Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICRON TECHNOLOGY, INC., and MICRON SEMICONDUCTOR PRODUCTS, INC., Plaintiffs, v. RAMBUS INC., Defendant. ) ) ) ) ) ) Civil Action No. 06-269 ­ KAJ ) ) ) ) )

OPENING BRIEF IN SUPPORT OF DEFENDANT RAMBUS INC.'S MOTION TO DISMISS

OF COUNSEL: V. Bryan Medlock, Jr. Charles W. Douglas Thomas K. Cauley, Jr. SIDLEY AUSTIN LLP Bank One Plaza One South Dearborn Street Chicago, IL 60603 (312) 853-7000 Gregory P. Stone MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue 35th Floor Los Angeles, CA 90071 (213) 683-9100 May 26, 2006

MORRIS, NICHOLS, ARSHT & TUNNELL LLP Mary B. Graham (#2256) Rodger D. Smith (#3778) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 Attorneys for Defendant Rambus Inc.

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TABLE OF CONTENTS Page Introduction..................................................................................................................................... 1 Summary Of Argument................................................................................................................... 3 Argument ........................................................................................................................................ 5 I. II. Standard Of Review................................................................................................ 5 The Governing Statute Of Limitations Time-Bars Micron's RICO Claims (Counts I And II)..................................................................................................... 6 A. B. III. Micron Filed The Complaint After The Four-Year Statute Of Limitations Applicable To Its RICO Claims Had Expired......................... 6 Micron's Fraudulent Concealment Allegations Cannot Toll The Statute Of Limitations............................................................................... 11

Micron's RICO Claims Fail on the Merits. .......................................................... 15 A. Micron's Section 1962(c) RICO Claim Fails Because The "Association In Fact" Enterprise Alleged By Micron Is Not Distinct From Rambus. ............................................................................. 15 Micron Has Not Pled A RICO Injury. ...................................................... 19 Micron's Allegations Of Mail And Wire Fraud Lack The Specificity Required By Rule 9(b)............................................................ 21 Micron Fails To Plead A Viable Section 1962(d) Conspiracy Claim......................................................................................................... 23

B. C. D. IV. V.

Micron's State Law Conspiracy Claim (Count III) Fails Because A Corporation Cannot Conspire With Itself. ............................................................ 24 The Noerr-Pennington Doctrine Bars Micron's Complaint. ................................ 27

Conclusion .................................................................................................................................... 30

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TABLE OF AUTHORITIES CASES

Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143 (1987).......................................................................................................6 Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir. 2000) .........................................................................................1 Am. Chiropractic Assoc. v. Trigon Healthcare, Inc., 151 F. Supp. 2d 723 (E.D. Va. 2001) ..........................................................................26 Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85 (2d Cir. 1999)...........................................................................................16 Anderson v. Ayling, 396 F.3d 265 (3d Cir. 2005)...........................................................................................1 Bachman v. Bear Sterns & Co., 178 F.3d 930 (7th Cir. 1999) .......................................................................................16 Bath Petroleum Storage v. Market Hub Partners, L.P., 229 F.3d 1135, 2000 WL 1508873 (2nd Cir., Oct. 11, 2000)......................................27 Bausch v. Philatelic Leasing, Ltd., 728 F. Supp. 1201 (D. Md. 1990) ................................................................................13 Berg v. First Interstate Insurance Co., 915 F.2d 460 (9th Cir. 1990) .......................................................................................20 Bessette v. Avco Finance Services, Inc., 230 F.3d 439 (1st Cir. 2000)........................................................................................16 Blanck v. McKeen, 707 F.2d 817 (4th Cir. 1983) .......................................................................................13 Blystra v. Fiber Tech Group, Inc., 407 F. Supp. 2d 636 (D.N.J. 2005) ..........................................................................6, 11 Brittingham v. Mobile Corp., 943 F.2d 297 (3d Cir. 1991).............................................................................16, 18, 19 Callahan v. A.E.V., Inc., 182 F.3d 237 (3rd Cir. 1999) .................................................................................20, 21

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Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001).....................................................................................................15 Charles E. Brauer Co., Inc. v. Nationsbank of Virginia, N.A., 466 S.E.2d 382 (Va. 1996).....................................................................................24, 25 Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir. 1999).......................................................................27, 28, 29, 30 Dornberger v. Metropolitan Life Insurance Co., 961 F. Supp. 506 (S.D.N.Y. 1997) ..............................................................................19 Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961).....................................................................................................27 Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005)...........................................................................................5 Fitzgerald v. Chrysler Corp., 115 F.3d 225 (7th Cir. 1997) .................................................................................16, 19 Forbes v. Eagleson, 228 F.3d 471 (3d Cir. 2000).............................................................................12, 13, 14 Gatz v. Pomsoldt, 397 F. Supp. 2d 719 (D. Del. 2003).............................................................................23 Glessner v. Kenny, 952 F.2d 702 (3d Cir. 1991)...................................................................................23, 24 Greenville Public Co. v. Daily Reflector, 496 F.2d 391 (4th Cir. 1974) .......................................................................................25 H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989).......................................................................................................1 Hartnett v. Schering Corp., 2 F.3d 90 (4th Cir. 1993) .............................................................................................14 Hiers v. Cave Hill Corp., 51 Va. Cir. 208, 2000 WL 145359 (Jan. 6, 2000)........................................................25 Hockenberry v. Diversified Ventures, Inc., 2005 WL 1458768 (M.D. Pa. June 20, 2005)..............................................................12

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Holmes v. Securities Investment Protection Corp., 503 U.S. 258 (1992)...............................................................................................19, 20 International Brotherhood of Teamsters, Local 734 Health Workers and Welfare Trust v. Phillip Morris, Inc., 196 F.3d 818 (7th Cir. 1999) .......................................................................................27 In re InterCo. Inc., 128 B.R. 229 (Bkrtcy. E.D. Mo. 1991)........................................................................26 Klehr v. A.O Smith Corp., 521 U.S. 179 (1997).................................................................................................6, 10 Lighting Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)...........................................................................................23 Little Professor Book Co. of Reston Va., Inc. v. Reston North Point Village Ltd. P'ship, 41 Va. Cir. 73, 1996 WL 1065614 (Sept. 27, 1996)....................................................25 Lum v. Bank of America, 361 F.3d 217 (3d Cir. 2004)...............................................................................6, 21, 22 McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985) .......................................................................................15 Moffat Enterprises, Inc. v. Borden, Inc., 763 F. Supp. 143 (W.D. Pa. 1990)...............................................................................19 NCNB National Bank v. Tiller, 814 F.2d 931 (4th Cir. 1987) .......................................................................................16 Parker & Parsley Petroleum Co. v. Dresser Industrial, 972 F.2d 580 (5th Cir. 1992) .......................................................................................16 Pennepac International, Inc. v. Rotonics Manufacturing, Inc., 2001 WL 569264 (E.D. Pa., May 25, 2001) ..........................................................27, 28 Prousalis v. Jamgochian, 38 Fed. Appx. 903, 905 (4th Cir. 2002).......................................................................25 Professional Real Estate Investors v. Columbia Pictures Industrial, Inc., 508 U.S. 49 (1993)...........................................................................................20, 21, 29 Prudential Insurance Co. of America v. U.S. Gypsum Co., 359 F.3d 226 (3d Cir. 2004)................................................................................. Passim

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Rambus, Inc. v. Infineon Techs. A.G., 155 F. Supp. 2d 668 (E.D. Va. 2001) ........................................................................1, 8 Rockstroh v. A.H. Robins Co., 602 F. Supp. 1259 (D. Md. 1985) ................................................................................13 Rotella v. Wood, 528 U.S. 549 (2000).......................................................................................................6 Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985)............................................................................................. Passim Selman v. American Sports Underwriters, Inc., 697 F. Supp. 225 (W.D. Va. 1990) ........................................................................24, 26 Sosa v. Direct TV, 437 F.3d 923 (9th Cir. 2006) .................................................................................27, 28 Steele v. Hospital Corp. of America, 36 F.3d 69 (9th Cir. 1994) ...........................................................................................19 Studiengesellschaft Kohle, mbH v. Hercules, Inc., 748 F. Supp. 247 (D. Del. 1990)............................................................................12, 14 United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).....................................................................................................27 United States v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985) ...............................................................................16, 17 Weinberger v. Retail Credit Co., 498 F.2d 552 (4th Cir. 1974) ...........................................................................12, 13, 14 Wood v. Carpenter, 101 U.S. 135 (1879).....................................................................................................14 STATUTES 18 U.S.C. § 1341................................................................................................................11 18 U.S.C. § 1343................................................................................................................11 18 U.S.C. § 1503................................................................................................................11 28 U.S.C. § 1367(c) ...........................................................................................................25

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18 U.S.C. § 1961........................................................................................................ Passim 18 U.S.C. § 1962(c) ...........................................................................................................15 Cal. Penal Code § 135........................................................................................................11 Va. Code § 18.2-434 ..........................................................................................................11 Va. Code § 18.2-436 ..........................................................................................................11

MISCELLANEOUS Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, 923 (1970).............................................................................................................................1 Manual of Complex Litigation (4th Ed.) ..............................................................................2

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Defendant Rambus Inc. ("Rambus") respectfully submits this Opening Brief in support of its motion, pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure, to dismiss the Complaint filed by plaintiffs Micron Technology, Inc. and Micron Semiconductor Products, Inc. (together, "Micron") for failure to state a claim upon which relief can be granted. INTRODUCTION Micron's Complaint charges Rambus with violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"). Congress intended the RICO statute to apply to patterns of "long-term criminal conduct" (H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 241-42 (1989)), in order to "eradicat[e] organized crime in the United States" (Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, 923 (1970)). The Third Circuit rejects claims that do not meet the specific requirements Congress set forth for RICO causes of action. E.g., Anderson v. Ayling, 396 F.3d 265, 268-71 (3d Cir. 2005); see also Al-Abood v. El-Shamari, 217 F.3d 225, 238 (4th Cir. 2000) (denying RICO claim for failure to establish RICO's elements, and observing that "this case is not sufficiently outside the heartland of fraud cases to warrant RICO treatment"). Micron's RICO allegations produce precisely the type of claims that the Third Circuit and other federal courts have rejected for failure to meet the requirements under RICO. Micron first attempts to transform isolated instances of alleged document spoliation and purportedly false testimony into fraud claims, and then attempts to transform those improper fraud claims into RICO claims. Micron's effort to force the "square peg" of its litigation misconduct allegations into the "round hole" of the RICO statute should be rejected at this initial pleading stage.

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The Manual for Complex Litigation (4th Ed.) ("Manual") makes clear that courts should weed out defective RICO cases, like the present one, on motions to dismiss. The Manual specifically states that the initial pleadings play an "important role" because "[c]ertain issues persistently appear in RICO litigation and can significantly affect the viability of the claim." Manual at 708, 718. Consequently, the Manual suggests "[a]ddressing these issues early in the case" because they "can reveal the presence of fatal flaws in the complaint before the court or the parties expend significant resources." Id. at 708. The threshold issues identified in the Manual include whether the statute of limitations bars the claims, whether the plaintiff suffered a RICO injury sufficient to confer standing, and whether the plaintiff alleged that the purported wrongdoing proximately caused the plaintiff's alleged injury (id. at 708-717) ­ Rambus demonstrates below that Micron's RICO claims merit dismissal on all three of those independent grounds. The Manual also emphasizes the "prominent role" played by Rule 9(b) in ensuring "that complaints sounding in fraud entail more than general and vague statements of alleged misrepresentation, and plaintiffs who fail to plead the underlying predicate acts with the specificity demanded by Rule 9(b) risk dismissal of their RICO claims." Id. at 704. Micron plainly failed to meet the specificity requirements of Rule 9(b) because it provides no details whatsoever regarding any alleged act of mail or wire fraud.

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SUMMARY OF ARGUMENT The claims asserted in Micron's Complaint should be dismissed for several, independent reasons. As an initial matter, Micron's RICO claims fail because they are untimely. A four-year statute of limitations applies to RICO claims, and those claims accrue on the date when the plaintiff knew or should have known of the alleged injury.1 Micron was fully aware of its alleged injury by at least August, 2001 ­ more than four years before Micron filed this Complaint on February 21, 2006.2 On August 31, 2001, Micron moved this Court for sanctions against Rambus founded upon the very same allegations it asserts here. Specifically, Micron stated that "Rambus had engaged in a pattern of serious litigation-related misconduct" that consisted of "providing false deposition testimony" and "willfully destroy[ing] documents." (Micron Mem. in Support of Motion for Sanctions, p. 1, (August 31, 2001) (D.I. 398) ("Sanctions Motion").) The language of the August 31, 2001 Sanctions Motion forestalls any argument that Micron did not, as of that date, have knowledge of the injury (and wrongful conduct) that it alleges here. Accordingly, the statute of limitations on Micron's RICO claim expired (at the latest) on August 31, 2005 ­ more than five months before Micron filed this Complaint. Moreover, Micron's Section 1962(c) RICO claim in Count I fails on the merits because Micron cannot establish two elements essential to such a claim. First, Micron's RICO claim fails to meet Section 1962(c)'s requirement that the RICO defendant (Rambus) be distinct from the RICO "enterprise" that it allegedly controls. Micron's alleged RICO enterprise consists

1

Micron's failure to plead a proper RICO injury at all, which is necessary to confer RICO standing upon Micron, constitutes one of the pleading deficiencies discussed below. 2 Micron originally filed this Complaint in the Eastern District of Virginia on February 21, 2006, and it was subsequently transferred to the District of Delaware after this Court enjoined Micron from pursuing its RICO claims in Virginia. 3

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only of Rambus and its agents. But a corporation is not distinct from its agents, and therefore Micron's RICO claim is doomed because it fails the distinctiveness requirement. Second,

Micron has not pleaded an actionable RICO injury. Micron's alleged injury is the attorneys' fees and costs of litigation incurred in connection with Rambus's patent infringement claims. Because Micron does not (and could not) contend that Rambus's alleged wrongful conduct proximately caused such injury, Micron has failed to plead an actionable RICO injury. Accordingly, its RICO claim must be dismissed. Furthermore, to the extent that Micron relies upon mail and wire fraud as the predicate acts underlying its Section 1962(c) RICO claim, its allegations fall woefully short of the particularity required by the Third Circuit under Rule 9(b). Micron fails to identify even a single specific act of mail or wire fraud or the party who committed the act, let alone describe the time, place or other specifics required by Rule 9(b). Micron's Section 1962(d) RICO conspiracy claim in Count II also lacks merit. Initially, Micron's RICO conspiracy claim requires the support of an underlying violation of Section 1962(c), and for the reasons identified above Micron has not properly alleged one. Furthermore, to maintain a RICO conspiracy claim, a plaintiff must allege an agreement among the alleged co-conspirators that extends beyond merely an agreement to commit the alleged predicate acts. Micron does not allege such a conspiracy, and therefore its RICO conspiracy claim fails. Micron's state law conspiracy claim should also be dismissed. Under well-settled Virginia law, it is legally impossible to establish a conspiracy among a corporation and its employees and other agents because a corporation cannot conspire with itself. Micron's alleged

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conspiracy comprises only Rambus and its employees and agents. Accordingly, Micron's state law conspiracy claim fails. Finally, all of the claims in Micron's Complaint are barred by the NoerrPennington doctrine. With the Complaint, Micron attacks Rambus for asserting patent

infringement claims against Micron and other computer memory manufacturers. In fact, Micron seeks a permanent injunction preventing Rambus from filing future lawsuits. But Rambus has a fundamental Constitutional right, secured by the Noerr-Pennington doctrine, to petition the courts to protect its patent rights. That doctrine precludes Micron from using RICO, civil conspiracy or any other cause of action designed to stop Rambus from pursuing its patent infringement claims, or otherwise to deter Rambus from asserting its rights in court. ARGUMENT I. STANDARD OF REVIEW. A court properly grants a motion to dismiss under Rule 12(b) where, after assuming "as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and viewing them in the light most favorable to the plaintiff . . ., it appears to a certainty that no relief could be granted under any set of facts that could be proved" consistent with the allegations. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (citations omitted). Importantly, "[h]owever, a court need not credit either `bald assertions' or `legal conclusions' in a complaint when deciding a motion to dismiss." Id. (citations omitted). Additionally, to the extent that Micron bases its claims on allegations of fraud, such allegations must meet the pleading standards imposed by Federal Rule of Civil Procedure 9(b) or face dismissal under Rule 12(b). The particularity requirements of Rule 9(b) serve to "place the defendant[] on notice of the precise misconduct with which they are charged, and to

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safeguard defendants against spurious charges of immoral and fraudulent behavior." Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004) (citation omitted). Rule 9(b) obligates Micron to plead the specific circumstances of its fraud assertions in order to provide a "measure of substantiation into [its] allegations of fraud." Id. (citation omitted). II. THE GOVERNING STATUTE OF LIMITATIONS TIME-BARS MICRON'S RICO CLAIMS (COUNTS I AND II). A. Micron Filed The Complaint After The Four-Year Statute of Limitations Applicable To Its RICO Claims Had Expired. In Counts I and II of its Complaint, Micron asserts a claim for a direct RICO violation under Section 1962(c), and a claim for conspiracy to violate RICO under Section 1962(d). The Supreme Court has established that the Clayton Act's four-year statute of

limitations applies to all civil RICO claims. Klehr v. A.O Smith Corp., 521 U.S. 179, 183 (1997) (citing Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987)). The Third Circuit has determined that the four-year RICO statute of limitations period begins to run when plaintiffs knew or should have known of their injury and the source of their injury. See Prudential Ins. Co. of America v. U.S. Gypsum Co., 359 F.3d 226, 233 (3d Cir. 2004); see also Blystra v. Fiber Tech Group, Inc., 407 F. Supp. 2d 636, 641 (D.N.J. 2005). Knowledge of the alleged injury and its source triggers the limitations period even if the plaintiff remains ignorant of the acts comprising the alleged "pattern" of predicate acts that would give rise to a RICO claim. See Rotella v. Wood, 528 U.S. 549, 554-55 (2000).3 The relevant injury is one to the plaintiff's "business or property" purportedly caused by a RICO "predicate act" (i.e., a violation
3

In Rotella, the Supreme Court rejected the "injury and pattern" test, under which a plaintiff must recognize both the injury and that a RICO pattern of predicate acts caused the injury, because that test extended the limitations period too far and thus stood contrary to "the basic policies of all limitations provisions: repose, elimination of stale claims, and certainty about a plaintiff's opportunity for recovery and a defendant's potential liabilities." Rottella, 528 U.S. at 555. Although not applicable, even that test is satisfied here because Micron alleged the same "pattern" of misconduct by Rambus more than four years ago. 6

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of one of the criminal statutes identified in 18 U.S.C. § 1961). See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497 (1985) (stating that "the compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern"). At the very latest, Micron knew of its alleged injury and its source by August 31, 2001, when Micron moved to sanction Rambus for the very same conduct and injury alleged in the Complaint. All of the predicate acts Micron proffers in the Complaint (e.g., Cmplt. ¶¶ 77, 100-01) stem from two categories of alleged "wrongful conduct": (a) the destruction of certain Rambus documents in 1998, 1999 and 2000 (e.g., id. ¶¶ 44-64); and (b) allegedly false testimony provided by Rambus witnesses in litigation concerning Rambus's patents (e.g., id. ¶¶ 37-42, 6876, 78-82). The Sanctions Motion that Micron brought against Rambus in this Court on August 31, 2001 vividly demonstrates that Micron knew of its alleged injury and Rambus's allegedly wrongful conduct as of that date ­ which was more than four years ago. In that motion, Micron described allegations made in the Eastern District of Virginia in the Rambus v. Infineon litigation that mirror Micron's RICO allegations. Specifically, in the present Complaint, Micron alleges that Rambus and its management "conspired to destroy or suppress material evidence and submit false testimony to hide or deny" "known problems" with Rambus's patents. (Cmplt. ¶ 92.) Micron further alleges that the "conspiracy" was carried out through the "institut[ion of] a document destruction policy with a purpose and effect [] to intentionally destroy documents they knew would be discoverable" (id. ¶ 93, see also id. ¶¶ 44-64), and the related submission of "false testimony to this and other courts" (id. ¶ 96, see also id. ¶¶ 37-42, 68-76, 78-82). Those allegations in turn serve as the basis of an alleged "pattern" of RICO predicate acts that supposedly injured Micron.

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(Id. ¶¶ 12, 16, 100-01, 103-06.) Indeed, Micron expressly states that the alleged "improper litigation conduct" lies "at the heart of this lawsuit." (Id. ¶ 16.) Micron made precisely the same allegations more than four years before the Complaint was filed in its August 31, 2001 Sanctions Motion. In that motion, Micron stated that "Rambus executives . . . thwarted discovery by providing false deposition testimony" and charged that "Rambus willfully destroyed documents `for the purpose of getting rid of documents that might be harmful in litigation.'" (Sanctions Motion at 1.) Indeed, Micron even characterized Rambus's actions as "a pattern of serious litigation-related misconduct" (id. (emphasis added)), just as it does in the Complaint (Cmplt. ¶¶ 16, 93, 96, 103-06). Micron grounded its Sanctions Motion largely on the August 10, 2001 opinion issued in Rambus, Inc. v. Infineon Techs. A.G., 155 F. Supp. 2d 668 (E.D. Va. 2001) ("Infineon Order"), and cites to that order as the basis for several allegations. (E.g., Cmplt. ¶¶ 17-18.) The chart attached hereto as Exhibit A sets forth a side-by-side comparison of five of the key allegations in the Complaint and the nearly identical allegations addressed in the Infineon Order, which demonstrates that Micron knew of its purported injury, and the basis of its claims, by at least August of 2001. Micron's Sanctions Motion thus establishes that Micron had actual knowledge of its alleged injury from Rambus's purported predicate acts as of August 31, 2001, and consequently that the four-year statute of limitations began to run, at the latest, on that date. Accordingly, the statute of limitations on Micron's RICO claims expired, at the latest, on August 31, 2005, rendering them untimely. At the very least, the Sanctions Motion demonstrates that on August 31, 2001 Micron had knowledge of its injury sufficient to place it on "inquiry notice," and thus that Micron "should have known" of its alleged injuries as of that time. Such notice alone starts the statute of limitations period running.

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In Prudential, the Third Circuit held that the plaintiff's RICO claims were timebarred because the plaintiff "should have known" of its injury more than four years before the complaint was filed based upon far less compelling circumstances than those present here. In that case, plaintiff, Prudential, asserted RICO claims and sought damages based upon the presence of asbestos-containing materials ("ACMs") in its commercial real estate buildings. Prudential, 359 F.3d at 234. Prudential filed its complaint on October 20, 1987, and therefore the issue was whether Prudential knew of its injuries more than four years before that date. Id. at 231, 233. The Court found, inter alia, that "[m]ultiple incidents and tenant complaints in Prudential's own buildings [prior to 1983] should have [] provided Prudential notice of the ACM-related injuries it alleges in the amended complaint" (id. at 235) and Prudential admitted that its "employees `had some awareness of asbestos as an issue in certain of Prudential's buildings during the late 1970s and early 1980s'" (id. at 236). Accordingly, the Third Circuit held that Prudential "should have known" of its injuries more than four years prior to filing its complaint. Id. Here, the accusations of document destruction and false testimony contained in the August 31, 2001 Sanctions Motion mirror the allegations in the Complaint. Therefore, at the very least, Micron "should have known" of both its injury and its source as of the date of the Sanctions Motion. Furthermore, Micron cannot save its claims by pointing to the two allegations of improper litigation conduct that occurred within the four-year statute of limitations period: (a) the testimony of Richard Crisp, a former Rambus employee, during a 2004 deposition in the Infineon matter (Cmplt. ¶ 73); and (b) Rambus allegedly "withholding" certain "backup tapes" (id. ¶ 80). The Supreme Court in Klehr expressly held that when a predicate act injures a plaintiff outside of the limitations period, later predicate acts occurring within the statute of

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limitations period do not render a RICO claim timely if, as here, the plaintiff has "not shown how any new [predicate] act could have caused [it] harm over and above the harm that the earlier acts caused." Klehr, 521 U.S. at 190. As noted above, the only injury alleged in the Complaint is the attorneys' fees and other litigation costs that Micron incurred. But Micron nowhere alleges, and one cannot conceive, that Mr. Crisp's allegedly false testimony in the Infineon matter harmed Micron at all, because Micron was not even a party to the Infineon litigation. Nor does Micron allege that such allegedly false testimony imposed an additional or greater injury to Micron's business or property than that caused by any earlier wrongful conduct. Thus, Mr. Crisp's allegedly incorrect testimony cannot restart4 (or extend) the limitations period. Similarly, the fact that "Infineon did not ever benefit from having" the "backup tapes" (Cmplt. ¶ 80 (emphasis added)) could not possibly have harmed Micron. And, because Micron now has those tapes, it cannot have suffered any injury (and certainly not any additional or greater injury) on account of Rambus allegedly having "withheld" of them. (Id. ¶ 80.) Micron also cannot render its RICO claims timely by pointing to "recently produced documents" (presumably the "backup tapes") that, according to Micron, demonstrate the falsity of testimony in the Infineon litigation regarding the ownership of the patents at issue. (Id. ¶¶ 5, 80.) Again, that testimony occurred in the Infineon litigation and, therefore, could not have harmed Micron here. The only recently-produced document to which Micron references in its Complaint is an e-mail from Mr. Farmwald. (E.g., Cmplt. ¶¶ 3, 33-43.) Micron alleges that e-

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The Supreme Court in Klehr also emphasized that, because it rejected the Third Circuit's prior "last predicate act" test, in which the statute of limitations began to run only after the commission of the last predicate act that made up the alleged "pattern," the commission of a predicate act within the limitations period cannot "help [plaintiff] recover for the injuries caused" by acts outside of the limitations period. Klehr, 521 U.S. at 190. 10

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mail shows that Rambus does not own the patents at issue because Mr. Farmwald had the idea for his invention while employed by MIPS. (Id. ¶ 42.) But Micron alleged in its amended complaint, filed in Case No. 00-792 in February of 2001, that Mr. Farmwald, a co-inventor, worked at MIPS when he made the invention and, consequently, that Rambus does not own the patent. (Am. Cmplt. ¶ 106.) Thus, Micron cannot claim that it only recently learned of an argument or defense to Rambus's infringement claims. Accordingly, Micron cannot use the alleged withholding of backup tapes to revive its untimely RICO claim.5 In light of Micron's knowledge of its alleged injury on August 31, 2001, the fouryear statute of limitations applicable to its RICO claims unquestionably began to run no later than that date. The limitations period therefore expired, at the latest, on August 31, 2005 ­ five and a half months before Micron filed the Complaint. Consequently, RICO's four-year statute of limitations bars Micron's Section 1962(c) claim and Section 1962(d) conspiracy claim. See, e.g., Prudential, 359 F.3d at 236, 238; Blystra, 407 F. Supp. 2d at 641. B. Micron's Fraudulent Concealment Allegations Cannot Toll The Statute Of Limitations. In an effort to cure the untimeliness of its claims, Micron offers several allegations directed at tolling the running of statute based upon Rambus's purported "fraudulent concealment" of the alleged "wrongful conduct." (Cmplt. ¶¶ 83-90.) As with all allegations of fraud, pleading fraudulent concealment requires the plaintiff to plead the elements of that defense to the statute of limitations with the specificity required by Rule 9(b), which Micron has failed to Moreover, "withholding" of documents in civil litigation does not constitute a valid RICO predicate act. The obstruction of justice and related statutes cited by Micron (Cmplt. ¶ 82) do not encompass the failure to produce documents in ordinary litigation, but rather require directly defying a judicial order, the use of physical intimidation or similar conduct. See, e.g. 18 U.S.C. §§ 1341, 1343, 1503 and 1512; Va. Code §§ 18.2-434, -436, and -460. Indeed, only the cited California statute even superficially appears to encompass Rambus's alleged wrongdoing, but that statute is only a misdemeanor (Cal. Penal Code § 135) not punishable by imprisonment of more than one year, and thus is not a valid state law predicate act (18 U.S.C. § 1961(1)(A)). 11
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do.6 See, e.g., Studiengesellschaft Kohle, mbH v. Hercules, Inc., 748 F. Supp. 247, 253 n.4 (D. Del. 1990). Micron's claim of fraudulent concealment is facially defective because, as the Sanctions Motion starkly reveals, the alleged wrongdoing was not "concealed." In the August 31, 2001 Sanctions Motion, Micron accused Rambus of "a pattern of serious litigation-related misconduct" that included improper destruction of documents and false testimony. (Sanctions Motion at 1.) That is precisely the "wrongful conduct" Micron alleges in its new RICO claims. The Sanctions Motion therefore belies Micron's contention that "[u]ntil recently, Micron did not know the fact of . . . the wrongful conduct alleged herein." (Cmplt. ¶ 84.) Accordingly, Micron cannot credibly claim that it had no knowledge of, or failed to discover, the facts that form the basis of its claim after August 31, 2001. Thus, the notion of fraudulent concealment has absolutely no application here. See Hockenberry, 2005 WL 1458768, at *3. Nor does Micron's assertion that it did not know the "extent of" the alleged wrongful conduct (Cmplt. ¶ 84) toll the statute of limitations. As the Fourth Circuit observed: [i]t is not necessary that [plaintiff] knew, in 1976, all of the persons involved in, or all of the details of, [defendants'] alleged torts. [Plaintiffs'] action is time-barred as long as they were "on notice" of the conduct about which they complain. Blanck v. McKeen, 707 F.2d 817, 819-20 (4th Cir. 1983) (emphasis added). Both the "wrongful conduct" alleged in the Complaint and in the Sanctions Motion concerned identical conduct ­ destruction of documents and purportedly false testimony. (Compare Cmplt. ¶¶ 44-64, 68-76 To toll a statute of limitations based upon fraudulent concealment, a plaintiff must adequately allege that: (1) the defendant engaged in affirmative acts of concealment designed to mislead the plaintiff regarding the facts supporting the claims; (2) the plaintiff exercised reasonable diligence to uncover the facts supporting the claims; and (3) plaintiff failed to discover the facts supporting the claims within the statutory period. See Forbes v. Eagleson, 228 F.3d 471, 486-87 (3d Cir. 2000); Prudential, 359 F.3d at 237-38; Hockenberry v. Diversified Ventures, Inc., 2005 WL 1458768, *2 (M.D. Pa. June 20, 2005); Weinberger v. Retail Credit Co., 498 F.2d 552, 555 (4th Cir. 1974). 12
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with Sanctions Motion at 1-2.)

Micron even characterized that conduct the same way,

summarizing Rambus's alleged actions in the Sanctions Motion as "a pattern of serious litigation-related misconduct" (Sanctions Motion at 1), and stating in the Complaint that "improper litigation conduct [] is at the heart of this lawsuit" (Cmplt. ¶ 16). Thus, Micron cannot now claim that fraudulent concealment tolled the statute of limitations beyond the August 31, 2001 date of the Sanctions Motion. See Forbes, 228 F.3d at 487 (rejecting fraudulent

concealment argument because "the unmistakable historical facts demonstrate that the plaintiffs were aware or should have been aware of the facts supporting their [RICO] claim long before" the date four years before the Complaint was filed); Blanck, 707 F.2d at 819-20; Weinberger, 498 F.2d at 555-56.7 Micron's assertion that it "could not have discovered the illegal conduct at an earlier date by the exercise of due diligence because of defendant's deceptive practices and techniques of secrecy" (Cmplt. ¶ 89) likewise rings hollow. Indeed, as the Sanctions Motion shows, Micron knew of facts sufficient to bring the RICO claims it asserts here in August of 2001. Micron had an obligation to use due diligence in pursuing its RICO claims, and Micron failed to meet that obligation. See Prudential, 359 F.3d at 228 (rejecting fraudulent concealment argument for lack of diligence because of failure to investigate known problems that revealed basis of case); Hartnett v. Schering Corp., 2 F.3d 90, 93 (4th Cir. 1993) (media coverage, existing litigation and case law revealed possible cause of action, requiring diligent investigation).

In fact, even if Micron had not filed the Sanctions Motion, the Eastern District of Virginia's August 10, 2001 Infineon Order (upon which Micron based the Sanctions Motion) alone placed Micron "on notice" of its claims. See Bausch v. Philatelic Leasing, Ltd., 728 F. Supp. 1201, 1206 (D. Md. 1990) (noting "the principle that knowledge of a lawsuit puts plaintiffs on notice of the potential consequences" (citing Rockstroh v. A.H. Robins Co., 602 F. Supp. 1259, 1268 (D. Md. 1985) (pending litigation in other jurisdiction defeated finding of fraudulent concealment)). 13

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Micron cannot justify its decision to wait four and a half years after learning of the document destruction and allegedly false testimony before bringing its RICO claims. Finally, Micron has not adequately pleaded under Rule 9(b) that Rambus acted to conceal the alleged wrongdoing. Indeed, Micron alleges only in the most conclusory manner that Rambus took any actions to conceal its alleged wrongdoing, averring that "Rambus and its management took affirmative steps to conceal their wrongful conduct, as specifically alleged in this complaint" (Cmplt. ¶ 86) and that "the illegal conduct, as specifically alleged in this complaint, was kept secret by Rambus and its management" (id. ¶ 88). Simply stating that "Rambus and its management took affirmative steps to conceal" does not suffice ­ allegations describing the actual steps taken are required. Forbes, 228 F.3d at 486 (no fraudulent

concealment unless plaintiff demonstrates "active misleading by the defendant") (emphasis added); Hercules, 748 F. Supp. at 253 (requiring identification of "affirmative acts" and "active concealment"); Weinberger, 498 F.2d at 555 ("merely intoning the word `fraudulently' in a complaint is not sufficient" to raise fraudulent concealment defense); see also Wood v. Carpenter, 101 U.S. 135, 143 (1879) (finding "concealment by mere silence is not enough . . . [t]here must be some trick or contrivance intended to exclude suspicion and prevent inquiry").8 In sum, Micron does not (and cannot) allege any basis on which to toll the statute of limitations. Accordingly, the statute of limitations on Micron's RICO claims began to run (at the latest) on August 31, 2001 and expired on August 31, 2005, rendering those claims untimely.

8

Micron cannot salvage its fraudulent concealment argument through the addition of the generic "as specifically alleged in this complaint" language to its conclusory allegations. (Cmplt. ¶ 86.) Micron tellingly does not cite to specific paragraphs in the Complaint that allege Rambus's acts of concealment, and none exists. 14

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III.

MICRON'S RICO CLAIMS FAIL ON THE MERITS. A. Micron's Section 1962(c) RICO Claim Fails Because The "Association In Fact" Enterprise Alleged By Micron Is Not Distinct From Rambus. In Count I, Micron asserts that Rambus violated Section 1962(c) of the RICO

statute. (Cmplt. ¶ 116.) A Section 1962(c) RICO claim entails a "person" (i.e., the defendant) conducting the affairs of an "enterprise" (of which the defendant is a member) through a "pattern of racketeering activity." 18 U.S.C. § 1962(c). The Supreme Court described the concisely elements of a Section 1962(c) claim as requiring "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, 473 U.S. at 496. Additionally, the RICO statute defines "enterprise" to include legal entities such as corporations and partnerships, as well as "any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). In the Complaint, Micron attempts to plead the non-legal-entity, "association in fact" enterprise, consisting of Rambus and its employees and other agents. (Cmplt. ¶ 118 (asserting that Rambus and its agents "operated and controlled the `enterprise' consisting of an association in fact of themselves and Rambus (the `Corrupt Litigation Enterprise')"). The Supreme Court requires that a RICO defendant be distinct from the RICO enterprise it purportedly controls. See Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001) (explaining that "[i]n ordinary English one speaks of employing, being employed by or associating with others, not oneself"); see also McCullough v. Suter, 757 F.2d 142, 144 (7th Cir. 1985) (Section 1962(c) applies to a person (i.e., defendant) "associated with or employed by an enterprise," and thus the "person" and the "enterprise" must be separate because "you cannot associate with yourself"). Following that principle, the Third Circuit has expressly held that when a corporation is the defendant in a RICO case, the "enterprise" cannot consist of that corporation and its employees and agents, because such persons simply conduct the affairs of the

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corporation. See Brittingham v. Mobile Corp., 943 F.2d 297, 301 (3d Cir. 1991) (distinction between "person" and "enterprise" "would be eviscerated if a plaintiff could successfully plead that the enterprise consists of a defendant corporation in association with employees, agents or affiliated entities acting on its behalf"), overruled on other grounds by Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., Inc., 46 F.3d 258 (3d Cir. 1995). Other federal appellate courts have reached the same conclusion. See, e.g., Fitzgerald v. Chrysler Corp., 115 F.3d 225, 227 (7th Cir. 1997) (holding enterprise consisting of subsidiaries, dealers and financial institutions not properly pleaded, and noting "what possible difference, from the standpoint of . . . RICO, can it make that Chrysler sells its products to the consumer through franchised dealers rather than through dealerships it owns"); see also Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85 (2d Cir. 1999) (employees together with defendant corporation cannot constitute an enterprise); Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 582 (5th Cir. 1992) ("association in fact" of corporation's employees merely amounts to the "defendant corporate entity functioning through its employees in the course of their employment"); Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 449 (1st Cir. 2000).9 The members of Micron's alleged "Corrupt Litigation Enterprise" include defendant Rambus,10 "Rambus' management," Geoffrey Tate (Rambus's former CEO), Richard

9

Under that same rationale, courts reject for lack of distinctiveness alleged "association in fact" enterprises consisting of a corporation and its parent or subsidiary corporations. See NCNB Nat'l Bank v. Tiller, 814 F.2d 931, 936 (4th Cir. 1987), overruled on other grounds by Busby v. Crown Supply, Inc., 896 F.2d 833 (4th Cir. 1990), ("a `person' is not distinct from an `enterprise' when a corporation and its wholly-owned subsidiary are involved"); Bachman v. Bear Sterns & Co., 178 F.3d 930, 932 (7th Cir. 1999) ("[a] firm and its employees, or a parent and its subsidiaries, are not an enterprise separate from the firm itself"). 10 The plain language of the statutory definition of "enterprise" in Section 1961(4) limits "association in fact" enterprises to those comprised of individuals: "enterprise includes . . . any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). As such, although courts have found to the contrary (e.g., United States v. Navarro16

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Crisp (former Rambus employee), Michael Farmwald (Rambus's founder and former vicepresident), Joel Karp (former Rambus vice-president), Neil Steinberg (former Rambus in-house counsel) and Lester Vincent (Rambus's former patent prosecution counsel). (Cmplt. ¶ 118; see also id. ¶¶ 17-22.) "Rambus' management" inherently consists of Rambus employees, and therefore is not distinct from Rambus under the authorities cited above. Further, each of the individuals named above served as a Rambus employee or attorney, and Tate and Farmwald continue to serve on Rambus's board of directors. (Id. ¶¶ 17-22.) The Complaint is far from precise on this and innumerable other issues, but to the extent that Micron associates wrongful conduct with members of the "enterprise," such conduct simply constitutes agents of Rambus conducting Rambus's affairs. For instance, Micron alleges that "Rambus and its senior

management," including Farmwald, Tate, Karp and Crisp "developed a plan to extract licensing fees for Rambus based on a vast array of current and future DRAM products," and "[t]his plan was developed in coordination with Neil Steinberg" and "was executed in part by Lester Vincent, Rambus' patent prosecution counsel." (Cmplt. ¶ 44; see also id. ¶¶ 46, 49.) But Micron also avers that "[f]rom its inception, Rambus' business model was to collect royalties based on its patent portfolio." (Id. ¶ 2.) Accordingly, Micron's alleged "scheme" consists only of Rambus's employees and agents carrying on the business of Rambus. Nowhere in the Complaint does Micron allege any misconduct representing something other than an agent of Rambus conducting Rambus's affairs. In its Brittingham decision, the Third Circuit rejected a RICO claim because ­ as is the case here ­ the "association in fact" enterprise was not distinct from the corporate Ordas, 770 F.2d 959, 969 (11th Cir. 1985)), those decisions ignore the plain language of the statute and offer no justification for concluding that the term "individual" includes corporations. Accordingly, Micron's inclusion of Rambus as a member of the alleged "association in fact" alone should preclude a finding that Micron has pleaded a proper RICO enterprise. 17

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defendant. In Brittingham, the plaintiff named Mobil Corp. ("Mobil") and a Mobil subsidiary as defendants in a RICO claim premised upon alleged false advertising of plastic trash bags. Brittingham, 943 F.2d at 299-300. The alleged "association in fact" consisted of Mobil, its subsidiary and the advertising agencies that marketed the trash bags. Id. at 300. The district court found that plaintiffs did not allege an enterprise distinct from the defendant, Mobil, and entered judgment for the defendant. The Third Circuit affirmed, reasoning as follows: We believe that a 1962(c) enterprise must be more than an association of individuals or entities conducting the normal affairs of a defendant corporation. A corporation must always act through its employees and agents, and any corporate act will be accomplished through an association of these individuals or entities. Id. at 301. The Court went on to hold that: [W]hen a defendant is itself a collective entity, it is more likely that the alleged enterprise is in reality no different from the association of individuals or entities that constitute the defendant or carry out its actions. Unlike individual defendants, a corporation can act only through its employees and agents. . . . Without allegations or evidence that the defendant corporations had a role in the racketeering activity that was distinct from the undertakings of those acting on its behalf, the distinctiveness requirement is not satisfied. Id. Like the alleged enterprise found deficient in Brittingham, Micron's purported enterprise consists only of Rambus employees and attorneys conducting Rambus's affairs. Micron expressly states that Rambus's "business model was to collect royalties based on its patent portfolio." (Cmplt. ¶ 2.) All activities related to securing patents for Rambus and asserting its patent rights thus fall squarely within Rambus's ordinary business affairs. Such activities, in turn, comprise the purportedly wrongful acts of the alleged "Corrupt Litigation Enterprise." (E.g., Cmplt. ¶¶ 37-82.) Micron's Section 1962(c) RICO claim therefore fails for

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lack of an enterprise distinct from the defendant, Rambus. Brittingham, 943 F.2d at 303; Moffat Enters., Inc. v. Borden, Inc., 763 F. Supp. 143, 149 (W.D. Pa. 1990) (dismissing Section 1962(c) RICO claim where enterprise consisted of company, its employees and its advertising agency); Fitzgerald, 115 F.3d at 227. B. Micron Has Not Pled A RICO Injury. To establish standing to bring a private RICO claim, Section 1964(c) requires Micron to plead that it suffered an injury from one of the alleged predicate acts that underlie the alleged violation of Section 1962(c). See Holmes v. Securities Inv. Protection Corp., 503 U.S. 258, 265 (1992); Sedima, 473 U.S. at 496. Micron lists several statutes, which concern mail and wire fraud and obstruction of justice, that Rambus purportedly violated, and identifies them as the predicate acts for its RICO claim. (Cmplt. ¶¶ 100-01.) The underlying conduct that

allegedly violated these statutes consists of two categories of alleged actions by Rambus ­ the shredding of documents and false testimony. (Id. ¶¶ 37-64, 69-76, 93, 97.) Accordingly, to plead an injury sufficient to establish RICO standing, Micron must demonstrate that it suffered an injury to "its business or property" resulting from Rambus's alleged document destruction and false testimony. It has not done so. Micron's allegations of injury consist solely of having "been forced, among other things, to expend valuable resources, including attorneys' fees and management and employee time and attention, on litigation triggered by Rambus's inappropriate assertion of patent infringement and other claims." (Id. ¶ 12.) As an initial matter, expending "employee time and attention" does not constitute a proper RICO injury. To have standing, a plaintiff must suffer an jury to its "business or property," which requires an out-of-pocket or financial loss. See Steele v. Hosp. Corp. of Am., 36 F.3d 69, 70-71 (9th Cir. 1994); Dornberger v. Metro. Life Ins. Co., 961 F.

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Supp. 506, 521 (S.D.N.Y. 1997); see also Berg v. First Interstate Ins. Co., 915 F.2d 460 (9th Cir. 1990) (finding that personal injury not compensable under RICO). Micron does not allege that the "employee time and attention" expended on litigation resulted in an out-of-pocket loss, and therefore has not pleaded a RICO injury. As for the payment of attorneys' fees and other litigation costs, Micron must plead not only a connection between the predicate acts and the injury, but also "must show that the connection is proximate, i.e., not too remote." Callahan v. A.E.V., Inc., 182 F.3d 237, 260 (3rd Cir. 1999); see also Holmes, 508 U.S. at 268. Micron fails to allege any causation, much less proximate causation, between the alleged document destruction and false testimony and its alleged injury. Indeed, Micron initiated the litigation in Case No. 00-792, and Micron never contends that the alleged improper document destruction and false testimony caused Micron to expend sums on attorneys' fees or other litigation costs.11 Put differently, nowhere does Micron allege that absent Rambus's allegedly improper document destruction and false testimony, no litigation between the parties would have ensued. Furthermore, false testimony ­ in this case or other cases ­ cannot conceivably have caused Micron to incur attorneys' fees. Micron offers no explanation for why allegedly false testimony in other cases would impact Micron's litigation expenditures, and any alleged false testimony in this case necessarily occurred after litigation had already begun. In all events, Rambus has brought patent infringement claims against Micron because Micron has infringed Rambus's patents. There is no connection ­ and none has been alleged ­ between the alleged document destruction or false testimony and Rambus's assertion of

At most, Micron alleges that Rambus planned document destruction as a part of its litigation plans (Cmplt. ¶ 7), but never alleges that Rambus asserted its claims "because of" the alleged document destruction. Also, Micron alleges that "its losses . . . are a result of the conspiracy set forth above" (Cmplt. ¶ 127 (emphasis added)), but a RICO injury is actionable only if it flows directly from a predicate act. See Holmes, 503 U.S. at 265; Sedima, 473 U.S. at 496. 20

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its patent claims. Thus, Micron's RICO claim fails for want of an injury sufficient to confer standing. See Holmes, 508 U.S. at 276; Callahan, 182 F.3d at 267. C. Micron's Allegations Of Mail And Wire Fraud Lack the Specificity Required By Rule 9(b). To the extent that Micron bases its RICO claim on predicate acts grounded in fraud, the allegations of those predicate acts must satisfy the particularity requirements of Rule 9(b). The Third Circuit summarized those requirements in the RICO context as follows: "In order to satisfy Rule 9(b), plaintiffs must plead with particularity `the circumstances' of the alleged fraud in order to put the defendant[] on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior." Lum v. Bank of America, 361 F.3d 217, 224 (3d Cir. 2004) (citation omitted). Rule 9(b) obligates Micron to plead "the `date, place or time' of the fraud" or to provide an "`alternative means of injecting precision and some measure of substantiation into [its] allegations of fraud.'" Id. (citation omitted). Micron "must also allege who made a

misrepresentation to whom and the general content of the misrepresentation." Id. (citing Klein v. General Nutrition Co., Inc., 186 F.3d 338, 345 (3d Cir. 1999)). Micron's allegations of mail and wire fraud do not even approach the required specificity described by the Third Circuit in Lum. Such predicate acts are specific, fraud-based causes of action that contain particular elements and must be pleaded independently from the more general allegations of document destruction and false testimony. Micron has not pleaded with the specificity required by 9(b) the actual instances of mail and wire fraud that purportedly occurred in connection with the alleged improper document destruction and false testimony. Indeed, Micron does not identify a single specific instance of a misrepresentation conveyed via mail or the wires that would constitute fraud, let alone describe the nature of any such

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misrepresentation. Having failed to point out a specific instance of fraud, Micron necessarily fails to provide the "date, place or time" of the purported fraud, or even to attempt an "alternate means" of substantiating such fraud. Additionally, Micron never identifies a single individual who made an alleged misrepresentation that underlies a mail or wire fraud claim. Micron merely musters conclusory statements that, "as an integral part and result of [the alleged] conduct and these acts and omissions," Rambus and the members of the alleged RICO enterprise "used the mails in the U.S. or foreign commerce to commit one or more frauds" and "used the wires in U.S. or foreign commerce to commit one or more frauds." (Cmplt. ¶¶ 100(a), (b); see also id. ¶ 102.) Micron never identifies any single e-mail or specific use of the telephone or mails in connection with any of the allegedly improper document destruction or testimony. Thus, at bottom, Micron's attempt to plead fraud consists of alleging that certain litigation misconduct occurred, and then assuming that "one or more instances" of mail or wire fraud must have taken place in connection with such activities. The Third Circuit in Lum rejected similar allegations of mail and wire fraud as predicate acts in a RICO lawsuit: [T]hese conclusory allegations do not satisfy Rule 9(b). They do not indicate the date, time, or place of any misrepresentations; nor do they provide an alternative means of injecting precision and some measure of substantiation into the fraud allegations because they do not identify particular fraudulent financial transactions. . . . Nor do these allegations indicate which defendant(s) made misrepresentations to which plaintiffs. Lum, 361 F.3d at 224-25 (citations omitted). The same result obtains here. Accordingly, Micron's RICO claim fails to the extent it hinges upon mail or wire fraud. Id. at 228.

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D.

Micron Fails To Plead A Viable Section 1962(d) Conspiracy Claim. Micron's Section 1962(d) RICO conspiracy claim, set forth in Count II of the

Complaint, should be dismissed on the merits for two reasons. First, because Micron has failed to assert a viable underlying RICO action against Rambus under Section 1962(c), Micron cannot maintain a claim against Rambus for conspiring to violate RICO. Second, Micron has not alleged, as it must, that the conspiracy extends beyond the commission of the predicate acts. A Section 1962(d) cause of action for conspiring to violate RICO will not lie where the plaintiff has not first established an underlying RICO violation. See, e.g., Lighting Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir. 1993) ("Any claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient"); Gatz v. Pomsoldt, 397 F.Supp.2d 719, 732 n.21 (D. Del. 2003) (dismissing conspiracy claim under section 1962(d) where plaintiff failed to plead proper claims under 1962(b) and (c)). Accordingly, if the Court dismisses Micron's Section 1962(c) violation for any of the reasons discussed above, Micron's Section 1962(d) conspiracy claim must also be dismissed. Micron's conspiracy claim also fails because Micron has not alleged a conspiracy to commit any act beyond the predicate acts. The Third Circuit has held that "mere agreement to commit the predicate acts is not sufficient to support a charge of conspiracy under § 1962(d)." Glessner v. Kenny, 952 F.2d 702, 714 (3d Cir. 1991), overruled on other grounds by Jaguar, 46 F.3d at 267. Micron's Complaint contains the exact deficiency described in Glessner. Micron alleges only that Rambus and the other members of the alleged enterprise "conspired to manage, operate, conduct and participate in the conduct of the affairs of the `Corrupt Litigation Enterprise' through a pattern of racketeering activity." (Cmplt. ¶ 129 (emphasis added); see also

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id. ¶¶ 130-32.) The "pattern of racketeering activity" of course constitutes only the predicate acts. 18 U.S.C. § 1961(1), (5). Therefore, the only conspiracy Micron alleges is one to commit the predicate acts underlying the RICO enterprise, and consequently Micron's conspiracy claim cannot be sustained. See Glessner, 952 F.2d at 714. IV. MICRON'S STATE LAW CONSPIRACY CLAIM (COUNT III) FAILS BECAUSE A CORPORATION CANNOT CONSPIRE WITH ITSELF. In Count III of the Complaint, Micron asserts a claim for civil conspiracy under Sections 18.2-499 and 18.2-500 of the Virginia Code.12 (Cmplt. ¶¶ 134-39.) Those statutory provisions create a cause of action for a person "willfully and maliciously" injured "in his reputation, trade, business or association" by a conspiracy of "two or more persons." Selman v. American Sports Underwriters, Inc., 697 F. Supp. 225, 237 (W.D. Va. 1990). Micron has not alleged a viable conspiracy claim under Virginia law.13 Well-settled Virginia law provides that a conspiracy among a corporation and its agents is "a legal impossibility because a principal and an agent are not separate persons for purposes of the conspiracy law." Charles E. Brauer Co., Inc. v. Nationsbank of Virginia, N.A., 466 S.E.2d 382, 387 (Va. 1996) (referring to this principle as the "intracorporate immunity" doctrine); see also Selman, 697 F. Supp. at 238 (noting that "a corporation cannot conspire with itself, just as an individual cannot conspire with himself"). As with the alleged RICO enterprise, the members of the alleged conspiracy identified by Micron consist of Rambus and its management, employees and attorneys. (Cmplt. ¶ 135; see also id. ¶¶ 16-22.) Micron does not allege that any of t