      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0010P (6th Cir.)
               File Name: 00a0010p.06


UNITED STATES COURT OF APPEALS
             FOR THE SIXTH CIRCUIT
               _________________


                              ;
                               
PIK-COAL COMPANY,
                               
         Plaintiff-Appellant,
                               
                               
                                      No. 98-5974
           v.
                               
                                >
BIG RIVERS ELECTRIC            
                               
                               
CORPORATION, EDDIE RAY

INC., E & M COAL COMPANY, 
BROWN, EMBRO HOLDINGS,
                               
                               
ROSE BROTHERS TRUCKING,
INC., SOLAR SOURCES, INC.,     
                               
                               
WILLIAM H. THORPE, and

        Defendants-Appellees. 
SHIRLEY PRITCHETT,

                               
                              1

      Appeal from the United States District Court
  for the Western District of Kentucky at Owensboro.
  No. 94-00049—Jennifer B. Coffman, District Judge.
              Argued: August 12, 1999
          Decided and Filed: January 7, 2000




                           1
2       Pik-Coal Co. v. Big Rivers                        No. 98-5974
        Electric Corp., et al.

    Before: KRUPANSKY  and RYAN, Circuit Judges;
               HULL,* District Judge.
                       _________________
                             COUNSEL
ARGUED:         Harry L. Mathison, KING, DEEP &
BRANAMAN, Henderson, Kentucky, for Appellant. Daniel
Kelley, ICE, MILLER, DONADIO & RYAN, Indianapolis,
Indiana, for Appellees. ON BRIEF: Harry L. Mathison,
KING, DEEP & BRANAMAN, Henderson, Kentucky, for
Appellant. Daniel Kelley, ICE, MILLER, DONADIO &
RYAN, Indianapolis, Indiana, David V. Miller, Greg A.
Granger, BOWERS, HARRISON, KENT & MILLER,
Evansville, Indiana, for Appellees.
                       _________________
                           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 (“E
& M”), Rose Brothers Trucking, Inc. (“Rose”), Solar Sources,
Inc. (“Solar”), William H. Thorpe (“Thorpe”), and Shirley


    *
     The Honorable Thomas G. Hull, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
    1
      On October 2, 1998, in accordance with the plaintiff-appellant’s
stipulation, the Sixth Circuit released defendant-appellee Big Rivers from
this action, because, on September 25, 1996, it had commenced Chapter
11 bankruptcy proceedings. See 11 U.S.C. § 362 (automatic stay).
14    Pik-Coal Co. v. Big Rivers                        No. 98-5974        No. 98-5974                        Pik-Coal Co. v. Big Rivers              3
      Electric Corp., et al.                                                                                       Electric Corp., et al.

and remote byproducts of Big Rivers’ election to contract its              Pritchett (“Pritchett”). The plaintiff’s complaint had alleged
coal supply from E & M to the exclusion of Alley-Cassetty.                 that various actions taken by the defendants, individually or
Assuming arguendo that the defendants, individually or in                  in concert with others, dispossessed it of certain contractual
tandem, had impinged RICO by corruptly prompting or                        coal brokerage commissions, in purported violation of the
influencing Big Rivers to so assign Contract 589, the plaintiff            Racketeer Influenced and Corrupt Organizations Act, 18
nonetheless can neither plead nor prove any proximately-                   U.S.C. §§ 1961-1968 (“RICO”), as well as Kentucky law.
caused losses to itself, because all of its purported financial
disadvantages were incidental to those realized primarily by                  This reviewing court has presumed that the plaintiff’s
intermediate parties, to wit, Alley-Cassetty and/or Big Rivers.            allegations are true upon plenary scrutiny of the lower court’s
Hence, although the plaintiff may possess potential causes of              dismissal of count2 one of the amended complaint for failure
action against some, or all, of 11the defendants buttressed by             to state a claim. The plaintiff has alleged that, during
other legal rights or doctrines, it has no colorable RICO                  October 1978 [1979?], Big Rivers, the owner and operator of
claim against any defendant. On de novo consideration, the                 electrical power plants located in western Kentucky, issued a
plaintiff’s RICO cause (count one) is dismissed with                       public solicitation for bids on “Contract 589,” a long term
prejudice under Fed R. Civ. P. 12(b)(6) for failure to state a             coal supply contract. In response, several coal brokers
claim; and the plaintiff’s three Kentucky law charges (counts              submitted sealed competitive bids. The bid of Alley-Cassetty
two, three, and four) are dismissed without prejudice, in the              Coal Company (“Alley-Cassetty”) was the lowest.
exercise of the court’s discretion to decline supplemental                 Apparently assuming that Big Rivers’ consequent award of
jurisdiction under 28 U.S.C. § 1367(a) & (c)(3), in the                    Contract 589 to Alley-Cassetty was inevitable, the plaintiff,
absence of original federal jurisdiction over any pending                  on November 8, 1979, executed a written contract with Solar,
claim following the dismissal of count one.                                the owner and operator of coal mines located in Indiana,
 Thus, the district court’s judgment of June 18, 1998 is
AFFIRMED.                                                                      2
                                                                                   The Sixth Circuit has pronounced:
                                                                                    Whether a district court has correctly dismissed a suit
                                                                               pursuant to Fed. R. Civ. P. 12(b)(6) [failure to state a claim] is
                                                                               a question of law, and therefore subject to de novo review. The
                                                                               district court must construe the complaint in a light most
                                                                               favorable to the plaintiff, accept all of the factual allegations as
                                                                               true, and determine whether the plaintiff undoubtedly can prove
                                                                               no set of facts in support of his claims that would entitle him to
                                                                               relief. When an allegation is capable of more than one
                                                                               inference, it must be construed in the plaintiff's favor. Hence, a
                                                                               judge may not grant a Rule 12(b)(6) motion based on a disbelief
                                                                               of a complaint’s factual allegations.

     11                                                                    Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.
       Excepting the federal RICO claim in controversy (count one), this   1995) (citations omitted).
reviewing forum expresses no view regarding the merits, or lack thereof,
of any other claim which the plaintiff may have against any defendant or        Accordingly, this appellate forum expresses no view regarding the
potential defendant.                                                       truthfulness or accuracy of any allegation related in this decision.
4       Pik-Coal Co. v. Big Rivers                          No. 98-5974         No. 98-5974                         Pik-Coal Co. v. Big Rivers            13
        Electric Corp., et al.                                                                                           Electric Corp., et al.

under the terms of which the plaintiff would have the                             Accordingly, Pik’s alleged economic injuries were indirect
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."                                                               would have earned if Alley-Cassetty had attained Contract 589. The
                                                                                plaintiff’s cryptic conspiracy allegation, which in its entirety recited that
  The contract between Pik and Solar did not allude to the                      “[t]he defendants conspired to violate 18 U.S.C. § 1962(c) in violation of
                                                                                18 U.S.C. § 1962(d)," omitted essential allegations detailing an agreement
Alley-Cassetty bid, however, the parties apparently intended                    to jointly undertake specific actions illegalized by RICO. See Craighead
that Pik would act as the broker for Solar’s coal furnished to                  v. E.F. Hutton & Co., Inc., 899 F.2d 485, 495 (6th Cir. 1990) (remarking
Big Rivers to satisfy Alley-Cassetty’s supply obligations to                    that a RICO conspiracy count must plead an agreement to engage in
Big Rivers following Big Rivers’ anticipated acceptance of                      specified conduct which would violate RICO).
Alley-Cassetty’s low bid on Contract 589. Pik also mediated
a separate understanding between Solar and Alley-Cassetty                            Moreover, the amended complaint was devoid of any allegation that
whereby Solar would supply Big Rivers with the coal required                    Solar, either acting solo or in conjunction with any other defendant(s),
                                                                                had engaged in a pattern of racketeering activity, even assuming
by Contract  589 if Big Rivers awarded that contract to Alley-                  arguendo that it contained allegations of racketeering acts by Solar. See
Cassetty.3 The Pik/Solar agreement required Solar to pay Pik                    18 U.S.C. § 1962(c) (illegalizing the conduct of an interstate enterprise
six percent (6%) of the purchase price (F.O.B. mine) of all                     through a “pattern of racketeering activity”); 18 U.S.C. § 1961(5)
coal sold by Solar to Big Rivers during the contractual period.                 (defining a “pattern of racketeering activity” to consist of at least two acts
                                                                                of racketeering). A “pattern of racketeering activity”requires related
                                                                                predicate acts of racketeering which continued during a substantial period
                                                                                or which by their nature forebode of future criminal conduct. H.J. Inc. v.
                                                                                Northwestern Bell Telephone Co., 492 U.S. 229, 240-43 (1989). See also
    3                                                                           Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 230 (6th Cir. 1997)
       The November 8, 1979 memorial between Pik and Solar posited that         (concluding that alleged acts of racketeering which occurred within one
Pik “now has in hand certain coal sale orders, which orders can be filled       month were insufficient to constitute a pattern); Vemco, Inc. v.
from SOLAR mines,” although it did not specifically mention the Alley-          Camardella, 23 F.3d 129, 134 (6th Cir. 1994) (ruling activities which
Cassetty bid on Contract 589; that “[t]his agreement is not an exclusive        transpired within a seventeen month span inadequate to comprise a
sale agreement” and thus “PIK-COAL may sell coal for other parties and          "pattern of racketeering activity"); Vild v. Visconsi, 956 F.3d 560, 569
SOLAR may sell its coal through other parties;” but that Pik nonetheless        (6th Cir. 1992) (characterizing "a few months" of racketeering activity as
shall have an exclusive right to “represent” Solar’s coal sales to Big          insufficient to create a continuous "pattern"). In the action sub judice, the
Rivers for a six month period “and so long thereafter as any orders or          amended complaint merely charged that, on a single day (December 28,
contracts are in force, including any extension or renewal thereof.”            1979), Solar placed two telephone calls – one to Pik, by which it
Although the precise stipulations of the written compact between Pik and        purported to cancel the agreement under which Pik would supply the
Solar, when considered together, were ambiguous regarding the precise           embryonic Big Rivers/Alley-Cassetty “contract” with Solar’s coal; and
rights and obligations of the signatories (and neither the written contract     one to a truck driver who was not even a Pik employee, by which it
itself nor the amended complaint revealed which party had drafted that          allegedly “threatened” him to prevent his haulage of Solar coal “to supply
writing), the allegations of Pik’s amended complaint, as well as the            the contract [sic] with Alley-Cassetty.” RICO incorporates, inter alia,
assertions contained within its appellant’s brief, unambiguously reflected      acts illegalized by 18 U.S.C. § 1343 (the federal criminal wire fraud
Pik’s hypothesis that it was deprived of commissions under its contract         statute) and 18 U.S.C. § 1951 (the federal criminal commercial extortion
with Solar solely because Big Rivers awarded Contract 589 to E & M              statute) within its definition of “racketeering activity.” 18 U.S.C.
rather than Alley-Cassetty, as evolved below. Stated differently, the           § 1961(1). Even if, as contended by the plaintiff, those two averred
plaintiff has theorized that its contractual entitlement to sales commissions   telephonic communications could be construed as potentially criminalized
from Solar was contingent upon Big Rivers’ award of Contract 589 to             by sections 1343 and/or 1951 (which is highly doubtful), Pik has, beyond
Alley-Cassetty.                                                                 controversy, failed to allege a sufficient RICO “pattern” of such offenses.
12       Pik-Coal Co. v. Big Rivers                        No. 98-5974         No. 98-5974                      Pik-Coal Co. v. Big Rivers            5
         Electric Corp., et al.                                                                                      Electric Corp., et al.

agents and alleged co-conspirators caused it to award Contract                    However, Big Rivers ultimately did not accept Alley-
589 to an averredly economically unstable enterprise, namely                   Cassetty’s offer. Instead, in September 1980,      it awarded
defendant E & M; which in turn harmed Alley-Cassetty                           Contract 589 to defendants Brown and E & M.4 The plaintiff
financially by forestalling Big Rivers from granting it                        has charged that Brown secured Contract 589 by means of
Contract 589 irrespective of its initially attractive proposal.                illegal bribes, delivered via the United States mail, to certain
                                                                               employees of Big Rivers, including defendants Thorpe and
  Pik had not executed a written contract with either Big                      Pritchett. In exchange for illicit payments, a Big Rivers
Rivers or Alley-Cassetty; rather, it had merely agreed with                    manager allegedly funneled confidential and proprietary
Solar to “represent” its sale of coal to Big Rivers, subject to                inside information, including the terms of Alley-Cassetty’s
conditions, during a specified six month term.9 The                            coal supply proposal, to the Brown defendants. Using that
plaintiff’s alleged losses were caused by Big Rivers’ failure                  illegally obtained intelligence, coupled with the favorable
to purchase Solar coal during the six month period of the                      influence of corrupted Big Rivers employees, the Brown
Pik/Solar contract because Big Rivers elected not to award                     defendants allegedly deprived Alley-Cassetty of Contract 589,
Contract 589 to Alley-Cassetty. Hence, because Pik had                         which in turn divested Pik of commissions which it would
brokered the deal between Alley-Cassetty and Solar upon the                    have earned by virtue of its written agreement with Solar
assumption that Big Rivers would confer Contract 589 upon                      contingent upon Alley-Cassetty’s attainment of Contract 589.
Alley-Cassetty, whereas ultimately Big Rivers invested that
opportunity in E & M rather than Alley-Cassetty, Pik was (at                     Pik averred that, between December 20 and 27, 1979, Solar
most) indirectly divested, by the defendants’ alleged conduct,                 had shipped quantities of coal to Big Rivers in apparent
of inchoate commission rights which it would have possessed                    partial performance of Alley-Cassetty’s putative obligations
under its contract  with Solar if Alley-Cassetty had received                  under its submitted but as-yet-unaccepted coal supply
Contract 589.10                                                                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
     9
                                                                               employee purportedly threatened, via telephone, a coal hauler,
     As developed above, Pik’s amended complaint alleged that it had           with the intent of restraining him from transporting coal from
arranged a deal between Solar and Alley-Cassetty whereby Solar would           Solar’s mines in ostensible satisfaction of the incipient but
supply Alley-Cassetty, and in turn Big Rivers, with coal as required under
Contract 589. However, Pik did not aver that it had commenced any              unconsummated contract between Alley-Cassetty and Big
contractual relationship with Alley-Cassetty. In any event, an allegation      Rivers.
by Pik that it had a direct contractual relationship with Alley-Cassetty
would not have altered the result herein, because Pik’s pleaded injuries         In all events, the Pik/Solar contract’s six month term
would remain secondary to losses suffered by Alley-Cassetty allegedly          expired on May 8, 1980. After that date, on June 16, 1980,
caused by the defendants’ charged RICO offenses.                               Brown, as principal of E & M, secretly submitted a formal
     10                                                                        coal supply proposal to Big Rivers which underbid the
        Although Pik alleged that it had a direct contractual relationship
with Solar, it has failed to aver any damages directly suffered by it as the
result of any conduct by Solar which arguably infringed RICO strictures.           4
Instead, it has merely alleged that it ultimately suffered remote losses             Defendant Brown allegedly was "the ultimate beneficial owner" of
because Solar vended coal to Big Rivers via E & M rather than Alley-           defendants E & M, Embro Holdings, and Rose Brothers Trucking.
Cassetty, which deprived Pik of the six percent commission on all Solar        Accordingly, those litigants are sometimes collectively referenced herein
coal distributed to Big Rivers during at least a six month term which it       as “the Brown defendants.”
6    Pik-Coal Co. v. Big Rivers                  No. 98-5974      No. 98-5974                        Pik-Coal Co. v. Big Rivers            11
     Electric Corp., et al.                                                                               Electric Corp., et al.

standing Alley-Cassetty offer. On September 16, 1980, Big           suffered by the broker-dealers. That is, the conspirators
Rivers accepted the E & M bid, despite E & M’s averred poor         have allegedly injured these customers only insofar as the
contemporaneous financial condition. E & M subsequently             stock manipulation first injured the broker-dealers and
discharged its coal supply commitments to Big Rivers by             left them without the wherewithal to pay customers'
acquiring coal from Solar’s mines. Naturally, because Pik           claims. . . . The broker-dealers simply cannot pay their
had no contractual relationship with Solar after May 1980, it       bills, and only that intervening insolvency connects the
received no commissions for those sales. The Brown                  conspirators' acts to the losses suffered by the
defendants’ alleged mail frauds, briberies, and kickbacks           nonpurchasing customers and general creditors.
continued between 1980 and 1992, during which period they
allegedly continued to financially influence employees of Big     Id. at 271 (citing Associated General Contractors of Cal., Inc.
Rivers to award additional coal purchase contracts to them.       v. Carpenters, 459 U.S. 519, 534 (1983) (quoting Southern
The plaintiff initially learned of the subject corrupt            Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531,
arrangements in 1993, following publication by the Kentucky       533 (1918) (per Holmes, J.) ("`The general tendency of the
Public Service Commission of an investigatory audit report        law, in regard to damages at least, is not to go beyond the first
which examined Big Rivers’ business activities and practices      step.’")).
spanning late 1979 through 1992.
                                                                    The logic of Holmes and its Sixth Circuit progeny8 compels
   On March 16, 1994, Pik inaugurated the instant action via      the conclusion that Pik’s instant RICO claims were not, and
a four-count complaint in federal district court which charged    could not be, supported by sufficiently proximate injuries. At
(1) a RICO conspiracy against all defendants by which they        most, Pik has alleged, and could only allege, that the
deprived the plaintiff of sales commissions which it would        defendants’ conspiratorial acts directly and proximately
have earned under its November 8, 1979 agreement with             injured Big Rivers because the corruption of that defendant’s
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           8
                                                                        Following Holmes, the Sixth Circuit reiterated that a civil RICO
tortious interference with its contractual relations with Solar   claimant must allege and prove that it realized damages directly caused by
against all defendants except Solar (count three), and (4)        the defendants’ conduct violative of RICO; mere “but for” injuries
Kentucky law fraud against Big Rivers (count four). The           consequent to intervening losses directly caused to another party are
plaintiff requested compensatory damages in excess of $1          insufficient. See, e.g., Firestone v. Galbreath, 976 F.2d 279, 285 (6th
million on each cause, plus treble damages on count one; as       Cir. 1992) (affirming the district court's dismissal of a count instigated by
                                                                  the heirs of a decedent which alleged that the defendants had committed
well as legal interest, costs, and attorney fees. On May 28,      RICO offenses against the decedent which diminished the value of the
1996, the district court sustained Solar’s petition to dismiss    decedent's estate, ruling that, because the estate was the party primarily
count one for failure to assert a valid claim, ruling that Pik    injured by the charged conduct, the alleged harm to the plaintiffs as
had neglected to adequately allege that Solar had committed       beneficiaries of that estate was indirect and thus not proximate even if
any predicate act of racketeering or that it had conspired with   they suffered actual "but for" monetary losses); Sanders Confectionary
                                                                  Products, Inc. v. Heller Financial, Inc., 973 F.2d 474, 487 (6th Cir. 1992)
any co-defendant to commit a predicate act of racketeering.       (sustaining the trial court's resolution that, because the defendant’s
18 U.S.C. §§ 1961(1) & (5), 1962. On June 13, 1996, the trial     alleged RICO violations which caused a diminution in the value of
forum granted the plaintiff leave to file an amended              corporate shares directly harmed the corporation, an injured owner of
complaint. On July 9, 1996, the plaintiff lodged its four-count   shares of the company’s devalued stock lacked standing to sue those
                                                                  defendants under RICO because its damages were non-proximate).
10   Pik-Coal Co. v. Big Rivers                 No. 98-5974     No. 98-5974                      Pik-Coal Co. v. Big Rivers            7
     Electric Corp., et al.                                                                           Electric Corp., et al.

  can generally be counted on to vindicate the law as           amended complaint which, inter alia, incorporated new
  private attorneys general, without any of the problems        allegations against Solar intended to correct the    defects
  attendant upon suits by plaintiffs injured more remotely.     identified in the trial bench’s May 28, 1996 order.5
Id. at 268-70. (Citations omitted; emphases added).                On June 18, 1998, the trial court dismissed count one for
                                                                failure to state a claim against any defendant, reasoning that
   In Holmes, the defendant securities brokers/dealers          Pik had alleged proximate injuries only to Big Rivers and/or
fraudulently manipulated certain stock prices, which            Alley-Cassetty but had failed to assert any direct damage to
ultimately caused numerous investors to suffer damages.         itself caused by any defendant’s RICO infraction(s). See
Concurrently, the defendant securities dealers themselves       Holmes v. Securities Investor Protection Corp., 503 U.S. 258
incurred consequent financial losses which subsequently         (1992). Additionally, the trial court declined to exercise
disabled them from satisfying various obligations to their      discretionary supplemental jurisdiction over the three pendent
clients and others. The Securities Investor Protection          state law claims, and accordingly struck the entire action from
Corporation (“SIPC”), a private nonprofit membership
corporation chartered by 15 U.S.C. § 78ccc(a)(1) to which the
defendants belonged by operation of 15 U.S.C.
                                                                    5
§ 78ccc(a)(2)(A), ultimately satisfied its errant members’          The material allegations against Solar which Pik had added by
undischarged financial commitments to their former              amendment to paragraph 5 of count one recited:
customers and general creditors, including erstwhile patrons
who had not purchased “watered” stock. Subsequently, the                 (a) On or about December 28, 1979, the defendant, Solar
                                                                    Sources, Inc., for the purpose of executing a scheme or artifice
SIPC claimed reimbursement of those expenditures from the           to defraud, made use of the telephone to call the plaintiff and
defendants, propped by securities fraud and RICO theories.          solicit its assistance in executing that scheme by canceling the
Holmes, 503 U.S. at 261-65 & n.7. Reversing the Ninth               contractual agreement to supply Alley-Cassetty with the coal to
Circuit, the Supreme Court sustained the district court’s           meet the contractual requirements of BREC [Big Rivers] in
dismissal of RICO counts which sought recovery for                  violation of 18 U.S.C. § 1343.
payments which the SIPC had made to the defendants’ former              (b) On or about December 28, 1979, the defendant, Solar
clients who had not purchased artificially value-inflated           Sources, Inc., for the purpose of executing a scheme or artifice
shares but instead had suffered losses, which the SIPC              to defraud, made use of the telephone to call Hurtis Gammon
eventually compensated, merely by reason of the defendants’         and threaten him so as to prevent him from continuing to haul
overall financial impairments caused by their unrelated             coal from the mine of Solar Sources, inc. [sic] to supply the
                                                                    contract with Alley-Cassetty in violation of 18 U.S.C. § 1343
wrongful price manipulations of certain equities. See id. at        and 18 U.S.C. § 1951.
270. The Court anchored that ruling in the SIPC’s failure to
satisfy the proximate causation requirement. The Court                    (c) Despite the fact that it had shipped coal to BREC to
mandated:                                                           supply the Alley-Cassetty contract on December 20, 1979,
                                                                    December 21, 1979, December 22, 1979, December 26, 1979,
  [E]ven assuming, arguendo, that it [SIPC] may stand in            and December 27, 1979, the defendant, Solar Sources, Inc.,
                                                                    entered into an agreement with Brown to supply Brown and E &
  the shoes of nonpurchasing customers, the link is too             M with the coal necessary to fulfill Contract No. 589 with BREC
  remote between the stock manipulation alleged and the             without paying the plaintiff commissions on such sales due
  customers' harm, being purely contingent on the harm              under an agreement dated November 8, 1979, a copy of which
                                                                    is attached hereto as Exhibit “A”.
8        Pik-Coal Co. v. Big Rivers                      No. 98-5974        No. 98-5974                  Pik-Coal Co. v. Big Rivers         9
         Electric Corp., et al.                                                                               Electric Corp., et al.

its docket. 28  U.S.C. § 1367(a) & (c)(3). Pik noticed a                      court and shall recover threefold the damages he sustains
timely appeal6 on July 13, 1998.                                              and the cost of the suit, including a reasonable attorney's
                                                                              fee . . . .
  The plaintiff has alleged that the defendants violated RICO
section 1962 ("Prohibited activities"), subparts (c) and (d),               18 U.S.C. § 1964(c) (emphases added).
which state:
                                                                              Accordingly, to sustain a RICO § 1962 civil treble damages
      It shall be unlawful for any person employed by or                    action against any defendant, a plaintiff must plead and prove
    associated with any enterprise engaged in, or the                       an actual injury to its business or property "by reason of" a
    activities of which affect, interstate or foreign commerce,             defendant’s section 1962 transgression. The Supreme Court,
    to conduct or participate, directly or indirectly, in the               in Holmes v. Securities Investor Protection Corp., 503 U.S.
    conduct of such enterprise's affairs through a pattern   of             258 (1992), dictated that mere allegation and/or evidence that
    racketeering activity or collection of unlawful debt.7                  an injury to the plaintiff would not have occurred "but for" the
                                                                            defendant's alleged RICO violation (that is, that the plaintiff
18 U.S.C. § 1962(c).                                                        sustained a mere "injury in fact") is insufficient to establish
                                                                            RICO causation. Id. at 265-68. Instead, the plaintiff must
      It shall be unlawful for any person to conspire to                    plead and prove "proximate causation." The Court explained:
    violate any of the provisions of subsection (a), (b), or (c)
    of this section.                                                          [A]mong the many shapes this concept [proximate
                                                                              causation] took at common law was a demand for some
18 U.S.C. § 1962(d).                                                          direct relation between the injury asserted and the
                                                                              injurious conduct alleged. Thus, a plaintiff who
  Section 1964 created civil remedies for RICO section 1962                   complained of harm flowing merely from the misfortunes
infractions:                                                                  visited upon a third person by the defendant's acts was
                                                                              generally said to stand at too remote a distance to
      Any person injured in his business or property by                       recover.
    reason of a violation of section 1962 of this chapter may
    sue therefor in any appropriate United States district                      . . . . First, the less direct an injury is, the more
                                                                              difficult it becomes to ascertain the amount of a
                                                                              plaintiff's damages attributable to the violation, as
     6                                                                        distinct from other, independent, factors. Second, quite
      The Brown defendants submitted a joint appellees’ brief herein on
November 12, 1998. Defendant Solar filed a separate appellee’s brief on       apart from problems of proving factual causation,
November 20, 1998. Defendant-appellees Thorpe and Pritchett petitioned        recognizing claims of the indirectly injured would force
the instant bench on October 9, 1998, and October 13, 1998, respectively,     courts to adopt complicated rules apportioning damages
to adopt the opposition briefs of Solar and the Brown defendants. Those       among plaintiffs removed at different levels of injury
motions are hereby granted.
                                                                              from the violative acts, to obviate the risk of multiple
     7
      “A violation of RICO under 18 U.S.C. § 1962(c) requires (1)
                                                                              recoveries. And, finally, the need to grapple with these
conduct (2) of an enterprise (3) through a pattern (4) of racketeering        problems is simply unjustified by the general interest in
activity.” Kenty v. Bank One, Columbus, N.A., 92 F.3d 384, 389 (6th Cir.      deterring injurious conduct, since directly injured victims
1996) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985)).
