Case 2:09-cv-07145-JFW-JEM Document 24 Filed 12/16/09 Page 1 of 4 Page ID #:238

1 Bin Li, Esq. SBN 223126

LAW OFFICES OF BIN LI
2 17800 Castleton Street, Suite 605
City of Industry, CA 91748
3
telephone: 626-839-0277
4 facsimile: 626-839-0322
email: usbinli@sbcglobal.net
5
Attorney for Defendants
6
Kandi Technologies Corp.
7 and Kandi, USA, Inc.

8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
CONG WANG, an individual; Case No.: CV09-7145 JFW(JEMx)
12 SEASENG, INC., a/k/a KMD
POWERSPORTS, a California
13 corporation, NOTICE OF MOTION AND MOTION OF
DEFENDANTS KANDI TECHNOLOGIES
14 CORP. AND KANDI USA, INC., TO
Plaintiffs,
15 vs. DIMISS FIRST AMENDED COMPLAINT
FOR LACK OF SUBJECT MATTER
16 ZHEJIANG KANDI VEHICLES CO., JURISDICTION AND FOR FAILURE TO
LTD. a/k/a KANDI TECHNOLOGIES STATE A CLAIM UPON WHICH RELIEF
17 CAN BE GRANTED
CORP., a foreign corporation;
18 KANDI TECHNOLOGIES CORP., a
Delaware Corporation f/k/a/ FRCP 12(b)(1) and 12(b)(6)
19 STONE MOUNTAIN RESOURCES,
INC., ZHEIJIANG YONG KANG TOP
20
IMPORT AND EXPORT CO., LTD.
a/k/a/DINGJI, a foreign DATE: January 25, 2010
21 TIME: 1:30pm
corporation; ZHEHJIANG MEDGELI
22 ELECTRONI CO. LTD. a foreign COURTROOM: 16
corporation; XIAO MING HU, an
23 individual, WANG YUAN HU, an
24 individual; and KANDI USA,
INC., a California
25 corporation,
26 Defendants.
27
28

KANDI TECHNOLOGIES CORP.’s AND KANDI USA, INC.’s

NOTICE OF MOTION TO DISMISS
1
 Case 2:09-cv-07145-JFW-JEM Document 24 Filed 12/16/09 Page 2 of 4 Page ID #:239

1
2 PLAINTIFF AND ITS ATTORNEYS OF RECORD PLEASE TAKE NOTICE:
3 On January 25, 2010, at 1:30pm, in Courtroom 16 of the
4 United States District Court, Central District of California,
5
Western Division, Spring Street Courthouse, located at 312 North
6
Spring Street, Los Angeles, California, Defendants KANDI
7
TECHNOLOGIES CORP., a Delaware corporation and KANDI USA, INC.,
8
a California corporation, will move this Court for an order
9
10 dismissing the First Amended Complaint on the following grounds:

11 1. FRCP 12(b)(6). The First Claim for Relief for

12 violation of the Racketeer Influenced and Corrupt

13 Organizations Act ("RICO") fails to state a claim upon
14 which relief can be granted in that:
15
A. The claim under 18 U.S.C. sec. 1962(a) does
16
not allege damages.
17
B. The claim under 18 U.S.C. sec. 1962(b) does
18
not allege damages.
19
C. The claim under 18 U.S.C. sec. 1962(c) does
20
21 not allege predicate acts and does not allege a pattern of

22 racketeering.

23 D. The claim under 18 U.S.C. sec. 1962(d) does

24 not adequately allege conspiracy.
25
26
27
28

KANDI TECHNOLOGIES CORP.’s AND KANDI USA, INC.’s

NOTICE OF MOTION TO DISMISS
2
 Case 2:09-cv-07145-JFW-JEM Document 24 Filed 12/16/09 Page 3 of 4 Page ID #:240

1 2. FRCP 12(b)(1). The First Amended Complaint fails to

2 establish a basis for federal subject matter jurisdiction in

3 that:
4 A. The First Amended Complaint defectively pleads
5
original federal question jurisdiction under 28 U.S.C.
6
§1331 because the only federal claim directed against these
7
defendants, the RICO claim, fails to allege violation of a
8
particular federal offense under 18 U.S.C §1861(1), and
9
10 fails to allege facts to establish a pattern of

11 "racketeering". In that this is the only federal claim

12 alleged against these moving Defendants, failure to state

13 this claim eliminates Section 1331 as a basis for asserting
14 jurisdiction.
15
B. The First Amended Complaint defectively pleads
16
supplemental jurisdiction inasmuch as such supplemental
17
jurisdiction under 28 U.S.C. §1332 is predicated on a
18
viable RICO claim, and the RICO claim fails to allege
19
sufficient facts to constitute a claim.
20
21 C. The First Amended Complaint defectively pleads

22 diversity jurisdiction under 28 U.S.C. §1376 in that

23 plaintiffs, who are both California residents, have joined

24 a defendant corporation that is also a California resident.
25
26
This Motion will be based on this Notice, upon the
27
Memorandum of Points, upon all the papers of record, and upon
28

KANDI TECHNOLOGIES CORP.’s AND KANDI USA, INC.’s

NOTICE OF MOTION TO DISMISS
3
 Case 2:09-cv-07145-JFW-JEM Document 24 Filed 12/16/09 Page 4 of 4 Page ID #:241

1 such oral argument as the Court may entertain at the hearing on

2 this motion.
3 This Motion is made following the conference of counsel
4 pursuant to L.R. 7-3 which took place on December 16, 2009.
5
Plaintiffs indicated that they would reconsider lack of
6
diversity jurisdiction and the RICO claim, but would not extend
7
time to plead and this motion is made to comply with time
8
requirements.
9
10
11
12 Dated: December 16, 2009
13
LAW OFFICES OF BIN LI, ESQ.
14
15
16
By: ___/s/_______________________
17 Bin Li, Esq.,
Attorney for Defendants and
18
Movants Kandi Technologies Corp.
19 and Kandi, USA, Inc.

20
21
22
23
24
25
26
27
28

KANDI TECHNOLOGIES CORP.’s AND KANDI USA, INC.’s

NOTICE OF MOTION TO DISMISS
4