# Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co.

> District Court, S.D. Florida · July 26, 2004 · 336 F. Supp. 2d 1239

URL: https://www.frixlaw.com/law-library/cases/2526185

## Case

- **Full name:** FLORIDA EVERGREEN FOLIAGE and Louis Chang, Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY, a Delaware Corporation, Defendant
- **Court:** District Court, S.D. Florida
- **Decided:** July 26, 2004
- **Citations:** 336 F. Supp. 2d 1239; 2004 U.S. Dist. LEXIS 19264
- **Precedential status:** Published
- **Opinion:** Opinion by Gold
- **Judges:** Gold
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2526185

## How later opinions describe it (automated extraction)

- holding that the plaintiff failed to allege RICO claims involving a distinct enterprise where alleged enterprise consisted of corporation, employees, outside counsel, and agents and consultants
- holding that a plaintiff cannot maintain “an independent action for damages [for fraud upon the court] in a court that is not the one in which the alleged fraud was committed”
- holding that the distinctiveness requirement was not met where alleged enterprise consisted of corporation, employees, outside counsel, and agents and consultants
- discussing that the distinctiveness requirement was not met where an alleged “enterprise” consisted of corporation, employees, outside counsel, and agents and consultants

## Opinion text

OMNIBUS ORDER
GOLD, District Judge.
This Cause is before the Court upon the following motions: (1) Motion to Amend (DE # s 406, 407)
1
filed on November 10, 2003 and the Corrigenda to the Motion to Amend (DE #409) filed on December 1, 2003 by Plaintiffs in Case Nos. 98-2242, 98-2243, 98-2244, 98-2245, 98-2246, 98-2247, 98-2248, 98-2249, 98-2254, 99-0336, 99-2307, 99-2308, 99-2309, 99-2310, GO-2771, 00-2772, and 00-2773 (collectively “Plaintiff-Growers”
2
), (2) the Motion to Amend (Case No. 97-0059,
3
DE #325)
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filed on March 9, 2004 by Plaintiff Mazzoni Farms (former Case No. 97-0062) and Plaintiff Jack Martin Greenhouses (former Case No. 97-0063) (collectively “Ferraro Plaintiffs”), (3) DuPont’s Motion for Summary Judgment (DE # 416, filed January 13, 2004) dismissing with prejudice all settlement fraud claims and defenses, (4) DuPont’s Motion for Summary Judgment (DE # 418, filed January 13, 2004) on issue of breach of settlement agreement, (5) Plaintiff-Growers’ Cross-Motion for Summary Judgment (DE # 445, filed April 20, 2004), (6) Ferraro Plaintiffs’ Cross-Motion and Memorandum of Law in Support of Summary Judgment (DE # s 453, 454, filed April 21, 2004) dismissing DuPont’s counterclaims, (7) Searcy Denney Growers’ Cross-Motion for Summary Judgment (DE #436, filed April 19, 2004), (8) the Motions to Dismiss and Memoranda of Law in Support of Motion to Dismiss (Case No. 99-7217, DE # s 345, 346; Case No. 99-7228, DE # s 344, 345; Case No. 99-7229, DE # s 344, 345) filed on January 27, 2004 by the Defendants in Case Nos. 99-7217, 99-7228, 99-7229 (collectively “Ferraro Defendants”)
4
, (9) the Motion to Amend Answer (Case No. 99-7038, DE # 432) filed on March 8, 2004 by the Plaintiffs in Case Nos. 99-7038, 99-7039, 99-7040, 99-7041, 99-7042, 99-7043 (collectively “Searcy Denney Growers” or “Searcy Denney”), and (10) DuPont’s Motion for Summary Judgment against Defendant DeLuca International, Inc. (“DeLuca”)
5
(Case No. 99-7217, DE # 366, filed April 12, 2004). United States Magistrate Judge Andrea M. Simonton held a case management conference on February 18, 2004 and subsequently issued a Report Re: Case Management Conference (“Report”) (DE # 444, filed March 26, 2004) which set forth a schedule making the aforementioned Motions ripe by June 4, 2004. Oral Argument regarding these Motions was held on June 25, 2004.
6
Upon review of the parties’ arguments, the record, applicable statutes, and case law, the Motions to Amend the Complaints are DENIED, DuPont’s Motion for Summary Judgment as to the settlement fraud claims is GRANTED, DuPont’s Motion for Summary Judgment as to breach of settlement is DENIED, the Growers’ Cross-Motions for Summary Judgment is GRANTED, and Ferraro Defendants’ Motion to Dismiss is GRANTED. Accordingly, these cases are CLOSED, and the remaining Motions are DENIED AS MOOT. Because this Omnibus Order involves several pending matters in twenty-nine different cases, I have attached as Appendix I a table of contents outlining the Order.
BACKGROUND
I described the background of these cases in my previous Orders in Case No. 98-2256, and those Orders are incorporated herein by reference.
Florida Evergreen Foliage v. E.I. Du Pont De Nemours & Co.,
135 F.Supp.2d. 1271 (S.D.Fla. 2001)
(“Florida Evergeen I”),
af
f'd, Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,
341 F.3d 1292 (11th Cir.2003)
*1247
(“Green Leaf”); Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co.,
165 F.Supp.2d. 1345 (S.D.Fla.2001)
(“Florida Evergreen II
”),
aff'd, Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,
341 F.3d 1292 (11th Cir.2003). This Background also recites from the Eleventh Circuit’s decision
Green Leaf
affirming those Orders. After discussing these previous decisions, I will discuss the pending claims regarding the different sets of growers. Finally, I will briefly summarize portions of oral argument during which the parties provided me with further background regarding the matters that are essentially at issue in this case.
I.
Florida Evergreen I and II and Green Leaf
In
Florida Evergreen I
and
II
and in
Green Leaf,
DuPont moved for judgment on the pleadings against Plaintiffs in Case No. 98-2256. Plaintiffs’ claims arise out of a prior lawsuit filed in Florida state court in 1992, in which Plaintiffs alleged products liability based on property damage caused by DuPont’s fungicide Benlate and actual fraud claims based on DuPont’s alleged concealment of Benlate’s defects (the “Underlying Lawsuit”). In 1994, Plaintiffs settled these underlying claims and eventually dismissed their lawsuit with prejudice.
Plaintiffs in Case No. 98-2256 then filed the instant action, alleging that during the course of the litigation of the Underlying Lawsuit, DuPont wrongfully, illegally, and fraudulently withheld from discovery vital scientific data and information that DuPont was under an obligation to produce in the Underlying Lawsuit and in other related Benlate litigation being conducted simultaneously in other courts, which Plaintiffs’ attorneys were monitoring, and gave false testimony in other Benlate cases about Benlate’s alleged defects. Plaintiffs alleged that DuPont withheld the information and made false statements in the implementation of a scheme to defraud Plaintiffs and others who had used Benlate and suffered resulting damage. As a result of the scheme and fraud, Plaintiffs alleged that they were induced to settle the Underlying Lawsuit for less money than they would have otherwise insisted upon and been able to obtain.
Although Plaintiffs accepted and kept the settlement monies, affirming the settlement agreement, they filed an action against DuPont alleging the following thirteen claims for relief: (1) fraud, (2) intentional nondisclosure of material facts, (3) fraudulent inducement to settle, (4) fraud on the court under Federal Rule of Civil Procedure 60(b), (5) rescission and damages for fraud, (6) racketeering in violation of 18 U.S.C. § 1962 (c), (7) violation of 18 U.S.C. § 1962 (d) by conspiracy to violate 18 U.S.C. § 1962 (c), (8) conspiracy, (9) abuse of process, (10) infliction of emotional distress, (11) interference with prospective economic advantage, (12) spoliation of evidence, and (13) violation of the Florida Deceptive and Unfair Trade Practices Act. I dismissed these claims in two orders and entered judgment in favor of DuPont. I also denied Plaintiffs’ Motion to Amend the Complaint and denied the remaining Plaintiff-Growers’ Motions to Amend without Prejudice. Plaintiffs in Case No. 98-2256 appealed the two Orders separately. The Eleventh Circuit consolidated the appeals and affirmed my Orders.
II. Pending Motions
The Motions that are pending before me involve five sets of growers: (1) Plaintiff-Growers, (2) Ferraro Plaintiffs, (3) Searcy Denney Growers, and (4) the Ferraro Defendants. I will discuss each set of growers.
A. Plaintiff-Growers: Background and Pending Motions
With the exception of Plaintiff-Growers
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who filed their complaints in 2000
7
, Plaintiff-Growers’ First Amended Complaint contains thirteen claims for relief: (1) fraud, (2) intentional nondisclosure of material facts, (3) fraudulent inducement to settle, (4) fraud on the court under Federal Rule of Civil Procedure 60(b), (5) rescission and damages for fraud, (6) racketeering in violation of 18 U.S.C. § 1962 (c), (7) violation of 18 U.S.C. § 1962 (d) by conspiracy to violate 18 U.S.C. § 1962 (c), (8) conspiracy, (9) abuse of process, (10) infliction of emotional distress, (11) interference with prospective economic advantage, (12) spoliation of evidence and (13) violation of the Florida Deceptive and Unfair Trade Practices Act. (Report at 8). DuPont has filed its Answers and Counterclaims against all grower Plaintiffs, asserting claims for breach of the settlement agreement, specific performance, injunctive relief, reformation, and restitution.
8
(Id.).
Plaintiff-Growers have raised numerous defenses and affirmative defenses to the Counterclaims, including res judicata, collateral estoppel, unclean hands, fraud, failure to perform excused by DuPont’s breach, waiver, estoppel, and unconsciona-bility. (Report at 8-9).
All cases, except Case No. 98-2256,
9
have pending motions for leave to file a proposed Second Amended Complaint.
(Id.).
Prior to a status conference before me on January 30, 2004, DuPont filed an initial memorandum in opposition to these motions.
(Id.)
Thereafter, pursuant to the direction received at that status conference, DuPont sought and was granted leave to file a supplemental response which would fully address the merits of the proposed Second Amended Complaint, addressing all issues which would be raised in a Motion to Dismiss if the Amended Complaint were permitted.
(Id.).
DuPont has filed Motions for Summary Judgment against Plaintiff-Growers regarding its breach of settlement counterclaim and the settlement fraud claims.
10
(Id.).
Plaintiff-Growers assert a Cross-Motion for Summary Judgment.
B. Ferraro Plaintiffs: Background and Pending Motions
Mazzoni Farms and Jack Martin Greenhouses are the only Plaintiffs remaining from the seven cases that were filed in 1997. These cases were initially filed in state court against DuPont, and were then removed to this Court. (Report at 5). Plaintiffs filed one-count Complaints alleging fraud in connection with the settlement of their underlying claims with DuPont
(Id.).
DuPont answered these Complaints, and DuPont filed a two-count counterclaim for breach of the settlement agreement and restitution.
(Id.).
Plaintiffs replied, asserting that the counterclaims are barred by fraud, fraud in the inducement, misrepresentation, failure to bargain in
*1249
good faith and duress in formation of the settlement.
(Id.).
Plaintiffs seek to amend their complaints. DuPont has filed Motions for Summary Judgment regarding breach of the settlement agreement and fraud in these cases. Ferraro Plaintiffs assert their own Cross-Motion for Summary Judgment.
C. Searcy Denney Growers: Background and Pending Motions
In the remaining cases, DuPont has filed First Amended Complaints which contain two counts alleging Breach of Settlement Agreement (Count 1) and Restitution (Count 2). (Report at 11). The defendants in these cases are growers who have filed cases in state court similar to the complaints pending in federal court in the groups described above.
(Id.).
These growers were all represented by the Malone firm in their underlying lawsuits.
(Id.).
Searcy Denney Growers have filed Answers which raise the following defenses: this matter should be stayed pending resolution of the state cases; there was no release of these claims; there was no contemplation or consideration of release of these claims; there is no cognizable claim for restitution, and estoppel prevents these claims.
(Id.).
Counsel for the Searcy Denney Growers specifically advised Magistrate Judge Simonton that there is no fraud defense asserted, nor does he intend to assert one.
(Id.
at 11-12).
The following motions are pending with respect to these growers. Searcy Denney has filed a Motion to Amend Answer. DuPont’s Motion for Summary Judgment regarding breach of settlement is pending. There is no fraud defense raised in any of these cases, and therefore the parties agree that DuPont’s motion for summary judgment regarding fraud claims and defenses does not pertain to any of these growers.
(Id.).
Searcy Denney has filed a Cross-Motion for Summary Judgment.
D. Ferraro Defendants: Background and Pending Motions
The last group consists of three cases in which the defendant growers are represented by the Ferraro law firm: Case Nos. 99-7217, 99-7228, and 99-7229. Ferraro Defendants have not yet filed answers to DuPont’s Complaints, but have filed Motions to Dismiss. DuPont’s Motion for Summary Judgment based on breach of settlement is pending with respect to the above eases. Due to the pendency of the Motions to Dismiss, Ferraro Defendants have not asserted a fraud defense in these cases. Accordingly, DuPont agrees that its Motion for Summary Judgment as to fraud defenses does not pertain to these cases. (Report at 13). If the motions to dismiss are denied, however, and a fraud-based defense is asserted, then DuPont intends to file such a motion.
(Id.).
III. Oral Argument
I will briefly review the portions of oral argument during which the parties provided further background of these cases and discussed the matters that are essentially at issue here. I will refer to relevant sections of DuPont’s Post-Hearing Brief (DE # 471, filed July 2, 2004, at Exh. B) as I summarize the June 25, 2004 oral argument.
Oral argument began with the issue of damages. I asked DuPont to specify what damages it seeks with regards to its breach of contract and equitable claims. DuPont responded by abandoning its equitable claims. It explained that it is not proceeding on these claims, such as restitution, which would request that I exercise my equitable power to refund to DuPont the amount paid to the growers pursuant to the settlement agreements. (Transcript
*1250
at 5). This approach would have required that Growers return the money that they received for agreeing to cease the underlying actions against DuPont.
Because DuPont has abandoned its equitable claims, its only remaining claim, and in some cases, counterclaim, is for breach of settlement. DuPont stated that if it were to win on this claim, and the issue of damages proceeded to trial, DuPont would forego any right to recover damages beyond nominal compensatory damages from a jury. (Transcript at 9; DuPont’s Motion for Leave to File Post-Hearing Brief, DE # 471, filed July 2, 2004, at ¶ 2). DuPont further explained that in the event Growers continued asserting state court claims despite a judgment granting the Motion for Summary Judgement as to breach of settlement, DuPont would seek a “relitigation injunction” from me, enjoining growers from pursuing parallel Florida state court cases.
(Id.).
I questioned DuPont regarding its course of action if its Motion for Summary Judgment as to breach of settlement is denied. (Transcript at 9-12). DuPont acknowledged that if its Motion were denied, the individual growers’ cases would each proceed to trial. During this trial, the growers would necessarily present evidence of DuPont’s alleged fraud and misconduct in order to explain that their fraudulent inducement claims were not unfounded. DuPont, in turn, would present evidence that it was accused of committing fraud during the underlying action in order to show that the growers contemplated fraud claims before or during settlement.
11
These trials would involve numerous questions of material fact for each grower that a jury would have to resolve in order to determine whether each grower breached the settlement agreements.
If the jury decided for DuPont on the issue of breach, the jury would then have to determine damages. DuPont would already be entitled to litigation costs as the prevailing party, and if the issue of attorney’s fees were to be resolved upon a post-trial motion before me, the only type of damages left for the jury to consider would be compensatory damages. (Transcript at 8-9). DuPont stated during oral argument that it is not actually seeking compensatory damages from the jury. (Transcript at 10-11). Rather, it would only seek one dollar of compensatory damages from the jury, so that it could proceed to seek attorney’s fees post-trial from me. (Transcript at 10-11). Dupont admitted that in the event the jury grants nominal compensatory damages despite hearing evidence of DuPont’s alleged fraud and misconduct, and the issue of attorney’s fees proceeds before me, in addressing this issue I would be able to consider that the Eleventh Circuit “do[es] not sanction DuPont’s alleged conduct and note[s] that other penalties exist for such dishonest actions.” (Transcript at 11-12 (citing
Green Leaf,
341 F.3d at 1310 )).
DuPont later argued, however, that pursuant to the Federal Rules of Civil Procedure and the language of the settlement agreements, I would not be permitted to determine the amount of attorney’s fees. (Transcript at 92-93). Federal Rule 54(d)(2)(A) provides, “Claims for attorneys’ fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.” DuPont argues that it is seeking attorney’s fees as an element of compensatory damages for breach of contract. The contract, or the
*1251
settlement agreement, provides for attorneys’ fees in paragraph six of the typical
12
release.
(See
Second Declaration of Ronald L. Raider Part I, DE #427, filed January 13, 2003, at Release, Indemnity and Assignment ¶ 6). Paragraph 6 explains that a breach of the release would entitle DuPont to recover not only the amount of any judgment which may be awarded, “but also court costs, attorney’s fees, and all other costs and expenses, taxable or otherwise
(Id.).
Thus, concludes DuPont, the jury would determine whether to award attorney’s fees rather than me.
I am not ruling on who determines the amount of attorneys’ fees. The parties did not fully brief this issue, and it is not relevant to my ruling. I am merely explaining that a jury would necessarily hear evidence regarding DuPont’s alleged misconduct before being able to determine what, if any, damages DuPont would receive. I am further explaining that if a motion for attorneys’ fees were before me in the future, I would be permitted to consider this evidence, particularly in light of the Eleventh Circuit’s disapproval of DuPont’s alleged misconduct, if proven. As I explain in Part III,
infra,
however, I conclude that the contract has not been breached, so the issue of attorney’s fees will not be before the jury or me in the future.
LEGAL STANDARD
The following types of Motions are discussed in this Order: (1) Motions to Amend, (2) Motions for Summary Judgment, and (3) Motions to Dismiss. Accordingly, I will review the standards that govern each type of Motion.
I. Motions to Amend
When the time period for filing an amendment of a pleading as of right has expired, Rule 15(a) of the Federal Rules of Civil Procedure requires that amendment may be provided “only by leave of court or by written consent of the adverse party.” Fed.R.Civ.P. 15(a). Rule 15(a) states that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). The Eleventh Circuit has held that motions for leave to amend complaints should be liberally granted when necessary in the interests of justice.
See Jennings v. BIC Corp.,
181 F.3d 1250 , 1258 (11th Cir.1999) (stating that “leave to amend should be liberally granted when necessary in the interest of justice” under Fed.R.Civ.P. 15(a));
Florida Power & Light Co. v. Allis Chalmers Corp.,
85 F.3d 1514, 1520 (11th Cir.1996) (“Unless substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial.”),
citing Shipner v. Eastern Air Lines, Inc.,
868 F.2d 401, 407 (11th Cir.1989).
II. Motions for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment when the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 , 106 S.Ct. 2505, 2510 , 91 L.Ed.2d 202 (1986). The court’s
*1252
focus in reviewing a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Allen v. Tyson Foods, Inc.,
121 F.3d 642, 646 (11th Cir.1997). The moving party has the burden to establish the absence of a genuine issue as to any material fact.
See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 , 90 S.Ct. 1598, 1608 , 26 L.Ed.2d 142 (1970);
Tyson Foods, Inc.,
121 F.3d at 646 . Once the moving party has established the absence of a genuine issue of material fact, to which the nonmoving party bears the burden at trial, it is up to the nonmoving party to go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.”
Celotex v. Catrett,
477 U.S. 317, 324 , 106 S.Ct. 2548, 2553 , 91 L.Ed.2d 265 (1986). Issues of fact are genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party.
See Anderson,
477 U.S. at 247-51 , 106 S.Ct. at 2510-11 . In determining whether to grant summary judgment, the district court must remember that, “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Id.
477 U.S. at 255, 106 S.Ct. at 2513.
III. Motions to Dismiss
The Ferraro Defendants in Case No. 99-7217 have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). The Ferraro Defendants in Case Nos. 99-7228 and 99-7228 have raised virtually identical arguments for dismissal pursuant to Rule 12(b)(6) and have also argued that venue is improper.
To warrant dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be “clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”
Rendon v. Valleycrest Prods.,
294 F.3d 1279, 1282 (11th Cir.2002) (quoting
Hishon v. King & Spalding,
467 U.S. 69, 73 , 104 S.Ct. 2229, 2232 , 81 L.Ed.2d 59 (1984)),
reh’g denied,
54 Fed.Appx. 493 (11th Cir.2002). Determining the propriety of granting a motion to dismiss requires courts to accept all the factual allegations in the complaint as true and to evaluate all inferences derived from those facts in the light most favorable to the plaintiff.
See Hoffend v. Villa,
261 F.3d 1148 , 1150 (11th Cir.2001) (citation omitted),
cert. denied,
535 U.S. 1112 , 122 S.Ct. 2328 , 153 L.Ed.2d 159 (2002).
“[Ujnless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” the complaint should not be dismissed on grounds that it fails to state a claim upon which relief can be granted.
Beck v. Deloitte & Touche,
144 F.3d 732, 736 (11th Cir.1998) (citation omitted),
reh’g denied,
189 F.3d 487 (11th Cir.1999). Nevertheless, “to survive a motion to dismiss, [a] plaintiff must do more than merely label his claims.”
Excess Risk Underwriters, Inc. v. Lafayette Life Ins. Co.,
208 F.Supp.2d 1310, 1313 (S.D.Fla.2002) (citation omitted). Moreover, when on the basis of a dispositive issue of law no construction of the factual allegations will support the cause of action, dismissal of the complaint is appropriate.
Id.,citing Marshall County Bd. of Educ. v. Marshall County Gas Dist.,
992 F.2d 1171, 1174 (11th Cir.1993).
28 U.S.C. § 1391 (a) governs venue in civil actions where jurisdiction is founded only on diversity of citizenship. These types of actions may be brought in the following courts:
(1) a judicial district where any defendant resides, if all defendants reside in the same State; (2) a judicial district in which a substantial part of the events or
*1253
omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced.
28 U.S.C. § 1391 (a).
ANALYSIS
Applying these well-established principles to these cases leads me to (1) deny the Motions to Amend the Complaints, (2) grant DuPont’s Motion for Summary Judgment as to all fraud claims, (3) deny DuPont’s Motion for Summary Judgment as to breach of settlement and grant the Cross-Motions for Summary Judgment against DuPont, (4) grant Ferraro Defendants’ Motions to Dismiss, and (5) deny as moot any remaining motions and close this case.
I. Plaintiff-Growers’ and Ferraro Plaintiffs’ Motions to Amend
Plaintiff-Growers’ and Ferraro Plaintiffs’ Motions to Amend seek to file virtually identical proposed Second Amended Complaints.
(See
Plaintiff-Growers’ Corrigenda to the Motion to Amend, DE # 409, filed December 1, 2003, at Exhs. 5, 6; Ferraro Plaintiffs’ Motion to Amend First Amended Complaint, Case No. 97-0059, DE # 329, filed March 9, 2004, at Exh. 5). I must examine these Motions before resolving other matters in this consolidated action because if the Motions are granted, Plaintiff-Growers and Ferraro Plaintiffs will have a new set of claims which may moot or change my analysis of other pending motions, such as DuPont’s Motion for Summary Judgment as to all existing claims. As I explain in this section, however, I am denying the Motions to Amend, and accordingly, the remaining pending motions will not be affected.
A. Plaintiff-Growers’ Motion to Amend
Plaintiff-Growers filed a Motion to Amend (Case No. 98-2242, DE # 406, filed November 10, 2003) and a Corrigenda to the Motion to Amend (DE # 409, filed December 1, 2003). DuPont filed its Opposition (DE # 415, filed January 6, 2004). At a status conference held before me on January 30, 2004, DuPont was instructed to include in its opposition any arguments it would make in a motion to dismiss the proposed amended complaints. Accordingly, DuPont filed a Supplemental Opposition (DE #442, filed March 12, 2004). Plaintiff-Growers filed their Reply to DuPont’s Mehiorandum and Supplemental Memorandum in Opposition to Plaintiff-Growers’ Motion to Amend Complaints (DE # 447, filed April 20, 2004). DuPont was ordered to file a Sur-Reply (Order, DE # 468, filed June 9, 2004), and it did so on June 18, 2004 (Sur-Reply, DE #469).
Plaintiff-Growers have submitted a proposed Second Amended Complaint for the Plaintiff-Growers represented in the underlying lawsuit by Kevin A. Malone, Esq. (Corrigenda to Plaintiffs’ Memorandum at Exhibit 5 ¶ 20) and a proposed Second Amended Complaint for the Plaintiff-Growers represented in the underlying lawsuit by the law firm of Sheehe & Ven-dittelli
(Id.
at Exhibit 6 ¶ 20).
13
Both pro
*1254
posed Second Amended Complaints assert the same eleven causes of action: (1) Count I for Florida Civil Remedies for Criminal Practices (“Florida civil RICO” or “Florida RICO”) violations, (2) Count II for conspiring to violate Florida civil RICO, (3) Count III for fraudulent concealment, (4) Count IV for intentional nondisclosure of a material fact, (5) Count V for fraudulent inducement to settle, (6) Count VI for fraud on the court in an independent action, (7) Count VII for civil conspiracy, (8) Count VIII for abuse of process, (9) Count IX for spoliation of evidence, (10) Count X for federal racketeering violations, and (11) Count XI for conspiracy to violate 18 U.S.C. Section 1962 (c). With the exception of the two Florida RICO claims, these claims are essentially the same claims on which judgement has been entered for DuPont in Case No. 98-2256. Plaintiffs fail to explain why these proposed claims could not have been alleged when these actions were filed in 1998, 1999, and 2000, or why these claims are viable despite the rulings in Case No.-98-2256. Based upon my own review, I deny the Motion to Amend as untimely and futile.
(1) Timeliness
A district court may exercise its discretion to deny a motion for leave to amend for “any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
Foman v. Davis,
371 U.S. 178, 182 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962);
see also Maynard v. Board of Regents of the Division of Universities of the Florida Dep’t of Education,
342 F.3d 1281, 1287 (11th Cir.2003) (“Although leave to amend shall be freely given when justice so requires, a motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment.” (quotations omitted)).
Consistent with
Foman’s
recognition that leave to amend can be denied for “undue delay,” the. Eleventh Circuit has upheld decisions by district courts denying leave to amend when the movant did not show good cause for a significant delay.
E.g., Maynard,
342 F.3d at 1287 (affirming denial of motion for leave to amend when there was “no good reason why [the plaintiff] could not have made the motion earlier” and the movant had not explained its failure to include the amended claim in its original filing);
Brewer-Giorgio v. Producers Video, Inc.,
216 F.3d 1281 , 1284 (11th Cir.2000) (affirming denial of motion for leave to amend filed over a year after commencement of action when movant “failed to demonstrate good cause for that delay”);
Sosa v. Airprint Systems, Inc.,
133 F.3d 1417, 1418 (11th Cir.1998) (same). In rulings binding on this court, the Fifth Circuit has recognized specifically that leave to amend may be denied when the district court has ruled upon a dispositive motion, because “[a] busy district court need not allow itself to be imposed upon by the presentation of theories
seriatim.” Freeman v. Continental Gin Co.,
381 F.2d 459, 469-70 (5th Cir.1967)
14
;
see also Gregory v. Mitchell,
634 F.2d 199, 202-03 (5th Cir. Jan.12, 1981) (applying
Freeman
and affirming denial of leave to amend sought after motion to dismiss and motion
*1255
for summary judgment had been taken under submission). I have recognized under other circumstances that leave to amend need not be granted when “the parties and the Court have already expended considerable time and resources” litigating prior claims.
Dannebrog Rederi AS v. M/V TRUE DREAM,
146 F.Supp.2d 1307, 1316-17 (S.D.Fla.2001).
As I explain below, Plaintiff-Growers’ actions have been pending for, in some cases, as long as five years. During that time, extensive proceedings regarding the merits of Plaintiffs’ existing claims have already taken place before this Court, the Eleventh Circuit, and the state supreme courts of Florida and Delaware. Plaintiffs could and should have made any necessary amendments to their pleadings years ago, before this Court and DuPont expended enormous time and effort in addressing the merits of the claims asserted originally-
Plaintiff-Growers filed their First Amended Complaints on October 22, 1998 (Case Nos. 98-2242, 98-2243, 98-2244, 98-2245, 98-2246, 99-2247, 99-2248, 98-2249, 99-2254) and Complaints on February 4, 1999 (Case No. 99-0336), August 19, 1999 (Case Nos. 99-2307, 99-2308, 99-2309, 99-2310), and July 31, 2000 (Case Nos. 00-2771, 00-2772, 00-2773). Plaintiff-Growers moved to amend these Complaints more than one year later, on August 1, 2001, two days prior to the scheduled oral argument on DuPont’s motions for judgment on the pleadings in Case No. 98-2256. (Plaintiffs’ Motion to Amend and Memorandum in Support of Motion to Amend, DE # s 278, 279, filed on August 1, 2001). The proposed Second Amended Complaints contained 207 allegations and sought relief in the form of eleven counts, collateral estoppel, and punitive damages.
(Id.
at Exhs. 1, 2). After these Motions were denied as moot in
Florida Evergreen I,
Plaintiff-Growers filed another Motion to Amend (DE #406) and Memorandum of Law in Support of Motion to Amend (DE #407) on November 10, 2003, this time proposing amended complaints consisting of two counts alleging violations of the Florida Civil Remedies for Criminal Practices Act. Plaintiff-Growers later filed a “Corrigenda” to Plaintiffs’ Memorandum in Support of Motion to Amend First Amended Complaints (DE #409) which purported to be “identical to the original memorandum ... with the exception of the substitution of two exhibits, Exhibit 5 and Exhibit 6, in place of the original Exhibit 5 and original Exhibit 6 filed with the original memorandum.” (Corrigenda at 1). Exhibits 5 and 6 are actually the proposed Second Amended Complaints, and these proposed complaints present yet a different set of claims than the proposed complaints filed a month earlier. Instead of only including two counts for relief, the latest proposed complaints include 98 allegations and consist of the two Florida RICO Counts and nine other Counts. Thus, Plaintiff-Growers have waited at least three years, and in some cases more than five years, to file amended complaints in the form attached to their latest Motion to Amend.
Plaintiff-Growers could not offer valid reasons for their delay, either in their briefs or during oral argument. Plaintiff-Growers do not argue that the amendments reflect facts which they did not know when they filed their prior pleadings; rather, they acknowledge that “[t]he factual scenario upon which all causes of action are based has not changed.” (Corrigenda at 4). Plaintiff-Growers make the following arguments in support of their Motion: (1) recent decisions such as
Green Leaf
have clearly defined the different causes of action available for the alleged facts, (2) Florida state courts have allowed Florida RICO claims to go to the jury, (3) the cases are still in the pleading stage, and (4)
*1256
DuPont will not be prejudiced if the amendments are allowed. Each of these arguments is without merit.
First, the amendments in the proposed complaints cannot have logically evolved from the
Green Leaf
decision. That decision affirmed my Orders entering judgment on the pleadings in favor of DuPont on claims that are substantially similar to the claims Plaintiff-Growers seek to include in their Second Amended Complaints.
See supra
Background, Part I. Thus, despite the argument that Plaintiff-Growers seek to amend their' complaints based on guidance from
Green Leaf,
they propose the very claims the Eleventh Circuit denied in that opinion.
Second, the Florida state cases on which Plaintiff-Growers rely to support their Florida RICO amendments actually resulted in a directed verdict for DuPont on the Florida RICO claims. (Corrigenda at Exh. 1). Plaintiff-Growers argue that in these cases, a Florida jury returned verdicts in favor of other growers asserting Florida RICO claims against DuPont. Plaintiffs fail to acknowledge, however, that the trial court set aside these verdicts and directed a verdict in favor of DuPont on these claims.
(Id.)-
The directed verdict was recently affirmed on appeal.
See Palmas Y Bambu v. Dupont,
881 So.2d 565 (Fla. 3rd DCA 2004). Further, the rulings against DuPont were reversed.
Id.
Plaintiff-Growers proposed allegations do not cure the defects that resulted in a directed verdict for DuPont in the state cases. It is not logical for Plaintiff-Growers to argue that they now seek to add claims based on recent decisions which have concluded that those claims do not have merit. Further, Plaintiff-Growers acknowledge in their Reply that the federal and Florida racketeering acts are similar and thus adding Florida RICO claims will not materially change the nature of this litigation. (Reply at 10). This argument begs a question Plaintiff-Growers could not answer in their briefs or during oral argument, namely,
if
the facts and arguments for the federal and Florida RICO claims are the same, why did Plaintiff-Growers fail to assert the Florida RICO claims from the inception of these cases?
Third, these cases are not in the early stages that Plaintiff-Growers represents they are. Plaintiff-Growers argue that these cases are in the pleading stages, and that the Motion to Amend was timely when filed in August 2001 and timely when renewed in November 2003. (Reply at 2). As noted above, the “renewed” Motion actually sought to file amended complaints that were different from the complaints proposed in August 2001, and the Plaintiff-Growers filed yet another proposed amended complaint in December 2003. Further, these amendments have been proposed five years after the first of these cases began, after questions have been certified to two courts, after motions to dismiss have been resolved, after I have issued two lengthy Orders on motions for judgment on the pleadings in one of these cases, and after the Eleventh Circuit affirmed my Orders. To argue that this consolidated action is in the early stages grossly misrepresents the proceedings that have been underway in this case for the past five years.
The fact that there has been substantial progress in the consolidated case undercuts Plaintiff-Growers’ remaining argument, that DuPont will not suffer prejudice if the Motion to Amend is granted. As DuPont stated in oral argument, Federal Rule of Civil Procedure 1 explains that the scope and purposes of the Federal Rules is “to secure the just, speedy, and inexpensive determination of every action.” (Transcript at 55-56, citing Fed.R.Civ.P. 1). According to DuPont, Plaintiff-Grow
*1257
ers’ Motion to Amend represents an attempt to undermine this purpose and maintain this case in federal court until the Searcy Denney Growers can argue these cases in state court and, hopefully for Growers, produce a different result than the Eleventh Circuit case. (Transcript at 56). The prejudice to DuPont results from the prejudice to the justice system itself. Failing to raise these issues previously kept the issues from being resolved along with the other issues. This failure places the DuPont, the Eleventh Circuit, and myself in a position where issues in this case are being resolved in a piecemeal fashion with no logical conclusion. It would be a detriment to the system to proceed in this piecemeal manner. Based on the foregoing, I conclude that Plaintiff-Growers’ Motion to Amend is untimely. The Motion is therefore denied.
(2) Futility
In addition to being untimely, Plaintiff-Growers’ Motion to Amend is denied for another reason: the proposed claims are futile because they would not survive a motion to dismiss.
15
After briefly providing a background regarding the differences between these cases and Case No. 98-2256, I will address Plaintiff-Growers’ Florida RICO counts, and then I will examine the remaining proposed claims.
(a) General Factual Background
As I explained in the Background section,
supra,
my two previous Orders and the Eleventh Circuit opinion in this case involved Plaintiff-Growers in Case No. 98-2256. Those Plaintiff-Growers were chosen as Growers whose claims were representative of the seventeen remaining Plaintiff-Growers’ claims. Nevertheless, accepting the allegations in the proposed Second Amended Complaint as true, as I am required to do when considering the viability or futility of the amendments under a motion to dismiss standard, there are some factual differences between the cases that Plaintiff-Growers have emphasized. Specifically, Plaintiff-Growers represented by Sheehe & Vendittelli were involved in the following cases:
Fred Henry’s Petals of Paradise and KHD, Ltd. (see, e.g.,
Second Amended Complaint, Exh. 5 ¶ 23), and Plaintiff-Growers represented by Malone were involved in the
Anthony & Sons
trial
(see, e.g.,
Second Amended Complaint, Exh. 6 ¶23). Some of the alleged predicate racketeering acts occurred during these cases.
(See
Second Amended Complaints). Thus, if the only ground for dismissal of the fraud claims were that the Plaintiff-Growers have not alleged a direct enough injury,
see infra
Part I.A(2)(b)(iv), the proposed amendments might not have been denied as futile. As explained below, however, alleging a direct injury is not
*1258
enough to overcome the defects in each of Plaintiff-Growers’ proposed claims.
(b) Florida RICO Counts
Plaintiff-Growers’ proposed amendments include claims that DuPont violated the Florida Civil Remedies for Criminal Practices Act. This Act, Florida Statutes § 772.101
et seq.,
is patterned after the Racketeer Influenced and Corrupt Organization Act (“RICO”), codified at 18 U.S.C. § 1961
et seq.,
and Florida courts often look to federal courts’ interpretation of the federal statutes for guidance and as persuasive authority.
See Lugo v. State,
845 So.2d 74 , 96 n. 39 (Fla.2003) (“Flori-da['s] RICO statute, section 895.03,
16
Florida Statutes (1993), is patterned after its federal counterpart [and] Florida courts may look to federal RICO decisions as persuasive authority”) (citations omitted),
cert. denied,
— U.S. -, 124 S.Ct. 320 , 157 L.Ed.2d 216 (2003);
Gross v. State,
765 So.2d 39, 42 (Fla.2000) (“[G]iven the similarity of the state and federal [RICO] statues, Florida courts have looked to the federal courts for guidance in construing RICO provisions.”) (citations omitted),
cert. denied
532 U.S. 948 , 121 S.Ct. 1416 , 149 L.Ed.2d 357 (2001);
Jackson v. Bell-South Telecommunications,
372 F.3d 1250 (11th Cir.2004) (“We have explained that the interpretation of Florida’s RICO law ‘is informed by the case law interpreting the federal RICO statute ... on which Chapter 772 is patterned.’ ”) (quotation omitted). Accordingly, I will examine cases interpreting the Florida and federal RICO to assess whether the proposed Counts are futile.
Plaintiff-Growers allege that DuPont engaged in criminal activity actionable pursuant to Florida Statutes § 772.103(3), which provides that it is unlawful for any person “[e]mployed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity or the collection of an unlawful debt.” (Corrigenda Exh. 5, Count I; Exh. 6, Count I). A “pattern of criminal activity” is defined as “engaging in at least two incidents of criminal activity that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics that are not isolated incidents.” Fla. Stats. § 772.102(4).
Plaintiff-Growers seek to allege that “DuPont, the law firm of Alston & Bird, Dow N. Kirkpatrick, Elizabeth Gilley, Todd David, Edgar Woolard, Timothy Obrigawiteh, Bruce Hadley, George Frank, Nicholas Albergo, the Burke Cabaniss law firm, Thomas Burk, the Popham Haik law firm, ALTA labs, Robert Bethem, and/or others” were part of an enterprise whose intent was to defraud all Benlate product liability claimants. (Corrigenda Exh. 5, Count I and Exh. 6, Count I). The predicate acts, or incidents of criminal activity, allegedly include multiple acts of (1) organized fraud and communications fraud in violation of Florida Statutes §§ 817.034(4)(a) and 817.034(4)(b), (2) false affidavit perjury in violation of Florida Statutes § 322.33, perjury in official proceedings and by contradictory statements in violation of Florida Statues §§ 837.02 and 837.021, (3) tampering with witnesses
*1259
in violation of Florida Statutes § 914.22, (4) tampering with or fabricating physical evidence in violation of Florida Statutes § 918.13, (5) mail and wire fraud in violation of 18 U.S.C. § 1343 , (6) obstructing justice in federal courts in violation of 18 U.S.C. § 1503 , (7) tampering with witnesses in violation of 18 U.S.C. § 1512 , (8) tampering with or fabricating physical evidence in violation of 18 U.S.C. § 1512 (c), and (9) racketeering activity as defined in 18 U.S.C. § 1961 (1)(B).
(Id.).
Plaintiff-Growers’ proposed Count II alleges that DuPont violated § 772.103(4), which prohibits any person from conspiring to violate § 772.103(3).
DuPont argues that the proposed Florida RICO claims would be futile for the following reasons: (1) Plaintiff-Growers have failed to allege an “enterprise” for FCPA purposes, (2) most of these allegations are based on fraud, for which Plaintiff-Growers cannot state a claim because they cannot meet the reasonable reliance requirement, (3) Plaintiff-Growers’ RICO case statement is based on alleged criminal activity in the
Bush Ranch
case, where Plaintiff-Growers were not parties, (4) litigation immunity bars the allegations based on activity in litigation proceedings, and (5) Plaintiff-Growers have failed to plead fraud with specificity.
(See
DuPont’s Supplemental Memorandum in Opposition to Plaintiffs Motion for Leave to Amend First Amended Complaints, DE# 415, filed January 6, 2004; DuPont’s Supplemental Memorandum in Opposition to Plaintiffs Motion for Leave to Amend First Amended Complaints, DE # 442, filed March 12, 2004). After briefly discussing the law of the case doctrine as it relates to the proposed amendments, I will address each of these arguments in turn.
(i) Law of the Case Doctrine
DuPont urges me to focus on a footnote in
Green Leaf
suggesting that Florida RICO claims would be futile.
See Green Leaf,
341 F.3d at 1309 n. 17 (“Additionally, Plaintiffs’ proposed Florida RICO claims were futile, for the same reasons supporting the dismissal of Plaintiffs’ federal RICO claims”), citing
O’Malley v. St. Thomas Univ., Inc.,
599 So.2d 999, 1000 (Fla.3d D.C.A.1992) (relying on federal RICO caselaw in affirming the dismissal of Florida civil RICO claims on the ground that “indirect injury” is not sufficient to confer standing under Florida RICO). This language, however, does not necessarily preclude the RICO claims because it is not a part of “the law of the case” in Case No. 98-2256 and is not binding precedent in the remaining cases.
The law of the case “doctrine provides that ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ”
Murphy v. F.D.I.C.,
208 F.3d 959 , 965 (11th Cir.2000), citing
Arizona v. California,
460 U.S. 605, 618 , 103 S.Ct. 1382, 1391 , 75 L.Ed.2d 318 (1983). According to this doctrine, an appellate court’s decision of a legal issue must be followed in all subsequent trial or intermediate appellate proceedings in the same case, unless “(1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to [the contested] issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.”
Jackson v. Motel 6 Multipurpose, Inc.,
130 F.3d 999, 1003 (11th Cir.1997), citing
DeLong Equip. Co. v. Washington Mills Electro Minerals Corp.,
990 F.2d 1186 , 1196 (11th Cir.1993);
Barber v. International Bhd. of Boilermakers, Dist. Lodge # 57,
841 F.2d 1067 , 1072 (11th Cir.1988). However, in order for the law of the case doctrine to apply, the issue contested on the latter appeal must be the same issue that was contested on and decided by the former appeal.
*1260
Jackson v. Motel 6 Multipurpose, Inc.,
130 F.3d 999, 1003 (11th Cir.1997), citing
Lawson v. Singletary,
85 F.3d 502, 512-13 (11th Cir.1996) (concluding that law of the case doctrine did not preclude later appeal where, inter alia, the focus of the former appeal was on a different issue). Similarly, if a contested issue is not an issue the Eleventh Circuit decided, the Eleventh Circuit’s statements regarding the issue must be analyzed to determine whether they are binding precedent or merely dicta.
The Eleventh Circuit mentioned Florida RICO while it was discussing the Plaintiffs’ Motion to Amend in Case No. 99-2256.
See Green Leaf,
341 F.3d at 1309 n. 17. It affirmed my denial of the Motion because the Plaintiffs had filed a Notice of Appeal, thus divesting me of jurisdiction.
Id.
at 1309 . After discussing my reason for denying the Motion, it noted that the proposed Florida RICO claims “were futile.”
Id.
It appears that the court was simply stating my reasons for denying the Motion to Amend when it discussed the Florida RICO claim. These statements are dicta because the issue before the court was whether I had jurisdiction to hear Case No. 98-2256 Plaintiffs Motion to Amend, not whether the remaining Motions to Amend were futile. Because the Eleventh Circuit did not actually decide that the Florida RICO claims were futile, I conclude that this is not the law of the case or binding precedent. I also note that DuPont admitted at oral argument that these statements do not form the law of the case. (Transcript at 53-54). Accordingly, I cannot rely on the Eleventh Circuit’s comment that proposed Florida RICO claims would be futile. I must instead examine the proposed claims to determine whether they would survive a motion to dismiss.
(ii) Enterprise
DuPont argues that the proposed RICO amendments would be futile because Plaintiff-Growers fail to allege a RICO enterprise that is separate and distinct from DuPont itself. DuPont states that the single fact that Plaintiff-Growers have not alleged a distinct RICO enterprise warrants dismissal of the RICO claims whether or not Plaintiff-Growers have sufficiently alleged the remaining elements of a RICO claim. For the reasons set forth below, I conclude that DuPont is correct.
The relevant Florida RICO provision makes it unlawful for any person “[ejmployed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity or the collection of an unlawful debt.” Fla. Stat. § 772.103 (3). Thus, for a “person” to be liable under RICO, it must be shown that the person was employed by, or associated with a distinct enterprise “that is not simply the same ‘person’ referred to by a different name.”
Cedric Kushner Promotions, Ltd. v. King,
533 U.S. 158, 161 , 121 S.Ct. 2087 , 150 L.Ed.2d 198 (2001) (“In ordinary English one speaks of employing, being employed by, or associating with others, not oneself.”). Both the United States Supreme Court and the Florida Supreme Court have required proof of a RICO “enterprise” that is separate and distinct from the person charged with the RICO violation.
See United States v. Turkette,
452 U.S. 576, 583 , 101 S.Ct. 2524 , 69 L.Ed.2d 246 (1981);
Gross v. State,
765 So.2d 39, 43 (Fla.2000) (adopting
Turkette
as a matter of Florida RICO law);
see also U.S. v. Goldin Indus., Inc.,
219 F.3d 1268 , 1270-71 (11th Cir.2000) (en banc) (ruling that the “plain language” of RICO requires that the “enterprise” be “separate and distinct” from the “person” who is the defendant),
cert. denied,
531 U.S. 1015 , 121 S.Ct. 573 , 148 L.Ed.2d 491 (2001). Thus,
*1261
there is a “distinctiveness” requirement for RICO enterprises.
In another DuPont case, a Florida appellate court recently affirmed a directed verdict for DuPont on the plaintiffs’ RICO claims.
Palmas Y Bambu v. E.I. Dupont De Nemours & Co., Inc.,
881 So.2d 565 (Fla. 3d DCA, 2004).
17
In that case, the court affirmed in part and reversed in part the lower court’s rulings. The plaintiffs in
Palmas Y Bambu
alleged a RICO enterprise consisting of DuPont, its officers, directors and employees, its outside counsel Thomas Burke, and his law firm Cabin-iss & Burke.
Id.
at 574 n. 6. The court explained as follows:
Because a corporation can only function through its employees and agents, any act of the corporation can be viewed as an act of such an enterprise, and the enterprise is in reality no more than the defendant itself. Thus, where employees of a corporation associate together to commit a pattern of predicate acts in the course of their employment and on behalf of the corporation, the employees in association with the corporation do not form an enterprise distinct from the corporation.
Id.
at 573 , citing
Riverwoods Chappaqua Carp. v. Marine Midland Bank, N.A.,
30 F.3d 339, 344 (2d Cir.1994) (citations omitted) (affirming dismissal of a civil RICO action alleging that a bank via its employees had used extortion and mail fraud to coerce borrowers into restructuring their loans) (further citations omitted). The court concluded that “no distinctness exists because the distinctness requirement cannot be circumvented by ‘alleging a RICO enterprise that consists merely of a corporate defendant [person] associated with its own employees or agents carrying on. the regular affairs of the defendant.’ ”
Id.
at 573 (citations omitted).
18
Plaintiff-Growers in this case allege the following RICO enterprise:
DuPont, the law firm of Alston
&
Bird, Dow N. Kirkpatrick, Elizabeth Gilley, Todd David, Edgar Woolard, Timothy Obrigawitch, Bruce Hadley, George Frank, Nicholas Albergo, the Burke Cabaniss law firm, Thomas Burke, the Pophaim law firm, ALTA Labs, Robert Bethem, and/or others....
(Corrigenda at Exh. 5 ¶ 39, Exh. 6 at ¶ 39). According to Plaintiff-Growers’ Local Rule 12.1 First Supplemental Civil RICO Case Statement (DE # 262), which Plaintiff-Growers expressly incorporate by reference (Corrigenda at Exh. 5 ¶ 9, Exh. 6 ¶ 9)
19
, each and every one of the listed
*1262
parties is or was a DuPont employee or agent.
20
Alston & Bird and its attorneys Dow N. Kirkpatrick, Elizabeth Gilley and Todd David served as DuPont’s counsel during the
Bush Ranch
trial in 1993. (RICO Case Statement at 27, 31, and 32). The RICO Case Statement refers to Timothy Obrigawiteh as a “DuPont employee”
(see, e.g., id.
at 9), Bruce Hadley as “DuPont’s Bruce Hadley”
(id.
at 12), George Frank as DuPont’s corporate counsel
(id.
at 31), and Nicholas Albergo as a consultant for DuPont’s attorneys
(id.
at 43). Cabaniss, Burke
&
Wagner served as DuPont’s National Coordinating Counsel for Benlate litigation in September 1992, and Thomas Burke was one of the partners primarily responsible for Benlate litigation.
(Id.
at 11). The law firm of Popham, Haik represented DuPont, as shown by the allegation that Individuals who performed services for DuPont sent their invoices to Pophaim, Haik lawyers.
(Id.
at 8, 9). Alta Labs, and its employee Robert Beth-em
(id.
at 28, 34), were retained by DuPont to analyze soils
(id.
at 33) and are also referred to as consultants for DuPont’s attorneys
(id.
at 43). Edgar Woo-lard is the former president and CEO of DuPont.
21
Plaintiff-Growers’ reference to “and/or others” as part of the RICO enterprise does not meet basic notice pleading requirements. See Federal Rule of Civil Procedure 8(a) (requiring Complaint to set forth a statement of the claim showing that the pleader is entitled to relief). Accordingly, Plaintiff-Growers have failed to allege RICO claims involving a distinct enterprise. This failure is sufficient in and of itself to deny the proposed Florida RICO claims as futile.
(Hi) Reasonable Reliance: Organized and Communications Fraud and Mail and Wire Fraud
Two of the incidents Plaintiff-Growers seek to allege as part of a pattern of criminal activity are organized fraud and communications fraud in violation of
*1263
Florida Statutes §§ 817.034(4)(a) and 817.034(4)(b), and mail and wire fraud in violation of 18 U.S.C. § 1343 . DuPont argues that these incidents should be dismissed for a failure to meet proximate cause and reasonable reliance requirements just as they were in Case No. 98-2256. Plaintiff-Growers do not respond to these arguments in their Reply. They did, however, state during oral argument that reasonable reliance is not an element of the type of fraud which they are alleging. (Transcript at 66). Plaintiff-Growers argue that they are alleging “negative fraud” such as concealment and destruction of evidence, which do not require a showing of reasonable reliance.
22
(Id,.).
DuPont pointed out during oral argument that RICO still requires that the plaintiff link the damages suffered to the conduct alleged to form the predicate act. (Transcript at 80). Florida Statute § 772.104 allows a person to bring a civil RICO claim if “he has been injured by reason of’ any RICO violation.
See also
18 U.S.C. § 1964 (c) (allowing people injured “by reason of a violation” of the RICO statutes to bring a RICO claim);
Holmes v. Sec. Investor Protection Corp.,
503 U.S. 258, 268 , 112 S.Ct. 1311, 1317-18 , 117 L.Ed.2d 532 (explaining that Section 1964(c) requires a showing of proximate cause). And as I explained in my previous Orders and as I summarize below, under Florida law, Plaintiff-Growers must allege reasonable reliance in order to meet proximate cause requirements with respect to their RICO fraud claims.
Plaintiff-Growers, however, cannot sufficiently make this allegation for the same reason Plaintiffs in Case No. 98-2256 could not sufficiently allege reasonable requirement: based on the history and circumstances of this litigation, and because of the controversies and accusations involving DuPont that have been made for years, it is not reasonable for Plaintiff-Growers to rely on DuPont’s representations in the course of settlement negotiations. Further, as DuPont stated during oral argument, “Because their reliance is not reasonable, it is considered as though they inflicted this settlement on themselves. If they relied on something that it was unreasonable for them to do, they made the decision. They broke the chain of causation, and there is no ability on their part to prove that they suffered injury by reason of the [predicate acts].” (Transcript at 82).
I have already dismissed similar RICO fraud claims, and these dismissals have been affirmed by the Eleventh Circuit. My previous decisions regarding fraud were based on state law precedents on fraud law, such as
Mergens v. Dreyfoos,
166 F.3d 1114 (11th Cir.1999), to inform the disposition of federal civil RICO claims.
Id.
(relying on Florida state law). Further, as I have already explained, the Florida RICO statutes are patterned after the federal RICO, and Florida courts often look to the federal Act as persuasive authority on Florida’s RICO. Thus, I will use the same standards in assessing the viability of Plaintiff-Growers’ organized and communications fraud claims, which allege state law violations
(see
Florida Statute § 817.034(b)), and mail and wire fraud claims, which allege federal law violations.
As I explained in
Florida Evergreen II,
in order to establish proximate causation in a civil RICO action predicated on fraud, the purported victim must make the same showing of reasonable reliance that is required for establishing injury from common law fraud.
Florida Evergeen II,
165 F.Supp.2d at 1351-1352,
*1264
citing
Pelletier v. Zweifel,
921 F.2d 1465, 1499 (11th Cir.1991) (“Mail and wire fraud, just like common law fraud, ... entail ‘an intention to induce the [victim] to act or to refrain from action in reliance upon the misrepresentation.’ ”) (further citations omitted). My earlier Orders granted DuPont’s motion for judgment on the pleadings based on Plaintiffs’ inability to establish reasonable reliance, finding that Plaintiffs’ fraud claims failed as a matter of law.
See id.
at 1351-1354. Those Orders relied primarily on
Mergens v. Dreyfoos,
166 F.3d 1114 (11th Cir.1999) and its progeny for the proposition that, “when negotiating or attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to rely on representations made by the allegedly dishonest party.”
Mergens,
166 F.3d at 1118 (quoting
Pettinelli v. Danzig,
722 F.2d 706, 710 (11th Cir.1984)).
The
Mergens
decision represents the straightforward application of the reasonable reliance requirement to a particular factual setting: a setting in which the plaintiffs were sophisticated actors, the parties had been in an adversarial relationship since well before the execution of the agreement at issue, and the plaintiffs had entered into the agreement to settle an existing lawsuit that claimed fraud.
See Mergens,
166 F.3d at 1118 . The Eleventh Circuit found that in such a situation, a party has no legal right to rely on the representations of the other party, and that such a finding is consistent with the applicable precedent.
See id.
(“In factual situations substantially similar to this action, this Circuit and various district courts have held that the plaintiffs were unjustified in relying on representations made by the defendants.”). I concluded that the Plaintiffs in Case No. 98-2256 could not establish, as a matter of law, justifiable rebanee with respect to Plaintiffs’ fraud in the inducement claims and mail and wire fraud claims.
According to the proposed amended complaints, Plaintiff-Growers in these case were just as sophisticated as the growers in Case No. 98-2256. They were represented by counsel and those counsel were in contact with other Benlate plaintiffs’ lawyers throughout the country and were monitoring other Benlate litigation to gain information.
(See, e.g.,
Corrigenda at Exh. 5 ¶¶20, 22, Exh. 6 ¶¶ 20, 22). Furthermore, the parties in this case were in an extremely adversarial, litigious relationship prior to the execution of the agreement. Numerous other Benlate related lawsuits, including
Bush Ranch,
and
Ka-wamata/Tomono,
which Plaintiff-Growers admit to monitoring, considering, and relying upon
(see id.)
were filed against DuPont in the early 1990’s, and those cases were culminating in the first trials in 1994. The parties were aware of the stakes involved in such litigation, and, as evidenced by the discovery disputes and allegations of fraudulent discovery conduct in related Benlate cases, the litigation was contentious. Finally, if the parties monitored and relied upon related cases, they knew that certain Benlate actions, such as the action leading to the fihng of Case No. 98-2256, included allegations that DuPont committed actual fraud.
See Florida Evergreen I,
135 F.Supp.2d at 1293 (explaining that the fraud allegations in the underlying lawsuit were related to the fraud alleged in Case No. 98-2256). Thus, Plaintiff-Growers were sophisticated actors in an adversarial relationship with a party who had been accused of actual fraud in similar cases. I conclude based on the allegations in the proposed amended complaints that the
Mergens
rule applies and that the proposed RICO fraud claims would be futile.
(iv) Indirect Injury
Unlike Plaintiffs in Case No. 98-2256, Plaintiff-Growers argue that they were di
*1265
rectly involved in cases in which certain predicate acts occurred. I will discuss the background of my previous Orders and
Green Leaf
before I turn to the Plaintiff-Growers’ claims.
In Case No. 98-2256, the Eleventh Circuit affirmed my ruling that Plaintiffs must allege direct injury in order to make a cognizable RICO claim.
See Florida Evergreen II,
165 F.Supp.2d at 1351, 1354-1356;
aff'd, Green Leaf,
341 F.3d at 1307-1308 . In
Green Leaf,
the Eleventh Circuit explained that a civil RICO plaintiff must show that the alleged racketeering activity caused him to suffer an injury.
Green Leaf,
341 F.3d at 1307 (citation omitted). The predicate acts must not only by the “but for” cause of the injury, but the proximate cause as well.
Id.
(citation omitted). Further, a “plaintiff who complaints] of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts [is] generally said to stand at too remote a distance to recover.”
Id.
(citation omitted). Plaintiffs in Case No. 98-2256 were not able to satisfy these proximate cause requirements because the predicate acts were alleged to have been committed in the
Bush Ranch
case in which Plaintiffs were not parties.
Id.
Plaintiffs’ claims that DuPont knew that they were monitoring the
Bush Ranch
case were “too remote to satisfy the proximate cause requirements because the directness inquiry is not a question of specific intent.”
Id.
(citation omitted).
I am not convinced that Plaintiff-Growers’ proposed Florida RICO claims overcome this defect; however, they have not pled fraudulent predicate acts with the particularity that would allow me to determine whether these predicate acts actually occurred in cases in which they were parties. As a preliminary matter, I note that Plaintiff-Growers insist on alleging injury based on proceedings to which they were not parties:
In 1992 through the spring of 1994, DuPont knew or should have known that Plaintiffs attorneys were communicating with other attorneys representing grower-claimants in Florida, Georgia, Hawaii, and other jurisdictions for the purpose of sharing information and evidence related to the Benlate product liability claims. Therefore Dupont knew or should have known that the body of evidence generated in any one of the Benlate product liability suits would be available to and would be considered and relied upon by attorneys and grower-claimants in other jurisdictions, and have a direct impact on settlement and/or litigation of hundreds of Benlate product liability claims, including Plaintiffs.
(Corrigenda at Exh. 5 ¶22, Exh. 6 ¶22). Further, Plaintiff-Growers allege the following:
Plaintiff did rely upon the evidentiary record created by DuPont in all the Benlate product liability cases. Such reliance was reasonable in light of the facts and events and Plaintiffs state of mind and the state of mind of the attorneys representing Plaintiff at the time Plaintiff settled it’s [sic] Benlate product liability cases with DuPont.
(Corrigenda at Exh. 5 ¶ 32, Exh. 6 ¶ 32). These allegations allege injury based on conduct in other cases and thus do not meet direct injury requirements.
Further, Plaintiff-Growers’ allegations that they were directly involved in certain cases during which predicate acts occurred are insufficient to maintain their RICO claims. Plaintiff-Growers represented in the underlying action by Sheehe
&
Vendit-telli allege direct involvement in
Fred Henry’s Petals of Paradise
and
KHD, Ltd.,
in which three out of the ten alleged predicate acts occurred. (Corrigenda at Exh. 5 ¶¶ 23, 25, 28, alleging violations of
*1266
Fla Stats. §§ 817.034(4)(a) and (b), 837.02 and 837.021, and 918.13, respectively). These allegations do not meet direct injury with respect to seven of the alleged predicate acts. For the remaining three predicate acts, the Second Amended Complaint is silent as to what specific fraudulent statement was made, by whom, or during what time in the two cases in which Plaintiff-Growers were directly involved. The RICO Case Statement provides information regarding who made false statements and when the statements were made, but it does not allege what the content of the misrepresentations was.
(See, e.g.,
RICO Case Statement at 24). Rather, the document simply lists under a heading titled “False Arguments” sixteen items such as the following: “10. 09/23/1993
Fred Henry
trial transcript (Shepherd closing statements).”
(Id.).
This general allegation does not meet Federal Rule 9(b)’s requirement of pleading fraud with particularity or Local Rule 12.1’s requirement that RICO claims based on predicate acts of fraud “identify the time, place, and contents of the misrepresentations or omissions, and the identity of persons to whom and by whom the misrepresentations or omissions were made.”
The same is true with respect to Plaintiff-Growers who were represented in the underlying litigation by Malone. These Plaintiff-Growers allege that they were involved in the
Anthony & Sons
trial, during which five of the ten predicate acts occurred. (Corrigenda at Exh. 6 ¶¶ 23, 25, 26, 28, 29). These allegations fail to state a claim for direct injury with respect to half the predicate acts. As to the remaining acts, neither the Second Amended Complaint nor the RICO Case Statement plead fraud with the particularity required under the Federal or the Local Rules. I cannot determine from these vague allegations whether the direct injury requirement has been met.
Thus, Plaintiff-Growers represented in the underlying action by Sheehe & Vendit-telli have not alleged direct injury requirements with respect to seven of the ten alleged predicate acts. Plaintiff-Growers represented by Malone in the underlying action have not alleged direct injury with respect to half of the alleged predicate acts. The remaining acts have not been alleged with enough particularity for me to determine whether Plaintiff-Growers have alleged direct injury, and therefore proximate cause. In any event, the RICO claims would still be denied as futile because of Plaintiff-Growers’ failure to allege a distinct enterprise.
(v) Litigation
Immunity
23
DuPont argues that the proposed RICO claims should also be denied based on litigation immunity. In
Florida Ever-geen I,
I examined a case which held that any act related to a judicial proceeding is absolutely immune from a subsequent claim in another lawsuit.
Florida Evergreen I,
135 F.Supp.2d at 1278-1279, citing
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell,
P.A.
v. United States Fire Ins. Co.,
639 So.2d 606 (Fla.1994). Based on this case, I concluded that Plaintiffs’ allegations involving improper litigation conduct in another case were barred by Florida’s absolute immunity for
*1267
litigation conduct.
Id., aff'd, Green Leaf,
341 F.3d at 1302 . The Eleventh Circuit affirmed my conclusion.
Id.
I declined, however, to extend my litigation privilege ruling to Plaintiffs’ federal RICO claims even though these claims were based on conduct during prior litigation.
Florida Evergreen I,
135 F.Supp.2d at 1284-1286. The Eleventh Circuit did not address this issue on appeal. I noted that DuPont had not been able to cite any federal cases specifically holding that litigation conduct by a litigating party in a prior case is entitled to absolute immunity and may not form the basis of a subsequent federal civil RICO claim.
Id.
Although DuPont has cited a Ninth Circuit case which applies legislative immunity to federal RICO claims,
24
DuPont has still been unable to cite an Eleventh Circuit or Florida state case dismissing federal or state RICO claims based on immunity for litigation conduct. DuPont argues that
United States v. Pendergraft,
297 F.3d 1198 (11th Cir.2002), supports its position that the Eleventh Circuit would apply the litigation privilege to RICO claims.
Id.
That case, however, involved the Hobbs Act, which imposes criminal sanctions on those who affect interstate commerce by extortion.
Id.
at 1205 , citing 18 U.S.C. § 1951 (a). The indictment alleged that the defendants had conspired to extort money from Marion County by threatening to file an amended complaint in an action against the County, unless the County settled with them.
See Pendergraft,
297 F.3d at 1205 . The court held that a threat to file litigation is not “wrongful” within the meaning of the Hobbs Act.
Id.
at 1208 . In the course of its discussion, the court noted with approval cases that have expressed concern over allowing civil RICO claims based on predicate acts of extortion for threats to litigate.
Id.
at 1207-08 . Nevertheless, the court emphasized that its “holding is a narrow one” regarding only the Hobbs Act’s inapplicability to threats to litigate.
Id.
at 1208 . Further, the Florida state case Dupont cites does not discuss RICO at all.
See Boca Investors Group, Inc. v. Potash,
835 So.2d 273 (Fla. 3rd DCA 2002). Rather, this case dismissed a tortious interference claim and denied as futile a proposed statutory antitrust claim because the litigation privilege barred these claims.
Id.
My own research has also failed to yield a controlling case applying the litigation privilege to RICO claims. The Eleventh Circuit recently discussed the litigation privilege in
Jackson v. BellSouth Telecommunications,
372 F.3d 1250 (11th Cir.2004).
Id.
Plaintiffs’ claims in that case included federal RICO claims and state law claims of tortious interference and conspiracy to defraud.
Id.
Although the court applied the litigation privilege to bar the state law claims, it dismissed the federal RICO claims for a different reason.
Id.
Thus, the court did not discuss the issue of whether the litigation privilege applies to federal RICO claims.
(vi) Rules for Pleading RICO Claims and Fraud Claims
Plaintiff-Growers’ pleadings fail to meet basic notice pleading requirements.
See
Fed.R.Civ.P. 8(a) (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief’). This shortcoming is evidenced by their general comment:
For the purposes of F.R.Civ.P. 9(b), Plaintiff hereby incorporates by reference all RICO ease statements (which
*1268
include discovery responses and communications that DuPont mailed and/or transmitted over wires via facsimile in state and federal courts in multiple jurisdictions), legal memoranda, affidavits, declarations, deposition transcripts, and trial transcripts previously taken or filed by Grower-Claimants in this and other consolidated actions, including those taken or filed in companion actions pending in the United States District Court for the District of Hawaii
(Corrigenda at Exh. 5 ¶ 9, Exh. 6 ¶ 9). While stating that they are making this general statement “[f]or the purposes of F.R.Civ.P. 9(b),” which requires fraud to be pled with particularity, Plaintiff-Growers argue in their Reply that predicate acts are not required to be pled with specificity. This argument clearly ignores the fact that two of the alleged predicate acts involve fraud.
25
I need not decide, however, whether Plaintiff-Growers have alleged fraud with particularity because the fraud claims are denied as futile for the other reasons stated in this section.
(vii) Conclusion
The proposed RICO claims are denied as futile because they do not allege a distinct enterprise. Further, they do not allege reasonable reliance or direct injury. Because the Florida RICO claims are futile, Count II, the conspiracy to violate RICO, is also denied as futile.
(c) Remaining Counts
Plaintiff-Growers’ remaining counts are essentially the same types of claims that were dismissed in
Florida Evergreen I
and
Florida Evergreen II.
Counts III through IX allege the following: fraudulent concealment (Count III), intentional nondisclosure of a material fact (Count IV), fraudulent inducement to settle (Count V), fraud on the court (Count VI), civil conspiracy (Count VII), abuse of process (Count VIII), spoliation (Count IX), and federal racketeering violations (Count X). These claims mirror the claims which were dismissed in 98-2256: fraud (Count I), intentional nondisclosure of material facts (Count II), fraudulent inducement to settle (Count III), fraud on the court (Count IV), civil conspiracy (Count VIII), abuse of process (Count IX), spoliation (Count XII), and federal racketeering violations (Counts VI and VII). Plaintiff-Growers fail to explain in their Motion or Reply why I should allow these claims despite my earlier rulings, which have since been affirmed by the Eleventh Circuit in
Green Leaf.
Thus, the proposed amended claims are denied as futile for the same reasons these claims were dismissed in
Florida Evergreen I, Florida Evergreen II,
and
Green Leaf:
(1) litigation privilege bars claims related to a judicial proceeding, (2) Plaintiff-Growers cannot state a claim for reasonable reliance, (3) fraud on the court cannot be maintained in a separate court, (4) Plaintiff-Growers cannot state a claim for spoliation, and (5) Plaintiff-Growers’ federal RICO claims fail to allege reasonable rebanee and direct injury.
(i) Litigation Privilege: Counts III, IV, V, VII, and VIII
Counts III, IV, V, VII, and VIII are all based on conduct that took place either during litigation (Corrigenda at Exh. 5 ¶¶ 23-26, 28, 29, Exh. 6 ¶¶ 23-26, 28, 29) or during an official proceeding brought by the Florida Department of Agriculture and Consumer Services (Corri
*1269
genda at Exh. 5 ¶¶ 27, Exh. 6 ¶¶ 27). Thus, as explained below, these claims, except to the extent that they arise out of the official proceeding brought by the Department of Agriculture and Consumer Services, are barred by the absolute immunity Florida grants to conduct that occurred during a judicial proceeding.
See supra
Part I.A.(l)(e), discussing
Florida Evergeen I,
135 F.Supp.2d at 1278-1283,
aff'd, Green Leaf,
341 F.3d at 1302-1304 . To the extent the claims arise out of the official proceeding referred to in paragraph 27, Plaintiff-Growers do not allege that they were a party to that proceeding and thus fail to allege a direct enough injury to satisfy proximate cause requirements.
See supra
Part I.A(2)(b)(iii), discussing
Florida Evergeen II,
165 F.Supp.2d at 1354-1356, aff
'd, Green Leaf,
341 F.3d at 1307-1308 .
In
Florida Evergreen I,
I held that those counts in plaintiffs complaint alleging fraud (Count I), intentional nondisclosure of material facts (Count II), fraudulent inducement to settle (Count III), rescission and damages for fraud (Count V), conspiracy (Count VIII), abuse of process (Count IX), infliction of emotional distress (Count X), interference with prospective economic advantage (Count XI), and violation of the Florida Deceptive and Unfair Trade Practices Act (Count XIII) were based on DuPont’s alleged misconduct during the underlying judicial proceedings, and were therefore barred by DuPont’s absolute immunity for its litigation conduct under the rule announced by the Florida Supreme Court in
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Company,
639 So.2d 606 (Fla.1994).
Florida Evergreen I,
135 F.Supp.2d at 1278-83. The Eleventh Circuit affirmed this ruling. At oral argument in this case, Plaintiff-Growers argued that this rule, as interpreted subsequently by a split panel of the Fourth District Court of Appeals in
Ingalsbe v. Stewart Agency,
869 So.2d 30 (2004), should not bar those counts of their complaints which duplicate the above counts in
Florida Evergreen I.
I am not persuaded.
Levin
began with a civil action in state court in which one party moved to disqualify the law firm representing the opposing party upon the moving party’s representation that it would call as witnesses at trial members of the firm with knowledge material to the underlying claim.
Levin,
639 So.2d at 607 . The trial court granted the motion for disqualification and the moving party failed to call these individual attorneys as witnesses.
Id.
The law firm then filed suit in federal court alleging that the moving party had tortiously interfered with the business relationship between the law firm and its client.
Id.
The federal district court dismissed this claim, and on appeal the Eleventh Circuit certified to the Florida Supreme Court the following issue: whether certifying to a trial court an intent to call opposing counsel as a witness at trial in order to obtain counsel’s disqualification, and later failing to subpoena and call counsel as a witness at trial, is an action that is absolutely immune from a claim of tortious interference with a business relationship by virtue of Florida’s litigation privilege.
Id.
In response, the Florida Supreme Court concluded “that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.”
Id.
at 608 . Applying this clear holding in
Florida Evergreen I,
I concluded that DuPont’s alleged misconduct, “although perhaps egregious and damaging to Plaintiffs, [was] definitely related to other judicial proceedings and that DuPont [was] therefore im
*1270
mune from civil liability for its actions.” 135 F.Supp.2d at 1283. The Eleventh Circuit affirmed this conclusion in
Green Leaf.
Notwithstanding
Ingalsbe ,
I conclude that Plaintiff-Growers’ claims are now similarly barred by the rule announce in
Levin.
Ingalsbe
involved a claim for tortious interference with a contract. In that case, a lawyer and a client agreed in writing to a fee with three different alternatives for calculating the actual amount due on a lawsuit plaintiff had filed against an automobile dealer.
Id.
at 30 . The dealer and the client settled the claim, and the terms of the settlement provided that the dealer would pay a different amount in attorney’s fees than the client and lawyer had agreed to prior to suit.
Id.
The lawyer sued the dealer for interfering with his fee agreement.
Id.
On appeal, the dealer argued that the lawyer’s intentional interference with contractual relationship claim was barred absolutely by the “litigation privilege.”
Id.
The court of appeals rejected that argument and distinguished
Levin.
The court analyzed comparatively the interests of the parties seeking to assert the litigation privilege in each case and found that unlike the interest at issue in
Levin,
i.e., allowing litigants to use their best tactical judgment in the prosecution or defense of a lawsuit without fear of having to defend their actions in a subsequent civil action, the
Ingalsbe
litigant’s interest in settling the underlying civil action did not “compel a corollary right to interfere with a fee contract between one of the settling parties.”
Id.
at 33 . By comparison, the
Lev-in
plaintiffs interest was sufficiently important to warrant immunity “even though it resulted in the attorney’s disqualification from the case.”
Id.
at 32 .
Without deciding the precise way in which
Ingalsbe
narrowed the rule announced in
Levin,
I conclude that the litigation privilege announced by the latter applies to bar Plaintiff-Growers’ claims in Counts III, IV, V, VII and VIII for at least two reasons. First, unlike the plaintiff in
Ingalsbe ,
the Plaintiff-Growers in this case did not have contractual rights which were affected adversely by DuPont’s alleged misconduct. Thus, there is no need to find a corollary right of DuPont’s against which I can balance Plaintiff-Growers’ rights.
Ingalsbe
stands for the narrow proposition that a tortious interference with contract claim may arise from settlement negotiations or agreements because such settlement activities are outweighed by the interest in preserving contractual rights. The litigation privilege does not confer immunity from such claims. However, the countervailing interest which was dispositive in the judgment of the Fourth District Court of Appeals, namely the
Ingalsbe
plaintiffs contractual rights vis-a-vis its client, is simply nonexistent in this case. Second, the misconduct alleged in this case is properly compared to that at issue in
Levin
because, as I concluded in
Florida Evergreen I,
DuPont’s alleged tortious acts consisted of misrepresentations which are analytically similar to the defamatory torts which were initially immune under the litigation privilege and analyzed by the
Levin
court.
My interpretation comports with the Eleventh Circuit’s recent opinion in
Jackson,
372 F.3d 1250 .
Id.
In that case, the court stated that the litigation privilege applied to alleged misconduct defendant had committed during settlement proceedings.
Id.
at 1275 . In distinguishing
In-galsbe,
the Eleventh Circuit explained as follows:
In that case, a split panel of Florida’s Fourth District Court of Appeals held that the litigation privilege did not bar a lawyer’s claim for tortious interference with an attorneys-fees contract brought against an automobile dealer that settled a claim with the lawyer’s client.
Id.
at
*1271
1276. We are unpersuaded by the appellants’ broad reading of
Ingalsbe ,
however, since that case is plainly distinguishable from this one. The claim in
Ingalsbe
alleged interference in the lawyer’s professional or business activities, as is generally necessary to support a tortious interference claim.
See, e.g., Garrison v. Thomas Mem. Hosp. Ass’n,
190 W.Va. 214 , 438 S.E.2d 6, 14 (1993) (“The type of injury alleged in an action for tortious interference ... is damage to one’s business or occupation.” (emphasis added)). The rationale underlying Ingalsbe is not implicated here, where the appellants have not alleged any interference with their occupations or other professional activities.
Id.
Accordingly,
Ingalsbe
does not alter my reasoning that Counts III, IV, V, VII, and VIII would be barred by litigation privilege. Accordingly, these proposed Counts are denied as futile.
(ii) Reasonable Reliance: Counts III, TV, and V
Counts III, IV, and V are also futile because they fail to allege reasonable reliance. These three counts sound in fraud: Count III is for fraudulent inducement, Count TV is for intentional non-disclosure of material fact, and Count V is for fraudulent inducement to settle. As I explain in
Florida Evergreen I
and in Part I.A(2)(b)(iii),
supra,
fraud claims must comport with the
Mergens
rule, which require reasonable reliance. Plaintiffs have not sufficiently alleged reasonable reliance because they monitored, considered, and relied upon numerous other Benlate related lawsuits, including
Bush Ranch
and
Kawamata/Tomono (see e.g.,
Corrigenda at Exh. 5 ¶¶ 20, 22, Exh. 6 ¶¶ 20, 22), which were filed against DuPont in the early 1990’s, and were culminating in the first trials in 1994. The parties were aware of the stakes involved in such litigation, and, as evidenced by the discovery disputes and allegations of fraudulent discovery conduct in related Benlate cases, the litigation was contentious. Finally, if the parties monitored and relied upon related cases, they knew that certain Benlate actions, such as the action leading to the filing of Case No. 98-2256, included allegations that DuPont committed actual fraud. Accordingly, Plaintiff-Growers cannot allege reasonable reliance.
Counts III, IV, and V fail to state a claim for fraud because these claims do not allege reasonable reliance. Therefore, these proposed Counts are denied as futile.
(Hi) Fraud on the Court: Count VI
Count VI, fraud on the court, is also denied as futile. In
Florida Evergreen I,
I analyzed a virtually identical count.
Florida Evergeen I,
135 F.Supp.2d at 1286-1289.
26
Plaintiffs in that case alleged that DuPont’s actions constituted a scheme to defraud not only the Plaintiffs, but also the United States District Court and the state courts of Florida and Hawaii.
Id. I
determined, after analyzing
Chewning v. Ford Motor Co.,
35 F.Supp.2d 487 (D.S.C.1998), which I found persuasive, that “the proper forum in which to assert that a party has perpetrated a ‘fraud on the court’ is the court which allegedly was a victim of that fraud.”
Chewning,
35 F.Supp.2d at 491 (quoting
Weisman v. Charles E. Smith Management, Inc.,
829 F.2d 511, 513 (4th Cir.1987)). Just as in the
Cheuming
case, Plaintiffs in Case No. 98-2256 did not provide me with any authorities that suggest an independent action for damages in a separate court exists under Rule 60(b), particularly based on fraud on the court.
Id.
*1272
Likewise, in this case, Plaintiff-Growers’ proposed Count VI seeks to maintain an independent action for damages in a court that is not the one in which the alleged fraud was committed. Although it also seeks to allege this Count under Florida Rule of Civil Procedure 1.540, the same reasoning applies: in no case has a Florida court allowed a cause of action for fraud on the court under Rule 1.540 in a court that is different from the one in which the fraud was committed.
See Cobourn v. Cobourn,
436 So.2d 284, 285 (Fla. 5th DCA 1983) (refusing to set a aside a judgment rendered in another court because under Rule 1.540, “[w]hen fraud, mistake, excusable neglect or other factors would permit the setting aside of a judgment, then only the court which rendered the judgment may set it aside ....”). Accordingly, the proposed Count VI is denied as futile.
(iv) Spoilation: Count IX
Count IX, the spoilation claim, is also denied based on my previous Orders and the Eleventh Circuit decision.
See Florida Evergeen II,
165 F.Supp.2d at 1359-1361,
aff'd, Green Leaf,
341 F.3d at 1308-1309 . The elements of a spoliation claim are (1) the existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action: (3) destruction of that evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages.
Green Leaf,
341 F.3d at 1308-1309 (citations omitted). The Eleventh Circuit explained that Plaintiffs’ spoliation claim rested more on concealment than actual destruction, even though no Florida case has ever held that concealment of evidence constitutes spoliation.
Id.
To the contrary, the court stated, spoliation is defined as the “destruction” of evidence or the “ ‘significant and meaningful alteration of a document or instrument.’ ”
Id.
(quoting source omitted). Further, Plaintiffs could not show significant impairment.
Id.
Plaintiffs did not assert that DuPont destroyed evidence essential to the Plaintiffs’ case, such as Plaintiffs’ own plants or the allegedly defective Benlate that Plaintiffs claim to have applied to their plants.
Id.
Plaintiff-Growers’ proposed amendments do not remedy these defects. They still make allegations regarding DuPont’s failure to “reveal[] the truth,” i.e., DuPont’s
concealment,
regarding Costa Rica field tests and Alta Lab results, but Plaintiff-Growers fail to allege that this information was essential to their case. (Corrigenda at Exh. 5 ¶ 19, Exh. 6 ¶ 19). They again fail to allege that DuPont destroyed their own plants or that DuPont destroyed defective Benlate that Plaintiffs applied to their complaints. The proposed amendments do state that “DuPont purposefully concealed, tampered with, manipulated, and/or destroyed certain analytical and field testing evidence, the destruction of which significantly impaired the ability for Plaintiff to prove its claims” (Corrigenda at Exh. 5 ¶ 84, Exh. 6 ¶ 84), but I am not required to accept this conclusory allegation as true.
See Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir.2003) (“[C]onclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.”). Nowhere do the proposed Second Amended Complaints state in more than a conclusory manner that Plaintiff-Growers were significantly impaired in their ability to prove their lawsuits. Thus, the proposed spoilation claim is denied as futile.
(v) Federal RICO Claims: Counts X and XI
Finally, Counts X and XI, which allege federal RICO violations, must also
*1273
be dismissed as futile. As I discussed in Part I.A(2)(b)(ii),
supra,
Plaintiff-Growers have failed to meet the distinctiveness requirement with respect to the alleged enterprise. This reason alone is enough to deny the proposed federal RICO claims as futile.
Further, Plaintiff-Growers have not alleged reasonable reliance or direct injury. The only predicate acts alleged in these counts are mail and wire fraud in violation of 18 U.S.C. §§ 1341 , 1343 and obstruction of justice and tampering with witnesses in violation of 18 U.S.C. §§ 1503 , 1512. As explained in
Florida Evergreen II
and in Part I.A(2)(b)(iii),
supra,
the mail and wire fraud allegations fail to allege reasonable reliance. With respect to the remaining predicate acts, Plaintiff-Growers fail to allege direct injury and thus do not meet proximate cause requirements. They allege that violations of 18 U.S.C. § 1503 occurred in the following cases:
Bush Ranch, Shady Grove,
and
Caribe Bromeli-as.
(Corrigenda at Exh. 5 ¶ 29; Exh. 6 ¶ 30). Plaintiff-Growers do. not allege that they were parties in these cases. Further, Plaintiff-Growers do not state that they were parties in the cases in which DuPont tampered with witnesses. Thus, Plaintiff-Growers federal RICO claims are denied as futile just as the similar claims in Case No. 98-2256 were denied upon DuPont’s motion for judgment on the pleadings.
Florida Evergeen II,
165 F.Supp.2d at 1349-1356,
aff'd, Green Leaf,
341 F.3d at 1306-1308 .
(3) Conclusion
Plaintiff-Growers’ Motion to Amend, filed between three and five years after these cases began, after two state supreme courts have answered certified questions, after I issued two lengthy Orders, and after the Eleventh Circuit affirmed these Orders on appeal, are untimely. Even if the Motion had been timely, the proposed claims would be denied as futile.
B. Ferraro Plaintiffs’ Motion to Amend
Ferraro Plaintiffs filed a Motion to Amend First Amended Complaint (Case No. 97-0059, DE #329, filed March 9, 2004) which includes as Exhibit 5 a Second Amended Complaint. DuPont’s Opposition (Case No. 97-0059, DE #331, filed April 5, 2004) seeks denial of the Motion on the same grounds it argued that Plaintiff-Growers’ Motion to Amend should be denied. Ferraro Plaintiffs have not filed a Reply, and the deadline for doing so has passed.
(See
Report, DE #444 (setting April 19, 2004 as the deadline for Ferraro Plaintiffs’ Reply)). I deny the Motion for the same reasons as Plaintiff-Growers’ Motion to Amend is denied. Specifically, the Ferraro Plaintiffs’ Motion is untimely and futile.
(1) Timeliness
Ferraro Plaintiffs have waited even longer than Plaintiff-Growers to amend their claims. Ferraro Plaintiffs initially filed their actions in state court in 1996. (Case Nos. 97-62, 97-63, Notice of Removal, DE # 1, filed January 10, 1997). Maz-zoni Farms filed an Amended Complaint on February 21, 1997. (Case No. 97-62, DE #8). Ferraro Plaintiffs moved to amend their complaints on July 14, 1997 (Case No. 97-62, DE # 32; Case No. 97-63, DE #27), and these motions were denied in September 1997. (Case No. 97-62, DE # 38; Case No. 97-63, DE # 34). Six and a half years passed before Ferraro Plaintiffs filed their pending Motion to Amend, which proposes alleging eleven counts for relief in place of the two counts alleged in Mazzoni Farms’ Amended Complaint and the one count alleged in Jack Martin Greenhouses’ Complaint. Ferraro Plaintiffs have not provided any justification for their delay. Despite the factual differences between their cases and Plain
*1274
tiff-Growers’ cases, Ferraro Plaintiffs make virtually identical arguments in support of their Motion.
(Compare
Ferraro Plaintiffs Motion to Amend at 3-6
and
Plaintiff-Growers* Corrigenda at 4-9 (both arguing that the
Green Leaf
opinion and
Palmas Y Bambú
case prompted their Motions)). Just as these arguments did not persuade me of the timeliness of Plaintiff-Growers’ Motion to Amend, they do not convince me that Ferraro Plaintiffs’ Motion to Amend is timely. Accordingly, Ferraro Plaintiffs’ Motion to Amend is denied.
(2) Futility
Ferraro Plaintiffs’ Motion to Amend is also denied as futile. The proposed Second Amended Complaint includes 98 allegations that are substantially similar to the 98 allegations included in each of Plaintiff-Growers’ proposed Second Amended Complaints. (Motion at Exh. 5). Specifically, the Ferraro Plaintiffs allege the exact same eleven claims as Plaintiff-Growers: (1) Count I for Florida Civil Remedies for Criminal Practices violations, (2) Count II for different FCPA violations, (3) Count III for fraudulent concealment, (4) Count IV for intentional nondisclosure of a material fact, (5) Count V for fraudulent inducement to settle, (6) Count VI for fraud on the court in an independent action, (7) Count VII for civil conspiracy, (8) Count VIII for abuse of process, (9) Count IX for spoliation of evidence, (10) Count X for federal racketeering violations, and (11) Count XI for conspiracy to violate 18 U.S.C. Section 1962 (c).
(Id.).
Florida law applies to Ferraro Plaintiffs’ claims just as it did to Plaintiff-Growers claims.
Green Leaf,
341 F.3d at 1301 (explaining that neither the Florida nor the Delaware state courts answered the questions of which substantive law applies to the growers’ claims and concluding that Florida law governs). Thus, based on the same law I used to conclude that Plaintiff-Growers’ claims would be denied as futile, I conclude that Ferraro Plaintiffs’ proposed claims would not survive a motion to dismiss. Accordingly, Ferraro Plaintiffs’ Motion to Amend is denied as futile.
II. DuPont’s Motion for Summary Judgment as to Settlement Fraud
Because the Motions to Amend are denied, Plaintiff-Growers’ First Amended Complaints and Complaints, Mazzoni Farms’ Amended Complaint, and Jack Martin Greenhouses’ Complaint remain the operative complaints in this action. DuPont’s Motion for Summary Judgment as to the settlement fraud claims seeks to dismiss the claims in these complaints. (Motion for Summary Judgment Dismissing with Prejudice all Settlement Fraud Claims and Defenses, DE # , filed January 13, 2004 and Memorandum of Law, DE # , filed January 13, 2004). DuPont’s Motion is based on my previous Orders and the Eleventh Circuit’s decision in
Green Leaf.
27
DuPont states that the following rules from
Green Leaf
preclude the settlement fraud claims and defenses: (1) litigation privilege, (2) the reasonable reliance rule, (3) the “indirect injury” rule, and (4) the rule that spoilation applies to destruction, not concealment of evidence, and only where the destruction “significantly impairs” the ability to prove the underlying lawsuit. I will address each of these rules as they relate to Plaintiff-Growers and
*1275
Ferraro Plaintiffs. As I explain below, because these claims and defenses are essentially the same claims on which judgment on the pleadings were granted in DuPont’s favor,
see Florida Evergreen I
and
II
and
Green Leaf,
summary judgement is granted in DuPont’s favor as to its settlement fraud Motion.
A. Plaintiff-Growers’ Claims
Plaintiff-Growers in Case Nos. 98-2242, 98-2243, 98-2244, 98-2245, 98-2246, 98-2247, 98-2248, 98-2249, 98-2254, 99-0336, 99-2307, 99-2308, 99-2309, and 99-2310 make 313 allegations and seek the same thirteen claims for relief as the Plaintiffs in Case No. 98 — 2256:(1) Count I, fraud; (2) Count II, intentional nondisclosure of material fact; (3) Count III, fraudulent inducement to settle; (4) Count IV, fraud on the court; (5) Count V, rescission and damages for fraud; (6) Count VI, RICO violations; (7) Count VII, conspiracy to violate RICO; (8) Count VIII, conspiracy; (9) Count IX, abuse of process; (10) Count X, infliction of emotional distress; (11) Count XI, interference with prospective economic advantage; (12) Count XII, spoliation; (13) Count XIII, violation of state Deceptive and Unfair Trade Practices Acts.
(See
First Amended Complaint, Case No. 98-2242, DE # 10, filed October 22, 1998; First Amended Complaint, Case No. 98-2243, DE #3, filed October 22, 1998; First Amended Complaint, Case No. 98-2244, DE #10, filed October 22, 1998; First Amended Complaint, Case No. 98-2245, DE # 5, filed October 22,1998; First Amended Complaint, Case No. 98-2246, DE # 5, filed October 22, 1998; First Amended Complaint, Case No. 98-2247, DE #4, filed October 22, 1998; First Amended Complaint, Case No. 98-2248, DE #2, filed October 22, 1998; First Amended Complaint, Case No. 98-2249, DE #2, filed October 22, 1998; First Amended Complaint, Case No. 98-2254, DE# 10, filed October 22, 1998; Complaint, Case No. 99-0336, DE # 1, filed February 4, 1999; Complaint, Case No. 99-2307, DE # 1, filed August 19, 1999; Complaint, Case No. 99-2308, DE # 1, filed August 19, 1999; Complaint, Case No. 99-2309, DE #1, filed August 19, 1999; Complaint, Case No. 99-2310, DE # 1, filed August 19, 1999).
28
The remaining Plaintiff-Growers allege the same counts, with the exception that Count X for infliction of emotional distress is omitted.
(See
Complaint, Case No. 00-2771, DE # 1, filed July 31, 2000; Complaint, Case No. 00-2772, DE # 1, filed July 31, 2000; Complaint, Case No. 00-2773, DE # 1, filed July 31, 2000).
29
Based upon my review of the record and applicable case law, I conclude that summary judgement is warranted against all these claims just as judgment on the pleadings was warranted against the same claims in Case No. 98-2256. Specifically, I grant DuPont’s Motion based on the following grounds: (1) litigation immunity applies, (2) the claims do not establish reasonable reliance, (3) the RICO claims do not establish reasonable reliance or direct injury, (4) spoilation applies to destruction, not concealment of evidence, and only where the destruction significantly impairs the ability to prove the underlying lawsuit, and (5) Plaintiff-Growers cannot maintain a separate action for fraud on the court.
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(1) Litigation Immunity: Counts I, II, III, V, VIII, IX, x XI, and XIII
DuPont argues that Counts I, II, III, V, VIII, IX, X, XI, and XIII are based on allegations of conduct alleged to have taken place during the course of and related to any prior lawsuit. DuPont states that summary judgment is warranted because as a matter of Florida and federal law, absolute immunity is afforded to litigation conduct in any subsequent civil action for damages. Plaintiff-Growers did not respond to this argument in their brief.
30
In
Florida Evergreen I,
I agreed with DuPont’s argument that Plaintiffs’ state law damage claims based on allegations of conduct alleged to have taken place during the course of and related to any prior lawsuit were barred by absolute immunity for litigation conduct.
Florida Evergreen I,
135 F.Supp.2d at 1278-1279, citing
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co.,
639 So.2d 606 (Fla.1994). The background of the
Levin
case is set forth in
Florida Evergreen I. Id.; see also supra
Part I.A(2)(c)(i). The
Levin
court held that any act related to a judicial proceeding is absolutely immune from a subsequent claim in another lawsuit.
Florida Evergreen I,
135 F.Supp.2d at 1278-79, citing
Levin,
639 So.2d 606 . The
Levin
Court went on to state that the decision to grant absolute immunity does not mean that a remedy for a participant’s misconduct is unavailable, as “a trial judge has the inherent power to do those things necessary to enforce its orders, to conduct business in a proper manner, and to protect the court from acts obstructing the administration of justice.”
Levin,
639 So.2d at 608-09 . Accordingly, DuPont argued that the proper remedy for improper litigation conduct related to another case is a contempt motion before the trial court, not a separate tort action, and that Florida’s absolute immunity for litigation conduct bars all of Plaintiffs’ common law state damages claims.
Florida Evergreen I,
135 F.Supp.2d at 1278-79. I agreed.
Id.
Based on
Levin ,
I concluded that Plaintiffs’ allegations involving improper litigation conduct in another case were barred by Florida’s absolute immunity for litigation conduct.
Id., aff'd, Green Leaf,
341 F.3d at 1302 . The Eleventh Circuit affirmed this conclusion.
Id.
Plaintiff-Growers in these cases have not disputed that the misconduct allegedly committed by DuPont that forms the basis for the majority of the claims in this lawsuit bears some relation to other judicial proceedings that were going on concurrently to the underlying lawsuit (Statement of Material Facts ¶ 64), just as Plaintiffs in Case No. 98-2256 could not dispute that their claims bore some relation to a judicial proceeding. Regarding the Alta Labs data, Plaintiffs in Case No. 98-2256 alleged that DuPont refused to produce the results and raw data when ordered to do so by the Bush Ranch trial court.
Florida Evergreen I,
135 F.Supp.2d at 1283. Plaintiff-Growers make the same allegations. (First Amended Complaint ¶¶ 72-88; Complaint, Case No. 99-2307, ¶¶ 71-87; Complaint, Case No. 00-2771, ¶¶ 61-74, 87,). According to Plaintiffs in Case No. 98-2256, DuPont allegedly prepared a false summary of the Alta Labs data, which it presented at trial through its expert at the Bush Ranch trial, who also testified falsely in court.
Florida Evergreen I,
135 F.Supp.2d at 1283. Plaintiff-Growers make the same allegations. (First Amended Complaint ¶¶ 84-90;
*1277
Complaint, Case No. 99-2807, ¶¶ 88-89; Complaint, Case No. 00-2771, ¶¶ 88-91). Case No. 98-2256 Plaintiffs also alleged that DuPont’s attorneys made false statements to the court in the
Billy Lambert v. DuPont
case regarding Alta Labs test results, and faded to correct those false statements.
Florida Evergreen I,
135 F.Supp.2d at 1283. Plaintiff-Growers make the same allegations. (First Amended Complaint ¶¶ 100-104; Complaint, Case No. 99-2307, ¶¶ 99-103; Complaint, Case No. 00-2771, ¶¶ 97-103). Furthermore, in Case No. 98-2256, DuPont was alleged to have fraudulently concealed Alta Labs test results to the court in the Hawaii Benlate litigation by presenting false testimony and falsely asserting the work-product privilege.
Florida Evergreen I,
135 F.Supp.2d at 1283. Once again, Plaintiff-Growers make the same allegations. (First Amended Complaint ¶¶ 107-113, 129-134; Complaint, Case No. 99-2307, ¶¶ 106-112, 128-133; Complaint, Case No. 00-2771, ¶¶ 104-135).
Regarding the Costa Rica field tests, Plaintiffs in Case No. 98-2256 alleged that DuPont conducted field tests in Costa Rica in 1992 that showed that Benlate was defective.
Florida Evergreen I,
135 F.Supp.2d at 1283. Plaintiff-Growers again make the same allegations. (First Amended Complaint ¶ 191; Complaint, Case No. 99-2307, ¶ 206; Complaint, Case No. 00-2771, ¶ 190). According to Plaintiffs in Case No. 98-2256, DuPont then destroyed the results and denied the existence of the field tests in discovery responses and in the courtroom.
Florida Evergreen I,
135 F.Supp.2d at 1283. These allegations are made by Plaintiff-Growers as well. (First Amended Complaint ¶¶ 191-227; Complaint, Case No. 99-2307, ¶¶ 206-238; Complaint, Case No. 00-2771, ¶¶ 190-222). Plaintiff-Growers claim that the existence of this scheme was uncovered in the
Davis Tree Farms, Inc. v. DuPont
case.
Florida Evergreen I,
135 F.Supp.2d at 1283;
see also
First Amended Complaint ¶ 218; Complaint, Case No. 99-2307, ¶229; Complaint, Case No. 00-2771, ¶ 213.
I conclude as I did in
Florida Evergreen I
that these acts allegedly committed by DuPont were related to other judicial proceedings and that DuPont is therefore immune from civil liability for its actions.
Florida Evergreen I,
135 F.Supp.2d at 1283. The Eleventh Circuit affirmed my conclusion, stating that “[bjecause DuPont’s alleged misconduct occurred during the Underlying Litigation and during other Benlate litigation, according to
Levin ,
Florida law clearly provides an absolute immunity to DuPont for their alleged misconduct.”
Green Leaf,
341 F.3d at 1302-03 . Accordingly, judgment is entered in DuPont’s favor on Plaintiff-Growers’ claims that are based on litigation conduct. These claims include Counts I, II, III, V, VIII, IX, X, XI, and XIII.
(2) Reasonable Reliance: Counts I, II, III, and V
DuPont argues as an alternative basis for entering judgment in its favor on Counts I, II, III, and V that Plaintiff-Growers cannot establish reasonable reliance on DuPont’s representations during settlement because they were involved in cases in which DuPont had already been accused of fraud. Plaintiff-Growers’ Memorandum in Opposition argues that the reasonable reliance rule does not bar their claims because they were represented by a different attorney and were involved in different cases than the Plaintiffs in Case No. 98-2256. Thus, they argue that they were merely monitoring the underlying lawsuit involving those Plaintiffs, and they were not in any more of an antagonistic relationship than other parties to a suit. I conclude that these minor differences do not distinguish Plaintiff-Growers’ cases from Case. No. 98-2256.
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Plaintiff-Growers cannot establish reasonable reliance. In Mergens, the Eleventh Circuit established a bright line rule regarding reliance: when negotiating or attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to rely on representations made by the allegedly dishonest parties.
Green Leaf,
341 F.3d at 1304 . (citations omitted). Reliance was unjustified as a matter of law in
Mergens
because the plaintiffs were sophisticated “players” in the industry and were represented by-counsel, the parties had been in an adversarial relationship since well before the execution of the agreement, and the existing controversy between the parties involved allegations of fraud and/or dishonesty by the defendants.
Id.
(citations omitted).
Likewise, in Case No. 98-2256, the Eleventh Circuit explained that Plaintiffs were represented by counsel throughout the Underlying Litigation, that counsel monitored other Benlate cases throughout the country, and that counsel knew that DuPont had been accused of discovery abuses in other cases.
Id.
Further, the Eleventh Circuit explained that the parties were in an antagonistic relationship, in which the settled litigation involved claims of actual fraud against DuPont, as well as ongoing accusations of discovery fraud and other dishonest litigation conduct.
Id.
According to the court, both the past and current claims involved the same type of fraudulent conduct.
Id.
In these cases, Plaintiff-Growers do not dispute that they were represented by counsel in the underlying settlement agreements. (Plaintiff-Growers Disputed Material Facts, DE # 449, filed April 20, 2004, ¶ 32). Further, they do not dispute that with the exception of Plaintiff-Growers in Case No. 99-2308 and 99-2310
(see
Statement of Material Facts ¶ 14), they were represented by Sheehe
&
Vendittelli or by Malone
(See
DuPont’s Statement of Material Facts ¶ 13).
31
Both counsel had accused DuPont of fraud prior to the execution of the first settlement agreements in 1994. Specifically, in a trial in Florida state court on December 21, 1993, Sheehe engaged in the following discussion with the court:
Mr. Sheehe: [DuPont] withheld this information from the public, they made false statements to the public whether sulfonylureas were contained in the product. We are going to have all kinds of people get up on the witness stand and say there are no sulfonylureas in this product, that they never found it, which is just not true. This all goes to that.
The Court: You are saying by them destroying results and documentation there is an inference that they are hiding something?
Mr. Sheehe: Not an inference, it is a fact. That’s our position, with all due respect.
(Ocariz Declaration at Exh. H). Also prior to the 1994 settlements, Malone joined in a motion to seeking to vitiate DuPont’s attorney-client privilege claims on the allegation that DuPont “was fraudulent in [its] recalls and in [its] dissemination of information, both before and after the recalls.” (First Raider Declaration at Exh. BB). At a January 6, 1994 hearing on the motion, the plaintiffs argued that DuPont was engaged in an “ongoing fraud” to conceal evidence of Benlate contamination.
(Id.
at Exh. DD). Plaintiffs’ counsel stated,
*1279
“What [DuPont] is doing is indeed covering up the actual finding of sulfonylurea herbicides in [its] product, and this is part of the fraud.”
(Id.).
Further, counsel argued, “If the Court reads those [documents] closely, you will notice of a constant pattern by DuPont employees of firing data.”
(Id.).
Finally, counsel stated, “What we are trying to show the Court is that actually this was an ongoing fraud.”
(Id.).
Thus, Plaintiff-Growers’ attorneys, whether the attorneys were from Sheehe & Vendittelli or the Malone law firm, accused DuPont of fraud in other cases in some cases, in the underlying actions, before the settlements in 1994.
Further, all Plaintiff-Growers, including the ones who were not represented by Sheehe & Vendittelli or Malone, admit that they monitored the
Bush Ranch
trial (Plaintiff-Growers Disputed Material Facts, DE #449, filed April 20, 2004, ¶ 32), in which Judge Elliot held that DuPont intentionally withheld documents relating to contamination of Benlate and in which DuPont’s attorneys were accused of making fraudulent misrepresentations to cover up alleged defects in Benlate
(see id.
at ¶ 13 (admitting that
Bush Ranch
counsel made allegations of misconduct during that case); DuPont’s Concise Statement of Facts, DE #420, filed January 13, 2004). Although Plaintiff-Growers argue in their Disputed Material Facts that prior allegations of fraud did not involve the ALTA or Costa Rica tests (¶ 13), these prior accusations of fraud involve the same type of fraud alleged in this case, that DuPont withheld information and made misrepresentations regarding Benlate’s defects. Because Plaintiff-Growers knew that DuPont was accused of committing fraud and other dishonest litigation conduct to cover up alleged defects in Benlate, based on the
Mergens
rule and the
Green Leaf
ruling, they could not have reasonably relied on DuPont’s representations regarding Ben-late’s defects. Thus, judgment is entered in DuPont’s favor as to Plaintiff-Growers’ claims for fraud, Counts I, II, III, and V.
(S) RICO Claims: Reasonable Reliance and Direct Injury
Summary judgment is also entered in DuPont’s favor on Plaintiff-Growers’ RICO claims, Counts VI and VII. The undisputed record shows that Plaintiff-Growers cannot prove reasonable reliance or direct injury.
32
(a) Reasonable Reliance
Plaintiff-Growers allege that DuPont violated RICO by committing multiple acts of mail and wire fraud.
(See, e.g.,
First Amended Complaint ¶ 280). As explained above, however, DuPont has proved that Plaintiff-Growers cannot show reasonable reliance. The Eleventh Circuit confirmed that “to establish a RICO fraud claim Plaintiffs must make the same showing of reasonable reliance that is required for establishing common law fraud.”
Green Leaf,
341 F.3d at 1306 . Thus, applying the
Mergens
rule and
Green Leaf
ruling to the facts recited in the previous section requires that judgment be entered in DuPont’s favor on the RICO violations based on predicate acts of mail and wire fraud.
(b) Direct Injury
The only other predicate acts alleged are obstruction of justice and tam
*1280
pering with a witness.
(See, e.g.,
First Amended Complaint ¶ 280). DuPont argues that Plaintiff-Growers were not parties in the cases in which these alleged predicate acts occurred. Thus, DuPont states, they cannot allege a direct enough injury to satisfy proximate cause requirements. Plaintiff-Growers respond that Plaintiff-Growers Richard Hattaway and Caribe Bromelias, Case No. 99-2310, were parties in one of the cases in which DuPont committed RICO violations, thus undercutting DuPont’s indirect injury argument.
Based on relevant case law and the record before me, I conclude that Plaintiff-Growers have not established direct injury. The Eleventh Circuit affirmed judgment on the pleadings in DuPont’s favor when faced with substantially similar claims of obstruction of justice and witness tampering in
Green Leaf,
341 F.2d at 1307-08.
Id.
The Eleventh Circuit explained that federal obstruction and witness intimidation claims are only applicable to federal proceedings.
Id.
(citation omitted). The only federal case in which Plaintiffs in Case No. 98-2256 alleged that any of the predicate acts took place was the Bush Ranch case.
Id.
Plaintiffs were not parties to the
Bush Ranch
case, but alleged that it was one of the cases that their attorneys were monitoring closely.
Id.
The Eleventh Circuit explained, however, that “a plaintiff who complaints] of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts [is] generally said to stand at too remote a distance to recover.”
Id.,
quoting
Holmes v. Securities Investor Protection Corp.,
503 U.S. 258, 268-69 , 112 S.Ct. 1311, 1318 , 117 L.Ed.2d 532 (1992). Thus, predicate acts alleged to have occurred during federal proceedings in which one is not a party do not allege a direct enough injury to meet proximate cause requirements.
Id.
Plaintiff-Growers’ obstruction of justice and tampering with a witness claims are based on the
Bush Ranch
trial, in which none of the Plaintiff-Growers were parties.
(See
Concise Statement of Material Facts ¶ 70, citing First Amended Complaint ¶¶ 52-97). Plaintiff-Growers argue that DuPont’s illegal activities occurred in the
Shady Grove
and
Caribe Bromelias
lawsuits; thus, they contend, Plaintiff-Growers in Case No. 99-2310 meet direct injury and proximate cause requirements.
(See
Disputed Material Facts ¶ 37). Plaintiff-Growers in that case, however, did not make any allegations regarding obstruction of justice in relation to
Caribe Brome-lias
in their Complaint. These Plaintiff-Growers are not permitted to amend its Complaint through its opposition summary judgment.
See In re Andrx Corp., Inc.,
296 F.Supp.2d 1356, 1367 (S.D.Fla.2003) (“The undersigned will not entertain Plaintiffs’ new theory raised for the first time in response to Defendants’ motion for summary judgment as it is not properly before the Court.”), citing
Shanahan v. City of Chicago,
82 F.3d 776, 781 (7th Cir.1996) (“A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment”). Thus, based on the Complaint, which only alleges obstruction of justice and witness tampering in
Bush Ranch,
and based on the record, in which it is undisputed that Plaintiff-Growers were not parties in
Bush Ranch,
Plaintiff-Growers have not met direct injury requirements.
No reasonable trier of fact could conclude based on this record that Plaintiff-Growers can demonstrate justifiable reliance on DuPont’s acts of mail and wire fraud or proximate cause between the alleged acts of obstruction of justice and witness tampering and their injuries. Thus, Plaintiff-Growers cannot establish any valid predicate acts. Absent valid predicate acts, there can be no RICO vio
*1281
lations. Accordingly, summary judgment is entered in DuPont’s favor on Counts VI and VII.
(k) Spoilation: Count XII
DuPont argues that judgment should be entered in its favor on the spoliation claims for the same reasons my previous Orders entered, and
Green Leaf
affirmed, judgment in their favor as to the spoilation claims: (1) Plaintiff-Growers allege concealment, rather than destruction, of evidence, and (2) the effect of any alleged destruction would only be cumulative. Plaintiff-Growers do not respond to these arguments. My own review of the record and relevant case law leads me to enter summary judgment in DuPont’s favor as to the spoilation claims.
The elements of a spoliation claim are (1) the existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action; (3) destruction of that evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages.
Green Leaf,
341 F.3d at 1308-1309 (citations omitted). The Eleventh Circuit explained that Case No. 98-2256 Plaintiffs’ spoliation claim rested more on concealment than actual destruction, even though no Florida case has ever held that concealment of evidence constitutes spoliation.
Id.
To the contrary, the court stated, spoliation is defined as the “destruction” of evidence or the “ ‘significant and meaningful alteration of a document or instrument.’ ”
Id.
(quoting source omitted). Further, Plaintiffs could not show significant impairment.
Id.
Plaintiffs did not assert that DuPont destroyed evidence essential to the Plaintiffs’ case, such as Plaintiffs’ own plants or the allegedly defective Benlate that Plaintiffs claim to have applied to their plants.
Id.
Likewise, there is no evidence of significant impairment in the record before me. In response to DuPont’s assertion that no reasonable trier of fact could conclude, based on this record, that DuPont’s concealment significantly impaired Plaintiff-Growers’ ability to prove their suits, Plaintiff-Growers cite the First Amended Complaint and the Malone Deposition. (Disputed Material Facts ¶ 38). Even if I were required to consider the statements in the First Amended Complaint true rather than mere allegations at the summary judgment stage, the referenced statements fail to mention significant impairment, as do the remaining allegations in the complaints. (Se
e, e.g.,
First Amended Complaint ¶¶ 296-298). Further, the Malone deposition simply states that in a products liability case, testing by the defendant is “one of the most valuable pieces of evidence that you can have.” (Plaintiff-Growers Exh. 17 at 149-151). Under the
Green Leaf
decision, this evidence fails to establish significant impairment. Rather, the Eleventh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2526185. Public record. Not legal advice.