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Case: 17-20360 Document: 00514235313 Page: 1 Date Filed: 11/13/2017

No. 17-20360
_____________________________________________________________

In the United States Court of Appeals for the Fifth Circuit


_____________________________________________________________

CANDACE LOUISE CURTIS; RIK WAYNE MUNSON,


Plaintiffs-Appellants,

v.
CANDACE KUNZ-FREED; ALBERT VACEK, JR.; BERNARD LYLE MATTHEWS,
III; NEAL SPIELMAN; BRADLEY FEATHERSTON; STEPHEN A. MENDEL;
DARLENE PAYNE SMITH; JASON OSTROM; GREGORY LESTER; JILL WILLARD
YOUNG; CHRISTINE RIDDLE BUTTS; CLARINDA COMSTOCK; TONI BIAMONTE;
BOBBIE BAYLESS; ANITA BRUNSTING; AMY BRUNSTING; DOES 1–99,
Defendants-Appellees.
_______________

On Appeal from the United States District Court


for the Southern District of Texas, Houston Division
Cause of Action No. 4:16-cv-01969
_______________

BRIEF OF APPELLEES JUDGE CHRISTINE RIDDLE BUTTS,


JUDGE CLARINDA COMSTOCK, & COURT REPORTER TONY BAIAMONTE
_______________

K EITH A. T OLER
Assistant County Attorney
Attorney in Charge
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress Avenue, 15th Floor
Houston, Texas 77002
(713) 274-5265

Of Counsel:
V INCE R YAN
Filed: November 13, 2017 Harris County Attorney
Case: 17-20360 Document: 00514235313 Page: 2 Date Filed: 11/13/2017

L AURA B ECKMAN H EDGE


Assistant County Attorney
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress Avenue, 15th Floor
Houston, Texas 77002
(713) 274-5137

Counsel for Defendants-Appellees


The Honorable Christine Riddle Butts,
The Honorable Clarinda Comstock, and
Court Reporter Tony Baiamonte

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C ERTIFICATE OF I NTERESTED P ERSONS


No. 17-20360
_______________

CANDACE LOUISE CURTIS; RIK WAYNE MUNSON,


Plaintiffs-Appellants,
v.

CANDACE KUNZ-FREED; ALBERT VACEK, JR.; BERNARD LYLE MATTHEWS,


III; NEAL SPIELMAN; BRADLEY FEATHERSTON; STEPHEN A. MENDEL;
DARLENE PAYNE SMITH; JASON OSTROM; GREGORY LESTER; JILL WILLARD
YOUNG; CHRISTINE RIDDLE BUTTS; CLARINDA COMSTOCK; TONI BIAMONTE;
BOBBIE BAYLESS; ANITA BRUNSTING; AMY BRUNSTING; DOES 1–99,
Defendants-Appellees.

The undersigned counsel of record certifies that the following persons


and entities, as described in the fourth sentence of Fifth Circuit Rule 28.2.1,
have an interest in the outcome of this case. These representations are made
so the judges of this Court can evaluate possible disqualification or recusal.

Plaintiffs-Appellants Counsel
Candace Louise Curtis Pro se
Rik Wayne Munson
Defendants-Appellees Counsel
Judge Christine Riddle Butts Keith A. Toler
Judge Clarinda Comstock Lead counsel on appeal
Tony Baiamonte1 Laura Beckman Hedge
Lead counsel in trial court
Of counsel on appeal
Vince Ryan, County Attorney
Of counsel in trial and on appeal
Harris County Attorney’s Office

1 Mr. Tony Baiamonte’s name is misspelled as “Toni Biamonte” in the Court’s


caption.

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Candace Kunz-Freed Andrew L. Johnson


Albert Vacek Jr. Lead counsel on appeal
Cory S. Reed
Lead counsel in trial court
Thompson, Coe, Cousins & Irons LLP

Bernard Lyle Mathews III Pro se

Neal Spielman Martin Samuel Schexnayder


Winget, Spadafora & Schwartzberg,
LLP

Bradley E. Featherston Adraon D. Greene


Stephen A. Mendel Lead counsel on appeal and in trial
court
Kelsi M. Wade
Co-counsel on appeal
David Christopher Deiss
Co-counsel in trial court
Galloway Johnson Tompkins Burr &
Smith

Darlene Payne Smith Barry Abrams


Joshua Huber
Blank Rome L.L.P.

Jason Ostrom Jason Ostrom, Pro se


Stacy L. Kelly
Ostrom Morris, P.L.L.C.

Gregory Lester Stacy L. Kelly


Ostrom Morris, P.L.L.C.
Terry Bryant PLLC

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Jill Willard Young Robert S. Harrell


Rafe A. Schaefer
Norton Rose Fulbright US, LLP

Bobbie Bayless Bayless & Stokes

Anita Brunsting Pro se

Amy Brunsting Pro se

/s/ Keith A. Toler


K EITH A. T OLER
Assistant County Attorney

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S TATEMENT R EGARDING O RAL A RGUMENT


Appellees Judge Christine Riddle Butts, Judge Clarinda Comstock, and
Court Reporter Tony Baiamonte believe the facts and legal arguments in this
case are adequately presented in the briefs and record and the decisional
process would not be significantly aided by oral argument. However,
Appellees welcome the opportunity to present oral argument if the Court
would find it helpful.

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T ABLE OF C ONTENTS
Certificate of Interested Persons .................................................................... iii
Statement Regarding Oral Argument ............................................................ vi
Table of Contents .......................................................................................... vii
Table of Authorities ....................................................................................... ix
Statement of Jurisdiction .................................................................................2
Statement of the Issues Presented for Review .................................................2
Statement of the Case ......................................................................................3
Summary of the Argument ..............................................................................6
Argument and Authorities ...............................................................................8
I. Standards of Review ................................................................................8
A. Rule 12(b)(1) ....................................................................................8
B. Rule 12(b)(6) ....................................................................................9
C. Rule 9(b)—Pleading fraud with particularity ............................... 10
II. Appellants lack standing to assert their claims ..................................... 11
A. A diminished expectancy interest in a trust or estate is not an
actual, concrete, direct injury ........................................................ 12
B. The Honorable Judges’ state-court rulings and orders did not
cause any legally cognizable injury .............................................. 15
C. Appellants’ alleged injuries are not redressable ........................... 17
III. Appellants cannot meet their burden to show the Honorable
Judges and their court reporter are not immune ................................... 18
A. The Honorable Judges and their court reporter are entitled to
absolute judicial and quasi-judicial immunity .............................. 18
1. Appellants complain only of the Honorable Judges’
judicial acts ............................................................................ 18

2. Substitute Court Reporter Baiamonte was a necessary


participant in the judicial process .......................................... 21
B. To the extent they are sued in their official capacities,
governmental and Eleventh Amendment immunity applies ......... 22

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IV. Appellants failed to state a RICO claim ............................................... 23


A. Appellants failed to plead their fraud claims with
particularity ................................................................................... 24
B. Appellants cannot show a conspiracy ........................................... 25
C. Appellants cannot show the existence of an enterprise................. 27
D. Appellants cannot show a pattern of racketeering activity ........... 31
E. Appellants’ claims are frivolous (and borderline malicious) ........ 32
Conclusion .................................................................................................... 34
Certificate of Service .................................................................................... 36
Certificate of Compliance ............................................................................. 39

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T ABLE OF A UTHO RITIES

Cases
Allen v. DeBello,
861 F.3d 433 (3d Cir. 2017) ............................................................... 20
Allstate Ins. Co. v. Benhamou,
190 F. Supp. 3d 631 (S.D. Tex. 2016) ............................................... 11
Allstate Ins. Co. v. Receivable Fin. Co., L.L.C.,
501 F.3d 398 (5th Cir. 2007) .............................................................. 27
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ....................................................................... 9, 10
Atkins v. Hibernia Corp.,
182 F.3d 320 (5th Cir. 1999) ................................................................ 8
Atkinson v. Anadarko Bank & Trust Co.,
808 F.2d 438 (5th Cir. 1987) .............................................................. 28
Austin Nursing Ctr., Inc. v. Lovato,
171 S.W.3d 845 (Tex. 2005) .............................................................. 14
Babb v. Dorman,
33 F.3d 472 (5th Cir. 1994) ................................................................ 22
Backe v. LeBlanc,
691 F.3d 642 (5th Cir. 2012) .............................................................. 22
Ballard v. Wall,
413 F.3d 510 (5th Cir. 2005) .............................................................. 18
Bauer v. Tex.,
341 F.3d 352 (5th Cir. 2003) ........................................................ 11, 18
Bell Atl. Corp. v. Twombly,
550 U.S. 554 (2007) ....................................................................... 9, 27
Benchmark Elecs., Inc. v. J.M. Huber Co.,
343 F.3d 719 (5th Cir. 2003) .......................................................... 8, 25
Bishop v. Corbett Marine Ways, Inc.,
674 F.2d 647 (5th Cir. 1986) .............................................................. 28
Boyd v. Biggers,
31 F.3d 279 (5th Cir. 1994) ................................................................ 19

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Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,


813 F.2d 744 (5th Cir. 1987) .............................................................. 21
Brown v. Nationsbank Corp.,
188 F.3d 579 (5th Cir. 1999) ................................................................ 8
Brunig v. Clark,
560 F.3d 292 (5th Cir. 2009) .............................................................. 30
Carroll v. Ft. James Corp.,
470 F.3d 1171 (5th Cir. 2005) ............................................................ 25
Chhim v. Univ. of Tex. at Austin,
836 F.3d 467 (5th Cir. 2016) ................................................................ 8
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ............................................................................. 11
Coll. Sav. Bank. V. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999) ........................................................................... 23
Crane v. Johnson,
783 F.3d 244 (5th Cir. 2015) ................................................................ 8
Darby v. Pasadena Police Dep’t,
939 F.2d 311 (5th Cir. 1991) .............................................................. 28
Davis v. Scott,
157 F.3d 1003 (5th Cir. 1998) ............................................................ 33
Delta Truck & Tractor, Inc. v. J.I. Case Co.,
855 F.2d 241 (5th Cir. 1988), cert denied, 489 U.S. 1079 (1989) ..... 31
Denton v. Hernandez,
504 U.S. 25 (1992) ............................................................................. 32
Elliott v. Foufas,
867 F.2d 877 (5th Cir. 1989) .................................................. 24, 28, 31
Fairley v. La. State,
254 Fed. App’x 275 (5th Cir. 2007) ................................................... 23
Firestone v. Galbreath,
976 F.2d 279 (6th Cir. 1992) ........................................................ 13, 14
Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist.,
786 F.3d 400 (5th Cir. 2015) ........................................................ 13, 22

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Gonzalez v. Seal,
677 Fed. App’x 918, No. 14-30751, 2017 WL 432794
(5th Cir. Jan. 31, 2017) (per curiam) .................................................. 21
Goodman v. Harris Cnty.,
571 F.3d 388 (5th Cir. 2009) .............................................................. 22
Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21 (2d Cir. 1990) ................................................................. 27
HJ, Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229 (1989) ..................................................................... 31, 32
Holmes v. Secs. Inv. Prot. Corp.,
503 U.S. 258 (1992) ........................................................................... 14
Homoki v. Conversion Servs., Inc.,
717 F.3d 388 (5th Cir. 2013) .............................................................. 27
In re Burzynski,
989 F.2d 733 (5th Cir. 1993) ........................................................ 31, 32
In re Katrina Canal Breaches Litig.,
495 F.3d 191 (5th Cir. 2007), cert. denied, 552 U.S. 1182 .................. 9
In re Taxable Mun. Bond. Sec. Litig.,
51 F.3d 518 (5th Cir. 1995) ................................................................ 15
James v. Underwood,
438 S.W.3d 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ..... 19
Johnson v. Kegans,
870 F.2d 992 (5th Cir. 1989),
cert. denied, 492 U.S. 921 (1989) .......................................... 18, 21, 28
Jones v. Judge of 129th Harris Cnty. Dist. Ct.,
113 Fed. App’x 603 (5th Cir. Oct. 20, 2004) ..................................... 19
Kirkendall v. Grambling & Mounce, Inc.,
4 F.3d 989, 1993 WL 360732 (5th Cir. 1993) (per curiam)... 18, 19, 21
Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375 (1994) ............................................................................. 8
Ky. v. Graham,
473 U.S. 159 (1985) ........................................................................... 22
Landry v. Airline Pilots Ass’n Int’l,
901 F.2d 404 (5th Cir. 1990) .............................................................. 29

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Lujan v. Defenders of Wildlife,


504 U.S. 555 (1992) ..................................................................... 11, 15
Machete Prods., L.L.C. v. Page,
809 F.3d 281 (5th Cir. 2015) .......................................................... 9, 10
Marriott Bros. v. Gage,
911 F.2d 1105 (5th Cir. 1990) ............................................................ 23
McCormick v. Stalder,
105 F.3d 1059 (5th Cir. 1997) ............................................................ 33
Miranda v. Ponce Fed. Bank,
948 F.2d 41 (1st Cir. 1991) ................................................................ 27
Mireles v. Waco,
502 U.S. 9 (1991) ......................................................................... 18, 19
Montesano v. Seafirst Commercial Corp.,
818 F.2d 423 (5th Cir. 1987) .............................................................. 29
Moore v. Bryant,
853 F.3d 245 (5th Cir. 2017) ................................................................ 8
Ocean Energy II, Inc. v. Alexander & Alexander, Inc.,
868 F.2d 740 (5th Cir. 1989) .................................................. 12, 14, 29
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) ............................................................................. 23
Perez v. Perez,
587 S.W.2d 671 (Tex. 1979) .............................................................. 13
Pershing, L.L.C. v. Kiebach,
819 F.3d 179 (5th Cir. 2016) ................................................................ 8
Pierson v. Ray,
386 U.S. 547 (1967) ........................................................................... 18
Plotkin v. IP Axess Inc.,
407 F.3d 690 (5th Cir. 2005) .............................................................. 25
Preston v. Good Nature Cafe,
33 Fed. App’x 704 (5th Cir. 2002) (per curiam) ................................ 21
Price v. Pinnacle Brands, Inc.,
138 F.3d 602 (5th Cir. 1998) ........................................................ 12, 13
Pulliam v. Allen,
466 U.S. 522 (1984) ........................................................................... 20
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Richardson v. Spurlock,
260 F.3d 495 (5th Cir. 2001) .............................................................. 32
Rios v. City of Del Rio, Tex.,
444 F.3d 417 (5th Cir. 2006) ................................................................ 9
Sedima, S.P.R.L. v. Imrex Co., Inc.,
473 U.S. 479 (1985) ..................................................................... 23, 24
Sheshtawy v. Gray,
No. 17-20019, 697 Fed. App’x 380
(5th Cir. Sept. 14, 2017) (per curiam) ................................................ 15
Spectrum Stores Inc. v. Citgo Petroleum Corp.,
632 F.3d 938 (5th Cir. 2011) .............................................................. 27
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) ............................................................................. 11
Sullivan v. Leor Energy, LLC, 600 F.3d 542 (5th Cir. 2010) ................. 10, 25
Tel-Phonic Servs., Inc. v. TBS Int’l, Inc.,
975 F.2d 1134 (5th Cir. 1992) .......................................... 10, 24, 27, 32
U.S. v. Goot,
894 F.2d 231 (7th Cir. 1990) .............................................................. 30
U.S. v. Turkette,
452 U.S. 576 (1981) ..................................................................... 28, 29
Wendt v. 24 Hour Fitness USA, Inc.,
821 F.3d 547 (5th Cir. 2016) .............................................................. 11
Whalen v. Carter,
954 F.2d 1087 (5th Cir. 1992) ............................................................ 12
Whitmore v. Ark.,
495 U.S. 149 (1990) ........................................................................... 11
Williams v. Parker,
843 F.3d 617 (5th Cir. 2016) .............................................................. 11
Williams v. WMX Techs., Inc.,
112 F.3d 175 (5th Cir. 1997) ........................................................ 10, 24
Younger v. Harris,
401 U.S. 37 (1971) ............................................................................. 17

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Constitutional Provisions
U.S. CONST. art. III, § 2, cl. 1 ....................................................................... 11
U.S. CONST. amend. XI. ................................................................................ 23
TEX. CONST. art. XVI, § 15 ........................................................................... 13

Statutes
18 U.S.C. § 1961 ............................................................................... 24, 28, 31
18 U.S.C. § 1964 ........................................................................................... 12
42 U.S.C. § 1983 ........................................................................................... 20
TEX. FAMILY CODE § 3.001(2) ...................................................................... 13
TEX. LOC. GOV’T CODE § 71.001 .................................................................. 28

Rules
FED. R. CIV. P. 9 ...................................................................................... 10, 24
FED. R. CIV. P. 12(b)(1) .................................................................................. 8
FED. R. CIV. P. 12(b)(6) ................................................................................... 8

Other Authorities
5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1297 (1990).......................... 10

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No. 17-20360
_____________________________________________________________

In the United States Court of Appeals for the Fifth Circuit


_____________________________________________________________

CANDACE LOUISE CURTIS; RIK WAYNE MUNSON,


Plaintiffs-Appellants,

v.
CANDACE KUNZ-FREED; ALBERT VACEK, JR.; BERNARD LYLE MATTHEWS,
III; NEAL SPIELMAN; BRADLEY FEATHERSTON; STEPHEN A. MENDEL;
DARLENE PAYNE SMITH; JASON OSTROM; GREGORY LESTER; JILL WILLARD
YOUNG; CHRISTINE RIDDLE BUTTS; CLARINDA COMSTOCK; TONI BIAMONTE;
BOBBIE BAYLESS; ANITA BRUNSTING; AMY BRUNSTING; DOES 1–99,
Defendants-Appellees.
_______________

On Appeal from the United States District Court


for the Southern District of Texas, Houston Division
Cause of Action No. 4:16-cv-01969
_______________

BRIEF OF APPELLEES JUDGE CHRISTINE RIDDLE BUTTS, JUDGE CLARINDA


COMSTOCK, & COURT REPORTER TONY BAIAMONTE
_______________

To the Honorable Judges of the Fifth Circuit Court of Appeals:


Defendants-Appellees the Honorable Christine Riddle Butts and the
Honorable Clarinda Comstock (“Honorable Judges”) and Court Reporter
Tony Baiamonte (collectively “Judicial Appellees”) jointly file this appellate
brief in response to Plaintiffs-Appellants’ opening brief, and respectfully
request this Court affirm the district court’s final order dismissing all of
Appellants’ “clearly frivolous (and borderline malicious)” claims against
Judicial Appellees.

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S TATEMENT OF J URISDICTIO N
Appellants invoked the district court’s jurisdiction under 28 U.S.C. §
1331 to hear their numerous claims alleging a vast criminal and civil
conspiracy under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962. On May 16, 2017, the district court granted all
Appellees’ motions to dismiss for lack of subject matter jurisdiction and
failure to state a claim, and dismissed Appellants’ original (live) complaint
with prejudice. On May 26, 2017, Appellants timely filed a notice of appeal
of the district court’s final judgment. This Honorable Court has jurisdiction
under 28 U.S.C. § 1291 to hear Appellants’ appeal from a final judgment that
disposed of all parties’ claims.

S TATEMENT OF THE I SSUES P RESENTED FOR R EVIEW


Issue 1. To show standing for their RICO claims, Appellants must plead
an actual, concrete, direct injury-in-fact, caused by Appellees, and likely
redressable by a favorable outcome. Appellants vaguely allege Curtis’s
expectant interests in Nelva Brunsting’s trust and estate were diminished by
judges, judicial staff, and opposing counsel and litigants who conspired to
defraud the Brunsting trust and estate in state probate court proceedings.
Should the Court affirm the trial court’s dismissal for lack of subject matter
jurisdiction because Appellants lack standing?
Issue 2. Judges enjoy absolute judicial immunity for acts taken in their
judicial capacity, and this immunity applies to necessary participants in the
judicial process, such as court reporters. Appellants complain only of rulings
by Honorable Judges, which are judicial actions. Should the Court affirm the
trial court’s dismissal for failure to state a claim because Judicial Appellees
enjoy absolute judicial and quasi-judicial immunity?

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Issue 3. To sufficiently state their RICO claims, Appellants must allege


facts plausibly showing an enterprise conspired to engage in a pattern of
racketeering activity. Appellants recite the RICO elements and case law, but
wholly fail to support their accusations with any factual allegations, much less
with the particularity required to state their primarily fraud-based claims.
Should the Court affirm the trial court’s dismissal for failure to state a claim?

S TATEMENT OF THE C ASE


I. Statement of Facts
Appellants are Candace Curtis—a disgruntled sibling in ongoing state
probate court litigation concerning her contested share of Nelva Brunsting’s
trust and estate—and Rik Munson—Curtis’s “domestic partner” and a
paralegal who has been fighting Curtis’s legal battles.2 Unhappy with the
course of state probate proceedings, Appellants sued the judges, a court
reporter, and opposing attorneys and parties appearing in the state probate
proceedings.3
Appellants falsely accuse the Honorable Judges Christine Riddle Butts
and Clarinda Comstock (“Honorable Judges”) and a substitute, contract court
reporter Tony Baiamonte (collectively, “Judicial Appellees”) of engaging in
a criminal and civil conspiracy with opposing counsel and parties—Appellees
herein—to defraud and deprive Appellants of Nelva Brunsting’s estate and

2 ROA.62 at ¶ 177; ROA.72 at ¶ 215; Appellants’ Brief at pp. 21, 24, 26–27. (Note:
page numbers in Appellants’ Brief refer to the Court’s CM/ECF page number in the
document header, not the parties’ page number in the footer).
3 ROA.18–23 (listing Defendants).

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trust assets (that Curtis is fighting to inherit) through official probate


proceedings.4
Appellants allege the “multi-billion dollar Probate industry is an illicit
wealth distribution empire run by morally bankrupt judges and attorneys” that
is part of a “cancerous judicial black market plague” spread “throughout the
state court systems” that have become “criminal racketeering enterprises.”5
Appellants allege judges have become part of the “worst organized cartel of
predatory criminals in the history of this nation.”6
Appellants further allege the “blatantly corrupt probate court and its
officers” engaged in a conspiracy to “loot assets” and “exploit the elders of
our society” to unjustly enrich the attorneys and other “legal professionals” in
Harris County Probate Court No. 4 (“Probate Court 4”).7 Among the predicate
acts alleged against the Honorable Judges include referring the case to
mediation with an “extortionist thug mediator” and removing Curtis’s motion
for summary judgment from the court’s docket.8 Appellants accuse the
Honorable Judges of committing numerous federal and state criminal

4 ROA.24 (“Curtis . . . is actively defending her property interests in Harris County


Texas Probate Court No. 4, an enterprise . . . ”); ROA.29–30 (“[Honorable Judges and
opposing counsel and parties] . . . did at various times unlawfully, willfully and knowingly
combine, conspire and agree with each other to violate 18 U.S.C. Sections 1962(c), by
participating . . . in the conduct of the affairs of that enterprise through a pattern of
racketeering activity involving multiple predicate acts . . . ”); Appellants’ Brief at p. 27
(“Curtis is an income beneficiary of the Brunsting family of Trusts, whose right to
dominion and control over property interests have been tortuously interfered with for more
than five years by the wrongful actions and intentions of these [Appellees].”).
5 ROA.61, 67.
6 ROA.61.
7 ROA.35, 72.
8 ROA.48–49.

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offenses, including 18 U.S.C. §§ 242, 371, 1001, 1346, and 1951(b)(2), 42


U.S.C. §§ 1983 and 1985, and Texas Penal Code, §§ 31.02, 31.03, and 32.21.9
Appellants further allege Tony Baiamonte—a contract court reporter
who was hired to stenographically record a single hearing in the underlying
probate proceeding—“unlawfully, knowingly and willfully spoliate[d],
destroy[ed] or otherwise conceal[ed]” some unidentified “material evidence”
of a racketeering conspiracy in violation of 18 U.S.C. §§ 1512(c), 1512(k),
and 1519.10

II. Course of Proceedings and Disposition in the Court Below


Appellants filed this lawsuit in district court on July 5, 2016. 11 All
Appellees moved to dismiss Appellants’ claims for lack of subject matter
jurisdiction and failure to state a claim under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).12 The district court granted Judicial Appellees’ motion
to dismiss, finding that “[Appellants] assert almost fifty ‘claims,’” consisting
of “fantastical allegations that some or all of the Defendants are members of
a secret society and ‘cabal’ known as the ‘Harris County Tomb Raiders,’ or
‘The Probate Mafia.’”13 The court held that Appellants lacked standing to
bring their RICO claims, the Honorable Judges are entitled to absolute
immunity for their judicial actions, Appellants failed to state a RICO claim,

9 ROA.42–44, 45.
10 ROA.22, 53.
11 E.g., ROA.16.
12 ROA.3329–30 (district court’s order dismissing lawsuit).
13 ROA.3330.

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and Appellants’ claims are “clearly frivolous (and borderline


malicious).”14 The district court was clear that Plaintiffs had no claim:
[Appellants’] Complaint, even when liberally construed,
completely fails to plead anything close to a plausible claim for
relief against any of the alleged Defendants. In fact,
[Appellants’] allegation cannot be characterized as anything
more than fanciful, fantastic, and delusional. [Appellants’]
allegations consist entirely of outlandish and conclusory factual
assertions accompanied by a formulaic recitation of the elements
of numerous causes of action unsupported by the alleged facts.15

Appellants now appeal the district court’s order dismissing all of their
claims with prejudice against all parties for lack of standing, absolute and
other immunities, failure to state a claim, and frivolity.

S UMMARY OF THE A RGUMENT


The district court properly dismissed Appellants’ “clearly frivolous
(and borderline malicious)” claims against the Honorable Judges and their
court reporter. Appellants’ 64-page, 217-paragraph Original Complaint
makes sweeping accusations that the Honorable Judges and opposing counsel
and litigants in state-court probate proceedings conspired to defraud Curtis
out of an interest she expects to inherit from a family trust and estate. Munson,
Curtis’s “domestic partner” and paralegal, is simply along for the ride, hoping
to recover money for the time and effort he has helped Curtis in litigating her
numerous lawsuits.
This Court should affirm on the sole ground that Appellants lack
standing. Curtis has—at best—an expectancy interest in inheritances she

14 ROA.3332–34 (emphasis added).


15 ROA.3332.

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hopes to receive as beneficiary and heir of a trust and estate. Even if


Appellants’ fantastical, delusional allegations of a conspiracy were true—
which the Honorable Judges emphatically deny—then perhaps the trust or
estate would have been injured. But Curtis is not the proper representative of
either the trust or estate, does not assert any claims in a representative
capacity, and lacks standing because she did not suffer any actual, concrete,
direct injury caused by any Appellee. Munson, who is not an attorney, simply
has no standing (or any other right) to recover as Curtis’s representative.
In addition, the Honorable Judges are absolutely immune from
Appellants’ claims. Without any factual support, Appellants complain of
various rulings and orders issued in ongoing state probate court proceedings
to which Curtis is a party. Because Appellants only complain of actions taken
in the Honorable Judges’ judicial capacity, they are absolutely immune. And
their substitute Court Reporter, who was a necessary participant in the
proceedings (having been hired to record one single hearing), is entitled to
absolute quasi-judicial immunity.
Finally, Appellants fail to state a RICO claim against Appellants. Most,
if not all, of Appellants’ vague, ambiguous claims sound in fraud, and must
be plead with particularity. Appellants fail to meet this standard in their
rambling, disjointed complaint that masquerades the elements of a RICO
claim as facts. Not only did they fail to plead fraud with particularity,
Appellants fail to show that Probate Court 4 is an unlawful RICO enterprise
engaged in a pattern of racketeering activity. Therefore, the district court
properly dismissed Appellants’ frivolous claims and this Court should affirm.

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A RGUMENT AND A UTHORITIES

I. Standards of Review
This Court reviews de novo the district court’s final order dismissing
Appellants’ claims for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1) and for failure to state a claim under Rule
12(b)(6).16 The Court also reviews de novo Appellants’ failure to plead their
fraud claims with particularity under Rule 9(b).17 Under the de novo standard,
this Court reviews the district court’s dismissal order under the same standard
the district court employed.18

A. Rule 12(b)(1)
In reviewing whether the district court has subject matter jurisdiction,
this Court accepts as true the allegations set out in the complaint.19 Courts
have inherent power to dismiss claims for lack of subject matter jurisdiction
on three grounds: (1) the complaint alone; (2) the complaint supplemented by
undisputed record facts; and (3) the complaint supplemented by the court’s
resolution of disputed facts.20 The party asserting jurisdiction has the burden
to show the court has subject matter jurisdiction.21

16 Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016); Brown v.
Nationsbank Corp., 188 F.3d 579, 585 (5th Cir. 1999). See also FED. R. CIV. P. 12(b)(1),
12(b)(6).
17 Benchmark Elecs., Inc. v. J.M. Huber Co., 343 F.3d 719, 723–24 (5th Cir. 2003).
18 E.g., Atkins v. Hibernia Corp., 182 F.3d 320, 323 (5th Cir. 1999).
19 Crane v. Johnson, 783 F.3d 244, 250–51 (5th Cir. 2015).
20 Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017).
21 Pershing, L.L.C. v. Kiebach, 819 F.3d 179, 181 (5th Cir. 2016) (quoting Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

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B. Rule 12(b)(6)
When reviewing a motion to dismiss for failure to state a claim, the
Court accepts as true all well-pleaded, non-frivolous facts, viewing them in
the light most favorable to the plaintiff.22 A plaintiff’s legal conclusions are
not entitled to the same assumption.23
Rule 8 requires the plaintiff to plead “enough facts to state a claim to
relief that is plausible on its face.”24 “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.”25 The
statements in the complaint must be sufficiently detailed to “give the
defendant fair notice of what . . . the claim is and the grounds upon which it
rests.”26 Although “detailed factual allegations” are not necessary, a plaintiff
must provide “more than labels and conclusions, and a formulaic recitation of
the facts will not do.”27
In Ashcroft v. Iqbal, the Supreme Court stated that “only a complaint
that states a plausible claim for relief survives a motion to dismiss,” a
determination involving “a context-specific task that requires the reviewing

22 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007), cert. denied,
552 U.S. 1182 (citations omitted).
23 Ashcroft v. Iqbal, 556 U.S. 662, 678, 679 (2009); Machete Prods., L.L.C. v. Page,
809 F.3d 281, 287 (5th Cir. 2015) (citations omitted).
24 Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570
(2007)).
25 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
26 Twombly, 550 U.S. at 555. See also Rios v. City of Del Rio, Tex., 444 F.3d 417, 421
(5th Cir. 2006) (“Dismissal is proper if the complaint lacks an allegation regarding a
required element necessary to obtain relief.”).
27 Twombly, 550 U.S. at 555.

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court to draw on its judicial experience and common sense.”28 “[T]hreadbare


recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” under Rule 12(b).29 The Rule 8 plausibility
standard “requires a showing of more than ‘a sheer possibility that a defendant
has acted unlawfully.’”30

C. Rule 9(b)—Pleading fraud with particularity


Because most of Appellants’ vague claims sound in fraud, Rule 9
requires pleading with particularity the circumstances constituting fraud.31
This Court requires a plaintiff to plead with particularity the “time, place and
contents of the false representations, as well as the identity of the person
making the misrepresentation and what [that person] obtained thereby.” 32 In
other words, “articulating the elements of fraud with particularity requires the
plaintiff to specify the statements contended to be fraudulent, identify the
speaker, state when and where the statements were made, and explain why the
statements were fraudulent.”33

28 Iqbal, 556 U.S. at 679.


29 Id. at 678.
30 Page, 809 F.3d at 287 (quoting Iqbal, 556 U.S. at 578).
31 FED. R. CIV. P. 9(b); Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir.
1997); Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1138–39 (5th Cir. 1992).
32 Williams, 112 F.3d at 177 (citations omitted). See also Tel-Phonic Servs., Inc., 975
F.2d at 1139 (citing 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1297, at 590 (1990)).

33 Sullivan v. Leor Energy, LLC, 600 F.3d 542, 550–51 (5th Cir. 2010); Williams, 112
F.3d at 177–78 (approving Second Circuit test).

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II. Appellants lack standing to assert their claims


The district court lacked subject matter jurisdiction because Appellants
lack standing to assert their claims. Because Appellants’ RICO claims are
statutory in nature, Appellants must prove they have standing under both
Article III and the RICO statute.34 Appellants lack standing because they
allege no actual, concrete, or direct injury caused by any Appellee that is likely
redressable by a favorable outcome.35
Article III of the United States Constitution extends federal court
jurisdiction to “cases” or “controversies,” which “serves to identify those
disputes which are appropriately resolved through the judicial process.” 36 To
meet his burden to prove Article III standing, a plaintiff must show three
elements: (1) an injury in fact that is “concrete and particularized” and “actual
or imminent,” not conjectural or hypothetical; (2) the injury must be fairly
traceable to the defendants’ conduct; and (3) it must be likely the injury will
be redressable by a favorable decision.37

34 E.g., Wendt v. 24 Hour Fitness USA, Inc., 821 F.3d 547, 552 (5th Cir. 2016);
Allstate Ins. Co. v. Benhamou, 190 F. Supp. 3d 631, 646 (S.D. Tex. 2016) (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 84 (1998)). See also City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983).
35 Appellants do not assert any section 1983 claims. See ROA.43, 48–49, 64. To the
extent they intended to assert such claims, Appellants lack standing to sue state-court
judges under § 1983 because they do not present a case or controversy against judges. See
Bauer v. Tex., 341 F.3d 352, 359 (5th Cir. 2003) (“The case or controversy requirement of
Article III of the Constitution requires a plaintiff to show that he and defendants have
adverse legal interests. The requirement of a justiciable controversy is not satisfied where
a judge acts in his adjudicatory capacity.”).
36 U.S. CONST. art. III, § 2, cl. 1; Whitmore v. Ark., 495 U.S. 149, 154–55 (1990).
37 E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Lyons, 461 U.S.
at 101–02; Williams v. Parker, 843 F.3d 617, 620–21 (5th Cir. 2016).

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To show standing under RICO, a plaintiff must show two elements: (1)
a direct injury to business or property and (2) causation, both factual (but-for)
and proximate causation.38 The RICO statute authorizes a suit for treble
damages by “[a]ny person injured in his business or property by reason of a
violation of [18 U.S.C. § 1962.]”39

A. A diminished expectancy interest in a trust or estate is not an


actual, concrete, direct injury
Neither Curtis nor Munson can show a concrete and particularized,
actual and direct injury to their business or property. Appellants claim that
Appellees conspired to defraud Nelva Brunsting’s estate or trusts, from which
Appellant Curtis expects to inherit along with her four siblings. According to
Appellants, their litigation of these assets resulted in “divert[ing] [financial
resources] from local interests to the defense of Curtis’ property interests in
Texas Courts,” and “illicit multiplication of litigation has caused extended
injuries to Plaintiffs’ joint finances.”40
As an initial matter, Munson suffered no legal injury at all. As
Appellants admit, Munson is merely a domestic partner who shares finances
with Curtis. According to Appellants, Munson “has worked diligently as a
paralegal on [this] lawsuit for more than four years, in an effort to obtain
justice for Ms. Curtis. . . Munson has been diverted away from other

38 Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998); Whalen v. Carter,
954 F.2d 1087, 1090–91 (5th Cir. 1992); Ocean Energy II, Inc. v. Alexander & Alexander,
Inc., 868 F.2d 740, 744 (5th Cir. 1989).
39 18 U.S.C. § 1964(c) (emphasis added).
40 Appellants’ Brief at p. 26. See also id. at p. 30 (arguing Appellants’ litigation
activities “forc[ed] the redirection of time and money away from the California concerns
of Curtis and Munson to the defense of Curtis’ property interests in Texas courts.”)
(emphasis added).

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productive pursuits and has thus suffered tangible losses to his property and
business interests . . . ”41
Even if Curtis lost some portion of her expected inheritance as alleged,
there is no actual, concrete injury to Munson, who never expected any
inheritance. Munson is not entitled to any part of Curtis’s inheritance under
Texas law; Curtis’s inheritance is her separate property regardless of her
marital status.42 Munson’s choice to share in Curtis’s finances and fight her
legal battles is not sufficient to confer any injury. Appellants chose to file and
prosecute the multitude of lawsuits that they now contend Appellees “illicitly
multiplied.” To the extent Munson’s claims are derivative, he further lacks
standing for the reasons Curtis lacks standing, as discussed below. Munson
cannot state an injury-in-fact, and he therefore lacks standing.
Curtis likewise cannot show an injury-in-fact. To prove a RICO injury,
Curtis must show “a ‘conclusive financial loss’ and not harm to ‘mere
expectancy’ or ‘intangible’ interests.”43 The Sixth Circuit has decided a
standing issue similar to the one presented here.44 In Firestone v. Galbreath,
grandchildren of the Firestone tire magnate sued the executor of the estate
individually and as executor and trustee, as well as numerous other family
members under RICO.45

41 ROA.72.
42 TEX. CONST. art. XVI, § 15; TEX. FAMILY CODE § 3.001(2). See also Perez v. Perez,
587 S.W.2d 671, 673 (Tex. 1979) (citations omitted).
43 Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400, 408 (5th Cir.
2015) (citing Price, 138 F.3d at 607).
44 Firestone v. Galbreath, 976 F.2d 279 (6th Cir. 1992).
45 Firestone, 976 F.2d at 281–82.

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The Firestone court determined that the grandchildren plaintiffs lacked


standing to sue for an injury derivative of the estate’s injury. 46 The court
analogized to derivative suits by a corporation’s shareholders, in which a
shareholder alleges diminution or destruction of stock value due to acts aimed
at a corporation. While the corporation may suffer a direct injury, the
shareholder’s injury is only indirect because the corporate value decrease
precipitates the stock value decrease.47 Likewise, the Firestone court
determined, the grandchildren’s alleged injury—reduction of Grandma
Firestone’s estate assets from alleged theft, which subsequently reduced the
grandchildren’s expected inheritance—is only an indirect injury. A direct
injury, if any, only befell Grandma and her estate.48
As in Firestone, Curtis’s injuries are derivative and indirect at best. She
complains only of potential losses to Nelva Brunsting’s trust or estate that may
have reduced her inheritance. Appellants admit that the “victims” of “the
[complained of] trade practice in the state Courts” were “[t]he Estate of Nelva
Brunsting, the Brunsting Trusts and Brunsting heirs and trust beneficiaries.”49
Curtis seeks relief solely as a third-party beneficiary of the estate or trust.50
While a decrease in estate or trust assets may have injured the estate and trust

46 Id. at 285 (citing Holmes v. Secs. Inv. Prot. Corp., 503 U.S. 258, 268–69 (1992)).
47 Firestone, 976 F.2d at 285. The Fifth Circuit has also used this derivative suit
analogy in deciding that a union, not its members, suffered a direct injury, if any, sufficient
to show RICO standing. Ocean Energy II, Inc., 868 F.2d at 745.
48 Firestone, 976 F.2d. at 285.
49 ROA.62.
50 Under Texas law, only the legal representative of an estate has capacity to sue to
recover property belonging to the estate. See, e.g., Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 849 (Tex. 2005). Appellants claim the executor and trustee is Carl Brunsting,
who is not a party. See Appellants’ Brief at pp. 9, 24.

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(which Judicial Appellees strongly deny), Appellants suffered no direct injury


because their interests in the estate and trusts were expectant only.
In an unpublished opinion, this Court recently affirmed dismissal in
Sheshtawy v. Gray, holding that similarly situated appellants lacked standing
to assert RICO claims against different Harris County probate judges and their
court staff “because [the appellants] have failed to allege a direct, concrete,
and particularized injury proximately caused by Defendants’ conduct.”51 In
addition, this Court upheld the district court’s award of sanctions based on a
finding that the appellants were acting in bad faith in alleging RICO claims
against the appellees.52
Finally, Appellants’ two-page argument on appeal regarding their
alleged injury fails to show a single fact that would imply (much less show)
an injury to Curtis’s or Munson’s business or property.53 Therefore, neither
Curtis nor Munson have standing to assert their claims, and the Court should
affirm the district court order dismissing their claims with prejudice.

B. The Honorable Judges’ state-court rulings and orders did


not cause any legally cognizable injury
Appellants fail to show how Judicial Appellees were the but-for and
proximate cause of their alleged injury. Instead, Appellants resort to a
formulaic recitation of the elements unsupported by any factual assertions. As
the district court correctly noted, Appellants’ claims are vague and frivolous:

51 Sheshtawy v. Gray, No. 17-20019, 697 Fed. App’x 380, 381–82 (5th Cir. Sept. 14,
2017) (per curiam) (Citing Lujan, 504 U.S. at 560–61; In re Taxable Mun. Bond. Sec. Litig.,
51 F.3d 518, 521 (5th Cir. 1995)).
52 Sheshtawy, 697 Fed. App’x at 383.
53 Appellants’ Brief at pp. 27–28.

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[Appellants’] purported “claims” consist of fantastical


allegations that some or all of the Defendants are members of a
secret society and “cabal” known as the “Harris County Tomb
Raiders,” or “The Probate Mafia.” [Appellants’] claims rest on
the assertion that this purported shadow organization engages in
“poser advocacy” as an “exploitation opportunity” to “hijack”
“familial wealth.”54

Appellants fail to show how Judicial Appellees—judges presiding over


probate proceedings and their court staff—caused any injury whatsoever.
Appellants’ only allegations concern actions taken in the Honorable Judges’
official, judicial capacity in the underlying probate proceeding. If Appellants’
complaint properly alleges the Judges caused them injury, every losing litigant
would have a federal claim against the deciding judge. Indeed, under
Appellants’ theory, the district court judge below is liable to them for
dismissing all of their claims. This is absurd and not a cause of any injury.
On appeal, Appellants fare no better. They never even mention Judge
Comstock or Baiamonte, much less argue that they caused any injury. And
Appellants’ only mention of Judge Butts is a reference to an email she wrote
to attorneys in the probate proceedings and that a document was “removed
from the public record and replaced with a version not signed by [Judge]
Butts.”55 This is insufficient to allege any injury.
Appellants’ sole causation argument is that “[t]he illicit multiplication
of litigation has caused extended injuries to [Appellants’] joint finances.” 56
But Appellants—not any Appellee—“illicitly multiplied” litigation by filing
and prosecuting this lawsuit. Appellants are the sole cause of any reduction in

54 ROA.3330.
55 Appellants’ Brief at pp. 33, 34.
56 Appellants’ Brief at p. 26.

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joint finances as a result of bringing this frivolous lawsuit. Because Appellants


cannot show their injury, if any, is fairly traceable to Judicial Appellees’
conduct, the Court should affirm the district court order dismissing
Appellants’ frivolous claims with prejudice.

C. Appellants’ alleged injuries are not redressable


Appellants cannot show that damages, their sole requested relief, are
likely to redress their injury. Appellants complain of injury to their joint
finances as a result of state-court probate proceedings that have allegedly
dwindled trust or estate assets that Curtis expects to inherit. Appellants admit
these proceedings are ongoing, which means the alleged injury, if any, may
continue.57 Yet Appellants only seek monetary damages, which may redress
past injuries but not likely future injuries, if Appellants’ claims are believable.
Appellants’ failure to seek any prospective relief contradicts their claims of a
vast criminal and civil conspiracy in ongoing proceedings in Probate Court 4,
and shows that they do not seek to redress their alleged injury, but to harass
and annoy judges and opposing counsel. Appellants’ frivolous claims cannot
be redressed by any favorable outcome. Because Appellants lack standing to
assert their claims, the Courts should affirm the district court order dismissing
their claims with prejudice.

57 In addition to the standing doctrine, other prudential considerations weigh against


federal courts asserting jurisdiction in this case, including abstention from interfering in
ongoing state-court proceedings that affect important state interests. E.g., Younger v.
Harris, 401 U.S. 37, 43 (1971).

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III. Appellants cannot meet their burden to show the Honorable Judges
and their court reporter are not immune

A. The Honorable Judges and their court reporter are entitled


to absolute judicial and quasi-judicial immunity

1. Appellants complain only of the Honorable Judges’ judicial


acts
The district court below properly determined that “Judicial Immunity
completely forecloses Plaintiffs’ claims against Judge Butts and Judge
Comstock” because “the allegations against Judges Butts and Comstock
concern only actions taken in their judicial capacity.”58 State judges have
absolute immunity—from suit and liability—for all acts taken in their judicial
capacity and within the jurisdiction of the court, even if the actions are done
maliciously or corruptly.59 Absolute immunity does not bar prospective relief
against a judge, but Appellants have not sought such relief here.60
The party asserting jurisdiction has the burden to prove immunity does
not apply.61 Despite their lengthy complaint, the sum and substance of all
allegations against Judicial Appellees is Appellants’ belief that actions taken
by them during the course of the probate proceedings were improper or wrong.

58 ROA.3333. The district court found it difficult to determine whether Baiamonte


was entitled to immunity because “there are simply no factual allegations made against him
within the complaint.” ROA.3333 n.1.
59 E.g., Kirkendall v. Grambling & Mounce, Inc., 4 F.3d 989, 1993 WL 360732, at *3
(5th Cir. 1993) (per curiam) (citing Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir. 1989),
cert. denied, 492 U.S. 921 (1989)). See also Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing
Pierson v. Ray, 386 U.S. 547, 554 (1967)) (“[I]mmunity applies even when the judge is
accused of acting maliciously and corruptly.”)).
60 Bauer, 341 F.3d at 357.
61 E.g., Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005).

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To overcome immunity, Appellants simply argue the doctrine has become an


“anachronism.”62
But this Court rejected this argument as “frivolous” in Kirkendall v.
Grambling & Mounce, Inc.63 There, the plaintiffs sued twenty individual and
corporate defendants, including three state judges, alleging a law firm
engaged in a criminal conspiracy with the other defendants to infiltrate and
control the state and federal court systems in Texas.64 As predicate acts to the
RICO violation, the plaintiffs alleged illegal campaign contributions, bribery,
mail and wire fraud, and obstruction of justice.65 This Court rejected as
frivolous the plaintiffs’ argument that there is no absolute judicial and quasi-
judicial immunity in RICO actions.66
Likewise, Appellants’ claims that Judicial Appellees are not entitled to
immunity from their RICO claims are equally frivolous. Indeed, Appellee
Judges here acted in their judicial capacity. A judge’s act is judicial in nature
if it is “‘normally performed by a judge’ and affects parties who deal ‘with
the judge in [a] judicial capacity.’”67

62 Appellants’ Brief at p. 39.


63 Kirkendall, 4 F.3d at *3.
64 Id. at *1.
65 Id.
66 Id. at *3 (“Kirkendall’s argument that there is no judicial or quasi-judicial immunity
in a civil RICO action is frivolous.”).
67 Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994) (quoting Mireles, 502 U.S. at
12). See also Jones v. Judge of 129th Harris Cnty. Dist. Ct., 113 Fed. App’x 603, 604 (5th
Cir. Oct. 20, 2004); James v. Underwood, 438 S.W.3d 704, 709 (Tex. App.—Houston [1st
Dist.] 2014, no pet.) (listing similar state test).

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Here, Appellants accuse the Honorable Judges of “obstruction of


justice” by removing Summary Judgment Motions from Calendar and
creating stasis,” and conspiring to “redirect civil litigation away from the
public record to a staged mediation” for the purpose of “adding delay and
increasing expense” and “holding the money cow trust hostage for attorney
fee ransoms.”68 Appellants thus complain of rulings and orders issued by the
Honorable Judges. Issuing rulings and orders are acts normally performed by
a judge. Moreover, such rulings and orders affect parties appearing before the
judge in judicial proceedings. The entirety of Appellants’ allegations center
on a case pending before the Honorable Judges.
Appellants cite only one case in an attempt to meet their burden to show
immunity: the Supreme Court’s decision in Pulliam v. Allen.69 While it is true
that the Pulliam Court held immunity was no bar to a section 1983 claim for
prospective injunctive relief against a judge acting in her official capacity,
Congress subsequently amended section 1983 to clarify that “injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory
relief was unavailable.”70 In amending section 1983, Congress made clear that
absolute judicial immunity was alive and well—not an “anachronism.”
Therefore, the Honorable Judges are absolutely immune from Appellants’
claims.

68 ROA.43, 48–49.
69 Appellants’ Brief at p. 39 (citing Pulliam v. Allen, 466 U.S. 522 (1984)).
70 Compare Pulliam, 466 U.S. at 541–42 with 42 U.S.C. § 1983. See also Allen v.
DeBello, 861 F.3d 433, 439 (3d Cir. 2017).

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2. Substitute Court Reporter Baiamonte was a necessary


participant in the judicial process
Other “necessary participants in the judicial process,” such as court
staff, enjoy absolute quasi-judicial immunity.71 Baiamonte was a substitute,
contract court reporter hired to stenographically record one hearing in the
state-court probate proceedings. The court hearing was on the record and
required a court reporter. Baiamonte was thus a necessary participant in the
judicial process and he has absolute quasi-judicial immunity from Appellants’
claims.
Except for listing his name in their Certificate of Interested Persons,
Appellants’ Brief never mentions Baiamonte, never describes his actions, and
never argues against application of absolute quasi-judicial immunity. An
appellant’s failure to brief an issue or identify any error in the district court’s
decision constitutes abandonment of the claim.72 Thus, Appellants have
waived this argument on appeal and conceded that Baiamonte is immune.
Because Appellants falsely accuse the Honorable Judges of actions
taken in their judicial capacity, and because Baiamonte was a necessary
participant in the judicial process, Judicial Appellees are entitled to absolute
judicial and quasi-judicial immunity from Appellants’ claims. In the
alternative, Appellants fail to meet their burden to show Judicial Appellees

71 E.g., Kirkendall, 4 F.3d at *3 (citing Johnson, 870 F.2d at 996).


72 E.g., Gonzalez v. Seal, 677 Fed. App’x 918, No. 14-30751, 2017 WL 432794, at *4
(5th Cir. Jan. 31, 2017) (per curiam) (citing Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987)); Preston v. Good Nature Cafe, 33 Fed. App’x
704, at *1 (5th Cir. 2002) (per curiam) (citations omitted) (“Nevertheless, we need not
decide the issue because [the appellant] has not challenged the district court’s
conclusion[s] . . . We have consistently held that a party who fails to contest a trial court’s
ruling in its opening brief on appeal waives any error regarding that ruling.”).

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are not entitled to qualified immunity.73 Therefore, the Court should affirm
the district court order dismissing Appellants’ frivolous claims with prejudice.

B. To the extent they are sued in their official capacities,


governmental and Eleventh Amendment immunity applies
Although Appellants’ original complaint states they are suing Judicial
Appellees in their individual capacities, they only complain of actions taken
in Judicial Appellees’ official, judicial capacities. Thus, to the extent
Appellants assert claims against Judicial Appellees in their official capacity,
Judicial Appellees are entitled to governmental or sovereign immunity and
Eleventh Amendment immunity.
Judicial Appellees enjoy sovereign or governmental immunity from
claims asserted against them in their official capacities. A claim against a
governmental official in her official capacity is actually a claim against the
governmental entity, and she may assert the government’s immunities.74
RICO only provides for treble damages, which are punitive in nature.75
Punitive damages are prohibited against governmental entities because a
governmental entity cannot act with malice independent of its officials’
malice.76 Because Congress has not expressed its intent to waive

73 E.g., Backe v. LeBlanc, 691 F.3d 642, 648 (5th Cir. 2012); Babb v. Dorman, 33
F.3d 472, 477 (5th Cir. 1994).
74 E.g., Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (quoting Ky. v.
Graham, 473 U.S. 159, 166 (1985)) (“[A]n official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity. It is not a suit against the official
personally, for the real party in interest is the entity.”) (emphasis in original).
75 Gil Ramirez Grp., L.L.C., 786 F.3d at 412 (relying on prohibition of punitive
damages in § 1983 actions against governmental entities).
76 Id.

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governmental immunity from RICO claims, Judicial Appellees are immune


from Appellants’ claims against them in their official capacity, if any.
In addition, the Eleventh Amendment bars an individual from suing a
state unless the state waives its immunity or Congress clearly and expressly
abrogates it.77 Eleventh Amendment immunity extends to state agencies,
departments, and government officials when the state is the real party in
interest, such as for official capacity claims.78 To the extent Appellants assert
claims against Judicial Appellees in their official capacities, the Eleventh
Amendment bars such claims.

IV. Appellants failed to state a RICO claim


Appellants’ arguments on appeal, like those in their complaint, wholly
fail to state any facts supporting their “fanciful, fantastic, and delusional”
claims. In somewhat simpler terms than the statute, the Supreme Court has
explained the complex requirements of a RICO claim:
[RICO] outlaws [1] the use of income derived from a “pattern of
racketeering activity” to acquire an interest in or establish an
enterprise engaged in or affecting interstate commerce; [2] the
acquisition or maintenance of any interest in an enterprise
“through” a pattern of racketeering activity; [3] conducting or
participating in the conduct of an enterprise through a pattern of
racketeering activity; and [4] conspiring to violate any of these
provisions.79

77 E.g., Fairley v. La. State, 254 Fed. App’x 275, 276–77 (5th Cir. 2007) (citing U.S.
CONST. amend. XI; Coll. Sav. Bank. v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 670 (1999)).
78 See Fairley, 254 Fed. App’x at 277 (citing Coll. Sav. Bank, 527 U.S. at 671;
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)).
79 Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 481–83 (1985) (citing 18 U.S.C.
§ 1962); Marriott Bros. v. Gage, 911 F.2d 1105, 1108 (5th Cir. 1990).

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The Fifth Circuit has explained that to show a RICO violation, a plaintiff must
plead (1) the conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.80 The RICO statute defines “racketeering activity” with
a list of predicate acts.81 For RICO claims predicated on fraud, Appellants
must meet their heightened pleading requirement by alleging such claims with
particularity.82

A. Appellants failed to plead their fraud claims with


particularity
Appellants littered their complaint with unsubstantiated allegations that
Judicial Appellees committed unspecified acts of honest services fraud, theft,
mail fraud, wire fraud, obstruction of justice, spoliation of evidence, and
interference with commerce or extortion.83
To adequately plead fraud under the stringent pleading requirements of
Rule 9(b), a plaintiff must “specify the statements contended to be fraudulent,
identify the speaker, state when and where the statements were made, and

80 Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989) (citing Sedima, S.P.R.L., 473
U.S. at 481–83).
81 18 U.S.C. § 1961(1) (including mail and wire fraud as predicate acts in definition
of “racketeering activity”). See also, e.g., Elliott, 867 F.2d at 881.
82 FED. R. CIV. P. 9(b); Williams, 112 F.3d at 177; Tel-Phonic Servs., Inc., 975 F.2d
at 1138–39.
83 ROA.44, 45, 48–49. It appears Appellants’ accusations of mail and wire fraud
during the exchange of discovery responses are limited to other Appellees as the exchange
of discovery does not involve the Honorable Judges or their court reporter. Id.

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explain why the statements were fraudulent.”84 In other words, a plaintiff must
set out the “who, what, when, where, and how” of the alleged fraud.85
Despite their 64-page, 217-paragraph complaint, Appellants wholly fail
to plead the who, what, when, where, and how of the alleged fraud. On appeal,
Appellants inappropriately attempt to shift the burden to Appellees without
stating any specific, particular factual allegation against any Appellee,
including Judicial Appellees.86 Appellants thus failed to plead their fraud
claims with particularity as required by Rule 9(b).

B. Appellants cannot show a conspiracy


On appeal, Appellants offer conclusory, ambiguous allegations of a
conspiracy:

These [unnamed] Defendants conspired in concert to prevent


Curtis’ access to the Court, opportunity to be heard, and
substantive resolution on the merits. By refusing to enter any
dispositive determinations at all, they also conspired to deprive
Curtis of an opportunity to appeal to a higher court, which would
explain why Plaintiffs bring the matter back to the federal courts
in this fashion.87
****
This RICO matter alleges a profoundly manifest conspiracy with
demonstrated intention to hold Trust Property hostage to inflated

84 Sullivan, 600 F.3d at 551 (citations omitted). See also Plotkin v. IP Axess Inc., 407
F.3d 690, 696 (5th Cir. 2005).
85 Carroll v. Ft. James Corp., 470 F.3d 1171, 1174 (5th Cir. 2005) (citations omitted);
Benchmark Elecs., Inc., 343 F.3d at 724.
86 E.g., Appellants’ Brief at p. 34 (“Defendants advanced fact claims but do not
support their claims with exhibits, because no support can be found for such claims in the
record . . . ”).
87 Appellants’ Brief at p. 35.

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sham litigation ransoms inappropriately labeled “attorney


fees”.88

Likewise, Appellants’ original complaint simply mimics the elements


of a RICO accusation without mentioning any specific facts showing
Appellees conspired to do anything:

[Judicial and other Appellees] did at various times unlawfully,


willfully and knowingly combine, conspire and agree with each
other to violate 18 U.S.C. Sections 1962(c), by participating,
directly and indirectly, in the conduct of the affairs of that
enterprise through a pattern of racketeering activity involving
multiple predicate acts . . . ”89

****
It was part of the racketeering conspiracy that through the use of
estate plan instruments Defendants, acting in concert both
individually and severally, would and did intercept assets
intended for the heirs of estates that pass through Harris County
Probate Court, an enterprise, which engaged in, and the activities
of which affected interstate and foreign commerce.90

****
It was part of the racketeering conspiracy that through the use of
trust instruments Defendants, acting in concert, both individually
and severally, would and did intercept assets intended for
beneficiaries of trusts that pass through Harris County Probate
Court, an enterprise, which engaged in, and the activities of
which affected interstate and foreign commerce.91

88 Appellants’ Brief at p. 40.


89 ROA.29–30.
90 ROA.32–33.
91 ROA.33.

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Beyond these unsupported accusations, Appellants offer no further


factual enhancement of their conspiracy allegation. “[A] conclusory allegation
of agreement at some unidentified point does not supply facts adequate to
show illegality.”92 Appellants simply cannot show the Honorable Judges and
opposing counsel and litigants agreed to engage in a pattern of racketeering
activity to harm Appellants.
Moreover, because civil conspiracy is a derivative tort, liability for civil
conspiracy requires participation in the underlying tort.93 The core of a RICO
civil conspiracy is an agreement to commit predicate acts, and a plaintiff must
at the very least specifically allege such an agreement.94 Appellants allege no
specific agreement among Appellees to commit any RICO predicate act. More
importantly for Judicial Appellees, Appellants never argue Judge Butts, Judge
Comstock, or Court Reporter Baiamonte were party to or principal in any such
agreement. Appellees failed to plead any facts supporting the plausible
existence of any conspiracy. Therefore, this Court should affirm the district
court order dismissing their claims with prejudice.

C. Appellants cannot show the existence of an enterprise


A RICO enterprise can be a legal entity, such as an individual or a
corporation, or a non-legal entity composed of a “union or group of
92 See Spectrum Stores Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 948 (5th Cir.
2011) (quoting Twombly, 550 U.S. at 557).
93 Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013) (citing
Allstate Ins. Co. v. Receivable Fin. Co., L.L.C., 501 F.3d 398, 414 (5th Cir. 2007)).
94 See Tel-Phonic Servs., Inc., 975 F.2d at 1140–41 (finding RICO conspiracy claim
properly dismissed where plaintiff failed to plead specifically any agreement to commit
predicate acts under RICO) (citing Hecht v. Commerce Clearing House, Inc., 897 F.2d 21,
25 (2d Cir. 1990)). See also Miranda v. Ponce Fed. Bank, 948 F.2d 41, 47 (1st Cir. 1991)
(finding RICO conspiracy claim must allege defendants knowingly agreed to commit two
or more predicate acts).

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individuals associated in fact . . . ”95 The enterprise must be “separate and


apart from the pattern of activity in which it engages” and the defendant who
committed the predicate acts must be distinct from the enterprise.96 Under this
Court’s precedent, “[i]n order to avoid dismissal for failure to state a claim, a
plaintiff must plead specific facts, not merely conclusory allegations, which
establish the existence of an enterprise.”97
Appellants fail to support their allegation that Probate Court 4 is a legal
entity.98 Probate Court 4 is part of Harris County, not a separate legal entity.99
Various county departments are not separate units of government capable of
being sued.100 Thus, Probate Court 4 is not a separate legal entity.
Nor do Appellants show Probate Court 4 is an association-in-fact
enterprise under 18 U.S.C. § 1961(4), which requires “evidence of an ongoing
organization, formal or informal, and . . . evidence that the various associates
function as a continuing unit.”101 In United States v. Turkette, the Supreme

95 18 U.S.C. § 1961(4). See also Elliott, 867 F.2d at 881.


96 Elliott, 867 F.2d at 881 (quoting Atkinson v. Anadarko Bank & Trust Co., 808 F.2d
438, 441 (5th Cir. 1987); citing Bishop v. Corbett Marine Ways, Inc., 674 F.2d 647, 664–
65 (5th Cir. 1986)).
97 Elliott, 867 F.2d at 881.
98 ROA.25.
99 See, e.g., TEX. LOC. GOV’T CODE § 71.001 (“A county is a corporate and body
politic.”).
100 E.g., Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313–14 (5th Cir. 1991) (“[A]
political subdivision cannot pursue a suit on its own unless it is ‘a separate and distinct
corporate entity.’ Accordingly, our cases uniformly show that unless the true political
entity has taken explicit steps to grant the servient agency with jural authority, the agency
cannot engage in any litigation except in concert with the government itself.”); Johnson,
870 F.2d at 998 n.5.
101 Atkinson, 808 F.2d at 440–41 (quoting U.S. v. Turkette, 452 U.S. 576, 583 (1981)).

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Court stated that an “enterprise is an entity, for present purposes a group of


persons associated together for a common purpose of engaging in a course of
conduct.”102 This Court requires that at an enterprise “(1) must have an
existence separate and apart from the pattern of racketeering, (2) must be an
ongoing organization, and (3) its members must function as a continuing unit
shown by a hierarchical or consensual decision making structure.”103 An
association-in-fact enterprise requires continuity: it is not enough that two
individuals join together to commit one discrete criminal offense, even if they
commit two predicate acts during the commission of the offense; the
individuals must associate together to commit several criminal acts to have
the ongoing nature required of a RICO enterprise.104
Appellants fail to show an ongoing organization. Appellants
confusingly argue that trust assets are being “held hostage to attorney fee
ransoms” and the controversy could be resolved by a “full true and complete
accounting and distribut[ion] [of] the assets.”105 Even if Appellants could
show a plausible ransom of their expected inheritance—which County
Appellants vehemently deny—this is a single offense, not several criminal
acts. And certainly Appellants cannot show that the Honorable Judges and
attorneys appearing before them function as a continuing unit. Nor do
Appellants show that Probate Court 4 functions separate and apart from the
illegal pattern of activity in which it engages, which Appellants allege is

102 Turkette, 452 U.S. at 583.


103 Landry v. Airline Pilots Ass’n Int’l, 901 F.2d 404, 433 (5th Cir. 1990).
104 Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 426–24 (5th Cir. 1987);
Ocean Energy II, Inc., 868 F.2d at 749.
105 Appellants’ Brief at pp. 30–31.

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issuing rulings and orders in a pending case. Appellants cannot show Probate
Court 4 is a RICO enterprise separate and apart from its function as a probate
court.
Appellants’ entire enterprise argument on appeal is that a court “may
be an enterprise.”106 Appellants confusingly explain, “Enterprise, like
business, is both a noun and a verb and the evidence necessary to prove
Enterprise, although distinct, often coalesce with the [sic] those of the pattern
element.”107 This is nonsensical and completely fails to state any facts
showing Probate Court 4 is an illegal RICO enterprise, regardless of whether
used as a noun or a verb.
Appellants’ Complaint offers no clarity. Without stating any supporting
facts, Appellants contend Probate Court 4 is an “enterprise” within the
meaning of 18 U.S.C. § 1961(4) because it was “involved in various aspects
of interstate and foreign commerce” by adjudicating lawsuits involving
persons or properties outside of Texas.”108 This is simply “a recitation of the
elements masquerading of facts” that this Court has found “does not make it
any more or less probable that the listed parties have an existence separate and
apart from the pattern of racketeering, are an ongoing organization, and
function as a continuing unit as shown by a hierarchical or consensual decision
making structure.”109 Appellants fail to plead a plausible enterprise, and the

106 Appellants’ Brief at p. 30 (citing U.S. v. Goot, 894 F.2d 231 (7th Cir. 1990))
(emphasis added).
107 Appellants’ Brief at p. 30.
108 ROA.25–26.
109 Brunig v. Clark, 560 F.3d 292, 297 (5th Cir. 2009) (affirming dismissal of RICO
claims for failure to plausibly plead existence of enterprise or association-in-fact).

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Court should affirm the district court’s order dismissing Appellants’ claims
with prejudice.

D. Appellants cannot show a pattern of racketeering activity


The RICO statute defines “racketeering activity” with a list of predicate
acts, which are generally federal criminal offenses.110 Appellants make the
unsubstantiated accusation that Judicial Appellees committed numerous
RICO predicate acts, including honest services fraud, theft, mail fraud, wire
fraud, obstruction of justice, spoliation of evidence, and interference with
commerce or extortion. Not only do Appellants fail to allege any specific facts
that any Appellee committed any predicate act, but most of the alleged
predicate acts sound in fraud and have a heightened pleading standard
Appellants fail to satisfy. Appellants cannot show any racketeering activity.
Appellants also fail to show a pattern of such activity.111 To show a
pattern of predicate acts, Appellants must show (1) that the acts are related to
each other and (2) that those acts either constitute or threaten long-term
criminal activity—“In other words, a ‘pattern’ requires both that the acts are
‘related’ to each other and that they have ‘continuity.’”112
Establishing continuity of a pattern of racketeering activity requires
alleging facts sufficient to show that the predicate acts “amount to or threaten

110 18 U.S.C. § 1961(1) (including mail and wire fraud as predicate acts in definition
of “racketeering activity”). See also, e.g., Elliott, 867 F.2d at 881.
111 In re Burzynski, 989 F.2d 733, 741–42 (5th Cir. 1993) (citing Delta Truck &
Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242–43 (5th Cir. 1988), cert denied, 489 U.S.
1079 (1989)).
112 In re Burzynski, 989 F.2d at 742 (quoting HJ, Inc. v. Nw. Bell Tel. Co., 492 U.S.
229, 239–40 (1989)).

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continuous racketeering activity.”113 Such continuity may refer “either to a


closed period of repeated conduct or to past conduct that by its nature projects
in to the future with a threat of repetition.”114 However, a pattern requires at
least two acts “that are related and amount to or pose a threat of continued
criminal activity.”115
On appeal, Appellants’ most concrete allegation of a pattern is: “If the
federal courts do not intervene, the Brunsting Trusts will continue to be held
hostage to attorney fee ransoms . . . ”116 Yet even this conclusory statement
alleges a single incident, not several related ones that form a pattern.
Appellants’ allegations in their original complaint are likewise conclusory and
fail to allege facts supporting a pattern of predicate acts amounting to or
threatening continuous racketeering activity. Thus, the district court properly
dismissed with prejudice Appellants’ claims, and this Court should affirm.

E. Appellants’ claims are frivolous (and borderline malicious)


In addition to all the other very good reasons to dismiss Appellants’
claims, the district court properly used its inherent authority to dismiss
because Appellants’ claims are frivolous.117 A complaint is frivolous if it lacks
an arguable basis in law or fact.118 “A complaint lacks an arguable basis in

113 In re Burzynski, 989 F.2d at 742–43 (finding no continuity where complained-of


acts had ended and did not threaten long-term criminal activity).
114 Id. (quoting HJ, Inc., 492 U.S. at 241).
115 Tel-Phonic Servs., Inc., 975 F.2d at 1139–40.
116 Appellants’ Brief at p. 30.
117 ROA.3334.
118 See Denton v. Hernandez, 504 U.S. 25, 31 (1992) (citations omitted); Richardson
v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001) (citations omitted).

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law if it is based on an indisputably meritless legal theory, such as if the


complaint alleges the violation of a legal interest which clearly does not
exist.”119 As the district court below admonished:
[Appellants’] allegations are frivolous because [they] have
completely failed to allege any facts supporting the delusional
scenario articulated in their Complaint . . . As [Appellants’]
allegations are undeniably legally insufficient to create a
plausible claim, they are clearly frivolous (and borderline
malicious).120

Plaintiffs’ fantastical allegations that the Honorable Judges and their


court reporter engaged in a vast conspiracy to defraud Nelva Brunsting’s trust
and estate from which Curtis may inherit is frivolous and violates Federal Rule
of Civil Procedure 11. There is no conspiracy to deprive Appellants of
anything, especially Munson, who has no legal stake in the outcome of this
litigation. The only conspiracy here is Appellants’ agreement to file frivolous,
harassing lawsuits against judges who rule against them.
Appellants’ 64-page original complaint makes clear they are
dissatisfied with various rulings in and administration of the Brunsting
probate case in Probate Court 4. This is not a basis for bringing a lawsuit.
Appellants’ claims lack an arguable basis in law and fact and this lawsuit is
intended only to harass and annoy Appellees. The district court agreed
Appellants were “borderline malicious” and properly dismissed their claims
with prejudice. This Court should affirm.

119 Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder,
105 F.3d 1059, 1061 (5th Cir. 1997)).
120 ROA.3334.

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C ONCLUSION
Appellants’ lawsuit against two state-court probate judges and their
substitute court reporter vaguely alleging a vast criminal and civil RICO
conspiracy is frivolous, malicious, and intended only to harass and annoy.
Appellants lack standing because they only assert injury to Curtis’s
expectancy interest in Nelva Brunsting’s estate and trusts. Appellants further
lack standing because they fail to show the Honorable Judges caused any
injury merely by issuing adverse rulings in Appellant Curtis’s ongoing
probate proceedings.
Even if Appellants could show standing to assert their absurd claims,
they cannot show Judicial Appellees are not entitled to absolute immunity.
Appellants’ complaints of Honorable Judges’ adverse rulings, even if done
maliciously or corruptly (which is vehemently denied), do not show lack of
immunity. Finally, Appellants’ unsupported allegations that simply mirror the
legal elements fail to state a RICO claim against Judicial Appellees, especially
because most of their claims are grounded in fraud and lack the particularity
in pleading required by Rule 9(b).
For these reasons, Appellees the Honorable Christine Riddle Butts, the
Honorable Clarinda Comstock, and Court Reporter Tony Baiamonte
respectfully request the Court to affirm the district court order dismissing
Appellants’ claims against them with prejudice and for such other and further
relief to which Judicial Appellees’ are justly entitled.
Date: November 13, 2017
Respectfully submitted,

/s/ Keith A. Toler


K EITH A. T OLER
Assistant County Attorney
Texas Bar No.: 24088541

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Attorney in Charge
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress Avenue, 15th Floor
Houston, Texas 77002
(713) 274-5265
Keith.Toler@cao.hctx.net

Of Counsel:
V INCE R YAN
Harris County Attorney

L AURA B ECKMAN H EDGE


Assistant County Attorney
Texas Bar No.: 11373900
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress Avenue, 15th Floor
Houston, Texas 77002
(713) 274-5137
Laura.Hedge@cao.hctx.net

Counsel for Defendants-Appellees


The Honorable Christine Riddle Butts,
The Honorable Clarinda Comstock, and
Court Reporter Tony Baiamonte

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Case: 17-20360 Document: 00514235313 Page: 50 Date Filed: 11/13/2017

C ERTIFICATE OF S ERVICE
I certify that on November 13, 2017, I filed a true and correct copy of
the foregoing brief via the Court’s CM/ECF system, which will automatically
serve a copy on all parties’ counsel.

Plaintiffs-Appellants
Candace Louise Curtis
218 Landana Street
American Canyon, California 94503
occurtis@sbcglobal.net

Rik Wayne Munson


218 Landana Street
American Canyon, California 94503
blowintough@att.net

Pro se

Counsel for Co-Defendants-Appellees


Andrew L. Johnson
Thompson, Coe, Cousins & Irons LLP
One Riverway, Suite 1400
Houston, Texas 77056
AJohnson@thomsoncoe.com

Counsel for Candace L. Kunz Freed & Albert Vacek Jr.

Bernard Lyle Mathews III


Matthews Law Firm
4606 FM 1960 W.
Houston, Texas 77069
texlawyer@gmail.com

Pro Se

Martin Samuel Schexnayder


Winget, Spadafora & Schwartzberg, LLP
Two Riverway, Suite 725
Houston, Texas 77056
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Case: 17-20360 Document: 00514235313 Page: 51 Date Filed: 11/13/2017

Counsel for Neal Spielman

Adraon D. Greene
Kelsi M. Wade
David Christopher Deiss
Galloway Johnson Tompkins Burr & Smith
1301 McKinney Street, Suite 1400
Houston, Texas 77010
AGreene@gallowaylawfirm.com
KWade@gallowaylawfirm.com

Counsel for Bradley E. Featherston & Stephen A. Mendel

Barry Abrams
Joshua Huber
Blank Rome LLP
717 Texas Avenue, Suite 1400
Houston, Texas 77002
BAbrams@blankrome.com
JHuber@blankrome.com

Counsel for Darlene Payne Smith

Jason Ostrom
Stacy Lynn Kelly
Ostrom Morris, P.L.L.C.
6363 Woodway Drive, Suite 300
Houston, Texas 77057
Jason@ostrommorris.com
Stacy@ostrommorris.com

Counsel for Jason Ostrom

Stacy L. Kelly
Ostrom Morris, P.L.L.C.
6363 Woodway Drive, Suite 300
Houston, Texas 77057
Stacy@ostrommorris.com

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Counsel for Gregory Lester

Robert S. Harrell
Rafe A. Schaefer
Norton Rose Fulbright US, L.L.P.
1301 McKinney Street, Suite 5100
Houston, Texas 77010-3095
Robert.Harrell@nortonrosefulbright.com
Rafe.Schaefer@nortonrosefulbright.com

Counsel for Jill Willard Young

Bobbie G. Bayless
Bayless & Stokes
2931 Ferndale
Houston, Texas 77098
Bayless@baylessstokes.com

Pro Se

Anita K. Brunsting
203 Bloomingdale Circle
Victoria, Texas 77904

Pro Se

Amy Ruth Brunsting


2582 Country Ledge Drive
New Braunfels, Texas 78132

Pro Se

/s/ Keith A. Toler


K EITH A. T O LER
Assistant County Attorney

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C ERTIFICATE OF C OMPLIANCE
1. This brief complies with the type-volume limit of Federal Rule of
Appellate Procedure 32(a)(7)(B) because, excluding the parts of the
document exempted by Federal Rule of Appellate Procedure 32(f):

[X] this brief contains 9,167 words, or


[ ] this brief uses a monospaced typeface and contains [state the
number of] lines of text.

2. This brief complies with the typeface requirements of Federal Rule of


Appellate Procedure 32(a)(5) and the type-style requirements of
Federal Rule of Appellate Procedure 32(a)(6) because:

[X] this brief has been prepared in a proportionally spaced typeface


using Microsoft Word for Windows 2013, version
15.0.4745.1001, in Times New Roman 14-point typeface, or
[ ] this brief has been prepared in a monospaced typeface using
[state name and version of word-processing program] with [state
number of characters per inch and name of type style].

/s/ Keith A. Toler


K EITH A. T OLER
Assistant County Attorney

39

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