United States District Court, S.D. Florida
CARYN PINCUS, an individual, on behalf of herself and all others similarly situated, Plaintiff,
SPEEDPAY, INC., a New York corporation, Defendant.
OPINION AND ORDER 
KENNETH A. MARRA United States District Judge.
cause is before the Court upon Defendant's Motion for
Judgment on the Pleadings as to Counts VII and VIII (DE 69).
The Court has carefully considered the Motion and is
otherwise fully advised in the premises.
December 1, 2015, Plaintiff Caryn Pincus
(“Plaintiff”) filed a second amended class action
complaint (“SAC”). (DE 48.) The SAC alleges that
Plaintiff and her husband paid their electric bill using
Florida Power & Light “Pay by Phone” feature.
(SAC ¶ ¶ 27-30.) After deciding to pay with a
credit card, they were transferred to Defendant Speedpay,
Inc.'s (“Defendant”) automated telephone
payment system. (SAC ¶ ¶ 31-33.) At the time of
payment, Speedpay imposed an additional surcharge of $3.25
for using a credit card for payment. (SAC ¶ 34.)
has asserted numerous counts, some under the federal and
Florida state RICO statutes. 18 U.S.C. § 1961 et
seq.; Florida Statute § 772.104. Defendant has
moved for judgment on the pleadings on these counts.
contends Plaintiff lacks standing to bring these claims
because she has failed to allege any injury caused by
Speedpay's investment of the proceeds of the alleged
racketeering activity and because she does not allege a
cognizable enterprise. Plaintiff responds that the Court
should not apply the “investment use rule” and
instead find that the injury requirement can be met by the
racketeering activity itself. Additionally, Plaintiff
contends that the offender and the enterprise can be the same
under section 1962(a).
on the pleadings is proper when no issues of material fact
exist, and the movant is entitled to judgment as a matter of
law.” Ortega .v Christian, 85 F.3d 1521, 1524
(11th Cir. 1996) (citing Fed.R.Civ.P. 12(c)). “The
court should grant a motion for judgment on the pleadings
only when it is clear that the merits of the controversy can
be fairly and fully decided on the face of the
pleadings.” Vagenas v. Cont'l Gin Co., 789
F.Supp. 1137 (M.D. Ala. 1992), (citing Andreu v. Sapp, 919
F.2d 637, 639 (11th Cir. 1990)), vacated on other
grounds, 988 F.2d 104 (11th Cir. 1993). Put another way,
a Rule 12(c) motion disposes of cases when the facts are not
in dispute and the focus can be on the competing pleadings.
See Bank Ins. Co. v. Florida Residential Property and
Cas. Joint Underwriting Ass'n., 137 F.3d 1293, 1295
(11th Cir. 1998). A judgment on the pleadings “only has
utility when all material allegations of fact are admitted or
not controverted in the pleadings and only questions of law
remain to decided by the district court.” Wright &
Miller, Federal Practice and Procedure Civil 3d
§ 1367, at 207-08 (2004).
1962(a) provides in part:
It shall be unlawful for any person who has received any
income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful
debt in which such person has participated as a principal
within the meaning of section 2, title 18, United States
Code, to use or invest, directly or indirectly, any part of
such income, or the proceeds of such income, in acquisition
of any interest in, or the establishment or operation of, any
enterprise which is engaged in, or the activities of which
affect, interstate or foreign commerce.
18 U.S.C. § 1962(a).
parties disagree over whether this provision makes it illegal
to engage in a pattern of a racketeering activity or if it
makes it illegal to use the proceeds of such activity to
invest in an enterprise. Defendant points out that most
courts have adopted the “investment injury rule”
which requires that a defendant's investment of the
racketeering proceeds injured the plaintiff. See,
e.g., Beck v. Prupis, 529 U.S. 494, 506 n.9
(2000) (noting that “most courts of appeals have
adopted the so-called investment injury rule, which requires
that a plaintiff suing for a violation of § 1962(a)
allege injury from the defendant's use or investment of
income derived from racketeering activity”) (quotation
marks and brackets omitted). In contrast, Plaintiff argues
that the Court should follow Busby v. Crown Supply,
896 F.2d 833, 837-40 (4th Cir. 1990) which
rejected the “investment injury rule” and allows
RICO claims based on just the racketeering activity. The
Eleventh Circuit has not addressed the issue.
Court finds it unnecessary to resolve this question because
Plaintiff has failed to allege properly the existence of an
enterprise. The SAC alleges that Defendant received proceeds
from its pattern of criminal activity and used or invested
the proceeds in the operation of its enterprise thereby
injuring Plaintiff. (SAC ¶ ¶ 84-85; 89.) In other
words, Plaintiff alleges that Defendant used income derived
from prior racketeering activity to invest and operate the
system which collected the surcharge. See Newmyer v.
Philatelic Leasing, Ltd., 888 F.2d 385, 396
(6thCir. 1989) (“if the defendants used
income derived from racketeering activity in 1980 and 1981 to
establish and operate the alleged scam in which the
plaintiffs put their money in 1982 and 1983, we do not see
why it would be impossible for the plaintiffs to show that
they had ...