Defendants conspired within the meaning of 18 U.S.C. § 1962(d) to violate 18 U.S.C. §§ 1962(c). In particular, Defendants conspired to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity within the meaning of 18 U.S.C. §§ 1961(1) and 1961(5) and § 1962(c), to wit: (a) Multiple instances of mail fraud in violation of 18 U.S.C. § 1341; and (b) Multiple instances of wire fraud in violation of 18 U.S.C. § 1343. 33 Case 1:07-cv-03494-DLC Document 54 Filed 08/24/2007 Page 49 of 56 106.

Even if the sending of these emails somehow constituted a RICO predicate act, neither individual could have committed “at least two acts of racketeering activity.” 18 U.S.C. § 1961(5). Nor does Mr. Ficken allege any possible predicate act on the part of Kurt Stache, whether in the form of a communication or otherwise; as noted earlier, Mr. Ficken does not even allege that Kurt Stache was affiliated with the Aadvantage Marketing Program when the events described in the Complaint allegedly occurred.

A “pattern of racketeering activity” is defined as “at least two acts of racketeering activity” within ten years of each other. 18 U.S.C. § 1961(5) and see Howard v. Am. Online Inc., 208 F.3d 741 (9th Cir. 2000). “[T]o prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.”

17 A “pattern” is demonstrated by two or more instances of “racketeering activity” (“predicate acts”) that occur within ten years of one another. 18 U.S.C. § 1961(5). In this case, the alleged predicate acts of mail and wire fraud committed and/or aided and abetted by Defendants CPG and Helgeson are alleged with particularity in ¶¶ 7-19 and 76 of the FAC.

Defendants NAAMC, NAHC and NAC were not involved and did not sign any contracts with the plaintiff. The United States Supreme Court has stated that mere allegations that a defendant committed at least two predicate acts from among the acts enumerated in 18 U.S.C.A. §1961(1) does not of itself constitute a "pattern" for RICO purposes: To show a pattern under RICO, plaintiffs must prove that there are a sufficient number of predicate acts "indictable" as mail or wire fraud. See 18 U.S.C. §§ 1961(1)(B), 1962(c). Howard v America Online, Inc. 208 F.3d 741, 746 (9th Cir. 2000). However, simply citing acts as part of a RICO pattern, without Case3:15-cv-01373-VC Document26 Filed05/20/15 Page19 of 34 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 MOTION TO DISMISS COMPLAINT BY DEFENDANTS NAAMC, NAC, NAHC. - 10 - proving that they are indictable, is not sufficient. Howard, 208 F.3d at 746

This is incorrect. Under RICO 18 U.S.C. § 1961(4) an “enterprise” includes any legal entity, such as an LLC like Statix Enterprises, LLC28 and can alternatively expand to include a non-legal entity that encompasses a group of individuals as an association-in- fact enterprise.29 Here, there is no need to do an association-in-fact analysis because Statix is a legal entity and thus a RICO enterprise.30 26 See 18 U.S.C. §1961(4). 27 See Complaint ¶¶ 7, 8, 34, 20-64 and 75-93. 28 Landry v. PosiGen, Inc., 2018 WL 806227, *3 (E.D. La. February 8, 2018) (a limited liability company is a RICO enterprise) (slip copy).

“RICO defines an enterprise as ‘any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’” Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673 (5th Cir. 2015); see also 18 U.S.C. § 1961(4).

FAC ¶¶392-93. Because IUOE and EPEC are “associated in fact although not a legal entity,” 18 U.S.C. §1961(4), the alleged enterprise of “IUOE and its associated EPEC fund” must satisfy the requirements for an associated-in-fact enterprise under RICO. See Boyle v. United States, 556 U.S. 938, 944-45 (2009); Odom v. Microsoft Corp., 486 F.3d 541, 548, 552 (9th Cir. 2007).

Ingram, No. CIV S082490FCDDADPS, 2009 WL 2941463, citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980). Here, Plaintiff only makes one mention of 42 U.S.C. § 1983 in all of his FAC, stating on the caption page, “18 U.S.C. 1961, 1964 et seq.; 18 U.S.C. 1962, 1963 et seq.; (Civil RICO Remedies); and, 5th and 14th Amendment Civil Rights Due Process Violations (enacted by Congress with Specific Reservations) in pari materia with the Supremacy Clause in the U.S. Constitution: also under Section 1983 of Title 42 of the United States Code.

V. BECAUSE THE RICO COUNT IS THE SOLE BASIS FOR THIS COURT’S SUBJECT MATTER JURISDICTION, THIS COURT SHOULD DISMISS ALL REMAINING CLAIMS As with the federal RICO count, the Second Amended Complaint’s Florida RICO and RICO conspiracy counts (Counts VI and VII) are based on allegations of fraud, with the identical three statutory predicates enumerated in § 1961(1) alleged: violation of 18 U.S.C. §§ 1956, 1957 and 1341 (See DE 75 at 289-294; 296-299). Because the Tribe uses the same predicates and makes the same allegations under Florida RICO as the Federal RICO statute, because the same deficiencies pursuant to 9(b) that plagued the federal RICO are simply re-alleged as part of the Florida RICO and RICO conspiracy counts, and because the Florida RICO statute is patterned on the Federal RICO statute, if the federal RICO and RICO conspiracy counts fail, the Florida Rico and Florida RICO Conspiracy Counts fail, too. See Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1319 (11th Cir. 1998) (“Perceiving no reason for applying a different rationale to Count II [Fla. RICO] than the one we applied in rejecting Count I [RICO], we affirm the district court's decision granting judgment as a matter of law for the reasons we have affirmed its judgment on Count I.”).