# Spring Lake Pork, LLC v. Great Plains Management, LLC

> District Court, E.D. Missouri · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10233310

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233310

## How later opinions describe it (automated extraction)

- holding closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year... .”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SPRING LAKE PORK, LLC, )
)
Plaintiff, )
)
vs. ) Case No. 2:19 CV 18 CDP
)
GREAT PLAINS MANAGEMENT, )
L.L.C., et al., )
)
Defendants, )
)
vs. )
)
SWINE MANAGEMENT SERVICES, )
LLC, )
)
Third Party Defendant. )

MEMORANDUM AND ORDER
This matter is before the Court on defendants Great Plains Management, Jan
Huber, Jeff Dace, Jay Flora, and Harold Lee’s (hereafter “GPM” or “defendants”)
Motion to Dismiss plaintiff Spring Lake Pork’s (“SLP”) Amended Complaint
[ECF 52]. For the following reasons, I will grant defendants’ motion only as to the
claims of breach of express warranty (Count V) and RICO (Count VII). I will
deny the motion as to plaintiff’s remaining claims.
Factual and Procedural Background
Plaintiff SLP is a hog producer which does business near Vandalia,

Missouri. Defendant GPM is a hog farm manager headquartered in Creston,
Illinois.1 On July 29, 2014, the parties entered into a five-year Management
Agreement for a new hog farm owned by SLP.2 The Agreement provided that

GPM would perform wide-ranging managerial services on the farm, including
overseeing its sow breeding operations, training and supervising staff, and assisting
in the initial construction and procurement of equipment on the farm. Plaintiff
alleges that GPM’s mismanagement of the farm ultimately resulted in a failure to

meet breeding productivity projections which were generated by third-party
defendant Swine Management Services (“SMS”), a farm management consulting
firm.3

Plaintiff terminated the Agreement with GPM on November 9, 2016, and
filed suit against GPM in the Circuit Court of Ralls County, Missouri, on January

1 Defendant Jan Heuber is the Manager of GPM, and Jeff Dace, Jay Flora, and Harold Lee are all
current or former employees of GPM who provided services to SLP pursuant to the parties’
Management Agreement.
2 In assessing a 12(b)(6) motion, Courts may consider documents “necessarily embraced by the
complaint,” Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012), as well as
documents “incorporated by reference, or integral to the claim.” See Dittmer Properties, L.P. v.
F.D.I.C., 708 F.3d 1011, 1021 (8th Cir. 2013). SLP explicitly incorporates the Management
Agreement by reference in its Amended Complaint. ECF 32 at ¶ 24. Accordingly, I may
consider the Management Agreement without converting GPM’s motion into a motion for
summary judgment. See Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014).
3 The Court denied SMS’s Motion to Dismiss GPM’s Third-Party Complaint on December 3,
2019. ECF 49.
31, 2019. GPM removed the action to this Court on March 8, 2019, and moved to
dismiss SLP’s complaint on March 15, 2019. On July 31, 2019, SLP moved for

leave to file an Amended Complaint. The Court granted SLP’s motion to file an
Amended Complaint on October 18, 2019, and denied GPM’s motion to dismiss
the original complaint as moot. On December 17, 2019, GPM filed the instant

Motion to Dismiss plaintiff’s Amended Complaint.
Plaintiff brings its Amended Complaint against GPM and the individually-
named defendants in eight counts: I) Fraud; II) breach of fiduciary duty; III)
negligent misrepresentation; IV) breach of contract; V) breach of express warranty;

VI) fraud in the inducement; VII) violation of the RICO Act, 18 U.S.C. § 1341 et
seq.; and VIII) negligence. Defendants move to dismiss only Counts I – VII for
failure to state a claim upon which relief can be granted, contending generally that

plaintiff’s tort claims (and RICO claim) are inappropriate in light of the “purely
commercial dispute” between the parties. Fed. R. Civ. P. 12(b)(6); Motion to
Dismiss, ECF 52 at pg. 4.
Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint. To survive a
12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief “that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “[A] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that plaintiff can prove no

set of facts in support of his claim that would entitle him to relief.” Levy v. Ohl,
477 F.3d 988, 991 (8th Cir. 2007) (quoting Conley v. Gibson, 355 U.S. 41, 45–46
(1957)). However, the Court is not required to accept as true legal conclusions
which have been couched as factual allegations. See Brown v. Green Tree

Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016).
Analysis
Counts I, III, and VI: Fraud, Negligent Misrepresentation, and Fraud in the
Inducement

In Counts I, III, and VI, which are plead in the alternative to each other, SLP
alleges GPM made ten fraudulent representations before the parties entered into the
Agreement, and eight additional fraudulent representations after execution of the
Agreement. To summarize, the pre-Agreement claims generally allege that the
defendants overstated their degree of expertise in managing large-scale swine

breeding operations using the specialized “NEDAP” livestock monitoring and
feeding system. The post-Agreement claims allege that GPM mismanaged the
farm and made various misrepresentations pertaining to the success of the farm’s
breeding operations. SLP further alleges, “upon information and belief,” that the
defendants concealed data regarding SLP’s farrowing and breeding operations.

In response to each claim, Defendants first assert that the allegedly
fraudulent representations constitute non-actionable “puffery.” Defendants further
argue that the economic loss rule bars recovery in tort for the alleged economic

damages. Finally, defendants contend that SLP has not plead its fraud claims with
the requisite degree of particularity required by Federal Rule of Civil Procedure
9(b). In response, SLP points to defendants’ purported position of expertise to
dispute defendants’ contention that their representations could be construed as

puffery. SLP further asserts that its claim falls within an exception to the
economic loss rule because defendants were providing “professional” management
services. Finally, SLP avers, in conclusory fashion, that its pleadings are

sufficiently particularized to withstand preliminary scrutiny.
Counts I and VI, are nearly identical in substance. The elements of an action
for fraud and fraudulent inducement in Missouri are: “1) A representation; 2) its
falsity; 3) its materiality; 4) the speaker’s knowledge of its falsity or ignorance of

its truth; 5) the speaker’s intent that it should be acted on by the person in the
manner reasonably contemplated; 6) the hearer’s ignorance of the falsity of the
representation; 7) the hearer’s reliance on the representation being true; 8) the

hearer’s right to rely thereon; and 9) the hearer’s consequent and proximately
caused injury.” Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112,
131-32 (Mo. banc 2010). A state law fraud claim must “comply with the

heightened pleading standards of Rule 9(b), which require plaintiffs to plead ‘the
circumstances constituting fraud . . . with particularity.’ Fed. R. Civ. P. 9(b).” BJC
Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007).

GPM’s contention that the allegedly fraudulent representations constitute
non-actionable “puffery” has little merit. Most of plaintiff’s allegations plainly do
not describe mere “expressions of opinion” concerning expectations and
predictions for the future. Arnold v. Erkmann, 934 S.W.2d 621, 627 (Mo. Ct. App.

1996) (citation omitted). Moreover, plaintiff alleges that the defendants
fraudulently misrepresented themselves as having technical and managerial
expertise in specific aspects of pig breeding operations, and that they later
misrepresented several key metrics related to the farm’s productivity.4 Under such

circumstances as this, where the party alleged to have made fraudulent statements
holds itself out as having specialized knowledge or expertise, alleged
misrepresentations made to induce a less-informed party into contracting are

4 For example, SLP alleges that GPM falsely represented that it “was familiar with the NEDAP
system for identification and separation of sorting operations to ensure timely breeding of the
sows,” and that it relied on this representation in deciding to contract with GPM. ECF 32 at ¶
74(i). Assuming the truth of SLP’s allegation, it is not an “expression of opinion” to falsely
claim familiarity with a specialized livestock monitoring and feeding system.
generally found to be actionable. See id. Accordingly, I will not dismiss SLP’s
claims on this basis.

GPM next argues that the economic loss doctrine bars SLP’s fraud claims,
asserting “[SLP] alleges nothing but economic loss and disappointed economic
expectations pertaining to the parties’ agreement.” Reply, ECF 75 at pg. 2. In

support, GPM notes that the subject matter of the alleged misrepresentations is
referenced in the Agreement, and highlights the similarity between SLP’s fraud
and breach of contract claims. GPM further asserts that SLP does not allege any
special damages attributable to the alleged misrepresentations. SLP’s only defense

is a citation to a case in this Court holding the economic loss rule inapplicable to
claims “based on the negligent rendition of services by a professional.” See JR14,
LLC v. JetCorp Tech. Servs., No. 4:17 CV 1469 RWS (E.D. Mo. Aug. 29, 2017)
(citation omitted).5

In Missouri, the economic loss doctrine prohibits a plaintiff “from seeking to
recover in tort for economic losses that are contractual in nature.” Autry Morlan
Chevrolet Cadillac, Inc. v. RJF Agencies, Inc., 332 S.W.3d 184, 192 (Mo. Ct. App.

2010). “A fraud claim is permitted only if it arises from acts that are separate and
distinct from the contract.” OS33 v. CenturyLink Commc’ns, L.L.C., 350 F. Supp.

5 GPM offers a lengthy rebuttal to this argument in its reply brief. Because I will deny GPM’s
motion to dismiss on a separate basis, however, I will not address this argument in this Order.
3d 807, 815 (E.D. Mo. 2018) (citation omitted). In determining whether a fraud
claim is independent of a contract claim for purposes of the economic loss

doctrine, this Court assesses: “1) whether the subject matter of the alleged
misrepresentations was incorporated into the parties’ contract, and 2) whether the
plaintiff suffered additional damages outside the contract as a result of the alleged

fraud.” Compass Bank v. Eager Road Associates, LLC, 922 F. Supp. 2d 818, 827
(E.D. Mo. 2013) (internal citations omitted) (interpreting Missouri law).
SLP’s Amended Complaint does not allege any special damages outside of
the contract attributable to GPM’s alleged misrepresentations. But the failure to

identify special damages alone is not dispositive at this stage. See, e.g. Web
Innovations & Tech. Servs., Inc. v. Bridges to Digital Excellence, Inc., 69 F. Supp.
3d 928, 933 (E.D. Mo. 2014).

“Most courts have allowed tort claims to go forward where they are based
upon a misrepresentation that was outside of or collateral to the contract, such as
many claims for fraudulent inducement.” Superior Edge, Inc. v. Monsanto Co., 44
F. Supp. 3d 890, 903 (D. Minn. 2014) (internal citation omitted) (interpreting

Missouri law). Where an alleged misrepresentation is explicitly incorporated into
the contract or pertains to a party’s intent to perform under a contract, the
misrepresentation is more properly construed as a breach of contract claim;
however, where an alleged misrepresentation pertains to a party’s ability to
perform under a contract, the misrepresentation may be actionable in fraud:

But if [defendant] misrepresented its abilities, and thereby induced
[plaintiff] to enter into the contract in the first instance, the purposes
of the economic loss rule are no longer implicated, because in the
absence of truthful information, [plaintiff] would not have been able
to specify certain terms in the Agreement to protect itself from
commercial risk.

Id. at 907. Here, SLP alleges that before entering into the Agreement, GPM made
several fraudulent misrepresentations concerning its skill, experience, and abilities
in managing large-scale breeding operations using the NEDAP system. The
Amended Complaint further alleges that SLP sought to acquire GPM’s services
specifically because of its purported expertise with the NEDAP system. See ECF
32 at ¶ 15. Accepting SLP’s allegations as true, it is plausible that SLP might not
have entered into the Agreement if it had known that GPM’s expertise was
overstated. Accordingly, because at least some of SLP’s allegations are facially
independent of the Agreement and support a plausible claim for fraudulent
inducement, I will not dismiss Counts I, III, VI on the basis of the economic loss
rule.6

6 Discovery may reveal that some of plaintiff’s claims within each of Counts I, III, and VI—
particularly the post-Agreement allegations—are interwoven with the Agreement, conflict with
the Agreement, or pertain to GPM’s intent to perform under the Agreement. Plaintiff is
cautioned that these claims may therefore be subject to dismissal. However, at this stage, the
Court “need not parse each of [SLP’s] allegations to determine precisely which alleged
misrepresentations state a claim and which do not.” Superior Edge, 44 F. Supp. 3d at 908.
Finally, GPM contends SLP’s fraud claims are subject to dismissal because
they are not adequately particularized under Rule 9(b). “To satisfy the particularity

requirement of Rule 9(b), the complaint must plead such facts as the time, place,
and content of defendant’s false representations, as well as the details of the
defendant’s fraudulent acts, including when the acts occurred, who engaged in

them, and what was obtained as a result.” United States ex rel. Joshi v. St. Luke’s
Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006). Among other things, the Amended
Complaint alleges specific misrepresentations made via “telephone calls, emails,
and face-to-face meetings” between SLP and defendant Hueber in Spring 2014

preceding the formation of the Agreement. ECF 32 at ¶ 20-21. These details are
readily discoverable, and likely already known to both parties. In light of this and
the numerous other allegations describing interactions between the parties,

plaintiff’s claims are sufficient to withstand dismissal on the pleadings.
As for Count III, which SLP brings for negligent misrepresentation, I note it
contains essentially the same factual allegations as in Counts I and VI, and that
GPM moves to dismiss for essentially same reasons. Missouri law recognizes

distinct causes of action for fraudulent and negligent representation, and so SLP is
permitted to allege both claims. Superior Edge, 44 F. Supp. 3d at 903. It is
plausible that SLP could be found liable under either a theory of fraudulent

misrepresentation or negligent misrepresentation based on the facts alleged. As I
have already determined that the economic loss rule does not necessitate dismissal
of plaintiff’s fraud claim, and that its complaint is sufficiently particularized under

Rule 9(b), I will deny GPM’s motion to dismiss all of Counts I, III, and VI.
Count II: Breach of Fiduciary Duty
SLP asserts Count II for breach of fiduciary duty against all defendants.

Defendants move to dismiss, contending the Agreement between the parties was
merely an arms-length business transaction which did not establish a fiduciary
relationship. In response, SLP argues that the existence of a fiduciary relationship
can be inferred from the Agreement due to GPM’s position of superiority and

influence over the farm’s operations.
To state a claim for breach of fiduciary duty, the plaintiff must establish 1)
the existence of a fiduciary duty between the parties; 2) a breach of the fiduciary

duty; and 3) damages resulting from the breach. Western Blue Print Co. v.
Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012). A fiduciary duty may arise from the
parties’ relationship or as a result of special circumstances. Pool v. Farm Bureau
Town & Country Ins. Co. of Mo., 311 S.W.3d 895, 907 (Mo. Ct. App. 2010). As

summarized recently by this Court,
A fiduciary duty is created when one party is subservient to the other;
things of value, which are the property of the subservient party, are
possessed or managed by the dominant party; there is a surrender of
independence by the subservient party to the dominant party; there is
a manipulation of the actions of the subservient party by the dominant
party; and there is a showing the subservient party places a trust and
confidence in the dominant party.

NTD I, LLC v. Alliant Asset Mgmt. Co., LLC, 337 F. Supp. 3d 877, 887 (E.D. Mo.
2018) (citing Chmieleski v. City Products Corp., 660 S.W.2d 275, 294 (Mo. Ct.
App. 1983)).
Drawing all reasonable inferences in SLP’s favor, the Agreement plausibly
supports the existence of a fiduciary relationship. The Agreement is not indicative
of a mere arms-length contract between two equally-situated parties—to the

contrary, it provides GPM with authority to “manage, maintain and operate all
aspects of the sow breeding operation and related activities in a manner and for
costs which it reasonably determines to be prudent and consistent with [GPM’s]

standards and practices,” subject only to SLP’s “advice and comment.” ECF 32-1
at ¶ 4(B). Moreover, based on the Agreement and SLP’s allegations, GPM
exercised a significant degree of influence and control over hiring, training, and
supervising employees, advised SLP on the construction of the facility, and

negotiated contracts on SLP’s behalf. Finally, in light of GPM’s relative expertise
in farm management and the NEDAP system, SLP unquestionably placed trust and
confidence in GPM to manage the farm utilizing its superior technological and

managerial expertise; indeed, the Agreement provides GPM with “all powers and
authority necessary and appropriate to perform and carry out its duties[.]” Id. at ¶
4(H). Defendants’ motion to dismiss Count II is therefore denied.7

Count IV: Breach of Contract
In Count VI, a breach of contract claim, SLP alleges GPM failed to fulfill its
obligations under the Agreement in eleven ways. ECF 32 at ¶ 103. GPM moves to

dismiss, averring that it was not required to perform the duties that SLP alleges it
breached under the terms of the Agreement.8 GPM further contends that because
the alleged breaches stem from terms which are not contained in the Agreement,
SLP’s claims are independently barred by the Agreement’s integration clause.

ECF 32-1 at § 12(C).
Under Missouri law, a breach of contract action includes the following
essential elements: 1) The existence and terms of a contract; 2) that plaintiff

7 Because the duties and powers of the individually-named defendants are not clear from the
pleadings, I will allow this claim to proceed against them in their individual capacities as well, to
the extent SLP seeks to bring separate claims; however, some or all of the claims against the
individual defendants may be subject to dismissal upon further discovery.
8 GPM also challenges the authenticity the Agreement attached to SLP’s Amended Complaint,
noting it contains a handwritten amendment which allegedly was not contained in the parties’
original Agreement. The Court is aware that “a genuine dispute as to the authenticity of a
document claimed to be embraced by the pleadings may require conversion of a motion to
dismiss into one for summary judgment.” Zean v. Fairview Health Servs., 858 F.3d 520, 527
(8th Cir. 2017). GPM acknowledges that the remainder of the Agreement attached to SLP’s
Amended Complaint, absent the handwritten language, is a true and accurate copy of the parties’
contract; further, the handwritten amendment does not appear to be relevant to any issue in the
instant motion. Accordingly, out of caution, I will not consider the disputed handwritten
amendment, and instead consider only the undisputed text of the Agreement. I need not convert
GPM’s motion to dismiss into a motion for summary judgment on this basis.
performed or tendered performance pursuant to the contract; 3) breach of the
contract by the defendant; and 4) damages suffered by the plaintiff. Keveney v.

Missouri Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010) (citation omitted).
SLP has facially plead each requisite element to support its claim; GPM disputes
only the adequacy of the first element, or whether the terms of the Agreement

impose the contractual duties which GPM allegedly breached.
Upon review of the Agreement, I find that several of the alleged breaches
specified in SLP’s Amended Complaint, specifically ¶ 103(a), (b), (c), (d), (g), (h),
and (i), describe breaches of duties which could reasonably be drawn from GPM’s

contractual obligations set forth in § 4(B), (C), (L), and the preamble of the
Agreement. GPM’s motion to dismiss Count IV is therefore denied as to these
claims.

The remaining fact-specific allegations are not explicitly set forth in the
Agreement. However, because I have already determined that SLP states a claim
for fraudulent inducement, these claims are not necessarily barred by the
Agreement’s integration clause: “The rule that all prior and contemporaneous oral

agreements and representations are merged in the written contract entered into by
the parties does not apply to fraudulent representations made for the purpose of
inducing a party to enter into such contract.” Riley v. Lucas Lofts Inv’rs, LLC, 412

S.W.3d 285, 293 (Mo. Ct. App. 2013) (citation omitted).
Finally, GPM argues that SLP’s breach of contract claim should be
dismissed because of an exculpatory provision in the Agreement which purports to

limit GPM’s liability for any undertakings made “while exercising its good faith
best efforts.” See ECF 32-1 at § 4(K). In assessing a 12(b)(6) motion, the Court
reviews only the sufficiency of the plaintiff’s complaint. Whether GPM exercised

good faith efforts in the performance of its duties under the Agreement is an
affirmative defense which is not properly considered by the Court at this stage.
Accordingly, GPM’s motion to dismiss Count IV is denied.
Count V: Breach of Express Warranty

SLP brings Count V for breach of express warranty against GPM only. The
claim mirrors the factual allegations in its fraud claims. GPM moves to dismiss,
suggesting it was not a “seller of goods” and thus made no express warranties

which could support SLP’s claim. In response, SLP cites Missouri Approved Jury
Instruction 25.07, contending that GPM’s offer of “management services” could be
replaced for “goods” within the jury instruction in order to support its alleged
breach of warranty claim. M.A.I. 25.07.

To prevail on a claim of breach of express warranty, plaintiffs must
demonstrate:
1) that there was a sale of goods; 2) the seller made a statement of fact
about the kind or quality of [ ] those goods; 3) the statement of fact
was a material factor inducing the buyer to purchase the goods; 4) the
goods did not conform to that statement of fact; 5) the nonconformity
injured the buyer; and 6) the buyer notified the seller of the
nonconformity in a timely fashion.
Pfitzer v. Smith & Wesson Corp., No. 4:13-CV-676-JAR, 2014 WL 636381, at *1
(E.D. Mo. Feb. 18, 2014) (citation omitted). SLP does not allege that GPM sold it
any “goods”—by its own admission, SLP purchased only GPM’s “management

services,” and SLP offers no legitimate support for its contention that the sale of
these services could support a breach of warranty claim.9 Count V is dismissed.
Count VII: Violation of the RICO Act

SLP brings Count VII, a civil claim under the federal RICO Act, 18 U.S.C. §
1962(c) et seq., against all defendants. Similar in substance to its pre-Agreement
fraud claims, SLP contends that the defendants engaged in a common enterprise to
defraud SLP into procuring their services, and that the alleged misrepresentations

pertaining to their managerial expertise constitutes a pattern of racketeering. GPM
moves to dismiss on several grounds, contending that the claim lacks requisite
particularity and that SLP fails to properly allege a pattern of racketeering.

“RICO provides a private right of action for any person ‘injured in his
business or property by reason of a violation of’ its substantive prohibitions.”
Dahlgren v. First Nat’l Bank of Holdrege, 533 F.3d 681, 689 (8th Cir. 2008)
(quoting 18 U.S.C. § 1964(c)). However, RICO “does not cover all instances of

9 The cited UCC jury instruction is both non-binding and irrelevant, as plaintiff did not bring its
breach of express warranty claim under the UCC.
wrongdoing. Rather, it is a unique cause of action that is concerned with
eradicating organized, long-term, habitual criminal activity.” Crest Const. II, Inc.

v. Doe, 660 F.3d 346, 353 (8th Cir. 2011) (citation omitted). The essential
elements of a § 1962(c) action are: “1) conduct 2) of an enterprise 3) through a
pattern 4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex, Co., Inc., 473 U.S.

479, 496 (1985) (footnote omitted). A failure to show evidence of any one element
is fatal to the entire claim. Craig Outdoor Adver., Inc. v. Viacom Outdoor, Inc.,
528 F.3d 1001, 1028 (8th Cir. 2008).
Assuming arguendo that plaintiff properly alleged a RICO enterprise, the

claim is nonetheless fatally flawed because it does not state a cognizable “pattern”
of racketeering. “A pattern is shown through two or more related acts of
racketeering activity that amount to or pose a threat of continued criminal activity.”

Crest Const., 660 F.3d at 356. “To satisfy the RICO continuity element . . . a
plaintiff must provide evidence of multiple predicate acts occurring over a
substantial period of time (closed-end continuity) or evidence that the alleged
predicate acts threaten to extend into the future (open-ended continuity).” Id.

(quoting Craig Outdoor, 528 F.3d at 1028.).
Here, SLP alleges that the predicate acts for the alleged fraud—the alleged
misrepresentations which induced SLP to enter into the Agreement—occurred

between “the spring of 2014 and July of 2014.” ECF 23 at ¶ 131. This closed-
ended period, while somewhat vague, is legally insufficient to be considered a
“substantial period of time.” Jd. (less than seven month period insufficient to
establish continuity); United States v. Hively, 437 F.3d 752, 761 (8th Cir. 2006)
(holding closed-ended continuity “can be shown by related acts continuing over a
period of time lasting at least one year... .”). Plaintiff's entirely unsupported
allegation of “ongoing racketeering activity” is not sufficient to support a separate
claim under a theory of open-ended continuity, and SLP has not alleged any
scheme to defraud after execution of the Agreement. Count VII is dismissed.
As there are no remaining issues,
IT IS HEREBY ORDERED that Defendant Great Plains Management, Jan
Hueber, Jeff Dace, and Jay Flora’s Motion to Dismiss [52] is GRANTED only as
to Plaintiff Spring Lake Pork’s Counts V and VII; the motion is denied as to
Counts I, II, I, [1'V, and VI.

CATHERINE D.PERRY 2
UNITED STATES DISTRICT JUDGE
Dated this 30th day of June, 2020.

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233310. Public record. Not legal advice.