223331P.pdf   01/04/2024  UMB Bank  v.  Richard Guerin
   U.S. Court of Appeals Case No:  22-3331
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Loken, Author, with Wollman and Benton, Circuit Judges] 
   Civil case - RICO. The plaintiff bank brought this action against the 
   trust beneficiaries of Thomas Hart Benton, alleging they violated the RICO 
   statute by committing related acts constituting mail, wire, and bank 
   fraud. The district court dismissed the action for failure to state a 
   civil RICO claim. Held: (1) the trust beneficiaries' act of instructing 
   their attorney to collect the trust records held by plaintiff bank was not 
   fraud; (2) the plaintiff bank failed to plead with the necessary 
   particularity that any criminal activity tainted the defendants' private 
   attorney-client communications over how to pressure the bank to be more 
   responsive to the beneficiaries' requests, and the conduct cannot form a 
   predicate fraud act under RICO; (3) the bank's first amended complaint 
   alleges that defendants knowingly made false statements to the media and, 
   if accompanied by sufficient allegations of a pattern of racketeering 
   activity, these statements might qualify as predicate acts of mail, wire, 
   or bank fraud; (4) the district court did not err in concluding that 
   communications by defendants and their attorney made in the course of 
   prosecuting a probate case cannot form the basis for RICO predicate acts, 
   as the allegations were conclusory and unpersuasive; (5) the three acts of 
   contacting the media (see 3 above) were insufficient to show a plausible 
   claim of a closed-end pattern of racketeering; as to open-ended 
   continuity, there was no apparent threat that the qualifying acts would 
   continue into the future, and plaintiff failed to show a plausible claim 
   of open-ended continuity; (6) the bank's failure to plausibly allege a 
   pattern of racketeering, an element of its RICO claim against each 
   defendant, means its entire claim fails; and (7) the district court did 
   not err in denying plaintiff's request to file a second amended complaint, 
   as the proposed complaint was untimely and futile.