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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 13-13284
Non-Argument Calendar
D.C. Docket No. 9:12-cv-80896-KAM
CORCEL CORPORATION, INC.,
Plaintiff-Appellant,
versus
FERGUSON ENTERPRISES, INC.,
A Virginia Corporation,
LINE-TEC, INC.,
A Florida Corporation,
AKA SERVICES, INC.,
A Florida Corporation,
Defendants-Appellees.
Appeal from the United States District Court for
the Southern District of Florida
(February 7, 2014)
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Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
Appellant-Plaintiff Corcel Corporation, Inc. (“Corcel”) sued Appellees-
Defendants Ferguson Enterprises, Inc. (“Ferguson”), Line–Tec, Inc. (“LT”) and
AKA Services, Inc. (“AKA”) (collectively “the defendants”) for alleged violations
of federal and state Racketeer Influenced and Corrupt Organizations Act (“RICO”)
laws. The district court granted defendants’ Rule 12(b)(6) motions to dismiss
plaintiff Corcel’s complaint, and Corcel appealed. After review of the entire
record on appeal and upon consideration of the parties’ briefs, we reverse the
district court’s Rule 12(b)(6) dismissal.
I. FACTUAL BACKGROUND 1
Plaintiff Corcel and the defendants are business competitors in the plumbing
supply and construction trade. Specifically, plaintiff Corcel, defendant Ferguson,
and defendant LT are all business competitors who supply materials used in the
1
We present the facts as alleged in plaintiff Corcel’s complaint. At this point in the
litigation, we must assume the facts set forth in plaintiff Corcel’s complaint are true. See Anza
v. Ideal Steel Supply Corp., 547 U.S. 451, 453, 126 S. Ct. 1991, 1994 (2006) (stating that on a
motion to dismiss, the court must “accept as true the factual allegations in the amended
complaint”); Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006).
Because we must accept the allegations of plaintiff Corcel’s complaint as true, we recognize that
“the facts” recited in this opinion may not be the actual facts.
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plumbing trade. Plaintiff Corcel competed with defendants Ferguson and LT to
sell plumbing materials to Palm Beach County, Florida (“the County”).
Defendant AKA is a prime construction contractor who competed for the
County’s construction contracts. Defendants Ferguson and LT were defendant
AKA’s subcontractors on its construction contracts. Defendant AKA competed
with an unnamed prime contractor for the County’s construction contracts.
Plaintiff Corcel was the subcontractor to that unnamed prime contractor.
Plaintiff Corcel alleges that the defendants formed two enterprises to
fraudulently procure the County’s plumbing supply and construction contracts
through improper use of the County’s Small Business Enterprise Program (“SBE
Program”).
A. The County’s SBE Program
The County adopted its SBE Program to provide assistance and enhanced
opportunities to small businesses. Under the County’s SBE Program, the County
can certify businesses meeting certain criteria (such as revenue- and geography-
based requirements) as “small business enterprises” (“SBEs”). To be certified as
an SBE, a business must—among other things—perform a “commercially useful
business function” and cannot be a mere “conduit” between the County and a non-
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SBE. To obtain SBE certification, a business must provide the County with an
affidavit attesting to the business’s eligibility for SBE certification.
Under the County’s SBE Program, certified SBEs received a 10% preference
over non-SBEs when the County evaluated bids for direct supply contracts. That
is, if an SBE bid no more than 10% above the amount that the lowest non-SBE bid,
the County awarded the contract to the SBE even though the non-SBE was the
lower bidder. For construction contracts where no prime contractor was an SBE,
the prime contractor with the greatest participation from SBE subcontractors
received a 10% preference over other prime contractors.
B. The Parties’ SBE Status
At all relevant times, plaintiff Corcel was a certified SBE. According to
plaintiff Corcel, defendant LT was a certified SBE even though defendant LT
knew that it was ineligible for SBE status. Defendant Ferguson and defendant
AKA were not certified SBEs.
C. Ferguson-LT Enterprise
Defendants Ferguson and LT formed an enterprise (the “Ferguson-LT
enterprise”) to (1) fraudulently procure and maintain defendant LT’s SBE
certification from the County, (2) allow defendant LT to receive SBE bid
preferences and win project awards from the County, and (3) allow defendant
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Ferguson to make sales through defendant LT to the County. In the Ferguson-LT
enterprise, defendant LT was a mere conduit who performed no commercially
useful business function. As such, defendant LT was ineligible for SBE status.
To obtain defendant LT’s SBE certification, defendants Ferguson and LT
executed their fraudulent scheme by (1) soliciting false and misleading letters from
product manufacturers, (2) preparing false affidavits, (3) altering and falsifying
manufacturers’ product packing slips, and (4) repeatedly submitting these false
documents to the County. Defendants Ferguson and LT used the United States
mail and interstate wires to accomplish these acts.
The County relied on defendants Ferguson and LT’s false documents and
approved defendant LT’s application for SBE certification. Defendant LT’s SBE
certification gave defendant LT the benefits of the County’s SBE Program,
including the 10% bidding advantage. As a result of defendant LT’s 10% SBE
advantage, the County awarded defendant LT multiple supply contracts. If
defendant LT had not been certified as an SBE, the County would have awarded
these contracts to plaintiff Corcel because plaintiff Corcel was the next lowest SBE
bidder.
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D. AKA-Ferguson-LT Enterprise
Defendants AKA, Ferguson, and LT formed an enterprise (the “AKA-
Ferguson-LT enterprise”) to (1) use defendant LT’s fraudulently procured SBE
certification; (2) allow defendant AKA, as prime contractor, to receive SBE bid
preferences based on defendant LT’s presence as defendant AKA’s subcontractor;
and (3) win construction contract awards from the County for the mutual benefit of
all three defendants. In the AKA-Ferguson-LT enterprise, defendant LT was a
mere conduit who performed no commercially useful business function. As such,
defendant LT was ineligible for SBE status.
The defendants executed their fraudulent scheme by listing defendant LT as
an SBE subcontractor on defendant AKA’s construction contract bids to the
County. The defendants used the United States mail to accomplish its fraudulent
scheme.
The County relied on the defendants’ representation that defendant LT was a
certified SBE and awarded a construction contract to defendant AKA. Defendant
LT’s SBE certification gave the defendants the benefits of the County’s SBE
Program, including the 10% bidding advantage. As a result of this 10% SBE
advantage, the County awarded defendant AKA a construction contract. If the
defendants had not represented that defendant LT was a certified SBE, the County
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would have awarded this contract to the prime contractor for whom plaintiff Corcel
submitted its subcontract bid. Thus, the defendants’ scheme caused plaintiff
Corcel to lose the related subcontract.
II. PROCEDURAL BACKGROUND
Plaintiff Corcel brought a six-count complaint against the defendants,
alleging (1) federal RICO violations pursuant to 18 U.S.C. § 1962(c) (Counts 1 and
4); (2) federal RICO conspiracy violations pursuant to 18 U.S.C. § 1962(d)
(Counts 2 and 5); and (3) Florida RICO violations pursuant to Florida Statutes
§§ 772.103–104 (Counts 3 and 6).
The defendants each filed Rule 12(b)(6) motions to dismiss plaintiff
Corcel’s complaint for failure to state a claim. Defendant Ferguson argued that
(1) plaintiff Corcel was not directly injured and its injury was not proximately
caused by defendant Ferguson’s alleged fraudulent conduct; (2) plaintiff Corcel’s
claims are time barred; and (3) plaintiff Corcel did not plead the fraud claims with
particularity. Defendant LT argued that (1) collateral estoppel prevents plaintiff
Corcel from arguing that defendant LT was ineligible for SBE certification and
(2) the letters and affidavits submitted by defendant LT were not false. Defendant
AKA argued that (1) there is no RICO proximate causation because plaintiff
Corcel alleged harm to a third party; (2) there was no pattern of racketeering
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activity because LT did not commit any crime; and (3) there was no RICO
continuity. Each defendant joined in the arguments raised by its co-defendants.
The district court granted the defendants’ motions to dismiss. The district
court concluded that the alleged fraud in the SBE program, even if true, directly
injured the County and not plaintiff Corcel. The district court also determined that
any attempt by plaintiff Corcel to amend its complaint would be futile. The district
court did not discuss the defendants’ alternative arguments for dismissal. And, the
district court declined to exercise supplemental jurisdiction over plaintiff Corcel’s
remaining state law claims.
Plaintiff Corcel timely appealed.
III. STANDARD OF REVIEW
This Court reviews the denial of a Rule 12(b)(6) motion de novo. Williams
v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 n.2 (11th Cir. 2006). “A complaint
should not be dismissed pursuant to Rule 12(b)(6) unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim.” Id. (internal
quotation marks and citation omitted).
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IV. DISCUSSION
A. Federal Civil RICO Violations
It is illegal “for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity. . . .” 18 U.S.C. § 1962(c).
Section 1964(c) permits a civil action if a person is injured due to another person’s
violation of § 1962. 18 U.S.C. § 1964(c).
To establish a federal civil RICO violation under § 1964(c), a plaintiff must
prove (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity and (5) injury to “business or property” (6) that was “by reason of” the
substantive RICO violation.2 Mohawk Indus., 465 F.3d at 1282–83 (citing 18
U.S.C. §§ 1962(c), 1964(c)).
The “by reason of” requirement implicates two concepts: (1) a sufficiently
direct injury so that a plaintiff has standing to sue and (2) proximate cause. Id. at
1287. Thus, to state a claim, civil RICO plaintiffs must prove proximate causation.
See id. (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 126 S. Ct. 1991
2
The first four requirements apply to both civil and criminal RICO claims. Mohawk
Indus., 465 F.3d at 1282.
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(2006)); see also Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 9, 130 S.
Ct. 983, 989 (2010). Courts should scrutinize proximate causation at the pleading
stage and carefully evaluate whether the injury pled was proximately caused by the
claimed RICO violations. Mohawk Indus., 465 F.3d at 1287.
Here, the district court dismissed plaintiff Corcel’s complaint for lack of
proximate causation. We, thus, review what constitutes proximate cause in the
federal civil RICO context and then determine whether plaintiff Corcel’s complaint
alleges facts sufficient to establish proximate causation.
B. Proximate Cause in Federal Civil RICO Cases
For federal RICO purposes, courts evaluate proximate cause “in light of its
common-law foundations.” Hemi Grp., 559 U.S. at 9, 130 S. Ct. at 989. “When a
court evaluates a RICO claim for proximate causation, the central question it must
ask is whether the alleged violation led directly to the plaintiff’s injuries.” Anza,
547 U.S. at 461, 126 S. Ct. at 1998. Thus, proximate cause requires “some direct
relation between the injury asserted and the injurious conduct alleged.” Id. at 457,
126 S. Ct. at 1996 (quoting Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268,
112 S. Ct. 1311, 1318 (1992)) (quotation marks omitted). A link that is “too
remote,” “purely contingent,” or “indirect” is insufficient. Id. at 457, 460, 126 S.
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Ct. at 1996, 1998 (quoting Holmes, 503 U.S. at 271, 274, 112 S. Ct. at 1319, 1321)
(quotation marks omitted).
Although a plaintiff need not show that the injurious conduct was the sole
cause of the injury asserted, proximate causation requires that the plaintiff allege
“some direct relation” between the injury asserted and the injurious conduct.
Mohawk Indus., 465 F.3d at 1287–88 (quoting Anza, 547 U.S. at 457, 126 S. Ct. at
1996). As explained by the Supreme Court, “Congress modeled § 1964(c) on the
civil-action provision of the federal antitrust laws, § 4 of the Clayton Act.” Anza,
547 U.S. at 457, 126 S. Ct. at 1996 (quotation marks and citation omitted). In both
federal RICO and federal antitrust cases, proximate cause is not the same thing as a
sole cause. Mohawk Indus., 465 F.3d at 1288 n.5 (quoting Cox v. Adm’r U.S.
Steel & Carnegie, 17 F.3d 1386, 1399 (11th Cir.) (RICO), modified on other
grounds by 30 F.3d 1347 (11th Cir. 1994)). In both types of cases, “it is enough
for the plaintiff to plead and prove that the defendant’s tortious or injurious
conduct was a substantial factor in the sequence of responsible causation.” Id.
(internal quotations marks omitted).
In evaluating whether proximate causation exists, “courts should consider
the ‘motivating principles’ behind the directness component of the proximate-
cause standard in RICO cases.” Id. at 1288 (quoting Anza, 547 U.S. at 458, 126 S.
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Ct. at 1997) (alterations adopted). Motivating principles include (1) “the difficulty
that can arise when a court attempts to ascertain the damages caused by some
remote action”; (2) “the speculative nature of the proceedings that would follow if
[the plaintiff] were permitted to maintain its claim”; (3) whether the alleged harm
“could have resulted from factors other than [the plaintiff’s] alleged acts of fraud”;
(4) “any appreciable risk of duplicative recoveries”; and (5) whether “the
immediate victims of [the] alleged RICO violation can be expected to vindicate the
laws by pursuing their own claims.” Anza, 547 U.S. at 458–60, 126 S. Ct. at
1997–98.
“[T]he less direct an injury is, the more difficult it becomes to ascertain the
amount of plaintiff’s damages attributable to the violation, as distinct from other,
independent factors.” Holmes, 503 U.S. at 269, 112 S. Ct. at 1318. “This
remoteness concern is heightened when RICO suits are brought by economic
competitors seeking damages for lost sales because those types of claims, ‘if left
unchecked, could blur the line between RICO and the antitrust laws.’” Mohawk
Indus., 465 F.3d at 1288 (quoting Anza, 547 U.S. at 460, 126 S. Ct. at 1998).
With this background on proximate causation in the federal civil RICO
context in mind, we turn to the sufficiency of plaintiff Corcel’s complaint.
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C. Allegations in Plaintiff Corcel’s Complaint
According to plaintiff Corcel’s complaint, defendants Ferguson and LT
formed the Ferguson-LT enterprise and undertook a fraudulent scheme wherein
defendants Ferguson and LT solicited and prepared false and misleading
documents and repeatedly submitted those documents to the County for the express
purposes of (1) obtaining defendant LT’s SBE certification and (2) winning supply
contracts from the County based on the 10% SBE advantage.
Similarly, according to plaintiff Corcel’s complaint, defendants AKA,
Ferguson, and LT formed the AKA-Ferguson-LT enterprise and executed a
fraudulent scheme by listing defendant LT as an SBE subcontractor on defendant
AKA’s construction contract bids to the County even though the defendants knew
that defendant LT was certified as a SBE only because of defendants LT and
Ferguson’s prior fraudulent actions. According to plaintiff Corcel, the three
defendants used defendant LT’s ill-gotten SBE status for the express purpose of
winning a construction contract award from the County based on the 10% SBE
advantage.
Critically, plaintiff Corcel alleges that—if the County had not relied on the
defendants’ false and fraudulent documents and actions—the County would have
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awarded plaintiff Corcel the supply and construction contract at issue because
plaintiff Corcel was the next lowest SBE bidder.
Given these allegations—which we must accept as true at this Rule 12(b)(6)
stage of the litigation—we conclude that plaintiff Corcel has alleged a direct
relation between its claimed injury and defendants’ federal civil RICO violations
sufficient to constitute proximate causation at this pleading stage in the
proceedings. See Mohawk Indus., 465 F.3d at 1287–88 (requiring “some direct
relation” between the injury asserted and the injurious conduct). According to the
complaint, the defendants’ scheme of knowingly misrepresenting defendant LT’s
qualifications for SBE status had the purpose and direct result of channeling
contracts to the defendants and away from the entity that would have received
those contracts (i.e., plaintiff Corcel) if the defendants had not undertaken their
fraudulent conduct. Simply put, the defendants’ alleged fraud directly caused
plaintiff Corcel to lose multiple County contracts.
Examination of the motivating principles behind the directness component
of the proximate causation requirement in federal RICO cases bolsters this Court’s
conclusion that, as alleged, there is a direct relationship between the defendants’
actions and plaintiff Corcel’s harm. See Anza, 547 U.S. at 458–60, 126 S. Ct. at
1997–98.
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First, as alleged, plaintiff Corcel was next in line to receive the County
contracts at issue. That is, if the defendants’ alleged SBE fraud had not occurred,
plaintiff Corcel would have been awarded the supply and construction contracts.
Based on the allegations, there are no other factors that would have prevented
plaintiff Corcel from receiving those contracts. But see id. at 459, 126 S. Ct. at
1997 (reaching different result based, in part, on the court’s determination that the
plaintiff’s “lost sales could have resulted from factors other than [the defendants’]
alleged acts of fraud”).
Second, plaintiff Corcel’s damages should be ascertainable. For each
contract that plaintiff Corcel would have won but-for the defendants’ actions,
plaintiff Corcel may demonstrate with direct evidence the alleged profit that it
would have made in executing the contract. At this pleading stage and given the
allegations in plaintiff Corcel’s complaint, we cannot say that such damages would
be wholly speculative in nature. See id. at 458–59, 126 S. Ct. at 1997–98
(considering the relative ease of ascertaining damages and the “speculative nature”
of the proceedings required to maintain a federal civil RICO claim).
Third, there is no appreciable risk of duplicative recoveries. See id. at 459,
126 S. Ct. at 1998 (considering “any appreciable risk of duplicative recoveries”).
As alleged, plaintiff Corcel was next in line to receive each of the County contracts
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at issue. Consequently, no other bidder would be able to recover based on the
defendants’ alleged federal RICO violations. And, the County’s possible recovery
is not duplicative of plaintiff Corcel’s recovery. As alleged, the County saved
money by awarding the contracts to the defendants instead of plaintiff Corcel.
Plaintiff Corcel was the next lowest bidder; as such, its bids were necessarily more
than the defendants’ bids. If the County had awarded the contracts to plaintiff
Corcel, the County would have paid more money than it actually paid to the
defendants. Consequently, there is no appreciable risk of duplicative recovery
here.3
Fourth, no other immediate victims of the defendants’ alleged RICO
violations are more likely to vindicate the laws by pursuing their own claims. 4 See
id. at 460, 126 S. Ct. at 1998 (“The requirement of a direct causal connection is
especially warranted where the immediate victims of an alleged RICO violation
can be expected to vindicate the laws by pursuing their own claims.”). As a
3
We acknowledge that the prime contractor (and any possible subcontractors) who was
deprived business as a result of the AKA-Ferguson-LT enterprise may seek recourse similar to
that sought by plaintiff Corcel. However, in such case, any potential recovery would not be
duplicative; it would simply make all of the entities wronged by the defendants’ alleged actions
whole.
4
The Court notes that the prime contractor (and any possible subcontractors) on the
construction contract that is the subject of the AKA-Ferguson-LT enterprise may be motivated to
bring similar claims. However, based on the complaint, we cannot say that those entities are
more likely to vindicate the federal RICO laws through their own, separate civil actions.
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preliminary matter, plaintiff Corcel was an immediate victim of the defendants’
fraud, as plaintiff Corcel was directly harmed by the defendants’ conduct. The
County is also a victim—at least insofar as the defendants’ fraud undermined the
purposes of the County’s SBE Program by denying the County the opportunity to
award contracts to businesses that actually met its SBE requirements. Because
plaintiff Corcel’s lost opportunity for profits is more direct and quantifiable than
the subversion of the County’s SBE Program, plaintiff Corcel is the victim most
likely to attempt to vindicate the federal civil RICO laws. 5
For all of these reasons, we conclude that plaintiff Corcel’s complaint
alleges a sufficiently direct injury, especially given the factual allegations that
directly correlate the defendants’ alleged fraud and plaintiff Corcel’s lost
opportunity to obtain the County’s business.
5
The district court relied on a fact not present in plaintiff Corcel’s complaint: that the
County paid more as a result of the defendants’ fraud and was incentivized to sue. As noted
above, however, plaintiff Corcel alleged that the County paid less to the defendants than it would
have paid to plaintiff Corcel as the next lowest bidder. That is, the defendants’ alleged fraud
saved the County money. Once the County’s relative financial harm is clarified, the district
court’s conclusions—that (1) plaintiff Corcel’s suit presents a risk of duplicative recoveries and
(2) the County is better positioned to sue as the “more immediate victim” of the alleged fraud—
are faulty. While evidence may not bear out this claim, at this pleading stage, we accept the
allegations as true.
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V. CONCLUSION
The district court improperly granted the defendants’ motions to dismiss
plaintiff Corcel’s federal civil RICO claims. Because the district court did not
address the defendants’ alternative bases for dismissal or plaintiff Corcel’s state
law claims, we decline to reach those issues in the first instance on appeal.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
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