During the 1970s’ the plaintiffs in this case bought land in Florida, which, they say, turned out to be a swamp. In their view, the seller of the land, a development company, defrauded them, and several banks, appellant Banco Central among them, helped the development company do so. They sued the banks, charging a violation of the federal anti-racketeering (RICO) statute (and several other statutes). The defendants moved for summary judgment.
On January 25, 1990, the district court denied defendants’ motion for summary judgment on one of plaintiffs’ RICO claims.
See Rodriguez v. Banco Central,
[1989—1990 Transfer Binder] Fed.Sec.L.Rep. H 94,978,
When does a civil RICO cause of action accrue for statute of limitations purposes?
Rodriguez v. Banco Central,
In addition, the plaintiffs would like us to answer several other certified questions. For reasons that we shall explain in Part II below, we lack jurisdiction to do so.
I
The RICO Question
The RICO provision relevant to this appeal makes it a crime
for any person ... to conduct or participate ... in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity____
18 U.S.C. § 1962(c). Another section permits
any person injured in his business or property by reason of a violation of section 1962
to recover treble damages. 18 U.S.C. § 1964(c). The Supreme Court has held that “the 4-year statute of limitations for Clayton Act actions, 15 U.S.C. § 15b, [is] the most appropriate limitations period for RICO actions.”
Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,
each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962, a cause of action to recover damages *666 based on that injury accrues to plaintiff at the time he discovered or should have discovered the injury.
Rhoades,
The Third Circuit, however, has followed a different rule. It has said that, even if a plaintiff earlier knew about his injury, the statute of limitations will not begin to run until the plaintiff also knew or should have known about “the
last
predicate act which is part of the same pattern of racketeering activity.”
Keystone Ins. Co. v. Houghton,
We believe, however, that we should follow the majority rule rather than that of the Third Circuit. We find the reasoning of the Second Circuit in
Rhoades
persuasive. To start the statute running when a plaintiff knew or should have known of his injury seems consistent with the language of RICO’s “treble damage" provision.
See
18 U.S.C. § 1964(c). Such a rule is at least roughly similar to the Clayton Act's rule that “a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business."
Zenith Radio Corp. v. Hazeltine Research, Inc.,
We see much less to be said for permitting a plaintiff who knows of his injury to postpone the time the statute of limitations begins to run until he also knows of the “last predicate act” that forms part of the “pattern of racketeering activity” that hurt him. For one thing, such a rule is less directly related to the language of the RICO statute, which focuses upon “injur[y]” to business or property. 18 U.S.C. § 1964(c). For another, it does not seem to reflect Clayton Act principles. The Clayton Act, as far as we are aware, starts the statute running once a particular plaintiff realizes that he has been overcharged because of price fixing; the fact that the same conspiracy may, at a later time, have injured someone else does not postpone the first plaintiff’s accrual date. Assume, for example, that buyers of, say, plumbing supplies realize, say in 1980, that a price-fixing conspiracy has raised the price of the fixtures they have bought. Assume further that the same plumbing conspirators, as part of the same conspiracy, raise the price of plumbing fixtures sold to different buyers in, say 1990. We are aware of no case, nor any other legal authority, that would suggest that the limitations period applicable to the first group of buyers does not begin to run until 1990, when the second group is injured.
Further, the “last predicate act” rule could produce long limitations periods. As
*667
we have pointed out, that rule would permit a plaintiff, knowing of his injury in 1980, to begin suit to recover damages for that injury four years after the “last predicate act” that is part of the “pattern of racketeering activity” that caused the harm. A “pattern of racketeering activity” merely requires two specified criminal acts “the last of which occurred within ten years ... after the commission of a prior act,” 18 U.S.C. § 1961(5), and which are related and amount to or pose a threat of continued criminal activity.
See H.J. Inc. v. Northwestern Bell Tel. Co.,
— U.S. -,
The Third Circuit may have reached its contrary conclusion for two reasons. First, it was worried about a defendant who engages in
two
predicate criminal acts, say, five years apart. A plaintiff who knows of his injury and
one
such act in Year One still could not bring suit until the defendant commits the second in Year Six, by which time, the Third Circuit feared, under the majority rule, the statute of limitations would have run. We doubt, however, that this example poses the serious problem that the Third Circuit thought. For one thing, it seems unlikely that this type of example will arise very often. For another thing, this example, at most, would suggest tying accrual to a plaintiff’s knowledge of (injury and) the other elements of his cause of action. At most, it suggests requiring that the plaintiff know (or should have known) of
two
predicate acts (the one that injured him plus one other), not of the
last
predicate act.
See Bath,
Second, the Third Circuit’s conclusion may reflect concern about the plaintiff who knows of his injury in Year One but does not know about the criminal acts that caused that injury until, say, Years Six or Seven. Perhaps the Third Circuit read the Rhoades rule literally to bar the plaintiff’s action in such a case. To prevent that result, the Third Circuit would have the statute run from the later of a) knowledge of the injury, or b) knowledge of the predicate acts that form the “pattern.” The Third Circuit went on to define the “pattern” to include “the last predicate act.”
The problem that the Third Circuit saw, however, may be more apparent than real. Courts applying the Clayton Act have permitted an antitrust plaintiff in analogous
*668
circumstances to bring a suit, for they have found the statute of limitations
tolled
by “fraudulent concealment.”
See, e.g., Berkson v. Del Monte Corp.,
The upshot is that we shall follow the
Rhoades
accrual rules, at least in respect to the statute of limitations issues now before us. The district court, noting that the magic date — four years prior to the filing of the complaint — was August 2, 1978, wrote that the
Rhoades
discovery rule would bar some plaintiffs, but it might not bar all of them.
See
II
Other Certified Questions
The plaintiffs, too, have appealed, from an order entered by the district court on November 27, 1989,
see Rodriguez v. Banco Central,
We cannot now answer the plaintiffs’ questions because we lack jurisdiction over their appeal. The statute that controls the plaintiffs’ effort to present their questions says the following:
When a district judge, in making ... an order not otherwise appealable[, finds that there is a controlling question of law that is unsettled] ... and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, ... [t]he Court of Appeals ... may ..., in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order____
28 U.S.C. § 1292(b) (emphasis added). The emphasized language says that where, as here, a party wishes to present a question by appealing an order under this section, the party must apply within ten days (of the order’s entry) to
this
court, not to the district court.
See In re La Providencia Dev. Corp., 515
F.2d 94, 95-96 (1st Cir.1975) (filing a notice of appeal in a district court does
not
give the court of appeals jurisdiction to hear a § 1292(b) appeal);
accord Inmates of the Allegheny County Jail v. Wecht,
Our reading of the record reveals the following procedural events relevant to plaintiffs’ efforts to appeal:
1. On November 27, 1989, the district court entered an order granting summary judgment for defendants in respect to most of plaintiffs’ claims, but permitting the plaintiffs to amend their complaint to restate the RICO claim that we discussed in Part I of this opinion. (We shall call this order the “November Order.”) At the same *669 time, the court certified five questions pursuant to § 1292(b).
2. On December 6, 1989 (within ten days of the November Order), the plaintiffs filed a notice of appeal in the district court, in which they raised four of the five certified questions. The clerk of the district court, as a matter of routine, forwarded a copy of the notice of appeal and of the district court docket sheet to this court, where they arrived on January 18, 1990 (after the ten days had run).
3. The next day, on January 19, 1990, this court, puzzled as to how the plaintiffs could appeal where there was no final judgment and noticing another defect in the notice of appeal (it did not properly list all the parties who were appealing), entered an order, in effect asking the plaintiffs to explain.
4. On January 25, 1990, the district court entered another order (which we shall call the “January Order”) in which it denied the defendants’ motions to dismiss the plaintiffs’ repleaded RICO claims, and in which it “renew[ed] its certification” of the questions it had certified in the November Order.
5. On February 2, 1990, plaintiffs filed in this court a paper entitled “Motion Informing of Filing an Amended Notice of Interlocutory Appeal.” That paper purported to answer the questions this court asked on January 19, and it told this court that plaintiffs had filed a new notice of appeal from the November Order, but in the district court.
Since the plaintiffs did not file a petition for permission to appeal under § 1292(b) in this court within ten days of the district court’s entry of its November Order, we lack jurisdiction over their appeal from that order.
See La Providencia,
The question remains, however, whether they have, in effect, raised the same questions by appealing from the January Order. We usually try to characterize filings liberally, with an eye towards helping appellants overcome jurisdictional defects. But, after examining the papers, we do not see how we can characterize the “Informative Motion” (which plaintiffs filed on February 2, 1990) as if it constituted a petition for permission to appeal the January Order (which the district court had entered less than ten days earlier). The plaintiffs’ “Informative Motion” nowhere refers to the January 25 Order. The attached papers say that plaintiffs are appealing “from the Order entered in this action on November 27, 1989.” The “Informative Motion” refers to Appellate Rule 4(a)(5), which does not apply to § 1292(b) appeals. The “Informative Motion” nowhere refers to Rule 5, which does apply to § 1292(b) appeals. And, the “Informative Motion” provides little, if any, of the information that Rule 5 requires. In addition, the district court’s January Order involved plaintiffs’ claim under 18 U.S.C. § 1962(c), not their other claims, which are the basis for the four questions they tried to raise in this court. The fact that plaintiffs filed their papers (responding to our order of January 19) within ten days of the district court’s January 25 Order, does not reflect an effort to appeal from that January 25 Order, but seems simply a coincidence.
The upshot is that the plaintiffs have failed to meet § 1292(b)’s jurisdictional requirements, and we cannot decide the questions they seek to present.
The order of the district court is affirmed but is vacated to the extent it denied summary judgment on plaintiffs’ RICO claims and the cause is remanded to the district court for further proceedings consistent with the opinion filed this date.
The appeal of the plaintiffs is dismissed. No costs.