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UNITED STATES DISTRICT COURT

FOR THE NORTHERAN DISTRICT OF INDIANA

HAMMOND DIVISION

ROBERT HOLLAND, )

Plaintiff, )

)

v. )

)

Cerberus Capital Management, LP )

Stephen Feinberg (CEO Cerberus Capital )

Management, LP), Robert Nardelli (CEO of )

Cerberus O & AC, LLC), CEO New Chrysler )

Corporation, CEO Old Chrysler Corporation, )

Chrysler Financial, LLC (TD Bank, Group ) CIVIL ACTION NO.: 2:13-cv-491

(N.A.)), Paul Davis (Supervisor Chrysler )

Customer Assistance Team), Kimberly )

Johnson (Chrysler Financial Collections/ )

Repossession Unit), Bosak Motors Auto )

Dealership, Mr. & Mrs. Skip Bosak (Owners )

Of Bosak Motors Auto Dealership), )

John Schultheis (General Manager Bosak )

Motors), Jonathan Jeffries (Service Manager )

Bosak Motors), Mike Grzbowski (Salesman )

Bosak Motors), CEO of Bull Dog Towing and )

Bull Dog Towing. )

Defendants. )

BOSAK DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS 

PLAINTIFF’S VERIFIED COMPLAINT

COMES NOW, Defendants, Bosak Motors Auto Dealership, Mr. & Mrs. Skip Bosak, John 

Schultheis, Jonathan Jeffries, and Mike Grzbowski (hereinafter collectively “Bosak”), through their

attorneys, Tourkow Crell Rosenblatt & Johnston, LLP, and submit their Reply in Support of their

Motion to Dismiss Plaintiff‟s Verified Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and state as 

follows: 

Initially, in his Response, Plaintiff informs this Court that the small claims matter cited by 

Bosak in its Motion to Dismiss as Cause No. 45D09-0904-SC-01180 “is not pending and not 

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relevant to this RICO lawsuit.” (See Plaintiff‟s Response to the Motion to Dismiss filed by the Bosak 

Motors Defendants (hereinafter “Response”) p. 1). Plaintiff‟s characterization of the status of the 

small claims action is misleading. The small claims action was stayed in 2009 during the pendency 

of Chrysler Corporation‟s Chapter 11 bankruptcy. The case has not been dismissed and is still 

pending though in inactive status. The claims arising out of the small claims case are substantially 

similar to those at issue in this action. Plaintiff has blatantly attempted to concoct a RICO claim out 

of his state court claims as a means for circumventing the stay currently pending in his state court 

litigation. 

Congress never intended RICO to be employed to allow plaintiffsto turn any and allstate law

fraud cases into a RICO claim. Jennings v. Auto Meter Products, Inc., 495 F. 3d 466, 472 (7th Cir.

2006). In fact, in analyzing RICO claims and to avoid the influx of claims brought based upon the

lure of treble damages and attorney‟s fees, Courts emphasize the particularity with which a RICO

claim must be pled.

“RICO is a specialized statute requiring a particular configuration of elements. These 

elements cannot be incorporated loosely from a previous narration, but must be tightly 

particularized and connected in a complaint. Parroting statutory language while generally 

referring the reader back to the previous 100 paragraphs in a complaint is inadequate.” 

Lesavoy v. Lane, 304 F.Supp.2d 520, 532 (S.D.N.Y 2004) (quoting Zaro Licensing, Inc. v. Cinmar, 

Inc.,779 F.Supp. 276,284(S.D.N.Y. 1991). Plaintiff‟s claim is guilty of the above behavior precisely. 

Plaintiff is attempting to mold his state law claims into a federal RICO claim and it is apparent based 

upon his lack of specificity and ludicrous accusations that Plaintiffs is doing no more than trying to 

fit a square peg into a round hole. 

It its Motion to Dismiss, Bosak noted that Plaintiff failed to delineate how each defendant 

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committed RICO violations and instead haphazardly lumped all defendants together painting the 

entire claim with the same broad strokes. It appears, in his Response, that Plaintiff has attempted to 

explain each defendant‟s conduct in the enterprise. However, Plaintiff simply states the positions that 

the named Bosak defendants hold with respect to the Bosak Motors company. Plaintiff, again, fails to 

explain how each of the named Bosak defendants have committed RICO violations. Plaintiff lays out 

each Bosak defendant‟s position within the Bosak Motors company and broadly asserts “the titles of 

each one of these defendants is given indicating there [sic] role and function in the conspiracy. 

(Response p. 5). Simply asserting a defendant‟s position within their company is hardly enough to 

amount to conspiratorial activity. 

The Bosak defendants also noted in their Motion to Dismiss that Plaintiff failed to adequately 

plead that the activity amongst the various defendants amounted to an “enterprise.” “The first rule of 

pleading a RICO claim is that “the plaintiff must identify an enterprise.” Jennings v. Emry, 910 F.2d

1434, 1439-40 (7th Cir. 1990). Plaintiff, in his Response simply quotes Boyle v. United States, 556 

U.S. 938, 944-45, 129 S.Ct. 2237 (2009) which defines an association-in-fact enterprise as needing 

just three elements: “a purpose,” “relationships among those associated with the enterprise,” and 

“longevity sufficient to permit these associates to pursue the enterprise‟s purpose.” 

Bosak does not contest Plaintiff‟s regurgitation of the law. However, Plaintiff then fails to 

assert how the Bosak defendants‟ actions satisfy the elements. Plaintiff quotes his Complaint in his 

assertion that the Bosak defendants‟ actions satisfy the Boyle elements stating: “[T]he alleged 

enterprise in this case had purpose and relationships and it certainly had „longevity,‟ and if Boyle is 

taken at face value[,] nothing more is required to make a conspiracy a RICO enterprise.” These sort 

of sweeping allegations are rampant throughout Plaintiff‟s Response and do not satisfy Plaintiff‟s 

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burden of meeting the elements of the claims or crimes alleged. Plaintiff‟s Complaint fails to 

demonstrate a common purpose or relationship among the RICO defendants and thus, Plaintiff has 

failed to plead facts sufficient to establish a RICO enterprise. Without an enterprise, Plaintiff‟s claim 

amounts to nothing more than a common law fraud claim which is not a claim gives rise to federal 

court jurisdiction. 

Even if Plaintiff had satisfied his burden in demonstrating that the defendants formed an 

enterprise, his claim still fails because he has failed to establish that the defendants engaged in a 

pattern of racketeering activity. A pattern of racketeering activity requires at least two predicate acts 

of racketeering within a ten year period. 18 U.S.C. §1961(5). In order to satisfy the duration 

requirement, the predicate acts must extend over a substantial period of time. “A few weeks or 

months is considered insubstantial.” Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1024 (7th

Cir. 1992). In this case, Plaintiff alleges only one act which he claims gives rise to his RICO claim. 

Plaintiff‟s entire Complaint surrounds his purchase of, and the after effects of, buying a Chrysler 

300. “The presence or absence of multiple schemes is highly relevant to the court‟s determination of 

whether a RICO patter has been established.” Guaranteed Rate, Inc. v. Barr, 912 F.Supp.2d 671, 691 

(N.D. Ill. 2012). “When... a complaint explicitly presents a distinct and non-reoccuring scheme with 

a built-in termination point and provides no indication that the perpetrators have engaged or will 

engage in similar misconduct, the complaint does not sufficiently allege continuity for §1962(c)

purposes even if the purported scheme takes several years to unfold, involves a variety of criminal 

acts, and targets more than one victim.” Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 663 

(7th Cir. 1992). 

Plaintiff again, in his Response, alleges the predicate acts of racketeering committed by the 

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Bosak defendants include “mail fraud, wire fraud, bank fraud, money laundering, extortion, corrupt 

business influence and conspiracy.” (Response p. 7). The acts that Plaintiff alleges were committed 

by the Bosak defendants include “1) Chrysler and Bosak motors fraudulent inducement to purchase 

the Chrysler 300 and extended warranty, 2) Chrysler and Bosak motors breach of warranty contract 

and contract to repair.” (Response p. 8). Each of these alleged activities are no more than common 

law fraud claims that do not give rise to RICO violations. Plaintiff then goes on to regurgitate ten 

different paragraphs from his Complaint with no explanation as to how these allegations satisfy the 

any of the elements of mail fraud, wire fraud, bank fraud, money laundering, extortion, corrupt 

business influence and conspiracy. As quoted at the beginning of this brief, “parroting statutory 

language while generally referring the reader back to the previous 100 paragraphs in a complaint is 

inadequate.” Lesavoy v. Lane, 304 F.Supp.2d 520, 532 (S.D.N.Y 2004) (quoting Zaro Licensing, Inc. 

v. Cinmar, Inc.,779 F.Supp. 276,284(S.D.N.Y. 1991).

Plaintiff has further failed to plead mail and wire fraud with the requisite particularity as 

required by FRCP 9(b). In his Response, Plaintiff again lays out the elements of mail and wire fraud 

and then proceeds to cite some case law. (Response p. 9). Plaintiff then goes on to discuss how the 

Bosak defendants use the mail for the purpose of distributing marketing materials and advertisements 

as well as to “follow up sales, potential sales and repair services with correspondence.” (Response p. 

10). Plaintiff, however, fails to explain how the Bosak defendants‟ use of the mail for advertising and 

to follow up sales constitutes either mail or wire fraud. 

FRCP 9(b) requires a plaintiff to plead all allegations of fraud with particularity. Further, To 

satisfy Rule 9(b)'s particularity requirements, plaintiff must allege "the identity of the person who 

made the misrepresentation, the time, place and content of the misrepresentation, and the method by 

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which the misrepresentation was communicated." Slaney v. The International Amateur Athletic 

Federation, 244 F.3d 580, 599 (7th Cir. 2001); see also Bankers Trust Co. v. Old Republic Ins. Co., 

959 F.2d 677, 683 (7th Cir. 1992). Not one of the communications listed by Plaintiff in either his 

Complaint or his Response meets the specificity requirements. Plaintiff admits that he does not know 

the specific dates of the mailings. (Response p. 10). Plaintiff leaves entirely for the Court and the 

defendants to guess what the contents of the mailings were, as he makes sweeping assertions that 

simply cannot satisfy the heightened pleading requirements necessary pursuant to Rule 9(b).

Finally, for the first time, in his Response, Plaintiff alleges a new theory for which he alleges 

each defendant is liable. Plaintiff now alleges that each of the defendants are guilty of aiding and 

abetting. (Response p. 17). This claim appears nowhere in Plaintiff‟s Complaint. Plaintiff is 

attempting to add new claims by way of responsive pleadings. Further, Plaintiff again quotes

abundant caselaw relating to his new aiding and abetting theory but fails to demonstrate the impact 

that the quoted caselaw has upon the facts of this particular case. (See Response pp. 17-18).

For the above and foregoing reasons, Plaintiff‟s RICO claim must fail. As Plaintiff‟s RICO 

claims is the only claim giving rise to federal jurisdiction, this claim must be dismissed for lack of 

jurisdiction. “Where the sole basis for invoking federal jurisdiction is non-existent... the federal 

courts should not exercise supplemental jurisdiction over his remaining state law claims.” Al’s 

Service Center v. BP Products North America, Inc., 599 F.3d 720, 727 (7th Cir. 2010). As no 

legitimate claim gives rise to federal jurisdiction, this Court should dismiss Counts I, II and III of 

Plaintiff‟s Complaint as against the Bosak defendants with prejudice.

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Respectfully submitted,

TOURKOW CRELL ROSENBLATT

& JOHNSTON, LLP

s/ James P. Buchholz

James P. Buchholz, #17023-02

127 W. Berry Street, Suite 1200

Fort Wayne, Indiana 46802

Telephone: (260) 426-0545

jbuchholz@tcrjlaw.com

Counsel for Defendant, 

Bosak Motors Auto Dealership et al

CERTIFICATE OF SERVICE

I hereby certify that on this 31st of July, 2014 I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system. I also certify that the foregoing is being served 

electronically or by U.S. Mail to the following:

Robert M Holland III, 1120 Baker Street, Gary, IN 46404

Michael P. Herzoff, mherzoff@wetlman.com

James J. Todd, jtodd@weltman.com

CEO Old Chrysler, c/o CEO Chrysler, 2777 Inkster Road, Farmington Hills, MI 48334

Paul Davis (Spv. Chrysler Customer Service) c/o CEO Chrysler, 2777 Inkster Road, Farmington Hills, MI 48334

Owner/CEO Bulldog Towing, 641 Joliet Street, Dyer, IN 46311

Bulldog Towing c/o Owner/CEO, 641 Joliet Street, Dyer, IN 46311

Jason R. Barclay, jason.barclay@btlaw.com

Howard O Godnick PHV, howard.godnick@srz.com

Joshua R. Schonauer PHV, Joshua.schonauer@srz.com

Mark D. Stuaan, mstuaan@btlaw.com

s/James P. Buchholz

James P. Buchholz

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