Mott et al v. Narconon Fresh Start et al
ORDER. ORDERED that defendants Motion to Dismiss the First, Fifth, Seventh and Eighth Causes of Action in Plaintiffs' Section Amended Complaint [Docket No. 34] is GRANTED in part and DENIED in part as indicated in this order. ORDERED that plaintiffs' claims for intentional infliction of emotional distress, for negligent infliction of emotional distress, and for violation of the RICO statute are DISMISSED by Judge Philip A. Brimmer on 03/17/15.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01293-PAB-KMT
BRYAN MOTT, a New York citizen, and
NIKKI MOTT, a New York citizen,
NARCONON FRESH START, d/b/a A Life Worth Saving, Inc.,
This matter comes before the Court on the Motion to Dismiss the First, Fifth,
Seventh and Eighth Causes of Action in Plaintiffs’ Second Amended Complaint [Docket
No. 34] filed by defendant Narconon Fresh Start d/b/a/ A Life Worth Saving, Inc. The
Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332.
Defendant operates a drug rehabilitation facility in Fort Collins, Colorado (the
“Colorado facility”). Narconon International is defendant’s parent company and controls
the time, manner, and method of defendant’s operations. Docket No. 30 at 2, ¶ 4. In
May 2012, plaintiff Bryan Mott searched the internet for a drug rehabilitation facility for
his daughter, plaintiff Nikki Mott, and, as a result, contacted defendant. Id. at 3, ¶ 12.
Mr. Mott spoke with defendant’s Admissions Director, Dan Carmichael, who told Mr.
The following factual allegations are taken from plaintiffs’ second amended
complaint [Docket No. 30] and are presumed true for the purposes of resolving this
Mott that defendant’s Fresh Start drug rehabilitation program (the “rehabilitation
program”) had a 72% success rate because of a sauna and vitamin program. Id. at 3,
¶¶ 13-14. Mr. Carmichael represented that the rehabilitation program was scientifically
and medically proven to be effective, that Ms. Mott would be under the care of a doctor
or nurse, that defendant would provide Ms. Mott with extensive drug and addiction
counseling, and that defendant’s staff are properly trained to care and treat persons
with addiction. Id. at 3, ¶¶ 15-16. Mr. Mott also visited defendant’s website, which
represented that the Colorado facility had a 76% success rate and that the rehabilitation
program’s success was due to “Sauna Based Detox” – “[a]n exact program of medically
supervised exercise, dry sauna sweating and vitamins, [sic] rid fatty tissues of [drug]
residues.” Id. at 3-4, ¶ 17. Based upon these representation s, on May 15, 2012, Mr.
Mott paid defendant $33,000 to provide Ms. Mott with substance abuse treatment at the
Colorado facility. Id. at 4, ¶¶ 18-19; see also id. at 19.
Upon arriving at the Colorado facility, Ms. Mott was examined by a medical
doctor, but did not see doctors or other medical professionals for the remainder of her
time at the facility. Id. at 4, ¶ 20. Defendant had Ms. Mott stop taking her antidepressant medication, causing Ms. Mott to experience withdrawal symptoms without
medical supervision. Id. at 4, ¶¶ 21-22.
Once Ms. Mott began the rehabilitation program, she was required to read the
works of L. Ron Hubbard, which taught Church of Scientology concepts and practices.
Id. at 4, ¶¶ 23-25. In addition, as part of the rehabilitation program, Ms. Mott was
required to undergo a Scientology ritual known as the “Purification Rundown” or, as
defendant referred to it, the “New Life Detoxification Program.” Id. at 5, ¶ 28. This
involved exercising vigorously each day, followed by up to six hours per day in a sauna
for a period of five weeks. Id. at 4-5, ¶¶ 27, 29. Each participant is also required to
ingest increasing doses of niacin and a “vitamin bomb.” Id. Defendant increased Ms.
Mott’s dosages of niacin beyond the recommended daily allowance. Id.
Despite defendant’s representations to the contrary, Ms. Mott did not receive
counseling from Colorado facility staff regarding her substance abuse. Id. at 7, ¶ 40.
Rather, Colorado facility counselors treated Ms. Mott using Scientology. Id. at 7, ¶ 41.
Ms. Mott left the rehabilitation program without receiving any actual drug abuse
treatment or counseling, suffered psychological injuries as a result of her participation in
the rehabilitation program, and was forced to seek additional treatment. Id. at 8, ¶¶ 4243. She suffered a relapse shortly after leaving the rehabilitation program. Id.
Defendant claims that the New Life Detoxification Program has been
scientifically shown to flush out residual drug toxins stored in fatty tissues, which
reduces or eliminates a person’s drug dependency. Id. at 5, ¶ 31. However, by
requiring participants to ingest extreme doses of niacin and other vitamins and sit in a
sauna for hours, defendant unnecessarily exposes participants to serious health risks
including severe dehydration. Id. at 5, ¶ 32. Dr. Louis Casal, an expert retained in a
different lawsuit against defendant’s parent company Narconon International and
Narconon of Northern Georgia, testified that there was no scientific basis for the claims
in Narconon literature that the sauna program detoxifies the body. Id. at 5-6, ¶ 33.
Defendant continues to represent to prospective patients that the New Life
Detoxification Program has been proven “scientifically and medically” effective. Id. at 6,
Narconon International claims that its facilities have a success rate of over 70%,
but has no published studies or other evidence to support such a claim. Id. at 6, ¶ 35.
Dr. Casal testified that he did not have a clear understanding of the source of Narconon
International’s claimed success rate. Id. at 6-7, ¶ 36. Despite being aware that such
claims have no support, defendant advertised to Mr. Mott that its rehabilitation program
had a success rate of more than 75%. Id. at 7, ¶ 37.
Narconon International documents indicate that the rehabilitation program is
used to recruit participants into the Church of Scientology. Id. at 7, ¶ 38. Defendant
considers the rehabilitation program to be the “Bridge to Bridge,” which is an initial step
in a spiritual journey that Church of Scientology members undertake. Id. at 7, ¶ 39.
On May 7, 2014, plaintiffs filed this case against defendant, Association for
Better Living and Education International, and Narconon International. Docket No. 1.
On July 2, 2014, plaintiffs filed the second amended complaint. Docket No. 30. 2 On
July 31, 2014, plaintiffs voluntarily dismissed Association for Better Living and
Education International and Narconon International f rom the case. Docket No. 45.
Plaintiffs bring claims against defendant for breach of contract, fraud, fraudulent
concealment, negligence, intentional infliction of emotional distress, negligent infliction
of emotional distress, negligent misrepresentation, violation of the Colorado Consumer
Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-105, violation of the Racketeer
All references to the “complaint” are to the second amended complaint [Docket
No. 30] unless otherwise indicated.
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., and
unjust enrichment. Docket No. 30 at 9-16.
On July 15, 2014, defendant filed the present motion, arguing that plaintiffs have
failed to state a claim for breach of contract, intentional infliction of emotional distress,
negligent infliction of emotional distress, violation of the CCPA, and violation of RICO.
Docket No. 34. Plaintiffs filed a response brief [Docket No. 47] and a notice of
supplemental authorities [Docket No. 53]. Defendant filed a reply brief [Docket No. 49].
II. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not shown–that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration m arks
A. Breach of Contract
The elements of a breach of contract claim under Colorado law are: (1) the
existence of a contract; (2) performance by the claimant or some justification for
nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting
damages to the claimant. W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo.
Defendant argues that plaintiffs have failed to allege the existence of a contract.
Docket No. 34 at 4. Plaintiffs respond that the complaint sufficiently sets forth the
promises defendant made to Mr. Mott. Docket No. 47 at 4. “In order to establish the
existence of a contract, the evidence must show that the parties agreed upon all
essential terms.” I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo.
1986). Here, based upon the representations by defendant through Mr. Carmichael
and its website and the fact that the parties exchanged valuable consideration in the
form of Mr. Mott’s payment and defendant providing services to Ms. Mott, there are
sufficient facts upon which to conclude that the parties entered into a n agreement, the
material terms of which were that defendant’s rehabilitation program would provide
The parties appear to agree that Colorado law applies to the breach of contract
claims in this case. The Court will operate under the same premise. Cf. Grynberg v.
Total S.A., 538 F.3d 1336, 1346 (10th Cir. 2008) (“Because the parties’ arg uments
assume that Colorado law applies, we will proceed under the same assumption.”).
Nikki Mott secular drug and alcohol treatment that was scientifically and medically
proven to be effective and that Ms. Mott would be under the care of doctors, nurses,
and staff trained to care for and treat person with addiction. See Docket No. 30 at 3-4,
¶¶ 15-16; id. at 9, ¶ 51.
Defendant argues that the complaint does not identify the terms of the contract
that were allegedly breached. Docket No. 34 at 3. Plaintiffs respond that the complaint
alleges that defendant failed to provide Ms. Mott with drug and alcohol treatment and
failed to provide care from medical professionals and staff trained to treat addiction.
Docket No. 47 at 5. The Court agrees with plaintiffs. Plaintiffs claim that they
contracted with defendant to provide Ms. Mott with secular drug and alcohol treatment,
but that defendant breached the contract by failing to provide drug and alcohol
treatment services and by providing Church of Scientology teachings in lieu of drug and
alcohol treatment. Docket No. 30 at 9, ¶¶ 51-53. The complaint alleges that
defendant’s rehabilitation program was ineffective and, rather than being medically or
scientifically supported, was based upon religious doctrine. Id. at 5-7. Moreover, the
complaint alleges that, after the first day, Ms. Mott was not under the care of medical
professionals during her time in the rehabilitation program. Id. at 4, ¶ 20. Plaintiffs
have sufficiently identified the terms of the contract allegedly breached.
Defendant argues that, because the complaint alleges that “Defendants
contracted with Bryan Mott,” Ms. Mott lacks standing to pursue a breach of contract
claim. Docket No. 34 at 4. Plaintiffs respond that Ms. Mott is a third-party beneficiary
to the contract and, as a result, may bring a claim to enforce the contract’s obligations.
Docket No. 47 at 4. Persons who are not parties to an express contract may “bring an
action on the contract if the parties to the agreement intended to benefit the nonparty,
provided that the benefit claimed is a direct and not merely an incidental benefit of the
contract.” Harwig v. Downey, 56 P.3d 1220, 1221 (Colo. App. 2002). T he intent to
benefit the nonparty “must be apparent from the terms of the agreement, the
surrounding circumstances, or both.” Id. Here, the agreement’s intent to benefit Ms.
Mott is apparent: the sole purpose of the agreement between Mr. Mott and defendant
was to provide substance abuse treatment to Ms. Mott. See Docket No. 30 at 4, ¶ 19.
Ms. Mott is therefore a third-party beneficiary of the agreement between Mr. Mott and
defendant and, as a result, is entitled to bring a breach of contract claim against
defendant. See Harwig, 56 P.3d at 1221.
This aspect of defendant’s motion to dismiss is denied.
B. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional distress, plaintiff must
show that “(1) the defendant engaged in extreme and outrageous conduct; (2)
recklessly or with the intent of causing the plaintiff severe emotional distress; (3)
causing the plaintiff to suffer severe emotional distress.” Han Ye Lee v. Colorado
Times, Inc., 222 P.3d 957, 966-67 (Colo. App. 2009). Def endant argues primarily that
plaintiffs fail to allege the first element.
“‘Outrageous conduct’ is defined as conduct that is ‘so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’” Culpepper v.
Pearl St. Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994) (quoting Destefano v. Grabrian,
763 P.2d 275, 286 (Colo. 1988)).
However, [c]onduct, otherwise permissible, may become extreme and
outrageous if it is an abuse by the actor of a position in which he has actual
or apparent authority over the other, or the power to affect the other’s
interests. Conduct may also become outrageous where the defendant
proceeds though he knows that the plaintiff is peculiarly susceptible to
emotional distress, by reason of some physical or mental condition or
peculiarity. Nevertheless, in both scenarios, a defendant is still not liable for
mere insults, indignities, or annoyances that are not extreme or outrageous.
Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 990-91 (Colo. App. 2011) (quotations
and citations omitted) (citing Jones v. Muskegon Cnty., 625 F.3d 935, 948 (6th Cir.
2010) (holding that prison nurses’ disregard of inmate’s requests for medical attention
for several months because nurses thought inmate was “faking it” was not outrageous
Plaintiffs argue that defendant had authority over Ms. Mott and knowledge that,
by undergoing a withdrawal from drugs, she was particularly susceptible to emotional
distress. Docket No. 47. Even assuming that these facts could be inferred from the
complaint, which defendant disputes, it is not clear that defendant’s status or
knowledge “exacerbated the conduct” at issue. Cf. Zlanis v. Thoroughbred Datsun Car
Co., 645 P.2d 292, 294 (Colo. App. 1982). Moreover, plaintiffs do not allege sufficient
facts or otherwise explain why defendant’s conduct rises to the level of extreme or
outrageous. Plaintiffs argue that defendant acted outrageously by “trying to indoctrinate
[Ms. Mott] into Scientology instead of providing her actual treatment[, which] included
having Nikki participate in a dangerous Scientology ritual known as the ‘Purification
Rundown’ in which she was required to ingest extreme doses of Niacin while sitting in a
sauna several hours per day.” Docket No. 47 at 7. The fact that defendant failed to
provide the agreed upon treatment program, but instead provided Ms. Mott only with
religious teachings or Scientology recruitment that “did not even deal with substance
abuse” and were ultimately unsuccessful does not rise to the level of extreme or
outrageous conduct. Docket No. 47 at 8. At most it establishes that Ms. Mott did not
receive the treatment her father bargained for. The fact that defendant directed Ms.
Mott to ingest niacin and sit in a sauna for several hours each day without medical
supervision is not, without more, extreme conduct.4 Cf. Reigel, 292 P.3d at 992
(“Though she and the other employees may have failed to monitor Mr. Reigel
adequately or to recognize that his symptoms required immediate treatment,
reasonable persons could not conclude that this conduct rose to the lev el of being
atrocious and utterly intolerable in a civilized community.”). Thus, plaintiffs fail to state
a claim that the defendant engaged in extreme and outrageous conduct. 5 This aspect
of defendant’s motion to dismiss is granted.
Although plaintiffs’ arguments rely in part on facts outside the complaint,
plaintiffs do not articulate a basis upon which the Court could appropriately consider
such facts. See Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006); GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
Although defendant raised only briefly the issue of whether plaintiffs’ allegations
established that defendant acted recklessly or with intent, Docket No. 34 at 4, plaintiff
fails to explicitly address this element. The Court is not convinced that plaintiffs have
stated a claim that defendant acted intentionally or recklessly to cause Ms. Mott
emotional distress. Plaintiffs’ allegations that defendant acted intentionally, Docket No.
30 at 11, ¶ 70, are conclusory and not entitled to the presumption of truth. See Iqbal,
556 U.S. 679. Plaintiff does not identify any allegations upon which intent or
recklessness could be inferred. For example, the mere fact that defendant may have
known that there was no scientific basis for its sauna-based rehabilitation program does
not establish that defendant acted recklessly with knowledge that there was a
substantial probability that its rehabilitation program would cause severe emotional
distress. See Culpepper, 877 P.2d at 883.
C. Negligent Infliction of Emotional Distress
To prevail on a claim for negligent infliction of emotional distress, plaintiff must
show that “defendant’s negligence created an unreasonable risk of physical harm and
caused the plaintiff to be put in fear for his or her own safety, that this fear had physical
consequences or resulted in long-continued emotional disturbance, and that the
plaintiff’s fear was the cause of the damages sought.” Draper v. DeFrenchi-Gordineer,
282 P.3d 489, 496-97 (Colo. App. 2011).
Defendant argues that Ms. Mott fails to allege that she sustained physical injury.
Docket No. 47 at 13. Plaintiffs do not directly respond to defendant’s argument, except
to argue that Ms. Mott was “subjected to an unreasonable risk of bodily harm by
having her go through drug withdrawal and having her ingest extreme doses of Niacin
while sitting in a sauna for five hours per day without any medical supervision. As a
result, Nikki suffered severe emotional distress.” Docket No. 47 at 14. In order to
prevail on a claim for negligent infliction of emotional distress, plaintiff must show that
he or she “sustained physical injury or was in the ‘zone of danger.’” Culpepper v. Pearl
St. Bldg., Inc., 877 P.2d 877, 880 n.3 (Colo. 1994). Plaintif f must also show that any
physical injury or long-continued emotional disturbance “was caused by her fear for her
own safety.” Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 93 (1997). Plaintiffs
provide no facts upon which to infer that Ms. Mott feared for her own safety while in
defendant’s rehabilitation program or that it was this fear, rather than other things, that
caused her physical injury or emotional distress. As a result, plaintiffs have failed to
state a claim for negligent infliction of emotional distress. This aspect of defendant’s
motion to dismiss is granted.6
Under the CCPA, a plaintiff bringing a private claim for relief must show:
(1) that the defendant engaged in an unfair or deceptive trade practice; (2)
that the challenged practice occurred in the course of defendant’s business,
vocation, or occupation; (3) that it significantly impacts the public as actual
or potential consumers of the defendant’s goods, services, or property; (4)
that the plaintiff suffered injury in fact to a legally protected interest; and (5)
that the challenged practice caused the plaintiff’s injury.
Crowe v. Tull, 126 P.3d 196, 201 (Colo. 2006). Plaintif fs must satisfy “the heightened
pleading requirements [of] Rule 9(b) to prove a deceptive or unfair trade practice.”
HealthONE of Denver, Inc. v. UnitedHealth Grp. Inc., 805 F. Supp. 2d 1115, 1120-21
(D. Colo. 2011). Defendants argue that plaintiffs have failed to allege the third and fifth
Defendant argues that plaintiffs fail to establish the third element because Mr.
Carmichael’s representations to Mr. Mott were not made to the public at large and
because plaintiffs have failed to allege details regarding defendant’s public
misrepresentations. Docket No. 34 at 7. In order to establish the third elem ent of a
CCPA claim, plaintiff must show that the challenged practice “significantly impact[s] the
public as actual or potential consumers of the defendant’s goods, services, or property.”
See Hall v. Walter, 969 P.2d 224, 234 (Colo. 1998). Courts consider at least three
factors when evaluating public impact:
To whatever extent Mr. Mott attempts to assert a claim of his own for negligent
infliction of emotional distress, he fails to satisfy the requisite elements. Draper, 282
P.3d at 497 (holding that direct effect on plaintiff is requirement; witnessing injury to a
loved one is insufficient).
(1) the number of consumers directly affected by the challenged practice, (2)
the relative sophistication and bargaining power of the consumers affected
by the challenged practice, and (3) evidence that the challenged practice has
previously impacted other consumers or has the significant potential to do so
in the future.
Crowe, 126 P.3d at 208. Public impact may be shown by reference to
misrepresentations that are directed to the market generally in the form of
advertisements. Hall, 969 P.2d at 235. However, the CCPA does not provide a remedy
for wrongs purely private in nature. Crowe, 126 P.3d at 208.
The Court agrees with defendants that Mr. Carmichael’s representations were
made only to Mr. Mott and cannot therefore form the basis of a CCPA claim; the
complaint does not otherwise allege that Mr. Carmichael made these same
representations to members of the public at large. See Docket No. 30 at 3, ¶¶ 13-16.
However, the complaint alleges that defendant made false claims through its website to
the public at large, which included claims that the rehabilitation program has a 76%
success rate, can remove drug residues that cause drug cravings and relapse, and is
not based on religion. Docket No. 30 at 12-13, ¶ 84; id. at 3-4, ¶ 17. Although the
complaint does not indicate that a precise number of consumers have been or will be
affected by the representations made on defendant’s website, misrepresentations that
are “directed to the market generally, taking the form of widespread advertisement and
deception of actual and prospective purchasers” have been found to satisfy this
element. See Hall, 969 P.2d at 235. The complaint suggests that defendant’s website
is directed to the general public, as further evidenced by the fact that Mr. Mott
contacted defendant after an internet search for an appropriate drug rehabilitation
facility. See Docket No. 30 at 3, ¶ 12. Thus, the Court is unpersuaded by defendant’s
argument that defendant’s website is only likely to be viewed by people specifically
seeking out Narconon treatment. See Docket No. 49 at 6. Rather, the complaint
contains sufficient facts to infer that the alleged misrepresentations on defendant’s
website have significant potential to impact members of the general public searching
the internet for drug rehabilitation programs.7
Defendant argues that, because Ms. Mott was not herself exposed to the alleged
misrepresentations, plaintiffs fail to establish that the alleged misrepresentations
caused Ms. Mott’s injuries. Docket No. 34 at 8. 8 The Court disagrees. Plaintiffs’ theory
of causation is that, but for Mr. Mott’s exposure to the alleged misrepresentations, Ms.
Mott would not have attended defendant’s rehabilitation program and would not have
suffered injuries as a result. Docket No. 47 at 13. Ms. Mott’s injury occurred as a result
of Mr. Mott’s reliance on defendant’s statements, which is the type of injury the CCPA is
designed to protect against and plaintiffs’ “proposed causation chain is not too
attenuated” so as to render Ms. Mott’s CCPA claim implausible. See Crowe, 126 P.3d
Defendant argues that, because the term “consumer” is defined under the CCPA
as “a person who has been exposed to defendant’s violations,” Ms. Mott is not a
consumer and cannot recover under the CCPA. Docket No. 49 at 7 (quoting May Dep’t
Stores Co. v. State ex rel. Woodard, 863 P.2d 967, 973-74 (Colo. 1993)). However, a
The Court need not consider plaintiffs’ remaining arguments on the public issue
element, including those arguments which rely on facts not alleged in the complaint.
Defendant makes no argument with respect to Mr. Mott’s injuries.
private right of action under the CCPA is available to “any person” who satisfies all five
of the elements for a CCPA claim, regardless of whether that person is a consumer.
Hall, 969 P.2d at 231, 235 (“W e also reject a reading of the phrase [“any person”] that
would make “any person” indistinguishable from “any consumer” under the CCPA”).
Thus, the fact that Ms. Mott was not directly exposed to the challenged representations
does not, as discussed above, foreclose upon the possibility that she is a person
entitled to recover under the CCPA. Defendant’s argument is therefore without merit.
This aspect of defendant’s motion to dismiss is denied.
Defendant argues that plaintiffs’ RICO claim should be dismissed for failure to
state a claim. Docket No. 34 at 8. Plaintiffs respond that they are no longer pursuing a
RICO claim against defendant. Docket No. 47 at 2. As a result, plaintiff’s RICO claim
will be dismissed.
For the foregoing reasons, it is
ORDERED that defendant’s Motion to Dismiss the First, Fifth, Seventh and
Eighth Causes of Action in Plaintiffs’ Section Amended Complaint [Docket No. 34] is
GRANTED in part and DENIED in part as indicated in this order. It is further
ORDERED that plaintiffs’ claims for intentional infliction of emotional distress, for
Plaintiffs do not appear to request leave to amend their complaint, nor do
plaintiffs provide any basis upon which to conclude that the identified deficiencies in
their claims for intentional infliction of emotional distress and negligent infliction of
emotional distress could be corrected by amendment. See Forman v. Davis, 371 U.S.
178, 188 (1962) (noting that denying leave to amend is justified if proposed
amendments would be futile).
negligent infliction of emotional distress, and for violation of the RICO statute are
DATED March 17, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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