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ROCHE v. E. F. HUTTON & CO.

May 20, 1986

William Roche, Daniel Balish, Carolyn Hoffman, Louis and Deborah Domiano and Jeffrey V. and Rosaria A. Elwell, Plaintiffs
v.
E. F. Hutton & Company, Inc., Tony Watson, Thomas Clark and Katherine Clark, Defendants



The opinion of the court was delivered by: NEALON

 William J. Nealon, Jr., Chief Judge.

 Defendants filed a Motion for Judgment on the Pleadings with respect to plaintiffs' claims under the Racketeer Influenced and Corrupt Organizations Act on January 13, 1986. Defendants request that judgment be entered in their favor on Count II of the Amended Complaint of Plaintiffs Roche, Balish, Hoffman and Domiano, Count II of the Amended Complaint of Plaintiffs Jeffrey V. and Rosaria A. Elwell and Count III *fn1" of the Complaint of Walter P. Knight, intervening plaintiff. Plaintiffs filed an Opposition Brief on February 7, 1986 *fn2" and defendants replied on February 25, 1986. Plaintiffs filed a surreply brief, pursuant to court Order dated April 7, 1986, on April 10, 1986. In accordance with their request and with the court's permission, defendants filed a closing Memorandum in Support of Their Motion for Judgment on the Pleadings on April 16, 1986. Needless to say, this issue has been fully briefed and is ripe for disposition. For the reasons set forth below, defendants' Motion for Judgment on the Pleadings will be granted in part and denied in part.

 DISCUSSION

 At the outset, the court recognizes that a judgment on the pleadings is an appropriate remedy where material facts are undisputed and judgment is possible by considering the contents of the pleadings. See General Foods Corp. v. General Foods, Inc., 496 F. Supp. 307 (D.C. V. I. 1979), aff'd, 659 F.2d 1066 (3d Cir. 1981). In considering a motion for judgment on the pleadings, the court is required to view the facts presented in the pleadings and the inferences drawn therefrom in a light most favorable to the nonmoving party. See City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135 (E.D. Pa. 1982). With this standard in mind, the court will examine each of the challenged claims seriatim.

 A. Section 1962(c) *fn3" Claim Against Defendant E. F. Hutton & Co., Inc.

 In their opposition brief, plaintiffs state, ". . . plaintiffs do not press their claim of liability against E. F. Hutton (Hutton) under subsection 1962(c) . . . ." Document 121 of the Record at 2. Accordingly, plaintiffs appear to concede, in light of B. F. Hirsch v. Enright Refining Co., Inc., 751 F.2d 628 (3d Cir. 1984), that Hutton cannot be both the "enterprise" and the liable "person" for § 1962(c) purposes. See United States v. Turkette, 452 U.S. 576, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981)("enterprise" is a separate element that must be proved).

 There is some question whether Hutton could be held liable under § 1962(c) on the basis of respondeat superior. It is doubtful, however, whether respondeat superior can be utilized to impose liability on Hutton indirectly, when B. F. Hirsch prohibits the same recovery directly. *fn4" The court need not address this issue in light of plaintiffs' withdrawal of their § 1962(c) claim against Hutton. As plaintiffs aver:

 
In this case, even though the plaintiffs assert that E. F. Hutton constitutes an institutional RICO enterprise, the plaintiffs no longer press the claim that E. F. Hutton is liable as a defendant under subsection 1962(c). The allegations in the amended and intervenor's complaints that all "defendants" are liable should, as far as subsection 1962(c) is concerned, be interpreted as referring only to the individual Hutton employees and not to E. F. Hutton itself . . . . Since the plaintiffs do not now seek to hold E. F. Hutton liable as a defendant under subsection 1962(c), the Hirsch decision has no further bearing on plaintiffs' RICO claims.

 Document 121 of the Record at 5.

 B. Section 1962(c) Claims Against Individual Defendants

 Plaintiffs assert claims pursuant to § 1962(c) against the individual defendants. As plaintiffs state:


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