MASTEC RENEWABLES PUERTO RICO LLC

v.

MAMMOTH ENERGY SERVICES, INC.

MasTec Renewables Puerto Rico ) LLC, Plaintiff, ) ) v. ) Civil Action No. 20-20263-Civ-Scola ) Mammoth Energy Services, Inc. and ) Cobra Acquisitions, LLC, ) Defendants. )

Order Granting in Part and Deferring in Part Motions to Dismiss Plaintiff MasTec Renewables Puerto Rico LLC (“MasTec”) seeks to recover damages from Defendants Mammoth Energy Services, Inc. (“Mammoth”) and Cobra Acquisitions, LLC (“Cobra”) for projects it says the Defendants diverted to themselves, and away from MasTec, through a bribery scheme involving a Federal Emergency Management Administration official in the wake of Hurricane Maria. (Compl., ECF No. 1.) In its complaint, MasTec sets forth claims (1) under the federal Racketeer Influenced and Corrupt Organizations Act (counts one and two), (2) for tortious interference (count three), and (3) for violations of section 5141 of Title 31 of the Laws of Puerto Rico Annotated (count four). (Id. ¶ 11.) Both Defendants have filed motions to dismiss the complaint in which they argue MasTec fails to state claims for relief under RICO, for tortious interference, or for a violation of Puerto Rican law. (Cobra’s Mot., ECF No. 17, 12–18, 20–23; Mammoth’s Mot., ECF No. 16, 7–10, 11–12.) Both Defendants also maintain the complaint should be dismissed for a lack of personal jurisdiction. (Cobra’s Mot. at 12; Mammoth’s Mot. at 10–11.) Lastly, Mammoth contends MasTec’s claims fail against it for the additional reason that MasTec does not adequately plead that Mammoth is an alter ego of Cobra. (Mammoth’s Mot. at 13–16.) After careful review, the Court agrees with the Defendants that MasTec’s complaint falls short of pleading RICO violations and grants the Defendants’ motion, in part, on that basis. In reviewing the record, upon dismissing MasTec’s federal claims, however, the Court finds itself unsure of whether it has subject-matter jurisdiction over the remaining, non-federal claims and, therefore, defers ruling on those portions of the motions directed at counts three and four. Accordingly, the Court grants the Defendants’ motions to dismiss, in part, and defers ruling on them, in part (ECF Nos. 16, 17). The Court orders MasTec to provide a response to the Court’s concerns regarding diversity jurisdiction on or before October 23, 2020.

1.

Background and Facts¹ Hurricane Maria made landfall in Puerto Rico as a Category 4 storm on September 20, 2017. (Compl. ¶ 1.) The storm wiped out the island’s electricity, destroyed much of its infrastructure, and ultimately caused the deaths of more than³,000 people. (Id.) Just two weeks earlier, another storm, Hurricane Irma, had already left about two-thirds of the island without electricity. (Id. ¶ 25.) On the day Hurricane Maria hit Puerto Rico, the president of the United States issued a major disaster declaration, authorizing FEMA to allocate such available disaster-relief funds as were necessary to provide disaster assistance and to cover related administrative expenses. (Id. ¶ 26.) The Puerto Rico Electric Power Authority (“PREPA”) triggered an emergency protocol and began searching for private contractors to immediately begin work to restore the island’s power. (Id.) On October 13, less than a month after the storm, PREPA notified MasTec—an infrastructure construction company that specializes, among other things, in the emergency restoration of electrical power after natural disasters— that it was being considered as a potential contractor. (Id. ¶¶ 13, 27.) Less than a week later, however, PREPA executed its first “Emergency Master Services Agreement” with Cobra. (Id. ¶ 29.) Cobra, in stark comparison to MasTec, was new to large-scale electric infrastructure restoration, having been just recently formed by its parent, Mammoth, itself an oilfield-services and fossil-fuel company, just months earlier. (Id.) Cobra was Mammoth’s first foray into the energy infrastructure business. (Id.) Mammoth’s CEO and director, Arty Straehla, negotiated and executed this initial contract on Cobra’s behalf. (Id.) The contract, in its initial form, provided for a one-year term and a maximum compensation to Cobra of $200 million, with a $15 million deposit due upon execution. (Id. ¶ 30.) FEMA reviewed this contract, approving it and committing $200 million in public funds for the costs of the initial contract. (Id. ¶ 31.) This initial contract later evolved, and, after five amendments, by February 27, 2018, Cobra’s maximum compensation was increased to $945,429,800, which FEMA also approved. (Id. ¶ 33.) In the meantime, in addition to PREPA’s first contract with Cobra, PREPA issued a second request for proposals, on February 16, 2018, seeking more bids from electrical contractors to continue to rebuild and restore Puerto Rico’s electric grid. (Id. ¶¶ 26, 34.) After considering this second round of bids, PREPA awarded two more contracts: another contract with Cobra, allowing up to $900 million in compensation; and a contract with MasTec, providing for a maximum

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must accept all the complaint’s allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F. 3d 1282, 1284 (11th Cir. 2008). A pleading must only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing the legal sufficiency of a complaint’s allegations, the Court is bound to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint “must . . . contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Am. Dental Ass’n v. Cigna Corp., 605 F. 3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). “Dismissal is therefore permitted when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Glover v. Liggett Grp., Inc., 459 F. 3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F. 2d 1171, 1174 (11th Cir. 1993). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A court must dismiss a plaintiff’s claims if he fails to nudge his “claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive dismissal. See Id. at 555. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.

3.

Discussion

A. MasTec fails to state a claim for violations of RICO.

The Defendants argue the complaint fails to set forth claims for RICO violations. In support, they maintain, variously, (1) MasTec does not sufficiently allege a RICO enterprise; (2) MasTec fails to plead that either Defendant directed the affairs of any enterprise; (3) MasTec does not set forth a pattern of racketeering activity; (4) MasTec does not plead facts establishing proximate cause; (4) MasTec fails to plead that Mammoth committed any predicate acts; and (5) MasTec does not allege a RICO conspiracy. After careful review, the Court agrees with the Defendants that MasTec has failed to set forth facts that would establish a pattern of racketeering. Because of this deficiency alone, the Court finds MasTec has failed to state any claims under RICO. “To establish a federal civil RICO violation under § 1964(c), a plaintiff must prove (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity and (5) injury to business or property (6) that was by reason of the substantive RICO violation.” Corcel Corp., Inc. v. Ferguson Enterprises, Inc., 551 Fed. App’x 571, 575 (11th Cir. 2014) (cleaned up).² To plead a pattern of racketeering activity, as required by elements three and four, a plaintiff must allege: (1) the defendants committed two or more predicate acts within a ten-year time span; (2) the predicate acts were related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature. Cont’l Cas. Co. v. Cura Grp., Inc., No. 03-61846-CIV, 2005 WL 8155321, at *10 (S.D. Fla. Apr. 6, 2005) (Altonaga, J.) (citing 18 U.S.C. § 1961(5)). The “continuing nature” of the criminal conduct, set forth in the third prong, can be established in one of two ways: relying on either a closed-or open-ended theory of continuity. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989). The former theory refers to “a closed period of repeated conduct,” while the latter implicates “past conduct that by its nature projects into the future with a threat of repetition.” Id. “A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time.” Id. at 242. A RICO action, however, will often “be brought before continuity can be established in this way.” Id. “In such cases,” then, a plaintiff must rely on an open-ended theory and establishing liability on that basis “depends on whether the threat of continuity is demonstrated.” Id. (emphasis in original). The continuity aspect of a RICO claim is vitally important because “RICO was designed to create liability for longstanding racketeering activity, and not isolated schemes.” Emess Capital, LLC v. Rothstein, 10-60882-CIV, 2011 WL 13214302, at *6 (S.D. Fla. Mar. 9, 2011) (Goodman, Mag. J.), rep. and recommendation adopted, 10-60882-CIV, 2011 WL 13214308 (S.D. Fla. Dec. 21, 2011) (Lenard, J.).

Here, MasTec concedes it has not alleged a close-ended pattern of racketeering activity and instead relies on an open-ended theory. (Pl.’s Resp. at

First, that it would have been entirely possible for Tribble and Ellison to apply their machinations to a future disaster is not enough. The standard, instead, requires a showing that there is

Here, the entirety of the alleged racketeering activity set forth in the complaint encompasses a scheme which has “a clear and terminable goal” and therefore which has “a natural ending point.” Daedalus Capital LLC v. Vinecombe, 625 Fed. App’x 973, 977 (11th Cir. 2015) (quoting Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F. 3d 771, 782 (7th Cir.1994)). As mentioned above, MasTec identifies this very endpoint in the opening paragraph of its complaint: April 2019, when Puerto Rico’s electric grid had been fully restored. Although MasTec recounts in its response that Tribble had a close personal relationship with Ellison and maintained a leadership role at FEMA (e.g., Pl.’s Resp. at 10), there is no allegation in the complaint that the two, through whom the enterprise conducted its scheme, maintained a relationship of any kind, after the conclusion of the restoration. Similarly, MasTec’s reliance on Tribble’s funneling of work to Cobra that fell outside the scope of second request for proposals (e.g., Pl.’s Resp. at 10) is equally unavailing: these “outside” projects remained confined to the restoration work, funded by FEMA, as a result of Hurricane Maria. In sum, the Court finds no support in the complaint that there was a threat of continuity of the racketeering activity. See Daedalus, 625 Fed. App’x at 977 (finding no threat that the alleged pattern of racketeering activity would continue into the future because the goal of the enterprise had been realized and there was “no longer a working relationship” that would provide an “opportunity for [the d]efendants’ pattern of predicate acts to persist into the future”); Ferrell v. Durbin, 311 Fed. App’x 253, 257 (11th Cir. 2009) (“[I]t is clear that single schemes with a specific objective and a natural ending point can almost never present a threat of continuing racketeering activity.”); Thompson v. Paasche, 950 F. 2d 306, 311 (6th Cir.1991) (concluding that a fraudulent scheme to sell nineteen plots of land was “an inherently short-term affair” that was, “by its very nature, insufficiently protracted to qualify as a RICO violation”). Nor is MasTec’s contention that “hurricanes, earthquakes, and other events under FEMA’s purview are routine occurrences in Tribble’s jurisdiction” (Pl.’s Resp. at 25) availing.

First, this allegation appears nowhere in the complaint. And, even if it did, it would be pure speculation: certainly, there could be, and no doubt will be, another natural disaster, affecting an area’s electric grid, next week, next year, or decades from now. But when and where the next disaster will occur is pure conjecture and, then, whether such a disaster would have resurrected the racketeering activities alleged is, further still, pure guesswork. MasTec also looks to several cases that stand for the proposition that a “lack of a threat of continuity of racketeering activity cannot be asserted merely by showing a fortuitous interruption of that activity such as by an arrest, indictment or guilty verdict” to support its position. United States v. Busacca, 936 F. 2d 232, 238 (6th Cir. 1991); Abraham v. Singh, 480 F. 3d 351, 356 (5th Cir. 2007) (finding continuity where “there [wa]s no reason to suppose that [the defendants’] systematic victimization allegedly begun [years earlier] would not have continued indefinitely had the [p]laintiffs not filed th[eir] lawsuit”); Allwaste, Inc. v. Hecht, 65 F. 3d 1523, 1530 (9th Cir. 1995) (noting that the “[d]efendant[s’] willingness to participate in the kickback scheme and their affirmative misrepresentations . . . demonstrate[d] that if they had not been fortuitously interrupted by termination, the predicate acts could have recurred indefinitely”); United States v. Alexander, 888 F. 2d 777, 778 (11th Cir. 1989) (finding that, where a defendant had “extorted, or conspired to extort, money each year that he held office from 1977 to 1984,” there was a “sufficient likelihood that[,] had [he] continued as a board member, he would have also continued these sorts of activities”); Molinos Valle del Cibao, C. por A. v. Lama, 07-23066-CIV, 2008 WL 11333583, at *3 (S.D. Fla. Oct. 17, 2008) (Simonton, Mag. J.) (finding some support for a RICO claim where the facts showed defendants were committing fraudulent “acts as a regular way of conducting their business and, if that activity had not been discontinued as a result of [the defendants’] decision to flee the Dominican Republic to avoid their creditors, it would have continued indefinitely”), rep. and recommendation adopted, 07-23066-CIV, 2008 WL 11333585 (S.D. Fla. Oct. 31, 2008) (Ungaro, J.). MasTec’s reliance on these cases misses the mark. In each case, the alleged racketeering activity was found to have been interrupted only by a discovery of the defendants’ schemes or the filing of a lawsuit.

Here, by contrast, there was a natural end to the enterprise’s scheme long before any of it was discovered. The last incident MasTec alleges that is indicative of Ellison’s bribery of Tribble occurred in December 2018, when the two exchanged text messages regarding Tribble’s use of Ellison’s credit card for her travel expenses. (Compl. ¶ 71 n.7.) This was nearly three months before the completion of the restoration of the grid and nearly nine months before Tribble, Ellison, and Patterson were arrested. Although the scope of the scheme here was indeed breathtaking and particularly nefarious, considering the involvement of public funds and the destruction and suffering caused by a historic disaster, the totality of the circumstances, as alleged in the complaint, does not depict, or even imply, a threat of continuing criminal activity. Instead, what is revealed by the complaint is an opportunistic scheme, aimed at taking advantage of a natural disaster and the limited, though vast, federal funds made available in its wake. There are simply no allegations here that support the notion that the alleged criminal activity was part of the enterprise’s regular way of doing business or that the enterprise intended to continue to seek out similar opportunities to which it could apply its malfeasance. Jackson, 372 F. 3d at 1267 (noting that even “predicate acts occurring over three year period [are] insufficient to allege pattern of racketeering when [the] complaint alleged a single scheme with a single goal) (citing Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F. 3d 1260, 1265 (D.C.Cir.1995)). The scheme alleged here began, at the earliest, when federal funds became available for the restoration of Puerto Rico’s electric grid and ended, at the latest, when the restoration was complete and the funds had been expended. MasTec, therefore, has failed to state a claim for a RICO violation.

Accordingly, the Court grants the Defendants’ motions to dismiss both MasTec’s substantive RICO claim, under 18 U.S.C. § 1962(c) (count one), and MasTec’s conspiracy claim, under § 1962(d) (count two), which is premised upon the substantive claim.

B. Subject-matter jurisdiction

Upon a review of the record in this case, in light of the dismissal of MasTec’s federal claims, the Court is unable to ascertain whether it retains subject-matter jurisdiction over this case. Although MasTec maintains “there exists complete diversity” (Compl. ¶ 20), the Court finds MasTec’s citizenship allegations lacking. A party seeking to invoke a federal court’s diversity jurisdiction must allege “facts” showing federal subject matter jurisdiction exists. Travaglio v. Am. Express Co., 735 F. 3d 1266, 1268 (11th Cir. 2013). “Those allegations, when federal jurisdiction is invoked based upon diversity, must include the citizenship of each party, so that the court is satisfied that no plaintiff is a citizen of the same state as any defendant.” Id. Further, in the Eleventh Circuit, the citizenship of a limited liability company is determined, for diversity purposes, by the citizenship of all the members composing the entity. Rolling Greens MHP v. Comcast SCH Holdings, LLC, 374 F. 3d 1020, 1021–22 (11th Cir. 2004). A limited liability company is a citizen of any state of which a member is a citizen. Id. at 1022. To sufficiently allege the citizenship of a limited liability company, a party must list all the members of the limited liability company along with each member’s citizenship. Id.

Here, two of the parties are limited liability companies: MasTec and Cobra. The complaint states both are wholly-owned subsidiaries: MasTec of MasTec, Inc. (Compl. ¶ 13); and Cobra of Mammoth (id. ¶ 16). But allegations that these two entities are wholly-owned subsidiaries does not necessarily “permit the court to conclude that plaintiff and defendants are diverse for purposes of subject matter jurisdiction, because it is membership, not ownership, that is critical for determining the citizenship of an LLC.” Post v. Biomet, Inc.,³:20-CV-527-J-34JRK, 2020 WL 2766210, at *1 (M.D. Fla. May 28, 2020) (cleaned up). And while the Court “acknowledges that the terms ‘owner’ and ‘member’ have sometimes been used synonymously with respect to limited liability companies,” the “terms are not always interchangeable.” Id. The Court is, therefore, unsure whether, (1) in addition to owning the subsidiaries, the parent companies are also members, or (2) despite being “wholly owned,” there are necessarily no other members.

Accordingly, the Court cannot assume that MasTec’s allegations regarding ownership necessarily establish sole membership or even membership.

Additionally, even if MasTec, Inc., is indeed MasTec’s sole member, the complaint fails to set forth MasTec, Inc.’s citizenship, further preventing the Court from discerning MasTec’s citizenship. If MasTec is unable to establish the Court’s subject-matter jurisdiction to consider the remaining, non-federal claims in this case, the Court will dismiss those claims, albeit without prejudice. On the other hand, if MasTec does establish subject-matter jurisdiction, the Court will evaluate the remainder of the Defendants’ motions to dismiss at that time.

4.

Conclusion For the reasons set forth above, the grants the Defendants’ motions to dismiss, in part, and defers consideration of the remainder of those motions, in light of questions relating to the Court’s subject-matter jurisdiction (ECF No. 16, 17). The Court dismisses MasTec’s RICO claims (counts one and two), with prejudice because MasTec has failed to state a claim under Rule 12(b)(6). Further, the Court denies MasTec’s request for leave to amend, inserted as an afterthought, in a footnote, at the conclusion of its forty-page opposition to the Defendants’ motions to dismiss: the request is both procedurally defective and lacking in substantive support. See Newton v. Duke Energy Florida, LLC, 895 F. 3d 1270, 1277 (11th Cir. 2018) (“[W]here a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”); Avena v. Imperial Salon & Spa, Inc., 740 Fed. App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected the idea that a party can await a ruling on a motion to dismiss before filing a motion for leave to amend.”) (noting also that “a motion for leave to amend should either set forth the substance of the proposed amendment or attach a copy of the proposed amendment”) (cleaned up). On the other hand, the Court defers consideration of the Defendants’ motions to dismiss the remainder of MasTec’s complaint: that is, counts three and four. Because the Court is unable to ascertain whether complete diversity exists, the Court orders MasTec to submit a statement, setting forth the facts necessary to establish jurisdiction on or before October 23, 2020. If MasTec fails to comply by this date or fails to provide the facts necessary to establish the Court’s subject-matter jurisdiction, the Court will dismiss the remaining counts of MasTec’s complaint, without prejudice. If the Court finds it indeed has subject-matter jurisdiction over the remaining claims, the Court will then consider the remainder of the Defendants motions to dismiss. Done and ordered, at Miami, Florida, on October 14, 2020. 7 Robert N. Scola, Jr. United States District Judge