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.
