Florida Evergreen Fol. v. E.I. Dupont De Nemours

• Decision Date: 24 August 2001
• Docket Number: No. 98-2256-CIV.,98-2256-CIV.
• Parties: FLORIDA EVERGREEN FOLIAGE and Louis Chang, Plaintiffs, v. E.I. DU PONT DE NEMOURS AND COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1345

165 F.Supp.2d 1345

FLORIDA EVERGREEN FOLIAGE and Louis Chang, Plaintiffs, v. E.I. DU PONT DE NEMOURS AND COMPANY, Defendant.

No. 98-2256-CIV.

United States District Court, S.D. Florida.

August 24, 2001.

COPYRIGHT MATERIAL OMITTED

Sean L. Moore, Esq., Fort Lauderdale, FL, A. Camden Lewis, Esq., Thomas A. Pendarvis, Esq., Lewis, Babcock & Hawkins, LLP, Columbia, SC, Stephen T. Cox, Esq., David W. Moyer, Esq., Cox & Moyer, San Francisco, CA, for Plaintiffs.

Edward Moss, Esq., Shook, Hardy & Bacon, LLP, Miami, FL, A. Stephens Clay, Esq., William H. Boice, Esq., James F. Bogan, III, Esq., Kilpatrick Stockton LLP, Atlanta, GA, Alice Hector, Esq., Lance Harke, Esq., Hector & Harke LLP, Miami, FL, for Defendants.

ORDER ON DUPONT'S MOTIONS FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFFS' RICO AND SPOLIATION CLAIMS

GOLD, District Judge.

THIS CAUSE is before the Court upon the following motions:

• DuPont's Motion for Judgment on the Pleadings As to Plaintiffs' RICO Claims,¹ filed on May 9, 2001, along with a separate brief in support of the motion. On June 10, 2001, DuPont filed a Notice of Intervening Authority.² Plaintiff-Growers filed an Opposition on June 28, 2001. DuPont filed a Reply on July 20, 2001.

• DuPont's Motion for Judgment on the Pleadings As to Plaintiffs' Spoliation Claim, filed on May 9, 2001. Plaintiff-Growers filed an Opposition on June 28, 2001, and DuPont filed a Reply on July 20, 2001.

• Plaintiff-Growers' Motion to Amend their First Amended Complaint, filed on August 1, 2001. DuPont filed a response memorandum setting forth its position regarding the effect of Plaintiffs' motion to amend on August 10, 2001, and Plaintiffs filed a reply memorandum regarding the effect of the pending motion to amend on August 21, 2001.

Oral arguments on the motions for judgment on the pleadings were held on August 3, 2001.

DuPont seeks dismissal of Counts Six (Racketeering in violation of 18 U.S.C. § 1962(c)), Seven (Violation of 18 U.S.C. § 1962(d) by Conspiracy to Violate 18 U.S.C. § 1962(c)), and Twelve (Spoliation of Evidence) pursuant to Federal Rule of Civil Procedure 12(c).³ After careful consideration of the parties' arguments, the applicable case law, and the record as a whole, the Court concludes that DuPont's Motion for Judgment on the Pleadings As to Plaintiffs' Rico Claims and DuPont's Motion for Judgment on the Pleadings as to Plaintiffs' Spoliation Claim should both be granted, and that Plaintiffs' Motion to Amend the Complaint should be denied at this time. Furthermore, as explained in the conclusion of this Order, the Court certifies that an interlocutory appeal by either or both parties is appropriate as to this Order.

I. Background

The First Amended Complaint [D.E. 2], filed on October 22, 1998, contains thirteen claims for relief, as follows: Count 1, fraud; Count 2, intentional nondisclosure of material facts; Count 3, fraudulent inducement to settle; Count 4, fraud on the court under Fed.R.Civ.P. 60(b); Count 5, rescission and damages for fraud; Count 6, racketeering in violation of 18 U.S.C. § 1962(c); Count 7, violation of 18 U.S.C. § 1962(d) by conspiracy to violate 18 U.S.C. § 1962(c); Count 8, conspiracy; Count 9, abuse of process; Count 10, infliction of emotional distress; Count 11, interference with prospective economic advantage; Count 12, spoliation of evidence; and Count 13, violation of the Florida Deceptive and Unfair Trade Practices Act. Defendant DuPont filed a Counterclaim and Answer [D.E. 106] on May 24, 2000, and Plaintiff-Growers filed an Answer to DuPont's Counterclaim [D.E. 114] on June 13, 2000. In addition, Plaintiff-Growers filed a Local Rule 12.1 Civil Rico Case Statement on October 22, 1998 and a Local Rule 12.1 First Supplemental Civil Rico Case Statement on June 26, 2001. Both parties relied upon the Plaintiff-Growers' RICO Case Statements in conjunction with these matters, and the Court considered them as part of the pleadings relied upon to resolve the pending motions. In considering the pleadings, all ambiguities and inferences were interpreted in the light most favorable to the Plaintiff-Growers.

The Court set forth the background of this dispute in its March 8, 2001 Order on DuPont's Motions for Judgment on the Pleadings [D.E. 224] (the "March 8, 2001 Order"), and that order is incorporated herein by reference. See Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co., 135 F.Supp.2d 1271, 1274-76 (S.D.Fla.2001). In sum, Plaintiffs' claims arise out of a prior lawsuit filed in Florida state court in 1992, in which Plaintiffs alleged products liability based on property damage caused by DuPont's fungicide Benlate and actual fraud claims based on DuPont's alleged concealment of Benlate's defects (the "Underlying Lawsuit"). In 1994, Plaintiffs settled these underlying claims and eventually dismissed their lawsuit with prejudice.

Plaintiffs then filed the instant action, alleging that during the course of the litigation of the Underlying Lawsuit, DuPont wrongfully, illegally, and fraudulently withheld from discovery vital scientific data and information that DuPont was under an obligation to produce in the Underlying Lawsuit and in other related Benlate litigation being conducted simultaneously in other courts, which Plaintiffs' attorneys were monitoring, and gave false testimony in other Benlate cases about Benlate's alleged defects. Plaintiffs allege that DuPont withheld the information and made false statements in the implementation of a scheme to defraud Plaintiffs and others who had used Benlate and suffered resulting damage. As a result of the scheme and fraud, Plaintiffs allege that they were induced to settle the Underlying Lawsuit for less money than they would have otherwise insisted upon and been able to obtain.

The Court's March 8, 2001 Order granted in part and denied in part DuPont's previous motions for judgment on the pleadings. Counts One, Two, Three, Four, Five, Eight, Nine, Ten, Eleven, and Thirteen were dismissed. With respect to Counts Six and Seven, the civil RICO claims, the Court denied DuPont's motion for judgment on the pleadings based on litigation conduct, and deferred from reaching the issue under DuPont's motion for judgment on the pleadings based on reasonable reliance because the parties had not fully addressed the RICO claims in that context. Count Twelve, spoliation, was not addressed by the previous motions for judgment on the pleadings.

II. Standard of Review

Judgment on the pleadings is appropriate where no issue of material fact remains unresolved and the moving party is entitled to judgment as a matter of law. See Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir.1996). When reviewing judgment on the pleadings, the court must take the facts alleged in the complaint as true and view them in the light most favorable to the nonmoving party. Id. at 1524. A complaint may not be dismissed on a motion for judgment on the pleadings "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.1998). The pleadings considered by the court on a motion for judgment on the pleadings include the complaint, answers, counterclaim, and cross-claim, if any. See Santmyer v. Prudential Ins. Co. of Am., 761 F.Supp. 114, 117 (M.D.Fla.1991).

III. Discussion

A. Counts Six and Seven: Plaintiffs' RICO Claims

Plaintiffs seek relief in Counts Six and Seven for violations of the federal civil RICO act, 18 U.S.C. § 1962(c) and (d).⁴ Plaintiffs allege that mail fraud, in violation of 18 U.S.C. § 1341, wire fraud, in violation of 18 U.S.C. § 1343, obstruction of justice, in violation of 18 U.S.C. § 1503, and tampering with witnesses, in violation of 18 U.S.C. § 1512, constitute the relevant "predicate offenses" for a civil RICO action. The Amended Complaint alleges that DuPont formed an enterprise with others for the purpose of defrauding the Benlate claimants, including the above named Plaintiffs, in order to diminish the value of the Benlate claimants' claims. The offending conduct is alleged to include intentional concealment of the Alta Labs documents and data; the BAM and BPM documents (concerning Benlate testing by other labs-see First Amended Complaint ¶¶ 146-190), the test results identifying contamination in the Bartlo lots, and the Costa Rica testing information, misleading and fraudulent answers to discovery requests, false and deceptive responses to court orders to produce, and false deposition testimony and statements by DuPont's attorneys to the courts in Bush Ranch v. DuPont, No. 4:95-CV-36(JRE), United States District for the Middle District of Georgia, Kawamata v. United Agri Products, Civ. No. 91-437, Circuit Court of the Third Circuit, State of Hawaii, Tomono v. DuPont, Civ. No. 92-247K, Circuit Court of the Third Circuit, State of Hawaii, Billy Lambert v. DuPont, Florida Circuit Court, Ritter-Whitworth v. DuPont, Florida Circuit Court, Smith v. DuPont, Florida Circuit Court, and Davis Tree Farms, Inc. v. DuPont, Florida Circuit Court, as well as intimidating and impeding witnesses in the Bush Ranch v. DuPont, Native Hammock, Inc. v. DuPont and Asia Pacific v. DuPont cases.

The provisions of 18 U.S.C. § 1961, et seq. (the RICO Act) provide civil and criminal liability for persons engaged in "a pattern of racketeering activity." See 18 U.S.C. § 1962(a-d). Persons injured by reasons of a RICO violation have a civil cause of action under the terms of the act. See 18 U.S.C. § 1964. The four elements of civil RICO liability are (1)conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. See Durham v. Business Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (internal quotation omitted). Plaintiffs in such an action must identify and prove a pattern of racketeering activity, defined as two "predicate acts" of racketeering activity within a...