Berkowitz v. Brahma Investment Group INC.

Filing 95

ORDER granting 86 Third Party MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Shinhan Bank America; Shinhan Bank America (Successor in Interest ) and Shinhan Bank America (Successor in Interest ) terminated. Signed by Judge Michael R. Barrett on 9/26/16. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Joshua Berkowitz, et al.,

Plaintiffs,

Case No. 1:15cv543

v.

Judge Michael R. Barrett

Brahma Investment Group, Inc, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Third Party Defendant Shinhan Bank’s
Motion to Dismiss for Failure to State a Claim. (Doc. 86). Third Party Plaintiffs Brahma
Investment Group, Inc. and California Pacific Hospitality, LLC field a Response in
Opposition. (Doc. 89).
Third Party Defendant, Shinhan Bank America (“Shinhan”), pursuant to Federal
Rule of Civil Procedure 12(b)(6) moves this Court to Dismiss the claims of Third-Party
Plaintiffs, Brahma Investment Group, Inc. (“Brahma”) and California Pacific Hospitality,
LLC (“CalPac”), against Shinhan because they fail to state a claim upon which relief can
be granted.
In reviewing a motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light
most favorable to the plaintiff, accept its allegations as true and draw all reasonable
inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d
426, 430 (6th Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir.

2007)). However, legal conclusions conveyed as factual allegations do not be accepted
as true, rather the reviewing court is allowed to draw on its own judicial experience and
common sense in determining whether or not the pleader can obtain any relief based on
the purported facts. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-950 (2009).
By way of background, this matter began with a Verified Petition filed by Relator
Joshua Berkowitz pursuant to Ohio Revised Code § 3767.02, et seq. in the Hamilton
County Court of Common Pleas. Berkowitz sought to have the former Quality Inn Hotel
at 4747 Montgomery Road, Norwood, Ohio (the “Property”) declared a public nuisance.
Shinhan was formerly the first mortgage holder on the Property. Third Party Plaintiffs
Brahma and CalPac are the borrowers.
Shinhan explains that the Property was sold free and clear via a receiver’s sale in
Hamilton County Court of Common Pleas Case No. A1503341 on December 9, 2015.
However, the sale resulted in a deficiency balance owed to Shinhan by Brahma and
CalPac. Shinhan is currently pursuing its monetary claims against Brahma and CalPac
through an action against the individual guarantors in a California court.
Shinhan argues that Brahma and CalPac have not alleged that Shinhan has any
knowledge of, or played any role in, the alleged discrimination or equal protection
allegations set forth in the Counterclaims. Shinhan explains that while Brahma and
CalPac may intend to satisfy all or part of their obligations to Shinhan with funds they
hope to recover from other parties in this action, this does not state a claim against
Shinhan. The Court finds this argument well-taken.

2

Accordingly, Third Party Defendant Shinhan Bank’s Motion to Dismiss for Failure
to State a Claim (Doc. 86) is GRANTED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

3