200 F.3d 884 (6th Cir. 2000), 98-5974, Pik-Coal Co. v Big Rivers Elec. Corp.

Docket Nº:98-5974
Citation:200 F.3d 884
Party Name:Pik-Coal Company, Plaintiff-Appellant, v. Big Rivers Electric Corporation, Eddie Ray Brown, Embro Holdings, Inc., E & M Coal Company, Rose Brothers Trucking, Inc., Solar Sources, Inc., William H. Thorpe, and Shirley Pritchett, Defendants-Appellees.
Case Date:January 07, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 884

200 F.3d 884 (6th Cir. 2000)

Pik-Coal Company, Plaintiff-Appellant,

v.

Big Rivers Electric Corporation, Eddie Ray Brown, Embro Holdings, Inc., E & M Coal Company, Rose Brothers Trucking, Inc., Solar Sources, Inc., William H. Thorpe, and Shirley Pritchett, Defendants-Appellees.

No. 98-5974

United States Court of Appeals, Sixth Circuit

January 7, 2000

Argued: August 12, 1999

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Appeal from the United States District Court for the Western District of Kentucky at Owensboro. No. 94-00049--Jennifer B. Coffman, District Judge.

Harry L. Mathison, KING, DEEP & BRANAMAN, Henderson, Kentucky, for Appellant.

Daniel Kelley, ICE, MILLER, DONADIO & RYAN, Indianapolis, Indiana, Peter L. Ostermiller, Louisville, KY, Phillip Danes Shields, John S. Hoffman, Henderson, KY, David V. Miller, Greg A. Granger, BOWERS, HARRISON, KENT & MILLER, Evansville, Indiana, for Appellees.

Before: KRUPANSKY and RYAN, Circuit Judges; HULL,[*] District Judge.

OPINION

KRUPANSKY, Circuit Judge.

The plaintiff-appellant Pik- Coal Company ("Pik"), an Indiana corporation engaged in the coal brokering business, has contested the initial forum's dismissal, for failure to state a claim, of its amended complaint against defendants-appellees Big Rivers Electrical Corporation ("Big Rivers"),1 Eddie Ray Brown ("Brown"), Embro Holdings, Inc. ("Embro"), E & M Coal Company

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("E & M"), Rose Brothers Trucking, Inc. ("Rose"), Solar Sources, Inc. ("Solar"), William H. Thorpe ("Thorpe"), and Shirley Pritchett ("Pritchett"). The plaintiff's complaint had alleged that various actions taken by the defendants, individually or in concert with others, dispossessed it of certain contractual coal brokerage commissions, in purported violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 ("RICO"), as well as Kentucky law.

This reviewing court has presumed that the plaintiff's allegations are true upon plenary scrutiny of the lower court's dismissal of count one of the amended complaint for failure to state a claim.2 The plaintiff has alleged that, during October 1978 [1979?], Big Rivers, the owner and operator of electrical power plants located in western Kentucky, issued a public solicitation for bids on "Contract 589," a long term coal supply contract. In response, several coal brokers submitted sealed competitive bids. The bid of Alley-Cassetty Coal Company ("Alley-Cassetty") was the lowest. Apparently assuming that Big Rivers' consequent award of Contract 589 to Alley-Cassetty was inevitable, the plaintiff, on November 8, 1979, executed a written contract with Solar, the owner and operator of coal mines located in Indiana, under the terms of which the plaintiff would have the exclusive right to "represent" Solar's sale of coal to Big Rivers "for a period of six (6) months and so long as any orders or contracts are in force, including any extension or renewal thereof."

The contract between Pik and Solar did not allude to the Alley-Cassetty bid, however, the parties apparently intended that Pik would act as the broker for Solar's coal furnished to Big Rivers to satisfy Alley-Cassetty's supply obligations to Big Rivers following Big Rivers' anticipated acceptance of Alley-Cassetty's low bid on Contract 589. Pik also mediated a separate understanding between Solar and Alley-Cassetty whereby Solar would supply Big Rivers with the coal required by Contract 589 if Big Rivers awarded that contract to Alley-Cassetty.3 The Pik/Solar agreement required Solar to pay Pik six percent (6%) of the purchase price (F.O.B. mine) of all

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coal sold by Solar to Big Rivers during the contractual period.

However, Big Rivers ultimately did not accept Alley-Cassetty's offer. Instead, in September 1980, it awarded Contract 589 to defendants Brown and E & M.4 The plaintiff has charged that Brown secured Contract 589 by means of illegal bribes, delivered via the United States mail, to certain employees of Big Rivers, including defendants Thorpe and Pritchett. In exchange for illicit payments, a Big Rivers manager allegedly funneled confidential and proprietary inside information, including the terms of Alley-Cassetty's coal supply proposal, to the Brown defendants. Using that illegally obtained intelligence, coupled with the favorable influence of corrupted Big Rivers employees, the Brown defendants allegedly deprived Alley-Cassetty of Contract 589, which in turn divested Pik of commissions which it would have earned by virtue of its written agreement with Solar contingent upon Alley-Cassetty's attainment of Contract 589.

Pik averred that, between December 20 and 27, 1979, Solar had shipped quantities of coal to Big Rivers in apparent partial performance of Alley-Cassetty's putative obligations under its submitted but as-yet-unaccepted coal supply proposal. However, on or about December 28, 1979, a Solar representative telephoned Pik to "cancel" the November 8, 1979 Pik/Solar agreement. On that same day, a Solar employee purportedly threatened, via telephone, a coal hauler, with the intent of restraining him from transporting coal from Solar's mines in ostensible satisfaction of the incipient but unconsummated contract between Alley-Cassetty and Big Rivers.

In all events, the Pik/Solar contract's six month term expired on May 8, 1980. After that date, on June 16, 1980, Brown, as principal of E & M, secretly submitted a formal coal supply proposal to Big Rivers which underbid the standing Alley-Cassetty offer. On September 16, 1980, Big Rivers accepted the E & M bid, despite E & M's averred poor contemporaneous financial condition. E & M subsequently discharged its coal supply commitments to Big Rivers by acquiring coal from Solar's mines. Naturally, because Pik had no contractual relationship with Solar after May 1980, it received no commissions for those sales. The Brown defendants' alleged mail frauds, briberies, and kickbacks continued between 1980 and 1992, during which period they allegedly continued to financially influence employees of Big Rivers to award additional coal purchase contracts to them. The plaintiff initially learned of the subject corrupt arrangements in 1993, following publication by the Kentucky Public Service Commission of an investigatory audit report which examined Big Rivers' business activities and practices spanning late 1979 through 1992.

On March 16, 1994, Pik inaugurated the instant action via a four-count complaint in federal district court which charged (1) a RICO conspiracy against all defendants by which they deprived the plaintiff of sales commissions which it would have earned under its November 8, 1979 agreement with Solar if Big Rivers had awarded Contract 589 to Alley-Cassetty instead of E & M (count one), (2) Kentucky law breach of contract against Solar (count two), (3) state law tortious interference with its contractual relations with Solar against all defendants except Solar (count three), and (4) Kentucky law fraud...

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