Corley v. Rosewood Care Center, Inc. of Peoria , 388 F.3d 990 ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3625 & 01-3642
ROBERT N. CORLEY, individually, and as executor
of the Estate of Vera M. Corley, Deceased,
Plaintiff-Appellant, Cross-Appellee,
and
RICHARD L. STEAGALL, JOHN P. NICOARA, THE LAW
FIRM OF NICOARA & STEAGALL, and SHERMAN COHN,
Cross-Appellees,
v.
ROSEWOOD CARE CENTER, INCORPORATED OF PEORIA,
an Illinois Corporation, DARRELL HOEFLING,
individually and as Trustee of the Darrell Hoefling
Revocable Trust, LARRY VANDER MATEN, individually
and as Trustee of the Larry Vander Maten Revocable
Trust and as General Partner of the Vander Maten
Family Limited Partnership, et al.,
Defendants-Appellees, Cross-Appellants.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 95 C 3350—Jeanne E. Scott, Judge.
____________
ARGUED JANUARY 9, 2003—DECIDED OCTOBER 13, 2004
____________
2 Nos. 01-3625 & 01-3642
Before RIPPLE, ROVNER and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Placing an elderly parent in a
nursing home is a trying experience under the best of cir-
cumstances. Running a nursing home can also be challeng-
ing; the industry is highly regulated and the customers are
often anxious and unhappy about the need for nursing
home services. Needless to say, when a customer believes
he has been defrauded and the proprietors of the establish-
ment have been accused not just of fraud but racketeering,
emotions can be expected to run high. One would hope their
respective attorneys would be able to defuse the situation
and litigate the case in a dispassionate manner. No such
luck here: the parties and their attorneys have chosen the
scorched earth model of litigation. This relatively simple
case has generated more than one thousand entries in the
district court docket. The record fills a back-breaking seven
bankers boxes stuffed to bursting, and the briefs on appeal
do little to untangle the mess the parties have made of the
case. This is the second time we have reviewed a district
court’s grant of summary judgment against the plaintiff in
this civil RICO action. We previously reversed and remanded
a grant of summary judgment because the district court
halted discovery before the plaintiff had a full opportunity to
prove his case. Now that the plaintiff has been given every
opportunity to make his case, we affirm the district court’s
grant of summary judgment because the plaintiff is still
unable to produce enough evidence to demonstrate a viable
RICO claim against the defendants here. The defendants
have cross-appealed, arguing that the district court abused its
discretion in declining to sanction the plaintiff for multiply-
ing the proceedings in an unreasonable and vexatious
manner. Finding no abuse of discretion, we affirm the district
court’s judgment in all respects.
Nos. 01-3625 & 01-3642 3
I.
We will assume familiarity with our first opinion in this
matter and repeat only what is necessary to the resolution
of this appeal. See Corley v. Rosewood Care Center, Inc. of
Peoria, 142 F.3d 1041 (7th Cir. 1998) (hereafter “Corley I”).
The cast of characters remains unchanged: Larry Vander
Maten and Darrell Hoefling own and operate corporations
and other entities that, in turn, own and operate a string of
nursing homes. There are fourteen homes in this chain of
ownership, each using the name “Rosewood Care Center.” A
holding company owns each nursing home’s individual
operating corporation. Each home uses the same manage-
ment company, and each home’s ownership and operation
are organized through the same system of leases, manage-
ment contracts and other agreements. Each home transfers
revenues to the same central bank account. All of the homes
use the same advertising brochure and all advertising is
purchased centrally by a single management company. The
nursing home at issue in this case is a Rosewood facility in
Peoria, Illinois and we will refer to that home and the other
defendants collectively as “Rosewood.” That describes the
universe of defendants in the case. The plaintiff is Robert
Corley, who placed his mother, Vera Corley, in Rosewood
and later came to regret his selection. Vera Corley’s health
precluded her from participating in decisions related to her
care. Rosewood thus dealt directly with Robert Corley in all
communications relevant to this lawsuit. Vera Corley was
initially a plaintiff in the case, but when she died in 1999,
the district court entered an order substituting Robert Corley
as Executor of his mother’s estate as a party plaintiff.
Henceforth, we will refer to Robert Corley as “Corley” and
to Vera Corley as “Vera” to avoid confusion.
Nearly all of the following facts are hotly contested by the
parties but on summary judgment, we view the facts in the
light most favorable to the party opposing summary
judgment, drawing all reasonable inferences in that party’s
4 Nos. 01-3625 & 01-3642
favor. Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir.
2003). Hence our recitation of the facts is heavily slanted in
Corley’s favor. Corley placed his mother, Vera, in Rosewood
after visiting the home in October 1989. During his visit, he
met with Valerie Mushrush, a Rosewood employee who
showed him the facility and explained what Rosewood had
to offer. Mushrush told Corley he could choose a private suite,
a private room or a semi-private room for his mother. The
private suite was the largest room and cost $70 per day,
which was $12 more per day than the semi-private room.
Corley was led to believe that any increase in the cost of the
private suite would stay in line with price increases for the
other room types. Mushrush told Corley that Rosewood
allowed residents to bring their own furniture from home,
gave residents a choice of two entrees at every meal and
provided a high quality of care for residents. Mushrush had
been instructed to market private suites to potential
residents. She believed the prices for all of the rooms would
not increase for one year and communicated that belief to
some customers but did not recall telling Corley specifically.
Significantly, Corley does not present any evidence regard-
ing whether he was told prices would remain constant for
a year, but instead focuses on the representation that when
prices increased, they would increase proportionately for the
private suites, private rooms and semi-private rooms.
Rosewood’s advertising at that time also included a guaran-
tee of continuing care for residents whose assets were
depleted. Under this guarantee, if a resident’s money ran
out, Rosewood represented that the resident could continue
to live at the facility with the same level of care which
would then be paid for by Medicaid.
Some of these representations were irrelevant to Corley
and some were very important to his decision to place his
mother in Rosewood. For example, his mother had sufficient
assets to ensure that she would never need to use Medicaid
to pay for her nursing home expenses, and thus the guaran-
Nos. 01-3625 & 01-3642 5
tee of continuing care was irrelevant to Corley. On the other
hand, it was important to Corley that his mother be able to
stay in a private suite. He relied on Mushrush’s representa-
tions about the cost keeping pace with the other room
options when he decided to place his mother in a private
suite, carpet it at his mother’s expense, install a private
phone line and move in her furniture from home. In
reliance on this and other representations that we will
discuss shortly, Corley signed a contract for a private suite
at a base rate of $70 per day. The contract specified, “We do
not guarantee your accommodations will remain private
throughout your stay with us.”1 R. 3, Ex. 1. But Corley and
Mushrush struck out a line that read “For administrative
or other reasons, we may convert any private room to a
semi-private room upon ___ days prior written notice, with
an appropriate adjustment in your base rate.” R. 3, Ex. 1.
The contract permitted Rosewood to raise the base rate of
any room at any time on 30 days notice. R. 3, ¶ XI.H.
Contrary to the advertising regarding continuing care, the
contract provided that Rosewood was not qualified to accept
Medicaid patients and there was no guarantee that it would
be qualified in the future.
Vera moved into Rosewood on October 25, 1989. About
fifty days later, on December 14, 1989, Rosewood’s adminis-
trator wrote a letter to Corley, suggesting that he move his
mother to a regular private or semi-private room. According
to the letter, the base rate on private suites was scheduled
to increase from $70 per day to $84 per day in January
1990. This was a 20% increase. Corley objected to the
increase by a letter dated December 31, 1989. He com-
plained that he was the victim of a classic “bait and switch”
1
This statement appears in a “welcome letter" appended to the
contract. The parties have treated the welcome letter as part of
the contract and for the purposes of this appeal, we will do so as
well.
6 Nos. 01-3625 & 01-3642
scheme. As a result of his complaint, Rosewood deferred the
rate increase for Vera’s room until March 1, 1990. On
March 30, 1990, the base rate for all rooms rose an addi-
tional $4, increasing Vera’s rate to $88. On October 24, 1990,
the private suite base rate increased again to $122, a whop-
ping 74% increase in one year. During the same time per-
iod, the base rate for semi-private rooms increased 13.7%,
from $58 per day to $66 per day.
Corley complained to the Illinois Attorney General.
Rosewood’s attorney, Stephen Ukman, responded to the
complaint on behalf of Rosewood in a December 18, 1990
letter (the “Ukman Letter”) that was approved by Vander
Maten. R. 1036, Ex. 12. Ukman explained that private suites
were actually semi-private rooms equipped with only one bed.
He claimed that at the time Vera Corley moved into
Rosewood, management of the facility had advised Corley
that “the availability and price of private suites was unique to
the period when the facility was filling up, and were subject
to change.” Id. at 5. In other words, Rosewood admitted,
consistent with the contract’s warning that residents were
not guaranteed a private room and consistent with the
provision for price increases, that the price of private suites
was anticipated to rise. Rosewood’s statement that the base
price in the contract was “unique” to the time period when
the facility was filling up is a concession that the facility
expected prices to rise with increased demand. This admis-
sion was also consistent with the contract, which provided
for rate increases for any room at any time on thirty days’
notice. The parties vehemently dispute whether Corley was
told the base price was unique to the time period when the
facility was first opening for business. Rosewood claims that
it was completely forthcoming in its plans for the suites, and
Corley contends he was misled. There is evidence in the
record supporting both versions of this story. We accept
Corley’s version for the purposes of this appeal. Because it
is a RICO case, though, much more than a single fraud (if
Nos. 01-3625 & 01-3642 7
this is, in fact, a fraud) is needed to sustain the action. We
therefore continue with Corley’s story.
In addition to the pricing bait and switch, Corley com-
plains that Rosewood failed to provide the high quality care
he was promised and ended the two-entree program nine
months after his mother moved in. Corley believed he was
not the only person who fell for Rosewood’s bait and switch
scheme. When he filed his complaint, he alleged that others
also were influenced to sign contracts with Rosewood
because of these and other fraudulent representations by
the defendants. In particular, he cited representations in
Rosewood’s sales brochure, which specified that (1) a nurse,
not unlike a maitre d’, would be available in the dining
room to look after the quality of the food and service and
the well-being of the residents during each meal; (2)
Rosewood had a unique system of nursing shifts, with
overlapping shifts in the morning so that residents could be
greeted, changes in condition could be reported and morn-
ing routines could be completed; (3) Rosewood had regis-
tered nurses and licensed practical nurses on duty day and
night, seven days a week; and (4) a physician would be
given regular reports on the medical condition of the
patients. He also cited to a state court lawsuit brought
against Rosewood’s East Peoria facility for violations of the
Illinois Consumer Fraud Act based on the guarantee of con-
tinuing care. Eventually, four plaintiffs prevailed in that
suit against Rosewood East Peoria. See Hopp v. Rosewood
Care Center, Inc. of East Peoria, Case No. 92 L 74, Decision
and Order of December 5, 1997.
Corley has sued Rosewood for violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1961-1968. According to Corley, the defendants
systematically defrauded the residents of the Peoria and
East Peoria homes with a classic bait and switch scheme.
He alleged that the defendants used the mails in support of
this scheme by mailing contracts and bills to residents,
8 Nos. 01-3625 & 01-3642
actions which amounted to mail fraud by his estimation.
When the defendants moved for summary judgment the
first time, Corley’s evidence in support of his allegations
was thin and the district court granted judgment in favor of
the defendants. On appeal, we reversed and remanded.
Corley I, 142 F.3d at 1059. The appeal focused on whether
Corley could establish a pattern of racketeering activity.
One of the elements of a pattern, as we will discuss below,
is continuity. That is, a plaintiff must demonstrate that the
predicate acts making up the RICO claim amount to or
otherwise constitute a threat of continuing racketeering
activity. 142 F.3d at 1048. At the time the defendants first
moved for summary judgment, the district court determined
that Corley had evidence of five predicate acts of mail fraud
occurring over a fourteen-month period against a single
victim (himself). The district court noted that, although
Corley alleged others had been damaged by the bait and
switch scheme, he had no evidence in support of these
allegations. We agreed with the district court that this
evidence was too thin to satisfy the continuity requirement.
However, because discovery had been prematurely halted,
we remanded so that Corley would have a complete oppor-
tunity to develop evidence that other residents had fallen
victim to Rosewood’s misrepresentations, and that the mails
had been used to support the scheme against these other
victims. We suggested that Corley’s allegations about
similar misrepresentations made to other residents, if true,
were sufficient to establish a pattern of racketeering
activity under the RICO statute. 142 F.3d at 1050. In
particular, we found compelling Corley’s allegations of
similar misrepresentations made to other residents and
their families regarding the pricing of private suites, the
two-entree program, and the guarantee of continuing care,
combined with innumerable predicate acts of mail fraud
occurring over a significant period of time directed against
a substantial number of victims, all of whom experienced
distinct injuries. 142 F.3d at 1050. We thus provided a
Nos. 01-3625 & 01-3642 9
roadmap for Corley on remand, to seek discovery uncover-
ing other victims of the bait and switch scheme and other
instances of mail fraud on a scale that would suggest a
threat of continuing racketeering activity. We were aware
at the time that an Illinois court had found in favor of the
Hopp plaintiffs on their Illinois Consumer Fraud case, and
this too provided seemingly fertile ground for Corley to
mine in support of his case.
On remand, the parties completed discovery and the
defendants once again moved for summary judgment. The
district court, mindful of where we left off, focused on the
additional evidence Corley brought to light to supplement
the five predicate acts we found too thin to support a RICO
claim. Corley v. Rosewood Care Center, Inc. of Peoria, 152 F.
Supp. 2d 1099, 1104 (N.D. Ill. 2001) (hereafter “Corley II”).
First, Corley had submitted a few old price lists for other
Rosewood homes. One of the lists was for the Swansea,
Illinois home and was dated February 17, 1989 with an
effective date of April 1, 1989. Another Swansea price list
with an effective date of August 20, 1990 showed increased
room rates similar to the charges Corley experienced in the
Peoria home. Two other lists did not identify the homes to
which they applied but showed room rates as of November
1, 1988 and January 1, 1990. The remaining price lists
Corley submitted related to the Peoria Rosewood home
where his mother lived, and reflected the price increases
that Corley had already described.
On the two-entree issue, the court considered Corley’s
evidence that the Peoria home was the only Rosewood facility
offering this perk and that the program ended thirteen
months after it began. Corley also presented evidence to the
district court that five residents had experienced inadequate
care in contravention of Rosewood’s promise to be a “high
quality” facility. The court commented that the “evidence
indicates that the homes were understaffed and budgets for
food were inadequate.” Corley II, 152 F. Supp. 2d at 1105-
10 Nos. 01-3625 & 01-3642
06. The court did not cite the record in drawing this conclu-
sion, which becomes problematic on appeal, as we will see
below, when Corley invites us to rely on the district court’s
“finding” in this regard. Corley produced evidence on the
brochure promises as well. He presented testimony that
there was never a “nurse maitre d’ ” in the dining room at
mealtime, that the “unique” system of staff overlapping at
shift change was actually standard practice in the industry,
that Rosewood followed Medicare regulations on nurse
staffing and did not have both RNs and LPNs on duty all day
everyday as represented in the brochure, and that oral but
not written reports about residents were given to doctors
serving the home.
Corley presented the strongest evidence of fraud on the
guarantee of continuing care. Contrary to Rosewood’s ad-
vertising, the Peoria home was never qualified to accept
Medicaid patients. Rosewood’s Peoria facility administrators
told residents they would have to move to the East Peoria
home if they wished to take advantage of the guarantee.
Several did, and the East Peoria home later stopped par-
ticipating in the Medicaid program and stopped providing
care to existing Medicaid residents. As previously noted,
several residents of the Peoria and East Peoria Rosewood
homes brought state law fraud claims against Rosewood
and won. See Hopp v. Rosewood Care Center, Inc. of East
Peoria, Case No. 92 L 74, Decision and Order of December
5, 1997. The Hopp court noted that the defendants in that
case were still advertising a guarantee of continuing care as
late as 1995 in the Peoria area.
Finally, Corley claimed the defendants were engaged in
what he characterized as a fraudulent attempt to cover up
the racketeering at Rosewood. He cited the Ukman Letter
and a number of pleadings and statements before the dis-
trict court as evidence of the coverup.
The district court considered the evidence piecemeal at
first and then analyzed it in terms of an overall scheme. For
Nos. 01-3625 & 01-3642 11
the bait and switch pricing scheme, the court found that
Corley had adequate evidence that, if credited, would show
he had been the victim of a fraudulent scheme to induce
him to contract with Rosewood for his mother’s care.
Specifically, Corley had evidence that he had been told the
price differentials would remain relatively constant and
that he was later pressured to move his mother to a semi-
private room or pay exorbitant fees that were out of line
with the costs of other types of rooms. The court considered
the Ukman Letter to be evidence that Rosewood intended to
raise the prices on private suites as soon as the home filled
up and intended to turn the private suites into semi-private
rooms in contravention of promises made to Corley at the
time he signed the contract. The court found this evidence
would be adequate to overcome summary judgment had
Corley brought a simple fraud claim, but that more was
required to support a RICO claim. Turning to Corley’s other
bait and switch evidence, the court declined to consider the
submitted price lists in support of Corley’s RICO claim
because he was unable to show that these lists were ever
actually used. Corley did not identify whether the lists were
final or were simply drafts. Moreover, the court noted that
sky-rocketing prices are not indicative of fraud in and of
themselves; Corley failed to demonstrate that other resi-
dents were told, as he claims to have been told, that when
rates increased, they would increase proportionately.
Mushrush testified that she believes she told some prospec-
tive customers in 1989 that prices would stay fixed the first
year of residency, but Corley has brought forth not one
resident who claims to have been fraudulently induced to
sign the contract on the basis of this representation, which
conflicted with the plain language of the contract. In any
case, the district court found that Corley had uncovered no
additional evidence of bait and switch on the price of the
private suite. Corley II, 152 F. Supp. 2d at 1108-10.
The court turned to Corley’s claim that Rosewood frau-
dulently represented that it provided high quality care for
12 Nos. 01-3625 & 01-3642
its residents. Corley presented testimony from six former
residents of Rosewood facilities, five from the Peoria facility
and one from Edwardsville, that they were provided
inadequate care. He also proffered statements from four
former employees of Rosewood, three from the Peoria facility
and one from Alton, that the homes in which they worked
provided inadequate care. He produced documentary evidence
that Rosewood had a policy to meet only minimum licensing
requirements with its level of care. The district court found
that this was “minimal evidence . . . too sporadic and
anecdotal to establish that an issue of fact exists regarding
whether Defendants’ representations of quality care were
either false or part of a scheme to defraud.” Corley II, 152
F. Supp. 2d at 1110. The court also rejected Corley’s claims
about the two-entree program because the representation
was made only to residents of the Peoria facility and only
for thirteen months. Because the scheme was limited in
time and duration, and because Rosewood delivered on the
promise for those thirteen months, the court found that
Corley failed to show that Rosewood’s two-entree promises
were part of a RICO pattern of mail fraud.
The court turned to the brochure representations re-
garding (1) the nurse maitre d’; (2) the unique system of
double shifting the nursing staff at morning turnover; (3)
the presence of RNs and LPNs twenty-four hours a day,
seven days a week; and (4) the provision of regular reports
to physicians. The evidence, according to the district court,
demonstrated that most of these promises were kept and
that the discrepancies, if any, were not material enough to
constitute fraud. Although the parties agreed that no nurse
ever acted as a maitre d’ in the dining hall, the court found
that Corley failed to show this was a material consideration
for anyone deciding whether to enter a Rosewood facility.
The court found that uncontroverted evidence demonstrated
that Rosewood does employ double shifts at the morning
shift turnover, and the only false part of the statement was
Nos. 01-3625 & 01-3642 13
that this system was “unique.” The court found that
Rosewood does have either RNs or LPNs on staff twenty-
four hours a day, seven days a week, just not both at the
same time, necessarily, and thus substantially complied with
the promise to have RNs and LPNs on duty day and night,
seven days a week. Finally, the evidence demonstrated that
the nurses in fact gave oral reports on the condition of the
residents to physicians visiting the home and called a doc-
tor when a particular need arose. The court found that,
although these oral reports might not meet Corley’s standard
of “regular” reports, they largely met the language of the
promise and thus there was no material misrepresentation.
Corley II, 152 F. Supp. 2d at 1111.
The court found that Rosewood’s failure to honor the
guarantee of continuing care may constitute a pattern of
racketeering activity. Construing the evidence favorably to
Corley, the court found that Rosewood began making that
misrepresentation in 1989 and continued through 1995, and
that large numbers of people were harmed by that false-
hood. Nonetheless, the court said, the Corleys were not
injured by this misrepresentation because they did not rely
on it in placing Vera Corley in Rosewood and because she
never needed the assistance of Medicaid during her stay.
Corley II, 152 F. Supp. 2d at 1112.
Considering all of the schemes as a whole, the court found
Corley’s evidence was inadequate to demonstrate a pattern
of racketeering. The court found that the evidence, if
believed, would show “a small number and variety of
separate schemes.” Corley II, 152 F. Supp. 2d at 1112. The
evidence showed only one repeated scheme of mail fraud,
related to the guarantee of continuing care. Corley suffered
no injury from that scheme and the remaining evidence
showed only isolated instances of possible fraud against
Corley, relating to the pricing of private suites, the promise
of high quality care and the two-entree program. The court
noted that Corley provided almost no evidence of injury to
14 Nos. 01-3625 & 01-3642
other victims (except for himself and the four Hopp plain-
tiffs), claiming that he was not required to do so because
injury is not an element of mail fraud. The court explained
that although injury is not an element of mail fraud, the
number of victims and the existence of distinct injuries are
factors in determining whether a pattern of racketeering
exists. The court ultimately found that a common sense
reading of the RICO statute would not allow Corley to
bootstrap his isolated instances of fraud onto a separate
scheme (the guarantee of continuing care scheme) that did
not affect him or his mother in order to make out a RICO
claim. Because Corley’s evidence was insufficient to demon-
strate a pattern of racketeering, the court entered judgment
in favor of the Rosewood defendants.2 Corley appeals.
II.
On appeal, Corley complains that the district court erred
in holding that he must show injury from all wrongful acts
if they are to be considered predicate acts that establish a
RICO pattern. Corley boldly asserts that once this issue is
cleared up, he is in fact entitled to partial summary judg-
ment on the issue of pattern, apparently believing he has
proved pattern as a matter of law. He maintains that the
court erred in a number of threshold rulings that go to the
issue of pattern: first, he argues that the court should have
considered evidence from Rosewood’s marketing coordinator
and a letter written by corporate counsel as creating an
inference that “bait and switch” on the private suites was
“company policy” and that the centralized marketing system
for the home created an inference that the policy was
carried out at least with other private suite residents if not
pervasively; second, he maintains the court erred in failing
2
We will consider the facts related to the cross-appeal on
sanctions separately.
Nos. 01-3625 & 01-3642 15
to recognize that there was one overall scheme of bait and
switch, albeit with different falsehoods inducing different
people to sign a Rosewood contract; third, he faults the court
for removing from a jury the question of whether the
promises made in the marketing brochure were material;
and fourth, he contends that the court erroneously failed to
consider certain admissions by the defendants under Rules
36(a) and 37(a)(2). The defendants have cross-appealed the
district court’s refusal to grant sanctions against Corley and
we will consider that issue separately once we have resolved
the main appeal.
We review de novo the district court’s order granting sum-
mary judgment, viewing the facts and making all reasonable
inferences that flow from them in the light most favorable
to the non-moving party. Ziliak, 324 F.3d at 520; Nelson v.
Sandoz Pharmaceuticals Corp., 288 F.3d 954, 962 (7th Cir.
2002). Summary judgment is appropriate where the plead-
ings, depositions, answers to interrogatories, and admissions
on file, together with any affidavits, show that there is no
genuine issue of material fact for trial and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). Neither party has made it easy for this court to de-
termine whether there are genuine issues of material fact.
Corley inexplicably spends most of his “Statement of Facts”
reciting the allegations of his Sixth Amended Complaint,
with only a handful of citations to the factual record. In the
remainder of his brief, he cites liberally to the district
court’s opinion for the facts, a substantial problem for this
court because the district court did not cite the record. We
hasten to add the district court is not required to cite to the
record. The appellants, however, are obliged to do so. Fed.
R. App. P. 28(a)(7) (“appellants brief must contain . . . a
statement of facts relevant to the issues submitted for
review with appropriate references to the record.”); Circuit
Rule 28(c) (“Statement of the Facts. The statement of the
facts required by Fed. R. App. P. 28(a)(7) shall be a fair
16 Nos. 01-3625 & 01-3642
summary without argument or comment. No fact shall be
stated in this part of the brief unless it is supported by a
reference to the page or pages of the record or the appendix
where that fact appears.”). Corley has failed miserably and
we will not root through the hundreds of documents and
thousands of pages that make up the record here to make
his case for him. “Judges are not like pigs, hunting for
truffles buried in’ the record.” Albrechtsen v. Board of Regents
of University of Wisconsin System, 309 F.3d 433, 436 (7th
Cir. 2002), cert. denied, 539 U.S. 941 (2003) (quoting United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). The
defendants have done only a little better. Clearly convinced
that the main issue in the case is the district court’s refusal
to sanction the plaintiff, the defendants tell us over and
over about the filings of various pleadings and devote
perhaps a page or two to responding to Corley’s version of
the events making up the RICO claim. If the appellees are
dissatisfied with the appellant’s statement of facts, as is
surely the case here, they are obliged to make their own
properly supported statement of facts. Fed. R. App. P.
28(b)(4). In the end, as we shall see below, both sides have
missed the main flaws in Corley’s case, flaws alluded to by
the district court, which granted judgment on another
ground. The parties ultimately seem to concede (albeit with
a few objections that we address herein) that the district
court’s version of events accurately represents the record as
it may be construed in the best light for Corley, the non-
moving party. With few modifications, we too rely on that
version of events. The question then becomes whether these
facts are legally sufficient to make out a RICO claim
against Rosewood.
We begin with the basics of RICO for it is on the basics
that Corley’s claim rises or falls. Under the civil remedies
portion of the RICO statute, “[a]ny person injured in his
business or property by reason of a violation of section 1962
of this chapter may sue therefor in any appropriate United
Nos. 01-3625 & 01-3642 17
States district court and shall recover threefold the dam-
ages he sustains and the cost of the suit, including a
reasonable attorney’s fee[.]” 18 U.S.C. § 1964(c). Section
1962 in turn provides, among other things, that 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 collec-
tion of unlawful debt.” 18 U.S.C. § 1962(c). There are, of
course, other paths to RICO liability but Corley’s theory of
the case centers on section 1962(c) and that is therefore our
focus. See also H.J., Inc. v. Northwestern Bell Telephone Co.,
492 U.S. 229, 232-33 (1989) (RICO renders civilly liable any
person who, while employed by or associated with an
enterprise that is engaged in interstate commerce, conducts
or participates in the conduct of its affairs through a
pattern of racketeering activity); Midwest Grinding Co., Inc.
v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992) (the elements
of a RICO violation consist of (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity). We look to
section 1961 to determine what is meant by “racketeering
activity” and find that it includes mail fraud (among other
things). 18 U.S.C. § 1961(1)(B). It is on mail fraud that
Corley rests his case and so we will shortly consider the
requirements of making out a mail fraud claim. So far,
then, we know that Corley must show he (1) was injured (2)
by reason of (3) a violation of section 1962. To demonstrate
a violation of section 1962, he must show the defendants
conducted the affairs of the enterprise through a pattern of
racketeering activity, in this case, mail fraud.
A.
The district court (and the parties, for that matter)
focused on the pattern requirement and we therefore turn
18 Nos. 01-3625 & 01-3642
to that part of the analysis first. In Corley I, we noted that
the viability of Corley’s claim turns on whether he can
establish that the defendants conducted the business of the
Rosewood nursing homes through a pattern of racketeering
activity. Corley I, 142 F.3d at 1048. To show a pattern of
racketeering activity, Corley must demonstrate at least two
acts of racketeering activity (called predicates); although two
predicates are necessary, they may not be sufficient to
establish a pattern. H.J., Inc., 492 U.S. at 237. In H.J., Inc.,
the Supreme Court looked to the common understanding of
the word “pattern” as an “arrangement or order of things or
activities,” reasoning that a pattern is not formed by
sporadic activity and that RICO liability will not attach
simply because a person has committed two widely sepa-
rated and isolated criminal offenses. H.J., Inc., 492 U.S. at
239. Instead, the Court held, the term “pattern” itself
requires a showing of (1) a relationship between the
predicates, and (2) the threat of continuing criminal activity.
H.J., Inc., 492 U.S. at 239 (citing to the Congressional
Record). In short, the Court said, “RICO’s legislative history
reveals Congress’ intent that to prove a pattern of racke-
teering activity a plaintiff or prosecutor must show that the
racketeering predicates are related and that they amount
to or pose a threat of continued criminal activity.” H.J., Inc.,
492 U.S. at 239 (emphasis in original). In H.J., Inc., the
Supreme Court “attempted to give definition to the pattern
requirement to forestall RICO’s use against isolated or
sporadic criminal activity, and to prevent RICO from
becoming a surrogate for garden variety fraud actions
properly brought under state law.” Midwest Grinding, 976
F.2d at 1022.
Although relationship and continuity appear to be
analytically separate requirements, “in practice their proof
will often overlap.” H.J., Inc., 492 U.S. at 239. Taking guid-
ance from a similar “relationship” requirement in the
Organized Crime Control Act of 1970, the Court defined the
term thusly:
Nos. 01-3625 & 01-3642 19
Criminal conduct forms a pattern if it embraces crim-
inal acts that have the same or similar purposes, re-
sults, participants, victims, or methods of commission,
or otherwise are interrelated by distinguishing charac-
teristics and are not isolated events.
H.J., Inc., 492 U.S. at 240 (quoting 18 U.S.C. § 3575(e)). As
for continuity, the Court noted that it 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. H.J.,
Inc., 492 U.S. at 241-42. Because we do not ultimately rest
our conclusion on continuity, we will set that factor aside
for the time being.
In Corley I, we commented that the “ ‘relationship’ prong
is relatively uncontroversial here. . . . Neither the defendants
nor the district court have suggested that the core predicate
acts comprising the alleged ‘bait and switch’ scheme are
insufficiently related to satisfy the relationship prong.”
Corley I, 142 F.3d at 1048. We therefore accepted that the
predicate acts were related and proceeded to consider con-
tinuity. Because Corley did not have an adequate opportu-
nity to complete discovery, we remanded so that he could
continue his attempt to demonstrate continuity. On remand,
after full discovery, the relationship prong turned out to be
more controversial than we anticipated.
The district court ultimately rested its judgment in favor
of the defendants on Corley’s failure to meet the relation-
ship prong of the pattern requirement, although the court
was somewhat circumspect in labeling the problem as such:
[T]he court must conclude that the Defendants are
entitled to summary judgment. Corley has presented
evidence which, if believed, shows that Corley and his
mother were injured by a bait and switch scheme and
inadequate care; she also stopped receiving a choice of
two-entrees after eight months in the Peoria home. He
20 Nos. 01-3625 & 01-3642
has failed to show that these acts constitute a RICO
pattern. The Defendants may have been engaged in a
pattern of racketeering activity in marketing a guaran-
tee of continuing care in Peoria and East Peoria over a
six-year period, but Corley suffered no injury from this
scheme. A ‘common sense’ result does not allow Corley
to bootstrap his isolated incidents onto a separate scheme
that did not affect him or his mother to assert a RICO
violation.
Corley I, 142 F.3d 1112-13. By characterizing the purported
fraud against Corley as “isolated,” labeling the guarantee of
continuing care scheme as “separate,” and finding that
Corley may not “bootstrap” his claim onto the conduct that
formed the basis of the Hopp case, the district court was
essentially holding that the predicate acts were not suffi-
ciently related.
Neither party picked up on this as being the controlling
ground for the district court’s decision and both sides gave
it scant attention in their briefs. That does not relieve us of
our duty to consider whether Corley has sufficient evidence
to overcome summary judgment on this point. Corley’s theory
of the case is that the defendants engaged in an overarching
scheme to fill their nursing homes by fraudulently inducing
customers to sign contracts for nursing home services. Corley
seems to hang his hat on our statement in Corley I that the
relationship prong is relatively uncontroversial. He con-
tends that our statement was still justified following full
discovery. In Corley’s view, although the particular fraudu-
lent promise may have changed for each victim, (1) the
purpose of the fraud was the same in each case, to induce a
prospective customer to move into a Rosewood home; (2) the
results were the same because contracts were in fact signed
and residents moved in; (3) the victims were similar as they
were all elderly persons needing nursing care or family
members charged with the responsibility of finding nursing
care for a loved one; and (4) the methods were similar
Nos. 01-3625 & 01-3642 21
because the fraudulent statements were delivered in
advertising, sales brochures and in oral statements during
tours of the homes. We tend to agree that, if (and this turns
out to be a big “if”) Corley has enough evidence to demon-
strate acts of fraud against himself and others as described
above, then he has sufficiently demonstrated a triable issue
on relationship. Summary judgment should not have been
granted on that ground and to the extent the district court
relied on the relationship prong of pattern to grant judg-
ment against Corley, we disagree with that rationale.
B.
We turn next to Corley’s complaint that the district
court’s decision rested on a legal error related to the injury
requirement. Corley contends that the court required him
to prove that he was injured by each and every predicate
act, contrary to our decision in Marshall & Ilsley Trust Co.
v. Pate, 819 F.2d 806 (7th Cir. 1987). He maintains that he
need only demonstrate injury to himself from one predicate
act that is related to enough other predicate acts to con-
stitute continuity. He adds that the other predicate acts
making up the pattern need not have injured anyone so
long as they satisfy the definition of mail fraud. Because a
person may be found guilty of mail fraud without any
showing that anyone relied on the fraud or was injured by
it, he claims, he need not show injury from any predicate
act directed towards other persons. We do not read the dis-
trict court’s opinion as requiring Corley to demonstrate
injury from all of the predicate acts, although the court may
have relied in part on such a rationale. As we discussed
above, the district court’s decision seemed to rest on a
finding that the acts that injured Corley were isolated acts
that were insufficiently related to the guarantee of continu-
ing care scheme that injured others. In any case, Corley is
correct (and the defendants seem to agree) that a plaintiff
22 Nos. 01-3625 & 01-3642
need not demonstrate injury to himself from each and every
predicate act making up the RICO claim. Pate, 819 F.2d at
810. In Pate, the question presented was whether a plain-
tiff, after proving predicate acts sufficient to constitute a
pattern must prove that every act involved in the pattern
also caused a direct injury to the plaintiff. 819 F.2d at 809.
We noted that one of the factors tending to show the
existence of a pattern of racketeering activity is the pres-
ence of multiple victims. Id. Moreover, requiring the
plaintiff to prove injury from all of the predicate acts “would
conflate what must be two separate inquiries: first, was
there a pattern of racketeering activity violating RICO, and
second, was the plaintiff injured by the RICO violation?”
819 F.2d at 809. Requiring a plaintiff to show injury from
all of the acts adding up to a pattern would thus be illogical,
especially because the acts might be somewhat distinct and
separate in time. Pate, 819 F.2d at 810. We therefore held
that a “plaintiff need not prove that it suffered injury from
each (or more than one) predicate act constituting the
pattern.” Pate, 819 F.2d at 810. To the extent the district
court required Corley to show injury from all of the predi-
cate acts (and again, we do not necessarily read the district
court’s opinion to so hold), summary judgment should not
have been entered on that basis.
C.
Corley does need to demonstrate a triable issue of fact on
injury to himself from at least one predicate act, though,
and we turn finally to what Corley’s evidence shows, con-
struing it in a light most favorable to him. As we noted
above, Corley must show that he was injured “by reason
of” a violation of section 1962(c). See 18 U.S.C. § 1964(c)
(“Any person injured . . . by reason of a violation of section
1962 of this chapter may sue therefor. . .”). This “by reason
of” language requires a showing of both “but for” causation
Nos. 01-3625 & 01-3642 23
and proximate cause. Holmes v. Securities Investor Protection
Corp., 503 U.S. 258, 268 (1992). That is, Corley must show
that but for the defendants’ conduct he would not have been
injured. He must also show “some direct relation between
the injury asserted and the injurious conduct alleged.”
Holmes, 503 U.S. at 269.
In addition to injury and causation, because Corley relies
on the mail fraud statute as the source of the predicate acts
making up his RICO claim, he must show a triable issue of
fact on the elements of mail fraud: (1) the defendants’ partici-
pation in a scheme to defraud; (2) the defendants’ intent to
defraud; and (3) the defendants’ use of the mail in further-
ance of the scheme to defraud. United States v. Britton, 289
F.3d 976, 981 (7th Cir. 2002); United States v. Davuluri,
239 F.3d 902, 906 (7th Cir. 2001); United States v. Hickok,
77 F.3d 992, 1002-03 (7th Cir.), cert. denied, 517 U.S. 1200(1996). The words “to defraud” in the mail fraud context
mean “wronging one in his property rights by dishonest
methods or schemes” and “usually signify the deprivation of
something of value by trick, deceit, chicane or overreaching.”
Hickok, 77 F.3d at 1003 (quoting McNally v. United States,
483 U.S. 350, 359, 107 S. Ct. 2875, 2881 (1987)). “Intent to
defraud requires a wilful act by the defendant with the
specific intent to deceive or cheat, usually for the purpose
of getting financial gain for one’s self or causing financial
loss to another.” Britton, 289 F.3d at 981. See also Perlman
v. Zell, 185 F.3d 850, 854 (7th Cir. 1999) (“The word ‘fraud’
in the mail fraud statute means deliberate, material
misrepresentation. . . . No fraud, no mail fraud.”). Addition-
ally, materiality of the falsehood is an element of the mail
fraud statute, and so Corley must demonstrate a triable
issue of fact on the materiality of the falsehoods he relied
upon when he signed a contract and moved his mother into
Rosewood. Neder v. United States, 527 U.S. 1, 25 (1999).
Corley argues that the scheme to defraud involved
Rosewood making promises it had no intention of keeping
24 Nos. 01-3625 & 01-3642
in the hopes of inducing people to move into Rosewood facil-
ities. We will again recount the false promises Corley
claims injured himself or his mother when he relied upon
them to place his mother at Rosewood and to furnish her
room with carpeting, a private phone line and his mother’s
personal furniture from home: (1) Corley contends that
Mushrush told him that the price differential between pri-
vate suites and other types of rooms would remain rela-
tively constant; (2) he contends he was promised that his
mother would be offered a choice of two entrees at each
meal; (3) he claims he was told that Rosewood provided a
high quality of care for its residents; (4) Rosewood’s sales
brochure represented that a nurse maitre d’ would be present
in the dining hall; (5) that same brochure claimed that
Rosewood had a unique system of nursing shift overlaps; (6)
the brochure promised LPNs and RNs would be on-site
twenty-four hours a day, seven days a week; and (7) the
brochure stated that regular reports would be provided to
physicians regarding the residents’ condition. For the pur-
poses of this discussion, we will ignore the guarantee of con-
tinuing care because Corley was not injured by that promise
and must therefore show injury from one of the other
purported predicate acts in order to recover under RICO.
We will analyze each of the seven promises to determine if
they qualify as predicate acts on which to rest RICO
liability.
1.
The centerpiece of Corley’s case is Mushrush’s alleged
representation that when the prices of the private suites
rose, the price differential between private suites and other
types of rooms would remain relatively constant. Corley
does not complain that the price of the private suite rose
but only that when it did so, the increase was disproportion-
Nos. 01-3625 & 01-3642 25
ate to price increases in other room types. Corley could not
complain of fraud in the increase itself because the contract
specified:
The facility may increase its base rate at any time upon
30 days’ prior written notice to the resident and res-
ident’s representative. Such change shall be effective on
the 31st day following delivery or mailing of written
notice as herein provided.
R. 3, at ¶ XI.H. The contract also provided that “[t]his
Contract constitutes the entire agreement between the
parties with respect to the subject matter hereof and may
not be amended except by a writing signed by each of the
parties.” R. 3, at ¶ XI.B. Corley could hardly claim he was
deceived or injured by a price increase in and of itself when
that risk was explicitly disclosed in the contract. See
Reynolds v. East Dyer Development Co., 882 F.2d 1249, 1253
(7th Cir. 1989) (a person who discovers the truth may not
claim that a defendant’s misrepresentation harmed him);
Perlman, 185 F.3d at 855 (no fraud is involved when the
defendants tell the plaintiff exactly what they were doing).
A claim for injury based purely on price increase would also
fall short because the contract allows a resident to termi-
nate the contract at any time on 30 days’ notice, and thus
the resident has the unencumbered ability to avoid any
price increase by terminating the contract and leaving the
facility before the increase becomes effective. See R. 3, ¶
V.B. (“The resident may terminate this Contract at any time
and all obligations under it by giving the facility at least 30
days’ prior written notice of termination.”).
So instead Corley complains about the disproportionate
increase in the cost of private suites, a subject not covered
by the contract but by an alleged oral representation from
Mushrush, one of Rosewood’s representatives. There are at
least three significant problems with a fraud claim based on
disproportionality. First, Corley does not explain how he
26 Nos. 01-3625 & 01-3642
was injured by a disproportional rate hike when he signed
a contract that contained no cap on prices at all. Put
another way, he does not explain how he was injured when
Rosewood failed similarly to raise the rates on other
residents living in other types of rooms. We can guess what
his theory is. Presumably, he believed that if rate increases
were tied together for all room types, external market pres-
sures on the home would keep the prices down generally. In
other words, Rosewood would be constrained in raising the
prices on private suites by the market pressures on semi-
private rooms, for example. The problem with this argu-
ment is that Corley does not make it anywhere in his briefs
or in the court below. Consequently, he has presented no
evidence of whether this market pressure theory would
have been borne out in practice and we thus have no way of
knowing if he was injured by the failure to tie room rate
increases together. We do not know anything about the
market for any types of nursing home rooms during the
relevant time period. We will not make Corley’s market
pressure argument for him. “This court is not obliged to
comb the record without guidance looking for facts that
might call the district court’s holding into question, or to con-
duct the legal research necessary to construct an argument
from those facts.” Reynolds, 882 F.2d at 1254. Second, a
market pressure theory would suffer the same infirmity that
a claim for fraud based on pure price increase suffers—
because Corley had the ability to terminate the contract
before any price increase took place, he could not claim to
have been injured by the increase. If fraud was Rosewood’s
aim, it went about the process in a very unlikely manner by
giving residents an absolute out that would protect them
from injury.
Even if we consider as injury the cost of installing car-
peting and a private phone line, Corley must demonstrate
fraudulent intent and he has failed to do so in this instance.
This is the third flaw in Corley’s theory. As we discussed
Nos. 01-3625 & 01-3642 27
above, mail fraud requires a showing of specific intent to
defraud. This in turn requires a wilful act by the defendant
with the specific intent to deceive or cheat, usually for the
purpose of getting financial gain for one’s self or causing
financial loss to another. Britton, 289 F.3d at 981. Corley
must provide some evidence that, if believed by the jury,
would tend to show that at the time Mushrush made this
representation, Rosewood had no intention of honoring it.
Corley points to two pieces of evidence in support of frau-
dulent intent. First, Rosewood in fact increased prices in a
disproportionate manner after promising not to do so. This is
a recurring theme in Corley’s arguments and we will
address it here briefly. The fact that Rosewood subsequently
broke a promise is not evidence that it never intended to
keep the promise when made. At most this is evidence of
breach of contract, not fraud. Fraud requires much more
than simply not following through on contractual or other
promises. It requires a showing of deception at the time the
promise is made. A subsequent breach, although consistent
with deceptive intent is not in and of itself evidence of such
an intent.
Second, Corley relies on the Ukman Letter as evidence
that Rosewood never intended to keep its promise to raise
room rates proportionally. Recall that the Ukman Letter
was drafted by Rosewood’s attorney in response to an in-
quiry from the Illinois Attorney General after Corley lodged a
complaint with that office. We have reviewed the Ukman
Letter and find nothing in it that indicates that Rosewood
intended to deceive Corley at the time Mushrush told him
the price differentials would remain relatively constant. We
will recount here the passages of the Ukman Letter that
address Corley’s pricing complaints. In defending Rosewood
against Corley’s charges of extortion and fraud, Ukman
conceded that the cost of a private suite had “increased
substantially since Mrs. Corley was admitted to the facility”
but that other, less expensive private rooms were still
28 Nos. 01-3625 & 01-3642
available, as were private suites at other comparable homes
where there was less demand for the suites and therefore
lower costs. R. 1036, Ex. 12, at 3. Ukman noted that when
Vera Corley was first admitted to Rosewood, she was given a
discount of $14 per day off the usual price of a private suite
(a fact that Corley states he was never told). According to
Ukman, the first increase in price, detailed in a December
14, 1989 letter to Corley, “was brought on by the mush-
rooming occupancy of the facility and demand for beds.” R.
1036, Ex. 12, at 4. The next increase was a $4 per day across
the board increase in all room rates “necessitated by addi-
tional costs of running the facility[.]” The next increase,
from $88 to $122 per day was “brought about by the
continuing growth of the facility.” According to Ukman, the
facility was so full it was turning away individuals in need
of care. Id. In response to the charge that Corley had been
the victim of a bait and switch scheme, Ukman pointed out
that the contract itself provided for rate increases at any
time on 30 days’ notice. Further, at “the time Mrs. Corley
was admitted, management of the facility advised Mr.
Corley that the availability and price of private suites was
unique to the period when the facility was filling up and were
subject to change.” Id. at 5. Ukman told the Attorney
General that private suites were more expensive because
the residents were paying for the privilege of occupying a
room licensed by the State for two people, and that the
premium increased as occupancy rose. Simply put, “[r]ate
increases were the result of increasing occupancy and costs
of doing business.” Id. at 6. In response to a claim by Corley
that Rosewood planned the rate increases and that their
intent was “misstated and fraudulent,” Ukman responded
thusly:
Though rate increases for private suites were certainly
anticipated (and provided for in paragraph XI H. of the
contract), the amount and timing of them could not pos-
sibly have been planned. These increases depended al-
Nos. 01-3625 & 01-3642 29
most entirely on the growth in occupancy, which was
totally unpredictable.
Id. at 7. From this, Corley would have us assume that the
Rosewood defendants knew ahead of time that the demand
for private suites would far outpace the demand for more
modestly priced private rooms and semi-private suites.
Nothing in the Letter indicates such knowledge and fore-
thought on Rosewood’s part. Both Corley and the district
court read too much into the Ukman Letter and Corley lacks
any proof of fraudulent intent on the price differential claim.
“Not all conduct that strikes a court as sharp dealing or
unethical conduct is a ‘scheme to defraud.’ . . . Given the
pervasive use of the mails along with the ease of satisfying
the mailing requirement, such a broad meaning of fraud for
the mail fraud statutes would put federal judges in the
business of creating common law crimes.” Reynolds, 882
F.2d at 1252. Because Corley cannot show he was injured
by the promise of proportional pricing and cannot show that
the defendants intended to deceive him when Mushrush
made that promise, it cannot form the basis of a RICO
claim.
2.
We turn to the promise of a choice of two entrees at every
meal. This program was unique to Rosewood’s Peoria
facility and was in effect from June 1989 through July 1990,
for approximately thirteen months. Corley has literally no
evidence of fraudulent intent in the making of this promise
and simply relies on the fact that the program ended nine
months after his mother entered the facility as evidence that
the defendants did not intend to carry through on this
promise when they made it. This is the flimsiest of Corley’s
claims because the home did in fact operate the two-entree
program for a substantial period of time before terminating
30 Nos. 01-3625 & 01-3642
it. Corley does not claim he was ever told, for example, that
the program would be offered in perpetuity like the guaran-
tee of continuing care. Without any evidence of fraudulent
intent, the cancellation of the two-entree program cannot
qualify as a predicate act for the purposes of RICO.
3.
Next is Corley’s claim that he was told that Rosewood
provided a “high quality” of care for its residents. According
to Corley, the home had a policy of meeting minimum State
nursing requirements and thus never intended to provide
“high quality” care to its residents. The phrase “high quality”
is highly subjective. See Jepson, Inc. v. Makita Corp., 34
F.3d 1321, 1330 (7th Cir. 1994) (labels like “poor quality”
are inherently subjective expressions that are ill-suited as
the basis for mail and wire fraud claims). Without elabora-
tion, it comes under the category of sales puffery upon
which no reasonable person could rely in making a decision
and therefore it does not qualify as material. Williams v.
Aztar Indiana Gaming Corp., 351 F.3d 294, 299 (7th Cir.
2003) (promotional mailings from casino representing that
“Players win!” and “the winning is big,” among other things,
are nothing more than sales puffery on which no person of
ordinary prudence and comprehension would rely); Associates
In Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941
F.2d 561, 570 (7th Cir. 1991), cert. denied, 502 U.S. 1099(1992) (fraud occurs only when a person of ordinary pru-
dence and comprehension would rely on misrepresentations;
no reasonable person would rely on puffery that an invest-
ment will earn the “highest” rate of return). A generic promise
to provide “high quality” services cannot therefore be the
basis of a mail fraud claim. In any event, this alleged mis-
representation suffers the same flaw as the others because
Corley has no evidence that Rosewood intended to provide
anything other than high quality services when it made this
statement in its advertising materials.
Nos. 01-3625 & 01-3642 31
4.
Rosewood’s sales brochure also represented that a nurse
maitre d’ would be present during meals. Specifically, the
brochure stated, “A nurse, not unlike a maitre de [sic], looks
after the quality of food, service and well-being of the guests
during each meal.” R. 1035, Ex. 1, at 8. Corley presented
evidence that no nurse acted like a maitre d’ during meal
times. The district court found that statement regarding the
presence of a nurse maitre d’ was not material. The court
noted that Corley presented no evidence that the presence
or absence of a nurse maitre d’ had a tendency to affect
anyone’s decision to stay at a Rosewood facility. Corley
argues that materiality is an issue for the jury, not the
judge. He suggests that the mere fact that Rosewood in-
cluded this statement in the brochure indicates that
Rosewood thought it was material to prospective residents.
This argument is a non-starter. Sales brochures contain all
sorts of puffery. To turn every statement in a sales brochure
into a material representation that could form the basis of
a RICO claim would lead to absurd results. The same
section of the brochure states, “Mealtimes are social
gathering times for residents who often get together early
to talk.” Corley’s argument would lead to the ridiculous
result that Rosewood could be sued for fraud if his mother
found herself without a social companion with whom to
converse before the meal hour. Materiality will in many
circumstances be an issue of fact for a jury, but not here.
Nurses were available at all times; the fact that none were
present in the dining room to act as a maitre d’ would not
be material to any reasonable person. If Corley wanted to
get the issue before a jury, he should have produced evidence
that this statement influenced at least some of the prospec-
tive residents in making their decision to move into Rose-
wood. See Neder, 527 U.S. at 16 (a false statement is
material if it has a natural tendency to influence or is
capable of influencing the decision of the decision making
32 Nos. 01-3625 & 01-3642
body to which it was addressed). This claim fails for lack of
any evidence on materiality.
5.
The brochure also claimed that Rosewood had a unique
system of nursing shift overlaps. As the district court
pointed out, the only part of this statement that proved to
be false was that the system may not have been “unique” but
may have been a common practice at health care facilities.
Corley’s argument on this point suffers a number of flaws.
First, he again lacks any evidence that the defendants had
a fraudulent intent when making this statement. Second,
he fails to show that Rosewood’s actual performance of this
promise differed in any material way from what was rep-
resented in the brochure. Third, he again fails to present
any evidence that this statement was material to anyone
deciding whether to enter Rosewood. All of these deficiencies
mean that this alleged misrepresentation may not serve as
the basis for a mail fraud claim.
6.
Nor is there any merit to Corley’s claim that Rosewood
acted with fraud when the brochure promised LPNs and
RNs would be on-site twenty-four hours a day, seven days
a week. As the district court noted, either LPNs or RNs and
sometimes both were in fact on duty twenty-four hours a
day, seven days a week. Rosewood followed Medicare reg-
ulations which required that one RN be on the Medicare
hallway at least one shift during the twenty-four hour day,
and either LPNs or RNs were to be on duty on every shift.
Under the district court’s reading, this staffing was sufficient
to meet the statement in the brochure. Corley takes issue
with the district court’s interpretation of the brochure and
offers his own reading. In his view, the brochure repre-
Nos. 01-3625 & 01-3642 33
sented that more than one RN would be present and that
both RNs and LPNs would be present day and night. The
actual statement in the brochure reads, “Registered nurses
and licensed practical nurses are on duty day and night
seven days a week.” R. 1035, Ex. 1, at 15. As we read the
statement, it is open to interpretation regarding how many
nurses will be present and what their level of training will
be. What is clear is that nurses will be present at all times
and nurses were in fact present at all times. An indefinite
statement like this is not the stuff of which fraud claims are
made. Corley has presented no evidence that the Rosewood
defendants intended to deceive anyone when they placed
this statement in their brochure, or that they intended not
to have adequate staffing. Corley points to a handful of
situations where the care provided to some residents was
inadequate, but a breach of the standard of care is not
evidence that Rosewood intended from the start to mislead
prospective customers about the number of nurses present
for each shift. This claim too fails for lack of evidence.
7.
Finally, Corley complains that the brochure stated that
regular reports would be provided to physicians regarding
the residents’ condition when in fact nurses provided oral
reports to doctors only when those doctors visited the home,
and also called doctors when there was a specific need.
Corley contends these are not “regular” reports and that
only a jury can decide what a reasonable person would un-
derstand by “regular” in the context of the entire brochure.
Again, “regular” is a subjective word in this context, and the
district court was quite correct to find that Corley could not
base a fraud claim on this statement. And, for the final
time, we must point out that Corley has presented literally
no evidence that the defendants intended to deceive anyone
34 Nos. 01-3625 & 01-3642
when they made this statement. The final nail in the RICO
coffin for this claim is a lack of any proof that this promise
would be material to a reasonable person placing a loved
one in a nursing home. A reasonable person would certainly
expect a physician to be notified when there is a need but
Corley’s vision of “regular” reports being provided even
when there was no particular need is too idiosyncratic to be
considered material in the absence of any evidence that
anyone else found this promise to be determinative.
All of this boils down to one conclusion. Corley has failed
to produce evidence of any predicate act that injured him-
self or his mother. Although Rosewood may have breached
some of the promises it made to Corley and other residents,
none of these breaches rose to the level required to prove
fraud. As we discussed above, for each allegedly breached
promise, Corley failed to produce evidence on a key element
of the fraud claim. Sometimes the evidentiary deficit related
to injury, sometimes to intent, sometimes to materiality and
sometimes to all three of those necessary elements. Even if
we assume that Corley has adequately demonstrated a
pattern of racketeering activity related to the guarantee of
continuing care, he must also show a related predicate act
injuring himself or his mother. This he has failed to do. The
district court was therefore correct to enter summary
judgment in favor of the defendants.
D.
We take this opportunity to tie up a few loose ends from
Corley’s appeal. Needless to say, in light of our analysis,
Corley is not entitled to partial summary judgment on the
issue of pattern. We do not need to decide whether the
district court erred in its treatment of certain inspection
records of the Illinois Department of Public Health. Corley
offered these reports to demonstrate the poor quality of care
provided to Rosewood residents. The records are irrelevant
Nos. 01-3625 & 01-3642 35
in light of our conclusion that Corley lacked evidence that
Rosewood intended to provide poor care at the time it
promised high quality care. Nor do we need to consider
Corley’s collateral estoppel argument relating to the effect
of the Hopp judgment on this case. Because Corley has
failed to produce evidence of acts of mail fraud injuring
himself or his mother, the defendants’ treatment of the
Hopp plaintiffs is irrelevant here. We have reviewed the
remainder of Corley’s arguments and find them similarly
without merit.
III.
We turn now to the defendants’ cross-appeal on sanctions.
Rosewood sought sanctions against Corley under 28 U.S.C.
§ 1927 and under Rule 11. Section 1927 provides in relevant
part:
Any attorney . . . who so multiplies the proceedings in
any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, ex-
penses, and attorneys’ fees reasonably incurred because of
such conduct.
28 U.S.C. § 1927. Rule 11 provides, among other things,
that when an attorney presents a pleading or written
motion to the court, that attorney:
is certifying that, to the best of that person’s knowledge,
information and belief, formed after an inquiry reason-
able under the circumstances,—
(1) it is not presented for any improper purpose, such
as to harass or to cause unnecessary delay or
needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension, modifi-
36 Nos. 01-3625 & 01-3642
cation, or reversal of existing law or the establish-
ment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified,
are likely to have evidentiary support after a rea-
sonable opportunity for further investigation or
discovery[.]
Rule 11(b). Rule 11(c) provides that, if, after notice and a
reasonable opportunity to respond, a court determines that
Rule 11(b) has been violated, the court may, subject to cer-
tain conditions, impose an appropriate sanction upon the
attorneys who violated Rule 11(b). As a condition for im-
posing sanctions by motion of another party, that party must
serve the motion for sanctions on the offending attorney
twenty-one days before filing it with the court. The motion
for sanctions must describe the specific conduct that is al-
leged to violate Rule 11(b), and may be filed with the court
only if the offending attorney fails to withdraw or correct
the improper pleading or motion within those twenty-one
days. Rule 11(c)(1)(A).
A.
The defendants sought Section 1927 sanctions based on
a number of motions that they maintain were filed to
harass Rosewood, cause unnecessary delay in the proceed-
ings and needlessly increase the cost of the litigation.
Among these motions were (1) six pleadings accusing
Rosewood and its lawyers of furthering the RICO conspiracy
by seeking to evade service of process; (2) four motions
seeking to disqualify defense counsel; (3) an unstated num-
ber of motions seeking advisory opinions; and (4) eighteen
motions challenging the district court’s rulings. The defen-
dants also complain that Corley and his attorneys have
engaged in “extremely negligent, reckless and indifferent
conduct in the pursuit of the RICO claim.” Defendants’
Nos. 01-3625 & 01-3642 37
Brief at 48. This reckless conduct includes pursuing a RICO
claim that was unsupported by the facts when it was first
filed, and then failing to follow the guidelines set forth by
this court on remand after Corley I by failing to seek
discovery regarding the purported victims of Rosewood’s
alleged fraud.
Rosewood sought Rule 11 sanctions for similar reasons.
Specifically, Rosewood argued to the district court that
Corley’s RICO claims were filed and pursued without
foundation in law or fact. Rosewood also moved for Rule 11
sanctions on the ground that Corley had brought the RICO
claim and accompanying motions for an improper purpose,
namely, to force settlement of a spurious claim, to harass
the defendants, cause unnecessary delay and needlessly in-
crease the cost of litigation. Moreover, Rosewood sought
Rule 11 sanctions for disparaging and abusive comments
made by Corley and his lawyers in pleadings and in oral
argument before the district court.
The district court entered two orders relating to Rosewood’s
requests for sanctions. In the first, the district court de-
clined Rosewood’s request for Rule 11 sanctions sought
because Corley included paragraphs in his Sixth Amended
Complaint that had been dismissed by the court, and in-
cluded a defendant that had been previously dismissed from
the case. The district court refused to sanction Corley for
these infractions because Rosewood failed to comply with
Rule 11(c). Rule 11(c) requires a party seeking Rule 11
sanctions to give the other party notice and twenty-one days
to correct the problem. Because Rosewood’s notice to Corley
simply requested that he withdraw the Sixth Amended
Complaint and did not specifically mention the six offending
paragraphs (out of more than two hundred paragraphs) or
the dismissed defendant, the court found the notice was
inadequate under Rule 11(c). The court also declined to
award sanctions under either its inherent power or under
Section 1927 because the court found no evidence of bad
faith in Corley’s filing of the Sixth Amended Complaint. The
38 Nos. 01-3625 & 01-3642
court specifically found that Corley did not act unreason-
ably or vexatiously in filing the Sixth Amended Complaint,
and thus declined to award Section 1927 sanctions. See
Order, July 27, 2001.
In its second Order, the court again declined to sanction
Corley under Rule 11, finding that Corley had a good faith
basis to proceed to summary judgment on his RICO claims
because of the evidence of rapid price increases at other
Rosewood homes shortly after opening. As for Section 1927
sanctions, the court found this was a closer call:
The more difficult question is whether Corley and his
attorneys engaged in vexatious litigation tactics that
unreasonably drove up the cost of this case. The Court
believes that Corley and his attorneys acted unreason-
ably and increased costs by filing innumerable motions
to rehash virtually every ruling that was unfavorable to
them. At least some of this incessant, repetitious papering
of the Court and opposing counsel was unreasonable, if
not vexatious.
The problem is that the Defendants also seem to the
Court to be guilty of unreasonable litigation tactics. For
example, the Defendants started this case by spending
over a year litigating service of process. Both parties
seem to have decided from the outset to fight tooth and
nail. The Court will not put the blame for the outrageous
delays and expenses in this case solely at the feet of
Corley and his attorneys. The Court, therefore, will not
sanction Corley or his attorneys in this case for their
unreasonable litigation tactics.
See Order, September 6, 2001, at 5-6.
Rosewood appeals the district court’s refusal to sanction
Corley and his attorneys on several grounds: (1) having
found that Corley acted “unreasonably, if not vexatiously”
the court erred in refusing to grant sanctions under Section
1927; (2) the court erred in basing the Section 1927 decision
in part on a finding that the defendants spent a year
Nos. 01-3625 & 01-3642 39
litigating service of process; (3) the court erred in finding
that evidence of rapid price increases in other Rosewood
homes gave Corley a good faith basis to proceed to summary
judgment on his RICO claim; (4) the court erred in refusing
to grant Rule 11 sanctions because Corley filed to conduct
a reasonable inquiry into the facts before asserting there
were 50,000 victims of Rosewood’s business practices; (5) the
court erred in refusing to grant Rule 11 sanctions because
Corley failed to conduct a reasonable inquiry into the law;
and (6) the court erred in refusing to sanction Corley under
Rule 11 because Corley brought the RICO claim and
ancillary motions for an improper purpose.
B.
We review a court’s Rule 11 determination for abuse of
discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990); Independent Lift Truck Builders Union v. NACCO
Materials Handling Group, Inc., 202 F.3d 965, 968 (7th Cir.
2000); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330
(7th Cir. 1995). We will find abuse of discretion only where
“no reasonable person could take the view adopted by the
trial court. If reasonable persons could differ, no abuse of
discretion can be found.” Lorentzen, 64 F.3d at 330. The
central goal of Rule 11 is to deter abusive litigation practices.
Cooter & Gell, 496 U.S. at 393. Because the district courts
have the best information about the patterns of their cases,
they are in the best position to determine whether a legal
position is far enough off the mark to be frivolous or whether
an attorney conducted an adequate inquiry under the par-
ticular circumstances of a case. Mars Steel Corp. v. Continental
Bank N.A., 880 F.2d 928, 933 (7th Cir. 1989) (en banc). See
also Brandt v. Schal Assoc., Inc., 960 F.2d 640, 645 (7th Cir.
1992) (decisions concerning Rule 11 sanctions are best left to
the discretion of the district court which has a bird’s eye view
of the actual positions taken by the litigants). With that
40 Nos. 01-3625 & 01-3642
deference in mind, we see no reason to overturn the district
court’s decision not to impose sanctions under Rule 11. The
main thrust of Rosewood’s argument is that the district
court erred in assessing the evidence when it found that
evidence of rapid price increase in private suites provided
a good faith basis to go forward with the case. According to
Rosewood, this error led to the district court’s erroneous
denial of Rule 11 sanctions. Although the court may have been
mistaken about the relevance of the rapid price increase
evidence, it is unlikely that that error would change the result
of the sanctions decision. After all, if the district court itself
believed this evidence to be relevant, it was unlikely to fault
Corley for suffering the same misapprehension. Under the
circumstances, we see no reason to remand to the district
court to determine whether this new view of the evidence
would change the sanctions decision. We hasten to add that
the converse would not necessarily be true. That is, if the dis-
trict court had granted sanctions based on an erroneous
view of the relevance of the evidence, a reversal of sanctions
would be necessary as an abuse of discretion. Nor do we see
any reason to reweigh the district court’s decision not to
award Rule 11 sanctions on any of the other bases cited by
Rosewood. The focus in Rule 11 sanctions is on what coun-
sel knew at the time the complaint was filed, not what
subsequently was revealed in discovery. Beverly Gravel, Inc.
v. DiDomenico, 908 F.2d 223, 226 (7th Cir. 1990). We follow
the district court’s lead in declining to judge Corley’s actions
in filing the lawsuit with the 20/20 vision of hindsight. The
fact that the underlying claim turned out to be groundless
does not necessarily mean that Rule 11 sanctions are
appropriate (much less required). Beverly Gravel, 908 F.2d
at 227. The district court, viewing the case as a whole,
simply did not believe that Corley’s claims were filed in bad
faith or for an improper purpose or without adequate
investigation. We therefore affirm the district court’s denial
of Rule 11 sanctions.
Nos. 01-3625 & 01-3642 41
C.
A district court’s decision regarding Section 1927 is also
reviewed for abuse of discretion. Kotsilieris v. Chalmers,
966 F.2d 1181, 1183 (7th Cir. 1992); Walter v. Fiorenzo, 840
F.2d 427, 433 (7th Cir. 1988). Rosewood has two main
objections to the district court’s ruling on Section 1927.
First, having found that Corley acted unreasonably, if not
vexatiously, Rosewood contends it was error not to sanction
him. We can dispatch this argument quickly. Section 1927
is permissive, not mandatory. The court is not obliged to
grant sanctions once it has found unreasonable and vex-
atious conduct. It may do so in its discretion. That leads to
Rosewood’s second objection, namely that the court erred in
finding that Rosewood itself contributed to the outrageous
delays and expenses with its own unreasonable litigation
tactics. Rosewood’s argument on Section 1927 is a good
example of what frustrated the patient district court judge.
Rosewood curiously spends many pages of its brief attempting
to convince this court that Corley and his attorneys behaved
unreasonably and vexatiously. But the district court found
in Rosewood’s favor on this point and this lengthy recitation
of Corley’s conduct was thus unnecessary. Rosewood does
briefly address the basis for the district court’s ruling,
namely, its belief that Rosewood contributed to the delay
and expense. But this argument too falls short as it asks us
to simply reweigh the district court’s decision. In no uncer-
tain terms, the district court who presided over the
thousand-plus filings in this case found that Rosewood
should bear at least part of the responsibility for the accompa-
nying delay and cost. Under the deferential standard of
review for Section 1927 sanctions, we affirm the district
court’s sound decision.
IV.
For all of the reasons stated above, we affirm the district
court’s grant of summary judgment in favor of the defendants
42 Nos. 01-3625 & 01-3642
and also affirm the district court’s denial of sanctions
against the plaintiff and his attorneys.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-13-04