The opinion of the court was delivered by: Tucker, J.
Presently before the Court are two motions to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 9(b), 12(b)(2), and 12(b)(6) from Defendants Heller and McClenaghan (Doc. 15) and Defendant DelCarpio (Doc. 20). Also for consideration are Plaintiffs' two responses to the aforementioned motions (Docs. 19 & 22). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Defendants' motions will be granted in part and denied in part.
Plaintiffs, along with another plaintiff couple from Michigan, originally filed a complaint against these Defendants in the United States District Court for the Eastern District of Michigan on October 22, 2008. On September 9, 2009, this action was dismissed as to the Plaintiffs in the instant action due to that court's lack of personal jurisdiction over the Defendants. See Turi v. Main St. Adoption Services, LLP, 08-14511, 2009 WL 2923248 (E.D. Mich. Sept. 9, 2009). Plaintiffs did not file a cross-appeal after this dismissal. SeeTuri v. Main Street Adoption Services, LLP, 633 F.3d 496, 505 (6th Cir. 2011).
Plaintiffs, without the plaintiff couple from Michigan, filed the instant civil action against the Defendants on June 7, 2011 (Doc. 1). Defendants Heller and McClenaghan moved for dismissal of the Complaint pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6) on September 9, 2011 (Doc. 20). Defendant DelCarpio filed an answer to the Complaint on September 9, 2011 (Doc. 14), followed by a motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 9(b), 12(b)(2),*fn1 and 12(b)(6) on September 30, 2011 (Doc. 20).
Collectively, the Plaintiff couples allege the following counts: Count I: Violation of Racketeer Influenced and Corrupt Organizations (RICO)
Act, 18 U.S.C. § 1962(c), against Main Street
Count II: Violation of RICO, 18 U.S.C. § 1962(d), against Main Street Count III: Violation of RICO, 18 U.S.C. § 1962(c), against the individual defendants Count IV: Violation of RICO, 18 U.S.C. § 1962(d), against all defendants Count V: Unjust enrichment, against all defendants Count VI: Conversion, against all defendants Count VII: Civil Conspiracy, against all defendants Count VIII: Fraudulent Misrepresentation, against all defendants Count IX: Innocent Misrepresentation, against all defendants Count X: Intentional Infliction of Emotional Distress, against all defendants Count XI: Negligent Infliction of Emotional Distress, against all defendants
II. FACTUAL BACKGROUND *fn2
The Plaintiffs are five couples who allege that they paid money to the Defendants to assist in arranging adoptions of children from Guatemala. However, Plaintiffs aver they were cheated out of the fees paid based on false representations concerning the availability of the children and the likelihood of completing the adoptions.
Defendant Main Street Adoption Services, LLP, is or was a Pennsylvania organization with its principal place of business in Lancaster, Pennsylvania.*fn3 Defendant Nina Heller is or was the CEO, president, and director of Main Street and resided in Pennsylvania during the events in question.*fn4 Defendant Bob McClenaghan is or was the executive director of Main Street and resides in Pennsylvania. Defendant Marcia Milagro DelCarpio is a resident of Florida; she has or had an informal agreement with Main Street to perform adoption-related services as an independent contractor. Defendant DelCarpio is alleged to have held herself out to be an expert in Guatemalan adoptions.
According to the Complaint, the Plaintiffs all became acquainted with the Defendants through an internet adoption site, http://www.precious.org. The Plaintiff couples allege the following:
A. Guy Turi and Melissa Balistreri-Turi
Plaintiffs Guy Turi and Melissa Balistreri-Turi, residents of Illinois, indicated an interest in a child, Gilda, they saw on the website on February 28, 2007. However, they were informed by Heller that the child was taken. Five weeks later, on April 6, 2007, Heller contacted the Turis via e-mail and asked if they would be interested in another child, Madeline. The Turis agreed, paid over $12,500 in fees, and traveled to Guatemala in July 2007 to meet the child. While in Guatemala, the Turis came into contact with DelCarpio, who was designated as the facilitator of the adoption by Heller. They were then told that the child was no longer available, but were offered another child by DelCarpio. The Turis refused. However, on or about July 26, 2007, the Defendants asked whether the Turis would consider meeting another child, Maite.*fn5 They agreed, and met Maite, whom they were told was available for adoption.
After returning to the United States, the Turis allege Heller discouraged them from accepting Maite and offered to "obtain" a younger girl for them. The Turis refused, and tried to proceed with adopting Maite. On or about October 4, 2007, the Turis were asked to pay DNA testing and foster care fees for Maite, which they did. On or about January 15, 2008, the Turis were advised that the adoption could not proceed because the birth father had put his name on the child's birth certificate on October 30, 2007. By this time, the Turis had paid over $25,000 to the Defendants. Defendants then made assurances that they were working on adoptions for both Madeline (who, apparently, was now again available for adoption) and Maite. Nothing came of either attempted adoption.
B. Shaun Nugent and Christine Denton
On or about November 4, 2006, Shaun Nugent and Christine Denton, residents of Minnesota, contacted the Defendants about two siblings, Julian and Estella, they saw on the website. After the couple completed a home study and other administrative requirements, Heller e-mailed Nugent and Denton information on how much money to wire Main Street. In December 2006, the Defendants e-mailed Nugent and Denton telling them that the children they originally desired were no longer adoptable because the birth mother refused a DNA test.
Defendants informed Nugent and Denton that they were unable to refund the money the couple had deposited. However, Defendants stated the money could be applied toward another adoption in Guatemala. In January 2007, Heller notified Nugent and Denton of another child that was a possible match, Maria. Nugent and Denton undertook steps to complete the adoption, flying to Guatemala on March 31, 2007. Controversy then arose as to who was the child's real birth mother and whether the child was, in fact, legally adoptable.
Denton remained in Guatemala for over a year in order to facilitate the adoption process, while Nugent travelled back and forth between the United States and Guatemala to attend court appointments. Though it is unclear from the Complaint, it appears Nugent and Denton were ultimately able to complete the adoption of Maria after they hired their own attorney in Guatemala. The couple claims damages well in excess of $170,000.
Lisa and Sam Wells, residents of Louisiana, allege that they contacted Heller via e-mail in August 2007 about adopting a child, Kimberly, from Guatemala. After several e-mail exchanges, the Wells paid $6,000 to cover DNA expenses, but the DNA test was not completed as promised. Heller informed the Wells the mother could not be located, and therefore a DNA test could not be performed. Heller then informed the Wells that a set of twins was available for adoption. The Wells sought to go to another agency but were promised by McClenaghan that Main Street's fees were the lowest. At some point the Wells began working with DelCarpio. In December 2007, the Wells worked with DelCarpio to adopt one of the twins. This apparently fell through when DelCarpio demanded money to facilitate the adoption of Kimberly, the first child the Wells were initially interested in.
In February 2008, the Wells began working with a pediatrician named Dr. Rubio to complete the adoption of yet another child, Emma Leann. In the meantime, however, Main Street apparently continued processing the adoption of Kimberly. When the Wells refused to work with Main Street, McClenaghan filed a complaint with the United States embassy. Ultimately, a dispute arose between Dr. Rubio, DelCarpio, and McClenaghan. Dr. Rubio then refused to continue working with the Wells. At the time the Complaint was filed, the Wells had been unable to complete the adoption of Emma Leann with the assistance of Dr. Rubio.
Linda and George Wood, residents of Illinois, allege that on or about January 18, 2007 they identified a child, Joseline, on www.precious.org that they were interested in adopting. The couple contacted Main Street and spoke at length about the process, indicating that they were wary to begin the adoption process because a previous experience had gone poorly. The Woods allege that after receiving many assurances from the Defendants, they agreed to contract with Main Street to complete the adoption. After a delay of about 11 months, it appeared that the adoption was going to be completed and McClenaghan demanded the final payment. However, despite Main Street's earlier claims that the birth mother had already signed the necessary documents and a DNA test had been completed, McClenaghan sent the Woods an e-mail that the mother had refused to sign the final document and could not be found.
On or about January 20, 2008, the Woods called DelCarpio, who was in Guatemala City at the time. DelCarpio allegedly told the Woods she happened to be meeting with the birth mother later that day and would call the Woods with an update. Later that day, DelCarpio translated a conversation with a woman who claimed to be Joseline's birth mother; the birth mother stated that she wanted to keep the child and had been assured that she could change her mind anytime throughout the adoption process. The next day, Heller wrote to the Woods and offered to help them with a Ukrainian adoption. The Woods wrote back the next day, demanding that their fees spent to date (roughly $29,200) be refunded. Throughout February and March 2008, McClenaghan and Heller claimed to be working on the adoption of Joseline, trying to convince the birth mother ...