These failures—again, a symptom of the incurable disease that affects the Amended Complaint—require dismissal of the Civil RICO Claims with respect to all of the Titín Defendants, except Alfredo Sr., as they do not show that the other Titín Defendants were engaged in an enterprise’s affairs regarding his purported scheme beyond their own affairs. And as an enterprise cannot exist with the participation of a single individual alone, Zahra v. Charles, 639 F. Supp. 1405, 1407 (E.D. Mich. 1986) (“[T]he defendant could not be both a ‘person’ and an ‘enterprise’ so as to violate 18 U.S.C. § 1962 (c), as he is merely a single individual”), the Civil RICO Claims must be dismissed in full. 3. Plaintiffs May Not Plead The Existence Of Multiple Factually Contradictory Enterprises The Plaintiffs cannot allege multiple enterprises in the alternative here because these assertions of fact are inconsistent with each other. “While a litigant can plead in the alternative, liberal pleading rules have limits.”

Plaintiffs’ allegations are not sufficient, under either a Rule 9(b) or Rule 8 standard, to satisfy the second element of a section 1962(c) civil conspiracy claim. Finally, there is absolutely no allegation in the Amended Complaint that Mr. Odenath specifically agreed that he would, or that any of the other Defendants in this action should, engage in a single act of racketeering activity, let alone a pattern of such activity as required to establish a civil conspiracy claim under section 1962(d). Plaintiffs cannot simply assert, without any factual detail, that Mr. Odenath was a member of a RICO conspiracy and expect their claims to survive a motion to dismiss brought under Rule 12(b)(6).

Case 3:16-cv-02914-DRD Document 104 Filed 12/05/18 Page 36 of 52 27 First Commodity Corp. of Boston, 793 F.2d 28, 31-32 (1st Cir. 1986). Counts 6 and 7 (§1962(b) based) do not fail in toto under Defendants’ theory because one of the nine defendants to these counts, FSIC is also one of the three “enterprises” alleged and misused by the Defendants in these Counts. (AC ¶¶ 419-41); see Cruz v. FX DirectDealer, LLC, 720 F.3d 115, 121 (2nd Cir. 2013) (citing Cullen v. Margiotta, 811 F.2d 698, 729-30 (2d Cir. 1987)) (“[A] solitary entity cannot . . . simultaneously constitute both the RICO ‘person’ whose conduct is prohibited and the entire RICO ‘enterprise,’” but may be “one of a number of members of the RICO enterprise.’”). Therefore, the alleged enterprises are, indeed, sufficiently distinct from the Defendants who conducted the RICO violations. See, e.g., G-I Holdings, 238 F. Supp. 2d at 521 (finding that named partners and members of law firm were distinct entities from the law firm); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 268 (3rd Cir. 1995) (officers and employees’ conduct managing manage a corporate enterprise

This threadbare allegation does not meet the particularity requirements of Rule 9(b). Moreover, Count VII appears to be a duplication of the RICO Section 1962(d) conspiracy claim as it alleges a conspiracy “[i]n furtherance of the Enterprise.” (SAC ¶ 292.)

32 of individual liability questions until some discovery has been undertaken, rather than to dismiss the plaintiff because he does not have what may be concealed information."75 WHEREFORE, premises considered, all Plaintiffs, each individually and on behalf of others similarly situated, respectfully asks that the Motion to Dismiss Plaintiffs’ Claims Under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1962(c) and 18 U.S.C. §1962(d) be denied; or, in the alternative, that the Plaintiffs be given the opportunity to conduct meaningful discovery in order to amended their Complaint; for all attorney’s fees and all costs incurred herein; and for all other good and proper relief to which they may be entitled, whether or not specifically requested herein. Respectfully submitted, PLAINTIFFS MORENO ROCO, ERICZON MACARAYAN, FRANCISCO ABSIN, LEONOR LACSINA and ROGELIO RINGOR, EACH INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 400 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (866) 591-4661 Email: josh@sanfordlawfirm.com Case 4:10-cv-00030-WRW Document 11 Filed 03/01/2010 Page 32 of 34 33 Josh Sanford Ark. Bar No. 2001037 and HOLLEMAN & ASSOCIATE, P.A. 200 West Capitol Avenue, Suite 1620 Little Rock, AR 72201 Telephone: (501) 975-5040 Facsimile: (501) 975-5043 By: /s/ John T. Holleman John T. Ho

See Crowe, 43 F.3d at 206. In any event, because Plaintiff has failed to state a claim under 18 U.S.C. Sections 1962(a) or (c), Plaintiff has not stated a claim for a RICO conspiracy under Section 1962(d). Additionally, Plaintiff’s “intracorporate” RICO conspiracy claim against Methodist fails as a matter of law because Plaintiff has not and cannot show the requisite meeting of the minds of two or more persons on the object or course of action.

Judge Borman held that it was sufficient if a plaintiff alleged that a defendant aided and abetted the commission of a predicate act. But this ignores that Congress specifically provided for aiding and abetting liability in some provisions of the RICO statute, see, e.g., 18 U.S.C. 1962(a) (expressly incorporating aiding and abetting statute, 18 U.S.C. 2), but not in Section 1962(c) of the statute. The omission of aiding and abetting language from Section 1962(c) underscores that a plaintiff must specifically identify the predicate acts that each defendant actually committed.

Further, users of Uber who never would have chosen a taxicab cannot be counted as part of Plaintiffs’ losses. Complicating matters further, Plaintiffs’ base their § 1962(c) claim on allegations of wire fraud in the form of misrepresentations to consumers, and analyzing whether a particular alleged misrepresentation to a consumer caused Plaintiffs’ damages is a hopelessly complex task. Another district court declined to sustain similarly situated plaintiffs’ nearly identical § 1962(c) claim against Uber for that very reason. Boston Cab Dispatch, Inc. v. Uber Technologies, Inc., No. CIV.A. 13-10769-NMG, 2015 WL 314131, at *8 (D. Mass. Jan. 26, 2015) (dismissing claim under § 1962(c) due to the plaintiffs’ failure to allege that Uber’s alleged misrepresentations “caused them direct injury” and the fact that “the direct victims of the alleged fraud are capable of pursuing their own claims”). Even assuming Plaintiffs have properly alleged Uber made a misrepresentation to consumers, Plaintiffs must allege that the misrepresentation is what caused their harm. But if the consumers never saw the representation, or if the consumers saw an alleged representation—for example, a marketing claim that Uber complies with all regulations—but the representation was not material to the consumers’ choice to use Uber, then the alleged misrepresentation cannot have caused Plaintiffs’ damages. In other words, Plaintiffs remote, and nothing like the direct causal chain at issue in Bridge, which involved defendants who

Additionally, Plaintiffs provide zero allegations that the Aerensons agreed to and conspired with another, or even who that “another” might be. In the absence of factual allegations, Plaintiffs’ claims under 18 U.S.C. § 1962(c), (b), and (d) must be dismissed. Case 5:17-cv-00570-JLS Document 52-2 Filed 04/27/17 Page 19 of 25 14 4.

And in any event, because Plaintiff has failed to SIMON D. WHITING’S INITIAL MOTION 12(b)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT 16 2516411v1 04335.277 Case 3:15-cv-01700-D Document 106 Filed 08/16/16 Page 16 of 20 PageID 3850 state a claim under 18 U.S.C. § 1962 (a) and (c), as well as 18 U.S.C. § 1962(b) to the extent such a claim is asserted, Plaintiff has not stated a claim for a RICO conspiracy. Therefore, the Court should dismiss Plaintiff’s RICO conspiracy claim.