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Moose Run, LLC v. Libric

United States District Court, D. Nevada

March 19, 2019

MOOSE RUN, LLC, Plaintiff,



         Pending before the Court is the Motion to Dismiss, (ECF No. 18), filed by Defendant Renato Libric (“Defendant”). Plaintiff Moose Run, LLC (“Plaintiff) filed a Response, (ECF No. 27), and Defendant filed a Reply, (ECF No. 31). For the reasons discussed herein, Defendant's Motion to Dismiss is GRANTED.

         I. BACKGROUND

         This case arises from a fraudulently induced wire transfer Plaintiff made to Defendant's company, Bouxtie, Inc. (“Bouxtie”). Plaintiff is a Wyoming company that is registered to do business in Nevada. (Am. Compl. ¶ 3, ECF No. 14). Defendant is a citizen of Croatia and resides in California. (Id. ¶ 4).

         In November 2016, Plaintiff joined a networking association operated by Keiretsu Forum (“Keiretsu”), entitling Plaintiff to receive confidential information concerning potential investment opportunities. (Id. ¶ 11). In July 2017, Keiretsu contacted Plaintiff to inform it about Bouxtie, a start-up technology company based in California. (Id. ¶ 12).

         Keiretsu subsequently arranged a meeting between Plaintiff and Defendant, Bouxtie's CEO. (Id. ¶ 13). Shortly thereafter, Defendant solicited Plaintiff for financing, stating that Defendant is a successful businessman and that Bouxtie served as a lucrative business opportunity. (Id. ¶¶ 14-16). Specifically, in August 2017, Defendant represented to Plaintiff that there was $5, 000, 000 committed to Bouxtie's Series B preferred stock but had availability for up to $10, 000, 000. (Id. ¶ 17). Plaintiff was provided with a presentation packet that included expressions of interest from First Data Corporation and Mastercard, Inc. for $150, 000, 000 and $300, 000, 000, respectively. (Id. ¶ 18). These documents were later revealed to be forgeries. (Id.).

         Between August 2017 and March 2018, Defendant made efforts to entice Plaintiff to invest in Bouxtie. (Id. ¶ 19). Defendant sent Plaintiff a note purchase agreement and an unsecured convertible note agreement, in addition to Series B stock commitments from other investors, totaling $10, 000, 000. (Id. ¶ 20). Defendant also provided Plaintiff a copy of Bouxtie's bank statement showing a balance of $2, 175, 574.87. (Id. ¶ 21). Plaintiff later learned that the bank record was falsified to reflect at least $2, 000, 000 more than was actually in the account. (Id.). In October 2017, Defendant sent Plaintiff a forged corporate resolution from Bouxtie's board indicating that Plaintiff's investment had been approved. (Id.).

         On October 13, 2017, Plaintiff wired $1, 500, 000 to Bouxtie's bank account in Silicon Valley, California. (Id. ¶ 26). In December 2017, Defendant furnished an authorized stock certificate to Plaintiff reflecting the issuance of 947, 049 shares of Series B preferred stock in Bouxtie. (Id. ¶ 27). Defendant also represented that David Lipson, a principal of Plaintiff's, would have a seat on Bouxtie's board. (Id. ¶ 28). According to Plaintiff, Defendant made these assurances and provided the fabricated documents without Bouxtie's knowledge or authority. (Id. ¶ 31). Shortly after Plaintiff wired funds to Bouxtie's bank account, Defendant transferred the funds to unknown accounts. (Id. ¶ 34).

         Plaintiff filed its Amended Complaint on May 4, 2018, bringing the following causes of action against Defendant: (1) fraud/intentional misrepresentation; (2) conversion; (3) fraudulent conveyance/transfer; (4) racketeering under NRS 207.470; (5) violation of NRS Chapter 90; and (6) unjust enrichment. (Id. ¶¶ 35-78). Defendant filed the instant Motion to Dismiss[1] on June 1, 2018, pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). (See Def.'s Mot. to Dismiss (“MTD”), ECF No. 18).


         A. Rule 12(b)(2)

         Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). Once a defendant raises the defense, the burden falls on the plaintiff to prove sufficient facts to establish that jurisdiction is proper. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). A plaintiff can carry its burden only by presenting sufficient evidence to establish that (1) personal jurisdiction is proper under the laws of the state where it is asserted; and (2) the exercise of jurisdiction does not violate the defendant's right to due process secured by the United States Constitution. Ziegler v. Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995).

         When no federal statute governs personal jurisdiction, the district court applies the law of the forum state. See Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). Nevada has authorized its courts to exercise jurisdiction over persons “on any basis not inconsistent with . . . the Constitution of the United States.” NRS 14.065. Thus, the Due Process Clause of the Fourteenth Amendment is the relevant constraint on Nevada's authority to bind a nonresident defendant to a judgment of its own courts. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).

         The Due Process Clause requires that the nonresident must have “certain minimum contacts . . . such that the 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 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make “a prima facie showing of jurisdictional facts.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (quoting Doe v. Unocal, 248 F.3d 915, 922 (9th Cir. 2001)). When analyzing such a 12(b)(2) motion, “the court resolves all disputed facts in favor of the plaintiff.” Id.

         B. Rule 12(b)(6)

         Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly,550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'” Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual ...

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