Masih Rassoli v. Wells Fargo And Company et al

NOTICE OF MOTION AND MOTION to Dismiss Complaint

C.D. Cal.May 12, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) ENU MAINIGI (pro hac vice application to be filed) LESLIE COOPER VIGEN (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Telephone: (202) 434-5000 Fax: (202) 434-5029 E-mail: emainigi@wc.com E-mail: lvigen@wc.com JEFFREY E. FAUCETTE (No. 193066) SKAGGS FAUCETTE LLP One Embarcadero Center, Suite 500 San Francisco, California 94111 Telephone: (415) 315-1669 Facsimile: (415) 433-5994 E-mail: jeff@skaggsfaucette.com Attorneys for Defendant CARRIE TOLSTEDT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MASIH RASSOLI, Plaintiff, v. WELLS FARGO BANK & COMPANY, a Delaware corporation; WELLS FARGO BANK, a National Association, a Federally Chartered Bank headquartered in South Dakota, JONATHAN STUMPF, an individual; CARRIE TOLSTEDT, an individual; and DOES 1 through 100, inclusive, Defendants. Case No. 2:17-cv-1003 BRO (MRWx) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BY DEFENDANT CARRIE TOLSTEDT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT (FRCP 12(b)(6)) Date: July 17, 2017 Time: 1:30 p.m. Courtroom: 7C Judge: Honorable Beverly Reid O’Connell Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 1 of 23 Page ID #:246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 2 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 17, 2017, at 1:30 p.m., or as soon thereafter as this matter may be heard by the above-entitled Court, located at 350 West 1st Street, Los Angeles, California 90012, Defendant Carrie Tolstedt will, and hereby does, move this Court to dismiss the first cause of action in the Complaint brought by Masih Rassoli pursuant to Federal Rule of Civil Procedure 12(b)(6). The first cause of action is the sole cause of action in the Complaint alleged against Ms. Tolstedt. 1 This Motion is made following the conference of counsel pursuant to L.R. 7-3 which took place in person on May 8, 2017, as well as correspondence between counsel on May 2, 5, and 7, 2017. This Motion is based on the pleadings; this Notice of Motion and Motion; the Memorandum of Points and Authorities following herein, and such other and further papers and argument as may be submitted to the Court in connection with this motion. 1 It is Ms. Tolstedt’s understanding that the other named Defendants intend to file concurrent Motions to Dismiss the Complaint’s first cause of action. To the extent those Motions raise additional arguments in support of the dismissal of the RICO claims, Ms. Tolstedt hereby adopts those arguments and incorporates them by reference. Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 2 of 23 Page ID #:247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 3 Dated: May 12, 2017 ENU MAINIGI (pro hac vice application to be filed) LESLIE COOPER VIGEN (admitted pro hac vice) WILLIAMS & CONNOLLY LLP JEFFREY E. FAUCETTE SKAGGS FAUCETTE LLP By: /s/ Jeffrey E. Faucette Attorneys for Defendant CARRIE TOLSTEDT Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 3 of 23 Page ID #:248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 II. BACKGROUND ............................................................................................. 1 A. The Allegations ..................................................................................... 1 B. Procedural History ................................................................................ 4 III. ARGUMENT .................................................................................................. 4 A. Legal Standards ..................................................................................... 4 B. Plaintiff Lacks Standing To Bring a RICO Claim ................................ 6 1. Plaintiff lacks standing under section 1962(c) ........................... 7 2. Plaintiff lacks standing under section 1962(d) ........................... 8 C. Plaintiff Fails To Plead a Viable Predicate Act .................................... 9 1. Three of Plaintiff’s claimed “racketeering activities” are not RICO predicate acts .................................................................... 9 2. Securities fraud is not a cognizable predicate act under § 1964(c) ......................................................................... 11 3. Mail and wire fraud are not pleaded with particularity ............ 11 D. Plaintiff Otherwise Fails Adequately To Plead Required Elements of a RICO Claim ................................................................. 13 1. The Complaint fails adequately to plead conduct .................... 14 2. The Complaint fails adequately to plead an enterprise ............ 14 E. The RICO Cause of Action Should Be Dismissed with Prejudice ..... 15 IV. CONCLUSION ............................................................................................. 16 Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 4 of 23 Page ID #:249 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) ii TABLE OF AUTHORITIES CASES Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388 (9th Cir. 1988) ..................... 13 Bald Eagle Area Sch. Dist. v. Keystone Fin., Inc., 189 F.3d 321 (3d Cir. 1999) ..................................................................................................................... 11 Beck v. Prupis, 529 U.S. 494 (2000) ................................................................... 1, 7, 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................ 5 Cedric Kushner Promotions Ltd. v. King, 533 U.S. 158 (2001) ............................... 14 Custom Packaging Supply, Inc. v. Phillips, Case No. 2:15-CV-04584- ODW-AGR, 2015 WL 8334793 (C.D. Cal. Dec. 7, 2015) .................................. 10 Eclectic Props. East, LLC v. Marcus & Millichap Co., No. C-09-0511 RMW, 2010 WL 384736 (N.D. Cal. Jan. 29, 2010) ............................................ 14 Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2010) ............................. 11, 12 Enriquez v. Countrywide Home Loans, 814 F. Supp. 2d 1042 (D. Haw. 2011) ..................................................................................................................... 10 Herrick v. South Bay Labor Council, No. C-04-02673 RMW, 2004 WL 2645980 (N.D. Cal. Nov. 19, 2004) ....................................................................... 8 Hill v. Opus Corp., 841 F. Supp. 2d 1070 (C.D. Cal. 2011) ..................... 6, 12, 13, 15 Howard v. Am. Online Inc., 208 F.3d 741 (9th Cir. 2000) ...................................... 5, 9 In re Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 590 F. Supp. 2d 1282 (C.D. Cal. 2008) ................................................................. 10, 11 In re Toyota Motor Corp., 785 F. Supp. 2d 883 (C.D. Cal. 2001) ...................... 11, 12 Kennedy v. Full Tilt Poker, No. CV 09-07964 MMM, 2010 WL 1710006 (C.D. Cal. Apr. 26, 2010) ........................................................................ 6 Lancaster v. Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397 (9th Cir. 1991) ........................................................................................................ 6 Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 5 of 23 Page ID #:250 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) iii Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353 (9th Cir. 2005) ........................................................................................................ 5 Malasky v. Julian, Case No. 16-cv-04102-DMR, 2016 WL 7475618 (N.D. Cal. Dec. 29, 2016) ..................................................................................... 10 Merritt v. Countrywide Fin. Corp., No. 09-cv-01179-BLF, 2015 WL 5542992 (N.D. Cal. Sept. 17, 2015) ..................................................................... 12 Mohebbi v. Khazen, 50 F. Supp. 3d 1234 (N.D. Cal. 2014) ................................ 13, 14 Moorer v. Stemgenex Med. Grp., Inc., Case No. 3:16-cv-02816-AJB- NLS, 2017 WL 1281882 (S.D. Cal. Apr. 6, 2017) ............................................... 15 Powers v. Wells Fargo Bank N.A., 439 F.3d 1043 (9th Cir. 2006) ........................... 11 Quach v. Cross, No. CV0309627GAFRZX, 2004 WL 2860346 (C.D. Cal. June 10, 2004) ................................................................................................. 9 Reddy v. Litton Indus., Inc., 912 F.2d 291 (9th Cir. 1990) .................................. 1, 7, 8 Sanford v. MemberWorks, Inc., 625 F.3d 550 (9th Cir. 2010) ........................ 6, 14, 15 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) ............................................... 5, 7 Summerfield v. Strategic Lending Corp., No. C09-026-09 HRL, 2010 WL 3743897 (N.D. Cal. Sept. 20, 2010) ................................................................ 8 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ............................................ 6, 15 Trachsel v. Buchholz, No. C-08-02248 RMW, 2009 WL 86698 (N.D. Cal. Jan. 9, 2009) .................................................................................................. 11 United States v. Mongol Nation, 132 F. Supp. 3d 1207 (C.D. Cal. 2015) ................ 14 Vega v. Ocwen Fin. Corp., No. 2:14-cv-04408-ODW(PLAx), 2015 WL 1383241 (C.D. Cal. Mar. 24, 2015) ........................................................................ 9 STATUTES 18 U.S.C. § 1341 ........................................................................................................ 11 18 U.S.C. § 1343 ........................................................................................................ 11 18 U.S.C. § 1961 ...................................................................................... 5, 8, 9, 10, 14 Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 6 of 23 Page ID #:251 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) iv 18 U.S.C. § 1962 ................................................................................................. passim 18 U.S.C. § 1964(c) ........................................................................................... 5, 9, 11 California Penal Code § 502 .............................................................................. 3, 9, 10 California Penal Code § 530.5(a) ...................................................................... 3, 9, 10 Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 ........................................................ 3, 10 RULES Federal Rule of Civil Procedure 4(d)(3) ...................................................................... 4 Federal Rule of Civil Procedure 9(b) ................................................................. passim Federal Rule of Civil Procedure 12(b)(6) .................................................................... 5 Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 7 of 23 Page ID #:252 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims represent a transparent attempt to take advantage of recent headlines to transform a routine wrongful termination lawsuit into what Plaintiff undoubtedly hopes will be a more lucrative action. Unfortunately for Plaintiff, unambiguous and binding Supreme Court and Ninth Circuit precedent make plain that he does not have standing to sue under RICO. See Beck v. Prupis, 529 U.S. 494 (2000); Reddy v. Litton Indus., Inc., 912 F.2d 291 (9th Cir. 1990). And even if he did, the Complaint nonetheless fails to state a claim with respect to necessary elements of a RICO cause of action. These deficiencies are obvious and uncorrectable. As such, Plaintiff’s RICO claims should be dismissed with prejudice. Because RICO is the only cause of action brought against Ms. Tolstedt, she should be dismissed from this lawsuit entirely. II. BACKGROUND A. The Allegations According to the Complaint, Plaintiff Masih Rassoli is a former employee of Defendants Wells Fargo & Company and Wells Fargo Bank, N.A., which he refers to collectively as “Wells Fargo.” Compl. ¶¶ 3-4, 17 [Dkt. 1-1]. Between September 2012 and August 2016, he served in various positions in three different California-based Wells Fargo branches, most recently as branch manager. Id. ¶ 17. Plaintiff was terminated in August 2016 after being investigated for violating company ethics. Id. ¶ 22. Plaintiff claims that, a few months before his termination, in approximately April 2016, he determined that Wells Fargo’s “business practices . . . in regard to the sale of solutions was [sic] unethical,” Id. ¶ 19. Plaintiff allegedly complained about Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 8 of 23 Page ID #:253 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 2 sales quotas to his supervisors between April and July of 2016, saying they “forced improper and unethical business practices to fraudulently open accounts without the knowledge or approval of customers.” Id. ¶ 20. Plaintiff does not claim that he participated in, personally observed, or was directed to engage in such behavior. He does assert, however, that he was terminated “as a result of his protesting the fraudulent activities of the enterprise.” Id. ¶ 27. Separately, the Complaint makes “RICO Allegations,” which, on their face, appear to have been drawn from news reports, rather than Plaintiff’s personal knowledge. See id. ¶¶ 9-16. Because Ms. Tolstedt is named only in the RICO cause of action, these “RICO Allegations” and those comprising the “First Cause of Action,” see id. ¶¶ 23-30, are the only assertions relevant to her. The Complaint references Ms. Tolstedt specifically only once, making allegations as to her place of residence and job title. Id. ¶ 5. Beyond that, she is referred to collectively with Defendant Jonathan Stumpf, former Chief Executive Officer of Wells Fargo, id. ¶ 5, and 80 unnamed fictitious defendants claimed to be other “officers and/or senior manager[s] of Wells Fargo” as “the Individual Defendants,” id. ¶ 7.2 The Complaint exclusively employs this group pleading device, lumping Ms. Tolstedt together with 81 other “Individual Defendants,” throughout the relevant sections. It makes no specific substantive allegation concerning Ms. Tolstedt. The Complaint further alleges that “there is such a unity of interest and ownership between and among all Defendants”-including Wells Fargo-“that any separateness between them has ceased to exist, such that Defendants, and each of them, are the alter egos of each other.” Id. ¶ 8. Read broadly, therefore, each allegation involving the “Individual Defendants” also 2 The Complaint elsewhere refers to 100 fictitious defendants. Compl. ¶ 6. It is unclear who the additional 20 unnamed defendants are meant to be. Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 9 of 23 Page ID #:254 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 3 includes both Wells Fargo defendants. The Complaint alleges that the “Individual Defendants” engaged in six purported acts of “racketeering activity”: (1) mail fraud; (2) wire fraud; (3) “security [sic] fraud”; (4) “misusing customer information” in violation of California Penal Code § 530.5(a); (5) “accessing and without permission using customer information to defraud or deceive” in violation of California Penal Code § 502(c); and “failing to keep and protect customer information from unauthorized access or use” as required by the Gramm-Leach-Bliley Act. Id. ¶ 26. The Complaint makes several allegations as to how the “Individual Defendants” participated in the conduct of the enterprise. Id. ¶ 25. These include claims that the 82 “Individual Defendants”: • “[C]reated, implemented, and/or ratified the development of fraudulent and unlawful practices to sell financial products,” id. ¶ 25(c); • “[W]ere aware of and ratified the widespread fraud perpetrated by Wells Fargo employees on Wells Fargo customers,” id. ¶ 25(d); • “[P]articipated in the preparation of reports to the Securities Exchange Commission (SEC) that . . . conceal[ed] the fraudulent practices” for the purpose of “increas[ing] the market value of Wells Fargo stock,” id. ¶ 25(f); and • “[R]eport[ed] to the financial community the success of Wells Fargo’s cross-selling program, while concealing the fraudulent practices used to achieve the numbers reported” in order to “increase the market value of Wells Fargo shares,” id. ¶ 25(g). The Complaint’s “RICO Allegations” make further generalized claims about the alleged conspiracy of the 82 “Individual Defendants” to “implement a fraudulent business plan,” the alleged crux of which was to require employees to sell products to customers. Id. ¶¶ 9-12. The Complaint also makes non-specific allegations Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 10 of 23 Page ID #:255 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 4 about the “Individual Defendants” developing, and training employees to implement, practices such as opening unauthorized checking accounts. Id. ¶ 12. Again, Plaintiff claims no personal knowledge of the “Individual Defendants’” alleged behavior. Plaintiff asserts he was injured by the RICO conduct because he was fired in furtherance of the conspiracy, as a result of his complaints about the alleged RICO activities. Id. ¶ 27. He claims “loss of salary and benefits” as damages. Id. ¶ 28. B. Procedural History Plaintiff filed this suit on December 22, 2016 in Los Angeles Superior Court. Named as defendants were Wells Fargo Bank & Company; Wells Fargo Bank; N.A.; Jonathan Stumpf; Ms. Tolstedt; and 100 fictitious “Doe” defendants. The Complaint alleged three causes of action: (1) RICO violations against Mr. Stumpf, Ms. Tolstedt, and the “Doe” defendants; (2) wrongful termination under California law against the Wells Fargo defendants; and (3) wrongful termination “in violation of public policy” against the Wells Fargo defendants. On February 7, 2017, the Wells Fargo defendants answered, denying all claims against them. [Dkt. 1-4.] On February 8, 2017, the Wells Fargo defendants removed to this Court on federal question grounds. [Dkt. 1.] On March 13, 2017, Plaintiff requested that Ms. Tolstedt waive service, and Ms. Tolstedt, through counsel, agreed. [Dkt. 17.] Accordingly, Ms. Tolstedt’s deadline to file a responsive pleading is May 12, 2017. Fed. R. Civ. P. 4(d)(3). III. ARGUMENT The Complaint fails to state a claim for violation of RICO under either 18 U.S.C. § 1962(c) or 18 U.S.C. § 1962(d)-the only claims brought against Ms. Tolstedt. Accordingly, the first cause of action should be dismissed, and Ms. Tolstedt should be dismissed from this lawsuit. A. Legal Standards Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 11 of 23 Page ID #:256 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 5 Section 1962(c) prohibits persons who are “employed by or associated with any enterprise” from participating “in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” “Racketeering activity” is defined by 18 U.S.C. § 1961(1) as certain specific categories of state law offenses, as well as an enumerated list of federal crimes. RICO provides private citizens standing to sue for violations of 18 U.S.C. § 1962 only where a plaintiff was “injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (“[T]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” (emphasis added)). “[C]onduct that would have been actionable as fraud in the purchase or sale of securities” cannot be used to demonstrate racketeering activity in the private civil litigation context. 18 U.S.C. § 1964(c). Accordingly, for a private individual to state a claim under § 1962(c), he or she must allege facts showing “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing injury to plaintiff’s business or property (‘RICO injury’).” Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005). As relevant here, § 1962(d) prohibits conspiring to violate § 1962(c). To plead a conspiracy to violate RICO, a plaintiff must allege a viable claim for a substantive violation of RICO. Howard v. Am. Online Inc., 208 F.3d 741, 751 (9th Cir. 2000). Therefore, a § 1962(d) claim must be dismissed where a plaintiff has failed adequately to plead a violation of § 1962(c). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) should be granted if a complaint fails to plead sufficient facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Further, to survive a motion to dismiss, RICO predicate acts involving fraud must be pleaded with particularity pursuant to Federal Rule of Civil Procedure 9(b). Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 12 of 23 Page ID #:257 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 6 See, e.g., Lancaster v. Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991); Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1088-89 (C.D. Cal. 2011). With respect to allegations of fraud, a complaint is insufficient unless it alleges, at a minimum, “the time, place, and manner of each predicate act [sounding in fraud], the nature of the scheme involved, and the role of each defendant in the scheme.” Hill, 841 F. Supp. 2d at 1088. Such allegations must be “pled with specificity.” Id. at 1089. Nor is “collective pleading”-“repeated references to an unspecified ‘defendant’ or ‘defendants’ who committed the various acts in question”-sufficient to satisfy Rule 9(b). Id. at 1102; see also Kennedy v. Full Tilt Poker, No. CV 09-07964 MMM (AGRx), 2010 WL 1710006, at *4-5 (C.D. Cal. Apr. 26, 2010). Courts regularly dismiss claims that do not meet these pleading requirements. See, e.g., Sanford v. MemberWorks, Inc., 625 F.3d 550, 557-59 (9th Cir. 2010). If amendment would be futile, dismissal with prejudice is warranted. See, e.g., id. at 558-59; Swartz v. KPMG LLP, 476 F.3d 756, 761 (9th Cir. 2007). Here, Plaintiff’s Complaint suffers from a number of defects, any one of which would be sufficient grounds for dismissal. First, the Complaint fails to allege RICO injury. As such, Plaintiff lacks standing to bring his RICO claims. Second, Plaintiff fails adequately to plead a predicate act that is cognizable under §§ 1961(1) and 1964(c). Third, Plaintiff’s allegations are too generalized and vague to meet the pleading standards of other essential elements of a RICO cause of action. Any one of these pleading defects requires dismissal; their nature and collective weight makes it futile for Plaintiff to amend his Complaint. As such, the RICO cause of action should be dismissed with prejudice. B. Plaintiff Lacks Standing To Bring a RICO Claim. It has been the law of this Circuit for more than twenty-five years that a plaintiff who claims to have been wrongfully terminated for refusal to participate in a RICO scheme does not have standing to sue under 18 U.S.C. § 1962(c) or Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 13 of 23 Page ID #:258 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 7 U.S.C. § 1962(d). Reddy v. Litton Indus., Inc., 912 F.2d 291, 294-95 (9th Cir. 1990). The Supreme Court has since confirmed this holding with respect to § 1962(d). Beck v. Prupis, 529 U.S. 494, 505-07 (2000). The alleged facts here are materially indistinguishable from those in Reddy and Beck. Controlling case law therefore requires dismissal of Plaintiff’s RICO claims for lack of standing. 1. Plaintiff lacks standing under section 1962(c). As explained, 18 U.S.C. § 1964(c) limits standing to sue for an alleged violation of § 1962 to those private plaintiffs who have “been injured in [their] business or property by the conduct constituting the violation.” Sedima, 473 U.S. at 496. With respect to § 1962(c), the plaintiff’s harm must be “caused by the[] predicate acts of racketeering.” Reddy, 912 F.2d at 294. The Ninth Circuit in Reddy held that a plaintiff claiming damages resulting from his termination for reporting alleged RICO violations did not have standing to sue under § 1962(c). Id. There, the plaintiff alleged that his employer was bribing a foreign sovereign to secure military contracts. Id. at 292. Reddy allegedly reported this bribery scheme to his superiors, and was fired as a result. Id. at 293. There was no allegation that Reddy suffered damages as a direct result of the purported bribery scheme. See id. Upon these facts, the court had little trouble concluding that “the injury [plaintiff] suffered was the result of his alleged wrongful termination and was not caused by the predicate RICO acts.” Id. at 294. The plaintiff in Reddy thus failed to demonstrate that “the harm he suffered was caused by the[] predicate acts of racketeering,” and he therefore lacked standing to sue under RICO. Id. So too, here. Plaintiff alleges that his “employment with Wells Fargo was terminated as a result of his protesting the fraudulent activities of the enterprise,” Compl. ¶ 27, and as a result, he “sustained economic damages in loss of salary and benefits,” id. ¶ 28. In other words, Plaintiff asserts he protested the alleged RICO scheme, was fired as a result, and suffered damages as a consequence of losing his Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 14 of 23 Page ID #:259 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 8 job. These allegations are materially indistinguishable from those in Reddy. See 912 F.2d at 294. As such, Plaintiff similarly lacks standing to sue for failure to allege an injury “caused by the predicate RICO acts,” and his claim must be dismissed. See id.; see also Herrick v. South Bay Labor Council, No. C-04-02673 RMW, 2004 WL 2645980, at *3 (N.D. Cal. Nov. 19, 2004) (“[A]n employee who is wrongfully discharged for refusing to participate in an alleged pattern of racketeering lacks standing to sue under the RICO statutes.”). 2. Plaintiff lacks standing under section 1962(d). Similarly, Plaintiff lacks standing to sue under § 1962(d). The Supreme Court’s decision in Beck v. Prupis makes this plain. See 529 U.S. at 506. In Beck, the plaintiff alleged that his employer was engaging in various RICO predicate acts, including bribery, embezzlement, and securities fraud. Id. at 498. Beck claimed he discovered the unlawful conduct, reported it to regulators, and was thereafter fired under false pretenses. Id. The plaintiff alleged that his termination was an overt act in furtherance of the alleged RICO conspiracy, and that his harm was therefore caused by his former employers’ violation of § 1962(d). Id. at 499. The Court disagreed. Instead, it made clear that a plaintiff “cannot bring suit under RICO based on injury caused by any act in furtherance of a conspiracy”; the injury must be caused by “an act that is independently wrongful under RICO.” Id. at 505- 06. Termination of employment is not “an act that is independently wrongful under RICO.” See id.; see also 18 U.S.C. § 1961(1) (listing RICO predicate acts); Summerfield v. Strategic Lending Corp., No. C09-026-09 HRL, 2010 WL 3743897, at *4 n.5 (N.D. Cal. Sept. 20, 2010) (“[W]hile [plaintiff’s] employment and subsequent termination . . . might be considered overt acts that were parts of [d]efendants’ alleged RICO conspiracy, these acts are not predicate acts of racketeering activity under RICO.”). Plaintiff has alleged no other injury here. His Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 15 of 23 Page ID #:260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 9 RICO cause of action must therefore be dismissed for lack of standing pursuant to Reddy and Beck. C. Plaintiff Fails To Plead a Viable Predicate Act. To state a RICO claim, a “plaintiff must plead and prove the existence of a ‘pattern’ of racketeering activity,” which the RICO statue defines as a variety of enumerated state and federal law violations. See Quach v. Cross, No. CV0309627GAFRZX, 2004 WL 2860346, at *5 (C.D. Cal. June 10, 2004) (citing 18 U.S.C. § 1961(1)). But Plaintiff here has failed adequately to allege a single act of racketeering activity. Of the six alleged unlawful acts enumerated in the Complaint, three are not RICO predicate acts under § 1961(1), and therefore cannot support a RICO claim. See Vega v. Ocwen Fin. Corp., No. 2:14-cv-04408- ODW(PLAx), 2015 WL 1383241, at *13 (C.D. Cal. Mar. 24, 2015) (dismissing RICO claim because conduct alleged was “not a recognized RICO predicate act”). Similarly, conduct that would be actionable as securities fraud cannot form the basis of a RICO claim under § 1964(c). See Howard, 208 F.3d at 749. The only two potentially cognizable RICO predicate acts the Complaint identifies-mail and wire fraud-fail because the Complaint’s allegations do not satisfy the heightened pleading requirements of Rule 9(b). Plaintiff has thus failed to allege an essential element of a RICO claim, requiring dismissal. 1. Three of Plaintiff’s claimed “racketeering activities” are not RICO predicate acts. Three of Plaintiff’s alleged unlawful activities, Compl. ¶ 25(d)-(f), are not recognized as racketeering activity under the RICO statute. They cannot, by definition, be RICO predicate acts. See Vega, 2015 WL 1383241, at *13. First, the Complaint alleges unlawful access and misuse of customer information in violation of California state law-specifically, California Penal Code §§ 502(c) and 530.5(a). Compl. ¶ 25(d), (e). But the only state crimes recognized Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 16 of 23 Page ID #:261 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 10 as RICO predicate acts are “act[s] or threat[s] involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance . . . which [are] . . . punishable by imprisonment for more than one year.” Neither § 502(c) nor § 530.5(a) qualifies. California Penal Code § 502 “is an anti-hacking statute intended to prohibit the unauthorized use of any computer system for improper or illegitimate purpose.” Custom Packaging Supply, Inc. v. Phillips, Case No. 2:15-CV-04584-ODW-AGR, 2015 WL 8334793, at *3 (C.D. Cal. Dec. 7, 2015). Unauthorized use of computer systems is not a crime of the character identified in § 1961(1). The “improper purpose” alleged in the Complaint-“to defraud or deceive,” Compl. ¶ 25(e)-is also not a recognized predicate act. See Malasky v. Julian, Case No. 16-cv-04102- DMR, 2016 WL 7475618, at *7 (N.D. Cal. Dec. 29, 2016) (“Neither common law fraud nor simple theft is a crime constituting a predicate act for purposes of establishing a pattern of racketeering activity.”). Nor is the illegal conduct identified in California Penal Code § 530.5(a), which criminalizes “obtain[ing] personal identifying information . . . for any unlawful purpose.” Moreover, a violation of § 530.5(a) is punishable by a maximum of less than one year in jail; it thus cannot be a RICO predicate act. The allegation of failure “to keep and protect customer personal information from unauthorized access or use” in violation of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, fares no better. See Compl. ¶ 25(f). Not only is it not a predicate act under § 1961(1), the Gramm-Leach-Bliley Act also “does not provide for a private right of action.” Enriquez v. Countrywide Home Loans, 814 F. Supp. 2d 1042, 1061 (D. Haw. 2011). Litigants cannot use RICO to create a backdoor private right of action where Congress has not. See In re Epogen & Aranesp Off-Label Mktg. & Sales Practices Litig., 590 F. Supp. 2d 1282, 1290 (C.D. Cal. 2008) (“[T]he FDCA provides no private right of action for violations thereof, and what the FDCA does Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 17 of 23 Page ID #:262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 11 not create directly, RICO cannot create indirectly.”). 2. Securities fraud is not a cognizable predicate act under § 1964(c). Plaintiff’s securities fraud allegations do not qualify as predicate acts in the private civil litigation context. Section 1964(c) of the RICO statute explicitly carves out securities fraud from the definition of racketeering activity, providing that “no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.” 18 U.S.C. § 1964(c); see also Powers v. Wells Fargo Bank N.A., 439 F.3d 1043, 1045 (9th Cir. 2006). Accordingly, Plaintiff may not base his RICO claim on the allegation that Defendants engaged in “security [sic] fraud.” Compl. ¶ 26(c). The remaining alleged predicate acts are mail fraud in violation of 18 U.S.C. § 1341, and wire fraud in violation of 18 U.S.C. § 1343. Compl. ¶ 25(a), (b). To the extent the alleged mail and wire fraud violations are based on the same conduct as the alleged securities fraud violation, such conduct cannot support a RICO claim brought pursuant to § 1964(c). That provision “prevent[s] a plaintiff from pleading other specified offenses, such as mail or wire fraud, as predicate acts under civil RICO if such offenses are based on conduct that would have been actionable as securities fraud.” Trachsel v. Buchholz, No. C-08-02248 RMW, 2009 WL 86698, at *3 (N.D. Cal. Jan. 9, 2009) (quoting Bald Eagle Area Sch. Dist. v. Keystone Fin., Inc., 189 F.3d 321, 327 (3d Cir. 1999)). 3. Mail and wire fraud are not pleaded with particularity. To the extent Plaintiff’s mail and wire fraud allegations are based on conduct that would not qualify as securities fraud, they are inadequately pleaded. Where an alleged predicate act involves fraud, the pleading requirements of Rule 9(b) apply. See In re Toyota Motor Corp., 785 F. Supp. 2d 883, 918 (C.D. Cal. 2001). This requires a plaintiff to plead with particularity “the time, place, and specific content of the false representations as well as the identities of the parties to the Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 18 of 23 Page ID #:263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 12 misrepresentation.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2010). “Courts have been particularly sensitive to [Rule 9(b)’s] pleading requirements in RICO cases in which the ‘predicate acts’ are mail fraud and wire fraud, and have further required specific allegations as to which defendant caused what to be mailed (or made which telephone calls), and when and how each mailing (or telephone call) furthered the fraudulent scheme.” Hill, 841 F. Supp. 2d at 1089 (internal quotations and citations omitted). The Complaint here falls far short of these requirements. The only two specific allegations of mail or wire fraud are the conclusory statements that the Individual Defendants committed mail fraud “by devising, implementing and/or ratifying the practice of Wells Fargo employees to fraudulently use the U.S. mail,” and committed wire fraud “by devising, implementing and/or ratifying the practice of Wells Fargo employees to fraudulently use interstate wire . . . for the purpose of defrauding Wells Fargo customers.” Compl. ¶ 26(a), (b). These allegations are deficient in numerous respects. They do not specify when any allegedly fraudulent use of mail or wires occurred, nor do they specify where any of them occurred. See Hill, 841 F. Supp. 2d at 1089. They do not include a single allegation about the “specific content” of the communications sent over mail or wire. See Edwards, 356 F.3d at 1066. They do not identify which of the 82 Individual Defendants was involved in which communication. See In re Toyota Motor Corp., 785 F. Supp. 2d at 919 (“A plaintiff may not simply lump together multiple defendants without specifying the role of each defendant in the fraud.”); see also Merritt v. Countrywide Fin. Corp., No. 09-cv-01179-BLF, 2015 WL 5542992, at *15 (N.D. Cal. Sept. 17, 2015) (disapproving of pleadings in which defendants are “grouped together with a laundry list of alleged misrepresentations . . . with no way to distinguish who did what”). Indeed, the Complaint does no more than list the crimes of mail and wire fraud. This is plainly insufficient. See Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 19 of 23 Page ID #:264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 13 Mohebbi v. Khazen, 50 F. Supp. 3d 1234, 1255 (N.D. Cal. 2014) (dismissing RICO claim based on mail and wire fraud because “[p]laintiff’s mere listing of such alleged crimes, without supporting, particularized factual pleadings as required under Rule 9(b), is not enough to survive a motion to dismiss”). Moreover, the vague allegations give Ms. Tolstedt no notice as to what specific allegations are being made against her, the exact problem that Rule 9(b) is designed to address. See Hill, 841 F. Supp. 2d at 1102 (plaintiff failed to allege RICO conduct because “vague and unspecified references to ‘defendants’” do not satisfy Rule 9(b)). The only instance in which the Complaint distinguishes Ms. Tolstedt from the other Individual Defendants is as to her place of residence and her title at Wells Fargo. See Compl. ¶ 5. Not once does it attribute RICO conduct specifically to her, and not once does it allege how she specifically participated in the allegedly fraudulent scheme. As the Ninth Circuit has recognized, RICO claims that are based on “entirely general” allegations of mail and wire fraud with “no specifics of time, place, or nature of the alleged communications” do not properly allege a violation of the RICO statute. See Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). The Complaint here fits that description perfectly. For all of these reasons, Plaintiff has failed to adequately allege racketeering activity, and thus has failed to state a claim under RICO. D. Plaintiff Otherwise Fails Adequately To Plead Required Elements of a RICO Claim. Were the Complaint’s utter failure to plead a RICO injury or predicate act somehow insufficient to support dismissal of his RICO claims, Plaintiff’s allegations still fail for the additional reason that they do not adequately allege other requirements of a RICO cause of action, including the conduct of an alleged RICO enterprise, or the existence of a distinct RICO enterprise. These pleading Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 20 of 23 Page ID #:265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 14 deficiencies provide yet additional grounds for dismissal. 1. The Complaint fails adequately to plead conduct. To successfully plead a RICO claim, Plaintiff must allege facts establishing that Ms. Tolstedt conducted or participated in the conduct of an alleged RICO enterprise. See 18 U.S.C. § 1962(c). Plaintiff falls woefully short of this requirement. Rather than detailing the role that Ms. Tolstedt allegedly played in the fraudulent scheme, the Complaint groups her together with Mr. Stumpf and eighty unidentified “Doe” defendants, making no attempt to distinguish between them. Courts do not hesitate to dismiss RICO claims when they are based on allegations as vague as these. See Sanford, 625 F.3d at 557-59 (upholding dismissal of RICO claim with prejudice for failure to plead with particularity); see also Mohebbi, 50 F. Supp. 3d at 1255; Eclectic Props. East, LLC v. Marcus & Millichap Co., No. C-09-0511 RMW, 2010 WL 384736, at *3 (N.D. Cal. Jan. 29, 2010). 2. The Complaint fails adequately to plead an enterprise. Plaintiff has also failed to allege the existence of a distinct RICO enterprise, another required element of a RICO claim. The RICO statute defines an enterprise as an “individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(3). Crucially, to state a claim under § 1962(c), the enterprise must be distinct from the RICO defendants, because a RICO claim “depends on a showing that the defendants conducted or participated in the conduct of the ‘enterprise’s affairs,’ not just their own affairs.” Cedric Kushner Promotions Ltd. v. King, 533 U.S. 158, 162 (2001). In other words, “an organization cannot join with its own members to do that which it normally does and thereby form an enterprise separate and apart from itself.” United States v. Mongol Nation, 132 F. Supp. 3d 1207, 1222 (C.D. Cal. 2015) (internal quotations and citations omitted). Although the Complaint never explicitly identifies the RICO enterprise, it Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 21 of 23 Page ID #:266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 15 appears to allege that Wells Fargo itself is the enterprise with which Ms. Tolstedt allegedly associated in conducting the purported fraudulent scheme. See Compl. ¶ 24. However, the Complaint expressly disavows the notion that Ms. Tolstedt is distinct from Wells Fargo. Instead, it alleges that “there is such a unity of interest and ownership between and among all Defendants that any separateness between them has ceased to exist, such that Defendants, and each of them, are the alter egos of each other.” Id. at ¶ 8. This admission compels the conclusion that Plaintiff has failed to allege a distinct RICO enterprise, and thus failed to state a RICO claim. See Moorer v. Stemgenex Med. Grp., Inc., Case No. 3:16-cv-02816-AJB-NLS, 2017 WL 1281882, at *12-13 (S.D. Cal. Apr. 6, 2017) (dismissing RICO claim for failure to plead an enterprise because plaintiff alleged defendant employees were alter egos of the corporation). E. The RICO Cause of Action Should Be Dismissed with Prejudice. As the preceding pages demonstrate, there are a laundry list of problems with Plaintiff’s RICO claims. Although leave to amend is generally granted liberally, courts should not hesitate to dismiss claims with prejudice where pleadings are so defective that they are unlikely to be cured by amendment. See Hill, 841 F. Supp. 2d at 1103. Such is the case here. No amendment, for example, would alter the fact that Plaintiff suffered no injury other than termination of his employment, which does not provide him standing to sue. Nor would amendment change the fact that certain of Plaintiff’s alleged illegal acts are not RICO predicate acts. See Swartz, 476 F.3d at 761. And given that Plaintiff appears to have no personal knowledge of any of the alleged acts of mail or wire fraud, he is not in a position to replead the alleged racketeering activity with the requisite level of particularity. See Sanford, 625 F.3d at 558-59. Because amendment would be futile, the Court should dismiss Plaintiff’s RICO claims with prejudice. Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 22 of 23 Page ID #:267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT CARRIE TOLSTEDT’S MOTION TO DISMISS: CASE NO.: 2:17-cv-1003 BRO (MRWx) 16 IV. CONCLUSION For the foregoing reasons, Ms. Tolstedt’s Motion to Dismiss should be granted, Plaintiff’s RICO cause of action should be dismissed with prejudice, and Ms. Tolstedt should be dismissed as a defendant. Dated: May 12, 2017 ENU MAINIGI (pro hac vice application to be filed) LESLIE COOPER VIGEN (admitted pro hac vice) WILLIAMS & CONNOLLY LLP JEFFREY E. FAUCETTE SKAGGS FAUCETTE LLP By: /s/ Jeffrey E. Faucette Attorneys for Defendant CARRIE TOLSTEDT Case 2:17-cv-01003-BRO-MRW Document 38 Filed 05/12/17 Page 23 of 23 Page ID #:268 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MASIH RASSOLI, Plaintiff, v. WELLS FARGO BANK & COMPANY, a Delaware corporation; WELLS FARGO BANK, a National Association, a Federally Chartered Bank headquartered in South Dakota, JONATHAN STUMPF, an individual; CARRIE TOLSTEDT, an individual; and DOES 1 through 100, inclusive, Defendants. Case No. 2:17-cv-1003 BRO (MRWx) [PROPOSED] ORDER GRANTING MOTION TO DISMISS BY DEFENDANT CARRIE TOLSTEDT Case 2:17-cv-01003-BRO-MRW Document 38-1 Filed 05/12/17 Page 1 of 2 Page ID #:269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendant Carrie Tolstedt’s Motion to Dismiss came on regularly for hearing on July 17, 2017. The Court, having considered all papers filed by the parties in favor of and in opposition to the Motion to Dismiss, such oral arguments made at the hearing, and all other matters deemed to be appropriate by the Court, and good cause appearing therefor, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss is GRANTED WITHOUT LEAVE TO AMEND. Dated: July __, 2017 HONORABLE BEVERLY REID O’CONNELL UNITED STATES DISTRICT COURT JUDGE Case 2:17-cv-01003-BRO-MRW Document 38-1 Filed 05/12/17 Page 2 of 2 Page ID #:270