Travelers Personal Insurance Company v. Electrostim Medical Services, Inc. — Entry #60: MEMORANDUM & ORDER

Case 1:24-cv-08138-MKB-MMH                  Document 60            Filed 09/24/26   Page 1 of 51 PageID #:
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 UNITED STATES DISTRICT COURT
 EASTERN DISTRICT OF NEW YORK
 ---------------------------------------------------------------
 TRAVELERS PERSONAL INSURANCE
 COMPANY, ST. PAUL FIRE AND MARINE
 INSURANCE COMPANY, ST. PAUL MERCURY                                       MEMORANDUM & ORDER
 INSURANCE COMPANY, THE CHARTER OAK                                        24-CV-8138 (MKB)
 FIRE INSURANCE COMPANY, THE PHOENIX
 INSURANCE COMPANY, THE TRAVELERS
 HOME AND MARINE INSURANCE COMPANY,
 THE TRAVELERS INDEMNITY COMPANY,
 THE TRAVELERS INDEMNITY COMPANY OF
 AMERICA, THE TRAVELERS INDEMNITY
 COMPANY OF CONNECTICUT, TRAVELERS
 CASUALTY AND SURETY COMPANY,
 TRAVELERS CASUALTY INSURANCE
 COMPANY OF AMERICA, TRAVELERS
 PERSONAL SECURITY INSURANCE
 COMPANY, TRAVELERS PROPERTY
 CASUALTY COMPANY OF AMERICA, THE
 STANDARD FIRE INSURANCE COMPANY,
 THE AUTOMOBILE INSURANCE COMPANY
 OF HARTFORD, CONNECTICUT, UNITED
 STATES FIDELITY AND GUARANTY
 COMPANY, FARMINGTON CASUALTY
 COMPANY, FIDELITY AND GUARANTY
 INSURANCE UNDERWRITERS, INC., TRAVCO
 INSURANCE COMPANY, TRAVELERS
 CASUALTY COMPANY OF CONNECTICUT,
 AND TRAVELERS PROPERTY CASUALTY
 INSURANCE COMPANY,

                                     Plaintiffs,

                            v.

 ELECTROSTIM MEDICAL SERVICES, INC.,
 MARIO GARCIA, JR., DEAN MULEY,
 GRETCHEN DACEY-ZAVALIANOS, and
 YORLAN ALFONSO,

                                     Defendants.
 ---------------------------------------------------------------


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 MARGO K. BRODIE, United States District Judge:

         Plaintiff Travelers 1 commenced the above-captioned action on November 22, 2024,

 against Defendants Electrostim Medical Services, Inc. (“EMSI”) and Mario Garcia, Jr., Dean

 Muley, Gretchen Dacey-Zavalianos, Yorlan Alfonso, and Rossana Cielo (the “Individual

 Defendants”). (Compl., Docket Entry No. 1.) Travelers alleged that Defendants wrongfully

 obtained New York State no-fault and workers’ compensation insurance reimbursements for

 durable medical equipment (“DME”) and related supplies and asserts claims under the Racketeer

 Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(c)–(d) (“RICO”) and fraud

 pursuant to New York law, (id. ¶¶ 1, 546–613). Travelers sought declaratory and injunctive

 relief, (id. ¶¶ 614–24). 2


         1
           The Court refers to Plaintiffs, collectively, as “Travelers.” Plaintiffs name in the
 Complaint Travelers Personal Insurance Company, St. Paul Fire and Marine Insurance
 Company, St. Paul Mercury Insurance Company, The Charter Oak Fire Insurance Company, The
 Phoenix Insurance Company, The Travelers Home and Marine Insurance Company, The
 Travelers Indemnity Company, The Travelers Indemnity Company of America, The Travelers
 Indemnity Company of Connecticut, Travelers Casualty and Surety Company, Travelers
 Casualty Insurance Company of America, Travelers Personal Security Insurance Company,
 Travelers Property Casualty Company of America, The Standard Fire Insurance Company, The
 Automobile Insurance Company of Hartford, Connecticut, and United States Fidelity and
 Guaranty Company.
         In the Amended Complaint, Plaintiffs also name Farmington Casualty Company, Fidelity
 and Guaranty Insurance Underwriters, Inc., TravCo Insurance Company, Travelers Casualty
 Company of Connecticut, and Travelers Property Casualty Insurance Company.
         The Court adopts the parties’ convention of referring to Plaintiffs collectively as
 Travelers because, according to Plaintiffs’ corporate disclosure statement, Travelers’ companies
 are all wholly-owned subsidiaries of the Travelers Companies, Inc. or one of its subsidiaries.
 (Corp. Disclosure Statement, Docket Entry No. 40.)
         2
           On February 3, 2025, Defendants moved to dismiss the Complaint for failure to state a
 claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Travelers opposed
 the motion. (Defs.’ Mot. to Dismiss, Docket Entry No. 22.) On September 13, 2025, the Court:
 (1) granted Defendants’ motion to dismiss the RICO claims against Defendants and the common
 law fraud claim against the Individual Defendants; (2) denied Defendants’ motion to dismiss the
 Complaint on the basis of insufficient licensure allegations, where Travelers alleged that EMSI
 was ineligible to collect payments because it did not possess the required licensing; and (3)


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        On November 10, 2025, Travelers filed an Amended Complaint 3 asserting: (1) that the

 Individual Defendants committed a substantive RICO violation under 18 U.S.C. § 1962(c)

 through the “EMSI Enterprise,” (Am. Compl. ¶¶ 1072–89, Docket Entry No. 39); (2) that the

 Individual Defendants engaged in a RICO conspiracy under 18 U.S.C. § 1962(d) through the

 EMSI Enterprise, (id. ¶¶ 1090–96); (3) common law fraud claims against Defendants pursuant to

 New York law, (id. ¶¶ 1097–1106), Pennsylvania law, (id. ¶¶ 1107–16), Florida law, (id. ¶¶ 1117–

 27), and Georgia law, (id. ¶¶ 1128–38); and (4) a claim for declaratory relief under the Declaratory

 Judgment Act, 28 U.S.C. §§ 2201–02, (id. ¶¶ 1139–49). 4 Defendants move to dismiss the

 Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of

 Civil Procedure, and Travelers opposes the motion. 5 For the reasons explained below, the Court

 grants in part and denies in part Defendants’ motion to dismiss and: (1) dismisses the RICO

 claims against Defendants; (2) dismisses the common law fraud claims against the Individual


 granted Travelers leave to file an amended complaint (the “September 2025 Decision”). (Sep.
 2025 Decision, Docket Entry No. 38.) Travelers Pers. Ins. Co. v. Electrostim Med. Servs., Inc.,
 No. 24-CV-8138, 2025 WL 2637674 (E.D.N.Y. Sep. 13, 2025).
        3
            Travelers did not include Rossana Cielo as a defendant in the Amended Complaint.
        4
           Travelers asserts that the Court has subject-matter jurisdiction pursuant to (1) 28 U.S.C.
 § 1331 based on federal question jurisdiction and (2) 28 U.S.C. § 1332 based on diversity of
 citizenship. (Am. Compl. ¶ 91.) See, e.g., Powell v. Maldonado, No. 23-CV-826, 2025 WL
 20087, at *1 (E.D.N.Y. Jan. 2, 2025) (“The amended complaint, like the original complaint,
 invokes both federal-question and diversity jurisdiction.”), aff’d, No. 25-259, 2026 WL 904987
 (2d Cir. Apr. 2, 2026) (summary order); Gargano v. Univ. of Vermont Med. Ctr., No. 23-CV-13,
 2023 WL 10669008, at *1 (D. Vt. July 17, 2023) (stating that, in a RICO action, the plaintiff
 asserted both federal question and diversity jurisdiction).
        5
           (Defs.’ Not. of Mot. to Dismiss (“Defs.’ Mot.”), Docket Entry No. 50; Defs.’ Mem. in
 Supp. of Defs.’ Mot. (“Defs.’ Mem.”), appended to Defs.’ Mot., Docket Entry No. 50-1; Pls.’
 Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”), Docket Entry No. 52; Defs.’ Reply in Supp. of Defs.’ Mot.
 (“Defs.’ Reply”), Docket Entry No. 53.)


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 Defendants and (3) denies Defendants’ motion to dismiss the state-law fraud claims against

 EMSI.

    I.   Background

             a.   Factual background

                    i.   The parties

         “Travelers underwrites automobile insurance in the State of New York.” 6 (Am. Compl. ¶

 183.) Each of Travelers’ companies is duly organized and exists under the laws of the State of


         6
            The Court assumes the truth of the factual allegations in the Amended Complaint for
 the purpose of deciding Defendants’ motion. The Court also considers documents attached to
 and incorporated by reference in the Amended Complaint and takes judicial notice of relevant
 state laws, state regulations, case law, and public documents that are not subject to dispute. See
 Fed. R. Evid. 201(b) (permitting judicial notice of facts “not subject to reasonable dispute”);
 Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012) (stating that “relevant matters of public
 record” are susceptible to judicial notice). In deciding a Rule 12(b)(6) motion, “the district court
 is normally required to look only to the allegations on the face of the complaint,” but “may
 consider documents that ‘are attached to the complaint,’ ‘incorporated in it by reference,’
 ‘integral’ to the complaint, or the proper subject of judicial notice.” United States v. Strock, 982
 F.3d 51, 63 (2d Cir. 2020) (quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)); see
 United States ex. rel. Henig v. Amazon.com, Inc., 177 F.4th 156, 163 (2d Cir. 2026) (same);
 Pearson v. Gesner, 125 F.4th 400, 406 (2d Cir. 2025) (same); Lynch v. Dep’t of Ed. of N.Y., 822
 F. Supp. 3d 258, 275 (E.D.N.Y. 2026) (“On a motion to dismiss, courts are constrained in their
 review to the four corners of the complaint, the documents attached thereto, those that are
 integral to the complaint or incorporated by reference, and those facts or documents of which the
 court can take judicial notice.” (internal quotation marks omitted)). In addition, “[i]t is well
 established that a district court may rely on matters of public record in deciding a motion to
 dismiss under Rule 12(b)(6), including case law and statutes.” Pani v. Empire Blue Cross Blue
 Shield, 152 F.3d 67, 75 (2d Cir. 1998); see Hudson Shore Assocs. Ltd. P’ship v. New York, 139
 F.4th 99, 104 n.1 (2d Cir. 2025) (citations omitted); Goe v. Zucker, 43 F.4th 19, 29 (2d Cir.
 2022) (first citing Alaska v. Am. Can Co., 358 U.S. 224, 226–27 (1959); and then citing
 Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d Cir. 2003)); Williams v. N.Y.C. Hous. Auth.,
 816 F. App’x 532, 534 (2d Cir. 2020) (district courts “may consider public records that may be
 judicially noticed in ruling on motions”); Perkins v. Solomon, 821 F. Supp. 3d 395, 406
 (E.D.N.Y. 2026) (noting the court may take judicial notice of public records in deciding a motion
 to dismiss, although the “documents subject to judicial notice cannot be used at the motion to
 dismiss stage for the truth of the matters asserted therein,” “only . . . to establish the fact that
 they, or the proceedings they reflect, exist” (internal quotation marks omitted)).


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 Connecticut, 7 has its principal place of business in Hartford, Connecticut, and is authorized to

 conduct business in New York, Florida, Georgia, and Pennsylvania. (Id. ¶¶ 38–40.) Travelers’

 allegations pertain to claims submitted for various state no-fault or workers compensation

 insurance benefits for its insureds who lived in New York or were covered by automobile or

 workers’ compensation insurance policies that Travelers issued during the relevant period. (Id. ¶

 94.) EMSI 8 is a registered Florida corporation with its principal place of business in Tampa,

 Florida, that received authorization to conduct business in the State of New York on or about

 May 14, 2012, and remains active in New York as a foreign business corporation delivering

 DME to patients residing in the state, including the five boroughs of New York City. (Id. ¶¶ 2,

 41–42; 95–96.) Garcia founded EMSI in 1995 and is the chairman and owner. (Id. ¶¶ 48, 260.)

 He “compiled a team of managers to participate in the operation and management of EMSI,

 including, but not limited to, the executive team comprised of Muley, Dacey-Zavalianos, and

 Alfonso.” (Id. ¶ 933.)

        On or about March 25, 2022, EMSI enrolled as a Medicaid Managed Care network

 provider in New York State’s Medicaid Program. (Id. ¶ 97.) “EMSI specifically targeted New

 York as part of a nationwide market,” (id. ¶ 99), and “reported in its Medicare application that

 [thirty-five percent] of its business is derived from New York” and “that it only does business

 through the U.S. mail,” (id. ¶¶ 100, 1037).


        7
          The only exception is Fidelity and Guaranty Insurance Underwriters, Inc., which is
 duly organized and exists under the laws of the State of Wisconsin. (Am. Compl. ¶ 39.)
        8
           EMSI is owned by Garcia and is operated by the Individual Defendants, all of whom
 reside in and are citizens of Florida. (Id. ¶¶ 1, 47, 60, 69, 80.)


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                   ii.   Defendants’ devices and recommended usage

        EMSI “manufacturers interferential stimulation and transcutaneous electrical nerve

 stimulation (‘TENS’) devices and neuromuscular electrical stimulation (‘NMES’) devices

 (collectively, ‘TENS/NMES Devices’) and provides these devices and related supplies and

 services to patients throughout numerous states, including New York.” (Id. ¶ 2; see id. ¶¶ 263–

 75.)

        The manuals for the EMSI’s TENS/NMES Devices caution patients that “[f]ederal law

 requires a prescription from [their] physician before use of th[e] product” and, consistent with

 this warning, the standard of care and clinical guidelines warn that the devices “should be used

 only under the continued supervision of a physician.” (Id. ¶¶ 318, 321 (emphasis omitted).)

 Medical providers prescribe TENS/NMES Devices “for pain relief or to treat muscle weakness.”

 (Id. ¶ 285.) Ordinarily, the use of a TENS/NMES Device “start[s] with a [thirty-day] trial with

 documentation of efficacy justifying continued use.” (Id. ¶ 296.)

        After receiving an initial TENS/NMES device, patients are not provided additional

 supplies automatically or on a subscription basis; rather, patients are given supplies only when

 they need or want them. (Id. ¶ 284.) Patients are also “provided with replenishment items, such

 as chargers or lead wires, only when the equipment is damaged or worn out and there is a

 documented need for the replacement.” (Id. ¶ 288.) The “prescribing provider must provide

 regular supervision and identify the metrics to warrant ongoing use of the TENS/NMES unit”

 and continued use “should be based on objective documented efficacy and functional

 improvement.” (Id. ¶¶ 307–08.)

                  iii. Alleged fraudulent scheme

        Travelers allege that EMSI through the Individual Defendants submitted hundreds of

 false and fraudulent claims to Travelers for “unnecessary, medically worthless, and fraudulently


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 charged DME” and replenishment supplies “purportedly provided to patients” whose employers

 were Travelers insured or who were eligible for coverage under automobile insurance policies.

 (Id. ¶¶ 1, 13.) According to Travelers, EMSI dispensed these items to patients who neither

 needed nor wanted them, automatically replenished supplies that were not legitimately

 prescribed, and routinely billed for TENS Devices far beyond the period of reasonable and

 necessary use. (Id. ¶¶ 292–583.) Travelers contends that EMSI’s bills were not eligible for

 reimbursement because they were: (1) fraudulently prescribed; and/or (2) improperly billed.

 (See generally Am. Compl.)

        Travelers also alleges that EMSI’s “executive team,” of which the Individual Defendants

 are members, created the “Letter of Medical Necessity” (“LOMN”) form to justify the

 fraudulently prescribed or improperly billed supplies. (Id. ¶ 107.) The “LOMNs created by the

 executive team were the central mechanism of the Defendants’ fraudulent scheme” because it

 was “designed to prescribe the devices and related accessories to Travelers’ claimants, in

 perpetuity, thereby enabling the Defendants to bill Travelers indefinitely through EMSI.” (Id. ¶

 7.) To implement this scheme, Travelers alleges that the executive team “established the

 mandatory policy whereby the LOMN functioned as the requisite prescription that EMSI

 demanded prior to shipping any devices to claimants,” (id. ¶ 110), and created and enforced an

 internal protocol, “which mandated that their sales force (who are non-healthcare professionals)

 would unlawfully complete the LOMN,” (id. ¶ 9).

   II. Discussion

           a.   Standard of review

        In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

 Procedure, a court “must ‘construe [the complaint] liberally, accepting all factual allegations

 therein as true and drawing all reasonable inferences in the plaintiff[’s] favor.’” Singh v. Deloitte


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 LLP, 123 F.4th 88, 93 (2d Cir. 2024) (quoting Sacerdote v. N.Y. Univ., 9 F.4th 95, 106–07 (2d

 Cir. 2021)); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)

 (“[The Second Circuit] review[s] de novo a district court’s dismissal of a complaint pursuant to

 Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the

 complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” (quoting

 Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002))). A complaint must plead

 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

 550 U.S. 544, 570 (2007); Yerkyn v. Yakovlevich, 164 F.4th 224, 231 (2d Cir. 2026) (quoting

 id.); see Miller v. McDonald, 180 F.4th 420, 426 (2d Cir. 2026) (quoting Ashcroft v. Iqbal, 556

 U.S. 662, 678 (2009)). A claim is plausible “when the plaintiff pleads factual content that allows

 the court to draw the reasonable inference that the defendant is liable for the misconduct

 alleged.” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011)

 (quoting Iqbal, 556 U.S. at 678); see Knapp v. Barclays PLC, 171 F.4th 166, 170 (2d Cir. 2026)

 (quoting same); Carruthers v. Colton, 153 F.4th 169, 179 (2d Cir. 2025) (quoting same); Roe v.

 St. John’s Univ., 91 F.4th 643, 651 (2d Cir. 2024) (quoting Matson, 631 F.3d at 63); see also

 Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 544 (2d Cir. 2024) (“[T]he plaintiff’s

 allegations must enable the court to reasonably infer that the defendant is liable for the alleged

 misconduct.” (citing Iqbal, 556 U.S. at 678)), cert. denied, 146 S. Ct. 880 (2025); Emilee

 Carpenter, LLC v. James, 107 F.4th 92, 99 (2d Cir. 2024) (“[S]urviv[ing] a motion to dismiss . . .

 requires ‘factual content that allows the court to draw the reasonable inference that the defendant

 is liable for the misconduct alleged.’” (quoting same)). Although all allegations contained in the

 complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556

 U.S. at 678; see Roe, 91 F.4th at 651 (“Although all factual allegations contained in the


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 complaint are assumed to be true, this rule does not extend ‘to legal conclusions. Threadbare

 recitals of the elements of a cause of action, supported by mere conclusory statements, do not

 suffice.’” (quoting id.)).

            b.   Some of Travelers’ claims are time-barred, but equitable tolling applies

         Defendants argue first, that the Court should dismiss the Amended Complaint because

 Travelers’ claims are based in substantial part on conduct occurring outside the statute of

 limitations. In support, Defendants contend that some of Travelers’ claims are time-barred, as

 some of the challenged bills are dated after the limitations period expired. (Defs.’ Mem. 30

 (citing Allstate Ins. Co. v. CPM Med Supply Inc., No. 23-CV-5864, 2024 WL 3949968

 (E.D.N.Y. Aug. 27, 2024)).) Second, Defendants contend that equitable tolling is inapplicable

 because Travelers does not “offer particularized factual allegations showing when [Travelers]

 discovered the wrong (or was reasonably diligent) and concrete acts of concealment by

 [D]efendants.” (Id.) In support, Defendants argue that Travelers’ evidence of fraudulent

 concealment includes claims submitted by EMSI “in the ordinary course of its business as a

 DME supplier fulfilling patient prescriptions from their healthcare provider.” (Defs.’ Reply 12.)

         Travelers argues first, that its claims are not barred because the “bulk of damages

 claimed” fall within the statute of limitations. (Pls.’ Opp’n 33.) Second, Travelers contends that

 its RICO claims are not barred because equitable tolling applies. (Id. at 31–34.) In support,

 Travelers argues that Defendants engaged in fraudulent concealment by: (1) refusing to comply

 with Travelers’ verification requests; (2) submitting fraudulent sworn statements in other

 litigation actions asserting similar claims; (3) removing Garcia’s name from bills submitted to

 Travelers “to conceal his ongoing involvement in the scheme”; (4) “directly lying to Travelers

 about EMSI’s battery sales”; (5) providing inaccurate Rule 16 initial disclosures in this action;

 and (6) “providing incomplete discovery responses and withholding documents in this


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  litigation.” (Id. at 32.) Third, Travelers argues that it would be inappropriate for the Court to

  dismiss claims as barred by the statute of limitations on a motion to dismiss because Travelers

  has sufficiently pleaded fraudulent concealment and therefore “there is ‘at least a triable issue of

  fact as to whether fraudulent concealment tolled the statute of limitations’ [and] the case should

  be heard on the merits.” (Id. at 33 (quoting Demchik v. Gen. Motors Corp., 821 F.2d 102, 106

  (2d Cir. 1987)).)

                      i.   Statute of limitations

         “Civil RICO claims are subject to a four-year statute of limitations, which begins to run

  ‘when the plaintiff discovers or should have discovered the RICO injury.’” Nastasi & Assocs.,

  Inc. v. Bloomberg, L.P., No. 24-545, 2026 WL 2149800, at *2 (2d Cir. July 27, 2026) (summary

  order) (first citing Rotella v. Wood, 528 U.S. 549, 552 (2000); and then quoting In re Merrill

  Lynch Ltd. P’ships Litig., 154 F.3d 56, 58 (2d Cir. 1998)); Zappin v. Cooper, No. 23-671, 2024

  WL 3250475, at *1 (2d Cir. July 1, 2024) (summary order) (“Civil RICO claims are subject to a

  four-year statute of limitations.” (citing Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 361 (2d

  Cir. 2013))); Cohen, 711 F.3d at 361 (stating that a civil RICO claim must be brought within four

  years of accrual, which occurs “when the plaintiff discovers or should have discovered the RICO

  injury” (first quoting In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d at 58; and then citing

  Rotella, 528 U.S. at 555)).

         Under New York law, a claim “based upon fraud” must be commenced either “six years

  from the date the cause of action accrued or two years from the time the plaintiff or the person

  under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have

  discovered it,” whichever is greater. N.Y. C.P.L.R. § 213(8); Meyer v. Seidel, 89 F.4th 117,

  130–31 (2d Cir. 2023) (quoting id.).


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           Under Florida law, a claim for fraud must be brought within four years. Fla. Stat. §

  95.11(3)(i); Otero v. Newrez LLC, No. 21-12990, 2022 WL 3155414, at *1 (11th Cir. Aug. 8,

  2022) (per curiam) (citing id.); Horn v. Est. of Camacho, 817 F. App’x 872, 875 (11th Cir. 2020)

  (citing same); Weatherly v. Pershing, L.L.C., 945 F.3d 915, 919 (5th Cir. 2019) (citing same). A

  claim for fraud begins to run “from the time the facts giving rise to the cause of action were

  discovered or should have been discovered with the exercise of due diligence.” Fla. Stat. §

  95.031(2)(a); Otero, 2022 WL 3155414, at *1 (quoting id.); Horn, 817 F. App’x at 875 (citing

  same).

           Under Pennsylvania law, a claim for fraud must be brought within two years. 42 Pa.

  Cons. Stat. § 5524(7); Prime Energy & Chem. LLC v. Tucker Arensberg, P.C., No. 23-2169,

  2024 WL 4441492, at *2 (3d Cir. Oct. 8, 2024) (citing id.). A claim for fraud begins to run when

  a plaintiff “learned or should have learned, through the exercise of due diligence, that they have a

  cause of action.” LabMD Inc. v. Boback, 47 F.4th 164, 182 (3d Cir. 2022) (quoting Beauty Time,

  Inc. v. VU Skin Sys., Inc., 118 F.3d 140, 148 (3d Cir. 1997)); Prime Energy & Chem., 2024 WL

  4441492, at *2 (“The two-year statute of limitations starts to run as soon as ‘the cause of action

  accrued[.]’” (alteration in original) (quoting 42 Pa. Cons. Stat. § 5502(a))).

           Under Georgia law, a claim for fraud must be brought within four years. O.C.G.A. § 9-3-

  31; Everson v. Coca-Cola Co., No. 24-11058, 2024 WL 5116429, at *2 (11th Cir. Dec. 16, 2024)

  (per curiam) (citing id.), cert. denied, 146 S. Ct. 96 (2025), reh’g denied, 146 S. Ct. 910 (2025);

  McCurley v. Wells Fargo Bank N.A., No. 24-10243, 2024 WL 3858914, at *2 (11th Cir. Aug. 19,

  2024) (per curiam) (citing same), cert. denied, 145 S. Ct. 1175 (2025).

           The Court finds that many of Travelers’ claims were filed after the expiration of the

  statutes of limitations. For the RICO claims based on conduct that took place before November


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  22, 2020, the claims are barred by the statute of limitations. For fraud claims: (1) under New

  York law, claims before November 22, 2018 are barred by the statute of limitations; (2) under

  Florida law, claims before November 22, 2020 are barred by the statute of limitations; (3) under

  Pennsylvania law, claims before November 22, 2022 are barred by the statute of limitations; and

  (4) under Georgia law, claims before November 22, 2020 are barred by the statute of limitations.

  Travelers acknowledges some of its claims fall outside the statutes of limitations in its

  opposition, stating Travelers’ “bulk of damages claimed” fall within the statute of limitations, but

  not all. (Pls.’ Opp’n 33 (emphasis added).) Travelers also claims that the doctrine of equitable

  tolling tolls the statutes of limitations for the expired civil RICO claims.

                    ii.   Equitable tolling

         The doctrine of equitable tolling “allows a district court to toll the statute of limitations.”

  Polanco v. U.S. Drug Enf’t Admin., 158 F.3d 647, 655 (2d Cir. 1998); see Doe v. United States,

  76 F.4th 64, 71 (2d Cir. 2023) (“Equitable tolling is a doctrine that permits courts to extend a

  statute of limitations on a case-by-case basis to prevent inequity.” (quoting Warren v. Garvin,

  219 F.3d 111, 113 (2d Cir. 2000))). For equitable tolling to apply, a litigant must demonstrate

  “[1] that some extraordinary circumstance stood in her way and [2] that she has been pursuing

  her rights diligently.” Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 142 (2d Cir. 2025)

  (alteration and internal quotation marks omitted) (quoting Doe, 76 F.4th at 71), cert. denied, 146

  S. Ct. 1501 (2026); Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017) (quoting

  Mottahedeh v. United States, 794 F.3d 347, 352 (2d Cir. 2015)); see also Doe, 76 F.4th at 71

  (noting that a party seeking equitable tolling “must demonstrate . . . first, that some extraordinary

  circumstance stood in [her] way and second that [she] has been pursuing [her] rights diligently”

  (alterations in original) (citation and internal quotation marks omitted)); Koch v. Christie’s Int’l

  PLC, 699 F.3d 141, 157 (2d Cir. 2012) (noting that a showing of reasonable diligence throughout


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  the period a plaintiff seeks to toll and that some extraordinary circumstance prevented a plaintiff

  from filing his action in a timely manner are prerequisites for equitable tolling); Polanco, 158

  F.3d at 655 (“To avail himself of this doctrine, the plaintiff must show that he ‘pass[ed] with

  reasonable diligence through the period [he] seeks to have tolled.’” (alterations in original)

  (quoting Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996))). “Equitable tolling is a rare

  remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of

  affairs.” Watson, 865 F.3d at 133 (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)); see

  Clark v. Hanley, 89 F.4th 78, 92 (2d Cir. 2023) (“In ‘rare and exceptional circumstances,’ the

  statute of limitations governing a § 1983 claim may be subject to equitable tolling, ‘where

  necessary to prevent unfairness to a plaintiff who is not at fault for her lateness in filing.’” (first

  quoting Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005); and then quoting Gonzalez v.

  Hasty, 651 F.3d 318, 322 (2d Cir. 2011))); Jones v. City of New York, 846 F. App’x 22, 24 (2d

  Cir. 2021) (stating that the statute of limitations for a Section 1983 claim may be equitably tolled

  “only in rare and exceptional circumstances” (internal quotation marks omitted)); McPartlan-

  Hurson v. Westchester Cmty. Coll., 804 F. App’x 41, 43–44 (2d Cir. 2020) (rejecting the party’s

  late filing because equitable tolling of exhaustion time applies only “in rare and exceptional

  circumstances, in which a party is prevented in some extraordinary way from exercising his

  rights” (quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)));

  Berrios v. Henri, No. 18-CV-4194, 2021 WL 6197052, at *3 (E.D.N.Y. Dec. 30, 2021) (quoting

  same). “The law prohibits a judge from exercising her discretion where these two elements are

  missing.” Doe, 76 F.4th at 71.

          Courts will equitably toll statutes of limitations for fraudulent concealment if: “(1) the

  defendant concealed the existence of the cause of action from the plaintiff; (2) the concealment


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  prevented plaintiff’s discovery of the claim within the limitations period; and (3) the plaintiff’s

  ignorance of the claim did not result from a lack of diligence.” Saint-Jean, 129 F.4th at 143

  (citing New York v. Hendrickson Bros., 840 F.2d 1065, 1083 (2d Cir. 1988)); Fromageot v. Britt,

  No. 21-CV-1165, 2025 WL 3470473, at *8 (D. Conn. Dec. 3, 2025) (quoting id.), appeal

  dismissed, No. 26-26 (2d Cir. June 18, 2026); see Koch, 699 F.3d at 157 (stating that a plaintiff

  must show: “(1) the defendant wrongfully concealed material facts relating to defendant’s

  wrongdoing; (2) the concealment prevented plaintiff’s ‘discovery of the nature of the claim

  within the limitations period’; and (3) plaintiff exercised due diligence in pursuing the discovery

  of the claim during the period plaintiff seeks to have tolled” (quoting Corcoran v. N.Y. Power

  Auth., 202 F.3d 530, 543 (2d Cir. 1999))). “A plaintiff can prove concealment by showing

  ‘either that the defendant took affirmative steps to prevent the plaintiff’s discovery of his claim

  or injury or that the wrong itself was of such a nature as to be self-concealing.’” Saint-Jean, 129

  F.4th at 143 (quoting Hendrickson Bros., 840 F.2d at 1083); see SL-x IP S.à.r.l. v. Merrill Lynch,

  Pierce, Fenner & Smith Inc., Nos. 21-2697, 21-2699, 2023 WL 2620041, at *3 (2d Cir. Mar. 24,

  2023) (summary order) (quoting same); In re Google Digit. Advert. Antitrust Litig., 721 F. Supp.

  3d 230, 271 (S.D.N.Y. 2024) (quoting same).

         Rule 9(b) of the Federal Rules of Civil Procedure requires that a party alleging fraud or

  fraudulent concealment “must state with particularity the circumstances constituting fraud or

  mistake.” Fed. R. Civ. P. 9(b); Spencer v. Lab’y Corp. of Am. Holdings, No. 19-CV-4927, 2024

  WL 3675855, at *15 (E.D.N.Y. Aug. 6, 2024) (“A claim of fraudulent concealment must be pled

  with particularity, in accordance with the heightened pleading standards of Fed. R. Civ. P. 9(b).”

  (quoting Hinds Cty. v. Wachovia Bank N.A., 620 F. Supp. 2d 499, 520 (S.D.N.Y. 2009))), aff’d,

  No. 24-2363, 2025 WL 2779015 (2d Cir. Sep. 30, 2025) (summary order). “Generalized or


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  conclusory allegations of fraudulent concealment are insufficient to toll a statute of limitations.”

  Singh v. Wells, 445 F. App’x 373, 378 (2d Cir. 2011) (citing Armstrong v. McAlpin, 699 F.2d 79,

  90 (2d Cir. 1983)). The “[Second] Circuit has explicitly clarified that ‘fraudulent concealment is

  not essential to equitable tolling,’” meaning, the application of the doctrine of equitable tolling is

  not limited to causes of fraudulent concealment. Saint-Jean, 129 F.4th at 143 (quoting Valdez ex

  rel. Donely v. United States, 518 F.3d 173, 182 (2d Cir. 2008)).

         Travelers plausibly pleads the required elements of fraudulent concealment by alleging

  that Defendants (1) concealed the alleged fraudulent billing from Travelers, (2) prevented

  Travelers from discovering the fraud within the limitations period by verifying each claim

  pursuant to New York Insurance Law § 403(d) 9 and, therefore, Travelers’ reliance on these

  verified claims were reasonable, and (3) Travelers exercised due diligence in attempting to

  discover the fraud. See Saint-Jean, 129 F.4th at 142.

                             1.   Concealment of the alleged scheme

         Travelers lists various actions by Defendants of the conduct that concealed the alleged

  scheme including failing to comply with verifications requests, removing Garcia’s name from

  bills submitted to Travelers “to conceal his ongoing involvement in the scheme,” and lying to


         9
             New York Insurance Law § 403(d) provides:
                 All applications for commercial insurance, individual, group
                 or blanket accident and health insurance and all claim forms
                 . . . contain a notice in a form approved by the superintendent
                 that clearly states in substance the following: “Any person
                 who knowingly and with intent to defraud any insurance
                 company or other person files an application for insurance
                 or statement of claim containing any materially false
                 information, or conceals for the purpose of misleading,
                 information concerning any fact material thereto, commits a
                 fraudulent insurance act, which is a crime, and shall also be
                 subject to a civil penalty not to exceed five thousand dollars
                 and the stated value of the claim for each such violation.”


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  Travelers regarding whether EMSI sold batteries separately. (See Pls.’ Opp’n 32; Am. Compl.

  ¶¶ 1045–61.)

         Defendants’ main argument against fraudulent concealment is that Travelers fails to

  identify “specifics regarding why these particular claims are fraudulent” and cites to broad

  allegations in the Amended Complaint that could be part of a routine billing dispute. (Defs.’

  Reply 12 (citing Pls.’ Opp’n 32–34).) However, Defendants ignore the specific information

  provided by Travelers, including that the alleged fraud was not discovered until just before the

  filing of the Complaint in this action on November 22, 2024, and the allegations that Defendants

  submitted materially false information. (See Pls.’ Opp’n 32.) Defendants contend that this

  evidence does not constitute fraudulent intent because it is no more than claims submitted by

  EMSI “in the ordinary course of its business.” (Defs.’ Reply 12.) However, Travelers’

  allegations of fraud are not unreasonable because the billing statements allegedly contained

  materially false information not visible on the face of the billing statements. See Gov’t Emps.

  Ins. Co. v. Landow, No. 21-CV-1440, 2022 WL 939717, at *7 (E.D.N.Y. Mar. 29, 2022) (finding

  it “is reasonable that [the p]laintiffs were not immediately aware of the fraudulent bills because

  the insurance claims were allegedly intended to conceal the fraudulent activity”); see also Gov’t

  Emps. Ins. Co. v. Erlikh, No. 16-CV-7120, 2019 WL 1487576, at *6 (E.D.N.Y. Feb. 28, 2019)

  (finding the knowledge element of fraud was met because GEICO alleged in detail that the

  defendants submitted fraudulent claims as part of a scheme “to bill GEICO and the New York

  automobile insurance industry for millions of dollars in no-fault insurance benefits they were

  never entitled to receive” (internal citation omitted)); Gov’t Emps. Ins. Co. v. Ajudua, No. 15-

  CV-5199, 2018 WL 7252961, at *5 (E.D.N.Y. Dec. 18, 2018) (finding that the plaintiffs

  sufficiently pleaded the knowledge and intent to defraud elements of fraud by alleging “in detail


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  and with specificity, that [the d]efendants not only knew that they were submitting fraudulent

  claims for medical services to GEICO, but that they acted intentionally, as part of a calculated

  scheme to profit from payment of the claims, and that they actively misrepresented and

  concealed information to prevent plaintiffs from discovering that the claims were fraudulent”),

  report and recommendation adopted sub nom. Gov’t Emps. Ins. Co. v. Lurie, 2019 WL 276201

  (E.D.N.Y. Jan. 22, 2019).

         Second, Travelers sufficiently pleads that EMSI concealed the fraud because EMSI

  verified each claim according to N.Y. Insurance Law § 403 and the submitted bills certifying that

  EMSI was eligible for reimbursement, and this prevented their discovery during the statutory

  period. (See Am. Compl. ¶¶ 1062–70.) Courts have found reasonable insurance companies’

  reliance on submitted bills that purport to be in accordance with the law. See Allstate Ins. Co. v.

  Strobeck, No. 24-CV-1698, 2024 WL 5245543, at *6 (E.D.N.Y. Dec. 17, 2024) (finding

  reasonable Allstate’s reliance on the claims submitted by the defendants); State Farm Mut. Auto.

  Ins. Co. v. A to Z Med. Care P.C., No. 17-CV-4443, 2019 WL 2489901, at *4 (E.D.N.Y. June 7,

  2019) (finding that the “plaintiffs sufficiently allege[d] reasonable reliance by explaining State

  Farm’s duties under the no-fault laws, and by claiming that State Farm made payments in

  reliance on the fact that the bills appeared, on their face, to have been submitted in accordance

  with the law”); Allstate Ins. Co. v. Williams, No. 13-CV-2893, 2015 WL 5560543, at *4

  (E.D.N.Y. Aug. 28, 2015) (holding that the plaintiff alleged common law fraud and observing

  that “insurers justifiably may rely on claims forms submitted in support of reimbursement”),

  report and recommendation adopted, 2015 WL 5560546 (E.D.N.Y. Sep. 21, 2015).

         Third, Travelers sufficiently pleads that they exercised due diligence in search of

  fraudulent conduct by continuously inquiring into the billing statements and requesting


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  verification. (See Am. Compl. ¶¶ 1053, 1059–61.) As a result, the equitable tolling doctrine of

  fraudulent concealment tolls the limitations period for Travelers’ RICO claims. In addition,

  because Travelers’ common-law fraud claims arise from the same facts as its RICO claims, the

  equitable tolling doctrine of fraudulent concealment also tolls the limitations period for

  Travelers’ common-law fraud claims. See Sita v. Kurn Hattin Homes for Child., No. 25-CV-

  239, 2026 WL 323272, at *4 (D. Vt. Feb. 6, 2026) (stating that equitable tolling applies to all of

  the plaintiff’s claims where the claims arise from the same material facts); Corns v. Good

  Samaritan Hosp. Med. Ctr., No. 23-CV-93, 2024 WL 4008244, at *6 n.10 (E.D.N.Y. Aug. 30,

  2024) (stating that “the equitable tolling issues appear to be identical for all of [the plaintiff’s]

  claims” where her claims arise out of the “factual circumstances”).

             c.   Substantive RICO and RICO conspiracy claims

          Travelers alleges (1) a substantive RICO claim and (2) a RICO conspiracy claim against

  the Individual Defendants. As discussed below, the Court finds that Travelers fails to plead its

  RICO claims, and the Court dismisses the RICO claims against the Individual Defendants. In

  addition, because the Court dismisses the substantive RICO claim, the Court also dismisses the

  RICO conspiracy claim.

          “RICO creates a private cause of action for ‘[a]ny person injured in his business or

  property by reason of a violation of section 1962’ of RICO.” Empire Merchs., LLC v. Reliable

  Churchill LLLP, 902 F.3d 132, 139 (2d Cir. 2018) (alteration in original) (quoting 18 U.S.C. §

  1964(c)); see also State Farm Mut. Auto. Ins. Co. v. Tri-Borough NY Med. Prac. P.C., 120 F.4th

  59, 95 (2d Cir. 2024) (similar); Laydon v. Coöperatieve Rabobank U.A., 55 F.4th 86, 100 (2d

  Cir. 2022) (similar); Petroff Amshen LLP v. Alfa Rehab PT PC, No. 21-847, 2022 WL 480475, at

  *2 (2d Cir. Feb. 17, 2022) (summary order) (similar). The statute “imposes liability on

  individuals working for an ‘enterprise’ that commits certain predicate crimes that amount to a


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  ‘pattern of racketeering activity.’” Reich v. Lopez, 858 F.3d 55, 59 (2d Cir. 2017) (quoting 18

  U.S.C. §§ 1962, 1964); see Yousefzadeh v. Johnson & Johnson Consumer Inc., 184 F.4th 130,

  155 (2d Cir. 2026) (quoting 18 U.S.C. §§ 1962(c)–(d)); Tri-Borough NY Med., 120 F.4th at 95

  (“RICO makes it unlawful, inter alia, ‘for any person employed by or associated with any

  enterprise . . . 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’ or to conspire to

  do so.” (alteration in original) (quoting same)).

          To establish a substantive RICO claim, a plaintiff must plead “(1) conduct (2) of an

  enterprise (3) through a pattern (4) of racketeering activity.” Yousefzadeh, 184 F.4th at 155

  (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)); Lundy v. Cath. Health Sys. of

  Long Island Inc., 711 F.3d 106, 119 (2d Cir. 2013) (“To establish a civil RICO claim, a plaintiff

  must allege ‘(1) conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering activity,’

  as well as ‘injury to business or property as a result of the RICO violation.’” (quoting Anatian v.

  Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999))); see Curtis v. Greenberg, Nos. 22-

  252, 22-346, 2023 WL 6324324, at *1 (2d Cir. Sep. 29, 2023) (summary order) (quoting Lundy,

  711 F.3d at 119); Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020) (“To state a claim of a

  substantive RICO violation under [section] 1962(c), a plaintiff must allege, among other things,

  two or more predicate acts ‘constituting a pattern’ of ‘racketeering activity.’” (quoting Williams

  v. Affinion Grp., LLC, 889 F.3d 116, 124 (2d Cir. 2018))); Williams, 889 F.3d at 123–24 (“To

  sustain a RICO claim under 18 U.S.C. § 1962(c), a plaintiff must show ‘(1) that the defendant (2)

  through the commission of two or more acts (3) constituting a pattern (4) of racketeering activity

  (5) directly or indirectly invests in, or maintains an[] interest in, or participates in (6) an

  enterprise (7) the activities of which affect interstate or foreign commerce.’” (quoting Moss v.


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  Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983))). “The Supreme Court has interpreted [the]

  phrase [‘pattern of racketeering activity’] to require both that the RICO predicates pose a threat

  of continuous criminal activity and that they be related to each other.” Reich, 858 F.3d at 59

  (citing H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)); see United States v. Torres, 124

  F.4th 84, 95 (2d Cir. 2024) (“[The Second Circuit] ha[s] recognized that the predicate acts

  constituting the pattern of racketeering activity ‘must be related and amount to or pose a threat of

  continued criminal activity.’” (quoting United States v. Burden, 600 F.3d 204, 216 (2d Cir.

  2010))), cert. denied, 146 S. Ct. 161 (2025), and cert. denied sub nom. Owen v. United States,

  146 S. Ct. 162 (2025). In addition, “a plaintiff must also establish that the underlying § 1962

  RICO violation was ‘the proximate cause of his injury.’” Empire Merchs., 902 F.3d at 140

  (quoting UFCW Loc. 1776 v. Eli Lilly & Co., 620 F.3d 121, 132 (2d Cir. 2010)); see also

  Laydon, 55 F.4th at 100 (“To establish a RICO claim, a plaintiff must show: (1) a violation of the

  RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was

  caused by the violation of [section] 1962.” (quoting Cruz v. FXDirectDealer, LLC, 720 F.3d 115,

  120 (2d Cir. 2013))); Com. Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380

  (2d Cir. 2001) (“[A] plaintiff must plead (1) the defendant’s violation of [section] 1962, (2) an

  injury to the plaintiff’s business or property, and (3) causation of the injury by the defendant’s

  violation.”).

          “The RICO statute defines ‘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.’” D’Addario v. D’Addario, 901 F.3d 80, 100 (2d Cir. 2018) (quoting

  18 U.S.C. § 1961(4)); see Curtis, 2023 WL 6324324, at *1 (quoting same). A RICO enterprise

  can consist of “‘a group of persons associated together for a common purpose of engaging in a


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  course of conduct,’ the existence of which is proven ‘by evidence of an ongoing organization,

  formal or informal, and by evidence that the various associates function as a continuing unit.’”

  First Cap. Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004) (quoting

  United States v. Turkette, 452 U.S. 576, 583 (1981)); O’Neill v. NYU Langone Hosps., No. 23-

  CV-4679, 2024 WL 4216501, at *8 (E.D.N.Y. Sep. 17, 2024) (quoting id.), motion for relief

  from judgment denied sub nom. O’Neill v. NYU Langone Hosp. Long Island, 2025 WL 3002035

  (E.D.N.Y. Oct. 27, 2025), appeal filed, 25-2978 (2d Cir. Nov. 24, 2025); King v. Wang, No. 14-

  CV-7694, 2020 WL 6875403, at *18 (S.D.N.Y. Nov. 23, 2020) (quoting same). “[T]o establish

  liability under § 1962(c) one must allege and prove the existence of two distinct entities: (1) a

  ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different

  name.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001). “A corporate

  entity can be sued as a RICO ‘person’ or named as a RICO ‘enterprise,’ but the same entity

  cannot be both the RICO person and the enterprise.” U1it4less, Inc. v. Fedex Corp., 871 F.3d

  199, 205 (2d Cir. 2017) (first quoting 18 U.S.C. §§ 1961(3), (4); and then citing Anatian, 193

  F.3d at 89); see Lynn v. McCormick, 760 F. App’x 51, 53 (2d Cir. 2019) (quoting id.); Cruz, 720

  F.3d at 120 (“As we have long recognized, the plain language and purpose of the [RICO] statute

  contemplate that a person violates the statute by conducting an enterprise through a pattern of

  criminality. It thus follows that a corporate person cannot violate the statute by corrupting

  itself.” (citing Bennett v. U.S. Tr. Co. of N.Y., 770 F.2d 308, 315 (2d Cir. 1985))); see also First

  Cap. Asset Mgt., 385 F.3d at 173 (“The [RICO] enterprise must be separate from the pattern of

  racketeering activity and distinct from the person conducting the affairs of the enterprise.”

  (citations omitted)). A “‘RICO enterprise that consists merely of a corporate defendant

  associated with its own employees or agents carrying on the regular affairs of the defendant,’ that


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  consists, in other words, of a corporate defendant ‘corrupting itself,’” is insufficient to meet this

  distinctiveness requirement. U1it4less, 871 F.3d at 206 (first quoting Riverwoods Chappaqua

  Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir. 1994); and then quoting Cruz,

  720 F.3d at 120); see Cruz, 720 F.3d at 121 (“[The Second Circuit] ha[s] long since rejected the

  idea that a RICO enterprise may consist ‘merely of a corporate defendant associated with its own

  employees or agents carrying on the regular affairs of the defendant’ . . . .” (quoting Riverwoods

  Chappaqua Corp., 30 F.3d at 344)); Premium Merch. Funding 26, LLC v. Sonata Constr. LLC,

  No. 25-CV-1086, 2026 WL 867165, at *12 n.7 (S.D.N.Y. Mar. 30, 2026) (stating that an

  “enterprise” cannot be established where the allegation is that the individual defendant “was in

  an enterprise consisting only of itself or its own employees”); Palomino Master Ltd. v. Credit

  Suisse Grp. AG, No. 25-CV-8264, 2026 WL 848394, at *11 (S.D.N.Y. Mar. 26, 2026) (“Where

  alleged RICO actors ‘operate within a unified corporate structure’ and are ‘guided by a single

  corporate consciousness,’ the enterprise is not distinct from the persons.” (quoting U1it4less, 871

  F.3d at 206–09)); Spig Indus., LLC v. Novac Equities LLC, No. 23-CV-8667, 2025 WL 3643955,

  at *11 (S.D.N.Y. Oct. 22, 2025) (“[I]f a corporate defendant can be liable for participating in an

  enterprise comprised only of its agents — even if those agents are separately incorporated legal

  entities — then RICO liability will attach to any act of corporate wrong-doing and the statute’s

  distinctness requirement will be rendered meaningless.” (quoting U1it4less, 871 F.3d at 205–

  06)), report and recommendation adopted sub nom. Spig Indus., LLC v. Advantage Platform

  Servs., Inc., 2025 WL 3642396 (S.D.N.Y. Dec. 15, 2025).

         In addition to alleging an “enterprise,” to sustain a civil RICO claim, a plaintiff must

  plausibly allege a pattern of racketeering activity, which consists of (1) at least two predicate

  acts, “the last of which occurred within ten years . . . after the commission of a prior act of


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  racketeering activity,” that (2) “amount to or pose a threat of continued criminal activity.” Grace

  Int’l Assembly of God v. Festa, 797 F. App’x 603, 605 (2d Cir. 2019) (alteration in original) (first

  quoting 18 U.S.C. § 1961(5); and then quoting Cofacrèdit, S.A. v. Windsor Plumbing Supply Co.,

  187 F.3d 229, 242 (2d Cir. 1999)); see Sullivan v. UBS AG, 149 F.4th 206, 222 (2d Cir. 2025)

  (stating that a plaintiff “need[s] to allege at least two predicate acts of wire fraud”); One World,

  LLC v. Onoufriadis, No. 21-374, 2021 WL 4452070, at *2 (2d Cir. Sep. 29, 2021) (summary

  order) (quoting 18 U.S.C. § 1961(5)); Butcher, 975 F.3d at 241 (“To state a claim of a

  substantive RICO violation under [section] 1962(c), a plaintiff must allege, among other things,

  two or more predicate acts ‘constituting a pattern’ of ‘racketeering activity.’” (quoting Williams,

  889 F.3d at 124)). “[A]llegations of frivolous, fraudulent, or baseless litigation activities —

  without more — cannot constitute a RICO predicate act.” Tri-Borough NY Med., 120 F.4th at 98

  n.14 (quoting Kim v. Kimm, 884 F.3d 98, 104 (2d Cir. 2018)); see Corsini v. Reich, No. 25-2710,

  2026 WL 1397229, at *1 (2d Cir. May 19, 2026) (summary order) (quoting same); Dees v. Knox,

  No. 24-1574, 2025 WL 485019, at *2 (2d Cir. Feb. 13, 2025) (summary order) (quoting same),

  cert. denied, 146 S. Ct. 201 (2025).

         Mail fraud is a RICO predicate act. See 18 U.S.C. § 1961(1) (setting forth a list of

  predicate acts, including mail fraud); Aghaeepour v. N. Leasing Sys., Inc., No. 25-548, 2026 WL

  1183399, at *2 (2d Cir. Apr. 29, 2026) (summary order) (stating that predicate acts include mail

  fraud and wire fraud); United States v. Capers, 20 F.4th 105, 121 (2d Cir. 2021) (stating that

  RICO covers mail fraud); Bascuñán v. Elsaca, 927 F.3d 108, 120–21 (2d Cir. 2019) (explaining

  mail fraud is a predicate act for civil RICO claims). “The essential elements of mail and wire

  fraud are (1) a scheme to defraud, (2) money or property as the object of the scheme, and (3) use

  of the mails or wires to further the scheme.” United States v. Runner, 143 F.4th 146, 154 (2d


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  Cir. 2025) (quoting United States v. Weaver, 860 F.3d 90, 94 (2d Cir. 2017)); Bascuñán, 927

  F.3d at 122 (“There are three ‘essential elements’ to mail or wire fraud: ‘(1) a scheme to defraud,

  (2) money or property as the object of the scheme, and (3) use of the mails or wires to further the

  scheme.’” (quoting same)); see Gov. Emps. Ins. Co. v. Infinity Health Prods., Ltd., No. 10-CV-

  5611, 2012 WL 1427796, at *7 (E.D.N.Y. Apr. 6, 2012) (“Pleading mail fraud requires: (1) the

  existence of a scheme to defraud; (2) the use of United States mails . . . to further that scheme;

  and (3) evidence that defendants did so with a specific intent to defraud.”), report and

  recommendation adopted, 2012 WL 1432213 (E.D.N.Y. Apr. 25, 2012); see also Red Rock

  Sourcing LLC v. JGX LLC, No. 21-CV-1054, 2024 WL 1243325, at *14 (S.D.N.Y. Mar. 22,

  2024) (explaining that the first element, a scheme to defraud, requires proof of “(i) the existence

  of a scheme to defraud, (ii) the requisite scienter (or fraudulent intent) on the part of the

  defendant, and (iii) the materiality of the misrepresentations” (quoting United States v. Autuori,

  212 F.3d 105, 115 (2d Cir. 2000))). While “the mail or wire communications themselves need

  not contain a false statement . . . a plaintiff still needs to allege a material misrepresentation as

  part of the defendants’ scheme to fraud to state a violation of section 1341 or 1343.” Williams,

  889 F.3d at 125; see Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 488 (2d Cir. 2014)

  (“Although the mailed or wired communication need not itself be fraudulent . . . it must . . . be

  made in furtherance of the fraudulent scheme.”); Bayshore Cap. Advisors, LLC v. Creative

  Wealth Media Fin. Corp., 667 F. Supp. 3d 83, 125 (S.D.N.Y. 2023) (quoting Crawford, 758 F.3d

  at 488).

          Moreover, “mail fraud schemes do not require a defendant to know about the specific

  mailing” but require a showing that the defendant “acted with knowledge that the use of the

  mails will follow in the ordinary course of business, or that such use can reasonably be foreseen,


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  even though not actually intended.” United States v. Rutigliano, 790 F.3d 389, 397 (2d Cir.

  2015) (quoting United States v. Tocco, 135 F.3d 116, 124 (2d Cir. 1998)); see Red Rock

  Sourcing, 2024 WL 1243325, at *14 (stating that under the mail and wire fraud statutes “a

  plaintiff need not allege ‘that the defendants have personally used the mails or wires; it is

  sufficient that a defendant causes the use of the mails or wires’” (quoting Sobel v. Fleck, No. 03-

  CV-1041, 2003 WL 22839799, at *6 (S.D.N.Y. Dec. 1, 2003), report and recommendation

  adopted, 2004 WL 48877 (S.D.N.Y. Jan. 8. 2004))); Allstate Ins. Co. v. New Cent. Pharm. Inc.,

  No. 19-CV-5702, 2021 WL 7830141, at *8 (E.D.N.Y. Aug. 13, 2021) (“To properly allege the

  ‘use of interstate mails,’ the plaintiff need not allege that each defendant sent a piece of mail;

  rather, ‘it need only be shown that [each defendant] acted with knowledge that the use of the

  mails will follow in the ordinary course of business, or that such use can reasonably be foreseen,

  even though not actually intended.’” (alteration in original) (quoting Allstate Ins. Co. v. Nazarov,

  No. 11-CV-6187, 2015 WL 5774459, at *12 (E.D.N.Y. Sep. 30, 2015))), report and

  recommendation adopted, Order Adopting Report and Recommendation (E.D.N.Y. Mar. 24,

  2022).

           Allegations of mail fraud are governed by Rule 9(b) of the Federal Rules of Civil

  Procedure and must be pled with particularity. See Sullivan, 149 F.4th at 221 (“[The Second

  Circuit] ha[s] long held that RICO claims premised on predicate acts that sound in fraud,

  including wire fraud, must satisfy the heightened pleading standards of Rule 9(b).”); Williams,

  889 F.3d at 124 (“The elements of mail and wire fraud must be pled with particularity.”); Babb v.

  Capitalsource, Inc., 588 F. App’x 66, 68 (2d Cir. 2015) (discussing pleading requirements under

  RICO for fraudulent predicate acts); Curtis v. L. Offs. of David M. Bushman, Esq., 443 F. App’x

  582, 584 (2d Cir. 2011) (same); Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 185


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  (2d Cir. 2008) (same); Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290–91 (2d Cir. 2006) (same).

  As the Second Circuit has explained, “Rule 9(b) serves several purposes. ‘[I]t is designed to

  provide a defendant with fair notice of a plaintiff’s claim, to safeguard a defendant’s reputation

  from improvident charges of wrongdoing, and to protect a defendant against the institution of a

  strike suit.’” Miller v. U.S. ex rel. Miller, 110 F.4th 533, 544 (2d Cir. 2024) (alteration in

  original) (quoting O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991)).

  “It also discourages plaintiffs from using the litigation process to discover hypothetical

  wrongdoing.” Id. (citing Madonna v. United States, 878 F.2d 62, 66 (2d Cir. 1989)). “‘Bare-

  bones allegations’ therefore do not suffice.” McNaughton v. Young Living Essential Oils, LC, 67

  F.4th 89, 99 (2d Cir. 2023) (quoting Lundy, 711 F.3d at 119).

         To meet the heightened Rule 9(b) pleading standard, “[a]llegations of predicate [mail

  and] wire fraud acts should state the contents of the communications, who was involved, [and]

  where and when they took place, and [should] explain why they were fraudulent.” Sullivan, 149

  F.4th at 221 (second alteration added) (quoting Spool, 520 F.3d at 185); Farag v. XYZ Two Way

  Radio Serv., Inc., No. 22-1795, 2023 WL 2770219, at *1 (2d Cir. Apr. 4, 2023) (summary order)

  (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1176 (2d Cir. 1993)); Williams, 889 F.3d

  at 124 (citing Mills, 12 F.3d at 1175); Spool, 520 F.3d at 185 (quoting Mills, 12 F.3d at 1176);

  see also Purchase Real Est. Grp. v. Jones, No. 05-CV-10859, 2010 WL 3377504, at *8

  (S.D.N.Y. Aug. 24, 2010) (“Under Rule 9(b), allegations of fraud in the RICO context must be

  made with particularity and must ‘specify the statements [plaintiffs] claim [ ] were false or

  misleading, give particulars as to the respect in which plaintiffs contend the statements were

  fraudulent, state when and where the statements were made, and identify those responsible for


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  the statements.’” (alterations in original) (quoting Moore v. PaineWebber, Inc., 189 F.3d 165,

  172–73 (2d Cir. 1999))).

         Where multiple defendants accused of mail or wire fraud, plaintiffs “need to allege at

  least two predicate acts of wire fraud ‘as to each individual defendant.’” Sullivan, 149 F.4th at

  222 (quoting DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001)); Herrera v. Comme des

  Garcons, Ltd., 84 F.4th 110, 117 (2d Cir. 2023) (“[A] complaint alleging fraud committed by

  multiple defendants ‘should inform each defendant of the nature of his alleged participation in

  the fraud.’” (quoting DiVittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d Cir.

  1987))); DeFalco, 244 F.3d at 306 (“The requirements of section 1962(c) must be established as

  to each individual defendant.”); Mondelus v. August W. Dev., LLC, No. 19-CV-4832, 2022 WL

  182363, at *7 (E.D.N.Y. Jan. 20, 2022) (“[W]here . . . ‘multiple defendants are accused of mail

  and wire fraud, the plaintiff must particularize and prove each defendant’s participation in the

  fraud as well as each defendant’s involvement in the two necessary predicate acts.’” (quoting

  GWG MCA Cap., Inc. v. Nulook Cap., LLC, No. 17-CV-1724, 2020 WL 10508196, at *8

  (E.D.N.Y. June 28, 2020))); J.T. v. de Blasio, 500 F. Supp. 3d 137, 170 (S.D.N.Y. 2020)

  (“Where multiple defendants are accused of mail or wire fraud, plaintiffs must plead [with]

  particularity as to each defendant . . . .” (quoting U.S. Fire Ins. Co. v. United Limousine Serv.,

  Inc., 303 F. Supp. 2d 432, 443–44 (S.D.N.Y. 2004))), aff’d in part, appeal dismissed in part sub

  nom. K.M. v. Adams, No. 20-4128, 2022 WL 4352040 (2d Cir. Aug. 31, 2022) (summary order);

  United Limousine Serv., 303 F. Supp. 2d at 444 (quoting Allen v. New World Coffee, Inc., No.

  00-CV-2610, 2001 WL 293683, at *4 (S.D.N.Y. Mar. 27, 2001)).

         A plaintiff need not allege that each defendant itself made a misrepresentation, but rather

  must allege sufficient facts showing each defendant’s knowing or intentional participation in the


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  alleged scheme to defraud. See Edmondson v. Raniere, No. 20-CV-485, 2025 WL 2590385, at

  *5 n.9 (E.D.N.Y. Sep. 8, 2025) (“But when a RICO plaintiff alleges a mail or wire fraud

  predicate, she need not allege that a given defendant made the challenged misstatement, so long

  as she alleges sufficient facts showing that defendant’s ‘knowing or intentional participation’ in a

  scheme to defraud.” (quoting S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629,

  633 (2d Cir. 1996))); Hagigi v. Yukhananov, No. 23-CV-5549, 2024 WL 4028333, at *4

  (E.D.N.Y. Sep. 3, 2024) (“Plaintiffs need not allege that each defendant itself made a

  misrepresentation, but rather must allege sufficient facts showing each defendant’s knowing or

  intentional participation in the alleged scheme to defraud.”); Paul Hobbs Imps. Inc. v. Verity

  Wines LLC, No. 21-CV-10597, 2023 WL 374120, at *4 (S.D.N.Y. Jan. 24, 2023) (“[A]

  complaint adequately alleges each defendant’s commission of mail or wire fraud ‘as long as [it]

  allege[s] sufficient facts showing each defendant’s knowing or intentional participation in the

  alleged scheme to defraud.’” (second and third alterations in original) (quoting Williams v.

  Equitable Acceptance Corp., 443 F. Supp. 3d 480, 492 (S.D.N.Y. 2020))); see also Red Rock

  Sourcing, 2024 WL 1243325, at *15 (“‘Although Rule 9(b) permits knowledge to be averred

  generally, plaintiffs must still plead the events which they claim give rise to an inference of

  knowledge.’ A sufficient factual basis for fraudulent intent may consist of allegations as to who

  ‘possessed . . . knowledge’ of the fraud, ‘when and how they obtained [that] knowledge,’ or even

  why they ‘should have known’ of the fraud.” (alterations in original) (quoting Devaney v.

  Chester, 813 F.2d 566, 568 (2d Cir. 1987))).

         “To establish the existence of a RICO conspiracy, a plaintiff must prove ‘the existence of

  an agreement to violate RICO’s substantive provisions.’” Cofacrèdit, 187 F.3d at 244 (quoting

  United States v. Sessa, 125 F.3d 68, 71 (2d Cir. 1997)); see 18 U.S.C. § 1962(d) (stating that a


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  person violates the statute if he or she “conspire[s] to violate any of the” RICO provisions); Jordan

  v. Tilzer, No. 21-1938, 2022 WL 16544335, at *2 (2d Cir. Oct. 31, 2022) (summary order)

  (quoting Sessa, 125 F.3d at 71); Onoufriadis, 2021 WL 4452070, at *1 (quoting Williams, 889

  F.3d at 124); Morin v. Trupin, 835 F. Supp. 126, 136 (S.D.N.Y. 1993) (stating that to establish a

  RICO civil conspiracy claim, “[t]he complaint [ ] must specifically allege [ ] an agreement” to

  “commit predicate acts”). Furthermore, a plaintiff must demonstrate that a defendant “understood

  the scope of the enterprise and knowingly agreed to further its affairs through the commission of

  various offenses.” Morin, 835 F. Supp. at 136 (quoting Morin v. Trupin, 747 F. Supp. 1051, 1067

  (S.D.N.Y. 1990)); see Infinity Health Prods., 2012 WL 1427796, at *7 (citing id.). This

  requirement may be satisfied by showing that a defendant “possessed knowledge of only the

  general contours of the conspiracy.” Gov’t Emps. Ins. Co. v. Hollis Med. Care, P.C., No. 10-CV-

  4341, 2011 WL 5507426, at *10 (E.D.N.Y. Nov. 9, 2011) (quoting United States v. Applins, 637

  F.3d 59, 75 (2d Cir. 2011)).

         When a plaintiff relies on the same factual predicate to plead both a substantive RICO

  violation and conspiracy claim, if the plaintiff fails to adequately plead a substantive RICO

  claim, the plaintiff cannot adequately plead a conspiracy claim. See Curtis, 2023 WL 6324324,

  at *2 (explaining that a “RICO conspiracy claims fail when the ‘alleged conspiracy involved an

  agreement to commit the same substantive RICO violations the [c]ourt has deemed insufficiently

  pled’” (alteration omitted) (quoting Williams, 889 F.3d at 126)); Zamora v. FIT Int’l Grp. Corp.,

  834 F. App’x 622, 626 (2d Cir. 2020) (“[The p]laintiffs’ failure to state a claim for a substantive

  RICO violation is fatal to their RICO conspiracy claim under § 1962(d), given that [the

  p]laintiffs rely on the same factual predicate to plead both the substantive RICO violation and the

  conspiracy claim . . . .”); Smulley v. Fed. Hous. Fin. Agency, 754 F. App’x 18, 24 (2d Cir. 2018)


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  (holding, in the federal RICO context, that “without a sufficiently pleaded substantive RICO

  violation under 18 U.S.C. § 1962(c), [a] conspiracy claim under 18 U.S.C. § 1962(d) fails as

  well”); Lynn, 760 F. App’x at 54 (“[The plaintiffs’] failure to plead a substantive RICO claim

  under 18 U.S.C. § 1962(c) necessarily defeats their conspiracy claim under 18 U.S.C. §

  1962(d).”); Williams, 889 F.3d at 126 (concluding that the plaintiffs’ RICO conspiracy claim

  fails where “[t]he alleged conspiracy involved an agreement to commit the same substantive

  RICO violations [the court] ha[s] deemed insufficiently pled, and the plaintiffs have not alleged

  any further acts that, if carried out, would have satisfied RICO’s requirement of a pattern of

  racketeering”). To plead a RICO conspiracy, “a plaintiff must allege ‘the existence of an

  agreement to violate RICO’s substantive provisions.’” Williams, 889 F.3d at 124 (quoting Sessa,

  125 F.3d at 71); Hubbuch v. Cap. One, N.A., No. 25-CV-406, 2025 WL 1983218, at *7

  (S.D.N.Y. June 11, 2025) (quoting Cofacrèdit, 187 F.3d at 244), report and recommendation

  adopted, 2025 WL 1934472 (S.D.N.Y. July 15, 2025); Nygård v. Bacon, No. 19-CV-1559, 2021

  WL 3721347, at *3 (S.D.N.Y. Aug. 20, 2021) (“If a complaint fails to state a substantive RICO

  claim, it also does not state a claim for RICO conspiracy.”).

                    i.   Substantive RICO claim

         Defendants argue that the Court should dismiss Travelers’ substantive RICO claim

  because it fails to plausibly allege a RICO claim, or allege it with the required specificity.

  (Defs.’ Mem. 22–28.) First, Defendants contend that Travelers fails to plead a cognizable RICO

  enterprise because it does not satisfy the “distinctness” requirement pursuant to RICO. (Id. at 7–

  12; Defs.’ Reply 4–6.) Second, Defendants argue that even if Travelers pleaded a cognizable

  RICO enterprise, its RICO claim fails to plead that the Individual Defendants personally

  committed a predict act under RICO. (Defs.’ Mem. 24–28.)


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         Travelers argues that it sufficiently states its substantive RICO claim. First, Travelers

  contends that it sufficiently satisfies the “distinctness” requirement. (Pls.’ Opp’n 20–22.)

  Second, Travelers argues that it sufficiently pleads the Individual Defendants’ conduct and

  participation in the fraudulent scheme. (Id. at 24–28.)

                            1.   Travelers has not sufficiently pleaded an enterprise

         Defendants argue that the Court should dismiss Travelers’ RICO claims because it fails

  to establish that EMSI is an enterprise, the first element of a RICO claim. In support, Defendants

  contend that Travelers’ allegations against the Individual Defendants describes “a business

  operating in a highly regulated industry and acting through its executives.” (Defs.’ Reply 5.)

  Defendants therefore argue that “the alleged pattern of alleged racketeering activity is not

  pleaded as being distinct from the alleged enterprise itself.” (Id. at 6.)

         Travelers argue that it sufficiently pleads a “legal-entity enterprise consisting of EMSI (a

  legitimate corporate entity), through which the Individual Defendants conducted racketeering

  activity.” (Pls.’ Opp’n 20.) In support, Travelers contends that “[w]here the alleged enterprise is

  a legal entity and the participant [d]efendants are distinct natural persons, as is the case in this

  matter, the distinctness requirement is easily satisfied.” (Id. at 22.)

         Travelers fails to establish an “enterprise.” Travelers argues that the RICO “enterprise”

  is EMSI and the RICO “persons” are the Individual Defendants, (see Pls.’ Opp’n 22), and alleges

  that the Individual Defendants “participated in the operation and management of the EMSI

  enterprise,” (Am. Compl. ¶ 44), “with the intent to bill Travelers (and other similarly-situated

  insurers) for false and fraudulent DME,” (Pls.’ Opp’n 13). Travelers fails to show that the RICO

  “enterprise,” EMSI, is sufficiently distinct from the RICO “person,” the Individual Defendants,

  because the Individual Defendants were acting within the scope of their corporate roles, and

  Travelers therefore fails to establish an enterprise. See Cruz, 720 F.3d at 120–21 (finding no


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  enterprise where the plaintiff alleged that that the RICO enterprise consisted, inter alia, of the

  company-defendant, its chief operating officer, and its managing director and corporate counsel,

  who carried out the regular affairs of the company-defendant); Palomino Master Ltd., 2026 WL

  848394, at *11–12 (finding no enterprise where the plaintiffs alleged “no association with any

  entity outside [the corporation-defendant], no structure separate from the corporation itself, and

  no purpose distinct from the corporation’s own business” because “[a] corporation acting

  together with its own officers and agents, within the scope of their corporate roles, does not

  constitute an enterprise separate from the corporation itself”); Orrego v. Pasternack Tilker

  Ziegler Walsh Stanton & Romano LLP, No. 23-CV-6507, 2026 WL 124813, at *4 (E.D.N.Y.

  Jan. 16, 2026) (finding no enterprise where the amended complaint names the company as a

  defendant and does not allege any other entity or group as an enterprise), appeal dismissed, No.

  25-2234, 2026 WL 1296235 (2d Cir. Apr. 24, 2026); Reca v. Flashdot Ltd., No. 24-CV-6316,

  2026 WL 82702, at *9 (S.D.N.Y. Jan. 12, 2026) (finding no enterprise where the plaintiffs failed

  to sufficiently allege that the defendants formed an enterprise separate and distinct from the

  corporation); Long v. Zhuang, No. 22-CV-1293, 2024 WL 4250308, at *10 (E.D.N.Y. Aug. 8,

  2024) (“[T]he defendants cannot be grouped together for the sole reason that they all allegedly

  had [involvement] in the alleged acts . . . [the p]laintiffs’ failure to distinguish between the

  enterprise and its alleged illegal acts is fatal to the RICO claims.” (first alteration in original)

  (citation omitted)), report and recommendation adopted, Order Adopting Report and

  Recommendation (E.D.N.Y. Sep. 16, 2024); cf. Premium Merch. Funding 26, 2026 WL 867165,

  at *12 (finding an enterprise where the corporation worked with another closely related entity to

  “engage[] in a coordinated scheme of fraudulent lending and unlawful debt collection”); Gov’t

  Emps. Ins. Co. v. J Flexible Corp., No. 25-CV-6700, 2026 WL 743292, at *7 (E.D.N.Y. Mar. 17,


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  2026) (finding an enterprise where the individual defendant “controlled the two [durable medical

  equipment] supplier defendants” that make up the enterprise); Allstate Ins. Co. v. Geykhman, No.

  24-CV-4580, 2025 WL 2576749, at *2, 8 (E.D.N.Y. Sep. 7, 2025) (finding an enterprise where

  the plaintiff alleged a “tripartite grouping[]” of defendants involving (1) “a network of

  fraudulently incorporated professional corporations,” (2) owned by licensed physical therapists

  who were (3) managed by non-licensed laypersons), report and recommendation adopted, Order

  Adopting Report and Recommendations (E.D.N.Y. Feb. 19, 2026).

         Travelers’ reliance on Cedric Kushner 10 to argue that it has “easily satisfied” the

  distinctness requirement, (see Pls.’ Opp’n 22 (quoting 533 U.S. at 161)), is unpersuasive because

  “the Supreme Court emphasized that its holding [in Cedric Kushner] was limited to the

  circumstances in which ‘a corporate employee unlawfully conducts the affairs of the corporation

  of which he is the sole owner — whether he conducts those affairs within the scope, or beyond

  the scope, of corporate authority.’” U1it4less, 871 F.3d at 207–08 (quoting Cedric Kushner, 533

  U.S. at 166). In other words, distinctness for the purposes of RICO can be satisfied when the

  RICO “person” is the “sole owner” of a corporation and the “enterprise” is the same corporation.

  See Cedric Kushner, 533 U.S. at 161. The Supreme Court’s analysis is inapplicable here

  because Travelers does not allege that the RICO “person” is only Garcia, the “sole owner” of

  EMSI. Instead, Travelers alleges that Garcia and the remaining Individual Defendants —


         10
             Cedric Kushner involved “a person who is the president and sole shareholder of a
  closely held corporation.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 160 (2001).
  The plaintiff alleged that (1) the defendant was the RICO “person” and (2) the defendant’s
  company was the RICO “enterprise,” for which the defendant was the president and sole
  shareholder. Id. The Supreme Court concluded that distinctness was satisfied where “a
  corporate employee unlawfully conducts the affairs of the corporation of which he is the sole
  owner — whether he conducts those affairs within the scope, or beyond the scope, of corporate
  authority.” Id. at 166.


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  Muley, Dacey-Zavalianos, and Alfonso — are the RICO “person[s].” Therefore, in alleging four

  RICO “persons,” of which only one is an owner of EMSI, Travelers fails to satisfy the

  distinctiveness requirement for the purposes of RICO because, as discussed above, distinctness

  cannot be satisfied when the enterprise consists of a corporation and its own agents acting within

  the scope of their corporate roles. See U1it4less, 871 F.3d at 206–09 (stating that an enterprise is

  not distinct from the persons where the alleged RICO persons “operate within a unified corporate

  structure” and are “guided by a single corporate consciousness” (quoting Cruz, 720 F.3d at

  121)); Palomino Master Ltd., 2026 WL 848394, at *11 (concluding that the plaintiffs failed to

  meet the distinctness requirement where the plaintiffs “allege no association with any entity

  outside [of the corporation-defendant], no structure separate from the corporation itself, and no

  purpose distinct from the corporation’s own business” because “even if an enterprise is distinct

  from the pattern of racketeering activity, a claim still fails if the enterprise is not distinct from the

  defendant ‘person’”); DarkPulse, Inc. v. EMA Fin., LLC, No. 22-CV-45, 2023 WL 2307386, at

  *4 (S.D.N.Y. Mar. 1, 2023) (collecting cases that rejected RICO claims where the alleged RICO

  “enterprise” was “a corporation associating with its own employees or a related corporate entity

  that functionally acted as a single unit with the RICO ‘person’”); cf. Lateral Recovery LLC v.

  Funderz.net, LLC, No. 22-CV-2170, 2024 WL 4350369, at *24 (S.D.N.Y. Sep. 27, 2024)

  (stating that the distinctness requirement would not be violated where the RICO “person” is the

  owner and manager of the RICO “enterprise”).

          Because Travelers fails to establish an enterprise, which is the first prong of a RICO

  claim, its RICO claim pursuant to 18 U.S.C. § 1962(c) fails. 11


          11
            Although the Court finds that Travelers fails to establish an “enterprise,” the Court
  nevertheless addresses whether Travelers establishes “a pattern of racketeering activity.” See
  Reich v. Lopez, 858 F.3d 55, 59 (2d Cir. 2017) (stating that 18 U.S.C. §§ 1962 and 1964


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                              2.   Travelers has not sufficiently pleaded that the Individual
                                   Defendants participated in the alleged scheme to defraud
                                   Travelers

            Defendants argue that Travelers fails to sufficiently plead that the “the Individual

  Defendants personally committed two or more acts of ‘racketeering activity,’” (Defs.’ Mem. 25),

  because: (1) Travelers “merely identified the Individual Defendants from the EMSI website and

  the NY Medicaid Provider application and proceeded to find publicly available information . . .

  to create conclusory allegations” in the Amended Complaint that the Individual Defendants,

  “collectively and without differentiation, committed the elements of fraud and RICO, including

  RICO predicate acts,” (id. at 28); (2) “[a]llegations specific to any of the Individual Defendants

  merely describe innocent conduct in the ordinary course of business,” (id.); (3) “the allegations

  particular to the Individual Defendants consist of a handful of benign facts derived from readily

  available sources that merely describe ordinary business responsibilities,” (id. at 27); and (4) the

  “allegations [ ] advanc[ing] the ‘naked assertion’ that the Individual Defendants actively

  participated in fraud . . . are pure speculation devoid of the essential ‘factual enhancement,’” (id.

  at 26).

            Travelers argues that it has sufficiently pleaded with particularity that the Individual

  Defendants participated in the alleged scheme to defraud travelers. (Pls.’ Opp’n 22.) In support,

  Travelers contends that the Amended Complaint “alleges that each Individual Defendant

  occupied a position of authority within EMSI[] and knowingly participated in directing the

  scheme alleged,” as it alleges “each Individual Defendants’ responsibilities” and how “each

  Individual Defendant was a member of the EMSI executive team that designed, implemented,

  and oversaw the corrupt LOMN protocol.” (Id. at 25.)


  “imposes liability on individuals working for an ‘enterprise’ that commits certain predicate
  crimes that amount to a ‘pattern of racketeering activity’” (quoting 18 U.S.C. §§ 1962, 1964)).


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         Travelers sufficiently alleges with particularity the existence of a scheme to defraud.

  First, Travelers specifies the false or misleading statements, which are the misrepresentations and

  omissions regarding EMSI’s eligibility for and entitlement to reimbursement of benefits under

  the (1) no-fault regulations of New York, Florida, Georgia, and Pennsylvania and (2) workers’

  compensation regulations of New York, Florida, Pennsylvania, and Georgia. Second, Travelers

  identifies EMSI as responsible for the statements. Third, Travelers states when and where the

  statements were made, which are (1) from 2014 to the present and (2) in claims and supporting

  documentation mailed to Travelers. Finally, Travelers explains why these statements are

  fraudulent — the reimbursement claims were for TENS/NMES Devices and supplies that were

  unlawful, unnecessary, medically worthless, billed pursuant to a predetermined treatment

  protocol, and fraudulently billed.

         However, Travelers fails to sufficiently establish the Individual Defendants’ knowing and

  intentional participation in the scheme. Travelers alleges in the Amended Complaint that the

  Individual Defendants were members of an “executive team” that created the LOMN and its

  policies, (see Am. Compl. ¶¶ 107, 110), however, this allegation is insufficient to establish the

  Individual Defendants’ knowing and intentional participation in the scheme because Travelers

  does not provide any particularized facts as to the role of the Individual Defendants in creating

  the LOMN and its policies.

         In addition, Travelers’ sole allegations particularized to each Individual Defendant are

  general allegations of their titles and responsibilities at EMSI that do not plausibly link any of the

  alleged fraudulent conduct to the Individual Defendants. First, Travelers alleges that Muley, as

  EMSI’s president, “was responsible for the operational efficiency and integrity of EMSI,

  including the company’s adherence to billing regulations.” (Id. ¶ 64.) Second, Travelers alleges


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  that Alfonso, as EMSI’s Executive Vice President of Finance, “necessarily had to approve the

  procedures for billing and collection” of fraudulent bills mailed to Travelers, (id. ¶¶ 88, 1016),

  by virtue of his creation and enforcement of “the internal mechanisms governing how sales were

  recorded, claims were submitted, and revenue was recognized,” (id. ¶ 85). Third, Travelers

  alleges that Dacey-Zavalianos, as EMSI’s Executive Vice President of Operations, directly

  oversaw billing and accounts receivables and “routinely analyzed billings to insurance company

  payors and enforced EMSI billing protocols.” (Id. ¶¶ 74, 952.) Finally, Travelers alleges that

  Garcia, as founder, chairman, and owner of EMSI, had sole control over EMSI’s bank account,

  participated in developing and executing EMSI’s business and marketing strategy, convened

  EMSI’s management team, and is listed as the authorized official on EMSI National Provider ID

  and the National Provider ID is listed on every fraudulent claim. (Pls.’ Opp’n 13–14.) These

  allegations amount to generic allegations of routine business responsibilities from which it would

  be speculative to conclude that the Individual Defendants directed the alleged scheme or had any

  direct role in, or knowledge of, the scheme. 12 See Lynn v. McCormick, No. 17-CV-1183, 2017

  WL 6507112, at *6 (S.D.N.Y. Dec. 18, 2017) (concluding that the plaintiffs failed to plead a

  plausible RICO claim against the CEO of a bank that was alleged to be part of an enterprise that

  forced the plaintiffs into loans and subsequent defaults because there were no allegations that the

  CEO “committed, or had anything to do with, any of the allegedly fraudulent acts”), aff’d, 760 F.

  App’x 51 (2d Cir. 2019); cf. Aghaeepour v. N. Leasing Sys., Inc., No. 14-CV-5449, 2015 WL

  7758894, at *6 (S.D.N.Y. Dec. 1, 2015) (concluding allegations of a fraudulent scheme that


         12
             The Court does not address Travelers’ remaining allegations regarding (1) EMSI’s
  strategic plan, (Am. Compl. ¶ 935), and (2) settlements of False Claims Act allegations, (id. ¶¶
  731–32), because these allegations were also in the Complaint and the Court previously found
  these allegations unpersuasive in the September 2025 Decision. (See Sep. 2025 Decision 43–
  45.)


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  “stem[med] from the origination of leases” sufficiently pleaded the participation of the corporate

  defendant’s vice president of operations because in addition to providing the defendant’s job

  title, the complaint “demonstrate[d] [his] participation in the scheme” including that he “[was]

  responsible for day-to-day operations and lease originations”), order corrected on other grounds

  on denial of reconsideration, 2016 WL 828130 (S.D.N.Y. Feb. 25, 2016); Angermeir v. Cohen,

  14 F. Supp. 3d 134, 140–48 (S.D.N.Y. 2014) (finding that the plaintiffs stated RICO claims

  against an officer and a “controlling person[]” of a company that forged small business

  equipment leases and “bull[ied]” out-of-state plaintiffs into paying the leases through “bogus

  lawsuits” because the plaintiffs “specifically allege[d] the role each [i]ndividual [d]efendant

  played in the scheme” including that the vice president of operations “verified complaints filed”

  in the bogus lawsuits and held responsibility for “several aspects” of the “day-to-day operations,

  lease originations, and sales” and the legal administrative manager “verified and notarized

  complaints” and mailed the summons and complaint to a named plaintiff (internal citations

  omitted)).

         In the absence of any specific facts about the Individual Defendants beyond their titles

  and general descriptions of their corporate responsibilities, Travelers does not allege sufficient

  facts from which the Court can infer that the Individual Defendants participated in the alleged

  fraud. Instead, Travelers alleges that because the Individual Defendants held management

  positions at EMSI during the relevant period, they directly participated in or facilitated the

  fraudulent billing of Travelers and therefore may be held individually liable for the alleged

  scheme to defraud Travelers. Construing the facts in favor of Travelers, the Court cannot

  reasonably draw this inference. In part, Travelers’ allegations demonstrate that the alleged

  scheme constituted a minority of EMSI’s business. Travelers’ allegations in the Amended


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  Complaint regarding violations occurring in New York, Pennsylvania, Florida, and Georgia, do

  not allege that EMSI’s business in these states consisted solely of the DME and replenishment

  supplies which were sold to patients that Travelers insured. Rather, Travelers only alleges that

  thirty-five percent of EMSI’s business is derived from the New York market, (Am. Compl. ¶

  100), which the Court previously concluded was insufficient to establish that all or the majority

  of EMSI’s business is derived from the illegitimate or fraudulent activities involved in the

  scheme to defraud Travelers, and Travelers does not otherwise provide any information

  regarding what percentage of EMSI’s business is derived from the markets in Pennsylvania,

  Florida, and Georgia. In view of Rule 9(b)’s purposes “to safeguard a defendant’s reputation

  from improvident charges of wrongdoing,” “to protect a defendant against the institution of a

  strike suit,” and “discourage[] plaintiffs from using the litigation process to discover hypothetical

  wrongdoing,” Miller, 110 F.4th at 544, the Court declines to infer solely on the basis of the

  Individual Defendants’ management positions at EMSI that they participated in or directed the

  scheme to defraud Travelers. See Sanchez v. ASA Coll., Inc., No. 14-CV-5006, 2015 WL

  3540836, at *6 (S.D.N.Y. June 5, 2015) (explaining that “a plaintiff may not rely solely upon

  [the] defendants’ ‘positions of control’ in an enterprise, and may not link individual defendants

  to fraudulent activities ‘by stating only that [the d]efendants were officers and shareholders’ of

  the organization’” to “inform each defendant of the nature of his alleged participation in the

  fraud”); see also City of Brockton Ret. Sys. v. Avon Prods., Inc., No. 11-CV-4665, 2014 WL

  4832321, at *20 (S.D.N.Y. Sep. 29, 2014) (rejecting the plaintiffs argument that the individual

  defendants should have been aware of certain alleged “corrupt . . . events . . . because of their

  supervisory positions” as “generalized allegations founded solely on an individuals’ corporate

  position are not sufficient to demonstrate scienter”); cf. CPM Med Supply Inc., 2024 WL


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  3949968, at *2 (finding that the plaintiff insurer sufficiently alleged the individual defendant’s

  engagement in a RICO scheme to defraud the insurer into paying claims for fraudulently

  prescribed post-surgical rehabilitation durable medical equipment devices issued by the

  corporate defendant, a medical supplier, where the insurer alleged that the individual defendant

  was “the principal, officer, and/or director of [the durable medical equipment supplier],

  operating, managing and controlling its activities” and that he formed the durable medical

  equipment supplier “to engage in a scheme whereby [he] paid kickbacks to [the] [clinics] in

  exchange for prescriptions of [durable medical equipment]”); Aghaeepour, 2015 WL 7758894, at

  *6 (concluding that while “the [c]omplaint contain[ed] a number of allegations against all [the

  d]efendants in general, the [c]omplaint’s other allegations specific to each [d]efendant” including

  their job titles and “how their individual responsibilities demonstrate[d] their participation in the

  scheme” were sufficient to accomplish the goals of Rule 9(b)).

         Because Travelers fails to plausibly allege (1) an “enterprise” and (2) the Individual

  Defendants’ participation in the alleged scheme to defraud it, the Court dismisses the substantive

  RICO claims predicated on the EMSI Enterprise and the Individual Defendants. 13

                    ii.   RICO conspiracy claim

         Defendants argue that the Court should dismiss Travelers’ RICO conspiracy claim because

  it arises from the same facts as Travelers’ RICO claim. (Defs.’ Mem. 29.)

         Travelers argues that it sufficiently alleges RICO conspiracy because the Amended

  Complaint “contains specific allegations of wrongdoing against each Individual

  Defendant/member of the executive team in conducting the affairs of the EMSI enterprise.” (Pls.’


         13
             Having found that Travelers fails to establish the first and second prongs of a RICO
  claim, the Court does not address the parties’ arguments regarding whether Travelers adequately
  pleaded the remaining two prongs.


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  Opp’n 31.)

         As discussed supra Section II.c.i, Travelers has not adequately alleged a substantive

  RICO claim against Defendants. Travelers bases its conspiracy claims on the Individual

  Defendants’ participation in the “operation and management of the EMSI enterprise” through “a

  pattern of racketeering activity, including numerous acts of mail fraud . . . and/or submission of

  fraudulent insurance claim documents . . . to Travelers.” (Am. Compl. ¶¶ 44, 1092.) Thus,

  Travelers’ “alleged conspirac[ies] involved an agreement to commit the same substantive RICO

  violations [the Court has] deemed insufficiently pled,” Williams, 889 F.3d at 126, and it does not

  assert allegations or events separate from those underlying the substantive RICO claims for the

  RICO conspiracy claim.

         Accordingly, the Court dismisses the RICO conspiracy claims against Defendants. See,

  e.g., Curtis, 2023 WL 6324324, at *2 (dismissing the plaintiffs’ conspiracy claim where they had

  not stated a substantive RICO claim); First Cap. Asset Mgmt., 385 F.3d at 182 (same); Chester

  Park View, LLC v. Schlesinger, No. 23-CV-5432, 2024 WL 2785140, at *12 (S.D.N.Y. May 29,

  2024) (same); Anglin Auto. LLC v. EBF Holdings, LLC, No. 23-CV-1404, 2024 WL 1118892, at

  *9 (S.D.N.Y. Mar. 14, 2024) (same); Verity Wines LLC, 2023 WL 374120, at *13 (same).

              d.   Common law fraud claims

         Defendants first, argue that the Court should dismiss the common law fraud claims

  brought under New York, Florida, Pennsylvania, and Georgia law because Travelers fails to

  establish that the Individual Defendants committed fraud. 14 (Defs.’ Mem. 29.) Second,


         14
             The Court notes that the Amended Complaint alleges common-law fraud violations
  against all Defendants. (See Am. Compl. ¶¶ 1097–1138.) Defendants move to dismiss the
  common-law fraud claims against the Individual Defendants, arguing that Travelers fails to
  establish that their actions constitute fraud. (Defs.’ Mem. 29.) As to EMSI, Defendants move to
  dismiss the Pennsylvania, Florida, and Georgia common-law fraud claims against it arguing that


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  Defendants argue that the Court should decline supplemental jurisdiction over Travelers’ fraud

  claims arising under Florida, Pennsylvania, and Georgia law because Travelers fails to allege a

  common nucleus of operative fact. (Id. at 31–33; Defs.’ Reply 14.) In support, Defendants

  contend that Travelers’ argument that it has established jurisdiction because the Amended

  Complaint “arose as a result of a single nationwide scheme” fails because Travelers does not

  dispute the existence of a “‘national’ billing regulatory system when it comes to worker’s

  compensation and automobile medical insurance claims that have always been the province of

  state law.” 15 (Defs.’ Reply 14 (emphasis omitted) (quoting Pls.’ Opp’n 34).) Third, Defendants


  the Court lacks jurisdiction over them. (Id. at 31.) EMSI does not seek to dismiss the New York
  fraud claim.
         15
              As discussed supra footnote 4, Travelers invokes both federal question and diversity
  jurisdiction. The Amended Complaint includes facts demonstrating diversity. First, Travelers
  satisfies the amount-in-controversy requirement because it “seeks actual damages in excess of
  $1,254,402.98,” (Am. Compl. ¶ 35). Second, Travelers satisfies the citizenship requirement
  because: (1) each of Travelers’ companies is duly organized and exists under the laws of the
  State of Connecticut and has its principal place of business in Hartford Connecticut, except for
  Fidelity and Guaranty Insurance Underwriters, Inc., which is duly organized and exists under the
  laws of the State of Wisconsin, (id. ¶¶ 38–40); (2) EMSI is a registered Florida corporation with
  its principal place of business in Tampa, Florida, (id. ¶¶ 41–42); and (3) all of the Individual
  Defendants reside in and are citizens of Florida, (id. ¶¶ 47, 60, 69, 80). See 28 U.S.C. § 1332(a)
  (providing that original jurisdiction requires that “the matter in controversy” (1) “exceeds the
  sum or value of $75,000” and (2) “is between citizens of different [s]tates”); Home Depot U. S.
  A., Inc. v. Jackson, 587 U.S. 435, 437 (2019) (quoting id.)); see Tagger v. Strauss Grp. Ltd., 951
  F.3d 124, 126 (2d Cir. 2020) (per curiam) (“Section 1332 requires ‘complete diversity,’ meaning
  that ‘all plaintiffs must be citizens of states diverse from those of all defendants.’” (quoting Pa.
  Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 118 (2d Cir. 2014)));
  Bayerische Landesbank, N.Y. Branch v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 48 (2d Cir.
  2012) (“For diversity purposes, a corporation is considered a citizen of the state in which it is
  incorporated and the state of its principal place of business.”); see also Metro Found.
  Contractors, Inc. v. Arch Ins. Co., 498 F. App’x 98, 100 (2d Cir. 2012) (finding diversity
  jurisdiction where the parties “are citizens of different states and the amount in controversy
  exceeds $75,000”).
           As discussed below, because Travelers invokes diversity jurisdiction, it does not need to
  allege that its claims derive from a common nucleus of operative fact. See Berk v. Choy, 607
  U.S. 187, 191–92 (2026) (“State-law claims are usually brought in state court. But if the parties
  are citizens of different [s]tates and the amount in controversy exceeds a certain threshold, a


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  argue that the Court should decline supplemental jurisdiction because “[e]ach claim for

  reimbursement is regulated by the particular state law and dispute resolution mechanisms,” and

  the Amended Complaint fails to allege which laws in Pennsylvania, Florida, and Georgia were

  violated by the Individual Defendants. (Id. at 15.)

         Travelers argues first, that it sufficiently pleads claims for common law fraud against the

  Individual Defendants pursuant to New York, Florida, Pennsylvania, and Georgia law because it

  establishes the Individual Defendants’ participation in the fraudulent billing scheme. (Pls.’

  Opp’n 19–20.) Second, Travelers contends that the Court should not decline supplemental

  jurisdiction because “[i]t is readily apparent that each alleged act of mail fraud within the

  [Amended Complaint] arose as a result of a single, nationwide scheme.” (Id. at 34 (emphasis

  omitted).)

         “Under New York law, the elements of a fraud claim are ‘a representation of material

  fact, falsity, scienter, reliance and injury.’” Pasternack v. Lab’y Corp. of Am. Holdings, 807

  F.3d 14, 22 (2d Cir. 2015) (quoting Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57 (1999));

  Meridian Horizon Fund, LP v. KPMG (Cayman), 487 F. App’x 636, 641 (2d Cir. 2012) (quoting


  plaintiff may choose to sue in federal court.”); Emergency Physician Servs. of N.Y. v.
  UnitedHealth Grp., Inc., No. 20-CV-9183, 2021 WL 4437166, at *13 (S.D.N.Y. Sep. 28, 2021)
  (concluding that the court “continue[d] to have jurisdiction over [the] action” following dismissal
  of the plaintiff’s RICO claim because “it appears the [c]ourt [ ] has diversity jurisdiction”
  between the parties); Dos Santos v. Assurant, Inc., No. 21-CV-6368, 2021 WL 3667983, at *3
  (S.D.N.Y. Aug. 17, 2021) (“Unless the [c]ourt has diversity jurisdiction of this matter, it will
  decline to exercise supplemental jurisdiction of Plaintiff's state law claims . . . .”); Success Sys.,
  Inc. v. Excentus Corp., 439 F. Supp. 3d 31, 51 (D. Conn. 2020) (stating that the court may have
  jurisdiction over state-law claims where the complaint suggests diversity of citizenship between
  the parties); see also Go N.Y. Tours, Inc. v. Tour Cent. Park Inc., No. 19-CV-9803, 2021 WL
  3721359, at *3 (S.D.N.Y. Aug. 20, 2021) (“Absent diversity jurisdiction, the [c]ourt may
  exercise supplemental jurisdiction over state law claims only if they are so related to claims in
  the action over which the [c]ourt has original jurisdiction ‘that they form part of the same case or
  controversy under Article III of the United States Constitution.’” (emphasis added) (quoting 28
  U.S.C. § 1367(a))).


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  N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 318 (1995)); Cargo Logs. Int., LLC v. Overseas

  Moving Specialists, Inc., 723 F. Supp. 3d 212, 226 (E.D.N.Y. 2024) (“Under New York law, the

  essential elements of a fraud claim include ‘representation of a material existing fact, falsity,

  scienter, deception, and injury.’” (quoting Manning v. Utils. Mut. Ins. Co., 254 F.3d 387, 400 (2d

  Cir. 2001))); see Kinsella v. S. Fork Wind, LLC, No. 25-355, 2026 WL 912590, at *3 (2d Cir.

  Mar. 30, 2026) (summary order) (“Under New York law, the elements of a fraud claim are a

  representation of material fact, falsity, scienter, reliance and injury.” (quoting Pasternack, 807

  F.3d at 22)); Gerding v. Ljungren, No. 23-1119, 2025 WL 3751728, at *2 (2d Cir. Dec. 29,

  2025) (summary order) (quoting same); Cortes v. 21st Century Fox Am., Inc., 751 F. App’x 69,

  72 (2d Cir. 2018) (stating the elements of a fraudulent misrepresentation claim). “To state a

  claim for fraud under New York law, a plaintiff must allege (1) a material misrepresentation or

  omission of fact; (2) which the defendant knew to be false; (3) which the defendant made with

  the intent to defraud; (4) upon which the plaintiff reasonably relied; and (5) which caused injury

  to the plaintiff.” Pauwels v. Deloitte LLP, 83 F.4th 171, 190–91 (2d Cir. 2023) (quoting Fin.

  Guar. Ins. Co. v. Putnam Advisory Co., 783 F.3d 395, 402 (2d Cir. 2015)); Housey v. Proctor &

  Gamble Co., No. 22-888, 2022 WL 17844403, at *1 n.1 (2d Cir. Dec. 22, 2022) (summary order)

  (quoting same); Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 13 F.4th 247, 259 (2d

  Cir. 2021) (quoting Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir. 2006)); see also

  GEM Advisors, Inc. v. Corporación Sidenor, S.A., 667 F. Supp. 2d 308, 333 (S.D.N.Y. 2009)

  (“The second element of fraud in New York is intent to defraud, or scienter, which includes

  knowledge of the falsity of the representation.” (citing Banque Arabe et Internationale

  D’Investissement v. Md. Nat’l Bank, 57 F.3d 146, 153 (2d Cir. 1995))).

         “Under Florida law, a common law fraud or misrepresentation claim requires: (1) a false


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  statement of fact, (2) known by the defendant to be false at the time it was made, and (3) made

  for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in

  reliance on the correctness of the representations; and (5) resulting damages to the plaintiff.”

  Wynfield Inns v. Edward LeRoux Grp., Inc., 896 F.2d 483, 490 (11th Cir. 1990); see Malhotra v.

  Kumar, No. 25-13898, 2026 WL 2474635, at *3 n.3 (11th Cir. Aug. 24, 2026) (per curiam)

  (quoting Gandy v. Trans World Computer Tech. Grp., 787 So. 2d 116, 118 (Fla. Dist. Ct. App.

  2001)); Gov’t Emps. Ins. Co. v. Quality Diagnostic Health Care, Inc., No. 21-10297, 2021 WL

  5157535, at *2 (11th Cir. Nov. 5, 2021) (per curiam) (quoting same); Gustin v. Bank, 859 F.

  App’x 889, 891 (11th Cir. 2021) (per curiam) (quoting same); Gallagher v. Lactalis Am. Grp.,

  Inc., No. 22-CV-614, 2023 WL 6224881, at *5 (W.D.N.Y. Sep. 21, 2023) (quoting Gustin, 859

  F. App’x at 891); In re Bank of Am. Corp. Sec., Derivative, & Emp. Ret. Income Sec. Act

  (ERISA) Litig., No. 09-MD-2058, 2013 WL 6504801, at *14 (S.D.N.Y. Dec. 11, 2013) (quoting

  Rhodes v. O. Turner & Co., 117 So. 3d 872, 876 (Fla. Dist. Ct. App. 2013)).

          “To state a fraud claim under Pennsylvania law, [p]laintiffs must allege: ‘(1) a

  representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge

  of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading

  another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting

  injury was proximately caused by the reliance.’” Crawford’s Auto Ctr., Inc. v. State Farm Mut.

  Auto. Ins. Co., 945 F.3d 1150, 1161 (11th Cir. 2019) (quoting Gibbs v. Ernst, 647 A.2d 882, 889

  (Pa. 1994)); Norfolk S. Ry. Co. v. Pittsburgh & W. Virginia R.R., 870 F.3d 244, 255 (3d Cir.

  2017) (quoting same); Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 256–57 (3d Cir.

  2013) (quoting EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 275 (3d Cir. 2010)); Wall v. CSX

  Transp., Inc., 471 F.3d 410, 417–18 (2d Cir. 2006) (quoting Gibbs, 647 A.2d at 889); Ramirez v.


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  IDD Cars, LLC, 815 F. Supp. 3d 286, 313 (S.D.N.Y. 2025) (quoting Corle Bldg. Sys., Inc. v.

  Ogden Welding Sys., Inc., 684 F. Supp. 3d 390, 405 (W.D. Pa. 2023)).

          “Under Georgia law, a fraud claim comprises the following elements: (1) that the

  defendant made the misrepresentation; (2) that he knew was false; (3) that he acted with the

  intent to deceive the plaintiff; (4) that the plaintiff justifiably relied on the misrepresentation; and

  (5) that the plaintiff sustained damages as the proximate result of the misrepresentations.” Deal

  v. Tugalo Gas Co., 991 F.3d 1313, 1324 n.5 (11th Cir. 2021); see Hemispherx Biopharma, Inc. v.

  Mid-S. Cap., Inc., 690 F.3d 1216, 1234 (11th Cir. 2012) (“A claim for fraud requires proof of ‘1)

  a false representation or omission of material fact; 2) scienter; 3) intent to induce the party

  claiming fraud to act or refrain from acting; 4) justifiable reliance; and 5) damages.’” (quoting

  Collins v. Regions Bank, 639 S.E.2d 626, 628 (Ga. Ct. App. 2006))); Wade Park Land Holdings,

  LLC v. Kalikow, 589 F. Supp. 3d 335, 387 (S.D.N.Y. 2022) (quoting Tischer v. Bank of Am.

  Corp., No. 12-CV-4185, 2014 WL 11822767, at *2 (N.D. Ga. Feb. 19, 2014)), amended, No. 21-

  CV-1657, 2022 WL 2479110 (S.D.N.Y. July 6, 2022), and aff’d sub nom. In re Wade Park Land

  Holdings, LLC, No. 23-591, 2024 WL 3024648 (2d Cir. June 17, 2024) (summary order).

          “[I]n conjunction with the facial plausibility standard of Rule 12(b)(6),” pleadings for

  common law fraud claims “must satisfy the heightened pleading standard set forth in Rule 9(b)”

  of the Federal Rules of Civil Procedure. Loreley Financing (Jersey) No. 3 Ltd. v. Wells Fargo

  Secs., LLC, 797 F.3d 160, 171 (2d Cir. 2015); see VR Glob. Partners, L.P. v. Petróleos de

  Venezuela, S.A., No. 24-1176, 2024 WL 4891271, at *3 (2d Cir. Nov. 26, 2024) (summary

  order); Smith v. D’Agostino, No. 25-CV-1265, 2025 WL 3525935, at *11 (N.D.N.Y. Dec. 9,

  2025) (“A claim for common law fraud under New York law must satisfy the requirements of the

  heightened pleading standard under Rule 9(b) of the Federal Rules of Civil Procedure.”),


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  reconsideration denied, 2026 WL 295525 (N.D.N.Y. Feb. 4, 2026); Turk v. Rubbermaid Inc.,

  No. 21-CV-270, 2022 WL 836894, at *4 (S.D.N.Y. Mar. 21, 2022) (“[F]raud claims —

  including common law fraud claims — are subject to the heightened pleading standard set forth

  in Rule 9(b).”). “Rule 9(b) requires that ‘[i]n alleging fraud or mistake, a party must state with

  particularity the circumstances constituting fraud or mistake.’” United States ex rel. Ladas v.

  Exelis, Inc., 824 F.3d 16, 25 (2d Cir. 2016) (alteration in original) (quoting Fed. R. Civ. P. 9(b)).

         The particularity pleading requirements of Rule 9(b) “require[ ] that the plaintiff (1)

  detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the

  speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why

  the statements (or omissions) are fraudulent.” Fin. Guar. Ins., 783 F.3d at 402–03 (quoting

  Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 187 (2d Cir.

  2004)); Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007); Rowe Plastic Surgery of

  N.J., L.L.C. v. Aetna Life Ins. Co., No. 23-CV-2599, 2026 WL 783837, at *7 (E.D.N.Y. Feb. 3,

  2026) (quoting Harsco Corp. v. Segui, 91 F.3d 337, 347 (2d Cir. 1996)), report and

  recommendation adopted, Order Adopting Report and Recommendations (E.D.N.Y. Feb. 18,

  2026). “In short, a plaintiff must set forth the who, what, when, where and how of the alleged

  fraud.” In re Hut 8 Corp. Sec. Litig., No. 24-CV-904, 2025 WL 2636150, at *7 (S.D.N.Y. Sep.

  12, 2025) (quoting Telenor E. Inv. AS v. Altimo Holdings & Invs. Ltd., 567 F. Supp. 2d 432, 441–

  42 (S.D.N.Y. 2008)); U.S. ex rel. Henig v. Amazon.com, Inc., No. 19-CV-5673, 2025 WL 27736,

  at *6 (S.D.N.Y. Jan. 3, 2025) (“Put another way, Rule 9(b) ‘requires that a plaintiff set forth the

  who, what, when, where[,] and how of the alleged fraud.’” (quoting U.S. ex rel. Kester Novartis

  Pharm. Corp., 23 F. Supp. 3d 242, 252 (S.D.N.Y. 2014))), aff’d, 177 F.4th 156 (2d Cir. 2026);

  Kearney v. Bayerische Motoren Werke Aktiengesellschaft, No. 17-CV-13544, 2018 WL


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  4144683, at *10 (D.N.J. Aug. 29, 2018) (quoting Institutional Invs. Grp. v. Avaya, Inc., 564 F.3d

  242, 253 (3d Cir. 2009)). “Although Rule 9(b) allows for ‘[m]alice, intent, knowledge, and other

  conditions of a person’s mind [to] be alleged generally,’ a plaintiff must still allege facts ‘that

  give rise to a strong inference of fraudulent intent.’” Red Apple 86 Fleet Place Dev., LLC v.

  State Farm Fire & Cas. Co., No. 23-1312, 2024 WL 4764060, at *3 (2d Cir. Nov. 13, 2024)

  (summary order) (alterations in original) (first quoting Fed. R. Civ. P. 9(b); and then quoting

  Loreley, 797 F.3d at 171). “[A] ‘strong inference of fraudulent intent’ [ ] ‘may be established

  either (a) by alleging facts to show that defendants had both motive and opportunity to commit

  fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious

  misbehavior or recklessness.’” Fed. Deposit Ins. Corp. v. Fifth Third Bank, N.A., No. 23-209,

  2023 WL 7130553, at *2 (2d Cir. Oct. 30, 2023) (summary order) (quoting United States v. Strock,

  982 F.3d 51, 66 (2d Cir. 2020)); see also Honeyman v. Hoyt (In re Carter-Wallace, Inc., Sec.

  Litig.), 220 F.3d 36, 39 (2d Cir. 2000) (quoting Shields v. Citytrust Bancorp, 25 F.3d 1124, 1128

  (2d Cir. 1994)) (same).

                     i.   Common law fraud claims against the Individual Defendants

          Travelers bases its common law fraud claims against the Individual Defendants on the

  same fraudulent billing scheme that formed the basis of its RICO claims. As discussed supra

  Section II.c.i.2, Travelers sufficiently alleges with particularity: (1) the specific statements it

  contends are fraudulent, which are the misrepresentations and omissions regarding EMSI’s

  eligibility for and entitlement to reimbursement of benefits; (2) who made them — EMSI; (3)

  where and when the statements were made — (i) from 2014 to the present and (ii) in claims and

  supporting documentation made to Travelers; and (4) how and why the statements are fraudulent,

  which is because the reimbursement claims — the fact that the TENS/NMES Devices and

  supplies that were unlawful, unnecessary, medically worthless, billed pursuant to a


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  predetermined treatment protocol, and fraudulently billed. (See generally Am. Compl.)

  However, the allegations fail to establish that the Individual Defendants participated in the

  scheme and are insufficient to state a fraud claim, as Travelers’ allegations amount to a recitation

  of the Individual Defendants’ positions and general responsibilities at EMSI. Likewise,

  Travelers’ allegations regarding the Individual Defendants’ involvement in the “executive team”

  fail to establish their participation in the alleged scheme because Travelers does not specify the

  Individual Defendants’ responsibilities in creating and enforcing the LOMN and its policies. See

  Bigsby v. Barclays Cap. Real Est., Inc., 298 F. Supp. 3d 708, 723 (S.D.N.Y. 2018) (dismissing

  common law fraud claims for the same reasons that it dismissed the federal RICO claims), aff’d,

  841 F. App’x 331 (2d Cir. 2021); Lima LS PLC v. PHL Variable Ins. Co., No. 12-CV-1122,

  2013 WL 3327038, at *11, 14 (D. Conn. July 1, 2013) (dismissing common law fraud claim

  against the individual defendants because “[c]onsistent with the discussion relevant to the RICO

  claim, [the p]laintiff ha[d] not pleaded fraud with particularity with regard to the conduct by the

  [i]ndividual [d]efendants” as the “complaint lack[ed] specific allegations as to actual acts

  specific to each of the [i]ndividual [d]efendants” and appeared to “rely upon the corporate

  positions of the [i]ndividual [d]efendants”); 3801 Beach Channel, Inc. v. Shvartzman, No. 05-

  CV-207, 2007 WL 2891119, at *7 n.1 (E.D.N.Y. Sep. 28, 2007) (“Presumably, if the RICO

  claim — which is predicated on allegations that the defendants engaged in a wide array of crimes

  beyond mere fraud — is fatally defective by reason of its failure to make sufficiently detailed

  averments of fraud, then the more limited state law claim which relies exclusively on such

  averments must likewise be defective.”).

         Accordingly, the Court dismisses Travelers’ common law fraud claim against the

  Individual Defendants.


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                     ii.   Common law fraud claims against EMSI

          Travelers asserts that the Court has jurisdiction pursuant to both federal question and

  diversity jurisdiction under 28 U.S.C. §§ 1331 and 1332, respectively, (Am. Compl. ¶ 91), and

  Defendants do not challenge Travelers’ diversity jurisdiction assertion. Despite the Court’s

  subject-matter jurisdiction pursuant to diversity, which Defendants do not challenge, Defendants

  argue that the Court should decline supplemental jurisdiction over the state-law fraud claims but

  does not explain the basis for doing so. The Court sits in diversity jurisdiction, and Defendants

  do not present any caselaw stating that a federal court sitting in diversity may somehow dismiss

  state-law claims pursuant to supplemental jurisdiction. Rather, the Court can decline exercising

  supplemental jurisdiction only when dismissal of a federal claim deprives it of jurisdiction,

  which is not the case here. See Moody v. Northwell Health, Inc., No. 26-CV-283, 2026 WL

  2268096, at *4 (S.D.N.Y. Aug. 5, 2026) (“A federal district court also can consider state-law

  claims under its diversity jurisdiction.”), appeal filed, No. 26-2251 (2d Cir. Aug. 12, 2026);

  Crumbsie v. Muhammad, No. 26-CV-3352, 2026 WL 1622941, at *3 (S.D.N.Y. June 3, 2026)

  (“To bring a state law claim in federal court, a plaintiff must either allege facts demonstrating

  that the court has diversity of citizenship jurisdiction of the action, or, if the plaintiff asserts a

  viable federal claim, the court can exercise supplemental jurisdiction of the state law claims.”);

  Reeves v. United States, No. 26-CV-930, 2026 WL 1192723, at *5 (S.D.N.Y. May 1, 2026) (“A

  federal district court can consider state law claims either under its diversity of citizenship

  jurisdiction or its supplemental jurisdiction.”); see also Parkes v. Bluemenfeld Dev. Grp., Ltd.,

  No. 25-CV-74, 2025 WL 674149, at *2 (S.D.N.Y. Mar. 3, 2025) (“[W]hen a court determines

  that there is no original federal subject matter jurisdiction over the suit, as the [c]ourt has done

  here, it cannot exercise supplemental jurisdiction over state law claims.”), appeal dismissed, No.

  25-704 (2d. Cir. Dec. 15, 2025); Marchant v. de Blasio, No. 20-CV-10544, 2021 WL 4199940,


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  at *5 (S.D.N.Y. Sep. 15, 2021) (“Having dismissed the federal claims and given the absence of

  diversity jurisdiction, the [c]ourt declines to exercise supplemental jurisdiction over the state law

  claims.”).

         Defendants do not argue any other basis for the Court to dismiss the state-law claims

  against EMSI, and the Court, therefore, declines to dismiss these claims against EMSI.

    III. Conclusion

         For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion

  to dismiss. The Court (1) grants Defendants’ motion and (i) dismisses the RICO claims against

  the Individual Defendants and (ii) dismisses the state-law fraud claims against the Individual

  Defendants and (2) denies Defendants’ motion to dismiss the state-law fraud claims against

  EMSI. The parties should proceed with discovery before the assigned Magistrate Judge on the

  remaining state law claims against EMSI.

  Dated: September 24, 2026
         Brooklyn, New York
                                                        SO ORDERED:


                                                                 /s/ MKB
                                                        MARGO K. BRODIE
                                                        United States District Judge


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