UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ROBERT HOLLAND )

)

Plaintiff, )

)

v. ) Civil Case No. 2:13-CV-00491-RL-JEM

)

CERBERUS CAPITAL )

MANAGEMENT, L.P., et al., )

)

Defendants. )

CERBERUS DEFENDANTS’ REPLY IN SUPPORT OF THEIR

MOTION TO DISMISS PLAINTIFF’S VERIFIED COMPLAINT

Cerberus Capital Management, L.P., Robert Nardelli, and Stephen Feinberg

(together, the “Cerberus Defendants”), by and through their counsel, respectfully

submit the following Reply in Support of Their Motion to Dismiss Plaintiff’s Verified

Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and (b)(2) (Dkt.

No. 28) (“Motion”), and Memorandum of Law in Support of Their Motion to Dismiss

(Dkt. No. 29) (“Memorandum”), and in opposition to Plaintiff’s Response to the

Motion to Dismiss (Dkt. No. 58) (“Response”):

Although Plaintiff’s latest submission in this case purports to be a Response

to the Cerberus Defendants’ Motion and Memorandum, it is anything but

responsive to the arguments raised. Instead, Plaintiff has confronted this Court

with a disorganized rehash of conclusory statements from his Complaint (Dkt. No.

1) and new, baseless factual assertions that are nowhere to be found in the

Complaint, all the while purporting to be entitled to a liberal construction of his

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pleadings despite the implausibility of his allegations. Yet Plaintiff’s Response fails

to demonstrate that his Complaint is sufficient to survive the numerous fatal

deficiencies addressed in the Cerberus Defendants’ Memorandum. Indeed, the only

thing that remains clear is that this case is nothing more than one man seeking

revenge for a repossessed car through a far-fetched garden variety fraud allegation

masquerading as a federal RICO claim.1 As demonstrated in the Cerberus

Defendants’ Memorandum, and as further explained below, each of the Counts in

Plaintiff’s Complaint—premised on Federal RICO under 18 U.S.C. §§ 1962(a),

1962(c) and 1962(d) and corresponding Indiana Civil RICO statutes, respectively—

fails to state a claim for relief; accordingly, the Complaint should be dismissed with

prejudice and without leave to amend.

I. PLAINTIFF, A TRAINED LAWYER, IS NOT ENTITLED TO HAVING HIS

COMPLAINT LIBERALLY CONSTRUED. First, Plaintiff has urged this Court that, as a pro se Plaintiff, he is entitled

to a liberal construction of his Complaint. (Response at 2.) The Cerberus

Defendants acknowledge the general proposition that “‘a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers,’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)); see also, Ambrose v. Roeckeman, 749 F.3d 615,

618 (7th Cir. 2014). However, when the pro se litigant is a former attorney, as is

1 Plaintiff’s grievance is the type of complaint that belongs in State Court, if it belongs anywhere.

Along that line, it is telling that Plaintiff has sued Defendant Bosak Motors Auto Dealership in Lake

County Superior Court and has asserted “allegations which stem from the same cause of action as

the one [he] alleges in this action.” See Bosak Motors Auto Dealership Motion to Dismiss (Dkt. No.

57) at 4-5.

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the situation here, courts in this Circuit have held that the plaintiff “has only the

most tenuous claim to the more forgiving pleading standards.” Weston v. Illinois

Dept. of Human Services, 433 Fed. App’x 480, 482 n.1 (7th Cir. 2011). Thus, to the

extent that the Plaintiff asks the Court for leniency in assessing the sufficiency of

his Complaint, the Court should not be so forgiving. This is especially true when

Plaintiff purports to have been an attorney in Indiana “at all material times

relevant in [his] complaint” (Compl. ¶ 6),2 and has had ample opportunity as an

experienced RICO Plaintiff in this Court to better understand what is required in

filing a non-frivolous RICO complaint. See, e.g., Holland, 2013 U.S. Dist. LEXIS

131793, at *13-14 (dismissing Amended Complaint, noting that under Rule 12(b)(6)

the same Plaintiff as here “failed to plausibly plead either the existence of a

criminal enterprise under 18 U.S.C. § 1962(c), or an agreement substantiating a

conspiracy under 18 U.S.C. § 1962(d)”).

II. PLAINTIFF HAS FAILED TO ADDRESS DISPOSITIVE ARGUMENTS

RAISED IN THE CERBERUS DEFENDANTS’ MEMORANDUM. The Cerberus Defendants’ Memorandum highlighted a number of material

deficiencies in Plaintiff’s Complaint, any one of which alone would be grounds for

2 The Plaintiff’s own Complaint indeed seems to undercut his argument that he is entitled to the

lenient standard the Court would typically apply to a pro se plaintiff. He openly admits that he is a

trained attorney, and specifically pleads that he was “an attorney that practices law in the State of

Indiana” during “all material times relevant to this complaint.” (Compl. ¶ 6; see also id. ¶¶ 125, 129,

144, 150-51, 185 (defining the time parameter of this litigation from 2007 until December 2013).)

However, Plaintiff has perhaps misled the Court since it appears that his license to practice law was

suspended in October 2009 and has not been reinstated. Holland v. Lake County Municipal Govt., 2013 U.S. Dist. LEXIS 131793, at *8 n.1 (N.D. Ind. Sept. 6, 2013);

https://courtapps.in.gov/rollofattorneys/.

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dismissal of this frivolous action. But rather than address the substance of those

arguments, Plaintiff’s Response merely repeats the same kind of conclusory

statements that filled his Complaint, and his failure to offer substantive responses

compels dismissal of his Complaint. A. Plaintiff Has Not Adequately Pled Any Predicate Acts of Racketeering

Activity Against the Cerberus Defendants. As the Cerberus Defendants argued in their Memorandum, Plaintiff has

failed to plead that any one of the Cerberus Defendants committed even a single

predicate act of racketeering activity themselves, and therefore they cannot be

liable as RICO defendants. (Memorandum at 8-12.) Although Plaintiff makes

general allegations of statements he characterizes as fraudulent misrepresentation, mail and wire fraud, and money laundering against other Defendants, he does not

plead even one alleged fraudulent statement as being attributable to any of the

Cerberus Defendants. Though Plaintiff lists nearly two full pages of alleged

fraudulent activity (the detail of which is completely absent from the Complaint), he

fails to address how the Cerberus Defendants committed or participated in even one

of the alleged frauds. (See Response at 13-14.) It can hardly be argued that

without alleging a defendant has committed a predicate act of racketeering, there

can be any basis for RICO liability. See Pringle v. Garcia, 2014 WL 1651976, at *4

(N.D. Ind. Apr. 23, 2014) (dismissing RICO claim where plaintiff failed to plead that

defendant personally committed requisite predicate acts).

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In his Response, Plaintiff is unable to refute the Cerberus Defendants’ argument that none of them was even alleged to have personally committed a single

act of racketeering activity, and can do little more than attempt to implicate them

by alleging in general terms that they “pulled the strings” of the allegedly

fraudulent activities, making them accountable under theories of agency,

respondeat superior, or corporate veil piercing. (Response at 18.) Yet Plaintiff has

also failed to plead any facts that would establish any of those kinds of relationships

among the Defendants, and his Response is void of any legal support for his new

assertion.3 Plaintiff merely claims that “[a]ll the Defendants are corporate entities

or executives and/or operated and managed the affairs of the enterprise or acted at

the direction of upper wrung Defendants intentionally committing the predicate

acts stated above.” (Response at 5.) Plaintiff further asserts that some Defendants

“‘visibly performed’ the fraudulent activity” and that other Defendants (presumably

the Cerberus Defendants) “pulled the strings.”

4 (Response at 9 &18.)

Although piercing the corporate veil may be appropriate or necessary when

an individual attempts to hide his personal activities behind the façade of a

corporation or when one entity tries to conceal its conduct behind the mask of a

3 On this point, Plaintiff’s reliance on Liquid Air Corp. v. Rogers, 837 F.2d 1297 (7th Cir. 1987) is

truly baffling. Plaintiff cites that case to stand for the proposition that “Chrysler and Chrysler

Financial, LLC, accepted the benefits of its employees and agents[‘] wrongdoing, ratified and/or

acquiesced the misconduct.” (Response at 19.) However, that case contains no discussion addressing

that concept; indeed, the section Plaintiff directs the Court to contains an analysis on the element

requiring a pattern of racketeering in a RICO claim. 4 Notably, a case that Plaintiff relies on in his brief suggests that allegations that a party “pulled the

strings” is insufficient to satisfy heightened pleading standards required for fraud under the RICO

statute. See Cox v. Sherman Capital LLC, 2014 WL 1328147, at *5 (S.D. Ind. Mar. 31, 2014). For

more discussion on Plaintiff’s failure to meet the heightened pleading standard for his fraud claims,

see supra Section II.A.2.

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shell corporation, the Plaintiff has not asserted a fact pattern where veil piercing is

appropriate or even an available remedy.5 Plaintiff has also failed to establish or

indeed plead facts that evidence either an agency or respondeat superior

relationship between Cerberus Defendants and the other Defendants. But even if Plaintiff were correct in his assessment that his allegations could

somehow include the Cerberus Defendants (and he is not), the fact remains that

Plaintiff has failed to adequately plead any instance of racketeering activity against

any of the Defendants. (Memorandum at 10-12.) To support their argument that

the Complaint is inadequately pled, the Cerberus Defendants explained that the

various bad acts that the Plaintiff complains of are (1) not enumerated racketeering

activity under the federal RICO statute; (2) are subject to the heightened pleading

standard of FRCP 9(b), which the Plaintiff did not meet in his Complaint; or (3) as

related to any claim of money laundering, is legally and factually unsupported. The

Response does not cure—or even properly address—these issues.6

5 In fact, in order for a veil piercing theory to apply to this case, Plaintiff must have pled the

substantive factors of veil piercing. See Cox, 2014 WL 1328147, at *5-6 (dismissing veil piercing

claims where substantive factors not pled). The Complaint lacks these allegations.

6 Even though Cerberus Defendants address Plaintiff’s assertions regarding bank fraud and money

laundering (e.g., Memorandum at 9 n.4, 12), Plaintiff incorrectly contends in his Response that the

Cerberus Defendants “omit any reference to the bank fraud and money laundering committed by the

Defendants which require mail and/or wire fraud to be completed.” (Response at 17). In spite of clear

authority to the contrary discussed by Cerberus Defendants (e.g., Memorandum at 9 n.4 & 5),

Plaintiff persists in asserting that unlawful debt collection, conversion, and others are predicate acts

for purposes of RICO. (Response at 10, 12, & 13-14). In addition, Plaintiff argues in his Response

that Cerberus Defendants have not addressed the Fair Debt Collection Practices Act raised in the

Complaint. (Response at 9.) However, violations of the Fair Debt Collection Practices Act, 15 U.S.C.

§ 1692, et seq., are not listed as “racketeering activity” under 18 U.S.C. § 1961(1), and therefore,

cannot be the basis for a RICO suit under Sections 1962(a), (c) or (d).

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1. Many of Plaintiff’s Alleged Bad Acts Are Not Statutory

“Racketeering Activity.” As the Cerberus Defendants pointed out, a number of the alleged acts giving

rise to Plaintiff’s RICO claim are not proper “racketeering activity” as defined by 18

U.S.C. § 1961(1). (Memorandum at 9 n. 5.) In response, Plaintiff merely offers that

his predicate acts were “clearly stated in the Complaint...and included mail fraud,

wire fraud, bank fraud, extortion, intimidation, unlawful collection of debt,

harassment, fraud, conversion, etc.” and assures that “Indiana Civil RICO

requir[es] less stringent claims.” (Response at 12.)

While it may be the case that Plaintiff offered a laundry list of band acts, both federal and Indiana Civil RICO (even if less stringent) still only include

specific offenses as racketeering activity giving rise to predicate acts. See 18 U.S.C.

§ 1961(1), Ind. Code § 35-45-6-1(3). Plaintiff’s allegations of claims sounding, for

instance, in extortion, intimidation, unlawful collection of a debt, harassment,

general fraud, and conversion are either not included in the defined terms under

either statute, or they are inadequately pled and give no notice for the basis of the

claim.

2. Plaintiff Failed to Plead Mail and Wire Fraud With

Particularity.

The Cerberus Defendants also argued that the Plaintiff failed to meet his

obligations to plead with particularity as required by FRCP 9(b) in connection with

mail and wire fraud. (Memorandum at 10-12.) In the Response, Plaintiff argued

that he met his obligation because he “gave his personal knowledge of the mail and

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wire fraud” even though he could not provide any specifics because “[o]bviously, a

person does not keep information about every person they communicate with.” Obviously, Plaintiff has misunderstood his pleading obligations.

The law places more stringent requirements on a plaintiff when alleging

fraud in a RICO case: “allegations of fraud in a civil RICO claim are subject to the

heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b),

which requires a plaintiff to plead all allegations of fraud with particularity,” which

in turn requires specific allegations as to “the time, place, and content of the alleged

false representations, the method by which the misrepresentations were

communicated, and the identities of the parties to those misrepresentations.”

Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001); Mervyn v.

Atlas Van Lines, Inc., 2013 U.S. Dist. LEXIS 146840, at *9 (N.D. Ill. Oct. 2, 2013)

(citing Slaney, 244 F.3d at 597); see also Pringle v. Garcia, 2014 WL 1651976, at *3

(citing Slaney, 244 F.3d at 597, and Kaye v. D’Amato, 357 Fed. Appx. 706, 710 (7th

Cir. 2009)).7 Plaintiff’s assertion that he “gave his personal knowledge of the mail

and wire fraud to put Defendants on notice of what his claims were so that they

7 None of the three Counts of the Complaint makes reference to a specific date or dates, or specific

conduct of specific Defendants, yet each Count purports to incorporate prior paragraphs of the

Complaint. (Compl. ¶¶ 189, 191 & 194). Pleading by incorporating over 100 paragraphs does not

satisfy Rule 8(a)(2)’s requirement of “a short and plain statement of the claim”, and especially fails to

meet Rule 9(b)’s requirement of particularity when alleging fraud. See e.g., Arnold v. Alphatec Spine,

Inc., 2014 U.S. Dist. LEXIS 87079, at *36 n.15 (S.D. Ohio June 26, 2014) (“incorporation into a single

claim of approximately 100 incoherently pled paragraphs wholly fails to provide ‘a short and plain

statement of the claim”; citing Fed. R. Civ. P. 8(a)(2)); Sterling National Mortgage, Co., Inc. v.

Infinite Title Solutions, LLC, 2011 U.S. Dist. LEXIS 35051, at *14 (S.D. Fla. Mar. 4, 2011) (“even if

[the Court] were able to find the makings of a conspiracy somewhere within the 217 paragraphs

[plaintiff] incorporates by reference in [the RICO conspiracy count], it would be insufficient to satisfy

[plaintiff’s] obligations under Rule 9(b)”).

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could defend themselves” (Response at 18) is akin to the Plaintiff saying that he has

complied with a “notice pleading standard” when a heightened standard of pleading

is required. Also, an assertion that the instances of mail fraud are “too numerous to

count” (Response at 14) is about as far from pleading with particularity as one can

get.8

Alas, the Courts have held that giving all of one's personal knowledge is not

necessarily enough in the context of pleading fraud. “One of the purposes of the

heightened pleading requirements in Rule 9(b) is to prevent ‘fishing expeditions,’ so

to excuse [a Plaintiff’s] failure to include the requisite information in the Complaint

because [he] lack[s] information that would otherwise be unearthed in discovery

would defeat the purpose behind the rule.” Cox, 2014 WL 1328147, at *5 (citing

Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994)).

Plaintiff may be hoping to get a “fishing license” from the Court when he contends

that his Complaint “makes the parties aware that this information is in possession

of the defendants.” (Response at 16.) However, the Court should not take this bait

and permit Plaintiff to circumnavigate the Rules of Civil Procedure.9

8 In addition, Plaintiff’s interpretation of the law on this point is also misguided. For instance, wire

fraud requires an interstate communication. 18 U.S.C. § 1343; Midwest Grinding Co. Inc. v. Spitz., 976 F.2d 1016, 1024 n. 7 (7th Cir. 1992). To the extent Plaintiff attempts to allege instances of wire

fraud (e.g., Response at 14, regarding an alleged call from Bosak Motors to Plaintiff about completion

of work on the car), those allegations fail to state a claim because they do not allege an interstate

communication. For example, Plaintiff asserts, in part, that wire fraud occurred at the “Bosak

Motors Auto Dealership”, which he asserts is located in Merrillville, Indiana (Compl. ¶¶ 15, 16, 17,

18 & 19), by means of “telephone, fax, electronic, email, . . . and electronic communications.” (Compl.

¶ 176).

9 Plaintiff has failed to meet his pleading obligations in one other way. In at least two places in his

Complaint, after reciting various assertions of predicate acts or violations of law by Defendants

generally, Plaintiff ends the list with “etc.” or “various theories of common law and negligence.” (See

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3. Plaintiff Has Not Alleged Money Laundering Claim.

To the extent Plaintiff would include money laundering as a predicate act of

racketeering activity giving rise to RICO liability on behalf of the Cerberus

Defendants (against whom Plaintiff does not even assert a count of money

laundering), Plaintiff’s Response fails to cure the deficiencies raised by the Cerberus

Defendants. (Memorandum at 12.)

The Response would have this Court believe that Cerberus can be liable for a

money laundering act of another Defendant merely by knowing about it. (Response

at 20-21.) But true to his blitzkrieg approach, Plaintiff struggles to identify

appropriate “specified unlawful activity” and raises, for the very first time, an

argument bafflingly rooted in the Travel Act. (Id.) Either way, the fact remains

that Plaintiff has not pled facts giving rise to a money laundering claim. Money

laundering requires either a “financial transaction” (18 U.S.C. § 1956(a)(1)), a

“monetary instrument” (18 U.S.C. § 1956(a)(2)) or a “monetary transaction” (18

U.S.C. § 1957(a), which in turn requires a “financial institution”). All of those terms

have specific definitions (18 U.S.C. §§ 1956(c)(4), 1956(c)(5), 1957(f)(1)), and none of

those definitions encompass the “laundering [of a] car at auction for a not fair

value” (Response at 22) or “launder[ing] the stolen property [Plaintiff’s vehicle] at

an auction.” (Response at 8) (emphasis in original).

Compl. ¶ 183, id. at 35 ¶ a; see also Response at 20.) Ending a list with “etc.” or referring to “various

theories” of law satisfies neither Rule 8 nor Rule 9 pleading requirements.

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B. Plaintiff Has Not Adequately Alleged a RICO “Enterprise.” The Cerberus Defendants also argued that the Plaintiff failed to demonstrate

the presence of a RICO enterprise in his Complaint. (Memorandum at 13-16.) In

the Response, Plaintiff argues that his Complaint adequately alleges a RICO

enterprise because he demonstrates a “family resemblance to the paradigmatic

RICO case.” (Response at 2-5.) Bare, blanket assertions aside, Plaintiff has made

no such proper allegation.

A RICO enterprise “includes any individual, partnership, corporation,

association, or other legal entity, and any union or group of individuals associated

in fact although not a legal entity.” 18 U.S.C. § 1961(4). An enterprise is something

more than just a conspiracy, even if it involves multiple, sometimes unrelated

parties. See Fitzgerald v. Chrysler Corp., 116 F.3d 225, 228 (7th Cir. 1997). When

an enterprise is alleged to consist of an association-in-fact, it must contain three key

structural elements: (1) a purpose; (2) relationships among those associated with

the enterprise; and (3) longevity sufficient to permit these associates to pursue the

enterprise’s purpose. See Boyle v. U.S., 556 U.S. 938, 946 (2009).

The Response provides no greater clarity than was provided in the murky

Complaint to satisfy the required elements of a RICO enterprise. At best, Plaintiff

has copied and pasted language directly from case law in an attempt to fit his

allegations into the legal framework. Unfortunately, this is a case of tell, not show:

the Plaintiff may be able to point the Court to the law, but his bald allegations and

his repeated assurances that his claim is a prototypical RICO enterprise cannot be

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countenanced where he does not adequately plead the basic elements—including a

relationship between all of the Defendants that would demonstrate a RICO

enterprise here.

What’s more, Plaintiff appears to have missed the point of the Cerberus

Defendants’ reliance on Fitzgerald v. Chrysler Corp., 116 F.3d 225 (7th Cir. 1997).

(Response at 3.) Fitzgerald plainly demonstrates that where, like here, a “large,

reputable manufacturer deals with its dealers and other agents in the ordinary

way,” there is not a RICO enterprise. (Id. at 228; see also Memorandum at 14-15.)

Yet here, Plaintiff has reached too far in his attempt to distinguish this case from

Fitzgerald (see Response at 3), when in fact the two cases make strikingly similar

allegations, specifically in the context of warranty fraud against Chrysler and

arguing that its dealers and affiliates were part of a RICO enterprise. The

Fitzgerald Court did not find an enterprise where Chrysler dealt with organizations

down the chain in the “ordinary way.” See Fitzgerald, 116 F.3d at 228. The same

analysis applies here.

Indeed, it is Plaintiff’s reliance on Hosseini that seems misplaced. In that

case, the Court found that there was a clear money laundering enterprise whereby

the owner of a used car dealership assisted drug dealers with illegitimate in-house

financing, doctored sales contracts, ignored IRS reporting obligations, and received

large payments in laundered drug money. See U.S. v. Hosseini, 679 F.3d 544, 549

(7th Cir. 2012). Certainly Plaintiff here has not pled facts that come anywhere close

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to approaching this type of prototypical RICO case such that this Court could infer

any association-in-fact among the Defendants.

C. Plaintiff Has Failed To Allege That All Defendants Conducted the

Affairs of a RICO Enterprise.

The Cerberus Defendants also pointed out Plaintiff’s deficient pleading

because he failed to allege that the Defendants conducted or participated in the

conduct of the affairs of the purported association-in-fact. (Memorandum at 16-18.)

In an attempt to rebut the Cerberus Defendants’ argument, Plaintiff tells the Court

that his Complaint “reveals how the communications and/or actions were

undertaken on behalf of the enterprise as opposed to on behalf [of] the Defendants

in their individual capacities, to advance their individual self-interests.” (Response

at 5 (emphasis in original).) Yet again, the Plaintiff fails to do much more than

repeat blanket statements and concoct fantastical conspiracy arrangements.

Ultimately, without more, these allegations—for instance, suggesting that “[t]he

Bosak Defendants purposely provided excuses for Chrysler, delayed the repair of

Holland’s vehicle past 30 days in an attempt to get a Chrysler part knowing

Chrysler was in financial trouble” (Response at 7)—border on the absurd and

utterly fail to adequately allege concerted actions on behalf of a RICO enterprise.

III. PLAINTIFF HAS FAILED TO PLEAD AN AGREEMENT TO CONSPIRE. The Cerberus Defendants also noted that Plaintiff’s claims under 18 U.S.C.

§ 1962(d) must fail because he made no allegations in his Complaint demonstrating

that the Defendants made an agreement to conspire to commit RICO violations.

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(Memorandum at 21-22.) Plaintiff’s Response chooses to gloss over this piece of

hornbook law.

It is indisputable that in order to entertain a claim under § 1962(d), a

plaintiff must allege “(1) that each defendant agreed to maintain an interest in or

control of an enterprise or to participate in the affairs of an enterprise through a

pattern of racketeering activity and (2) that each defendant further agreed that

someone would commit at least two predicate acts to accomplish those goals.” See

Lachmund v. ADM Investor Servs., Inc., 191 F.3d 777, 784 (7th Cir. 1999).

Although Plaintiff does not dispute that, he instead focuses the Court’s attention on

how many predicate acts are necessary to find conspiracy and whether a member of

an enterprise must act on a predicate act of racketeering activity to be liable for

conspiracy. (Response at 22-23.) But this puts the cart before the horse: nowhere

are the facts of an agreement alleged in the Complaint. For that reason alone,

Count III should be dismissed.

IV. PLAINTIFF HAS FAILED TO DEMONSTRATE THAT HIS ALLEGATIONS

ARE PLAUSIBLE. Of the arguments in the Memorandum that the Plaintiff chose to ignore,

Plaintiff’s inability to provide any support that his claims are plausible is most

glaring. Indeed, the best Plaintiff can do is testify to his own credibility, stating

that his claims are plausible but failing to demonstrate why they are plausible.

(See, e.g., Response at 11, 15.)

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To survive a motion to dismiss under Rule 12(b)(6), a Complaint must

present sufficient facts to state a claim to relief that is plausible on its face. Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009); United Food & Commer. Workers Union &

Emplrs. Mw. Health Benefits Fund v. Walgreen, 719 F.3d 849, 853 (7th Cir. 2013)

(plausibility standard requires “more than a sheer possibility that a defendant has

acted unlawfully” (citations and internal quotation marks omitted)). A plaintiff’s

assertions that the “facts of the complaint accepted as true are plausible”, no matter

how earnestly or how often that assertion is made (see e.g., Response at 15, 16),

does not transform the wholly implausible into the plausible. “A claim is facially plausible when the alleged facts allow the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged” and

making that determination “is a context-specific task” requiring the Court “to draw

on [it’s] [sic] judicial experience and common sense.” Evan v. JP Morgan Chase

Credit Cards, No. 2:10-cv-246, 2011 WL 23946134 at *4 (N.D. Ind. July 21, 2011)

(Lozano, J.) (internal citations and quotation marks omitted) (emphasis added). It

is respectfully submitted that based on this Court’s experience and common sense

there is no reasonable inference that the Cerberus Defendants are liable, and

therefore, Plaintiff’s RICO claims are not plausible and should be dismissed.

* * * * *

For the reasons set forth more fully in their Motion and Memorandum, and

as set forth above, Cerberus Defendants respectfully move the Court to dismiss

Plaintiff’s Verified Complaint, with prejudice and without leave to amend.

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Respectfully submitted,

s/ Mark D. Stuaan

Jason R. Barclay

Mark D. Stuaan

BARNES & THORNBURG LLP

11 South Meridian Street

Indianapolis, Indiana 46204

Telephone: 317/236-1313

Facsimile: 317/231-7433

E-Mail: jason.barclay@btlaw.com

E-Mail: mark.stuaan@btlaw.com

Howard O. Godnick (pro hac vice entered

6/26/14)

Joshua R. Schonauer (pro hac vice entered

6/26/14)

SCHULTE ROTH & ZABEL LLP

919 Third Avenue

New York, NY 10022

Tel. (212) 756-2000

Fax (212) 593-5955

Email: howard.godnick@srz.com

Email: joshua.schonauer@srz.com

Attorneys for Defendants Cerberus Capital

Management, L.P., Stephen Feinberg and

Robert Nardelli

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CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of July, 2014, a copy of the foregoing was

filed electronically and has been served on all counsel of record by the Court’s ECF

filing system.

Additionally, a copy of the foregoing was sent to the following pro se Plaintiff

by depositing the same in the United States mail, first class, postage prepaid:

Robert Holland

1120 Baker Street

Gary, IN 46404

s/ Mark D. Stuaan

Mark D. Stuaan

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