The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10460
Non-Argument Calendar
____________________
WAYNE JOHNSON FOR CONGRESS, INC.,
WAYNE JOHNSON,
Plaintiffs-Appellants,
versus
JEREMY C. HUNT,
d.b.a. Jeremy for Georgia,
FOX NEWS NETWORK, LLC,
BRIAN M. KILMEADE,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-10460
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:22-cv-00118-CDL
____________________
Before WILSON, BRANCH, AND LUCK, Circuit Judges.
PER CURIAM:
Wayne Johnson and Jeremy C. Hunt ran in the Republican
primary during the 2022 election cycle for the opportunity to
challenge Representative Sanford Bishop for his seat representing
Georgia’s Second Congressional District. Neither won: Johnson
lost in the first round of the Republican primary, and Hunt lost in
a run-off. But this case is not about election day. Rather, it is about
an alleged racketeering scheme to promote Hunt’s campaign at the
expense of Johnson and his other opponents.
Johnson and “Wayne Johnson for Congress, Inc.”
(collectively “Johnson”) allege that Hunt, his campaign “Jeremy for
Georgia,” Fox News Network, LLC (“Fox”), and on-air talent Brian
M. Kilmeade (hereinafter “Fox and Hunt”) engaged in a mail and
wire fraud racketeering scheme in which they conspired to flip a
Democratic seat in the U.S. House of Representatives by
promoting Hunt on Fox during Georgia’s 2022 primary election.
After Johnson sued, Fox and Hunt removed the case to federal
court and then moved to dismiss for failure to state a claim.
Johnson moved to amend the complaint. The district court
granted the motion to dismiss and denied the motion to amend,
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23-10460 Opinion of the Court 3
finding that Johnson did not plausibly allege that Fox and Hunt
engaged in a wire and mail fraud racketeering scheme that resulted
in compensable damages to Johnson.
We conclude that neither the original complaint nor the
proposed amended complaint alleges a fraudulent racketeering
scheme against Johnson. After review, we affirm the district court’s
decision.
I. Background
Wayne Johnson and Jeremy Hunt were two (of many)
candidates in the 2022 Republican primary election for Georgia’s
Second Congressional District. After Johnson lost in the first round
of the primary election, he sued Fox and Hunt in the Superior
Court of Muscogee County, Georgia, claiming violations of the
federal and Georgia Racketeer Influenced and Corrupt
Organizations statutes (“RICO”). 18 U.S.C. § 1962(c); O.C.G.A.
§ 16-14-1 et seq. Specifically, Johnson alleges that Hunt was selected
by Senator Tom Cotton to participate in a national “Veterans to
Victory” program “to elect Republican military veterans to
Congress.” The program, in part, connects its “chosen candidates”
with Fox “for media appearances.” As relevant here, Fox hosted
Hunt at least twelve times, sometimes as a guest of Kilmeade, over
a span of five months.
In an initial segment, Hunt “announced his
candidacy . . . with significant fanfare.” In later appearances,
emphasizing his status as a West Point graduate and his experience
serving as an Army Captain, Hunt commented on politics, national
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security, and foreign affairs. He often segued into discussions about
his campaign and provided his website to solicit donations from
viewers.
Hunt’s airtime on Fox provided him with the opportunity to
“raise[] substantial sums of money from a broad-based national
audience[.]” According to Johnson, Fox did not offer similar
opportunities to the other candidates running in the Republican
primary. For example, Johnson appeared on Fox one time, and
neither he nor the on-air personality accompanying him
encouraged viewers to contribute to Johnson’s campaign.
Only once during Hunt’s appearances on Fox did he and the
Fox on-air talent acknowledge the other candidates running in the
primary election. In that acknowledgment, Hunt discussed the
runoff with Chris West and “the endorsements he had collected
over []West and Representative Sanford Bishop,” who the winner
of the runoff would face in the election for the House seat.
Johnson maintained that throughout Hunt’s campaign, Fox
“routinely promoted” Hunt “as being a native of Columbus,
Georgia, and thereby Georgia’s Second Congressional District,”
even though Hunt grew up in the metro-Atlanta area. Hunt’s
closest connection to Columbus prior to his campaign was a three-
week “temporary duty assignment to Fort Benning [near
Columbus] for Airborne Jump School[.]” More recently, Hunt
leased an apartment in Columbus.
In sum, Johnson argued that Fox and Hunt engaged in a mail
and wire fraud racketeering scheme in which they “hoodwink[ed]”
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voters with “misrepresentations, omissions, and deceptions,”
ultimately neglecting alternative Republican primary candidates
like Johnson. Under this scheme, Hunt purportedly proposed
reasons to appear on Fox News, conferred with Kilmeade and other
Fox employees, and then “appear[ed] under such false pretenses of
a discussion about a news event, only to quickly and easily navigate,
with complicity of the hosting talent, conversations to a discussion
of [his] Congressional campaign, directing viewers from all across
America to his website where they [could] contribute to his
campaign.” According to Johnson, this scheme “deprived Georgia
voters of meaningful participation in their . . . Congressional
Republican election[.]” Johnson also alleges that he was “harmed
by the deprivation of equal access to . . . Fox News.” As for
damages, Johnson requested “an award equaling the fair market
value” of Hunt’s airtime on Fox and “an award equaling the
contributions made to [Hunt] that can be directly tied to donations
made as a result of ” the alleged racketeering scheme.
Pursuant to 28 U.S.C. §§ 1331, 1441(a), and 1446, Fox and
Hunt timely removed the action to federal court based on federal
question jurisdiction. Fox and Kilmeade then moved to dismiss for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), joined fully by Hunt, arguing that Johnson failed to plead
any racketeering activity under federal or Georgia RICO statutes
and failed to plead damages.
Johnson later moved to amend the complaint. The proposed
amended complaint added slightly more detail regarding: Hunt’s
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campaign, Fox and Hunt’s decision not to reference Hunt’s
opponents, Fox’s alleged violations of the Equal Time Rule, and
Fox’s support of Republican candidates in other primaries in 2022.
It also included two new predicate acts under Georgia’s RICO
statute: perjury and false swearing.
The district court granted Fox and Hunt’s motion to dismiss
and denied Johnson’s motion for leave to amend. 1 First, in granting
the motion to dismiss, the court determined that “the [alleged]
exaggeration of Hunt’s national security credentials, the
misleading characterization of his connection to the district, and
the concealment of the contested nature of the Republican
primary” did not “plausibly allege the two predicate acts of wire
and mail fraud” and “there [was] no resulting injury to [Johnson].”
The court added that the alleged misrepresentations—which were
directed at the voters, not at Johnson—did not support an
actionable case of fraud based on “misrepresentations to a third
party” under Supreme Court precedent.
Second, turning to the motion for leave to amend, the
district court concluded that “the[] deficiencies in [the] complaint
[were] not fixable.” Because “allowing [Johnson] to amend the[]
1 Following removal, Johnson moved to remand the action, arguing that in his
proposed amended complaint, “the Georgia RICO claims . . . clearly and
substantially predominate over the Federal RICO claims.” While the district
court did not explicitly address Johnson’s motion to remand, the court stated
it “ha[d] jurisdiction based on federal question jurisdiction.”
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complaint would be futile,” the court denied the motion for leave
to amend.
Johnson timely appealed the dismissal of his claims and the
denial of his motion for leave to amend.
II. Discussion
Johnson argues on appeal that the district court erred when
it (1) concluded that his complaint failed to properly allege mail and
wire fraud under federal and Georgia RICO statutes and (2) denied
his motion for leave to amend. After review, we conclude that the
district court properly dismissed Johnson’s complaint for failure to
state a claim and properly denied his motion for leave to amend.
We therefore affirm the district court’s decision.
A. Standard of Review
“We review de novo the dismissal of a civil RICO complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).” Simpson v.
Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir. 2014). To survive
a Rule 12(b)(6) motion to dismiss a complaint for failure to state a
claim, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted); Fed.
R. Civ. P. 12(b)(6). We “accept[] the allegations in the complaint as
true and constru[e] them in the light most favorable to the
plaintiff.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th
Cir. 2010). Yet labels, conclusions, and formulaic recitations of the
elements “will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
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“We review a district court’s denial of leave to amend a
complaint for an abuse of discretion.” Chabad Chayil, Inc. v. Sch. Bd.
of Miami-Dade Cnty., 48 F.4th 1222, 1229 (11th Cir. 2022).
We first address whether Johnson has plausibly alleged civil
violations of federal and Georgia RICO statutes. We then turn to
whether the district court properly denied Johnson’s motion for
leave to amend the complaint.
B. Whether Johnson plausibly alleged violations of
federal and Georgia RICO statutes.
We must first address whether Johnson’s factual allegations,
when taken as true as required at the pleadings stage, sufficiently
allege mail and wire fraud under federal and Georgia RICO
statutes. The district court concluded that they did not. 2 We
2 The parties debate whether the district court applied the correct standard
when dismissing Johnson’s complaint for failure to state a claim. Johnson
argues that “[t]he district court erred by not construing the facts set forth in
the Complaint as true and in [Johnson’s] favor” because, if the district court
had done so, “it should have found that the Complaint set forth the necessary
factual allegations” to establish his case. Fox and Hunt argue that the district
court “undeniably applied the correct formulation” of the law.
We agree with Fox and Hunt that the district court applied the correct legal
standard. In its analysis, the court appropriately focused on whether the
complaint satisfied the facial “plausibility standard” under Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)—
the two cases that formed the pleading standard. Therefore, concluding that
the district court applied the correct standard, we focus our analysis on
whether the complaint plausibly alleged civil violations of federal and Georgia
RICO statutes.
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agree. 3
We start, as we must, with the statutes. “The federal and
Georgia racketeering acts are essentially identical[.]” Feldman v.
Am. Dawn, Inc., 849 F.3d 1333, 1342 (11th Cir. 2017) (quotations
omitted)). Under the federal 4 and Georgia5 statutes, a plaintiff
3 The district court also criticized Johnson’s decision to allege that the fraud
was directed at voters rather than him. While the court acknowledged that,
under Supreme Court precedent, there are “some circumstances [where]
misrepresentations to a third party could be actionable,” it concluded that
those “circumstances [were] not present here.” See Bridge v. Phoenix Bond &
Indem. Co., 553 U.S. 639, 658 (2008). Because we conclude that the district
court properly determined that Johnson’s allegations of mail and wire fraud
do not meet the pleading requirements regardless of who the alleged fraud
was directed at, we need not evaluate Johnson’s third-party reliance theory.
4 Under the federal RICO statute, it is “unlawful for any person employed by
or associated with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).
5 Georgia’s RICO law provides:
(a) It shall be unlawful for any person, through a pattern of
racketeering activity or proceeds derived therefrom, to acquire
or maintain, directly or indirectly, any interest in or control of
any enterprise, real property, or personal property of any
nature, including money.
(b) It shall be unlawful for any person employed by or
associated with any enterprise to conduct or participate in,
directly or indirectly, such enterprise through a pattern of
racketeering activity.
....
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must prove that a defendant participated in an unlawful enterprise
“through a pattern of racketeering activity.” 18 U.S.C. § 1962(c);
O.C.G.A. § 16-14-4(b). Racketeering activity may include the
predicate acts of mail and wire fraud. 18 U.S.C. § 1961(1); O.C.G.A.
§ 16-14-3. 6
We have said that the predicate acts of mail and wire fraud
“occur[] when a person (1) intentionally participates in a scheme to
defraud another of money or property and (2) uses the mails or
wires in furtherance of that scheme.” Am. Dental Ass’n, 605 F.3d at
1290. “Under the mail and wire fraud statutes, a plaintiff only can
show a scheme to defraud if he proves that some type of deceptive
conduct occurred.” Ayres v. Gen. Motors Corp., 234 F.3d 514, 521
(11th Cir. 2000) (quotations omitted). Such deceptive conduct
includes “knowingly making false representations,” “concealing
material facts,” and making statements “with reckless indifference
to their truth or falsity.” United States v. Sawyer, 799 F.2d 1494, 1502
(11th Cir. 1986) (citations omitted).
When a complaint “is based on an alleged pattern of
racketeering consisting entirely of the predicate acts of mail and
wire fraud, the[] substantive RICO allegations must
comply . . . with [Federal Rule of Civil Procedure] 9(b)’s
heightened pleading standard.” Am. Dental Ass’n, 605 F.3d at 1291.
O.C.G.A. § 16-14-4.
6 O.C.G.A. § 16-14-3(5)(C) says that “‘[r]acketeering activity’ shall . . . mean
any conduct defined as ‘racketeering activity’ under 18 U.S.C. Section 1961
(1)[.]”
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Rule 9(b)’s heightened pleading standard requires that “a party
must state with particularity the circumstances constituting
fraud[.]” Id. (quotations omitted). To satisfy Rule 9(b) in the RICO
context, “a plaintiff must allege: (1) the precise statements,
documents, or misrepresentations made; (2) the time, place, and
person responsible for the statement; (3) the content and manner
in which these statements misled the Plaintiffs; and (4) what the
defendants gained by the alleged fraud.” Id. (quotation omitted).
Our analysis starts and ends at the first step.
Johnson purports to be proceeding under both mail and wire
fraud. Although Johnson lists each of Hunt’s appearances on Fox
during his campaign, Johnson only broadly alleges that Fox and
Hunt defrauded him through “misrepresentations, omissions, and
deceptions[.]” He does not show any actual fraud committed by
Fox and Hunt. See Am. Dental Ass’n, 605 F.3d at 1291–93 (stating
that although “Plaintiffs’ complaint provides a list of mailings and
wires,” it never “identif[ies] any actual fraud” and therefore the
complaint “does not plausibly . . . allege a pattern of racketeering
activity predicated on a scheme to commit acts of mail and wire
fraud”).
As best we can tell, Johnson appears to argue that Fox and
Hunt committed mail and wire fraud in two ways. 7 First, Johnson
7 Johnson also complains that Fox did not offer similar opportunities to the
other candidates running in the Republican primary. But he concedes that
violations of the Equal Time Act—which says all “legally qualified candidate[s]
for any public office” should be given “equal opportunities” to use
broadcasting stations—do not constitute predicate acts for the RICO claims.
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seems to be alleging that Fox committed fraud by not sufficiently
acknowledging the other candidates running in the primary
election. But Fox has no affirmative obligation to name other
candidates and Johnson cites no law suggesting otherwise. Second,
Johnson implies that Fox and Hunt misrepresented Hunt’s ties to
the district because they promoted Hunt as “a native of Columbus,
Georgia,” even though Hunt grew up in the metro-Atlanta area.
But Johnson does not show how incorrectly stating that Hunt is
from Columbus—while admitting that he had been stationed at
Fort Benning near Columbus and more recently signed an
apartment lease in Columbus—amounts to the concealment of
material facts. Sawyer, 799 F.2d at 1502. Nor has he shown that Fox
and Hunt’s “false” statements were “knowingly” made or made
“with reckless indifference to their truth or falsity.” Id. Thus,
because Johnson cannot point to any
“precise . . . misrepresentations” that amount to fraudulent
conduct committed by Fox and Hunt, see Am. Dental Ass’n, 605 F.3d
at 1291, we conclude that Johnson failed to allege the predicate acts
of mail and wire fraud with the heightened specificity required by
Rule 9(b). 8
See 47 U.S.C. § 315(a). And there is no private cause of action for violations of
the Equal Time Act. Belluso v. Turner Commc’ns Corp., 633 F.2d 393, 397 (5th
Cir. 1980); Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc) (holding that all decisions from the Fifth Circuit Court of Appeals issued
before September 30, 1981, are binding precedent in the Eleventh Circuit).
8 Furthermore, to the extent that Johnson is asserting claims on behalf of
voters, he lacks standing to do so. “[W]e must consider [standing issues] as a
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C. Whether the district court erred in denying Johnson’s
motion for leave to amend.
We next turn to whether the district court erred in denying
Johnson’s motion for leave to amend the complaint. Johnson
argues that allowing the proposed amendment would not be futile
because the amended pleading (1) adds factual allegations that
further prove the elements of federal and Georgia RICO claims and
(2) adds perjury and false swearing as predicate acts under
Georgia’s RICO statute. The district court said that “the[]
deficiencies in [the] complaint [were] not fixable,” and thus
“allowing [Johnson] to amend [his] complaint would be futile.”
We conclude that the district court did not abuse its
discretion in denying Johnson’s motion for leave to amend the
complaint. See Chabad Chayil, Inc., 48 F.4th at 1229. A motion for
leave to amend may be denied “where amendment would be
futile.” In re Engle Cases, 767 F.3d 1082, 1109 (11th Cir. 2014).
Amendment would be futile “when the complaint as amended is
threshold matter, regardless of whether the parties or the court below has
done so.” Granite State Outdoor Advert., Inc. v. City of Clearwater, 351 F.3d 1112,
1116 n.3 (11th Cir. 2003). To establish standing, a plaintiff “must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). This Court recognizes
“the general principle that a litigant must assert his own legal rights and
interests and may not ordinarily rely on the rights and interests of third
parties.” Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994). Because no
exceptions to this general rule apply, see id. at 1122 (naming exceptions),
Johnson only has standing to challenge an injury he suffered.
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still subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255,
1263 (11th Cir. 2004) (quotations omitted).
Johnson’s proposed amended complaint “[tells] essentially
the same story” as the operative complaint. See Crawford’s Auto Ctr.,
Inc., v. State Farm Mut. Auto. Ins. Co., 945 F.3d 1150, 1163 (11th Cir.
2019). His proposed changes fail to improve upon the original
complaint for two reasons.
First, the proposed amended complaint still does not show a
fraudulent scheme. Instead, the only substantive changes to the
complaint relating to Johnson’s mail and wire fraud claims add
slightly more detail regarding: Hunt’s campaign announcement,
Fox and Hunt’s promotion of Hunt’s campaign and website, Fox
and Hunt’s promotion of Hunt without reference to other
Republican candidates, Fox’s alleged violations of the Equal Time
Rule, and Fox’s support of Republican candidates in other
primaries in 2022. But none of these changes show any actual
fraud committed by Fox and Hunt.
Second, at best, the proposed amended pleading adds new
perjury and false swearing claims under Georgia law. But again,
these changes do nothing to cure the operative complaint of its
deficiencies. Without amending or improving upon the federal and
state mail and wire fraud claims, all that remains are the perjury
and false swearing state law claims. While the district court had
the discretion to allow Johnson to amend his complaint to
introduce these two state law claims, it also had the discretion not
to. Baggett v. First Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th
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Cir. 1997) (“[T]he Court has the discretion to decline to exercise
supplemental jurisdiction over non-diverse state law claims, where
the Court has dismissed all claims over which it had original
jurisdiction, but is not required to dismiss the case.”). While the
district court did not explicitly say so, it did not exercise its
discretion over the remaining state law claims in dismissing the
complaint and denying the motion to amend. We discern no abuse
of discretion.
Because the proposed amended complaint would not
survive a motion to dismiss for failure to state a claim, amendment
would be futile. We agree with the district court’s decision to deny
Johnson’s motion for leave to amend.
III. Conclusion
Accordingly, for the above reasons, the district court did not
err in dismissing Johnson’s complaint for failure to state a claim and
denying his motion for leave to amend his complaint.
AFFIRMED.