repeatedly observed” that “Congress modeled § 1964(c) on the civil action provision of the federal

antitrust laws.”); see also Allstate Ins. Co. v. Seigel, 312 F. Supp. 2d 260, 267.

94 503 U.S. at 262–63 (1992).

95 Id. at 261.

civil RICO for Holmes’ illegal stock manipulation. The Supreme Court held that, to state

a civil RICO claim, a plaintiff must show that a RICO predicate act is not only the but for

cause of the injury, but also the proximate cause of the injury.96 The Supreme Court

further held that that RICO’s proximate cause analysis presents a legal, as opposed to a

factual, issue.97 The Court explained that proximate cause requires “some direct relation

between the injury asserted and the injurious conduct alleged,” and that a causal link that

is “too remote,” “purely contingent,” or “indirect,” is insufficient.98 Applying the standard

to the facts before it, the Supreme Court concluded that Holmes’ stock manipulation

conspiracy directly harmed only the broker-dealers, and that SIPC’s injury was too remote

to satisfy RICO’s requirement of a direct causal link.

In Anza v. Ideal Steel Supply Corp., the United States Supreme Court considered

a RICO claim brought by Ideal Steel Supply (“Ideal”) against its competitor, National Steel

Supply (“National”), alleging that National had defrauded the State of New York by failing

to charge and remit sales taxes.99 Ideal’s theory was that National was able to undercut

Ideal’s prices by not charging state taxes to its cash-paying customers, and that National’s

resultant lower prices drew customers to National and away from Ideal, causing Ideal to

lose sales and suffer business losses.100 Ideal argued that, by submitting fraudulent tax

returns to state authorities, National engaged in a pattern of mail and wire fraud in

violation of RICO.101 The Supreme Court first explained that the real victim of National’s

96 Id. at 268.

97 Id. (stating that, in the context of RICO, “we use ‘proximate cause’ to label generically the judicial tools

used to limit a person's responsibility for the consequences of that person's own acts. At bottom, the notion

of proximate cause reflects ideas of what justice demands, or of what is administratively possible and

convenient.”) (internal quotations and citations omitted).

98 Id. at 271, 274.

99 547 U.S. 451, 453–54 (2006).

100 Id. at 454–55.

101 Id. at 454.

mail and wire fraud was the State of New York because the State was being defrauded and

losing tax revenue.102 The Supreme Court further explained “[t]he cause of Ideal’s

asserted harm” was “a set of actions (offering lower prices) entirely distinct from the

alleged RICO violation (defrauding the state),”103 and that, as a result, the alleged RICO

violation did not lead directly to Ideal’s injuries.

Finally, in Hemi Group, LLC v. City of New York, N.Y., the City of New York filed

civil RICO claims against Hemi Group (“Hemi”), alleging Hemi failed to file customer

information with the State of New York as required under federal law.104 Hemi was a New

Mexico based company selling cigarettes online to residents of the City of New York.105

The State of New York authorized the City of New York to impose its own taxes on

cigarettes.106 Out-of-state cigarette vendors such as Hemi were not required to charge,

collect, or remit the cigarette tax; instead, the City was responsible for collecting the

cigarette tax directly from the customers.107 To help the City gather information to assist

in collecting back taxes on cigarettes directly from customers, the Jenkins Act required

out-of-state cigarette vendors to register and file reports with the state tobacco tax

administration, listing the name, address, and quantity of cigarettes purchased by state

residents.108 The City and the State of New York had an agreement under which the State

forwarded to the City information obtained by the State pursuant to Jenkins Act

disclosures, and that information helped the City track down cigarette purchasers who

did not pay their cigarette taxes. Hemi did not file Jenkins Act information with the State,

102 Id. at 458.

103 Id.

104 130 S.Ct. 983, 986 (2010).

105 Id.

106 Id. at 987.

107 Id.

108 Id.

and as a result, the State could not pass on the information to the City. The City argued

Hemi’s failure to file customer information with the State of New York constituted mail

and wire fraud, which caused the City to lose millions in unrecovered cigarette taxes.109

The Supreme Court reasoned the proximate cause requirement was not met

because the City’s harm was the customer’s failure to pay taxes, and the conduct

constituting the alleged fraud was Hemi’s failure to file Jenkins Act reports with the

State.110 Thus, the Supreme Court concluded “the conduct directly causing the harm was

distinct from the conduct causing the fraud.”111 The Supreme Court went on to note that

the disconnect between the asserted injury and the alleged fraud was even sharper than

in Anza, because, in Anza, the same party (namely, National) had both engaged in the

conduct causing the harm and the fraudulent act, and the Anza Court nevertheless found

the disconnect between the fraudulent act and the harm-causing act sufficient to defeat

Ideal’s RICO Claim. In Hemi, the court explained the disconnect was even greater than in

Anza because

the City's theory of liability rests not just on separate actions, but separate

actions carried out by separate parties. The City's theory thus requires that

we extend RICO liability to situations where the defendant's fraud on the

third party (the State) has made it easier for a fourth party (the taxpayer) to

cause harm to the plaintiff (the City). Indeed, the fourth-party taxpayers

here only caused harm to the City in the first place if they decided not to pay

taxes they were legally obligated to pay. Put simply, Hemi's obligation was

to file the Jenkins Act reports with the State, not the City, and the City's

harm was directly caused by the customers, not Hemi. We have never before

stretched the causal chain of a RICO violation so far, and we decline to do

so today.112

109 Id.

110 Id. at 990.

111 Id.

112 Id. (emphasis in original).

Moving to the Fifth Circuit’s rulings, in Waste Management of Louisiana, L.L.C.

v. River Birch, Inc., the plaintiff, Waste Management of Louisiana, L.L.C., brought civil

RICO claims alleging that the defendants, River Birch, Inc., Albert Ward, Frederick

Heebe, and Highway 90, L.L.C., bribed former New Orleans Mayor Ray Nagin, through a

$20,000 campaign contribution, to shut down a landfill opened in New Orleans in the

aftermath of Hurricane Katrina.113 The plaintiff was the operator of the shuttered landfill,

and the defendants owned and operated competing landfills.114 Plaintiff alleged the

closure of its landfill at Chef Menteur Highway caused it to lose business that accrued to

the benefit of its competitor, the River Birch landfill.115 The defendants filed a motion for

summary judgment, and the district court held a reasonable jury could not find the alleged

bribe was the but for and proximate cause of Nagin's decision to shut down the plaintiff's

Chef Menteur landfill.116 The plaintiff appealed the district court’s order granting

defendant’s motion for summary judgment to the Fifth Circuit.117 On appeal, the

defendants argued the district court correctly granted summary judgment because there

was no evidence the $20,000 bribe proximately caused Mayor Nagin to close the

plaintiff’s landfill.118 With respect to the civil RICO causation requirements, the Fifth

Circuit explained that civil RICO demands the plaintiff establish both but for and

proximate causation.119 With respect to proximate cause, the Fifth Circuit explained there

must be “some direct relation between the injury asserted and the injurious conduct

alleged,” and the central question courts must ask with respect to proximate cause is

113 920 F.3d 958, 961 (5th Cir. 2019).

114 Id.

115 Id.

116 Id.

117 Id.

118 Id. at 969.

119 Id. at 965.

“whether the alleged violation led directly the plaintiff’s injuries.”120 The proximate cause

requirement, as applied in the Waste Management case, required the plaintiff to carry its

burden of proving121 the payment to Mayor Nagin was the “but for cause and proximate

cause of [Nagin’s] decision to shutter the landfill,” which specifically required the plaintiff

to establish “its damages were a foreseeable and natural consequence122 of Defendants’

action.”123

In Allstate Insurance Company v. Plambeck, the Fifth Circuit affirmed a jury

verdict based on an instruction to the jury stating the causation requirement in terms of

proximate cause, and holding that proof of reliance by the plaintiff is not required. The

court summarized the proximate cause requirements as formulated by other courts of

appeals, none of which require reliance:

The First Circuit identified directness as the prime directive of proximate

cause and laid out three functional factors to help analyze whether an injury

was sufficiently direct: whether there are concerns about proof resulting

from the level of attenuation; avoiding multiple recoveries and the difficult

apportionment calculations courts would have to make; and whether the

societal interest in policing the injurious behavior justifies finding

proximate causation. In re Neurontin Mktg. & Sales Practices Litig., 712

F.3d 21, 35–40 (1st Cir.2013). The Sixth Circuit looks to whether “the

defendants' fraudulent acts were a substantial and foreseeable cause of the

injuries alleged.” Brown v. Cassens Transp. Co., 546 F.3d 347, 357 (6th

Cir.2008). And the Seventh Circuit similarly states that RICO proximate

cause is designed for those situations “when too many unexpected things

had to happen between the defendant's wrongdoing and the plaintiff's

injury, in order for the injury to occur.” BCS Servs., Inc. v. Heartwood 88,

LLC, 637 F.3d 750, 754 (7th Cir.2011).124

120 Id.

121 The proximate cause issue in Waste Management of Louisiana was presented to the court on a motion

for summary judgment, and not on a motion to dismiss. See id.

122 The Fifth Circuit no longer considers foreseeability to be a part of the proximate cause analysis. See

Molinda-Aranda v. Black Magic Enterprises, L.L.C., 983 F.3d 779, 784 (5th Cir. 2020).

123 Waste Management of Louisiana, L.L.C., 920 F.3d at 965 (internal citations omitted). The Fifth Circuit

ultimately reversed the district court’s grant of summary judgment, explaining that a jury could reasonably

find, based on the plaintiff’s summary judgment evidence, that the defendants’ $20,000 bribe proximately

caused Mayor Nagin to close the plaintiff’s landfill. Id. at 969–70.

124 802 F.3d 665, 676 (5th Cir. 2015).

The Fifth Circuit recently addressed the requirement of proximate causation in the

civil RICO context in Molinda-Aranda v. Black Magic Enterprises, L.L.C.125 Migrant

workers in Molinda-Aranda brought an action against their employer alleging it violated,

among other laws, RICO when it fraudulently obtained H-2B visas for its employees by

claiming they would be employed as construction workers.126 In reality, the defendant

assigned the migrant workers to drive trucks.127 Plaintiffs alleged this fraud caused their

employer to unlawfully make deductions to their paychecks and withhold overtime

wages.128 The defendant brought a motion to dismiss at the district court level under Rule

12(b)(6), which was granted.129 On appeal, the Fifth Circuit affirmed the dismissal

because the proximate causation prong underpinning the civil RICO claim failed.130

Specifically, the Fifth Circuit held “[t]he proximate causation standard in th[e] [civil

RICO] context is not one of foreseeability; instead, the plaintiff must demonstrate that

the alleged violation ‘led directly’ to the injuries.”131 As a result, the plaintiff’s allegations

taken as true did “not support a conclusion that their underpayment injuries were directly

caused by [Defendant’s] alleged fraud in obtaining H-2B visas.”132 Instead, the plaintiff’s

injuries were caused by the underpayment itself, not by the alleged violation of RICO,

which failed the “directly led” to injury test.133

The proximate cause analysis in a RICO action filed by a former employee is much

the same. “Innumerable courts, including the Fifth Circuit and the United States Supreme

125 983 F.3d at 783.

126 Id.

127 Id.

128 Id. at 785.

129 Molinda-Aranda v. Black Magic Enterprises, L.L.C, No. CV 16-476, 2017 WL 7693454, at *4 (W.D. TX

June 26, 2017).

130 Molinda-Aranda, 983 F.3d at 785.

131 Id. at 784.

132 Id. at 784–85.

133 Id. at 785.

Court, have held that employees who are discharged for reporting or refusing to

participate in a pattern of racketeering activity do not have standing to sue their

employers under 18 U.S.C. § 1964(c)” because “the injuries flowing from the employer's

retaliatory conduct were not sufficiently proximate to the alleged RICO violations to

confer standing upon the employee.”134 For example, in Cullom v. Hibernia National

Bank, the plaintiff, Cullom, sued his employer, Southwest National Bank of Lafayette

(“SNB”), and Hibernia National Bank (“Hibernia”), alleging that SNB and Hibernia, as

part of a fraudulent scheme, engaged and conspired to engage in several acts of mail fraud

and securities fraud.135 The scheme consisted of Hibernia’s sale and attempt to sell to

other banks substantial short term participations in its loan portfolio shortly before the

end of the reporting period, coupled with Hibernia’s plan to repurchase the loan

participations shortly after the end of the same period.136 Thereby, Hibernia would reduce

its loan portfolio while increasing its cash position, with the result that Hibernia favorably

and materially distorted both its loan loss reserve size and its liquidity position.137 Cullom

was aware of the fraudulent effects of these activities on financial statements, and he also

knew that the Comptroller of the Currency prohibited such actions.138 In March of 1986,

Hibernia informed Cullom it intended to sell and repurchase one hundred fifteen million

dollars in temporary loan participations to SNB.139 Cullom became concerned Hibernia

was asking him and SNB to get involved in illegal activity, and Cullom sought advice from

134 Jones v. Enter. Rent A Car Co. of Texas, 187 F. Supp. 2d 670, 676–77 (S.D. Tex. 2002) (citing Sedima v.

Imrex Co., Inc., 473 U.S. 479, 497 (1985). Although the court mentions “standing,” it is clear the inquiry is

one of proximate cause.

135 859 F.2d 1211, 1212 (5th Cir. 1988).

136 Id.

137 Id.

138 Id. at 1213.

139 Id.

independent legal counsel.140 Cullom ultimately refused to participate in the scheme, and,

on April 30, 1986, SNB informed Cullom he must resign or be fired because “he refused

to participate and cooperate in the purchase of the loan participations from Hibernia and

because he sought the advice of independent legal counsel.”141 With his hand thus forced,

Cullom immediately submitted his resignation.142

Thereafter, Cullom filed civil RICO claims against SNB and Hibernia, alleging he

was constructively discharged because he refused to participate in illegal activity, and that

because of his constructive discharge, he had standing to bring civil RICO claims.143 The

Fifth Circuit held that Cullom lacked standing to sue under civil RICO.144 The Court

reasoned the proximate cause requirement was not met because Cullom’s injury (the

discharge) did not flow from the commission of predicate acts of racketeering.145 The Fifth

Circuit, in reaching its conclusion that Cullom lacked standing, analogized to cases from

other circuits dealing with persons who reported RICO violations and were fired for such

reporting,146 including Pujol v. Searson/Am. Express Inc.147 and Nodine v. Textron,

Inc.148 The Fifth Circuit summarized Pujol and Nodine as follows:

In Pujol, the plaintiff-appellant, Pujol, was a top executive at Shearson

(Puerto Rico), and in his position, Pujol noticed serious deficiencies in the

“internal controls” of both Shearson companies in Puerto Rico. Pujol

notified top management of the situation, but he refused to sign an

explanatory letter to clients because he felt that the letter did not represent

a full disclosure of the situation. Pujol also notified Shearson executives that

a number of banking transactions involving the misuse of funds had

occurred. Pujol was instructed not to take any corrective action and not to

report the irregularities to the appropriate authorities. At a meeting, Pujol

140 Id.

141 Id.

142 Id.

143 Id.

144 Id.

145 Id.

146 Id. at 1215.

147 829 F.2d 1201 (1st Cir. 1987).

148 819 F.2d 347 (1st Cir. 1987).

submitted a letter to Shearson executives stating that Shearson's legal

counsel should be consulted as to whether the internal audit's findings

should be reported to the appropriate authorities. Pujol sent copies of the

letter to Shearson's legal counsel and to other Shearson executives.

Immediately after submitting the letter, Pujol was temporarily “suspended.”

Shearson changed the locks on Pujol's office door, seized and copied Pujol's

personal files, revoked Pujol's American Express card, retained more than

$35,000 in Pujol's account with Shearson, and accused Pujol of being

directly involved in the irregularities discovered. In its opinion, the First

Circuit noted that Pujol's complaint did not allege that he was injured by the

predicate acts but rather alleged that he was fired, slandered and otherwise

injured because of the actions he took to report and to stop the illegal

schemes. Further, the court held that Pujol alleged sufficient predicate

acts—securities fraud and mail and wire fraud—but that the acts that

injured Pujol . . . were not caused by the predicate acts alleged in the

complaint within the meaning of Sedima’s causation requirement.149

. . .

In Nodine, the plaintiff-appellant, Nodine, was an area manager, and he

discovered that his company was committing routine violations of Canadian

customs laws. Nodine reported these violations to his superiors and to

Textron's legal department. Also, Nodine signed a compliance letter stating

that he knew of the Canadian customs violations, and when asked to change

his statement, he refused to do so. Thereafter, Nodine was harassed at work,

passed over for promotions and salary increases, and was finally

discharged. . . . The court in Nodine held that Nodine's injury was not a

result of the alleged RICO violations—mail and wire fraud, obstruction of

justice, obstruction of a criminal investigation, and interference with

commerce—but rather Nodine's injury resulted from Textron's decision to

fire him after he reported the customs scheme to his superiors.150

The Fifth Circuit, agreeing with the reasoning employed in Pujol and Nodine, held that

Cullom failed to allege a causal nexus between his injury and the predicate acts, and that

the acts that injured Cullom were the same as the alleged predicate acts of securities fraud

and mail fraud.151 Instead, the Court concluded Cullom’s injury resulted from SNB’s

decision to fire him after he refused to participate in the alleged scheme, and that neither

Cullom’s injury nor SNB’s decision to fire him resulted from the alleged predicate acts.

149 Cullom, 859 F.2d at 215 (emphasis in original) (citing Pujol, 829 F.2d at 1202–03, 1205).

150 Id. at 1216 (emphasis in original) (internal quotations omitted) (citing Nodine, 819 F.2d at 347–49).

151 Id.

Cullom, Pujol, and Nodine establish that “[w]histle blowers do not have standing to sue

under RICO for the injury caused by the loss of their job.”152

In this case, Plaintiff alleges Defendants committed crimes constituting

racketeering activity” within the meaning of 18 U.S.C. § 1961(1), arguing each crime is a

distinct predicate act falling within the purview of RICO.153 Specifically, Plaintiff alleges

Defendants engaged in the following predicate acts of racketeering activity: mail fraud

under 18 U.S.C. § 1341; wire fraud under 18 U.S.C. § 1343; concealing documents or

obstructing official proceedings under 18 U.S.C. § 1512;154 retaliation against a witness,

victim, or an informant under 18 U.S.C. § 1513; and interstate travel in aid of racketeering

under 18 U.S.C. § 1952.155 To carry the burden of establishing the commission of the

alleged predicate acts proximately caused Plaintiff’s injuries under § 1964(c), Plaintiff

must allege factual content, which, taken as true, establishes Defendants’ violations led

directly to her injuries.156

The Court will now summarize, based on the allegations of the Second Amended

Complaint and first amended RICO Case Statement, the acts the Plaintiff alleges

constitute the RICO violations and the injuries Plaintiff alleges she suffered. Then, the

152 Id.

153 See, e.g., Jones v. Enter. Rent A Car Co. of Texas, 187 F. Supp. 2d 670, 675 n.1 (S.D. Tex. 2002)

(explaining that “RICO defines ‘racketeering activity’ as any offense listed in 18 U.S.C. § 1961(1). These

offenses are often referred to as ‘predicate acts,’ and primarily include crimes indictable under federal law,

although a lesser number are punishable under state law.”).

154 Plaintiff labels the alleged § 1512 violation as “relating to tampering with a witness, victim or an

informant.” See R. Doc. 219 at ¶ 138. Plaintiff also alleged violations of § 1512(c) in her complaint, which

involves concealing documents from, or otherwise obstructing, official proceedings. See, e.g., id. at ¶ 161.

Further, Plaintiff repeatedly alleges Defendants “concealed” the Miles investigation and Miles Report from

“official Title IX proceedings.”

155 Id. at ¶ 138.

156 Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998) (“To state a civil RICO claim . . . a

plaintiff must allege: (1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.

As a preliminary matter, however, a plaintiff must establish that he has standing to sue. . . . [A] RICO

plaintiff must satisfy two elements—injury and causation.”).

Court will determine whether Plaintiff’s allegations, taken as true, support a conclusion

that her injuries were directly, or proximately, caused by the predicate acts.

II. Plaintiff’s allegations regarding predicate acts and her injuries.

The Court initially notes that, in its December 2, 2021 Order and Reasons, the

Court held Plaintiff’s civil RICO claims based on injuries that were discovered, or that

should have been discovered, before April 8, 2017, are time barred.157 Despite Plaintiff’s

allegations in the Second Amended Complaint regarding conduct beginning in 2013 and

continuing until 2021, the cognizable injuries are those occurring after April 8, 2017.158

Plaintiff alleges the predicate acts described below constituted RICO violations and

that these actions proximately caused her injuries.159

A. 18 U.S.C. § 1512(c)(1)—concealing documents from an official

proceeding:160

 Plaintiff alleges Miles, Ginsberg, Hardin, Barton, Crochet, and Alleva concealed the

Miles Report by not responding to public records requests by news organizations.161

 Plaintiff alleges Alleva, Segar, Ausberry, McKenzie, Crochet and Barton

“participated in, directed and facilitated the scheme to conceal the sexual

harassment investigation of Head Football Coach Les Miles and the Miles Report

from an official Title IX proceeding.”162

157 R. Doc. 165 at pp. 42–51, 53.

158 For the purpose of completeness, the Court has included all the allegations in its analysis.

159 Plaintiff also alleged Woodward, Williams, and Werner conspired to direct LSU President F. King

Alexander to fire Alleve and replace him with Woodward and to protect and promote Verge Ausberry. The

Plaintiff alleges this was a violation of 18 U.S.C. 1961(d). The Court assumes the Plaintiff intended to cite 18

USC 1962(d) which makes it unlawful for a person to conspire to violate the provisions of subsections (a),

(b), or (c). A violation of 1962(d) is not a predicate act.

160 Plaintiff alleges the U.S. Department of Education (“DOE”) was conducting an off-campus crime

program review of LSU. R. Doc. 219 at ¶ 119. Plaintiff also alleges the DOE opened a direct investigation to

examine whether LSU was complying with the requirements of Title IX. Id. at ¶ 120. Plaintiff alleges Crochet

and Barton were conducting an independent investigation in a Title IX proceeding. Id. at ¶ 142. Plaintiff

alleges the PM-73 investigation of her was an official proceeding. R. Doc. 219-10 at p. 3. It is not necessary

for the Court to determine whether there was an ongoing “official proceeding” under 18 U.S.C. § 1512.

161 R. Doc. 219 at ¶¶ 174–179. The Plaintiff also alleges the LSU Board of Supervisors concealed the Miles

Report and a police report from USA Today. R. Doc. 219 at ¶¶ 177-179. The LSU Board of Supervisors is not

a defendant in the RICO claim.

162 R. Doc. 219-10 at pp. 2–7. Plaintiff alleges Jenkins, Danos, Yarborough, Jacobs, Alexander, Ginsberg,

Hardin, and Miles also engaged in this conduct. Id. at pp. 8–11, 14.

 Plaintiff alleges Alleva and Segar “directed Crochet and Barton to conceal the Miles

Report in their law office from an official Title IX proceeding from 2013 to 2021.”163

 Plaintiff alleges Alleva “conspired with Miles to conceal the Miles Investigation in

Miles’ lawyers’ law offices from an official Title IX proceeding from 2013 t0 2021.”164

 Plaintiff alleges McKenzie “conspired with Crochet and Barton to conceal the Miles

Report in their law office from an official Title IX proceeding from 2013 to 2021.”165

 Plaintiff alleges Crochet and Barton “concealed the Miles Report in [their] law office

from an official Title IX proceeding from 2013 to 2021.”166

 Plaintiff alleges “Defendants met to discuss the Miles Report and after multiple in

person meetings, emails, text messages and phone calls individually agreed to

conceal the Miles Investigation from an official Title IX proceeding.”167

B. 18 U.S.C. § 1512(c)(2)—otherwise obstructing, influencing, or

impeding an official proceeding:

 Plaintiff alleges that on October 1, 2018 Ausberry, Segar, Crochet, and Barton

instituted a fraudulent PM-73 Title IX investigation against her168 and that the

investigation was an official proceeding.169

 Plaintiff alleges Segar and Ausberry “knowingly gave false and misleading testimony

in an official PM-73 investigation (Title IX) by failing to inform the investigator that

all Title IX complaints in the athletic department were to be directed to Segar.”170

 Plaintiff alleges Segar and Ausberry did not inform the PM-73 investigation of

Complainant 1’s allegations against Drake David.171

 Plaintiff alleges Segar falsely informed the PM-73 investigation that Plaintiff “never

reported any Title IX/Sexual Misconduct issue to her.”172

163 Id. at pp. 2–3.

164 Id. at p. 2.

165 Id. at pp. 4–5.

166 Id. at p. 6.

167 Id. at p. 17.

168 R. Doc. 219 at ¶ 260. PM-73 is LSU’s Title IX policy.

169 Id. at ¶ 259. It is not necessary for the Court to determine whether this was an official proceeding.

170 R. Doc. 219-10 at pp. 3-4, 20. Plaintiff’s allegations concerning the allegedly “fraudulent” PM-73

investigation opened against her in October 2018 for failure to report a Title IX complaint involving former

LSU football player Drake Davis are not time barred because “[t]he injury associated with the ‘fraudulent’

Title IX investigation into Plaintiff was discovered by Plaintiff less than four years ago, and, as a result, such

injury is not time barred.” R. Doc. 165 at p. 45. Plaintiff alleges Scott also engaged in this conduct. R. Doc.

219-10 at p. 13.

171 R. Doc. 219 at ¶ 261.

172 Id. at ¶ 262.

C. 18 U.S.C. §§ 1512(a), 1512(b) and 1513—tampering with, or

retaliating against, a witness victim or informant, in an official

proceeding:

 Plaintiff alleges “Barton, Crochet, McKenzie, Miles, Danos, Yarborough, Jacobs,

Jenkins, Alleva, and Segar had multiple meetings, phone calls and emails with Miles'

legal counsel, the student's family, and legal counsel to discuss the exchange of

money to dissuade [a student] from testifying against Miles in an official Title IX

proceeding and on information and belief that Miles and the student reached a

private settlement in 2013.”173

 Plaintiff alleges on May 5, 2013, Crochet and Segar “pressured a professor” to allow

a student who filed a Title IX complaint against Miles to “retake a failed quiz to

corruptly dissuade [the] student from testifying in Title IX proceedings against

Miles.”174

 Plaintiff alleges Ausberry “harassed, screamed at and intimidated plaintiff to

dissuade her from testifying in official Title IX proceedings from 2005 to 2021.”175

 Plaintiff alleges from 2013 to 2021, Ausberry “verbally abused and intimidated

plaintiff for bringing a Title X complaint against him to influence, delay and prevent

her testimony in an official Title IX proceeding.”176

D. 18 U.S.C. § 1341—mail fraud:177

 Plaintiff alleges on March 19, 2013, Miles’ attorney sent Barton a “[l]etter in

furtherance of the scheme to hide [the] Miles investigation.”178

 Plaintiff alleges on August 29, 2013, Barton and Crochet mailed to Ginsberg a

“[l]etter directing Ginsberg and Hardin to conceal [the] Miles Report from an official

Title IX proceeding and public documents request in their office.”179

 Plaintiff alleges in 2013, McKenzie, Crochet, and Barton “participated in, directed

and facilitated the scheme by Vicki Crochet, Robert Barton and Shelby McKenzie to

defraud LSU out of eighty ($80,000.00) thousand dollars by submitting fraudulent

173 R. Doc. 219 at ¶ 193.

174 Id. at ¶ 189.

175 R. Doc. 219-10 at pp. 4, 20. Plaintiff alleges Miles, now dismissed, also engaged in this conduct. Id. at p.

9.

176 R. Doc. 219 at ¶ 287,

177 Plaintiff attached a spreadsheet to her second amended complaint which Plaintiff alleges sets forth “with

particularity” the “circumstances constituting mail fraud and wire fraud.” R. Doc. 219-10 at p. 17; see R.

Doc. 219-11.

178 R. Doc. 219 at ¶ 163. This letter “sent” by Miles’ attorney is listed under “Mail Fraud.” Id. at p. 35. The

Court assumes the allegation is that the letter was sent by mail.

179 Id. at ¶ 182.

invoices to LSU with material omissions of the Title IX investigation of Les Miles,”180

and that, in furtherance of this scheme to defraud LSU, at various times in 2013,

Barton and Crochet “mailed billing invoices [to LSU] with material omissions.”181

 Plaintiff alleges on November 16, 2018, LSU’s Title IX lead investigator Jeffrey Scott,

who is not a defendant in this action, mailed Plaintiff a “final report of [the]

fraudulent PM-73 investigation that contained material omissions that Segar was

designated to receive all Title IX complaints in the Athletic Department.”182

E. 18 U.S.C. § 1343—wire fraud:

Plaintiff attached a spreadsheet to her Second Amended Complaint which Plaintiff

alleges sets forth the “circumstances constituting mail fraud and wire fraud.”183 With the

exception of the mail fraud allegations set forth in Section D above, the approximately

five hundred remaining entries on the spreadsheet attached to Plaintiff’s Second

Amended Complaint all relate to alleged wire fraud.184 These wire fraud allegations are

based on emails sent and received by Crochet and Barton in 2013 and 2014, and telephone

calls from 2013 and 2014 between Defendants and various other individuals relating to

the 2013 Miles investigation, the 2013 Miles Report, and the 2013 settlement between

Miles and one of the student complainants.185 Reproduced below are the first few entries

of Plaintiff’s spreadsheet, which are representative of all the wire fraud entries:

From To Date Content

Barton Witnesses 3/15/2013 Email was sent in

and furtherance of

Student conspiracy to hide

Miles

investigation

Barton Alleva, 3/18/2013 Telephone

Segar, conversation in

McKenzie furtherance of

180 Id. at ¶ 203.

181 Id. at ¶ 206. Plaintiff alleges Jenkins, now dismissed, also engaged in this conduct. Id.

182 Id. at ¶ 284.

183 R. Docs. 219-11, 219-10 at p. 17.

184 R. Doc. 219-11.

185 See Id.

conspiracy to hide

Miles

investigation

Barton Alleva, 3/18/2013 Email was sent in

Segar, furtherance of

McKenzie conspiracy to hide

Miles

investigation

Barton Crochet, 3/19/2013 Email was sent in

McKenzie furtherance of

conspiracy to hide

Miles

investigation

Barton Crochet, 3/19/2013 Telephone

McKenzie conversation in

furtherance of

conspiracy to hide

Miles

investigation186

The above-described examples fairly represent the remaining instances of alleged wire

fraud as set forth in Plaintiff’s spreadsheet.

Plaintiff also alleges that in 2018 email communications were sent to her by Jeffrey

Scott relating to the PM-73 investigation into the Plaintiff.187 Reproduced below are the

emails allegedly sent by Jeffrey Scott to Plaintiff:

In furtherance of the scheme to injure plaintiff’s business and employment

through an official DOE Title IX proceeding RICO actor Jeffrey Scott used

email communications affecting interstate commerce and knowingly

violated 18 U.S.C. 1343 by sending the following emails:

From To Date Content

Scott Lewis 10/5/2018 Email notifying

Lewis that a PM-73

Investigation is

being initiated

against her.

186 Id. at p. 1.

187 R. Doc. 219 at ¶¶ 283-284.

Scott Lewis 11/16/2018 Email of Final

Report Of

fraudulent PM-73

Investigation that

contained material

omission that Segar

was designated as

the person that all

Title IX complaints

were to be

forwarded to.

Scott Lewis 11/20/2018 Email of Final

Report Of

fraudulent PM-73

Investigation that

contained material

omission that Segar

was designated as

the person that all

Title IX complaints

were to be

forwarded to.

Scott Lewis 1/11/2019 Email on fraudulent

PM-73

Investigation188

F. 18 U.S.C. § 1952—traveling in aid of interstate commerce:

 Plaintiff alleges Danos, Yarborough, Jacobs, Alleva, Miles, Segar, Crochet, Barton,

Jenkins, and McKenzie traveled in interstate commerce.189

 Plaintiff alleges Barton and Crochet met in New Orleans with Ginsberg and the

student’s father and attorney to facilitate the exchange of money to bribe the student

into dropping her complaint against Miles.190

G. Plaintiff’s alleged injuries:

As explained above, Plaintiff may bring claims only for injuries to her business or

property occurring after April 8, 2017.

188 R. Doc. 219 at ¶¶ 283–284.

189 R. Doc. 219-10 at pp. 18–19.

190 Id. at p. 19.

Plaintiff alleges the injuries to her employment and business are interference with

her right to earn a living, loss of pay raises, loss of promotions, loss of bonuses, loss of

benefits, loss of career in Power 5 Athletics, loss of professional development

opportunities, and exposure from lawsuits.191

The Court notes that much of the damage Plaintiff alleges under the RICO count

in her Second Amended Complaint is not traced back by her to any particular RICO

violation. For the most part, Plaintiff has offered only the conclusory statement that the

Defendants’ conduct directly and proximately damaged Plaintiff’s business and property

interest in her employment.192 In many instances, what Plaintiff identifies as RICO

damage may be recovered only under her Title IX and Title VII retaliation and

termination claims.193 Throughout the Second Amended Complaint, Plaintiff repeatedly

alleges Defendants “target[ed] plaintiff’s property interest in her employment and

business by denying her pay raises, bonuses and promotions in retaliation for her

reporting Miles’ sexual misconduct.”194 Further, Plaintiff alleges she went to Ausberry in

November and December of 2020 to complain about, and inquire into, her lack of

promotions, and she alleges Ausberry told her she was not being promoted because she

“use[s] the word Title IX too much,” and that she would “never be promoted because [she]

file[s] Title IX complaints.”195 Plaintiff further alleges “[f]rom 2011 to present plaintiff is

the only employee in LSU’s Athletic Department who has reported Title IX complaints

and the RICO Defendants targeted her business and employment in retaliation.”196

191 R. Doc. 219 at ¶¶ 164, 183, 198, 208, 294. R. Doc. 219-10 at pp. 16 and 25. Plaintiff does not request

damages for her termination under her civil RICO claim.

192 See R. Docs. 219 and 219-10.

193 Id. at ¶¶ 242-254.

194 Id. at ¶¶ 166, 183, 198, 208 (emphasis added).

195 Id. at ¶¶ 229–230.

196 Id. at ¶ 239. Plaintiff has pending claims against the Board for retaliation in violation of Title IX. See

generally id.

In addition, although Plaintiff claims the Defendants’ RICO violations have caused

her emotional distress, such damages are not recoverable in a RICO action under the

“business or property” limitation in Section 1964(c).197

III. Plaintiff’s allegations, taken as true, do not support the conclusion that

her injuries were proximately caused by predicate acts of racketeering

activity.

Having identified Plaintiff’s alleged injuries and Defendants’ alleged predicate

acts, the Court will now determine whether, taking the allegations as true, the Court

concludes the injuries were proximately caused by the predicate acts. As set forth above,

in the context of RICO, to satisfy the proximate cause requirement at the pleading stage,

the Plaintiff’s allegations, taken as true, must support the conclusion that the predicate

acts led directly to the Plaintiff’s injuries.198

A. Plaintiff’s injuries were not proximately caused by the Defendants’

acts of concealing the Miles investigation and Report from the

public or from the full Board of Supervisors.

Plaintiff described her injuries resulting from the concealment of the Miles Report

and investigation as being that, prior to his termination in 2016, Miles denied her pay

raises, bonuses, and promotions;199 left her out of recruiting meetings and off emails

relating to recruiting; and denied her opportunities to attend professional meetings.200

Plaintiff also alleges the concealment of the Miles Report and investigation led to her

injury in 2017 when Alleva refused to send her to an NFL meeting as a representative of

LSU.201 Finally, Plaintiff alleges the concealment caused her injury from 2019 to the

present when Woodward and Ausberry denied her pay raises, bonuses, and

197 28 U.S.C. 1964(c).

198 Molina-Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784–85 (5th Cir. 2020).

199 R. Doc. 219 at ¶ 228.

200 Id. at¶ 224.

201 Id. at ¶ 252.

promotions.202

During oral argument, the Court attempted to draw out from Plaintiff’s counsel the

basis of his argument that Plaintiff’s injuries described above were proximately caused by

the alleged RICO predicate acts.203 Plaintiff’s counsel first identified Plaintiff’s injuries to

her employment as lack of promotions from 2013 to 2021, harm to her business

reputation, denial of opportunities to attend conferences, and denial of resources in her

employment.204 The Court asked Plaintiff’s counsel to explain how these injuries were

directly caused by the Defendants’ predicate acts, and to list the specific RICO violations

that caused Plaintiff’s injuries.205 Plaintiff’s counsel responded that in 2013 several

Defendants agreed to conceal an investigation into an official Title IX proceeding with the

purpose of covering up Miles’ conduct to protect Miles, and that, once they concealed

Miles’ conduct, the Defendants placed Plaintiff directly under Miles’ supervision and

Miles began to damage Plaintiff’s employment by denying her promotions and pay

raises.206 Plaintiff’s counsel later argued the predicate acts done to cover up the Miles

investigation resulted in Miles being placed in charge of Plaintiff and “empowered” Miles

to deny Plaintiff promotions and pay raises establishing that proximate cause exists.207

Even if the Court accepts as true that the Miles Report and investigation were

“concealed” from the public at large and from the Board of Supervisors, as alleged,

Plaintiff has not shown how these acts led directly to her injuries--interference with her

right to earn a living, loss of pay raises, loss of promotions, loss of bonuses, loss of

benefits, loss of career in Power 5 Athletics, loss of professional development

202 Id. at ¶¶ 164, 255.

203 R. Doc. 253 at p. 41.

204 Id. at pp. 41–42.

205 Id. at p. 43.

206 Id. at pp. 43–44.

207 Id. at p. 44.

opportunities, and exposure from lawsuits. Instead, the concealment harmed others. The

first alleged violation, failure to produce a document in response to a public records

request, harmed the newspaper or newspapers making the requests. The second alleged

violation, failure to provide the Miles Report to the full Board of Supervisors, harmed the

Board of Supervisors.208

If we consider what had to happen between the Defendants’ alleged wrongdoing

and the Plaintiff’s injury in order for the injury to occur, it becomes clear the wrongful

conduct did not proximately cause the Plaintiff’s injuries. Plaintiff’s argument appears to

be that the concealment of the Miles investigation and Report led to Miles continuing to

be the head football coach at LSU; which led to Miles being named Plaintiff’s supervisor;

which led to his having the power to and denying her pay raises, bonuses, promotions,

and professional development opportunities; which led to Miles being in a position to

continue to harass students; which led to Plaintiff making complaints against Miles and

others; which led to Miles, Alleva, Woodward, and Ausberry denying her pay raises,

bonuses, promotions, and professional development opportunities. The RICO proximate

cause requirement is designed to deny recovery in situations such as this one “when too

many unexpected things had to happen between the defendant's wrongdoing and the

plaintiff's injury, in order for the injury to occur.”209 The Plaintiff has not met her burden

of showing her injuries were proximately caused by the Defendants’ acts of concealing the

Miles Report and Miles investigation.

208 The Plaintiff does have Title IX and Title VII claims pending against the LSU Board of Supervisors. Id.

at ¶¶ 300–323.

209 BCS Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 754 (7th Cir.2011).

B. Plaintiff’s injuries were not proximately caused by the Defendants’

acts of otherwise obstructing an “official proceeding.”

Plaintiff alleges Ausberry and Segar violated 18 U.S.C. § 1512(c)(2) by instituting a

fraudulent PM-73 investigation against her, by knowingly giving “false and misleading

testimony in an official PM-73 investigation (Title IX) and by failing to inform the

investigator that all Title IX complaints in the athletic department were to be directed to

Segar.” Plaintiff also alleges Ausberry and Segar failed to inform the investigator that all

Title IX complaints in the athletic department were to be directed to Segar; failed to

inform the PM-73 investigation of Complainant 1’s allegations against David Drake; and

falsely informed the PM-73 investigator that Plaintiff never reported any Title IX/sexual

misconduct issue to Segar.

In her pleadings, Plaintiff described her injuries resulting from this conduct as her

having a PM-73 investigation noted in her personnel file, which she claims is damaging

to her business and property, including interference with her right to earn a living, loss of

pay, loss of benefits, loss of promotions, loss of bonuses, loss of career in Power 5

Athletics, and exposure from lawsuits.210 At the oral argument on the Defendants’

motions to dismiss, in response to questioning by the Court, Plaintiff’s counsel identified

no additional injuries resulting from the PM-73 investigation.

If we consider what had to happen between the Defendants’ alleged wrongdoing

and the Plaintiff’s injury in order for the injury to occur, it becomes clear the wrongful

conduct did not proximately cause the Plaintiff’s injuries. Plaintiff’s argument appears to

be that Defendants’ failure to inform the investigator that all Title IX complaints in the

athletic department were to be directed to Segar, that Complainant 1 had made allegations

210 R. Doc. 219 at ¶¶ 274, 294.

against David Drake, and that Segar had falsely informed the PM-73 investigation that

Plaintiff never reported any Title IX/sexual misconduct issue to her, led to LSU’s Title IX

office finding “there is sufficient evidence to prove that Respondent Sharon Lewis violated

LSU’s Title IX and Sexual Misconduct Policy PM-73;211 which led the Title IX Lead

Investigator to intentionally fail to interview multiple material witnesses and to

determine Segar and Ausberry were the only two “material observers” that warranted

testimony in the investigation;212 which led to the LSU Title IX coordinator denying

Plaintiff’s appeal;213 which led to the LSU Title IX office not opening an investigation of

Ausberry;214 which led to Plaintiff being denied a full copy of the LSU Title IX

investigation;215 which led to Ausberry and Segar denying Plaintiff pay raises, bonuses,

promotions, and professional development opportunities. The RICO proximate cause

requirement is designed to deny recovery in situations such as this one “when too many

unexpected things had to happen between the defendant's wrongdoing and the plaintiff's

injury, in order for the injury to occur.”216 The Plaintiff has not met her burden of showing

her injuries were proximately caused by the acts of Ausberry and Segar relating to

obstructing the PM-73 investigation. Plaintiff fails to show how this conduct led directly

to her alleged injuries.

C. Plaintiff’s injuries were not proximately caused by the Defendants’

acts of tampering with, or retaliating against, a witness, victim, or

informant.

Plaintiff alleges the Defendants violated 18 U.S.C. §§ 1512(a), 1512(b) and 1513―

tampering with, or retaliating against, a witness, victim, or informant―when, in 2013,

211 R. Doc. 219 at ¶ 266.

212 Id. at ¶ 268.

213 Id. at ¶ 271.

214 Id. at ¶ 273.

215 Id. at ¶ 276.

216 BCS Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 754 (7th Cir.2011).

Miles reached a private settlement with a student who accused him of sexual harassment

“to dissuade [the student] from testifying against Miles in an official Title IX

proceeding.”217 Plaintiff alleges Defendants “facilitated the exchange of money between

Miles and the student who accused [Miles] of sexual misconduct, to bribe her into

dropping her complaint against Miles.”218 Plaintiff alleges Crochet and Segar “pressured”

an LSU professor to let a student-complainant retake a failed quiz.219 Plaintiff alleges

Ausberry “harassed, screamed at and intimidated plaintiff to dissuade her from testifying

in official Title IX proceedings from 2005 to 2021.”220

The Plaintiff has identified her damages as loss of pay raises, loss of promotions,

loss of bonuses, loss of benefits, loss of career in Power 5 Athletics, and exposure to

lawsuits. Plaintiff has not specifically alleged any additional injuries she suffered as the

result of this conduct. Plaintiff has provided absolutely no evidence or explanation of how

the private settlement between Miles and a student complainant led directly to Plaintiff’s

injuries. Neither has Plaintiff explained how the Defendants pressuring a professor to let

a student complainant retake an examination led directly to those injuries.

If we consider what had to happen between the Defendants’ alleged wrongdoing

and the Plaintiff’s injury in order for the injury to occur, it becomes clear the wrongful

conduct did not proximately cause the Plaintiff’s injuries. Plaintiff’s argument appears to

be that settling with a student complainant, convincing a professor to allow a student

complainant to retake an examination, and dissuading Plaintiff from testifying at an

official Title IX proceeding led to Miles continuing to be the head football coach at LSU;

217 R. Doc. 219 at ¶ 193.

218 R. Doc. 219-10 at p. 18.

219 R. Doc. 219 at ¶ 189.

220 R. Doc. 219-10 at pp. 4, 20; R. Doc. 219 at ¶ 287.

which led to Miles being named Plaintiff’s supervisor; which led to his having the power

to and denying her pay raises, bonuses, promotions, and professional development

opportunities; which led to Miles being in a position to continue to harass students; which

led to Plaintiff making complaints against Miles and others; which led to Miles, Alleva,

Woodward, and Ausberry denying her pay raises, bonuses, promotions, and professional

development opportunities. The RICO proximate cause requirement is designed to deny

recovery in situations such as this one “when too many unexpected things had to happen

between the defendant's wrongdoing and the plaintiff's injury, in order for the injury to

occur.”221 The Plaintiff has not met her burden of showing her injuries were proximately

caused by the Defendants’ acts of tampering with, or retaliating against, a witness, victim,

or informant.

D. Plaintiff’s injuries were not proximately caused by the Defendants’

acts of mail fraud and wire fraud.

Plaintiff alleges mail communications sent as part of the alleged plan to cover up

the Miles investigation and Report—which she claims amount to mail fraud—injured her.

Plaintiff also alleges mail fraud occurred when Crochet and Barton sent Ginsberg and

Hardin a letter by Federal Express directing them to conceal the Miles Report from an

official Title IX proceeding and from public documents.222 Plaintiff alleges mail fraud

took place when Crochet and Barton mailed allegedly fraudulent legal bills to LSU.223

221 BCS Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 754 (7th Cir.2011).

222 R. Doc. 219 at ¶ 182.

223 There are issues with Plaintiff’s allegations of wire fraud based on these invoices, separate and apart

from whether she has alleged proximate cause. First, the allegations concern events that took place in 2013

and 2014. Second, rather than quoting the actual content of each billing entry that Plaintiff alleges

constitutes wire fraud, Plaintiff has provided her own “interpretation” of the content of each entry and

speculated about the fraudulent nature of the underlying communication referenced in the billing entry.

For example, Plaintiff alleges wire fraud was committed on March 15, 2013, when Barton sent an email to

“witnesses and student” “in furtherance of [the] conspiracy to hide [the] Miles investigation.”223 In reality,

the Taylor Porter corresponding billing entry for the invoice reads: “Conference with VMC and Miriam re:

summary of interviews today and yesterday. Emails re: follow-up telephone conference with witnesses and

complainant.”223 As another example, Plaintiff alleges wire fraud was committed on March 18, 2013 when

Plaintiff alleges mail fraud occurred on November 16, 2018 when LSU’s Title IX lead

investigator Jeffrey Scott, who is not a defendant in this action, mailed Plaintiff a “final

report of [the] fraudulent PM-73 investigation that contained material omissions that

Segar was designated to receive all Title IX complaints in the Athletic Department.”224

Plaintiff alleges wire fraud took place when the Defendants used telephone and

email communications to conceal the Miles investigation and Report, to arrange for a

student who filed a complaint against Miles to retake her examination, and to facilitate a

private settlement with another student.225 The Plaintiff also alleges wire fraud occurred

when invoices for legal fees were sent by email from Taylor Porter to LSU in 2013 and

2014.226 Finally, Plaintiff alleges wire fraud occurred when in 2018 email communications

were sent to her by Jeffrey Scott relating to the PM-73 investigation into the Plaintiff and

the report “contained [a] material omission that Segar was designated as the person that

all Title IX complaints were to be forwarded to.”.227

Plaintiff alleges the mail and wire fraud caused her injury by leading to the denial

of her pay raises, bonuses, and promotions.228 Plaintiff was not a target of mail fraud or

wire fraud—that is, she did not receive mail or wire communications from the Defendants

containing a misrepresentation that caused her to suffer a loss, and she was not a victim

of fraud perpetrated through mail or wire, or any such similar scheme carried out using

Barton, Alleva, Segar and McKenzie had a “telephone conversation in furtherance of [the] conspiracy to

hide [the] Miles investigation.”223 In reality, the Taylor Porter corresponding billing entry for the invoice

reads: “Prepare for and attend meeting with Coach's counsel. Telephone conferences with Joe, Miriam and

WSM re: same. Emails re: meeting this afternoon. Meet with VMC, WSM, Joe and Miriam re: update and

date for update of Bof S.”223 Obviously, the billing entries do not refer to the parties having email and

telephone conversations in furtherance of a conspiracy to hide the Miles Investigation.

224 Id. at ¶ 284.

225 Id. at ¶ 198.

226 The same is also true with respect to Plaintiff’s mail fraud allegations.

227 R. Doc. 219 at ¶¶ 283-284.

228 Id. at ¶¶ 183 and 208.

mail or wire. With the exception of the Jeffrey Scott emails to her regarding the PM-73

investigation, the acts of mail and wire fraud alleged by Plaintiff had nothing to do with

her and could not have injured her in any way—she was not a recipient of the

communication, she is not alleged to have been referenced in any communication, she

was not targeted directly or indirectly by any communication, and she did not rely to her

detriment on a misrepresentation in any communication.

For the reasons set forth in Section A above, any mail or wire fraud relating to

concealment of the Miles Report or investigation did not lead directly to Plaintiff’s

injuries. For the reasons set forth in Section C above, using telephone and email

communications to arrange for a student who filed a complaint against Miles to retake

her examination and to facilitate a private settlement with another student did not lead

directly to Plaintiff’s injuries.

Even assuming fraudulent legal bills were mailed to LSU by Barton, Crochet, and

McKenzie, the victim of that fraud is LSU, not Plaintiff. The Plaintiff has offered no

evidence or explanation of how this mail fraud led directly to Plaintiff’s injuries.

Plaintiff has offered no evidence or explanation of how Jeffrey Scott mailing

Plaintiff a copy of the final report from the PM-73 investigation, which did not reflect that

Segar was designated to receive all Title IX complaints in the Athletic Department, led

directly to her damages.

E. Plaintiff’s injuries were not proximately caused by Defendants’

travel in interstate commerce.

Plaintiff alleges Barton and Crochet met in New Orleans with Ginsberg and the

settling student’s father and attorney to facilitate the exchange of money to bribe the

student into dropping her complaint against Miles.229 For the reasons set forth above in

Section C, Plaintiff’s injuries were not proximately caused by Defendants’ travel in

interstate commerce to facilitate the settlement with the student.

In sum, Plaintiff has not made allegations that, if accepted as true, establish that

the concealment of the Miles’ investigation and Report, the submission of “fraudulent”

legal bills to LSU, the settling of a complaint by a student and traveling in interstate

commerce to facilitate the settlement, arranging for a student to retake an examination,

instituting a PM-73 investigation of Plaintiff, or giving false testimony in a PM-73

investigation of Plaintiff, proximately caused her injuries. Plaintiff’s theory of the case

would have the Court extend RICO liability to a situation in which the Defendants’ alleged

fraud on a third party (the Board of Supervisors and the public) made it easier for a fourth

party (Miles and other Defendants) to cause harm to the Plaintiff. The Court’s research

has not disclosed a single case sanctioning stretching the causal chain of a RICO violation

so far, and this Court refuses to be the first.

IV. The Court will not grant Plaintiff leave to amend her civil RICO claims.

Leave to amend should be freely granted unless a plaintiff has acted with “undue

delay, bad faith or dilatory motive” in seeking leave to amend; the plaintiff has made

“repeated failure[s] to cure deficiencies by amendments previously allowed;” “undue

prejudice [will result] to the opposing party by virtue of allowance of the amendment;” or

the amendment would be completely futile.230 The probability that undue delay, bad faith,

undue prejudice, and futility may be playing a role becomes greater each time a complaint

229 R. Doc. 219-10 at p. 19.

230 Foman v. Davis, 371 U.S. 178, 182 (1962).

is amended.231 Moreover, leave to amend should be denied if “the defect is simply

incurable or the plaintiff has failed to plead with particularity after being afforded

repeated opportunities to do so.”232 If “the plaintiffs have already alleged their best case,”

the trial court may deny leave to further amend.233 Generally, courts should give plaintiffs

at least one opportunity to cure pleading deficiencies before dismissing a case under Rule

12(b)(6).234

It is within the district court’s discretion under Rule 15 to deny leave to amend if

the amendment would be futile.235 The Fifth Circuit has held futility means “the amended

complaint would fail to state a claim upon which relief could be granted.”236 To determine

futility, therefore, the Fifth Circuit applies “the same standard of legal sufficiency as

applies under Rule 12(b)(6).”237 To survive a Rule 12(b)(6) motion to dismiss, the

complaint must state a claim for relief that is plausible on its face.238 A claim is facially

plausible when it contains sufficient factual content for the court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”239 In determining

whether facial plausibility is met, the court looks to the factual allegations supporting the

necessary elements of the plaintiff’s claim, and does not assume the truth of conclusory

statements.240 Factual assertions are presumed to be true, but “labels and conclusions” or

231 StoneEagle Servs., Inc. v. Valentine, No. 3:12-CV-1687-P, 2013 WL 12123938, at *1 (N.D. Tex. Mar. 21,

2013).

232 Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (citing O'Brian v. Nat'l Prop. Analysts

Partners, 936 F.2d 674, 675-76 (2d Cir. 1991)).

233 Pierce v. Hearne Indep. Sch. Dist., 600 F. App'x 194, 200 (5th Cir. 2015).

234 Id.

235 Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir. 2000) (first citing Martin's Herend

Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999) and then citing

Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).

236 Id. at 873.

237 Id.

238 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

239 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

240 Iqbal, 556 U.S. at 679.

“a formulaic recitation of the elements of a cause of action” alone are not enough to

withstand a Rule 12(b)(6) motion.241

Plaintiff has filed three complaints and two RICO case statements. Plaintiff has

failed to plead with particularity after being given repeated opportunities to do so. To

grant Plaintiff an additional opportunity to amend would cause undue prejudice to

Defendants.

In addition, the Court finds that any further amendment of the civil RICO claims

in this case would be futile. Plaintiff’s injuries are far too remote from any alleged

racketeering activity to satisfy the proximate cause requirement. A claim for relief

“requires more than labels and conclusions,”242 and Plaintiff's Second Amended

Complaint and amended RICO Case Statement do not even attempt to establish a causal

link between Defendants’ alleged predicate acts of racketeering (concealing, obstructing,

witness tampering, witness retaliation, mail fraud, wire fraud, and traveling in interstate

commerce) and her alleged injuries (damage to her employment and business through

interference with her right to earn a living, loss of pay raises, loss of promotions, loss of

bonuses, loss of benefits, loss of career in Power 5 Athletics, and exposure from lawsuits).

For this reason, Plaintiff’s civil RICO claims should be dismissed for failure to state a

claim.

CONCLUSION

Accordingly;

IT IS ORDERED that the motions to dismiss Plaintiff’s civil RICO claims, filed

241 Id. at 678.

242 Twombly, 550 U.S. at 555.

by Robert Barton, Vicki Crochet, and William Shelby McKenzie,243 Verge Ausberry,244

Miriam Segar,245 Joseph Alleva, 246 and Scott Woodward247 are HEREBY GRANTED.

IT IS FURTHER ORDERED that Plaintiff Sharon Lewis’s civil RICO claims in

her Second Amended Complaint24® and first amended RICO Case Statement249 are

HEREBY DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 16th day of June, 2022.

SUSIE Sokony

UNITED STATES DISTRICT JUDGE

243 R, Doc. 224.

244 R, Doc. 225.

245 R. Doc. 226.

246 R, Doc. 227.

247 R. Doc. 228.

248 R, Doc. 219.

249 R. Doc. 219-10.

42