is based not only on her own tragic experience in the investigation of her of her counsel but on the sworn affidavit of the former preferred veterinarian of defendant pat lang kennesaw who described the scheme in detail and quit that position when he would not veterinarians why were none of the preferred veterinarians included as defendants mrs narrows is holding these defendants accountable planned peddling kennesaw and positive for conducting the affairs  association in fact enterprise there's certainly no requirement that all of the members of an enterprise be named as defendants and certainly in this case would be more unworkable if she had named you know every single veterinarian and all of the clinics and all of the members of the enterprise so she is holding these defendants accountable for conducting the affairs of the enterprise using the veterinarians but this case doesn't require the participation of the veterinarian as a defendant so what is the basis for your client's belief that the franchise or recruited a nationwide network of veterinarians as opposed to planned kennesaw having hired this local vet thirteen years ago and the vet who's named in the case yes so i think this is a really critical you know set of facts because the the lower court really misread our allegations on this point so what dr weil are excusing what dr good testified to when he was the preferred veterinarian for the kind of kennesaw ten years ago or for a period of ten years ending in two thousand and five was that at the same time that he was becoming increasingly concerned with the puppy mill cats coming off the tracks with the majority of the animals being sick with pet land nevertheless seeking to sell them pet lander pet land kennesaw land chemists at the direction of pet land going under pet land corporate protocols so what if i can just finish what petland kennesaw what dr could testify to it was that at the same time that this was happening that palin kind of management was becoming closer and closer with corporate and that when he he repeatedly states in his affidavit that when he had suggestions and wanted to do things differently and wanted to treat the sick packs differently he was told again and again that palin corporate had its own protocols for the treatment and sale of sick animals and that the store was going to follow those protocols so when the complaint talks about the franchise agreement ok so let me ask again other than that vet who was who's direct relationship was with pet land kennesaw and the current the vet named in the complaint what facts do you have or were you relying on when you drafted this complaint that the pet land franchise or recruited veterinarians nationwide to participate in the scheme that you're describing yes your honor i want to be clear that it's not necessary for a scheme that pet land corporate recruit itself recruited the veterinarians instructed its franchises to recruit veterinarians who would be willing to rubberstamp these house certificates and to and you infer that from the experience from one franchisee pet when kennesaw honor from the fat from the fact that plant kennesaw is not just any franchise it is a core franchise of pet land that is used as a training ground so that one of the facts in our complaint was that pet land uses petland kennesaw to train other people and franchises so that you know leads us to believe that what happened at petland kennesaw is not unique or some sort of fluke or a franchise going rogue but a franchise that follows petland corpus protocols protocol for the the sale of pets and so to take what happened to mrs narrows years after dr good had testified about this scheme to take that as some sort of accident or a fluke or dr waller going ro is to ignore all the facts in the complaint that show that peddling kennesaw is one of pet land chief franchises and that your position is that all of the franchisees been corrupted by the fr discovery may show that certain franchises are going along with the scheme more than others the question on a motion just missed this case was dismissed on a motion just missed is was pet land did palin use the cover of it's legitimate business business to mandate an arrangement for the sale right if you are proceeding under civil rico yeah among other things you assert an association in fact as the and to price itself that's enterprise you've got to assert among other things a common purpose a relationship among those associated with the enterprise and longevity sufficient the associates to pursue the employee's purpose you say as i read the complaint at a high order of abstraction that the common purpose was to quote implement poland's scheme to defraud customers into purchasing animals with sham health certifications and a loser the services standing alone that would not be enough to establish a common purpose just speaking for myself you are going to have to allege a whole bunch more than that because that would run afoul of the requirement that you plead to see what factual allegations you make in support of the existence of this common fraudulent purpose i could see only seven that even remotely would get you there and i want to go through them with you to tell me how drawing all of these inferences in a light most favorable to you that would be enough to meet the pleading requirements for a common purpose which it seems to me is most critical here for pleading enough to show an association in fact the st thing i find at seven dollars and eight dollars you say paul and tightly controlled it's franchises with uniform policies and procedures but there's nothing about that that suggests even remotely the common purpose was to defraud all of the purchasers right no your honor that i think i could infer a purpose to defraud from the fact that the franchise or maintains uniform policies and procedures for all of its franchisees know ya know that the that allegation about the franchise agreement is to show that pat land has the means to to these pets are healthy and let me just run through i mean i'm just running through the complaint that in and of itself doesn't answer the question the nd thing you assert at eleven am time i'm looking at the complaint itself paucity of has an apparently nearly exclusive relationship with puddle and that is not disclosed to consumers that it states on its website the purpose is to help pet stores increase their profitability and fix holes in the management of pets to how does that finding an association in fact enterprise when a business is so dependent on another and is essentially serving another that can be one factor that that but i'm just looking at that then the rd one you aside is upon information and belief problem pays fixed rate each month and exchange for their agreement to certify how does that show a common purpose to commit fraud doesn't jump out at me because both pat land and the veterinarians know the house status of these animals they know that the majority of you know i'm just part but paying preferred that marion's a fixed rate would hardly establish a common purpose to commit fraud would so again it demonstrates that pet the other allegations in the complaint the fact that both pet land and the veterinarians know that the animals are sick and nevertheless try to get them out the door and into customers homes within this incubation period before disease you know diseases become symptomatic and that dr good testified that he specifically told kennesaw about this symptomatic period and that he observed that this was their strategy and that they would later blame the customers for animals getting sick and that customers are after being given the certificate saying their pet is healthier than directed back to those same veterinarians who are of course not going to say oh actually this piece of paper that i gave you with and the other thing you cite is circumstantial evidence flowing from the fact that  paucity called cisneros and stated the dog was improving while it may well have been this is the way you phrase it dead suggests a purpose to further the fraud then you say you reference the testimony of d good regarding the influence peddling kennesaw management had over that an area ends and you say dr waller called him brought over a petland kennesaw manager who insists narrows want to pick up the dog's body and then you cite quote the economic irrationality of the behavior of preferred that's it that's somehow indicative of a different to a larger purpose i was just looking for the perp common purpose to commit this fraud is there anything else in the complaint that bears directly and specifically on common purpose other than the seven allegations that i read from a complaint that i should consider to ask whether you've played enough for an association in fact to have the common purpose to implement a scheme to defraud customers yes your honor i believe the doctor fifty describe the certification process and how it's essentially a tool to get you know customers to spend two thousand four hundred dollars on an animal that is actually dying that's the core of the scheme the fact that their dependents knew the house status  good morning your honor has made please the court my name is michael graduation and with me this morning is mr hank fellows and together we represent pet land inc who is the ohio based national franchiser work of the pet land family of stores to follow a few questions that the panel has posed opposing counsel judging garro asked what factual basis do you have to say that the national franchise or recruited a nationwide  enterprise of veterinarians the fact is there were no facts that were in the affidavit of dr good discusses how he left and kennesaw more than ten years ago and mentions nothing about petland corporates protocols procedures or anything so the affidavit does nothing to show that petland bank did anything more than act as a national franchise or here and then as judge marcus was going through the facts to allege a common purpose i think opposing counsel is answer stand for themselves those allegations do not show a common purpose to defraud they show individual defendants in these cases the franchise seems to me the strongest allegation they favorable to them moving two responses to that judge marcus the st is again dr good mention that he has not been with ellen kennesaw for ten years since two thousand and five and said to infer something about protocols that are existing ten years later just is not plausible and nd if we look through that affidavit petland corporate is a phrase that appears i think three times in the affidavit but nowhere does the affidavit allege what pet land protocols were peddling corporate protocols work with the establishing a common purpose and in terms of establishing certainly a rico enterprise if you look at the district court's order the district court's order correctly analyzed this into the participation and management elements that the u s supreme court has laid forth and read and i think if you isolate the if you disregard rather the conclusion reallocations in the complaint you're left with individual corporations and a franchise system pursuing their own interests and not relying on some sort of economic unusual unusual economic interdependence that the case is finding rico enterprises find in those circumstances for instance the bible case that cited by the appellant or the or the george worse urban settlement services case those cases relied on an unusual amount of economic interdependence between the participants in the alleged rico enterprise and that's just not what we have here when you set aside the conclusion reallocations in the complaint so asking whether she said in the mouth implied enough to get in the door and be heard about whether there was an association in fact even with respect to these particular players and this particular incident that's correct your honor and i think the way that the fact that she may not have said enough or played enough to establish commonality numerosity to pick out a horse is not really before us that's correct or out of the question is whether she's possibly alleged violations of rico under georgia and federal law and i think here if you look at your decision in the rape case if you look at the conduct that's plausibly alleged and well pled as to each defendant  there's nothing odd about a franchise or requiring uniformity with it's franchises that doesn't get you a common purpose to defraud it doesn't get you an enterprise and i think that's why  cohen's order in the district court was correct in saying that at bottom what we have here is a single sale of a single path and the actions that are well planned against these defendants and there's few of them  really only show that the defendants were acting but evil very much as a single seo involving a single patent theoretically there could be multiple acts of wire or a male fraud or both and there could be an association in fact enterprise with regard to that single cell if there is might be hard to prove but it doesn't say that she could not plead that i believe the question so which brings me to sort of help me with this she's got to say enough about the predicate acts of male and wire fraud as well as showing a common purpose only association in fact and so  nine b she's got to plead with particularity the nature of the fraud and the circumstances as i see it the heart of her complaint on the fraud  certificate of that nary an inspection stating that waller had certified the puppy is healthy for fit for adoption and free of par with all virus fraud in hears she says that that the certification was false they well knew that at the front and they said that the puppy was healthy fit for a dive and at for adoption and free of this viral infection if that isn't enough then everything else fails that's easy but if that's enough then we get to the other sort of predicate pieces that follow there after you follow the thrust  enough to plausibly allege one particular act of one veterinarian and saying that he had checked this twice checked the dog twice to allege that was false does not get you to a rico she can plead based off of her own experiences but every other allegation in the complaint in other words every allegation about a rico scheme is played upon information and belief and the of course everything that your hon mention is questions would be those allegations that do not it's a complaint itself doesn't include any document called certificate of that nerine inspection doesn't it does not but it provides a picture of a document certification that anything other than what's listed there that he that the veterinarian checked for certain things it certainly is not anything more than what's listed there and so for the pla certified more than once there it would be inappropriate but it does say at the time of the examination i found this puppy to be free of any internal or external powers and it's hard for in this puppy quote to be happy healthy and fit for adoption and in fact  conduct by the veterinarian and certain in filling out that for and i think that's that's the problem with the plaintiffs complaint ultimately thank you thank you good morning and on behalf of kennesaw it may please the court judge cohen correctly ruled that kennesaw as suburban atlanta store selling dogs birds and squeaky toys is not operating with criminal intent to direct a nation wide rico enterprise this court should affirm that order for many reasons but let me highlight three that track the court's order in what we've been talking about this morning one there are no allegations that kennesaw operated or manage enterprise which is required by reviews there are no plausible or particular allegations to support the wild speculation that the complaint reflects and there are no well planned predicate acts as to kennesaw  allegations that kennesaw managed and directed an enterprise now we supposedly did that from the bottom up even though the allegations in the complaint alleges top down conspiracy but what they rely on their rely on training plaintiff says that kennesaw serve as a training ground but there's no allegation about the content of any training whatsoever and only wild speculation would support that kennesaw was training in fraud vs training in how to set up a pet store or how to sell more durables what else they will franchise agreement because the franchise agreement discusses a quote unique system in which can a saw supposedly involved that agreement is attached to the complaint can read it word for word there's not a single sentence in there that describes or even hints at kennesaw managing or directing a fraudulent scheme of any kind it doesn't even mention can it saw and in fact it says pet makes the health and well being of our pets our highest priority that's just like the contract in this court elmont the decision where about the mexican tourism tax in an airline and this court noted that that agreement even though it's what the plans  relying on quote says nothing about an illicit enterprise or fraud scream scheme and so the court can't make any inferences about the franchise agreement that are plausible just like it couldn't you know monza now let me talk about the dr good affidavit the doctor good affidavit is not probative of anything because dr good stopped working for chemists off fourteen years ago when george w bush was president and apple had never sold an phone moreover dr good isn't saying anything about kennesaw directing anyone to commit fraud or issue fault helped certifications and dr good certainly isn't admitting that when he was the preferred bet that he was doing that there's nothing that says he was issuing false exams that anyone told him and kennesaw to do the same thing and there's no evidence in there that's going on today to the contrary the affidavit that docket sixteen dash two page five says that when he was the preferred that dr good performed to help exams for the dogs he provided the treatment that he thought was necessary he then invoiced kennesaw and kennesaw paid him that's ordinary business operations that says nothing about fraud now let me talk about particularities possibility judge marcus you said that you've got to plausibly put enough on the table to get the complaint over the finish line here the complaint faces possibly the most stringent pleading requirements you can imagine not only tumbly a ball but also nine b in particular and under fraud because the exclusive predicate act allegations are male and wire fraud and because as your honor noted the alleged common purpose is to commit fraud to make more money here instead of pleading with particularity the complaint is the opposite page one says every allegation in the complaint is pled upon information and belief except as to the plaintiff's own acts furthermore ten more times the complaint when you get to the most critical allegations they are alleged pacifically upon information and belief and those are details at page twenty two  kind of sauce brief now the other point i want to say is that many of the implausible inconclusive allegations are contradicted by the documents look at paragraph fifty seven that's where the plaintiff alleges that kennesaw quote requires customers to use a preferred bet and quote restricts customers from using an independent that that is absolutely false when you look at docket one dash two which that is attached to the complain as the contract with the planet signed says quote we meaning kennesaw understand that you may have a personal relationship with a different but marriott and because of this kennesaw will provide for up to twenty five percent reimbursement that's not requiring or restricting anything i think by the way if i could just interrupt you for a nd i did not see in the record what the outcome of this dispute was did business since narrows get her money back for missis nearest technic tactically declined to allege what happened in fact she was offered her money back and refused to accept it so she's the last point i want to make so if there's no record evidence in the and that's also says nothing that's not an activity that boded be an act of fraud mail or wire fraud but the you can have an underlying fraud that's executed or maximized by using the mails and wires well i mean you don't even have a mailing that in another itself may be fraudulent but to the extent that it is an integral part of and effects the scheme in that caitlin gave a false a terrific get claiming the dog was healthy and free of par or virus when in truth and in fact they allege that wasn't the case that iraq was sick and indeed was suffering from the virus a couple points your honor st of all it's not a certification it's the result of one health examination from someone who isn't kennesaw right so we don't have any certification in in the complaint we just have an assertion and the only thing we actually have happen and what i will offer to pay and so that there's just no fraud that comes out of that i mean they are there also it is just completely conclusive really assumes that all these pets are are sick and unhealthy and came from puppy mills there's not a single morning morning morning daniel rogers mccarty bacon on behalf of the absolutely positive solutions i would definitely concur with the counsel for my co defendants regarding the lack of any plausible allegations of a civil rico claim in this complaint and i just wanted to spend a couple of minutes to particularly note how that's true with respect to my client positive if you look at the allegations in the complaint with respect to positive and their interactions with  extremely limited and they all occurred after the alleged injury here occurred right the only role of positive here was to serve the point of contact for any issues that arose and so there was one call that occurred between the plaintiffs and my client's representative on december th to provide the known status of the dog that was being cared for by the vet and as part of that conversation what is positive do positive it also is in the business of you know providing ancillary products and so they sold a registration with the american kennel club which the plaintiff paid for and that was mailed and she received everything but all of that occurred after the alleged economic injury of either paying too much is the allegation of paying a premium or not even paying for it all that it all occurred and as the cases we've cited in our brief and the court is well aware proximate cause is not only an element that must be proved in this case but it is one that should be carefully looked at in a rico case at the pleading stage and there certainly is no proximate cause here the other issue with respect to my client that i wanted to raise with the court has to do with the  conducting the affairs of the enterprise requirement that there needs to be an allegation was supported by facts that my client directed the affairs of the enterprise they don't need to be the you know proverbial master mind that they need to have some role in directing the affairs of the enterprise there are zero allegations here with respect to positive in fact the allegations in the complaint negate that theory if we look for example at paragraph forty four of the complaint or fifty five of the complaint both of those expressly allege that my client is controlled and directed by peddling corporate now you know the truth of those allegations because they may those are the allegations that  before the court those are the ones that need to be assumed true and those are the ones that show that my client could never have any civil rico liability in this case whatsoever that's in the reeves case from the u s supreme court and plaintiffs even concede in their reply brief that all d of the defendants need to have some role in directing the affairs of the enterprise so for the reasons stated by the district court as well as discussed by my code finance counsel and specifically for the reasons why my client positive doesn't belong in this case we respectfully request that your arms are firm thank you mr rogers mrs narrows i can't speak to facts that are not in the complaint mrs narrows paid a premium for a pet that was dying she wants to vindicate her the rico violations services from the preferred veterinarian and positive you know what what could be sort of more legitimate than a pet store that sells an animal and says here is a health you know we examine this puppy carefully here's it's healthy you know you have that  and if you don't feel good enough about that we are also going to you know give you these services from the preferred veterinarian but in fact the preferred veterinarian and knew that this whole certificate was at best unreliable and at worst an outright fraud and  just want to get back to your honor's question about you know what is pat land they do not have to select every veterinarian see every health certificate to have essentially put this fraud scheme into motion and that the corrupted this very large group all the veterinarians all the french and positive yet there are no facts that describe in any way how they business transactions between a veterinarian and pet lancaster exactly that's what they were but dr good quit that position because he was being instructed to lie about the health status of the animals and he didn't want by doing that can i felt like kennesaw at the same time that p  cast i was becoming closer and closer with palin corporate and with other franchises and he was told again and again that the store was going to follow pat lang corporates protocols so fast forward to tangle that by petland he was yeah he wanted to do things differently with regard to the treatment and sale of sick pets in the store and they said no pat lang corporate sets are protocols so if you fast forward ten years and the exact harm that mrs narrows experienced was something that dr good testified about well let me let me just stop you fast forward ten years let's not exactly breeze past that he left in two thousand and five why is the information that he has provided to you that is dated a long time ago why is how is this in any way relevant to this complaint today because essentially it shows that pet land was able to find a veterinarian who would do what he would not so the veterinarian that in two thousand and five ye so he he left because he was being instructed to lie to customers about where their animals came from how sick they were the fact that they could you know be incubating disease as instructed to live by pet land chemist who was following a disease and she was told that this had pet is healthy and she paid two thousand four hundred dollars for it now and let me let me also go back to you said following the policies of corporate how what is different about that relationship that is different than any other franchise or franchise the relationship certainly peddling kennesaw is part is a franchisee and you kind of are waving your hand and saying following the direction of pet lamb corporate but other than the fact that there's a franchisee franchise or relationship and other than the fact that you have alleged they're following the policies where are the specifics of this scheme sort of imprimatur of their respective profession to carry out this scheme that is so different from cases like ray or all monza in which you have either parallel conduct or just an innocent you know service provider that's not what's going on here and so really to view what happened to mrs theros as sort of a fluke accident or a franchise going grow is contrary to all the facts in the complaint that shows the peddling cast i was just doing my peddling corporate had instructed it to do but  we buy into the theory that you're advancing today aren't you dieting the entirety of the franchise or franchisees system that we that is so prevalent simply because you have that sort of a relationship and you point to corporate and just say they're following the policies of the meat where's the meat to those allegations not at all your honor you don't recall is a very fact specific statute in what shows an association of fact enterprise and  the conducting of the enterprise affairs is going to be different in each situation so the question is really you know why are these actors getting together why are the veterinarians why is petn using the veterinarians and how is it working with them and you know what how  did the plaintiff experience this fraud so it's certainly not the case that in every situation the franchisor is is is going to be on the hook for whatever the franchisee dead but you know in a case like the public storage case where you know you have a contract that's given to customers that makes the uniform representation here about the pets being healthy that is a fair inference that the franchise used the cover of its legitimate business to carry out this fraud which is of course you know stopping that is one of the chief purposes