American Bank Center v. Barker

Filing 21

ORDER granting 10 Bank Center's Motion to Charge Limited Liability Company Interests of Stephen D. Barker. Signed by Magistrate Judge David Keesler on 7/17/19. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:18-MC-103-MOC-DCK
AMERICAN BANK CENTER,
Plaintiff,
v.
STEPHEN BARKER,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on “American Bank Center’s Motion To
Charge Limited Liability Company Interests Of Stephen D. Barker” (Document No. 10). This
motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and
is ripe for disposition. Having carefully considered the motion, the record, and the arguments of
counsel during a telephone conference, the undersigned will grant the motion.
BACKGROUND
Plaintiff American Bank Center (“Plaintiff”) initiated this action on June 4, 2018, with the
filing of a “Clerk’s Certification Of A Judgment To Be Registered In Another District” (Document
No. 1) and a “Judgment” (Document No. 1-1) (the “Judgment’) issued by the United States District
Court for the District of North Dakota.
Plaintiff filed the pending “American Bank Center’s Motion To Charge Limited Liability
Company Interests Of Stephen D. Barker” (Document No. 10) on October 3, 2018. That motion
has now been fully briefed, including supplemental briefing requested by the Court.
(Document Nos. 11, 12, 13, 19, and 20).

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On November 19, 2018, following no objection by Plaintiff, the Clerk of Court issued an
“Order Designating Exempt Property” (Document No. 14) granting Defendant’s “Notice To Claim
Exempt Property (Statutory Exemptions)” (Document No. 6). The Clerk of Court then issued a
“Writ Of Execution” (Document No. 15) on December 21, 2018.
The undersigned conducted a telephone conference on April 10, 2019, and considered the
parties’ status update and arguments regarding this case. Counsel for parties were directed to
attempt to resolve this matter and provide the Court a proposed order. Despite counsel’s efforts,
the parties have been unable to resolve this matter and have submitted supplemental briefs and
their own proposed orders. See (Document Nos. 18, 19, and 20).
DISCUSSION
The crux of Plaintiff’s pending motion is a request for an Order from this Court charging
the limited liability company interests held by Defendant Stephen D. Barker (“Barker” or
“Defendant”) with payment of the Judgment, plus post-judgment interest, entered for Plaintiff
against Barker in the United States District Court for the District of North Dakota, Case No. 1:17CV-195, on April 30, 2018, and also registered with this Court on June 4, 2018,. (Document No.
10); see also (Document Nos. 1 and 1-1).
The Judgment against Barker totals $10,287,808.60, plus post-judgment interest.
(Document No. 1-1). The Judgment remains unsatisfied.
Barker owns a 98 percent interest in Merlin Holdings, LLC, a Nevada limited liability
company (“Merlin Holdings”), and a 99 percent interest in Grand Dakota Hospitality, LLC, a
Delaware limited liability company (“Grand Dakota Hospitality”) (together with “Merlin
Holdings,” the “Direct LLCs”). Merlin Holdings and Cibix Management, Inc., which is wholly
owned by Barker, together own interests in nine other limited liability companies: 217 Tremont

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Partners LLC, Clarkston Hotel Group, LLC, Grand Dakota Development, LLC, Grand Dakota
Partners LLC, Shelby Hospitality Group, LLC, Shelby Land Partners, LLC, Catellus Group, LLC,
Rainier Group, LLC, and Catellus Capital, LLC (all together, the “Indirect LLCs”).
Based on Plaintiff’s motion and supporting memoranda of law, and the entire record in the
case, the undersigned finds that Barker’s ownership interests in the Direct LLCs are subject to the
entry of a charging order under North Carolina General Statute § 57D-5-03. Plaintiff shall have
only the right to receive the distributions, allocations, dividends, and other payments that otherwise
would be paid to Barker with respect to his ownership interest in either of the Direct LLCs.
IT IS, THEREFORE, ORDERED that American Bank Center’s Motion To Charge
Limited Liability Company Interests Of Stephen D. Barker” (Document No. 10) is GRANTED.
IT IS FURTHER ORDERED that:
1. Barker’s ownership interests in the Direct LLCs are charged with payment of the
Judgment;
2. A Direct LLC shall make no distributions, allocations, dividends, or any payment
whatsoever to Barker on account of his ownership interests in such Direct LLC until further Order
of the Court. This expressly prohibits Merlin Holdings from making any distributions, allocations,
dividends, or payments to Barker that Merlin Holdings derives or receives from its ownership
interests in the Indirect LLCs;
3. Each Direct LLC shall pay directly to Plaintiff all distributions, allocations, dividends,
or payments that otherwise would be paid to Barker with respect to his ownership interest in such
Direct LLC in satisfaction of the Judgment until the Judgment is satisfied or further Order of the
Court. Such payment shall be by check made out to American Bank Center and delivered to

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Plaintiff’s counsel, Scott M. Tyler and Kathryn G. Wellman, Moore & Van Allen PLLC, 100 North
Tryon Street Suite 4700, Charlotte, NC 28202;
4. If Barker receives any distributions, allocations, dividends, or payments on account of
his ownership interest in a Direct LLC in violation of this Order, Barker shall immediately deliver
all such distributions, allocations, dividends, or payments on account of his ownership interest to
Plaintiff. Such payment shall be by check made out to American Bank Center and delivered to
Plaintiff’s counsel, Scott M. Tyler and Kathryn G. Wellman, Moore & Van Allen PLLC, 100 North
Tryon Street Suite 4700, Charlotte, NC 28202; and
5. Barker is enjoined and prohibited from circumventing the terms or purposes of this
Order.
SO ORDERED.

Signed: July 17, 2019

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