            Case: 11-11670   Date Filed: 01/25/2013   Page: 1 of 22

                                                                      [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                       __________________________

                              No. 11-11670
                       __________________________

                  D.C. Docket No. 3:10-cv-00422-TJC-JRK

MARK F. BAILEY, GAY L. BAILEY,
STEVEN R. BREDAHL, ANDREA P. BREDAHL,
DAVID JANKOWSKI, KEVIN CRAWFORD, et al.,

                                                           Plaintiffs-Appellants,

versus

ERG ENTERPRISES, LP,
LUBERT-ADLER MANAGEMENT COMPANY, LP,
LUBERT-ADLER REAL ESTATE FUND III, LP,
LUBERT-ADLER CAPITAL REAL ESTATE FUND III LP, et al.,

                                                         Defendants-Appellees.

                       __________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      __________________________
                             (January 25, 2013)

Before HULL, MARCUS, and COX, Circuit Judges.

COX, Circuit Judge:
              Case: 11-11670     Date Filed: 01/25/2013   Page: 2 of 22

      Plaintiffs-Appellants (the Buyers) each sought to own a piece of paradise.

To that end, they purchased undeveloped lots in a planned resort in the Bahamas.

Their purchase contracts contain a provision that requires all disputes to be

litigated in the Bahamas.      Many of the Buyers financed their purchases with

mortgage loans made by Bahamas Sales Associate, LLC (Bahamas Sales), a

mortgage lender.

      Apparently the real estate market tanked sometime after the Buyers

purchased their lots. And in May 2010, the Buyers (who had received mortgage

financing to purchase the lots) sued Bahamas Sales and others associated with

Bahamas Sales, alleging that they engaged in appraisal fraud. Additionally, all of

the Buyers sued various Ginn entities and Lubert-Adler Management Company

entities, alleging fraud related to a loan transaction that had a negative impact on

the planned resort.

      The Defendants-Appellees moved to dismiss the Buyers’ complaint for

improper venue, alleging that, under the purchase contracts, venue is proper only in

the Bahamas. The district court held that the complaint falls within the scope of

the forum-selection clause in the purchase contract. The court then applied the

doctrine of equitable estoppel to allow the Defendants-Appellees (all of which are




                                          2
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nonsignatories to the contract containing the Bahamian forum-selection clause) to

invoke the clause. The Buyers appeal the dismissal. We reverse and remand.

                                 I. Facts and Procedural History 1

         The Buyers 2 purchased lots in the Ginn Sur Mer subdivision on Grand

Bahama Island in the Bahamas from Ginn-LA West End Limited (Ginn-LA). The

marketing materials promoting Ginn Sur Mer promised many amenities, including

a twenty-story grand palace, two signature golf courses, and a mega-yacht marina.

Each Buyer entered into a purchase contract with Ginn-LA. 3                        Each contract

contains a forum-selection clause and a choice-of-law clause that requires all

disputes to be litigated in the Bahamas under Bahamian law. Specifically, each

forum-selection clause provides:


         1
        The Buyers’ complaint is the relevant pleading; because this appeal is before us at the
motion to dismiss stage, our recitation of the facts comes from the complaint. Additionally,
because we treat a dismissal based on a forum-selection clause as a question of proper venue
under Federal Rule of Civil Procedure 12(b)(3), Lipcon v. Underwriters at Lloyd’s, London, 148
F.3d 1285, 1290 (11th Cir. 1998), we also look to evidence outside the pleading, like the lot
purchase contracts and the mortgage notes, Estate of Myhra v. Royal Caribbean Cruises, Ltd.,
695 F.3d 1233, 1239 & n.22 (11th Cir. 2012).
         2
         The Buyers are Mark F. Bailey, Gay L. Bailey, Stephen R. Brehahl, Andrea P. Bredahl,
Kevin T. Crawford, David P. Jankowski, Troy A. Domnick, Lauren K. Domnick, James W.
Jackson, Bernard J. Shaughnessy, Jr., Frederick A. Reeping, Beachfront Holdings &
Investments, Ltd., Clear Reef Properties, Ltd., Edward R. Webb, Kenneth W. Liles, Patricia M.
Liles, James Josephson, William J. Andrews, Jr., Mark R. Roodvoets, Jon D. Andrews, Charles
B. Lesesne, Jerry A. Cicolani, Jr., Kris Brenneman, Susan C. Kherkher, Thomas E. Lammertsee,
Mary L. Sipski, Ronald P. Van as trustee of the Ronald P. Van Jr. Revocable Trust, and Kathy Jo
Van as trustee of the Kathy Jo Van Revocable Trust. (R.1-1 ¶¶ 5–19.)
         3
             Some Buyers purchased lots individually, while others jointly purchased lots. (R.1-1 ¶¶
5–19.)
                                                   3
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       [T]he courts of the Commonwealth (“Commonwealth Courts”) will be
       the venue for any dispute, proceeding, suit or legal action concerning
       the interpretation, construction, validity, enforcement, performance of,
       or related in any way to, this Contract or any other agreement or
       instrument executed in connection with this Contract. In the event
       any such suit or legal action is commenced by any party, the other
       parties agree, consent, and submit to the personal jurisdiction of the
       Commonwealth Courts with respect to such suit or legal action. In
       such event, each party waives any and all rights under applicable law
       or in equity to object to jurisdiction or venue of the Commonwealth
       Courts. Such jurisdiction and venue shall be exclusive of any other
       jurisdiction and venue.

(See, e.g., R.1-8 Ex. A ¶ 22.) Each choice-of-law provision states: “The local laws

of the Commonwealth, without regard to the Commonwealth’s choice of law rules,

will exclusively govern the interpretation, application, enforcement, performance

of, and any other matter related to, this Contract.” (Id.) Only the Buyers and

Ginn-LA (the seller) signed the lot purchase contracts.

       Many of the Buyers applied for and received mortgage financing from

Bahamas Sales.4 The mortgage notes also contain forum-selection clauses and

choice-of-law clauses that each require disputes to be litigated in Florida under

Florida law. The relevant clauses state:




       4
         Mark F. Bailey, Gay L. Bailey, Stephen R. Bredahl, Andrea P. Bredahl, Kevin T.
Crawford, David P. Jankowski, Troy A. Domnick, Lauren K. Domnick, James W. Jackson,
Bernard J. Shaughnessy, Jr., Frederick A. Reeping, Clear Reef Properties, Ltd., and Beachfront
Holdings & Investments, Ltd. received financing from Bahamas Sales. (R.1-1 at 145–146.)
                                              4
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      This Note and the rights and obligations of Borrower and Lender shall
      be governed by and interpreted in accordance with the law of the State
      of Florida. In any litigation in connection with or to enforce this Note
      or any endorsement or guaranty of this Note or any loan documents,
      obligors, and each of them, irrevocably consent to and confer personal
      jurisdiction on the courts of the State of Florida or the United States
      located within the State of Florida and expressly waive any objections
      as to venue in any such courts.

(See, e.g., R.3-31 Ex. A ¶ 11.) Only the Buyers and Bahamas Sales are parties to

the mortgage notes.

      In May 2010, the Buyers who received financing from Bahamas Sales sued

Bahamas Sales, Ginn Financial Services (the parent company of Bahama Sales),

Edward R. Ginn, III (an officer of Bahamas Sales), William McCracken (an officer

of Ginn Financial Services)5, and Ginn Title Services (together, the Mortgage

Entities), alleging that the Mortgage Entities participated in a scheme to produce

fraudulent lot appraisals in violation of the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961–1968. Specifically, the Buyers

allege that the Mortgage Entities violated § 1962(c) and § 1962(d). The complaint

seeks rescission of the notes and mortgages and restitution of payments made on

the notes.




      5
          William McCracken was dismissed pursuant to a stipulation of dismissal. (R. 4-41.)
                                             5
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       The appraisal-fraud claims allege that the Mortgage Entities fraudulently

inflated the appraisals of their lots and used the inflated appraisals to set the

amounts on the mortgage notes. Because of the inflated appraisals, the Buyers

allege that they closed on the mortgage notes for amounts that far exceeded the

market value of the lots.         The appraisal-fraud claims assume that if proper

appraisals had been done and the lots appraised for amounts lower than their sales

prices, the Buyers would not have closed on the lots. Further, if proper appraisals

had been done and the lots appraised for values less than their purchase prices, the

Buyers claim that they could have simply walked away from the lot purchase

contracts and paid only liquidated damages for their failure to close.

       All of the Buyers also brought claims against other Ginn entities and Lubert-

Adler Management Company entities (together, the Credit Suisse Entities)6

alleging fraud related to a loan transaction (the Credit Suisse fraud). The Buyers

allege that the Credit Suisse Entities violated RICO § 1962(c) and § 1962(d).




       6
         The Credit Suisse Entities are Lubert-Adler Management Company; Lubert-Adler Real
Estate Fund III, LP; Lubert-Adler Real Estate Parallel Fund III, LP; Lubert-Adler Capital Real
Estate Fund III, LP; Lubert-Adler Real Estate Fund IV, LP; Lubert-Adler Real Estate Parallel
Fund IV, LP; Lubert-Adler Capital Real Estate Fund IV, LP; Lubert-Adler Real Estate Fund V,
LP; Lubert-Adler Real Estate Parallel Fund V, LP; Lubert-Adler Capital Real Estate Fund V, LP;
ERG Enterprises; Ginn West End; Ginn-LA West End LLLP; Ginn-LA CS Borrower; Ginn-LA
Conduit Lender; and, Ginn-LA OBB. (R.1-1 at 143–44.)
                                               6
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      The Buyers’ Credit Suisse fraud claims allege that before the Buyers signed

the lot purchase contracts, the Credit Suisse Entities entered into an arrangement to

obtain a $675 million loan from Credit Suisse, a financial-services company. The

$675 million loan was secured by various ownership interests in the parent

company of Ginn-LA (the Ginn Sur Mer developer) and the land from five Ginn

resort communities, including the Ginn Sur Mer subdivision.          The repayment

schedule on the loan required that all of the cash flow produced by the five Ginn

resort communities be used to pay the Credit Suisse loan. As a result, Ginn-LA

could not complete the marketed, but not contractually required, amenities. The

Buyers further allege that if they had known about the Credit Suisse loan, they

would not have purchased the Ginn Sur Mer lots.

      Rather than answering the Buyers’ complaint, the Mortgage Entities and

Credit Suisse Entities filed motions to dismiss asserting that venue is only proper

in the Bahamas as specified under the forum-selection clauses in the lot purchase

contracts. The district court agreed. The court held that the Buyers’ claims fall

within the scope of the lot purchase contracts’ forum-selection clauses. It also held

that the Mortgage Entities and Credit Suisse Entities, though not signatories to the

lot purchase contracts, could nevertheless enforce the forum-selection clauses

under the doctrine of equitable estoppel. We reverse and remand.


                                         7
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                               II. Standards of Review

       The enforceability of a forum-selection clause is a question of law that we

review de novo. Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1329–30

(11th Cir. 2011). Further, whether the doctrine of equitable estoppel should apply

is a question of law that we review de novo. Sunkist Soft Drinks, Inc. v. Sunkist

Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993).

                                   III. Discussion

       This appeal presents three issues: (A) whether Bahamas Sales agreed to

venue in Florida under the mortgage notes; (B) whether the Buyers’ appraisal-

fraud claims and Credit Suisse fraud claims fall within the scope of the lot

purchase contracts’ forum-selection clauses; and (C) whether the Mortgage Entities

and Credit Suisse Entities, as nonsignatories to the lot purchase contracts, can

invoke the lot purchase contracts’ forum-selection clauses. We address each issue

in turn.

                                         A.

       The Buyers argue that the mortgage notes’ forum-selection clauses bind

Bahamas Sales as a party to the notes. This argument is foreclosed by our recent

decision in Bahamas Sales Assoc., LLC v. Byers, 11th Cir., ___ F.3d ___ (No. 11-

11664, Dec. 4, 2012).     In Byers, we held that the mortgage notes only bind


                                         8
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“obligors” under the notes, and Bahamas Sales is not an obligor because it is the

party to which an obligation is owed.

                                                 B.

       The Buyers next argue that their appraisal-fraud claims and Credit Suisse

fraud claims do not fall within the scope of the lot purchase contracts’ forum-

selection clauses.7       We look to the nature of each of the Buyers’ claims to

determine if the claim falls within the scope of the lot purchase contracts’ forum-

selection clauses. Becker v. Davis, 491 F.3d 1292, 1300 (11th Cir. 2007).

       Both the Mortgage Entities and the Credit Suisse Entities contend that the

Buyers’ claims fall within the scope of the lot purchase contracts’ forum-selection

clauses.     Our decision in Byers, however, forecloses the Mortgage Entities’

argument.      We held in Byers that the appraisal-fraud claims (identical to the

appraisal-fraud claims in this case) do not fall within the scope of the forum-

selection clauses. As a result, we need only address whether the Credit Suisse

fraud claims fall within the scope of the clauses.

       The purchase contracts’ forum-selection clauses state, in relevant part, that:


       7
          In their brief, the Buyers simply argue that their claims do not relate to the lot purchase
contracts and therefore that the district court erred by applying the “related to” analysis to the
complaint. The district court only applied this “related to” analysis when it concluded that the
Buyers’ appraisal-fraud claims and Credit Suisse fraud claims fall within the scope of the lot
purchase contracts’ forum-selection clauses. Thus, we understand the Buyers’ argument to be
that their claims do not fall within the scope of the lot purchase contracts.
                                                   9
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      [T]he courts of the Commonwealth [of the Bahamas] . . . will be the
      venue for any dispute, proceeding, suit or legal action concerning the
      interpretation, construction, validity, enforcement, performance of, or
      related in any way to, [the lot purchase contract] or any other
      agreement or instrument executed in connection with [the lot purchase
      contract].

(See, e.g., R.1-8 Ex. A ¶ 22.) We must determine whether the Credit Suisse claims

are “related in any way” to the lot purchase contracts or any other agreements

executed in connection with the lot purchase contracts.

      A claim “relates to” a contract when “the dispute occurs as a fairly direct

result of the performance of contractual duties.” Telecom Italia, SpA v. Wholesale

Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001). Moreover, the fact that a

dispute could not have arisen but for an agreement does not mean that the dispute

necessarily “relates to” that agreement. Int’l Underwriters AG v. Triple I: Int’l

Invs., Inc., 533 F.3d 1342, 1347 (11th Cir. 2008). The phrase “‘related to’ marks a

boundary indicating some direct relationship.” Doe v. Princess Cruise Lines, Ltd.,

657 F.3d 1204, 1218 (11th Cir. 2011). Requiring a direct relationship between the

claim and the contract is necessary because, “[i]f ‘relate to’ were taken to extend to

the furthest stretch of its indeterminacy, it would have no limiting purpose because

really, universally, relations stop nowhere.” Id. at 1218–19 (quoting N.Y. State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,

655, 115 S. Ct. 1671, 1677 (1995)) (internal quotation marks omitted).
                                         10
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      In this case, the district court concluded that the Credit Suisse claims fall

within the scope of the lot purchase contracts’ forum-selection clauses because (1)

the Buyers’ claims arise out of a relationship that was established by the lot

purchase contracts, (2) the Buyers would not have any claims had they not entered

into the lot purchase contracts, and (3) the Buyers’ claims are similar to the claims

in Liles v. Ginn-LA West End, Ltd., where we held that the claims fell within the

scope of the lot purchase contracts’ forum-selection clauses, 631 F.3d 1242 (11th

Cir. 2011).

      For the Credit Suisse claims to fall within the scope of the purchase

contracts’ forum-selection clauses, the claims must have a direct relationship to the

lot purchase contracts. They do not. The dispute between the Buyers and the

Credit Suisse Entities is not a “fairly direct result of the performance of contractual

duties” under the lot purchase contracts. See Telecom Italia, 248 F.3d at 1116.

The Buyers do not allege that the Credit Suisse Entities interfered with Ginn-LA’s

performance obligations under the lot purchase contracts.

      Moreover, the lot purchase contracts did not create the relationships between

the parties. The only parties to the lot purchase contracts are the Buyers and Ginn-

LA. The Buyers do not have a contractual relationship with any of the Credit

Suisse Entities. And although the claims would not exist but for the Buyers


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purchasing the Ginn Sur Mer lots, this but-for relationship does not mean that the

claims relate to the lot purchase contracts.           The claims must result from the

performance of duties under the lot purchase contracts; the Credit Suisse claims do

not. In fact, the Buyers would still be able to bring their Credit Suisse fraud claims

even if Ginn-LA had performed all of its obligations under the lot purchase

contracts.

       Furthermore, although Liles involved the same lot purchase contracts at

issue here, the Buyers’ claims differ from the claims alleged in Liles. In Liles, the

plaintiffs alleged that the defendants (including Ginn-LA) violated the Interstate

Land Sales Full Disclosure Act and fraudulently failed to disclose information

relating to the titles to the properties. 631 F.3d at 1243. These allegations directly

related to the lot purchase contracts. The dispute in Liles occurred as a result of the

defendants’ alleged failure to perform various contractual duties, including the

duty to adhere to the Interstate Land Sales Full Disclosure Act and the duty to

provide marketable titles to the lots.           The lot purchase contracts expressly

incorporate both of those duties.8 Here, as explained above, the Credit Suisse

claims do not relate to the performance of duties under the lot purchase contracts.




       8
         As we pointed out in Liles, the parties specifically incorporated the Interstate Land
Sales Full Disclosure Act’s obligations and rights into the lot purchase contracts. 631 F.3d at
                                              12
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       The Credit Suisse Entities contend that the Credit Suisse fraud claims fall

within the scope of the lot purchase contracts’ forum-selection clauses because (1)

claims of fraudulent inducement necessarily relate to the allegedly fraudulently

induced contracts and (2) the Credit Suisse claims relate to “instruments executed

in connection” with the lot purchase contracts.9

       First, we reject the Credit Suisse Entities’ argument that the Buyers allege

fraudulent inducement of the lot purchase contracts and therefore that the claims

relate to the contract. While we agree that claims of fraudulent inducement can

relate to allegedly fraudulently induced contracts, see Prima Paint Corp. v. Flood

& Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801 (1967), the Buyers do not allege

that the Credit Suisse Entities fraudulently induced them to enter into the lot

purchase contracts. And actually, it would be a rather nonsensical claim for the

Buyers to suggest that the Credit Suisse Entities—which they did not know existed

until after they purchased their Ginn Sur Mer lots—fraudulently induced them to

purchase the lots.




1252 n.17. Further, the lot purchase contracts obligate Ginn-LA to provide marketable title.
(See, e.g., R.1-8 Ex. A ¶¶ 2, 5.)
       9
        The Credit Suisse Entities also argue that Credit Suisse fraud claims relate to the lot
purchase contracts because the Buyers seek rescission of their lot purchase contracts. This
argument is unconvincing, however, because the Buyers dropped their rescission claim. (R. 3-33
at 11.)
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       Second, the Credit Suisse Entities’ argument that the Credit Suisse fraud

claims fall within the scope of the forum-selection clauses because they are

“related in any way to . . . any other agreement or instrument executed in

connection with [the lot purchase contracts]” does not persuade us. The Credit

Suisse claims have nothing to do with the mortgage notes, and the Buyers do not

allege that the Credit Suisse fraud affected the notes. Instead, they allege that the

Credit Suisse Entities used the Credit Suisse loan to “loot” the Ginn Sur Mer

subdivision and, as a result, made it impossible for Ginn-LA to complete the

marketed amenities to the subdivision. 10

       Because the Credit Suisse fraud claims do not have a direct relationship with

the lot purchase contracts, the district court erred in concluding that the Credit

Suisse fraud claims fall within the scope of the lot purchase contracts’ forum-

selection clauses.

                                                 C.

       Having concluded that the Buyers’ appraisal-fraud and Credit Suisse fraud

claims do not fall within the scope of the forum-selection clauses, we also address



       10
          The Credit Suisse Entities argue that reading the phrase “related to” as requiring the
dispute to occur as a direct result of the performance of contractual duties strips the phrase of its
meaning. But this argument is contrary to our precedent that says a claim relates to a contract
when a direct relationship between the claim and the performance of contractual duties exists.
See Triple I, 533 F.3d at 1349; Telecom Italia, 248 F.3d at 1116.
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the Buyers’ final argument. They argue that the district court incorrectly applied

equitable estoppel to allow the Mortgage Entities and the Credit Suisse Entities to

invoke the lot purchase contracts’ forum-selection clauses. The Buyers assert that

their appraisal-fraud claims and Credit Suisse fraud claims do not rely on the lot

purchase contracts and that, for this reason, the doctrine of equitable estoppel

cannot properly be applied.

      We hold in this case, as we held in Byers, that the district court erred in

allowing the Mortgage Entities to invoke the lot purchase contracts’ forum-

selection clauses under the doctrine of equitable estoppel. The Buyers’ appraisal-

fraud claims do not allege concerted misconduct between the Mortgage Entities

and Ginn-LA. Nor do the claims rely on the lot purchase contracts.

      We write only to address whether the district court erred in applying

equitable estoppel to allow the Credit Suisse Entities to enforce the forum-selection

clauses.

      First, we note that the parties litigated this case on the assumption that

federal common law applies to the question of whether equitable estoppel should

apply. 11 All of the parties briefed and argued this case under federal common law




      11
        The parties do not suggest that there is any significant difference between federal
common law and Florida law concerning equitable estoppel.
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as to the equitable estoppel issue. Therefore, we assume that federal common law

applies in this case. See Chase Manhattan Bank v. Rood, 698 F.2d 435, 436 n.1

(11th Cir. 1983) (assuming Florida law is the applicable substantive law in the case

because both parties briefed and argued Florida law on appeal).

      Generally, “one who is not a party to an agreement cannot enforce its terms

against one who is a party.” Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1167

(11th Cir. 2011). There are, however, exceptions to this rule. And the doctrine of

equitable estoppel is one of them.

      Equitable estoppel allows a nonsignatory to enforce the provisions of a

contract against a signatory in two circumstances: (1) when the signatory to the

contract relies on the terms of the contract to assert his or her claims against the

nonsignatory and (2) when the signatory raises allegations of interdependent and

concerted misconduct by both the nonsignatory and one or more of the signatories

to the contract. MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.

1999). In essence, equitable estoppel precludes a party from claiming the benefits

of some of the provisions of a contract while simultaneously attempting to avoid

the burdens that some other provisions of the contract impose. Blinco v. Green

Tree Servicing LLC, 400 F.3d 1308, 1312 (11th Cir. 2005). A forum-selection

clause would be one such burden.


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      The doctrine of equitable estoppel is grounded in fairness. As we noted in In

re Humana Inc. Managed Care Litigation:

      In all cases, the lynchpin for equitable estoppel is equity, and the point
      of applying it to compel [application of a contractual provision] is to
      prevent a situation that would fly in the face of fairness. The purpose
      of the doctrine is to prevent a plaintiff from, in effect, trying to have
      his cake and eat it too; that is, from relying on the contract when it
      works to his advantage by establishing the claim, and repudiating it
      when it works to his disadvantage . . . . The plaintiff’s actual
      depend[e]nce on the underlying contract in making out the claim
      against the nonsignatory defendant is therefore always the sine qua
      non of an appropriate situation for applying equitable estoppel.

285 F.3d 971, 976 (11th Cir. 2002) (citations omitted) (internal quotation marks

omitted), rev’d on other grounds sub nom. PacifiCare Health Sys., Inc. v. Book,

538 U.S. 401, 123 S. Ct. 1531 (2003).

      The Buyers’ complaint does not allege concerted misconduct between the

Credit Suisse Entities and Ginn-LA (the developer and signatory to the lot

purchase contracts).    Nevertheless, the Credit Suisse Entities argue that the

concerted-misconduct circumstance applies here because the Credit Suisse fraud

claims depend on conduct between the Credit Suisse Entities and Ginn-LA. That

is, the Credit Suisse Entities assert that Ginn-LA’s sale of the Ginn Sur Mer lots

was a “necessary component” of the Credit Suisse scheme. According to the

Credit Suisse Entities, the fact that Ginn-LA entered into lot purchase contracts



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with the Buyers “is fundamental to and inextricably connected with” the Credit

Suisse Entities’ conduct in the Credit Suisse fraud.

       We have noted, however, that the application of equitable estoppel is

appropriate when the signatory “raises allegations of substantially interdependent

and concerted misconduct by both the nonsignatory and one or more of the

signatories to the contract.” MS Dealer, 177 F.3d at 947. The Buyers neither

allege concerted misconduct between the Credit Suisse Entities and Ginn-LA in

their complaint nor name Ginn-LA as a party to this action. 12 Thus, the Credit

Suisse Entities must look only to the first circumstance in which the doctrine of

equitable estoppel applies. We therefore limit our inquiry to that circumstance—




       12
           The Credit Suisse Entities assert that simply because the Buyers did not name Ginn-LA
as a party does not mean that the Buyers do not allege concerted misconduct. The Entities cite
Choctaw Generation Ltd. v. Am. Home Assurance Co., 271 F.3d 403 (2d Cir. 2001), for the
proposition that nonsignatory defendants can invoke a contractual clause under the concerted-
misconduct prong of MS Dealer even when the plaintiff does not name a signatory as a
defendant. But a close reading of Choctaw reveals no such proposition. In Choctaw, the court
concluded that the defendant could enforce an arbitration clause in a contract it did not sign
because the plaintiff’s claims “are intertwined with the agreement.” Id. at 404. The Second
Circuit, applying an analysis that looked to whether the plaintiff’s claims related to the dispute
between the two signatories to the contract, determined that the nonsignatory defendant could
enforce the provision under the doctrine of equitable estoppel. Id. at 406–08. Choctaw tells us
very little about whether a plaintiff alleges concerted misconduct when the plaintiff does not
allege misconduct between the nonsignatories and the signatory in the complaint and does not
name the signatory as a party. Because the Buyers do not name Ginn-LA as a party and do not
allege that the Credit Suisse Entities acted in concert with Ginn-LA to engage in the Credit
Suisse fraud, the second circumstance in which equitable estoppel applies is not implicated.
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whether the Buyers rely on the terms of the lot purchase contracts in asserting their

Credit Suisse fraud claims.

      A party relies on the terms of a contract when the party needs the underlying

contract to make out his or her claim against the nonsignatory. In re Humana, 285

F.3d at 976. The signatory must attempt to hold the nonsignatory to the terms of

the contract. Becker, 491 F.3d at 1300.

      A but-for relationship between the claims and the contract “alone is not

enough to warrant equitable estoppel.” Lawson, 648 F.3d at 1174. For a party’s

claims to rely on a contract, the party must actually depend on the underlying

contract to assert the claims. In re Humana, 285 F.3d at 976. A simple but-for

relationship does not constitute the actual dependence on the underlying contract

that equitable estoppel requires. Scant authority exists that deals with this precise

issue. Our view, however, comports with the view of two of our sister circuits.

See Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 449 F. App’x 704, 709

(10th Cir. 2011) (per curiam) (“For a plaintiff’s claims to rely on the contract

containing the arbitration provision, the contract must form the legal basis of those

claims; it is not enough that the contract is factually significant to the plaintiff’s

claims or has a ‘but-for’ relationship with them.”); Brantley v. Republic Mortg. Ins.

Co., 424 F.3d 392, 396 (4th Cir. 2005) (“The district court correctly found that the


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mere existence of a loan transaction requiring plaintiffs to obtain mortgage

insurance cannot be the basis for finding their federal statutory claims . . . to be

intertwined with that contract.”). And the parties cite no precedent to the contrary.

       Because the application of equitable estoppel is not a “rigid test, and each

case turns on its facts,” In re Humana, 285 F.3d at 976, we now turn to the facts of

this case.

       The Buyers allege that the Credit Suisse Entities fraudulently concealed the

$675 million dollar loan from them.           They allege that the Credit Suisse Entities

“looted” the Ginn Sur Mer subdivision when the Credit Suisse Entities entered into

the Credit Suisse loan and used the Ginn Sur Mer subdivision as collateral. As a

result of the scheme, they allege that Ginn-LA could not complete the marketed

amenities. This loan and the allegedly fraudulent scheme took place before any of

the Buyers purchased their lots.

        The Credit Suisse Entities argue that the Credit Suisse claims rely on the lot

purchase contracts because if the Buyers had not entered into the purchase

contracts, they would not have suffered damages from the alleged fraud. 13 As




       13
           The Entities also argue that the claims rely on the lot purchase contracts because the
Buyers seek rescission of the lot purchase contracts. But the Buyers do not seek rescission of the
lot purchase contracts. They dropped their request for rescission on September 13, 2010. (R.3-
33 at 11.)
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previously noted, however, a but-for relationship between the lot purchase

contracts and the claims is not enough to warrant the application of equitable

estoppel.

      The Credit Suisse Entities further contend that Liles forecloses the Buyers’

argument that the claims do not rely on the lot purchase contracts. 631 F.3d at

1243. But Liles is distinguishable. As we said in Byers, the plaintiffs in Liles

relied on the lot purchase contracts to make out their claims and therefore the court

correctly applied equitable estoppel to allow the nonsignatories to invoke the

forum-selection clauses. Without the lot purchase contracts, the plaintiffs would

have been unable to bring their claims.

      Here, the Buyers’ Credit Suisse fraud claims do not rely on the lot purchase

contracts. The Buyers do not seek to hold the Credit Suisse Entities to the terms of

the lot purchase contracts. The Buyers simply allege that they could not benefit

from the marketed amenities (which are not required under the lot purchase

contracts) because of the Credit Suisse fraud. Additionally, the Buyers do not rely

on any terms of the lot purchase contracts to establish the liability of the Credit

Suisse Entities. It would be rather puzzling to say that the Credit Suisse fraud

claims rely on the lot purchase contracts when the alleged fraud occurred before

any of the Buyers purchased their lots.


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       Because the Credit Suisse fraud claims do not rely on the lot purchase

contracts, we hold that the district court erred in applying the doctrine of equitable

estoppel to allow the Credit Suisse Entities to invoke the lot purchase contracts’

forum-selection clauses.

                                            IV. Conclusion14

       For these reasons, we hold that the district court erred when it determined

that the Buyers’ claims fall within the scope of the lot purchase contracts’ forum-

selection clauses. We also hold that the court erred in applying equitable estoppel

to allow the Mortgage Entities and the Credit Suisse Entities (nonsignatories to the

lot purchase contracts) to invoke the lot purchase contracts’ forum-selection

clauses.     Accordingly, we reverse the district court’s judgment granting the

motions to dismiss for improper venue and remand for proceedings consistent with

this opinion.

       REVERSED AND REMANDED.



       14
            The Lubert-Adler entities (some of the Credit Suisse Entities) argue that the Buyers
failed to satisfy the pleading requirements for their RICO claims in violation of Federal Rule of
Civil Procedure 9(b). Additionally, they argue that the Buyers have failed to assert facts
showing that Lubert-Adler’s actions proximately caused the Buyers’ harm. Because the district
court has not addressed these issues, we prefer to leave them to the district court to address in the
first instance.
       Finally, to the extent that the Ginn entities argue that the Buyers failed to properly plead
their RICO claims, we decline to address the argument because the district court has not yet
ruled on the issue. Again, we prefer to leave the issue for the district court.
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