Wobble Light's allegation that Defendants falsely testified in Court that they spent more than $ 500,000.00 on behalf of Wobble Light suffers from the same deficiencies. Complaint, P 35, pp. 9-10. (Wobble Light has not stated a claim for fraud, and therefore Count I will be dismissed.
Count II: RICO
To state a claim under RICO, 18 U.S.C. § 1962(c), a plaintiff must allege: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Company, Inc., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). Defendants argue that Wobble Light has not alleged a pattern of racketeering. To prove a pattern, a plaintiff must satisfy the "continuity plus relationship" test by showing two or more predicate acts committed within a ten-year period that are related to one another and pose a threat of continued criminal activity. Midwest Grinding Company, Inc. v. Spitz, 976 F.2d 1016, 1022 (7th Cir. 1992) (citing H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Sedima, S.P.R.L. v. Imrex Company, Inc., 473 U.S. 479, 496 n.14, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985)).
Continuity is "both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." H.J., Inc. v. Northwestern Bell Telephone Co., supra, 492 U.S. at 241. A plaintiff may show continuity over a closed period "by proving a series of related predicates extending over a substantial period of time." Id. at 242. Acts that occur during a few weeks or months and do not threaten future criminal conduct cannot establish continuity. Id.; Midwest Grinding Company, Inc. v. Spitz, supra, 976 F.2d at 1024 (and cases cited therein). A plaintiff may also demonstrate continuity by showing that the predicate acts are typical of defendant's "regular way of doing business" or defendant's "way of conducting [its] ongoing legitimate business." H.J., Inc. v. Northwestern Bell Telephone Co., supra, 492 U.S. at 242-43.
With regard to defendants' conduct toward Wobble Light, the allegations in the complaint do not show the continuity required to establish a pattern of racketeering activity. Wobble Light has alleged only one scheme, i.e., a scheme to steal a controlling interest in Wobble Light, and the only victim of that scheme was Wobble Light. The bulk of the alleged scheme transpired over a three-month period during summer, 1994. However, read in the light most favorable to the plaintiff as I am required to do on a motion to dismiss, the complaint alleges a purported scheme that began at the earliest in February, 1994 with the embezzling from Peet Packing Company's pension fund and ended at the very latest when the parties rescinded the subscription agreement in September, 1994. Thus, the scheme lasted, at most, seven months, an insubstantial duration of time under RICO. See Midwest Grinding Company, Inc. v. Spitz, supra, 976 F.2d at 1024; Uni* Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 922 (7th Cir. 1992).
The alleged predicate acts are predominantly instances of wire fraud. Courts do not look favorably on the allegation of a pattern based on wire fraud incidents. Midwest Grinding Company, Inc. v. Spitz, supra, 976 F.2d at 1025 (citations omitted). Moreover, Wobble Light alleges a negligible number of instances of wire fraud. Third Amended Complaint, PP 13, 15, 21, 22, 26, 28, pp. 3-7. Many of those instances alleged are not even adequately pled under Federal Rule of Civil Procedure 9(b) requiring that "the circumstances constituting fraud . . . be stated with particularity." FED. R. CIV. P. 9(b). For instance, paragraphs 13 and 15 of the complaint simply assert that "telephone conversations" occurred and fail to provide other information necessary to allege fraud such as "the identity of the person making the misrepresentation [and] the time, place and content of the misrepresentation." Uni* Quality, Inc. v. Infotronx, Inc., supra, 974 F.2d at 922. Accordingly, Wobble Light's claims relating to defendants' attempts to steal a controlling interest in it allege, if anything, a short-term, closed-ended scheme that do not constitute a pattern of racketeering activity under RICO. See Uni* Quality, Inc. v. Infotronx, Inc., supra, 974 F.2d at 922; Midwest Grinding Company, Inc. v. Spitz, supra, 976 F.2d at 1024-25.
Wobble Light apparently attempts to allege that in acquiring or attempting to acquire other companies, the defendants defrauded those companies in the same way they defrauded Wobble Light. Third Amended Complaint, P 38, 40, pp. 10-11. However, the only allegations in the complaint concerning the fraud supposedly conducted on other companies do not plead fraud with particularity as required by Rule 9(b) and are premised with "upon information and belief." Id. at P 38. Allegations made upon information and belief are not adequate to support a fraud claim unless the facts are inaccessible to the plaintiff; and in that event, the plaintiff is required to state the basis for its suspicion, which Wobble Light has not done. Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 684 (7th Cir. 1992). Thus, Wobble Light's allegations relating to other companies do not assist it in pleading a pattern of racketeering activity.
Wobble Light does not sufficiently allege a pattern of racketeering activity. Accordingly, Count II of the complaint will be dismissed.
Count III: The Lanham Act
In Count III of the complaint, Wobble Light attempts to allege that defendants violated the Lanham Act, 15 U.S.C. § 1125(a). To successfully plead a violation of the Lanham Act, it is necessary to allege that:
(1) the defendant has made false statements of fact as to its own product or services, with such falsity stemming from actual misstatements, partially correct statements, or failures to disclose;
(2) those statements actually deceived or have a tendency to deceive a substantial section of their audience;