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4816-8875-6252.1
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
J OSH COLE AICKLEN
Nevada Bar No. 007254
DAVID B. AVAKIAN
Nevada Bar No. 009502
LEWIS BRISBOIS BISGAARD & SMITH LLP
6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
702.893.3383
FAX: 702.893.3789

Attorneys for Defendant NARCONON
FRESH START d/b/a RAINBOW
CANYON RETREAT


UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

CHARIS YATES, a Washington
Citizen; BERET PUGH, a Washington
Citizen; and DEAN PUGH, a
Washington Citizen,

Plaintiffs,

vs.

NARCONON FRESH START d/b/a
RAINBOW CANYON RETREAT, a
California Corporation;
ASSOCIATION FOR BETTER
LIVING AND EDUCATION
INTERNATIONAL; NARCONON
INTERNATIONAL; and DOES 1-100,
ROE Corporations I-X, inclusive,

Defendants.

CASE NO. 2:14-cv-00837-GMN-NJ K

DEFENDANT NARCONON FRESH
START D/B/A RAINBOW CANYON
RETREATS MOTION TO
DISMISS PLAINTIFFS
COMPLAINT FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED AND
FOR OTHER RELIEF

(FRCP 12(b)(6); FRCP 6, FRCP 9, as
applied to 28 U.S.C. Section 1332, 28
U.S.C. 1330-1368, 28 U.S.C. 1331, 18
U.S.C. 1962 and 18 U.S.C. 1964)




Defendant, NARCONON FRESH START, d/b/a RAINBOW CANYON
RETREAT, a California Corporation, by and through its counsel LEWIS BRISBOIS
BISGAARD & SMITH, LLP, hereby moves this Court for an Order Dismissing
Plaintiffs CHARIS YATES, BERET PUGH, and DEAN PUGHs Complaint for
failure to state a claim against it upon which relief may be granted, and for the other
relief requested herein, pursuant to FRCP 12(b)(6); FRCP 6, FRCP 9, as applied to
Case 2:14-cv-00837-GMN-NJK Document 10 Filed 07/07/14 Page 1 of 24
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4816-8875-6252.1
2
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
28 U.S.C. Section 1332, 18 USC 1962 and 18 U.S.C. 1964.
This motion is made and based upon the papers and pleading of record herein,
Memorandum of Points and Authorities, matters which can be judicially noticed,
and such oral evidence as may be required by the Court in the determination of the
issues raised in this Motion.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION AND STATEMENT OF MATERIAL FACTS.
A. Parties to This Action.
Plaintiffs in this action are Washington citizens CHARIS YATES, BERET
PUGH and DEAN PUGH (collectively, Plaintiffs or YATES). On May 27,
2014, YATES filed a Complaint against the moving Defendant NARCONON
FRESH START d/b/a RAINBOW CANYON RETREAT, a California Corporation
(hereinafter, FRESH START), and two other California corporations,
ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL;
NARCONON INTERNATIONAL. Plaintiffs also improperly named Doe and
Roe parties as defendants.
B. Allegations against FRESH START in the YATES Complaint.
The Complaint includes ten claims for relief, titled as follows:
First Claim for Relief: Breach of Contract (Complaint Page 9
(hereafter, CP 9) (Filed Document Page 9 of 17 (hereafter FDP 9)
and see Exhibit A (document entitled Narconon FRESH START
Terms and Conditions (FDP 3-5)) attached to the Complaint;
Second Claim for Relief: Fraud (CP9-10/FDP9-10);
Third Claim for Relief: Negligence (CP10-11/FDP10-11);
Fourth Claim for Relief: Intentional Infliction of Emotional Distress
(CP11/FDP11);
Case 2:14-cv-00837-GMN-NJK Document 10 Filed 07/07/14 Page 2 of 24
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4816-8875-6252.1
3
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
Fifth Claim for Relief: Negligent Misrepresentation (CP11-12/FDP11-
12);
Sixth Claim for Relief: Negligence Per Se based on Defendants
claimed violations of NRS 630.160 purportedly relating to licensing of
medical professionals (CP12-13/FDP12-13) and what Plaintiff wrongly
contends was medical advice to Beret Pugh;
Seventh Claim for Relief: Civil RICO for Mail and Wire Fraud based
on alleged violations of 18.U.S.C. 1964(c) and 18 U.S.C. 1962 (CP113-
14/FDP13-14) alleging that FRESH STARTs alleged use of phones,
wires, mail, and internet was integral to their fraudulent scheme;
Eighth Claim for Relief: Breach of Implied Covenant of Good Faith
and Fair Dealing of Contract Plaintiffs Dean Pugh and Charis Yates
allegedly entered into for FRESH START to provide treatment to
Beret. (CP14-15/FDP14-15);
Ninth Cause of Action (sic): Civil Conspiracy implicating NRS
630.160 (Ninth Claim for Relief (CP15/FDP16); and
Tenth Cause of Action (sic): Fraud (Claims for alleged violations of
NRS 41.600 and NRS 598.0915 to 598.0925) essentially, allegations of
deceptive advertising. (CP15-16/FDP15-16).
C. The Contract. (First Claim for Relief.)
The terms of the contract between YATES and FRESH START are the
basis for many of the claims for relief in the YATES Complaint. YATES attached
an executed document entitled NARCONON FRESH START TERMS AND
CONDITIONS, which is signed by the responsible party, apparently Dean Pugh.
The name of the person to be treated is not included.
According to the Terms and Conditions, the Narconon Program was
defined as:
/ / /
Case 2:14-cv-00837-GMN-NJK Document 10 Filed 07/07/14 Page 3 of 24
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4816-8875-6252.1
4
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
NARCONON FRESH START, a non-profit corporation, delivers a
comprehensive residential drug and alcohol treatment program which is based
on students completing treatment goals that are established by a results
oriented treatment modality, rather than a set number of days or weeks in
treatment. (FDP17)
And,
The amount of time it takes each individual to complete the program varies,
but averages between three and five months. Some individuals complete in
less time. (Id.).

Another paragraph of the Terms and Conditions entitled, HISTORY OF THE
NARCONON PROGRAM, reads:
The Narconon Program was founded in 1966 by William Benitez, where it
was first used in the Arizona State Prison, after being inspired by the practical
betterment philosophy of the author and humanitarian L. Ron Hubbard in the
book, The Fundamentals of Thought. After reforming himself through the
use of this new and innovative rehabilitation technology and establishing the
Narconon program, Mr. Benitez found a new purpose in life by helping
people not only rehabilitate themselves from drug addiction, but more
importantly, restore their personal values, integrity, and responsibility. The
Narconon Program is secular (NON-RELIGIOUS) in nature and the program
does not include participation in any religious studies of any kind. (FDP18,
p. 4 of Terms and Conditions.)

It would be difficult for Plaintiff DEAN PUGH to claim he was unaware of the
nature of the FRESH START Program or its origin and purpose.
The Terms and Conditions also included a page entitled Integrated
Agreement, which reads in pertinent part:
The Admissions Agreement represents the entire agreement between the
parties and supersedes all prior written and oral agreements.
***
No oral agreements or understandings shall have any standing or validity
with regard (sic) the agreement between the parties.
The parties are only those parties named in the Admissions Agreement.
(See, FDP18, page 4 of the Terms and Conditions.)
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4816-8875-6252.1
5
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
There is no document attached to YATESs Complaint entitled Admission
Agreement. Whether Exhibit A is a complete copy of the agreement between the
Plaintiffs and FRESH START remains to be seen. So far, DEAN PUGH is the only
party who has signed any form of agreement with FRESH START.
D. This Court Does Not Have Original Jurisdiction.
For many years, FRESH START has admitted persons to its programs held at
facilities located in Caliente, Lincoln County, Nevada. The Seventh J udicial District
of Nevada encompasses state filed cases arising in Caliente, Nevada. Lincoln
County is the proper place in which the alleged contract referenced in the Complaint
and included as Exhibit A to the Complaint (FDP 2-5) was negotiated, and where
the contracted duties were performed. Lincoln County is also the place where the
majority of witnesses reside and is also the location of the majority of the evidence
required for trial. Plaintiffs and Plaintiffs witness will largely be based in Nevada
as well.
Plaintiffs identify themselves as Washington citizens but allege no claims
over which this Court has original jurisdiction under 18 U.S.C. Sections 1330-1368
or over which this Federal Court should assume jurisdiction as a federal question
(28 U.S.C. 1331), including the Civil RICO Claim pursuant to 18 U.S.C. 1962
and/or 18 U.S.C. 19164. However, there is a cause of action provided by Nevada
Statute, NRS 207.470, et seq. Therefore, FRESH START respectfully requests that
the YATES Complaint should be remanded sua sponte by the Court to the Seventh
J udicial District of Nevada for all purposes, including discovery and trial.
E. There Is No Diversity Jurisdiction in the Instant Matter.
As to the prayer for relief, Plaintiffs demand judgment in their favor and
against Defendants for damages in excess of $75,000; reasonable attorneys fees and
costs of suit; interest at the statutory rate; punitive or exemplary damages against
defendant; and injunctive relief restraining defendants from further engaging in
deceptive trade practices and all further relief the Court may deem just and fair.
Case 2:14-cv-00837-GMN-NJK Document 10 Filed 07/07/14 Page 5 of 24
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4816-8875-6252.1
6
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
This action is not a civil action arising under the Constitution, laws, or
treaties of the United States as required by 28 U.S.C. Section 1332 so that there is
no basis for asserting original jurisdiction over this case other than Federal Diversity
J urisdiction pursuant to 28 U.S.C. Section 1391(a) if the damages that can be
recovered exceed $75,000 and other conditions are met. Here, however, assertion of
diversity jurisdiction is unwarranted. There is no showing whatever that Plaintiffs
could not obtain a fair trial in Nevada where the case properly belongs. Further,
there is no factual basis for their claim that there is $75,000 in controversy. In fact
this is an attempt to create a federal venue where other such cases can be easily
brought, as shown by the other cases already filed in this Court.
As is further analyzed below, many of the alleged claims for relief are
defective as plead and do not support this Courts exercise of jurisdiction.
II.
LEGAL ARGUMENT
A. STANDARD OF REVIEW OF MOTION TO DISMISS.
Federal Rule of Civil Procedure 12(b)(6) mandates that a Court dismiss a
cause of action that fails to state a claim upon which relief can be granted. A motion
to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See, N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). When considering a motion
to dismiss under Rule 12(b)(6), dismissal is appropriate only when the complaint
does not give the defendant fair notice of a legally cognizable claim and the grounds
on which it rests. See, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). In considering whether the complaint is sufficient to
state a claim, a court takes all material allegations as true and construes them in the
light most favorable to the plaintiff. See, NL Indus., Inc. v. Kaplan, 792 F.2d 896,
898 (9th Cir.1986). A court, however, is not required to credit conclusory,
unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden
State Warriors, 266 F.3d 979, 988 (9th Cir.2001). A formulaic recitation of a cause
Case 2:14-cv-00837-GMN-NJK Document 10 Filed 07/07/14 Page 6 of 24
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4816-8875-6252.1
7
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
of action with conclusory allegations is not sufficient; a plaintiff must plead facts
showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at
555, 127 S.Ct. 1955). That is, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, supra at 678 (2009) (citing Bell Atl. Corp. v. Twombly, 50 U.S. 544, 570
(2007).
Generally, a District Court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly
submitted as part of the complaint may be considered on a motion to dismiss. See,
Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th
Cir.1990) (abrogated on other grounds) (citations omitted). Also, documents whose
contents are alleged in a complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be considered in ruling on a
Rule 12(b)(6) motion to dismiss without converting the motion to dismiss into a
motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994)
(overruled on other grounds). Plausibility, in the context of a motion to dismiss,
means that the plaintiff has pleaded facts which allow the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
The Iqbal evaluation, above, illustrates a two prong analysis. First, the Court
identifies "the allegations in the complaint that are not entitled to the assumption of
truth," that is, those allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 680-81. Second, the Court considers the factual
allegations "to determine if they plausibly suggest an entitlement to relief." Id. at
681. If the allegations state plausible claims for relief, such claims survive the
motion to dismiss. Id. at 678.
/ / /
/ / /
Case 2:14-cv-00837-GMN-NJK Document 10 Filed 07/07/14 Page 7 of 24
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4816-8875-6252.1
8
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
B. PLAINTIFFS RICO ALLEGATIONS DO NOT WARRANT
THIS COURTS EXERCISE OF PENDENT STATE CLAIMS
JURISDICTION.

1. Summary of Legal Principles Upon Which This Motion Is Brought.

As shown by the federal statutes and cases discussed, infra, YATES must
bring a civil action that falls within the original jurisdiction of this Court to continue
in this Court. YATES filed this action as a diversity action. Nonetheless, the action
may remain in this Court only if the Complaint demonstrates that:
1. Each Plaintiff has a civil action arising under the Constitution, laws, or
treaties of the United States as required by 28 U.S.C. Section 1332; or,
2. Each Plaintiff has a cause of action created by federal law which requires
consideration in a federal court rather than a Nevada Court; or,
3. Each Plaintiff has a case wherein the subject matter of the state law claims
turns upon substantial questions of federal law.
Although YATES attempted to state a Civil RICO claim pursuant to 28
U.S.C. 1964 and 28 U.S.C. 1962 (Seventh Claim for Relief) the complaint as written
fails. If that claim is dismissed, as it should be, see infra, the state law claims
cannot be deemed pendent claims. The State of Nevada has adopted NRS 207.470,
which will afford these Plaintiffs full relief for civil RICO claims, if indeed relief is
warranted, which Defendant denies. The United States civil RICO statutes are not
among those federal statutes that are recognized as affecting substantial questions of
federal law. Nor is this a case wherein the subject matter of the state law claims
turns upon substantial questions of federal law. Instead, the subject matter of the
Complaint turns upon matters subject to Nevada Statutes, as set forth infra.
2. There Is No Federal Claim Which Will Justify The Courts Retention
Of The State Law Claims And The Claims For Civil RICO And/or
Fraud Do Not State Claims Upon Which Relief Can Be Granted.

To remain in this Court, Plaintiffs YATES must have alleged a cause of
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4816-8875-6252.1
9
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
action within the Courts original jurisdiction. To do so, YATES must have alleged
(1) a federal claim, (2) a state claim that requires a resolution of a substantial issue
of federal law, and/or (3) a state claim completely pre-empted by federal statute.
See, e.g., Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). As to the first of
these three requirements, there is no federal action alleged. As to the second,
there is no state claim that will require a resolution of a substantial issue of federal
law. And certainly as to the third requirement, this case implicates none of the five
federal statutes which completely pre-empt well-pleaded state law claims. See n. 3,
supra. The Complaint does not urge a public policy reason for this Court finding
that the YATES state law claims are completely pre-empted by the federal civil
RICO statute.
U. S.C. 18 Section 1962 makes it "unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of which affect, interstate
or 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." 18 U.S.C. 1962(c). "To state a claim under 1962(c), a plaintiff
must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity." Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir.2007) (en banc)(A
pattern... requires at least two acts of racketeering activity.) 18 U.S.C. 1961(5).
Racketeering activity is any act indictable under several provisions of Title 18 of
the United States Code, and includes the predicate acts of mail fraud, wire fraud and
obstruction of justice." Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir.2004).
In the Seventh Claim for Relief, Plaintiffs first realleged Paragraphs 1
through 82 of their Complaint (CP13/FDP13), none of which offer facts which are
sufficient to support a Civil RICO cause of action. Plaintiff then goes on in
Paragraph 84 (Id.) to allege that Plaintiffs have been injured by Defendants conduct
of an enterprise through a pattern of racketeering activity. In Paragraph 85
Plaintiffs alleged that defendants engaged in a scheme to defraud Plaintiffs and
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4816-8875-6252.1
10
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
countless others and in furtherance of that scheme, defendants have committed
countless acts of mail fraud and wire fraud under 18. U.S.C. Section 1962 within the
preceding ten years. (Id.) Paragraphs 86 through 91 (CP13/14 FDP 13/14) then set
out conclusory statements about what a person at FRESH START says at intake.
Conclusory statements, however, do not rise to the level required to maintain
a civil RICO claim under 18 U.S.C. Paragraphs 84- 91 do not show the four
elements required to state a valid cause of action under U.S.C., Ch. 18, to-wit, (1)
conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.
Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1543 (10
th
Cir. 1993) (superseded
on other grounds).
Under Rule 9(b), Plaintiffs must sufficiently allege each element of a RICO
violation and its predicate acts of racketeering with particularity, a requirement
justified by the threat of treble damages and injury to reputation. Farlow v. Peat,
Marwick, Mitchell & Co., 965 F.3d, 982, 900 (10 Cir. 1992). Plaintiffs, for instance,
fail to show any act which is indictable under federal law. While Plaintiffs would
elevate their conclusory statements about what they believe about the FRESH
START program, the allegations fall short of the standard needed to establish mail
fraud, wire fraud or racketeering. These are the predicate acts without which there
is no liability under RICO. Tal v. Hogan, 453 F.3d 1244 (10
th
Cir. 2006). The
common thread is the consent of fraud. Actionable fraud consists of:
(1) A representation; (2) that is false; (3) that is material; (4) the speakers
knowledge of its falsity or ignorance of its truth; (5) the speakers intent it be
acted on; (6) the hearers ignorance of the falsity of the representation; (7) the
hearers reliance: (8) the hearers right to rely on it; and (9) injury.
Id. at 1263.
1
Failure to adequately allege any one of the nine elements is fatal to

1
For essentially the same reasons, the Complaint is insufficient to support the Second Claim for Relief
(Fraud). Since the purpose of this motion is to address this Courts lack of jurisdiction over the state and
Civil Rico claims, discussion of all the reasons why each state law claim fails to state claims upon which
relief can be granted will be deferred. This Motion is directed to the failure of the complaint to state any
(footnote continued)
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4816-8875-6252.1
11
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
the fraud claim. Id. As an example, the stated paragraphs do not adequately
identify the purposes of the mailing within the defendants fraudulent scheme.
Plaintiffs do not allege any facts supporting a finding of mail or wire fraud.
Plaintiffs did not allege the time, place and contents of the alleged mailings or wire
communications. Plaintiffs do not even specify which of the Plaintiffs received the
criticized communications. Nor do Plaintiffs state the when, where or the
contents of each of the false representation or even the specific identity of the party
making each false statements. Nor does YATES state the consequences thereof.
Tal, 453 at 1263.
Plaintiffs claim of a pattern is similarly based on conclusory allegations
without factual support. (See Paragraph 84, CP13/FDP13.) Plaintiffs allege only
that defendants have committed countless acts of mail fraud and wire fraud under
18. U.S.C. Section 1962 within the preceding ten years. This is an insufficient
statement of the factual details needed with respect to the alleged mailings to
survive this motion. Id. Plaintiffs do not state the identity of the party making the
false statements or the parties receiving the false statements within the preceding
ten years. Within the preceding ten years is itself vague and ambiguous. The
Paragraph does even suggest the beginning or the end of the ten years referenced.
Plaintiffs Complaint does not sufficiently address the requirements needed to show
a pattern of racketeering activity.
Although proof of at least two predicate racketeering acts is necessary to
prove a pattern, even two may not be sufficient. The United States Supreme Court
has concluded that Congress intended that the pattern element requires the showing
of a relationship between the predicates . . . and the threat of continuing activity
that is, continuity plus relationship. Resolution Trust Corp v. Stone, supra,

claim over which the Court should take jurisdiction.
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4816-8875-6252.1
12
2:14-cv-00837-GMN-NJK
MOTION TO DISMISS
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
ATTORNEYS AT LAW
quoting H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). The
mere allegation that there is such a pattern is patently insufficient to support the
Seventh Claim for Relief.
YATES also failed to identify the enterprise in the Complaint. See
Jennings v. Emry, 910 F.2d 1434, 1439-40 (7
th
Cir. 1990) (the first rule of pleading a
RICO claim is that the plaintiff identify the enterprise). There must be a showing
that FRESH START conducted or participated in the conduct of the enterprises
affairs not just its own affairs. Reves v. Ernst & Young, 507 UI.S. 170, 185
(1993). Plaintiffs have the burden of proving that FRESH START was part of an
enterprise which had an existence and purpose distinct from any one of them to
establish 1962(c) liability. Board of County Commrs v. Liberty Group, 965 F.2d
879, 885 (10 Cir. 1992). Any RICO enterprise must consist of more than a group of
people who get together to commit a pattern of racketeering activity. Starfish
Investment Corp. v. Hansen, 370 F. Supp.2d 759, 769 (N.D. Ill. 2005). It is not
sufficient to merely name more than one individual defendant. Dopp v. Loring, 54
Fed. Appx. 296, 298 (10
th
Cir. 2002)(Plaintiff must show that the individual
defendants were part of an enterprise which had an existence and purpose distinct
from any one of them to establish RICO liability).
YATES did not allege conduct by FRESH START beyond its own affairs
conducted at the Rainbow Canyon Retreat. The bare allegation that Defendants
participated in a scheme without identifying the particular conduct of each
particular defendant is insufficient. Such an allegation does not support the
existence of an enterprise with shared or common purposes, continuity of structure
and personnel, and a structure distinct from that inherent in the alleged patter of
racketeering activities.
Plaintiffs Alter ego allegations at Paragraphs 52 through 57 of the
Complaint (CP8-9/FDP8-9) are in fact antithetical to the existence of an enterprise
among the parties. It is well-settled that an entity subject to 18 U.S.C. Section
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1962(c) must be an entity distinct from the alleged enterprise. Brannon v.
Boatmens First Nal Bank, 153 F.3d 1144, 1146 (10
th
Cir. 1998) (emphasis added).
Plaintiffs allegation that the Defendants are a single entity is fatal to its RICO
claim.
Where an alleged enterprise is really nothing more than a defendant
corporation and its affiliates and associates conducting normal business affairs,
RICO liability does not attach. See, Davis v. Mutual Life Ins. Co. of N.Y., 6 F.3d
367, 377 (6
th
Cir. 1993) (An organization cannot join with its own members to
undertake regular corporate activity and thereby become an enterprise distinct from
itself.).
If we take Plaintiffs allegations as to alter ego liability to be true, as we must
for NRCP 12(b)(6) purposes, then, by definition, the cause of action for Civil RICO
in the Seventh Claim for Relief cannot stand because the Alter Ego theory destroys
it. Without a proper Seventh Claim for Relief for Civil RICO damages, there can be
no pendent jurisdiction to allow the state law claims to be tried in this Court.
C. IF THE COURT EXERCISES PENDENT STATE CLAIM
JURISDICTION, IT SHOULD DISMISS PLAINTIFFS
INDIVIDUAL CAUSES OF ACTION FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED.
There are no adjudicative facts contemplated by Rule 8 and Rule 9 (or even
Rule 11) stated in the Complaint upon which a jury could return findings supporting
plaintiffs claims that the literature referenced in the Complaint is or was false.
Further, the very Terms and Conditions shown in Exhibit A (FDP 16-19) show
that the Plaintiffs were told the nature of the FRESH START program, its history
and the nature of its intended treatment, to-wit, the saunas referenced, even telling
the YATES what medical steps needed to be taken before the saunas where
undertaken before DEAN PUGH signed the Terms and Conditions. Nowhere in
the paragraph does it suggest that FRESH START would itself administer those
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medical steps. FRESH START agreed to order and pay for them. (FDP18/p.4 of
Terms and Conditions.)
Plaintiffs in their Complaint make several conclusory statements about what
the FRESH START program did or did not do, to the extent of including deposition
testimony questions and answers from a different case to support their own
subjective conclusions that the FRESH START program, unnecessarily exposes
students to serous health risks including severe dehydration (Para. 39, CDP 5-
6FDP 5-6) and that FRESH START told the Plaintiffs that the New Life
Detoxification has been scientifically and medically proven. All such claims are
obviated by the fact that the Plaintiffs signed the agreement, whereupon Beret Pugh
allegedly entered into the FRESH START program. There is no allegation that she
did not complete it. Notably absent from the Complaint is any allegation of bodily
injury and/or medical expense supposedly caused by her supposed sauna
treatments.
Finally, FRCP 9(b) which provides that "[i]n alleging fraud ..., a party must
state with particularity the circumstances constituting fraud" applies to the Seventh
Claim for Relief (as well as the Second Claim for Relief, state law claim for fraud).
A plaintiff must allege the factual circumstances of the fraud itself. See, Odom, 486
F.3d at 554. The conclusory statements in the complaint are so broad, and
attenuated to ten years in the past and unknown times into the future, that this
Complaint is incapable of meaningful Answer.
Further, "Rule 9(b) demands that the circumstances constituting the alleged
fraud be specific enough to give defendants notice of the particular misconduct... so
that they can defend against the charge and not just deny that they have done
anything wrong." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009)
(internal quotation marks omitted). "Any averments which do not meet that
standard should be `disregarded,' or `stripped' from the claim for failure to satisfy
Rule 9(b)." Id. Accordingly, "[t]o avoid dismissal for inadequacy under Rule 9(b),
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[the] complaint would need to state the time, place, and specific content of the false
representations as well as the identities of the parties to the misrepresentation."
Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.2004) (internal quotation
marks omitted).
The case of Sanford v. MemberWorks, Inc., 625 F. 3d 550 (9
th
Cir. 2010) was
a case wherein the Ninth Circuit Court considered an amendment to add Plaintiffs
claim of mail fraud in a case relating to mailed membership kits sent to consumers
after they called to purchase the bait products, including the reading of deceptive
sales scripts over the telephone. Plaintiff alleged that such kits were designed to
look like junk mail so that consumers would unwittingly throw them away without
canceling their memberships. The Court further wrote that the Plaintiffs attempted
to allege in the proposed Third Amended Complain under Ninth Circuit review, the
predicate acts of wire and mail fraud, and the mailing of deceptive membership kits.
Wire or mail fraud consists of the following elements: (1) formation of a scheme or
artifice to defraud; (2) use of the United States mails or wires, or causing such a use,
in furtherance of the scheme; and (3) specific intent to deceive or defraud.
Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400 (9
th

Cir.1986). The Ninth Circuit found, however, that because the Smiths failed to
allege any specific mailings, they failed to satisfy Rule 9(b)'s particularity
requirement. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d
397, 405 (9
th
Cir.1991). The Ninth Circuit Court also found that Smiths could not
make any additional factual allegations to supplement their deficient RICO claims
without conducting discovery. The Court then found that while in some cases
discovery may be appropriate where evidence of fraud is exclusively in the
defendant's possession, see United States ex rel. Lee v. SmithKline Beecham, Inc.,
245 F.3d 1048, 1052 (9
th
Cir.2001), the initial pleading deficiencies stemmed from
the Smiths' inability to remember phone calls they made or mailings they received.
The Court held that because no amendment would allow the Smiths to plead the
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factual circumstances of the alleged fraud with the requisite level of particularity,
the district court did not err in denying as futile the Smiths' motion for leave to
amend the complaint to add a RICO claim under section 1962(c). Like the Smith
case, this Court should allow no amendment to cure the pleading deficiencies in
this Complaint.
1. Nevada Law Provides a Remedy for any Civil RICO claims that
Might Be Stated in a Properly Written Complaint.

Nevada enacted NRS 207.470 for alleged Civil RICO claims. Because
YATES can litigate claims for alleged wire and mail fraud arising under NRS
207.470, the goals of the Civil RICO statutes, U.S.C. 18 section 1962 and U.S.C. 18
section 1964, can be accomplished by discovery and trial in a Nevada Court.
Further, this claim is based on the false premise that Nevada medical licensing is
required to provide the type of care discussed in the documents attached to
YATESs complaint, something the Nevada statutes cited above refute. The
YATES Complaint does not show that the Seventh Claim for Relief shows a
significant question of federal law, nor does faith healing vs. concepts of
traditional medicine implicate a substantial federal interest. In fact, the claim
borders upon asking this Court to determine matters relating to the practice of
Scientology itself, which would be improper under any standard.
Moreover, faith-based rehabilitation programs based on religious principles
and teachings are not unusual. Indeed, seven of the well-known twelve steps of the
Alcoholics Anonymous program explicitly involve a higher power, God or a
spiritual awakening, as can be shown at a website: http://222/aa/org/assets/en
_US/smf-121_en.pdf.
The State of Nevada through its legislature traditionally has recognized the
validity of faith-based healing. See, e.g., NRS 616C.120 (regarding compensable
injuries in the workers compensation system) which reads in part:
/ / /
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Employee may elect treatment through prayer in lieu of medical treatment.
Any provision of this chapter or chapter 616A, 616B, 616D or 617 of NRS
must not prevent an employee from providing for treatment for the
employees injuries or disease through prayer or other spiritual means in
accordance with the tenets and practices of a recognized church, which
treatment is recognized in this State in lieu of medical treatment.

Further, one of the essential underpinnings of Plaintiffs Complaint is that
FRESH START was not licensed to practice medicine. In fact, FRESH START
was not practicing medicine" at times and places alleged. More in point, however,
the public policy of Nevada as voiced by the Nevada Legislature does not require
the licensing for faith-based healers that it requires of medical professionals. See,
e.g., NRS 629.031, describing Provider of health care, which reads:
Except as otherwise provided by a specific statute:

1. Provider of health care means a physician licensed pursuant to chapter
630, 630A or 633 of NRS, physician assistant, dentist, licensed nurse,
dispensing optician, optometrist, practitioner of respiratory care, registered
physical therapist, occupational therapist, podiatric physician, licensed
psychologist, licensed marriage and family therapist, licensed clinical
professional counselor, music therapist, chiropractor, athletic trainer,
perfusionist, doctor of Oriental medicine in any form, medical laboratory
director or technician, pharmacist, licensed dietitian or a licensed hospital as
the employer of any such person.

NRS Ch. 630A, in particular, relates to licensing of homeopathic medicine.
NRS 630A.090 reads in pertinent part,
This chapter does not apply to (a) the practice of dentistry, chiropractic,
Oriental medicine, podiatry, optometry, perfusion, respiratory care, faith or
Christian Science healing, nursing, veterinary medicine or fitting hearing aids.
There is no other Nevada statute which would require licensing for faith or
Christian Science healing.
Even assuming that FRESH START was utilizing principles which YATES
alleged are based in Scientology rather than medicine, doing so required no
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medical or homeopathic licensing under either Ch. 629 or Ch. 630A of the Nevada
Statutes.
Under FRCP 8, paragraphs which are no more than the pleaders own legal
conclusions, hearsay, irrelevant context, so-called scientific conclusions,
deposition testimony from another case, and conclusory statements can be
disregarded in ruling upon FRESH STARTs Motion to Dismiss under FRCP
12(b)(6). Plaintiffs Complaint is rife with personal conclusions, 16 pages of
deposition testimony from a 139 page deposition, and contains generalized
references in the absence of any specifics as to time, place, person and subject. This
Complaint should be dismissed in total, including the claim for Civil RICO and
consumer fraud under NRS 41.100, without leave to amend as amendment would be
futile.
In short, Plaintiffs failed to plead a short and plain statement of the claim
showing that the pleader is entitled to relief with simple, concise, and direct
allegations. Fed. R. Civ. P. 8(a)(2) and 8(d) (emphasis added). Where the
allegations in a Complaint are argumentative, prolix, replete with redundancy and
largely irrelevant, the Complaint is properly dismissed for failure to comply with
Rule 8. McHenry at 1177; see also Nevijel v. North Coast Life Ins. Co., 651 F.2d
671, 673-74 (9th Cir. 1981) (affirming dismissal of Complaint that was verbose,
confusing and almost entirely conclusory). Furthermore, a Complaint that fails to
comply with Rule 8 may be dismissed with prejudice. Nevijel at 673.
Plaintiffs included 44 paragraphs in the Factual Allegations Section of their
Complaint. (CP3-9 FDP3-9). Few of the 44 paragraphs demonstrate statements of
fact needed to support their ten claims for relief. The Complaint includes
conclusory statements, prolonged unnecessary quotes from books, alleged
scientific opinions, and argumentative statements devoid of facts to support them.
These 44 paragraphs are generally irrelevant and inflammatory narrative based on
their own opinions and conclusions, buttressed by odd quotes from a deposition
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taken two years earlier in Georgia. The Complaint is far from the simple, concise,
and direct notice pleading required by FRCP 8(d) and is instead an accusatory
exercise, clearly intended to harm the interests of FRESH START, depriving
FRESH START of a fair trial on the merits and clearly used to garner more lawsuits
from others against NARCONON programs in Nevada and elsewhere.
Courts regularly reject pleadings that amount to prolix diatribes through
which the Court and the defendants must wade to ascertain the relevant allegations.
Nevijel (affirming dismissal of amended complaint consisting of 23 pages of
verbose and conclusory averments); Hatch v. Reliance Ins. Co., 758 F. 2d 409, 415
(9th Cir. 1985), cert. denied, 474 U.S. 1021 (1985) (affirming dismissal under Rule
8 of confusing and conclusory complaint which exceeded 70 pages in length
including exhibits); Carrigan v. Calif. State Legislature, 263 F.2d 560, 566-67 (9th
Cir.), cert. denied, 359 U.S. 980 (1959) (186-page complaint describing plaintiffs
thoughts, worries, hearsay conversations, and difficulties and frustrations with
doctors, the insurance company, and most everyone else with whom she was in
contact violated Rule 8(a)); Prezzi v. Berzak, 57 F.R.D. 149, 150 (S.D.N.Y. 1972)
(Complaints which ramble, which needlessly speculate, accuse, and condemn, and
which contain circuitous diatribes far removed from the heart of the claim do not
comport with these goals [short and plain] and this system; such complaints must be
dismissed.); Jacobson v. Schwarzenegger, 226 F.R.D. 395, 397-98 (C.D. Cal.
2005) (dismissing complaint consisting of long winded diatribes, historical
narratives, legal arguments, and excerpts from newspaper articles and web sites).
Plaintiffs Complaint is a textbook of the types of violations made under Rule 8 and
Rule 9.
As to the fraud claims (Second Claim for Relief) at the least, Plaintiffs must
include the time, place, and manner of the alleged fraud. Lancaster Com. Hosp. v.
Antelope Valley Hosp. Dist., 940 F. 2d 397, 405 (9th Cir. 1991). The allegations
must be specific enough to give defendants notice of the particular misconduct
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which is alleged to constitute fraud charged so that they can defend against the
charge and not just deny that they have done anything wrong. Semegen v.
Weidner, 780 F.2d 727, 731 (9
th
Cir. 1985).
As to claims of negligent misrepresentation (Fifth Claim for Relief, CP 12),
the Ninth Circuit has "interpreted Rule 9(b) to mean that the pleader must state the
time, place, and specific content of the false representations as well as the identities
of the parties to the misrepresentation." Alan Neuman Prods., Inc. v. Albright, 862
F.2d 1388, 1392 (9th Cir.1988). "When an entire complaint, or an entire claim
within a complaint is grounded in fraud and its allegations fail to satisfy the
heightened pleading requirements of Rule 9(b), a district court may dismiss the
complaint or claim." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9
th

Cir.2003).
For the negligence claims, Plaintiffs need only allege who was being sued, for
what relief, and on what theory, with enough detail to guide discovery. Such a
Complaint can be read and answered in minutes. On the other hand, long-winded
complaints like Plaintiffs Complaint, impose unfair burdens on litigants and
judges. Id. at 1179. Lengthy immaterial, inflammatory, and superfluous opinions
and editorial comments do not comport with Rule 8. Ferm at *2.
Plaintiffs also alleged civil conspiracy claims against the three California
Residents sued in the complaint. (Ninth Claim for Relief.) With respect to claims
of conspiracy, "[p]articipation by each conspirator in every detail in the execution of
the conspiracy is unnecessary to establish liability, for each conspirator may be
performing different tasks to bring about the desired result." Beltz Travel Serv., Inc.
v. Int'l Air Transp. Ass'n, 620 F.2d 1360, 1367 (9th Cir.1980). Nevertheless, Rule
9(b) does not allow a complaint to merely lump multiple defendants together but
"require[s] plaintiffs to differentiate their allegations when suing more than one
defendant... and inform each defendant separately of the allegations surrounding his
alleged participation in the fraud." Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th
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Cir.2007). "[T]he plaintiffs must, at a minimum, `identify the role of each defendant
in the alleged fraudulent scheme.'" Id. (quoting Moore v. Kayport Package Express,
Inc., 885 F.2d 531, 541 (9th Cir.1989)). "To comply with Rule 9(b), allegations of
fraud must be specific enough to give defendants notice of the particular misconduct
which is alleged to constitute the fraud charge so that they can defend against the
charge and not just deny that they have done anything wrong." Bly-Magee v.
California, 236 F.3d 1014, 1019 (9th Cir.2001).
Apparently, the crux of the contract claim is that FRESH START did not
provide the Plaintiffs pre-conceived idea of drug and alcohol treatment and, in
Plaintiffs estimation, provided Scientology in lieu thereof. (Paragraph 60:
CP0/FDP9) There is no way for YATES to prove that YATES own misperceptions
of a contract demonstrate a breach of that contract which would entitle them to
continue with this Action. The Complaint makes the most conclusory allegations
concerning the existence of a contract and fails to show any admissible facts to
support a conclusion that the contract was breached, if made. There is no reference
to an Admission Agreement in the Complaint whereas one was clearly
contemplated in the signed Terms and Conditions (FDP 7-19). It appears that only
Dean Pugh was a party to the supposed Admission Agreement. Non-parties do not
have standing to allege the breach of a contract to which they were not parties.
In sum, the allegations in the First Claim for Relief do not satisfy the
Iqbal/Twombly standards set forth above and fail to meet requirements of FRCP
Rule 8 or Rule 9 so that this Claim for Relief should be dismissed.
For the Plaintiffs to state a claim for Intentional Infliction of Emotional
Distress (Fourth Cause of Action), Plaintiffs must do more than allege that
defendants engaged in extreme and outrageous conduct with the intention of
causing, or with reckless disregard of the probability of causing Plaintiffs severe or
extreme emotional distress. Plaintiffs merely repeat their idea that Beret Pugh
received Scientology in lieu of drug treatment or substance abuse counseling. The
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behavior to be actionable must be so outrageous in character, and so extreme in
degree as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Coors Brewing Co. v.
Floyd, 978 P.2d 663, 666 (Colo. 1999).
In summary, there is no legal justification for including the lengthy diatribes
YATES recite in their Complaint about matters which occurred prior to the time that
an Admission Agreement was supposedly signed and/or at times after execution
of the agreement when Beret entered Rainbow Canyon Retreat (if in fact she did)
and/or during Berets presence there.
If the Court strikes all the improper conclusory allegations, Plaintiffs fail to
plead any federal or state claim upon which relief may be granted. Essentially the
statements of facts and the claims for relief are so poorly worded that they fail to
afford FRESH START an opportunity to adequately respond to claims asserted.
Many of the paragraphs serve only to malign the character of the named defendants
and attack Scientology in general, which is itself improper. See e.g., Jacobson v.
Schwarzenegger, supra.
YATES Complaint exceeded any permissible pleading that YATES might
have filed. Pursuant to FRCP 8 or FRCP 9 alone, these claims for relief should be
collectively dismissed.
Pursuant to FRCP 12(b)(6), these claims must be dismissed because it does
not appear that Plaintiffs can state a claim upon which relief should be granted and
amendment to do so would be futile.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
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IV.
CONCLUSION
Defendant FRESH START respectfully requests that this Court decline to
exercise jurisdiction and/or dismiss the Complaint for failure to state a claim upon
which relief can be granted.
DATED this 7th day of J uly, 2014
Respectfully submitted,

LEWIS BRISBOIS BISGAARD & SMITH LLP




By /s/ Josh Cole Aicklen
J OSH COLE AICKLEN
Nevada Bar No. 007254
DAVID B. AVAKIAN
Nevada Bar No. 009502
6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
Tel. 702.893.3383

Attorneys for Defendant NARCONON
FRESH START d/b/a RAINBOW
CANYON RETREAT

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CERTIFICATE OF SERVICE

Pursuant to FRCP 5(b), I certify that I am an employee of LEWIS BRISBOIS
BISGAARD & SMITH LLP and that on this 7th day of J uly 2014, I did cause a true
copy of the foregoing DEFENDANT NARCONON FRESH START D/B/A
RAINBOW CANYON RETREATS MOTION TO DISMISS PLAINTIFFS
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED AND FOR OTHER RELIEF to be served via the
CM/ECF electronic system to all parties on the service list.


By: __/s/ Peggy Kurilla________________________
An Employee of LEWIS BRISBOIS
BISGAARD & SMITH LLP

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