Moon v. Harrison Piping Supply (375 F. Supp. 2d 577, 2005)

United States District Court for the Eastern District of Michigan 2005-05-12

Citations

Full opinion text

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S COMPLAINT UNDER RULE 12(b)(6)

BORMAN, District Judge.

Now before the Court are Defendants’ motions to dismiss Plaintiffs complaint under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, to stay proceedings. The Court heard oral argument on February 7, 2005. Having considered the entire record, and for the reasons that follow, the Court:

1) DISMISSES Plaintiffs claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq., because they fail to state claims for which relief may be granted, and because Michigan’s Workers’ Disability Compensation Act, M.C.L.A 418.131, et seq., reverse-preempts those claims under the MeCarran-Ferguson Act, 15 U.S.C. § 1012(b); and

2) DISMISSES Plaintiffs state-law claims of intentional infliction of emotional distress against Defendants for failure to state claims for which relief may be granted.

I. FACTS

At all times relevant to the instant action, Timothy Moon (“Plaintiff’) was an employee of Harrison Piping Supply (“Harrison”). (1st Am. Compl. at ¶ 4.) The Michigan Tooling Association Workers Compensation Fund (“the Fund”) and the Michigan Tooling Association Service Company (“the Service”) insured Harrison for workers-compensation claims and adjusted such claims for Harrison, respectively. (Id.) Dr. Asit Ray (“Ray”) examined Plaintiff, on behalf of the other Defendants, concerning his entitlement to workers compensation benefits. (Id. at ¶9(0)

On June 7, 2004, Plaintiff filed a First Amended Complaint against Harrison, the Fund, the Service, and Ray (collectively “Defendants”), alleging that each Defendant engaged in a fraudulent enterprise to deny Plaintiff of his workers’ compensation benefits in violation of the Racketeer Influenced and Corrupt Organizations Act (“the RICO Act”), 18 U.S.C. § 1961, et seq., and alleging that the corporate Defendants intentionally inflicted emotional distress upon Plaintiff in violation of Michigan law. (Id. at ¶¶ 7-19.)

On July 20, 2004, Harrison filed the instant motion to dismiss Plaintiffs complaint under Federal Rule of Civil Procedure 12(b)(6) or to stay proceedings. The stay relates to the fact that Plaintiff has an on-going workers’ compensation claim proceeding. The Service, the Fund, and Ray concur in this motion to the extent that Harrison’s arguments would equally apply to Plaintiffs claims against them. (Ray Mot. at 2.) On August 13, 2004, Ray filed the instant motion to dismiss Plaintiffs complaint under Federal Rule of Civil Procedure 12(b)(6) or to stay proceedings. Much of that motion merely repeats the arguments that Harrison raises in its motion to dismiss. On September 1, 2004, the Fund filed the instant motion to dismiss Plaintiffs First Amended Complaint. Both the Service, as an agent of the Fund, and Harrison concur in this motion to the extent that the Fund’s arguments equally apply to Plaintiffs claims against them. On November 16, 2004, the Service filed the instant motion to dismiss Plaintiffs complaint under Federal Rule of Civil Procedure 12(b)(6). Harrison concurs in this motion to the extent that the challenges that it raises equally apply to Plaintiffs claims against Harrison.

II. ANALYSIS

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise as a defense to a claim for relief in a pleading the opposing party’s failure to state a claim upon which relief can be granted. Rule 12(b)(6) is designed to test whether, as a matter of law, a plaintiff is entitled to legal relief. Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir.1987). Before dismissing a complaint for failure to state a claim upon which relief can be granted, a court must conclude “beyond [a] doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Carver v. Bunch, 946 F.2d 451, 452 (6th Cir.1991).

To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and accept well-pleaded facts as true. Columbia Natural Resources Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995). Thus, a court may not grant a Rule 12(b)(6) motion based upon its disbelief of a complaint’s factual allegations. Id. A court, however, need not accept as true conclusions of law or unwarranted factual inferences. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987).

Federal Rule of Civil Procedure 9(b) provides that, “[i]n all averments of fraud ..., the circumstances constituting fraud ... shall be stated with particularity.” Compare Begala v. PNC Bank, Ohio, Nat Ass’n, 214 F.3d 776, 781 (6th Cir.2000) (holding that RICO pleadings are to be liberally construed).

Rule 12(b) provides:

If, on a motion asserting the defense ... [of] failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

A. RICO Claims

The Court will proceed to discuss the following issues related to Plaintiffs RICO claims:

1) whether the primary-jurisdiction doctrine mandates a stay of Plaintiffs RICO claims;

2) whether the Burford, doctrine mandates a stay of Plaintiffs RICO claims;

3) whether the complaint pleads a predicate act of witness tampering;

4) whether the complaint pleads predicate acts of mail/wire fraud with the necessary particularity;

5) whether the complaint pleads the requisite pattern of racketeering activity as to each Defendant;

6) whether the complaint pleads detrimental reliance to establish the necessary causation;

7) whether the complaint pleads the requisite pattern of racketeering activity;

8) whether the complaint pleads the necessary impact on interstate or foreign commerce;

9) whether the complaint pleads a distinct criminal enterprise;

10) whether the McCarran-Ferguson Act reverse-preempts Plaintiffs RICO claims; and

11) whether the Labor Management Relations Act preempts Plaintiffs RICO claims.

1. The Primary-Jurisdiction Doctrine

In their motions to dismiss, Defendants contend that the primary-jurisdiction doctrine applies to Plaintiffs RICO claims. Plaintiff has filed a claim for workers’ compensation benefits before the Workers’ Disability Compensation Bureau (“the WDCB”), and is awaiting a final determination on that claim.

The doctrine of primary jurisdiction’s aim is to “promot[e] proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Specifying when the doctrine of primary jurisdiction is applicable, the Supreme Court has held:

.... ‘Primary jurisdiction’ applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of a claim requires a resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case[,] a judicial process is suspended pending referral of such issues to the administrative body for its views.

Id. at 63-64, 77 S.Ct. 161. Thus, the primary-jurisdiction doctrine applies where: 1) the Court has original jurisdiction over the claim before it; 2) the adjudication of that claim requires the resolution of certain underlying issues; and 3) a regulatory scheme commits the resolution of those issues to an administrative agency’s special competence. In deciding whether the primary-jurisdiction doctrine applies in any given case, the court must determine whether the application of that doctrine in the particular case would serve the following twin rationales underlying that doctrine: 1) uniformity in questions of an administrative nature; and 2) the expert and specialized knowledge of the relevant agency to the issue in question. Id. at 64, 77 S.Ct. 161.

The threshold requirements for the applicability of the primary-jurisdiction doctrine are met here. First, despite Defendants’ arguments to the contrary, the Court clearly has jurisdiction over Plaintiffs RICO claims. Second, the adjudication of Plaintiffs RICO claims — i.e. that Defendants engaged in a RICO enterprise fraudulently to deny Plaintiff workers’ compensation benefits — hinge, in part, upon whether Plaintiff is entitled to those benefits in the first instance. Lastly, a regulatory scheme of the Michigan legislature commits the resolution of one’s entitlement to workers’ compensation benefits in the first instance to the special competence of the WDCB. Specifically, Michigan’s Workers’ Disability Compensation Act (“the WDCA”), M.C.L. 418.841(1), provides:

Any dispute or controversy concerning compensation or other benefits shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau or a workers’ compensation magistrate, as applicable.

The primary-jurisdiction doctrine’s twin rationales are also met here. Given the complicated medical issues underlying Plaintiffs entitlement to workers’ compensation benefits, the WDCB, rather than the Court, possesses the necessary expertise and the specialized knowledge properly to resolve those underlying issues and, thus, the ultimate issue of Plaintiffs entitlement to benefits. Deferring to the WDCB’s determination of a plaintiffs entitlement to workers’ compensation benefits in cases such as this would promote uniformity in such determinations. Thus, a consideration of the relevant factors counsels in favor of applying the primary-jurisdiction doctrine to stay the adjudication of Plaintiffs RICO claims, if they survive the instant motion.

On the other hand, it is unclear whether the primary-jurisdiction doctrine properly applies in favor of a state administrative agency where the claim at issue arises under federal law and there is no competing federal forum. 73 C.J.S. Public Administrative Law and Procedure § 72. The majority of courts that have applied the primary-jurisdiction ■ doctrine have done so in favor of a federal administrative agency. See Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 96 L.Ed. 576 (1952) (applying the doctrine in favor of the Federal Maritime Board in the context of federal claims); Western Pac. R.R. Co., 352 U.S. at 63-64, 77 S.Ct. 161 (applying the doctrine in favor of the. Interstate Commerce Commission in the context of federal claims); In re Long Distance Telecommunications Litigation, 831 F.2d 627, 631-32, 634 (6th Cir.1987) (applying the doctrine in favor of the Federal Communications Commission in the context of federal claims).

In County of Suffolk v. Long Island Lighting Co., the United States Court of Appeals for the Second Circuit held that, subject to a narrow exception, the primary-jurisdiction doctrine does not apply in favor of a state administrative agency where there is a federal claim at issue and where there is no competing federal forum. 907 F.2d 1295, 1310 (2d Cir.1990) (holding that the exception applies where a state administrative agency operates pursuant to a federal legislative scheme). The Second Circuit chiefly reasoned that the “theoretical underpinning of the primary-jurisdiction doctrine ... is the authority [that] Congress intended th[e] [administrative] agency to exercise within a particular statutory scheme.” Id. (emphasis in original); see Far East Conference, 342 U.S. at 574-75, 72 S.Ct. 492 (addressing the doctrine in terms of a regulatory scheme that Congress created, and noting that courts and administrative agencies are “means adopted to attain the prescribed end ... through co-ordinated action”). The Second Circuit elaborated that, “[i]n the federal question/federal agency context, the creation of an agency and the grant to it of certain adjudicative authority may evince a congressional intent to limit the judiciary’s jurisdiction.” County of Suffolk, 907 F.2d at 1310. As the Court pointed out, “the independent act of a state legislature in creating a particular administrative body ... can shed no light on Congress’ intent to limit the jurisdiction of the federal courts[.]” Id. at 1311. While finding that the agency-expertise rationale underlying the primary-jurisdiction doctrine was implicated in the case, the Court underscored that it is that doctrine’s theoretical underpinnings that control its applicability, “not the functional competence of an agency[.]” Id. at 1310.

However, in the subsequent case of Johnson v. Nyack Hospital, the Second Circuit held that, under the primary-jurisdiction doctrine, the district court should have stayed the plaintiffs federal antitrust claim pending a state administrative agency’s determination of the complicated factual issues underlying that claim. 964 F.2d 116, 122-23 (2d Cir.1992) (noting that, under the distinct doctrine of exhaustion, the issue is whether Congress’ statutory intent was to render a federal claim cognizable only in the first instance by an administrative agency, whether state or federal). While recognizing that most cases applying the primary-jurisdiction doctrine did so in favor of a federal administrative agency, the Court reasoned that the application of that doctrine there served the underlying rationales of agency expertise and judicial economy. Id. The Court neither mentioned nor distinguished County of Suffolk. Thus, it is unclear what remains, if anything, of the precedential value of County of Suffolk.

As discussed below, in any event, the Burford doctrine would compel the stay of Plaintiffs RICO claims pending the WTDCB’s final determination of Plaintiffs entitlement to workers’ compensation benefits.

2. Burford Abstention Doctrine

The Burford abstention doctrine takes its name from the Supreme Court’s decision in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In Rouse v. DaimlerChrysler Corporation, the United States Court of Appeals for the Sixth Circuit underscored that the aim of the Burford doctrine is to “avoid conflict with a state’s administration of its own affairs.” 300 F.3d 711, 716 (6th Cir.2002). The Sixth Circuit held that, therefore, the Burford doctrine “applies only if a federal court’s decision on a state law issue is likely to ‘interfere with the proceedings or orders of state administrative agencies.’ ” Id. (internal quotation marks omitted). The Sixth Circuit further held:

The Burford abstention [doctrine] should not be applied unless: (1) a ease presents ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,’ or (2) the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’

Id. (citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)); see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (implicitly recognizing that the Burford doctrine may apply where the case involves either a “state-law claim” or “an assertion that the federal claims [were] ... entangled in a skein of state law that must be entangled before the federal case can proceed”) (internal quotation marks omitted). Since Burford, the Supreme Court has held that a federal court may dismiss or remand a complaint “based on abstention principles only where the relief being sought is equitable or otherwise discretionary.” Quackenbush, 517 U.S. at 731, 116 S.Ct. 1712 (illustrating such equitable or discretionary relief with suits for injunctive relief or certain classes of declaratory judgments). However, the Court noted that, in actions “at law” or for damages, it has only permitted federal courts, based on abstention principles, to “enter a stay order that postpones adjudication of the dispute, not to dismiss the federal suit altogether.” Id. at 719, 116 S.Ct. 1712.

The Fund contends that, under the Burford doctrine, the Court should stay the adjudication of Plaintiffs RICO claims pending the WDCB’s final determination of Plaintiffs entitlement to workers’ compensation benefits in the first instance. (Fund Br. at 9.) Plaintiff, in response, maintains that the Fund has failed to present any meaningful argument on the applicability of the Burford doctrine to Plaintiffs RICO claims. (Resp. to Fund at 11.) However, the Burford doctrine implicates important issues of comity.

The determination of Plaintiffs entitlement to workers’ compensation benefits in this federal forum would likely frustrate or undermine Michigan’s workers’ compensation scheme, as set forth in the WDCA. That administrative scheme is comprehensive, setting forth the nature and amount of the particular benefits to which it affords entitlement, the scope of any such entitlement, and the administrative and judicial processes for resolving any disputes regarding that entitlement. As even a cursory review of Dr. Ray’s medical report demonstrates, the determination of Plaintiffs entitlement to workers’ compensation benefits hinges upon complex medical issues. Given the expertise and specialized knowledge necessary to resolve such underlying issues properly, the determination of Plaintiffs entitlement to workers’ compensation benefits in this federal forum may result in an adjudication that would be contrary to that of the WDCB. Indeed, the frequent resolution, in a federal forum, of a plaintiffs entitlement to workers’ compensation benefits in cases such as this would likely undermine the uniformity and coherence in such determinations that Michigan seeks to achieve via its establishment of the WDCB.

Contrary to Plaintiffs assertion, an employee’s entitlement to workers’ compensation benefits bears upon “policy problems of a substantial public import” or “matter[s] of substantial public concern.” See Rouse, 300 F.3d at 716. (Resp. to Fund at 10.) As the Michigan Supreme Court has declared:

The primary purpose of the ... [WDCA] is to provide benefits to the victims of work-related injuries by allocating the burden [of] these payments to the employer and, therefore, ultimately, to consumers. An employee who suffers an injury arising out of and in the course of his employment will be eligible for compensation regardless of whether the employer was at fault. In return, the employer is immunized from tort liability because the ... [WDCA], under M.C.L. § 418.131(1) ..., provides that this compensation is the exclusive remedy for a personal injury, except for an injury resulting from intentional tort. Thus, ... [the WDCA’s] purpose is to provide ... not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate.

Simkins v. General Motors Corp., 453 Mich. 703, 710, 556 N.W.2d 839 (1996). Thus, an employee’s entitlement to workers’ compensation benefits bears upon Michigan’s significant interest in safeguarding the policy balance that the legislature struck in the WDCA by ensuring employees’ speedy and no-fault recovery of guaranteed compensation for work-related injuries and by shielding employers, in exchange for providing their employees with such compensation, from liability beyond that which the WDCA permits. Moreover, both Michigan’s employers and their employees have substantial interests in gaining their respective benefits from that regulatory balance. In determining an employee’s entitlement to workers’ compensation, a federal forum may not be as adept at navigating that policy balance as the WDCB, to which the Michigan Legislature entrusted that task in the first instance. Moreover, the improper denial of an employee’s entitlement to workers’ compensation benefits for a work-related disability would be of great public important were that employee, consequently, to become a ward of the state.

Comparatively-speaking, in contrast to its substantial interest in resolving the federal-law issues of Plaintiffs RICO claims, this federal forum would have minimal interest in determining Plaintiffs entitlement to workers’ compensation benefits. Thus, the Court would stay Plaintiffs RICO claims if they survived the instant motion, based on Plaintiffs claim of entitlement to workers’ compensation benefits, pending a final determination of Plaintiffs entitlement to those benefits via Michigan’s workers’ compensation scheme.

3. RICO Claims

The RICO Act, 18 U.S.C. § 1961, et seq., affords a civil remedy when an individual is “injured in his business or property” by virtue of a violation of § 1962 of the Act. See 18 U.S.C. § 1964(c)(providing that the person may “recover threefold the damages [that] he sustains and the cost of the suit, including a reasonable attorney’s fee”). Section 1962(c) of the RICO Act provides, in part:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity ...

18 U.S.C. § 1962(c).

The RICO claims that Plaintiffs complaint sets forth solely arise under § 1962(c). In the instant motions to dismiss, Defendants contend that Plaintiffs complaint, however, fails to plead claims under § 1962(c) for which relief may be granted.

The elements of a viable cause of action under 18 U.S.C. § 1962(c) are: 1) the conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity. Central Distributors of Beer, Inc. v. Conn, 5 F.3d 181 (6th Cir.1993)(quoting Sedima v. Imrex, 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). Section 1961(1)(B) of the RICO Act defines the requisite “racketeering activity” to include, as a predicate act, “any act which is indictable under any of the following provisions of title 18, United States Code ... section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), ... [and] section 1512 (relating to tampering with a witness, victim, or an informant)[.]” 18 U.S.C. § 1961(1)(B). Section 1961(5) of the RICO Act mandates that the requisite “pattern of racketeering activity” include at least two acts of such activity, which must have occurred within a ten-year period. 18 U.S.C. § 1961(5).

a. Predicate Acts

Plaintiffs complaint appears to allege seven distinct predicate acts. The complaint seems to allege the following predicate acts of mail fraud under 18 U.S.C. § 1341, which allegations are summarized as follows:

1)On July 24, 2003, the Fund, via employee Jackson and from Farmington Hills, Michigan, mailed through the U.S. mail to Plaintiff in Taylor, Michigan, a Notice of Dispute terminating Plaintiffs workers’ compensation benefits on the ground that he was “fully released to [his] job”; this termination was fraudulent because Defendants knew that Dr. Smith and Dr. Balarezo had not fully released Plaintiff to his job, and Harrison subsequently refused to permit Plaintiff to work within his restrictions (Compl. at ¶ 9(c), (d));

2) On March 25, 2004, the Fund and the Service sent to Plaintiff in Taylor, Michigan, via the U.S. mail a notice of examination by Ray; this notice was part of Defendants’ fraudulent scheme to deprive Plaintiff of his workers’ compensation benefits in that Defendants, through their attorney, Thaddeus Felker, relied upon Ray to use that examination to provide a false “cut off’ medical report by which Defendants could terminate such benefits, rather than to examine Plaintiff objectively or truthfully (Compl. at ¶ 9(f));

3) After April 8, 2004, but before April 26, 2004, Ray, in Warren, Michigan, mailed via the U.S. mail to the Fund and the Service in Farmington Hills, Michigan, the report of his April 8, 2004, medical examination of Plaintiff, which report fraudulently stated that Plaintiff was no longer disabled due to a work-related condition (Compl. at ¶ 9(f));

4) On April 26, 2004, Defendants’ agent, attorney Felker, in Birmingham, Michigan, mailed Ray’s report, via the U.S. mail, to Plaintiffs attorney in Southfield, Michigan (Compl. at ¶ 9(f)); and

5) On April 16, 2004, the Fund, via employee Jackson, mailed from Farm-ington Hills, Michigan, via the U.S. mail to Plaintiff in Taylor, Michigan, a Notice of Dispute stating “no work[-]related disability”; this statement was fraudulent in that Defendants knew that Dr. Smith had found Plaintiff disabled and that Dr. Ray had not objectively examined Plaintiff (Compl. at ¶ 10.).

Allegations 2 -5 relate to the medical examination/diagnosis of Defendant Ray. The complaint also alleges a predicate act of mail and/or wire fraud under 18 U.S.C. §§ 1341 or 1343, respectively. The allegations that potentially relate to this predicate act are summarized as follows:

6) Defendants expressly or tacitly communicated to Dr. Ray that it wanted to obtain a “cut off’ medical report, and Dr. Ray knew that he was not to perform an objective examination of Plaintiff. Defendants used the mail and electronic communications to further this fraud by communicating amongst each other to perpetrate this fraud. Defendants used the wires for interstate communications in effectu-ation of their scheme. (Compl. at ¶¶ 9(f), 16.)

The complaint also alleges a predicate act of witness tampering, as follows:

7) Defendants’ actions violated 18 U.S.C. § 1512. (Compl. at ¶ 11).

(1) Witness Tampering

Harrison argues that Plaintiffs complaint fails to sufficiently plead a predicate act of witness tampering under 18 U.S.C. § 1512. (Harrison Reply at 3.) Paragraph 11 of Plaintiffs complaint alleges the totality of Plaintiffs claim regarding § 1512:

Defendants’ actions violated 18 U.S.C. § 1512. This allegation is based in part on information and belief, and are likely to have evidentiary support after a reasonable opportunity for investigation and discovery.

This is not a sufficient pleading to proceed further on his claim, given the motion to dismiss. This claim does not explain how Defendants’ actions violated § 1512. Accordingly, the Court dismisses Plaintiffs claim of a RICO violation tied to 18 U.S.C. § 1512.

(2) Mail and/or Wire Fraud

A plaintiff must prove each element of the predicate act or “racketeering activity” for a civil action under the RICO Act to lie. Central Distributors of Beer, Inc. v. Conn, 5 F.3d 181, 183-84 (6th Cir.1993). “To allege a violation of the mail fraud statute, it is necessary to show that: 1) the defendants formed a scheme or artifice to defraud; 2) the defendants used the United States mails or caused a use of the United States mails in furtherance of the scheme; and 3) the defendants did so with the specific intent to deceive or to defraud.” Id. at 184 (citing Schreiber Distributing v. Serv-Well Furniture, 806 F.2d 1393, 1399 (9th Cir.1988)).

Where a plaintiff relies upon mail or wire fraud to constitute a predicate act under RICO, Rule 9(b) requires that he must allege, at a minimum, the time, place, and contents of the fraudulent communications. Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir.1984).

(a) Requisite Particularity

In its motion to dismiss, Harrison contends that Plaintiffs complaint fails, as a matter of law, to plead the predicate acts of wire or mail fraud underlying his RICO claims with the particularity that Rule 9(b) requires. (Harrison Br. at 4-5.) Specifically, Harrison contends that Plaintiffs complaint fails to plead the time, place, and contents of the communications underlying the alleged predicate acts of mail and/or wire fraud. (Id.)

Federal Rule of Civil Procedure 9(b) states:

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

Plaintiffs complaint pleads the time, place, and contents of the communications that he claims underlie five alleged predicate acts of mail fraud, per paragraphs 9(c),(d),(f), and 10 and as numbered 1-5 above. Indeed, Plaintiffs complaint alleges the time of each mailing, the sender and recipient of each mailing, the locations of the sender and recipient of each mailing, the content of each mailing, and how each mailing relates to the alleged RICO fraudulent enterprise. (1st Am. Compl. at ¶¶ 9(c),(d),(f), 10.)

As to the sixth predicate act of mail and/or wire fraud, per paragraphs 9(f) and 16 and numbered as six above, Plaintiffs complaint fails to plead the time, place, or contents of that communication. (ComplJ ¶ 9, 16.) In Rotella v. Wood, the United States Supreme Court affirmed that Rule 11(b)(3) provides some “flexibility” concerning Rule 9(b)’s particularity requirement. 528 U.S. 549, 560, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (citing Corley v. Rosewood Care Center, Inc. of Peoria, 142 F.3d 1041, 1050-51 (7th Cir.1998), in which the court relaxed Rule 9(b)’s particularity requirements where the RICO plaintiff lacked access to all facts necessary to detail his claim). On the other hand, as Harrison notes, while Rule 11(b)(3) may relax Rule 9(b)’s particularity requirement, it cannot be construed to eviscerate that requirement in its entirety by permitting rank speculation. The Court strikes from the complaint this predicate act. Accordingly, the Court will not consider it as to further discussion of this motion.

(b) Pattern of Racketeering Activity as to Each Defendant

Harrison contends that Plaintiffs complaint fails to plead that Harrison committed at least two predicate acts of mail and/or wire fraud. (Harrison Br. at 4-5.) In essence, Harrison argues that Plaintiff must specifically allege predicate acts attributable to Harrison, rather than predicate acts attributable to other Defendants or unidentified employees associated with Harrison. (Id. at 7.) Plaintiff concedes that the complaint does not allege any communications, whether fraudulent or otherwise, by Harrison or one of its employees. (Resp. to Harrison at 5.) Plaintiff argues that his complaint, nevertheless, alleges fraudulent communications that are attributable to Harrison because individuals acting in concert with Harrison, as part of the fraudulent enterprise, made those communications. (Id.)

The Court finds instructive In re American Honda Motor Company, Inc. Dealerships Relations Litigation, 958 F.Supp. 1045 (D.Md.1997), the authority upon which Plaintiff relies. In that case, the district court refused to dismiss the plaintiffs’ civil RICO claim under § 1962(c) based upon predicate acts of mail fraud. Id. at 1048, 1055. The court expressly held that, for liability under § 1962(c), it is insufficient that a defendant “conduct[ed] or particípatele!] directly or indirectly, in the conduct of [an] enterprise’s affairs”; rather, the defendant must also have done so “through a pattern of racketeering activity.” Id. at 1057-58. Thus, the district court, in essence, held that each defendant must engage in the requisite “pattern of racketeering activity”-i.e. the commission of at least two predicate acts.

As to the defendant law firm in American Honda alleged to have “participated in managing the concealment of the illegal scheme,” the court noted that the plaintiffs’ complaint did not allege that the law firm mailed any of the fraudulent materials. Id. at 1048, 1057. The court observed that, unless aiding and abetting principles were to apply, the defendant law firm could not have engaged in the predicate acts of mail fraud. Id. at 1057. The court then held that aiding and abetting principles apply to the substantive predicate acts under § 1961(1) and, thus, to the determination of whether a defendant participated in the enterprise through a “pattern of racketeering activity.” Id. at 1058-59 (relying, in part, upon 18 U.S.C. § 2, which renders an individual who aids and abets in an offense against the United States punishable as a principal). According to the court, the application of such principles to the predicate acts under § 1961(1) would afford a “principled basis for imposing § 1962(c) liability upon a class of defendants whom Congress surely intended ... [to] be within the statute’s purview: leaders of enterprises who do not themselves commit predicate acts but who cause others to do so”; otherwise, “the highest-level managers of a criminal enterprise who leave the hands-on work to others would be excluded from liability under § 1962(c) by virtue of the “through a pattern of racketeering activity phrase.” Id. at 1058-59. The court then found that the defendant law firm aided and abetted in the commission of the predicate acts of mail fraud. Id. at 1059.

Finding American Honda Motor Company persuasive, the Court holds that aiding and abetting principles and/or the language of the mail fraud statute-“causes to be deposited”-apply to the substantive predicate acts under § 1961(1), including predicate acts of mail and/or wire fraud, and, thus, to the determination of whether a defendant participated in the enterprise through a “pattern of racketeering activity.” Plaintiffs complaint specifically alleges that: 1) the Fund, either itself or via its employee Cindy Jackson, committed three predicate acts of mail fraud by mailing two fraudulent Notices of Dispute and one fraudulent notice of examination to Plaintiff (Compl. at ¶¶ 9(c), 9(f), and 10.); 2) Ray committed one predicate act of mail fraud by mailing his fraudulent report (Id. at ¶ 9(f)); and 3) Attorney Felker, Defendants’ agent, mailed Ray’s fraudulent report (Id.).

Drawing all reasonable inferences from the allegations in Plaintiffs complaint in the non-moving party’s favor, the Court finds that Plaintiffs complaint gives rise to a reasonable inference that Harrison could be liable, under aiding and abetting and/or “causation” principles, for at least two predicate acts of mail and/or wire fraud. The alleged predicate acts of mail fraud surround Plaintiffs entitlement to workers’ compensation benefits as well as the termination of those benefits. Plaintiffs complaint alleges that “[djecision regarding paying claims or terminating payment were made jointly by [Defendant corporations, or were made by the Fund and/or the Service ... after consulting with each other and Harrison.” (Compl. at ¶ 4.) Thus, Plaintiffs complaint alleges that Harrison participated, with the corporate Defendants, in making decisions regarding Plaintiffs entitlement to workers’ compensation benefits.

In his motion to dismiss, Ray argues that Plaintiffs complaint fails to plead at least two predicate acts of mail and/or wire fraud that are attributable to Ray. (Ray Mot. at 5.) Plaintiffs complaint specifically alleges that Ray himself committed one predicate act of mail fraud by mailing his report. (Compl. at ¶ 9(f)) Drawing all reasonable inferences from the allegations in Plaintiffs complaint in Plaintiffs favor, the Court finds that Plaintiffs complaint gives rise to a reasonable inference that Ray is liable, under aiding and abetting and/or “causation” principles, for at least one more predicate act of mail and/or fraud. Plaintiffs complaint specifically alleges that the Fund, via its employee Cindy Jackson, committed a predicate act of mail fraud by mailing a fraudulent Notices of Dispute based upon Ray’s fraudulent medical report, and that the corporate Defendants, via Felker, committed another predicate act of mail fraud by mailing Ray’s fraudulent report. (Compl. at ¶¶ 9(f), 10.)

The Service, in its motion to dismiss, argues that Plaintiffs complaint fails to plead that the Service committed any predicate acts of mail and/or wire fraud because the Service was a defunct corporation that no longer operated during the time of those alleged acts. (Service Br. at 2.) In support, Defendant Service contends that it adjusted workers’ compensation claims on behalf of Harrison, including the initial benefits claim that Plaintiff submitted to Harrison, until December 31, 2002, when the Fund terminated its contract with the Service. (Id. at 3.) According to the Service, since January 1, 2003, it has not adjusted any claims on behalf of Harrison and, indeed, ceased its operations and became defunct on that date. (Id.) The Service contends that the Fund and its employees, such as Cindy Jackson, assumed the operations and duties of the Service. (Id.)

Plaintiffs complaint does not allege any predicate acts that occurred before January 1, 2003. Moreover, at oral argument, Plaintiff conceded that the Service was no longer in existence as of January 1, 2003. Rather, according to Plaintiff, Cindy Jackson, who originally worked for the Service, stopped working for the Service and starting working for the Fund after the Service ceased operations. Based upon this concession, Plaintiffs complaint fails to plead at least two predicate acts that are attributable to the Service and, thus, fails to plead a RICO claim against the Service for which relief may be granted. See 18 U.S.C. § 1961(5). The Court, therefore, DISMISSES Plaintiffs RICO claim against the Service.

(c) Detrimental Reliance as an Element of Mail and/or Wire Fraud

In its motion to dismiss, Harrison contends that Plaintiffs complaint must allege that Plaintiff detrimentally relied upon the communications underlying the predicate acts of mail and/or wire fraud as an element of those acts. Plaintiff contends otherwise.

In Blount Financial Services, Inc. v. Waller E. Heller & Co., 819 F.2d 151, 152-53 (6th Cir.1987), the United States Court of Appeals for the Sixth Circuit held that a civil RICO complaint involving a predicate act of mail fraud must allege “with particularity the false statement of fact made by the defendant which the plaintiff relied on and the facts showing the plaintiffs reliance on defendant’s false statement of fact” to establish the “scheme to defraud” element of mail fraud. Accord Bender v. Southland Corporation, 749 F.2d 1205, 1216 (6th Cir.1984); Central Distributors of Beer, Inc. v. Conn, 5 F.3d 181, 184 (6th Cir.1993). The Sixth Circuit continues to espouse this holding.

In the instant case, Plaintiff does not claim any reliance on the medical opinion letter of Ray.

b. Detrimental Reliance to Establish Causation

Harrison argues that, even if Plaintiffs complaint need not allege that Plaintiff detrimentally relied upon the communications underlying the predicate acts of mail and/or wire fraud as an element of those predicate acts, Plaintiffs complaint must plead such detrimental reliance to establish the requisite causation between Defendants’ alleged fraud and Plaintiffs injury. (Harrison Reply at 2.) Plaintiff contends otherwise. (Resp. to Ray at 9.)

In Grantham and Mann, Inc. v. American Safety Products., Inc., the Sixth Circuit underscored that § 1964(c) requires a civil RICO plaintiff to have been “injured in his business or property by reason of a violation of’ § 1962. 831 F.2d 596, 605 (6th Cir.1987). Rephrasing this causation requirement, the Sixth Circuit held that the plaintiffs alleged injury must have been “by reason of’ the defendant’s fraud — i.e. the predicate acts of mail and/or wire fraud underlying the defendant’s alleged violation of § 1962(c). Id. at 606. To establish the necessary causation, the Sixth Circuit held, however, that the plaintiff must demonstrate that it was “deceived by” and detrimentally relied upon the defendant’s fraudulent communications underlying the predicate acts of mail and/or wire fraud. Id. (relying, for analogous support, upon Bender v. Southland Corporation, 749 F.2d 1205, 1216 (6th Cir.1984), in which the Court held that the requisite “scheme to defraud” for predicate acts of wire and/or mail fraud required a showing of justifiable reliance upon the alleged fraudulent communications). Thus, the Sixth Circuit held in Grantham that the plaintiff must detrimentally rely upon the defendant’s alleged fraudulent communications underlying the predicate acts of mail and/or wire fraud so as to establish the requisite causation under § 1964(c).

Plaintiff argues that his complaint sufficiently pleads his detrimental reliance upon Defendants’ fraudulent communications underlying the predicate acts of mail and/or wire fraud so as to establish the necessary causation under § 1964(c), if such a showing were required. (Resp. to Harrison at 11.) Plaintiffs complaint, per paragraph 12, avers:

Plaintiff relied on the fraudulent communications to the extent [that] he suffered the financial loss of having to pay attorney fees, medical care and medical mileage. Defendants’ fraud directly caused injury to [P]laintiff because it deprived him of workers^] compensation benefits and because it caused him the expense of paying attorney fees, medical care and mileage to and from medical care.

As Harrison and Ray note, however, Plaintiffs complaint pleads, in essence, that he relied upon the alleged fraudulent communications by challenging and disclaiming the truthfulness or validity of the content of those communications, rather than assuming the truthfulness or validity of such content and by taking actions based upon that assumption to his detriment. (Harrison Reply at 5; Ray Mot. at 9.) Yet, as Grantham teaches, to establish § 1964(c)’s causation, the plaintiff must detrimentally rely upon the alleged fraudulent communications by virtue of being “deceived by” them. 831 F.2d at 606.

Here, three of the six predicate acts of mail and/or wire fraud in Plaintiffs complaint, as numbered 1, 4, and 5 above, involve the mailing of Notices of Dispute setting forth the alleged reason for Defendants’ denial of Plaintiffs workers’ compensation benefits or the mailing of Ray’s medical report stating that Plaintiff no longer had a work-related disability. (Compl. at ¶ 9(c), (d)(f).) However, instead of detrimentally relying upon those communications by virtue of being deceived by their content, Plaintiff, as their complaint acknowledges, challenged the validity of that content in the first instance. Thus, Plaintiffs injury arose, not from his reliance upon such fraudulent communications, but, rather, from Defendants’ denial of Plaintiffs workers’ compensation benefits. See Grantham, 831 F.2d at 606.

Moreover, a plaintiff cannot detrimentally rely upon any alleged fraudulent communications that were not directed to him. Cf. Central Distributors of Beer, Inc. v. Conn, 5 F.3d 181 (6th Cir.1993). Here, an additional two of the six predicate acts of mail and/or wire fraud, as numbered 3 and 6 above, allege fraudulent communications by Defendants that were not directed at Plaintiff; rather, they involve Ray mailing his medical report to the Service and the Fund, and Defendants “expressly or tacitly communicat[ing]” to Ray that they wanted to obtain a cut-off report. (Compl. at ¶¶ 9(f), 16.) As to the remaining predicate act of mail fraud, as numbered 2 above, Plaintiffs complaint does not allege how he detrimentally relied upon the notice of examination by Ray that Defendants mailed to him. (Compl. at ¶ 9(f)).

By failing to plead the requisite causation under § 1964(c) between Plaintiffs injuries and the six predicate acts of mail and/or wire fraud that Plaintiffs complaint alleges, Plaintiffs RICO claims based upon any such predicate acts fail to state claims for which relief may be granted. Because Plaintiffs RICO claims, consequently, fail to plead at least two predicate acts upon which such claims may be granted, they necessarily fail to plead the requisite “pattern of racketeering activity.” See 18 U.S.C. § 1961(5). The Court, therefore, DISMISSES all of Plaintiffs RICO claims for failure to state claims for which relief may be granted.

c. Requisite “Pattern of Racketeering Activity”

Defendants argue that, even if Plaintiffs complaint were properly to plead at least two predicate acts, those acts would be insufficient to establish the requisite “pattern” of such activity. (Harrison Br. at 6; Ray Mot. at 6.) In H.J., Inc. v. Northwestern Bell Telephone Company, the United States Supreme Court observed that, while the RICO Act, 18 U.S.C. § 1961(5), sets forth the minimum number of predicate acts necessary to establish the requisite “pattern of racketeering activity,” it presumes that the requisite pattern entails something “beyond simply the number of predicate acts involved.” 492 U.S. 229, 237, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Rather, the Court held that, to establish a “pattern of racketeering activity,” the plaintiff must demonstrate that the predicate acts are related and that they amount to, or threaten the likelihood of, continuing racketeering activity. Id. at 239-240, 109 S.Ct. 2893.

As the Court elaborated, the issue of whether predicate acts are related depends upon such factors as whether the predicate acts “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Id. at 240, 109 S.Ct. 2893 (internal quotation marks omitted).

Harrison argues that the predicate acts that Plaintiffs complaint pleads are not “sufficiently contiguous and related in all relevant factors to as to constitute” the requisite pattern. (Harrison Br. at 7.) However, those predicate acts, as alleged in Plaintiffs complaint, are sufficiently related. The predicate acts alleged in Plaintiffs complaint involve Plaintiff as the victim of those acts, share the common purpose of fraudulently denying Plaintiffs workers’ compensation benefits, and contribute to the execution of that common purpose. See H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893 (outlining such factors as whether the predicate acts have the same or similar victims, purposes, or results). When considering principles of aider-and-abetter liability, the predicate acts entail the same participants. See H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893 (outlining this as a factor in the relatedness determination). Moreover, several of the predicate acts that Plaintiffs complaint alleges involve mail fraud and, thus, entail the same method of commission. See id. (outlining this as a factor in the relatedness determination). As Plaintiffs complaint makes clear, the alleged predicate acts are not “isolated events” but, rather, are “interrelated by distinguishing characteristics.” Id. (internal quotation marks omitted).

Rather, the principal issue here is whether the alleged predicate acts amount to, or threaten the likelihood of, continuing racketeering activity. See H.J. Inc., 492 U.S. at 239-40, 109 S.Ct. 2893. In H.J., the Court explained that element as comprising “both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” Id. at 241, 109 S.Ct. 2893 (noting that “[i]t is, in either case, centrally a temporal concept”). According to the Court, “[a] party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time.” Id. at 242, 109 S.Ct. 2893 (holding that “[predicate acts extending over a few weeks or months and threatening no future criminal conduct” are insufficient). The Court further held that a party alleging a RICO violation may also demonstrate the requisite continuity by proving that the predicate acts give rise to a threat of continuing racketeering activity; as the Court noted, RICO plaintiffs often attempt to establish continuity in this manner since they typically must bring the action before the substantial period of time in which to demonstrate a closed-period of continuity has occurred. Id. (holding that such a determination is fact-specific).

In Columbia Natural Resources, Inc. v. Tatum, the Sixth Circuit held, presumably as to the element of continuity, that a court should consider various factors, such as: 1) “the length of time [that] the racketeering activity existed [the longer the better]”; 2) “the number of different schemes (the more the better)”; 3) “the number of predicate acts within each scheme (the more the better)”; 4) “the variety of species of predicate acts (the more the better)”; 5) “the distinct types of injury (the more the better)”; 6) “the number of victims (the more the better)”; and 7) “the number of perpetrators (the less the better).” 58 F.3d 1101, 1110 (6th Cir.1995). Illustrating the applicability of these factors, the Sixth Circuit noted that, “at one extreme is a perpetrator committing two predicate acts, in one day, in one scheme, causing a single injury, to a single victim,” which circumstances do not demonstrate the requisite “pattern of racketeering activity,” and, “[a]t the other extreme, [is] a perpetrator engineering dozens of schemes, and using myriad predicate acts to further each scheme, against numerous victims causing numerous injuries,” which circumstances demonstrate the required pattern. Id.

To sufficiently plead closed-period continuity, Plaintiffs complaint must plead “a series of related predicates extending over a substantial period of time.” H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893. Here, Plaintiff contends that the predicate acts that his complaint pleads “occur[] over two years.” (Resp. to Harrison at 7.) However, the time between the first predicate act that is alleged, July 24, 2003, (Compl. at ¶ 9(c)), and the last predicate act that is alleged, April 16, 2004, (Compl. at ¶ 10.), spans less than 9 months. Such a period of time is not sufficiently “substantial” to demonstrate closed-period continuity. See H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893 (holding that “[predicate acts extending over a few weeks or months and threatening no future criminal conduct” are insufficient).

To demonstrate open-ended continuity, in the alternative, the plaintiff must show that the predicate acts give rise to a threat of continuing racketeering activity. Id. The Court will consider, in turn, each of the factors that Columbia Natural Resources, Inc., sets out. As to the number of different schemes, Ray contends that, at the most, the pleadings show the existence of a single scheme to deny Plaintiffs workers’ compensation benefits. (Ray Mot. at 8.) In H.J., the Supreme Court aptly observed that the number of “schemes” depends upon the level of generality with which one views the alleged criminal activity, and, in illustrating the principle behind this observation, noted that one may view each fraudulent decision in pursuit of a single fraudulent objective as a distinct scheme. 492 U.S. at 241 n. 3, 109 S.Ct. 2893. In this case, therefore, while the alleged over-all fraudulent objective was to deny Plaintiffs workers’ compensation benefits, each alleged predicate act to accomplish this aim could be viewed as a scheme within that greater scheme, especially where those predicates acts were punctuated by the termination of Plaintiffs benefits, a reinstatement of those benefits, and then another termination of those benefits. In any event, even if Plaintiffs complaint alleged only a single scheme, the Supreme Court noted in H.J. Inc. that, while evidence of multiple criminal schemes would be highly relevant to the continuity element, predicate acts may form the requisite pattern even if they fall within a single scheme. 492 U.S. at 236, 240, 109 S.Ct. 2893; see Fleischhauer, 879 F.2d at 1298 (finding a “pattern of racketeering activity” where each defendant committed predicate acts of fraud, there were 19 victims of that fraud, and there was only a single scheme).

Regarding the number of predicate acts within each scheme, Plaintiffs complaint, arguably, alleges seven predicate acts within the greater scheme of terminating Plaintiffs workers’ compensation benefits. As to the length of time that the racketeering activity existed, it lasted not even 9 months. Concerning the “variety of species of predicate acts,” Plaintiffs complaint alleges five predicate acts of mail fraud, one predicate act of mail and/or wire fraud, and one predicate act of witness tampering. Regarding “the distinct types of injury,” Harrison aptly notes that Plaintiffs alleged injuries stem from Defendants’ denial of Plaintiffs workers’ compensation benefits. (Harrison Br. at 7.) As to “the number of victims,” Plaintiff is the only alleged victim. (Harrison Br. at 7.) Lastly, concerning “the number of perpetrators,” Plaintiffs complaint alleges only 4: Harrison, the Service, the Fund, and Ray. The Court finds that these factors, on balance, counsel against finding an open-ended threat of racketeering activity.

Of special note, Plaintiff claims that his complaint sufficiently pleads the requisite threat of continuity in that it demonstrates “the likelihood that ... [the predicate acts] will continue for many more years because [P]laintiff is permanently disabled and remains subject to [Defendants’ scheme of paymenUcut-offipayment/cut-off.” (Resp. to Harrison at 7.) However, Defendants’ actions undermine Plaintiffs’ claim of continuity; Defendants have submitted to the WDCB to resolve, once and for all, the issue of Plaintiffs entitlement to workers’ compensation benefits rather than agreeing to pay those benefits voluntarily.

The Court concludes that, even if Plaintiffs complaint sufficiently plead at least two predicate acts, that complaint would, nevertheless, fail to allege that those acts amount to, or threaten the likelihood of, continuing racketeering activity so as to plead a “pattern of racketeering activity,” as § 1962(c) requires. Based upon this alternative ground, the Court DISMISSES Plaintiffs RICO claims for failure to state claims for which relief may be granted,

d. Commerce Requirement

As the Sixth Circuit had held, “for purposes of § 1962(c), the criminal enterprise need only have a minimal impact upon interstate commerce.” United States v. Robinson, 763 F.2d 778 (6th Cir.1985). “Moreover, only the criminal enterprise itself or the racketeering activities associated with the enterprise, not the conduct of each individual defendant, must affect interstate commerce.” Allen v. United States, 45 Fed.Appx. 402, 405, 2002 WL 2026279, *3 (6th Cir.2002) (unpublished opinion).

The Fund, in its motion to dismiss, argues that Plaintiffs complaint fails to plead that the alleged enterprise affected interstate or foreign commerce, an element of a claim under 18 U.S.C. § 1962(c). (Fund Br. at 8) Plaintiff, in turn, points to paragraph 16 of his complaint, which alleges that “Defendants used the Postal Service and the wires for interstate communications in effectuation of their scheme.... ” (Resp. to Fund at 7.) In reply, the Fund questions how the complaint’s allegations of mailings from Farm-ington Hills, Michigan, to Taylor, Michigan, Warren, Michigan, and to Southfield, Michigan, plead an affect on interstate commerce. (Fund Reply at 3.)

In the event that his complaint fails to plead RICO’s interstate-commerce element adequately, Plaintiff seeks the Court’s leave to file an amended complaint adding the following allegation:

Defendants’ enterprise affected interstate commerce and the movement of goods, services, and people in interstate commerce, in that (1) Harrison Piping operates in both Michigan and Ohio and owns a place of business in Ohio, and (2) the Fund must pay benefits to claimants wherever they live in the United States, and to Ohio residents if they are injured in Michigan as well as to Michigan residents if they are injured in Ohio.

(Resp. to Fund at 7.) However, because Plaintiffs RICO claims do not survive the instant motions to dismiss, any such amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

e. Enterprise Requirement

For purposes of a claim under 18 U.S.C. § 1962(c), a plaintiff “must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 162, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001). 18 U.S.C. § 1961(3) defines “person” to include “any individual or entity capable of holding a legal or beneficial interest in property.” 18 U.S.C. § 1961(4) defines “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” See Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir.1993) (holding that, to constitute an “enterprise,” “an association-in-fact must be an ongoing organization, its members must function as a continuing unit, and it must be separate from the pattern of racketeering activity in which it engages”). In sum, “one or more of the [defendants must be the single ‘person’ who acts upon the enterprise in such a way that the enterprise’s affairs are conducted in the pattern of racketeering.” Ross v. Omnibusch, Inc., 607 F.Supp. 835, 838 (W.D.Mich.1984); see also Bennett v. Berg, 685 F.2d 1053, 1060 (8th Cir.1982). The pleadings must sufficiently describe the distinction between the separate “person” and the separate “enterprise.” Fleischhauer v. Feltner, 879 F.2d 1290, 1296-97 (6th Cir.1989).

Only “persons” may be liable for a violation of § 1962(c), not the “enterprise” itself. Id. at 1296. Moreover, liability under § 1962(c) hinges upon a “showing that the defendants conducted or participated in the conduct of the ‘enterprise’s affairs, not just their own affairs.” Reves v. Ernst Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993)) (emphasis in original).

Defendants maintain that Plaintiffs complaint fails to plead the existence of a distinct “person” and a distinct “enterprise” so as to sustain his § 1962(c) claim. (Service Br. at 8-9.) First, Defendants assert that Plaintiffs complaint simply alleges that Defendants constitute the “enterprise.” (Id. at 10.) As Defendants note, paragraph 5 of the complaint alleges that “Defendants formed an ‘enterprise’ for purpose of’ RICO, and paragraph 15 alleges that “Defendant’s Workers Compensation officials formed an ‘enterprise’ within the meaning of the RICO Act.” (Id. at 9.) According to Defendants, Plaintiffs complaint fails to allege the existence of any “person.” (Id. at 10.)

Plaintiff, in response, argues that his complaint, per paragraphs 5, 13, and 15, properly pleads the existence of an “enterprise” distinct from each “person” constituting that “enterprise.” (Resp. to Service at 5-6.) Those paragraphs allege, in part:

... Defendants formed an enterprise for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO)....

At all times and in all actions plead in this complaint, [Defendants acted in concert with each other. Decisions regarding paying claims or terminating payment were made jointly by the corporate [Djefendants, or were made by the Service Company or the Association after consulting with Harrison, or were ratified by Harrison after being made by the Association or the Service Company....

Defendants’ workers compensation officials formed an ‘enterprise’ within the meaning of the RICO Act. The members of the enterprise engaged, in this case, in the pattern of racketeering described above in para[graph] 9. Dr. Ray became part of the enterprise by his actions, described above. On information and belief, one or more members of the enterprise engaged in similar acts to defraud other person