Pending before the Court are Defendants' motions to dismiss Plaintiffs' Fourth Amended Complaint for failure to state a ,9claim upon which relief may be granted, under Federal Rules of Civil Procedure 12(b)(6). All are opposed.
In 1993, Mortenson visited mountains near K-2 in Pakistan. Some years later, he and Relin coauthored Three Cups of Tea as an account of Mortenson's humanitarian efforts in Pakistan. Penguin published the book in 2006. A follow-up book, Stones Into Schools, written by Mortenson, was published by Penguin in 2009. Penguin marketed both books as "nonfiction." Central Asia Institute ("CAl"), a nonprofit Delaware corporation, headquartered in Montana, allegedly expended significant sums o f money to finance the writing, publishing and sales of the Books. Plaintiffs claim that Mortenson transferred funds from the book sales to MC Consulting, Inc. ("MC"), a Montana corporation asserted to be owned and controlled by Mortenson.
Plaintiffs contend they purchased one or more of the Books for approximately $15 each. They claim that the Books should not be categorized as nonfiction, as a number of misstatements relating to their contents have surfaced, and that Mortenson, Relin, MC, CAl, and Penguin entered into a fraudulent scheme to falsely portray Mortenson as a hero in order to boost book sales.
PLEADING AND PROCEDURAL HISTORY
On May 5, 2011, a class action complaint alleging fraud, deceit, breach of contract, RICO violations, and unjust enrichment was brought against Mortenson and CAI. An amended complaint was filed six days later, which added Penguin as a Defendant and Dan Donovan as a Plaintiff. Negligent misrepresentation claims were also added. The alleged RICO violations were removed.s Plaintiffs amended the complaint again on June 17, 20II, removing Jean Price as a Plaintiff, removing CAl as a Defendant, and adding Relin as a Defendant. Plaintiffs' Third Amended Complaint, filed July 27, 2011, asserted breach of contract, breach of implied contract, fraud, deceit, unjust enrichment, negligent misrepresentations by Penguin and Relin, liability by Penguin as principal, punitive damages, unjust enrichment by MC Consulting, for an accounting, for injunctive relief, and class action allegations. In early August 20II, Mortenson, MC, Penguin, and Relin filed motions to dismiss. Plaintiffs responded on August 31, 20II. On January
12, 2012, the Court allowed Plaintiffs to file the current pleading, a Fourth Amended Complaint.1 This pleading, inter alia, reinstated the claimed RICO violations and again named CAl as a Defendant. Motions to dismiss were renewed.
No class certification motion under Rule 23(c)(1 )(A) has been filed. In the absence of such motion and in the interests ofjudicial economy, the Court has detennined it appropriate to address and resolve the pending motions to dismiss.
Hearing on the motions was held on April 18, 2012. The matter is ripe for decision.