UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2022

Submitted: February 22, 2023 Decided: August 21, 2023 Amended: August 22, 2023

Docket No. 22-349-cv

DOUGLAS J. HORN,

Plaintiff-Appellant,

CINDY HARP-HORN,

Plaintiff,

— v. —

MEDICAL MARIJUANA, INC., DIXIE HOLDINGS, LLC, AKA DIXIE ELIXIRS, RED DICE HOLDINGS, LLC,

Defendants-Appellees.

DIXIE BOTANICALS,

Defendant. Before:

WALKER, LYNCH, and ROBINSON, Circuit Judges.

Plaintiff-Appellant Douglas Horn appeals from an order of the United States District Court for the Western District of New York (Jonathan W. Feldman, M.J.) granting summary judgment to Defendants-Appellees on his claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). On appeal, Appellant argues that the district court erroneously held that he lacks RICO standing to sue for his lost earnings because those losses flowed from, or were derivative of, an antecedent personal injury. We agree. RICO’s civil-action provision, 18 U.S.C. § 1964(c), authorizes a plaintiff to sue for injuries to “business or property.” While that language implies that a plaintiff cannot sue for personal injuries, that negative implication does not bar a plaintiff from suing for injuries to business or property simply because a personal injury was antecedent to those injuries. We therefore VACATE the order granting summary judgment to Appellees on Appellant’s civil RICO claim, and REMAND to the district court for further proceedings consistent with this Opinion.

Jeffrey M. Benjamin, The Linden Law Group, P.C., New York, NY, for Plaintiff-Appellant.

Roy A. Mura, Scott D. Mancuso, Mura Law Group, PLLC, Buffalo, NY, for Defendants-Appellees.

GERARD E. LYNCH, Circuit Judge:

Plaintiff-Appellant Douglas J. Horn lost his job as a commercial truck driver, which he had held for more than ten years, after a random drug test

2 detected tetrahydrocannabinol (“THC”) in his system. He maintains, however, that he ingested THC unwittingly by consuming a cannabis-derived product that was marketed as THC-free by Defendants-Appellees Medical Marijuana, Inc., Dixie Holdings, LLC, a/k/a Dixie Elixirs, and Red Dice Holdings, LLC (“Appellees”). He then brought this lawsuit in the United States District Court for the Western District of New York, asserting claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and state law. Granting partial summary judgment to Appellees, the district court (Jonathan W. Feldman, M.J.) held that Horn lacked RICO standing1 because he sued for losses – in particular, his loss of earnings – that were derivative of, or flowed from, an antecedent personal injury.

We disagree. RICO’s civil-action provision, 18 U.S.C. § 1964(c), authorizes a plaintiff to sue for “injur[ies] in his business or property” that are proximately caused by a violation of one of RICO’s substantive provisions. While § 1964(c) implicitly excludes recovery for personal injuries, nothing in § 1964(c)’s text, or

1 Unlike Article III standing, RICO “standing” is not a jurisdictional requirement but instead concerns a merits issue, i.e., whether the RICO statute gave the plaintiff a cause of action. Lerner v. Fleet Bank, N.A., 318 F.3d 113, 129-30 (2d Cir. 2003), as amen