United States District Court, E.D. Kentucky, Southern Division, London
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on the motion to dismiss (DE 12)
filed by defendants Merrill A. Winchester and Winchester,
Patton, and Burgess, P.S.C.
plaintiff Betty Charles alleges that the defendant Dr.
Merrill Winchester wrote prescriptions in her name even
though she was never a patient of his. She alleges that
Winchester did this while he was directing physician of
defendant McCreary Christian Center (MCC) and a physician
with defendant Winchester, Patton and Burgess, P.S.C. She
further alleges that the prescriptions were filled by a
pharmacy and mailed to MCC, where they were dispensed by the
John Doe defendants to other patients at MCC.
asserts that, with these actions, the defendants violated the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1961, et. seq. She further asserts a
claim under Kentucky's identity theft statute, KRS §
514.160, and a claim under Kentucky's Consumer Protection
Act, KRS § 367.110, et seq.
Dr. Winchester and Winchester, Patton, and Burgess, P.S.C.
moved to dismiss the RICO claim against them under Federal
Rules of Civil Procedure 12(b)(6) and 12(b)(1). They argued
that, with her complaint, the plaintiff Charles failed to
allege any injury to “business or property” as
required under RICO or that any injury was proximately caused
by the alleged RICO violations. They further argued that
Charles has failed to plead sufficient facts to infer a RICO
violation. The defendants argued that, upon dismissal of the
RICO claim, Charles' state law claims should also be
dismissed for lack of jurisdiction because all parties are
response to the motion to dismiss, Charles filed an amended
complaint, which she asserts corrects the deficiencies set
forth in the motion to dismiss. Defendants Dr. Winchester and
Winchester, Patton, and Burgess, P.S.C. (collectively,
“Winchester”) now move to dismiss the amended
its motion to dismiss, Winchester argues that Charles has
failed to plead sufficient facts to establish that she has
standing to bring a RICO claim. “Civil RICO
‘standing' is usually viewed as a 12(b)(6) question
of stating an actionable claim, rather than as a 12(b)(1)
question of subject matter jurisdiction.”
Stooksbury v. Ross, No. 12-5739, 528 F.App'x
547, 555 (6th Cir. 2013) (quoting Anderson v.
Ayling, 396 F.3d 265, 269 (3d Cir.2005)).
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the
“factual allegations in the complaint must be regarded
as true." Scheid v. Fanny Farms Candy Shops,
Inc., 859 F.2d 434, 436 (6th Cir. 1988)
(quoting Windsor v. The Tennessean, 719 F.2d 155,
158 (6th Cir. 1983)). Federal Rule of Civil
Procedure 8(a)(2) requires only a short and plain statement
of the claim showing that the pleader is entitled to
relief, in order to give the defendant fair notice
of what the claim is and the grounds upon which it rests.
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the 'grounds' of his
'entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do." Id. at 555
(internal citations omitted). In order to survive a motion to
dismiss, the factual allegations in the complaint “must
be enough to raise a right to relief above the speculative
level." Id. The plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face" and to nudge his claim
“across the line from conceivable to plausible."
Id. at 570.
alleges that Winchester violated two provisions of RICO:
Sections 1962(c) and (d). In relevant part, section 1962(c)
makes it unlawful for any person employed by or associated
with an enterprise “to conduct or participate, directly
or indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity . . .
.” Section (d) makes it unlawful to conspire to perform
the acts prohibited by section (c). 18 U.S.C. §§
argues that Charles has not established statutory standing to
bring a claim under RICO, which grants standing to
“[a]ny person injured in his business or property by
reason of a violation of” RICO. 18 U.S.C. §
1964(c). In order to establish standing, a plaintiff
asserting a RICO claim must allege both an injury to her
business or property and that the RICO violation was
the proximate cause of her injury. Trollinger v. Tyson
Foods, Inc., 370 F.3d 602, 612 (6th Cir. 2004) (citing
Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258,
267-68 (1992)). This is because the statute grants standing
only to those injured “by reason of” the RICO
violation. Id. at 613. Thus, parties who suffer only
“derivative or passed-on injuries” do not have
standing to assert a RICO claim. Id. at 614.
Further, to satisfy the proximate-cause requirement for RICO
standing, even those directly injured by a RICO violation
must establish that the violation was “a substantial
and foreseeable cause” of her injury and that the
connection between the RICO violation and injury is
“logical and not speculative.” Id. at
615. Of course, in determining whether a RICO plaintiff has
adequately alleged the proximate-cause requirement, the Court
looks only to the allegations of the complaint. Id.
her injury, Charles alleges in her amended complaint only
that she suffered “increased health/medical and/or life
insurance premiums, copays, and/or deductibles.” (DE 8,
Amended Complaint ¶ 24.) In her response to the motion
to dismiss, Charles alleges that she has adequately alleged
that Winchester's actions were the proximate cause of her
injuries because she has alleged that she had a “direct
relationship” with Winchester. (DE 14, Response at
4-5.) This is incorrect. She must make allegations sufficient
to establish that it is plausible that Winchester's
actions in issuing prescriptions in ...