Cesnik v. Edgewood Baptist Church , 88 F.3d 902 ( 1996 )


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  •                                           [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    No. 95-8151
    D. C. Docket No. 93-CV-141-COL
    BLANE CESNIK, KRISTI CESNIK,
    Plaintiffs-Appellants,
    versus
    EDGEWOOD BAPTIST CHURCH, d/b/a New
    Beginnings Adoption and Counseling
    Agency, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Middle District of Georgia
    (July 5, 1996)
    Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY,
    Senior Circuit Judge.
    TJOFLAT, Chief Judge:
    This case arises out of the adoptions of two newborn babies.
    The adopting parents contend that the adoption agency
    deliberately misrepresented that the infants were healthy when,
    in fact, they were severely mentally and physically disabled.
    The adopting parents brought this suit against the church that
    operates the adoption agency and against three individuals
    involved directly or indirectly in the adoptions.   The parents'
    complaint presented multiple common-law and statutory (both state
    and federal) tort claims and a claim for breach of contract.    On
    motion for summary judgment, the district court dismissed all of
    the parents' claims.    This appeal followed.
    With respect to the common-law tort claims, we are able to
    say with confidence that the district court was correct in
    relying on the statute of limitations to bar the claims.   With
    respect to the remainder of the appellants' claims, however, all
    that we can say is that, with a few exceptions, the district
    court's granting of summary judgment cannot be sustained on this
    record.   Our review of these claims is limited because the
    appellants have presented us with a "shotgun" complaint, which is
    so muddled that it is difficult to discern what the appellants
    are alleging beyond the mere names of certain causes of action.
    We begin this opinion with a statement of the facts, which
    we glean from the depositions and affidavits that the parties
    presented to the district court in support of and in opposition
    2
    to the appellees' joint motion for summary judgment.   In drawing
    this statement of facts, we consider the evidence in the record
    in the light most favorable to the non-movants, the appellants.
    See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255, 106 S.
    Ct. 2505, 2513, 
    91 L. Ed. 2d 202
    (1986).   After setting out the
    facts, we examine the appellants' complaint, and the district
    court's reasons for disposing of appellants' claims.   We then
    explain why summary judgment was appropriate on some of
    appellants' claims and why some of their claims should not have
    been disposed of summarily.
    I.
    Blane and Kristi Cesnik, who live in St. Cloud, Minnesota,
    are the parents of four severely mentally and physically disabled
    children, all of whom they have adopted.   They adopted their two
    youngest children, Caleb and Eli, through the New Beginnings
    Adoption and Counseling Agency, an unincorporated entity operated
    by the Edgewood Baptist Church, a corporation organized under
    Georgia law with its place of business in Columbus.1
    In November of 1989, Kristi Cesnik called Phoebe Dawson, the
    director of New Beginnings, and told Dawson that she and her
    husband were seeking to adopt a healthy, non-disabled child of
    any sex and any race.   On November 20, 1989, a baby boy, whom the
    Cesniks would name Caleb, was born at a hospital in Columbus.
    1
    The Cesniks adopted two disabled girls prior to the
    adoptions that are the subject of this lawsuit. New Beginnings
    was not involved with those prior adoptions.
    3
    Dawson contacted the Cesniks by telephone and told them that she
    had obtained and reviewed the medical records of Caleb's
    delivery, including the results of tests that the Cesniks had
    asked to be performed.   Dawson told them that all of the medical
    records and other information she had obtained indicated that the
    boy was perfectly healthy.    Dawson also told the Cesniks that
    Caleb's birth mother had received prenatal care since the sixth
    week of pregnancy and that she had not used drugs during the
    pregnancy.
    Dawson delivered Caleb to the Cesniks on December 10, 1989,
    at an airport in Minnesota.    The Cesniks soon noticed that Caleb
    had health problems.   Four to six months after the placement, the
    Cesniks received Caleb's medical records.2   The records showed
    that the birth mother had, in fact, received no prenatal care,
    that she had tested positive for opiates and barbiturates at the
    time of delivery, that the delivery had been complicated, and
    that Caleb had been born prematurely.    The Cesniks' doctors soon
    diagnosed Caleb with cerebral palsy, asthma, developmental
    disorders, and severe behavioral problems.    The doctors suspect
    that most or all of these conditions were caused by exposure to
    drugs and alcohol during the pregnancy and by a lack of prenatal
    care.
    2
    At the time of Caleb's placement, the Cesniks signed a
    form that stated that they had received Caleb's medical records.
    This statement was not true. Dawson had told the Cesniks that
    signing the form at that time would make it unnecessary for her
    to make another trip to Minnesota.
    4
    When the Cesniks asked Dawson about the discrepancy between
    the medical records and what she had told them, Dawson explained
    that she had not actually reviewed Caleb's medical records before
    he was placed with the Cesniks because the records had been
    switched at the New Beginnings agency with those of another
    mother with the same name.    Dawson also claimed that Caleb's
    birth mother had lied about her condition and her use of drugs.
    The Cesniks accepted Dawson's explanations.    The adoption of
    Caleb became final on July 10, 1990.
    In December of 1990, the Cesniks contacted New Beginnings
    again, seeking to adopt a healthy, non-disabled, black or mixed-
    race child.3    On February 12, 1991, a baby boy, whom the Cesniks
    would name Eli, was born at a hospital in Columbus.    Dawson
    contacted the Cesniks by telephone and told them that she had
    obtained and reviewed the medical records of Eli's delivery,
    including the results of tests that the Cesniks had asked to be
    performed.     Dawson told them that all of the medical records and
    other information she had obtained indicated that the boy was
    perfectly healthy.    Dawson also told the Cesniks that Eli's birth
    mother had received prenatal care since the early stages of her
    pregnancy, and that Dawson knew the birth mother's personal
    history, including the fact that the birth mother had not used
    drugs during the pregnancy.
    3
    The Cesniks sought a black or mixed-race child in the
    interest of Caleb, who is black.
    5
    Dawson delivered Eli to the Cesniks on April 6, 1991, at an
    airport in Minnesota.    The Cesniks soon noticed that Eli had
    health problems, and they contacted Dawson by telephone and
    requested his medical records.4   The agency sent the medical
    records a week or two later.    The records showed that Eli's birth
    mother had, in fact, received no prenatal care and that she had
    experienced severe preeclampsia and toxemia.     Furthermore, no
    drug test had been performed on Eli at the time of birth, as had
    been requested by the Cesniks.    A drug test performed on April 1
    indicated the presence of codeine and morphine, although that may
    have been the result of medication that Eli was taking at the
    time.    The records also showed that Eli had intrauterine growth
    retardation and low Apgar scores.     The Cesniks' doctors soon
    diagnosed Eli with cerebral palsy, pseudobulbar palsy, asthma,
    stomach problems, fetal alcohol syndrome, facial deformities,
    colitis, a sleeping disorder, and behavior problems associated
    with autism.    The doctors suspect, as they do with Caleb, that
    most or all of these conditions were caused by exposure to drugs
    and alcohol during the pregnancy and by a lack of prenatal care.
    When the Cesniks asked Dawson about the discrepancy between
    the medical records and what she had told them, Dawson explained,
    as she did after Caleb's placement, that she had not actually
    reviewed Eli's medical records before he was placed with the
    Cesniks because the records had been switched at the New
    4
    Just as they did at the time of Caleb's placement, the
    Cesniks signed a form that stated that they had received Eli's
    medical records. Again, this statement was not true.
    6
    Beginnings agency with those of another mother with a similar
    name.     Dawson also claimed that Eli's birth mother had lied about
    her condition and her use of drugs.     This time, the Cesniks did
    not accept Dawson's explanations.
    On July 21, 1991, shortly after the Cesniks began making
    inquiries about receiving an adoption assistance subsidy from the
    state of Georgia for the two boys,5 Dawson met the Cesniks at
    their home in Minnesota.     Holding Eli in her arms, Dawson told
    the Cesniks that she could withhold her consent to the Cesniks'
    adoption of the boy if there was any further discussion of his
    medical condition or if the Cesniks did not keep quiet about what
    had happened.     After this incident, the Cesniks had no further
    contact with Dawson.     The adoption of Eli became final on
    September 26, 1991.
    In August of 1992, the Cesniks made a formal complaint to
    the Georgia Department of Human Resources about the manner in
    which New Beginnings handled the placements of Caleb and Eli.
    The state agency investigated, found various deficiencies in New
    Beginnings' adoption procedures, and required the agency to take
    corrective action.
    5
    The Georgia Department of Human Resources provides
    federally subsidized adoption assistance payments for children
    with "special needs," including mental and physical disabilities.
    See Social Security Act of 1935, 42 U.S.C. § 673 (1994).
    7
    II.
    On December 9, 1993, the Cesniks filed a complaint in the
    United States District Court for the Middle District of Georgia
    against the Edgewood Baptist Church, Andy Merritt (the associate
    pastor of Edgewood Baptist Church who had supervisory authority
    over New Beginnings), Phoebe Dawson (the executive director of
    New Beginnings), and Mary Ellen Slaughter Winton (the social case
    worker hired by New Beginnings to work with Eli's birth mother
    during her pregnancy).   The complaint consists of three counts,
    which are preceded by ninety-nine numbered paragraphs of factual
    recitations that are incorporated by reference into each of the
    three counts.   In addition, count two incorporates all of the
    allegations -- including the causes of action -- of count one,
    and count three, in turn, incorporates all of the allegations --
    including the causes of action -- of counts one and two.
    The complaint is the sort of "shotgun" notice pleading we
    encountered in Anderson v. District Bd. of Trustees, 
    77 F.3d 364
    ,
    366-67 (11th Cir. 1996), and in scores of other cases -- both
    reported and unreported -- that have come before this court.6    It
    was framed in complete disregard of the principle that separate,
    discrete causes of action should be plead in separate counts.
    
    Anderson, 77 F.3d at 366
    .   Count one, for example, which is
    6
    See, e.g., Fikes v. City of Daphne, 
    79 F.3d 1079
    , 1082-83
    (11th Cir. 1996); Beckwith v. City of Daytona Beach Shores, 
    58 F.3d 1554
    , 1567 (11th Cir. 1995); Pelletier v. Zweifel, 
    921 F.2d 1465
    , 1517-18 (11th Cir.), cert. denied, 
    502 U.S. 855
    , 
    112 S. Ct. 167
    , 
    116 L. Ed. 2d 131
    (1991); T.D.S. Inc. v. Shelby Mut. Ins.
    Co., 
    760 F.2d 1520
    , 1543-44 n.14 (11th Cir. 1985) (Tjoflat, J.,
    dissenting).
    8
    labeled "Wrongful Placement and Adoption," purports to plead at
    least nine discrete theories of recovery.     After alleging that
    the Cesniks were induced by the appellees' misrepresentations to
    adopt Caleb and Eli, the count states the following:
    This count of the Complaint encompassed by the claim of
    "Wrongful Placement and Adoption" and sounding in tort law,
    includes but is not limited to the common law torts of
    negligent breach of duty; negligent hiring, training,
    supervision, discipline and retention of personnel;
    negligence per se; breach of fiduciary relationship;
    misrepresentation; fraud in the inducement and the act;
    undue influence; duress; and intentional infliction of
    emotional distress.
    Nowhere in count one do the Cesniks set forth any of the elements
    of these separate causes of action or the facts underpinning
    them.    Rather, a reader of the pleading must discern these things
    for himself.
    Count two is labeled "Breach of Contract."     The count
    alleges that in 1989 and again in 1991 the Cesniks and New
    Beginnings entered into a contract for the placement of a healthy
    baby.    Count two does not, however, indicate whether the contract
    was reduced to writing, nor does it recite the provision(s) of
    the contract that New Beginnings breached.7    All that is alleged
    is that "the defendants breached their contractual agreement with
    the plaintiffs for the placement and adoption of the plaintiffs'
    sons Caleb and Eli."
    Count two also presents a claim for fraud with the following
    allegation:    "The defendants fraudulently took monies for the
    7
    Count two seeks to hold the individual defendants, as
    well as the church, liable for breaching a contract as to which
    the individual defendants are not parties.
    9
    placement of the plaintiffs' sons Caleb and Eli which were not
    earned, were for services not provided, were for expenses not
    incurred, and/or were not paid to the parties for whom the
    Cesniks were billed."   In addition, of course, by incorporating
    all of the allegations of count one, count two alleges all of the
    other tort claims alleged in count one.
    Count three is labeled "Federal and State Conspiracy."    As
    we explain below, count three may be alleging five discrete
    causes of action:   three federal claims and two state claims.
    Count three alleges the following (with respect to both the
    Cesniks' federal and state claims):
    All defendants . . . came to a mutual understanding to
    try to accomplish a common and unlawful plan, namely to
    engage in a "pattern of racketeering activity."
    . . .
    At the time the defendants knowingly and willingly
    agreed to join such a conspiracy, they did so with the
    specific intent to participate in at least two (2) of the
    predicate mail fraud and wire fraud offenses.
    Defendants knowingly and wilfully used the mails for
    communication and telephones for conversations in Interstate
    Commerce or caused to be transmitted by mail or wire in
    Interstate Commerce communications for the purpose of
    executing their scheme to defraud. 18 U.S.C. § 1341 and
    1343.
    Said conspiracy is actionable under 18 U.S.C. § 1962 et
    seq. and O.C.G.A. § 16-4-1 et seq.
    Under the Racketeer Influenced and Corrupt Organizations Act
    ("RICO"), 18 U.S.C. §§ 1961-1968 (1994) (as added by the
    Organized Crime Control Act of 1970, Pub. L. No. 91-452,
    § 901(a), 84 Stat. 922, 941-48), it is illegal for persons to
    10
    engage in, or aid and abet another to engage in, a pattern
    of racketeering activity if they also do the following:
    invest income derived from the pattern of racketeering
    activity in the operation of an enterprise engaged in
    interstate commerce (section 1962(a)); acquire or maintain,
    through the pattern of racketeering activity, any interest
    in or control over such an enterprise (section 1962(b)); or
    conduct, or participate in the conduct of, the affairs of
    such an enterprise through a pattern of racketeering
    activity (section 1962(c)). Section 1962(d) makes it a
    crime to conspire to violate sections 1962(a), (b), or (c).
    Pelletier v. Zweifel, 
    921 F.2d 1465
    , 1495-96 (11th Cir.), cert.
    denied, 
    502 U.S. 855
    , 
    112 S. Ct. 167
    , 
    116 L. Ed. 2d 131
    (1991).8
    RICO provides a civil remedy for the victims of these section
    1962 crimes, as follows:   "Any person injured in his business or
    property by reason of a violation of [18 U.S.C. § 1962] may sue
    therefor in any appropriate United States district court and
    shall recover threefold the damages he sustains and the cost of
    the suit, including a reasonable attorney's fee."   18 U.S.C. §
    1964(c).9
    Count three alleges that the defendants were engaged in a
    "conspiracy," presumably in violation of 18 U.S.C. § 1962(d).     To
    state a claim for damages suffered by reason of a violation of
    8
    An act of "racketeering," commonly called a predicate
    act, is defined to include "any act which is indictable under
    . . . [18 U.S.C. §] 1341 (relating to mail fraud), [and 18 U.S.C.
    §] 1343 (relating to wire fraud)." 18 U.S.C. § 1961(1)(B). The
    elements of mail and wire fraud are identical. "Mail or wire
    fraud occurs when a person (1) intentionally participates in a
    scheme to defraud another of money or property and (2) uses the
    mails or wires in furtherance of that scheme." 
    Pelletier, 921 F.2d at 1498
    .
    9
    Count three makes no reference to 18 U.S.C. § 1964(c).
    We treat the Cesniks' allegation that the conspiracy is
    "actionable under 18 U.S.C. § 1962 et seq." as stating a claim
    for relief under section 1964(c).
    11
    section 1962(d), a plaintiff must allege that the defendants
    conspired to violate one of the substantive provisions of 18
    U.S.C. § 1962(a)-(c).   The complaint nowhere indicates, however,
    which crime the defendants allegedly conspired to commit.   We are
    left to speculate whether the Cesniks seek to state a claim for
    damages by reason of a conspiracy to violate section 1962(a) or
    (b) or (c).10   Finally, to state a RICO claim a plaintiff must
    describe the "enterprise" involved in the defendant's scheme, for
    without an enterprise there can be no RICO violation.   See 18
    U.S.C. § 1962(a)-(c).   The word "enterprise" appears nowhere in
    the complaint.11
    Count three also possibly asserts two claims for relief
    under the Georgia RICO (Racketeer Influenced and Corrupt
    Organizations) Act, O.C.G.A. §§ 16-14-1 to 16-14-15 (1992 & Supp.
    10
    In their brief to the district court in opposition to
    the appellees' joint motion for summary judgement, the Cesniks
    did not inform the court which sections the appellees allegedly
    conspired to violate.
    11
    Nor does the word "enterprise" appear in the Cesniks'
    brief in opposition to the appellees' joint motion for summary
    judgment. In the section of the Cesniks' appellate brief
    concerning federal RICO, the word "enterprise" appears only in a
    quotation from section 1962.
    12
    1995).    Those claims are described in the margin;12 they suffer
    the same infirmities as their federal counterparts.
    Despite the fact that the Cesniks' complaint, especially
    count three, is so disorganized, the appellees did not move the
    district court to require the Cesniks to file a more definite
    statement.    See Fed. R. Civ. Proc. 12(e).   Nor did the court
    require one.13   Instead, the appellees opted to file an answer.
    They admitted that the adoptions took place, but denied liability
    under any of the appellants' theories of recovery.    The appellees
    also plead several affirmative defenses, including that the
    12
    There are two substantive criminal provisions in the
    Georgia RICO statute:
    (a) It is unlawful for any person, through a pattern of
    racketeering activity or proceeds derived therefrom, to
    acquire or maintain, directly or indirectly, any interest in
    or control of any enterprise, real property, or personal
    property of any nature, including money.
    (b) It is unlawful for any person employed by or
    associated with any enterprise to conduct or participate in,
    directly or indirectly, such enterprise through a pattern of
    racketeering activity.
    O.C.G.A. § 16-14-4. Like 18 U.S.C. § 1962(d), O.C.G.A. § 16-14-
    4(c) makes it illegal "to conspire or endeavor to violate any of
    the provisions of subsection (a) or (b) of [O.C.G.A. § 16-14-4]."
    O.C.G.A. § 16-14-6(c) provides a victim of these crimes a
    civil remedy in much the same fashion as does 18 U.S.C. §
    1964(c). We treat the allegation in the Cesniks' complaint that
    the alleged conspiracy is "actionable under . . . O.C.G.A. § 16-
    14-1 et seq." as stating a claim for relief under section 16-14-
    6(c).
    13
    The court clearly had the discretion to strike, on its
    own initiative, the Cesniks' complaint, and to require the
    Cesniks to file a more definite statement. See 
    Anderson, 77 F.3d at 367
    n.5.
    13
    complaint failed to state a claim for relief and that the statute
    of limitations barred the Cesniks' claims.
    Following extensive discovery, the district court granted
    the appellees' motion for summary judgment as to all of the
    Cesniks' claims for relief.   The court read the Cesniks'
    complaint as having presented several tort claims, a claim for
    breach of contract, and claims "under the federal and state
    conspiracy statutes."   The court referred to the Cesniks' common-
    law tort claims as claims for "personal injury, mental and
    physical," claims under the "remaining theories under the tort of
    wrongful adoption and placement,"14 and a "claim for fraud."
    The district court concluded that the Cesniks' common-law
    tort claims were barred by the applicable two-year statute of
    limitations.   It concluded that the Cesniks' contract claim was
    foreclosed because they "could have avoided" the injury they
    allegedly sustained
    by the use of reasonable effort after they learned of the
    mental and physical conditions of the children because under
    the terms of the placement agreement the Plaintiffs could
    simply have ended the adoption proceedings and could have
    returned the children to the Agency.
    Finally, the court found no merit in the Cesniks' federal and
    state RICO claims because the record contained no evidence of a
    conspiracy to defraud the Cesniks or the predicate acts of mail
    or wire fraud.   The court said nothing regarding the Cesniks'
    14
    In referring to the "remaining theories under the tort
    of wrongful adoption and placement," we assume that the court was
    referring to some or all of the tort theories described in count
    one (labeled "wrongful placement and adoption" by the
    appellants), which we quote in the 
    text supra
    .
    14
    failure to describe the enterprise allegedly involved in the
    appellees' conspiracy; nor did it indicate which substantive
    provision of 18 U.S.C. § 1962 the appellees were supposed to have
    conspired to violate.   In short, the court did not consider
    whether count three of the complaint stated a claim for relief.
    III.
    We are satisfied that the statute of limitations bars
    whatever tort claims the Cesniks may have had under Georgia
    common law.   Accordingly, we affirm the district court's summary
    disposition of those claims.   As for the Cesniks' remaining
    claims -- the claim for breach of contract and the claims under
    the federal and Georgia RICO statutes -- with a few exceptions,
    we are unable, on the state of the record before us, to sustain
    the court's judgment.   We first consider the common-law tort
    claims.
    A.
    Although the district court did not identify all of the
    Cesniks' common-law tort claims -- it referred to many of them as
    the "remaining theories under the tort of wrongful adoption and
    placement,"15 -- it concluded that all of them were barred by the
    two-year statute of limitations because all of the alleged
    tortious acts occurred (at the latest) prior to September 26,
    15
    Neither the Cesniks nor the district court cited any
    authority for the proposition that Georgia recognizes a tort of
    "wrongful adoption and placement," and we have found none.
    15
    1991 (the date of Eli's adoption), and the suit was not filed
    until December 12, 1993.   See O.C.G.A. §§ 9-3-33, 9-3-96
    (1982).16   The Cesniks argue, however, that the running of the
    period of limitations was tolled when Phoebe Dawson made her
    threat at the Cesniks' home on July 21, 1991.   The Cesniks claim
    that after that date they were unable to take any sort of legal
    action against the appellees out of fear that the agency might
    take reprisals -- either by withholding the agency's consent to
    the adoption of Eli,17 or by making it difficult for the Cesniks
    to receive an adoption subsidy from the state of Georgia.    This
    fear supposedly persisted from the time of the threat until May
    18, 1993, when the Georgia Department of Human Resources notified
    the Cesniks that they would receive an adoption subsidy.    The
    Cesniks argue that the running of the period of limitations was
    tolled during the twenty-seven months that they were under the
    duress caused by Dawson's threat, and that therefore their claim
    was filed within the limitations period.18   We do not agree.
    16
    O.C.G.A. § 9-3-96 provides that "[i]f the defendant . .
    . [is] guilty of a fraud by which the plaintiff has been debarred
    or deterred from bringing an action, the period of limitation
    shall run only from the time of the plaintiff's discovery of the
    fraud." The Cesniks did not discover the fraud associated with
    the placements of Caleb and Eli until the boys' medical records
    were sent to them by mail. Thus, in the case of Caleb, the
    period of limitations began running in May of 1990; in the case
    of Eli, in April of 1991.
    17
    Caleb's adoption had been final for a year before July
    21, 1991, the day that Dawson made her threat. Eli's adoption,
    however, was not final until September 26, 1991.
    18
    The Cesniks claim that the statute ran for 21 months in
    the case of Caleb (from May of 1990, when the fraud was
    discovered, to July 21, 1991, when Dawson made her threat, and
    16
    The record shows that shortly after the Cesniks began making
    efforts to get a state adoption subsidy, Phoebe Dawson flew to
    Minnesota and met the Cesniks in their home.    Dawson asked to
    hold Eli, and, once the child was in her arms, she is alleged to
    have stated something to this effect:    "This child is in my
    custody.   I can withhold [our] consent to adopt if there is any
    more discussion of [Eli] being handicapped or drug exposed [or if
    you do] not keep quiet about what ha[s] happened."    Dawson then
    handed Eli back and left the home.    Dawson and the Cesniks had no
    further contact.
    The Cesniks claim that this threat put them in fear of
    losing Eli if they took any action against the agency.    But this
    fear could have been reasonable only until August 8, 1991
    (eighteen days after the threat), when New Beginnings gave its
    consent to Eli's adoption.    The Cesniks claim that after Eli's
    adoption they feared that the agency might block their attempts
    to receive an adoption subsidy for both Caleb and Eli from the
    state of Georgia.    But Dawson made no such threat, and it is not
    clear that Dawson or New Beginnings had any influence in this
    matter whatsoever.   Moreover, the fear of retaliation by New
    Beginnings was evidently not so great as to keep the Cesniks from
    filing an administrative complaint against the adoption agency in
    again from May of 1993, when the adoption subsidy was approved,
    to December 9, 1993, when the claim was filed in district court),
    and for 9½ months in the case of Eli (from April of 1991, when
    the fraud was discovered, to July 21, 1991, and again, as with
    Caleb, from May of 1993, to December 9, 1993). The period of
    limitations is 24 months.
    17
    August of 1992.19   In sum, we find that there was no reasonable
    basis for a claim of duress after August 8, 1991, which was more
    than two years prior to the filing of the lawsuit.20   The
    district court was thus correct in deciding that the statute of
    limitations barred the appellants' common-law tort claims.
    B.
    The district court rejected the Cesniks' contract claim on
    the ground that they could have mitigated their damages in full
    by returning the children to New Beginnings, as provided in the
    placement agreement.   The problem with this holding is that
    19
    The Cesniks also offer no explanation for why they
    waited another seven months after the approval of the adoption
    subsidy to sue the agency.
    20
    We do not mean to suggest that a reasonable claim of
    duress would necessarily have tolled the running of the statute
    of limitations in this case. Duress is not one of the enumerated
    conditions that tolls the statute of limitations under Georgia
    law. See O.C.G.A. §§ 9-3-90 to 9-3-97.1 (1982 & Supp. 1995).
    Moreover, we find no authority for the proposition that duress,
    as a matter of Georgia common law or equity, can toll the statute
    of limitations for a cause of action that is not itself based on
    a claim of duress. Indeed, what little authority we have found
    on the subject suggests that such a proposition could be
    maintained in very few states. See Cooper v. Fidelity-Phila.
    Trust Co., 
    201 F. Supp. 168
    , 170 (E.D. Pa. 1962) ("There is
    little authority for the proposition that 'duress' tolls the
    running of the statute of limitation."); Baratta v. Kozlowski,
    
    464 N.Y.S.2d 803
    , 807 (App. Div. 1983) ("[R]eluctance [of courts]
    to recognize duress as a toll [may lie] in the undesirability of
    a rule that turns on the reasonableness of reliance upon threats
    of physical or economic harm, the ease of fabrication of such
    threats, or simply in the judicial reluctance to create an
    entirely new defense to the [s]tatute of [l]imitations.")
    (citations omitted); see also Annotation, Duress or Undue
    Influence as Tolling or Suspending Statute of Limitations, 
    121 A.L.R. 1294
    (1939); 51 Am. Jur. 2d. Limitation of Actions § 177
    (1970); 54 C.J.S. Limitations of Actions § 92 (1987).
    18
    neither the complaint nor the court describes the placement
    agreement.    We will assume for sake of argument, however, that
    New Beginnings breached the placement agreement when it
    misrepresented the condition of the boys' health.     We further
    assume that upon the agency's breach the Cesniks could have
    cancelled the agreement with New Beginnings and returned the
    children to the agency.     The question then becomes whether the
    Cesniks were required to do so, or else suffer the consequences.
    The situation is analogous to a seller misrepresenting the
    quality of goods being sold to a buyer.     Ordinarily, a buyer of
    goods that are not of the quality represented has two options.
    He can rescind the transaction by returning the goods to the
    seller and demanding a return of the purchase price, or he can
    stand on the transaction and sue for damages -- measured by the
    difference in value between the goods as represented and the
    goods as received.    Here, the Cesniks kept the children and seek
    to recover the expenses they will incur in excess of those they
    would have incurred had the children not been disabled.
    The district court held, in effect, that the Cesniks did not
    have the option of standing on the contract and suing for
    damages.    Rather, according to the court, the Cesniks had but one
    remedy:    rescission.   The court cited no authority for its
    holding and the appellees have likewise cited none; nor can we
    find any.21   Under the circumstances, we cannot sustain the
    21
    The appellees have cited statutes and cases that stand
    for the proposition that, under the law of Georgia, a claimant
    has a duty to mitigate his damages. This proposition, which is
    19
    court's summary rejection of the Cesniks' claim for breach of
    contract against the Edgewood Baptist Church.    Because there is
    nothing in the record, however, that indicates that appellees
    Dawson, Merritt, and Winton were parties to the Cesniks' contract
    with the church, we affirm the district court's disposition of
    the breach of contract claim brought against them individually.
    C.
    As we have pointed out, the pleading of the Cesniks' federal
    and state RICO claims, in count three of their complaint, is
    woefully deficient.   Count three does not cite the crimes (under
    18 U.S.C. § 1962 and O.C.G.A. § 16-14-4) that the defendants
    allegedly conspired to commit.   Nor does the pleading describe
    the "enterprise" involved in the conspiracy.22   If ever there was
    a need for a more definite statement, it was with respect to
    count three.
    well founded in the common law, speaks to the issue of damages;
    it does not address the question whether the claimant can state a
    cause of action for breach of contract. Assuming that, on
    remand, the Cesniks can state a claim for breach of contract, the
    extent to which they may have failed to mitigate their damages
    will be a question to be resolved in litigating the issue of
    damages.
    22
    The appellees did not base their joint motion for
    summary judgment on this deficiency, however, and the district
    court did not cite it as a ground for granting summary judgment.
    We therefore do not consider whether we should exercise our
    authority to affirm a district court's judgment dismissing a case
    on a ground not relied upon by the district court -- in this
    instance, on the ground that the appellants failed to articulate
    an indispensable element of a federal or state RICO claim.
    20
    The district court did not reject these claims because they
    were inadequately plead, however.       Rather, the court concluded
    that the Cesniks could not make out a federal or state RICO claim
    because they had presented no evidence of (1) a conspiracy or (2)
    predicate acts of mail or wire fraud.       We are convinced that,
    with the exception of appellee Winton, the court erred on these
    two points.
    With respect to the first point, a reasonable jury could
    find from the evidence in the record that defendant Dawson
    misrepresented the boys' health for the purpose of inducing the
    Cesniks to accept them for adoption, that appellee Merritt
    participated in or was aware of the scheme,23 and that their
    conduct implicated the church.24    As for the second point, the
    facts we have recited, in part 
    II supra
    , establish (for purposes
    of summary judgment) a scheme to defraud and several uses of the
    mails and wires in furtherance of that scheme.25
    23
    In contrast, the appellants have pointed to no evidence
    in the record, and we find none, sufficient to permit a
    reasonable jury to find that appellee Winton either participated
    in or was aware of the alleged conspiracy among Dawson, Merritt,
    and the church to defraud the Cesniks. (Winton did not become a
    employee of New Beginnings until after Caleb's placement; she is
    alleged to have participated in Dawson's scheme only with respect
    to Eli.) We thus affirm the district court's granting of summary
    judgment in favor of Winton.
    24
    We express no view as to whether, under 18 U.S.C.
    § 1962(d), a corporation can be held to have conspired with one
    of its employees.
    25
    The statute of limitations for a RICO claim is four
    years under the federal statute, see Agency Holding Corp. v.
    Malley-Duff & Assocs., Inc., 
    483 U.S. 143
    , 156, 
    107 S. Ct. 2759
    ,
    2767, 
    97 L. Ed. 2d 121
    (1987), and five years under Georgia RICO,
    see O.C.G.A. § 16-14-8. The record discloses uses of the mail
    21
    IV.
    In conclusion, we affirm the district court's judgment
    dismissing count one of the appellants' complaint.    As to count
    two, we affirm the court's judgment in favor of appellees Dawson,
    Merritt, and Winton, but vacate its judgment in favor of the
    church and remand for further proceedings.    With respect to count
    three, we affirm the court's judgment in favor of appellee
    Winton, but vacate its judgment in favor of the remaining
    appellees.   As to these appellees, count three is remanded for
    further proceedings.
    Because the allegations of counts two and three are so
    muddled, we instruct the district court, before proceeding
    further in this case, to require the appellants to replead counts
    two and three of their complaint.     With respect to count two, the
    appellants shall allege only a breach of contract -- assuming
    that they wish to pursue such a claim.    If the contract on which
    their claim is based is in writing, the appellants shall either
    attach the writing to the complaint, or recite the provision(s)
    of the contract that they contend give rise to their action for
    breach.
    In repleading count three, the appellants shall state only
    one claim for relief.   If they wish to state a claim under the
    federal RICO statute, they shall indicate the statutory
    and the telephone within four years of the filing of this law
    suit.
    22
    provision(s) giving rise to such claim and shall also describe
    the enterprise involved in the RICO violation.   If the appellants
    wish to state a claim under the Georgia RICO statute, they shall
    do so in a new count.
    More need not be said.
    SO ORDERED.
    23