Major Loss for Scott McMillan San Diego Attorney

San Diego Attorney Scott McMillan, who is also Dean of the McMillan Academy of Law, in La Mesa was recently defeated in a San Diego federal court by Darren Chaker. Scott McMillan , La Mesa, filed the lawsuit under the federal RICO Act. RICO is reserved for criminal enterprises, typically making up of a gang structure, where gang members are committing crimes for the enterprise (gang). However, the complaint Scott McMillan filed primarily alleged acts of defamation that somehow precluded him from practicing law. Scott McMillan’s primary objective was to use RICO’s injunctive relief to order search engines to remove blog posts highlighting his numerous losses, sanctions, lawsuit for legal malpractice, and involvement in a child molestation investigation that was a contained in a report.  

Scott McMillan failed to allege claims for defamation likely since most of the statute of limitations expired, so made false allegations he believed would support a RICO case. Possibly Scott McMillan San Diego attorney was too busy defending against federal fraud allegations where the victim claims she was defrauded by Scott McMillan and former associate Michelle Volk. The victim-plaintiff also stated she was forced to work off a legal bill by working for The McMillan Law Firm , La Mesa , for free! The federal court refused to dismiss the case against Scott McMillan, see order. 

Possibly, Dean Scott McMillan was busy attempting to locate a single student who could graduate from his law school. In December 2017, the State Bar of California stated the law school, in essence, was nothing less than a fraud, having only three students in over a decade, not a single graduate, and law books that were not updated in years – not to mention the law school operates out of the small McMillan Law Firm office, and does not have a sign saying a law school even exists.  See the report here.

Although there are numerous flaws to the RICO lawsuit, the most glaring is the first element -to allege an enterprise. Scott McMillan failed to allege such in any respect. Specifically, the enterprise consisted of nothing more than several lawsuits that were filed against debt collectors. That’s right, debt collectors who refused to stop calling, were collecting on another person’s debt, and doing the things debt collectors are notorious for doing, were sued! Although Scott McMillan was not a party to any of the lawsuits, nor did he defend any of the debt collectors, the fact is: not a single case in United States would support such a theory – such did not stop Scott McMillan from making the meritless claim. (Feel free to review the US DOJ's RICO Manual here and let me know if you find support for Scott McMillan's theory!)

Even if the enterprise was legally cognizable, the fact is Scott McMillan was not a ‘victim’ of the enterprise. The RICO plaintiff must show that he was the intended target of the RICO scheme. See W.L. Meng v. Schwartz, 116 F. Supp. 2d 92, 95 (D. D.C. 2000) (finding that within the context of RICO a RICO plaintiff must be the “intended target of the RICO violation”) quoting In re Am. Express,  39  F.3d  395,  400  (2d  Cir.  1994) Hence, by alleging third party debt collectors created the enterprise, and Scott McMillan was not a debt collector, he could not have been a “victim” to have had standing to sue. Although this one issue is enough to embarrass the legal prophet Scott McMillan, I will go into a couple of additional issues.

Although Scott McMillan alleged the lawsuits were meritless or designed to force debt collectors to settle – even if such was true, RICO  cases have found "the filing of meritless litigation, or even malicious prosecution, is [**34]  not a predicate RICO act." FindTheBest.com, 2014 U.S. Dist. LEXIS 68508, 2014 WL 2050610, at *4 (collecting cases). (Kerik v. Tacopina (S.D.N.Y. 2014) 64 F. Supp. 3d 542, 561-562.) Thus, laughably, even if the purported lawsuits were meritless, such would not constitute an enterprise – and even if they did – Scott McMillan was not a victim, thus would not have had standing to sue. 

The civil RICO complaint also failed to allege how the purported enterprise collected on “unlawful debt.” In Scott McMillan’s world, he alleged by suing debt collectors, then collecting settlement checks cut to the attorneys, such was an unlawful debt.  However, Congress defined  “unlawful debt” and the definition does not fit Scott McMillan’s definition. See, Section 1961(6) [proceeds must originate from gambling or loan sharking]. 

The RICO complaint alleged that Darren Chaker and the enterprise were one in the same. As a San Diego federal court decided in a different case, the merits of a claim under § 1962(c) turn on whether the "person" allegedly engaged in racketeering activity is different from the RICO enterprise engaged in interstate commerce. If there is no difference between the two, the claim fails. (Chi Pham v. Capital Holdings, Inc. (S.D.Cal. Aug. 9, 2011, No. 10cv0971-LAB (AJB)) 2011 U.S.Dist.LEXIS 89047, at *1.) Here, Scott McMillan is incapable of sustaining a RICO action since the defendant(s) are not an enterprise. 

Additionally, San Diego attorney Scott McMillan failed to allege a single dollar was lost as a result of the enterprise. "[A]bsent damages, the RICO claim cannot be sustained," and the bank had "failed to make a showing of actual injury" (Oscar v. University Students Co-Operative Ass'n (9th Cir. 1992) 965 F.2d 783, 790.). Allegations concerning Scott McMillan’s loss of income from phantom RICO acts resulted in reputational harm to his law firm. To the extent the loss of future income is alleged to be attributed to the damage to a plaintiff's reputation, such losses are not compensable under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. §§ 1961-1968.  (Lauter v. Anoufrieva (C.D.Cal. 2008) 642 F.Supp.2d 1060, 1070.) 

Another failure of Scott McMillan’s RICO case is his inability to "allege facts tending to show that [they were] injured by the use or investment of racketeering income." Nugget Hydroelectric, L.P. v. Pac. Gas and Electric Co., 981 F.2d 429, 437 (9th Cir. 1992). It is likely the complaint could not make such an allegation since it did not have an enterprise, thus could not have been injured by the debt collector suing enterprise.

Once Scott McMillan filed this frivolous lawsuit, a team of attorneys were hired from Los Angeles. Not San Diego where most attorneys play nice nice due to the small legal community, but Los Angeles attorneys who employ scorched earth tactics to secure a win. The federal court provided that win when it dismissed the laughable lawsuit in full. The judge literally laughed at Scott McMillan. However, since Scott McMillan is smarter than everyone, he decided to appeal to the Ninth Circuit. Darren Chaker then hired the litigation powerhouse of Hanson Bridgett to defend the appeal  including the chair of the appellate department. 

To add icing on the frivolous lawsuit cake San Diego attorney Scott McMillan baked, he re-filed the identical lawsuit in the San Diego Superior Court.  Darren Chaker then employed the Los Angeles office of Manning Kass which often defends police departments in high stakes litigation. On March 9, 2018, the Superior Court issued a stay preventing Scott McMillan from further wasting resources of the court while he pursues his appeal before the Ninth Circuit. The last time the legal wizard was before the Ninth Circuit was in 2017 where the senior judge called his lawsuit “silly” and “not based on principle”. See video clip here. 

Two lawsuits and 18 months later, two judges have not found a single act of defamation took place. Scott McMillan's frivolous lawsuit was designed to chill speech and remove material from the internet. If a lawsuit could get a handicap placard this case would qualify for one.  The lawsuit was defeated before it was filed.