Kabins Family Limited Partnership et al v. Chain Consortium et al

Filing 465

ORDER that Defendants/Cross-Defendants Todd Bergman and T.W.B. Enterprises, Inc.s Motion to Dismiss 444 is DENIED. Signed by Judge Gloria M. Navarro on 6/14/12. (Copies have been distributed pursuant to the NEF - ECS)

Download PDF
1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 KABINS FAMILY LIMITED PARTNERSHIP, et al., 5 Plaintiffs, vs. 6 7 CHAIN CONSORTIUM, et al., 8 Defendants. 9 ) ) ) ) ) ) ) ) ) ) Case No.: 2:09-cv-01125-GMN-RJJ ORDER On April 28, 2011, Defendants/Cross-Claimants Benessere, LLC; Cipriani, LLC; Gila 10 11 Bend 384, LLC; Buckeye 80 West Three, LLC; and Buckeye Canamex 77 One, LLC 12 (collectively, “the Benessere Parties”) filed their Second Amended Cross-Claim (ECF No. 343) 13 against Defendants/Cross-Defendants Todd Bergman and T.W.B. Enterprises, Inc. 14 (collectively, “Bergman”). The following day, the Benessere Parties filed their Errata (ECF 15 No. 346). Now pending before the Court is the Motion to Dismiss filed by Bergman. (ECF No. 16 17 444.) The Benessere Parties filed a Response (ECF No. 448) and Bergman filed a Reply (ECF 18 No. 452). 19 I. BACKGROUND 20 In December 2009, the Benessere Parties filed their original cross-claims (ECF No. 173) 21 against Bergman, as part of their responsive pleading to the initiating Complaint (ECF No. 1) in 22 this case. These were: (1) declaratory relief; (2) implied indemnity; and (3) contribution. (ECF 23 No. 173.) In December 2010, Bergman filed a motion to dismiss the cross-claims. (ECF No. 24 191.) At a hearing on March 26, 2010, Judge Philip M. Pro, the then-presiding judge in this 25 case, granted the motion without prejudice. (Mins. of Proceedings, March 26, 2010, ECF No. 255) Page 1 of 5 1 The Benessere Parties then filed their First Amended Cross-Claim (ECF No. 267) on 2 April 21, 2010, asserting the following causes of action: (1) civil conspiracy; (2) unjust 3 enrichment; (3) conversion; (4) implied/equitable indemnity; and (5) contribution. Bergman 4 subsequently filed a Motion to Dismiss (ECF No. 291). The Court granted Bergman’s Motion 5 to Dismiss and gave the Benessere Parties leave to amend. (Order, July 28, 2010, ECF No. 314) 6 Nine months later, on April 28, 2011, the Benessere Parties filed their Second Amended 7 Cross-Claim (ECF No. 343), alleging: (1) civil conspiracy; (2) unjust enrichment; (3) conversion; 8 (4) implied/equitable indemnity; and (5) contribution. The Benessere Parties’ Errata (ECF No. 9 346) was filed the following day, clarifying that the Second Amended Cross-Claim was not 10 intended to “waive, dismiss and/or surrender” any of the claims relating to all other parties in 11 the instant action, particularly as alleged in their initial filing (ECF No. 173) on December 2, 12 2009. Almost a year later, on March 26, 2012, Bergman filed the instant Motion to Dismiss 13 14 (ECF No. 444). Bergman did not file an Answer to the Second Amended Cross-Claim. 15 II. 16 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 17 that fails to state a claim upon which relief can be granted. See North Star Int’l. v. Arizona 18 Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss 19 under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the 20 complaint does not give the defendant fair notice of a legally cognizable claim and the grounds 21 on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering 22 whether the complaint is sufficient to state a claim, the Court will take all material allegations 23 as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. 24 Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 25 The Court, however, is not required to accept as true allegations that are merely Page 2 of 5 1 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 2 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 3 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a 4 violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 5 Twombly, 550 U.S. at 555) (emphasis added). 6 III. 7 DISCUSSION This action arises out of investments by Plaintiffs Kabins Family Limited Partnership 8 and Lori C. Kabins, as trustee for Lori C. Kabins Separate Property Trust (collectively, “Kabins 9 Plaintiffs”). The Benessere Parties allege that Mark B. Kabins also made investments as alter 10 ego of Kabins Plaintiffs. 11 1. 12 The Benessere Parties allege that Jeff Chain, as Manager of the Benessere Parties, mis- 13 appropriated the Kabins investment funds, and that “by giving monies not entitled to give and 14 by receiving monies not entitled to receive, Chain and Bergman . . . knowingly converted 15 monies rightfully belonging to [the Benessere Parties].” (Second Am. Cross-Cl., 8:¶37, ECF 16 No. 343.) The Benessere Parties allege Chain “had certain contractual and fiduciary duties of 17 good faith and loyalty, among others,” and that Bergman and Chain “acted in concert and 18 conspired between themselves to violate Chain’s contractual and fiduciary duties of good faith 19 and loyalty, among others.” (Second Am. Cross-Cl., 4:¶11, 5:¶16, ECF No. 343.) The 20 Benessere Parties allege that this conspiracy took the form of illegal and improper commissions 21 and finder’s fees which Chain gave Bergman from the investment funds, which were the 22 property of the Benessere Parties. (Second Am. Cross-Cl., 5:¶16, 8:¶38, ECF No. 343.) The 23 Benessere Parties further allege that Bergman’s receipt of the monies to which Bergman was 24 not entitled constitutes unjust enrichment. 25 Unjust Enrichment, Conversion and Civil Conspiracy In the Court’s July 28, 2010, Order, the civil conspiracy and conversion claims were Page 3 of 5 1 dismissed with leave to amend. The Court stated that the Benessere Defendants “must allege 2 facts indicating the elements of a civil conspiracy and/or conversion, such as ‘Bergman agreed 3 with Chain to assist him in misappropriating funds. . . .’” (Order, July 28, 2010, 19:23-24–20:1- 4 2, ECF No. 314.) The Court also dismissed the unjust enrichment claim with leave to amend, 5 stating that “[i]t is possible that the Benessere Defendants are attempting to allege that 6 Bergman’s payments were made out of funds misappropriated by Chain, but this is not clear.” 7 (Id. at 20:10-11.) 8 Here, the Court finds that the Benessere Parties have sufficiently amended their Cross- 9 Claims for Unjust Enrichment, Conversion and Civil Conspiracy, that the Benessere Parties 10 have given Bergman fair notice of legally cognizable claims and the grounds on which they 11 rest, and that the facts pled by the Benessere Parties show that violations are plausible. 12 Accordingly, the motion to dismiss will be denied as to these claims. 13 2. Implied/Equitable Indemnity and Contribution 14 The Benessere Parties have alleged that Bergman caused at least a part of any harm that 15 Plaintiffs attribute to the Benessere Parties. In the Court’s July 28, 2010 Order, the claims for 16 indemnity and contribution were dismissed with leave to amend because the Benessere Parties 17 had not pled enough facts to support the claims. (Order, July 28, 2010, 20:21-24–21:1, ECF No. 18 314.) 19 Here, the Benessere Parties appear to have added only two paragraphs in support of their 20 claims for indemnity and contribution. (See Second Am. Cross-Cl., 9:¶45, 11:¶52, ECF No. 21 343.) However, these paragraphs do not allege any facts, and instead describe the Kabins 22 Plaintiffs’ allegations and the Benessere Parties’ denials of the allegations. Despite the lack of 23 factual support in these paragraphs, the Court finds that the Benessere Parties have nevertheless 24 sufficiently alleged facts to support their claims for implied/equitable indemnity and 25 contribution, because they have now sufficiently alleged the claims for unjust enrichment, Page 4 of 5 1 conversion and civil conspiracy, as discussed above. Accordingly, the motion to dismiss will 2 be denied as to these claims. The Court has considered Bergman’s remaining arguments for dismissal, and finds them 3 4 unpersuasive. The Benessere Parties’ cross-claims have now been sufficiently pled, and this 5 action should proceed to discovery. 6 IV. 7 8 9 CONCLUSION IT IS HEREBY ORDERED that Defendants/Cross-Defendants Todd Bergman and T.W.B. Enterprises, Inc.’s Motion to Dismiss (ECF No. 444) is DENIED. DATED this 14th day of June, 2012. 10 11 ____________________________ Gloria M. Navarro United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 of 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?