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Rivercard, LLC v. Post Oak Productions

May 6, 2013



Presently before the court is defendant Scot Patriquin's motion to dismiss. (Doc. # 20). Plaintiff Rivercard, LLC responded (doc. # 22), and defendant Patriquin replied (doc. # 27).

Also before the court is plaintiff's application for default judgment against defendant Patriquin. (Doc. # 21). Defendant Patriquin responded. (Doc. # 26).

I. Background

The facts alleged in the complaint establish that the instant dispute centers around plaintiff's purchase of stock in defendant Patriquin's Canadian client, Post Oak Productions. (Doc. # 1).On or about April 7, 2010, plaintiff invested approximately $1,000,000 in Post Oak Productions under two separate agreements. (Doc. # 1, 4:19-25). Plaintiff contends that the investments were contingent on several conditions being satisfied, including Post Oak Productions being awarded an exclusive contract from Harrah's Interactive Entertainment to operate the World Series of Poker online training website. (Doc. # 1, 6:4-7). Approximately $800,000 was paid for a 25% interest in the company through a subscription agreement, while $200,000 was transferred in the form of a loan through a loan agreement, payable after a year upon presentation of a demand note. (Id.)

Plaintiff alleges that the necessary documents related to closing were not perfected and completed, due to the fault of all named defendants. (Doc. # 1, 7:23-25). Plaintiff also alleges that defendants failed to issue the 25% interest in Post Oak Productions (doc. # 1, 8:1-3), and instead issued plaintiff shares in an unrelated shell company, believed to be named 2084701 Ontario, Inc. (doc. # 1, 8:4-6).

Defendant Patriquin is a Canadian-based attorney who advised defendant Post Oak Productions and its officers, Jeff Goldenberg and Brandon Rosen.*fn1 (Doc. # 1).

Plaintiff filed suit against Patriquin, Goldenberg, Rosen, and Post Oak Productions. Plaintiff alleges nine causes of action against defendant Patriquin: (1) fraudulent/intentional misrepresentation; (2) failure to disclose material facts; (3) RICO violations/wire fraud (18 U.S.C. § 1961-1968); (4) RICO violations/mail fraud (18 U.S.C. § 1961-1968); (5) RICO violations pursuant to NRS § 207.470; (6) violation of United States securities laws; (7) violation of Nevada securities laws and Blue Sky laws; (8) civil conspiracy/concert of action; and (9) punitive damages.

Defendant Patriquin brings the instant motion on the basis that plaintiff's complaint fails to state a claim under Rule 12(b)(6) and Rule 9(b).

II. Motion to dismiss (doc. # 20)

A. Legal standards

I. Rule 12(b)(6)

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged -- but not shown -- that the pleader is entitled to relief." Id. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable ...

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