Opinion

Pratt Logistics, LLC v. United Transport Inc

Court
District Court, N.D. Indiana
Filed
Mar 10, 2022
Cited by
0 cases
Authority
More cited than 21.5%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PRATT LOGISTICS, LLC, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 2:21CV148-PPS

)

UNITED TRANSPORT, INC., )

CHARLOTTE F. MENDEZ, )

ERNEST A. FIELDS, and )

C&E TRANSPORT, INC., )

)

Defendants. )

OPINION AND ORDER

Pratt Logistics is a trucking company which, for a time, used United Transport

for shipping services. In its amended complaint, Pratt claims that United was making

kickback payments to a company (C&E Transport) owned by a Pratt employee named

Charlotte Mendez and her husband, Ernest Fields. In exchange, Mendez provided

United valuable shipping contracts. When Pratt Logistics discovered this kickback

scheme, it fired Mendez and also terminated its business relationship with United.

In an opinion dated September 22, 2021, I ruled on United’s motion to dismiss a

number of claims in Pratt’s original complaint. [DE 46.] The motion was granted in

part. [Id. at 20.] Counts I, V, VIII, and XI of the complaint were dismissed for failure to

state a claim, and Pratt was granted 21 days “in which to file a first amended complaint

attempting to replead the dismissed counts.” [Id.] Subsequently, Pratt amended its

complaint. [DE 54.] United is back with a motion to dismiss challenging a number of

counts of the Amended Complaint. [DE 57.]

Legal Standards

A motion under Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the complaint

“to state a claim upon which relief can be granted.” The Supreme Court interpreted the

Rule 12(b)(6) pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),

and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Ruling on a motion under Rule 12(b)(6), I must

accept the truth of the pleading’s well-pleaded allegations, and draw all inferences in

the light most favorable to the plaintiff. Killingsworth v. HSBC Bank, 507 F.3d 614, 618

(7th Cir. 2007). The Rule 12(b)(6) standard requires “a claim to relief that is plausible on

its face,” which in turn requires factual allegations sufficient to permit a reasonable

inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. 570,

556.

The Seventh Circuit has described Twombly as establishing “two easy-to-clear

hurdles,” namely that (1) the complaint describe the claim in sufficient detail to give the

defendant fair notice of the claim and the basis for it, and (2) the allegations plausibly

suggest that the plaintiff has a right to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1084

(7th Cir. 2008), quoting Equal Employment Opportunity Commission v. Concentra Health

Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). “Plausibility” in this context does not

empower the court to consider which party’s story should be believed, but only that

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“the plaintiff must give enough details about the subject-matter of the case to present a

story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

United’s motion has sparked a quarrel between the parties as to the limits on a

second motion to dismiss. As both parties know by now (see Opinion and Order of

2/2/2022, DE 64 at 1), an amended pleading entirely supersedes its predecessor.

Obviously new and different claims are subject to a new motion to dismiss, regardless

of whether a motion to dismiss was previously filed. If the same arguments for

dismissal are levied against the same claims as previously pled, I may give the

arguments short shrift as an unsuccessful request for reconsideration unless I am

persuaded my earlier reasoning was in error.

But what am I to do with new arguments made for the first time against claims

that were pled in the original complaint? The Seventh Circuit answered that question

when it held that “a litigant need not consolidate all failure-to-state-a-claim arguments

in a single dismissal motion.” Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012). Other

Circuit Courts of Appeal disagree with the Seventh Circuit’s analysis of Fed.R.Civ.P. 12,

but in a hierarchical system of courts, I am bound of course by the Seventh Circuit’s

view of the matter. See In re Apple Iphone Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 2017);

Leyse v. Bank of America Nat’l Assn, 804 F.3d 316, 321 (3rd Cir. 2015); Albers v. Bd. of Cnty.

Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697, 703 (10th Cir. 2014); and English v. Dyke, 23

F.3d 1086, 1090-91 (6th Cir. 1994). I will therefore give such consideration as is

appropriate to all arguments raised in the present motion. Nonetheless, it’s worth

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mentioning that serial motions to dismiss slow the proceedings, and I see no reason

why United couldn’t advance all its arguments the first time around. In all events, I will

not be inclined to entertain a third motion to dismiss from United unless Pratt is

granted leave to amend its complaint for a second time, something I am also disinclined

to permit.

United Transport’s Motion to Dismiss

From a fairly straight-forward set of facts, an octopus of claims has spawned. I

described Pratt’s original complaint as a “blunderbuss” and now, in the amended

complaint, Pratt has somehow managed to increase the number of counts from 14 to 16.

[DE 54.] United’s motion to dismiss targets seven of Pratt’s claims.

Federal and State Racketeering Claims – Counts III and IV

Count III of the Amended Complaint, a federal RICO claim, is brought under 18

U.S.C. §1962(c), and alleges that the four defendants formed “an association-in-fact for

the common and illegal purpose of implementing and continuing the Kickback Scheme,

thereby constituting an enterprise (the “Enterprise”) for the purposes of 18 U.S.C.

§1962(c)” and made “repeated use of the U.S. Mail and interstate wires” in furtherance

of the scheme. [DE 54 at ¶¶46, 49.] Count IV is brought under the Indiana Corrupt

Business Influence statute, Ind. Code §35-43-4-2, and is based on different allegations,

namely that the defendants “committed more than two instances of theft...from Pratt

Logistics.” [DE 54 at ¶55.] In its earlier motion to dismiss, United argued that Pratt’s

complaint failed “to support the existence of an ‘enterprise’ as required for liability

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under either the federal or state statute.” [DE 46 at 12.] I rejected the argument,

finding that Pratt’s pleading of an association-in-fact enterprise was adequate. [Id. at

14.] In the current motion, United challenges the racketeering claims on three grounds:

that no RICO predicate act by United has been pleaded, that the RICO enterprise is not

distinct from the defendants, and that there is no pattern of racketeering activity. [DE

58 at 3.]

The RICO claim in Count III alleges that all the defendants “agreed to and did

conduct and participate in conducting the affairs of the Enterprise through a pattern of

racketeering activity and for the unlawful purpose of defrauding Pratt Logistics[.]” [DE

54 at ¶47.] Paragraph 49 of the Amended Complaint alleges in support of the federal

RICO claim that “the repeated use of the U.S. Mail and interstate wires in furtherance of

the Kickback Scheme constitutes a pattern of racketeering activity.” [DE 54 at 13.]

Construing this as alleging wire fraud as a predicate act of racketeering, United argues

that Pratt fails to allege any predicate act by United, more specifically because Pratt has

not alleged any misrepresentation by United. [DE 58 at 3.] United does not suggest

that the RICO claim is insufficient against the co-defendants, but only that it lacks

necessary allegations of United’s conduct in particular.

Although liability under §1962(c) is not limited to the upper management of an

enterprise, it does require participation in the operation of management of the

enterprise itself. Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 963-64 (7th Cir.

2000) (quoting Reves v. Ernst & Young, 507 U.S. 170, 185 (1993)). Section 1962(c) liability

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“only applies to those who participate in the conduct of the enterprise through a pattern

of racketeering activity,” and “[a]greeing to participate somehow in an enterprise is

active; it is personal.” Brouwer, 199 F.3d at 966. Pratt’s complaint must “plead sufficient

facts to show that [United] engaged in a pattern of racketeering activity,” which means

“at a minimum...two predicate acts of racketeering.” Slaney v. The Intern’l Amateur

Athletic Federation, 244 F.3d 580, 598-99 (7th Cir. 2001). And where the predicate

racketeering acts are alleged to be wire fraud, the pleading is subject to the particularity

requirements of Fed.R.Civ.P. 9(b). Id. at 599. This means that Pratt “must allege the

identity of the person who made the representation, the time, place and content of the

misrepresentation, and the method by which the misrepresentation was communicated

to the plaintiff.” Id.

How is United alleged to have participated in conducting the affairs of the

enterprise? The most specific allegation of conduct in Count III is the “repeated use of

the U.S. Mail and interstate wires” previously mentioned. [DE 54 at ¶¶19, 49.] The

allegation does not specify the who, when, where or what of the conduct, and is even

indefinite as to the method of communication (mail or wire). Pratt cannot deliberately

plead only vague references to the use of the mail and interstate wires in furtherance of

the Kickback scheme, without expressly calling it fraud, in order to skirt the

particularity requirements of Fed.R.Civ.P. 9(b). The use of mail and wire

communication constitutes racketeering activity under 18 U.S.C. §1961(1) only if alleged

to be mail fraud and wire fraud under subsection (1)(B). In response to United’s

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motion, Pratt acknowledges that its RICO claim is based on an allegation that the

defendants committed mail and wire fraud. [DE 62 at 2.]

Nearly conceding that Count III does not allege particular predicate acts of fraud

by United, Pratt cites RICO conspiracy cases to support the idea that “a RICO claim can

exist independent of a fraud claim” against the same defendant. [DE 62 at 10.] One

example is Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 823 (7th

Cir. 2016): “[a] RICO conspirator need not agree to commit personally two predicate

acts in furtherance of the enterprise; rather, he must agree that someone will commit

them.” But Count III does not allege a RICO conspiracy, but a substantive claim of

RICO under §1962(c). Only later in the civil conspiracy claim in Count V does the

Amended Complaint allege that: “All Defendants conspired to acquire and maintain

the Enterprise and engaged in a pattern of racketeering activity in violation of 18 U.S.C.

§1962(d).” [DE 54 at ¶68.]

Pratt’s federal RICO claim is insufficient in pleading predicate acts committed

by United, and as a result Count III is subject to dismissal as against United. I will add

that there is another problem with the amended complaint as it relates to the pattern

requirement. Long ago, the Seventh Circuit started to look askance at RICO cases

where mail and wire fraud were the underlying acts of racketeering. “The Seventh

Circuit, however, does not look favorably on relying on many instances of mail and

wire fraud to form a pattern.” Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771,

781 (7th Cir. 1994) (quoting Hartz v. Friedman, 919 F.2d 469, 473 (7th Cir. 1990)). See also

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Jennings v. Auto Meter Products, Inc., 495 F.3d 466, 475 (7th Cir. 2007); United States

Textiles, Inc. v. Anheuser-Busch Companies, Inc., 911 F.2d 1261, 1268 (7th Cir. 1990).

An example will help amplify the point. Suppose someone is running a phony

investment scheme but the scheme has only one victim. The perpetrator mails ten

bogus account statements to the victim with the intent of lulling her into a false sense of

security that her investments are safe. Even though there are ten separate acts of mail

fraud, that does not constitute a pattern because there is only one victim and one

scheme. But suppose instead that the perpetrator is doing everything in my first

example but is also using his business to conduct a check kiting scheme (and uses the

mails in the scheme). That might constitute a pattern because it involves different

schemes and different victims, although committed by the same enterprise. Our case is

much closer to the first example: we have one victim and one scheme, although it has

been committed with a number of mailings and use of interstate wires. This is not a

pattern as the Seventh Circuit has described it. For this reason, and for the other reasons

discussed above, the federal RICO claim in Count III as against United must be again

dismissed.

The analysis is different for the Indiana Corrupt Business Influence claim in

Count IV. Rather than mail and wire fraud, the Indiana Corrupt Business Influence

claim is based on the commission of theft from Pratt Logistics, as separately alleged in

Count VI. [DE 54 at ¶55.] More specifically as to defendant United, Count IV alleges

that “United received proceeds from the pattern of racketeering activity, namely

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business and profits from Pratt Logistics.” [Id. at¶56.] In arguing its motion, United

fails to give separate consideration to the different predicate acts alleged to make up the

pattern of racketeering activity actionable under the Indiana statute. [DE 58 at 3.] So

United does not present an argument that the Indiana claim in Count IV fails to state a

claim for failure to adequately allege United’s commission of predicate acts.

Pratt disputes that United’s two other arguments – concerning distinctness

between the enterprise and the defendants, and the continuity plus relationship test for

predicate acts – have equal application to the Indiana statute. [DE 62 at 8, n.2 and 14.]

As to the first, Pratt points out that United does not address Pratt’s position that

Indiana’s statute “does not require an enterprise,” but also prohibits receiving proceeds

from a pattern of racketeering activity to acquire an interest in property, entirely apart

from the existence or operation of an “enterprise.” [DE 62 at 8, n.2, citing Atwood v.

State, 172 N.E.3d 678, 683 (Ind.Ct.App. 2021).] Concerning the U.S. Supreme Court’s

continuity plus relationship test, Pratt cites Jackson v. State, 50 N.E.3d 767, 771 (Ind.

2016), in which the Indiana Supreme Court discussed differences between the state and

federal statutes, noting that Indiana’s “complete and self-contained” definition of

“pattern of racketeering activity” does not contain an element of continuity. [DE 62 at

14.] In reply, United does not address Pratt’s contentions about how Indiana law differs

from the federal RICO statute, and so does not attempt to demonstrate that its

arguments defeat the Indiana claim in Count IV. [DE 63.] The motion to dismiss will be

denied as to the Indiana Corrupt Business Influence claim in Count IV.

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Conversion – Count VII

In Count VII, the Amended Complaint alleges that the defendants converted two

types of property – (1) “funds, credits and/or benefits that would have otherwise been

provided to Pratt Logistics,” and (2) “the benefits of Mendez’s loyal and honest

service.” [DE 54 at ¶77.] United contends that the first type of property does not

support a viable conversion claim “because Pratt lacks an immediate, unqualified

possessory interest over such funds.” [DE 58 at 9.] United cites Justice Boehm’s

concurrence in Conwell v. Gray Loon Outdoor Mktg. Grp., 906 N.E.2d 805 (Ind. 2009): “An

essential element of either conversion claim [criminal or civil] is an ‘immediate,

unqualified right to possession resting on a superior claim of title.’” Id. at 817, quoting

Shourek v. Stirling, 621 N.E.2d 1107, 1109 (Ind. 1993).

As the Conwell majority opinion put it, lack of ownership of the property “makes

short work” of a conversion claim. 906 N.E.2d at 816-17. See also Allen v. American

Commercial Barge Line LLC, 2019 WL 4572796, at *7 (S.D.Ind. Sept. 20, 2019) (without

entitlement to severance benefits there could be no conversion, citing Shourek).

Although this sounds like a summary judgment argument, because the facts asserted in

Count VII for conversion expressly allege a type of property that was not immediately

and unqualifiedly owned by Pratt, it fails to state a claim under Indiana law for

conversion of that property. The contingent nature of the benefits “that would have

otherwise” accrued to Pratt is inadequate under Indiana’s tort of conversion.

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United also argues that Pratt has acknowledged that the “funds, credits and/or

benefits” referred to in Count VII are lost profits. [DE 58 at 10, citing DE 30 at 21.] The

Indiana Court of Appeals has explained that “[m]oney may be the subject of an action

for conversion, so long as it is capable of being identified as a special chattel,” which

means that “the money ‘must be a determinate sum with which the defendant was

entrusted to apply to a certain purpose.’” Clark-Silberman v. Silberman, 78 N.E.3d 708,

715 (Ind.Ct.App. 2017), quoting Huff v. Biomet, Inc., 654 N.E.2d 830, 835 (Ind.Ct.App.

1995), abrogated on other grounds by St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele,

766 N.E.2d 699 (Ind. 2002). Because the amount of Pratt’s lost profits is inherently

indeterminate, it does not constitute a special chattel and cannot support an action for

conversion. “To qualify as special chattel and be subject to a conversion action, money

must be a ‘determinate sum.’” LEJ Mgmt, LLC v. Morris Invest, LLC, No. 1:19-cv-02662-

TWP-TAB, 2020 WL 5095450, at *9 (S.D.Ind. Aug. 28, 2020). This is a second reason that

the claim that United converted “funds, credits and/or benefits” in the nature of lost

profits is subject to dismissal. For these several reasons, Pratt fails to state a claim for

conversion under Indiana law based on United’s alleged theft of “funds, credits and/or

benefits that would have otherwise been provided to Pratt Logistics.” [DE 54 at ¶73.]

United next contends that Mendez’s “loyal and honest service” is also not the

sort of property that can support a conversion claim. The statutory definition of

conversion requires that the defendant exerted “unauthorized control over property of

another person.” Ind. Code §35-43-4-3(a). [DE 58 at 13.] To “exert control over

11

property” is defined as “to obtain, take, carry, drive, lead away, conceal, abandon, sell,

convey, encumber, or possess property, or to secure, transfer, or extend a right to

property.” Ind. Code §35-43-4-1(a). Considering this definition, United argues that

“most of [these words] are clearly inapplicable to the facts as pled.” [DE 58 at 13.]

Contemplating “encumber” as the only possible definitional term, United cites An-Hung

Yao v. State, 975 N.E.2d 1273 (Ind. 2012), a case about theft of trademarks, and argues

merely that Pratt has found no authority for the idea that “a proprietary interest in an

employee’s ‘honest service’ can be encumbered.” [DE 58 at 14-15]. United’s reliance on

An-Hung Yao is especially puzzling, given that there the Indiana Supreme Court found

that the trial court had properly denied a motion to dismiss because the question whether

the defendants did “obtain, take, carry, sell, convey, encumber, or possess property”

was a question of fact “that cannot be determined on a motion to dismiss.” 975 N.E.2d

at 1282.

Finally, United likens Mendez’s loyal services to the potential clients allegedly

pilfered in Hertel v. Action Technologies Group, Inc., No. 1:20-cv-01748-TWP-DLP, 2021

WL 790632, at *3 (S.D.Ind. March 2, 2021). [DE 58 at 15.] The Hertel court denied leave

to add a claim for conversion because it was unpersuaded that “New Clients” were “the

type of property over which a party can exert control, for purposes of conversion.” Id.

The court also held that if the value of the potential clients was understood as income,

that the financial benefit was an indeterminate sum and so not a special chattel for

purposes of a conversion claim. Id. at *4. United argues that the alleged conversion of

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Mendez’s services is analogous to the claim in Hertel based on the loss of potential

clients. [DE 58 at 16.]

Hertel offers little analysis of its conclusion that prospective clients are not a

“type” of property that can support a conversion claim. To the extent the opinion

suggests that only personal property can be the subject of conversion [id. at *3], that is

clearly wrong. See, e.g., Heckler and Koch, Inc. v. German Sport Guns GmbH, No. 1:09-cv-

00039-WTL-JMS, 2009 WL 3200587, at *1 (S.D.Ind. Sept. 25, 2009) (“while these things

are intangible, they are things of value to the Plaintiff in which the Plaintiff has a

property interest; therefore, they constitute property as defined by Indiana law and are

subject to conversion by another”). As I noted in my earlier opinion, the relevant

Indiana statute defines “property” quite broadly, to include any “gain or advantage or

anything that might reasonably be regarded as such by the beneficiary,” as well as

“labor” and “intangibles.” Ind. Code §35-31.5-2-253(a)(1), (2) and (3). [DE 46 at 15.]

Absent the reference to the Hertel case, this argument is essentially a do-over from

United’s previous motion to dismiss. See DE 24 at 18. And it is no more successful now

than it was then.

In an effort to liken Pratt’s loyal services claim to the potential clients in Hertel,

United contends that in essence Pratt seeks the “compensation received by Mendez

during the period of her disloyalty,” an indeterminate amount that can’t be the basis for

a claim of conversion. [DE 58 at 16.] United cites a dozen paragraphs of Pratt’s

Amended Complaint that use that phrase to describe a measure of damages. [Id.] But

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that language does not appear in the counts alleging conversion or theft, though it is

referred to in a general prayer for relief and in the claims alleging 11 other torts. [DE 54

at ¶¶3, 29, 35, 42, 53, 61, 70, 89, 96, 104, 115, 122.] The conversion claim can’t be

dismissed based on a theory ascribed to it by United but not actually pled by Pratt.

In sum, while I remain skeptical about a conversion claim premised on the theft

of honest services, based on the unpersuasive arguments put forth by United, the claims

must survive a motion to dismiss. Of course, once discovery takes us from the world of

allegations and into the world of facts, the matter can be revisited on summary

judgment.

Theft – Count VI

Assuming its success against the conversion count, United argues that the theft

claim is also subject to dismissal because conversion is “an inherently lesser included

offense of theft.” [DE 58 at 16, quoting Morris v. State, 921 N.E.2d 40, 42 (Ind.Ct.App.

2010)]. Indiana statutes define theft as a conversion plus the additional element of

intent to deprive the victim of any part of the property’s value or use. See Ind. Code

§35-43-4-3(a) and 35-43-4-2(a). “Indeed, courts have consistently held that criminal

conversion is an inherently lesser included offense of theft because it can be established

by proof of less than all of the material elements of theft.” Lane v. State, 953 N.E.2d 625,

630 n.4 (Ind.Ct.App. 2011). Because all the language defining conversion also appears

within the language defining theft, the limits of the former tort also apply to the latter.

If “the Plaintiff can’t establish conversion, it necessarily can’t establish theft either.”

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Dillinger, LLC v. Electronic Arts Inc., 795 F.Supp.2d 829, 839 (S.D.Inc. 2011). As with the

conversion claim then, United’s motion will be granted only as against Pratt’s claim for

theft of “funds, credits and/or benefits that would have otherwise been provided to

Pratt,” but not on its claim for theft of honest services. [DE 54 at ¶73.]

Crime Victims Compensation Act – Count IX

Aiding and Abetting Tortious Conduct – Count XI

United’s argument against Pratt’s Indiana Crime Victims Compensation Act

claim is also derivative, that is, United argues that because Pratt has failed to

adequately plead a necessary underling tort predicate such as theft or conversion, the

CVCA count fails to state a claim on which relief can be granted. Because United has

not defeated the conversion and theft claims as to Mendez’s loyal services, its argument

against Count IX does not succeed to the extent it is based on those claims. Similarly,

United’s derivative argument against Count XI for aiding and abetting tortious conduct

is unsuccessful because its arguments against Pratt’s conversion and theft claims have

not entirely succeeded.

Civil Conspiracy – Count V

“Although Indiana law does not recognize a cause of action for civil conspiracy

as an independent tort, it does recognize civil conspiracy as a cause of action to recover

damages resulting from concerted action in the commission of some other, independent

tort.” Watkins v. Penn, No. 1:06-cv-1473-JDT-TAB, 2007 WL 4224200, at *3 (S.D.Ind. Nov.

26, 2007) I previously dismissed Pratt’s conspiracy claim as against United because I

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found that the underling counts for fraud and for aiding and abetting Mendez’s breach

of fiduciary duty failed to state a claim against United. [DE 46 at 18.] Those were the

tort claims that Pratt relied upon to support the conspiracy claim as pleaded in the

original complaint. [Id.; DE 30 at 17.]

The Amended Complaint repleads Count V for conspiracy against all the

defendants. United now argues again that the claim as amended “should be dismissed

because plaintiff has failed to adequately plead a valid underlying tort.” [DE 58 at 17.]

Because a portion of Pratt’s conversion and theft claims survive this motion to dismiss,

United’s derivative challenge to the civil conspiracy claim fails. Furthermore, even

though Pratt has not named United in its separate claim for fraud, Pratt argues that it

can use civil conspiracy to seek liability for fraud damages against United because

“although [the defendants’] actions alone might be insufficient to state a claim for fraud,

their participation as conspirators in a larger scheme to defraud the Plaintiffs might

nevertheless give rise to an action for civil conspiracy against them.” Watkins, 2007 WL

4224200, at *3. [DE 62 at 18.] Count V is not subject to dismissal for failure to state a

claim.

ACCORDINGLY:

Defendant United Transport, Inc.’s motion to dismiss the Amended Complaint

[DE 57] is GRANTED IN PART as to Count III as against defendant United, and as to

Counts VI and VII against United to the extent that those counts are based on “funds,

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credits and/or benefits that would have otherwise been provided to Pratt Logistics.” In

all other respects, the motion is DENIED.

SO ORDERED.

ENTERED: March 10, 2022.

/s/ Philip P. Simon

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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