Citations
- 43 F. Supp. 3d 575
Full opinion text
MEMORANDUM OPINION
DEBORAH K. CHASANOW, District Judge.
Numerous motions are pending and ready for resolution in this putative class action civil RICO case, including: (1) a motion to dismiss the federal claims or to abstain filed by Defendants King Auto of Silver Spring LLC; King Buick GMC, LLC (“King Buick GMC”); King Hagers-town Motors LLC; King Lincoln, Inc.; King Vehicles, LLC; and King Volkswagen, LLC (ECF No. 34); (2) a separate motion filed by King Buick GMC, LLC to dismiss the claims in Counts I through VII of the amended complaint (ECF No. 36); (3) a motion to dismiss or, in the alternative, for summary judgment on Counts I through VII, filed by King Auto of Silver Spring, LLC; King Hagerstown Motors LLC; King Lincoln, Inc.; King Vehicles, LLC; and King Volkswagen, LLC (ECF No. 37); (4) a motion to consolidate cases filed by Plaintiff Latechia Chambers (ECF No. 63); (5) a motion for leave to file surreply and supplemental Rule 56(d) Declaration filed by Plaintiff (ECF No. 68); and (6) a motion to strike three notices of supplemental authority filed by Defendants (ECF No. 73). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants’ motion to dismiss federal claims or to abstain will be granted in part. King Buick GMC’s motion to dismiss will be granted in part, and the other Defendants’ motion to dismiss or for summary judgment will be granted. Plaintiffs motion for leave to file surreply and supplemental Rule 56(d) Affidavit and motion to consolidate cases will be denied. Defendants’ motion to strike Plaintiffs notices of supplemental authority will be denied.
I. Background
This case traces its origin to March 17, 2011 and February 18, 2012, when Comfort Kaakyire and Latechia Chambers purchased, respectively, a used 2008 Saturn Outlook and 2010 Dodge Caliber from King Buick GMC. (ECF No. 22 ¶ 18). Ms. Kaakyire and Ms. Chambers each executed a Buyer’s Order with King Buick GMC, which did not indicate that these vehicles were prior short-term rentals. (See ECF No. 22-2). Ms. Kaakyire instituted a putative class action lawsuit in the Circuit Court for Howard County on January 13, 2013, and later transferred the case to the Circuit Court for Montgomery County. On May 14, 2013, Ms. Kaakyire filed a first amended class action complaint in the Circuit Court for Montgomery County, on behalf of herself and a class of similarly situated consumers, alleging violations' of COMAR 11.12.01.14(M)(1) due to King Buick GMC’s failure to disclose the prior use of sold vehicles as short-term rental vehicles. This provision governs disclosure of former vehicle use:
(1) Vehicles formerly used for a purpose other than a consumer good shall be clearly and conspicuously identified! as to their former use. This includes, but is not limited to, vehicles formerly used:
(f) As short-term rental vehicles.
COMAR 11.12.01.14(M)(l)(f).
On August 2, 2013, Ms. Kaakyire’s counsel filed a notice of voluntary dismissal in the state court action, and subsequently filed a class action complaint in this court on August 12, 2013 against the following Defendants: King Buick GMC; and King Lincoln, Inc., King Auto of Silver Spring, LLC, King Vehicles, LLC, King Hagers-town Motors LLC, and King Volkswagen, LLC (“the Other Dealer Defendants”). (ECF No. 1). The Defendants filed separate motions to dismiss, but before the motions were adjudicated, Plaintiff filed an amended complaint on October 17, 2013, adding Latechia Chambers as a Named Plaintiff. (ECF No. 22). On October 22, 2013, Defendants tendered a Rule 68 Offer of Judgment to Ms. Kaakyire, which she accepted. (ECF No. 24). On December 13, 2013, the undersigned entered judgment against Defendants as to Ms. Kaaky-ire’s claims, and she was dismissed from the lawsuit. (ECF No. 45). Thus, Latec-hia Chambers remains the only putative Named Plaintiff here.
The amended complaint by Ms. Chambers against all of the Defendants states that Defendants misrepresented the prior short-term rental use of the vehicles sold to Plaintiff and members of the putative class in a pre-printed space on the Buyer’s Order specifically designed for the disclosure of this information. Although Defendants argue that Plaintiff was provided with a CarFax Report that revealed that the vehicle was a prior short-term rental, there is a dispute about whether the Car-Fax Report was provided to Plaintiff before she executed the purchase documents and whether Plaintiff initialed the CarFax Report as Defendants indicate. (See ECF No. 34-5, at 2). Plaintiff alleges that Defendants failed to disclose to her and members of the class “clearly and conspicuously” that the vehicles they purchased were previously used as short-term rentals in violation of Maryland law. The amended complaint states:
[a]s the Maryland Motor Vehicle Administration (“MVA”) recognized when it enacted COMAR regulations requiring disclosure of prior short-term rental use, [ ] buyers seek to avoid vehicles used for short-term rentals because of the perception and expectation that these vehicles are driven hard by drivers who care little about them, may not have been well or consistently maintained, and more often are involved in accidents than vehicles uses for personal, family, and household purposes.
(ECF No. 22 ¶ 3). In Plaintiffs view, this omission was intentional and part of a fraudulent scheme by King Buick and the Other Dealer Defendants—to whom she refers collectively as the “King Auto Group”—of selling used short-term rental cars without disclosing their origins in the Buyer’s Order or elsewhere clearly and conspicuously. Plaintiff asserts that Defendants consistently failed to make the requisite disclosures before consummating the sale transactions with car purchasers. COMAR 11.12.01.14(A)(2) defines “clear and conspicuous” as:
a statement, representation, or term different from other statements, representations or terms being made so as to be readily noticeable to the person to whom it is being disclosed either by its size, sound, length of time, color, placement in the advertisement, or the like.
Plaintiff maintains that “Defendants deliberately designed their standard sales agreements in a manner calculated to not draw attention to any disclosure of prior rental or other commercial use.” (ECF No. 22 ¶ 36).
Plaintiff asserts that the King Auto Group Defendants are all separately incorporated businesses that associate together as “King Auto Group,” as an association-in-fact, although there is no formal, legal entity with that name. These dealerships jointly market and sell vehicles and develop form documents such as the Buyer’s Orders used at each dealership. Plaintiff asserts:
Defendants have an agreement to work together to market and sell used vehicles and actively are doing so. Defendants’ cross-marketing and commingling and/or sharing of inventory and Carfax reports is evidence of their cooperation, joint agreements, and use of common procedures and documents to unlawfully sell such used vehicles without the disclosure required by Maryland law.
(ECF No. 22 ¶ 49). Plaintiff believes that all of the Defendants conspired to market and sell used vehicles without disclosing to consumers that the vehicles were previously used as short-term rentals. (Id. ¶ 45). Plaintiff states that Defendants King Lincoln, Inc. and King Vehicles, Inc. did not sell prior short-term rental vehicles in their own name but routinely sold these vehicles through “their King Auto Group coconspirators—King Buick, King Volkswagen, LLC, King Hagerstown Motors, LLC or King Auto of Silver Spring, LLC.” (Id. ¶ 44). Plaintiff further contends:
[a]s part of its scheme to mislead customers into believing that vehicles used for prior short-term rentals were never put to such use, King Auto Group dealerships further agreed to employ, and from time to time did employ, a form entitled “Disclosure of Prior Vehicle Use for Dealership or Commercial Purposes[.]” [ ] This form ... is provided to buyers only after they have signed the' sales agreement and thus become legally bound to purchase a vehicle, does not provide the “clear and conspicuous” disclosure of prior non-consumer use required by law.
(Id. ¶ 39). The amended complaint identifies fifteen additional vehicle sale transactions over a two-year period in which Defendants King Volkswagen LLC, King Hagerstown Motors, LLC, and King Auto of Silver Spring, LLC allegedly perpetrated the same fraudulent scheme to induce consumers into purchasing prior short-term rental vehicles. (Id. ¶ 43). Plaintiff alleges that she paid significantly more for her vehicle than it was worth and was overcharged as a result of the scheme.
The amended complaint asserts the following counts: implied warranty of merchantability (count I); violations of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301 et seq. (count II) and the Maryland Consumer Protect Act (“MCPA”) (count III); deceit by non-disclosure or concealment (count IV); unjust enrichment (count V); negligent misrepresentation (Count VI); breach of contract (count VII); and violations of the Federal Racketeer Influence and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(a), (c), and (d) (counts VIII, IX, and X). Defendants filed separate motions to dismiss. All of the Defendants filed a motion to dismiss the federal claims (RICO and the MMWA) or, in the alternative, for abstention (ECF No. 34). King Buick GMC filed a separate motion to dismiss addressing the non-RICO claims. (ECF No. 36). The Other Dealer Defendants filed a separate motion to dismiss or for summary judgment on the non-RICO claims. (ECF No. 37). All the motions have been fully briefed. On April 18, 2014, Plaintiff moved for leave to file a surreply and submit a supplemental Rule 56(d) Affidavit. (ECF No. 68). Plaintiff also moved to consolidate this matter with another putative class action against the same Defendants pending before the undersigned. (See ECF No. 63). Plaintiff filed multiple notices of supplemental authority (ECF Nos. 50, 64, 71, 76). Defendants moved to strike these notices, deeming them as impermissible surreplies. (ECF No. 73).
II. Standards of Review
A. Motion to Dismiss
All of the Defendants move to dismiss Plaintiffs RICO claims. King Buick GMC also filed a separate motion to dismiss the non-RICO claims. A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006). A plaintiffs complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claims showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).
At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). In evaluating the complaint, the court need not accept unsupported legal allegations. Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir.1989). Nor must it agree with legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844 (4th Cir.1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009). “[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 ‘show[n] ... that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “[djetermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Moreover, allegations of fraud—-which Plaintiff raises in both her RICO and state law claims—are subject to a heightened pleading standard under Rule 9(b). Harrison, 176 F.3d at 783. Rule 9(b) states that “in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Such allegations typically “include the ‘time, place and contents of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby.’ ” Superior Bank, F.S.B. v. Tandem Nat’l Mortg., Inc., 197 F.Supp.2d 298, 313-14 (D.Md.2000) (quoting Windsor Assocs., Inc. v. Greenfeld, 564 F.Supp. 273, 280 (D.Md.1983)). In cases involving concealment or omissions of material facts, however, meeting Rule 9(b)’s particularity requirement will likely take a different form. See Shaw v. Brown & Williamson Tobacco Corp., 973 F.Supp. 539, 552 (D.Md.1997) (recognizing that an omission likely “cannot be described in terms of the time, place, and contents of the misrepresentation or the identity of the person making the misrepresentation” (internal quotations omitted)). The purposes of Rule 9(b) are to provide the defendant with sufficient notice of the basis for the plaintiffs claim, to protect the defendant against frivolous suits, to eliminate fraud actions where all of the facts are learned only after discovery, and to safeguard the defendant’s reputation. See Harrison, 176 F.3d at 784. In keeping with these objectives, “[a] court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendants were] made aware of the particular circumstances for which [they] will have to prepare a defense at trial and (2) that [the] plaintiff has substantial prediscovery evidence of those facts.” Id.
B. Summary Judgment Standard
The Other Dealer Defendants move to dismiss or, in the alternative, for summary judgment on the non-RICO counts. Summary judgment may be entered only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). Summary judgment is inappropriate if any material factual issue “may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (quoting former Fed. R.Civ.P. 56(e)). “A mere scintilla of proof -... will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.2003). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.
III. Analysis
A. RICO Claims
Plaintiff asserts three claims for racketeering pursuant to RICO’s civil provision, 18 U.S.C. § 1964, which provides a cause of action to “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” Plaintiff alleges that all Defendants violated Section 1962(a), (c), and (d).
In order for a civil RICO claim to survive a Rule 12(b)(6) motion to dismiss, plaintiff must allege “(1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Plaintiff must additionally plead proximate cause, that is she was injured in her business or property “by reason of’ the RICO violation. Hemi Group, LLC v. City of New York, N.Y., 559 U.S. 1, 6, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). Defendants argue that Plaintiff has failed to allege: (1) a RICO enterprise separate and distinct from the persons as required by Section 1962(c); (2) a RICO enterprise separate and apart from the pattern of racketeering activity; (3) predicate acts of racketeering; (4) a pattern of racketeering activity; (5) effect on interstate commerce; (6) as to the Section 1962(a) claim, investment of proceeds from racketeering activity; and (7) as to the Section 1962(d) claim, lack of a conspiracy because there was no underlying RICO violation.
1. RICO Enterprise
Defendants argue that Plaintiff has not properly alleged the existence of a RICO enterprise. Under 18 U.S.C. § 1962(c), it is 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 or collection of unlawful debt.
“[T]o establish liability under § 1962(c) one 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, 161, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001). There must be a “person,” alleged to have violated Section 1962(c) and to be hable to the claimant for damages, who is separate and distinct from the “enterprise,” or tool, through which the RICO violation occurred. See Busby, 896 F.2d at 840-41. A “person” can be an individual or corporate entity. 18 U.S.C. § 1961(3). There may be multiple persons whose association with the same RICO enterprise gives rise to multiple violations of Section 1962(c). “Enterprise,” as set forth in 18 U.S.C. § 1961(4), “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” A RICO enterprise is characterized by “ ‘continuity, unity, shared purpose and identifiable structure.’ ” United States v. Fiel, 35 F.3d 997, 1003 (4th Cir.1994) (citation omitted). An “enterprise” requires proof of three elements: (1) an ongoing organization; (2) associates functioning as a continuing unit; and (3) the enterprise is an entity “separate and apart from the pattern of activity in which it engages.” Proctor v. Metro. Money Store Corp., 645 F.Supp.2d 464, 477-78 (D.Md.2009).
Plaintiff argues that the King Auto Group constitutes an association-in-fact enterprise. (ECF No. 48, at 76). An association-in-fact enterprise is not defined by a formal legal structure, but is instead characterized by the association of its members “for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Unlike Section 1962(a), Section 1962(c) “envisions the enterprise as being different from, not the same as or part of, the person” against whom recovery is sought. New Beckley Mining Corp. v. Int’l Union, United Mine Workers, 18 F.3d 1161, 1163 (4th Cir.1994) (internal citations omitted). “For the purposes of pleading, a corporation may be both a defendant ‘person’ and part of an association-in-fact enterprise.” Crown Cork & Seal Co. Inc. v. Ascah, No. 93-2933, 1994 WL 57217, at *4 (E.D.Pa. Feb. 18, 1994). To be organized, an association-in-fact enterprise “need not have a hierarchical structure or a chain of command; decisions may be made on an ad hoc basis and by any number of methods.” Boyle v. United States, 556 U.S. 938, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). On the other hand, “[v]ague allegations of a RICO enterprise ... lacking any distinct existence and structure” will not survive dismissal. VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 700 (6th Cir. 2000), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).
Defendants argue that Plaintiffs RICO allegations fail to differentiate between the “person” and the “enterprise,” and thus cannot show distinctiveness under Section 1962(c). Defendants contend that Plaintiff has alleged an enterprise that is “nothing more than the Defendants by a different name (‘King Auto Group’).” (ECF No. 34, at 20). Defendants essentially argue that because the “King Auto Group” is comprised of the individual dealership Defendants, Plaintiff merely attempts to refer to the “persons” by a different name. As Judge Garbis recently observed, however, in Bailey v. Atl. Automotive Corp., 992 F.Supp.2d 560, 582 (D.Md.2014), “there is certainly judicial recognition that ‘a defendant may be both a person and a member of a collective RICO enterprise’ without negating the distinctiveness requirement.” (citing In re Lupron Mktg. & Sales Practices Litig., 295 F.Supp.2d' 148, 173 (D.Mass.2003)); see also' United States v. Urban, 404 F.3d 754, 782 (3d Cir.2005) (noting that a RICO enterprise “may be comprised only of defendants, or of defendants and non-defendants.”). As explained in Lupron, “[t]he basic idea is that while one basketball player does not constitute a team, an association of five players does, without each losing his identity as a distinct person.” Id.; cf. Eason v. Merrigan, et al., No. Civ.A. DEC 2003-0933, 2004 WL 903756, at *2 (D.Md. Apr. 28, 2004) (“Plaintiffs RICO claim rests entirely on the allegations that Defendant Merrigan carried out his racketeering activity through the enterprise, Defendant Merrigan Enterprises, Inc. As stated, under Fourth Circuit case law, Defendant Merrigan Enterprise, Inc. cannot be both a defendant and the RICO enterprise.”). As will be seen, Defendants’ argument that each dealership and the “enterprise” are not sufficiently distinct under Section 1964(c) is unavailing.
Defendants’ reliance on Gondel v. PMIG 1020, LLC, Civ. Action No. CCB-08-1768, 2009 WL 248681 (D.Md. Jan. 22, 2009), and Myers v. Lee, No. 1:10cv131 (AJT/JFA), 2010 WL 3745632 (E.D.Va. Sept. 21, 2010) is misplaced. In Gondel, 2009 WL 248681, at *4, Judge Blake held that plaintiffs had not pled distinctiveness under Section 1962(c) because, unlike here, “[njowhere in [the] complaint d[id] plaintiffs [even] mention a distinct enterprise with which the corporate defendants associated in order to carry out their alleged racketeering scheme.” In Gondel, plaintiffs did not sufficiently differentiate between the individual defendants named in the complaint and the enterprise, comprised of the individual defendants and its agents. See also Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir.1994) (“by alleging a RICO enterprise that consists merely of a corporate defendant associated with its own employees or agents carrying on the regular affairs of the defendant, the distinctness requirement may not be circumvented.”). Plaintiff in Myers, 2010 WL 3745632, at *3, alleged that the “enterprise” was .the “Dahn Organization,” an association in fact among individuals and corporations “acting in .concert to target, control, and defraud its victims of their health, liberty, and property for the financial benefit of the Dahn Organization and its leader, Ilehi Lee.” Importantly, in deciding that plaintiff did not adequately distinguish between the “persons” and the “enterprise,” the court noted that “nowhere in the [a]mended [c]omplaint are there any allegations that the affairs of the enterprise are any different from the affairs of the defendants.” Id. at *4.
Here, the amended complaint states that each Defendant is a separately incorporated entity, has its own business location and employees, and that through “contractual arrangement and joint management activity, formed an association-in-fact with each other.” (ECF No. 22 ¶ 253). Plaintiff avers that “the function of the King Auto Group association-in-fact enterprise is to facilitate a fraudulent scheme of selling prior short-term rental vehicles to consumers without the disclosures required by Maryland law,” whereas each dealership Defendant is also engaged in legitimate vehicle sale transactions. (ECF No. 48, at 49). Myers, 2010 WL 3745632, at *5, further noted that “[w]hile the Dahn Organization may qualify as an association-in-fact enterprise, [plaintiff] must still prove these defendants participated in the conduct of enterprise’s affairs, not just their own affairs.” (internal citations omitted). The amended complaint delineates, to some extent, the roles played by different dealership Defendants in the association-in-fact enterprise. For instance, Plaintiff avers that Defendant King Vehicles, Inc. and King Lincoln Inc. advertised prior rentals for the other Defendants on its website-which the other Defendants allegedly sold without the requisite prior short-term rental disclosure-but did not sell the vehicles directly. Defendant King Hagerstown allegedly furnishes CarFax Reports which contradict the representations made in the sales agreements regarding prior short-term rental use of vehicles, which Plaintiff alleges is part of Defendants’ fraudulent scheme to conceal and misrepresent prior rental use of vehicles sold to consumers.
Bailey, 992 F.Supp.2d 560, also addressed the question of distinctiveness of the “persons” and “enterprise” in the context of Section 1962(e). Bailey involved a putative class action lawsuit by consumers against a used car seller, its parent corporation, and the parent’s other subsidiaries, alleging that the seller’s failure to identify cars as having been prior short-term rentals violated, inter alia, RICO. Unlike here, however, the dealer defendants in Bailey were wholly owned subsidiaries of Atlantic Automotive Corporation (“Atlantic”), also a named defendant. Plaintiff in Bailey alleged that the dealer defendants formed the MileOne Automotive enterprise, consisting of the parent company, Atlantic, and all of its subsidiaries. Under those facts, Judge Garbis reasoned that “just as adequate distinctiveness may be missing between a parent-person and a wholly owned subsidiary-enterprise (or vice ver-sa), it may also be lacking where the parent and its wholly owned subsidiaries are both the ‘alleged persons’ and the sole members of the association-in-fact enterprise.” 992 F.Supp.2d at 582 (emphasis added). Judge Garbis found the allegations in the second amended complaint inadequate to plead distinctiveness under Section 1964(c). He explained:
Heritage and the Other Dealer Defendants are wholly owned subsidiaries of Atlantic. Plaintiff alleges that Heritage and the Other Dealer Defendants are all used car dealerships under the operation and ownership of Atlantic and that these commonly owned entities operate jointly and associate together as MileOne Automotive to sell used vehicles legitimately, as well as fraudulently.
Unlike in Myers and Bailey, Plaintiff has made the requisite showing here. First, the Defendants are not subsidiaries of a single dealership; according to the amended complaint, each Defendant is an independent car dealership. Moreover, as Plaintiff explains, “[i]n contrast to the lack of distinction between the ‘persons’ and ‘enterprise’ in [] Myers, the King corporate Defendants joined together to form the King Auto Group association-in-fact not just to conduct their own separate affairs as individual car dealerships, but to facilitate a fraudulent scheme involving their co-conspirators.” (ECF No. 48, at 53-54). Plaintiffs allege in the amended complaint that each Defendant owned and operated its own dealership, but also associated together under the non-incorporated “King Auto Group.” (ECF No. 22 ¶ 6). The amended complaint states that “[a]ll of the Defendants share the moniker ‘King’ in their corporate names and jointly hold themselves out to the general public under the name King Auto Group.” (ECF No. 22 ¶ 6). Plaintiff further states that “Defendants conduct business using [the King Auto Group] name and have established a central website, http://www.King Auto.com.” (Id. ¶ 7). Plaintiff maintains that:
Through their association, Defendants developed and agreed upon the uniform and systematic scheme described herein to acquire and sell prior short-term rental vehicles to consumers without the disclosures required by Maryland law, with misleading and fraudulent omissions and representations concerning the history of the used vehicles being sold, and with the specific intent to deceive and defraud [ ] Plaintiff[ ] and members of the Class.
(Id. ¶ 10). The amended complaint further states that “Defendants, were each associated with the enterprise and participated in its management and/or operation by directing its affairs and/or by conducting business with each other and by participating and assisting in the fraudulent scheme described herein to acquire and sell prior short-term rental vehicles without the disclosures required by Maryland law.” (Id. ¶ 254); see Mitchell Tracey v. First Am. Title Ins. Co., 935 F.Supp.2d 826, 843-44 (D.Md.2013) (“the association’s common purpose was to charge borrowers inflated and illegal fees, to defraud members of the public and to give effect to the scheme described by a distinct division of labor”) (internal citations omitted).
Although “[a]n organization cannot join with its own members to undertake regular corporate activity and thereby become an enterprise distinct from itself,” this is not the case here. Begala v. PNC Bank, Ohio, N.A, 214 F.3d 776, 781 (6th Cir. 2000). Here, Plaintiff alleges that the “King Auto Group” is comprised of six different Defendant dealerships and performs functions beyond its ordinary business of selling cars. Defendants’ argument that the amended complaint fails to allege that the RICO enterprise has an existence separate and apart from the pattern of racketeering activity in which it was engaged is belied by Plaintiffs assertion that the enterprise also engages in legitimate vehicles sales transactions. (ECF No. 22 ¶ 126). Plaintiff similarly alleges that aside from engaging in a scheme to conceal prior short-term rental use of the vehicles each dealership sold, “the enterprise developed forms and marketing campaigns for legitimate vehicle sales transactions.” (Id. ¶ 126 (emphasis added)); see Proctor, 645 F.Supp.2d at 480 (finding that the complaint alleged a pattern of racketeering activity separate from the enterprise where the complaint alleged that the enterprise “did not exist solely for the purpose of engaging in predicate acts violative of RICO, but the enterprises also engaged in legitimate real estate transactions over the same period of time”). In Mitchell Tracey, 935 F.Supp.2d at 844, Judge Quarles found sufficient plaintiffs’ allegation that defendant and its title agents “deliberately overcharged and misappropriated amounts due for the purchase of title insurance, in violation of Maryland law.... Such unlawful acts are not conducted in the ordinary course of business.” Plaintiff similarly alleges that deceiving car buyers is “not a part of any of the Defendants’ normal business functions.” (ECF No. 48, at 52). Thus, viewing the pleadings in the light most favorable to Plaintiff, she has alleged an enterprise separate and distinct from the “person” and from the racketeering activity.
2. Pattern of Racketeering Activity
To show a “pattern of racketeering activity,” a plaintiff must “adequately plead at least two predicate acts of racketeering activity!.]” Am. Chiropractic Assoc., Inc. v. Trigon Healthcare, Inc., 367 F.3d 212, 233 (4th Cir .2004) (citing 18 U.S.C. § 1961(5)). Racketeering activity is defined under 18 U.S.C. § 1961(1), as “any act which is indictable” under a number of enumerated criminal provisions, which include violations of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), and 2314 (interstate transport of money converted or fraudulently obtained). Plaintiff cites these three sections as Defendants’ predicate acts.
The federal mail and wire fraud statutes prohibit the use of the mails or interstate wires in furtherance of schemes to defraud. 18 U.S.C. §§ 1841, 1343. To plead mail or wire fraud, a plaintiff must show: (1) a scheme, disclosing intent to defraud; and (2) the use, respectively, of the mails or interstate wires in furtherance of the scheme. See Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 336 (4th Cir.1996).. In the context of a RICO action, the mailings or wirings do not need to contain the misrepresentations that defrauded the plaintiff, but they must be in furtherance of the fraudulent, material misrepresentation upon which the plaintiff justifiably relied to her detriment. Id. at 337; see also Day v. DB Capital Grp., LLC, Civil Action No. DKC 10-1658, 2011 WL 887554, at *10 (D.Md. Mar. 11, 2011). Additionally, fraud allegations must state with particularity “the fraudulent acts that form the alleged pattern of racketeering activity” in accordance with Rule 9(b). Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.1989) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400-01 (9th Cir.1986)).
a. Predicate Acts
Defendants argue that Plaintiff fails sufficiently to plead mail and wire fraud because she cannot show that any Defendant other than King Buick GMC owed a legal duty to Plaintiff and the complaint also fails to identify any predicate acts of criminal wire and mail fraud committed by each of these Other Dealer Defendants. As to the legal duty argument, Plaintiff need not plead that each Defendant owed her a legal duty in order to plead a prima facie civil RICO claim.
Defendants further argue that Plaintiff fails to specify each Defendant’s role in the mail and wire fraud. Fed. R.Civ.P 9(b) states that “[i]n alleging fraud ... a party must state with particularity the circumstances constituting fraud.” Thus, when mail and wire fraud are asserted as predicate acts in a civil RICO claim, each must be pled with particularity required by Rule 9(b). See WW, LLC v. Coffee Beanery, Ltd., Civ. Action No. WMN-05-3360, 2012 WL 3728184, at *10 (D.Md. Aug. 27, 2012). Defendants state that Plaintiffs “repeated reference, in bare and .conelusory fashion, to the ‘defendants’ generally refers to all,of the different Defendants, without identifying which Defendant allegedly committed any act of mail or wire fraud, or made any fraudulent] misrepresentation, or to whom.” (ECF No. 34-1, at 26). Defendants assert that such generalized allegations do not meet the heightened pleading standard of Rule 9(b) required for civil RICO claims premised on fraud. Defendants in Superior Bank, F.S.B. v. Tandem Nat. Mortg., Inc., 197 F.Supp.2d 298 (D.Md.2000), posited the same argument, which was rejected. Defendants in Superior argued that plaintiff failed to allege a “pattern of racketeering activity” against them because the amended complaint did not allege that each defendant committed separate specific acts of mail or wire fraud. Judge Gar-bis concluded that “[t]his argument is completely without merit, as section 1962(c) includes no requirement that mail or wire be used by each defendant.” 197 F.Supp.2d at 323; see also Kerby v. Mortg. Funding Corp., 992 F.Supp. 787, 801 (D.Md.1998) (“just as the plaintiffs do not have to rely on the mail and wire communications themselves, but only on the misrepresentation that is furthered by those communications,[ ], the mails and wires do not have to be used by each defendant, but merely in furtherance of the scheme.”). More recently, Judge Quarles rejected this argument in Mitchell Tracey, 935 F.Supp.2d at 845, involving a class action lawsuit brought by homeowners against a title insurer alleging that the insurer and its agents overcharged homeowners for title insurance connected with refinancing. Defendant in Mitchell Tracey, 935 F.Supp.2d at 845, argued that plaintiffs failed sufficiently to plead mail and wire fraud because they did not identify the circumstances surrounding any false representations, including the time, place, content, and speaker. Judge Quarles rejected this argument:
“A scheme to defraud means any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value.” Levine v. First Am. Title Ins. Co., 682 F.Supp.2d 442, 462 (E.D.Pa. 2010). Here, the [plaintiffs allege that First American’s title agents made the initial contact with the consumer, and each time, they “falsely and intentionally misrepresented to their customers that they would pay only the filed or best rate for title insurance.... The [plaintiffs further allege that First American and its title agents acted with the intent to defraud: specifically, to overcharge borrowers for title insurance, “guaran-teefing] a stream of business” for First American.
935 F.Supp.2d at 845. Based on these allegations, Judge Quarles concluded that plaintiffs in Mitchell Tracey had shown a scheme to defraud.
Much like in Mitchell Tracey, at this juncture, Plaintiffs allegations are sufficient to survive a motion to dismiss. Plaintiff alleges that “Defendants failed to disclose and intentionally concealed from Named Plaintiffs and the Class the material fact that vehicles sold to them previously were used as short-term rentals.” (ECF No. 22 ¶ 4). Plaintiff asserts that “Defendants all used the identical form vehicle sales agreements[, which] included a space specifically designated for the disclosure of the prior non-consumer use of the vehicles being sold.” (Id. ¶ 54). Plaintiff asserts that despite this disclosure built into the form, “each Defendant routinely failed to use this space to identify the prior short-term rental use of the vehicles it sold to retail buyers and knew the other King Auto Group Defendants failed to do so as well.” (Id. ¶ 55). In addition to the sale transaction on February 18, 2012, when King Buick GMC allegedly failed to disclose to Ms. Chambers that the vehicle she purchased was a prior short-term rental, the amended complaint identifies fifteen (15) additional transactions over a two-year period, in which King Volkswagen, King Hagerstown Motors, and King Auto of Silver Spring allegedly “failed to disclose clearly and conspicuously the prior short-term rental use of used vehicles sold” to consumers. (Id. at 12-14); see DB Capital Grp., 2011 WL 887554, at *12 (finding sufficient allegations regarding other victims of defendants’ scheme and that the enterprise operated for at least two years and targeted dozens of properties, even where two predicate acts toward plaintiff were not alleged). Specifically, Plaintiff includes a chart in the amended complaint identifying the approximate vehicle sale date, a description of ’the vehicle (e.g., 2008 Volkswagen Jetta S, 2008 Mazda6I), and the vehicle identification number (‘WIN”). The amended complaint states that King Lincoln and King Vehicles did not sell prior short-term rental vehicles “in their own names but, rather, routinely sold these vehicles through their King Auto group coconspirators—King Buick, King Volkswagen, LLC, King Hagerstown Motors, LLC or King Auto of Silver Spring, LLC.” (Id. ¶ 44). Plaintiff asserts that King Lincoln and King Vehicles marketed prior rentals to consumers and “other King Auto Group Defendants consummated these sales on behalf of these two Defendants as part of and in furtherance of Defendants’ conspiracy, agreements, and aiding and abetting one another’s illegal acts.” (Id.). For purposes of a motion to dismiss, Plaintiff alleges with sufficient specificity the Defendants’ involvement in the alleged scheme to defraud consumers into purchasing vehicles previously used as short-term rentals by concealing or misrepresenting the fact that these vehicles were prior short-term rentals from the Buyer’s Order.
Defendants also argue that the amended complaint “fails to identify any fraudulent mail or wire sent allegedly by the Unrelated Defendants to Plaintiffs or anyone else in connection with the purchase of their vehicles.” (ECF No. 34-1, at 28). Defendants argue that “the Complaint fails to identify how the Unrelated Defendants allegedly used generic mail or wire to further the alleged fraudulent scheme against the Plaintiffi] (who they did not know and had no involvement) so as to constitute criminal mail and wire fraud under RICO.” (ECF No. 34-1, at 28). They argue that “[e]very commercial transaction will inevitably require using the mail or wire system as part of its ordinary business, but this does not establish criminal mail fraud or the requisite pattern of racketeering activity.” (Id.). As explained above, however, “[t]o be part of the execution of the fraud ... the use of the mails need not be an essential element of the scheme.” Schmuck v. United States, 489 U.S. 705, 710, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Instead, they need only be “incident to an essential part of the scheme.” Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954); see also In re Am. Honda Motor Co. Dealerships Litig., 941 F.Supp. 528, 546 n. 19 (D.Md.1996) (stating that “a mailing need only be a necessary step in furtherance of a scheme, and need not be fraudulent in and of itself.”). Moreover, despite the high standard demanded by the Rule 9(b) particularity requirement, in the context of RICO mail fraud, the court may also consider the interplay of the more liberal notice pleading standard of Rule 8, which simply requires “a short and plain statement.” Kerby v. Mortg. Funding Corp., 992 F.Supp: 787, 799 (D.Md. 1998); Coffee Beanery, 2012 WL 3728184, at *10. Courts have acknowledged the difficulty that arises in pleading a RICO suit against multiple defendants—such as the case here—and have determined that it is “not necessary that a plaintiff elucidate every single detail of the alleged fraud.” Coffee Beanery, 2012 WL 3728184, at *10; Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1058, 1074-75 (D.Md.1991). These courts have determined that, when balancing these rules,
[t]he most basic consideration in making a judgment as to sufficiency of a pleading is the determination of how much detail is necessary to give adequate notice to an adverse party and enable him to prepare a responsive pleading.
Kerby, 992 F.Supp. at 800.
Plaintiff has alleged the predicate acts of mail and wire fraud with sufficient particularity at this juncture. Plaintiff asserts that the mailings in furtherance of the fraudulent scheme included: the mailing and distribution among Defendants of contracts, form sale and credit agreements, and other documents used in the transactions of Plaintiff and members of the putative class. (ECF No. 22 T 102). Plaintiff further contends that:
Defendants and their co-conspirators on hundreds if not thousands of occasions used, and caused to be used, telephone, Internet and other wire transmissions including, but not limited to, use of the wires in the sale of vehicles previously used as prior short-term rental vehicles to Named Plaintiffi ] and members of the Class; in the emailing, faxing and transmission by wire of documents such as loan applications, vehicles sale and financing contracts and other documents related to the sale and financing of vehicles by Defendants to potential assignees in the transactions of Named Plaintiff[] and Class members who financed their vehicles with Defendants; in the electronic registration and titling system established with the MVA; and in the marketing of their enterprise “King Auto Group” and its vehicles on the Internet—with the intent to defraud and in furtherance of their scheme to defraud.
(Id. ¶ 103).
In Coffee Beanery, 2012 WL 3728184, at *11, Judge Nickerson found persuasive that “[p]laintiffs have outlined the alleged scheme to defraud, a time frame for the scheme, who was targeted by the scheme, the contents of the allegedly fraudulent communications that were sent using the mails and wires, and what [defendants hoped to obtain through the scheme.” Judge Nickerson held that “[cjoupling these specific allegations with the broader allegations that the [defendants used the mails as part of the scheme to defraud other unnamed potential franchisees is sufficient to meet the requirements of Rule 9(b).” Here too, Plaintiff has outlined the alleged scheme to defraud consumers by failing to disclose the prior short-term rental use of vehicles sold by the Defendants, a time frame for the alleged scheme, and the role of mail and wires in the scheme. See, e.g., Mitchell Tracey, 935 F.Supp.2d at 845 (finding sufficient allegations of mail and wire fraud where the complaint alleged “specific dates when [defendant] used the mail and electronic communication to further its scheme” and stated that distributions of the profits were sent interstate).
Plaintiff further asserts that “on or before February 18, 2012, Defendants used the wires to advertise the vehicle sold to Ms. Chambers on the Internet, “without the required clear and conspicuous disclosure of this vehicle’s prior use as a short-term rental required by Maryland law.” (Id. ¶ 106). Plaintiff avers that in February 2012, “Defendants used the wires and/or U.S. mail to submit a loan application, contract of sale, and other documents related to the sale to a potential assignee for the financing of Ms. [Chambers’s] prior but undisclosed short term rental vehicle— namely Capital One Anto Finance.” (Id. ¶ 112). Following the sale to Ms. Chambers, Defendants allegedly used the mails to “submit the original documents relating to the financing and sale of Ms. Chamber[s’s] vehicle to its assignee, Capital One.” (Id.).
Plaintiff contends that Defendants used the wires to “register and title Ms. Chambers’s] vehicle through an electronic registration and titling system.” (Id. ¶ 113). Specifically, Defendants allegedly used the wires electronically to transfer $587.95 of funds to the MVA in connection with Ms. Chambers’s transaction on February 18, 2012, for payment of sales tax, titling and registration fees. Defendants also allegedly used mails and wires to advertise and sell to putative class members the vehicles previously used as short-term rentals without the requisite disclosure in the fifteen additional transactions Plaintiff has identified in the complaint, including the date of the transaction. (Id. ¶¶ 108, 114; see also ¶ 104 (“Defendants used the Internet and the wires in connection with the sale of hundreds if not thousands, of vehicles sold to members of the class by providing a forum in which customers could search for and receive information regarding vehicles offered for sale by Defendants, including the prior rental vehicles sold by Defendants.”)). Plaintiff also avers that:
Defendants further used the wires to send and receive purchase orders, retail installment contracts, and other documents among their co-conspirators, funding lenders, and other entities; to distribute money among those entities; to transmit to the MVA information related to the registration and titling of motor vehicles purchased and sold by Defendants to Named Plaintiff! ] and members of the Class; to transmit among the Defendants forms and other documents used in the sale of vehicles.
(Id. ¶ 109). Finally, according to Plaintiff, “Defendants further used the wires to facilitate the operation of and to operate the fraudulent scheme- described herein, and to communicate with each [other] during the course of the scheme through telephone calls, facsimiles, e-mail transmissions, and wire transfers of money resulting from and in furtherance of the fraudulent scheme.” (Id. ¶ 116); see, e.g., Proctor, 645 F.Supp.2d at 474 (“[plaintiffs have pleaded the predicate acts of mail and wire fraud with particularity against the background of a grand mortgage foreclosure rescue scam that involved the sale and leaseback of [plaintiffs’ properties from which [two settlement agents] among others would siphon off and transfer the equity illegally.”).
In Coffee Beanery, 2012 WL 3728184, Judge Nickerson found sufficient the allegations supporting mail and wire fraud because plaintiffs specifically alleged the circumstances surrounding the use of the mails with regard to fraudulent statements and listed the material facts’they believed were fraudulently omitted. Coffee Bean-ery, 2012 WL 3728184, at *11. Judge Nickerson observed: [look to see if repetitive with prior]
Plaintiffs further provide the names of seven other individuals who received through the mails or wires copies of allegedly fraudulently UFOCs dated from 2002 and 2003.[ ] Plaintiffs then allege with particularity the fraudulent misrepresentations and omissions contained in Coffee Beanery’s UFOCs issued annually from September 2003 to October 2011.[ ] Making all inferences in favor of Plaintiffs, the Court can construe these allegations to suggest that every potential franchisee from 2002 until at least 2011 was provided with a fraudulent UFOC, and that the majority of the fraudulent UFOCs were transmitted through the mail or wires.
Id. Although the facts are less compelling here, Plaintiff identifies fifteen additional transactions between 2010 and 2011, in which consumers entered into sales agreements for vehicles as a result of Defendants’ fraudulent scheme to sell prior short-term rental vehicles without the requisite disclosures. For these fifteen transactions, Plaintiff identifies the approximate vehicle sale date, the vehicle description, VIN, and the Defendant dealership that consummated the transaction. (See ECF No. 48, at 41). Plaintiff asserts that mail and wire were used to send the loan documents and financing contracts in connection with the fraudulent transactions, to register and title the sold vehicles, and to wire funds to the MVA in connection with the vehicle sale transactions. (ECF No. 22 ¶¶. 111-114). These acts involving mail and wire use were allegedly made in connection with consummating the fraudulent sale of -the vehicles to induce unaware consumers into purchasing prior short-term rentals. See VNA Plus, Inc. v. Apria Healthcare Grp., Inc., 29 F.Supp.2d 1253, 1263 (D.Kan.1998) (noting that the requirements to plead specific instances of mail or wire fraud is “relaxed where there are ‘numerous mailings of standardized documents containing identical false representations.’ ”). Plaintiff points out that “[alb-sent their use of the mails and/or wires in connection with the financing, registration and titling of the prior short-term rentals they sold pursuant [to] their fraudulent scheme, Defendants would not have been able to consummate this scheme.” (ECF No. 48, at 62 n. 46).
Defendants also challenge Plaintiffs RICO allegations insofar as they fail to demonstrate that the conduct of the enterprise affected interstate commerce. Defendants assert that “the gravamen of Plaintiffs’ claim is that the ‘enterprise’ consists of Maryland-automobile dealers, licensed by the Maryland MVA to sell cars in Maryland to two Maryland residents in a manner that does not comply with the Maryland law applicable to automobiles sales occurring solely in Maryland.” (ECF No. 34-1, at 44). Defendants are correct that Plaintiff must plead the existence of a RICO enterprise whose activities affected interstate commerce. See DB Capital Group, 2011 WL 887554, at *13. The allegations in the amended complaint concerning interstate commerce are sufficient at this stage of the proceedings. As Plaintiff summarizes in the opposition, she “alleges the King Auto Group purchased previously used rental vehicles out-of-state for sale in Maryland, wired and mailed monies from Maryland to lenders outside of Maryland in connection with financing of such vehicles, and uses the wires and mails to forward loan applications, contracts and other documents from Maryland to persons outside of Maryland in connection with the sales of such vehicles.” (ECF No. 48, at 78 n. 67) (emphasis in original). Specifically, Plaintiff alleges that “Defendants and King Auto Group were engaged in, and affected interstate commerce in that, inter alia, the vehicle sales that are the subject of the scheme to defraud were consummated in Maryland using vehicles that in many circumstances were purchased out-of-state for sale in Maryland.” (ECF No. 22 ¶ 101). Plaintiff asserts that “Defendants wired funds or mailed checks from Maryland to persons outside of Maryland to pay for prior short-term rentals later sold within Maryland.” (Id.). Plaintiff further avers that in February 2012, King Buick GMC used mails and/or wires to submit a loan application, contract of sale, and other documents related “to the sale to a potential assignee for the financing of Ms. Chamber[s’s] prior but undisclosed prior short-term rental vehicle” to Capital One Auto Finance, headquartered in Virginia. {Id. ¶ 112). Plaintiff asserts a similar pattern for the additional fifteen allegedly fraudulent vehicle sale transactions. Finally, Plaintiff avers that “Defendants divvied up their profits secured from selling prior short-term rental vehicles sold in violations of the disclosure requirements under Maryland law, and those profits— constituting far more than $5,000—were distributed through interstate commerce.” (Id. ¶ 118); see Mitchell Tracey, 935 F.Supp.2d at 845 (finding sufficient allegations that “[distributions of the profits were sent interstate.”). Drawing all inferences in favor of Plaintiff, the allegations in the amended complaint regarding the predicate offenses and interstate commerce survive dismissal.
b. Pattern of Racketeering Activity
To state a plausible claim of a pattern of racketeering activity, the plaintiff must allege facts establishing “that the racketeering predicates are related and' that they amount to or pose a threat of continued criminal activity.” Cf. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (reversing a 12(b)(6) dismissal of a RICO complaint and discussing what a plaintiff in a RICO case must show to prove a pattern of racketeering activity). With respect to the requirement that the predicate acts be “related,” the Fourth Circuit has explained that “[t]he relationship criterion may be satisfied by showing that the criminal acts ‘have the same or similar purposes, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated events.’ ” Anderson v. Found. for Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 505-06 (4th Cir.1998) (quoting H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893). Plaintiff alleges that Defendants’ acts were “related, as they had the similar purpose of concealing and affirmatively misrepresenting the prior rental history of vehicles sold to Defendants’ customers, and they used the same methods of commission by concealment and affirmative misrepresentation.” (ECF No. 22 ¶ 124). Plaintiff identifies fifteen other vehicle sale transactions. In Coffee Beanery, 2012 WL 3728184, at *12, Judge Nickerson found sufficient to satisfy the relationship requirement the following allegations:
Plaintiffs allege that all of the representations were made for the express purpose of inducing [plaintiffs, and other potential franchisees, to investee in Coffee Beanery café franchises, and that the scheme involved providing the same fraudulent UFOCs and making the same false representations to franchisees in support of this end. Essentially, as alleged, the predicate acts of mail and wire fraud were perpetrated an uncounted number of times against the same type of victim in a nearly identical manner. In the context of a motion to dismiss, the Court finds these allegations sufficient to satisfy the relationship requirement.
Plaintiff here also alleges that the predicate acts of mail and wire fraud were perpetrated on at least fifteen other occasions with separate consumers in an effort to induce them to purchase vehicles that dealership Defendants did not disclose were previously used as prior short-term rentals. Accordingly, the relatedness element is satisfied.
Defendants also argue that Plaintiffs allegations are insufficient to meet the continuity-of-activity requirement. A plaintiff can fulfill the continuity-of-activity requirement by establishing either a closed or open-ended pattern. H.J. Inc., 492 U.S. at 241, 109 S.Ct. 2893. A “closed-ended” pattern of racketeering activity involves a course of related predicate acts during a substantial period of time which naturally comes to a close, while an open-ended pattern involved conduct “that by its nature projects into the future with a threat of repetition.” Coffee Beanery, 2012 WL 3728184, at *12 (citing Whitney, Bradley & Brown, Inc. v. Kammermann, 436 Fed.Appx. 257, 259 (4th Cir.2011)).
Plaintiffs amended complaint suggests that she attempts to establish an open-ended pattern. Specifically, Plaintiff asserts that King Auto Group is an association-in-fact that “has continued as a unit, with a core membership, over a substantial period of time, exceeding five years, and is an ongoing organization established for an economic motive.” (ECF No. 22 ¶ 231). Defendants assert that the amended complaint fails to plead facts demonstrating a threat of continuing future criminal conduct for essentially two reasons. First, Defendants argue that there is no criminal activity at all because the prior short-term rental disclosure was made in the CarFax Report, which Defendants maintain Plaintiff received along with the Buyer’s Order and which indicated that the vehicle she bought was previously used as a short-term rental. (ECF No. 34-1, at 38). This argument is unpersuasive at this point because whether Plaintiff received the Car-Fax Report before she consummated the transaction is a disputed fact, and inappropriate to resolve on a motion to dismiss. (See ECF No. 48-2, at 33, Declaration of Latechia Chambers (“I do not recall anyone at the dealership showing me a Carfax report or asking me to sign or initial it, though I do recall signing quite a few documents wherever the King rep put an “x” mark next to a line for my signature, but the Carfax report was NOT one of those documents” (emphasis in original))).
Second, Defendants argue that there is no threat of continuing future criminal conduct or that the pattern of racketeering activity is open and ongoing because on May 14, 2013, the State of Maryland promulgated its own disclosure form to be used by motor vehicle dealers-Disclosure of Former Vehicle Use Form, VR-460. (See ECF No. 34-7). Defendants argue that:
[i]n so doing, the MVA conclusively put. an end to Plaintiff[’s] erroneous theory that disclosure of a vehicle’s prior rental history on a ‘separate document!,]’ signed by the customer, somehow violates COMAR, or that Maryland law requires that the prior use disclosure must be on the Buyer’s Order, or sales agreement, or in bold, or in super large print as alleged in