Jones et al v. Scott Davis Chip Mill et al

Filing 92

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 11/6/17. (MRR, )

FILED
2017 Nov-06 AM 09:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CHRISTOPHER JONES, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
SCOTT DAVIS CHIP MILL, et al., )
)
Defendants.
)

Case No. 7:15-cv-00661-TMP

MEMORANDUM OPINION
Pending before the court are multiple motions for summary judgment.
(Docs. 69, 74, and 76). The motions have been fully briefed, and the parties have
consented to dispositive jurisdiction by a United States magistrate judge in
accordance with 28 U.S.C. § 636(c). Accordingly, the undersigned enters the
following Memorandum Opinion.

I.

PROCEDURAL HISTORY
Plaintiffs Kenneth Jackson (“Jackson”) and Christopher Jones (“Jones”)

(together “plaintiffs”) filed the original Complaint in this action on April 21, 2015,
and named as defendants Scott Davis Chip Mill (“the Chip Mill”), Brett Davis
(“Davis”), McMillan Trucking, Mike McMillan (“McMillan”), and Jamie Brasher
(“Brasher”). (Doc. 1). Defendants Davis and the Chip Mill filed a Motion to

Dismiss (doc. 6), which was followed by a Motion to Dismiss filed by defendants
Brasher, McMillan, and McMillan Trucking (doc. 9). On June 24, 2015, the
plaintiffs moved to file an Amended Complaint. The motion was granted, and the
plaintiffs filed an Amended Complaint on July 2, 2015. (Doc. 24). Due to the
filing of the Amended Complaint, the previous Motions to Dismiss were denied as
moot. (Doc. 25).
The parties consented to dispositive jurisdiction by a magistrate judge on
July 7, 2015. (Doc. 26). The court filed an Initial Order in the case on the
following day. (Doc. 27). On July 16, 2015, Motions to Dismiss were filed by
defendant Brasher (doc. 28) and defendants McMillan and McMillan Trucking
(doc. 30). On the same day, defendants Davis and the Chip Mill filed an Answer
to the Amended Complaint. 1 (Doc. 31). The court entered an order granting in
part and denying in part the Motions to Dismiss (docs. 28, 30), but allowing the
plaintiffs to file a Second Amended Complaint “to supply any additional factual or
missing allegations necessary to state claims in this action.” (Doc. 42, p. 37). The
plaintiffs filed a Second Amended Complaint on February 4, 2016. (Doc. 45).
The court entered a Memorandum Opinion and Order determining that the
following claims remain pending:
1

Defendants Davis and the Chip Mill attempted to file a Motion to Dismiss Counts III
through VIII of the Amended Complaint in January of 2016, but the motion was stricken by the
court because, according to Rule 12 of the Federal Rules of Civil Procedure, a motion under
12(b)(6) must be made before the responsive pleading, if a responsive pleading is allowed.
2

• As to defendants Davis and the Chip Mill:

Count One – Race

Discrimination in Contract under 42 U.S.C. § 1981; Count Two – Civil
Conspiracy; Count Three – Racketeering; Count Four – Violation of
Civil Rights under 42 U.S.C. § 1982; Count Five – Conspiracy to
Deprive the Plaintiffs of Civil Rights under 42 U.S.C. § 1985; Count
Six – Unjust Enrichment; and Count Seven – Fraud and Deceit.
• As to defendants McMillan and McMillan Trucking: Count One – Race
Discrimination in Contract under 42 U.S.C. § 1981; Count Two – Civil
Conspiracy; and Count Three – Racketeering.
• As to defendant Brasher –

Count One – Race Discrimination in

Contract under 42 U.S.C. § 1981; Count Two – Civil Conspiracy; Count
Three – Racketeering; and Count Six – Unjust Enrichment only as to
plaintiff Jackson. (Doc. 56, pp. 17-18).
Following entry of the court’s order, defendants Davis and the Chip Mill
filed a Motion to Dismiss Counts IV through VII (doc. 57), which the court denied.
(Doc. 58). Defendant Brasher filed an Answer to the Second Amended Complaint
on July 13, 2016. (Doc. 59). Defendants McMillan and McMillan Trucking filed
an Answer to the Second Amended Complaint on July 21, 2016, followed by an
Amended Answer on August 4, 2016. (Docs. 61, 64). Defendants Davis and the

3

Chip Mill filed an Answer to the Second Amended Complaint on August 4, 2016.
(Doc. 63).
After the parties notified the court of their willingness to engage in
mediation, the court, on December 1, 2016, ordered the parties to proceed with
mediation through a mediator of their choice.

(Doc. 66). Mediation proved

unsuccessful, however, and defendants Davis and the Chip Mill filed a Motion for
Summary Judgment on December 19, 2016. (Doc. 69). The court held a telephone
conference with the parties and set a schedule for the filing and briefing of motions
for summary judgment by the other parties. Defendant Brasher filed a Motion for
Summary Judgment on January 13, 2017. (Doc. 74). Defendants McMillan and
McMillan Trucking filed a Motion for Summary Judgment on January 18, 2017.
(Doc. 76). The plaintiffs filed a Response in opposition to the pending Motions for
Summary Judgment on February 8, 2017. (Doc. 79). The plaintiffs’ Response was
met with Motions to Strike by defendants Brasher (doc. 81) and McMillan and
McMillan Trucking (doc. 80) and motions to join those Motions to Strike by
defendants Davis and the Chip Mill (docs. 84, 85). Reply briefs were filed by
defendant Brasher (doc. 82) and defendants McMillan and McMillan Trucking
(doc. 83) on February 22, 2017. Defendants Davis and the Chip Mill did not file a
reply brief.

4

II.

SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper

“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 47 U.S. 317,
323 (1986) (quoting former Fed. R. Civ. P. 56(c)). The movant can meet this
burden by presenting evidence showing there is no dispute of material fact or by
showing that the nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate burden of proof. Celotex,
477 U.S. at 322-23. There is no requirement, however, “that the moving party
support its motion with affidavits or other similar materials negating the
opponent’s claim.” Id. at 323.
Once the moving party has met its burden, Rule 56 “requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions of file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Id. at 324 (quoting former Fed. R.
5

Civ. P. 56(e)).

The nonmoving party need not present evidence in a form

necessary for admission at trial; however, he may not merely rest on his pleadings.
Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Id. at 322.
After the plaintiff has properly responded to a proper motion for summary
judgment, the court “shall” grant the motion if there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. “[T]he judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.” Id. at 249. His guide is the same standard necessary to
direct a verdict:

“whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52; see also Bill Johnson’s Restaurants, Inc.
v. N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).
6

However, the nonmoving party “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The evidence supporting a
claim must be “substantial,” Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d
379 (5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough to create a
genuine issue of fact. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.
2004); Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249-50
(11th Cir. 2004).

If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.

Anderson, 477 U.S. at 249

(citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989).
Furthermore, the court must “view the evidence presented through the prism of the
substantive evidentiary burden,” so there must be sufficient evidence on which the
jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v.
Storer Communications, Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless,
credibility determinations, the weighing of evidence, and the drawing of inferences
from the facts are the function of the jury, and therefore the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor.
Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of every
inference but only of every reasonable inference. Brown v. City of Clewiston, 848
F.2d 1534, 1540 n. 12 (11th Cir. 1988).
7

III.

FACTS

For purposes of summary judgment the courts are directed to view the facts
in the light most favorable to the non-moving party. However, in the instant case,
portions of the non-moving plaintiffs’ Statement of Facts have been stricken and
will not be considered in this Memorandum Opinion. (See doc. 90). Accordingly,
the following facts are relevant to the instant Motions for Summary Judgment.
Plaintiffs Jones and Jackson, during the relevant period, worked in the
trucking business in the state of Alabama. Plaintiffs are African American. Jones
is the owner and operator of Jones Trucking in Perry County, Alabama, and
Jackson is the owner and operator of Jackson Transportation, LLC, in Wilcox
County, Alabama.
Defendant Davis is the owner and operator of the defendant Chip Mill, an
incorporated entity in Bibb County, Alabama. Defendant McMillan is the owner
and operator of defendant McMillan Trucking, also an incorporated entity in Bibb
County, Alabama. Defendant Brasher, during the relevant time period, was an
employee of McMillan Trucking.
During the relevant time period, the Chip Mill did not have an employee on
staff to assign loads for drivers to haul. Although Brasher was not an employee of
the Chip Mill, he was given the responsibility by Scott Davis, the previous owner
of the Chip Mill, to assign particular loads of wood chips from the Chip Mill to
8

trucking companies and drivers. After Scott Davis’s death, (Brett) Davis took over
the Chip Mill. He began having daily discussions with Brasher to discuss loads
and to make sure the loading and hauling process ran smoothly. Brasher and the
Chip Mill had a policy of placing trucking companies and drivers on a “cut off” list
for the week when there were not enough loads to assign to everyone.
Drivers began receiving loads from the Chip Mill to haul to Beaumont,
Texas (“Texas”), in April of 2014, with virtually no limit imposed by the Chip Mill
on the number of loads to Texas. During July and August of 2014, most of Jones’s
and Jackson’s trucking business involved hauling wood chips from the Chip Mill
to Texas. Jones hauled loads from the Chip Mill under Jones Trucking, a sole
proprietorship, while Jackson hauled loads assigned to his company, Jackson
Transportation, LLC.2 McMillan Trucking was hauling wood chips from the Chip
Mill to local destination; McMillan Trucking, however, did not haul to Texas.
When the number of loads to Texas began to decrease, Brasher began asking
African American drivers to pay him $100 per load. Trucking companies and
drivers who paid would receive preference on loads to Texas; in contrast, drivers

2

See doc. 79-2, p. 156, ll. 14-18 (“I own Jackson Transportation. Jackson Transportation is
in that mill down there because of me signing the paper and giving them my W-9 and giving
them my certificate of title, insurance down there.”); see also Second Amd. Cmplt. ¶ 8; doc. 792, p. 58, ll. 19-23 – p. 59, ll. 1-5 (“And when they give you the – the only form of contract or
whatever that was, it wasn't a contract, they give you a list of all of the places that you run. Then
you have at the end of that list, he got a load number for Jackson Transportation. If it's Alabama
River, load number one, you punch in Jackson -- put my code in, Jackson, get that load going to
the River. And number two, Naola, number two, and it went right down the line. . . .).
9

who did not pay would receive loads to Texas only after paying drivers received
their loads and if loads remained to be assigned. Jackson described the first time
that Brasher asked him to pay:

When I got into the office that morning, the scale house, [Brasher]
said KJ. That’s what he always says. How many loads you going to
need this week? I said I got three trucks running. He said ten? Okay.
That is going to be a hundred dollars a load, just like that. I laughed at
him. I laughed. I said a hundred dollars a load. Punching the
numbers, punching the computer. He goes no, no, no, I’m serious,
I’m serious, I’m serious.
I said you serious, a hundred dollars a load? He said yeah. He said
yeah. Brett said that it’s okay for me to do this. . . I said when did this
start? He said well, it started a while ago, but this Texas is going to
be a hundred dollars a load if you are going to run, that’s what it is
going to be. If you want hundred dollars – if you want ten loads, it’s
going to be a thousand dollars.

(Doc. 75-2, p. 103, ll. 22-23 – p. 104, ll. 1-20).
Jones recalls Brasher saying “that we was [sic] going to have start paying.
We was [sic] going to have to – well, we was [sic] going to have to start paying a
hundred dollars a load going to Texas. . . . [meaning] the drivers.” (Doc. 75-6, p.
75, ll. 1-7). Anderson states that Brasher called him on his phone and said that
“the majority of loads [were] already taken . . . . And if you wanted the load, it was
going to be a hundred dollars and how many loads do you want?” (Doc. 75-12, p.
16, ll. 1-5). In all, approximately seven truckers or trucking entities, operated by
10

both African Americans and white, paid Brasher $100 per load to secure continued
preference on loads to Texas. 3 Brasher asked for payment only from African
American truckers.

Although he would accept payment or trade from white

truckers, he did not ask for payment from them. 4 At least some African American
drivers voluntarily approached Brasher and offered to pay $100 per load.5
Though Brasher benefitted from the policy, the idea originated with Davis
when Brasher asked to go on Davis’ “payroll.” (Doc. 75-7, p. 23 ll. 1-23 – p. 24 ll.
1-24).

Davis suggested to Brasher the idea of brokering loads; according to

Brasher, Davis asked him if he had “ever thought about brokering the loads out.”
(Doc. 75-7, p. 23, ll. 20-21). Jones videotaped Brasher admitting that Davis had
given him the idea to ask for the $100-per-load payment. Brasher, however, was
not a licensed broker, so he considered the $100 per load “no more than a tip.”
(Doc. 79-3, p. 69, ll. 1-23 – p. 70 ll. 1-11). Previously, Brasher would receive tips
when he saved a load to haul over the weekend for a driver who had issues during
3

See doc. 75-7 (Brasher), p. 28, ll. 17-22; doc. 75-12 (Anderson), p. 13, ll. 12-23 – p. 14,
ll. 1-11; doc. 75-14 (Howard), p. 13, ll. 6-23 – p. 14, ll. 1-18, p. 48, ll. 9-23; doc. 75-15 (Powell),
p. 21, ll. 21-23 – p. 24, l. 1; doc. 75-16 (Pruitt), p. 42, ll. 8-23 – p. 43, ll. 1-19; doc. 75-8
(Loveless), p. 2, ¶¶ 6-7; doc. 75-9 (Spivey), p. 21, ll. 2-23 – p. 22, ll. 1-2, p. 32, ll. 2-9.
4

Dewayne Loveless (“Loveless”), a white driver for his own trucking company, L&L
Logging, voluntarily approached Brasher and offered to pay him $100 per load to secure
continued preference for loads to Texas. William Harold Spivey, III (“Spivey”), a white driver
for his own trucking company, Spivey Industrial, voluntarily approached Brasher and offered
him a membership in Spivey’s hunting club worth $2,000 in lieu of the $100-per-load payment
to secure continued preference for loads to Texas.
5

Howard, an African-American driver, voluntarily paid $100 per load to Brasher. (Doc.
75-14, p. 14, ll. 7-18).
11

the week which prevented that driver from hauling. He would receive, at most, a
few tips of $10 to $20 per year. Davis, McMillan, and McMillan Trucking never
received any proceeds from the $100-per-load payments that Brasher received. In
fact, McMillan was not aware of the scheme, even though some of his drivers
heard about Brasher’s scheme.
After learning of the $100-per-load scheme and that Davis was aware of
Brasher’s actions, the plaintiffs, along with Donald Anderson, another African
American trucker, met with Davis at the Sawmeal Restaurant to discuss the matter
(“the meeting”). When the plaintiffs spoke to Davis about ending the $100-perload scheme, Davis indicated to them that he “needed” Brasher and was not going
to terminate his employment. (Doc. 79-2, p. 131, ll. 15-23 – p. 132 ll.1-17). Davis
did not tell the plaintiffs or Anderson that he had suggested the payment system to
Brasher, but he did tell them that he would investigate the matter and report back
to them. Neither the plaintiffs nor Anderson, however, complained or otherwise
suggested at the meeting that Brasher’s payment demands were racially motivated.
Davis spoke with McMillan about the $100-per-load payments that Brasher
asked for and received either before or after his meeting with the plaintiffs. 6 After
the meeting, and as the plaintiffs and Anderson were sitting in a car together,

6

The parties dispute whether Davis spoke to McMillan before or after the meeting;
however, the timing of the discussion is immaterial to the resolution of the motions for summary
judgment.
12

Brasher contacted Anderson and informed him that all three were “cut off” from
loads to Texas. Brasher placed the plaintiffs and Anderson on the “cut off” list
because they complained to Davis about the $100-per-load scheme.

Brasher

claims he “was really hurt that [they] had went behind [his] back and did that. All
[they] had to do was say [they] didn’t want to pay [him] no more.” (Doc. 75-7, p.
33, ll. 17-20). Jones and Jackson confirmed that they were placed on the “cut off”
list after the meeting, yet neither spoke to Brasher or Davis about being taken off
of the “cut off” list. The $100-per-load scheme ended immediately after the
meeting when McMillan told Brasher to stop accepting payments from drivers.
Furthermore, Brasher never accepted another payment, asserting he “never did it
again.” (Doc. 75-7, p. 33, ll. 3-4). Davis never spoke to the plaintiffs again,
however, about resolving the situation as promised. The loads to Texas ended by
the end of September 2014.
In order to obtain loads to Texas, Jackson paid Brasher approximately
$2,900.00, in total.7 Although Jones refused to pay Brasher for loads, he still
received loads to Texas before the meeting. However, Jones was denied at least
one load after both he and Jackson were “cut off” from receiving loads from the
Chip Mill. Jones observed Cedrick Jones 8 hauling a load to Texas after (Chris)
7

Specifically, Jackson made three cash payments of $1,000, $900, and $1,000 to Brasher
over a three week span in order to secure continued preference on loads before he was “cut off.”

8

Cedrick Jones is an African-American driver with C.M. Jones Trucking.
13

Jones and Jackson were “cut off” by Brasher. However, only Jackson and Jones
indicated that Brasher implement the $100-per-load scheme due to any racial
animus.9 Jackson believes that Brasher harbored racial animus because Brasher
“charge[d] only black folks and not white folks” for loads. (Doc. 75-2, p. 266, ll.
18-19). He states that “[if Brasher] did it to the whites, he was wrong. But if
didn’t do it to them, he is twice as wrong. When they come and say – when they
tell me that no, we are not paying, that’s a slap in the face to me . . . .” (Doc. 75-2,
p. 263, ll. 15-19).

Jackson, however, claims that “[w]e would never have been

here if wasn’t for [money.]” (Doc. 75-2, p. 141, ll. 8-9)
IV.

DISCUSSION

The plaintiffs assert seven claims in their Amended Complaint. Some of the
claims were dismissed previously on motions to dismiss filed by some of the
defendants. Therefore, not every claim is applicable to each defendant. The court
will address each claim individually, as it may apply to each defendant.
A. Count One: 42 U.S.C. § 1981 – Race Discrimination in Contract and
Retaliation
1. Jackson’s Standing to Bring § 1981 Claim
Although Count One remains pending against all defendants, Jackson does
not have standing to maintain a claim under § 1981. In Domino’s Pizza, Inc. v.
9

Anderson, Howard, Powell, and Pruitt, all African-American drivers, testified they do not
believe that Brasher was motivated by racial animus. (Doc. 75-12, p. 53, ll. 1-23 – p.54, l. 1;
doc. 75-14, p. 49, 1. 23 – p. 50, ll. 1-15; doc. 75-15, p. 41, ll. 16-23; doc. 75-16, p. 79, ll. 5-8).
14

McDonald, the sole shareholder and president of a Nevada corporation brought a
cause of action under § 1981 against Domino’s Pizza when Domino’s Pizza
breached a contract with his corporation due to racial animus. 546 U.S. 470, 47273 (2006). He argued that he had “a cause of action because he ‘made and
enforced contracts’ for” his corporation. Id. at 475. The Supreme Court disagreed,
finding that McDonald “[could ]not maintain a cause of action under § 1981 unless
he ha[d] . . . rights under the . . . contract that he wish[ed] ‘to make and enforce.’”
Id. at 479-80. The Court reasoned that “Section 1981 plaintiffs must identify
injuries flowing from a racially motivated breach of their own contractual
relationship, not of someone else’s.” Id. at 480. While “McDonald’s complaint
[did] identify a contractual relationship, the one between Domino’s and [plaintiff’s
corporation,] . . . it is fundamental corporation and agency law–indeed, it can be
said to be the whole purpose of corporation and agency law–that the shareholder
and contracting officer of a corporation has no rights and is exposed to no liability
under the corporation's contracts.” Id. at 477.
The defendants argue that Domino’s Pizza controls, and therefore Jackson
lacks standing to bring a § 1981 claim as an individual. Jackson, however, asserts
that he contracted with the Chip Mill in his own name, as if it were a sole
proprietorship. Furthermore, Jackson attempts to argue that a limited liability
company (“LLC”) is different from a corporation, which in turn makes Domino’s
15

Pizza distinguishable. In Jackson’s view, Jackson Transportation, LLC, “in all
relevant aspects resembles a sole proprietorship.” (Doc. 79, pp. 20-21).
Jackson’s strained argument that Jackson Transportation, LLC, is different
from a corporation, which in turn makes Domino’s Pizza distinguishable, is
unavailing. An LLC is more like a corporation than a sole proprietorship for the
purposes of standing to bring a § 1981 claim. As the Supreme Court explained,
“the shareholder and contracting officer of a corporation has no rights and is
exposed to no liability under the corporation's contracts.” Id. at 477. Similarly, “in
general, members of an LLC are not proper parties to proceedings against the LLC,
. . . and members are not liable for judgments against the LLC . . . .” Filo Am., Inc.
v. Olhoss Trading Co., 321 F. Supp. 2d 1266, 1268 (M.D. Ala. 2004). Here, a
member of an LLC may not bring a § 1981 claim for an alleged contract
impairment suffered by the LLC for the same reason an officer/shareholder in a
corporation could not maintain a cause of action under § 1981 for an alleged
contract impairment in Domino’s Pizza.
It is undisputed that Jackson is a member, owner, and operator of Jackson
Transportation, LLC, which was formed on March 3, 2003, and has existed
continuously since that date. During all relevant times, Jackson Transportation,

16

LLC, hauled wood chips from the Chip Mill to Texas, not Jackson individually.10
However, Jackson Transportation, LLC, was not named a party to this action. As
such, Jackson is not the proper party and lacks standing to maintain a claim under
§ 1981 because his ability “to make or enforce a contract” in his own name was not
impaired. Summary judgment is due to be GRANTED for any claim of
discrimination or retaliation brought by Jackson under § 1981 as to each defendant.
2. Jones’ § 1981 Claim
a. Pre-Meeting § 1981 Claim
To support a claim brought pursuant to 42 U.S.C. § 1981, the plaintiff must
allege and make a prima facie showing that “(1) he or she is a member of a racial
minority; (2) the defendant had intent to discriminate on the basis of race; and (3)
the discrimination concerned one or more activities enumerated in the statute.”
Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1235 (11th Cir. 2000).
The activities enumerated in the statute are the rights to “make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal protection of

10

The files maintained by the Chip Mill indicate that Jackson Transportation was the entity
hauling the wood chips. See Doc. 79-2, p. 156, ll. 14-18 (“I own Jackson Transportation.
Jackson Transportation is in that mill down there because of me signing the paper and giving
them my W-9 and giving them my certificate of title, insurance down there.”); see also Second
Amd. Cmplt. ¶ 8. Even further, loads were issued to “Jackson Transportation.” See Doc. 79-2,
p. 58, ll. 19-23 – p. 59, ll. 1-5 (“And when they give you the – the only form of contract or
whatever that was, it wasn't a contract, they give you a list of all of the places that you run. Then
you have at the end of that list, he got a load number for Jackson Transportation. If it's Alabama
River, load number one, you punch in Jackson -- put my code in, Jackson, get that load going to
the River. And number two, Naola, number two, and it went right down the line. . . .).
17

all laws . . . .” 42 U.S.C. § 1981. “[T]he term ‘make and enforce contracts’
includes making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privilege, terms, and conditions of the contractual
relationship.”

42 U.S.C. § 1981(b).

“To state a claim under § 1981 for

interference with a right to contract, ‘a plaintiff must identify an impaired
contractual relationship under which the plaintiff has rights.’” Jimenez v. Wellstar
Health System, 596 F.3d 1304, 1308 (11th Cir. 2010) (quoting Kinnon v. Arcoub,
Gopman & Assocs., 490 F.3d 886, 890 (11th Cir. 2007)).
The second prong of the test dictates that “[a] showing of disparate impact
through a neutral practice [alone] is insufficient to prove a § 1981 violation
because proof of discriminatory intent is essential.” Ferrill v. Parker Grp., Inc.,
168 F.3d 468, 472 (11th Cir. 1999). “To show that a defendant acted with
discriminatory purpose–i.e., element 2 of the § 1981 cause of action–a plaintiff
must present either (1) statistical proof of a pattern of discrimination, (2) direct
evidence of discrimination, which consists of evidence which, if believed, would
prove the existence of discrimination without inference or presumption, or (3)
circumstantial evidence of discriminatory intent using the framework established in

18

McDonnell Douglas.” Melton v. National Dairy, LLC, 705 F. Supp. 2d 1303,
1315-16 (M.D. Ala. 2010).11
Under the McDonnell Douglas framework for § 1981 non-employment
claims, the plaintiff must establish a prima facie case to create an inference of
discrimination if direct evidence does not exist. Benton, 230 F. Supp. 2d at 1369.
Once the plaintiff successfully establishes a prima facie case, “then the burden
shifts to the defendant to offer legitimate, non-discriminatory reasons for its
actions.” Brooks v. Cty. Comm’n of Jefferson Cty, Ala., 446 F.3d 1160, 1162
(11th Cir. 2006). “If the defendant offers legitimate, nondiscriminatory reasons,
then the burden shifts back to the plaintiff to rebut those reasons and show that
they are merely pretext for discrimination.” Id. Despite these shifting burdens,
“the ultimate burden of persuading the trier of fact that the [defendant]
intentionally discriminated against the [plaintiff] remains at all times with the
plaintiff.” Id. (internal quotation marks omitted).
11

For non-employment claims brought pursuant to § 1981, the Eleventh Circuit has yet to
articulate a prima facie test to establish discriminatory intent; however, in Kinnon, 490 F.3d at
893, the Eleventh Circuit upheld a grant of summary judgment by the district court, which
applied the “burden-shifting framework” established by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See also Benton v. Cousins Properties, Inc., 230 F. Supp. 2d 1351, 1370 (N.D.
Ga. 2002) (“There is little case authority concerning the requirements of a prima facie case for
cases alleging racial discrimination in the context of a commercial business dispute, where there
is no employer/employee relationship.”). Our sister courts have extended the McDonnell
Douglas framework to non-employment § 1981 claims, and we will do the same. See Long v.
Aronov Realty Mgmt., Inc., 645 F. Supp. 2d 1008, 1020-21 (M.D. Ala. 2009); Jackson v. Waffle
House, Inc., 413 F. Supp. 2d 1338, 1354-56 (N.D. Ga. 2006); Benton, 230 F. Supp. 2d at 1370;
see also Flournoy v. CML-GA WB, LLC, No. CV 114-161, 2015 WL 8542765, at *3 (S.D. Ga.
Dec. 10, 2015).
19

Although neither party has delineated two possible § 1981 claims, the court
construes the factual record to establish two possible violations of § 1981. The
first possible violation of § 1981 involves Brasher asking African American drivers
for $100 per load to Texas and not asking the same of white drivers prior to the
meeting. The second possible violation of § 1981 concerns Brasher denying Jones
the opportunity to haul loads to Texas after the meeting, while allowing other
drivers to continue to haul loads to Texas.
i.

Contract Impairment

The parties do not dispute that Jones is a member of a racial minority. Jones
cannot, however, establish that the first possible violation of § 1981 involves a
contract impairment. Defendants Brasher and McMillan Trucking argue that the
plaintiffs did not have a contractual relationship with either the Chip Mill or
McMillan Trucking nor did the plaintiffs have a right to keep hauling loads for the
Chip Mill. Jones argues that he was “extorted economically on the basis of race”
and that “[t]he defendants threatened to deprioritize the plaintiffs if they did not
pay the money.” (Doc. 79, pp. 12-13).
Prior to the meeting, Jones cannot show “that the allegedly discriminatory
conduct concerned . . . the making, performance, modification, or termination of
contracts, or the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” Benton, 230 F. Supp. 2d at 1370. In other words, he
20

cannot establish that he was denied, or Brasher impaired, his opportunity to
contract with the Chip Mill to haul loads to Texas prior to the meeting. In fact, the
record conclusively establishes that Jones was not denied a load to Texas during
this period before the meeting. When asked if he “kn[ew] of any loads between
the date [he] refused and August 25th that [he] missed out on because [he] refused
to pay that hundred dollars,” Jones answered “[n]o. I don’t recall any loads that I
missed during that time.” (Doc. 75-6, p. 100, ll. 16-21).
ii.

Prima Facie Case

It is clear from the evidence that there is neither direct evidence nor
statistical proof of discrimination. Because of this, Jones must prove intent in
accordance with McDonnell Douglass.

To establish a prima facie case of

discrimination under the McDonnell Douglass framework, the

plaintiff must demonstrate the following elements . . . : (1) that she is
a member of a protected class; (2) that the allegedly discriminatory
conduct concerned . . . the making, performance, modification, or
termination of contracts, or the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship; and (3) that the
defendants treated the plaintiff less favorably with regard to the
allegedly discriminatory act than the defendants treated other similarly
situated persons who were outside plaintiff's protected class.

Id. at 1370; see also Flournoy, 2015 WL 8542765, at *3. In other words, the
plaintiff must “show an apt comparator of a different race who was not subjected
21

to the same harsh treatment with regard to the enforcement of a contract as was the
plaintiff” to prove intent by circumstantial evidence. Id.
Even assuming arguendo that Jones can point to a contract impairment prior
to the meeting, Jones cannot establish a prima facie case of discriminatory intent
by identifying a white comparator. The defendants argue that Jones has failed to
assert a prima facie case of discrimination against them. However, the defendants
argue that Jones must prove Brasher’s intent to discriminate on the basis of race.
Defendants assert that “there is no evidence Brasher intentionally discriminated
against Jones based on race, [and Jones] cannot identify a White comparator who
was treated more favorably” (doc. 74, p. 3).
Jones argues that he was “extorted economically on the basis of race.” (Doc.
79, p. 12).

He alleges that the defendants “did not similarly threaten white

drivers.” (Doc. 79, p. 13). In other words, he argues that the plaintiffs’ evidence
reveals white comparators “from whom Brasher did not demand” the $100-per
load payment. (Id.). Specifically, Jones points to William Harold Spivey, III, and
Dewayne Loveless as comparators who were not asked to pay $100 per load and
who in fact voluntarily paid $100 per load to Brasher. Finally, Jones argues that the
Chip Mill, Brett Davis, and McMillan Trucking are liable under a theory of agency
and respondeat superior.

22

Jones cannot point to a sufficient white comparator. African American and
white drivers alike paid Brasher $100 per load to receive priority on loads to
Texas.12 Furthermore, both African American and white drivers voluntarily paid
Brasher to secure preference on loads to Texas. 13 Most fatal to his § 1981 claim,
however, is the absence of a white comparator who refused to pay for a load to
Texas, yet who received more preferential treatment. Jones refused to pay Brasher
$100 per load. Therefore, to establish a comparator, he must point to a white
driver who also refused to pay but received more preferential treatment in the form
of being assigned a load without paying Brasher. He cannot, however, identify a
white driver who ultimately refused to pay $100 per load, much less one who
refused to pay and yet received a load. Because the record is devoid of any white
driver who did not pay $100 per load or who did not offer a tangible benefit worth
significant value in lieu of paying $100 per load, Jones cannot establish a white

12

Loveless, a white driver, paid Brasher $100 per load to secure continued preference for
loads to Texas. (Doc. 75-7, p. 2). Spivey, a white driver, offered Brasher a membership in
Spivey’s hunting club worth $2,000 in lieu of the $100-per-load payment to secure continued
preference for loads to Texas. (Doc. 75-9, p. 21, ll. 2-15). Jones testified that Lamont Howard
(“Howard”), Donald Anderson, Cedrick Jones, Ricky Powell, and Patrick Gary all paid $100 per
load to secure continued preference for loads to Texas. (Doc. 75-6, p.86, ll. 20-21; p. 111, ll. 1823 – p. 112, ll. 1-2; p. 118, ll. 11-17; p. 119, ll. 21-23; p. 121, ll. 2-16).
13

Loveless and Spivey voluntarily made their offers to Brasher. (Doc. 75-7, p. 2; Doc. 759, p.21, ll. 2-15). Howard, an African-American driver, also voluntarily paid $100 per load to
Brasher. (Doc. 75-14, p. 14, ll. 7-18).
23

comparator to demonstrate the necessary discriminatory intent to support his
§ 1981 claim. 14
iii.

Legitimate, Non-Discriminatory Reason

Even if he could establish his prima facie case by pointing to a white
comparator, Jones cannot show that Brasher’s proffered legitimate reason for
requiring $100 per load to Texas is pretext. Defendants argue that “Brasher’s
motivation for accepting $100 per load to Texas from African American and white
owner/operators was to increase his income based on the profitable Texas loads.”
(Doc. 75, p. 18; doc. 75-7, p. 23, ll. 1-16). They assert that the scheme “was not
based on race[] and was available to all owners and operators.” (Doc. 75, p. 18,
doc. 75-7, p. 70, ll. 19-23 – p. 71, ll. 1-7). Jones argues that the proffered reason is
pretext. He points to Loveless and Spivey who voluntarily compensated Brasher to
secure continued preference in contrast to African Americans who were asked to
pay $100 per load to Texas. (Doc. 79, p. 13). Jackson testified that he believed the
scheme was racially motivated because Brasher “charge[d] only black folks and
not white folks.” (Doc. 75-2, p. 266, ll. 18-9).
The record establishes that both African American and white drivers
voluntarily paid to secure continued preference for loads to Texas and that the
14

It also goes without saying that Jones cannot point to a possible white comparator in
relation to Jackson’s now foreclosed-upon § 1981 claim to establish Jones’ own § 1981 claim. In
other words, Jones cannot point to a perceived white comparator for Jackson Transportation, or
even Anderson, who is not a party to this action, to establish his own § 1981 claim. Jones must
look to a comparator for himself, not to a comparator for another individual.
24

scheme was never about race.15 When asked what the case is all about at the end
of the day, Jackson testified that it is about his money. (Doc. 75-2, p. 144, ll. 2123 – p. 145, ll. 1-13; see also doc. 75-2, p. 141, ll. 8-9) (“We would never have
been here if wasn’t for [money]”)). Jones cannot point to evidence that Brasher
intended to discriminate against him on the basis of race. (Doc. 75-6, p. 220, ll. 410; p. 251, ll. 11-14). Furthermore, Anderson, Howard, Powell, and Pruitt, all
African-American drivers, do not believe that Brasher was motivated by racial
animus. (Doc. 75-12, p. 53, ll. 1-23 – p.54, l. 1; doc. 75-14, p. 49, 1. 23 – p. 50, ll.
1-15; doc. 75-15, p. 41, ll. 16-23; doc. 75-16, p. 79, ll. 5-8). Anderson testified that
at the meeting with Davis neither he nor the plaintiffs complained to Davis about
“anything to do with race.” (Doc. 75-12, pp. 46, ll. 22-23 – p. 47, ll. 1-15). As
Jackson testified, the record shows that the scheme required by Brasher ultimately
came down to money, not racial animus. Therefore, Jones cannot establish either
an alleged contract impairment or Brasher’s discriminatory intent for the first
possible violation of § 1981.
b. Post-Meeting § 1981 Claim
i.

Prima Facie Case

Even assuming that Brasher’s action in denying Jones the right to contract
with the Chip Mill after he “cut off” Jones constitutes a contract impairment, Jones

15

See supra note 13, at 23.
25

cannot establish discriminatory intent through identification of a comparator. It is
clear from the evidence that (1) there is no direct evidence of discrimination, (2)
there is no statistical proof of discrimination, and (3) Jones cannot point to a
sufficient white comparator. A proper comparator would be a white driver who
continued to haul loads to Texas after the meeting and after the conclusion of the
Brasher’s scheme. Here, Jones argues that he was denied at least one load when he
observed Cedrick Jones, who had less seniority, hauling a load to Texas. (Doc. 756, p. 156, ll. 6-15). Jones, however, fails to identify a white driver who continued
to haul loads to Texas after the meeting; in fact, Jones can identify only Cedrick
Jones, an African American driver, who received a load to Texas over (Chris)
Jones after he (Chris Jones) was “cut off” after the meeting.
ii.

Legitimate, Non-Discriminatory Reason

Even if he could establish his prima facie case by identifying a proper
comparator, Jones cannot show that Brasher’s proffered legitimate reason for
allowing other drivers to continue hauling loads to Texas is pretext. Defendants
argue that “[t]he reason Brasher allegedly ‘cut off’ [Jones] after the meeting with
Davis, was that he was upset that they had gone ‘behind his back’ to complain to
Davis, which . . . had nothing to do with [Jones’] race.” (Doc. 75, p. 18; see also
doc. 75-7, p. 33, ll. 17-20). Jones has failed to argue that this reason is pretextual.
The evidence establishes that Anderson testified that neither he nor the plaintiffs
26

complained to Davis about “anything to do with race” at the meeting. (Doc. 75-12,
pp. 46, ll. 22-23 – p. 47, ll. 1-15). As such, Jones cannot establish discriminatory
intent for the second possible violation of § 1981. Therefore, summary judgment
is due to be GRANTED for any claim of discrimination brought by Jones under
§ 1981 as to each defendant.
3. § 1981 Retaliation Claim
In CBOCS West, Inc. v. Humphries, the Supreme Court held that § 1981
“encompasses claims of retaliation.” 553 U.S. 442, 457 (2008); see also Bryant v.
Jones, 575 F.3d 1281, 1301 (11th Cir. 2009) (applying the precedent of CBOCS in
the Eleventh Circuit).

Under a non-employment § 1981 retaliation claim, “a

plaintiff must allege a defendant retaliated against him because the plaintiff
engaged in statutorily protected activity.” Jimenez, 596 F.3d at 1311; cf. Rose v.
Wal-Mart Stores East, Inc., 631 Fed. App’x 796, 798 (11th Cir. 2015) (discussing
retaliation claims under § 1981 in the employment context and explaining that
Ҥ 1981 prohibit employers from taking adverse actions against employees in
retaliation for their opposition to statutorily prohibited racial discrimination”).
“To establish a claim of retaliation under . . . section 1981, a plaintiff must
prove that [1] he engaged in statutorily protected activity, [2] he suffered a
materially adverse action, and [3] there was some causal relation between the two
events.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir.
27

2008).

Once the plaintiff establishes these elements, the defendant “has an

opportunity to articulate a legitimate, nonretaliatory reason for the challenged . . .
action as an affirmative defense to liability.” Id. However, “[t]he plaintiff bears
the ultimate burden of proving retaliation . . . and that the reason provided by the
[defendant] is a pretext for prohibited retaliatory conduct.” Id.
The Eleventh Circuit has held that “protected activities” in the context of
both Title VII and § 1981 include “the voicing informally of a complaint to
superiors.” Bolton v. Baldwin County Public Schools, 672 Fed. App’x 800, 803
(11th Cir. 2015). “As with other statutory retaliation claims, such a claim under §
1981 requires that the protected activity involve the assertion of rights
encompassed by the statute.”16 Moore v. Grady Memorial Hospital Corporation,
834 F.3d 1168, 1176 (11th Cir. 2016) (quoting Jimenez, 596 F.3d at 1311)
(internal quotation marks omitted).
In other words, “in order to constitute statutorily protected activity capable
of supporting a § 1981 retaliation claim, an employee's complaint must reasonably
convey that she is opposing discrimination based specifically upon race, versus
some other type of discrimination or injustice generally.” Willmore-Cochran v.
16

Because Jackson cannot assert the contract rights of Jackson Transportation, LLC, for a
claim of discrimination under § 1981 for himself as an individual (as discussed in Section
IV.A.1.), Jackson’s protected activity (attending the meeting and voicing informal complaint)
does not involve an “assertion of rights encompassed by the statute,” and therefore, he
individually lacks standing to assert a claim of retaliation under § 1981 for himself. Only Jones
and Jackson Transportation, LLC (which is not a party to this action), may assert a claim of
retaliation under § 1981.
28

Wal-Mart Assocs., Inc., 919 F. Supp. 2d 1222, 1224 (N.D. Ala. 2013) (citing
Pennington v. City of Huntsville, 261 F.3d 1262, 1265 n.1 (11th Cir. 2001) and
Graham v. Methodist Home for the Aging, No. 2:11-cv-1415-SLB, 2012 WL
3637587, at *24 (N.D. Ala. Aug. 20, 2012)). “Moreover, the employer's racially
discriminatory conduct complained of must actually violate § 1981 or, at a
minimum, the plaintiff's complaint must be based on a belief that is both
objectively reasonable and subjectively in good faith that the conduct violates §
1981.” Id. (citing Jimenez, 596 F.3d at 1311 n.6 and Butler v. Alabama Dep’t of
Transp., 536 F.3d 1209, 1213 (11th Cir. 2008)).
The Eleventh Circuit “construes the causal link element of a prima facie
retaliation claim broadly, so that the plaintiff merely has to prove that the protected
activity and the adverse action are not completely unrelated.” Rose, 631 Fed.
App’x at 798. In fact, “[c]lose temporal proximity between the protected activity
and the adverse action may be sufficient to show that the two were not wholly
unrelated.” Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716-17 (11th
Cir. 2002) (discussing causal connection in relation to Title VII retaliation claims).
Here, Jones would have to show that he made an informal complaint about
racial discrimination that impaired his § 1981 contract rights to establish that he
engaged in statutorily protected activity.

Brasher, McMillan, and McMillan

Trucking argue that Jones, Jackson, and Anderson did not complain “that Brasher
29

was allegedly discriminating against them or other drivers based on race.” (Doc.
75, p. 24) (original emphasis omitted). Jones argues that the defendants retaliated
against him after he complained to Davis at the meeting about Brasher requesting
$100 per load to Texas and when Brasher subsequently refused to grant Jones
future loads. (Doc. 79, p. 15). The record establishes that none of the three, Jones,
Jackson, or Anderson, complained about Brasher discriminating against them on
the basis of race at the meeting with Davis. (Doc. 75-2, p. 119, ll. 18-23 – p. 126,
ll. 1-10; p. 130, ll. 21-23 – p. 131, ll. 1-2; doc. 75-6, p. 131, ll. 17-23 – p. 133, ll. 14; doc. 75-12, p. 46, ll. 22-23 – p. 47, ll. 1-15). 17 Even further, Anderson testified
that “[n]o, he didn’t mention anything about race” regarding two phone
conversations between Anderson and Brasher after the meeting and “cut off.”
(Doc. 75-12, p. 50, ll. 4-5). Therefore, Jones cannot establish he engaged in a
protected activity. Because Jones cannot show that he engaged in a protected
activity, an analysis of the remaining steps in the § 1981 retaliation framework is
unnecessary. Therefore, summary judgment is due to be GRANTED for any claim
17

See Doc. 75-12, p. 46, ll. 22-23 – p. 47, ll. 1-15 (“Q. Mr. Jackson did not make any
complaints to Brett Davis during that meeting regarding anything to do with race, correct?
A. I don't recall none.
Q. Okay. You did not make any complaints to Brett Davis regarding race, correct?
A. Correct.
Q. And then Mr. Jones did not make any complaints to Brett Davis with regard to race
during that meeting at the Sawmill Restaurant, correct?
A. As far as my knowledge, yes.
Q. Okay. So it would be fair to say that no one complained to Brett Davis that they thought that
Mr. Brasher was charging these payments based on race, correct?
A. Correct.”)
30

of retaliation under § 1981 brought by Jones as to Brasher, McMillan, and
McMillan Trucking.
The Chip Mill and Davis, however, have not moved for summary judgment
on the § 1981 retaliation claim. Although the Chip Mill and Davis generally
address Count I in their brief (doc. 69, pp. 14-16), their analysis focuses solely on
discrimination under § 1981, not retaliation. The court, therefore, will not construe
their motion and brief to move for summary judgment on Jones’ § 1981 retaliation
claim. As such, the § 1981 retaliation claim remains pending against the Chip Mill
and Davis.
B. Count III – Racketeering Claim 18
Count Three remains pending against all defendants.19

The Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961, et seq.,
“imposes criminal and civil liability upon those who engage in certain ‘prohibited

18

Because the plaintiffs pleaded a civil conspiracy claim in Count II (doc. 45, p. 12-13), the
court will first analyze all potential tort claims before reaching the merits of Count II.
19

As an initial matter, the court recognizes that Jackson likely lacks standing to bring a
claim under RICO. The Eleventh Circuit in Bivens Gardens Office Building, Inc. v. Barnett
Banks of Florida, Inc., held that that “a party whose injuries result ‘merely from the misfortunes
visited upon a third person by the defendant's acts' lacks standing to pursue a claim under
RICO.” 140 F.3d 898, 906 (11th Cir. 1998). “RICO standing will not arise solely because one is
a shareholder or a limited partner in a company that was the target of the alleged RICO violation.
. . . Such an injury is too indirect or ‘derivative’ to confer RICO standing.” Id. As explained in
Section IV.A.1., Jackson Transportation, LLC, hauled loads for the Chip Mill and was the entity
“cut off” after the meeting, not Jackson as an individual. As such, Jackson Transportation, LLC,
was the target of Brasher’s scheme that the plaintiffs allege violated RICO. Even if Jackson has
standing as an individual, Jackson fails, however, to establish a violation of RICO, as will be
discussed infra.
31

activities.’ Each prohibited activity is defined in 18 U.S.C. § 1962 to include, as
one necessary element, proof . . . of ‘a pattern of racketeering activity.’” H.J. Inc.
v. Northwestern Bell Telephone Co., 492 U.S. 229, 232 (1989). Specifically,
under § 1962(c), RICO renders it “unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of racketeering activity . .
. .” In other words, § 1962(c) “prohibits an individual from ‘participating in the
conduct of the affairs of an enterprise engaged in interstate commerce, through a
pattern of racketeering activity.” See Carden v. Town of Harpersville, No. 2:15cv-01381-RDP, 2017 WL 4180858, at *6 (quoting Almanza v. United Airlines,
Inc., 851 F.3d 1060, 1066 (11th Cir. 2017)).

Under 18 U.S.C. § 1962(d), it is

“unlawful for any person to conspire to violate [§ 1962(c)].” “[A] person found in
a private civil action to have violated RICO is liable for treble damages, costs, and
attorney’s fees [under § 1964(c)].” H.J. Inc., 492 U.S. at 233.
Congress defined an enterprise to “include[] any individual, partnership,
corporation, association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity. 18 U.S.C. § 1961(4).
Racketeering activities include “‘any act or threat involving’ specified state-law
crimes, any ‘act’ indictable under various specified federal statutes, and certain
32

federal ‘offenses,’” as defined in 18 U.S.C. § 1961(1). H.J. Inc., 492 U.S. at 232.
Plaintiffs allege extortion and wire fraud, which fall under the definition of
racketeering activity and operate as predicate acts. 18 U.S.C. § 1961.
“A ‘pattern’ of racketeering activity is shown when a racketeer commits at
least two distinct but related predicate acts.” Maiz v. Virani, 253 F.3d 641, 671
(11th Cir. 2001). “Predicate acts are related if they ‘have the same or similar
purposes, results, participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated events.’” Id.
(some internal quotation marks omitted) (quoting Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 496 n.14 (1985)). Importantly, though, “[t]o establish a RICO
pattern it must also be shown that the predicates themselves amount to, or that they
otherwise constitute a threat of, continuing racketeering activity.” H.J. Inc., 492
U.S. at 240. In other words, to establish a pattern of racketeering activity, the
“plaintiffs must charge that: (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.”
Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1264 (11th Cir. 2004) (citing H.J.
Inc., 492 U.S. at 239-43). As the Eleventh Circuit has held, “it is not sufficient to
simply establish two isolated predicate acts. RICO targets ongoing criminal
activity, rather than sporadic, isolated criminal acts. . . .” Id.
33

Furthermore, the “civil plaintiff must also show (1) the requisite injury to
‘business or property,’ and (2) that such injury was ‘by reason of’ the substantive
RICO violation.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1348 (11th Cir.
2016) [hereinafter “Ray II”] (internal quotation marks omitted) (quoting Williams
v. Mohawk Indus., Inc., 465 F.3d 1277, 1282-83 (11th Cir. 2006), abrogated on
other grounds as recognized in Simpson v. Sanderson Farms, Inc., 744 F.3d 702,
714-15 (11th Cir. 2014)). In other words, the plaintiff must establish that the
racketeering activity is the proximate cause of the injury. See Ray II, 836 F.3d at
1349. “The connection between the racketeering activity and the injury can be
neither remote, purely contingent, nor indirect.” Id. However, “[t]he injurious
conduct need not be the sole cause of the plaintiffs' injuries, but there must be
‘some direct relation’ between the conduct and the injury to sustain a claim.” Id.
In summary, to recover treble damages under § 1962(c), “a civil plaintiff
must establish that a defendant (1) operated or managed (2) an enterprise (3)
through a pattern (4) of racketeering activity that included at least two racketeering
acts.”

Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1224 (11th Cir. 2014)

[hereinafter “Ray I”]. “That being said, a plaintiff does not have to show that a
defendant is comparable to an organized crime syndicate to succeed in a RICO
action.” Carden, 2017 WL 4180858 at *10 (citing Ray II, 836 F.3d at 1348).

34

1. Pattern of Racketeering Activity and Continuity
To establish a successful RICO violation, the plaintiffs “must prove . . .
continuity of [the] racketeering activity, or its threat, simpliciter.

Id. at 241

(emphasis in original). As the Supreme Court explained in H.J. Inc.:

“Continuity” is both a closed- and open-ended concept, referring
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. . . . It
is, in either case, centrally a temporal concept—and particularly so in
the RICO context, where what must be continuous, RICO's predicate
acts or offenses, and the relationship these predicates must bear one to
another, are distinct requirements. 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.
Predicate acts extending over a few weeks or months and threatening
no future criminal conduct do not satisfy this requirement: Congress
was concerned in RICO with long-term criminal conduct. Often a
RICO action will be brought before continuity can be established in
this way. In such cases, liability depends on whether the threat of
continuity is demonstrated.
Whether the predicates proved establish a threat of continued
racketeering activity depends on the specific facts of each case. . . . A
RICO pattern may surely be established if the related predicates
themselves involve a distinct threat of long-term racketeering activity,
either implicit or explicit. . . . In other cases, the threat of continuity
may be established by showing that the predicate acts or offenses are
part of an ongoing entity's regular way of doing business. Thus, the
threat of continuity is sufficiently established where the predicates can
be attributed to a defendant operating as part of a long-term
association that exists for criminal purposes. Such associations
include, but extend well beyond, those traditionally grouped under the
phrase “organized crime.” The continuity requirement is likewise
satisfied where it is shown that the predicates are a regular way of
conducting defendant's ongoing legitimate business (in the sense that
35

it is not a business that exists for criminal purposes), or of conducting
or participating in an ongoing and legitimate RICO “enterprise.”

Id. at 242-43. Therefore, the Eleventh Circuit has held that H.J. Inc., establishes
two forms of continuity: “closed-ended” and “open-ended.” Ferrell v. Durbin,
311 F. App’x 253, 256 (11th Cir. 2009) (internal quotation marks omitted)
(quoting H.J. Inc., 492 U.S. at 242).
a. Closed-End Continuity
To establish closed-ended continuity, the plaintiff must prove “a series of
related predicates extending over a substantial period of time.” Jackson, 372 F.3d
at 1265 (11th Cir. 2004) (quoting H.J. Inc., 492 U.S. at 242). In Jackson, the
Eleventh Circuit held that a nine-month period was “wholly insufficient” and “not
an adequately substantial period of time” to establish close-ended continuity as a
necessary prerequisite for a successful RICO claim. Id. at 1266, 1267. In fact, the
Eleventh Circuit has acknowledged that “closed-ended continuity cannot be met
with allegations of schemes lasting less than a year.” Id. at 1266 (citing, among
numerous others, Religious Tech Ctr. v. Wollersheim, 971 F.2d 364, 366-67 (9th
Cir. 1992) (“We have found no case in which a court [of appeals] has held the
[continuity] requirement to be satisfied by a pattern of activity lasting less than a
year”)); see also Ferrell, 311 F. App’x at 256 (continuing to follow the holding of
Jackson). Additionally, “where the RICO allegations concern only a single scheme
36

with a discrete goal, the courts have refused to find a closed-ended pattern of
racketeering even when the scheme took place over longer periods of time.” Id. at
1267.
The plaintiffs cannot establish closed-end continuity. The defendants argue
that the plaintiffs cannot prove closed-ended continuity existed, asserting the
scheme only lasted two months, at most.

Additionally, the scheme ended

immediately after the meeting when McMillan told Brasher to stop accepting the
$100-per-load payments. The plaintiffs fail to argue whether they can establish
closed-ended continuity.
The undisputed record establishes that the scheme, which the plaintiffs
allege is in violation of RICO, began in July of 2014 when Brasher requested $100
per load from Jackson and Jones, among other drivers. (Doc. 75-2, p. 103, ll. 1623 – p.104, ll. 1-21; doc. 75-6, p. 72, ll. 7-19.

Approximately six drivers

(Anderson, Lamont Howard, Rickey Powell, Joe Pruitt, Dewayne Loveless, and
Trey Spivey), in addition to Jackson, either paid or voluntarily offered to pay the
$100-per-load payment to Brasher during the months of July and August of 2014.
(Doc. 75-7 (Brasher), p. 28, ll. 17-22; doc. 75-12 (Anderson), p. 13, ll. 12-23 – p.
14, ll. 1-11; doc. 75-14 (Howard), p. 13, ll. 6-23 – p. 14, ll. 1-18, p. 48, ll. 9-23;
doc. 75-15 (Powell), p. 21, ll. 21-23 – p. 24, l. 1; doc. 75-16 (Pruitt), p. 42, ll. 8-23

37

– p. 43, ll. 1-19; doc. 75-8 (Loveless), p. 2, ¶¶ 6-7; doc. 75-9 (Spivey), p. 21, ll. 223 – p. 22, ll. 1-2, p. 32, ll. 2-9).
The plaintiffs met with Davis on August 25, 2014, to discuss Brasher’s
scheme. (Doc. 75-6, p. 140, ll. 16-20; doc. 75-11; p. 24, ll. 21-23 – p 25, ll. 1-7;
doc. 75-2, p. 114, ll. 15-18, p. 119, ll. 6-23 – p. 120, ll. 1-6). On either August 25
or 26, 2014, Davis talked to McMillan about the scheme. (Doc. 75-6, p. 138, ll. 18; doc. 75-11, p. 29, l. 23- p. 30, ll. 1-5; doc. 75-13, p. 15, ll. 15-23 – p. 16, ll. 121). McMillan then ordered Brasher to stop accepting $100 per load from drivers.
(Doc. 75-6, p. 138, ll. 1-8; doc. 75-13, p. 16, ll. 22-23 – p. 17, ll. 1-13). Brasher
did not accept any payment after that discussion with McMillan following the
meeting. (Doc. 75-7, p. 32, ll. 11-23 – p. 33, ll. 1-4, p. 47, ll. 19-22).
Based on the record, the defendants’ alleged RICO violation lasted two
months, at most, which is insufficient to establish closed-ended continuity. See
H.J. Inc., 492 U.S. at 242; Jackson, 372 F.3d at 1266 (less than a year insufficient
to establish closed-ended continuity).

Even further, because this scheme was

“single scheme with a discrete goal,” the predicate acts would have had to continue
for a much significant period of time than even one to two years.

Jackson,

372 F.3d at 1267. This comports with the Supreme Court’s holding in H.J. Inc.,
which warned that “[p]redicate acts extending over a few weeks or months and
threatening no future criminal conduct do not satisfy this requirement.” 492 U.S.
38

at 242. The plaintiffs have failed to prove that closed-ended continuity has been
established as to each defendant.
b. Open-Ended Continuity
To establish open-ended continuity, the plaintiffs must show “either that the
alleged acts were part of the defendants’ ‘regular way of doing business,’ or that
the illegal acts threatened repetition in the future.” Jackson, 372 F.3d at 1267
(quoting H.J. Inc., 492 U.S. at 242-43). As the D.C. Circuit Court of Appeals has
held, the “illustrations of open-ended continuity [in H.J. Inc.] ‘indicate a
requirement of far more than a hypothetical possibility of further predicate acts.’”
Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1264
(D.C. Cir. 1995) (quoting Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d
1114, 1119 (D.C. Cir. 1991)).
The plaintiffs cannot establish open-ended continuity. The defendants argue
that Brasher’s scheme was isolated and did not establish a “regular way of doing
business” for any of the defendants. Additionally, the defendants assert that there
is no threat of repetition in the future because McMillan ordered Brasher to stop
accepting payments from drivers. The court construes the plaintiffs’ brief to argue
that they established open-ended continuity because “the pattern of extortion
clearly would have continued indefinitely but for the plaintiffs confronting

39

defendant Davis.” (Doc.79, p. 19). However, the plaintiffs fail to explain why this
statement is true nor do they offer evidence in support.
The evidence establishes that none of the defendants’ “regular course[s] of
business” involved Brasher accepting $100 per load from drivers. Specifically, the
scheme only applied to loads going to Texas. (Doc. 45, ¶¶ 11, 13; doc. 75-6, p. 77,
ll. 16-22, p. 78, ll. 4-7). Furthermore, the manner in which Brasher demanded and
accepted payments was neither regular nor consistent; some drivers paid when
demanded while other drivers voluntarily offered to pay without a request by
Brasher. (Doc. 75-7 (Brasher), p. 28, ll. 17-22; doc. 75-12 (Anderson), p. 13, ll.
12-23 – p. 14, ll. 1-11; doc. 75-14 (Howard), p. 13, ll. 6-23 – p. 14, ll. 1-18, p. 48,
ll. 9-23; doc. 75-15 (Powell), p. 21, ll. 21-23 – p. 24, l. 1; doc. 75-16 (Pruitt), p. 42,
ll. 8-23 – p. 43, ll. 1-19; doc. 75-8 (Loveless), p. 2, ¶¶ 6-7; doc. 75-9 (Spivey), p.
21, ll. 2-23 – p. 22, ll. 1-2, p. 32, ll. 2-9). Furthermore, the scheme lasted only two
months and the receipt of payments by Brasher from drivers was sporadic at best,
not long or consistent enough to establish a regular course of business for either
Brasher, the Chip Mill, or Davis. (Id.). McMillan, and by extension, McMillan
Trucking, was not aware of their drivers accepting money for loads. (Doc. 75-13,
p. 21, l. 23 – p. 22, ll. 1-4).
Although the evidence establishes that Brasher accepted “tips” in the past,
his receipt of these tips was sporadic at best and does not establish a regular course
40

of business when considered in addition to the scheme. Specifically, Brasher
would receive tips when he saved a load to haul over the weekend for a driver who
had issues during the week which prevented that driver from hauling. (Doc. 75-7,
p. 24, ll. 11-23). The undisputed record establishes that he would receive, at most,
a few tips a year. (Doc. 75-7, p. 45, ll. 19-23 – p. 46, ll. 1-4). Furthermore, the tip
was for an amount significantly less than $100 per load and was not dependent on
the load’s location, which is in contrast to the scheme of $100 per load to Texas.
(Doc. 75-7, p. 24, ll. 11-23). The tip was a true gratuity in the sense that the driver
offering the tip did so voluntarily. Logically, the acceptance of sporadic gratuities
cannot be in the regular course of business.
In contrast, the $100-per-load payment to Texas was most likely
involuntary. It is conceivable that the drivers who “voluntarily” paid Brasher $100
per load did not in fact do so voluntarily. For example, if the driver heard through
the grapevine that other drivers were paying for loads to Texas, did the drivers
actually pay Brasher voluntarily? The answer easily could be that the payments
were in fact involuntary.

In other words, the drivers were motivated to pay

Brasher $100 per load in order to ensure continued preference on loads to Texas
after hearing that other drivers were doing just that. Therefore, this evidence of
involuntary payment for loads to Texas cannot be combined with the true gratuities

41

that Brasher received in the past in order to establish Brasher’s regular course of
business.
Furthermore, the illegal acts simply do not threaten repetition in the future.
See Jackson, 372 F.3d at 1268 (“in spite of the plaintiffs' bald suggestion that the
defendants might have continued their fraud in the future had they not been
uncovered, this is not sufficient to allege open-ended continuity”). The record is
undisputed: McMillan put a stop to Brasher’s demanding and accepting from
drivers $100 per load to Texas. (Doc. 75-6, p. 138, ll. 1-8; doc. 75-13, p. 16, ll. 2223 – p. 17, ll. 1-13). Brasher did not accept any payment after his discussion with
McMillan following the meeting. (Doc. 75-7, p. 32, ll. 11-23 – p. 33, ll. 1-4, p. 47,
ll. 19-22).

McMillan undisputedly prevented Brasher’s “illegal acts” from

continuing in the future.
As such, the plaintiffs cannot prove continuity to establish a practice of
racketeering activities to satisfy a claim under civil RICO, § 1962(c). Therefore,
summary judgment is due to be GRANTED for the claim brought by the plaintiffs
under § 1962(c) as to each defendant.
2. Enterprise
Even if the plaintiffs could establish open-ended continuity as to Brasher
(i.e., that accepting payments from drivers was in the regular course of his
business), the plaintiffs cannot establish that the requisite enterprise existed to
42

successfully maintain a claim under civil RICO. Although the court recognizes
that neither Brasher nor Davis raises this argument in their briefs, the plaintiffs
address the enterprise argument in their brief. McMillan and McMillan Trucking
argue that they are not engaged in an enterprise, asserting that they are not
racketeers simply because Brasher abused his relationship with them.

The

plaintiffs argue that an association-in-fact enterprise existed between Brasher and
Davis. As such, the court will address the argument for the sake of completeness.
To successfully maintain a civil RICO claim, the plaintiffs must establish the
existence of an enterprise, the second element in the test. See Ray I, 767 F.3d at
1224. There is no dispute that Brasher “operated or managed” the purported
enterprise. Id. However, it is disputed whether an enterprise existed. Congress
defined an enterprise to “include[] any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated
in fact although not a legal entity.” 18 U.S.C. § 1961(4).
a. Association-in-Fact Enterprise
An association-in-fact enterprise is formed when “a group of persons
associated together for a common purpose of engaging in a course of conduct.”
Almanza, 851 F.3d at 1067 (quoting United States v. Turkette, 452 U.S. 576, 583
(1981)). To establish an association-in-fact enterprise, the plaintiffs must show
“three ‘structural features’: (1) a ‘purpose,’ (2) ‘relationships among those
43

associated with the enterprise,’ and (3) ‘longevity sufficient to permit these
associates to pursue the enterprise’s purpose.’” Almanza, 851 F.3d at 1067
(quoting Boyle v. United States, 556 U.S. 938, 944, 946 (2009)).
In the Eleventh Circuit, “the existence of an enterprise ‘is proved by
evidence of an ongoing organization, formal or informal, and by evidence that the
various associates function as a continuing unit.’”

United States v. Goldin

Industries, Inc., 219 F.3d 1268, 1275 (11th Cir. 2000). In other words, “the
definitive factor in determining the existence of a RICO enterprise is the existence
of an association of individual entities, however loose or informal, that furnishes a
vehicle for the commission of two or more predicate [acts], that is, the pattern of
racketeering activity requisite to the RICO violation.” Id.
An association-in-fact enterprise is “simply a continuing unit that functions
with a common purpose.” Ray II, 836 F.3d at 1352 (quoting Boyle, 556 U.S. at
948). Therefore, there must be “evidence that the various associates function as a
continuing unit.” Ray II, 836 F.3d at 1352 (quoting Turkette, 452 U.S. at 583).
Under § 1962(c), “an ‘enterprise’ must have some longevity, since the offense
proscribed by that provision demands proof that the enterprise had ‘affairs’ of
sufficient duration to permit an associate to ‘participate’ in those affairs through ‘a
pattern of racketeering activity.’” Boyle, 556 U.S. at 946. In Brand Energy &
Infrastructure Services, Inc. v. Irex Contracting Grp., No. 16-2499, 2017 WL
44

1105648, at *11 (E.D. Pa. March 24, 2017), the district court found a two year
period to satisfy the longevity requirement. 20
Here, the enterprise’s, at most, two-month existence does not satisfy the
longevity requirement, assuming a fact dispute exists as to the first two elements.
The record does not establish that the enterprise “had ‘affairs’ of sufficient
duration” or that “various associates function[ed] as a continuing unit.” Ray II,
836 F.3d at 1352. While the record does create a fact question as to whether Davis
gave Brasher the idea to charge $100 per load to Texas or even approved it, the
plaintiffs fail to show how this purportedly isolated incident establishes a
“continuing unit” or “‘affairs’ of sufficient duration.” (Id.; see also doc. 75-7, p.
23, ll. 8-22; doc. 75-12, p. 72, ll. 15-23 – p. 73, ll. 1-5).
The record does not establish continuing involvement by Davis after
allegedly suggesting approving Brasher’s $100-per-load scheme. Even though
Davis had daily discussions with Brasher to discuss loads and to make sure
everything ran smoothly (doc. 75-7, p. 13, ll. 19-23 – p. 15, l. 1), there is simply no
evidence in the record that Davis helped Brasher carry out the scheme, supervised
20

The district court in Brand Energy & Infrastructure Services, 2017 WL 1105648, at *11,
also cited to other cases establishing a sufficient period of time to satisfy the longevity
requirement: “Devon Drive Lionville, LP v. Parke Bancorp, Inc., No. 2:15–cv–3435, 2016 WL
7475816, at *8 (E.D. Pa. Dec. 29, 2016) (recognizing that a span of “approximately two years”
and “two years” is sufficient to satisfy Boyle's longevity requirement); . . . United States v.
Eiland, 738 F.3d 338, 360 (D.C. Cir. 2013) (two years sufficient); CIT Grp./Equip. Fin., Inc. v.
Krones, Inc., No. 9–432, 2009 WL 3579037, at *9 (W.D. Pa. Sept. 16, 2009) (holding that 18month period of alleged unlawful conduct was sufficient to satisfy RICO's longevity
requirement).”
45

the scheme, or even discussed the scheme with Brasher again. Furthermore, the
record establishes that Davis put a stop to the scheme by talking to McMillan about
Brasher’s actions, suggesting that the common purpose prong may not be satisfied.
(Doc. 75-6, p. 138, ll. 1-8; doc. 75-11, p. 29, l. 23 – p. 30, ll. 1-5; doc. 75-13, p. 15,
ll. 15-23 – p. 16, ll. 1-21; see also doc. 75-6, p. 138, ll. 1-8; doc. 75-13, p. 16, ll.
22-23 – p. 17, ll. 1-13). Even if this isolated incident of approving the scheme
could establish a “continuing unit,” the purported enterprise lasted two months, at
most, an insufficient duration to satisfy the longevity requirement necessary to
establish an enterprise. 21
b. Single Individual Enterprise
Alternatively, under § 1961(4), “a single individual may be considered an
enterprise under the statutory definition.” United States v. Hawkins, 516 F. Supp.
1204, 1206 (M.D. Ga. 1981) (citing United States v. Elliott, 571 F.2d 880, 898 n.
18 (5th Cir. 1978) (“The number of persons making up an enterprise is irrelevant,
however, in that even a single individual may be considered an ‘enterprise’ under
the statutory definition.”)). 22 However, an enterprise “is an entity separate and
apart from the pattern of activity in which it engages.” Turkette, 452 U.S. at 583.
21

The defendants raised other arguments to show why summary judgment is due to be
granted. Because the plaintiffs fail to establish the existence of an enterprise or continuity,
discussion of those arguments and RICO elements is pretermitted.
22

The Eleventh Circuit Court of Appeals has adopted as binding precedent the decisions of
the former Fifth Circuit decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206 (11th Cir. 1981) (en banc).
46

In other words, a RICO defendant must be distinct from the RICO enterprise. Ray
II, 836 F.3d at 1355. “The distinction between the RICO person and the RICO
enterprise is necessary because the enterprise itself can be a passive instrument or
victim of the racketeering activity.” Goldin Industries, Inc., 219 F.3d at 1275.
Therefore, “to state a civil RICO claim, a plaintiff must establish a
distinction between the defendant ‘person’ and the ‘enterprise’ itself.” Ray II, 836
F.3d at 1355 (citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 16162 (2001)). This premise flows from the statutory text of § 1962(c), which makes
“it ‘unlawful for any person employed by or associated with any enterprise’ to
engage in racketeering activities through that enterprise.” Ray II, 836 F.3d at 1355
(quoting § 1962(c)) (emphasis added). “It does not make sense for a person to
employ or associate with himself.

Thus, an enterprise may not simply be a

‘person’ referred to by a different name.” Ray II, 836 F.3d at 1355 (quoting Cedric
Kushner Promotions, 533 U.S. at 161) (internal quotation marks omitted); see also
Guidry v. Bank of LaPlace, 954 F.2d 278, 283 (5th Cir. 1992) (“If [the
proprietorship] had no employees or other associates and simply did business
under the name of [the proprietorship], it could hardly be said that [the proprietor]
was associating with an enterprise ...; you cannot associate with yourself, any more
than you can conspire with yourself.”) (internal citations omitted).

47

As such, there must be an enterprise interest separate and distinct from the
interest of the RICO person; other members of the RICO enterprise must be free to
act independently of each other. Doe v. Epstein, No. 08-80893-CIV-MARRA,
2010 WL 11504810, at *4-5 (S.D. Fla. March 3, 2010) (interpreting Florida RICO
statutes in accordance with federal RICO jurisprudence). “The prohibition against
the unity of person and enterprise applies only when the singular person or entity is
defined as both the person and the only entity comprising the enterprise.” Goldin
Industries, Inc., 219 F.3d at 1275.
Here, Brasher, as a single individual, cannot be both the RICO enterprise
and the RICO defendant to establish the existence of the requisite enterprise, and
the plaintiffs cannot point to any conduct by Brasher distinct from the purported
enterprise (i.e., Brasher’s participation in the alleged predicate acts cannot be used
to establish both an enterprise and pattern of racketeering activity to find liability
as a RICO defendant). Therefore, Brasher as a defendant and enterprise “are one
and the same[,]” and he “fails the distinction test” in order to prove the existence of
an enterprise. See Guidry, 954 F.2d at 283. Because the plaintiffs cannot point to
an enterprise, either an association-in-fact enterprise or a single individual
enterprise, summary judgment on the civil RICO claims is due to be GRANTED
for this reason as well as to the claims brought against the defendants.

48

3. RICO Conspiracy Claim
Under 18 U.S.C. § 1962(d), it is “unlawful for any person to conspire to
violate any of the provisions of [any] subsection . . . of this section.” The plaintiffs
must prove “a RICO conspiracy claim in one of two ways: (1) by showing that the
defendant agreed to the overall objective of the conspiracy; or (2) by showing that
the defendant agreed to commit two predicate acts.” American Dental Ass’n v.
Cigna Corp., 605 F.3d 1283, 1293 (11th Cir. 2010) (quoting Republic of Panama v.
BCCI Hodlings (Luxembourg) S.A., 119 F.3d 935, 950 (11th Cir. 1997)). The
RICO agreement can be proven by either direct evidence or it can be “inferred
from the conduct of the participants.” Id. (quoting Republic of Panama, 119 F.3d
at 950) (internal quotation marks omitted).
However, in Jackson, the Eleventh Circuit Court of Appeals observed a
defendant “may be liable for RICO conspiracy even if it is not liable for the
substantive RICO offense.” Jackson, 372 F.3d at 1269 (noting that the plaintiffs’
“observation” of the law “is undoubtedly correct”). Yet the Court went on to state
that “[the plaintiffs must] allege an illegal agreement to violate a substantive
provision of the RICO statute” to support a RICO conspiracy claim. Id. In
Jackson, the Court ultimately affirmed the dismissal of a RICO conspiracy claim,
finding “that the complaint failed to state a substantive RICO claim, and the RICO
conspiracy add[ed] nothing.

[The complaint] simply conclude[d] that the
49

defendants ‘conspired and confederated’ to commit conduct which in itself does
not constitute a RICO violation.” Id. In Rogers v. Nacchio, 241 Fed. App’x 602,
609 (11th Cir. 2007), the Eleventh Circuit Court of Appeals summarized the rule in
Jackson as follows: “where a plaintiff fails to state a RICO claim and the
conspiracy count does not contain additional allegations, the conspiracy claim
necessarily fails.” In American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1296
n. 6 (11th Cir. 2010), the Court observed that the majority rule established by sister
circuits holds that “if a plaintiff fails to state a claim of a primary RICO violation,
then the plaintiff’s civil RICO conspiracy claim necessarily fails.” 23
The plaintiffs cannot establish the existence of a RICO conspiracy. The
defendants argue that the plaintiffs failed to put forth sufficient evidence of an
illegal agreement or a violation of § 1962(c), and therefore, there is not a viable
claim of RICO conspiracy under § 1962(d). Brasher further argues that “it is wellestablished that a RICO conspiracy claim fails when the substantive claim based
on § 1962(c) is deficient.” (Doc. 75, p. 44). The plaintiffs did not respond to the
defendants’ arguments regarding the RICO conspiracy claim.

23

“See GE Invest. Private Placement Partners II v. Parker, 247 F.3d 543, 551 n. 2 (4th Cir.
2001); Efron v. Embassy Suites, P.R., Inc., 223 F.3d 12, 21 (1st Cir. 2000); Discon, Inc. v.
NYNEX Corp., 93 F.3d 1055, 1064 (2d Cir. 1996), vacated on other grounds, 525 U.S. 128, 119
S.Ct. 493, 142 L.Ed.2d 510 (1998); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3rd
Cir. 1993); Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 n. 8 (9th Cir. 1992);
Danielsen v. Burnside–Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1232 (D.C.Cir. 1991);
Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir. 1990); In re Edwards, 872 F.2d 347,
352 (10th Cir. 1989).” American Dental Ass’n, 605 F.3d at 1296 n. 6.
50

Here, the RICO conspiracy claim is intertwined with the substantive RICO
claim in Count III of the complaint; there is not a RICO conspiracy claim that
contains additional allegations separate from the substantive RICO claim. (Doc.
45, pp. 13-15). As such, this fact brings the above-styled action in line with the
holdings of Jackson, 372 F.3d at 1269, and Rogers, 241 Fed. App’x at 609, which
state that a RICO conspiracy claim fails if the substantive RICO claim fails.
Therefore, the plaintiffs cannot establish a RICO conspiracy claim, and summary
judgment is due to be GRANTED for the claim brought by the plaintiffs under §
1962(d) as to each defendant.
C. Count IV – Violation of Civil Rights under 42 U.S.C. § 1982
Count IV remains pending only against the Chip Mill and Davis; at a
previous stage of litigation, the court dismissed this count as to the other
defendants because the plaintiffs failed to state a claim upon which relief can be
granted. (See generally doc. 56, pp. 12-13). As to Count IV, the plaintiffs allege
in their complaint that the defendants violated their civil rights by discriminating
against the plaintiffs in violation of 42 U.S.C. § 1982. The Chip Mill and Davis
argue more or less that the plaintiffs cannot state a legal claim, and therefore, they
are entitled to summary judgment.
Under 42 U.S.C. § 1982, “[a]ll citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed by white citizens thereof to
51

inherit, purchase, lease, sell, hold, and convey real and personal property.” The
plaintiffs were not deprived of any incidents of real or personal property—they
were deprived of the equal opportunity to contract.

They cannot claim as

cognizable real or personal property some ‘right’ to be assigned loads to haul.
Therefore, the plaintiffs cannot assert a legal claim under § 1982 because there has
not been an interference with property rights; a “right” to be assigned loads is not a
property right. As such, summary judgment is due to be GRANTED for the claim
brought by the plaintiffs under § 1982 as to the Chip Mill and Davis.
D. Count V – Conspiracy to Deprive Plaintiffs of Civil Rights under 42
U.S.C. § 1985
Count V remains pending only against the Chip Mill and Davis; at a
previous stage of litigation, the court dismissed this count as to the other
defendants because the plaintiffs failed to state a claim upon which relief can be
granted. (See generally doc. 56, pp. 13-15). As to Count V, the plaintiffs allege in
their complaint that the Chip Mill and Davis conspired to violate the plaintiffs’
civil rights in violation of 42 U.S.C. § 1985.24 The Chip Mill and Davis argue
more or less that the plaintiffs cannot state a legal claim, and therefore, they are
entitled to summary judgment. Under 42 U.S.C. § 1985(3), it is unlawful for “two
24

The other two subsections of § 1985 do not apply to these facts. Section 1985(1) provides
a remedy against conspiracies intended to interfere with the acts and functions of public officers,
while § 1985(2) provides a remedy against conspiracies to interfere with witnesses, jurors, or
parties in federal court proceedings or otherwise to obstruct justice. The second amended
complaint does not allege facts implicating either of these provisions.
52

or more persons in any State or Territory [to] conspire or go in disguise on the
highway or on the premises of another, for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws, or
of equal privileges and immunities under the law.” In Jimenez, the Eleventh
Circuit held that

[t]o state a claim under § 1985(3), a plaintiff must allege: (1)
defendants engaged in a conspiracy; (2) the conspiracy's purpose was
to directly or indirectly deprive a protected person or class the equal
protection of the laws, or equal privileges and immunities under the
laws; (3) a conspirator committed an act to further the conspiracy; and
(4) as a result, the plaintiff suffered injury to either his person or his
property, or was deprived of a right or privilege of a citizen of the
United States.

596 F.3d at 1312. “When the alleged § 1985(3) conspirators are private actors, the
plaintiff must demonstrate that the conspiracy was aimed at rights constitutionally
protected against private impairment.” Id.
The Supreme Court has held only that “the right to interstate travel and the
right against involuntary servitude” are “enforceable against private conspirators
under § 1985(3).” Id. “Other courts have held conspiracies to violate contract and
property rights—violations that form the basis of § 1981 claims—cannot spawn §
1985(3) claims.” Id. at 1312 n. 7 (citing Brown v. Philip Morris Inc., 250 F.3d
789, 805–06 (3d Cir. 2001)). Therefore, conspiracies to violate § 1981 do not
53

create a sufficient basis to assert a claim under § 1985(3). Id. at 1312. As the
court previously held as to the other defendants, the plaintiffs cannot assert a legal
claim against the Chip Mill or Davis under § 1985(3) for a purported conspiracy to
violate § 1981. Summary judgment is due to be GRANTED on the plaintiffs’
claim under § 1985(3)brought against the Chip Mill and Davis.
E. Count VI – Unjust Enrichment
Count VI remains pending against Brasher, the Chip Mill, and Davis.25
Alabama case law recognizes that “unjust enrichment is an old equitable remedy
permitting the court in equity and good conscience to disallow one to be unjustly
enriched at the expense of another.” Battles v. Atchison, 545 So. 2d 814, 815 (Ala.
Civ. App. 1989). “The essence . . . of unjust enrichment . . . is that a plaintiff can
prove facts showing that defendant holds money which, in equity and good
conscience, belongs to plaintiff or holds money which was improperly paid to
defendant because of mistake or fraud.” Dickinson v. Cosmos Broadcasting Co.,
Inc., 782 So. 2d 260, 266 (Ala. 2000) (emphasis in original) (quoting HancockHazlett Gen. Constr. Co. v. Trane Co., 499 So. 2d 1385, 1387 (Ala. 1986)).
The Alabama Supreme Court holds that “[t]o prevail on a claim of unjust
enrichment under Alabama law, a plaintiff must show that (1) the defendant

25

Specifically, only a claim of unjust enrichment by Jackson remains pending against
Brasher, the Chip Mill, and Davis. A claim of unjust enrichment by both plaintiffs remains
pending only against the Chip Mill and Davis.
54

knowingly accepted and retained a benefit, (2) provided by another, (3) who has a
reasonable expectation of compensation.” Portofino Seaport Vill., LLC v. Welch,
4 So. 3d 1095, 1098 (Ala. 2008). The Alabama Civil Court of Appeals noted a
second test to establish unjust enrichment:

[o]ne is unjustly enriched if his retention of a benefit would be unjust.
Retention of a benefit is unjust if (1) the donor of the benefit . . . acted under
a mistake of fact or in misreliance on a right or duty, or (2) the recipient of
the benefit . . . engaged in some unconscionable conduct, such as fraud,
coercion, or abuse of a confidential relationship. In the absence of mistake
or misreliance by the donor, or wrongful conduct by the recipient, the
recipient may have been enriched, but he is not deemed to have been
unjustly enriched.

Jordan v. Mitchell, 705 So. 2d 453, 458 (Ala. Civ. App. 1997) (internal citations
omitted). Both forms of unjust enrichment are valid in Alabama, as recognized in
Matador Holdings, Inc. v. HoPo Realty Investments, L.L.C., 77 So. 3d 139, 145146 (Ala. 2011).
1. Brasher
Brasher does not dispute that “Jackson paid Brasher for loads to Texas on
three occasions.” (Doc. 75, p. 45). He argues, however, that Jackson does not
allege that he failed to receive the anticipated benefit of paying Brasher. Further,
he asserts that Jackson did not pay Brasher because of any mistake or fraud and
that Brasher’s conduct was not unconscionable or wrongful. Jackson argues that

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Brasher’s actions “were unlawful, and equity and good conscience demand the
return of the funds.” (Doc. 79, p. 20).
Jackson, however, fails to allege or come forth with evidence in the record
establishing (1) that he did not receive the benefit of his bargain, (2) that he was
mistaken as to Brasher’s statements regarding the scheme (see docs. 42 and 56
dismissing any claim of fraud as to Brasher), or (3) that Brasher’s conduct was
wrongful or unconscionable. See Dadeland Depot, Inc. v. St. Paul Fire and Marine
Ins. Co., 483 F.3d 1265, 1273 (11th Cir. 2007) (quoting Fed. R. Civ. P. 56(e))
(“[A]n adverse party may not rest upon the mere allegations or denials of [that]
party's pleading, but ... must set forth specific facts showing that there is a genuine
issue for trial.”).

As such, summary judgment is due to be GRANTED on

Jackson’s claim of unjust enrichment as to Brasher.
2. The Chip Mill and Davis
Because Jones asserts in the Amended Complaint that he never paid Brasher
the $100 per load payment and the record establishes this fact, he cannot satisfy the
legal elements of an unjust enrichment case; in other words, he cannot assert that
the Chip Mill or Davis were “enriched” at his expense. Jackson states that he
made payments of $100 per load to Brasher, but he does not allege any facts
supporting the claim that the Chip Mill or Davis received any benefit from the
$100-per-load scheme.

Although the plaintiffs have set out how Brasher’s
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employment arrangement benefited all defendants in their Second Amended
Complaint (doc. 45), the benefit of the employment arrangement does not create
enrichment by the Chip Mill or Davis from the scheme. The employment benefit
existed separate and apart from the scheme. Importantly, there is no allegation or
evidence that anyone other than Brasher received any amount from the $100-perload payments that Brasher charged Jackson. Therefore, summary judgment is due
to be GRANTED as to the plaintiffs’ claim of unjust enrichment against the Chip
Mill and Davis.
F. Count VII – Fraud and Deceit
Count VII remains pending only against the Chip Mill and Davis; at a
previous stage of litigation, the court dismissed this count as to the other
defendants because the plaintiffs failed to state a claim upon which relief can be
granted. (See generally doc. 56, p. 16). As to Count VII, the plaintiffs allege in
their complaint that the defendants committed acts of fraud and deceit by making
various false statements that the plaintiffs then relied upon in connection to the
$100-per-load scheme. Specifically, the plaintiffs allege that “Davis intended to
deceive the [p]laintiffs by saying that he would investigate the matter and get back
with them.” (Doc. 45, p. 20). The Chip Mill and Davis argue that the plaintiffs
fail to assert any misleading or false statements made by the Chip Mill or Davis.

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Under the Alabama Code, “[m]isrepresentations of a material fact made
willfully to deceive, or recklessly without knowledge, and acted upon by the
opposite party, or if made by mistake and innocently and acted on by the opposite
party, constitute legal fraud.” Ala. Code § 6-5-101 (1975). Alabama Code § 6-5100 states that fraud “accompanied with damage to the party defrauded” provides a
civil right of action. The Alabama Code defines fraudulent deceit as:

(a)

One who willfully deceives another with intent to induce him to
alter his position to his injury or risk is liable for any damage
which he thereby suffers.

(b)

A deceit within the meaning of this section is either:
(1)

The suggestion as a fact of that which is not true by one
who does not believe it to be true;

(2)

The assertion as a fact of that which is not true by one
who has no reasonable ground for believing it to be true;

(3)

The suppression of a fact by one who is bound to disclose
it or who gives information of other facts which are
likely to mislead for want of communication of that fact;
or

(4)

A promise made without any intention of performing it.

Ala. Code § 6-5-104. A right of action arises under this code section if there is
“[w]illful misrepresentation of a material fact made to induce another to act, and
upon which he does act to his injury.” Ala. Code § 6-5-103. “Mere concealment
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of such a fact, unless done in such a manner as to deceive and mislead, will not
support an action,” and “knowledge of a falsehood constitutes an essential
element.” Id.
There is no allegation that the Chip Mill or Davis lied about or misled the
plaintiffs about the requirement or purpose of the payments in any way that
induced them to pay $100 per load. Additionally, there is no allegation that the
Chip Mill or Davis made any representation at all to the plaintiffs, except for
Davis’s statement which will be discussed infra. Finally, there is no evidence that
the plaintiffs relied to their detriment upon any statement nor have they shown any
damage they suffered. See Dadeland Depot, Inc, 483 F.3d at 1273 (“[A]n adverse
party may not rest upon the mere allegations or denials of [that] party's pleading,
but ... must set forth specific facts showing that there is a genuine issue for trial.”).
The plaintiffs do allege that “Davis intended to deceive the [p]laintiffs by
saying that he would investigate the matter and get back with them.” (Doc. 45,
p. 20). However, there was no deceit. A deceit occurs only if there are facts
showing that Davis never had any intention of investigating the matter and getting
back with them. This is belied by the evidence that Davis reported Brasher’s
scheme of requesting $100 per load from drivers to McMillan, indicating at the
very least that Davis conducted some form of investigation. (Doc. 75-6, p. 138,
ll. 1-8; doc. 75-11, p. 29, l. 23 – p. 30, ll. 1-5; doc. 75-13, p. 15, ll. 15-23 – p. 16,
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ll. 1-21; see also doc. 75-6, p. 138, ll. 1-8; doc. 75-13, p. 16, ll. 22-23 – p. 17, ll. 113). The plaintiffs fail to cite any evidence in the record that Davis never intended
to follow through on these promises at the moment he made them. See Dadeland
Depot, Inc., 483 F.3d at 1273. For all that appears in the Second Amended
Complaint (doc. 45) and the evidentiary record, Davis’s intent was to investigate
the plaintiffs’ claims and report back to them. Thus, his statement was not a
deceit, made by Davis knowing it to be false.
Furthermore, this statement does not qualify as fraud. Except for intentional
deceits, Alabama law does not recognize fraud with respect to a statement
concerning a future event. As the Alabama Supreme Court has stated:

This Court has stated that “[a] mere statement of opinion or prediction
as to events to occur in the future is not a statement of a ‘material fact’
upon which individuals have the right to rely and, therefore, it will not
support a fraud claim.” Crowne Invs., Inc. v. Bryant, 638 So.2d 873,
877 (Ala.1994). “Where the representation of an opinion is involved,
a person must prove not only that there was an intent to deceive, but
also that his reliance was reasonable.” Reynolds v. Mitchell, 529
So.2d 227, 231 (Ala.1988) (citing Bedwell Lumber, Inc. v. T & T
Corp., 386 So.2d 413 (Ala.1980)).

McCutchen Co. v. Media Gen., Inc., 988 So. 2d 998, 1002 (Ala. 2008). Similarly,
the court has stated:

To establish a cause of action for fraud, a plaintiff must prove that the
defendant knowingly made a false representation of a material,
existing fact on which the plaintiff relied to his detriment. Parker v.
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Thyssen Mining Construction, Inc., 428 So.2d 615 (Ala.1983).
Woodard v. Woodard, 413 So.2d 1060 (Ala.1982). In cases of
misrepresentation of existing facts, a reckless misrepresentation might
constitute fraud. The rule is different where the alleged representation
relates to some future event, such as the promises which
Westinghouse allegedly made. In such a situation, the law requires, in
addition to the normal elements of falsity, reliance and damage, proof
that, at the time the statement or promise about the future was made,
there was an actual fraudulent intent not to perform the act promised
and an intent to deceive the plaintiff. Birmingham Broadcasting Co. v.
Bell, 259 Ala. 656, 68 So.2d 314 (1953); accord, Robinson v. Allstate
Insurance Company, 399 So.2d 288 (Ala.1981).

Kennedy Elec. Co. v. Moore-Handley, Inc., 437 So. 2d 76, 80 (Ala. 1983).
The plaintiffs have not alleged or cited to any facts in the record showing a
“fraudulent intent not to perform the act promised” when Davis stated that he
would investigate their claims and get back with them. See Kennedy, 437 So. 2d
at 80.

The record demonstrates that Davis discussed Brasher’s scheme with

McMillan, who then put a stop to it. (Doc. 75-6, p. 138, ll. 1-8; doc. 75-11, p. 29,
l. 23 – p. 30, ll. 1-5; doc. 75-13, p. 15, ll. 15-23 – p. 16, ll. 1-21; see also doc. 75-6,
p. 138, ll. 1-8; doc. 75-13, p. 16, ll. 22-23 – p. 17, ll. 1-13). This, at the very least,
constitutes evidence of a possible investigation.
However, the plaintiffs do not cite to any specific evidence in the record
which creates a genuine issue of material fact as to whether this was actually an
investigation or whether Davis did not intend to investigate their claim at the
moment he made the statement. See Dadeland Depot, Inc., 483 F.3d at 1273.
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Furthermore, the plaintiffs fail to demonstrate how they relied on either part of
Davis’s statement to their detriment and what damages, if any, they suffered. As
such, summary judgment is due to be GRANTED on Count VII as to the Chip Mill
and Davis because the plaintiffs have failed to “set forth specific facts [from the
record creating] a genuine issue of material fact” as to any claim of fraud or deceit
allegedly committed by the Chip Mill and Davis. Id.
G. Count II – Conspiracy
Count II remains pending against all defendants. To prove the existence of a
civil conspiracy, the plaintiffs must prove “a combination of two or more persons
to accomplish an unlawful end or to accomplish a lawful end by unlawful means.”
Keith v. Witt Auto Sales, Inc., 578 So. 2d 1269, 1274 (Ala. 1991); see also
Singleton v. Protective Life Ins. Co., 857 So. 2d 803, 814 (Ala. 2003). The
Alabama Court of Civil Appeals states that

[t]he essence of a conspiracy is an agreement, a meeting of the minds
between the conspirators. One cannot inadvertently become a member
of a civil conspiracy. The plaintiff must allege and prove that the
claimed conspirators had actual knowledge of, and the intent to bring
about, the object of the claimed conspiracy.

First Bank of Childersburg v. Florey, 676 So. 2d 324, 327 (Ala. Civ. App. 1996)
(internal citations omitted). Fundamentally, though, “[t]he gist of the action is not
the conspiracy alleged but the wrong committed.” Singleton, 857 So. 2d at 814. If
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the underlying torts “fail as a matter of law, the conspiracy claim must also fail
because there is no ‘actionable wrong’ to support a conspiracy theory.” Id.
1. Brasher, McMillan, and McMillan Trucking
The defendants argue that the conspiracy claim fails because the plaintiffs
cannot satisfy an underlying tort. The plaintiffs argue that the defendants “had an
implicit agreement to extort the plaintiffs on the basis of race” in violation of 42
U.S.C. § 1981. (Doc. 79, p. 20). However, as discussed previously herein, the
plaintiffs do not have any claims that remain pending against Brasher, McMillan,
and McMillan Trucking. The plaintiffs simply cannot point to substantial evidence
that Brasher’s demands for payment in return for assignment of a load were
racially motivated. The evidence shows that African American and white drivers
alike paid or gave things of value to Brasher for loads, and that plaintiff Jones
continued receiving loads after refusing to pay, at least until the “cut off.” Because
“there is no ‘actionable wrong’ to support a conspiracy theory, summary judgment
is due to GRANTED as to Brasher, McMillan, and McMillan Trucking on any
conspiracy claim. Singleton, 857 So. 2d at 814.
2. The Chip Mill and Davis
The defendants argue that there is not an actionable claim under 42 U.S.C.
§ 1981, which means that the underlying conspiracy claim fails as a matter of law.
The plaintiffs argue that Davis and Brasher had an implicit agreement to violate
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§ 1981. The Chip Mill and Davis cannot enter into an agreement between
themselves to commit an actionable wrong because of the intracorporate
conspiracy doctrine, which

holds that acts of corporate agents are attributed to the corporation
itself, thereby negating the multiplicity of actors necessary for the
formation of a conspiracy. Simply put, under the doctrine, a
corporation cannot conspire with its employees, and its employees,
when acting in the scope of their employment, cannot conspire among
themselves. The doctrine is based on the nature of a conspiracy and
the legal conception of a corporation. It is by now axiomatic that a
conspiracy requires a meeting of the minds between two or more
persons to accomplish a common and unlawful plan. . . . [U]nder basic
agency principles, the acts of a corporation's agents are considered to
be those of a single legal actor. Therefore, just as it is not legally
possible for an individual person to conspire with himself, it is not
possible for a single legal entity consisting of the corporation and its
agents to conspire with itself.

McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000).
Therefore, the intracorporate conspiracy doctrine prevents recognition of any
alleged conspiracy between the Chip Mill and Davis.
Furthermore, there was not an agreement between “a combination of two or
more persons to accomplish an unlawful end or to accomplish a lawful end by
unlawful means.” Keith, 578 So. 2d at 1274. As discussed previously herein, all
claims brought against Brasher, McMillan, and McMillan Trucking have failed.
Although reasonable inferences suggest that Brasher and Davis entered into an
agreement (see doc. 75-7, p. 23, ll. 8-22; doc. 75-12, p. 72, ll. 15-23 – p. 73, ll. 164

5), the agreement was not to commit an actionable wrong. The record establishes
that plaintiffs cannot prove that Brasher committed a wrong under Counts I, III, or
VI. Therefore, the scheme, as discussed infra, does not constitute any tort. Thus,
Davis (and the Chip Mill through principles of agency) could not come to a
meeting of minds with Brasher to commit a wrong because the scheme was not
unlawful nor accomplished through unlawful means. See Keith, 578 So. 2d at
1274. As such, summary judgment is due to be GRANTED as to the Chip Mill
and Davis on any conspiracy claim.
V.

Conclusion
This is a case of an unfortunate scheme implemented on the part of one

actor, perhaps at the suggestion of another. Despite this questionable scheme,
nothing in the record supports the claims brought by the plaintiffs. Despite the
plaintiffs’ assertion of a racial animus because, they say, 26 Brasher demanded
payments only from African American drivers, the undisputed evidence is
otherwise. The motions for summary judgments (docs. 69, 74, and 76) are due to
be GRANTED. Specifically, the motion for summary judgment filed by the Chip

26

It is clear that plaintiffs Jones and Jackson have no personal knowledge whether Brasher
asked for payments only from African American drivers. They were not present during all the
many times Brasher interacted with other drivers and, therefore, they cannot know what went on
between Brasher and other drivers. The circumstantial evidence presented here undercuts their
assertion. The undisputed evidence is that white drivers also paid money and gave things of
value to Brasher, whether or not he demanded them, and, further, that plaintiff Jones himself
continued to receive loads even after he refused to pay. However unfair, illegal, or unethical
Brasher’s conduct may have been, it was not racially discriminatory.
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Mill and Davis (doc. 69) is due to be GRANTED as to every claim alleged by the
plaintiffs, except the claim of § 1981 retaliation, on which the Chip Mill and Davis
did not move for summary judgment. The motions for summary judgment brought
by Brasher, McMillan, and McMillan Trucking (docs. 74 and 76) are due to be
GRANTED as to all claims brought by the plaintiffs. A separate order will be
entered.
DONE this 6th day of November, 2017.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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