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2000 U.S. App. LEXIS 6391, *
ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS
LOCAL 395 PENSION TRUST; OPERATING ENGINEERS LOCAL NO. 428, PENSION TRUST FUND;
ARIZONA STATE CARPENTERS PENSION TRUST FUND, Plaintiffs-Appellants, v. COOPERS
& LYBRAND, a New York limited liability partnership, Defendant-Appellee.
No. 98-17379
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2000 U.S. App. LEXIS 6391
March 14, 2000, Argued and Submitted, San Francisco, California April 5, 2000, Filed NOTICE: [*1] RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. SUBSEQUENT HISTORY: Reported in Table Case Format at: 2000 U.S. App. LEXIS 20018. PRIOR HISTORY: Appeal from the United States District Court for the District of Arizona. D.C. No. CV-97-02488 PHX-PGR-TSZ. Thomas S. Zilly, District Judge, Presiding. DISPOSITION: AFFIRMED. COUNSEL: For ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS LOCAL 395 PENSION TRUST, OPERATING ENGINEERS LOCAL NO. 428, PENSION TRUST FUND, ARIZONA STATE CARPENTERS PENSION TRUST FUND, Plaintiffs - Appellants: Michael C. Manning, Esq., James W. Howard, Esq., MORRISON & HECKER, Phoenix, AZ. For COOPERS & LYBRAND, Defendant - Appellee: H. Michael Clyde, Esq., Rebecca K. Barnes, Esq., BROWN & BAIN, P.A., Phoenix, AZ. JUDGES: Before: KOZINSKI, KLEINFELD, and McKEOWN, Circuit Judges. OPINION: MEMORANDUM n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Arizona Laborers appeals the [*2] district court's dismissal of its civil RICO action against Coopers and Lybrand ("Coopers"). Relevant to this appeal, the complaint alleged both a substantive RICO violation and a RICO conspiracy. See 18 U.S.C. §§ 1962(c), (d). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We review de novo a district court's dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). To state a § 1962(c) claim, a plaintiff must allege that the defendant "has participated in the operation or management of the enterprise itself." Reves v. Ernst & Young, 507 U.S. 170, 183, 122 L. Ed. 2d 525, 113 S. Ct. 1163 (1993). Accepting the allegations as true and construing them in the light most favorable to Arizona Laborers, the allegations are insufficient as a matter of law and Arizona Laborers's § 1962(c) claim must fail. A RICO conspiracy claim under § 1962(d) must allege that the defendant agreed to have "'some part in directing [the enterprise's] affairs.'" Neibel v. Trans World Assurance Co., 108 F.3d 1123, 1128 (9th Cir. 1997) [*3] (quoting Reves, 507 U.S. at 179). The allegations set forth in Arizona Laborers's complaint fail to satisfy this requirement. We need not address whether the Neibel test was modified by Salinas v. United States, 522 U.S. 52, 139 L. Ed. 2d 352, 118 S. Ct. 469 (1997), because the complaint would fail even under the interpretation and construction urged by Arizona Laborers. AFFIRMED. |
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