Legal Memorandum: Motion to Dismiss in a RICO Action

Issue: In a Rule 12(b)(6) motion to dismiss in a RICO action, is a plaintiff required to present evidence in its complaint of the non-existence of independent factors that could attenuate proximate cause?

A plaintiff has no obligation “to prove a series of negatives; he doesn’t have to offer evidence which positively excludes every other possible cause”.  BCS Servs., Inc. v. Heartwood, 88, LLC, 637 F.3d 750, 757 (7^th Cir. 2011).  Judge Posner explained:

In technical legal terms the burden of proving an “intervening cause”—something which snaps the “causal chain” (that is, operates as a “superseding cause”, wiping out the defendant’s liability) that connects the wrongful act to the defendant’s (sic) injury—is on the defendant.

Id. (citations omitted).  Thus, if a defendant contends independent factors exist that break the causal chain, the defendant has the burden to present them.

If a party fails to cite any authority to support its position, the party waives the argument.  Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11^th Cir. 2012) TA l "Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir.2012)" s "Hamilton v. Southland Christian Sch. (11th Cir.2012)" c 1  (“A passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it.”).

With respect to a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Supreme Court has observed: 

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the […]