Wagner v. Daewoo Heavy Industries America Corp., No. 01-11998.

• Decision Date: 23 April 2002
• Docket Number: No. 01-11998.
• Parties: Andrew J. WAGNER, Plaintiff-Appellant, v. DAEWOO HEAVY INDUSTRIES AMERICA CORPORATION, Jack Mosler, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

289 F.3d 1268

Andrew J. WAGNER, Plaintiff-Appellant, v. DAEWOO HEAVY INDUSTRIES AMERICA CORPORATION, Jack Mosler, et al., Defendants-Appellees.

No. 01-11998.

United States Court of Appeals, Eleventh Circuit.

April 23, 2002.

Stephen M. Katz, Atlanta, GA, for Plaintiff-Appellant.

Dudley Cecile Rochelle, L. Stanford Sherrill, Jr., Littler Mendelson, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, DUBINA and COX, Circuit Judges.

PER CURIAM.

Appellant/Plaintiff Andrew Wagner filed suit against Appellee/Defendants Daewoo Heavy Industries, Jack Mosler, George Valencia, David O'Dell, Donald Adams, and Kevin Ho,¹ alleging that Defendants "entered into a conspiracy to intimidate, harass, punish, and deter" him from testifying before a federal grand jury, in violation of 42 U.S.C. § 1985. The district court granted Defendants' 12(b)(6) motions to dismiss for failure to state a claim. We vacate the district court's dismissal and instruct the district court to allow Plaintiff leave to amend his complaint.

BACKGROUND

According to Plaintiff's complaint², Defendants were engaged in the shipping of heavy machinery to Cuba, in violation of a U.S. trade embargo. When customs officials discovered the illegal shipments, the federal government launched an investigation. Because of Plaintiff's role in arranging transportation for the equipment and filling out required Customs Invoice forms, Defendants were aware that Plaintiff would eventually be a witness, either at grand jury proceedings or at trial.

Plaintiff alleges that Defendants conspired to terminate him from his employment with Daewoo to deter him from testifying. Defendants, Plaintiff says, falsely accused Plaintiff of soliciting bribes from the trucking company owned by defendant Adams; Plaintiff was later fired — before he was to testify — for violating Daewoo work rules. Plaintiff claims that the reasons given for his termination were false and pretextual. Despite the alleged intimidation, Plaintiff eventually testified before a federal grand jury.

Plaintiff then filed this suit, alleging that Defendants had violated 42 U.S.C. § 1985. The district court granted the Defendants' motions to dismiss for failure to state a claim.

A copy of the complaint is appended to this opinion.

DISCUSSION

I. Defendants' 12(b)(6) motion

A district court's dismissal for failure to state a claim under Rule 12(b)(6) is reviewed de novo. All factual allegations in the complaint must be accepted as true, and all reasonable inferences are construed in the light most favorable to the plaintiff. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir. 1999). "A motion to dismiss is only granted when the movant demonstrates beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir.1998) (internal quotations omitted).

Although a plaintiff is not held to a very high standard in a motion to dismiss for failure to state a claim, some minimal pleading standard does exist. The federal rules require "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)); see also Fed. R.Civ.P. 8(a)(2). "Pleadings must be something more than an ingenious academic exercise in the conceivable." Marsh v. Butler County, 268 F.3d 1014, 1037 (11th Cir.2001) (en banc) (quoting United States v. Students Challenging Regulatory Ag. Proc., 412 U.S. 669, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973)) (internal marks omitted). In addition, unsupported conclusions of law or of mixed law and fact are not sufficient to withstand a dismissal under Rule 12(b)(6). See Marsh, 268 F.3d at 1036 n. 16; see also South Florida Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n. 10 (11th Cir.1996) (stating, in dicta, that "as a general rule, conclusory allegations and unwarranted deductions of fact are not admitted as true in a motion to dismiss").

We agree with the district court's conclusion that Plaintiff's complaint failed to state a claim. Section 1985(2), in relevant part, forbids conspiracies to "deter, by force, intimidation, or theat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully...." 42 U.S.C. § 1985(2). Section 1985(3) provides that a party injured by such a conspiracy shall have a cause of action against the conspirators. The elements of a claim under Section 1985(2) are: 1) a conspiracy; 2) to deter a witness by force, intimidation or threat from attending or testifying before a United States court; 3) that results in injury to the plaintiff. See, e.g., Chahal v. Paine Webber, Inc., 725 F.2d 20, 23 (2d Cir.1984); see also Morast v. Lance, 807 F.2d 926, 929-30 (11th Cir.1987). Plaintiff's allegations are insufficient to establish — even by inference — the second of the elements.³

Although we accept Plaintiff's complaint is sufficient to state that some kind of conspiracy existed, that showing alone is not enough to allow the complaint to withstand a 12(b)(6) motion. For Plaintiff to plead facts suggesting that he was fired for an undetermined improper reason is not enough; instead, the act Defendants agreed to take must constitute the use of force, intimidation, or threat to deter him from testifying.⁴

One cannot reasonably infer that, simply by making false allegations against Plaintiff and by firing Plaintiff from his job — before he was to testify — Defendants had entered into a conspiracy to deter (that is, to discourage or to frighten) him from testifying. It is not to be expected that a group of conspirators would act to deter someone from testifying by just cutting off, in advance of his planned testimony, the most significant source of influence that the conspirators have over that person: his job. Firing someone from their job, amid false allegations of wrongdoing, seems as though it, by itself, would likely create animosity towards a former employer, thereby encouraging — not deterring — that fired employee's testimony against the company. Some details of the events leading to Plaintiff's termination, which support an inference of deterrence, need to be alleged. Cf. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (concluding that a complaint sufficiently pleaded age and national origin discrimination where "complaint detailed the events leading to [plaintiff's] termination... and included the ages and nationalities of at least some of the relevant persons involved with his termination" and included allegations that the plaintiff's boss had said that he wanted to "energize" plaintiff's department and allegations that the person replacing plaintiff was less qualified for the job).

In this context, the concept of deterrence must include some indication — made before Plaintiff gave his testimony — that a threat or act of intimidation was related to Plaintiff's planned testimony. Except by use of preventative force⁵, a person ordinarily does not deter another from acting by simply harming that other person. Instead, a person deters by warning the other person that harm will befall that person if he acts in a certain way: for example, if you testify, you will lose your job. The warning, of course, need not be explicit. In many cases, it would be enough just to let another person know that one does not want that other person to do the thing (testifying, for example) he is planning on doing. Some kind of indication of the object of the deterrence, however, must exist to support an inference of deterrence in a case like this one. In this case, Plaintiff does not allege that a Defendant signaled to him that anyone was worried that Plaintiff was planning to testify. Nor does he allege that some indication was given him to suggest that his termination was related to his planned testimony. What are Plaintiff's grounds for concluding that his firing was to prevent his testimony?

We do not mean to imply that termination of employment cannot be part of an overall scheme to deter. A deterrence claim might stem from an inestimable number of different threats and acts. But, other acts in addition to termination from a job on false grounds need to be alleged, and Plaintiff does not allege such additional acts. Plaintiff never alleges — for example — that a Defendant told him that the bribery allegations would go away if Plaintiff did not testify or that the allegations would be widely reported if he did testify. He also never alleges that a Defendant told him he could have his job back if he did not testify. And the complaint alleges no threats — express or implied — to him of more trouble in the future if he testified. Without allegations along these lines, we cannot reasonably infer from the complaint that Defendants acted to deter Plaintiff from testifying.

Compare the allegations in Plaintiff's complaint to those in McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1034 (11th Cir.2000) (en banc) (complaint alleged that supervisor in the defendant company had told plaintiff that "the company was very unhappy with [plaintiff's] decision to testify" and that supervisor had made clear that "it would not be in [plaintiff's] best interest to testify"), and Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1123-24 (10th Cir.1994) (plaintiffs told not to cooperate with FBI and that whistleblowers would be dealt with severely; plaintiffs also subject to unsafe working conditions and then told "[t]hat's what you get for making waves"). Without similar allegations, we cannot infer that Defendants conspired to...