          Case: 13-13284     Date Filed: 03/24/2014   Page: 1 of 18


                                                           [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT


                               No. 13-13284
                           Non-Argument Calendar


                  D.C. Docket No. 9:12-cv-80896-KAM



CORCEL CORPORATION, INC.,
                                                             Plaintiff-Appellant,

                                   versus

FERGUSON ENTERPRISES, INC.,
A Virginia Corporation,
LINE-TEC, INC.,
A Florida Corporation,
AKA SERVICES, INC.,
A Florida Corporation,
                                                          Defendants-Appellees.



             Appeal from the United States District Court for
                     the Southern District of Florida

                              (March 24, 2014)

                  ON PETITION FOR REHEARING
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Before TJOFLAT, HULL and JORDAN, Circuit Judges.

PER CURIAM:

       We vacate our previous opinion, filed February 7, 2014, and substitute this

opinion in its place.

       Appellant-Plaintiff Corcel Corporation, Inc. (“Corcel”) sued Appellees-

Defendants Ferguson Enterprises, Inc. (“Ferguson”), Line–Tec, Inc. (“LT”) and

AKA Services, Inc. (“AKA”) (collectively “the defendants”) for alleged violations

of federal and state Racketeer Influenced and Corrupt Organizations Act (“RICO”)

laws. The district court granted defendants’ Rule 12(b)(6) motions to dismiss

plaintiff Corcel’s complaint, and Corcel appealed. After review of the entire

record on appeal and upon consideration of the parties’ briefs, we reverse the

district court’s Rule 12(b)(6) dismissal.

                            I. FACTUAL BACKGROUND 1

       Plaintiff Corcel and the defendants are business competitors in the plumbing

supply and construction trade. Specifically, plaintiff Corcel, defendant Ferguson,


       1
         We present the facts as alleged in plaintiff Corcel’s complaint. At this point in the
litigation, we must assume the facts set forth in plaintiff Corcel’s complaint are true. See Anza
v. Ideal Steel Supply Corp., 547 U.S. 451, 453, 126 S. Ct. 1991, 1994 (2006) (stating that on a
motion to dismiss, the court must “accept as true the factual allegations in the amended
complaint”); Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006).
Because we must accept the allegations of plaintiff Corcel’s complaint as true, we recognize that
“the facts” recited in this opinion may not be the actual facts.


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and defendant LT are all business competitors who supply materials used in the

plumbing trade. Plaintiff Corcel competed with defendants Ferguson and LT to

sell plumbing materials to Palm Beach County, Florida (“the County”).

      Defendant AKA is a prime construction contractor who competed for the

County’s construction contracts. Defendants Ferguson and LT were defendant

AKA’s subcontractors on its construction contracts. Defendant AKA competed

with an unnamed prime contractor for the County’s construction contracts.

Plaintiff Corcel was the subcontractor to that unnamed prime contractor.

      Plaintiff Corcel alleges that the defendants formed two enterprises to

fraudulently procure the County’s plumbing supply and construction contracts

through improper use of the County’s Small Business Enterprise Program (“SBE

Program”).

A.    The County’s SBE Program
      The County adopted its SBE Program to provide assistance and enhanced

opportunities to small businesses. Under the County’s SBE Program, the County

can certify businesses meeting certain criteria (such as revenue- and geography-

based requirements) as “small business enterprises” (“SBEs”). To be certified as

an SBE, a business must—among other things—perform a “commercially useful

business function” and cannot be a mere “conduit” between the County and a non-


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SBE. To obtain SBE certification, a business must provide the County with an

affidavit attesting to the business’s eligibility for SBE certification.

      Under the County’s SBE Program, certified SBEs received a 10% preference

over non-SBEs when the County evaluated bids for direct supply contracts. That

is, if an SBE bid no more than 10% above the amount that the lowest non-SBE bid,

the County awarded the contract to the SBE even though the non-SBE was the

lower bidder. For construction contracts where no prime contractor was an SBE,

the prime contractor with the greatest participation from SBE subcontractors

received a 10% preference over other prime contractors.

B.    The Parties’ SBE Status
      At all relevant times, plaintiff Corcel was a certified SBE. According to

plaintiff Corcel, defendant LT was a certified SBE even though defendant LT

knew that it was ineligible for SBE status. Defendant Ferguson and defendant

AKA were not certified SBEs.

C.    Ferguson-LT Enterprise
      Defendants Ferguson and LT formed an enterprise (the “Ferguson-LT

enterprise”) to (1) fraudulently procure and maintain defendant LT’s SBE

certification from the County, (2) allow defendant LT to receive SBE bid

preferences and win project awards from the County, and (3) allow defendant

Ferguson to make sales through defendant LT to the County. In the Ferguson-LT
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enterprise, defendant LT was a mere conduit who performed no commercially

useful business function. As such, defendant LT was ineligible for SBE status.

      To obtain defendant LT’s SBE certification, defendants Ferguson and LT

executed their fraudulent scheme by (1) soliciting false and misleading letters from

product manufacturers, (2) preparing false affidavits, (3) altering and falsifying

manufacturers’ product packing slips, and (4) repeatedly submitting these false

documents to the County. Defendants Ferguson and LT used the United States

mail and interstate wires to accomplish these acts.

      The County relied on defendants Ferguson and LT’s false documents and

approved defendant LT’s application for SBE certification. Defendant LT’s SBE

certification gave defendant LT the benefits of the County’s SBE Program,

including the 10% bidding advantage. As a result of defendant LT’s 10% SBE

advantage, the County awarded defendant LT multiple supply contracts. If

defendant LT had not been certified as an SBE, the County would have awarded

these contracts to plaintiff Corcel because plaintiff Corcel was the next lowest SBE

bidder.

D.    AKA-Ferguson-LT Enterprise
      Defendants AKA, Ferguson, and LT formed an enterprise (the “AKA-

Ferguson-LT enterprise”) to (1) use defendant LT’s fraudulently procured SBE


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certification; (2) allow defendant AKA, as prime contractor, to receive SBE bid

preferences based on defendant LT’s presence as defendant AKA’s subcontractor;

and (3) win construction contract awards from the County for the mutual benefit of

all three defendants. In the AKA-Ferguson-LT enterprise, defendant LT was a

mere conduit who performed no commercially useful business function. As such,

defendant LT was ineligible for SBE status.

      The defendants executed their fraudulent scheme by listing defendant LT as

an SBE subcontractor on defendant AKA’s construction contract bids to the

County. The defendants used the United States mail to accomplish its fraudulent

scheme.

      The County relied on the defendants’ representation that defendant LT was a

certified SBE and awarded a construction contract to defendant AKA. Defendant

LT’s SBE certification gave the defendants the benefits of the County’s SBE

Program, including the 10% bidding advantage. As a result of this 10% SBE

advantage, the County awarded defendant AKA a construction contract. If the

defendants had not represented that defendant LT was a certified SBE, the County

would have awarded this contract to the prime contractor for whom plaintiff Corcel

submitted its subcontract bid. Thus, the defendants’ scheme caused plaintiff

Corcel to lose the related subcontract.


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                      II. PROCEDURAL BACKGROUND

      Plaintiff Corcel brought a six-count complaint against the defendants,

alleging (1) federal RICO violations pursuant to 18 U.S.C. § 1962(c) (Counts 1 and

4); (2) federal RICO conspiracy violations pursuant to 18 U.S.C. § 1962(d)

(Counts 2 and 5); and (3) Florida RICO violations pursuant to Florida Statutes

§§ 772.103–104 (Counts 3 and 6).

      The defendants each filed Rule 12(b)(6) motions to dismiss plaintiff

Corcel’s complaint for failure to state a claim. Defendant Ferguson argued that

(1) plaintiff Corcel was not directly injured and its injury was not proximately

caused by defendant Ferguson’s alleged fraudulent conduct; (2) plaintiff Corcel’s

claims are time barred; and (3) plaintiff Corcel did not plead the fraud claims with

particularity. Defendant LT argued that (1) collateral estoppel prevents plaintiff

Corcel from arguing that defendant LT was ineligible for SBE certification and

(2) the letters and affidavits submitted by defendant LT were not false. Defendant

AKA argued that (1) there is no RICO proximate causation because plaintiff

Corcel alleged harm to a third party; (2) there was no pattern of racketeering

activity because LT did not commit any crime; and (3) there was no RICO

continuity. Each defendant joined in the arguments raised by its co-defendants.




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      The district court granted the defendants’ motions to dismiss. The district

court concluded that the alleged fraud in the SBE program, even if true, directly

injured the County and not plaintiff Corcel. The district court also determined that

any attempt by plaintiff Corcel to amend its complaint would be futile. The district

court did not discuss the defendants’ alternative arguments for dismissal. And, the

district court declined to exercise supplemental jurisdiction over plaintiff Corcel’s

remaining state law claims.

      Plaintiff Corcel timely appealed.

                          III. STANDARD OF REVIEW

      This Court reviews the denial of a Rule 12(b)(6) motion de novo. Williams

v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 n.2 (11th Cir. 2006). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). The plausibility standard is met

where the facts alleged enable “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.




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                                   IV. DISCUSSION

A.     Federal Civil RICO Violations
       It is illegal “for any person employed by or associated with any enterprise

engaged in, or the activities of which affect, interstate or foreign commerce, to

conduct or participate, directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity. . . .” 18 U.S.C. § 1962(c).

Section 1964(c) permits a civil action if a person is injured due to another person’s

violation of § 1962. 18 U.S.C. § 1964(c).

       To establish a federal civil RICO violation under § 1964(c), a plaintiff must

prove (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering

activity and (5) injury to “business or property” (6) that was “by reason of” the

substantive RICO violation.2 Mohawk Indus., 465 F.3d at 1282–83 (citing 18

U.S.C. §§ 1962(c), 1964(c)).

       The “by reason of” requirement implicates two concepts: (1) a sufficiently

direct injury so that a plaintiff has standing to sue and (2) proximate cause. Id. at

1287. Thus, to state a claim, civil RICO plaintiffs must prove proximate causation.

See id. (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 126 S. Ct. 1991



       2
         The first four requirements apply to both civil and criminal RICO claims. Mohawk
Indus., 465 F.3d at 1282.


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(2006)); see also Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 9, 130 S.

Ct. 983, 989 (2010). Courts should scrutinize proximate causation at the pleading

stage and carefully evaluate whether the injury pled was proximately caused by the

claimed RICO violations. Mohawk Indus., 465 F.3d at 1287.

      Here, the district court dismissed plaintiff Corcel’s complaint for lack of

proximate causation. We, thus, review what constitutes proximate cause in the

federal civil RICO context and then determine whether plaintiff Corcel’s complaint

alleges facts sufficient to establish proximate causation.

B.    Proximate Cause in Federal Civil RICO Cases
      For federal RICO purposes, courts evaluate proximate cause “in light of its

common-law foundations.” Hemi Grp., 559 U.S. at 9, 130 S. Ct. at 989. “When a

court evaluates a RICO claim for proximate causation, the central question it must

ask is whether the alleged violation led directly to the plaintiff’s injuries.” Anza,

547 U.S. at 461, 126 S. Ct. at 1998. Thus, proximate cause requires “some direct

relation between the injury asserted and the injurious conduct alleged.” Id. at 457,

126 S. Ct. at 1996 (quoting Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268,

112 S. Ct. 1311, 1318 (1992)) (quotation marks omitted). A link that is “too

remote,” “purely contingent,” or “indirect” is insufficient. Id. at 457, 460, 126 S.




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Ct. at 1996, 1998 (quoting Holmes, 503 U.S. at 271, 274, 112 S. Ct. at 1319, 1321)

(quotation marks omitted).

      Although a plaintiff need not show that the injurious conduct was the sole

cause of the injury asserted, proximate causation requires that the plaintiff allege

“some direct relation” between the injury asserted and the injurious conduct.

Mohawk Indus., 465 F.3d at 1287–88 (quoting Anza, 547 U.S. at 457, 126 S. Ct. at

1996). As explained by the Supreme Court, “Congress modeled § 1964(c) on the

civil-action provision of the federal antitrust laws, § 4 of the Clayton Act.” Anza,

547 U.S. at 457, 126 S. Ct. at 1996 (quotation marks and citation omitted). In both

federal RICO and federal antitrust cases, proximate cause is not the same thing as a

sole cause. Mohawk Indus., 465 F.3d at 1288 n.5 (quoting Cox v. Adm’r U.S.

Steel & Carnegie, 17 F.3d 1386, 1399 (11th Cir.) (RICO), modified on other

grounds by 30 F.3d 1347 (11th Cir. 1994)). In both types of cases, “it is enough

for the plaintiff to plead and prove that the defendant’s tortious or injurious

conduct was a substantial factor in the sequence of responsible causation.” Id.

(internal quotations marks omitted).

      In evaluating whether proximate causation exists, “courts should consider

the ‘motivating principles’ behind the directness component of the proximate-

cause standard in RICO cases.” Id. at 1288 (quoting Anza, 547 U.S. at 458, 126 S.


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Ct. at 1997) (alterations adopted). Motivating principles include (1) “the difficulty

that can arise when a court attempts to ascertain the damages caused by some

remote action”; (2) “the speculative nature of the proceedings that would follow if

[the plaintiff] were permitted to maintain its claim”; (3) whether the alleged harm

“could have resulted from factors other than [the plaintiff’s] alleged acts of fraud”;

(4) “any appreciable risk of duplicative recoveries”; and (5) whether “the

immediate victims of [the] alleged RICO violation can be expected to vindicate the

laws by pursuing their own claims.” Anza, 547 U.S. at 458–60, 126 S. Ct. at

1997–98.

      “[T]he less direct an injury is, the more difficult it becomes to ascertain the

amount of plaintiff’s damages attributable to the violation, as distinct from other,

independent factors.” Holmes, 503 U.S. at 269, 112 S. Ct. at 1318. “This

remoteness concern is heightened when RICO suits are brought by economic

competitors seeking damages for lost sales because those types of claims, ‘if left

unchecked, could blur the line between RICO and the antitrust laws.’” Mohawk

Indus., 465 F.3d at 1288 (quoting Anza, 547 U.S. at 460, 126 S. Ct. at 1998).

      With this background on proximate causation in the federal civil RICO

context in mind, we turn to the sufficiency of plaintiff Corcel’s complaint.




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C.    Allegations in Plaintiff Corcel’s Complaint
      According to plaintiff Corcel’s complaint, defendants Ferguson and LT

formed the Ferguson-LT enterprise and undertook a fraudulent scheme wherein

defendants Ferguson and LT solicited and prepared false and misleading

documents and repeatedly submitted those documents to the County for the express

purposes of (1) obtaining defendant LT’s SBE certification and (2) winning supply

contracts from the County based on the 10% SBE advantage.

      Similarly, according to plaintiff Corcel’s complaint, defendants AKA,

Ferguson, and LT formed the AKA-Ferguson-LT enterprise and executed a

fraudulent scheme by listing defendant LT as an SBE subcontractor on defendant

AKA’s construction contract bids to the County even though the defendants knew

that defendant LT was certified as a SBE only because of defendants LT and

Ferguson’s prior fraudulent actions. According to plaintiff Corcel, the three

defendants used defendant LT’s ill-gotten SBE status for the express purpose of

winning a construction contract award from the County based on the 10% SBE

advantage.

      Critically, plaintiff Corcel alleges that—if the County had not relied on the

defendants’ false and fraudulent documents and actions—the County would have




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awarded plaintiff Corcel the supply and construction contract at issue because

plaintiff Corcel was the next lowest SBE bidder.

       Given these allegations—which we must accept as true at this Rule 12(b)(6)

stage of the litigation—we conclude that plaintiff Corcel has alleged a direct

relation between its claimed injury and defendants’ federal civil RICO violations

sufficient to constitute proximate causation at this pleading stage in the

proceedings. See Mohawk Indus., 465 F.3d at 1287–88 (requiring “some direct

relation” between the injury asserted and the injurious conduct). According to the

complaint, the defendants’ scheme of knowingly misrepresenting defendant LT’s

qualifications for SBE status had the purpose and direct result of channeling

contracts to the defendants and away from the entity that would have received

those contracts (i.e., plaintiff Corcel) if the defendants had not undertaken their

fraudulent conduct. Simply put, the defendants’ alleged fraud directly caused

plaintiff Corcel to lose multiple County contracts.

      Examination of the motivating principles behind the directness component

of the proximate causation requirement in federal RICO cases bolsters this Court’s

conclusion that, as alleged, there is a direct relationship between the defendants’

actions and plaintiff Corcel’s harm. See Anza, 547 U.S. at 458–60, 126 S. Ct. at

1997–98.


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      First, as alleged, plaintiff Corcel was next in line to receive the County

contracts at issue. That is, if the defendants’ alleged SBE fraud had not occurred,

plaintiff Corcel would have been awarded the supply and construction contracts.

Based on the allegations, there are no other factors that would have prevented

plaintiff Corcel from receiving those contracts. But see id. at 459, 126 S. Ct. at

1997 (reaching different result based, in part, on the court’s determination that the

plaintiff’s “lost sales could have resulted from factors other than [the defendants’]

alleged acts of fraud”).

      Second, plaintiff Corcel’s damages should be ascertainable. For each

contract that plaintiff Corcel would have won but-for the defendants’ actions,

plaintiff Corcel may demonstrate with direct evidence the alleged profit that it

would have made in executing the contract. At this pleading stage and given the

allegations in plaintiff Corcel’s complaint, we cannot say that such damages would

be wholly speculative in nature. See id. at 458–59, 126 S. Ct. at 1997–98

(considering the relative ease of ascertaining damages and the “speculative nature”

of the proceedings required to maintain a federal civil RICO claim).

      Third, there is no appreciable risk of duplicative recoveries. See id. at 459,

126 S. Ct. at 1998 (considering “any appreciable risk of duplicative recoveries”).

As alleged, plaintiff Corcel was next in line to receive each of the County contracts


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at issue. Consequently, no other bidder would be able to recover based on the

defendants’ alleged federal RICO violations. And, the County’s possible recovery

is not duplicative of plaintiff Corcel’s recovery. As alleged, the County saved

money by awarding the contracts to the defendants instead of plaintiff Corcel.

Plaintiff Corcel was the next lowest bidder; as such, its bids were necessarily more

than the defendants’ bids. If the County had awarded the contracts to plaintiff

Corcel, the County would have paid more money than it actually paid to the

defendants. Consequently, there is no appreciable risk of duplicative recovery

here.3

         Fourth, no other immediate victims of the defendants’ alleged RICO

violations are more likely to vindicate the laws by pursuing their own claims. 4 See

id. at 460, 126 S. Ct. at 1998 (“The requirement of a direct causal connection is

especially warranted where the immediate victims of an alleged RICO violation

can be expected to vindicate the laws by pursuing their own claims.”). As a


         3
        We acknowledge that the prime contractor (and any possible subcontractors) who was
deprived business as a result of the AKA-Ferguson-LT enterprise may seek recourse similar to
that sought by plaintiff Corcel. However, in such case, any potential recovery would not be
duplicative; it would simply make all of the entities wronged by the defendants’ alleged actions
whole.
         4
        The Court notes that the prime contractor (and any possible subcontractors) on the
construction contract that is the subject of the AKA-Ferguson-LT enterprise may be motivated to
bring similar claims. However, based on the complaint, we cannot say that those entities are
more likely to vindicate the federal RICO laws through their own, separate civil actions.


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preliminary matter, plaintiff Corcel was an immediate victim of the defendants’

fraud, as plaintiff Corcel was directly harmed by the defendants’ conduct. The

County is also a victim—at least insofar as the defendants’ fraud undermined the

purposes of the County’s SBE Program by denying the County the opportunity to

award contracts to businesses that actually met its SBE requirements. Because

plaintiff Corcel’s lost opportunity for profits is more direct and quantifiable than

the subversion of the County’s SBE Program, plaintiff Corcel is the victim most

likely to attempt to vindicate the federal civil RICO laws. 5

       For all of these reasons, we conclude that plaintiff Corcel’s complaint

alleges a sufficiently direct injury, especially given the factual allegations that

directly correlate the defendants’ alleged fraud and plaintiff Corcel’s lost

opportunity to obtain the County’s business. Thus, plaintiff Corcel’s allegations

contain sufficient factual matter, accepted as true, to state federal civil RICO




       5
         The district court relied on a fact not present in plaintiff Corcel’s complaint: that the
County paid more as a result of the defendants’ fraud and was incentivized to sue. As noted
above, however, plaintiff Corcel alleged that the County paid less to the defendants than it would
have paid to plaintiff Corcel as the next lowest bidder. That is, the defendants’ alleged fraud
saved the County money. Once the County’s relative financial harm is clarified, the district
court’s conclusions—that (1) plaintiff Corcel’s suit presents a risk of duplicative recoveries and
(2) the County is better positioned to sue as the “more immediate victim” of the alleged fraud—
are faulty. While evidence may not bear out this claim, at this pleading stage, we accept the
allegations as true.


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claims that are plausible on their face. See Iqbal, 556 U.S. at 678, 129 S. Ct. at

1949.

                                V. CONCLUSION

        The district court improperly granted the defendants’ motions to dismiss

plaintiff Corcel’s federal civil RICO claims. Because the district court did not

address the defendants’ alternative bases for dismissal or plaintiff Corcel’s state

law claims, we decline to reach those issues in the first instance on appeal.

        REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




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