govinfo:USCOURTS-tnwd-2_25-cv-02776-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
 
 
MEMPHIS POOL SUPPLY, INC., 
 
Plaintiff, 
 
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v. ) 
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DAVIS BROWN, BRIAN ROBERSON, 
JACOB HISAW, DANIEL BROWN, 
NICHOLAUS HOLTZCLAW, AND JOHN 
DOES 1-50, 
 
Defendants. 

 
 
 
ORDER GRANTING DEFENDANTS’ JOINT MOTION TO DISMISS 
 
 
 Before the Court is Defendants Daniel Brown, Brian Roberson, Davis Brown, Jacob 
Hisaw, and Nicholaus Holtzclaw’s (“Defendants”) Motion to Dismiss. Doc. 35. For the following 
reasons, Defendants Motion is GRANTED. 
BACKGROUND 
 Memphis Pool Supply, Inc. (“Memphis Pool”) is a family -owned swimming pool 
contractor based in Memphis, Tennessee, which specializes in custom pool construction, 
swimming pool renovation, and swimming pool maintenance and service. Doc. 19 at 4. Memphis 
Pool employed Defendants in its Weekly Service Division, which provides scheduled pool service 
and maintenance services to customers. Id . Plaintiff alleges that in June 2025, it discovered 
Defendants were performing “side jobs” in direct competition with Memphis Pool. Id. at 9-10. Mr. 
Roberson, acting as manager, was authorized to order chemicals, parts and other products 
necessary for the other Defendants to perform services for Memphis Pool. Id. at 10. Plaintiff claims PageID
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that Defendants fraudulently billed Memphis Pool for parts, chemicals, products, and other 
inventory that were used for unauthorized side jobs. Id . at 10. Memphis Pool’s internal 
investigation revealed that Defendants used company vehicles, equipment, inventory, and 
cellphones to service non-Memphis Pool customers in furtherance of the Defendants’ unauthorized 
side business. Id. at 10-11. 
Plaintiff filed its operative Amended Complaint on October 3, 2025. Doc. 19. Defendants 
filed their Motion to Dismiss on October 31, 2025, asserting that Plaintiff failed to state a claim 
pursuant to 18 U.S.C. § 1962(c) , the Racketeer Influenced and Corrupt Organizations Act 
(“RICO”). Doc. 35. Defendants also argue that as a result, all state law claims should be dismissed 
for lack of jurisdiction. Id . Plaintiff filed its Response in Opposition on December 1, 2025. Doc. 
41. Defendants filed a Reply on December 11, 2025. Doc. 41 
LEGAL STANDARD 
To survive a Rule 12(b)(6) 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 Atlantic Corp. v. Twombly , 550 U.S. 544, 570 
(2007)). A claim has facial plausibility “when the plaintiff pleads factual content that allows the 
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 
Plausibility requires more than factual allegations that demonstrate “a sheer possibility” of 
unlawful conduct or are “‘merely consistent with’ a defendant’s liability.” Id. If the factual 
allegations “do not permit the court to infer more than the mere possibility of misconduct, the 
complaint . . . has not show[n] that the pleader is entitled to relief” and cannot survive a motion to 
dismiss. Id. at 679. PageID
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In determining whether the complaint states a plausible claim, the district court must accept 
the well-pleaded factual allegations in the complaint as true. Id. at 678-79. When there are well -
pleaded factual allegations, a court should assume their veracity and then determine whether they 
plausibly give rise to an entitlement to relief. Id . at 679. In undertaking that analysis, the court 
“must focus only on the allegations in the pleadings.” Bates v. Green Farms Condo. Ass ’n, 958 
F.3d 470, 483 (6th Cir. 2020). 
LEGAL ANALYSIS 
 Under RICO, it is “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.A. § 1962(c). Furthermore, it is 
“unlawful for any person to conspire to violate [ § 1962(c)].” 18 U.S.C.A. § 1962(d). “To state a 
RICO claim, [Plaintiff] must plead the following elements: (1) conduct (2) of an enterprise (3) 
through a pattern (4) of racketeering activity.” Moon v. Harrison Piping Supply, 465 F.3d 719, 723 
(6th Cir. 2006) (internal citation omitted). 
Defendants argue that Plaintiff has failed to plead facts showing an “enterprise” or a 
“pattern of racketeering.” Doc. 35-1. 
I. Enterprise 
RICO defines an “enterprise” as “any individual, partnership, corporation, association, or 
other legal entity and any union or group of individuals associated in fact although not a legal 
entity.” 18 U.S.C. § 1961(4). “[A]n association-in-fact enterprise must have at least three structural 
features: a purpose, relationships among those associated with the enterprise, and longevity 
sufficient to permit these associates to pursue the enterprise’s purpose.” Ouwinga v. Benistar 419 PageID
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Plan Servs., Inc., 694 F.3d 783, 794 (6th Cir. 2012). “Put differently, any group that associates for 
a common purpose qualifies.” United States v. Bailey, No. 19-2280, 2022 WL 2444930, at *2 (6th 
Cir. July 5, 2022) (internal citation omitted). “[T]his group need not have a formal structure , … 
[n]or do group members need to have fixed roles. Id. (citing Boyle v. United States, 556 U.S. 938, 
948 (2009)). “The group need not even have ‘a name, regular meetings, dues, established rules and 
regulations, disciplinary procedures, or induction or initiation ceremonies. ’” Id. (internal citation 
omitted). 
In their Motion, Defendants primarily cite out-of-circuit cases from the 1980’s, ignoring 
the broad definition the Supreme Court established in Boyle in 2009 and since applied in cases 
following Boyle. As Boyle made clear, “an association -in-fact enterprise is simply a continuing 
unit that functions with a common purpose.” 556 U.S. at 948. [T]he Supreme Court [] rejected 
attempts to graft onto the statute formal strictures that would tend to exclude amorphous or 
disorganized groups of individuals from being treated as RICO “enterprises.” D’Addario v. 
D’Addario, 901 F.3d 80, 100 (2d Cir. 2018) . “This definition is intentionally broad, designed to 
stamp out corruption.” Allstate Ins. Co. v. Lint Chiropractic PC , 735 F. Supp. 3d 833, 842 (E.D. 
Mich. 2024). 
In its Complaint, Plaintiff has sufficiently pled a common purpose. Based on the facts 
alleged, Defendants worked together to use Memphis Pool’s resources to conduct a side business 
in direct competition with their employer. Mr. Roberson’s position as manager allowed him to 
coordinate the scheme and divert supplies from Plaintiff. Doc. 19 at 10. The Complaint also points 
to communications between the Defendants related to the scheme, reflecting a relationship related 
to the enterprise. Id. at 12-13. Finally, while the alleged scheme was uncovered in June 2025, the 
Complaint states that it was ongoing since at least August 2023. Id. at 12- 13. Because of the PageID
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“breadth of the enterprise concept” under Boyle, the Complaint has sufficiently pled the existence 
of an association with a common purpose. 
II. Pattern of Racketeering Activity 
A “pattern of racketeering activity” requires at least two acts of racketeering activity 
occurring within ten (10) years of each other . 18 U.S.C.A. § 1961(5). “A pattern of racketeering 
activity is established by showing 1) a relationship between predicate acts, and 2) the threat of 
continuity.” Beard v. Worldwide Mortg. Corp., 354 F. Supp. 2d 789, 804 (W.D. Tenn. 2005). Here, 
Plaintiff alleges predicate acts of mail and wire fraud pursuant to 18 U.S.C. §§ 1341 and 1343. 
Doc. 19 at 18. “ Both types of fraud require (1) a scheme to defraud, (2) the use of the mails or 
wires to further the scheme, and (3) an intent to deprive the victim of money or property. ” Lint 
Chiropractic PC, 735 F. Supp. 3d at 843 (citing United States v. Turner , 465 F.3d 667, 680 (6th 
Cir. 2006)). “A scheme to defraud includes any plan or course of action by which someone uses 
false, deceptive, or fraudulent pretenses, representations, or promises to deprive someone else of 
money.” Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 404 (6th Cir. 2012). 
Plaintiffs alleging fraud must “meet the more rigorous pleading standards of [Federal Rule 
of Civil Procedure 9(b),]” which provides that, “[i]n alleging fraud or mistake, a party must state 
with particularity the circumstances constituting fraud or mistake.” Id. at 403 (quoting Fed. R. Civ. 
P. 9(b)). “Courts rigorously enforce Fed.R.Civ.P. 9(b) ’s pleading requirements in RICO cases in 
which the ‘ predicate acts ’ are mail fraud and wire fraud , an d have further required specific 
allegations as to which defendant caused what to be mailed (or made which telephone calls), and 
when and how each mailing (or telephone call) furthered the fraudulent scheme. ” Thomas v. 
Daneshgari, 997 F. Supp. 2d 754, 763 (E.D. Mich. 2014) . “In order to allege fraud with 
particularity, the plaintiff[ ], at a minimum, must allege the time, place, and content of the alleged PageID
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misrepresentation on which [ it] relied; the fraudulent scheme; the fraudulent intent of the 
defendants; and the injury resulting from the fraud. ” Aaron v. Durrani, 2014 WL 996471, at *6 
(S.D. Ohio 2014) (citation omitted). “[A] n exception to the particularity requirement of 
Fed.R.Civ.P. 9(b) exists when the relevant facts ‘lie exclusively within the knowledge and control 
of the opposing party.’” Beard, 354 F. Supp. 2d at 799. “In such a case, pleading upon information 
and belief is permissible, although the plaintiff must still plead a statement of facts upon which the 
belief is based.” Id. 
The facts alleged in the Complaint relating to mail and wire fraud are as follows: 
53. Roberson and one or more of the other Defendants caused inflated and 
fraudulent invoices for parts, chemicals, products, and other inventory, in excess of 
what Memphis Pool’s customers actually needed and received, to be prepared and 
sent through the United States Postal Service. Doc. 19 at 10-11. 
 
64. For example, on August 29, 2023, Roberson sent his location to Hisaw’s 
Memphis Pool cellphone at two different addresses with pools, neither of which 
were Memphis Pool customers, so Defendants could carry out work for their 
unauthorized side business. Id. at 12-13. 
 
65. As further example, o n September 28 2024, Hisaw, using Memphis Pool’s 
cellphone assigned to him, sent Roberson a text message regarding payment for his 
unauthorized side work. Id. at 13. 
 
101. At all times relevant, the enterprise was engaged in, and its activities affected, 
interstate commerce because many of the Defendants performed services to 
addresses in different states, caused inflated and fraudulent invoices to be sent 
through the United States Postal Service to addresses in different states, and used 
the Internet, mail, and telephone to conduct the above -described fraudulent 
enterprise. Id. at 18. 
 
The Complaint posits that mail fraud occurred each time Mr. Roberson submitted fraudulent 
invoices. However, Plaintiff must establish “which defendant caused what to be mailed (or made 
which telephone calls), and when and how each mailing (or telephone call) furthered the fraudulent 
scheme.” Thomas, 997 F. Supp. 2d at 763. PageID
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First, Plaintiff does not identify the individuals involved in the fraudulent billing aside from 
Mr. Roberson. It often states that “one or more defendants” engaged in certain practices, without 
ever specifying the defendants to which it is referring. “ A complaint ‘may not rely upon blanket 
references to acts or omissions by all of the ‘defendants,’ for each defendant named in the 
complaint is entitled to be apprised of the circumstances surrounding the fraudulent conduct with 
which he individually stands c harged.’” U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 
634, 643 (6th Cir. 2003) . The allegations relating to Mr. Hisaw merely state vaguely that he 
communicated with Roberson in connection with the “unauthorized side work” concerning a 
location and “regarding payment.” And t hree of the named Defendants, Mr. Holtzclaw, Davis 
Brown, and Daniel Brown are not implicated in allegations of mail or wire fraud at all . The 
allegations that these three Defendants wiped their sim cards on their work phone s, or refused to 
return their work phone, are not sufficient to establish they committed wire fraud. Doc. 19 at 15. 
Second, Plaintiff fails to detail when and how each communication furthered the fraudulent 
scheme. Plaintiff relies on data comparing costs/sales for three months year over year. Doc. 19 at 
11. In the case of long- running fraudulent schemes, it is not necessary to plead every instance of 
fraud that has occurred. U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 509 (6th Cir. 
2007). However, Plaintiff should “provide some representative examples of [Defendants’] alleged 
fraudulent conduct, specifying the time, place, and content of their acts and the identity of the 
actors.” Id. at 510 (internal citations omitted). Plaintiff has apparently been investigating this issue, 
and its invoices are squarely within its control; Plaintiff therefore should be able to point to specific 
occurrences of the fraud and on what date the invoices were mailed and by who. Instead, Plaintiff 
has provided general cost increases between 2024 and 2025. The pleading fails to provide the level 
of particularity required to put the Defendants on notice of the specific charges against them. PageID
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Because Plaintiff has failed to plead mail fraud with the required particularity, it is unable 
to establish two predicate acts as required by RICO. Therefore, Plaintiff’s RICO claims are 
DISMISSED. Because this is the first order of dismissal, the dismissal is WITHOUT 
PREJUDICE. Plaintiff must REPLEAD WITHIN 14 DAYS if it wishes to replead. 
III. Supplemental Jurisdiction 
Defendants also ask this Court to decline supplemental jurisdiction over the remaining state 
law claims. Doc. 35 -1 at 13. Plaintiff asserts it has adequately pled its RICO claim and does not 
address supplemental jurisdiction in the event original jurisdiction is lost. Doc. 41 at 15. 
This Court has original subject matter jurisdiction over Plaintiff’s RICO claim pursuant to 
28 U.S.C. § 1331; it has supplemental jurisdiction over Plaintiff’s related state-law claims under 
28 U.S.C. § 1367. “Such supplemental jurisdiction does not disappear when the federal claim that 
gave rise to original jurisdiction in the first place is dismissed. ” Orton v. Johnny ’s Lunch 
Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). “Following such a dismissal, the district court 
in its discretion may properly choose whether to exercise § 1367(a) jurisdiction over the 
supplemental state-law claims; however, such a decision is ‘purely discretionary.’” Id. 
“[A] federal court that has dismissed a plaintiff ’s federal-law claim should not ordinarily 
reach the plaintiff’s state-law claims.” Michigan Elec. Emps. Pension Fund v. Encompass Elec. & 
Data, Inc., 556 F. Supp. 2d 746, 782 (W.D. Mich. 2008) . “Justice and comity are served by 
deferring to [Tennessee’s] courts, which are best equipped to interpret and apply their own State’s 
law.” Id. Therefore, if Plaintiff does not replead, this Court will not exercise supplemental 
jurisdiction over the remaining state law claims. 
CONCLUSION PageID
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For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED without 
prejudice. Plaintiff must REPLEAD WITHIN 14 DAYS if it wishes to replead. If Plaintiff does 
not replead within 14 days, the case will be dismissed with prejudice. 
SO ORDERED, this 26th day of May, 2026. 
s/Brian C. Lea 
BRIAN C. LEA 
UNITED STATES DISTRICT JUDGE PageID
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