West Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 24, 2008
No. 07-13421 THOMAS K. KAHN
______________________ CLERK

D. C. Docket No. 06-00118-CV-FTM-29-DNF

WEST COAST ROOFING AND WATERPROOFING, INC.,
on behalf of itself and a class of persons similarly situated,

Plaintiff-Appellant
Cross- Appellee,

versus

JOHNS MANVILLE, INC.,
a Berkshire Hathaway subsidiary,
JOHNS MANVILLE INTERNATIONAL, INC.,
GAF MATERIALS CORPORATION,

Defendants-Appellees
Cross-Appellants,

BRIDGESTONE AMERICAS HOLDING, INC.,
d.b.a. Firestone Tire & Rubber Company,
VARIOUS JOHN DOES 1-1000
BFS DIVERSIFIED PRODUCTS, LLC,
d.b.a. Firestone Tire & Rubber Company,

Defendants-Appellees.
 ________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(July 24, 2008)

Before BARKETT, FAY and STAPLETON,* Circuit Judges

PER CURIAM:

Plaintiff West Coast Roofing & Waterproofing, Inc. (“West Coast

Roofing”) filed a ten count class action complaint against defendants Johns

Manville, Inc. (“Johns Manville”), Bridgestone Americas Holdings, Inc., d/b/a

Firestone Tire & Rubber Company (“Firestone”), and GAF Materials Corporation

(“GAF”), alleging several fraud-related causes of action, violations of state

building codes, and conspiracy. The District Court dismissed the eight counts it

characterized as “fraud-based claims” for failure to state a claim under Fed. R.

Civ. P. 9(b), including a RICO claim that was the sole federal claim asserted. The

Court ruled that the complaint stated a claim against all three defendants for

violations of Florida’s Building Code and conspiracy to violate Florida’s Building

Code, but it declined to exercise further supplemental jurisdiction over those

counts.

* Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit Court
of Appeals, sitting by designation.

2
 I. Background

Plaintiff West Coast Roofing is a roofing contractor that purchases and

installs “built-up bituminous roofing systems” for commercial and other

construction projects. These roofing systems incorporate “tapered perlite,” a rigid

board insulation. Defendants Firestone and GAF manufacture and sell bituminous

roofing systems and system components to contractors such as plaintiff. Their

roofing systems incorporate tapered perlite material, including tapered perlite

procured from defendant Johns Manville. Plaintiff avers that it has purchased

bituminous roofing systems from defendants since the 1980s.

Plaintiff’s roofing systems must meet state and local building code

regulations. Those regulations require that plaintiff’s roofs are able to withstand

minimum levels of “wind uplift pressures” so that the roofs do not fail in

hurricanes or other windstorms. Plaintiff is required to certify that the roofs it

installs satisfy the code’s requirements. Plaintiff avers that, in so doing, it must

rely on representations of the designers, manufacturers and suppliers of the

roofing systems, including defendants. Plaintiff further alleges that it purchased

roofing systems from defendants Firestone and GAF in reliance upon

representations made by those companies regarding the wind uplift capacities of

their roofs.

In 2005, plaintiff purchased from Firestone and installed a built-up

3
bituminous roofing system, which included tapered perlite insulation sold by

Johns Manville, for a construction project called the Riva Del Lago (“Riva”)

project in Fort Myers, Florida. Plaintiff avers that its client, the owner of the

building, subsequently conducted independent testing of the Riva roof’s uplift

capacity to determine whether it complied with the Florida Building Code, and the

roof failed the wind uplift test by “huge margins, because the tapered perlite

insulation literally tore apart, causing the roof system to separate from the

building.” Second Amended Complaint at 13 ¶ 30. Plaintiff avers that it was

required “by its contractual commitments to the owner and contractor and the

building code, to install concrete pavers over the built-up roofing system to

remediate the problem, at a cost in excess of $260,000.” Second Amended

Complaint at 15 ¶ 35.

Plaintiff further alleges that the Riva project was not an isolated incident;

plaintiff alleges that defendants have made “continuous fraudulent

representations” regarding the wind uplift capacities of their roofing systems for

more than a decade, and that “[t]he built-up roofing systems sold and

recommended by Defendants Firestone and GAF do not meet their stated uplift

capacities because the tapered perlite manufactured and sold by Johns Manville

fails, tearing apart at a fraction of the capacity represented by Johns Manville and

well below building code requirements.” Second Amended Complaint at 12 ¶ 28.

4
Plaintiff avers that “[f]urther investigation revealed that Defendants knew or

should have known that all of their perlite roofing systems cannot withstand

applicable wind uplift requirements....” Second Amended Complaint at 13 ¶ 31.

II. Proceedings

Plaintiff voluntarily amended its initial pleading in a First Amended

Complaint, and each of the defendants moved to dismiss. The District Court

granted in part and denied in part all three motions. The Court characterized

several of plaintiff’s claims as “fraud-based claims” and granted defendants’

motions to dismiss them, without prejudice, finding that the complaint failed to

plead fraud with adequate particularity under Fed. R. Civ. P. 9(b). The Court,

however, found that under Fed. R. Civ. P. 8(a)’s notice pleading standard, the

complaint stated a claim for violations of the Florida Building Code and

conspiracy to violate the Florida Building Code.

Plaintiff next filed a ten count Second Amended Complaint (“Complaint”).1

Plaintiff attached to this pleading seven exhibits, totaling roughly 245 pages,

which plaintiff alleged are “examples” of defendants’ misrepresentations

1
The Complaint’s ten counts are as follows: (1) fraud in the inducement (against Firestone
and GAF only); (2) common law fraud; (3) fraudulent concealment; (4) negligent
misrepresentation; (5) information negligently supplied for the guidance of others; (6) violations
of the Florida building code, Fla. Stat. § 553.84; (7) violation of Florida’s Unfair and Deceptive
Trade Practices Act, Fla. Stat. § 501.238(8); (8) violation of other state unfair trade practices
acts; (9) civil conspiracy; and (10) violation of RICO, 18 U.S.C. § 1961(5), predicated on mail
and wire fraud violations.

5
regarding the wind uplift capacities of their roofing systems.2

Each of the three named defendants again moved to dismiss, and the District

Court again granted the motions in part and denied them in part. The Court found

Fed. R. Civ. P. 9(b) applicable to eight of the claims (counts 1-5, 7-8 and 10) and

analyzed those jointly to determine whether the allegations satisfied Rule 9's

particularity requirement. The Court dismissed those claims, this time with

prejudice, on the grounds that plaintiff again failed to plead fraud with

particularity. The Court also dismissed the conspiracy claim, Count 9, insofar as it

was predicated on those counts. While reiterating its view that the allegations

regarding the Florida Building Code and conspiracy to violate that Code stated a

claim, the Court dismissed those claims without prejudice. It found that the

Second Amended Complaint had failed to satisfy the requirements for diversity

jurisdiction, and that further exercise of supplemental jurisdiction was

inappropriate because it had dismissed the RICO claim in Count 10, the only claim

over which it had federal question jurisdiction. The Court entered final judgment,

2
Plaintiff filed its complaint as a putative class action on behalf of “all persons that have
purchased and/or installed built-up bituminous roofing systems designed, advertised,
recommended and/or manufactured by Firestone and GAF which included tapered perlite
materials advertised, manufactured and supplied by Johns Manville and their distributors
throughout the United States,” Second Amended Complaint at 4 ¶ 11, a class which, plaintiff
believes, exceeds 1,000 members. Second Amended Complaint at 5 ¶ 12. There has been no
class certification.

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and these appeals followed.3

III. Analysis

In its appeal, plaintiff West Coast Roofing argues (1) that the District Court

erred when it ruled that the Second Amended Complaint failed to plead fraud with

particularity; that (2) the District Court abused its discretion by dismissing the

fraud-based claims with prejudice; and that (3) the District Court erred when it

concluded that plaintiff had failed to establish the requirements for diversity

jurisdiction.

Defendants GAF and Johns Manville cross-appealed the District Court’s

denial of their motion to dismiss with prejudice plaintiff’s claims for violations of

the Florida Building Code and conspiracy to violate the Building Code. Firestone

has not cross-appealed.

A. Particularity of the Fraud Allegations

Federal Rule of Civil Procedure 9(b) states:

(a) Fraud or Mistake; Conditions of Mind. In alleging fraud or
mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.

Fed. Rule Civ. P. 9(b) (“Rule 9(b)”). The “particularity” requirement “serves an

3
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the District
Court’s grant or denial of a motion to dismiss, accepting as true all well-pled facts alleged in the
complaint. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005).

7
important purpose in fraud actions by alerting defendants to the ‘precise

misconduct with which they are charged’ and protecting defendants ‘against

spurious charges of immoral and fraudulent behavior.’” Ziemba v. Cascade

Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (citation omitted). See also

Friedlander v. Nims, 755 F.2d 810, 813 n.3 (11th Cir. 1985) (Rule 9(b) serves to

“eliminate fraud actions in which all the facts are learned through discovery after

the complaint is filed”).

To satisfy Rule 9(b)’s “particularity” standard, we generally require that a

complaint identify (1) the precise statements, documents or misrepresentations

made; (2) the time and place of and persons responsible for the statement; (3) the

content and manner in which the statements misled the plaintiff; and (4) what the

Defendants gains by the alleged fraud. Ambrosia Coal & Const. Co. v. Pages

Morales, 482 F.3d 1309, 1316-17 (11th Cir. 2007). See also U.S. ex el. Atkins v.

McInteer, 470 F.3d 1350, 1357 (11th Cir. 2006). Furthermore, Rule 9(b) requires

more than conclusory allegations that certain statements were fraudulent; it

requires that a complaint plead facts giving rise to an inference of fraud. See U.S.

ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1313 (11th

Cir. 2002) (“If Rule 9(b) is to carry any water, it must mean that an essential

allegation and circumstance of fraudulent conduct cannot be alleged in [] [a]

conclusory fashion . . . . [A] plaintiff is not expected to actually prove his

8
allegations,” but it must offer more than “mere conjecture.”).

The parties have assumed that the District Court was correct to apply Rule

9(b) to the eight claims the Court characterized as fraud-based claims, and

therefore we will do same. We need only note that the District Court was certainly

correct to apply Rule 9(b) to plaintiff’s RICO claim predicated on a pattern of mail

and wire fraud offenses. Brooks v. Blue Cross and Blue Shield of Florida, Inc.,

116 F.3d 1364, 1380-82 (11th Cir. 1997) (Rule 9(b) applies to a RICO action

predicated on a pattern of mail and wire fraud; requiring that plaintiff identify the

fraudulent representations with particularity and that, “at a minimum, the plaintiffs

[] allege sufficient facts with enough specificity to show probable cause that the

predicate acts were committed”) (citations omitted); Ambrosia Coal & Const. Co.,

482 F.3d at 1316-17 (similar).

In a case with multiple defendants, the complaint should contain specific

allegations with respect to each defendant; generalized allegations “lumping”

multiple defendants together are insufficient. Ambrosia Coal & Const. Co., 482

F.3d at 1317; Brooks, 116 F.3d at 1381.

In its appeal, plaintiff contends both that the District Court erred when it

ruled that the Second Amended Complaint failed adequately to plead a long term,

continuous course of fraudulent conduct and also that it, at a minimum, adequately

pled fraud with respect to the Riva Del Lago project.

9
 Before addressing the various statements alleged to have been made by each

defendant, it is important to identify a defect in the Second Amended Complaint

common to all three defendants. Plaintiff’s Second Amended Complaint alleges

generally (1) that the three defendants have made fraudulent representations (upon

which plaintiff relied) for more than a decade; but that (2) plaintiff only

“discovered” that those statements were fraudulent in 2005, in the course of the

Riva project. Plaintiff identifies only one specific instance in which it allegedly

relied upon defendants’ representations to its detriment: the Riva project. Apart

from the Riva project, plaintiff fails to explain which particular statements it relied

upon, how it relied upon them, and what adverse consequences it suffered as a

result of doing so – the basic circumstances of fraud.4 The Complaint avers that

only one single roof, the Riva roof, failed at wind uplift levels lower than those

claimed by defendants, and plaintiff asks us to infer from one alleged roof failure

that all of defendants’ roofs are weaker than they were represented to be. We will

decline to do so; Rule 9(b) requires plaintiff to offer more than mere conjecture in

support of such a claim. With this common background, we will turn to the

allegations concerning the representations made by each defendant.

4
We find in the Complaint one single instance other than the Riva project – a project
called the Marina Del Sol project, identified in the Complaint’s Exhibit D – in which plaintiff
purchased a roof from defendants, but plaintiff pleads no facts remotely suggesting that any
statements it relied upon when doing so were fraudulent and no facts about how any statement
was relied upon or the effect of any such reliance. We discuss Exhibit D further infra.

10
 1. Firestone

The Second Amended Complaint itself does not identify any specific

fraudulent statements by any of the three defendants other than statements

regarding the Riva project. However, plaintiff attached to the complaint seven

exhibits, totaling roughly 245 pages, which plaintiff avers are “examples” of

defendants’ ongoing fraudulent representations. Several of those exhibits are

pertinent to defendant Firestone. Exhibits A contains “[p]roduct approval guides

and/or uplift testing information sheets,” and Exhibit B contains “Notices of

Acceptance submitted to Miami-Dade County,” which defendants Firestone and

GAF allegedly published on the internet. Second Amended Complaint at 9 ¶ 24.A.

Plaintiff contends that defendants have continuously published documents similar

to these on the internet “from at least 1998 until present.” Id. These exhibits

consist of more than two hundred pages of product specifications and wind uplift

information, but the Second Amended Complaint fails to identify which

representations within the documents are false. That pleading’s generalized

allegations that these voluminous documents contain “examples” of false

statements somewhere within them fail to satisfy Rule 9(b). Rule 9(b) requires

plaintiff to identify the allegedly fraudulent representations with particularity; these

three Exhibits, alone, afford defendants no particularized notice of the allegations

against them.

11
 Exhibits D-G consist of three emails and one fax that, plaintiff avers, are

further “examples” of defendants’ fraudulent representations. Three of those four

documents, Exhibits D and F-G, are pertinent to defendant Firestone. Exhibits F

and G are emails regarding the Riva project and are not indicative of a fraudulent

course of conduct extending beyond the Riva project. Exhibit D is an email from a

representative of Firestone regarding a different project, one called Marina Del Sol.

However, the complaint neither explains the circumstances of that project nor plead

facts suggesting that Exhibit D was in any way false; its conclusory allegation that

Exhibit D is an “example” of fraud does not satisfy Rule 9. For these reasons, the

Complaint fails to plead a fraudulent course of conduct by Firestone extending

beyond the Riva project.

Plaintiff contends that, at a minimum, it adequately pled fraud in connection

with the Riva project. We agree that plaintiff adequately pled common law fraud

against Firestone in connection with the Riva project. The complaint and its

exhibits specify the precise representations alleged to be false: that “[d]uring the

bidding and submittal phases of the project, West Coast and the general contractor,

BBL Florida, relied upon Firestone’s representation that the roofing system

complied with FM Class 1-240, and would accordingly withstand up to 120 pounds

per square foot of uplift pressure.” Second Amended Complaint at 12-13 ¶ 29.

The emails and faxes appended to the complaint offer some support to plaintiff’s

12
contentions. As the complaint explains, “on July 19, 2005, Scott Swink, an

authorized agent of West Coast, submitted a letter [Exhibit F] to BBL Florida in

which Mr Swink cited to and directly relied upon representations contained in

Firestone’s 2004 wind code approval guide. Mr. Swink relied upon these

representations to assure BBL Florida that the chosen roofing system would exceed

the applicable wind resistance requirements.” Second Amended Complaint at 13 ¶

29. The complaint further alleges that “on August 8, 2005, Mark Minteer, an

authorized agent of Firestone, submitted a letter [Exhibit G] to Scott Swink, in

which Mr. Minteer urged Mr. Swink to utilize the specific system eventually

installed on the Riva project....” Id. These averments identify the statements

alleged to be false with specificity.

Moreover, the Second Amended Complaint offers more than mere conjecture

about whether the above-cited statements were in fact false or fraudulent. Plaintiff

alleges that its client, the owner of the Riva project, conducted independent tests of

the Riva roof’s uplift capacity and the roof failed by “huge margins.” Second

Amended Complaint at 13 ¶ 30. Accepting that averment as true, a fair inference is

that defendant’s representations regarding the wind uplift capability of the Riva

roof were false, because the roof could not withstand the uplift pressures that

defendant claimed they could. While plaintiff provides only conclusory allegations

that defendant made those statements knowing they were false – less culpable

13
explanations are certainly possible – Rule 9(b) permits states of mind, including

knowledge, to be pled generally. Fed. R. Civ. P. 9(b). For these reasons, plaintiff’s

Second Amended Complaint states a claim for common law fraud against Firestone

for Firestone’s representations concerning the wind uplift capacity of the Riva roof,

and the District Court therefore erred when it dismissed all of plaintiff’s fraud

claims with prejudice.

While we agree with plaintiff that it has alleged common law fraud claims

against Firestone with respect to the Riva project, we reach a contrary conclusion

with respect to its RICO claim against Firestone. First, we note our agreement with

the District Court that Count 10 fails to allege mail and wire fraud with the

particularity required by Rule 9. Here, as with the other counts, with the exception

of the Riva project, the Second Amended Complaint does not sufficiently identify

the defendants’ misrepresentations, plaintiff’s reliance, or the consequences

thereof.5 Second, while count 10 incorporates by reference, inter alia, the

allegations we have quoted above in discussing the common law fraud claims

5
Count 10 itself alleges only two predicate offenses: (1) that defendants “published . . . at
least two documents, including product specification sheets, product approval guides, and
information sheets, that were subsequently distributed to [plaintiff] through the United States
interstate mail service,” Second Amended Complaint at 25 ¶ 99.A; and (2) that defendants’ made
ongoing fraudulent representations in the above-described internet documents, which “were
subsequently accessed by or sent to Plaintiffs, through the worldwide internet...” Second
Amended Complaint at 25-26 ¶ 99.B. The former is not further explained – the complaint does
not identify the two documents or describe their relevance – and is far too general to satisfy Rule
9(b). The latter fails to satisfy rule 9(b), for the reasons set forth above.

14
regarding the Riva project, those allegations do not appear to be a part of the wire

and mail fraud averments relied upon in Count 10. Moreover, those allegations

regarding representations during “the bidding and submittal phases” of a single

construction project to induce purchase of a single roofing system clearly do not

constitute the required pattern of criminal conduct of a continuing nature. Jackson

v. BellSouth Telecommunications, 372 F.3d 1250, 1264 (11th Cir. 2004)(to state a

RICO claim the alleged predicate acts must constitute “criminal conduct of a

continuing nature”) (emphasis in original).

Finally, we conclude that the District Court properly dismissed with

prejudice Count 8, which alleges violations of the unfair trade practices acts of

every State other than Florida. Because we have found that plaintiff’s fraud-based

claims adequately plead common law fraud only in connection with the Riva

project, a Florida project, those claims can not reasonably be read to state a claim

for violations of the unfair trade practices acts of States other than Florida.

2. Johns Manville

The Second Amended Complaint identifies only one specific “example” of

an allegedly false representation by Johns Manville: “[f]rom at least 1998 to

present, Defendant Johns Manville has continuously published, on the internet, FM

Approval Guides and FM Wind Uplift Summaries used and relied upon by West

Coast and the Class, which falsely state that its perlite product can achieve a

15
specific code-compliant wind uplift resistance...” Second Amended Complaint at 9

¶ 24.A. Plaintiff attached Exhibit C as an example of these allegedly false approval

guides and uplift summaries. However, Exhibit C contains several pages of wind

uplift information, and the Second Amended Complaint fails to identify which

particular representations therein were false; nor does it allege that plaintiff relied

on these statements to its detriment. That pleading’s remaining allegations against

Johns Manville are far too general to state a claim for a long term course of

fraudulent conduct under Rule 9(b).

Plaintiff also contends that Johns Manville defrauded it in the course of the

Riva project. The Second Amended Complaint avers that the roof Firestone

provided for the Riva project utilized Johns Manville’s tapered perlite, and it avers

that the Riva roof failed wind uplift tests by “huge margins” because “the tapered

perlite insulation literally tore apart, causing the roof systems to separate from the

buildings.” Second Amended Complaint at 13 ¶ 30. It does not, however, identify

any specific false statements by Johns Manville regarding the Riva roof. Further,

defendant does not allege that it ever relied on any representation by Johns

Manville when bidding on the Riva roof. In fact, the complaint expressly avers

that plaintiff relied on Firestone’s representations, rather than those of Johns

Manville, when bidding on the roof for the Riva project. Second Amended

16
Complaint at 12 ¶ 29.6 For these reasons, the District Court properly dismissed all

fraud-based claims against defendant Johns Manville for failure to state a claim.

3. GAF

Finally, the Second Amended Complaint alleges generally that defendant

GAF engaged in a long term course of fraud. Exhibits A and B, discussed above,

include “[p]roduct approval guides and/or uplift testing information sheets” and

“Notices of Acceptance,” which allegedly are “examples” of GAF’s fraudulent

statements. As with Firestone and Johns Manville, however, the Second Amended

Complaint fails to identify which particular statements within those lengthy

internet documents were false. Plaintiff includes only one further “example” of an

allegedly false representation by GAF – Exhibit E, which the Second Amended

Complaint describes as follows:

GAF[] submitted a facsimile to West Coast containing excerpts from
a GAF Factory Mutual Research Approval Guide . . . . This Approval
Guide represented that the GAF roofing systems complied with
specific FM testing protocols. West Coast relied upon the
representations contained in this document when it chose to purchase
GAF roofing systems for projects that took place in 2001 and
thereafter.

Second Amended Complaint at 11 ¶ 24. Again, the Second Amended Complaint

6
Similarly, the complaint avers more generally that “West Coast and the Class must and
do rely on specific factual representations by Firestone and GAF regrading the ability of their
roofing systems to achieve specific code-compliant levels of wind resistance.” Second Amended
Complaint at 7 ¶ 23 (emphasis added).

17
fails to identify which of the many “testing protocols” listed in Exhibit E were

false. Further, it does not allege that GAF had any involvement in the Riva project,

and it neither identifies with particularity any instances in which GAF’s roofs

failed to live up to their claimed uplift capacities nor offers any reason to believe

that they will not in the future. Therefore, the District Court properly dismissed all

fraud-based claims against GAF.

For these reasons, we hold that plaintiff’s Second Amended Complaint

adequately pleads a common law fraud against defendant Firestone for Firestone’s

representations to plaintiff regarding the wind uplift capacity of the Riva roof.

However, we conclude that that pleading fails to plead with particularity that

Firestone undertook a continuous course of fraudulent conduct extending beyond

the Riva project or that Firestone’s conduct with respect to that project states a

RICO claim. Finally, we conclude that the District Court properly dismissed all

fraud-based claims against defendants GAF and Johns Manville, including

plaintiff’s RICO claim.

B. Dismissal with Prejudice

Plaintiff contends that the Court erred when it dismissed the fraud based

claims of plaintiff’s Second Amended Complaint with prejudice, denying plaintiff

another opportunity to amend its pleading. Plaintiff first amended its pleading

voluntarily, and plaintiff again amended its complaint following the District

18
Court’s ruling on defendants’ motions to dismiss the First Amended Complaint.

Plaintiff now contends that, in its Second Amended Complaint, it made a good

faith effort to comply with the District Court’s directions by adding considerable

detail to its most recent pleading. It emphasizes that dismissal with prejudice is a

“severe sanction, its imposition is justified when a party chooses to disregard the

sound and proper directions of the District Court.” Plaintiff’s Br. at 36 (quoting

Friedlander, 755 F.2d at 813).

Plaintiff, however, failed to request leave to amend its complaint from the

District Court. We have held that, “[a] district court is not required to grant a

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is

represented by counsel, never filed a motion to amend nor requested leave to

amend before the District Court.” Wagner v. Daewoo Heavy Industries America

Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Plaintiff responds to Wagner

only by citing pre-Wagner cases and cases of other Courts of Appeals which have

adopted a rule different than ours. We find no reason to depart from our holding in

Wagner in this case, and we hold that the District Court did not abuse its discretion

when it failed to grant plaintiff another opportunity to amend its fraud-based

claims.7

7
The District Court’s consideration of the motions to dismiss the state law fraud based
counts came at a time when it still had the RICO claim before it and having resolved the merits
of those motions, it was of course, entitled to simultaneously dismiss with prejudice both to the
state fraud and RICO claims.

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 C. Jurisdiction of the Florida Building Code claims

Finally, we must address plaintiff’s two remaining counts: Counts 6 and 9,

which allege violations of the Florida Building Code, and conspiracy to violate the

Florida Building Code (jointly, “Building Code claims”). The District Court

denied defendants’ motions to dismiss the Building Code claims for failure to state

a claim, but it ruled that plaintiff had failed to establish the requirements for

diversity jurisdiction and that, having decided to dismiss plaintiff’s only federal

claim, it would not further exercise its supplemental jurisdiction over those claims.

Therefore, the Court declined to exercise jurisdiction over those claims but allowed

plaintiff to re-file them in State court.

Plaintiff argues that the District Court erred when it found that the Second

Amended Complaint fails to qualify for diversity jurisdiction. Defendants GAF

and Johns Manville cross appeal the District Court’s ruling that plaintiff adequately

pled a violation of the Florida Building Code, arguing that the District Court

should have dismissed the two counts with prejudice for failure to state a claim.

As we have explained, we conclude that the District Court properly

dismissed plaintiff’s only federal claims against Johns Manville, Firestone and

GAF. We further conclude that, having done so, it acted within its discretion in

deciding not to exercise jurisdiction over the Florida Building Code claims against

these defendants.

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 First, we agree that the Second Amended Complaint fails to allege facts

supporting diversity jurisdiction over these claims. As plaintiff acknowledges, it

does not allege diversity of citizenship between itself and these defendants, relying

instead on the class action allegations of the Second Amended Complaint and 28

U.S.C. § 1332(d), which confers diversity jurisdiction in a class action when a

member of the class has citizenship diverse from that of defendant and the amount

in controversy exceeds $5,000,000. The problem with this jurisdictional theory is

that the Second Amended Complaint, which defines a national class, cannot

reasonably be read as alleging a class claim based on Florida’s Building Code.

While Count VI purports to state a claim on behalf of the class, its allegations are

in irreconcilable conflict with the class action allegations of the Second Amended

Complaint.8

It follows that the only possible basis for jurisdiction to entertain the Florida

Building Code claims is supplemental federal jurisdiction. Having dismissed all of

the federal claims, it was well within the discretion of the District Court to decline

further to exercise supplemental jurisdiction over those claims and to dismiss them

without prejudice.

8
The Second Amended Complaint alleges claims on behalf of a putative class believed to
include in excess of 1,000 members “throughout the United States.” Second Amended
Complaint at 4 ¶¶ 11-12, which has suffered damages in excess of $5,000,000. Id. at 2 ¶ 1. A
substantial but indeterminable portion of this class obviously has no claim under Florida’s
Building Code. Similarly, the amount in controversy between Florida roofers and the defendants
is indeterminable from the Second Amended Complaint.

21
 IV. Conclusion

As we have explained, the District Court dismissed the fraud based claims

against Johns Manville and GAF in Counts 1 through 5 and 7 through 10 with

prejudice and the Florida Building Code claims in counts 6 and 9 without

prejudice. We will affirm its disposition of all of these claims, thus terminating

these proceedings with respect to those parties. We will also affirm the dismissal

of Count 10's RICO claim and count 8's claims of violations of non-Florida unfair

trade practices acts against Firestone with prejudice, and its dismissal of the Florida

Building Code claims of counts 6 and 9 without prejudice. We will vacate and

remand the District Court’s judgment in Firestone’s favor with respect to Counts 1

through 5 and 7, and count 9 to the extent it may be predicated on those counts, for

further proceedings limited to the allegations regarding the Riva project. Those

proceedings may include consideration by the District Court of whether it should

decline to exercise its supplemental jurisdiction over those counts given the

absence of any federal claim in the proceeding that will be before it. If it should

choose that course, as may be suggested by its disposition of the Florida Building

Code claims, its dismissal of the Riva project fraud claims should be without

prejudice.

AFFIRMED in PART; VACATED and REMANDED in PART.

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