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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. )

DEFENDANTS, BOSAK MOTORS AUTO DEALERSHIP, ET AL.S’

MOTION TO DISMISS

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

Schultheis, Jonathan Jeffries, and Mike Grzbowski, through their attorneys, Tourkow Crell Rosenblatt & 

Johnston, LLP, in support of their Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) state as follows: 

On December 30, 2013, Robert Holland filed a Verified Complaint against Bosak Motors 

Auto Dealership, Mr. & Mrs. Skip Bosak, John Schultheis, Jonathan Jeffries, and Mike Grzbowski

(hereinafter “Bosak”) alleging multiple counts of RICO violations stemming from alleged collusion 

by the defendants collectively and surrounding his purchase of a 2006 Chrysler 300. As set forth 

below, each of Plaintiff‟s three Counts alleging RICO liability on against Bosak Motors fails to allege 

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any facts necessary to form the basis for the relief sought. Plaintiff‟s Complaint fails to state a claim 

for which relief can be granted. Accordingly, the Complaint should be dismissed with prejudice. 

PLAINTIFF’S ALLEGATIONS PERTAINING TO BOSAK MOTORS

In October 2007, Plaintiff purchased a 2006 Chrysler 300 (hereinafter “vehicle”) and an 

extended warranty from Bosak Motors. Compl. ¶61. Plaintiff alleges that he relied upon “express 

representations and warranties” about the Chrysler to his detriment. Compl. ¶¶55-56. Plaintiff alleges 

that Bosak knew, at the time of sale, that the vehicle “had numerous repeated mechanical problems 

under normal driving conditions...” Compl. ¶62. Plaintiff also alleges that Bosak had knowledge that 

the auto industry was beginning to experience “auto and credit „crisis.‟” Compl. ¶63. Plaintiff asserts 

that the above facts constituted “mail, wire fraud, and bank fraud.” Compl. ¶65.

In 2009, Plaintiff alleges that the vehicle needed repairs. Compl. ¶81. Plaintiff alleges that the 

repairs were delayed substantially. Compl. ¶106. Plaintiff alleges that the delay in getting the car 

repaired constituted “mail fraud, wire fraud and bank fraud.” Compl. ¶116. 

STANDARD OF REVIEW

In the interest of judicial efficiency, Defendant, Bosak, adopts, asserts and realleges the 

standard of review as set forth in Defendant Cerberus‟s Memorandum of Law in Support of their 

Motion to Dismiss in this same captioned case filed on June 17, 2014. 

ARGUMENT

Plaintiff‟s claims against, Bosak, fail as a matter of law. Plaintiff alleges Bosak violated 18 

U.S.C. §1962 (c). 18 U.S.C. §1962(c) makes it “unlawful for any person employed by or associated 

with any enterprise engaged in, or the activities of which affect, interstate foreign commerce, to 

conduct or participate, directly or indirectly, in the conduct of such enterprise‟s affairs through a 

pattern of racketeering activity or collection of unlawful debt.” The necessary elements of a RICO 

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claim under §1962(c) include: (1) conduct (2) of an enterprise (3) through a pattern (4) of 

racketeering activity. Crissen v. Gupta, No. 2:12-CV-00355-JMS, 2014 WL 301615, at *6 (S.D. Ind. 

Jan. 28, 2014). Plaintiff‟s Complaint fails to allege facts that support the necessary elements of a 

RICO claim under §1962(c) against Bosak.

Under RICO, an 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 must have a “structure,” meaning to constitute an enterprise there 

must be a fashion by which the parts are arranged or put together to form a whole. See Boyle v. U.S., 

556 U.S. 938, 945 (2009). Plaintiff alleges that an enterprise exists in this case between all of the 

named defendants. However, Plaintiff fails to assert any structure or organization by which this 

alleged enterprise functions. Plaintiff asks this Court to accept preposterous legal conclusions without 

any explanation as to how his claims are supported by any evidence. Plaintiff also fails to demonstrate 

the role that each or any defendant played in the alleged enterprise. 

Nothing in Plaintiff‟s Complaint suggests that the defendants sued by the Plaintiff have any

connection whatsoever to one another, other than entirely incidental contacts associated with each 

defendant‟s individual business functions. Plaintiff‟s wild assertions that an enterprise consisting of 

an association-in-fact exists among the defendants is nothing more than a far reaching effort to turn 

Plaintiff‟s asserted bad fortune into a conspiracy in violation of RICO. Compl. ¶42. Plaintiff‟s 

Complaint has failed to demonstrate the existence of any enterprise. 

Plaintiff‟s Complaint further fails to demonstrate a pattern of racketeering activity. Pattern of 

racketeering activity is defined to require “at least two acts of racketeering activity, one of which 

occurred after the effective date of this chapter and the last of which occurred within ten years after 

the commission of a prior act of racketeering activity.” 18 U.S.C. §1961(5). Plaintiff is required to 

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allege a pattern of racketeering activity for each RICO defendant. See DeFalco v. Bernas, 244 F. 3d 

306 (2d Cir. 2001) (“[T]he requirements of section 1962(c) must be established as to each individual 

defendant.”)

Plaintiff did not plead with specificity any act of racketeering. Instead, Plaintiff generally 

alleged instances where he claims without support that racketeering took place. Compl. ¶65,¶116. He 

fails to specifically enumerate what conduct by which defendant constituted the racketeering activity. 

Compl. ¶65, ¶116. The Plaintiff lumps defendants together and fails to plead with specificity how the 

alleged harms rose to the level necessary to satisfy the requisite act of racketeering. Plaintiff‟s 

Complaint has failed to demonstrate that Bosak engaged in a pattern of racketeering activity. 

Plaintiff appears to be basing his allegations regarding the alleged racketeering activity upon 

claimed acts of mail, wire and bank fraud. Each of the claimed acts constituting racketeering activity 

are claims rooted in fraud. When pleading a claim rooted in fraud, the plaintiff must meet the 

heightened pleading standard of Rule 9(b). Rule 9(b) requires the party alleging fraud to state with 

particularity the circumstances constituting fraud. Plaintiff fails to plead the alleged acts of fraud with 

particularity.

Plaintiff, instead, lumps all of his alleged facts together and claims they amount to “mail 

fraud, wire fraud, and bank fraud.” Compl. 116. Plaintiff fails to separate out specific acts 

demonstrating how each act constitutes mail, wire or bank fraud. Plaintiff further fails to separate 

particular defendants from one another to plead with specificity who committed which alleged act of 

mail, wire or bank fraud. Plaintiff‟s lack of specificity within his Complaint fails to satisfy Rule 9(b) 

and therefore, Plaintiff‟s claims with regard to mail, wire and bank fraud must fail. 

Finally, Plaintiff has sued Bosak in an action pending in the Lake County Superior Court, 

Cause No. 45D09-0904-SC-01180 asserting allegations which stem from the same cause of action as 

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the one Plaintiff alleges in this action. As a result, any remaining state court claims that are not 

disposed of by way of the RICO claims can be more appropriately resolved in the Lake County 

Superior Court action. 

CONCLUSION

It is clear, by examining the Complaint on its face, that Bosak‟s actions with regard to this 

Plaintiff do not rise to the level of constituting RICO violations. Plaintiff‟s wild assertions cannot 

even begin to satisfy his burden of establishing valid claim pursuant to 18 U.S.C. §1962. Because 

Plaintiff‟s claims do constitute RICO violations, this Court should dismiss Counts I, II and III of 

Plaintiff‟s Complaint with prejudice in its entirety as these counts pertain to Bosak. To the extent that 

any state court claims survive this Motion to Dismiss, those counts should be dismissed on the basis 

that the same action is pending in another state court of this state involving both Plaintiff and Bosak. 

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

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CERTIFICATE OF SERVICE

I hereby certify that on this 14th ofJuly, 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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