Commercial Litigation and Arbitration

Pecuniary Losses Stemming from Personal Injury Do Not Constitute Injury to Business or Property Cognizable under RICO — Amendment Futile

Keller v. Strauss, 2012 U.S. App. LEXIS 13867 (11th Cir. July 9, 2012):

Gerald Keller appeals pro se from the district court's dismissal with prejudice of his federal claims and dismissal without prejudice of his state-law claims, which Keller brought in a civil action seeking damages for: (1) medical negligence; (2) breach of contract; (3) intentional infliction of emotional distress; (4) breach of fiduciary duty; (5) violation of the Federal Racketeer Influenced and Corrupt Organizations Act ("RICO"); (6) violation of binding customary law predicated on the right to human dignity; (7) constructive fraud; (8) actual fraud; (9) common law fraud; and (10) mail fraud.1 Under his medical negligence claim, Keller also alleged violations of the Federal Food, Drug, and Cosmetic Act ("FDCA"). Keller's claim arose out of his participation as a research subject in a clinical trial designed to test the safety and efficacy of a drug intended to treat hepatitis C. Keller alleged that, after he experienced adverse side effects, the defendants denied him follow-up medical care in violation of the informed consent contracts he signed before participating in the trial. ***

I. RICO Claim

Keller argues that the district court erred in dismissing with prejudice his civil RICO claim and by finding that it would be futile to grant leave to amend the complaint.

We review de novo a district court's dismissal of a complaint for failure to state a claim. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056-57 (11th Cir. 2007). While courts should "freely give" leave to amend a pleading prior to trial, Fed. R. Civ. P. 15(a)(2), we have held that a court does not abuse its discretion if it denies leave to amend where the amendment would be futile. Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999).

To establish a federal civil RICO violation under 18 U.S.C. § 1962(c), a plaintiff must show conduct of an enterprise through a pattern of "racketeering activity." Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 (11th Cir. 2006) (quotation omitted). In order to obtain standing under RICO, the plaintiff must suffer an injury in his business or property. 18 U.S.C. § 1964(c); Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla., Inc., 140 F.3d 898, 906 (11th Cir. 1998). We decline Keller's invitation to find an exception to our precedent stating that personal injury and resulting pecuniary losses are not cognizable under RICO. Grogan v. Platt, 835 F.2d 844, 847-48 (11th Cir. 1988). Since Keller can assert only personal injury damages, the district court correctly dismissed Keller's RICO claim and found that amendment would be futile.

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