Noble Bottling, LLC et al v. Reinhart Holdings, LLC et al
ORDER denying Defendant Jordana Weber's 18 Motion to Dismiss. This case shall proceed to a resolution on the merits of Plaintiffs claims in the absence of a voluntary resolution of the dispute among the parties. Signed by District Judge Kenneth D. Bell on 7/30/2022. (nvc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 3:22-CV-00083-KDB-DCK
NOBLE BOTTLING, LLC,
RAYCAP ASSET HOLDINGS
REINHART HOLDINGS, LLC,
JASON M. TORRES, JORDANA
WEBER, ARTHUR N.
SHERMAN, AND NASAR
THIS MATTER is before the Court on Defendant Jordana Weber’s Motion to Dismiss
(Doc. No. 18). In this action, Plaintiffs Noble Bottling, LLC (“Noble”) and Raycap Asset Holdings
Ltd. (“Raycap”) assert claims against Defendants arising out of a loan and deposit arrangement
that Plaintiffs claim was fraudulent. Weber, who is alleged to have been part of the fraud, seeks
dismissal of the claims against her, arguing that the Court lacks jurisdiction over her and Plaintiffs’
claims for fraud and conversion fail to state a claim. The Court has carefully reviewed the motion
and considered the parties briefs and exhibits. For the reasons discussed below, the Court will
DENY the motion.
A motion to dismiss under Rule 12(b)(2) seeks a dismissal for lack of personal jurisdiction.
A party invoking federal jurisdiction has the burden of establishing that personal jurisdiction exists
over the defendants. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294
(4th Cir. 2005); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). When “the court addresses
the question [of personal jurisdiction in a Rule 12(b)(2) motion] on the basis only of motion papers,
supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff
is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the
jurisdictional challenge. In considering a challenge on such a record, the court must construe all
relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and
draw the most favorable inferences for the existence of jurisdiction.” Combs, 886 F.2d at 676
(internal citations omitted). “Mere allegations of in personam jurisdiction are sufficient for a party
to make a prima facie showing.” Barclays Leasing Inc. v. National Bus. Sys., Inc., 750 F. Supp.
184, 186 (W.D.N.C. 1990). The plaintiff, however, “may not rest on mere allegations where the
defendant has countered those allegations with evidence that the requisite minimum contacts do
not exist.” IMO Indus., Inc. v. Seim S.R.L., 2006 WL 3780422, at *1 (W.D.N.C. Dec. 20, 2006).
“Rather, in such a case, the plaintiff must come forward with affidavits or other evidence to counter
that of the defendant ... factual conflicts must be resolved in favor of the party asserting
Questions of jurisdiction are answered by a two-step analysis: (1) the Court must determine
whether the North Carolina long-arm statute confers personal jurisdiction; and (2) the Court must
determine whether the exercise of that statutory power will violate the due process clause of the
U.S. Constitution. Gen Latex & Chem. Corp. v. Phoenix Med. Tech., 765 F. Supp. 1246, 1248-49
(W.D.N.C. 1991). Because the North Carolina long-arm statute extends jurisdiction to the bounds
of due process, the statutory inquiry ultimately merges with the constitutional inquiry, becoming
one. See ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997). Due process
prevents a Court from asserting jurisdiction over a defendant unless the defendant has certain
minimum contacts with the forum state. The Fourth Circuit has “synthesized the Due Process
Clause for asserting specific jurisdiction into a three-part test ... ‘(1) the extent to which the
defendant purposefully availed itself of the privilege of conducting activities in the State; (2)
whether the plaintiff's claims arise out of those activities directed at the State; and (3) whether the
exercise of personal jurisdiction would be constitutionally reasonable.’ ” New Wellington, 416
F.3d at 294 (citing Mitrano v. Hawes, 377 F.3d 402, 407 (4th Cir. 2004)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a
claim upon which relief can be granted” tests whether the complaint is legally and factually
sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th
Cir. 2010), aff'd, 566 U.S. 30 (2012). A complaint must only contain “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. In evaluating whether a
claim is sufficiently stated, “[the] court accepts all well-pled facts as true and construes these facts
in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of
a cause of action, ... bare assertions devoid of further factual enhancement[,] ... unwarranted
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Further, a court is not bound to
“accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.”
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002); see also Miller v. Pacific Shore Funding, 224
F.Supp.2d 977, 984 n.1 (D. Md. 2002) (“When the bare allegations of the complaint conflict with
any exhibits or documents, whether attached or adopted by reference, the exhibits or documents
prevail”) (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991)); Sec'y of State for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
Thus, a motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; “it does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
FACTS AND PROCEDURAL HISTORY
Plaintiff Noble is a Delaware limited liability company with its principal place of business
in Mecklenburg County, North Carolina. Doc. No. 11 at 3. Plaintiff Raycap is a foreign corporation
registered with the government of Cyprus. Id. Defendant Reinhart Holdings, LLC, (“Reinhart”) is
a limited liability corporation organized and existing under the laws of the State of Montana, with
its principal place of business in Kalispell, Montana. Id. at 4. Reinhart was involuntarily dissolved
in 2019. Id. Defendant Weber is an individual who, at all relevant times hereto, was a resident of
On December 27, 2018, Noble entered into a $55,300,000 Facility Term Letter Agreement
(the “Loan Agreement”) with Reinhart to finance Noble’s business operations. Doc. No. 19 at 3.
Under the Loan Agreement, Noble was required to provide Reinhart with a $2,765,000 deposit as
a good faith measure. Id. In order to obtain the funds needed to make the deposit, Noble entered
into a separate loan agreement with Raycap (the “Deposit Loan Agreement”), under which the
funds for the deposit would be transferred to a “Restricted Account” at Bank of America. Id.
Plaintiffs contend that this arrangement was fraudulent because the Defendants allegedly never
intended to fund the loan and later absconded with the deposit, which was not in fact restricted as
Specifically, Plaintiffs claim Reinhart breached the Loan Agreement by failing to timely
fund the loan on or about April 19, 2019. Id. at 4. Shortly after, on April 26, 2019, Noble formally
demanded Reinhart to return the full amount of the deposit in accordance with the Restricted Bank
Holding Instructions. Id. Then, between April and July 2019, Weber sent two emails on behalf of
Reinhart to Plaintiffs which were allegedly intended to falsely assure them that Plaintiff’s funds
were being returned in accordance with the Loan Agreement. Id. On May 23, 2019, Weber, posing
as “Tina,” a fictitious Reinhart employee, emailed Richard Gora, Reinhart’s attorney, stating that
the funds were “currently in transit” to Noble’s account “so there should be no issues.” Id. at 2.
This email was subsequently forwarded to Plaintiffs. On July 19, 2019, Weber, again posing as
“Tina,” emailed Noble stating that “the PPI is currently in transit and will be received by Mr.
Richard Gora in the next 48-72 hours.” Id.
In their Amended Complaint, Plaintiffs have sued to recover their deposit amount,
alleging, among numerous claims against the various defendants, claims of fraud and conversion
against Weber. Weber has now moved to dismiss the Complaint on the grounds that the Court
lacks personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(2) and the
Complaint fails to state claims against her under Federal Rules of Civil Procedure 12(b)(6) and
A. Personal Jurisdiction
As noted above, Weber’s personal jurisdiction challenge essentially folds into the question
of “whether the defendant has such ‘minimal contacts’ with the forum state that ‘maintenance of
the suit does not offend traditional notions of fair play and substantial justice.’” Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (US 1945). To establish minimum
contacts, a plaintiff may pursue either general or specific jurisdiction. ALS Scan, Inc. v. Digital
Serv. Consultants, Inc., 293 F.3d 707, 711–12 (4th Cir. 2002). To establish general jurisdiction,
(which is not alleged here) the defendant's activities in the state must have been “continuous and
systematic.” Id. If specific jurisdiction is alleged (as in this case), the court exercises its power
over a defendant when defendant's contacts within the state are the basis of the plaintiff's cause of
In analyzing the contacts for specific jurisdiction, courts “consider (1) the extent to which
the defendant ‘purposefully avail[ed]’ itself of the privilege of conducting activities in the State;
(2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether
the exercise of personal jurisdiction would be constitutionally ‘reasonable.’” Universal Leather,
LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014); see Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 8 (1984). In conducting this inquiry, the Court
must focus on “the quality and nature of [the relevant] contacts.” Nichols v. G.D. Searle & Co.,
783 F.Supp. 233, 238 (D. Md. 1992), aff'd, 991 F.2d 1195 (4th Cir. 1993). The Court should not
“merely ... count the contacts and quantitatively compare this case to other preceding cases.” Id.
Even a single contact may be sufficient to create jurisdiction when the cause of action arises out
of that single contact, provided that the principle of “fair play and substantial justice” is not thereby
offended. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477–78, 105 S.Ct. 2174, 85
L.Ed.2d 528 (1985)). .
1. Purposeful Availment
Plaintiffs argue that Weber purposefully availed herself of the privilege of conducting
activities in North Carolina by her emails into the state furthering the alleged fraud. In response,
Weber contends that the two emails, which were both sent after the Loan Agreement had been
executed, is not enough to establish that she “purposefully availed” herself of the privilege of
conducting activities in North Carolina. To determine whether Weber purposefully availed herself
of North Carolina, the Court asks whether “the defendant’s conduct and connection with the forum
state are such that [she] should reasonably anticipate being haled into court there.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). A court “may exercise specific personal
jurisdiction over a nonresident defendant acting outside of the forum when the defendant has
intentionally directed [her] tortious conduct toward the forum state, knowing that that conduct
would cause harm to the forum resident. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,
334 F.3d 390, 398 (2003) (citing Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79
L.Ed.2d 804 (1984)).
The Court finds that Weber purposefully availed herself of North Carolina through her
emails to Noble. The Fourth Circuit has held that emails and text messages directed at the forum
can give rise to specific jurisdiction. Lillie v. Guerra, 559 F. Supp. 3d 464, 473 (M.D.N.C. 2021)
(citing Universal Leather, LLC, 777 F.3d at 562. Also, in ALS Scan, the Fourth Circuit held that
“a State may, consistent with due process, exercise judicial power over a person outside of the
State when that person (1) directs electronic activity into the State, (2) with the manifested intent
of engaging in business or other interactions within the State, and (3) that activity creates, in a
person within the State, a potential cause of action cognizable in the State’s courts.” ALS Scan,
293 F.3d at 714 .
Applying the ALS Scan factors to this case, the Court finds that Plaintiffs have made a
prima facie showing that Weber purposefully availed herself of North Carolina. The first ALS Scan
factor is met because Weber directed electronic activity into North Carolina by sending two emails
to Noble. The content of Weber’s emails was aimed toward Noble, a business with a principal
place of business in North Carolina. Plaintiffs allege that Weber’s purpose for this electronic
activity was to conceal the fact that the funds had been stolen. Doc. No. 11 at 10. Assuming the
truth of Plaintiffs’ allegations at this stage of the proceedings, Plaintiffs have alleged that electronic
activity was directed into North Carolina to directly affect a North Carolina business.
With respect to the second ALS Scan factor, the Court finds Plaintiffs have made a prima
facie showing that Weber had a “manifested intent of engaging in business or other interactions”
in North Carolina. 293 F.3d at 714. Again, Noble has its principal place of business in North
Carolina, so Weber’s emails into the state in alleged furtherance of the scheme establish that
Weber intended to engage in interactions in North Carolina. See Lostutter v. Olsen, No. 1:16-cv1098, 2017 WL 3669557, at *8 (M.D.N.C. Aug. 24, 2017) (“In part because [the plaintiff's]
business was a brick-and-mortar store located in Kernersville, North Carolina, Defendants’
attempts to disrupt his business were likely aimed at North Carolina.”).
The last ALS Scan factor is also met because, as discussed below, the electronic activity
created Plaintiffs’ potential causes of action for fraud and conversion, which are cognizable in
North Carolina’s courts. Therefore, the Court finds Weber purposefully availed herself of North
Carolina through her electronic activity.
2. Claims Arising out of Activities Directed at the State
Second, the Court finds that Plaintiffs’ claims arose out of the activities Weber directed at
North Carolina. “The second prong of the test for specific jurisdiction — that the plaintiff’s claims
arise out of the activities directed at the forum — requires that the defendant’s contacts with the
forum state form the basis of the suit.” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d
273, 278–79 (4th Cir. 2009) (citing Burger King, 471 U.S. at 472 ; Helicopteros Nacionales , 466
U.S. at 414 ). For specific jurisdiction to apply, there must be an “affiliation between the forum
and the underlying controversy, principally, [an] activity or an occurrence that takes place in the
forum State and is therefore subject to the State’s regulation. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal quotation marks and brackets omitted).
Weber argues that the emails she sent to Noble do not supply a basis for Plaintiffs’ claims
because the email was sent after the Loan Agreement was executed and the deposit funded. But
like a get-away driver in a bank robbery who plays his role in the theft only after the money has
left the bank, Weber cannot evade liability merely because her conduct occurred after Plaintiff’s
funds were taken. Although Weber’s emails were sent after the Loan Agreement was executed,
Plaintiffs’ fraud claim and conversion claim against Weber arise from the alleged
misrepresentations in her emails that Reinhart would fund the loan amount which it can reasonably
be inferred sought to avoid the scheme being detected or at least delay efforts to recover the stolen
money. See Doc. No. 1 at 11. Thus, assuming the truth of Plaintiffs’ allegations at this stage of
the proceedings, Plaintiffs have alleged sufficient facts showing Plaintiffs’ claims arise out of
Weber’s conduct in North Carolina. See Helicopteros Nacionales, 466 U.S. at 414 (“When a
controversy is related to or ‘arises out of’ a defendant's contacts with the forum, the Court has said
that a ‘relationship among the defendant, the forum, and the litigation’ is the essential foundation
of in personam jurisdiction.”) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977).
3. Constitutional Reasonableness
Finally, the Court holds that the exercise of personal jurisdiction over Weber is
constitutionally reasonable. While Weber might naturally prefer to defend against Plaintiffs’
claims in her home forum in California, there has been no showing that it would be unduly
burdensome for Weber to litigate in this Court. Also, North Carolina has an interest in this action
because Noble’s principal place of business at all relevant times was in North Carolina. Moreover,
there is no apparent reason that this action cannot be effectively and efficiently tried in this Court,
as Plaintiffs have requested. Therefore, the exercise of jurisdiction in this Court will not “make
litigation ‘so gravely difficult and inconvenient’ that [Weber] unfairly is at a ‘severe disadvantage’
in comparison to [her] opponent.” See Burger King, 471 U.S. at 478.
B. Rule 12(b)(6) Failure To State A Claim
In addition to her jurisdictional argument, Weber
moves to dismiss the fraud and
conversion claims against her for failure to state a claim. Doc. No. 18. To allege fraud under North
Carolina law, “the plaintiff must establish that the defendant (1) made a false representation of
material fact, (2) knew it was false (or made with reckless disregard of its truth or falsity), and (3)
intended that the plaintiff rely upon it. In addition, (4) the plaintiff must be injured by reasonably
relying on the false representation.” Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 512
(4th Cir. 1999) (citing Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494, 500 (N.C. 1974)).
Also, to satisfy Fed.R.Civ.P. 9(b)’s particularity requirement, a plaintiff must “at a minimum [ ]
describe the time, place, and contents of the false representations, as well as the identity of the
person making the misrepresentation and what he obtained thereby.” United States ex rel. Wilson
v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (internal quotations and citations
Weber argues that Plaintiffs fail to describe the time and place of the representations, along
with how the representations were false or how Noble relied on Weber’s emails to induce them to
take any action. Doc. No. 18 at 10. The Court disagrees. Plaintiffs’ complaint specifically pleads
the time and place of various false statements that Weber allegedly made to Noble between the
end of May 2019 and July 2019, after the deposit was made. Doc. No. 11 at 10. Plaintiffs’
complaint alleges that Weber sent two emails assuring Plaintiffs that their funds were “in transit”
to Noble’s bank account despite her having no intention of returning the funds. Id. at 11. Plaintiffs’
complaint also alleges that Weber falsely represented her identity as “Tina” the assistant to
Reinhart’s principal “Mark Williams,” another false identity. Id. These statements related to
Reinhart’s intentions about the return of the $2.675 million deposit given the failure to fund the
loan. Moreover, the dates of the emails are provided, and there are direct quotations from the
emails from Weber to Noble. Id. at 10. The Fourth Circuit has held that “[a] court should hesitate
to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made
aware of the particular circumstances for which she will have to prepare a defense at trial, and (2)
that plaintiff has substantial prediscovery evidence of those facts.” Harrison v. Westinghouse
Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). Accordingly, Plaintiffs have sufficiently
alleged the time and place of the allegedly false representations under Rule 9(b).
Weber further contends that Noble could not have relied on Weber’s emails to induce them
to take any action because her emails were sent after the execution of the Loan Agreement. Doc.
No. 18 at 10. Yet, Plaintiffs’ complaint clearly pleads reliance by alleging that Weber’s
representations induced them to act in a manner that benefitted Weber. Doc. No. 11 at 12.
According to Plaintiffs, Weber’s statements gave Plaintiffs the false impression that Reinhart was
working towards fulfilling its obligations under the Loan Agreement. Id. at 9. It can be reasonably
inferred that by relying on Weber’s statements, Plaintiffs chose not to contact the authorities or
initiate legal action as soon as Reinhart breached the Loan Agreement and refused to return the
Alternatively, Weber argues that Plaintiffs’ fraud claim fails because Plaintiffs cannot
prove that they incurred damages in reliance of Weber’s alleged misrepresentations. But as
mentioned previously, Plaintiffs allege that they detrimentally relied on Weber’s representations
by delaying contacting the authorities or taking legal action. Doc. No. 11 at 15; see
see Christopher's Arizona Transp. Serv., Inc. v. Duncan, 217 F.3d 838 (4th Cir. 2000)
(citing Rowan Cnty. Bd. of Educ. v. United States Gypsum Co., 103 N.C. App. 288, 407 S.E.2d
860, 863 (N.C. App. 1991)) (“North Carolina courts have acknowledged that reasonable reliance
can be proved by acting or by ‘refraining from action’ because of the fraudulent
misrepresentation”). In sum, Plaintiffs have sufficiently alleged the minimum elements necessary
to state a fraud claim and put Weber on notice of the claims against her. Accordingly, her motion
to dismiss the fraud claim under Rule 12(b)(6) will be denied.
The second claim that Weber seeks to dismiss is conversion. Under North Carolina law,
“the tort of conversion is well defined as ‘an unauthorized assumption and exercise of the right of
ownership over goods or personal chattels belonging to another, to the alteration of their condition
or the exclusion of an owner's rights.’” Stitz v. Smith, 272 N.C. App. 415, 419, 846 S.E.2d 771,
774 (2020) (quoting Peed v. Burleson's, Inc., 244 N.C. 437, 439, 94 S.E.2d 351, 353 (1956)
(alterations omitted)). The essence of conversion is not the acquisition of property by the
wrongdoer, but a wrongful deprivation of it to the owner. Stitz 272 N.C. App. at 419, 846 S.E.2d
at 774 (internal quotations omitted). “Where there has been no wrongful taking or disposal of the
goods, and the defendant has merely come rightfully into possession and then refused to surrender
them, demand and refusal are necessary to the existence of the tort. When demand is made, and
absolute, unqualified refusal to surrender, which puts the plaintiff to the necessity of force or a
lawsuit to recover his own property, it is of course a conversion.” Hoch v. Young, 63 N.C. App.
480, 483, 305 S.E.2d 201, 203 (1983) (quoting Prosser, The Law of Torts 4th, § 15 at pp. 89–90
Accordingly, the “two essential elements are necessary in a claim for conversion: (1)
ownership in the plaintiff, and (2) a wrongful conversion by the defendant.” Bartlett Milling Co.
v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 86, 665 S.E.2d 478, 489 (2008) (citing
Lake Mary Ltd. P'ship. v. Johnston,145 N.C. App. 525, 532, 551 S.E.2d 546, 552, disc. rev. denied,
557 S.E.2d 539 (2001)). Both prongs are met here. First, Plaintiffs have plainly alleged that they
owned the funds at issue in this case.
Second, they have alleged a wrongful conversion. Plaintiffs deposited the funds to
Reinhart, and Reinhart was obligated to return said funds per the Loan Agreement. Doc. No. 19 at
¶ 23. After Defendants failed to fund the Loan Agreement, Noble sent Reinhart formal demands
to return the full amount of the deposit, Id. at ¶ 32, but Defendants refused to return the funds.
Moreover, Plaintiffs have directly alleged that Weber actively participated in the alleged
conversion (i.e. wrongful retention of the funds) by attempting through an alias “Tina” to mislead
Plaintiffs into believing that the funds would be returned. See Id. at ¶ ¶ 32, 37, 38. Accordingly,
Plaintiffs have adequately stated a claim against Weber for conversion and her motion will be
denied as to that claim as well.
NOW THEREFORE IT IS ORDERED THAT:
1. Defendant Jordana Weber’s Motion to Dismiss (Doc. No. 18) is DENIED; and
2. This case shall proceed to a resolution on the merits of Plaintiffs’ claims in the
absence of a voluntary resolution of the dispute among the parties.
SO ORDERED ADJUDGED AND DECREED.
Signed: July 30, 2022
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