Laurel Gardens, Llc et al v. Mckenna et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIME.D. Pa.June 27, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LAUREL GARDENS, LLC, et al., Plaintiffs, v. TIMOTHY McKENNA, et al., Defendants : : : : : : : : : : : Civil Action No. 5:17-cv-00570-JLS MOTION OF DEFENDANTS SAUL EWING LLP, JOHN SNYDER, AND DAVID FALCONE TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants Saul Ewing LLP, John Snyder, and David Falcone (collectively, the “Saul Ewing Defendants”), by and through their undersigned counsel, Stradley Ronon Stevens & Young, LLP, hereby move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs’ First Amended Complaint. In support of this motion, the Saul Ewing Defendants rely upon the accompanying brief, which is incorporated herein by reference. Respectfully submitted, /s/ Joseph T. Kelleher Keith R. Dutill Joseph T. Kelleher Bridget C. Giroud STRADLEY RONON STEVENS & YOUNG, LLP 2005 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 564-8000 kdutill@stradley.com jkelleher@stradley.com bgiroud@stradley.com Counsel for Defendants Saul Ewing LLP, John Snyder, and David Falcone Date: June 27, 2017 # 3269102 Case 5:17-cv-00570-JLS Document 100 Filed 06/27/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LAUREL GARDENS, LLC, et al., Plaintiffs, v. TIMOTHY McKENNA, et al., Defendants : : : : : : : : : : : Civil Action No. 5:17-cv-00570-JLS BRIEF OF DEFENDANTS SAUL EWING LLP, JOHN SNYDER, AND DAVID FALCONE IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants Saul Ewing LLP (“Saul Ewing”), John Snyder, and David Falcone (collectively, the “Saul Ewing Defendants”), by and through their undersigned counsel, Stradley Ronon Stevens & Young, LLP, hereby submit this brief in support of their Motion to Dismiss Plaintiffs’ First Amended Complaint. I. INTRODUCTION In their original Complaint, Plaintiffs, Laurel Gardens, LLC, American Water Services, LLC, Laurel Gardens Holdings, LLC, LGSM, GP (collectively “Laurel Gardens”) and Charles P. Gaudioso (“Gaudioso”), referenced but did not sue the Saul Ewing Defendants. Now, in the First Amended Complaint (the “Amended Complaint”), the Saul Ewing Defendants have been tossed into Plaintiffs’ sweeping, conclusory allegations purporting to describe a massive “hub-and- spoke” criminal conspiracy among thirty-three defendants masterminded by two landscapers against their former employer. Long on hyperbole but virtually devoid of factual allegations respecting the Saul Ewing Defendants, the Amended Complaint should be dismissed as to the Saul Ewing Defendants for at least two reasons. Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 1 of 23 2 First, the Plaintiffs have failed to properly plead even a single element of a single RICO claim against the Saul Ewing Defendants. The Amended Complaint does not identify or even mention any of the Saul Ewing Defendants in its long list of alleged RICO “persons” involved in a RICO “enterprise.” As a result, even the generalized allegations that comprise the overwhelming majority of the pleading do not touch Saul Ewing or its partners. Moreover, the Amended Complaint pleads no facts which, if true, could constitute a “pattern of racketeering activity” or violations of Section 1962 by the Saul Ewing Defendants. Plaintiffs’ inability to formulate factual allegations sufficient to sweep Saul Ewing and its partners into this “hub-and- spoke” landscaper conspiracy is not surprising, but it is fatal to their claims. Second, Plaintiffs’ state law claims are time-barred. The Amended Complaint specifically alleges that Plaintiffs discovered the McKennas’ fraud and caught them “red-handed” in 2014, and that Saul Ewing has not rendered services to either the McKennas or Laurel Gardens since February of 2015. Plaintiffs first sued the Saul Ewing Defendants in April of 2017 – more than two years later. All of Plaintiffs’ state law claims are subject to a two-year statute of limitations and are time barred based on the express allegations of the Amended Complaint. Additionally, none of the state law counts plead facts sufficient to meet the elements of any claim against the Saul Ewing Defendants. The Amended Complaint falls far short of the pleading standard established by the Supreme Court in Twombly. It utterly ignores the law of this Circuit regarding pleading RICO violations. For these reasons, as more fully set forth below, the Amended Complaint should be dismissed as to the Saul Ewing Defendants. II. FACTS The facts alleged as to the Saul Ewing Defendants are few and unremarkable. Plaintiffs allege that “Saul Ewing was counsel of record for Laurel Gardens Holdings from March Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 2 of 23 3 2012 through February 2015.” (Am. Compl. ¶ 242.) Plaintiffs allege that, at some point during the representation, Saul Ewing attorney Evan Foster explained to Gaudioso that Saul Ewing represented Laurel Gardens, not Gaudioso personally or any other person at Laurel Gardens. (Id. at ¶ 243.) The Amended Complaint states that in the summer of 2012, Saul Ewing prepared the documents to transfer Timothy McKenna’s ownership interest in Laurel Gardens to Gaudioso. (Id. ¶¶ 54, 242.) And, Plaintiffs contend that Saul Ewing allegedly sent a letter to Laurel Gardens in February 2015, terminating the firm’s engagement with Laurel Gardens due to an outstanding balance, which Plaintiffs allege amounted to “a mere few hundred dollars.” (Id. ¶ 251.) Plaintiffs appear to base their claims against the Saul Ewing Defendants on three alleged facts. First, Saul Ewing partner David Falcone allegedly accepted “free” landscaping work from Laurel Gardens in exchange for legal work and personal loans Mr. Falcone provided to the McKennas. (Am. Compl. ¶ 244.) However, Plaintiffs then allege in the very next paragraph that when Gaudioso learned of this “activity” and invoiced Mr. Falcone for the work, Mr. Falcone “immediately paid the company for the work it invoiced him for….” (Id. ¶ 245.) It is telling that despite conceding in their own pleading that Mr. Falcone paid for the work Laurel Gardens performed for him, Plaintiffs persist in making conclusory, inflammatory accusations against him, including that he “conspired to steal Company labor and resources to perform extensive free work….” (Am. Compl. ¶ 244). The second factual allegation is that Saul Ewing allegedly sent a $360 invoice to Laurel Gardens for a one-hour meeting Evan Foster, then a Saul Ewing associate, had with Timothy McKenna and his wife on August 30, 2012, concerning the McKennas’ family business. (Id. ¶ 246.) Plaintiffs attach as Exhibit U to the Amended Complaint an email from Mr. Foster to Timothy McKenna and his wife, enclosing the invoice, and asking Mr. and Mrs. McKenna to pay the $360 immediately so that the invoice could properly be marked as paid before it was ever sent to Laurel Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 3 of 23 4 Gardens. (Id. Exhibit U.) It is plain from the exhibit Plaintiffs attach to the Amended Complaint that Mr. Foster specifically intended that Laurel Gardens not pay this $360. Id. Instead, as Mr. Foster explained in writing, he included this single entry on a Laurel Gardens invoice (for payment by the McKennas) because, at the time, neither the McKennas nor their company, McKenna American, were active clients in Saul Ewing’s billing system. (Id.) Finally, Plaintiffs allege that Saul Ewing partner John Snyder had been personal friends with Timothy McKenna since college1 and represented Mr. McKenna (or participated with him) in several matters that Plaintiffs claim were “in conflict” with Saul Ewing’s representation of Laurel Gardens. (Am. Compl. ¶¶ 249-250.) Specifically, Plaintiffs allege that Mr. Snyder: • Represented Mr. McKenna in connection with a dispute over an unpaid debt to Paul Isken, a customer of Laurel Gardens (id. ¶¶ 137, 249); • Advised Mr. McKenna in September 2012 in connection with his employment contract with Laurel Gardens, until Gaudioso instructed Mr. Snyder that he could not do so (id. ¶ 249); • Worked with Mr. McKenna and non-party Dave Horsey to obtain oil drilling approvals for Mr. Horsey’s property (id.); • Helped Mr. McKenna, Defendant Charles Wilkinson, and non-party Bernie Meyers “hide[ ] an asset,” namely a mica quarry from Wilmington Trust (id.); and • Advised Mr. McKenna, in an email dated June 6, 2014, regarding convenient locations for salt supplies in Georgia. (Id. Exhibit U.) Plaintiffs allege no facts regarding how or why Mr. Snyder’s alleged dealings with Mr. McKenna on these matters conflicted with Laurel Garden’s interests or caused harm to Laurel Gardens. 1 Plaintiffs allege, however, that at some point in June 2014, Mr. Snyder told Timothy McKenna that “he could no longer associate with him.” (Am. Compl. ¶ 250.) Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 4 of 23 5 III. ARGUMENT A. Legal Standard “A Rule 12(b)(6) motion to dismiss requires the court to examine the sufficiency of the complaint.” Garner v. Nutter, No. 15-cv-1335-JLS, 2017 WL 1048362, at *1 (E.D. Pa. Mar. 20, 2017) (citations omitted). In considering a motion to dismiss, the court must accept all factual allegations as true. Id. To withstand scrutiny under Rule 12(b)(6), a complaint must have “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court must dismiss the complaint unless the allegations “state a claim to relief that is plausible on its face.” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). B. Plaintiffs’ RICO Claims According to the heading of each of Plaintiffs’ RICO counts (Counts III, IV, and V), the RICO claims are being asserted by “All Plaintiffs” against “All Defendants.” (Am. Compl. Counts III, IV, and V). While the headings suggest an intention on the part of Plaintiffs to sweep the Saul Ewing Defendants into the RICO claims, the balance of the pleading demonstrates that Plaintiffs have no facts to support their own headings. Here again, Plaintiffs rely on labels instead of facts. Remarkably, the Saul Ewing Defendants are conspicuously and entirely absent from Plaintiffs’ RICO allegations: • None of the Saul Ewing Defendants is named as a RICO “person” involved in the alleged RICO “enterprise” underlying Plaintiffs’ claim under 18 U.S.C. § 1962(c) (which Plaintiffs refer to as the “McKenna Enterprise”). (Am. Compl. ¶¶ 285-86.) • None of the Saul Ewing Defendants is identified as having conducted or participated in the affairs of the McKenna Enterprise. (Id. ¶ 288.) • None of the Saul Ewing Defendants is alleged to have engaged in a pattern of racketeering. (Id. ¶ 289.) • Although two Saul Ewing email communications are listed among the alleged Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 5 of 23 6 predicate acts of mail or wire fraud, none of the Saul Ewing Defendants is identified among the defendants whose alleged predicate acts caused injury to Plaintiffs. (Id. ¶¶ 290(u), 292.) • None of the Saul Ewing Defendants is alleged to have acquired or maintained an interest in or control of any Laurel Gardens related enterprise in connection with Plaintiffs’ Section 1962(b) claim. (Id. ¶ 294.) • None of the Saul Ewing Defendants is alleged to have committed any of the predicate acts underlying Plaintiffs’ Section 1962(b) claim. (Id. ¶ 295.) • None of the Saul Ewing Defendants is alleged to have injured Plaintiffs through any alleged violation of Section 1962(b). (Id. ¶ 296.) • None of the Saul Ewing Defendants is named as a co-conspirator in connection with Plaintiffs’ RICO conspiracy claim under Section 1962(d). (Id. ¶¶ 299-300.) • None of the Saul Ewing Defendants is alleged to have committed any overt predicate act in furtherance of the alleged conspiracy underlying Plaintiffs’ Section 1962(d) claim. (Id. ¶ 301.) • None of the Saul Ewing Defendants is identified among the co-conspirators whose alleged violation of Section 1962(d) caused injury to Plaintiffs. (Id. ¶ 302.) Plaintiffs’ failure to include the Saul Ewing Defendants in its RICO allegations – while specifically identifying each of the other defendants – is fatal to Plaintiffs’ RICO claims against the Saul Ewing Defendants, and the claims must be dismissed on this basis alone. Even assuming, arguendo, that the omission of the Saul Ewing Defendants from Plaintiffs’ RICO counts was attributable to a long series of inadvertent clerical mistakes, the allegations of the Amended Complaint – already Plaintiffs’ second bite at the apple – come nowhere close to meeting the high bar required to plead a RICO claim. RICO claims require proof that: (1) the defendants violated one of the four subsections in Section 1962; and (2) the plaintiff sustained an injury to business or property proximately caused by the defendants’ violation of Section 1962. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1187 (3d Cir. 1993). Because “[c]ases involving RICO claims are often highly complex and lengthy, and carry the possibility of both attorney’s fees Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 6 of 23 7 and treble damages … the United States Court of Appeals for the Third Circuit has emphasized the importance of carefully examining the allegations of the complaint at the pleading stage, lest the RICO statute become ‘an open gateway to the imposition of potentially massive costs on numerous defendants, regardless of whether there is even a hint of the collaboration necessary to trigger liability.’”2 Mega Concrete, Inc. v. Smith, No. 09-cv-4234, 2011 WL 1103831, at *8 (E.D. Pa. Mar. 24, 2011) (quoting In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 370 (3d Cir. 2010)). As noted above, Plaintiffs’ factual allegations against the Saul Ewing Defendants boil down to essentially three charges: (1) David Falcone initially accepted “free” landscaping services from Laurel Gardens, allegedly arranged by the McKennas as payment for legal services or loans allegedly provided to the McKennas, and then, upon receiving an invoice from Laurel Gardens, paid for the services (Am. Compl. ¶¶ 244-45); (2) Saul Ewing billed Laurel Gardens for one hour of legal services performed for the McKennas, after having explicitly instructed the McKennas to pay for the services themselves so the invoice in question could correctly be marked “paid” (id. ¶¶246-48; Exhibit U); and (3) John Snyder collaborated with the McKennas on matters that Plaintiffs contend (without factual support) were “in conflict” with his representation of Laurel Gardens. (Id. ¶ 249.) The Amended Complaint fails to allege any facts demonstrating that the Saul Ewing Defendants participated in any “enterprise,” committed any predicate criminal acts of mail fraud or wire fraud, or caused any injury to Plaintiffs. 1. Section 1962(c) (Count III) A RICO claim under Section 1962(c) requires allegations of “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” In re Ins. Brokerage Antitrust Litig., 618 2 In this regard, it is not uncommon for courts to require a plaintiff to submit a “RICO Case Statement,” detailing the factual allegations supporting each element of the plaintiff’s RICO claims as well as the predicate acts underlying the claims. See, e.g., Bonovitacola Elec. Contractor, Inc. v. Boro Developers, Inc., No. 01-cv-5508, 2002 WL 31388806, at *4 (E.D. Pa. Oct. 23, 2002). Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 7 of 23 8 F.3d at 362 (quoting Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004)). A claim fails if all four elements are not adequately alleged. As noted by the Supreme Court, “[c]onducting an enterprise that affects interstate commerce is obviously not in itself a violation of § 1962, nor is mere commission of the predicate offenses.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). Rather, a plaintiff must allege facts establishing all of the elements. Id. Here, Plaintiffs’ allegations against the Saul Ewing Defendants satisfy none of these requirements. First, according to the Amended Complaint, the Saul Ewing Defendants’ involvement in the so-called McKenna Enterprise consisted of loaning money and providing legal services to the McKennas. These acts, however, do not constitute “conduct[ing] or participat[ing]” in the alleged RICO enterprise. To satisfy the “conduct” or “participation” element of a Section 1962(c) claim, the plaintiff must show that the defendant “participate[d] in the conduct of [the enterprise’s] affairs – that is, participate[d] in the operation or management of the enterprise itself.” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993) (emphasis added). Moreover, such participation must be “through a pattern of racketeering activity.” In re Ins. Brokerage Antitrust Litig., 618 F.3d at 372. The “operation or management” standard for the first element of a Section 1962(c) claim must be satisfied at the pleading stage, and courts have dismissed RICO claims for failure to plead “conduct” or “participation” in accordance with this established standard. See University of Maryland at Baltimore v. Peat, Marwick, Main & Co., 996 F.2d 1534, 1539 (3d Cir. 1993) (affirming dismissal of RICO claim against auditor finding that providing accounting and consulting services is not “knowingly engag[ing] in directing the enterprise’s affairs” (internal citations and quotations omitted)). Here, the Amended Complaint contains no factual allegations showing that any of the Saul Ewing Defendants participated in the operation or management of the so-called McKenna Enterprise. For this reason alone, Plaintiffs’ Section 1962(c) claim must be dismissed. Second, Plaintiffs have failed to adequately plead the existence of a RICO Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 8 of 23 9 “enterprise.” For the purposes of Section 1962(c), a RICO enterprise “must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” In re Ins. Brokerage Antitrust Litig., 618 F.3d at 366 (quoting Boyle v. United States, 556 U.S. 938, 945 (2009)). Where, as here, the alleged enterprise is not a legal entity, “simply identifying the allegedly associated components does not serve to put defendants on notice of the RICO claim alleged against them”; instead, the plaintiff must allege facts – consistent with the Twombly pleading standard – that plausibly show the enterprise’s structure, common purpose, and longevity and describe the relationships among those associated with it. Id. at 369-370. Here, Plaintiffs describe the McKenna Enterprise as a having a “hub-and-spoke” structure, with the McKennas at the center and the other defendants linked to the enterprise through their connection to the McKennas. (Am. Compl. ¶¶ 45, 51.) Although Plaintiffs describe the various defendants’ connections to the McKennas, Plaintiffs do not allege that the defendants who make up the “spokes” of the enterprise had relationships with one another, shared any common purpose, or acted in concert. In the absence of such allegations, Plaintiffs are left with only a “rimless” hub-and-spokes organization, which lacks the fundamental “relationship” and “common purpose” features of a RICO enterprise. Mega Concrete, 2011 WL 1103831, at *9-10. Mega Concrete is an analogous putative RICO case, where the plaintiffs, two related construction companies, alleged that two of their former employees joined with twelve other defendants in a RICO enterprise to “steal payments, resources, manpower, and business opportunities that rightfully belonged to the plaintiffs.” Id. at *1. According to the plaintiffs, the two former employees and their company served as the “hub” of the alleged enterprise and the other defendants served as the “spokes.” Id. at *9. However, much like Plaintiffs’ allegations here, the plaintiffs in Mega Concrete failed to allege that the “spoke” defendants “associated with each other Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 9 of 23 10 in any way, let alone for the common purpose of engaging in a course of conduct.” Id. Instead, the plaintiffs’ complaint “paint[ed] a picture of a single set of common defendants perpetrating various independent frauds, each with a different set of co-defendants who have no relationship to one another.” Id. The court in Mega Concrete dismissed the plaintiffs’ RICO claims against the “spoke” defendants because “the plaintiffs have failed to plead facts plausibly implying the existence of relationships between and among the members of the alleged enterprise, or that the various members were joined in a common purpose . . . .” Id. at *9. Here, Plaintiffs’ allegations regarding the McKenna Enterprise mirror the faulty allegations in Mega Concrete. The Saul Ewing Defendants and the other “spokes” of Plaintiffs’ alleged hub-and-spoke enterprise are connected only by virtue of their independent relationships with the McKennas, as “hub” of the so-called enterprise. Having failed to plead facts showing that the Saul Ewing Defendants and other non-McKenna defendants acted in concert with each other, Plaintiffs’ Section 1962(c) claim, premised on a “rimless” hub-and-spoke enterprise, fails. Mega Concrete, 2011 WL 1103831, at *9. Third, Plaintiffs’ allegations fail to demonstrate that the Saul Ewing Defendants engaged in any “pattern of racketeering activity.” To establish a pattern of racketeering activity for the purposes of Section 1962(c), the plaintiff must show that the defendant committed at least two “acts of racketeering” from the exhaustive list of criminal violations set forth in 18 U.S.C. § 1961(1) within a 10-year time period.3 See 18 U.S.C. § 1961(5). To state a claim under Section 1962(c), “[a] plaintiff must establish all elements of the predicate act crimes in addition to the elements 3 “[W]hile two acts are necessary, they may not be sufficient” to demonstrate the existence of a pattern of racketeering activity. Sedima, 473 U.S. at 497 n. 14. Indeed, both “common parlance” and RICO’s legislative history suggest “that two isolated acts of racketeering activity do not constitute a pattern.” Id. Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 10 of 23 11 enumerated within RICO.” Kalomiris v. Monroe Cty. Syndicate, No. 08-cv-0539, 2009 WL 73785, at *5 (M.D. Pa. Jan. 8, 2009) (citing Warden v. McKelland, 288 F.3d 105, 114 (3d Cir. 2002)). Where, as here, a RICO claim is premised on alleged acts of mail fraud or wire fraud, the plaintiff must show that the mail or wire transmissions at issue were sent “for the purpose of executing” a “scheme or artifice to defraud.” 18 U.S.C. § 1341; 18 U.S.C. § 1343. Further, a plaintiff asserting a claim under Section 1962(c) must describe “the way in which the particular transmission furthered the pattern of racketeering activity and the overall fraudulent scheme.” Tierney & Partners, Inc. v. Rockman, 274 F. Supp. 2d 693, 699 (E.D. Pa. 2003). Finally, the plaintiff must show that the predicate acts are “related” and “amount to or pose a threat of continued criminal activity.” Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1412 (3d Cir. 1991) (quoting H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989)). Here, Plaintiffs point to only two predicate acts involving the Saul Ewing Defendants. (See Am. Compl. ¶ 290 (u).) Specifically, Plaintiffs contend that two Saul Ewing emails – (i) Evan Foster’s email transmitting an invoice to Timothy McKenna and his wife, and (ii) John Snyder’s email to Timothy McKenna suggesting convenient salt supply locations in Georgia – constitute mail fraud or wire fraud. (Id.) Plaintiffs plead no facts showing that either of these emails satisfy the elements of mail fraud or wire fraud, nor do Plaintiffs even attempt to plead facts showing that that the Saul Ewing Defendants transmitted these emails for the purpose of executing a fraud or that these emails somehow furthered the alleged McKenna Enterprise. Without such allegations, Plaintiffs’ Section 1962(c) claim must be dismissed. See, e.g., Tierney & Partners, 274 F. Supp. 2d at 699 (dismissing RICO claim based on allegedly fraudulent invoicing in part because complaint merely listed invoices and did not allege how they furthered the overall fraudulent Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 11 of 23 12 scheme).4 Moreover, even examining the emails at issue in the light most favorable to Plaintiffs, they do not suggest any fraud or deceit by the Saul Ewing Defendants.5 First, Plaintiffs appear to suggest that Evan Foster’s email to Timothy and Catharine McKenna attaching a Saul Ewing invoice for $360 demonstrates that Saul Ewing was attempting to improperly bill Laurel Gardens for services performed for the McKennas. (See Am. Compl. ¶¶ 246-48, Exhibit U.) Quite to the contrary, however, the email string and invoice show that Saul Ewing was explicitly trying not to bill Laurel Gardens for the one-hour meeting Evan Foster had with Mr. and Mrs. McKenna. In the email attaching the invoice, Mr. Foster expressly directed the McKennas to immediately pay the $360 charge so that Saul Ewing could accurately mark the invoice as “paid” prior to sending it to Laurel Gardens, and, in a subsequent email, Mr. Foster explained that the only reason he was including the $360 charge on a Laurel Gardens invoice is that Saul Ewing did not have an active billing matter opened for the McKennas or McKenna American. (Am. Compl. Exhibit U.) Second, the email from John Snyder to Timothy McKenna regarding salt supply and storage locations offers no indication whatsoever that Mr. Snyder was attempting to mislead or deceive anyone, nor do Plaintiffs allege that he was. (Id.) The Third Circuit has cautioned that “RICO claims premised on 4 See also Werther v. Rosen, No. 02-cv-3589, 2002 WL 31955983, at *3 (E.D. Pa. Oct. 30, 2002) (quoting Warden v. McLelland, 288 F.3d 105, 114 (3d Cir. 2002)) (dismissing RICO claim alleging predicate acts of lawyer and law firm as the mailing of documents to client because “plaintiff has failed to explain ‘how these or any other communications were false or misleading, or how they contributed to the alleged fraudulent scheme[.]’”). 5 Notably, David Falcone is not involved in either of these email communications, and Plaintiffs have not otherwise alleged that Mr. Falcone committed any predicate acts. For this reason alone, Plaintiffs’ RICO claim against Mr. Falcone must be dismissed, as there is not even a suggestion that Mr. Falcone engaged in any “racketeering activity.” See 18 U.S.C. § 1962(c). Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 12 of 23 13 mail or wire fraud must be particularly scrutinized because of the relative ease with which a plaintiff may mold a RICO pattern from allegations that, upon closer scrutiny, do not support it.” Kolar v. Preferred Real Estate Investments, Inc., 361 F. App’x 354, 363 (3d Cir. 2010) (internal citations and quotations omitted). Here, Plaintiffs’ allegations cannot withstand even the lightest scrutiny. Finally, Plaintiffs fail to allege proximate causation. It is not enough for the plaintiff to plead racketeering activity and allege that the plaintiff has sustained some injury. See Anza v. Ideal Steal Supply Corp., 547 U.S. 451 (2006). Rather, the plaintiff must show a concrete injury to its business or property that the defendant directly caused through the racketeering activity. Id. Here, Plaintiffs’ Amended Complaint is devoid of any allegations connecting the dots between the Saul Ewing Defendants’ alleged “racketeering activity” and any supposed injury to Plaintiffs. For this additional reason, Plaintiffs’ claim fails. 2. Section 1962(b) (Count IV) Plaintiffs’ RICO claim under Section 1962(b) also fails because there is no factual support for the conclusory allegation that the Saul Ewing Defendants had “an interest in or control of each of the Plaintiffs[.]” (Am. Compl. ¶ 294.) Section 1962(b) specifically requires the plaintiff to show that the defendant “acquire[d] or maintain[ed]” an “interest in or control of” an enterprise “through a pattern of racketeering activity.” 18 U.S.C. § 1962(b). As set forth above, Plaintiffs fail to allege facts showing that the Saul Ewing Defendants engaged in any “pattern of racketeering activity.” Plaintiffs likewise fail to plead facts showing that the Saul Ewing Defendants had any interest in or control of Laurel Gardens. There is no allegation, nor could there be, that any of the Saul Ewing Defendants held an interest in Laurel Gardens; nor are there allegations showing that the Saul Ewing Defendants “controlled” Laurel Gardens. For the purposes of Section 1962(b), courts have held that “control of an enterprise means more than simply being a manager or a corporate officer.” Kaiser v. Stewart, No. 96-cv-6643, 1997 WL 476455, at *2 (E.D. Pa. Aug. 19, 1997.) Rather, Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 13 of 23 14 “[i]n common parlance, control connotes domination. It signifies the kind of power that an owner of 51% or more of an entity would normally enjoy.” Id. Plaintiffs do not even attempt to allege facts to meet this standard, and their Section 1962(b) claim must be dismissed. 3. Section 1962(d) (Count V) Because Plaintiffs’ other RICO claims fail, their RICO conspiracy claim under Section 1962(d) must also be dismissed. “Any claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient.” Lightning Lube, 4 F.3d at 1191. It is possible for a defendant to be held liable for conspiracy under RICO even if that defendant’s conduct does not constitute a substantive RICO violation (e.g., where a co-conspirator facilitates the RICO enterprise’s activity but does not commit the underlying predicate acts). See Ins. Brokerage Antitrust Litig., 618 F.3d at 373. “But a § 1962(d) claim must be dismissed if the complaint does not adequately allege an endeavor which, if completed, would satisfy all of the elements of a substantive RICO offense.” Id. (internal quotations and alterations omitted). Here, Plaintiffs do not plead facts showing that any of the Saul Ewing Defendants conspired with anyone to commit any act of racketeering, and Plaintiffs’ RICO conspiracy claim must be dismissed. C. Plaintiffs’ State Law Claims 1. All of Plaintiffs’ State Law Claims Are Time Barred As is evident from the allegations in the Amended Complaint, all of Plaintiffs’ state law claims against the Saul Ewing Defendants arise from alleged conduct between March 2012 and February 2015, the period during which Saul Ewing allegedly represented Laurel Gardens. Plaintiffs, however, did not sue the Saul Ewing Defendants until April 21, 2017. Because all of Plaintiffs’ state law claims are governed by the two-year limitations period set forth in 42 Pa. C.S. § 5524, all the claims are time-barred and must be dismissed. See Badger v. Stryden, No. 09-cv-3619-CDJ, 2016 WL Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 14 of 23 15 3035113, *3 (E.D. Pa. May 26, 2016) (Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate where the untimeliness of claims is evident from the allegations of the complaint.) Plaintiffs assert six state law claims against the Saul Ewing Defendants, each of which is subject to a two-year statute of limitations period: • Aiding and Abetting Breach of Fiduciary Duty (Count I): Two-year limitations period under 42 Pa. C.S. 5524(7).6 See Mallie v. Greater Del. Valley Health Care, Inc., 628 A.2d 528, 590 (Pa. Commw. Ct. 1993). • Fraud (Count VI): Two-year limitations period under 42 Pa. C.S. 5524(7). See Toy v. Metro. Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. Ct. 2004), aff’d, 928 A.2d 186 (Pa. 2007). • Conversion (Count VIII): Two-year limitations period under 42 Pa. C.S. 5524(3).7 See Kingston Coal Co. v. Felton Min. Co., 690 A.2d 284, 288 (Pa. Super. Ct. 1997) • Negligent Misrepresentation (Count IX): Two-year limitations period under 42 Pa. C.S. 5524(7). See Toy, 863 A.2d at 9. • Tortious Interference with Contract and Prospective Contractual Arrangements (Count X): Two-year limitations period under 42 Pa. C.S. 5524(7). Maverick Steel Co. v. Dick Corp., 54 A.3d 352, 355 (Pa. Super. Ct. 2012). • Civil Conspiracy (Count II): Two-year limitations period under 42 Pa. C.S. 5524(3) or (7). See Kingston Coal, 690 A.2d at 287 n.1 (“It is well-settled that the statute of limitations for conspiracy is the same as that for the underlying action which forms the basis of the conspiracy.”) The alleged acts of the Saul Ewing Defendants’ all took place before February 2015 – more than two years before Plaintiffs named the Saul Ewing Defendants in this suit. First, Mr. 6 Section 5524(7) states that the two-year limitations period applies to any “action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud ….” 42 Pa. C.S. § 5524(7). 7 Section 5524(3) states that the two-year limitations period applies to any “action for taking, detaining or injuring personal property, including actions for specific recovery thereof.” 42 Pa. C.S. § 5524(3). Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 15 of 23 16 Falcone’s acceptance of “free” landscaping services from Laurel Gardens (for which he later paid) took place sometime during or before 2014 since the McKennas, who Plaintiffs allege arranged the free landscaping, both ceased working for Laurel Gardens in 2014. (Am. Compl. ¶¶ 49, 56.) Second, Saul Ewing sent the allegedly improper $360 invoice to Laurel Gardens in August 2012, and the invoice was marked “paid” as of September 7, 2012. (Am. Compl. Exhibit U.) Finally, Mr. Snyder’s representation of Timothy McKenna in matters allegedly “in conflict” with Saul Ewing’s representation of Laurel Gardens necessarily must have occurred during Saul Ewing’s engagement with Laurel Gardens, which, according to the Amended Complaint, terminated in February 2015.8 (Am. Compl. ¶ 242.) Accordingly, Plaintiffs’ claims against the Saul Ewing Defendants – premised on alleged wrongdoing that occurred more than two years before Plaintiffs sued the Saul Ewing Defendants – are time-barred and must be dismissed. The Saul Ewing Defendants anticipate that Plaintiffs will argue that the discovery rule saves their state law claims. In this vein, at various points of the Amended Complaint, Plaintiffs refer to a “forensic analysis” performed by Asterion Consulting in February 2016, suggesting that Plaintiffs did not know the full extent of the conspiracy against them until the so-called forensic analysis was completed.9 (See Am. Compl. ¶¶ 89, 96, 147, 149, 171, and 266.) However, neither the discovery rule nor Asterion’s belated forensic analysis offers any refuge for Plaintiffs’ time-barred state law claims. Under Pennsylvania law, the discovery rule only tolls the limitations period until the 8 The Amended Complaint also suggests that Mr. Snyder’s dealings with Timothy McKenna ended in June 2014, when Mr. Snyder told Mr. McKenna that “he could no longer associate with him.” (Am. Compl. ¶ 251.) 9 It bears noting that Plaintiffs do not allege that the Asterion forensic analysis was needed to “uncover” any of the facts alleged as to the Saul Ewing Defendants. Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 16 of 23 17 plaintiff knows or through reasonable diligence should know that he or she has been injured and that the injury was caused by another’s conduct. Toy, 863 A.2d at 7 (citing Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)). For the purposes of the discovery rule, “reasonable diligence” is “a reasonable effort to discover the cause of an injury under the facts and circumstances present in the case.” Id. (quoting Crouse, 745 A.2d at 611). As courts within this District have recognized, “it is the duty of the party asserting a cause of action to properly inform himself [or herself] of the facts and circumstances upon which his or her alleged right to recovery is based within the prescribed period.”10 Robinson v. Lowe’s Home Centers, Inc., No. 06-cv-4403, 2007 WL 2739187, *1 (E.D. Pa. Sept. 19, 2007). The duty to exercise reasonable diligence is triggered when there is “some reason to awake inquiry and direct diligence in the channel in which it would be successful.” Toy, 863 A.2d at 7 (quoting Crouse, 745 A.2d at 611). Here, it is evident from the allegations of the Amended Complaint that Plaintiffs’ inquiry was “awakened,” at the latest, in November 2014, when Michael McKenna (one of the alleged kingpins of the “criminal enterprise” at issue in this case) was “caught red handed” disclosing “critical, highly confidential financial information” to his father (the other alleged kingpin). (Am. Compl. ¶ 49.) Accordingly, to the extent that a forensic analysis was needed to unravel the McKennas’ supposed conspiracy against Plaintiffs, Plaintiffs were obliged to pursue such analysis and gather the necessary information to bring suit within two years of November, 2014. See Kingston Coal, 690 A.2d at 289 (“When information is available, the failure of a plaintiff to make the proper inquiries is failure to exercise reasonable diligence as a matter of law.”) Plaintiffs failed to do so, and 10 In this respect, “[t]he Pennsylvania Superior Court has generally found the discovery rule inapplicable in cases where a plaintiff was aware of an injury and its cause but had not determined the identity of the defendants within the limitations period.” Guenther v. Quartucci, No. 94-cv-2966, 1996 WL 67616, at *2 (E.D. Pa. Feb. 12, 1996) (citing Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 501 (Pa. Super. 1984)). Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 17 of 23 18 their state law claims consequently are time-barred. Moreover, as noted above, it is evident from the Amended Complaint that Plaintiffs “discovered” the Saul Ewing Defendants’ alleged conduct by February 2015, more than two years before Plaintiffs sued the Saul Ewing Defendants. Accordingly, Plaintiffs’ state law claims against the Saul Ewing Defendants must be dismissed. See, e.g., Yates v. Commercial Index Bureau, Inc., 861 F. Supp. 2d 546, 551 (E.D. Pa. 2012) (dismissing claims as time- barred where the allegations of the complaint demonstrated that the discovery rule does not save plaintiffs’ otherwise time-barred claims). 2. None of Plaintiffs’ State Law Claims Is Sufficiently Pled Much like their RICO allegations, Plaintiffs’ allegations in support of their state law claims against the Saul Ewing fall woefully short of satisfying the elements of the claims, and all of Plaintiffs’ state law claims must be dismissed on this ground as well. (a) Aiding and Abetting Breach of Fiduciary Duty (Count I) In Count I, Plaintiffs assert a claim against the Saul Ewing Defendants (and all other defendants) for aiding and abetting breach of fiduciary duty. (Am. Compl. ¶¶ 271-278.) To state a claim under Pennsylvania law for aiding and abetting breach of fiduciary duty, a plaintiff must plead the following elements: “(1) a breach of a fiduciary duty owed to another, (2) knowledge of the breach by the aider or abettor, and (3) substantial assistance or encouragement by the aider or abettor in effecting that breach.” Pierce v. Rossetta Corp., No. 88-cv-5873, 1992 WL 165817, at *8 (E.D. Pa. June 12, 1992). Here, even assuming that the McKennas owed a fiduciary duty to Laurel Gardens and breached that duty, Plaintiffs fail to allege any facts – as opposed to bare conclusions – suggesting that any of the Saul Ewing Defendants knew of the McKennas’ supposed breach of fiduciary duty, let alone that the Saul Ewing Defendants provided “substantial assistance or encouragement” to the McKennas in connection with breaching the duty. Id. Plaintiffs do not state Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 18 of 23 19 what conduct by the McKennas (allegedly in breach of their fiduciary duty to Laurel Gardens) the Saul Ewing Defendants aided or abetted, leaving the Saul Ewing Defendants and the Court guessing as to what facts form the basis for their claim. This is inconsistent with the Twombly pleading standard, which requires more than “labels and conclusions” or “a formulaic recitation of the elements,” and Plaintiffs’ claim against the Saul Ewing Defendants for aiding and abetting breach of fiduciary duty must be dismissed. 550 U.S. at 555. (b) Fraud (Count VI) In Count VI, Plaintiffs assert a common law fraud claim against all Defendants. (Am. Compl. ¶¶ 303-310.) Under Federal Rule of Civil Procedure 9(b), “a fraud claim entails a special pleading standard.” Estate of Quigley v. E. Bay Mgmt., Inc., No. 13-cv-5547-JLS, 2014 WL 2765135, at *6 (E.D. Pa. June 18, 2014). Rule 9(b) “requires, at a minimum, that plaintiffs support their allegations of . . . fraud with all of the essential factual background that would accompany the first paragraph of any newspaper story – that is, the “who, what, when, where and how” of the events at issue.” In re Rockefeller Ctr. Properties, Inc. Sec. Litig., 311 F.3d 198, 217 (3d Cir. 2002) (internal citations and quotations omitted). To state a claim for fraud under Pennsylvania law, a plaintiff must plead the following elements: 1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Quigley, 2014 WL 2765135, at *6. Plaintiffs’ Amended Complaint does not satisfy any of these elements and does not even approach the requirements of Rule 9(b). Plaintiffs do not allege any false representation by the Saul Ewing Defendants, let alone a “material” misrepresentation made knowingly and with the intent defraud. Nor do Plaintiffs allege any damages resulting from their reliance on any Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 19 of 23 20 misrepresentation by the Saul Ewing Defendants. Purportedly in support of their fraud claim, Plaintiffs incorporate paragraphs 242- 251 of the Amended Complaint. (Am. Compl. ¶ 310.l.) But neither these paragraphs nor the rest of the Amended Complaint allege any false representation by the Saul Ewing Defendants. Plaintiffs apparently contend that Saul Ewing’s submission of the $360 invoice to Laurel Gardens constitutes a misrepresentation. However, the invoice itself contains no false (or even vague) information; rather, the invoice accurately states that it is for a meeting with Mr. and Mrs. McKenna to discuss the McKenna American restructuring: (Am. Compl. Exhibit U.) In this respect, the invoice was not “false” and Laurel Gardens could not have justifiably relied upon it. Moreover, as noted above, the email from Evan Foster to Mr. and Mrs. McKenna enclosing the invoice and directing them (not Laurel Gardens) to pay it belies any contention that Saul Ewing was acting with fraudulent intent. (Id.) (c) Conversion (Count VIII) Count VIII of the Amended Complaint purports to assert a common law conversion claim against Defendants. (Am. Compl. ¶¶ 323-327.) Under Pennsylvania law, “[c]onversion is the deprivation of another’s right of property in, or use or possession of, chattel, or otherwise interference therewith, without the owner’s consent and without lawful justification.” Binns v. Flaster Greenberg, P.C., 480 F. Supp. 2d 773, 781 (E.D. Pa. 2007) (internal citations and quotations omitted). Here, Plaintiffs do not allege what property the Saul Ewing Defendants allegedly converted. Clearly, Plaintiffs’ conversion claim cannot be based on David Falcone’s alleged acceptance of “free” Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 20 of 23 21 landscaping services from Laurel Gardens, as Plaintiffs concede that Mr. Falcone paid for these services when Laurel Gardens sent him a bill. (Am. Compl. ¶ 245.) With respect to Plaintiffs’ allegations regarding the $360 invoice, while money may be the subject of conversion, “conversion claims are disallowed where such claims are based on the same facts as the contract claim and the proper remedy lies in breach of contract.” Duane Morris, LLP v. Todi, No. 001980, Oct. Term 2001, 2002 WL 31053839, at *5 (Pa. Com. Pl. Sept. 3, 2002). Here, any dispute over the $360 invoice arises in the context of the engagement agreement between Laurel Gardens and Saul Ewing and cannot form the basis for a conversion claim. (d) Negligent Misrepresentation (Count IX) In Count IX, Plaintiffs assert a claim against all Defendants for negligent misrepresentation. (Am. Compl. ¶¶ 328-332.) Under Pennsylvania law: Negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 277 (Pa. 2005). Moreover, Pennsylvania courts follow Section 552 of the Restatement (Second) of Torts, which limits negligent misrepresentation claims to situations in which “one supplies information to others, for one’s own pecuniary gain [and] where one intends or knows that the information will be used by others in the course of their own business activities.” Id. at 285-86. As with their other claims, Plaintiffs do not articulate the factual basis for the claim and, instead merely incorporate the same ten paragraphs (¶¶ 242-251) that they rely upon for all of their other state law claims. (Am. Compl. ¶ 331.l.) Plaintiffs allege no facts demonstrating that the Saul Ewing Defendants made any misrepresentation (negligently or otherwise); nor do they allege facts from which to infer that any alleged misrepresentation falls within the limited scope of Section Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 21 of 23 22 552 of the Restatement. Accordingly, Plaintiffs’ negligent misrepresentation claim must be dismissed. (e) Tortious Interference with Contract and Prospective Contractual Arrangements (Count X) In Count X, Plaintiffs assert a claim against all Defendants for tortious interference with actual and prospective contractual relations. (Am. Compl. ¶¶ 333-337.) To state a claim for tortious interference, a plaintiff must plead the following elements: (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant’s conduct. Maverick Steel, 54 A.3d at 355. Here, Plaintiffs do not identify the actual or prospective contractual relationship with which the Saul Ewing Defendants allegedly interfered. They do not allege how the Saul Ewing Defendants interfered with any of Plaintiffs’ relationships with third parties – i.e., what “purposeful action” the Saul Ewing Defendants undertook to interfere with any relationship. Nor do they allege any damages arising from the Saul Ewing Defendants’ conduct. For these reasons, the claim must be dismissed. (f) Civil Conspiracy (Count II) Finally, in Count II, Plaintiffs assert a civil conspiracy claim against all Defendants, purportedly on the basis that all Defendants conspired with each other as to all of the other torts alleged in the Amended Complaint – and even in connection with a tort that is not pleaded in the Amended Complaint (“theft of services”). (See Am. Compl. ¶ 281.) Under Pennsylvania law, the elements of a claim for civil conspiracy are: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in pursuance Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 22 of 23 23 of the common purpose, and (3) actual legal damage. Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008). Moreover, it is well established that “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” Id. (quoting McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. Ct. 2000). Here, as set forth above, all of Plaintiffs’ tort claims fail, and Plaintiffs’ corresponding civil conspiracy claim likewise must be dismissed. Even assuming, however, that Plaintiffs can state a claim against any of the defendants for tortious conduct, Plaintiffs have failed to allege any facts showing that the Saul Ewing Defendants conspired with any of the other defendants, performed any acts in furtherance of such conspiracy, or caused any damage to Plaintiffs. Accordingly, Plaintiffs’ conspiracy claim against the Saul Ewing Defendants must be dismissed. IV. CONCLUSION For all the foregoing reasons, Defendants Saul Ewing, LLP, John Snyder and David Falcone respectfully request that the Court dismiss the Amended Complaint with prejudice. Respectfully submitted, /s/ Joseph T. Kelleher Keith R. Dutill Joseph T. Kelleher Bridget C. Giroud STRADLEY RONON STEVENS & YOUNG, LLP 2005 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 564-8000 kdutill@stradley.com jkelleher@stradley.com bgiroud@stradley.com Counsel for Defendants Saul Ewing LLP, John Snyder, and David Falcone Date: June 27, 2017 # 3258950 Case 5:17-cv-00570-JLS Document 100-1 Filed 06/27/17 Page 23 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LAUREL GARDENS, LLC, et al., Plaintiffs, v. TIMOTHY McKENNA, et al., Defendants : : : : : : : : : : : Civil Action No. 5:17-cv-00570-JLS ORDER AND NOW, this ____ day of _________________, 2017, upon consideration of the Motion of Defendants Saul Ewing LLP, John Snyder, and David Falcone (collectively, the “Saul Ewing Defendants”) to Dismiss Plaintiffs’ First Amended Complaint (the “Motion”), Plaintiffs’ opposition thereto, and the parties’ briefing thereon, it is hereby ORDERED that the Motion is GRANTED. It is further ORDERED that Plaintiffs’ claims against the Saul Ewing Defendants in the above-captioned action are DISMISSED WITH PREJUDICE. BY THE COURT: Jeffrey L. Schmehl, J. # 3269115 Case 5:17-cv-00570-JLS Document 100-2 Filed 06/27/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LAUREL GARDENS, LLC, et al., Plaintiffs, v. TIMOTHY McKENNA, et al., Defendants : : : : : : : : : : : Civil Action No. 5:17-cv-00570-JLS CERTIFICATE OF SERVICE I, Joseph T. Kelleher, hereby certify that on this date I caused the foregoing Motion of Defendants Saul Ewing LLP, John Snyder, and David Falcone to Dismiss Plaintiffs’ First Amended Complaint, together with supporting Brief and proposed Order, to be filed with the Court and served on counsel of record via the Court’s Electronic Case Filing (ECF) system. The motion papers are available for viewing and downloading via the Court’s ECF system and the Public Access to Court Electronic Records (PACER) website. /s/ Joseph T. Kelleher Keith R. Dutill Joseph T. Kelleher Bridget C. Giroud STRADLEY RONON STEVENS & YOUNG, LLP 2005 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 564-8000 kdutill@stradley.com jkelleher@stradley.com bgiroud@stradley.com Counsel for Defendants Saul Ewing LLP, John Snyder, and David Falcone Date: June 27, 2017 # 3269122 Case 5:17-cv-00570-JLS Document 100-3 Filed 06/27/17 Page 1 of 1