1 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–68 (West 1984 and

Supp.1992). United States Court of Appeals,

Fifth Circuit.

No. 91–1790.

TEL–PHONIC SERVICES, INC., William Kirk, and John Bowen, Plaintiffs–Appellants,

v.

TBS INTERNATIONAL, INC. a/k/a Dy–Con, International, Inc. and the Dispatch Printing

Company, Defendants–Appellees.

Oct. 23, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

We are asked to review the sufficiency of a multiple-claim complaint. Plaintiff John Bowen

contracted with Defendant TBS International, Inc., to purchase computer equipment and to market

TBS's telephone-calling software and recordings. A superseding contract between TBS and Plaintiff

Tel–Phonic Services, Inc., a corporati on jointly owned by Bowen and Plaint iff William Kirk, extended

Plaintiffs' marketing area and redefined the parties' rights.

According to the complaint and amended complaint, a series of service problems followed the

initial contract, such as failure of call program services, failure of delivery of a magnetic tape drive,

and refusal to provide requested technical representatives. Although some initial problems were

compromised, Tel–Phonic charges that TBS and/or its parent corporati on, The Dispatch Printing

Company, continually made misrepresentations to Plaint iffs, billed Tel–Phonic for charges not due,

coerced Tel–Phonic to waive commissions and other contractual rights to revenue, and trie d to

destroy Tel–Phonic's business by such coercive tactics. Plaintiffs also charge that Defendants failed

to safe-guard Tel–Phonic's customer relations and diverted a major customer order. Plaintiffs sued

TBS and The Dispatch Printing Company, in federal district court in Tennessee, asserting RICO 12 The Judicial Code provides for appeals "[f]rom a district court ... to the court of appeals for

the circuit embracing the district." 28 U.S.C.A. § 1294(1) (West 1966). violations, an antitrust claim, breach of contracts, fraud, and breach of fiduciary duty.

On Defendants' motion to dismiss, the Tennessee district judge ruled that the complaint failed

to state a RICO claim and transferred the remaining claims to the Northern District of Texas. Upon

renewal of Defendants' motion, the Texas distr ict co urt dismissed the remaining claims. Plaintiffs

challenge the transfer of venue and the dismissal of each of their claims. For the following reasons,

we dismiss the challenge to the transfer of venue; affirm the judgment dismissing the RICO, antitrust,

and fiduciary claims; and reverse and remand the fraud and breach-of-contract claims.

I. THE TRANSFER OF VENUE

Asserting that venue was proper in Tennessee, Plaintif fs allege error in the transfer to the

Northern District of Texas. Defendants contend that this Court cannot review the transfer order,

because it was entered by a district court within the Sixth Circuit. 2 We need not decide this issue.

Having agreed to transfer venue to the Northern District of Texas, Plaintiffs cannot now complain

of what the district co urt has done in accordance with their agreement. S ee Pacific R.R. Mo. v.

Ketchum, 101 U.S. 289, 2 97, 25 L.Ed. 932, 936 (1880). Although Plaintiffs initially objected to

Defendants' motion to dismiss based on improper venue, Plaintiffs later advised the court that they

had no objection to transferring the matter to federal court in Dallas . In fact Plaintiffs invited the

court to transfer the case to Dallas if it was not inclined to rule against Defendants on the motion to

dismiss. A party will not be heard to appeal the propriety of an order to which it agreed. H unt v.

Bankers Trust Co., 799 F.2d 1060, 1066 (5th Cir.1986); Haitian Refugee Center v. Civiletti, 614

F.2d 92, 93 (5th Cir.1980).

Acco rdingly, we dismiss that portion of Plaintiffs' appeal challenging the transfer fro m t he

Eastern District of Tennessee to the Northern District of Texas.II. THE MOTIONS TO DISMISS

The Tennessee district court dismissed Plaintiffs' RICO claims for failure to state a claim

under Federal Rule of Civil Procedure 12, and the Texas district court likewise dismissed the

remaining federal claims (a nt i-trust claims) and all state claims. A motion to dismiss an action for

failure to state a claim "admits the facts alleged in the complaint, but challenges plaint iff's rights to

relief based upon those facts." W ard v. Hudnell, 366 F.2d 247, 249 (5th Cir.1966). Dismissal cannot

be upheld unless it appears beyond doubt that the plaint iffs would not be entitled to recover under

any set of facts that they could prove in support of the claims. C onley v. Gibson, 355 U.S. 41,

45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); W orsham v. City of Pasadena, 881 F.2d 1336, 1339

(5th Cir.1989); P artridge v. Two Unknown Police Officers, 791 F.2d 1182, 1185–86 (5th Cir.1986).

This Court independently applies the same test employed by the trial court. Worsham, 881 F.2d at

1339.

A. The RICO Claims

1. Appellate Jurisdiction

Because the Tennessee court dismissed the RICO claims before it transferred the matter to

a district court within our Circuit, Defendants question whether this Court has jurisdiction to review

that dismissal. We hold that we do.

The order dismissing the RICO claims was not final when the transfer oc c urred and was

subject to revision at any time before entry of final judgment. Fed.R.Civ.P. 54(b). The district court

in Texas had jurisdiction to review the dismissal by the district court in Tennessee. "A court has the

power to revisit prior decisions of its own or o f a coordinate court in any circumstance."

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d

811 (1988) (recognizing that the law-of-the-case doctrine expresses the practice of courts to refuse

to reopen what has been decided but does not limit their power). The fact that the Texas court did

not review the Tennessee court's dismiss a l of the RICO claims does not insulate the issue fromappellate review. S ee id. The RICO dismissal become appealable only when the entire case was final.

We are reviewing the final judgment of the district court in Texas, as based in part on the opinion of

the federal district judge in Tennessee. S ee also Astarte Shipping Co. v. Allied Steel & Export Serv.,

767 F.2d 86, 87 (5th Cir.1985) (cour t o f appeals of the circuit of the transferee district court has

jurisdiction to review decisions made before a 28 U.S.C. § 1407 transfer).

2. Applicable Law

When a case is transferred from a district in another circuit, the precedent of the circuit court

encompassing the transferee district court applies to the case on matters of federal law. S ee 1B James

W. Moore et al., Moore's Federal Practice ¶ 0.404[4.—2] (1992) ("[T]heoretically the [federal] law

is the same [in both circuits], though the courts of appeals may entertain different ideas about what

it is."). Accordingly, we assess the federal claims under this Circuit's precedent.

3. Reason for Dismissal of the RICO Claims

Plaint iffs asserted that by a pattern of fraudulent acts Defendants have violated the Racketeer

Influenced and Corrupt Organizations (RICO) Act and have engaged in a RICO conspiracy.

The RICO predicate acts were mail and wire fraud. Compl. 51–53. The district court

dismissed the RICO claims, finding that Plaint iffs failed "to allege a continuous pattern of intentional

acts designed to defraud the plaintiffs" and failed "to plead with particularity the requisite elements

of wire and mail fraud pursuant to Rule 9(b)." Mem. Op. Sept. 12, 1988 at 3, 4; s ee Fed.R.Civ.P.

9(b). Because the complaint insufficiently pleads a continuous pattern of racketeering activity or an

agreement to commit at least two predicate acts of racketeering activity, we affirm the dismissal of

the RICO claims.

a. Averments of Fraud

We find that most of the allege d wro ngs are not pleaded with sufficient particularity to3 For example, the amended complaint alleges that TBS or its representatives used the phone or

mails to invite AT & T people to Dallas (breaching TBS's agreement to safe-guard Plaintiffs'

customer relationship with AT & T), to refuse to send personnel representatives (breaching an

agreement to provide technical assistance), to coerce a 3% commission, to bill Plaintiffs (or

"coerce payments") under a maintenance agreement that Plaintiffs allege did not exist, and to

"coerce Plaintiff out of its contractual benefits if Plaintiff would agree to eliminate "certain

ambiguities.' " TBS also failed to answer correspondence in contravention of its agreement to

assist Plaintiffs. These contractual grievances do not identify any misrepresentation of fact or a

false promise made by Defendants. constitute the RICO predicate act of wire fraud o r mail fraud. Rule 9(b) requires particularity in

pleading the "circumstances constituting fraud." This particularity requirement applies to the pleading

of fraud as a predicate act in a RICO claim as well. S ee Elliott v. Foufas, 867 F.2d 877, 880 (5th

Cir.1989); L andry v. Air Line Pilots Ass'n Int'l AFL–CIO, 901 F.2d 404, 430 (5th Cir.), cert. denied,

––– U.S. ––––, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990).

At a minimum, Rule 9(b) requires allegations of the particulars of "time, place, and contents

of the false representations, as well as the identity of the person making the misrepresentation and

what he obtained thereby." 5 C. Wright & A. Miller, F ederal Practice and Procedure § 1297, at 590

(1990); Keith v. Stoelting, Inc., 915 F.2d 996, 1000 (5th Cir.1990). Allegations about conditions

of the mind, such as defendant's knowledge of the truth and intent to deceive, however, may be

pleaded generally. Fed.R.Civ.P. 9(b).

The co mplaint gives some specifics about communications through the mails or on the

telephone, but generally fails to specify the content of any misrepresentation. 3 Misrepresentations that

occurred at a meeting do not constitute wire or mail fraud, 18 U.S.C.A. §§ 1341, 1343 (West 1984

& Supp.1992), and thus could not constitute racketeering activity. I d. § 1961(1) (West Supp.1992);

see also Fleet Credit Corp. v. Sion, 893 F.2d 441, 445 (1st C ir.1990) (com m on-l aw fraud not

implicat ing the mails or wires does not constitute "racketeering activity" under § 1961(1)); J ennings

v. Emry, 910 F.2d 1434, 1438 (7th Cir.1990) (violations of civil rights or anti-trust laws that are not

predicate acts under § 1961 are irrelevant to RICO claim); Z olfaghari v. Sheikholeslami, 943 F.2d

451, 453 (4th Cir.1991) (common-law fraud does not suffice to state a RICO violation); Marriott4 Because Agency Holding applied its rule to the parties in that case, we apply its holding

retroactively to the parties in this litigation. See James B. Beam Distilling Co. v. Georgia,

––– U.S. ––––, ––––, 111 S.Ct. 2439, 2446, 115 L.Ed.2d 481 (1991); Sterling v. Block, 953 F.2d

198, 200 (5th Cir.1992); see also Davis v. A.G. Edw ards & Sons, Inc., 823 F.2d 105, 108 (5th

Cir.1987) (applying Agency Holding retroactively). Bros. v. Gage, 911 F.2d 1105, 1109 (5th Cir.1990) (breach of state law aiding t he allegation of

"enterprise" is not transformed into a predicate act).

Plaint iffs have stated one claim of mail fraud, in their allegation that TBS wrote an April 27,

1983, letter "with false representations inducing plaint iffs to change the agreement to allow TBS to

sell two new systems to the Bell subsidiary falsely representing that TBS would buy back two systems

from plaintiff." Am.Compl. ¶ 28. TBS had allegedly previously agreed that Plaintiffs could sell their

two TB S syst ems t o the Bell subsidiary, and, through this false representation, TBS secured the

profitable sale for itself. S ee Am.Compl. ¶ 27, C o mpl. ¶¶ 40–41. We find this allegation of fraud

sufficient to withstand Rule 9(b). The filing of the complaint within four years of this alleged mail

fraud preserves the right to RICO damages caused by that act, if Pla intiffs can prove a pattern of

racketeering activity. A gency Holding Corp. v. Malley–Duff & Associates, Inc., 483 U.S. 143,

155–56, 107 S.Ct. 2759, 2767, 97 L.Ed.2d 121 (1987) (applying four-year limitation period o f

analo gous Clayton Act claims to civil RICO actions in the interest of uniformity); 4 Z enith R adio

Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971)

(holding that in "continuing conspiracy" to violate anti-trust laws, statute of limitations for damages

for a particular act causing injuries runs from the co mmission of the act); A l George, Inc. v.

Envirotech Corp., 939 F.2d 1271, 1273 & n. 3 (5th Cir.1991) (recognizing Zenith 's rule of separate

accrual for overt acts in an anti-trust "continuing conspiracy," and noting that under Agency Holding

RICO claims are subject to the same limitation period as anti-trust claims).

b. RICO Pattern

To prove a "pattern of racketeering activity," a plaint iff must show at least two predicate acts

of racketeering that are related and amount to or pose a threat o f continued criminal activity. 18U.S.C.A. § 1961(5); H.J., Inc. v. Northw estern Bell Tel. Co., 492 U.S. 229, 238, 109 S.Ct. 2893,

2900, 106 L.Ed.2d 195 (1989). Upon review of the complaints, we find that Plaintiffs may be able

to prove a second predicate act consistent with the allegations that Robert Adler misrepresented to

Plaint iffs' representative (via telephone conversation on September 4, 1982) that certain call programs

were "delayed" (when the call programs were actually goi n g to a competitor of Plaint iffs, a sister

corporati on of Defendant TBS). S ee Am.Compl. ¶¶ 9–10. Est ablishing the minimum number of

predicates, however, is not sufficient to establ ish a pattern; the racketeering predicates must be

relate d and amount to or pose a threat of c ontinued criminal activity. H .J., Inc., 492 U.S. at

236–239, 109 S.Ct. at 2899–2900.

Even assuming that these two predicate acts establish the pattern "relationship" element, the

alleged predicate acts lac k t he "co nt inuity" element required to establish a RICO pattern.

"Continuity" is a temporal concept. I d. 492 U.S. at 242–243, 109 S.Ct. at 2902. RICO reaches

activities that "amount to or threaten long-term criminal activity." I d. 492 U.S. at 243 n. 4, 109 S.Ct.

at 2902 n. 4. The complaints cover a time frame from early 1981 through mid–1984 or beyond. (The

Amended Complaint was filed in September 1988). Yet these two alleged instances of fraud occurred

only seven months apart.

"Continuity" refers "either to a closed period of repeated conduct, or to past conduct that by

its nature projects into the future with a threat of repetition." I d. 492 U.S. at 241, 109 S.Ct. at 2902.

Predicate acts extending over a few weeks or months and threatening no fut ure criminal

conduct do not satisfy this requirement: Congress was concerned in RICO with long-term

criminal conduct....

... A RICO pattern m ay surely be established if the related predicates themselves

involve a distinct threat of long-term racketeering activity, either implicit or explicit.

Id. In this case, there is no such continuity alleged. There has been no "specific threat of repetition,"

nor any suggestion that the predicate acts or offenses are part of Defendants' "regular way of doing

business." I

d. There has been no suggestion that Defendant s "operat[e] as part of a long-termassociation that exists for criminal purposes." I d. Finally, there is no suggestion that "the predicates

are a regular way of conducting defendant's ongoing legitimate business ... or of conducti ng or

participating in an ongoing and legitimate RICO "enterprise.' " I d. "Short-term criminal conduct is

not the concern of RICO." C alcasieu Marine Na t'l Bank v. Grant, 943 F.2d 1453, 1464 (5th

Cir.1991).

The allegations of the complaint suggest no "series" o f racket eering acts with the level of

continuity that is required for a RICO violation. S ee id. Since there is no "pattern of racketeering

activity" discernable from the complaint, we affirm the dismissal of the RICO claim.

c. RICO Conspiracy

Plaint iffs also allege the existence of a conspiracy "to defraud plaintiffs." Am.Compl. ¶ 44.

While Plaint iffs have pleaded the conclusory allegation that the Defendants "conspired," they have

not pleaded the elements of a RICO conspiracy. The complaint does not allege facts implying any

agreement involving each of the Defendants to commit at least two predicate acts.

We agree with the Second Circuit that "[b]ecause the core of a RICO civil conspiracy is an

agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege

specifically such

an agreement." H

echt v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d

Cir.1990); s ee also Glessner v. Kenny, 952 F.2d 702, 714 (3d Cir.1991) (civil RICO conspira c y

clai m must plead agreement to commit predicate acts and knowledge that the acts were part of a

pattern of racketeering activity); M iranda v. Ponce Fed. Bank, 948 F.2d 41, 47 (1st Cir.1991) (civil

RICO conspiracy claim must charge that defendants knowingly entered into an agreement to commit

t wo o r more predicate crimes). Accordingly, because the complaints fail to plead specifically any

agreement to commit predicate acts of racketeering, the RICO conspiracy claim was also properly

dismissed.5 The Judicial Code provides,

The district court of a district in which is filed a case laying venue in the wrong

division or district shall dismiss, or if it be in the interest of justice, transfer such

case to any district or division in which it could have been brought.

28 U.S.C.A. § 1406(a) (West 1976).

6 The Code also provides,

For the convenience of parties and witnesses, in the interest of justice, a district

court may transfer any civil action to any other district or division where it might

have been brought.

28 U.S.C.A. § 1404(a) (West 1976). B. The State Claims

1. Law Applicable

The transfer of this case from a T ennessee t o Texas venue raises the question of the law

applicable to the state claims. The answer turns on whether the transfer of venue was under §

1406(a), concerning transfer of a case filed in a court in which venue was not properly laid, 5 or under

§ 1404(a), concerning transfer of a case filed in a proper venue. 6

"[F]ollowing a section 1406(a) transfer, regardless of which party requested the transfer or

the purpose behind the transfer, the transferee court must apply the choice of law rules of the state

in which it sits." E llis v. Great Southw estern Corp., 646 F.2d 1099, 1110 (5th Cir. Unit A June

1981); s ee also 15 Charles A. Wright et al. Federal Practice and Procedure § 3827, at 267 (1986)

("[W]henever the original venue is improper ... the transferee court should apply whatever law it

would have applied had the action been properly commenced there."). On the other hand, a section

1404(a) transfer does not change the law applicable, regardless of who initiates the transfer. F erens

v. John Deere Co., 494 U.S. 516, 523–525, 110 S.Ct. 1274, 1280, 108 L.Ed.2d 443 (1990). V an

Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), ho lding that a transferee

district court is obligated to apply the state law that would have applied had there been no change in

venue, addresses only matters transferred under § 1404(a). S ee Van Dusen, 376 U.S. at 639, 84 S.Ct.

at 821 (holding that a § 1404(a) change of venue is "but a change of courtrooms").7 We are cognizant of In re Fireman's Fund Ins. Cos., 588 F.2d 93, 94–95 (5th Cir.1979), in

which this Court noted that a district court's transfer according to a forum-selection clause was a

transfer under § 1404(a)) rather than § 1406(a). Although the transferee court in this case was

similarly chosen because of a forum-selection clause, want of a special venue provision

distinguishes the transfer order in this case from that approved in Fireman's Fund. In Fireman's

Fund venue was proper in the transferring forum under the Miller Act's special venue provision.

In this case the court noted that venue was "only proper based on the broadly worded venue

provision of the RICO statute." Mem. Order at 2. After the dismissal of the RICO claim, the

court dismissed because the RICO special venue provision was inapplicable, and venue was then

"improper" in the transferring court. Accordingly, nothing in Fireman's Fund would characterize

the transfer in this case as under § 1404(a) rather than § 1406(a). This c ase was transferred because venue was improper, i.e., as a transfer under § 1406(a).

See Mem. Order o f Sept. 12, 1988 (noting that venue in the Middle District of Tennessee was

"improper"); s ee also Defs.' Mot. to Dismiss Pls.' Compl. (for "improper" venue under Federal Rule

12(b)(3)). The transferring court held,

Because the Court finds that plaintiffs' RICO claims should be dismissed, the Court

is of the opinion that venue is improper in the Middle District of Tennessee for the remaining

claims. Had plaintiffs' RICO claims survived, venue would have been proper in this Court

under 18 U.S.C. § 1965 [p ro viding for special RICO venue]. In light of the Court's

determination, however, plaint iffs are bound to pursue their remaining claims in the Northern

District of Texas in accordance with the contractual agreement giving rise to this lawsuit.

Mem. Order at 4–5.

We conclude that the venue transfer in this case was under section 1406(a). 7 We accordingly

apply Texas choice-of-law rules. See Ellis, 646 F.2d at 1110.

2. Choice-of-Law Rules of Texas

For the claims of breach, our task is simple, for Texas recog nizes t he right of contracting

parties to agree to choice of law. S ee Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421

(Tex.1984). The parties stated in both agreements their intention that Texas law apply. Accordingly,

Texas law applies to all the claims relating to the contracts in accordance with the parties' agreement.

As to the fraud claim, we believe that the Texas Supreme Court would follow the conflicts8 Plaintiffs argue, for the first time on appeal, that the district judge failed to consider the effect

of Tel–Phonic's having filed bankruptcy on the various limitation periods. Ordinarily, an issue not

presented to or passed on by the district court will not be considered by this Court on appeal.

Clark v. Aetna Casualty & Sur. Co., 778 F.2d 242, 249 (5th Cir.1985); see also Nathan Rodgers

Constr. & Realty Corp. v. City of Saraland, Ala., 676 F.2d 162, 163 (5th Cir.1982) (no plain

error in district court's failure to consider plaintiff's tolling argument not clearly addressed to

district court). principle that the effect of a misrepresentation or undue influence upon a contract is determined by

the same law that governs the contract. R estatement (Second) of Conflicts of Law § 201 (1971); s ee

Duncan, 665 S.W.2d at 421 (adopting the choice-of-law test for contracts explained in Restatement

(Second) of Conflicts ); s ee also G utierrez v. Collins, 583 S.W.2d 312, 318–19 (Tex.1979)

(adopting the Restatement 's choice- o f-law principles for torts). The claimed fraud is fraud in the

inducement. "[Q]uestions involving the effect of misrepresentation, duress, undue influence and

mistake upon a contract are determined by the law chosen by the parties, if they have made an

effective choice." Restatement § 201 cmt. a.

Similarly, the only possible claim for breach of fiduciary duty must be based on contract as

well. Fiduciary relationships usually arise in cases of attorney and client, partners, parent and child,

and joint adventurers. C onsolidated Gas & Eq uip. Co. v. Thompson, 405 S.W.2d 333, 336–37

(Tex.1966); L inder v. Citizens State Bank, 528 S.W.2d 90, 94 (Tex.Civ.App.1975, writ ref'd n.r.e.).

Because the complaint suggests no such relationship unless one of the contracts creates a partnership

or joint adventure, we conclude that the fiduciary claim is also founded in contract. Accordingly,

under the choice-of-law clause in the contracts, we will apply Texas law to all the state claims.

3. Applying Texas Law

a. Fraud in the Inducement

Applying a two-year limitation period for fraud, the Texas district court dismissed the state

law fraud claim as time-barred. The appropriat e limit ations period for fraud in the inducement,

however, is four years. 8 S ee generally Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990). As

noted above, most of the averments of wrongdoing within four years of the co mplaint were notpleaded sufficiently under Rule 9(b) to establish a claim for fraud. As discussed above, Plaintiffs have

nevertheless sufficiently alleged an April 1983 TBS letter with false representations inducing plaint iffs

to change an agreement. Am.Compl. ¶ 28, Compl. ¶ 41. We reverse the dismissal of the state law

claim for fraud, because we find the allegations regarding an April 1983 offense of fraud sufficient

and timely.

b. Claims of Breach of Contract

The district court did not articulate a reason for dismissing the claims for breach of contract

(and the Federal Rules do not require reasons for a Rule 12 dismissal, Fed.R.Civ.P. 52(a)).

Defendants suggest that the dismissal was apparently based on limitations. If so, it was erroneous.

A fo ur-year statute of limitations governs breach of contract actions under Texas law.

Tex.Civ.Prac. & Rem.Code Ann. § 16.051 (West 1986); s ee also Sullivan v. Hoover, 782 S.W.2d

305, 306 (Tex.App.—San Antonio 1989, no writ). The complaint was filed in February 1987. While

it is true that the Bowen–TBS contract and the Tel–Phonic–TBS contract were executed more than

four years earlier, a br each of contract acti on accrues upon the date of breach, not the date of

contract. B en C. Jones & Co. v. Gammel–Statesman Publishing Co., 100 Tex. 320, 99 S.W. 701

(1907).

The complaints aver that in April 1983 TBS agreed to buy back $300,000 of equipment from

Plaint iffs and that it later breached this agreement. Compl. ¶¶ 40–42, Am.Compl. ¶¶ 27–29. Because

the alleged contract was within four years of the complaint, the alleged breach was necessarily within

the four-year limitation period. Additionally, the co mplaints assert that Plaintiff (apparently

Tel–Phonic) discovered in late 1983 that TBS International breached contracts. S ee, e.g., Am.Compl.

¶¶ 33–37 (breach of agreement to safeguard Tel–Phonic's customer relationships and breach of

agreement to provide support services). At least some of the asserted claims for breach of contract

are timely.Defendants alternatively assert that the complaints are unclear as to what contract is alleged

to have been breached. Although the complaints are not easy reading, t hey aver the existence of

various agreements and sufficiently describe conduct in viol at io n of specific provisions of those

agreements such that a claim for breach might be proven. Accordingly, we reverse the dismissal of

the breach of contract claims.

c. Breach of fiduciary duty

Plaint iffs next assign error to the court's dismissing their claim that Defendants assumed and

breached a fiduciary position. Plaintiffs argue that the complaints suggest a pattern of "assurances

and reassurances" about TBS's performance under the contract—assurances that Defendants were

acting in the best interest of both parties.

Yet the allegations as amended do not conform to Plaint iffs' argument. There is no allegation

that the Defendants ever assured Plaint iffs that Defendants were acting in the Plaint iffs' best interest;

in fact the allegations suggest that Plaint iffs were aware early that their interests were in jeopardy.

Moreover, mere subjective trust alone does not create a fiduciary relationship. T higpen v. Locke, 363

S.W.2d 247, 253 (Tex.1962). Plaintiffs' argument that they relied on Defendants' assurances

therefore does not further their claim. "A fiduciary duty is an extraordinary one and will not light ly

be created." Gillum v. Republic Health Corp., 778 S.W.2d 558, 567 (Tex.App.—Dallas 1989, no

writ).

The district court found that the contracts imply an arm's length t ransaction between the

parties and found no joint venture, no partnership, and consequently no fiduciary duty between the

Plaint iffs and the Defendants. Upon review of the contracts appended to the amended complaint, we

agree.

C. The Antitrust Claim9 Stanton v. United States, 434 F.2d 1273, 1276 (5th Cir.1970). The complaint asserts in a

conclusory fashion that Defendants knew of "the unlawful discrimination of service and price."

Compl. ¶ 39. In considering the sufficiency of the complaint, we do not accept as true such

unsupported conclusions of law. See id.

10 A cause of action by a person injured by violation of anti-trust laws "must be commenced

within four years after the cause of action accrued." 15 U.S.C.A. § 15b (West Supp.1992).

Although the complaint gives no specific date for these alleged purchases, the entire complaint

describes actions in or around 1981. Generally, the time of the initial act that injures a plaintiff's

business is the time of accrual. Al George, 939 F.2d at 1273. Accordingly, we think these alleged

wrongs were not timely asserted. The complaint alleges violations of the Robinson–Patman Anti–Discrimination Act, which

prohibits sellers from discriminating among purchasers of commodities by price differences or, among

purchasers for resale, by disparate provision of services. S ee 15 U.S.C.A. §§ 13(a), (e) (West 1973).

The district court dismissed the anti-trust claim, ruling that "neither [of the complaints] state[s] that

any other buyer received preferential treatment in services or fac ilit ies compared with Plaintiff

Tel–Phonic." Additionally, it concluded, "neither pleading st at es that services of like grade and

quality to those the Plaintiffs claim they deserved under their agreement with the Defendants were

being provided to other buyers for the same consideration as paid by the Plaintiffs." Taking as true

the well-pleaded facts of the complaints, 9 we agree with the district court and affirm the dismissal of

the anti-trust claims.

The amended complaint alleges that "plaintiff and TBS of Ohio [a competitor] purchased like

commodities, grade and quality from TBS in contemporaneous sales." Compl. ¶ 37. Even if these

purchases were within the limitations period, 10 we note that the allegations do not state an anti-trust

v iolation. The Act prohibits price discrimination by a seller of commodities among different

purchasers of commod it ies o f like grade and quality. 15 U.S.C. § 13(a) (West 1973). "Price

discrimination" is price differentiation, or "selling the same kind of goods cheaper to one purchaser

than to another." F

ederal Trade Com m'n v. Anheuser–Busch, Inc., 363 U.S. 536, 549, 80 S.Ct.

1267, 1274, 4 L.Ed.2d 1385 (1960).

The pleading does not suggest any such price differentiation. Cf. Hartley & Parker, Inc. v.11 Like the alleged purchases of like commodities in the complaint, these alleged wrongs seem

to have been asserted beyond the four-year statute of limitations.

12 The Robinson–Patman Act prohibits discrimination among purchasers of commodities

bought for resale "by contracting to furnish or furnishing ... any services or facilities connected

with the ... sale or offering for sale of such commodities so purchased upon terms not accorded to

all purchasers on proportionally equal terms." 15 U.S.C.A. § 13(e) (West 1973). Florida Beverage Corp., 307 F.2d 916, 919 (5th Cir.1962) (complaint charging sales to competitor

"at prices substantially lower" than prices offered plaintiffs charges § 13(a) violation).

The complaints also suggest only that TBS denied Plaintiffs technical support in 1981 and

1982 that was owed under a contract, while it continued to supply competitors of Tel–Phonic with

sales and technical support in 1981. Compl. ¶ 36–37; Am.Compl. ¶ 13, 19. These allegations fail

to state an anti-trust claim (even if they are t imely) 11 because they fail to suggest that TBS provided

services "upon terms not accorded to all purchasers on proportionally equal terms." 12 Cf. Hartley,

307 F.2d at 922 (complaint describing furnishing of services to competitor "without offering the same

services

... to Plaint iff on proportionally equal terms " charges § 13(e) violation) (emphasis added).

Accordingly, the anti-trust claims were appropriately dismissed.

III. DISCOVERY

Plaint iffs finally assert that the various courts erred by denying them dis covery. In thei r

opposition to the motion to dismiss, Plaint iffs requested that the court allow them either to conduct

discovery before amending the complaint or to file a more definite statement by amending their

complaint. Upon Plaintiffs' presentation of an amended pleading, the court allowed an amendment,

referring the amended pleading to the magistrate judge for a recommendation as to its sufficiency.

See Order of Sept. 12, 1988. We will no t infer from this action that the court "refused" Plaintiffs

discovery. The court issued no protective order limiting discovery while the motion to dismiss was

pending. The docket sheet reveals four years of litigation and no motions on the subject of discovery.

Under the Federal Rules Plaint iffs could have co nducted discovery and did not. S ee Fed.R.Civ.P.

26–37; c f. Elliott, 867 F.2d at 882 (five months between complaint and dismissal was adequate timefor plaint iff to have conducted discovery). Because Plaint iffs sought no ruling on the subject of

discovery, there is no error for our review.

IV. CONCLUSION

Because Plaint iffs consented to transfer venue to Texas, we do not c o nsider their appeal

challenging the decision transferring venue. Reviewing the RICO claims, we hold that the complaints

do not suggest a continuous pattern of racketeering activity or an agreement to commit at least two

predicate acts of racketeering activity. The complaints do not state an anti-trust claim, because they

suggest no unlawful discrimination in price or terms. The complaints state a claim for fraud in the

inducement with sufficient particularity to survive a motion to dismiss and also state a timely claim

for breach. Because no fiduciary relationship is suggested by the co mplaint s o r the contracts, we

affirm the dismissal of the claim for breach of fiduciary duty. Finally, we discern no discovery error

by the district court.

Accordingly, we dismiss the appeal of the transfer order and affirm the judgment of the district

court dismissing the RICO, anti-trust, and fiduciary claims. We reverse and remand for consideration

of the claims of fraud in the inducement and breach of contract in the particulars noted above.

APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART, REVERSED AND

REMANDED IN PART.