In the early 1990’s, plant growers throughout the country filed hundreds of lawsuits against E.I. DuPont De Nemours and Company (“DuPont”) alleging fraud and products liability relating to the DuPont fungicide Benlate. In 1992, Green Leaf Nursery, Inc., a Florida plant nursery, and its owner (“Plaintiffs”) brought such a suit against DuPont in Florida state court (the “Underlying Litigation”). In May 1994, notwithstanding ongoing accusations of discovery fraud and litigation misconduct in Plaintiffs’ own case and in other Benlate cases throughout the country, which Plaintiffs’ counsel monitored, Plaintiffs settled their claims with DuPont, executed a general release, and dismissed their Florida state court action with prejudice in August, 1995. 1
Plaintiffs contend that after settling their case, they discovered that DuPont had engaged in a massive scheme of perjury, falsification of evidence, and fraudulent concealment of evidence to induce themselves and other Benlate plaintiffs to settle their claims for less than the claims’ fair value. Although Plaintiffs accepted and kept the settlement monies, affirming the settlement agreement, they filed the present action against DuPont alleging fraud and violations of the Racketeer Influenced and Corrupt Organization Act (“RICO”), codified at 18 U.S.C. § 1961 et seq. 2 The district court dismissed Plaintiffs’ claims in two orders and entered judgment in favor of DuPont that Plaintiffs appealed separately. We consolidate these appeals and affirm the district court’s judgment.
BACKGROUND
A. The Bush Ranch Case
By the mid-1990’s, many growers had filed lawsuits against DuPont contending that Benlate was defective and caused damage to their crops and nurseries. Plaintiffs monitored many of these cases, including one of the first cases to proceed to trial,
In re E.I. du Pont de Nemours & Co.
-Benlate
Litigation,
B. Other SettlemenlAFraud Cases
The Plaintiffs were not alone in filing settlement-fraud cases. The first Benlate settlement-fraud cases to be litigated through judgment and appeal were damages actions brought in the Northern District of Georgia by several of the plaintiffs in the
Bush Ranch
case.
See Kobatake v. E.I. DuPont De Nemours & Co.,
Similarly, a district court in the Southern District of Florida dismissed several settlement-fraud cases based on the release clauses contained in the settlement agreements, including settlement agreements containing Delaware choice-of-law clauses identical to those found in Plaintiffs’ settlement agreements. The Florida cases involved two groups of settlement-fraud plaintiffs: (1) those who had settled in 1994 and executed settlement agreements containing Delaware choice-of-law clauses; and (2) those who had settled in late 1991 and early 1992 without having filed any litigation against DuPont and who had signed settlement agreements that did not contain choice-of-law clauses.
Appeals of these Florida district court decisions resulted in the certification of questions of Florida law to the Supreme Court of Florida.
See Foliage Forest, Inc. v. E.I. Dupont De Nemours & Co.,
C. The Instant Action
Plaintiffs settled their Underlying Litigation in May 1994, executing a general release. In August 1995, the Florida trial court dismissed with prejudice the Plaintiffs’ Florida state court action. The settlement agreement provided that
[i]n consideration of [DuPont’s] payment of the amount set forth in the authorization previously signed by Plaintiffs], Plaintiff[s] hereby release[] [DuPont] from any and all causes of action, claims, demands, actions, obligations, damages, *1298 or liability, whether known or unknown, that Plaintiff[s] ever had, now [have], or may hereafter have against [DuPont], by reason of any fact or matter whatsoever, existing or occurring at any time up to and including the date this Release is signed (including, but not limited to, the claims asserted and sought to be asserted in the Action).
[R. Vol. 3 Tab 208 Ex. C]. The settlement agreement also contains a choice-of-law clause that states: “This Release shall be governed and construed in accordance with the laws of the State of Delaware without giving effect to the choice of law provisions thereof.” [R. Vol. 3 Tab 208 Ex. C].
Plaintiffs allege that the discovery abuses and litigation misconduct in the Bush Ranch case and other cases that they monitored along with the discovery abuses in their own case represent a scheme to induce them to settle their case for less than the fair value of their claims. Specifically, the Plaintiffs allege that DuPont fraudulently concealed information allegedly showing defects in Benlate in the Underlying Litigation. 4 Plaintiffs also allege that DuPont issued fraudulent discovery responses, put forth perjured testimony, and engaged in other allegedly dishonest litigation conduct. Plaintiffs claim that in reliance on DuPont’s actions in the Underlying Litigation and in the other Benlate cases, which they monitored, they suffered damages. Therefore, Plaintiffs filed this settlement-fraud action more than three years after settling the Underlying Litigation and the Bush Ranch case.
During the pendency of the Florida certification proceedings from the other settlement-fraud cases, DuPont moved for judgment on the pleadings in the instant action. DuPont also moved, in a related case involving similarly situated plaintiffs, for certification to the Supreme Court of Delaware of the issue of whether the release barred such settlement-fraud actions. The district court granted DuPont’s motion for certification in the related case and stayed all proceedings in this and all other related cases pending the resolution of the certified question. The district court certified the following question to the Supreme Court of Delaware: “Under Delaware law, does the release in these settlement agreements bar Plaintiffs’ fraudulent inducement claims?”
E.I. DuPont De Nemours & Co. v. Florida Evergreen Foliage,
a tort claimant fraudulently induced to execute a release may opt either for rescission or a separate suit for fraud with damages calculated on the difference between that received under the release and the value of the settlement or recovery achieved had there been no fraud by the released party.
Id. at 458.
The district court then ruled on DuPont’s motion for judgment on the pleadings. DuPont had moved for judgment on the pleadings on all of Plaintiffs’ claims except for their spoliation claim. In an order dated March 8, 2001, the district court found that Florida law governed Plaintiffs’ tort claims and dismissed all of Plaintiffs’ state law claims as barred by Florida’s litigation privilege.
Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co.,
In the meantime, on May 9, 2001, DuPont filed motions for judgment on the pleadings as to those claims not disposed of by the district court’s March 8, 2001, order — Plaintiffs’ federal RICO and spoliation claims. Plaintiffs filed a motion for leave to amend their first amended complaint on August 1, 2001, two days before the scheduled oral argument on DuPont’s motions for judgment on the pleadings as to the federal RICO and spoliation claims. The proposed amendment sought to revise the factual allegations of the complaint, eliminate certain claims upon which the district court had already ruled, 6 and add two Florida RICO claims.
On August 24, 2001, the district court granted DuPont’s motions, dismissing Plaintiffs’ remaining claims. The district court found that the Plaintiffs failed to “adequately allege justifiable reliance on acts of mail and/or wire fraud,” and did not “adequately state[] sufficient proximate cause between the alleged acts of obstruction of justice and witness tampering” in the
Bush Ranch
case and the Plaintiffs’ injuries.
Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co.,
In the August 24, 2001 order, the district court also denied Plaintiffs’ motion for leave to amend their complaint, finding that it lacked jurisdiction to allow the amendment because of the pending interlocutory appeal in this court. Id. at 1362-63. The district court entered final judgment on September 4, 2001. Plaintiffs then perfected these appeals.
ISSUES
1. Whether the district court properly found that Florida law applied to the elements of Plaintiffs’ tort claims.
2. Whether the district court properly found that Florida law, which provides an immunity in civil damages suits for the conduct of parties, witnesses, and lawyers in prior litigation, bars Plaintiffs’ current tort claims.
*1300 3. Whether the district court properly-found that Plaintiffs could not have reasonably relied upon DuPont’s alleged misrepresentations because of the accusations of fraud, misconduct, and dishonesty permeating the Underlying Litigation.
4. Whether the district court properly granted judgment on the pleadings in favor of DuPont on Plaintiffs’ federal RICO claims.
5. Whether the district court properly granted judgment on the pleadings in favor of DuPont on Plaintiffs’ spoliation claims.
6. Whether the district court abused its discretion in denying Plaintiffs’ motion for leave to amend their complaint.
STANDARDS OF REVIEW
“We review a judgment on the pleadings
de novo.” Jones v. NordiTrack, Inc.,
DISCUSSION
A. Choice-of-Law
The district court applied two rules in dismissing Plaintiffs’ fraud and other tort claims: (1) the rule that parties have absolute immunity against damages claims based on litigation conduct, as announced in
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co.,
The choice-of-law clause provides that “[t]his release shall be governed and construed in accordance with the laws of the State of Delaware.... ” [R. Vol. 3 Tab 208 Ex. C]. The effect of this clause is narrow in that only the release itself is to be construed in accordance with the laws of the State of Delaware. The clause does not refer to related tort claims or to any and all claims or disputes arising out of settlement or arising out of the relationship of the parties. This type of narrow choice-of-law clause calls for the application of the selected law to determine only the scope and effect of the release. Here, Plaintiffs seek monetary damages rather than a form of relief that would actually affect the release, such as avoidance.
See Rayle Tech, Inc. v. DEKALB Swine Breeders, Inc.,
Plaintiffs argue that
Mazzoni Farms
had already established that Delaware law governs the substantive elements of their claims. In
Mazzoni Farms,
this court certified to the Florida Supreme Court the question of whether the choice-of-law provision controls the release provisions of the settlement agreement.
Neither Mazzoni Farms nor Florida Evergreen Foliage, however, dealt with the question of what state’s substantive law should be applied to the Plaintiffs’ tort claims. The Florida Supreme Court in Mazzoni Farms did not address what state’s laws would govern the elements of any tort claims not barred by the release, and the Delaware Supreme Court in Florida Evergreen Foliage did not address the scope of the choice-of-law clause, the law applicable to the fraudulent inducement claims not barred by the release, or any other conflicts issues. Rather, Mazzoni Farms and Florida Evergreen Foliage dealt with whether the tort claims were still viable in light of the release. Therefore, neither Mazzoni Farms or Florida Evergreen Foliage determined that Delaware law governs the substantive elements of Plaintiffs’ claims, as they contend.
Because the choice-of-law provision is narrow and governs only the scope and effect of the release, we turn to the choice-of-law rules of the forum state, Florida, to determine the applicable law governing the Plaintiffs’ tort claims.
Klaxon Co. v. Stentor Elec. Mfg. Co.,
Florida utilizes the “most significant relationship” test to determine which state’s laws applies to tort claims.
Garcia v. Public Health Trust of Dade County,
*1302 B. Immunity For Litigation Conduct
In
Levin,
the Florida Supreme Court concluded that the litigation privilege precluded all tort claims based on a party’s conduct during the course of litigation, holding that “any act occurring during the course of a judicial proceeding” is entitled to absolute immunity “so long as the act has some relation to the proceeding.”
Levin,
Plaintiffs allege that in the Underlying Litigation and in other Benlate cases, DuPont, among other things, failed to respond to or issued improper responses to discovery, gave untruthful testimony, submitted improper or obstructive motions, committed misconduct during the trial of a case, disobeyed court orders, and took false litigation positions. These acts related to the Underlying Litigation. Thus, under Levin, we conclude that the district court properly found that DuPont was entitled to immunity for these actions in this subsequent civil fraud action.
Because the Plaintiffs’ claims in this case depend on acts with “some relation” to the Underlying Litigation, Florida law is clear and provides an absolute immunity for the conduct upon which Plaintiffs’ claims are based.
See Rushing v. Bosse,
Plaintiffs assert that the holding of
Levin
is that “Florida courts should not look behind lawful, tactical decisions of a trial lawyer or a litigant to establish tortious injury.” [Appellants’ Opening Brief p. 30]. However,
Levin
itself involved a claim of intentional abuse of litigation procedures. Plaintiffs contend that DuPont’s misconduct is distinguishable from that type of conduct afforded immunity because DuPont’s decisions to offer perjured testimony, conceal evidence, and falsify discovery were not lawful. However, the Florida Supreme Court held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.”
Levin,
Plaintiffs also argue that the ruling in
Mazzoni
demonstrates that Florida’s litigation privilege does not protect litigation misconduct against claims for fraudulent inducement. In
Mazzoni,
the Florida Supreme Court considered the release and whether it barred fraudulent inducement claims. The court held that where the defrauded party elects to affirm the settlement agreement and sue for damages, the choice-of-law provision shall be enforced. The court further held that, in those cases where the settlement agreements do not contain a choice-of-law provision, Florida law controls and the release language is not sufficiently broad to bar fraudulent inducement claims.
Mazzoni,
Citing
Fridovich v. Fridovich,
*1304 C. Reasonable Reliance
The district court found, as an alternative basis for dismissing Plaintiffs’ state-law fraud claims, that Plaintiffs failed to demonstrate the necessary reliance on DuPont’s misrepresentations.
11
In
Mergens,
this court followed prior circuit precedent dealing with Florida law and articulated a bright line rule regarding reliance. “ ‘When negotiating or attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to rely on representations made by the allegedly dishonest parties.’ ”
Mergens,
This court found that reliance was unjustified as a matter of law in
Mergens
because the plaintiffs were sophisticated “players” in the industry and were represented by counsel, the parties had been in an adversarial relationship since well before the execution of the agreement, and the existing controversy between the parties involved allegations of fraud and/or dishonesty by the defendants.
Likewise, in the instant action, Plaintiffs are individual growers and incorporated nurseries who were represented by counsel throughout the Underlying Litigation. In addition, Plaintiffs’ counsel monitored other Benlate cases throughout the country and knew that DuPont had been accused of discovery abuses in other cases. The pleadings indisputably establish that the parties were in an antagonistic relationship, in which the settled litigation involved claims of actual fraud against DuPont, as well as ongoing accusations of discovery fraud and other dishonest litigation conduct. Plaintiffs allege fraudulent conduct and misrepresentations on behalf of DuPont both in this action and in the Underlying Litigation. For example, in the Underlying Litigation, Plaintiffs alleged that DuPont intentionally concealed Benlate’s defects, made false statements to the Environmental Protection Agency, and made false and misleading statements in public about the fitness of Benlate. In the current action, Plaintiffs allege that DuPont carried out a scheme intentionally to conceal material information regarding Benlate’s defects from the court and opposing parties, including Plaintiffs. Both the past and current claims involve the same type of fraudulent conduct.
Plaintiffs argue that the fact that the conduct in this case took place during litigation renders their reliance reasonable. 12 Simply because the misrepresenta *1305 tions occurred during litigation does not render reliance upon them reasonable. This is especially so given the extremely adversarial positions of the parties in the Underlying Litigation and the large number of cases around the country, which the Plaintiffs were continually monitoring, in which Dupont was being accused of discovery violations involving the concealment and destruction of evidence.
Plaintiffs further argue that their reliance was reasonable because they acted with due diligence in requesting specific materials through discovery. To argue in the abstract that litigants should be able to rely on an opponent to tell the truth in discovery responses is not enough to make reliance upon an opponent’s representations reasonable in a separate fraud claim for damages. Rules exist emphasizing the importance of truth in the discovery process and the need for a litigant to be able to rely upon the opposing party’s discovery responses. Indeed, Rule 26 of the Federal Rules of Civil Procedure imposes “an affirmative duty to engage in pretrial discovery in a responsible manner.” Fed.R.Civ.P. 26(g) advisory committee’s notes (“[T]he signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.”).
13
Rule 26 explicitly encourages the imposition of sanctions for violations of the rule. However, a general entitlement to rely on a representation is not enough to make a party’s reliance reasonable in support of a fraud claim. Plaintiffs have admitted that they did not trust DuPont and were making and monitoring accusations that DuPont was not telling the truth in discovery responses.
Mergens
itself involved duties to disclose arising under the federal securities laws.
*1306 D. Plaintiffs’RICO Claims
Plaintiffs allege that DuPont earned out a scheme to defraud Plaintiffs into settling their Underlying Litigation for less money than they would have otherwise been able to obtain by withholding information and making false statements from 1991 through the filing of the present action in 1998. Plaintiffs allege that this conduct violated RICO, specifically 18 U.S.C. § 1962.
Section 1962 provides, in part:
(c) It shall be 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 or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.
18 U.S.C. § 1962. Plaintiffs in a civil RICO action must identify and prove a pattern of racketeering activity, which is defined as two predicate acts of racketeering activity within a ten-year period. 18 U.S.C. § 1961(5). Plaintiffs allege that mail fraud, in violation of 18 U.S.C. § 1341; wire fraud, in violation of 18 U.S.C. § 1343; obstruction of justice, in violation of 18 U.S.C. § 1503; and tampering with witnesses, in violation of 18 U.S.C. § 1512, constitute relevant predicate offenses for their civil RICO action. The district court found that Plaintiffs’ mail and wire fraud claims failed because Plaintiffs were unable to establish reasonable reliance, which is an essential element of mail and wire fraud predicates in the civil RICO context.
Florida Evergreen Foliage,
1. Mail and Wire Fraud
To demonstrate a violation of the mail or wire fraud statutes,
15
Plaintiffs must show that DuPont “had a conscious, knowing intent to defraud and that a reasonably prudent person would have been deceived by [its] misrepresentations.”
Pelletier v. Zweifel,
Just as Plaintiffs could not establish justifiable reliance with respect to their state-law fraud claims, they also cannot establish justifiable reliance with respect to their mail and wire fraud claims. The Supreme Court has instructed that “federal courts should incorporate state law as the federal rule of decision, unless
*1307
application of the particular state law in question would frustrate specific objectives of the federal programs.”
Kamen v. Kemper Fi. Servs., Inc.,
We conclude that the district court correctly found that the incorporation of
Mer gens’
rule that “when negotiating or attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to rely on representations made by the allegedly dishonest parties” was not inconsistent or incompatible with the policies underlying the RICO statute.
Mergens,
2. Obstruction of Justice and Witness Tampering
“In addition to proving racketeering activity, a civil RICO plaintiff must show that the racketeering activity caused him to suffer an injury.”
Beck,
In order for a pattern of racketeering activity to be a cognizable cause of civil RICO injury to a private plaintiff, one or more of the predicate acts must not only be the “but for” cause of the injury, but the proximate cause as well.
Holmes,
Plaintiffs argue that they were direct targets of DuPont’s racketeering and that they suffered direct injury in that DuPont knew that Plaintiffs were monitoring the
Bush Ranch
case and that DuPont hid and falsified evidence in that case to defeat cases throughout the country. This is too remote to satisfy the proximate cause requirements because the directness inquiry is not a question of specific intent.
See Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters,
Because Plaintiffs cannot demonstrate justifiable reliance on DuPont’s acts of mail and wire fraud or proximate cause between the alleged acts of obstruction of justice and witness tampering and their injuries, they cannot establish any valid predicate acts. Absent any valid predicate acts, the Plaintiffs have failed to state a valid claim for RICO violations.
E. Spoliation
The elements of a spoliation claim are
(1) the existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action; (3) destruction of that evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages.
Continental Ins. Co. v. Herman,
Plaintiffs’ spoliation claim rests more on concealment than actual destruction. Plaintiffs argue that concealment of evidence may constitute spoliation; however, no Florida case has ever held that concealment of evidence constitutes spoliation. To the contrary, spoliation is defined as the “destruction” of evidence or the “ ‘significant and meaningful alteration of a document or instrument.’ ”
Aldrich v. Roche Biomedical Labs., Inc.,
*1309 Plaintiffs assert that their spoliation claim encompasses DuPont’s destruction of test plants involved in a field trial conducted in Costa Rica and the concealment of the analytical testing. However, Plaintiffs do not assert that DuPont destroyed evidence essential to the Plaintiffs’ case, such as Plaintiffs’ own plants or the allegedly defective Benlate that Plaintiffs claim to have applied to their plants. Plaintiffs merely argue that “[w]ithout the withheld[J altered, and destroyed evidence, Appellants could not effectively rebut DuPont’s ‘better science’ evidence.” [Appellants’ Br. at 36-37].
Plaintiffs’ inability to rebut a defense theory is not “significant impairment” of the Plaintiffs’ ability to prove its case. Plaintiffs cannot show that the actual destruction of the test plants in Costa Rica led to their inability to prove their lawsuit. Therefore, the district court properly dismissed Plaintiffs’ spoliation claim.
F. Leave to Amend
Two days prior to the scheduled oral argument on DuPont’s motions for judgment on the pleadings on Plaintiffs’ RICO and spoliation claims, Plaintiffs filed a motion for leave to amend their complaint. The proposed amendments seek to revise the factual allegations of the amended complaint, delete certain claims upon which the district court had already ruled and which were before this court for review, and add new Florida RICO claims. The proposed amended complaint directly affected the issues already pending before this court on interlocutory appeal.
“The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Discount Co.,
However, an interlocutory appeal does not completely divest the district court of jurisdiction. “The district court has authority to proceed forward with portions of the case not related to the claims on appeal.... ”
May v. Sheahan,
*1310 CONCLUSION
While we do not sanction DuPont’s alleged conduct and note that other penalties exist for such dishonest actions, for the reasons outlined in this opinion, we conclude that the district court properly entered judgment on the pleadings and did not abuse its discretion in denying Plaintiffs’ motion for leave to amend their complaint when the amendment would have affected the issues already before this court on interlocutory appeal. Accordingly, we affirm the Rule 12(c) judgment on the pleadings.
AFFIRMED.
Notes
. Many other commercial nurseries and growers also settled their Benlate litigation with DuPont, executing releases and dismissing their actions with prejudice.
. Plaintiffs’ first amended complaint contained the following thirteen claims for relief: (1) fraud, (2) intentional nondisclosure of material facts, (3) fraudulent inducement to settle, (4) fraud on the court under Federal Rule of Civil Procedure 60(b), (5) rescission and damages for fraud, (6) racketeering- in violation of 18 U.S.C. § 1962(c), (7) violation of 18 U.S.C. § 1962(d) by conspiracy to violate 18 U.S.C. § 1962(c), (8) conspiracy, (9) abuse of process, (10) infliction of emotional distress, (11) interference with prospective economic advantage, (12) spoliation of evidence, and (13) violation of the Florida Deceptive and Unfair Trade Practices Act. Plaintiffs’ case was consolidated in the district court with multiple similar cases in which plaintiffs accuse DuPont of fraud in previous Benlate settlements.
. We expressly stated that, upon remand, the district court should consider DuPont’s arguments with regard to justifiable reliance.
See Mazzoni Farms, Inc, v. E.I. DuPont De Nemours & Co.,
. This allegation is similar to Plaintiffs’ allegation in the Underlying Litigation that DuPont fraudulently concealed information showing defects in Benlate.
. Plaintiffs’ state law fraud claims included
*1299
Count One — fraud, Count Two — intentional nondisclosure of material facts, Count Three — fraudulent inducement to settle, and Count Five — rescission and damages for fraud. Count Five's rescission claim sought to recover damages for fraud. Thus, the district court specifically dismissed that claim as well.
See Reynolds v. The Surf Club,
. Plaintiffs wished to delete their claims for infliction of emotional distress, interference with prospective economic advantage, and violation of the Florida Deceptive and Unfair Trade Practices Act.
. As an alternative basis for dismissing Plaintiffs’ RICO claims, the district court found that section 107 of the Private Securities Litigation Reform Act of 1995, 18 U.S.C. § 1964(c), barred Plaintiffs' RICO claims.
Florida Evergreen Foliage,
. This court had certified the following question to the Florida Supreme Court:
Whether certifying to a trial court an intent to call opposing counsel as a witness at trial in order to obtain counsel’s disqualification, and later failing to subpoena and call counsel as a witness at trial, is an action that is absolutely immune from a claim of tortious interference with a business relationship by virtue of Florida's litigation privilege.
The Florida Supreme Court answered affirmatively in
Levin,
concluding that the public's right to a free and full disclosure of the facts in the conduct of judicial proceedings favored extending the privilege traditionally afforded to any defamatory statements made in the course of judicial proceedings to any act related to a judicial proceeding.
In balancing policy considerations, we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.
Id. at 608.
. The "primary question” facing the Supreme Court of Florida in
Fridovich
was "whether defamatory statements made to the authorities
prior
to the initiation of criminal proceedings are absolutely privileged as within the course of judicial proceedings.”
. Plaintiffs also argue that three Florida trial courts have refused to extend litigation immu
*1304
nity to DuPont's alleged misconduct.
See Gilley
v.
Friedman, Rodriguez, Ferraro & St. Louis, P.A.,
Case No. 98-2781-CA,
Foliage Corp. of Fla., Inc. v. Friedman, Rodriguez, Ferraro & St. Louis, P.A.,
Case No. CIO 00-5782,
Productura v. DuPont,
Case No. 97-12186 CA 23. However, these cases involve factually distinguishable situations. Also, in
Gilley,
the court issued only summary denials of the motion to dismiss and motion for summary judgment, neither of which offer guidance as to why the motions were denied. Plaintiffs also cite
Hatcher v. Dixon,
. Justifiable reliance is an element of fraud under Florida law.
Hillcrest Pac. Corp. v. Yamamura,
. Plaintiffs also assert that the allegation that they reasonably relied upon DuPont’s
*1305
alleged misrepresentations must be accepted as true because DuPont made motions for judgment on the pleadings. The district court correctly found that it need not accept this conclusory legal allegation as true in deciding a Rule 12 motion.
Honduras Aircraft Registry, Ltd. v. Government of Honduras,
. Florida Rule of Civil Procedure 1.280, the Florida counterpart to Rule 26 of the Federal Rules of Civil Procedure, does not contain a corresponding certification requirement.
. The parties submitted
Matsuura v. E.I. du Pont de Nemours & Co.,
. The substantive elements of mail and wire fraud are identical.
Beck v. Prupis,
. In
Jost,
a medical malpractice plaintiff amended her complaint to add counts for spoliation, claiming that the defendants “concealed or destroyed evidence” relevant to the malpractice claim. The court affirmed the dismissal of the spoliation claims because concealment does not form a basis for a claim for spoliation. The court also held that a plaintiff cannot bring an independent spoliation claim where the alleged spoliator and the defendant in the underlying action are "one and the same” because remedies exist in the
*1309
context of the underlying suit.
. Additionally, Plaintiffs' proposed Florida RICO claims were futile, for the same reasons supporting the dismissal of Plaintiffs’ federal RICO claims.
See O’Malley v. St. Thomas Univ., Inc.,