                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                             \
                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 08-15783                      FILED
                         Non-Argument Calendar       U.S. COURT OF APPEALS
                       ________________________        ELEVENTH CIRCUIT
                                                           APRIL 24, 2009
                                                        THOMAS K. KAHN
                   D.C. Docket No.   07-00162-CV-CDL-4        CLERK

G&G TIC, LLC,

                                                     Plaintiff-Appellant,

                                  versus

ALABAMA CONTROLS, INC.,
SHAW INFRASTRUCTURE, INC.,
TAC AMERICAS, INC.,
ROGER E. REUSE,

                                                     Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________
                             (April 24, 2009)

Before BIRCH, HULL, and COX, Circuit Judges.

PER CURIAM:
          G&G TIC, LLC sued Alabama Controls, Inc., Shaw Infrastructure, Inc., TAC

Americas, Inc., and Roger E. Reuse, alleging that they had caused G&G to lose

contracts it had, and not be awarded contracts it bid on.1 G&G’s Amended Complaint

alleged eleven counts of relief. G&G brought federal RICO claims for wire fraud,

mail fraud, bank fraud, injunctive relief, violations of the Hobbs Act, and conspiracy

against Alabama Controls, Shaw, and TAC.2 G&G brought Georgia RICO claims

against Alabama Controls, Shaw, and TAC. G&G brought breach of contract and

tortious interference with contract claims against TAC, and tortious interference

claims against Shaw, Alabama Controls, and Reuse.

          The defendants collectively moved to dismiss all of G&G’s claims for failure

to state a claim. G&G moved for leave to amend its Amended Complaint. The

district court granted the motion to dismiss, and denied G&G leave to amend. G&G

appeals that order.

          First, G&G argues that the district court erred in dismissing its RICO claims.

The district court dismissed the claims because they failed to properly allege

proximate causation as required by Anza v. Ideal Steel Supply Corp., 547 U.S. 451,


          1
       The district court’s order, (R.3-61 at 2-6), does an excellent job summarizing the factual
background to this case.
          2
              The RICO claim based on bank fraud was previously dismissed and is not before us in this
appeal.

                                                     2
126 S. Ct. 1991 (2006). (R.3-61 at 15.) In Anza, the Supreme Court held that one

company’s fraud on the government does not proximately cause the injury a

competitor sustains by being at a competitive disadvantage due to the fraud. 547 U.S.

459-60, 126 S. Ct. at 1997-98 (“The element of proximate causation . . . . has

particular resonance when applied to claims brought by economic competitors, which,

if left unchecked, could blur the line between RICO and the antitrust laws.”). G&G

argues that even when the defendants defraud the government, a business competitor

may be directly injured such that its injury is proximately caused by the fraud

committed against the government. Neither of the two cases G&G relies on for this

proposition, however, persuade us that Anza does not control here.3 Accordingly, we

agree with the district court that G&G has failed to allege proximate cause, and thus

has failed to properly allege a federal RICO claim based on wire or mail fraud.




       3
         G&G relies on Williams v. Mohawk Indus., Inc., 465 F.3d 1277 (11th Cir. 2006) and Bulletin
Displays, LLC v. Regency Outdoor Adver., Inc., 518 F. Supp.2d 1182 (C.D. Cal. 2007). In Williams,
this court held that when a defendant engages in illegal activity with the purpose, and direct result,
of reducing the hourly wages it pays, those employees whose hourly wages were reduced have an
injury proximately caused by the illegal activity. 465 F.3d at 1292. Williams is distinguishable
because there was no other party more directly injured by the illegal activity than the employees
whose wages were reduced. In Bulletin Displays, a California district court held that, when a
government accepts bribes from a company and awards that company contracts, the company’s
competitors’ injuries are proximately caused by the illegal activity. 518 F. Supp.2d at 1189. Bulletin
Displays is distinguishable because here, Shaw, TAC, and Alabama Controls are all private
companies that allegedly conspired to defraud the government. The government was not complicit
in the scheme.

                                                  3
       Second, the district court’s dismissal of G&G’s federal RICO claim based on

a violation of the Hobbs Act was appropriate. The district reasoned that the

allegations supporting this count were implausible, and on appeal G&G does not

argue that they were plausible.4 Because G&G makes no argument that the district

court’s conclusion of implausibility was erroneous, we do not disturb the district

court’s dismissal of this count on that ground.

       Third, because the federal RICO claims based on wire fraud, mail fraud, and

Hobbs Act violations were properly dismissed, the federal RICO conspiracy claim,

bottomed on liability on either the wire fraud, mail fraud, or Hobbs Act violation,

was also properly dismissed. Federal case law is persuasive authority for Georgia

RICO claims. Williams Gen. Corp. v. Stone, 614 S.E.2d 758, 760 (Ga. 2005).

Accordingly, the Georgia RICO claims were properly dismissed for the same reasons

the federal RICO claims were properly dismissed.

       Fourth, the district court’s dismissal of the breach of contract claim against

TAC was appropriate. G&G contends that the district court erred in considering the

contents of the contract, and not merely the allegations in the Amended Complaint,

in its analysis of TAC’s motion to dismiss. We disagree. The district court’s


       4
        G&G’s only argument with respect to the count alleging a RICO claim based on a Hobbs
Act violation is that proximate cause was properly alleged. (Appellant’s Br. at 29 n.6.) G&G does
not address whether or not its allegations were plausible.

                                               4
consideration of the contract referenced in G&G’s Amended Complaint was proper.

See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (court can consider

document referenced in complaint when deciding a motion to dismiss). The district

court properly concluded that the contract was not a requirements contract,5 and that

although G&G was assigned a territory, that territory was non-exclusive.

Accordingly, G&G’s allegations that TAC breached the contract by selling equipment

to G&G’s competitor within G&G’s territory and by threatening not to sell G&G

equipment are implausible.             Dismissal of the breach of contract claim was

appropriate.

       Finally, the district court properly dismissed G&G’s tortious interference

claims. G&G argues in its brief that it seeks to proceed on only one of the tortious

interference claims in its proposed Second Amended Complaint (Count 8).

(Appellant’s Br. at 40.) G&G does not argue that the district court erred in

dismissing the tortious interference claims in the Amended Complaint. Rather,

G&G’s argument is that it could have stated a cognizable claim against TAC and

Shaw for tortious interference if it had been granted leave to amend. This is

       5
         G&G argues that, under Georgia law, a requirements contract can be implicit. (Appellant’s
Br. at 37.) The contract clearly states, however, that Texas law governs its interpretation. (R.1-22,
Ex. 1 at 6.) The 5th Circuit has interpreted Texas law to require, absent an explicit contract
provision that the buyer will purchase exclusively from the seller, at least a quantity term specifying
that the contract is for the sale of a “party’s requirements.” Merritt-Campbell, Inc. v. RxP Prods.,
Inc., 164 F.3d 957, 963 (5th Cir. 1999) (quotation marks and citation omitted).

                                                  5
duplicative of G&G’s argument that the district court erred in denying it leave to

amend.

      The district court denied G&G leave to amend its Amended Complaint on the

ground that the amendment was futile. We agree with the district court. The

proposed Second Amended Complaint does not cure the deficiencies present in the

federal RICO counts, the state RICO counts, nor the breach of contract count.

      G&G argues that Count 8 of the proposed Second Amended Complaint states

a cognizable claim for tortious interference against TAC and Shaw for interfering

with G&G’s contractual relationship with Caddell, and thus would not be a futile

amendment. We disagree.

      G&G’s proposed Second Amended Complaint does not state a claim of tortious

interference against TAC because TAC is privileged to interfere in G&G’s contract

with Caddell under Georgia law. Under Georgia law, a tortious interference claim

will not lie against a privileged defendant (one who has a legitimate economic interest

in the contract). Disaster Servs., Inc. v. ERC P’ship, 492 S.E.2d 526, 528-29 (Ga. Ct.

App. 1997); see Renden, Inc. v. Liberty Real Estate Ltd. P’ship III, 444 S.E.2d 814,

818 (Ga. Ct. App. 1994) (lessor privileged to interfere in sublease). Here, the tortious

interference claim involves a contract awarded by the Army Corps of Engineers to

Caddell. Caddell then subcontracted with G&G to perform the work on the direct

                                           6
digital controls. TAC supplied the equipment that G&G was using to fulfill its

contract with Caddell, and so had a legitimate economic interest in the contract. TAC

is therefore a privileged defendant, and an action for tortious interference will not lie

against it.

       Furthermore, G&G’s proposed Second Amended Complaint does not state a

claim against Shaw. Under Georgia law, the expression of an opinion to dissuade

someone from continuing in a business relationship, without more, does not give rise

to an actionable claim for tortious interference. Edler v. Cardoso, 421 S.E.2d 753,

757 (Ga. Ct. App. 1992). Here, G&G’s only allegation with respect to Shaw is that

Shaw “suggested that Caddell replace G&G with Alabama Controls.” (R.2-47, Ex.

1 at 52.) G&G must do more than allege that Shaw stated its opinion as to whom it

thought Caddell should use as a subcontractor in order to state a tortious interference

claim upon which relief can be granted.

       Accordingly, the proposed Second Amended Complaint does not state a claim

for tortious interference.

       The proposed Second Amended Complaint does not cure any of the pleading

deficiencies that made dismissal of the Amended Complaint proper. Accordingly, the

district court did not err in denying G&G’s motion for leave to amend.




                                           7
      Because dismissal of the Amended Complaint was proper, and because the

motion for leave to amend was properly denied as futile, we affirm the district court’s

well-reasoned opinion.

      AFFIRMED.




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