Court of Appeals for the Fifth Circuit Cases

Lewis v. Danos

83 F.4th 948 • 2023-10-12

Citation83 F.4th 948

Date Filed2023-10-12

Docket22-30670

Cited17 times

StatusPublished

Full Opinion (html_with_citations)

Case: 22-30670 Document: 00516928807 Page: 1 Date Filed: 10/12/2023

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 12, 2023
No. 22-30670
Lyle W. Cayce
____________
Clerk
Sharon Lewis,

Plaintiff—Appellant,

versus

Garrett Danos, Individually, also known as Hank; Robert
Yarborough, Individually, also known as Bobby; Stanley Jacobs,
Individually; Vicki Crochet, Individually; Robert Barton,
Individually, also known as Bob; Leslie Edwin Miles, Individually,
also known as Les; Scott Woodward, Individually; Verge
Ausberry, Individually; Miriam Segar, Individually; William
Shelby McKenzie, Individually; Joseph Alleva, Individually, also
known as Joe,

Defendants—Appellees.
______________________________

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:21-CV-198
______________________________

Before Wiener, Southwick, and Duncan, Circuit Judges.
Jacques L. Wiener, Jr., Circuit Judge:
In 2012 and 2013, Plaintiff-Appellant Sharon Lewis—then an
Assistant Athletic Director at Louisiana State University (“LSU”)—
internally reported Head Football Coach Les Miles for sexually harassing
Case: 22-30670 Document: 00516928807 Page: 2 Date Filed: 10/12/2023

No. 22-30670

students. LSU retained outside counsel—Taylor, Porter, Brooks & Phillips
LLP (“Taylor Porter”)—to investigate the matter, culminating in a formal
report dated May 15, 2013 (the “Taylor Porter Report”). That report and its
contents were kept internal. Matters were privately settled, and Miles stayed
on as head coach until 2016.
Lewis alleges that Defendants-Appellees—members of LSU’s Board
of Supervisors (the “Board”), leadership, and athletics department, along
with lawyers at Taylor Porter (“Taylor Porter Defendants” and, collectively,
“Defendants”)—engaged in a concerted effort to illegally conceal the Taylor
Porter Report and Miles’s wrongdoings. Lewis also alleges workplace
retaliation for having reported Miles. She brings both employment and civil
RICO claims. The district court dismissed Lewis’s RICO-related allegations
as time-barred and inadequately pleaded as to causation. We now review and
AFFIRM that dismissal.
I.
Lewis initiated her suit after widespread sexual misconduct in LSU’s
athletics program was reported by USA Today in a November 2020 article
(the “Article”). USA Today went on to file a public document request for the
Taylor Porter Report. That request was litigated in Louisiana state court. See
Jacoby v. Galligan, No. C-703746 (La. 19th Jud. Dist. Ct.). USA Today
prevailed, and a redacted copy of the Taylor Porter Report was released to
the public. Concurrently, LSU retained new counsel—Husch Blackwell
LLP—to investigate the Article’s alleged incidents, including those related
to Miles. That investigation generated another formal report dated March 3,
2021 (the “Husch Blackwell Report”). LSU released the Husch Blackwell
Report a day after the Taylor Porter Report was made public.
In April 2021, Lewis filed the instant suit. In it, she alleged
employment and professional harms, bringing claims pursuant to Titles VII

2
Case: 22-30670 Document: 00516928807 Page: 3 Date Filed: 10/12/2023

No. 22-30670

and IX, and civil RICO.1 Relevant to this appeal, on December 2, 2021, the
district court ruled that many of Lewis’s claims were time-barred
(“December 2 Order”). Lewis was permitted to seek leave to file a second
amended complaint and an amended RICO statement to “amend her civil
RICO claims against [Defendants] William Shelby McKenzie, Vicki Crochet,
Robert Barton, . . . Joseph Alleva, Miriam Segar, Verge Ausberry, and Scott
Woodward, in their individual capacities.”
On December 10, 2021, Lewis filed a motion for leave to file a second
amended complaint and a first amended RICO case statement. That motion
was denied for failure to comply with the December 2 Order’s parameters for
seeking amendment. On December 17, 2021, Lewis filed a motion to
reconsider the December 2 Order, which was denied on January 19, 2022
(“January 19 Order”). With the court’s permission, Lewis again moved for
leave to file a second amended complaint and a first amended RICO
statement. While that motion was pending, Lewis prematurely appealed the
January 19 Order. A panel of this court promptly dismissed that appeal for
lack of jurisdiction on April 28, 2022. Lewis v. La. State Univ., No. 22-30072,

2022 WL 3161699

, at *1 (5th Cir. Apr. 28, 2022).
           On February 25, 2022, the district court held a status conference to
   walk through the pending proposed complaint and RICO statement. At that
   conference, the court again denied Lewis’s motion and detailed the
   corrections, clarifications, and additions necessary for Lewis’s compliance
   with the December 2 Order. On March 3, 2022, Lewis filed yet another
   motion for leave to file a second amended complaint and amended RICO


           _____________________
           1
             A parallel state court action was also initiated by Lewis, which is relevant to our
   later discussion of res judicata. See Lewis v. La. State Univ., No. C-708092 (La. 19th Jud.
   Dist. Ct.).




                                                3
Case: 22-30670      Document: 00516928807           Page: 4    Date Filed: 10/12/2023




                                     No. 22-30670


   statement. The district court granted that motion, which brings us to the
   operative complaint (“SAC”).
          The SAC alleges a private cause of action for damages under RICO,
   specifically under two types of claims: a substantive racketeering claim
   pursuant to

18 U.S.C. § 1962

(c) and a conspiracy to commit racketeering
   claim under

18 U.S.C. § 1962

(d). Lewis alleges the following predicate
   offenses committed by an enterprise formed of various Defendants:

18 U.S.C. § 1341

 (mail fraud);

18 U.S.C. § 1343

 (wire fraud);

18 U.S.C. § 1512

   (concealing documents or obstructing official proceedings);

18 U.S.C. § 1513

   (retaliation against a witness, victim, or informant); and

18 U.S.C. § 1952

   (interstate travel in aid of racketeering). Lewis lumps her RICO-related
   allegations into six “schemes” by various assortments of Defendants:

       Scheme 1: To corruptly obstruct, influence, and impede an official
          Department of Education Title IX Proceeding.
       Scheme 2: To conceal the Taylor Porter Report from an official
        Department of Education Title IX proceeding.
       Scheme 3: To tamper with a witness in an official Title IX
          proceeding.
       Scheme 4: To defraud LSU.
       Scheme 5: To control LSU’s Football Program in violation of

18 U.S.C. § 1962

(d).
       Scheme 6: To target and harm Lewis’s business and employment.
   Lewis’s relevant alleged harms include injuries to her employment and
   business, interference with her right to earn a living, and losses of pay raises,
   promotions, bonuses, benefits, a career at “Power 5 Athletics,” and
   professional development opportunities.
          On June 16, 2022, the district court dismissed all of Lewis’s RICO
   claims with prejudice (“June 16 Order”). It first concluded that all claims




                                          4
Case: 22-30670      Document: 00516928807            Page: 5    Date Filed: 10/12/2023




                                      No. 22-30670


   related to allegations before April 2017 were time-barred, as detailed in the
   December 2 Order. The district court also found that Lewis had failed to
   meet her burden of establishing that her alleged injuries were proximately
   caused by the Defendants’ illegal conduct.
          A month after the RICO claims’ dismissal, Lewis filed a Rule 59(e)
   motion to alter or amend judgment, which was denied on September 29,
   2022. However, the district court agreed to designate the December 2 and
   June 16 Orders as final judgments and to certify those issues for appeal. Lewis
   timely appealed. In the meantime, the parties continue to litigate Lewis’s
   remaining Titles VII and IX claims in the district court.
                                          II.
          We review the district court’s dismissal of Lewis’s complaint de novo.
   Causey v. Sewell Cadillac-Chevrolet, Inc.,

394 F.3d 285, 288

 (5th Cir. 2004).
   We accept as true all well-pleaded facts and construe the allegations in the
   light most favorable to the plaintiff. Heinze v. Tesco Corp.,

971 F.3d 475, 479

   (5th Cir. 2020). That said, we “do not accept as true ‘conclusory allegations,
   unwarranted factual inferences, or legal conclusions.’”

Id.

 (quoting In re
   Great Lakes Dredge & Dock Co.,

624 F.3d 201

, 210 (5th Cir. 2010)). A
   complaint must include “sufficient factual matter, accepted as true, to ‘state
   a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570

 (2007)).
   The remaining issues before us—those regarding amended pleadings and
   reconsideration—are reviewed for abuse of discretion. See Ayanbadejo v.
   Chertoff,

517 F.3d 273, 276

 (5th Cir. 2008).




                                          III.




                                           5
Case: 22-30670      Document: 00516928807           Page: 6     Date Filed: 10/12/2023




                                     No. 22-30670


          Before we address the issues on appeal regarding (1) time-bar and (2)
   the adequacy of Lewis’s pleadings as to civil RICO, we deny the parties’
   pending motions.
                                          A.
          The Taylor Porter Defendants moved on appeal for partial dismissal
   based on res judicata. We deny that motion because its arguments were not
   raised earlier. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs.,
   Inc.,

200 F.3d 307

, 316–17 (5th Cir. 2000) (“It is a bedrock principle of
   appellate review that claims raised for the first time on appeal will not be
   considered.”); but see Energy Dev. Corp. v. St. Martin,

296 F.3d 356, 361

(5th
Cir. 2002) (“One decision of this court has allowed a party to assert res
judicata for the first time on appeal . . . . However, . . . this can only be done
‘where all of the relevant facts are contained in the record before us and all
are uncontroverted.’”). The Taylor Porter Defendants contend that they
could not have raised res judicata sooner, but we disagree. Defendants were
apprised of their ability to craft a cognizable argument when the state court
issued its June 2022 ruling around the time that the district court came to its
decision. Defendants could even have briefed res judicata earlier in this appeal
when they filed their extensive responsive briefing. That was almost four
months before the filing of their instant motion to dismiss. The law and
general principles of fairness militate against determining res judicata at this
late juncture.
Lewis separately moved this court to take judicial notice of (1)
additional privilege logs, attorney billing records, correspondences, and
investigative notes involving Defendants during the course of Title IX

6
Case: 22-30670 Document: 00516928807 Page: 7 Date Filed: 10/12/2023

No. 22-30670

investigations,2 and (2) the district court’s rulings, dated March 14, 2023 and
April 25, 2023, on a request for a protective order to “limit[] [Lewis’s]
discovery to the claims remaining in this matter” and to protect documents
and testimony “protected by the attorney-client privilege.”3
Federal Rule of Evidence 201 provides that a court may take judicial
notice of an adjudicative fact if such fact is not the subject of reasonable
dispute, i.e., “that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources” the accuracy of which cannot be
questioned. Taylor v. Charter Med. Corp.,

162 F.3d 827, 829

 (5th Cir. 1998).
           We deny Lewis’s requests for judicial notice because the facts
   contained within those documents are the subject of reasonable dispute. If
   Lewis sought to include those documents as proof that the district court
   litigation was ongoing, inclusion might be allowed. See United States v.
   Hunsberry,

956 F.3d 270, 285

 (5th Cir. 2020). But instead, she seeks to use
   them as “proof” of specific contentions. For example, Lewis seeks to use the
   district court rulings to show that “the Appellees took affirmative steps to
   conceal their RICO conduct from Appellant [and] . . . to corrupt an official
   proceeding of the Department of Education.” Furthermore, Lewis’s first set
   of exhibits are not the kind of “public records” that are often subject to judicial
   notice—rather, they were released because of litigation. See Funk v. Stryker
   Corp.,

631 F.3d 777, 783

 (5th Cir. 2011) (taking judicial notice of “publicly-
           _____________________
           2
             These were all submitted to the record below during the pendency of this appeal.
   Lewis contends that these documents were “extensively referenced” in the SAC. She
   posits that the accuracy of the information contained in these documents cannot reasonably
   be questioned, in part because they were obtained from LSU, “a government agency.”
           3
            Both decisions consider the crime-fraud exception to attorney-client privilege and
   whether Appellant alleged a prima facie case that LSU violated LA. REV. STAT. 14:132(B)
   (second degree concealment of a public record).




                                               7
Case: 22-30670      Document: 00516928807          Page: 8     Date Filed: 10/12/2023




                                    No. 22-30670


   available documents and transcripts” when “there was no actual asserted
   factual dispute”). As for the rulings of the district court, the parties hotly
   contest the facts contained in those decisions and continue to litigate those
   issues there and possibly on appeal. We decline to take judicial notice of those
   documents but observe that they would do little to assuage our concerns,
   having already taken Lewis’s allegations as true and construing them in the
   light most favorable to her. See Heinze,

971 F.3d at 479

.
                                         B.
          We now proceed to the issues on appeal. The district court ruled that
   all of Lewis’s civil RICO claims premised on injuries discovered before April
   8, 2017, were untimely. The parties agree that a four-year statute of
   limitations applies here. See Agency Holding Corp. v. Malley-Duff & Assocs.,
   Inc.,

483 U.S. 143, 156

 (1987). But they disagree on when that clock should
   start to run.
          It is well established that our circuit abides by the rules of injury
   discovery and separate accrual for RICO claims. “Under the ‘injury
   discovery’ rule, a civil RICO claim accrues when the plaintiff discovers, or
   should have discovered, the injury” and, “[w]hen a pattern of RICO activity
   causes a continuing series of separate injuries, the ‘separate accrual’ rule
   allows a civil RICO claim to accrue for each injury when the plaintiff
   discovers, or should have discovered, that injury.” Love v. Nat’l Med. Enters.,

230 F.3d 765, 773

 (5th Cir.) (quoting Bankers Tr. Co. v. Rhoades,

859 F.2d 1096, 1102

 (2d Cir. 1988)).
          We consider when Lewis was first made aware of her injuries. It
   matters not when she discovered Defendants’ “enterprise racketeering
   scheme”—she alleges that this happened in March 2021 with the release of
   the Husch Blackwell Report. Lewis’s allegations make clear that she was
   made aware of her injuries much earlier. She was subject to overt retaliation




                                          8
Case: 22-30670      Document: 00516928807           Page: 9    Date Filed: 10/12/2023




                                     No. 22-30670


   after “Miles was cleared of any wrongdoing” by the Taylor Porter Report in
   2013. Lewis alleges numerous harmful workplace interactions from that point
   forward. Given that Lewis filed her original complaint on April 8, 2021, her
   claims for injuries that were discovered—or that should have been
   discovered—before April 8, 2017 are time-barred.
          We next examine whether the principles of “equitable tolling” or
   “fraudulent concealment” rescue Lewis’s pre-2017 claims, both of which
   would alter the start of Lewis’s clock. These concepts are technically
   distinct, but here they greatly overlap. “[E]quitable tolling may be
   appropriate when the plaintiff is actively misled by the defendant about the
   cause of action or is prevented in some extraordinary way from asserting his
   rights.” Ramirez v. City of San Antonio,

312 F.3d 178, 183

 (5th Cir. 2002)
   (quotation marks and citation omitted). That doctrine is “a narrow exception
   . . . that should be ‘applied sparingly.’” Phillips v. Leggett & Platt, Inc.,

658 F.3d 452, 457

 (5th Cir. 2011) (citation omitted). Under the fraudulent
   concealment doctrine, “the limitations period is tolled until the plaintiff
   discovers, or with reasonable diligence should have discovered, the
   concealed fraud.” Love,

230 F.3d at 779

. The concealment must be through
   affirmative acts—“the defendant ‘must be guilty of some trick or contrivance
   tending to exclude suspicion and prevent inquiry.’” Texas v. Allan Constr.
   Co.,

851 F.2d 1526, 1529

 (5th Cir. 1988) (alteration adopted) (citations
   omitted). Fraudulent concealment cannot be applied to toll a plaintiff’s
   claims unless such concealment prevented discovery of the injury. Love,

230 F.3d at 777

.
          Lewis contends that the extraordinary circumstance which stood in
   the way of her filing suit sooner was Defendants’ concerted deception of
   Miles’s legal liability. Lewis’s key allegation regarding this delay is that
   Defendant Vicki Crochet, then LSU’s counsel, told Lewis at a formal
   meeting that Miles had not violated Title IX because the student workers



                                          9
Case: 22-30670     Document: 00516928807           Page: 10    Date Filed: 10/12/2023




                                    No. 22-30670


   were of consenting age. Lewis contends that she relied on that “act of
   deception” in her decision not to investigate or file suit sooner. However,
   Crochet was simply conveying her legal opinion regarding Miles. See Farmer
   v. D & O Contractors,

640 F. Appx. 302, 307

 (5th Cir. 2016) (rejecting the
   argument that a plaintiff’s mistaken reliance on the FBI’s representation
   entailed a sufficiently extraordinary circumstance). Crochet was not Lewis’s
   counsel, and Lewis does not allege that she thought Crochet represented her.
   Considering the circumstances and obviousness of Miles’s misconduct,
   Lewis could have sought her own legal counsel or further questioned
   Crochet’s conclusion. At best, Lewis engaged in a single overt step to
   determine whether suit was necessary when she asked Crochet about the
   investigation of Miles. This lack of diligence does little to determine the
   lengths to which Defendants would have gone to prevent Lewis’s timely
   filing of suit. Her inaction cannot be explained away by any alleged deception.
          Lewis also contends that Defendants “fraudulently concealed” the
   Taylor Porter Report by keeping it off-site at the law firm. She claims that she
   was thus prevented from learning the information she needed to file her claim
   within the statutory period. However, Lewis does not contend that she would
   have acted differently had the report been physically maintained on LSU’s
   premises. Neither does she allege any diligence on her part to uncover a non-
   public report had it been located elsewhere—for example, in the athletics
   department. “[I]n light of the consensus of authority, we conclude that
   ‘fraudulent concealment’ in the context of civil RICO embodies a ‘due
   diligence’ requirement.” Klehr v. A.O. Smith Corp.,

521 U.S. 179

, 195–96
   (1997).
          Lewis’s claims based on injuries that were discovered, or should have
   been discovered, before April 8, 2017, were appropriately dismissed with
   prejudice. Any further allegations by Lewis cannot change the fact that she




                                         10
Case: 22-30670     Document: 00516928807            Page: 11    Date Filed: 10/12/2023




                                     No. 22-30670


   knew of her injuries as early as 2013, a fact pertinent to her pending
   employment-related claims.
                                          C.
          The district court also determined that Lewis’s allegations fail to
   demonstrate that her injuries were proximately caused by the alleged predicate
   acts. We agree that Lewis cannot overcome that deficiency.
          Pursuant to § 1964, a civil RICO plaintiff must show (1) a violation of
   § 1962, (2) an injury to his or her business or property, and (3) that such injury
   was proximately caused by a RICO violation. Cullom v. Hibernia Nat’l Bank,

859 F.2d 1211

, 1214-1215 (5th Cir. 1988). The independent requirements of
   injury and causation are referred to as prudential standing. Lexmark Int’l, Inc.
   v. Static Control Components, Inc.,

572 U.S. 118, 126

 (2014). The causation
   requirement consists of both but-for and proximate causation. Proximate
   causation examines “whether the harm alleged has a sufficiently close
   connection to the conduct the statute prohibits.”

Id. at 133

. This court has
   made clear that “plaintiff must demonstrate that the alleged [RICO]
   violation ‘led directly’ to the injuries.” Molina-Aranda v. Black Magic Enters.,
   L.L.C.,

983 F.3d 779, 784-85

 (5th Cir. 2020) (citation omitted).
          Lewis can only establish causation by showing that her injuries were
   directly caused by the alleged predicate acts. A general—and astute—theme
   of the district court’s analysis is that “the RICO proximate cause
   requirement is designed to deny recovery in situations such as this one ‘when
   too many unexpected things had to happen between the defendant’s
   wrongdoing and the plaintiff’s injury, in order for the injury to occur.’” That
   observation rings undeniably true. Lewis alleges injuries that are more
   directly traced to her employment claims. Beyond that, most of the relevant
   allegations affected others, not Lewis:




                                           11
Case: 22-30670     Document: 00516928807            Page: 12   Date Filed: 10/12/2023




                                     No. 22-30670


          Predicate Act -

18 U.S.C. § 1512

(c) (concealing documents or
   obstructing official proceedings): Lewis was not the victim of Defendants’
   “concealment” of the Taylor Porter Report from the public and from LSU’s
   Board of Supervisors (the “Board”). Lewis alleges that Defendants’ conduct
   interfered with her right to earn a living, exposing her to lawsuits, and leading
   to losses of pay raises, promotions, bonuses, benefits, her career in Power 5
   Athletics, and professional development opportunities. That concealment,
   when accepted as true, instead harmed the Board and LSU (opening those
   entities to liability), the alleged victims (who would not have found justice),
   and third parties, such as USA Today (who have an interest in uncovering
   such wrongdoing). Lewis also alleges that Defendants improperly obstructed
   and influenced a Title IX investigation against Lewis herself by fraudulently
   instituting such proceedings, giving false or misleading testimony, or
   otherwise concealing allegations. Although, in this instance, Lewis is the
   subject of any alleged harms that would flow from an adverse determination
   of that investigation, the causal chain is too attenuated. The investigation was
   complex and included allegations that would have existed regardless of the
   alleged obstruction. This is one situation in which causation is broken by
   several layers of uncertain variables. See BCS Servs., Inc. v. Heartwood 88,
   LLC,

637 F.3d 750, 754

 (7th Cir. 2011) (“[H]ere is where the doctrine of
   proximate cause does its work—too many unexpected things had to happen
   between the defendant’s wrongdoing and the plaintiff’s injury, in order for
   the injury to occur.”).
          Predicate Act -

18 U.S.C. § 1513

 (retaliation against a witness, victim,
   or an informant): Lewis alleges that Defendants illegally settled with a
   student complainant, engaging in acts such as convincing a professor to allow
   a student complainant to retake an examination and dissuading testimony at
   an official Title IX proceeding. We accept these allegations as true; but,
   again, other parties—not Lewis—were the ones proximately injured by those




                                          12
Case: 22-30670       Document: 00516928807              Page: 13      Date Filed: 10/12/2023




                                         No. 22-30670


   actions. Her own injuries are premised on retaliation for reporting Miles,
   which would have transpired regardless of those predicate acts.
           Predicate Acts -

18 U.S.C. §§ 1341

, 1343 (mail fraud and wire fraud):
   As for the alleged mail fraud and wire fraud, Lewis did not rely on
   misrepresentations from Defendants to her detriment. Nor was she directly
   involved in any of the alleged mails or wires containing misrepresentations.
   The one exception is Lewis’s receipt of the final Title IX Investigation report,
   but she fails to allege how simply receiving such a report led directly to her
   property and professional damages. Even when accepted as true, those
   predicate acts proximately caused injury to others, not to Lewis. For
   example, LSU is the clear victim of fraud regarding the Taylor Porter
   Defendants’ fraudulent legal bills. Lewis’s alleged professional harms are not
   traceable to that predicate act.
           Predicate Act -

18 U.S.C. § 1952

(interstate travel in aid of
racketeering): This last predicate act is plainly unrelated to Lewis’s injuries.
Lewis alleges that specific Defendants traveled interstate to “bribe” a
student complainant to drop her claims against Miles. Lewis was not the
direct victim of any harms from that alleged act, and our prior discussion of
retaliation rings true here. Regardless of this predicate act’s truth, Lewis
would have suffered the same harms.
In conclusion, it is more accurate to say that Lewis’s injuries are
rooted in workplace retaliation because of her reporting of sexual
misconduct. Lewis unsurprisingly struggles to contort her pleadings to fit the
difficult mold of civil RICO.4

_____________________
4
Having affirmed the district court on the foregoing, we also conclude that the
district court acted within its discretion when it denied Lewis’s motion to alter or amend

13
Case: 22-30670 Document: 00516928807 Page: 14 Date Filed: 10/12/2023

No. 22-30670

IV.
We DENY the motions on appeal and AFFIRM the district court.

_____________________
the judgment. Her motion did not present new evidence or law, and she presents no
additional argument as to this issue on appeal.