[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 95-8151 

D. C. Docket No. 93-CV-141-COL

BLANE CESNIK, KRISTI CESNIK,

Plaintiffs-Appellants,

versus 

EDGEWOOD BAPTIST CHURCH, d/b/a New 

Beginnings Adoption and Counseling 

Agency, et al.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Middle District of Georgia

 

(July 5, 1996)

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY,

Senior Circuit Judge. 
2

TJOFLAT, Chief Judge:

This case arises out of the adoptions of two newborn babies. 

The adopting parents contend that the adoption agency

deliberately misrepresented that the infants were healthy when,

in fact, they were severely mentally and physically disabled. 

The adopting parents brought this suit against the church that

operates the adoption agency and against three individuals

involved directly or indirectly in the adoptions. The parents'

complaint presented multiple common-law and statutory (both state

and federal) tort claims and a claim for breach of contract. On

motion for summary judgment, the district court dismissed all of

the parents' claims. This appeal followed.

With respect to the common-law tort claims, we are able to

say with confidence that the district court was correct in

relying on the statute of limitations to bar the claims. With

respect to the remainder of the appellants' claims, however, all

that we can say is that, with a few exceptions, the district

court's granting of summary judgment cannot be sustained on this

record. Our review of these claims is limited because the

appellants have presented us with a "shotgun" complaint, which is

so muddled that it is difficult to discern what the appellants

are alleging beyond the mere names of certain causes of action.

We begin this opinion with a statement of the facts, which

we glean from the depositions and affidavits that the parties

presented to the district court in support of and in opposition
 1

 The Cesniks adopted two disabled girls prior to the

adoptions that are the subject of this lawsuit. New Beginnings

was not involved with those prior adoptions.

3

to the appellees' joint motion for summary judgment. In drawing

this statement of facts, we consider the evidence in the record

in the light most favorable to the non-movants, the appellants. 

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.

Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). After setting out the

facts, we examine the appellants' complaint, and the district

court's reasons for disposing of appellants' claims. We then

explain why summary judgment was appropriate on some of

appellants' claims and why some of their claims should not have

been disposed of summarily.

I.

Blane and Kristi Cesnik, who live in St. Cloud, Minnesota,

are the parents of four severely mentally and physically disabled

children, all of whom they have adopted. They adopted their two

youngest children, Caleb and Eli, through the New Beginnings

Adoption and Counseling Agency, an unincorporated entity operated

by the Edgewood Baptist Church, a corporation organized under

Georgia law with its place of business in Columbus.1

 

In November of 1989, Kristi Cesnik called Phoebe Dawson, the

director of New Beginnings, and told Dawson that she and her

husband were seeking to adopt a healthy, non-disabled child of

any sex and any race. On November 20, 1989, a baby boy, whom the

Cesniks would name Caleb, was born at a hospital in Columbus. 
 2

 At the time of Caleb's placement, the Cesniks signed a

form that stated that they had received Caleb's medical records. 

This statement was not true. Dawson had told the Cesniks that

signing the form at that time would make it unnecessary for her

to make another trip to Minnesota.

4

Dawson contacted the Cesniks by telephone and told them that she

had obtained and reviewed the medical records of Caleb's

delivery, including the results of tests that the Cesniks had

asked to be performed. Dawson told them that all of the medical

records and other information she had obtained indicated that the

boy was perfectly healthy. Dawson also told the Cesniks that

Caleb's birth mother had received prenatal care since the sixth

week of pregnancy and that she had not used drugs during the

pregnancy.

Dawson delivered Caleb to the Cesniks on December 10, 1989,

at an airport in Minnesota. The Cesniks soon noticed that Caleb

had health problems. Four to six months after the placement, the

Cesniks received Caleb's medical records.2

 The records showed

that the birth mother had, in fact, received no prenatal care,

that she had tested positive for opiates and barbiturates at the

time of delivery, that the delivery had been complicated, and

that Caleb had been born prematurely. The Cesniks' doctors soon

diagnosed Caleb with cerebral palsy, asthma, developmental

disorders, and severe behavioral problems. The doctors suspect

that most or all of these conditions were caused by exposure to

drugs and alcohol during the pregnancy and by a lack of prenatal

care.
 3

 The Cesniks sought a black or mixed-race child in the

interest of Caleb, who is black.

5

When the Cesniks asked Dawson about the discrepancy between

the medical records and what she had told them, Dawson explained

that she had not actually reviewed Caleb's medical records before

he was placed with the Cesniks because the records had been

switched at the New Beginnings agency with those of another

mother with the same name. Dawson also claimed that Caleb's

birth mother had lied about her condition and her use of drugs. 

The Cesniks accepted Dawson's explanations. The adoption of

Caleb became final on July 10, 1990.

In December of 1990, the Cesniks contacted New Beginnings

again, seeking to adopt a healthy, non-disabled, black or mixedrace child.3

 On February 12, 1991, a baby boy, whom the Cesniks

would name Eli, was born at a hospital in Columbus. Dawson

contacted the Cesniks by telephone and told them that she had

obtained and reviewed the medical records of Eli's delivery,

including the results of tests that the Cesniks had asked to be

performed. Dawson told them that all of the medical records and

other information she had obtained indicated that the boy was

perfectly healthy. Dawson also told the Cesniks that Eli's birth

mother had received prenatal care since the early stages of her

pregnancy, and that Dawson knew the birth mother's personal

history, including the fact that the birth mother had not used

drugs during the pregnancy.
 4

 Just as they did at the time of Caleb's placement, the

Cesniks signed a form that stated that they had received Eli's

medical records. Again, this statement was not true.

6

Dawson delivered Eli to the Cesniks on April 6, 1991, at an

airport in Minnesota. The Cesniks soon noticed that Eli had

health problems, and they contacted Dawson by telephone and

requested his medical records.4 The agency sent the medical

records a week or two later. The records showed that Eli's birth

mother had, in fact, received no prenatal care and that she had

experienced severe preeclampsia and toxemia. Furthermore, no

drug test had been performed on Eli at the time of birth, as had

been requested by the Cesniks. A drug test performed on April 1

indicated the presence of codeine and morphine, although that may

have been the result of medication that Eli was taking at the

time. The records also showed that Eli had intrauterine growth

retardation and low Apgar scores. The Cesniks' doctors soon

diagnosed Eli with cerebral palsy, pseudobulbar palsy, asthma,

stomach problems, fetal alcohol syndrome, facial deformities,

colitis, a sleeping disorder, and behavior problems associated

with autism. The doctors suspect, as they do with Caleb, that

most or all of these conditions were caused by exposure to drugs

and alcohol during the pregnancy and by a lack of prenatal care.

When the Cesniks asked Dawson about the discrepancy between

the medical records and what she had told them, Dawson explained,

as she did after Caleb's placement, that she had not actually

reviewed Eli's medical records before he was placed with the

Cesniks because the records had been switched at the New
 5

 The Georgia Department of Human Resources provides

federally subsidized adoption assistance payments for children

with "special needs," including mental and physical disabilities. 

See Social Security Act of 1935, 42 U.S.C. § 673 (1994).

7

Beginnings agency with those of another mother with a similar

name. Dawson also claimed that Eli's birth mother had lied about

her condition and her use of drugs. This time, the Cesniks did

not accept Dawson's explanations.

On July 21, 1991, shortly after the Cesniks began making

inquiries about receiving an adoption assistance subsidy from the

state of Georgia for the two boys,5 Dawson met the Cesniks at

their home in Minnesota. Holding Eli in her arms, Dawson told

the Cesniks that she could withhold her consent to the Cesniks'

adoption of the boy if there was any further discussion of his

medical condition or if the Cesniks did not keep quiet about what

had happened. After this incident, the Cesniks had no further

contact with Dawson. The adoption of Eli became final on

September 26, 1991.

In August of 1992, the Cesniks made a formal complaint to

the Georgia Department of Human Resources about the manner in

which New Beginnings handled the placements of Caleb and Eli. 

The state agency investigated, found various deficiencies in New

Beginnings' adoption procedures, and required the agency to take

corrective action. 
 6

 See, e.g., Fikes v. City of Daphne, 79 F.3d 1079, 1082-83

(11th Cir. 1996); Beckwith v. City of Daytona Beach Shores, 58

F.3d 1554, 1567 (11th Cir. 1995); Pelletier v. Zweifel, 921 F.2d

1465, 1517-18 (11th Cir.), cert. denied, 502 U.S. 855, 112 S. Ct.

167, 116 L. Ed. 2d 131 (1991); T.D.S. Inc. v. Shelby Mut. Ins.

Co., 760 F.2d 1520, 1543-44 n.14 (11th Cir. 1985) (Tjoflat, J.,

dissenting).

8

II.

On December 9, 1993, the Cesniks filed a complaint in the

United States District Court for the Middle District of Georgia

against the Edgewood Baptist Church, Andy Merritt (the associate

pastor of Edgewood Baptist Church who had supervisory authority

over New Beginnings), Phoebe Dawson (the executive director of

New Beginnings), and Mary Ellen Slaughter Winton (the social case

worker hired by New Beginnings to work with Eli's birth mother

during her pregnancy). The complaint consists of three counts,

which are preceded by ninety-nine numbered paragraphs of factual

recitations that are incorporated by reference into each of the

three counts. In addition, count two incorporates all of the

allegations -- including the causes of action -- of count one,

and count three, in turn, incorporates all of the allegations --

including the causes of action -- of counts one and two. 

The complaint is the sort of "shotgun" notice pleading we

encountered in Anderson v. District Bd. of Trustees, 77 F.3d 364,

366-67 (11th Cir. 1996), and in scores of other cases -- both

reported and unreported -- that have come before this court.6 It

was framed in complete disregard of the principle that separate,

discrete causes of action should be plead in separate counts. 

Anderson, 77 F.3d at 366. Count one, for example, which is
 7

 Count two seeks to hold the individual defendants, as

well as the church, liable for breaching a contract as to which

the individual defendants are not parties. 

9

labeled "Wrongful Placement and Adoption," purports to plead at

least nine discrete theories of recovery. After alleging that

the Cesniks were induced by the appellees' misrepresentations to

adopt Caleb and Eli, the count states the following:

This count of the Complaint encompassed by the claim of

"Wrongful Placement and Adoption" and sounding in tort law,

includes but is not limited to the common law torts of

negligent breach of duty; negligent hiring, training,

supervision, discipline and retention of personnel;

negligence per se; breach of fiduciary relationship;

misrepresentation; fraud in the inducement and the act;

undue influence; duress; and intentional infliction of

emotional distress.

Nowhere in count one do the Cesniks set forth any of the elements

of these separate causes of action or the facts underpinning

them. Rather, a reader of the pleading must discern these things

for himself.

Count two is labeled "Breach of Contract." The count

alleges that in 1989 and again in 1991 the Cesniks and New

Beginnings entered into a contract for the placement of a healthy

baby. Count two does not, however, indicate whether the contract

was reduced to writing, nor does it recite the provision(s) of

the contract that New Beginnings breached.7

 All that is alleged

is that "the defendants breached their contractual agreement with

the plaintiffs for the placement and adoption of the plaintiffs'

sons Caleb and Eli." 

Count two also presents a claim for fraud with the following

allegation: "The defendants fraudulently took monies for the
10

placement of the plaintiffs' sons Caleb and Eli which were not

earned, were for services not provided, were for expenses not

incurred, and/or were not paid to the parties for whom the

Cesniks were billed." In addition, of course, by incorporating

all of the allegations of count one, count two alleges all of the

other tort claims alleged in count one.

Count three is labeled "Federal and State Conspiracy." As

we explain below, count three may be alleging five discrete

causes of action: three federal claims and two state claims. 

Count three alleges the following (with respect to both the

Cesniks' federal and state claims):

All defendants . . . came to a mutual understanding to

try to accomplish a common and unlawful plan, namely to

engage in a "pattern of racketeering activity." 

. . . 

At the time the defendants knowingly and willingly

agreed to join such a conspiracy, they did so with the

specific intent to participate in at least two (2) of the

predicate mail fraud and wire fraud offenses. 

Defendants knowingly and wilfully used the mails for

communication and telephones for conversations in Interstate

Commerce or caused to be transmitted by mail or wire in

Interstate Commerce communications for the purpose of

executing their scheme to defraud. 18 U.S.C. § 1341 and

1343.

Said conspiracy is actionable under 18 U.S.C. § 1962 et

seq. and O.C.G.A. § 16-4-1 et seq.

Under the Racketeer Influenced and Corrupt Organizations Act

("RICO"), 18 U.S.C. §§ 1961-1968 (1994) (as added by the

Organized Crime Control Act of 1970, Pub. L. No. 91-452,

§ 901(a), 84 Stat. 922, 941-48), it is illegal for persons to 
 8

 An act of "racketeering," commonly called a predicate

act, is defined to include "any act which is indictable under

. . . [18 U.S.C. §] 1341 (relating to mail fraud), [and 18 U.S.C.

§] 1343 (relating to wire fraud)." 18 U.S.C. § 1961(1)(B). The

elements of mail and wire fraud are identical. "Mail or wire

fraud occurs 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." Pelletier, 921

F.2d at 1498.

 9 Count three makes no reference to 18 U.S.C. § 1964(c). 

We treat the Cesniks' allegation that the conspiracy is

"actionable under 18 U.S.C. § 1962 et seq." as stating a claim

for relief under section 1964(c). 

11

engage in, or aid and abet another to engage in, a pattern

of racketeering activity if they also do the following: 

invest income derived from the pattern of racketeering

activity in the operation of an enterprise engaged in

interstate commerce (section 1962(a)); acquire or maintain,

through the pattern of racketeering activity, any interest

in or control over such an enterprise (section 1962(b)); or

conduct, or participate in the conduct of, the affairs of

such an enterprise through a pattern of racketeering

activity (section 1962(c)). Section 1962(d) makes it a

crime to conspire to violate sections 1962(a), (b), or (c).

Pelletier v. Zweifel, 921 F.2d 1465, 1495-96 (11th Cir.), cert.

denied, 502 U.S. 855, 112 S. Ct. 167, 116 L. Ed. 2d 131 (1991).8

RICO provides a civil remedy for the victims of these section

1962 crimes, as follows: "Any person injured in his business or

property by reason of a violation of [18 U.S.C. § 1962] may sue

therefor in any appropriate United States district court and

shall recover threefold the damages he sustains and the cost of

the suit, including a reasonable attorney's fee." 18 U.S.C. §

1964(c).9

Count three alleges that the defendants were engaged in a

"conspiracy," presumably in violation of 18 U.S.C. § 1962(d). To

state a claim for damages suffered by reason of a violation of
 10 In their brief to the district court in opposition to

the appellees' joint motion for summary judgement, the Cesniks

did not inform the court which sections the appellees allegedly

conspired to violate.

 11 Nor does the word "enterprise" appear in the Cesniks'

brief in opposition to the appellees' joint motion for summary

judgment. In the section of the Cesniks' appellate brief

concerning federal RICO, the word "enterprise" appears only in a

quotation from section 1962.

12

section 1962(d), a plaintiff must allege that the defendants

conspired to violate one of the substantive provisions of 18

U.S.C. § 1962(a)-(c). The complaint nowhere indicates, however,

which crime the defendants allegedly conspired to commit. We are

left to speculate whether the Cesniks seek to state a claim for

damages by reason of a conspiracy to violate section 1962(a) or

(b) or (c).10 Finally, to state a RICO claim a plaintiff must

describe the "enterprise" involved in the defendant's scheme, for

without an enterprise there can be no RICO violation. See 18

U.S.C. § 1962(a)-(c). The word "enterprise" appears nowhere in

the complaint.11

Count three also possibly asserts two claims for relief

under the Georgia RICO (Racketeer Influenced and Corrupt

Organizations) Act, O.C.G.A. §§ 16-14-1 to 16-14-15 (1992 & Supp.
 12 There are two substantive criminal provisions in the

Georgia RICO statute:

(a) It is 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 is 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.

O.C.G.A. § 16-14-4. Like 18 U.S.C. § 1962(d), O.C.G.A. § 16-14-

4(c) makes it illegal "to conspire or endeavor to violate any of

the provisions of subsection (a) or (b) of [O.C.G.A. § 16-14-4]."

O.C.G.A. § 16-14-6(c) provides a victim of these crimes a

civil remedy in much the same fashion as does 18 U.S.C. §

1964(c). We treat the allegation in the Cesniks' complaint that

the alleged conspiracy is "actionable under . . . O.C.G.A. § 16-

14-1 et seq." as stating a claim for relief under section 16-14-

6(c).

 13 The court clearly had the discretion to strike, on its

own initiative, the Cesniks' complaint, and to require the

Cesniks to file a more definite statement. See Anderson, 77 F.3d

at 367 n.5. 

13

1995). Those claims are described in the margin;12 they suffer

the same infirmities as their federal counterparts.

Despite the fact that the Cesniks' complaint, especially

count three, is so disorganized, the appellees did not move the

district court to require the Cesniks to file a more definite

statement. See Fed. R. Civ. Proc. 12(e). Nor did the court

require one.13 Instead, the appellees opted to file an answer. 

They admitted that the adoptions took place, but denied liability

under any of the appellants' theories of recovery. The appellees

also plead several affirmative defenses, including that the
 14 In referring to the "remaining theories under the tort

of wrongful adoption and placement," we assume that the court was

referring to some or all of the tort theories described in count

one (labeled "wrongful placement and adoption" by the

appellants), which we quote in the text supra.

14

complaint failed to state a claim for relief and that the statute

of limitations barred the Cesniks' claims. 

Following extensive discovery, the district court granted

the appellees' motion for summary judgment as to all of the

Cesniks' claims for relief. The court read the Cesniks'

complaint as having presented several tort claims, a claim for

breach of contract, and claims "under the federal and state

conspiracy statutes." The court referred to the Cesniks' commonlaw tort claims as claims for "personal injury, mental and

physical," claims under the "remaining theories under the tort of

wrongful adoption and placement,"14 and a "claim for fraud."

The district court concluded that the Cesniks' common-law

tort claims were barred by the applicable two-year statute of

limitations. It concluded that the Cesniks' contract claim was

foreclosed because they "could have avoided" the injury they

allegedly sustained

by the use of reasonable effort after they learned of the

mental and physical conditions of the children because under

the terms of the placement agreement the Plaintiffs could

simply have ended the adoption proceedings and could have

returned the children to the Agency.

Finally, the court found no merit in the Cesniks' federal and

state RICO claims because the record contained no evidence of a

conspiracy to defraud the Cesniks or the predicate acts of mail

or wire fraud. The court said nothing regarding the Cesniks'
 15 Neither the Cesniks nor the district court cited any

authority for the proposition that Georgia recognizes a tort of

"wrongful adoption and placement," and we have found none.

15

failure to describe the enterprise allegedly involved in the

appellees' conspiracy; nor did it indicate which substantive

provision of 18 U.S.C. § 1962 the appellees were supposed to have

conspired to violate. In short, the court did not consider

whether count three of the complaint stated a claim for relief.

III.

We are satisfied that the statute of limitations bars

whatever tort claims the Cesniks may have had under Georgia

common law. Accordingly, we affirm the district court's summary

disposition of those claims. As for the Cesniks' remaining

claims -- the claim for breach of contract and the claims under

the federal and Georgia RICO statutes -- with a few exceptions,

we are unable, on the state of the record before us, to sustain

the court's judgment. We first consider the common-law tort

claims.

A.

Although the district court did not identify all of the

Cesniks' common-law tort claims -- it referred to many of them as

the "remaining theories under the tort of wrongful adoption and

placement,"15 -- it concluded that all of them were barred by the

two-year statute of limitations because all of the alleged

tortious acts occurred (at the latest) prior to September 26,
 16 O.C.G.A. § 9-3-96 provides that "[i]f the defendant . .

. [is] guilty of a fraud by which the plaintiff has been debarred

or deterred from bringing an action, the period of limitation

shall run only from the time of the plaintiff's discovery of the

fraud." The Cesniks did not discover the fraud associated with

the placements of Caleb and Eli until the boys' medical records

were sent to them by mail. Thus, in the case of Caleb, the

period of limitations began running in May of 1990; in the case

of Eli, in April of 1991.

 17 Caleb's adoption had been final for a year before July

21, 1991, the day that Dawson made her threat. Eli's adoption,

however, was not final until September 26, 1991.

 18 The Cesniks claim that the statute ran for 21 months in

the case of Caleb (from May of 1990, when the fraud was

discovered, to July 21, 1991, when Dawson made her threat, and

16

1991 (the date of Eli's adoption), and the suit was not filed

until December 12, 1993. See O.C.G.A. §§ 9-3-33, 9-3-96

(1982).16 The Cesniks argue, however, that the running of the

period of limitations was tolled when Phoebe Dawson made her

threat at the Cesniks' home on July 21, 1991. The Cesniks claim

that after that date they were unable to take any sort of legal

action against the appellees out of fear that the agency might

take reprisals -- either by withholding the agency's consent to

the adoption of Eli,17 or by making it difficult for the Cesniks

to receive an adoption subsidy from the state of Georgia. This

fear supposedly persisted from the time of the threat until May

18, 1993, when the Georgia Department of Human Resources notified

the Cesniks that they would receive an adoption subsidy. The

Cesniks argue that the running of the period of limitations was

tolled during the twenty-seven months that they were under the

duress caused by Dawson's threat, and that therefore their claim

was filed within the limitations period.18 We do not agree.
again from May of 1993, when the adoption subsidy was approved,

to December 9, 1993, when the claim was filed in district court),

and for 91⁄2 months in the case of Eli (from April of 1991, when

the fraud was discovered, to July 21, 1991, and again, as with

Caleb, from May of 1993, to December 9, 1993). The period of

limitations is 24 months.

17

The record shows that shortly after the Cesniks began making

efforts to get a state adoption subsidy, Phoebe Dawson flew to

Minnesota and met the Cesniks in their home. Dawson asked to

hold Eli, and, once the child was in her arms, she is alleged to

have stated something to this effect: "This child is in my

custody. I can withhold [our] consent to adopt if there is any

more discussion of [Eli] being handicapped or drug exposed [or if

you do] not keep quiet about what ha[s] happened." Dawson then

handed Eli back and left the home. Dawson and the Cesniks had no

further contact.

The Cesniks claim that this threat put them in fear of

losing Eli if they took any action against the agency. But this

fear could have been reasonable only until August 8, 1991

(eighteen days after the threat), when New Beginnings gave its

consent to Eli's adoption. The Cesniks claim that after Eli's

adoption they feared that the agency might block their attempts

to receive an adoption subsidy for both Caleb and Eli from the

state of Georgia. But Dawson made no such threat, and it is not

clear that Dawson or New Beginnings had any influence in this

matter whatsoever. Moreover, the fear of retaliation by New

Beginnings was evidently not so great as to keep the Cesniks from

filing an administrative complaint against the adoption agency in
 19 The Cesniks also offer no explanation for why they

waited another seven months after the approval of the adoption

subsidy to sue the agency.

 20 We do not mean to suggest that a reasonable claim of

duress would necessarily have tolled the running of the statute

of limitations in this case. Duress is not one of the enumerated

conditions that tolls the statute of limitations under Georgia

law. See O.C.G.A. §§ 9-3-90 to 9-3-97.1 (1982 & Supp. 1995). 

Moreover, we find no authority for the proposition that duress,

as a matter of Georgia common law or equity, can toll the statute

of limitations for a cause of action that is not itself based on

a claim of duress. Indeed, what little authority we have found

on the subject suggests that such a proposition could be

maintained in very few states. See Cooper v. Fidelity-Phila.

Trust Co., 201 F. Supp. 168, 170 (E.D. Pa. 1962) ("There is

little authority for the proposition that 'duress' tolls the

running of the statute of limitation."); Baratta v. Kozlowski,

464 N.Y.S.2d 803, 807 (App. Div. 1983) ("[R]eluctance [of courts]

to recognize duress as a toll [may lie] in the undesirability of

a rule that turns on the reasonableness of reliance upon threats

of physical or economic harm, the ease of fabrication of such

threats, or simply in the judicial reluctance to create an

entirely new defense to the [s]tatute of [l]imitations.")

(citations omitted); see also Annotation, Duress or Undue

Influence as Tolling or Suspending Statute of Limitations, 121

A.L.R. 1294 (1939); 51 Am. Jur. 2d. Limitation of Actions § 177

(1970); 54 C.J.S. Limitations of Actions § 92 (1987).

18

August of 1992.19 In sum, we find that there was no reasonable

basis for a claim of duress after August 8, 1991, which was more

than two years prior to the filing of the lawsuit.20 The

district court was thus correct in deciding that the statute of

limitations barred the appellants' common-law tort claims.

B.

The district court rejected the Cesniks' contract claim on

the ground that they could have mitigated their damages in full

by returning the children to New Beginnings, as provided in the

placement agreement. The problem with this holding is that
 21 The appellees have cited statutes and cases that stand

for the proposition that, under the law of Georgia, a claimant

has a duty to mitigate his damages. This proposition, which is

19

neither the complaint nor the court describes the placement

agreement. We will assume for sake of argument, however, that

New Beginnings breached the placement agreement when it

misrepresented the condition of the boys' health. We further

assume that upon the agency's breach the Cesniks could have

cancelled the agreement with New Beginnings and returned the

children to the agency. The question then becomes whether the

Cesniks were required to do so, or else suffer the consequences.

The situation is analogous to a seller misrepresenting the

quality of goods being sold to a buyer. Ordinarily, a buyer of

goods that are not of the quality represented has two options. 

He can rescind the transaction by returning the goods to the

seller and demanding a return of the purchase price, or he can

stand on the transaction and sue for damages -- measured by the

difference in value between the goods as represented and the

goods as received. Here, the Cesniks kept the children and seek

to recover the expenses they will incur in excess of those they

would have incurred had the children not been disabled. 

The district court held, in effect, that the Cesniks did not

have the option of standing on the contract and suing for

damages. Rather, according to the court, the Cesniks had but one

remedy: rescission. The court cited no authority for its

holding and the appellees have likewise cited none; nor can we

find any.21 Under the circumstances, we cannot sustain the
well founded in the common law, speaks to the issue of damages;

it does not address the question whether the claimant can state a

cause of action for breach of contract. Assuming that, on

remand, the Cesniks can state a claim for breach of contract, the

extent to which they may have failed to mitigate their damages

will be a question to be resolved in litigating the issue of

damages.

 22 The appellees did not base their joint motion for

summary judgment on this deficiency, however, and the district

court did not cite it as a ground for granting summary judgment. 

We therefore do not consider whether we should exercise our

authority to affirm a district court's judgment dismissing a case

on a ground not relied upon by the district court -- in this

instance, on the ground that the appellants failed to articulate

an indispensable element of a federal or state RICO claim.

20

court's summary rejection of the Cesniks' claim for breach of

contract against the Edgewood Baptist Church. Because there is

nothing in the record, however, that indicates that appellees

Dawson, Merritt, and Winton were parties to the Cesniks' contract

with the church, we affirm the district court's disposition of

the breach of contract claim brought against them individually.

C.

As we have pointed out, the pleading of the Cesniks' federal

and state RICO claims, in count three of their complaint, is

woefully deficient. Count three does not cite the crimes (under

18 U.S.C. § 1962 and O.C.G.A. § 16-14-4) that the defendants

allegedly conspired to commit. Nor does the pleading describe

the "enterprise" involved in the conspiracy.22 If ever there was

a need for a more definite statement, it was with respect to

count three.
 23 In contrast, the appellants have pointed to no evidence

in the record, and we find none, sufficient to permit a

reasonable jury to find that appellee Winton either participated

in or was aware of the alleged conspiracy among Dawson, Merritt,

and the church to defraud the Cesniks. (Winton did not become a

employee of New Beginnings until after Caleb's placement; she is

alleged to have participated in Dawson's scheme only with respect

to Eli.) We thus affirm the district court's granting of summary

judgment in favor of Winton.

 24 We express no view as to whether, under 18 U.S.C.

§ 1962(d), a corporation can be held to have conspired with one

of its employees.

 25 The statute of limitations for a RICO claim is four

years under the federal statute, see Agency Holding Corp. v.

Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S. Ct. 2759,

2767, 97 L. Ed. 2d 121 (1987), and five years under Georgia RICO,

see O.C.G.A. § 16-14-8. The record discloses uses of the mail

21

The district court did not reject these claims because they

were inadequately plead, however. Rather, the court concluded

that the Cesniks could not make out a federal or state RICO claim

because they had presented no evidence of (1) a conspiracy or (2)

predicate acts of mail or wire fraud. We are convinced that,

with the exception of appellee Winton, the court erred on these

two points.

With respect to the first point, a reasonable jury could

find from the evidence in the record that defendant Dawson

misrepresented the boys' health for the purpose of inducing the

Cesniks to accept them for adoption, that appellee Merritt

participated in or was aware of the scheme,23 and that their

conduct implicated the church.24 As for the second point, the

facts we have recited, in part II supra, establish (for purposes

of summary judgment) a scheme to defraud and several uses of the

mails and wires in furtherance of that scheme.25
and the telephone within four years of the filing of this law

suit.

22

IV.

In conclusion, we affirm the district court's judgment

dismissing count one of the appellants' complaint. As to count

two, we affirm the court's judgment in favor of appellees Dawson,

Merritt, and Winton, but vacate its judgment in favor of the

church and remand for further proceedings. With respect to count

three, we affirm the court's judgment in favor of appellee

Winton, but vacate its judgment in favor of the remaining

appellees. As to these appellees, count three is remanded for

further proceedings.

Because the allegations of counts two and three are so

muddled, we instruct the district court, before proceeding

further in this case, to require the appellants to replead counts

two and three of their complaint. With respect to count two, the

appellants shall allege only a breach of contract -- assuming

that they wish to pursue such a claim. If the contract on which

their claim is based is in writing, the appellants shall either

attach the writing to the complaint, or recite the provision(s)

of the contract that they contend give rise to their action for

breach.

In repleading count three, the appellants shall state only

one claim for relief. If they wish to state a claim under the

federal RICO statute, they shall indicate the statutory
23

provision(s) giving rise to such claim and shall also describe

the enterprise involved in the RICO violation. If the appellants

wish to state a claim under the Georgia RICO statute, they shall

do so in a new count.

More need not be said. 

SO ORDERED.