This mаtter is before the Court on defendant Northwestern Bell Telephone Company's motion to dismiss and/or for summary judgment, and on plaintiffs’ motion to strike defenses. Plaintiffs’ motion will be denied. Defendant’s motion to dismiss will be granted.
FACTS
Plaintiff H.J., Inc. is a Minnesota corporation with its principal place of business in Burnsville, Minnesota. Plaintiffs Kirk Dahl, Mary Krugen, Larry Krugen, Susan Davis, Robert Neal, Isaac H. Ward, Richard L. Anderson, and Thomas J. Mott are each Minnesota residents. Each of the named plaintiffs has purchased telecommunications goods and services from Northwestern Bell. Defendant Northwestern Bell Telephone Co., a subsidiary of U.S. West, Inc., is a telecommunications concern supplying goods and services in interstate commerce. Defendants Harry Crump, Leo Adams, Barbara Beerhalter, Roger Hanson, and Juanita Satterlee are present or former members of the Minnesota Public Utilities Commission (MPUC). Defendant Robert Johnson is counsel for the Minnesota Telephone Association. Ray Lar *421 son, Roy Weir, Thomas Madison, and Gene Bier are officers and/or employees of Northwestern Bell.
This is a class action arising under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Plaintiffs allege that defendants committed acts in violation of 18 U.S.C. §§ 1962(a), (b), and (c) and further allege that defendants conspired to commit racketeering acts in violation of 18 U.S.C. § 1962(d). Plaintiffs also bring state law claims pursuant to the Court’s pendent jurisdiction, alleging acts of bribery in contravention of Minn.Stat. § 609.42, subd. 1(1) and (2) and the common law of bribery.
The gist of plaintiffs’ cause of action is an allegation that Northwestern Bell, by and through its corporate agents, initiated a scheme designed to illegally influence various members of the MPUC, the regulatory body which sets rates which Northwestern Bell may charge for the goods and services which it provides. Plaintiffs allege that from July, 1980 and through the present, Northwestern Bell has offered, promised, or given, directly or indirectly, certain benefits, rewards, and consideration to duly appointed MPUC commissionеrs, with the intent to influence said commissioners with respect to the performance of their duties as officers of the MPUC. Amended Complaint ¶ 30. Specifically, plaintiffs allege the following corrupting acts:
(1) MPUC commissioner Hanson negotiated with Northwestern Bell officials including Gene Bier, Northwestern Bell’s chief executive officer, regarding an offer of employment made to Hanson by Northwestern Bell in November, 1984, at a time when Hanson was still an MPUC commissioner. Amended Complaint ¶ 37.
(2) MPUC commissioner Hanson received illicit payments from Northwestern Bell of $30,000 during 1985. The illicit payments were made to Robert Johnson, counsel for the Minnesota Telephone Association, and passed on to Hanson. Amended Complaint 1138. These illicit payments continued after Hanson was reappointed MPUC com-' missioner on November 25, 1985. Amended Complaint II39.
(3) Northwestern Bell executives Thomas Madison and Roy Weir made an offer of employment to MPUC commissioner Juanita Satterlee while Satterlee was still a commission member. Amended Complaint 1140.
(4) Northwestern Bell made illicit payments to Satterlee of $106,129 during the period 1983-1984, while Satterlee was an MPUC commissioner. Amended Complaint If 41.
(5) Northwestern Bell officer Larson provided MPUC commissioner Crump with a free plane ride from Oklahoma to Minneapolis on June 26, 1985. Amended Complaint II31.
(6) MPUC commissioners Crump and Beerhalter were provided with an all-expenses-paid excursion to Canterbury Downs in September, 1985, courtesy of Northwestern Bell. Amended Complaint 1132, 36.
(7) MPUC commissioner Crump was provided with tickets to various Broadway plays by Northwestern Bell officials between 1984 and the present. Amended Complaint ¶ 33.
(8) MPUC commissioners Crump and Adams were provided with free tickets to various sporting events by Northwestern Bell officials during the period 1981 to the present. Amended Complaint ¶ 34, 35.
(9) During the period July, 1980 to the present, Northwestern Bell has expended thousands of dollars for various gifts, emoluments, meals, and parties for MPUC commissioners. Amended Complaint If 42.
Plaintiffs’ complaint is in five cоunts. Count I is a state law claim alleging that the defendants bribed MPUC commissioners by offering to those commissioners benefits, rewards, and consideration to which they were not entitled. Plaintiffs seek civil recovery based on violation of the Minnesota criminal bribery statute, Minn. Stat. § 609.42, subd. 1(1) and (2), and for common law bribery. Count II is a RICO claim *422 arising under section 1962(a). Count III arises under RICO section 1962(b), alleging that the defendants associated with the MPUC in unlawful racketeering activity. Count IV arises under RICO section 1962(c) and Count V is a conspiracy count arising under RICO section 1962(d). Each of the RICO counts involves an allegation that the defendants and the MPUC associated together for the purpose of unlawful rackеteering activity.
Plaintiffs seek to recover compensatory damages, measured by the amount received by Northwestern Bell in excess of what would have been a fair and reasonable charge for telephone services. Plaintiffs also seek to recover punitive damages, treble damages pursuant to RICO, 18 U.S.C. § 1962(c), and an injunction prohibiting defendants from engaging in further unlawful activity. 1
Defendant Northwestern Bell now brings this motion to dismiss and/or for summary judgment. Plaintiffs have filed a counter-motion to strike defenses.
DISCUSSION
A. Timeliness
As a threshold matter, plaintiffs argue that defendant’s Rule 12(b)(6) motion to dismiss is untimely. Defendant’s motion was filed after defendant’s answer to plaintiffs’ amended complaint. Rulе 12(b)(6) provides that a motion to dismiss for failure to state a claim upon which relief can be granted shall be made “before [responsive] pleading if a further pleading is permitted.” Fed.R.Civ.P. 12(b)(6) (emphasis added). Rule 12 gives the defendant the option of raising a defense by motion or by the pleadings, however. Courts have discretion to allow 12(b)(6) motions if the defense has been previously included in the answer. 5 C.Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1361 at 643 n. 35. Here, defendant raised its defenses in its answer. In the exercise of the Court’s discretion the defendant will be permitted to bring a Rule 12(b)(6) motion at this time.
B. Motion to Strike Defenses
Plaintiffs have brought a motion to strike defendants’ third, fourth, fifth, sixth, seventh, ninth, tenth, eleventh, and twelfth defenses. Plaintiffs’ motion is brought pursuant to Fed.R.Civ.P. 12(f) which provides:
Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
Fed.R.Civ.P. 12(f). A Rule 12(f) motion to strike defenses is a drastic remedy which is disfavored by the courts and is infrequently granted.
Vernon J. Rockler & Co. v. Minneapolis Shareholders Co.,
Plaintiffs have failed to show that the “drastic remedy” of striking defendants’ defenses is appropriate in the case at bar. Each of the challenged defenses is facially valid. Accordingly, plaintiffs’ Rule 12(f) motion to strike defenses will be denied.
*423 C. RICO
In order to establish a RICO cause of action plaintiffs must prove the existence of four elements:
(1) conduct
(2) of an enterprise
(3) through a pattern
(4) of racketeering activity.
See Sedima, S.P.R.L. v. Imrex Co.,
1. ‘‘Pattern” of Racketeering Activity
An essential element of the RICO civil cause of action is proof that defendants have engaged in a “pattern” оf racketeering activity. The “pattern” requirement was subjected to a searching analysis in the Supreme Court’s Sedima decision. The Sedima Court enunciated the following guiding principles:
(1) two isolated acts of racketeering activity do not constitute a pattern;
(2) it is the factors of continuity plus relationship which combine to produce a pattern;
(3) the “pattern” element of the statute was designed to limit RICO’s application to planned, ongoing, continuing crime as opposed to sporadic, unrelated, isolated criminal episodes.
See Sedima,
The United States Court of Appeals for the Eighth Circuit has explored the meaning of “pattern” in a civil RICO context in two recent cases,
Superior Oil Co. v. Fulmer,
[Plaintiff] has, however, failed to prove the “continuity” sufficient to form a “pattern of racketeering activity.” The actions of [defendants] comprised one continuing scheme to convert gas from [plaintiffs] pipeline____ On the facts of this case, we agree with the court’s conclusion in Northern Trust Bank/O’Hare, N.A. v. Inryco, Inc.,615 F.Supp. 828 , 832 (D.C.Ill.1985), that “[i]t is difficult to see how the threat of continuing activity stressed in the Senate Report could be established by a single criminal episode. * * * It places a real strain on the language to speak of a single fraudulent effort, implemented by several fraudulent acts, as a “pattern of racketeering activity.”
Superior Oil,
In Holmberg
3
plaintiff offered proof of several acts of wire or mail fraud related to a common purpose or scheme. The Eighth Circuit found that plaintiff had satisfied the “relationship” prong of
Sedima.
As in
Superior Oil,
however, the Court found that plaintiff had not satisfied the “continuity” prong. Because defendants’ acts of wire and mail fraud were undertaken as part of a common purpose or scheme, therе was no showing of continuity, notwithstanding that the single fraudulent effort was implemented by several acts of wire or mail fraud. The court stated: “[t]here was no evidence that [the defendants] had engaged in like activities in the past or that they were engaged in other criminal activities.”
Holmberg,
Distilled to their essence,
Sedima, Superior Oil,
and
Holmberg
give rise to the following governing principles. In order to establish a “pattern” of racketeering activity plaintiffs must allege and prove (1) relationship, and (2) continuity. The relationship prong is satisfied by proof of several related acts in furtherancе of a single criminal scheme.
Superior Oil,
*425 Applying these principles to the case at bar, it is clear that plaintiffs have satisfied the first prong of the Sedima “pattern” test. Plaintiffs have alleged a “relationship” among and between the predicate acts of racketeering allegedly committed by defendants. Quite clearly, the acts allegedly committed by defendants — the alleged illicit distribution of tickets and other amenities to MPUC commissioners during the period 1981 to the present; uncompensated plane rides and excursions to Canterbury Downs during the same period; alleged illicit payments and promises of employment to MPUC commissioners Hanson and Satterlee— were related acts in furtherance of a single alleged criminal scheme, i.e., all were designed to influence MPUC commissioners on behalf of Northwestern Bell.
As to the “continuity” prong of the
Sedima
test, however, plaintiffs’ cause of action is much more problematical. While plaintiffs have alleged the existence of several fraudulent acts, each of these acts was committed in furtherance of a
single fraudulent scheme.
Here, as in
Superior Oil, Holmberg,
and
Simon,
there simply are no allegations that the defendants have engaged in “like activities in the past” or that defendants are engaged in “other criminal activities” elsewhere.
Superior Oil,
Plaintiffs cite various decisions of other courts in other circuits where proof of various predicate acts engaged in over a significant period of time has been held to satisfy the “pattern” requirement of civil RICO.
5
See Illinois Dept. of Revenue v. Phillips,
Although plaintiffs’ failure to satisfy the continuity prong of the Sedima pattern test is fully dispositive of plaintiffs’ RICO claims, in the interest of thoroughness, certain of defendant’s remaining arguments for dismissal will be briefly addressed.
2. Enterprise-Person Distinction
RICO was passed as part of the Organized Crime Control Act.
United States v. Hartley,
Defendant moves for dismissal of plaintiffs’ Count II on the ground that Count II names Northwestern Bell as both the “person” and the “enterprise” for purposes of plaintiffs’ section 1962(a) claim. Defendant argues that Northwestern Bell cannot be both the “person” and the “enterprise” and that Count II is thus fatally defective.
RICO proscribes conduct in which one party, the “person” subject to the statute, аcts upon an entity, the “enterprise,” in such a manner that the enterprise’s affairs are conducted through a pattern of racketeering.
Bennett v. Berg,
We do observe that [plaintiff’s] original complaint alleges that [defendant] is both a “person” and an “enterprise” within the meaning of section 1962(c). It was precisely because of the possibility of such an identity that we held that count II of the complaint in Bennett v. Berg [citation omitted] failed to state a claim.
In
Minnesota Odd Fellows Home Foundation v. Engler & Budd Co.,
Plaintiffs’ Count II alleges:
48. Northwestern Bell Telephone Company is a person within the meaning of 18 U.S.C. 1961(3).
49. The person referred to in paragraph 48 is also an ongoing enterprise within the meaning of 18 U.S.C. 1961(4).
Amended Complaint ¶¶1 48, 49. Quite clearly, plaintiffs have failed to allege a RICO “enterprise” separate and distinct from a RICO “person.” Plaintiffs argue, however, that
Bennett
is not controlling in that the
Bennett
plaintiff’s cause of action arose under section 1962(c) of RICO, whereas plaintiffs’ Count II arises under section 1962(a). Some courts have held that in actions arising under section 1962(a) the enterprise and the person need not be distinct.
See, e.g., B.F. Hirsch v. Enright Refining Co.,
'(1) Both 1962(a) and 1962(c) speak 7 of a “person” committing an unlawful act in connection with, but distinct from, an “enterprise.” The consistent use of the two different terms “person” and “enterprise” throughout section 1962 indicates an intent to distinguish those actors throughout.
(2) As stated in
Bennett v. Berg,
“the RICO act proscribes conduct in which one party, the ‘person’ subject to the statute, acts upon an entity, the ‘enterprise’____”
Bennett,
(3) Permitting a RICO cause of action where it is alleged that a corporate entity has conducted its own affairs through a pattern of racketeering activity, without any proof of infiltration of that enterprise by outside “persons,” would not comport, with congressional intention, inasmuch as one of the primary purposes of Congress in enacting RICO was to prеvent the takeover of legitimate business by criminals and corrupt organizations.
B.F. Hirsch,
(4) Sections (a) and (c) of 1962 require the presence of the same elements — conduct of an enterprise, a pattern of racketeering activity, and a person. Only the relationship among these elements differs. Section (c) envisions racketeering acts conducted through an enterprise, whereas section (a) portrays the enterprise as the investment object of the criminal violators. Under either (a) or (c), the enterprise must be acted upon by a distinct “person.”
(5) A construction of (a) which would obviate the separate enterprise-person requirement would be contrary to the restrictive reading of RICO given by the Eighth Circuit in
Superior Oil
and
Holmberg
and would “aggravate the already hopeless deviation of the RICO statute from its intended purpose in ferreting out organized crime.”
Rush v. Oppenheimer & Co.,
Accordingly, based on the foregoing, the Court finds that plaintiffs’ Count II is deficient as a matter of law.
D. Filed Rate Doctrine
Northwestern Bell argues that dismissal of plaintiffs’ RICO claims is necessitated by the federal “filed rate” doctrine. In
Montana-Dakota Utilities Co. v. Northwestern Public Service Co.,
Montana-Dakota, Arkansas Gas, and the Keough line of cases are squarely on point with plaintiffs’ RICO claims. Plaintiffs seek to recover damages measurable by a comparison of MPUC-approved rates and the rates that would have been approved but for defendants’ wrongdoing. Under the “filed rate” doctrine, plaintiffs’ cause of action is not federally cognizable. The MPUC has exclusive authority to determine a reasonable rate, and the MPUC’s decision is conclusive, subject to statutory process. Even assuming that plaintiffs have sаtisfied the “continuity” prong of Sedima, plaintiffs’ action must be dismissed by virtue of the filed rate doctrine.
E. State Law Claims
Plaintiffs’ Count I is a state law claim arising under Minn.Stat. § 609.42 and the common law of bribery. In
United Mine Workers of America v. Gibbs,
Each of the relevant factors supports dismissal of plaintiffs’ pendent state law claims. The case is still at an early stage,
*430
so that there has been no substantial commitment of federal judicial resources.
See, e.g., Briggs v. American Air Filter Co.,
Based on the foregoing, and upon all the files, records, and proceedings in this matter,
IT IS ORDERED that:
1. plaintiffs’ motion to strike defenses is denied;
2. defendant’s motion to dismiss Counts II-V оf plaintiffs’ amended complaint is granted; and
3. defendant’s motion to dismiss Count I of plaintiffs’ amended complaint is granted, and Count I is dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Notes
. The Court was pleased to note that on November 7, 1986 the MPUC voted to reconsider a $57.5 million rate increase granted to Northwestern Bell in 1984. As the Court noted at oral argument, the Commission appears to be an appropriate place to consider whether the alleged briberies and other improper contacts had any effect upon the rate increases granted to Northwestern Bell by the MPUC. The MPUC’s decision to reopen the case means that the rate differentiations of which рlaintiffs complain could be corrected by an MPUC decision to abrogate the 1984 rate increases. Minneapolis Star & Tribune, November 8, 1986, at 1, col. 4.
. The Sedima Court made the following observations:
As many commentators have pointed out, the definition of a "pattern of racketeering activity” differs from the other provisions in § 1961 in that it states that a pattern "requires at least two acts of racketeering activity," § 1961(5) (emphasis added), not that it “means” two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a "pattern.” The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern. As the Senate Report explained: “The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one 'racketeering activity’ and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” S.Rep. No. 91-617, p 158 (1969) (emphasis added). Similarly, the sponsor of the Senate bill, after quoting this portion of the Report, pointed out to his colleagues that "[t]he term ‘pattern’ itself requires the showing of a relationship____ So, therefore, proof of two acts of racketeering activity, without more, does not establish a pattern____" 116 Cong.Rec. 18940 (1970) (statement оf Sen. McClellan). See also id., at 35193 (statement of Rep. Poff) (RICO “not aimed at the isolated offender”); House Hearings, at 665. Significantly, in defining "pattern” in a later provision of the same bill, Congress was more enlightening: "criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” 18 U.S.C. § 3575(e) 18 USCS § 3575(e). This language may be useful in interpreting other sections of the Act.
Sedima,
. In Holmberg the Eighth Circuit cited definitions of "pattern” drawn from the Omnibus Crime Control Act of 1970, 18 U.S.C. § 3575(e), wherein Congress provided that "criminal conduct forms a pattern if it embraсes criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” The Holmberg court also looked to legislative history for guidance, citing the following definition of "pattern” drawn from Senate reports:
The concept of "pattern” is essential to the operation of the statute____ The target of [RICO] is ... not sporadic activity. The infiltration of legitimate business normally requires more than one “racketeering activity” and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.
Holmberg,
.
See, e.g., Simon
v.
Fribourg,
"[P]roof of a ‘pattern of racketeering activity' ‘requires more than one "racketeering activity” and the threat of continuing activity to be effective. It is the factor of continuity plus relationship which combines to produce a pattern.’” Superior Oil Co. v. Fulmer,785 F.2d 252 , 257 (8th Cir.1986) (emphasis in original) (quoting Sedima,105 S.Ct. at 3275 n. 14). In Superior Oil, the plaintiff proved "several related- acts of mail and wire fraud" in furtherance of a single crime — the conversion or *425 theft of gas from plaintiffs pipeline. This satisfied the "relationship" prong of the Sedima test, but not the "continuity prong. The failing in plaintiffs evidence was its inability to demonstrate that defendants had engaged in any other criminal activity. Superior Oil,785 F.2d at 257 .
Simon,
. In a recent decision,
Morgan v. Bank of Waukegan,
. One court has identified three positions which the courts have taken in construing the continuity and relationship test. At one extreme, plaintiff is required to prove that the defendant was engaged in multiple illegal schemes. This is the position taken by the Eighth Circuit in
Superior Oil
and
Holmberg.
At the other extreme, courts have held that allegations of two related predicate acts is sufficient. An intermediate position taken by some courts requires proof of multiple criminal episodes evincing an ongoing practice or activity.
See Louisiana Power and Light,
. RICO section 1962(a) provides:
It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the procеeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce____ The thrust of section 1962(a) is a proscription on the use or investment of illegally acquired funds in an enterprise.
RICO, section 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, 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.
The thrust of section 1962(c) is wrongful association with and control of an "enterprise” by a "person.”