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Fairway Restaurant Equipment Contracting, Inc. v. Makino

United States District Court, D. Nevada

April 8, 2015

FAIRWAY RESTAURANT EQUIPMENT CONTRACTING, INC., Plaintiff(s),
v.
KAKU MAKINO, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is a motion to dismiss filed by defendant Kaku Makino (hereinafter "Mr. Makino"). (Doc. # 38). Plaintiff Fairway Restaurant Equipment Contracting, Inc. (hereinafter "Fairway") filed a response, (doc. # 41), and defendant filed a reply, (doc. # 42).

I. Background

This case arises out of a debt owed to Fairway by Makino Premium Outlet LV, LLC (hereinafter "Makino Premium"), a non-party in this matter. The controversy at hands involves an alleged civil conspiracy concerning the actions of several individuals and companies. The court therefore finds that an in depth recitation of the facts is necessary.

Fairway filed suit against Makino Premium in the Eighth Judicial District Court of Clark County, Nevada and obtained a judgment in Fairway's favor on February 28, 2009. (Doc. # 1 p. 4). This unpaid judgment has accumulated to approximately $650, 000. On November 22, 2012, Makino Premium filed for Chapter 11 bankruptcy (reorganization) in the midst of its assets being seized pursuant to an execution of Fairway's judgment. (Id. at 4). This bankruptcy filing was eventually converted to a Chapter 7 (liquidation).

The thrust of Fairway's claim is that between the judgment being ordered in 2009 and the bankruptcy filings in 2012, the defendants and non-parties in this case transferred Makino Premium's assets to themselves in order to prevent Fairway from collecting its judgment. (Id. at 3). Fairway claims that these transfers were made while Makino Premium was insolvent or that these transfers caused the company to become insolvent. (Id. at 10).

The defendants in this action include Mr. Kaku Makino, Mr. Joon Ho Ha (hereinafter "Mr. Ha"), and other unnamed individuals and companies. (Id. at 2). Beyond these defendants, Fairway identifies a number of non-party individuals and companies who allegedly conspired to transfer Makino Premium's assets.

Makino Premium is owned by Mr. Ha and LV Kitchen, a Nevada limited liability company owned solely by Ms. Masako Ishitsuka, a non-party in this action. (Id. at 5-6). Since about 2003, Makino Premium has operated a restaurant in the Premium Outlet Mall in Las Vegas, Nevada, which bore the trade name "Makino" (hereinafter "Makino-Outlet"). (Id. at 6).

Mr. Makino, the defendant filing this motion, licensed his name to the Makino-Outlet restaurant. (Id. ). Fairway describes his role as "chef and manager" of this restaurant. (Id. ). There is no allegation that Mr. Makino has any ownership interest in Makino-Outlet or Makino Premium.

However, Mr. Makino is the partial owner of another company, which owns the "Makino" trade name and operates a separate Makino-named restaurant in Las Vegas on Decatur Road (hereinafter "Makino-Decatur"). (Id. ). There is no allegation that Mr. Ha or Ms. Ishitsuka have any ownership interest in this restaurant.

Beyond the trade name, one known connection between Makino-Decatur and Makino-Outlet/Makino-Premium is Mr. Naoyuki Kuroda, a non-party in this action who manages the operations and finances of both restaurants through his company, Zebra Moon, LLC (hereinafter "Zebra Moon"). (Id. at 7). Mr. Kuroda has no ownership interest in either restaurant, but he draws a salary from Makino Premium, the owner of the Makino-Outlet restaurant. Additionally, Makino Premium, Ms. Ishitsuka, her company LV Kitchen, Mr. Kuroda, and his company Zebra Moon share the same business address. (Id. ).

Furthermore, in the course of managing Makino Premium, Mr. Kuroda deposited Makino Premium's earnings into accounts held by Mr. Kuroda's company, Zebra Moon. (Id. ). Zebra Moon does not receive funds for any company other than Makino Premium. Mr. Makino is allegedly a signatory on Zebra Moon's bank accounts and has access to them.

In regards to the transfer of funds, Fairway alleges that "Makino Premium made distributions to insiders of cash and marketable securities in the sums of $151, 201.00 and $191, 803.00" in 2009 and 2010 respectively. (Id. at 8).[1] Fairway further alleges that until March 2011, Makino Premium paid Ms. Ishitsuka's monthly home mortgage payments of approximately $8, 600 per month. Mr. Makino allegedly lived with her at the time.

Additionally, post-bankruptcy petition, Makino Premium made payments on two cars leased in Mr. Makino's name ($1, 800 per month in total). (Id. ).

Fairway also claims that Zebra Moon used "Makino Premium's funds to pay for insider's (including Makino's) personal debts, such as back taxes, personal guarantees of failed business ventures, and so forth. (Id. ).

Fairway's complaint asserts four causes of action against all defendants: (1) fraudulent transfers; (2) intentional interference with contractual relations; (3) unjust enrichment; (4) constructive trust; (5) civil conspiracy; and (6) accounting. (Doc. # 1).

Mr. Makino now moves to dismiss this claim for lack of subject matter jurisdiction and for failure to state a claim upon which ...


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