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MORAVIAN DEV. CORP. v. DOW CHEM. CO.

December 4, 1986

MORAVIAN DEVELOPMENT CORP.
v.
THE DOW CHEMICAL CO., et al.



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Plaintiff Moravian Development Corp. ("Moravian") brought this civil action against Dow Chemical Co., Dow Chemical U.S.A., and Amspec, Inc. for property damages resulting from Moravian's use of Sarabond, a mortar additive produced and sold by defendants. Moravian's complaint seeks damages on several grounds including breach of contract, various tort actions, common law fraud and conspiracy, and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The RICO claims are based on allegations of mail fraud.

 In deciding a motion to dismiss, I must accept as true all well pleaded factual allegations made in the complaint and must resolve all reasonable inferences to be drawn from those allegations in the light most favorable to the plaintiff. Under the federal rules, the complaint need only set forth a short and plain statement of claims sufficient to give defendant fair notice of the nature of the claim and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Bogosian v. Gulf Oil, 561 F.2d 434, 446 (3d Cir. 1977). "[A] complaint should not be dismissed for a failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. at 45-46 (footnote omitted).

 I. Sufficiency of the Complaint

 Defendants contend that Moravian's RICO and RICO conspiracy claims are deficient in that Moravian failed a) to allege a person separate from the enterprise; b) to plead a pattern of racketeering activity; c) properly to allege any conspiracy or to show the requisite agreement; or d) to plead fraud with sufficient particularity. In a section denoted "Overview," they contend that, as an initial matter, RICO claims are inappropriate in a product liability setting. They contend that certain common law counts should also be dismissed for failure to plead fraud with sufficient particularity and for failure to allege a conspiracy.

 A. RICO in a Product Liability Setting

 Defendants argue that RICO was enacted to combat organized crime, and is distorted when it is injected into a product liability suit. They allege that the RICO claims are included here in an effort to "extort a larger settlement from defendants by improperly increasing the risk through allegations of criminal misconduct and the spectre of treble damages."

 Such serious allegations are not to be taken lightly. However, nothing in the statute limits its application to organized crime, or to particular causes of action. 18 U.S.C. § 1961; Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 3284, 87 L. Ed. 2d 346 (1985). Moreover, plaintiff may not succeed on its RICO claims unless it can prove its underlying allegations of fraud. Thus, the complaint goes beyond the limits of a traditional product liability suit.

 B. The Existence of an Enterprise

 Defendants argue that counts IX and X fail because Moravian has failed to allege a "person" separate and apart from the "enterprise." A "person" charged with engaging in racketeering activity in violation of RICO must be a distinct entity from the "enterprise" with which that person was associated. B.F. Hirsch v. Enright Refining Co., Inc., 751 F.2d 628, 633 (3d Cir. 1984). Therefore, none of the corporate entities named as persons in Moravian's complaint can individually assume the role of the requisite "enterprise" under 18 U.S.C. § 1962(c). However, Moravian has not alleged that the defendants were enterprises individually, but rather that the defendant persons, associated in fact, constituted an enterprise. (Complaint P. 96, 98). Thus, the issue is whether such an association of corporations can form an enterprise.

 "Enterprise" is defined in 18 U.S.C. § 1961(4) as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." Although the statute does not expressly include an association of corporate entities, the statutory list is not an exclusive one. United States v. Perkins, 596 F. Supp. 528, 530 (E.D. Pa.), aff'd, 749 F.2d 29 (3d Cir. 1984), cert. denied, 471 U.S. 1015, 85 L. Ed. 2d 300, 105 S. Ct. 2018 (1985). To read the statute as excluding a group of corporations from the definition "would 'make nonsense of the statute.'" Id., (quoting United States v. Huber, 603 F.2d 387, 394 (2d Cir. 1979), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980). An association of corporate entities may form an enterprise separate and distinct from each member of that association. See LSC Associates v. Lomas & Nettleton Financial Corp., 629 F. Supp. 979, 982 (E.D. Pa. 1986).

 Defendants argue that the plaintiff fails to allege an "enterprise" substantially different from the acts that form the "pattern of racketeering activity." They argue that the association of entities which is alleged here has no separate and independent existence. At this stage of the proceedings, a plaintiff is not required to show that the enterprise is separate from the pattern of racketeering activity in its pleading, but must simply identify the enterprise. Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 789-90 (1984), cert. denied, 469 U.S. 1211, 84 L. Ed. 2d 327, 105 S. Ct. ...


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