Jackson v. Bellsouth Telecommunications, No. 03-10172.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtMarcus
Citation372 F.3d 1250
PartiesSandra JACKSON, Linden Adams, et al., Plaintiffs-Appellants, v. BELLSOUTH TELECOMMUNICATIONS, a Georgia corporation licensed to do business in the State of Florida, d.b.a. BellSouth, Francis B. Semmes, individually and as attorney for BellSouth, et al., Defendants-Appellees.
Decision Date14 June 2004
Docket NumberNo. 03-10172.
372 F.3d 1250
Sandra JACKSON, Linden Adams, et al., Plaintiffs-Appellants,
v.
BELLSOUTH TELECOMMUNICATIONS, a Georgia corporation licensed to do business in the State of Florida, d.b.a. BellSouth, Francis B. Semmes, individually and as attorney for BellSouth, et al., Defendants-Appellees.
No. 03-10172.
United States Court of Appeals, Eleventh Circuit.
June 14, 2004.

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Daniel S. Rosenbaum, Laurie Stilwell Cohen, Danielle K. Brewer, Becker & Poliakoff, P.A., West Palm Beach, FL, Ira C. Hatch, Jr., Hatch & Doty, P.A., Vero Beach, FL, Maurice Graham, Oakland Park, FL, for Plaintiffs-Appellants.

Lawrence S. Robbins, Kathryn S. Zecca, Robbins, Russell, Englert, Orseck & Untereiner, LLP, Washington, DC, Pamela I. Perry, Brian F. Spector, Deborah Sampieri Corbishley, Kenny, Nachwalter & Seymour, P.A., Miami, FL, for Defendants-Appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE*, Judge.

MARCUS, Circuit Judge:


In this appeal, Sandra Jackson and fifty other appellants challenge the dismissal of their lawsuit against BellSouth Telecommunications ("BellSouth"), and Sarah Jones appeals the district court's entry of summary judgment in favor of the law firm Ruden, McClosky, Smith, Schuster & Russell, P.A. ("Ruden McClosky"). Jackson, Jones, and fifty-two other plaintiffs sued BellSouth and Ruden McClosky, among others, alleging misconduct arising out of the settlement of a prior employment discrimination lawsuit against BellSouth. According to the plaintiffs, during the course of settling the earlier case, BellSouth and Ruden McClosky engaged in a wide variety of misconduct, including violating the federal and state RICO statutes, intentionally discriminating in violation of 42 U.S.C. § 1981, and engaging in various common law torts. After thorough review, we are persuaded by none of the plaintiffs' arguments, and, accordingly, affirm in all respects the judgments of the district court.

I.

The background facts and procedural history necessary to understand this case are intricate and extensive.1 This lawsuit

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stemmed from the settlement of a case originally brought by fifty-six plaintiffs2 in 1996 in the Southern District of Florida, entitled Adams v. BellSouth Telecommunications, Inc., Case No. 96-2473-Civ, 2001 WL 34032759 (S.D.Fla. Jan. 29, 2001) (hereinafter "the Adams case" or "Adams").3 The Adams case was essentially a group employment discrimination action brought by many African-American employees of BellSouth and by several applicants seeking employment.

Most of the fifty-two appellants in this matter were formerly plaintiffs in the Adams case, or were putative plaintiffs in a companion suit entitled Andrews v. BellSouth ("Andrews") that was never filed but was settled contemporaneously with the resolution of the Adams case ("the Adams settlement").4 After filing the

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Adams case, attorney Norman Ganz solicited the additional plaintiffs listed in the Andrews complaint, and threatened BellSouth with still more litigation and negative publicity that would accompany filing the Andrews charges. Faced with the threat of protracted litigation and the concomitant bad press that would follow in its wake, BellSouth reached a comprehensive settlement agreement with most of the Adams plaintiffs and putative plaintiffs from Andrews. These individuals make up the bulk of the appellants in this case, and are joined by three others who were not parties to the Adams settlement, but who assert that the Adams settlement foreclosed their claims against BellSouth.5

The defendants in this case include BellSouth and two BellSouth attorneys who handled the Adams litigation, Francis Semmes and Keith Kochler (collectively "the BellSouth defendants"). The BellSouth defendants are joined as co-defendants by Ruden McClosky, the law firm that represented the plaintiffs in the original Adams litigation, and by Barry A. Mandelkorn, a Ruden McClosky attorney who oversaw the Adams litigation (collectively "the Ruden McClosky defendants"). All of the appellants other than Sarah Jones appeal from the dismissal of their claims against BellSouth.6 Because the other appellants reached a settlement with Ruden McClosky, Sarah Jones is the only party who appeals the district court's grant of summary judgment in favor of the law firm. Two additional defendants, attorney Norman Ganz and paralegal Brian Neiman, were voluntarily dismissed by the plaintiffs.

In two separate Orders, the district court dismissed all of the plaintiffs' claims against BellSouth. See Jackson v. BellSouth Telecomm., Inc., 181 F.Supp.2d 1345 (S.D.Fla.2001) ("Jackson I"); Jackson v. BellSouth Telecomm., Inc., Order on BellSouth Defendants' Motion to Dismiss, No.00-7558-Civ-MIDDLEBROOKS, 2002 WL 32494935 (S.D.Fla. June 3, 2002) ("Jackson II"). Subsequently, Ruden McClosky settled with the great majority of the plaintiffs; Sarah Jones pressed on with her claims against the law firm. The district court eventually granted summary judgment in favor of Ruden McClosky on all of Jones's claims. See Jackson v. BellSouth Telecomm., Inc., Order Granting Summary Judgment as to All Claims of Plaintiff Sarah Jones, No.00-7558-Civ-MARRA, 2002 WL 32495260 (S.D.Fla. Nov. 22, 2002) ("Jackson III").

In this appeal, the appellants challenge the dismissal of their claims against BellSouth and Jones challenges the entry of summary judgment in favor of Ruden McClosky.7 First, appellants say that the district court erred in dismissing their federal

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and state RICO claims for failing to sufficiently allege a pattern of racketeering, and in dismissing their RICO conspiracy claims as well. Similarly, they claim that the district court erred in dismissing their intentional discrimination claims (brought pursuant to 42 U.S.C. § 1981) for failure to state a claim. Finally, appellants urge that the trial court erred in finding their state common law claims barred by Florida's litigation privilege and in concluding that the general releases they signed barred the instant litigation. Appellant Jones, in turn, argues that the entry of summary judgment for Ruden McClosky was error because she actually raised a genuine issue of material fact as to whether the law firm represented her.

A.

The plaintiffs in the Adams case were originally represented by the Law Office of Norman Ganz, where the matter was overseen by Norman Ganz and his paralegal, Brian Neiman. The Ganz firm solicited clients to mount a race discrimination lawsuit against BellSouth by placing advertisements in local newspapers in Fort Pierce and Palm Beach County, Florida, and by asking the BellSouth employees who responded to solicit additional plaintiffs among their co-workers. After filing the Adams lawsuit, Ganz continued to solicit still more putative claimants who said they were the victims of BellSouth's discriminatory employment practices; twenty-two additional plaintiffs were listed in a second complaint entitled Andrews v. BellSouth.8 Ganz never filed the second complaint, but, as noted, he did threaten BellSouth with the prospect of ongoing and protracted litigation through the addition of new plaintiffs and the filing of more suits.

Shortly after Ganz filed the Adams lawsuit, he contacted attorney Barry A. Mandelkorn, a lawyer with Ruden McClosky, and asked Mandelkorn to assist him with the Adams litigation. In March 1997, Mandelkorn agreed to serve as trial co-counsel based on the terms of a "Fee and Workshare Agreement." This agreement specifically delineated which Ganz clients Ruden McClosky would represent and which ones it would not. It also provided that Ganz would be responsible for disclosing the arrangement between Ganz and Mandelkorn to all of the plaintiffs. In subsequent correspondence, the Ruden McClosky defendants took pains to distinguish between those plaintiffs who had asserted claims against BellSouth — thus becoming Ruden McClosky clients — and those individuals who had not asserted claims against BellSouth — and therefore were not Ruden McClosky clients. Indeed, in correspondence with BellSouth, Ruden McClosky periodically referenced these "unfiled claims," noting that they were exclusively the clients of Ganz.

In August 1997, Ruden McClosky and the BellSouth defendants negotiated and consummated a global settlement of the Adams litigation which covered the claims

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of the plaintiffs in Adams and the putative plaintiffs in Andrews. Notably, none of the settlement correspondence mentioned Sarah Jones by name, despite the fact that the documents named all of the Adams plaintiffs as well as the "unfiled claims" exclusively represented by Ganz. Jones was not a party to the Adams litigation, was not listed as a plaintiff in the Andrews complaint, and never executed a formal retainer with Ruden McClosky. Jones, however, claims that a lawyer-client relationship with Ruden McClosky developed based on a number of conversations she had with individuals who worked at the Ganz law firm.

The global settlement reached in August 1997 contained a number of very unusual provisions which raised serious ethical issues and eventually resulted in the district court referring the Ruden McClosky defendants, Norman Ganz, and paralegal Brian Neiman to the Florida Bar Association for investigation into possible disciplinary action; to the Grievance Committee of the Southern District of Florida for review of attorney misconduct; and to the United States Attorney for the Southern District of Florida.9 The settlement provided for BellSouth to pay $1,600,000.00, an amount the plaintiffs allege was far below the fair value of their original claims. Moreover, after the plaintiffs' attorneys deducted their fees and the fees associated with a consulting agreement, described infra...

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1439 practice notes
  • Christian v. Town of Riga, No. 08-CV-6557.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 17, 2009
    ...allegations without notice of the factual grounds on which they purport to be based.") (quoting Jackson v. BellSouth Telecomm'ns, 372 F.3d 1250, 1270-71 (11th 13. Plaintiff has alleged mail fraud and wire fraud in his Amended Complaint. While mail fraud and wire fraud, when sufficiently all......
  • State v. Bruun, Nos. 20140295-CA
    • United States
    • Utah Court of Appeals
    • September 28, 2017
    ...acts [to establish a pattern of unlawful 405 P.3d 928activity] spanned fewer than two years"); Jackson v. BellSouth Telecomms. , 372 F.3d 1250, 1266 (11th Cir. 2004) (noting that "[o]ther circuits have agreed that the substantial period of time requirement for establishing close-ended conti......
  • Morrell v. Lunceford, CIVIL ACTION 09-00753-KD-C
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • August 18, 2011
    ...related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature." Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1264 (11th Cir. 2004) (emphasis in original) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239-43 (1989) and 18 U.S.C. § ......
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    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 6, 2016
    ...the essential basics of a RICO enterprise as well as a "pattern of racketeering activity." Jackson v.Page 18 BellSouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004). A RICO enterprise exists "where a group of persons associates, formally or informally, with the purpose of conducting ille......
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1415 cases
  • Christian v. Town of Riga, No. 08-CV-6557.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 17, 2009
    ...allegations without notice of the factual grounds on which they purport to be based.") (quoting Jackson v. BellSouth Telecomm'ns, 372 F.3d 1250, 1270-71 (11th 13. Plaintiff has alleged mail fraud and wire fraud in his Amended Complaint. While mail fraud and wire fraud, when sufficiently all......
  • Beepot v. J.P. Morgan Chase Nat'l Corporate Servs., Inc., Case No. 3:10–cv–423–J–34PDB.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 30, 2014
    ...Cir.2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262–63 (11th Cir.2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint should “ ‘give the defendant......
  • State v. Bruun, Nos. 20140295-CA
    • United States
    • Utah Court of Appeals
    • September 28, 2017
    ...acts [to establish a pattern of unlawful 405 P.3d 928activity] spanned fewer than two years"); Jackson v. BellSouth Telecomms. , 372 F.3d 1250, 1266 (11th Cir. 2004) (noting that "[o]ther circuits have agreed that the substantial period of time requirement for establishing close-ended conti......
  • Morrell v. Lunceford, CIVIL ACTION 09-00753-KD-C
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • August 18, 2011
    ...related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature." Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1264 (11th Cir. 2004) (emphasis in original) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239-43 (1989) and 18 U.S.C. § ......
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