Dimitar Petlechkov v. FEDEX Corporation

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 22, 2024
• Docket: 23-12259
• Status: Unpublished

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-12259 Non-Argument Calendar ____________________

DIMITAR PETLECHKOV, Plaintiff-Appellant, versus FEDEX CORPORATION, FEDERAL EXPRESS CORPORATION, FEDEX CORPORATE SERVICES, INC, THOMAS W. MURREY, JR., ANDREW C. NEWBON, et al.,

Defendants-Appellees.

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2 Opinion of the Court 23-12259

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:22-cv-04555-JPB ____________________

Before BRASHER, ABUDU, and TJOFLAT, Circuit Judges. PER CURIAM: Dimitar Petlechkov, proceeding pro se, brings forth an ap- peal challenging the District Court’s order dismissing his amend- ed complaint on a frivolity determination pursuant to 28 U.S.C. § 1915(e)(2). The District Court’s determination that Petlechkov did not satisfy the requirements for stating a claim under O.C.G.A. §§ 16-14-1 et seq. (“RICO”) was not erroneous. Rather, its determination stems from Petlechkov’s failure to present fac- tual allegations meeting the proximate causation element essen- tial for a Georgia RICO claim. Because we discern no error in the District Court’s dismissal of Petlechkov’s amended complaint, we affirm on the basis of the District Court’s order attached here. AFFIRMED. USCA11 Case: 23-12259 Document: 17-1 Date Filed: 02/22/2024 Page: 3 of 16

23-12259 Opinion of the Court 3

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

DIMITAR PETLECHKOV, Plaintiff, v. CIVIL ACTION NO. 1:22-CV-4555-JPB FEDEX CORPORATION, et al.,

Defendants.

ORDER

This case is before the Court on a frivolity determination pursuant to 28

U.S.C. § 1915(e)(2). The Court finds as follows:

BACKGROUND

Dimitar Petlechkov (“Plaintiff”), proceeding pro se, brings this action

against FedEx Corporation; Federal Express Corporation (“FedEx Express”);

FedEx Corporate Services, Inc. (“FedEx Services”); Thomas W. Murrey, Jr.;

Andrew C. Newbon; and Olivia H. Waites (collectively, “Defendants”).1 [Doc. 3].

In the Complaint, Plaintiff alleges that Defendants violated Georgia’s Racketeer

Influenced and Corrupt Organization (“RICO”) statute, O.C.G.A. §§ 16-14-1 et

1 On November 15, 2022, Plaintiff filed an application for leave to proceed in forma pauperis in this Court, [Doc. 1], and on November 18, 2022, the Magistrate Judge granted Plaintiff’s application, [Doc. 2]. Case 1:22-cv-04555-JPB Document 7 Filed 04/07/23 Page 2 of 13 USCA11 Case: 23-12259 Document: 17-1 Date Filed: 02/22/2024 Page: 5 of 16

seq. Id. at 1. According to the Complaint, FedEx Corporation is the parent and

holding company for FedEx Express and FedEx Services. Id. Murrey is a

litigation attorney for FedEx Express, and Newbon and Waites are employees of

FedEx Services. Id. at 2, 3.

The events forming the basis of the Complaint occurred between January

2009 and early 2022. In January 2009, Plaintiff misrepresented to FedEx that he

was a vendor for General Dynamics, a prominent FedEx customer. Id. at 2. As a

result of this misrepresentation, Plaintiff received a discounted rate on his FedEx

account for over five years. Id. During this time, Plaintiff resold FedEx services

to third parties at a markup. Id.

Between March and April 2014, Newbon discovered that Plaintiff was not

entitled to the discount, closed Plaintiff’s account and initiated an internal

investigation. Id. That investigation concluded in November 2014 with the

recommendation that FedEx file a civil suit against Plaintiff to recover losses or

pursue criminal charges. Id. At some point between December 2014 and June

2015, Murrey contacted the U.S. Attorney’s Office, which declined to bring

charges against Plaintiff at that time. Id. at 3. In July 2015, Murrey filed a civil

suit against Plaintiff on behalf of FedEx Express in the Northern District of

Georgia. Id.

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Plaintiff deposed Waites on September 16, 2016, as part of the discovery

process in the civil suit. Id. During that deposition, Waites testified that FedEx

policy did not authorize extending discounts to vendors of national accounts such

as General Dynamics. Id. Plaintiff alleges that this testimony was false; that

Waites knew that the testimony was false; and that Murrey deliberately encouraged

Waites to testify falsely to further FedEx’s chances of prevailing over Plaintiff. Id.

at 4. Plaintiff also asserts that he relied on this allegedly false testimony to

conclude that misrepresenting his status as a General Dynamics vendor was not

material in FedEx’s decision to provide a discount. Id. More specifically, Plaintiff

claims that because vendors were not eligible to receive discounted pricing in the

first instance, his “misrepresentation simply could not be material.” Id. Plaintiff

further concluded that because materiality is an element in both civil and criminal

fraud, he could not face liability for his misrepresentation in either a civil or

criminal case. Id.

Plaintiff himself was deposed on September 20, 2016. Id. at 5. During his

deposition, Plaintiff testified “openly, honestly, and without limitations” about

misrepresenting his status as a vendor in 2009. Id. Plaintiff alleges that he relied

on the legal conclusions he drew from Waites’s deposition testimony when he

decided to testify at his own deposition, as well as when he turned down settlement

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offers from FedEx Express ranging from $95,000 to $150,000 between September

and December 2016. Id.

On January 27, 2017, Plaintiff deposed Newbon, who, like Waites, testified

that vendors to General Dynamics were not eligible for discounts. Id. at 6.

Plaintiff alleges that Murrey also directed Newbon to testify falsely “to keep his

testimony consistent” with Waites’s earlier testimony. Id. Neither Waites nor

Newbon ever filed an errata sheet or other document indicating that these

statements were false. Id. at 5, 6.

Plaintiff alleges that Murrey returned to the U.S. Attorney’s Office in

February 2017, this time “armed” with Plaintiff’s September 2016 deposition. Id.

at 6. Plaintiff was indicted on criminal charges in November 2017. Id. Again

relying on the legal conclusions he formed from Waites’s testimony, Plaintiff

decided not to pursue any plea offers with the U.S. Attorney’s Office. Id. Instead,

Plaintiff proceeded to trial. Id. at 7.

On April 3, 2018, Newbon testified at Plaintiff’s trial that General Dynamics

vendors could receive discounts under FedEx’s standard operating procedure. Id.

Plaintiff was found guilty by a jury. Id. According to Plaintiff, Murrey testified at

Plaintiff’s sentencing that FedEx policy permitted vendors to receive discounts

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belonging to national accounts such as General Dynamics. Id. A court of appeals

affirmed Plaintiff’s conviction twice. Id.

In the Complaint, Plaintiff alleges that Defendants’ actions amount to a

RICO violation. More specifically, Plaintiff claims that Defendants “conspired

and collaborated to procure [P]laintiff’s confession and then conviction by

misleading and tricking him through the commission of two acts of perjury and

two acts of subornation of perjury.” Id. Plaintiff asserts that Defendants worked

toward the “common goal” of “obtain[ing] pecuniary gain and inflict[ing]

economic injury” on him. Id. Plaintiff seeks damages as a result.

ANALYSIS

A. Legal Standard

Because Plaintiff filed this action in forma pauperis, the Court must review

the Complaint under 28 U.S.C. § 1915(e)(2). This statute requires the Court to

dismiss a case if the action is frivolous, fails to state a claim on which relief may

be granted or seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2). Section 1915(e)(2) aims to “discourage the filing

of, and waste of judicial and private resources upon, baseless lawsuits that paying

litigants generally do not initiate because of the costs of bringing suit and because

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of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil

Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).

“Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same

standard as dismissal for failure to state a claim under [Federal Rule of Civil

Procedure] 12(b)(6).” Wilkerson v. H&S, Inc., 366 F. App’x 49, 51 (11th Cir.

2010). As a threshold matter, a pleading must contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

A complaint fails to state a claim to relief, however, when it does not include

enough factual matter to “give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). As such, a complaint must “‘contain either direct or inferential allegations

respecting all the material elements necessary to sustain a recovery under some

viable legal theory.’” Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,

1282–83 (11th Cir. 2007) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253

F.3d 678, 683 (11th Cir. 2001)). Although “legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see also Oxford Asset Mgmt. v.

Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (“[C]onclusory allegations,

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unwarranted deductions of facts or legal conclusions masquerading as facts will

not prevent dismissal.”).

Finally, because Plaintiff is pro se, this Court has an obligation to construe

his pleadings liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998). “This leniency, however, does not require or allow courts to rewrite an

otherwise deficient pleading in order to sustain an action.” Thomas v. Pentagon

Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010). Pro se litigants must

follow the Federal Rules of Civil Procedure, Rodriguez v. Scott, 775 F. App’x 599,

602 (11th Cir. 2019), including Rule 8’s requirement that any complaint contain a

short and plain statement of the claim to relief, Fed. R. Civ. P. 8(a)(2).

B. RICO Claim

Plaintiff’s sole claim is that Defendants violated the Georgia RICO statute

by conspiring to procure his confession during the civil proceedings and to secure

his subsequent criminal conviction. O.C.G.A. § 16-14-4(b) makes it unlawful for

“any person employed by or associated with an enterprise to conduct or participate

in, directly or indirectly, such enterprise through a pattern of racketeering activity.”

In turn, a “pattern of racketeering activity” is defined as “‘engaging in at least two

predicate acts of racketeering activity.’” Duvall v. Cronic, 820 S.E.2d 780, 789

(Ga. Ct. App. 2018) (quoting Ali v. State, 761 S.E.2d 601, 604 (Ga. Ct. App.

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2014)). These “predicate acts” are set forth in the Georgia RICO statute. See

O.C.G.A. § 16-14-3(5)(A).

To state a RICO claim under Georgia law, a plaintiff must show (1) “that the

defendants violated or conspired to violate the RICO statute;” (2) “that as a result

of this conduct the plaintiff has suffered injury;” and (3) “that the defendant[s’]

violation of or conspiracy to violate the RICO statute was the proximate cause of

the injury.” Wylie v. Denton, 746 S.E.2d 689, 693 (Ga. Ct. App. 2013). Below,

the Court analyzes the first element before addressing the second and third

elements together.

1. Predicate Acts of Racketeering Activity

To establish the first element of a RICO claim, “the plaintiff must

demonstrate that the statute has been violated, including that the defendant

engaged in at least two predicate acts of racketeering activity.” Vernon v.

Assurance Forensic Acct., LLC, 774 S.E.2d 197, 210 (Ga. Ct. App. 2015). As

relevant here, “predicate acts of racketeering activity” include perjury and related

crimes, see O.C.G.A. § 16-14-3(5)(A)(xxv), as well as influencing witnesses, id. §

16-14-3(5)(A)(xxvii).

Plaintiff alleges that at least two of the named defendants (Waites and

Newbon) committed perjury in their depositions during Plaintiff’s civil case.

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Plaintiff also asserts that Murrey deliberately and knowingly influenced their false

testimony. Plaintiff expressly contends that these actions constitute predicate acts

of racketeering activity under O.C.G.A. § 16-14-3(5)(A). Given the Court’s duty

to construe Plaintiff’s pleadings liberally and accept well-pleaded facts as true, the

Court finds that Plaintiff has sufficiently alleged that Defendants committed two or

more predicate acts that would constitute a pattern of racketeering activity. As

such, Plaintiff’s allegations establish the first element of a RICO claim.

2. Injury and Proximate Cause

Because the final two elements of a RICO claim—injury and proximate

cause—are related, the Court addresses them together. A plaintiff bringing a

RICO claim under Georgia law must “‘show an injury by a pattern of racketeering

activity.’” Dixon v. Branch Banking & Tr. Co., 824 S.E.2d 760, 766 (Ga. Ct. App.

2019) (quoting Brown v. Freedman, 474 S.E.2d 73, 77 (Ga. Ct. App. 1996)).

Importantly, a plaintiff must show that this injury “was the direct result of a

predicate act targeted toward [him], such that [he] was the intended victim.”

Wylie, 746 S.E.2d at 694; see also Nicholson v. Windham, 571 S.E.2d 466, 468

(Ga. Ct. App. 2002) (holding that a RICO plaintiff “must show a direct nexus

between at least one of the predicate acts . . . and the injury [he] purportedly

sustained”). The standard for establishing causation is high: “When a court

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

whether the alleged violation led directly to the plaintiff’s injuries.” Pollman v.

Swan, 723 S.E.2d 290, 292 (Ga. Ct. App. 2011) (quoting Anza v. Ideal Steel

Supply Corp., 547 U.S. 451, 461 (2006)). In sum, “a plaintiff asserting a RICO

claim must allege more than that an act of racketeering occurred and that [he] was

injured.” Wylie, 746 S.E.2d at 694.

Plaintiff claims that Waites’s and Newbon’s allegedly false deposition

testimony led him to provide incriminating testimony in his civil case, decline

settlement offers in that suit and choose not to engage in plea negotiations during

his criminal proceedings, all of which, according to Plaintiff, resulted in substantial

injury. However, even accepting these allegations as true and construing them

liberally, Plaintiff’s claimed injuries (litigation expenses, a higher restitution award

and the harms associated with his criminal conviction) flow not only from the

alleged perjury, but also from Plaintiff’s own deposition testimony and his

personal decision about whether to plea during his criminal proceedings. Although

the purported perjury may have played some role in those decisions, Plaintiff’s

injuries are the “direct result” of the disposition of his civil case and of his criminal

conviction, id., and did not occur “by reason of” the perjury itself, Nicholson, 571

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S.E.2d at 467. These facts break the chain of causation and thus defeat the

necessary showing of proximate cause for a RICO claim.

Ultimately, Plaintiff’s injuries may be a potentially foreseeable outcome of

Defendants’ alleged actions, but the Complaint fails to show that they are the direct

result of those acts. See Najarian Cap., LLC v. Clark, 849 S.E.2d 262, 270 (Ga.

Ct. App. 2020) (holding that a RICO claimant does not meet his burden by

showing “‘merely that his injury was an eventual consequence of the predicate act

or that he would not have been injured but for the predicate act’” (quoting Wylie,

746 S.E.2d at 694)). Thus, because Plaintiff cannot establish the element of

proximate cause, the Complaint is due to be dismissed. The Court will, however,

grant Plaintiff leave to amend.

C. Opportunity to Amend

Courts are generally required to afford a pro se plaintiff an opportunity to

amend a pleading “where a more carefully drafted complaint might state a claim.”

Woodroffe v. Fla. Dep’t of Fin. Servs., 774 F. App’x 553, 554 (11th Cir. 2019);

see also Watkins v. Hudson, 560 F. App’x 908, 911 (11th Cir. 2014) (“A court

must . . . afford a plaintiff an opportunity to amend his pro se complaint before

dismissing with prejudice unless the plaintiff expresses a desire not to amend or an

amendment would be futile.”). The Court is skeptical that the facts presented in

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the Complaint can state a claim to relief under the Georgia RICO statute,

particularly as to the element of proximate cause. Nevertheless, before dismissing

this case with prejudice and because Plaintiff has not given any indication that he

does not wish to amend his Complaint, the Court will grant Plaintiff leave to

amend.

At a minimum, Plaintiff’s amended complaint must comply with the

following instructions:

1) The amended complaint must contain a background section stating the facts relevant to all claims. The facts shall be presented in individually numbered paragraphs and presented in a logical order (which may or may not be chronological). The facts section should not contain facts that are not relevant to the claims.

2) Plaintiff must allege each cause of action, clearly identified as such, under a separate count. Underneath each count, in separately numbered paragraphs, Plaintiff must provide the relevant facts, including dates, that he believes entitle him to relief. In other words, Plaintiff should allege factual support for every cause of action asserted and, more specifically, for each element of the cause of action. This factual support must include the manner in which Defendants’ alleged conduct is related to each cause of action.

3) Plaintiff must explicitly request the relief he seeks and must provide an explanation of why he is entitled to such relief.

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Plaintiff is notified that the amended complaint will supersede all previous

pleadings. The Court will not read the pleadings in tandem. In short, Plaintiff

must ensure that his amendment complies with Federal Rule of Civil Procedure 8

and the directives of this Order.

CONCLUSION

Pursuant to the instructions above, Plaintiff shall amend the Complaint to

adequately plead a specific claim or claims within fourteen days of the date of this

Order. The clerk is DIRECTED to resubmit this matter at the expiration of the

fourteen days. Plaintiff is notified that failure to submit an amended complaint

within the fourteen-day time period will result in dismissal of the entire action.

Because this action appears frivolous, the pending motions in this case [Doc. 5]

[Doc. 6] are DENIED.

SO ORDERED this 7th day of April, 2023.