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Ninth Circuit Upholds Judge’s Torpedoing of ‘Fantastical’ Lawsuit Seeking $27 Billion
Plaintiff’s Lawyer Rejects District Court’s Characterization of Action, Says Client Will Press-on in Litigation Against Bank of America, Others Over Alleged RICO Violations
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed the dismissal of claims totaling more than $27 billion against the Bank of America, Fidelity National Financial, and others, based on allegations—including ones implicating President Donald Trump, disbarred lawyer Tom Girardi, and Girardi’s wife, reality television star Erika Jayne—which a District Court judge labeled “fantastical.”
That description was noted by the Ninth Circuit in a memorandum opinion filed Friday. It was signed by Circuit Judges Salvador Mendoza Jr. and Jacqueline H. Nguyen, joined by District Court Judge Jeremy D. Kemodle of the Eastern District of Texas, sitting by designation.
Although District Court Judge George Wu of the Central District of California viewed the second amended complaint as setting forth facts unworthy of belief, dismissal of that pleading based on implausibility was foreclosed because plaintiff Nicholas Phipps White—who had filed two ill-starred complaints in pro per—had secured the services of an attorney, mid-Wilshire practitioner Frank A. Weiser, in drafting the latest document.
Unfazed by the Ninth Circuit’s apparent receptivity to Wu’s negative Weiser characterization of the pleading, the lawyer maintains that the action has merit—notes his record of success in federal court litigation—and vows to continue the fight.
White contends that the financial institutions made use of funds which the U.S. government had intended to go to him but which were appropriated by Girardi and placed in accounts by his wife ad stepson.
Final Opportunity
Wu said, in dismissing the first amended complaint, concocted by White, that the pleading is “fantastical and often unintelligible,” going on to term it “verbose, rambling, redundant, and largely incoherent,” but he gave White one final chance to amend it.
At that point, White hired Weiser.
The judge, in November 2023, dismissed the second amended complaint—prepared by Weiser—without leave to amend, saying that the allegations “are equally as fantastical as were the prior iterations of the complaint.”
Wu remarked in a footnote:
“The Court notes at the outset that implausible as they may be. Rule 12(b)(6) requires the Court to accept Plaintiffs well-pleaded factual allegations as true….And while the in forma pauperis statute, 28 U.S.C. § 1915, authorizes the Court to dismiss complaints ‘describing fantastic or delusional scenarios,’…this is presently not an in forma pauperis action.”
He went through the claims—including one under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act—and found them to be inadequately pled.
Weiser Replies
Weiser said late Sunday:
“My client intends to file a petition for rehearing and rehearing en banc regarding the RICO claim.
“I believe that the RICO claim was stated with great specificity and particularity and the United States Supreme Court has established in prior precedent that to state a RICO claim claiming the predicate crime of using the instrumentalities of the U.S. mail, the use of the mail does not have to be directly tied to the corrupt fraud scheme. Further, given Federal Rule of Civil Procedure’s liberal pleading standard under Rule 15, the panel, at a minimum, should have remanded the claim to the district court to allow leave to amend.”
He noted that he has “practiced extensively in the Ninth Circuit” and has “many published opinions” emanating from his efforts, enumerating several of them.
Descendant of Senator
In the operative pleading, White is identified as “the Chairman and CEO of California based The Hollywood Land Development Company, LLC” and the “100 percent owner of The Hollywood Land Development Company, LLC.” His father, Lawrence Phipps White, is described as a “Yale-educated” architect and his great-great grandfather is said to have been U.S. Sen. Lawrence C. Phipps, R.-Colo (1919-31), “the former Treasurer of Carnegie Steel and also the architect of the creation of the U.S. Steel.”
The complaint alleges that White reached a agreement with the Kingdom of Saudi Arabia Public Investment Fund to construct a commercial building here which the fund would own; it sent payment in the amount of $12,683,552,000; “such funds never reached Plaintiffs account as it was redirected by Presidential candidate DONALD J. TRUMP; the U.S. government appointed Girardi as White’s lawyer.
Attached to the pleading is a purported settlement agreement, supposedly bearing the signatures of Girardi “[o]n behalf of the Government of the United States” and White and his wife.
Forfeiture of Fees
It is provided in the settlement agreement:
“If the Claimant’s payment of $27,59,774,612 [sic] by Cashier’s Check is not made on time by May 15, 2020 10:30 AM ET for any reason whatsoever, the U.S. government’s outside legal counsel of Girardi | Keese and King and Spalding will immediately forfeit their entire combined payment of $5,565,954,922 for legal fees.”
The complaint says the check was provided not to White but to Girardi; Girardi gave it to his wife’s son by a firmer marriage, Thomas Zizzo (a Los Angeles police officer); the money was deposited in a Merrill Lynch account, with Zizzo impersonating White and Jayne pretending to be White’s wife; and Zizzo and Jayne purchased for $119,750,000 the mansion in Los Angeles at 594 South Mapleton that had belonged to the late producer Aaron Spelling.
It is alleged that the financial institutions that were sued engaged in a conspiracy labeled “Project Arizona” and misused and appropriated White’s funds.
BofA’s Position
Bank of America argued in the District Court that the second amended complaint should be dismissed because “it is clear from the allegations” in the pleading “that Plaintiff has no plausible claim against the Bank; the complaint is based on an implausible conspiracy theory that is untethered from reality.”
It pointed out:
“This is not the first time Plaintiff has pursued his meritless claims against the Bank. He sued the Bank in Florida over the fraudulent opening of the Merrill Lynch account and use of his funds; those cases were dismissed.”
The second amended complaint, the bank asserted, “deserves the same fate.”
Ninth Circuit Opinion
The Ninth Circuit said that White’s RICO claim “is meritless,” remarking that his “rambling allegations…fail to identify a ‘pattern of racketeering activity.’ ”
Turning to the conversion claim, the judges wrote:
“The complaint nowhere alleges that Fidelity or Anywhere Real Estate converted or exercised control over White’s money or property. As for Appellee Bank of America, a bank may not be sued for conversion of funds deposited with the bank.”
White also sued under California’s Unfair Competition Law, Business & Professions Code §17200 et seq., which proscribes “any unlawful, unfair or fraudulent business act or practice.” The judges set forth:
“Although White’s theory is unclear, the claim fails under any available theory. To the extent White is asserting that Appellees committed an ‘unlawful’ act based on the predicate acts of his other causes of actions, the claim fails along with the other causes of action. To the extent White is asserting that Appellees committed an ‘unfair’ business act or practice, the claim fails because he has not identified any such act or practice.”
They added:
“White’s petition for ‘declaratory and injunctive relief and constructive trust’ is not an independent cause of action….And because White fails to state a viable cause of action, these requests for relief likewise fail.”
The case is White v. Anywhere Real Estate, Inc., 23-4378.
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