Swizz Answer

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 1 of 30 PageID #: 154
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK
METRO-GEM LEASING & FUNDING CORP.,
2:16-cv-05245 (SJF) (AYS)
Plaintiff,
-againstMACKY DANCY, TYRONE HILL, DANCY
AUTO GROUP LLC, KASSEM DEAN,
KASSEM DEAN a/k/a/ SWISS BEATZ, SWIZZ
BEATZ PRODUCTIONS, INC., AK
WORLDWIDE PRODUCTIONS, INC., JOHN
WILLIAMS III, GREAT NECK AUTO SALES,
LLC and JOHN DOES NOS. 1-10,
Defendants.
DEFENDANTS KASSEEM DEANS AND SWIZZ BEATZ
PRODUCTIONS INC.S MEMORANDUM OF LAW IN SUPPORT
OF THEIR MOTION TO DISMISS THE COMPLAINT AGAINST THEM
SCHNADER HARRISON SEGAL & LEWIS LLP

Mathew B. West
140 Broadway, Suite 3100
New York, New York 10005-1101
(212) 973-8000
Email: mwest@schnader.com
of counsel
Wilbur L. Kipnes
Ben C. Fabens-Lassen
1600 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103-7286
(212) 751-2000
Attorneys for Kasseem Dean
and Swizz Beatz Productions, Inc.
PHDATA 5829309_9
TABLE OF CONTENTS
PRELIMINARY STATEMENT ...................................................................................................... 1
STATEMENT OF FACTS .............................................................................................................. 3
LEGAL ARGUMENT .................................................................................................................. 10
I.
STANDARD OF REVIEW ................................................................................................. 10
II.
METRO-GEM FAILS TO ADEQUATELY PLEAD A SECTION

1962(d) RICO CONSPIRACY CLAIM AGAINST MR. DEAN AND SBP ........................ 11
III.
METRO-GEMS 1962(d) CLAIM AGAINST MR. DEAN

AND SBP FAILS BECAUSE THE SUBSTANTIVE 1962 CLAIM FAILS ..................... 16
A.
Metro-Gem Fails to Allege Two Unlawful RICO Predicate

Acts that Directly and Proximately Caused Its Ostensible Injuries ................................. 16
B.
Metro-Gem Fails to Allege a Two-Year Pattern of Racketeering Activity ...................... 19
IV.
THE 1962(d) CONSPIRACY CLAIM AGAINST

MR. DEAN AND SBP SHOULD BE DISMISSED WITH PREJUDICE ............................ 21
VI.
METRO-GEMS REPLEVIN CAUSE OF ACTION

SHOULD BE DISMISSED AS AGAINST MR. DEAN AND SBP..................................... 23
VII. METRO-GEM CONSTRUCTIVE TRUST CAUSE OF ACTION

SHOULD BE DISMISSED AS AGAINST MR. DEAN AND SBP..................................... 24
CONCLUSION ............................................................................................................................. 25
TABLE OF AUTHORITIES
Cases
Page(s)
135 Flat LLC v. Triadou SPY S.A.,

2016 U.S. Dist. LEXIS 140186 (S.D.N.Y. Jun. 21, 2016) ................................................... 23
4 K & D Corp. v. Concierge Auctions, LLC,
2 F. Supp. 3d 525 (S.D.N.Y 2014) ........................................................................................ 3
Abu Dhabi Commer. Bank v. Morgan Stanley & Co.,
651 F. Supp. 2d 155 (S.D.N.Y. 2009) ................................................................................. 22
Appalachian Enters. v. ePayment Sols. Ltd.,
2004 U.S. Dist. LEXIS 24657 (S.D.N.Y. Dec. 7, 2004) ...................................................... 15
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................ 10, 13, 14
Boccardi Capital Sys. v. D.E. Shaw Laminar Portfolios, L.L.C.,
2009 U.S. Dist. LEXIS 15486 (S.D.N.Y. Feb. 9, 2009) ....................................................... 24
Casio Comput. Co. v. Sayo,
1999 U.S. Dist. LEXIS 14675 (S.D.N.Y. Sep. 20, 1999) ..................................................... 13
Congregacion de la Mision Provincia de Venez. v. Curi,
978 F. Supp. 435 (E.D.N.Y. 1997) ...................................................................................... 14
Counihan v. Allstate Insurance,
194 F.3d 357 (2d Cir. 1999) ................................................................................................ 24
DeSilva v. N. Shore-Long Island Jewish Health System,
770 F. Supp. 2d 497 (E.D.N.Y. 2011) ............................................................................ 22, 23
Dore v. Wormley,
690 F. Supp. 2d 176 (S.D.N.Y. 2010) ................................................................................. 23
FD Prop. Holding, Inc. v. U.S. Traffic Corp.,
206 F. Supp.2d 362 (E.D.N.Y. 2002) .................................................................................. 20
First Capital Asset Management, Inc. v. Satinwood, Inc.,
385 F.3d 159 (2d Cir. 2004) ................................................................................................ 19
Foster v. 2001 Real Estate,
2015 U.S. Dist. LEXIS 159489 (S.D.N.Y. Nov. 24, 2015) .................................................. 13
GICC Capital Corp. v. Tech. Fin. Grp. Inc,
67 F.3d 463 (2d Cir. 1995).................................................................................................. 19
ii
Goldfine v. Sichenzia,
118 F. Supp. 2d 392 (S.D.N.Y. 2000) ...................................................................... 11, 13, 15
H. J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229 (1989) ........................................................................................................... 19
Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21 (2d Cir. 1990)....................................................................................... 11, 13, 14
Holmes v. Sec. Invr Prot. Corp.,
503 U.S. 258 (1992) ........................................................................................................... 18
Kinojuz I.P. v. IRP Intl Inc.,
2016 U.S. Dist. LEXIS 141176 (E.D.N.Y. Oct. 12, 2016) ................................................... 20
Knoll v. Schectman,
275 F. Appx 50 (2d Cir. 2008) ...................................................................................... 16, 17
In re Koreag, Controle et Revision S.A.,
961 F.2d 341 (2d Cir. 1992) ................................................................................................ 24
Martin Hilti Family Tr. v. Knoedler Gallery, LLC,
137 F. Supp. 3d 430 (S.D.N.Y. Sept. 30, 2015) ................................................................... 19
McGee v. State Farm Mut. Auto. Ins. Co.,
2009 U.S. Dist. LEXIS 60229 (E.D.N.Y. July 10, 2009) ..................................................... 21
Merrill Lynch, Pierce, Fenner & Smith v. Young,
1994 U.S. Dist. LEXIS 2929 (S.D.N.Y. Mar. 15, 1994) ...................................................... 14
Mills v. Polar Molecular Corp.,
12 F.3d 1170 (2d Cir. 1993) ........................................................................................... 16, 17
Nasik Breeding & Research Farm Ltd. v. Merck & Co.,
165 F. Supp. 2d 514 (S.D.N.Y. 2001) ............................................................................ 11, 13
Natl Mkt. Share, Inc. v. Sterling Natl Bank,
392 F.3d 520 (2d Cir. 2004) ........................................................................................... 22, 23
NCA Holding Corp. v. Ernestus,
1998 U.S. Dist. LEXIS 6439 (S.D.N.Y. May 7, 1998) ........................................................ 14
Newby v. Bank of Am. Corp.,
2013 U.S. Dist. LEXIS 33276 (E.D.N.Y. Mar. 8, 2013) ................................................. 16, 21
Niagara Restitution Servs. v. Degen,
2016 U.S. Dist. LEXIS 67381 (W.D.N.Y. May 23, 2016) ................................................... 23
Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings Ltd.,
85 F. Supp. 2d 282 (S.D.N.Y. 2000) ................................................................................... 11
iii
Owens v. Gaffken & Barriger Fund, LLC.,

2009 U.S. Dist. LEXIS 90895 (S.D.N.Y. Sept. 21, 2009) .................................................... 22
Schmidt v. Fleet Bank,
16 F. Supp. 2d 340 (S.D.N.Y. 1998) ........................................................................ 10, 11, 21
Sedima, S.P.R.L. v. Imrex Co., Inc.,
473 U.S. 479 (1985) ........................................................................................................... 19
Southerland v. N.Y. City Hous. Auth.,
2010 U.S. Dist. LEXIS 124716 (E.D.N.Y. Nov. 23, 2010) .................................................. 15
Spool v. World Child Intl Adoption Agency,
520 F.3d 178 (2d Cir. 2008) ........................................................................................... 19, 20
United States Fire Ins. Co. v. United Limousine Serv.,
303 F. Supp. 2d 432 (S.D.N.Y. 2004) ................................................................................. 20
W&D Imps., Inc. v. Lia,
2013 U.S. Dist. LEXIS 58651 (E.D.N.Y. Apr. 22, 2013) .................................................... 20
Statutes
18 U.S.C. 1341. ..................................................................................................................... 17
18 U.S.C. 1343 ...................................................................................................................... 16
18 U.S.C. 1961(5)............................................................................................................. 16, 17
18 U.S.C. 1962(c) ............................................................................................................. 16, 17
18 U.S.C. 1962(d)............................................................................................................. 16, 19
18 U.S.C. 2312 ................................................................................................................. 16, 17
18 U.S.C. 2313 ................................................................................................................. 16, 17
18 U.S.C. 2321 ................................................................................................................. 16, 17
28 U.S.C. 1367 ...................................................................................................................... 22
Other Authorities
Fed. R. Civ. P. 8 ................................................................................................................. 16, 17
Fed. R. Civ. P. 9(b).............................................................................................................. 16, 17
Fed. R. Civ. P. 11 ................................................................................................................ 16, 17
Fed. R. Civ. P. 12(b)(6) .............................................................................................................. 1
iv
Defendants Kasseem Dean and Swizz Beatz Productions, Inc. (SBP), through their
counsel Schnader Harrison Segal & Lewis LLP, pursuant to Federal Rule of Civil Procedure
12(b)(6), move to dismiss the plaintiff Metro-Gem Leasing & Funding, Inc.s (Metro-Gem)
complaint, filed September 21, 2016 (Complaint or Comp.), against them. 1
PRELIMINARY STATEMENT
Metro-Gem purports to assert a civil RICO conspiracy claim against Mr. Dean and
SBP. But Metro-Gems real dispute is with the Dancy Defendants, not Mr. Dean.2
Metro-Gem financed the Dancy Defendants luxury automobile leasing business
with a $4,000,000 loan. The Dancy Defendants defaulted on that loan and allegedly committed
fraud against Metro-Gem. In a separate action, Metro-Gem recently obtained a $3.8 million,
uncollected and presumably uncollectable, judgment against the Dancy Defendants resulting from
their failed business relationship. Neither Mr. Dean nor SBP had anything to do with Metro-Gems
dispute with the Dancy Defendants.
Now Metro-Gem seeks to leverage a civil RICO claim against Mr. Dean, a wellknown public figure, and SBP, to collect on the losses it claims to have sustained from its dealings
with the Dancy Defendants. Metro-Gems claims against Mr. Dean and SBP, however, rely upon
false allegations that Mr. Dean leased luxury automobiles from Metro-Gem.
As Metro-Gem admits in documents referenced in the Complaint, Mr. Dean never
leased an automobile from Metro-Gem. In fact, Mr. Dean obtained cars from Dancy, a licensed car
Mr. Deans name is misspelled in the Complaints caption. Swizz Beatz is neither a real person nor a corporate
entity. Although Metro-Gem impermissibly lumps Mr. Dean and SBP together under the term Dean, as the
Complaint makes clear, it was Mr. Dean that used the cars referenced in the Complaint. The Complaint is attached as
Exhibit A to the Declaration of Mathew B. West, dated November 14, 2016 (West Decl.).
2
The Dancy Defendants are defendants Macky Dancy (Dancy), Tyrone Hill (Hill) and the Dancy Auto Group
(DAG).
dealer. And if Mr. Dean returned any of those cars, he returned them to Dancy. Mr. Dean dealt
with Dancy exclusively. Metro-Gem dealt with Dancy exclusively.
Metro-Gem has notand cannotallege that it had any relationship with Mr. Dean
or SBP before the Dancy Defendants breached the loan agreement and allegedly defrauded MetroGem. Metro-Gems allegations against Mr. Dean and SBP are wholly conclusory, assert material
facts on information and belief, are written almost entirely in the passive voice to obfuscate the
alleged facts, and are often contradicted by other allegations. For example, Metro-Gems
allegations about leases with Mr. Dean do not allege whether Mr. Dean ever received lease
agreements, much less signed them. Indeed, Metro-Gem does not even allege that it received or
signed the alleged lease agreements it seeks to enforce against Mr. Dean and SBP. Although
Metro-Gem would like the Court to infer that lease agreements with Mr. Dean or SBP exist, they
simply do not.
The RICO conspiracy claim against Mr. Dean and SBP is baseless. The Complaint
makes no attempt whatsoever to plead, as it must, that Mr. Dean or SBP agreed to join a conspiracy
or knowingly intended to facilitate a conspiracy. The Complaints bare and conclusory allegations
regarding a conspiracy, mere threadbare recitals of the elements, simply do not suffice to state a
claim.
Metro-Gems frivolous RICO conspiracy claim against Mr. Dean and SBPthe
litigation equivalent of a thermonuclear deviceare precisely the sort of claims that the courts in
the Second Circuit strive to flush-out early in litigation. Metro-Gems headline-grabbing falsehoods
seek to take advantage of the almost inevitable stigmatizing effect such claims would have on Mr.
Dean and his professional reputation. The New York Post and the New York Daily News, among
others, published sensational articles repeating Metro-Gems meritless claims. 3
Metro-Gems claim that Mr. Dean and SBP breached contracts to lease three luxury
vehicles also necessarily fails, as Metro-Gem admits Mr. Dean and SBP had no contract of any kind
with Metro-Gem. Similarly, Metro-Gems claims against Mr. Dean and SBP for replevin and
constructive trust must fail, as neither are in possession of Metro-Gems property. For the foregoing
reasons, the Complaint should be dismissed in its entirety with prejudice as against Mr. Dean and
SBP.
STATEMENT OF FACTS
A.
Metro-Gem Finances Dancys Leasing Business

Metro-Gem and the Dancy Defendants had a long, successful relationship that ended
when the Dancy Defendants defaulted on their loan payments to Metro-Gem. (Comp. 43-44.)
As set forth below, Metro-Gems losses are attributable to the conduct of the Dancy Defendants and
its own failure to supervise that relationship. Mr. Dean and SBP played no role at all in the dispute
between Metro-Gem and the Dancy Defendants.
Metro-Gem is in the business of funding third-party car dealers purchases of
automobiles. (Comp. 6.) Metro-Gem provides vehicles for lease to various agents, particularly
Dancy Auto Group. (Findings of New York Department of Motor Vehicles Safety Hearing
Bureau, date June 24, 2016 (the DMV Findings) at 2, West Decl., Ex. B; Comp. 29.)4
3
Metro-Gems demonstrates its malicious intent by gratuitously mentioning Mr. Deans wife, another public-figure, in
the Complaint. (Comp. 19, 61.)
The DMV Findings are cited extensively in the Complaint. (Comp. 89-95; see id. 89 (citing the DMVs
comprehensive investigation into Dancys fraud on Metro Gem).) In considering a motion to dismiss, the Court may
consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that
are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice
may be taken. 4 K & D Corp. v. Concierge Auctions, LLC, 2 F. Supp. 3d 525, 533 (S.D.N.Y 2014).
Metro-Gems relationship with the Dancy Defendants began in 2011 when MetroGem provided financing to DAG. (DMV Findings at 2 (Metro-Gems relationship with Dancy
began approximately five years ago).) As of January 2014, Metro-Gem had loaned DAG
approximately $4,000,000. (Comp. 43.) In August 2015, DAG defaulted on the parties loan
agreement. (Comp. 44.) At or around that time, Metro-Gem discovered the nature and extent of
the Dancy Defendants alleged fraud. (Comp. 42.)
On October 22, 2015, Metro-Gem commenced a loan action against the Dancy
Defendants in New York Supreme Court, Nassau Country, which resulted in the entry of judgment
on May 31, 2016 against the Dancy Defendants, jointly and severally, in the amount of
$3,887,834.85. (Comp. 47 n.5; Judgment, entered May 31, 2016, at 1-2, West Decl., Ex. C.) The
Complaint gives short-shrift, a mere footnote, to Metro-Gems enormous judgment. (Comp. 47
n.5.) As DAG is now defunct, Metro-Gems only judgment-debtors are Dancy and Hill, individuals
who are likely judgment proof. (Comp. 119.) In that light, Metro-Gems motivation for dragging
Mr. Dean and SBP into this litigation is patently obvious.
B.
Metro-Gem and the Dancy Defendants Business Practices

In March 2012, Metro-Gem agreed to fund motor vehicle leases pursuant to deal by
deal requests by Dancy. (Comp. 25.) Dancy was Metro-Gems agent in these transactions.
(DMV Findings at 2; Comp. 29.) Dancy would advise Metro-Gem that a potential client, such as
Mr. Dean, was interested in leasing a specific motor vehicle. (Comp. 26.) Dancy, not MetroGem, would draft the new alleged leases. (Comp. 27, 32.) If the terms were acceptable, MetroGem would fund the [alleged] lease by depositing monies with Dancy in order to cover Dancys
purchase of such motor vehicle. (Comp. 28.) Dancy received a commission from Metro-Gem
for each new alleged lease. (Comp. 30.)
The documentation of these alleged lease transactions between Metro-Gem and

Dancy, and between Dancy and his clients, was haphazard at best. Due to their longstanding
business relationship, [d]eals involving large sums of money were sealed on little more than a
handshake. (DMV Findings at 2.) Metro-Gem and Dancy would forego conventional
formalities associated with normal lease transactions. (DMV Findings at 2.) Dancy would
typically dispatch only the main page of the said [alleged] lease to Metro-Gem. (Comp. 32.)
Dancy would then ordinarily mail to an unidentified entity at an unidentified location the
complete document containing the signatory pages. (Comp. 32.)
The allegations about the leases are almost entirely in the passive voice, for good
reason. Metro-Gem does not affirmatively assert that Dancy sent Metro-Gem proposed leases with
Mr. Dean or even that Dancy sent proposed leases to Mr. Dean, let alone that Mr. Dean signed any
lease agreement. Even though Metro-Gem claims to be the lessor, the best it can allege is that an
ensuing lease was issued to SBP. (Comp. 63, 66, 69, 72, 75, 82, 85, 96, 100.)5 Mistakes
were made violates normal pleading requirements, let alone RICO-pleading requirements. There
are no further details pled in the Complaint along the lines of who, what, where, when and how of
the alleged leases. The Complaint does not allege who prepared the leases, who sent them to
whom, and whether anyone, including Metro-Gem, ever signed them.
The explanation for the Complaints lack of specificity is simple. Metro-Gem has
admitted that there are no leases. In July 2016, Metro-Gem issued multiple notices of default
related to three vehicles being used by Mr. Dean (the Default Notices). (Comp. 202; West
Decl., Ex. D.) In the Default Notices, Metro-Gem admits, among other things, that [y]ou have not
5
Although the Complaint alleges that the ensuing lease was issued to SBP, that is simply further dissembling.
Metro-Gems Notices of Default and repossession notices, infra at 5, were addressed to Mr. Dean personally and makes
clear that to the extent Metro-Gem thought it had a lessee, which it did not, it was with Mr. Dean. (West Decl., Exs. D,
E.)
signed a formal lease as we previously discussed. (West Decl., Ex. D (emphasis added).) In other
words, after the alleged defaults, but before commencing this litigation, Metro-Gem admitted to Mr.
Dean and his representatives that no leases existed.
After admitting that no valid leases exist, the Default Notices state that Mr. Dean is
currently holding and using our car with no authorization. (West Decl., Ex. D.) Nevertheless, the
Default Notices make clear that Metro-Gem would allow Mr. Dean to [c]ontinue to make
payments and use Metro-Gems cars with no authorization. (West Decl., Exs. D.)
Payments under the contemplated leases would ordinarily be paid monthly by
Dancy, who would then make payments to Metro-Gem, the purported lessor. (Comp. 33
(emphasis added).) Metro-Gem speculates that Dancy, its business partner and agent,
[p]resumably collected the alleged lease payments from the lessees. (Comp. 33.) There is no
allegation in the Complaint that Mr. Dean ever made a purported lease payment to Metro-Gem.
Indeed, ordinarily Mr. Dean was to make lease payments to Dancy. (Comp. 33.) It is clear that
Mr. Dean had a business relationship with Dancy, not Metro-Gem. 6
The DMVs finding that Metro-Gem normally eschewed conventional formalities
of the leasing business (DMV Finding at 2), is consistent with the Complaint. Metro-Gems
awkward attempts to paint itself as the victim of some grand conspiracy utterly fail, because it is
perfectly obvious from the allegations in the Complaint that any damages it suffered were the result
of inadequate attention to its business and its reliance on Dancy, which apparently turns out to have
been misplaced. In any event, Mr. Dean and SBP are simply bystanders to these events.
Although not pled in the Complaint, to be clear, the payment flow eventually changed after Metro-Gem discovered
the Dancy Defendants alleged fraudulent activities in August 2015. From October 2015 through June 26, 2016, Mr.
Deans accountant made monthly payments to Metro-Gem.
Metro-Gems own allegations make this clear. According to Metro-Gem, its

business methodology, which was somehow designed by Dancy, but which Metro-Gem
embraced as long as the money rolled in, enabled Dancy to subvert certain deals. (Comp. 34.)
Metro-Gem further alleges that it had to wait several months to receive important documents, was
required to rely on the soundness of the documents and had no cause to suspect any
shortcomings. (Comp. 35-37.)
But Metro-Gems business methodology, which it implausibly blames on Dancy,
is precisely the willful blindness Metro-Gem practiced for years, without issue, expressing no
concerns until the Dancy Defendants defaulted on the $4,000,000 loan in August 2015. (Comp.
33-37, 43-47.) Metro-Gem was not required to rely on Dancy, it preferred to rely on Dancy.
(Comp. 36.) Nothing prevented Metro-Gem from doing what any other non-negligent financier of
luxury vehicles would and should have done: take affirmative steps to oversee its leasing agent;
confirm the existence of valid lease documents; keep detailed records regarding each lease and
payment; participate in the process of delivering and returning the vehicles; clarify to the putative
lessees its status as the vehicle owner and Dancys status as a leasing agent; reduce any agreements
to writing; and promptly investigate any concerns about its leasing agent or putative lessees.
C.
The Cars Metro-Gem Allegedly Leased to Mr. Dean

The Complaint refers to nine cars purportedly leased by Metro-Gem to Mr. Dean.
The monthly payments for four of those cars were notably paid and were returned to Dancy
without complaint by Metro-Gem. (Comp. 62-67, 71-73, 81-83.)
With regard to three cars allegedly leased by Metro-Gem to Mr. Dean, the monthly
payments were also notably paid, but all three went into default in June 2016. (Comp. 70,
97, 101.) Metro-Gem issued default notices and repossession notices regarding all three cars on
July 13 and July 25, 2016, respectively. (Comp. 202; West Decl., Exs. D, E.) These three cars
were recently returned by Mr. Dean to Metro-Gems possession on November 9, 2016.7
With regard to the final two cars allegedly leased by Metro-Gem to Mr. Deana
2014 Ferrari and 2014 Mercedes-Benzthe monthly lease payments were also notably paid until
July 2015 and March 2016, respectively. (Comp. 76, 86.) Mr. Dean returned the cars to Dancy,
who, according to Metro-Gem, wrongfully sold the Ferrari to Manhattan Motor Cars. (DMV
Findings at 2.) Metro-Gem repossessed the Mercedes-Benz from Dancys home on or about
August 20, 2016. (Comp. 79.)
In sum, of the nine cars allegedly leased by Metro-Gem to Mr. Dean, Metro-Gem has
no issue with four cars, three cars merely concern missed payments and have been returned to
Metro-Gem, and one, the Mercedes-Benz, was returned by Mr. Dean to Dancy and was repossessed
by Metro-Gem. Metro-Gem has simply not come close to pleading a RICO conspiracy claim
against Mr. Dean and SBP.
D.
The Mercedes-Benz and the Ferrari

1.
The Mercedes-Benz
The alleged conspiracy concerning the Mercedes-Benz centers on the allegation that,
upon information and belief, Dancy conspired with Dean so as to have Dean deliver the subject
vehicle to Dancywithout approval or release by Metro-Gem. (Comp. 77.) Metro-Gem cannot
allege that Mr. Dean did anything inappropriate in returning the car to Dancy or that Metro-Gems
approval was necessary for anything. That Dancy may have breached some obligation to MetroGem does not make Mr. Dean or SBP co-conspirators. Although Metro-Gem uses the passive voice
Mr. Dean and SBP understand that this recent fact could not have been pled in the Complaint, but it is also a fact
Metro-Gem cannot deny and that renders moot Metro-Gems causes of action for replevin and constructive trust.
to avoid pleading the obvious, Mr. Dean returned the car to Dancy. (Comp. 64, 67, 73, 83.)
There is no well-pled factual support for Metro-Gems inference that Mr. Deans returning the car
to Dancy was atypical. Quite the contrary, Metro-Gems allegations, as noted above, paint a picture
of Metro-Gems complete disregard, lack of interest, and non-involvement in car leases, car pickups, alleged lease payments, and car-returns, all of which Metro-Gem gladly allowed Dancy to
perform on its behalf until Metro-Gems negligence caught up with it.
2.
The Ferrari
Metro-Gems allegations about the purported Ferrari conspiracy are both

dissembling and inconsistent. Metro-Gem alleges that Mr. Dean (i) redirected his alleged lease
payments to Dancy (Comp. 50), (ii) misled Metro-Gem into believing there was a bona fide
lease (Comp 56, 156), (iii) conspired with Dancy to sell the Ferrari to a third-party (Comp.
87), and (iv) paid the monthly payments to Metro-Gem until July 2015, six months after the car was
sold, to lull Metro-Gem into a false sense of security. (Comp. 150.)
As the Complaint establishes, Metro-Gems business practice was for Dancy to
collect lease payments from alleged lessees and, in turn, for Dancy to pay them over to Metro-Gem.
(Comp. 33). Mr. Dean, therefore, could not have redirected his lease payments to Dancy when
payments were to be made Dancy in the ordinary course. Similarly, Metro-Gem could not have
been misled about not having a bona fide lease, as its business practice was neither to seek nor
obtain bona-fide leases from Dancy.
Regarding the sale of the Ferrari to a third-party, in fact (i) Mr. Dean gave the car
back to Dancy (Comp. 92), as was Dancy and Metro-Gems practice, (ii) Dancy and Hill
surreptitiously convey[ed] away the Ferrari (Comp. 49), and (iii) the Ferrari was first sold to
Manhattan Motor Cars by Dancy, not Mr. Dean. (DMV Findings at 2.) Finally, according to
Metro-Gem and the DMV Findings, Dancy, not Mr. Dean, made the alleged lease payments for the
Ferrari between January and July 2015. (Comp. 123a (Dancy and Hill deceptively advanced
monthly lease payments from January to July 2015); Comp. 128 (Dancy and Hill thereafter
ensured that the lease was paid in accordance with the contract terms for approximately six
months); DMV Findings at 2 (Dancy made the post-January lease payments to lull [Metro-Gem]
into a false sense of security).)8
There is not a shred of factual allegations that would permit any sort of plausible
inference that Mr. Dean or SBP were knowing conspirators in a scheme to defraud Metro-Gem.
LEGAL ARGUMENT
I.
STANDARD OF REVIEW
To survive a motion to dismiss, the complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). An
alleged cause of action is facially plausible only when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Iqbal, 556 U.S. at 678. As a result, a complaint that pleads facts that are merely
consistent with a defendants liability is legally insufficient. Id. (quoting Twombly, 550 U.S. at
557).
After ignoring all conclusory or factually unenhanced allegations in a complaint, the
court must dismiss any claim that fails to establish the plaintiffs plausible entitlement to relief in
light of the remaining, non-conclusory factual allegations. Iqbal, 556 U.S. at 679; see, e.g., Schmidt
v. Fleet Bank, 16 F. Supp. 2d 340, 346 (S.D.N.Y. 1998) ([C]ourts should strive to flush out
Interestingly, Metro-Gem sent a July 25, 2016 repossession notice to Mr. Dean regarding the Ferrari, despite the fact
that Metro-Gem knew by August 2015 that Dancy sold the Ferrari in January 2015 to Manhattan Motor Cars and that it
was sold subsequently after that. (West Decl., Ex. F.)
10
frivolous RICO allegations at an early stage of the litigation. (internal citations and quotations
omitted)).
II.
METRO-GEM FAILS TO ADEQUATELY PLEAD A SECTION

1962(d) RICO CONSPIRACY CLAIM AGAINST MR. DEAN AND SBP
Metro-Gem purports to bring a RICO conspiracy cause of action against Mr. Dean
and SBP pursuant to 18 U.S.C. 1962(d). (Comp. 147-59.) Because Metro-Gem wholly fails to
meet its pleading burden, the RICO conspiracy cause of action should be dismissed with prejudice.
To adequately state a 1962(d) claim, a plaintiff must allege as to each alleged coconspirator: (1) an agreement to join the conspiracy; (2) the acts of each co-conspirator in
furtherance of the conspiracy; (3) that the co-conspirator knowingly participated in the same.
Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings Ltd., 85 F. Supp. 2d 282, 303
(S.D.N.Y. 2000); Nasik Breeding & Research Farm Ltd. v. Merck & Co., 165 F. Supp. 2d 514, 541
(S.D.N.Y. 2001) (same); see also Goldfine v. Sichenzia, 118 F. Supp. 2d 392, 407 (S.D.N.Y. 2000)
(The fact of agreement itself, however, is insufficient to state a claim; Plaintiffs must also allege
that defendants embraced the objective of the alleged conspiracy. The defendant must be aware of
the existence of the conspiracy, and understand that the RICO enterprise extends beyond his
individual role. (quoting Burke v. Dowling, 944 F. Supp. 1036, 1068 (E.D.N.Y. 1995))).
Because the core of a RICO civil conspiracy is an agreement to commit predicate acts,
a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990). Bare and conclusory
allegations are insufficient to withstand a motion to dismiss and a plaintiff must plead facts
sufficient to show that each defendant knowingly agreed to participate in the conspiracy. Schmidt,
16 F. Supp. 2d at 355 (quoting Colony at Holbrook, Inc. v. Strata G.C., Inc., 928 F. Supp. 1224,
1238 (E.D.N.Y. 1996)).
11
A.
Metro-Gem Fails to Adequately Plead a Conspiracy

Metro-Gems purportedly well-pleaded factual allegations, which are few and far
between, wholly fail to establish a plausible inference that Mr. Dean and/or SBP agreed to join a
conspiracy or knowingly intended to facilitate the conspiracy. Other than conclusory allegations
invoking the word conspiracy, Metro-Gem has alleged no well-pleaded facts to show specifically
that Mr. Dean or SBP had any knowing meeting of the minds concerning the alleged conspiracy.
Metro-Gems 1962(d) claim purports to allege a conspiracy concerning (i) the
Mercedes, (ii) the Ferrari, and (iii) diverting and disrupting Metro-Gem. But Metro-Gems RICO
conspiracy claim contains nothing more than insufficient bald and conclusory allegations.9
(1)
Mr. Dean and SBP conspired with Dancy to assist in a scheme the
intention of which was to divert Metro-Gems rights in accordance with
a certain lease involving a 2014 Mercedes-Benz G Wagon 550. (Comp.
153); see also id. 77, 123b (Dancy conspired with Dean so as to
have Dean deliver the subject vehicle to Dancy);
(2)
Mr. Dean and SBP intentionally conspired with Dancy to assist in a

fraudulent scheme the intention of which was to illegally transfer title to
the 2014 Ferrari F 12. (Comp. 152); see also id. 87 (Dancy and
Dean conspired to secretly sell the 2014 Ferrari F 12 to a third-party
buyer); id. 123a (Dean conspired with the Count One Defendants
and gave the car to them to covertly resell); id. 129 ([T]he Count One
Defendants and Dean conspired to sell the 2014 Ferrari F 12 to a thirdparty); id. 151 (the Count Two Defendants, however, conspired with
the [the Dancy Defendants] in order to dispossess the aforementioned
2014 Ferrari F 12 vehicle);
(3)
Dancy conspired again with Dean in order to divert any inquiries by

Metro Gem and attempt to avoid any responsibility including
repossession efforts it was otherwise legally obligated to. (Comp.
98); see also id. 102 ([E]arly in 2016 Dancy conspired again with
Dean in order to avert Metro-Gems recourse rights and to hide its
vehicles); id. 103 (Dean knew that Metro-Gem was the true
Metro-Gem also adds the late lease payments to its Section 1962(d) claim by alleging that Mr. Dean and/or SBP
have been in default, since June, 2016 with regards to the other three leased vehicles presently outstanding . . . .
(Comp. 155.) There is no mention how these three alleged leases have any connection to the purported conspiracy.
Such kitchen-sink pleading underscores the baselessness of Metro-Gems purported RICO conspiracy.
12
rightful owner of its leased vehicles yet nonetheless conspired with

Dancy to disrupt their interests).10
Finally, Metro-Gem makes the rote allegation that Mr. Dean and/or SBP conducted and participated in
the conduct of the affairs of the enterprise, all while knowing of its intent and illegal operation of
racketeering activity. (Comp. 157.)
In evaluating a complaint, these threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, and naked assertion[s] devoid of further factual
enhancement do not suffice to state a claim. Iqbal, 556 U.S. at 663, 678 (quoting Twombly, 550
U.S. at 557). Numerous cases within the Second Circuit have dismissed 1962(d) RICO claims where,
like here, the required agreement, conspiracy, and knowledge are either not pled, or are not pled with
enough specificity. See, e.g., Hecht, 897 F.2d at 25 ([A]lleg[ations] that defendants were conspiring
with agents, servants, and employees and others to conduct their affairs through a pattern of racketeering
activity; . . . . [and were] conspiring to violate provisions of [section] 1962(a),[](b) and (c) . . . . does
not allege facts implying any agreement involving each of the defendants . . . .); Foster v. 2001 Real
Estate, 2015 U.S. Dist. LEXIS 159489, at *16 (S.D.N.Y. Nov. 24, 2015) (Although the Complaint
contains numerous allegations that the Defendants confederated, conspired, or agreed to commit
the predicate acts, . . . such conclusory statements, without more, are insufficient to sustain a RICO
conspiracy claim.); Goldfine, 118 F. Supp. 2d at 407 (S.D.N.Y. 2000) (Plaintiffs Amended
Complaint and Civil RICO Statement are devoid of any factual allegation whatsoever to indicate that
any of the moving defendants were aware of the alleged scope of the purported enterprise, or that they
specifically agreed to further the alleged scheme through the commission or facilitation of any
racketeering activity.); Nasik Breeding, 165 F. Supp. 2d at 541 (The Section 1962(d) claim must be
dismissed because Nasiks pleadings fail to provide specific allegations supporting an inference that
10
The vague purported conspiracy regarding diverting and disrupting Metro-Gem is not plead in the Section 1962(d)
second cause of action. (Comp. 147-159.)
13
each defendant knowingly agreed to participate in a conspiracy.); Casio Comput. Co. v. Sayo, 1999
U.S. Dist. LEXIS 14675, at *72-74 (S.D.N.Y. Sep. 20, 1999) ([Plaintiff] fails to allege adequate facts
to bolster its conspiracy claim, and does not plead the facts necessary to indicate that defendants, by
their words or actions, had a conscious agreement to commit predicate acts in furtherance of the
common goal of the enterprise.); Congregacion de la Mision Provincia de Venez. v. Curi, 978 F.
Supp. 435, 451 (E.D.N.Y. 1997) ([T]here are no facts to suggest that [defendant] agreed to
participate in the conduct or management of the enterprise. The complaint says that [defendant]
knew that the funds . . . were fraudulently acquired. But mere knowledge of the scheme, even
coupled with personal benefit, is not enough to impose liability for a RICO conspiracy.); see also
NCA Holding Corp. v. Ernestus, 1998 U.S. Dist. LEXIS 6439, at *8 (S.D.N.Y. May 7, 1998);
Merrill Lynch, Pierce, Fenner & Smith v. Young, 1994 U.S. Dist. LEXIS 2929, at *102 (S.D.N.Y.
Mar. 15, 1994).
In view of Hecht and its progeny, Metro-Gems failure to adequately plead an
agreement, conspiracy, and knowledge are fatal to its RICO conspiracy cause of action. Indeed, the
complaint is littered with legal conclusions, unsubstantiated speculation, and naked assertion[s]
devoid of further factual enhancementnone of which give rise to a plausible inference that Mr.
Dean or SBP was involved in, had knowledge of, or acquiesced to a criminal conspiracy. See Iqbal,
556 U.S. at 662, 678 ([F]acts that are merely consistent with a defendants liability do not state
a claim. (quoting Twombly, 550 U.S. at 557)).
B.
Metro-Gems Alleged RICO Conspiracy Is Not Plausible

The Complaint simply does not support a plausible inference of a conspiracy by Mr.
Dean and/or SBP with Dancy. As demonstrated, the alleged RICO conspiracy concerning Mr. Dean
and/or SBP is based on the alleged conversion of the Ferrari and the Mercedes-Benz.
14
With regard to the Ferrari, the pleadings, such as they are, create a considerably more
than plausible inference that it was Metro-Gems gross negligence, and Dancys opportunistic
exploitation of that gross negligence, that resulted in the alleged conversion of the Ferrari. The
Complaint establishes that Mr. Dean returned the Ferrari to Dancy after one month, that Dancy
continued to make the lease payments to Metro-Gem to further lull them into a false sense of
security, and that Dancy and Hill converted the Ferrari by selling it to Manhattan Motor Cars.
Metro-Gem cannot wish away its disastrous, self-inflicted relationship with Dancy by incanting the
word conspiracy a few times.
The same is true with the Mercedes. The Complaint establishes that Mr. Dean
returned the Mercedes to Dancy, as was Metro-Gems preferred practice, and that it was Dancy who
did not account for the vehicle, leading Metro-Gem to repossess the car that was located on Dancys
property. Under these circumstances, Metro-Gems invocations of conspiracy ring hollow.
What does make sense is that Metro-Gem obtained a $3.8 million judgment against
the Dancy Defendantsthe purported RICO enterprise and the chief RICO conspiratorsthat it
presumably cannot collect (Comp. 47 n.5, 119.) Now Metro-Gem has resorted to bringing a
civil RICO claimas noted, the litigation equivalent of a thermonuclear deviceaccusing a
high-profile defendant of participating in a criminal conspiracy to steal luxury automobiles. See,
e.g., Miranda, 948 F.2d 41, 44 (1st Cir. 1991); Goldfine, 118 F. Supp. 2d at 398-99, 405.11
In sum, Metro-Gem has not pleaded a RICO conspiracy claim and any such claim
would not be plausible. 12
11
Any suggestion by Metro-Gem that it is merely acting as good-faith debt collector is belied by its decision to threaten
Mr. Dean with criminal sanctions for his alleged breach of an implied leases agreement mere months after Mr. Dean
first learned of Metro-Gems existence. (West, Decl., Ex. D.)
12
In an attempt to further obfuscate and muddy the alleged facts, Metro-Gem asserts in a footnote that [u]nless
otherwise specified, defendants Kasseem Dean . . . and Swizz Beatz Productions, Inc. will hereinafter be referred to
Continued
15
III.
METRO-GEMS 1962(d) CLAIM AGAINST MR. DEAN

AND SBP FAILS BECAUSE THE SUBSTANTIVE 1962 CLAIM FAILS
Even had Metro-Gem pled a plausible Section 1962(d) conspiracy claim, which it
did not, because Metro-Gems only primary RICO liability claimi.e., its first cause of action
pursuant to Section 1962(c)is legally inadequate, the Section 1962(d) conspiracy claim against
Mr. Dean and SBP must also be dismissed. See, e.g., Knoll v. Schectman, 275 F. Appx 50, 51 (2d
Cir. 2008); Newby v. Bank of Am. Corp., 2013 U.S. Dist. LEXIS 33276, at *27 (E.D.N.Y. Mar. 8,
2013).
A.
Metro-Gem Fails to Allege Two Unlawful RICO

Predicate Acts that Directly and Proximately Caused Its Ostensible Injuries
(i)
The Predicate Acts Underlying

Metro-Gems 1962(c) Claim Are Inadequately Pleaded
Mr. Dean is entitled to dismissal of the RICO conspiracy claim because Metro-Gem
fails to adequately allege at least two acts of racketeering activity, as required to make out its
1962(c) claim. See 18 U.S.C. 1961(5), 1962(c).
Although Metro-Gems meandering Complaint is hardly a model of clarity, it appears
that Metro-Gem alleges Hill and Dancy engaged in two different types of predicate acts: (1) mail
and wire fraud in violation of 18 U.S.C. 1341, 1343, (Comp. 41, 122, 123a, 136); and (2) the
illegal transfer or sale of stolen vehicles in violation of 18 U.S.C. 2312-13, 2321, (Comp. 80,
123b-c.) The factual allegations in the Complaint are inadequate to establish two separate
violations of these statutes.
Continued from previous page
collectively as Dean. (Comp. 17 n.3.) Moreover, in the 1962(d) claim section, Metro-Gem refers to Mr. Dean
and SBP as the Count Two Defendants. (Comp. 147-159.) But a plaintiff fails to satisfy rule 8, where the
complaint lump[s] all the defendants together and fail[s] to distinguish their conduct. Appalachian Enters. v. ePayment
Sols. Ltd., 2004 U.S. Dist. LEXIS 24657, at *21 (S.D.N.Y. Dec. 7, 2004) (citing cases) (internal quotation omitted);
Southerland v. N.Y. City Hous. Auth., 2010 U.S. Dist. LEXIS 124716, at *7 (E.D.N.Y. Nov. 23, 2010) (same). This
provides further grounds for dismissing the RICO conspiracy claim against Mr. Dean and SBP.
16
Metro-Gem clarifies that the alleged predicates acts of mail and wire fraud arise out
of Dancys alleged manipulation of putative leasing documents and payment of monthly lease
payments with the intention provide [sic] a false impression that certain vehicles were duly
leased. (Comp. 41, 122, 123.) But the general and conclusory allegations on which Metro-Gem
relies to establish these fraud-based predicates fail to satisfy Rule 9(b)s requirement that fraud be
pleaded with particularity. Indeed, under Rule 9(b), allegations of predicate mail and wire fraud
acts should state the contents of the communications, who was involved, where and when they took
place, and explain why they were fraudulent. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1176
(2d Cir. 1993); see also Newby, 2013 U.S. Dist. LEXIS 33276, at *27.
Metro-Gem merely alleges that Dancy and Hill manipulated unspecified leasing
documents and undertook a variety of unspecified fraudulent acts, without including any of the
particularities required by Rule 9(b). (E.g., Comp. 39, 41, 49, 122); Fed. R. Civ. P. 9(b); Mills,
12 F.3d at 1176. And the arguably more specific allegations of fraud similarly lack the requisite
particularity. For instance, Metro-Gem alleges that Dancy: (1) falsified floor-plan vehicle
reporting documents, without any specifics as to when this occurred or the ways in which they
were falsified (Comp. 45); (2) issued bogus duplicate title certificates, without explaining
when this occurred or how they were bogus (Comp. 47); and (3) issued a bogus registration,
drafted a sham lease, and altered unspecified pre-existing lease contracts, without any
additional detail. (Comp. 49, 50, 115.) These vague allegations, bereft of factual enhancement,
are the kind of conclusory allegations that Rule 9(b) is meant to dissuade. Knoll, 275 F. Appx at
51.
The remaining predicate acts based on allegedly illegal vehicle transfers are likewise
inadequately pleaded. See 18 U.S.C. 2312-13, 2321. These predicates are specifically alleged only
with regard to a few of the vehicles at issuei.e., the 2014 Mercedes-Benz G Wagon 550 allegedly
17
leased to Mr. Dean (Comp. 80, 123b, 154), and the 2010 Porsche Panamera allegedly leased by
defendant John Williams III (Comp. 116, 123c).13 As to the Mercedes, Metro-Gem merely
alleges that Dancy conspired with Mr. Dean so as to have Dean deliver the subject vehicle to
Dancy without any approval or release by Metro-Gem. (Comp. 77, 123b.) But Metro-Gem
fails to allege anywhere in the Complaint that (1) Mr. Dean or SBP were required to obtain MetroGems approval or release before returning a vehicle to Dancy, or (2) that they were obligated to
return any vehicles directly to Metro-Gem. To the contrary, Metro-Gem admits that Mr. Dean
contacted Dancy when he wanted to lease a vehicle; Dancy operated as its leasing agent; and that
Mr. Dean made all putative lease payments directly to Dancy. (Comp. 26, 33-36.) There are
simply no allegations plausibly suggesting that Mr. Deans decision to return the Mercedes (or Mr.
Williamss decision to return the Porsche) to Metro-Gems leasing agent, or his subsequent
possession of the vehicles, violated the implied lease contractslet alone federal criminal law.14
In sum, Metro-Gem fails to adequately allege two predicate acts of racketeering,
thereby mandating the dismissal of the 1962(d) claim against Mr. Dean and SBP.
(ii)
The Alleged Predicate Acts Did Not Directly and

Proximately Cause Metro-Gems Ostensible Injury
Even if the RICO predicates were adequately pleaded (and they are not), they still do
not support a 1962(c) claim because it is not plausible that they were the direct and proximate cause
of Metro-Gems ostensible injury. The Supreme Court has held that a civil RICO plaintiff must
13
The Complaint lacks any specific allegations that Dancys alleged sale of the 2014 Ferrari constituted illegal vehicle
transfer or trafficking in violation of 18 U.S.C. 2312-13, 2321. To the extent that such a conclusion can be inferred
from the few non-conclusory allegations in the Complaint, however, the sale still only constitutes one RICO predicate,
which is alone inadequate to satisfy the pattern requirement. 18 U.S.C. 1961(5), 1962(c).
14
The conclusory allegations that Mr. Williamss lease and subsequent return of the 2010 Porsche violated federal law
are inadequate for the same reasons. (Comp. 123c.)
18
show that the defendants violation not only was a but for cause of his injury, but was the
proximate cause as well. Holmes v. Sec. Invr Prot. Corp., 503 U.S. 258, 268 (1992).
Metro-Gem cannot make such a showing. As set forth above (see, supra, at 7-8, 1516), the allegations in the Complaint illustrate that Metro-Gem could have avoided any injury it
allegedly suffered by exercising a minimal amount of due diligence with regard to the underlying
leasing documents and lease payment processi.e., as any reasonable party to a multi-million
dollar loan agreement would have done in these circumstances. Holmes, 503 U.S. at 268
(explaining that the proximate cause requirement limit[s] a persons responsibility for the
consequences of that persons own acts.); cf. Martin Hilti Family Tr. v. Knoedler Gallery, LLC,
137 F. Supp. 3d 430, 468 n.18 (S.D.N.Y. 2015).
B.
Metro-Gem Fails to Allege a Two-Year Pattern of Racketeering Activity

Even if Metro-Gem has plausibly pleaded two distinct predicate acts that caused
injury, the RICO conspiracy must nevertheless be dismissed because Metro-Gems 1962(c) claim
fails to adequately allege a continuous, close-ended pattern of racketeering activity. 15 18 U.S.C.
1962(c); see Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n.14 (1985) ([W]hile two
acts are necessary, they may not be sufficient . . . . [because] two isolated acts of racketeering
activity do not constitute a pattern.).
Where, as here, a plaintiff seeks to establish a RICO violation based on a closeended pattern of allegedly unlawful activity, it must plausibly allege a series of related predicates
extending over a substantial period of time. See Spool, 520 F.3d at 184. Because RICO was
15
Continuity is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to
past conduct that by its nature projects into the future with a threat of repetition. H. J. Inc. v. Nw. Bell Tel. Co., 492
U.S. 229, 241 (1989). Metro-Gem explicitly states in its Complaint that the substantive RICO claim is predicated on a
clear pattern of close ended racketeering (Comp. 59), and there are no non-speculative allegations in the Complaint
plausibly suggesting there is a threat of future criminal conduct, as required to establish the existence of an open-ended
pattern of racketeering. See Spool v. World Child Intl Adoption Agency, 520 F.3d 178, 186 (2d Cir. 2008).
19
intended to target long-term criminal conduct, GICC Capital Corp. v. Tech. Fin. Grp. Inc,, 67
F.3d 463, 469 (2d Cir. 1995), an alleged pattern of racketeering acts that spans less than two years
will rarely satisfy the continuity requirement. See, e.g., Spool, 520 F.3d at 184-85 (Although we
have not viewed two years as a bright-line requirement, it will be rare that conduct persisting for a
shorter period of time establishes close-ended continuity. (emphasis added)); First Capital Asset
Management, Inc. v. Satinwood, Inc., 385 F.3d 159, 181 (2d Cir. 2004) (similar).
Metro-Gems only support for its conclusory allegation that the predicate
racketeering acts are continuous in nature (Comp. 140), is another conclusory, speculative, and
unsubstantiated allegation that Dancy and Hill manipulated unspecified leasing documents
between 2013 and 2015. (Comp. 41.) But this conclusory allegation cannot be squared with the
rest of the Complaint, which does not plausibly establish or plead with particularity that Hill or
Dancy committed acts of fraud that spanned that entire time period.
Moreover, an overview of the Complaint reveals that Metro-Gem agreed to fund the
first vehicle supported by allegedly fraudulent leasing documents on June 15, 2013. (Comp. 6870.) Assuming, for the sake of argument, Metro-Gem had alleged that this pattern continued with
regard to all subsequently financed vehicles, it still did not last for two years because the latest date
on which Metro-Gem agreed to fund any vehicle was June 1, 2015. (Comp. 95-99.) As a result,
even if Metro-Gems fraud-based predicates were pleaded with particularity and it had alleged all
the vehicles at issue were propped up by fraudulently manipulated documents, Metro-Gem has still
failed to allege, as it must, a pattern of lease document manipulation spanning a two-year period.
Spool, 520 F.3d at 184-85; see Kinojuz I.P. v. IRP Intl Inc., 2016 U.S. Dist. LEXIS 141176, at *25*26 (E.D.N.Y. Oct. 12, 2016); W&D Imps., Inc. v. Lia, 2013 U.S. Dist. LEXIS 58651, at *25-*26
(E.D.N.Y. Apr. 22, 2013); see also FD Prop. Holding, Inc. v. U.S. Traffic Corp., 206 F. Supp.2d
20
362, 372 (E.D.N.Y. 2002) ([W]here the conduct at issue involves a limited number of perpetrators
and victims and a limited goal, the conduct is [generally] lacking in closed-ended continuity.).
IV.
THE 1962(d) CONSPIRACY CLAIM AGAINST

MR. DEAN AND SBP SHOULD BE DISMISSED WITH PREJUDICE
With regard to the RICO conspiracy claim against Mr. Dean and SBP, this case
serves as an exception to the general rule that leave to amend should be freely granted. Mr. Dean
and SBP respectfully submit that the 1962(d) claim against them should be dismissed with
prejudice and that Metro-Gem bear all costs and fees associated with defending this frivolous claim.
See United States Fire Ins. Co. v. United Limousine Serv., 303 F. Supp. 2d 432, 443 (S.D.N.Y.
2004) ([C]ourts should strive to flush out frivolous RICO allegations at an early stage of the
litigation. In order to ensure that RICOs severe penalties are limited to enterprises consisting of
more than simple conspiracies to perpetrate the acts of racketeering . . . courts must always be on
the lookout for the putative RICO case that is really nothing more than an ordinary fraud case
clothed in the Emperors trendy garb.) (quoting Schmidt, 16 F. Supp. 2d at 346)).
As explained, the mere assertion of a civil RICO claim has serious consequences,
thus warranting increased scrutiny of Metro-Gems RICO conspiracy claim. It is thus common for
New York courts to dismiss civil RICO claims with prejudice, without granting leave to amend, on
futility grounds. See, e.g., Newby, 2013 U.S. Dist. LEXIS 33276, at *28 n.9; McGee v. State Farm
Mut. Auto. Ins. Co., 2009 U.S. Dist. LEXIS 60229, at *21 (E.D.N.Y. July 10, 2009).
Here, the total absence of well-pleaded facts in the Complaint suggesting Mr. Dean
and SBPs involvement in any ostensible conspiracy warrants dismissal with prejudice. If MetroGem or its attorneys had any factual basis for its oft-repeated conclusion that Mr. Dean or SBP
conspired with any named defendant, or knew about the existence of a conspiracy and agreed to
facilitate it, such facts would have been in the verified Complaint. For these reasons, Mr. Dean
21
and SBP respectfully requests that this Court dismiss the 1962(d) claim against him and SBP with
prejudice and costs.16
V.
METRO-GEMS BREACH OF CONTRACT

CAUSE OF ACTION AGAINST MR. DEAN SHOULD BE DISMISSED17
Under New York law, a cause of action to recover damages for breach of contract
must allege (1) the existence of a contract; (2) a breach of that contract; and (3) damages resulting
from the breach. Natl Mkt. Share, Inc. v. Sterling Natl Bank, 392 F.3d 520, 525 (2d Cir. 2004).
To make such a showing, the plaintiff must allege the essential terms of the parties purported
contract in nonconclusory language, including the specific provisions of the contract upon which
liability is predicated. DeSilva v. N. Shore-Long Island Jewish Health Sys., 770 F. Supp. 2d 497,
534 (E.D.N.Y. 2011) (internal quotation omitted); see Owens v. Gaffken & Barriger Fund, LLC.,
2009 U.S. Dist. LEXIS 90895, at *38-*39 (S.D.N.Y. Sept. 21, 2009).
Despite Metro-Gems misleadingand untruesuggestion that Mr. Dean entered
into valid lease contracts with Metro Gem (Comp. 199), no factual allegations in the Complaint
support that conclusion. In fact, Metro-Gem admitted that there were no formal leases with Mr.
Dean. (West Decl., Ex. D.) Metro-Gem merely alleges that [t]he ensuing lease was issued to Mr.
Dean. (Comp. 63, 66, 69, 72, 75, 82, 85, 96, 100.)18 Metro-Gems breach of contract claim thus
16
In the event this Court grants Metro-Gem leave to amend its RICO conspiracy claim, Mr. Dean respectfully requests
that the Court require Metro-Gem to file a civil RICO statement clarifying its claims. Mr. Dean similarly requests that
this Court notify Metro-Gem that filing an amended complaint that fails to cure the myriad defects in the Complaint
may result in harsh Rule 11 sanctions, as the Court did in Newby. 2013 U.S. Dist. LEXIS 33276, at *34.
17
If the Court agrees that Metro-Gems 1962(d) claim against Mr. Dean is inadequately pleaded, Mr. Dean
respectfully requests this Court to exercise its discretion to consider the merits of Metro-Gems state law claims, and to
dismiss Metro-Gems inadequately pleaded breach of contract claim with prejudice. See 28 U.S.C. 1367; (Comp.
199-204.)
18
Metro-Gem is attempting to have it both ways by using the lack of existing lease agreements to support its fraudbased RICO predicates, while simultaneously implying that valid leases exist to support its breach of contract claims.
Indeed, Metro-Gems entire RICO theory is predicated on its allegations that Dancy fraudulently manipulated the
ostensible leasing documents, which necessarily contradicts any plausible inference that that Dancy ever drafted (or Mr.
Dean ever signed or even saw) a valid lease agreement explicitly listing Mr. Dean as the lessee and Metro-Gem as the
Continued
22
must fail. See Owens, 2009 U.S. Dist. LEXIS 90895, at *38-*39 (S.D.N.Y. Sept. 21, 2009); Abu
Dhabi Commer. Bank v. Morgan Stanley & Co., 651 F. Supp. 2d 155, 183-84 (S.D.N.Y. 2009).
Metro-Gem also fails to allege the specific provisions of the ostensible lease
contracts upon which liability is predicated. DeSilva, 770 F. Supp. 2d at 534. For each purported
lease, Metro-Gem merely alleges rotely that the lease was issued for a specific monthly term, at a
specific monthly rate. (Comp. 63, 66, 69, 70, 72, 73, 75, 76, 82, 85, 86, 96, 97, 100, 101.)
Metro-Gem does not attempt to allege, however, as it must: whether the ostensible leases were oral
or written; whether they were express or implied; who the actual parties to the ostensible leases
were; or the dates on which the parties alleged entered into them. See Niagara Restitution Servs. v.
Degen, 2016 U.S. Dist. LEXIS 67381, at *9 (W.D.N.Y. May 23, 2016).
Finally, absent any allegations regarding the date on which Mr. Dean agreed to the
ostensible leases or the dates on which Mr. Dean allegedly took possession of the vehicleswhich
are necessary to establish Mr. Dean had a contractual obligations to pay Metro-Gemthe
Complaint lacks a factual basis to establish breach or to substantiate the alleged damages MetroGem allegedly suffered from the purported breach. See Natl Mkt. Share, Inc., 392 F.3d at 525;
DeSilva, 770 F. Supp. 2d at 534. Put differently, with only the alleged date of default, and no
corresponding date on which payment obligations began, no court could possibly ascertain MetroGems ostensible damages or when, if ever, Mr. Dean became legally obligated to pay Metro-Gem.
VI.
METRO-GEMS REPLEVIN CAUSE OF ACTION

SHOULD BE DISMISSED AS AGAINST MR. DEAN AND SBP
Metro-Gems cause of action for replevin must fail because neither Mr. Dean nor
SBP currently possess Metro-Gems property. A cause of action sounding in replevin must
Continued from previous page
lessor. Again, Metro-Gem wholly fails to acknowledge that it is relying on the existence of an implied lease
agreement.
23
establish that the defendant is in possession of certain property of which the plaintiff claims to have
a superior right. CF 135 Flat LLC v. Triadou SPY S.A., 2016 U.S. Dist. LEXIS 140186, at *46
(S.D.N.Y. Jun. 21, 2016) (quoting Batsidis v. Batsidis, 9 A.D.3d 342, 343 (2nd Dept 2004)); see
also Dore v. Wormley, 690 F. Supp. 2d 176, 183 (S.D.N.Y. 2010). Accordingly, because neither
Mr. Dean nor SBP possess Metro-Gems property, Metro-Gems replevin claim must fail.
VII.
METRO-GEM CONSTRUCTIVE TRUST CAUSE

OF ACTION SHOULD BE DISMISSED AS AGAINST MR. DEAN AND SBP
Metro-Gems purported cause of action alleging a constructive trust must fail
because (i) Metro-Gem fails to allege either Mr. Dean or SBP owed Metro-Gem a fiduciary duty,
and (ii) neither Mr. Dean nor SBP currently possess Metro-Gems property. Under New York law,
a party claiming entitlement to a constructive trust must ordinarily establish four elements: (1) a
confidential or fiduciary relationship; (2) a promise, express or implied; (3) a transfer made in
reliance on that promise; and (4) unjust enrichment. In re Koreag, Controle et Revision S.A., 961
F.2d 341, 352 (2d Cir. 1992); see Counihan v. Allstate Ins., 194 F.3d 357, 361-62 (2d Cir. 1999).
Here, because Metro-Gem fails to allege that Mr. Dean or SBP owed Metro-Gem a
fiduciary duty, its constructive trust cause of action must fail. An arms-length contractual
relationship, such as a lease, does not create a fiduciary relationship unless the contract expressly
provides. See, e.g., Boccardi Capital Sys. v. D.E. Shaw Laminar Portfolios, L.L.C., 2009 U.S. Dist.
LEXIS 15486, at *20-*21 (S.D.N.Y. Feb. 9, 2009). Moreover, neither Mr. Dean nor SBP currently
possess Metro-Gems property. Equity, therefore, cannot make Mr. Dean or SBP the trustee over
property neither possesses.
24
CONCLUSION
For the foregoing reasons, Kasseem Dean and SBP respectfully request that MetroGems second, ninth, tenth, and eleventh causes of action be dismissed with prejudice, that costs
and reasonable attorneys fees incurred in connection with this motion be awarded, and for such
other and further relief as this Court may deem just and proper.
By:
/s/Mathew B. West
Mathew B. West
140 Broadway, Suite 3100

New York, New York 10005-1101
(212) 973-8000
Email: mwest@schnader.com
of counsel
Wilbur L. Kipnes
Ben C. Fabens-Lassen
1600 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103-7286
(212) 751-2000
Attorneys for Kasseem Dean
and Swizz Beatz Productions, Inc.
25
Case 2:16-cv-05245-SJF-AYS Document 30-1 Filed 01/13/17 Page 1 of 37 PageID #: 184
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK
METRO-GEM LEASING & FUNDING CORP.,
2:16-cv-05245 (SJF) (AYS)
Plaintiff,
DECLARATION OF
MATHEW B. WEST
-againstMACKY DANCY, TYRONE HILL, DANCY

AUTO GROUP LLC, KASSEM DEAN,
KASSEM DEAN a/k/a/ SWISS BEATZ, SWIZZ
BEATZ PRODUCTIONS, INC., AK
WORLDWIDE PRODUCTIONS, INC., JOHN
WILLIAMS III, GREAT NECK AUTO SALES,
LLC and JOHN DOES NOS. 1-10,
Defendants.
MATHEW B. WEST, pursuant to 28 U.S.C. 1746, declares under penalty of

perjury that the following is true and correct:
1.
I am a member of the bar of this Court and a partner of Schnader Harrison
Segal & Lewis LLP, attorneys for defendants Kasseem Dean and Swizz Beatz Productions, Inc.
(SBP).
2.
Attached hereto as Exhibit A is a true copy of Metro-Gems complaint,
filed September 21, 2016 .

3.
Attached hereto as Exhibit B is a true copy of the June 24, 2016 Findings
of New York Department of Motor Vehicles Safety Hearing Bureau.

4.
Attached hereto as Exhibit C is a true copy of the $3,887,834.85 judgment
Metro-Gem obtained on May 31, 2016.

5.
Attached hereto as Exhibit D are true copies of the three default notices
Metro-Gem sent to Mr. Dean in July 2016.
PHDATA 5837849_1
6.
Attached hereto as Exhibit E are true copies of three of the Notices of
Possession Metro-Gem sent to Mr. Dean in July 2016.

7.
Attached hereto as Exhibit F is a true copy of the Notice of Possession
Metro-Gem sent to Mr. Dean in July 2016 regarding the 2014 Ferrari.
WHEREFORE, for all the reasons set forth in Mr. Dean and SBPs motion
papers, Mr. Dean and SBP respectfully requests that this Court enter an order dismissing the
Complaint, with prejudice, together with such other and further relief as this Court may deem
just and proper.
Dated: New York, New York
November 14, 2016
/s/ Mathew B. West
MATHEW B. WEST
Exhibit A
Exhibit B
Exhibit C
EXHIBIT D
Exhibit E
PRIME PERFURII~NCE AU'I'UMU'I'[VI? FIN'~NCL LLC
Notice to: Kasseem Dean

STATE OF NEW YORK COUNTY OF NASSAU
KNOW ALL PERSONS BYTHESE PRESENTS:
That MetroGem Leasing &Funding Corp("Owner"), of 5 Windemere Way,Woodbury, NY,
County of Nassau 11797, New York,
Herby serves notice that the vehicle listed below is out of the owner's possession without the
permission of the owner MetroGem. Demand is being made for its immediate return. You have
been in possession of the vehicle or have given it to a third party.
If vehicle is not returned,immediately, we are serving notice that we sha/seek all legal and
criminal remedies and that you shall be held liable all legal costs and all other expenses that
may occur. Withholding this vehicle could be deemed a criminal act
Lessee: Kasseem Dean (Swiu Beatz)
Lease Number:
D1024
Address's:
Lessee Info
1 Penn Plaza
New York, NY 10019
DOB: 9-13-1978
Employeer: Swia Beatz

Productions
Vehicle:
2015 McLaren
650s Convertible
Black
VIN#
SBM11FAASFW005073
Plate: Unknown
MetroGem
Return Vehicle to:
Hyundai of Long Island City
34-54 44~' Street
Long Island City, NY 11101
Dated: July 25, 2016
PROOF OF MAILNG
On the date indicated above I sent by Certified Mail a copy of the above notice to the persons) at the address(ss) stated in the above notice
160 W Key Palm Rd Boca Raton, FL 33432
561-445-9252
igleemanC~3primeperformancefinance.mom
PRIl~1L; PERFORI~I.~~VCE AL fUlVIU'I'I~L FINANCE LLC

permission of the owner MetroGem. Demand is being made for its immediate return.You have
If vehicle is not returned,immediately, we are serving notice that wee shallseek all legal and
crimial remedies and that you shall be held liable all legal costs and all other expenses that
Lessee: Kasseem Dean(Swiu Beatz)
Lease Number:
D1025
Address's:
Lessee Info
1 Penn Plaza
New York, NY 10019
DOB:9-13-1978
Employeer: Swizz Beatz

Productions
Vehicle:
2015 Berrtley Continental

GT Convertible
N#
SCBGH3ZA6FC45958
Plate: NY(GYH-7424)
MetroGem
Return Vehicle to:
34-54 44~'Street
Dated: July 25,2016
PROOF OF MAILNG
On the date indicated above 1 sent 6y Certified Mail a copy of the above notice to the persons)at the address(u)stated in the above notice
160 W Key Palm Rd Boca Raton, FL 33432
561-445-9252
Igleeman@primeperformancefinance.com
PRII~iE PERFOR'~iA'VCE AU"COMOTIti L; FINANCE LLC

If vehicle is not returned,immediately, we are serving notice that we shall seek a! legal and
may occur. Withholding this vehicle could be deemed a criminal act.
Lessee: Kasseem Dean (Swizz Beatz)
Lease Number:
D1008
Address's:
Lessee Info
1 Penn Plaza
New York, NY 10019
Vehicles
2013 land Rover, Range ~ VIN#

Rover Supercharged
SALGSZEFODA118933
DOB: 9-13-1978
Employeer: Swizz Beau

Productions
Plate: Unknown
MetroGem
Return Vehicle to:
34-54 44~' Street
Dated: July 25, 2016
RROOF OF MAILNG
On the date indicated above I sent by Certified Mail a copy of the above notice to the persons) at the address(ss) stated in the above notice
160 W Key Palm Rd Boca Raton, F133432
561-445-9252
jglPPman~prim~performancetinance.corn
Exhibit F
1'RI'~'tL PERF(~R11I~l~C:E AUTUI~TUTI~ E FINgI~CE LLC

KNOW ALL PERSONS BY THESE PRESENTS:
If vehicle is not returned,immediately, we are serving notice that we shallseek alI lega/and
Lessee: Kasseem Dean(Swiu Beatz)
Lease Number:
D1023
Address's:
Lessee Info
1 Penn Plaza
New York, NY 10019
DOB:9-13-1978
Vehicle
2014 Ferrari F12
VIN# ZFF74UFA8E0196966 Plate: Unknown
Employeer: Swiu Beatz

Productions
MetroGem
Return Vehicle to:
34-54 44~'Street
long Island City, NY 11101
Dated: July 25,2016
PROOF OF MAILNG
On the date indicMed above 1 sent by Certified Mail a copy of the above notice to the persons)at the address(ss)stated in the above notice
160 ~N Key Palm Rd Boca Raton, FL 33432
561-445-9252
gt leemanrJprime~erformancefindnce.com

Swizz Answer

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Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 1 of 30 PageID #: 154

UNITED STATES DISTRICT COURT

SCHNADER HARRISON SEGAL & LEWIS LLP

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 2 of 30 PageID #: 155

STANDARD OF REVIEW ................................................................................................. 10

METRO-GEM FAILS TO ADEQUATELY PLEAD A SECTION

METRO-GEMS 1962(d) CLAIM AGAINST MR. DEAN

Metro-Gem Fails to Allege Two Unlawful RICO Predicate

Metro-Gem Fails to Allege a Two-Year Pattern of Racketeering Activity ...................... 19

THE 1962(d) CONSPIRACY CLAIM AGAINST

METRO-GEMS REPLEVIN CAUSE OF ACTION

VII. METRO-GEM CONSTRUCTIVE TRUST CAUSE OF ACTION

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 3 of 30 PageID #: 156

135 Flat LLC v. Triadou SPY S.A.,

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 4 of 30 PageID #: 157

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 5 of 30 PageID #: 158

Owens v. Gaffken & Barriger Fund, LLC.,

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 6 of 30 PageID #: 159

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 7 of 30 PageID #: 160

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 8 of 30 PageID #: 161

Metro-Gem Finances Dancys Leasing Business

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 9 of 30 PageID #: 162

Metro-Gem and the Dancy Defendants Business Practices

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 10 of 30 PageID #: 163

The documentation of these alleged lease transactions between Metro-Gem and

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 11 of 30 PageID #: 164

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 12 of 30 PageID #: 165

Metro-Gems own allegations make this clear. According to Metro-Gem, its

The Cars Metro-Gem Allegedly Leased to Mr. Dean

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 13 of 30 PageID #: 166

The Mercedes-Benz and the Ferrari

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 14 of 30 PageID #: 167

Metro-Gems allegations about the purported Ferrari conspiracy are both

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 15 of 30 PageID #: 168

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 16 of 30 PageID #: 169

METRO-GEM FAILS TO ADEQUATELY PLEAD A SECTION

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 17 of 30 PageID #: 170

Metro-Gem Fails to Adequately Plead a Conspiracy

Mr. Dean and SBP intentionally conspired with Dancy to assist in a

Dancy conspired again with Dean in order to divert any inquiries by

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 18 of 30 PageID #: 171

rightful owner of its leased vehicles yet nonetheless conspired with

In evaluating a complaint, these threadbare recitals of the elements of a cause of

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 19 of 30 PageID #: 172

Metro-Gems Alleged RICO Conspiracy Is Not Plausible

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 20 of 30 PageID #: 173

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 21 of 30 PageID #: 174

METRO-GEMS 1962(d) CLAIM AGAINST MR. DEAN

Metro-Gem Fails to Allege Two Unlawful RICO

The Predicate Acts Underlying

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 22 of 30 PageID #: 175

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 23 of 30 PageID #: 176

The Alleged Predicate Acts Did Not Directly and

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 24 of 30 PageID #: 177

Metro-Gem Fails to Allege a Two-Year Pattern of Racketeering Activity

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 25 of 30 PageID #: 178

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 26 of 30 PageID #: 179

THE 1962(d) CONSPIRACY CLAIM AGAINST

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 27 of 30 PageID #: 180

METRO-GEMS BREACH OF CONTRACT

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 28 of 30 PageID #: 181

METRO-GEMS REPLEVIN CAUSE OF ACTION

Case 2:16-cv-05245-SJF-AYS Document 30 Filed 01/13/17 Page 29 of 30 PageID #: 182

METRO-GEM CONSTRUCTIVE TRUST CAUSE