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UNITED STATES DISTRICT COURT EASTER DISTRICT OF TEXAS SHERMAN DIVISION WILLIAM A. MUNCK, SUZANNE T. MUNCK, AND WILLIAM P.J. MUNCK, Plaintiffs, v. DALLAS LACROSSE ACADEMY, LLC JOHN A. MARANO, KEVIN BARNICLE, ALEXANDER POOLE, CHRISTOPHER VAN DORN, ROBERT SEEBOLD, AND STEVEN KRAVIT, Defendants. § § § § § § § § § § § § § § §

CIVIL ACTION NO. 4:14-cv-173

DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT AND MEMORANDUM IN SUPPORT THEREOF

Defendants, Dallas Lacrosse Academy, LLC (“C2C”), John A. Marano, Kevin Barnicle, Alexander Poole, Christopher Van Dorn, Robert Seebold and Steven Kravit (collectively “Defendants”) respectfully move this Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss all claims filed by Plaintiffs in their Original Complaint. INTRODUCTION For four years, plaintiff William A. Munck (“Munck”), has used his position as a lawyer and owner of the law firm, Munck Wilson Mandala, LLP, as a tool directed at various lacrosse coaches in the North Texas community whose only sin was failing to recognize and appreciate the athletic talents of Munck’s son, plaintiff William P.J. Munck (“Billy”).

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After Billy failed to make the varsity lacrosse team while attending the Episcopal School of Dallas (“ESD”) in the spring of 2010, Munck met with defendant John Marano (“Marano”) to discuss defendant Kevin Barnicle (“Barnicle”) (the head lacrosse coach at ESD at the time). Marano perception of the meeting was the Munck was threatening to use his position as a lawyer with his own law firm to financially ruin Marano, his family and Barnicle if Billy were not moved to the ESD varsity squad. (See Original Complaint, ¶81) In response thereto, defendant Barnicle moved Billy to the varsity squad for the final eleven games. (See Original Complaint, ¶81). Billy subsequently transferred schools for his final two years of high school to the Millbrook Academy in Millbrook, New York. (See Original

Complaint, ¶82). However, Munck was never able to let go of his anger that Billy did not initially make the varsity lacrosse team while at ESD and commenced upon a course of litigation over the next four year course directed towards the Defendants. In August of 2010, Munck caused to be filed with the District Clerk of Dallas County a petition seeking permission to take a pre-suit deposition of Marano pursuant to Texas Rule of Civil Procedure 202. (See Original Complaint, ¶85). At that time, Munck’s legal theory against the Defendants was that Munck had potentially been defamed regarding the events leading up to an including his March 2010 meeting with Marano. As a result thereof, Munck and his law firm were able to take the deposition of John Marano on August 12, 2010. By February of 2013, Munck had abandoned his defamation theory and instead decided to file a lawsuit in Billy’s name against C2C, Marano and Barnicle in a Denton County District Court on theories of negligence, tortious interference and civil conspiracy; arising out of Billy’s initial failure to make the ESD varsity lacrosse team. That lawsuit is currently pending in the

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393rd Judicial District Court of Denton County, Texas as cause number 2013-60193-393 and is styled William P.J. Munck v. Dallas Lacrosse Academy, LLC, John A. Marano and Kevin Barnicle. (the “Denton Lawsuit”). Unable to articulate any viable damages in the Denton Lawsuit, Munck has now initiated this current civil RICO action even though he has obtained via discovery in the Denton Lawsuit tax returns and other financial documents negating almost all of his financial theories. Similar to the Denton Lawsuit, however, this lawsuit fails for the simple reason, among other things, that the Plaintiffs cannot articulate any viable damages under the RICO statute. STATEMENT OF THE ISSUES The issues to be decided by the Court in this motion are a). whether Plaintiffs’ complaint should be dismissed for their failure to articulate an

injury to their business or property; b). whether Plaintiffs’ complaint should be dismissed for their failure to articulate

facts supporting a reasonable conclusion that the alleged predicate acts proximately caused injury to Plaintiffs; c). whether Plaintiffs’ complaint should be dismissed for their failure to allege that

the Defendants engaged in racketeering activity; and d). whether Plaintiff’s conspiracy claim should be dismissed as a consequence of

their failure to properly plead claims under 18 U.S.C. § 1962 (c).

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LEGAL STANDARD To survive a Rule 12(b)(6) motion, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim must “provide the grounds of [the] entitle[ment] to relief,” and it “requires more than labels and conclusions. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal quotation marks and citation “Threadbare recitals of the elements of a cause of action,

omitted)(emphasis added).

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555)(emphasis added). ARGUMENT RICO 1. The Law Concerned with long-term criminal activity, Congress enacted RICO to prohibit conduct involving a pattern of racketeering activity. See Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir.1996). “One of RICO’s enforcement mechanisms is a private right of action, available to ‘[a]ny person injured in his business or property by reason of a violation’ of the Act’s substantive restrictions.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (quoting 18 U.S.C. § 1964(c)). In order to state a claim under RICO, a plaintiff must allege: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); Brown v. Protective Life Ins. Co., 353

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F.3d 405, 407 (5th Cir.2003) (stating that a violation of 18 U.S.C. § 1962 involves “(1) a person who engages in (2) a pattern of racketeering activity (3) connected to the acquisition, establishment, conduct, or control of an enterprise”). Crowe v. Henry, 43 F.3d 198, 203 (5th Cir.1995). 2. RICO Analysis When considering whether a plaintiff has standing to bring a civil cause of action under RICO, the origin of the statute bears relevance: RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff. Requiring that a plaintiff demonstrate a financial loss to his or her business or property is consistent with that purpose. It is also consistent with what the Supreme Court has termed the “restrictive significance” of the phrase “injured in his business or purpose.” Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). Oscar v. University Students Co-op. Ass’n, 965 F.2d 783 (9th Cir.1992) (en banc), cert. denied, 506 U.S. 1020, 113 S.Ct. 655 (1992). With these limitations in mind, Plaintiffs cannot state a civil cause of action under RICO for the simple reason that they cannot meet the threshold requirement that a plaintiff must be “‘injured in his business or property by reason of a violation’ of the [RICO]’s substantive restrictions.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (quoting 18 U.S.C. § 1964(c)) (emphasis added); see also Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 422 (5th Cir.2001). “[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 [RICO] violation.” Sedima, S.P.R.L. v. Imrex Co. ., 473 U.S. 479, 496 (1985). In this case, Plaintiffs fail to articulate any substantive injury suffered as a consequence of the alleged racketeering activity. At best, Plaintiffs articulate a personal injury or speculative

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injury in the form of (a) “fear” of “retaliation,” “harm,” and “economic loss;” and (b) not participating in competing “non-profit” lacrosse program. (See ¶¶82, 96-99 of the Original Complaint). Plaintiffs’ alleged injuries do not confer standing for a civil claim under RICO for two reasons: (1) an “injury to business or property” cannot result from personal injuries; and (2) an “injury to business or property” must be a concrete financial loss rather than a speculative property interest. a. “Injury to Business or Property” Excludes Damages Intimately Related to Personal Injuries With respect to plaintiffs’ first claim for “fear” that they allegedly suffered as a consequence of Defendants’ conduct, the Fifth Circuit has held that “injury to business or property excludes personal injuries.” Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 422 (5th Cir.2001) (citing Reiter, 442 U.S. at 339. Moreover, “federal courts have uniformly held that ‘business or property’ language of 18 U.S.C. § 1964 precludes personal injury and wrongful death actions from the ambit of the RICO act.” Borskey v. Medtronics, Inc., 1995 WL 120098, at (E.D.La. Mar.15, 1995) (citation omitted), aff’d in part, 105 F.3d 651 (5th Cir.1996) (“The district court rejected the RICO action on grounds that RICO has no applicability to an action for damages from personal injuries. We agree.”); accord Genty v. RTC, 937 F.2d 899, 918 (3d Cir.1991) (citing Reiter, 442 U.S. at 339); Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175, 1180 (7th Cir.1989); Grogan v. Platt, 835 F.2d 844, 847-48 (11th Cir.1988), cert. denied, 488 U.S. 981, 109 S.Ct. 531, 102 L.Ed.2d 562 (1988). In addition, “personal injuries ... and their resulting pecuniary consequences, are not compensable under RICO.” See, e.g., Gaines v. Tex. Tech Univ., 965 F.Supp. 886, 890 (N.D.Tex.1996) (holding that the impairment of future earning capacity as a result of a personal injury is not recoverable under RICO); Borsky, 1995 WL 120098, at 3

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(holding that plaintiffs’ medical expenses were so closely tied to their alleged personal injuries that such expenses could not be covered under RICO). In the present case, plaintiffs’ alleged “fear” has no basis for recovery in law and can only be construed as an alleged personal injury rather than an economic loss. Because personal injuries and their resulting pecuniary consequences are not an “injury to business or property” under section 1964(c), plaintiffs’ “fear” of “retaliation,” “harm,” and “economic loss” alleged injury does not confer standing to bring a civil claim under RICO. b. Inadequacy of Speculative Injuries and Expectancy Injuries Additionally, plaintiffs can only bring RICO claims for concrete, definite, and tangible losses. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607 (5th Cir.1998) (“Injury to mere expectancy interests or to an ‘intangible property interest’ is not sufficient to confer RICO standing.”); Oscar, 965 F.2d at 783 (“[A] showing of ‘injury’ requires proof of concrete financial loss, and not mere injury to a valuable intangible property interest.”) (citations omitted). “[S]peculative damages are not compensable under RICO.” In re Taxable Mun. Bond Secs. Litig., 51 F.3d 518, 523 (5th Cir.1995); accord Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th Cir.1990); Fleischhauer v. Feltner, 879 F.2d 1290, 1299-1301 (6th Cir.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1029. Instead, a plaintiff must demonstrate a “conclusive financial loss” in order to have standing to bring a civil claim under RICO. Id. Stated plainly, “injuries to property are not actionable under RICO unless they result in tangible financial loss to the plaintiff.” Oscar, 965 F.2d at 785. Turning to the plaintiffs’ claims that they were prevented from participating in a “nonprofit” competing business, any such damages therefrom are purely speculative in nature. Courts have held that the right to compete is an intangible right insufficient to establish standing under

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the RICO statute. See United States v. Berlin, 707 F.Supp. 832, 835 (E.D.Va. 1989). “Injury to mere expectancy interests ... is not sufficient to confer RICO standing.” Price, 138 F.3d 602, 607 (5th Cir.1998); accord Oscar, 965 F.2d at 785; Gaines, 965 F.Supp. at 890. Thus, in addition to being intimately related to plaintiffs’ allegation of a personal injury, plaintiffs’ alleged “loss of participation” injury is also, at best, an expectancy interest, which does not constitute an “injury to business or property” under 18 U.S.C. § 1964(c). See Hughes, 278 F.3d at 422 (personal injuries do not confer RICO standing); Price, 138 F.3d at 607 (expectancy interests do not confer RICO standing). Furthermore, Plaintiffs didn’t even have an expectancy interest in the competing business. As Plaintiffs admit in their pleadings, the Lonestar program was “non-profit” and was comprised of “unpaid volunteers.” (See Original Complaint, ¶¶24,64 and 98). Plaintiffs admit they merely donated their time and money. (See Original Complaint, ¶64). Accordingly, because an “injury to business or property” cannot result from personal injuries, and because the injury must be a concrete financial loss rather than a speculative property interest such as participating in a competing business, plaintiffs’ alleged injuries do not confer standing to bring a civil claim under RICO. Consequently, this Court should grant defendants’ motion to dismiss. c. No Allegations of Proximate Cause Second, there is no direct causal link between the predicate acts and Plaintiffs’ alleged damages, as required by the RICO statute. See Hemi Group, LLC v. City of New York, 559 U.S. 1, 130 S. Ct. 983, 989 (2010) (“[T]o state a claim under civil RICO, the plaintiff is required to show that a RICO predicate offense ‘not only was a but for cause of his injury, but was the proximate cause as well.’ Proximate cause for RICO purposes, we made clear . . . requires

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‘some direct relation between the injury asserted and the injurious conduct alleged.’” (quoting Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268, 271 (1992)) (internal quotation marks about “but for” omitted)). Similarly, “the compensable injury flowing from a [RICO] violation . . . necessarily is the harm caused by [the] predicate acts.” Id. at 991 (alteration in original) (internal quotation marks and citations omitted). Here, no direct causal relationship can be claimed between the predicate acts and any alleged damages. 1. Mail and/or Wire Fraud-18 U.S.C. §§1341, 1343 The elements of a claim for mail fraud are: (1) a scheme to defraud, and (2) the use of the mails to further that scheme. See Pereira v. United States, 347 U.S. 1, 8 (1954). “The wire fraud statute makes illegal the use of ‘wire, radio, or television communication’ for ‘any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.’” Semiconductor Energy Lab. Co. v. Samsung Elecs. Co., 204 F.3d 1368, 1379 (Fed. Cir. 2000) (quoting 18 U.S.C. § 1343). In their Original Complaint, Plaintiffs fail to allege any facts to support the contention that they were damaged as a consequence of Defendants’ use of the mails, wire, radio or television communication.” Rather, Plaintiffs merely state a conclusion that the “RICO

Defendants’ false and misleading statements have caused Plaintiffs damages.” (See Original Complaint ¶95). Such conclusory statements are inadequate as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 2. Extortion- 18 U.S.C. §1951 Similarly, the only allegations that the alleged 18 U.S.C. §1851 predicate act of extortion caused any damage to Plaintiffs are conclusory. Plaintiffs merely state that the “RICO

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Defendants extorted Plaintiffs so that they would not participate in a competing but non-profit lacrosse program.” (See Original Complaint, ¶98). Extortion is defined by 18 U.S.C. §1951 which states in pertinent part as follows: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section— (1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. 18 U.S.C. §1951. Plaintiffs make no factual allegations to support a contention that Defendants’ conduct obstructed, delayed or affected commerce or the movement of a commodity in commerce or that any such conduct resulted in economic damage to Plaintiffs. Furthermore, Plaintiffs make no allegation of any threatened force, violence or fear by Defendants nor, more significantly, that Defendants obtained any property –including the nature of such property - from Plaintiffs as a consequence thereof. Plaintiffs’ failure to support its conclusory statement results from there

being no basis in fact to make any such allegations. Again, conclusory statements cannot confer
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a plaintiff standing under the RICO statute. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 3. Obstruction of Justice- 18 U.S.C. §1503
Lastly, Plaintiffs assert the violation of § 1503. Influencing or injuring officer or juror generally;

the elements of which are as follows: (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case. 18 U.S.C. §1503. Plaintiffs fail to even conclusory state that the purported obstruction of justice proximately caused them harm. Rather, Plaintiffs merely state that “[b]y making these deliberate and false representations in a judicial proceeding, with full awareness of their consequences and with specific intent to influence, obstruct, and impeded the due administration of justice, the RICO Defendants have committed obstruction of justice in violation of 18 U.S.C. §1503.” (See Original Complaint, ¶101). Failing any factual support that such alleged obstructive conduct proximately caused Plaintiffs harm and how, this alleged predicate act cannot confer standing to

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Plaintiffs as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). d. Plaintiffs Have Failed To Plead That Defendants Engaged in Racketeering Activity As predicate acts constituting racketeering activity, Plaintiffs have alleged (1) mail and wire fraud; (2) 18 U.S.C. §1951-extortion; and (4) 18 U.S.C. §1503-obstruction of justice. Each alleged predicate act fails for the reasons set forth herein. 1. Mail Fraud and Wire Fraud -18 U.S.C. §§1341, 1343 Fraud must be plead with particularity under the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See, e.g., Prunte v. Univ. Music Group, 484 F.Supp.2d 32, 42 (D.D.C.2007). Plaintiffs fail to sufficiently plead a fraud claim under the RICO statute and Federal Rule of Civil Procedure 9(b) because they fail to allege with any specificity the “who, what, when, where, and how” of their mail and/or wire fraud claim. The elements of a claim for mail fraud are: (1) a scheme to defraud, and (2) the use of the mails to further that scheme. See Pereira v. United States, 347 U.S. 1, 8 (1954). “[I]n order to satisfy the first element of mail fraud, the plaintiffs must prove common law fraud.” Pappas v. NCNB Nat’l Bank, 653 F. Supp. 699, 703 (M.D.N.C. 1987). This requires a showing that: (1) the defendant made a representation relating to some past or existing fact, (2) the representation was false, (3) the defendant knew the representation was false when it was made or made it recklessly, (4) the defendant made a false representation with the intention it should be relied upon by the plaintiffs, and (5) plaintiffs relied upon the representation. Id. (citing Brickell v. Collins, 44 N.C. App. 707, 262 S.E.2d 387 (1980)).

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Plaintiffs have not alleged that Defendants have made any false statement to them, let alone that Defendants sent such a statement through the mail or that Plaintiffs or anyone else relied on any such statement. The only false statements alleged in the Original Complaint are general references to defendant Marano’s lacrosse experience (See Original Complaint ¶93). Plaintiffs do not allege what the false statements were, to whom they were made, that they were false, that Marano knew they were false or made them recklessly, that they were made with the intention to be relied upon by Plaintiffs – or anyone else, that Plaintiffs or anyone else did in fact rely upon such false representations and were damaged as a consequence thereby, or how Defendants made use of the mail to further the alleged fraud. Accordingly, Plaintiffs have not sufficiently pled a claim for mail fraud. “The wire fraud statute makes illegal the use of ‘wire, radio, or television communication’ for ‘any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.’” Semiconductor Energy Lab. Co. v. Samsung Elecs. Co., 204 F.3d 1368, 1379 (Fed. Cir. 2000) (quoting 18 U.S.C. § 1343). As with mail fraud, a claim for wire fraud requires the plaintiff to allege the elements of common law fraud. See Pappas, 653 F. Supp. at 703. Like mail fraud, wire fraud must be plead with particularity under the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See, e.g., Prunte v. Univ. Music Group, 484 F.Supp.2d 32, 42 (D.D.C.2007). Similar to the mail fraud claim, Plaintiffs do not meet this standard because they fail to allege with any specificity the “who, what, when, where, and how” of its wire fraud claim. While Plaintiffs’ references “numerous emails and website postings” (See Original Complaint, ¶93), they fail to provide any further details of the alleged fraud, including specific statements made in the emails or website postings, who made the statements, the parties to the conversations, the dates of these

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emails and postings, and where these statements were made. See Intex Recreation Corp. v. Team Worldwide Corp., 390 F. Supp. 2d. 21, 24 (D.D.C. 2005) (“The particularity requirement of Rule 9(b) demands that the pleader specify what [fraudulent] statements were made and in what context, when they were made, who made them, and the manner in which the statements were misleading.”). As a consequence Plaintiffs have failed to plead a claim for wire fraud. 2. Extortion Plaintiffs second predicate act is alleged interference with commerce by threats or violence in violation of 18 U.S.C. §1951 which states in pertinent part as follows: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section— (1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

18 U.S.C. §1951. In this case, Plaintiffs assert no allegations to factually support this alleged offense other than conclusory statements. There are no allegations that any article of commerce
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was affected in any manner nor that Defendants engaged in threats of violence to any person or property or that Defendants used such threats to obtain property from Plaintiffs. Rather,

Plaintiffs merely state that “RICO Defendants extorted Plaintiffs so that they would not participate in a competing but non-profit lacrosse program.” (See Original Complaint, ¶98). Plaintiffs sole allegation is conclusory. Furthermore, not participating in a competing business does not constitute a taking of property under the RICO statute. United States v. Berlin, 707 F.Supp. 832, 835 (E.D.Va. 1989). As a consequence, this alleged predicate act fails. 3. Obstruction of Justice The final predicate act alleged by Plaintiffs is that of obstruction of justice which is enumerated within 18 U.S.C. 1961(1)(B). There are a number of obstruction of justice offenses enumerated in chapter 73 of Title 18 and include § 1503 - Influencing or injuring officer or juror generally; the elements of which states in pertinent part as follows: (b) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case. 18 U.S.C. § 1503.

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Plaintiffs fail to present any allegation that the Defendants conduct violated the enumerated offense. Rather, Plaintiffs conclusory allege that Marano “made numerous false representations under oath [during a pre-suit deposition] regarding his lacrosse experience as well as the RICO Defendants’ actions towards Plaintiffs and others.” (See Original Complaint, ¶101). Purported false testimony in a pre-suit civil deposition is not an enumerated offense under the referenced statute. Furthermore, Plaintiffs fail to articulate the representations that were false or how such alleged false testimony constitutes a violation of § 1503. Accordingly, this predicate act claim should be dismissed pursuant to Fed.R.Civ.P. 12b(6). CONSPIRACY The RICO conspiracy provision, 18 U.S.C. § 1962(d), provides that “it shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of [§ 1962].” Since Plaintiffs have failed to show any violation of § 1962 (c), Defendants cannot be found to have violated § 1962(d). Synergy Fin., L.L.C. v. Zarro, 329 F. Supp. 2d 701, 714 (W.D.N.C. 2004) (“To the extent that this claim relies on an allegation of conspiracy, because the substantive RICO claim fails, the conspiracy claims [sic] fails as well.”) (citation omitted). In Beck v. Prupis, 529 U.S. 494 (2000), the Court stated that the standard for finding a conspiracy in civil cases is entirely different from the criminal standard. The Beck Court rejected the petitioner’s suggestion that the Court “look to criminal, rather than civil, common-law principles to interpret…what constitutes a violation of § 1962(d).” Id. at 501. The Court found that a civil case does not present simply the question of what constitutes a violation of § 1962(d), but rather the meaning of a civil cause of action for private injury by reason of such a violation. In other words, our task is to interpret §§ 1964(c) and 1962(d) in conjunction, rather

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than § 1962(d) standing alone. The obvious source in the common law for the combined meaning of these provisions is the law of civil conspiracy.

Id. The Beck court went on to “conclude that injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO . . . is not sufficient to give rise to a cause of action under § 1964(c) for a violation of § 1962(d).” Id. The court noted: As at common law, a civil conspiracy plaintiff cannot bring suit under RICO based on injury caused by any act in furtherance of a conspiracy that might have caused the plaintiff injury. Rather, consistency with the common law requires that a RICO conspiracy plaintiff allege injury from an act that is analogous to an ‘act of a tortious character,’ meaning an act that is independently wrongful under RICO.

Beck, 529 U.S. at 505-06 (citing 4 Restatement (Second) of Torts § 876, Comment b). The defendant’s “alleged overt act in furtherance of their conspiracy” must be “independently wrongful under [a] substantive provision of the [RICO] statute.” Id. If the overt act is not independently wrongful, then “[i]njury caused by such an act is not, therefore, sufficient to give rise to a cause of action under § 1964(c).” Id. Accordingly, Plaintiffs’ conspiracy claims should be dismissed.

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WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court dismiss Plaintiff’s Original Complaint and for such other and further relief, at law or in equity, general or special, to which they may show themselves to be justly entitled. Respectfully submitted, KEY HARRINGTON BARNES A Professional Corporation By:/-s-/ F. Colin Durham, Jr._________ F. Colin Durham, Jr. Texas Bar No. 00790616 3710 Rawlins St. Suite 950 Dallas, Texas 75219 Telephone: 214.615.7919 (Durham) Facsimile: 214.615.7926 cdurham@keyharrington.com ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE The undersigned certifies that on the 1st day of April, 2014, a true and correct copy of the foregoing document was served upon the counsel of record in conformance with the Federal Rules of Civil Procedure:

Jamil N. Alibhai Munk Wilson Mandala, LLP 12770 Coit Road, Suite 600 Dallas, Texas 75251

_/-s-/__F. Colin Durham, Jr.______________________ Colin Durham

DEFENDANTS’ MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF – Page 19

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