NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 27 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT A. MCMILLAN; THE No. 17-56676

MCMILLAN LAW FIRM, APC,

D.C. No. Plaintiffs-Appellants, 3:16-cv-02186-WQH-MDD

v.

MEMORANDUM*

DARREN D. CHAKER, DBA Counter Forensics, an individual, and as trustee of

PLATINUM HOLDINGS GROUP TRUST;

et al.,

Defendants-Appellees.

SCOTT A. MCMILLAN; THE No. 18-55343

MCMILLAN LAW FIRM, APC,

D.C. No. Plaintiffs-Appellees, 3:16-cv-02186-WQH-MDD

v.

NICOLE CHAKER, an individual, and as trustee of THE NICOLE CHAKER REVOCABLE LIVING TRUST, U/A dated August 18, 2010,

Defendant-Appellant.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted January 7, 2020 Pasadena, California

Before: WATFORD, BENNETT, and LEE, Circuit Judges.

Plaintiffs Scott McMillan and The McMillan Law Firm appeal the dismissal

of their Racketeer Influenced and Corrupt Organizations Act (RICO) claims and

the district court’s decision that Plaintiffs failed to personally serve Vania Chaker.

Defendant Nicole Chaker cross-appeals the district court’s decision to decline

supplemental jurisdiction over Plaintiffs’ state law civil extortion claim and to

deny as moot her anti-SLAPP motion to strike the state law claim and for an award

of attorneys’ fees.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review the

dismissal of Plaintiffs’ RICO claims de novo, construing material facts in the

complaint as true and in the light most favorable to the nonmoving parties. See

Howard v. Am. Online Inc., 208 F.3d 741, 746 (9th Cir. 2000). “A district court’s

refusal to exercise supplemental jurisdiction is reviewed for abuse of discretion.”

Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001).

Plaintiffs’ First Amended Complaint (FAC) alleges a substantive RICO

violation against Darren Chaker based on the predicate act of extortion and a RICO

conspiracy violation against all Defendants. To qualify as a predicate act of

2 extortion supporting a violation of 18 U.S.C. § 1962(c), “the conduct must be

capable of being generically classified as extortionate.” Scheidler v. Nat’l Org. for

Women, Inc., 537 U.S. 393, 409 (2003). The generic definition of extortionate

conduct is “obtaining something of value from another with his consent induced by

the wrongful use of force, fear, or threats.” United Bhd. of Carpenters & Joiners

of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 843 (9th Cir.

2014) (quoting United States v. Nardello, 393 U.S. 286, 290 (1969)).

Plaintiffs failed to allege extortionate conduct because there are no

allegations that Darren Chaker obtained property from Plaintiffs that he could

“exercise, transfer, or sell.” See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also

fails because there are no allegations to support the “with [Plaintiffs’] consent”

element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843. Indeed,

the FAC expressly states that Darren Chaker used Plaintiffs’ names and logo

without their consent. Thus, the district court properly dismissed the substantive

RICO violation claim.

The district court also properly dismissed the conspiracy claim because the

“failure to adequately plead a substantive violation of RICO precludes a claim for

conspiracy.” Howard, 208 F.3d at 751. Because we conclude that the RICO

conspiracy claim was properly dismissed and that was the only claim brought

against Vania Chaker, we need not decide whether the district court erred by

3 determining that Plaintiffs failed to personally serve Vania Chaker with the FAC.

As for Nicole Chaker’s cross-appeal, the district court did not abuse its

discretion by refusing to exercise supplemental jurisdiction over the remaining

state law claim after properly dismissing the RICO claims. See 28 U.S.C.

§ 1367(c)(3); Ove, 264 F.3d at 826. And without a state law claim, it was proper

for the district court to decline to address the anti-SLAPP motion. See Hilton v.

Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only

entertain anti-SLAPP special motions to strike in connection with state law claims .

. . .”). In any case, Nicole Chaker waived the arguments she makes on cross-

appeal because she failed to raise them below. See Broad v. Sealaska Corp., 85

F.3d 422, 430 (9th Cir. 1996). Nothing in her motion to dismiss or anti-SLAPP

motion alerted the district court that it should retain jurisdiction over the state law

claim and rule on her anti-SLAPP motion should the court dismiss the RICO

claims.

The parties shall bear their own costs on appeal.

AFFIRMED.1

1 We DENY Darren Chaker’s Motion to Strike Volume Eight of the Excerpts of Record and All References Thereto. Dkt. No. 134.

4