In its opinion and order dated May 5, 1995, the court denied defendant Fidelity Financial Services, Inc.'s ("Fidelity") previous motion to dismiss Count I but ordered the parties address the sufficiency of Count I following the Seventh Circuit's recent opinion in Richmond v. Nationwide Cassel L.P., 52 F.3d 640 (7th Cir. 1995). Moore v. Fidelity, 884 F. Supp. 288 (N.D.Ill. 1995). Defendant filed a motion to dismiss Count I on May 19, 1995, that has been fully briefed by the parties. After reviewing the briefs and the cases cited by the parties the court finds that plaintiff Julius V. Moore, Jr. fails to distinguish this case from Richmond, and in light of that opinion plaintiff's RICO claim must be dismissed.
In his amended complaint plaintiff alleges three enterprises under his RICO claim: (1) Bank of Boston Corporation ("BBC"); (2) Fidelity Acceptance Corporation ("FAC"); and, (3) "the combination of Fidelity and the automobile dealers with which it had relationships."
Plaintiff does not name any specific automobile dealer; plaintiff does not even name the dealer that sold plaintiff his car. The only factual allegation made regarding the third alleged enterprise is that Fidelity prescribes the printed form on which the retail installment contracts executed by the dealers must be written in order for Fidelity to consider purchasing the contracts. The facts plaintiff alleges regarding an enterprise consisting of Fidelity and automobile dealers is virtually identical to the facts alleged in Richmond. In Richmond, the plaintiff alleged that the defendant "plus unnamed car dealers" were an enterprise and that the car dealers prepared customer retail installment sales contracts on the defendant's printed forms. Similar to the instant case, the plaintiff "did not even mention" the dealership from which the plaintiff purchased her used car. The court held that "such a nebulous, open-ended description of the enterprise does not sufficiently identify this essential element [an enterprise] of the RICO offense." Id.
The amended complaint alleges the following facts regarding BBC: (1) Fidelity is part of a corporate group that is ultimately owned by BBC (BBC owns FAC and FAC owns Fidelity); (2)BBC is engaged in the financial services business, including consumer finance, insurance, consumer banking, venture capital, investment banking, merchant banking, trust services, brokerage services, investment management services, equipment leasing and mortgage banking; (3) "FAC and BBC delegated to Fidelity the responsibility for the servicing of the consumer loan contracts at issue in this case"; and, (4) "the money that Fidelity acquired through the conduct complained of inured to the benefit of FAC and BBC."
Regarding FAC, in addition to the facts stated above, plaintiff alleges that: (1) FAC is engaged in the financial services business, including consumer finance and insurance, and "management of FAC delegates the conduct and management of various lines of business, either generally or with respect to specified geographical areas, to specific subsidiaries"; and, (2) FAC and Fidelity share common directors and officers.
In Richmond, 52 F.3d at 644, the court articulated the current standards for identifying an "enterprise" in a RICO complaint:
An enterprise must be more than a group of people who get together to commit a "pattern of racketeering activity," and more than a group of associated businesses that "are operated in concert" under the control of one family. The hallmark of an enterprise is a "structure." There must be a structure and goals separate from the predicate acts themselves.