Blank's Response To Motion To Dismiss

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 1 of 16 PageID #: 700
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
DIAMOND CONSORTIUM, INC. D/B/A
THE DIAMOND DOCTOR
Plaintiff,
v.
BRIAN MANOOKIAN AND
CUMMINGS MANOOKIAN, PLC
Defendants.
Civil Action No. 4:16-CV-94
PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

May 9, 2016
Donald E. Godwin
(Lead Attorney)
State Bar No. 08056500
DGodwin@GodwinLaw.com
W. Ira Bowman
IBowman@GodwinLaw.com
Stefanie M. McGregor
SMcGregor@GodwinLaw.com
Roxanne Hajikhani
RHajikhani@GodwinLaw.com
Alex S. Cleeter
ACleeter@GodwinLaw.com
GODWIN PC
1201 Elm Street
Suite 1700
Dallas, Texas 75270
Tel: 214.939.4412
Fax: 214.939.4803
ATTORNEYS FOR PLAINTIFF

THE DIAMOND DOCTOR
PAGE 1 OF 16
TO THE HONORABLE COURT:

Plaintiff, Diamond Consortium, Inc., d/b/a The Diamond Doctor ("Diamond Doctor" or
"Plaintiff") files this response to Defendants Brian Manookian ("Manookian") and Cummings
Manookian, PLC's ("Cummings Manookian") (jointly "Defendants") Motion to Dismiss (Doc.
25).
I.
INTRODUCTION
The First Amended Complaint ("Complaint") (Doc. 13) is a well-pleaded and thorough
documentation of an out-of-state lawyer and law firm's heavy-handed attempt to masquerade an
old fashioned shakedown as a marketing campaign. The facts set forth in the Complaint legally
support the causes of action alleged against the Defendants. The facts and statements of law in
the Complaint plainly establish that Defendants are liable to Plaintiff under various causes of
action, including RICO, business disparagement, and defamation.
Nevertheless, Defendants argue that the Complaint should be dismissed for failure to
state a claim under Fed. R. Civ. P. 12(b)(6) for two specific reasons: (1) the judicial privilege
bars Plaintiff's claims for business disparagement and defamation; and (2) Plaintiff's RICO
allegation as to an association-in-fact fails to establish an enterprise. Both of these arguments are
incorrect and the Motion to Dismiss should be denied.
Judicial privilege is an affirmative defense to certain types of defamation claims. It does
not, however, support the granting of a Motion to Dismiss unless the face of the complaint itself
undeniably establishes its application to the suit. Such is not the case with Plaintiff's Complaint.
Rather than identifying any specific ongoing or proposed litigation, the Complaint
identifies repeated false and inflammatory statements made as facts that are wholly unrelated to
PAGE 2 OF 16
either specific litigation or even made in furtherance of representing a specific client. It is, in
part, the absence of any specific pending or proposed litigation or even a specific client
represented by Defendants that reveals the odious scheme for what it actually is: extortion. There
is no judicial privilege defending extortion, and the Complaint does not warrant dismissal based
on the affirmative defense of judicial privilege.
Likewise, Plaintiff's RICO allegations are thoroughly supported with specific factual
assertions that establish the requisite elements and satisfy all the supporting case law analysis of
stating a claim for civil liability. Plaintiff pled in the alternative that the law firm of Cummings
Manookian is the corrupted enterprise and that there is an association-in-fact enterprise
consisting of Manookian, Cummings Manookian, Brian Cummings ("Cummings") and Boaz
Ramon ("Ramon"). The Motion to Dismiss does not question the sufficiency of the pleading that
claims Cummings Manookian is the corrupted enterprise. As is the case with the formal
enterprise allegations, the pleading that claims the existence of the association-in-fact is
supported with myriad factual allegations and meets all current case law interpretations of RICO
to state a claim for relief. Defendants' Motion to Dismiss misapplies and misinterprets the case
law cited while ignoring the copious case law establishing the plausibility and propriety of the
Complaint.
For these reasons, and as more fully set forth herein below, Plaintiff asks the Court to
deny the Motion to Dismiss
II.
ARGUMENT AND AUTHORITY
A.
Standard for Fed. R. Civ. P. 12(b)(6) Motion to Dismiss.
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the sufficiency of the
complaint. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
PAGE 3 OF 16
When judging the sufficiency of a complaint, the Court should accept all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff. Id. After accepting well-pleaded
facts as true, the Court determines whether those facts state a claim to relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Plausibility is not akin to probability. Iqbal, 556 U.S. at 678. Factual allegations in
the complaint need only be sufficient to raise a right to relief above the speculative level.
Twombly, 550 U.S. at 555. "Motions to dismiss under Rule 12(b)(6) are viewed with disfavor
and are rarely granted." Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir.
2005).
B.
The Court Should Deny Defendants' Rule 12(b)(6) Motion to Dismiss

Plaintiff's Business Disparagement and Defamation Claims Because a Rule
12(b)(6) Motion to Dismiss is Not The Appropriate Method to Adjudicate
Judicial Privilege Issues.
The same judicial privilege analysis applies to Plaintiff's business disparagement and
defamation claims because Defendants assert judicial privilege on both claims. See Doc. 25 at
pp. 710. In fact, Defendants' Motion to Dismiss asserts judicial privilege as its sole basis for
dismissal, utilizing identical arguments for Plaintiff's business disparagement and defamation
claims. As a result, this Response will address Defendants' assertion of judicial privilege related
to Plaintiff's business disparagement and defamation claims together.
Defendants attempt to obtain dismissal is based on an affirmative defense. See
IntelliGender, LLC v. Soriano, 2:10-CV-125-TJW, 2011 WL 903342, at *15 (E.D. Tex. Mar. 15,
2011) (characterizing defendant's assertion of the judicial privilege in a Rule 12(b)(6) motion to
dismiss as an affirmative defense); Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264 (5th
Cir. 1991) (noting that privilege is an affirmative defense).
PAGE 4 OF 16
An affirmative defense such as privilege is not properly asserted in a Rule 12(b)(6)

motion to dismiss unless the complaint, on its face, clearly shows that the privilege applies. See,
e.g., U.S. Enercorp, Ltd. v. SDC Montana Bakken Expl., LLC, 966 F. Supp. 2d 690, 707 (W.D.
Tex. 2013) (noting that the defendant has the burden of proving that the act in question is
privileged unless the complaint on its face clearly establishes that the privilege applies);
IntelliGender, 2011 WL 903342, at *15 (denying defendant's Rule 12(b)(6) motion based on
judicial privilege and stating "[defendant] . . . has the burden of proving its affirmative defense of
privilege for this defamation claim."); Marquis v. OmniGuide, Inc., 3:09-CV-2092-D, 2011 WL
321112, at *6 (N.D. Tex. Jan. 28, 2011) (noting that dismissal based on an affirmative defense is
improper at the Rule 12(b)(6) stage unless a party pleads itself out of court by admitting to all of
the elements of the defense).
The judicial privilege doctrine protects communications that are preliminary to proposed
judicial proceedings when the communication has "some relation to a proceeding that is
contemplated in good faith or under serious consideration." Shell Oil Co. v. Writt, 464 S.W.3d
650, 655 (Tex. 2015) (applying good faith and serious consideration requirement) (emphasis
added); Restatement (Second) of Torts 586 cmt. e (1977). Likewise, "the act to which the
privilege applies must bear some relationship to a judicial proceeding in which the attorney is
employed, and must be in furtherance of that representation." Russell v. Clark, 620 S.W.2d 865,
868 (Tex. Civ. App.Dallas 1981, writ ref'd n.r.e.) (emphasis added).
Defendants cannot show solely from Plaintiff's Complaint that the judicial privilege is
applicable. Importantly, Defendants do not challenge any of the facts alleged by Plaintiff as
conclusory. As such, the Court should assume the veracity of Plaintiff's well-pleaded facts. Iqbal,
556 U.S. at 679. These facts form plausible claims for business disparagement and defamation,
PAGE 5 OF 16
do not establish the applicability of the judicial privilege, and in fact affirmatively negate its
applicability.
i.
Plaintiff's Complaint does not contain facts that establish the applicability
of the judicial privilege.
Plaintiff's Complaint does not mention a lawsuit on file or on the verge of being filed by
either Manookian or Cummings Manookian. Instead, Plaintiff's Complaint states that there is no
class action lawsuit or any individual lawsuits filed by Defendants against Plaintiff. See Doc. 13
at 13, 35. Likewise, Plaintiff's Complaint does not assert or even intimate that Defendants
have any specific clients related to any actual or proposed claims against Plaintiff. Furthermore,
Plaintiff's Complaint does not assert any facts relating to any official demand letters or other
correspondence sent from Defendants related to specific clients or specific claims against
Plaintiff.
Defendants rely on Russell for the proposition that the judicial privilege extends to
"proposed litigation." See Doc. 25 at p. 8; 620 S.W.2d 865. The judicial privilege was applicable
in Russell because the case involved an attorney who had actual clients and sent official
correspondence related to an ongoing case. See 620 S.W.2d at 86668 (letter related to ongoing
case which had been remanded by Texas Supreme Court and was awaiting new trial).
Unlike the attorney in Russell, Defendants have not sent Plaintiff any official
correspondence related to a specific claim against Plaintiff. No such claim exists. Moreover,
Defendants' Motion to Dismiss does not and cannot point to facts in Plaintiff's Complaint
establishing that Defendants have any clients related to any purported "proposed litigation."
Defendants cite Beta Health All. MD PA v. Kelley Witherspoons LLP as an example of a
case where a Rule 12(b)(6) motion was granted based on judicial privilege. See Doc. 25 at p. 10;
CIV A 309-CV-0399-BF, 2009 WL 2222630 (N.D. Tex. July 22, 2009).
PAGE 6 OF 16
In Kelley Witherspoons, the defendant's counterclaim was dismissed because the

counterclaim, on its face, clearly showed that the judicial privilege applied. 2009 WL 2222630,
at *3. The alleged defamatory statements appeared in a pleading filed in court. Id. Thus, the
judicial privilege clearly applied. Id.
Kelley Witherspoons is distinguishable because it dealt with a case where there was an
actual lawsuit. There is no lawsuit on file by Defendants against Plaintiff, and Defendants'
disparaging and defamatory statements were not made within a court filing. Plaintiff's Complaint
offers no basis to conclude otherwise. This is evidenced by Defendants' Motion to Dismiss,
which does not and cannot point to facts in Plaintiff's Complaint to support their argument.
Defendants' Motion to Dismiss merely asserts that the judicial privilege applies because
Defendants' disparaging and defamatory statements "solicit and educate clients." Doc. 25 at pp.
910. However, Defendants provide no specific authority for the proposition that the judicial
privilege extends to soliciting and educating potential clients.
Defendants' Motion to Dismiss does briefly note Plaintiff having received four DTPA
demand letters from attorney Mark Hammervold ("Hammervold"), who is not a defendant and is
not an attorney with Cummings Manookian. See Doc. 25 at p. 5. While statements within these
demand letters alone may arguably be judicially privileged for any claims against Hammervold
or his law firm, they are not the factual basis for the business disparagement and defamation
claims in the present litigation.
Moreover, these four letters would not protect the Defendants because they were not sent
by Defendants but by an independent third party. These letters do not relate to allegations by any
of Defendants' related to any lawsuits or client(s) of Defendants. Plaintiff's Complaint does not
complain of disparaging and defamatory statements made by Hammervold. Manookian and
PAGE 7 OF 16
Cummings Manookian are the named defendants and are responsible for the disparaging and
defamatory comments made towards Plaintiff. Demand letters sent by Hammervoldan attorney
unrelated to the instant litigationcannot create a judicial privilege to protect Defendants.
Thus, because Plaintiff's Complaint does not contain facts that conclusively establish the
applicability of the judicial privilege, dismissal under Rule 12(b)(6) is inappropriate.
ii.
Plaintiff's First Amended Complaint asserts facts that repudiate the

applicability of the judicial privilege.
In addition to the absence of facts establishing the judicial privilege, Plaintiff's Complaint
repeatedly asserts facts that repudiate the applicability of the judicial privilege. Plaintiff's
Complaint plainly rejects the notion that Defendants' disparaging and defamatory comments
relate to a lawsuit contemplated in good faith.
Plaintiff's Complaint consistently asserts that Defendants' actions constitute extortion,
rather than a good faith pursuit of a lawsuit. For example, Plaintiff's Complaint explains that
Defendants' harassing websites are part of an extortion plan rather than a good faith attempt to
pursue a lawsuit. The websites use terms like "class action" and "lawsuit." However, there is no
class action lawsuit against Plaintiff. Doc. 13 at 13, 35. There have not even been any
individual lawsuits filed by Defendants against Plaintiff. Id.
Similarly, Plaintiff's Complaint describes Defendants' social media campaign accusing
Plaintiff of fraud as another component of Defendants' an extortion scheme. See, e.g., Doc. 13 at
9, 37. Plaintiff's Complaint makes clear that these efforts have not been supported by any
actual claims against Plaintiff. Doc. 13 at 13. Instead, this social media campaign is merely
harassment hiding behind Defendants' bald threats to file a lawsuit.
Plaintiff's Complaint also notes how Defendants' door hangers evidence Defendants' true
intentextortion. The door hangers placed around Dallas, which attack Plaintiff's reputation, do
PAGE 8 OF 16
not contain either Manookian or Cummings Manookian's name or contact information. See Doc.
13 at 12; Doc. 13-2 at App. 181. These harassing flyers, which do not contain any information
about either Manookian, or Cummings Manookian expose Defendants' real aimto exact
payment through threats, not to actually solicit clients in good faith.
Thus, the essence of Plaintiff's Complaintthat Defendants' end goal is extortion
asserts a pattern of disparaging and defamatory conduct that rejects the applicability of the
judicial privilege. See Restatement (Second) of Torts 586 cmt. e (1977) (noting that the
privilege applies to proceedings that are contemplated in good faith and under serious
consideration).
Plaintiff's Complaint does not, on its face, show that the judicial privilege applies.
Additionally, Plaintiff's Complaint, on its face, rebuts the argument that the judicial privilege
applies. Therefore, it is Defendants' burden to prove at a later stage in the litigation that the
judicial privilege applies to their disparaging and defamatory statements. See IntelliGender, LLC,
2011 WL 903342, at *15. The Court should deny Defendants' Rule 12(b)(6) motion to dismiss
Plaintiff's business disparagement and defamation claims.
C.
The Court Should Deny Defendants' 12(B)(6) Motion To Dismiss Plaintiff's

RICO Claim Based On An Association-In-Fact.
The Court should deny Defendants' 12(b)(6) Motion to Dismiss Plaintiff's RICO claim
because the well-pleaded facts state a claim under the RICO statute and its supporting case law.
Specifically, Plaintiff has pled sufficient facts to establish an association-in-fact enterprise.
Defendants' argument that Plaintiff is required to plead a distinction between the association-infact and its racketeering activities is unsupported by that statute and its corresponding case law.
Further, Plaintiff has properly pled Manookian as both a RICO "person" and member of the
association-in-fact enterprise. As such, this Court should deny Defendants' motion to dismiss.
PAGE 9 OF 16
i.
There is no requirement that Plaintiff must allege existence of an

association-in-fact enterprise separate and apart from racketeering
activity.
RICO does not require a Plaintiff to allege that an association-in-fact have a shared
purpose other than committing racketeering activity. Defendants argue that a RICO claim
requires that a bright line separate the "predicate acts" from the "enterprise." However, recent
precedent from the Fifth Circuit makes clear that there is no such requirement. See Allstate Ins.
Co. v. Plambeck, 802 F.3d 665, 674 (5th Cir. 2015) (the Court rejected the argument that an
association-in-fact enterprise must have a shared purpose besides committing racketeering
activity); see also McPeters v. Edwards, 806 F.Supp.2d 978, 988 (S.D. Tex. Apr. 14, 2011),
aff'd, 464 Fed. Appx. 351 (5th Cir. 2012) (quoting County of El Paso, Tex. v. Jones, EP-09-CV00119-KC, 2009 WL 4730303, at *22 (W.D. Tex. Dec. 4, 2009) ("Plaintiff's failure 'to allege an
existence separate and apart from Defendants' alleged racketeering activities' is not necessarily
'fatal to [her] claim'").
Moreover, the Supreme Court, in Boyle v. U.S., 452 U.S. 938 (2009), recently clarified
the requirements for an association-in-fact. "[T]he specific question on which [the Court] granted
certiorari is whether an association-in-fact enterprise must have an ascertainable structure
beyond that inherent in the pattern of racketeering activity which it engages." Id. at 945.
The Supreme Court there first noted:
. . .[W]e explained in Turkette that 'an enterprise includes any
union or group of individuals associated in fact' and that RICO
reaches 'a group of persons associated together for a common
purpose of engaging in a course of conduct.' 452 U.S., at 80, 583,
101 S.Ct. 2524. Such an enterprise, we said, 'is proved by evidence
of an ongoing organization, formal or informal, and by evidence
that the various associates function as a continuing unit.'
Boyle, 452 U.S. at 94546 (citing U.S. v. Turkette, 452 U.S. 576, 583 (1981)).
PAGE 10 OF 16
The Court held that it is incorrect to interpret the phrase "beyond that inherent in the
pattern of racketeering activity" to mean that the existence of an enterprise may never be inferred
from the evidence showing that persons associated with the enterprise engaged in a pattern of
racketeering activity. Id. at 947. Instead, "the evidence used to prove the pattern of racketeering
activity and the evidence establishing an enterprise 'may in particular cases coalesce.'" Id.
(quoting Turkette, 452 U.S. at 583); see also Adhikari v. Daoud & Partners, 697 F.Supp.2d 674,
692 (S.D. Tex. November 3, 2009) (the [Boyle] Court found that the enterprise was required to
have structure, but it need not have an ascertainable structure beyond that inherent in the pattern
of racketeering activity in which it engaged); U.S. v. Hutchinson, 573 F.3d 1011, 1021 (10th
Cir. 2009) (Simply put, after Boyle, an association-in-fact enterprise need have no formal
hierarchy or means for decision-making, and no purpose or economic significance beyond or
independent of the group's pattern of racketeering activity.)
The point was underscored by describing how the jury had been properly charged:
[T]he trial judge did not err in instructing the jury that 'the
existence of an association-in-fact is oftentimes more readily
proved by what it does, rather than by abstract analysis of its
structure. This instruction properly conveyed the point we made in
Turkette that proof of a pattern of racketeering activity may be
sufficient in a particular case to permit a jury to infer the existence
of an association-in-fact enterprise.
Boyle, 556 U.S. at 951. Thus, it is simply no longer true, if it ever was, that a plaintiff must
allege a clear distinction between the enterprise and its members' "predicate acts."
The "enterprise" among the Defendants, Brian Cummings, and Boaz Ramon is their
association to establish websites, post messages and videos on internet venues, transmit e-mails,
and distribute fliers for the express purpose of extorting millions of dollars from jewelers like
Plaintiff. See Doc. 13 at 75. Manookian is the central figure in this scheme. See Doc. 13 at 8.
The others all have roles which help further the common purpose of this scheme. See Doc. 13 at
PAGE 11 OF 16
2124, 39, 44, 46, 4950, 52, 53. Ramon's role is to contact and encourage the targeted
jewelers to contact Manookian for the purpose of negotiating "retaining" Manookian,
Cummings, and Cummings Manookian. See Doc. 13 at 24, 39, 44, 4950, 53. Cummings and
Cummings Manookian's roles are not as defined in Plaintiff's Complaint, which was prepared
without discovery, but it is clear that each plays an integral and necessary role in the scheme. See
Doc. 13 at 2122, 46.
Even assuming that some distinction is required, the distinction is clear enough from
Plaintiff's Complaint. Of course not every aspect of the enterprise consists of predicate acts. For
example, the enterprise also exists as an attorney-client relationship between the members. See
Doc. 13 at 9, 23, 53, 57. But Plaintiff's Complaint in this case alleges how the enterprise
incorporates and utilizes the predicate acts in violation of the Hobbs Act, the Travel Act, the
Tenn. Code 39-14-112, and the mail fraud and wire fraud statutes. See Doc. 13 at 8091.
Indeed, in discussing the structure of an association-in-fact, the Supreme Court observed that "a
group that does nothing but engage in extortion through old-fashioned, unsophisticated, and
brutal means may fall squarely within the statute's reach." Boyle, 556 U.S. at 948.
As such, Plaintiff has pled sufficient facts to establish an association-in-fact enterprise. A
clear distinction between the association and its predicate acts is not required for there to be a
properly pled RICO claim. The Supreme Court has explicitly recognized that proof of
racketeering activity and proof of the existence of an association-in-fact "may coalesce." Even if
such requirement were the case (which it is not), such a distinction has been established in the
First Amended Complaint. Thus, the Court should deny Defendants' motion to dismiss.
PAGE 12 OF 16
ii.
Defendant May Properly be a RICO Person as Well as Member of The

Association-In-Fact Enterprise.
Defendants' argument that Manookian cannot be a RICO person and a member of the
association-in-fact is similarly misplaced. A RICO "person" is the defendant, while a RICO
enterprise can be either a legal entity or an association-in-fact. Crowe v. Henry, 43 F.3d 198, 204
(5th Cir. 1995).
Plaintiff's Complaint alleges each of the two theories of enterprise: (1) a legal entity
being the law firm Cummings Manookian; and alternatively, (2) an association-in-fact comprised
of Cummings Manookian, Ramon, Cummings, and Manookian. See Doc. 13 at 71, 75. With
respect to both forms of enterprise, Manookian is the RICO "person." Id.
Under the first theory, Cummings Manookian is the properly pled legal entity enterprise.
See Doc. 13 at 73. It is the corrupt organization through which is operated and managed by
Manookian through a pattern of racketeering activity. Id.
Under the second theory, the enterprise is an association-in-fact enterprise, of which
Manookian is properly pled to be a member of. See Doc. 13 at 75. There is no requirement that
Manookian as a RICO person not also be a member of this association-in-fact.
The Fifth Circuit, in St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 447 (5th Cir.
2000), has held that "[a]lthough a defendant may not be both a person and an enterprise, a
defendant may be both a person and a part of an enterprise" (emphasis added); see also U.S. v.
Fairchild, 189 F.3d 769, 777 (8th Cir. 1999) ("A collective entity is something more than the
members of which it is comprised"). The court went on to explain the common sense reasoning
for such a holding: "[o]therwise, an individual member of a collective enterprise, such as an
association-in-fact, could not be prosecuted for violating 1962(c)." See Williamson, 224 F.3d at
441.
PAGE 13 OF 16
Here, under the legal entity claim, Manookian is separate from the entity Cummings
Manookian. The pleading standard for the RICO person/enterprise distinction has thus been met.
Id.
With respect to the association-in-fact claim, the "collective entity is more than the
members of which it is comprised." See id. at 447; Fairchild, 189 F.3d at 777. Naming
Manookian as a RICO person with respect to the association-in-fact enterprise does not
constitute Manookian "associat[ing] with himself," but rather that he is associating with a group
which he is a part of. Put another way, Manookian singularly does not constitute the association
of Cummings Manookian, Ramon, Cummings, and Manookian. To hold otherwise, would
"significantly undermine, if not thwart, the goals of RICO." See Fairchild, 189 F.3d at 777.
Plaintiff has properly pled Manookian as both a RICO person and as a member of the
enterprise under the association-in-fact theory. Established precedent dictates that pleading such
is sufficient and proper. Given this, coupled with the fact that there is no requirement that there
be a bright line distinction between an association-in-fact and its racketeering activitythis
Court should deny Defendants' motion to dismiss the RICO claim.
III.
CONCLUSION AND PRAYER
WHEREFORE, for the reasons set forth above, Plaintiff respectfully asks the Court to
deny Defendants' Motion to Dismiss and for such other and further relief in law and in equity as
Plaintiff is justly entitled.
PAGE 14 OF 16
Respectfully submitted,
GODWIN PC
/s/ Donald E. Godwin
Donald E. Godwin
(Lead Attorney)
W. Ira Bowman
Stefanie M. McGregor
Roxanne Hajikhani
Alex S. Cleeter
DGodwin@GodwinLaw.com
IBowman@GodwinLaw.com
SMcGregor@GodwinLaw.com
RHajikhani@GodwinLaw.com
ACleeter@GodwinLaw.com
1201 Elm Street
Suite 1700
Dallas, Texas 75270
Tel: 214.939.4412
Fax: 214.939.4803
SETTLEPOU
Braden M. Wayne
State Bar. No. 24075247
bwayne@settlepou.com
3333 Lee Parkway
Eighth Floor
Dallas, Texas 75219
Tel: 214.520.3300
Fax: 214.526.4145
ATTORNEYS FOR PLAINTIFF
THE DIAMOND DOCTOR
PAGE 15 OF 16
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on May 9, 2016, a true and correct copy of
Plaintiff's Response to Motion to Dismiss was served on all counsel of record via the Court's
ECF system and email.
/s/ W. Ira Bowman
W. Ira Bowman

2773689 v1-25723/0001 PLEADINGS
PAGE 16 OF 16

Blank's Response To Motion To Dismiss

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Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 1 of 16 PageID #: 700

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 4:16-CV-94

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

ATTORNEYS FOR PLAINTIFF

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 2 of 16 PageID #: 701

TO THE HONORABLE COURT:

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 3 of 16 PageID #: 702

Standard for Fed. R. Civ. P. 12(b)(6) Motion to Dismiss.

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 4 of 16 PageID #: 703

The Court Should Deny Defendants' Rule 12(b)(6) Motion to Dismiss

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 5 of 16 PageID #: 704

An affirmative defense such as privilege is not properly asserted in a Rule 12(b)(6)

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 6 of 16 PageID #: 705

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 7 of 16 PageID #: 706

In Kelley Witherspoons, the defendant's counterclaim was dismissed because the

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 8 of 16 PageID #: 707

Plaintiff's First Amended Complaint asserts facts that repudiate the

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 9 of 16 PageID #: 708

The Court Should Deny Defendants' 12(B)(6) Motion To Dismiss Plaintiff's

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 10 of 16 PageID #: 709

There is no requirement that Plaintiff must allege existence of an

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 11 of 16 PageID #: 710

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 12 of 16 PageID #: 711

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 13 of 16 PageID #: 712

Defendant May Properly be a RICO Person as Well as Member of The

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 14 of 16 PageID #: 713

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 15 of 16 PageID #: 714

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Case 4:16-cv-00094-ALM Document 26 Filed 05/09/16 Page 16 of 16 PageID #: 715

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS

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