Euro RSCG Direct Response, LLC v. Green Bullion Financial Services

872 F. Supp. 2d 1353, 2012 U.S. Dist. LEXIS 66868, 2012 WL 1676762
CourtDistrict Court, S.D. Florida
DecidedMay 14, 2012
DocketNo. 11-61975-CIV
StatusPublished
Cited by14 cases

This text of 872 F. Supp. 2d 1353 (Euro RSCG Direct Response, LLC v. Green Bullion Financial Services) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Euro RSCG Direct Response, LLC v. Green Bullion Financial Services, 872 F. Supp. 2d 1353, 2012 U.S. Dist. LEXIS 66868, 2012 WL 1676762 (S.D. Fla. 2012).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS, FOR MORE DEFINITE STATEMENT, AND TO STRIKE

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court on Defendant Green Bullion Financial Services’ Motion to Dismiss, For More Definite Statement, and to Strike Portions of Plaintiffs Second Amended Complaint [DE 45] (“Green Bullion Motion”) and Defendants Jeffrey Aronson and Howard Mofshin’s Motion to Dismiss, For More Definite Statement, and to Strike Portions of Plaintiffs Second Amended Complaint [DE 46] (“Aronson & Mofshin Motion”) (collectively “Motions”). The Court has carefully reviewed the Motions, Plaintiff Euro RSCG Direct Response LLC’s (“Plaintiff’) Opposition to Defendant Green Bullion Financial Services, LLC’s Motion to Dismiss, for More Definite Statement, and to Strike Portions of Plaintiffs Second Aménded Complaint [DE 59] (“Green Bullion Response”), Plaintiffs Response in Opposition to Jeffrey Aronson and Howard Mofshin’s Motion to Dismiss the Second Amended Complaint [DE 60] (“Aronson and Mofshin Response”), Defendant Green Bullion Financial Services Reply Memorandum in Further Support of Its Motion to Dismiss, for More Definite Statement, and to Strike Portions of Plaintiffs Second Amended Complaint [DE 72] (“Green Bullion Reply”), Defendants Jeffery Aronson and Howard Mofshin’s Reply Memorandum in Further Support of Then-Motion to Dismiss, for More Definite Statement, and to Strike Portions of Plaintiffs Second Amended Complaint [DE 73], the record in the case, and is otherwise fully advised in the premises.

I. BACKGROUND

On September 7, 2011, Plaintiff filed suit against Defendants Green Bullion Financial Services f/k/a Cash4Gold, LLC d/b/a Cash4Gold and Cash4Gold.com (“Green Bullion”), Mangrove III U.S. Investments, LLC (“Mangrove”)1, Jeffrey Aronson (“Aronson”), Howard Mofshin (“Mofshin”) and Does 1-20 (collectively “Defendants”). Plaintiff filed a Second Amended Complaint [DE 40] on November 28, 2011. The Second Amended Complaint (“2d Am. Compl.”) states that Plaintiff provided direct response advertising for Green Bullion and that Green Bullion has failed to pay for those services, causing Plaintiff to suffer damages in excess of $2.5 million.2d Am. Compl. ¶ 1. Plaintiff also seeks to avoid a series of fraudulent transfers under which Green Bullion allegedly transferred its assets to Aronson, Mofshin, Mangrove, and Does 1-5. Id. ¶ 2.

Green Bullion provides a mail order service for customers to send broken and old jewelry to its office. Id. ¶ 7. Green Bullion appraises the jewelry and sends the cus[1357]*1357tomer a check for the appraised amount. Id. Plaintiff alleges that it provided advertising services for Green Bullion under three separate agreements. Id. ¶ 8. Under the Media Purchasing Agreement, Plaintiff was appointed as the non-exclusive agent for Green Bullion to purchase long and short term commercial time to benefit Green Bullion on national cable networks, regional networks, local television stations, and local cable systems in the United States and Canada. Id. ¶ 18. Plaintiff also entered a Superbowl Advertising Agreement with Green Bullion under which Plaintiff would create and produce commercials for the 2009 Superbowl for Green Bullion. Id. ¶ 27. Finally, Plaintiff and Green Bullion entered into a 2009 Advertising Agreement under which Plaintiff agreed to create short form direct television advertising for Green Bullion. Id. ¶ 29.2 Plaintiff alleges that between 2007 and 2010 it provided over $75 million in services to Green Bullion under the three Agreements. Id. ¶ 32.

Plaintiff alleges that Green Bullion was undercapitalized. Id. ¶ 41. Around June 2010, Plaintiff alleges that Mangrove invested $16 million in Green Bullion. Id. ¶ 43. Rather than using this money for operations or to pay debt, Plaintiff alleges that Defendants diverted the money to existing owners of Common Units and Series A Preferred Units including Defendants Aronson and Mofshin. Id. ¶44. Plaintiff commenced suit in state court in San Diego to recover against personal guarantees by Aronson, the founder and CEO of Green Bullion and its president, Mofshin. Id. ¶ 49. Plaintiff then learned that two UCC-1 financing statements were filed reflecting transfer of all-asset security interests by Green Bullion to insiders Aronson and Mangrove. Id. Plaintiff believes that Green Bullion is insolvent and that the insolvency was caused by these insider transfers. Id. ¶ 54.

The Second Amended Complaint asserts three breach of contract claims against Defendant Green Bullion (Counts I — III), an open account claim against Green Bullion (Count IV), an account stated claim against Green Bullion (Count V), a fraud in the inducement claim against Green Bullion (Count VI), and two fraudulent transfer claims against all named Defendants and Does 1-5 (Count VII-VIII). Defendants Aronson and Mofshin have now moved to dismiss the fraudulent transfer claims asserted against them or alternatively for a more definite statement. Defendant Green Bullion moves to dismiss all counts of the Second Amended Complaint asserted against it or alternatively for a more definite statement. .All three Defendants move to strike Plaintiffs request for attorneys fees under various claims.

II. DISCUSSION

A. Legal Standard For Motions to Dismiss and Motions for a More Definite Statement.

Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to dismiss where, based upon a dispositive issue of law, the factual allegations of the complaint cannot support the asserted cause of action. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir.2006). Indeed, “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim [1358]*1358to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Nonetheless, a complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiffs favor. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Id. Accordingly, a well pleaded complaint will survive a motion to dismiss “ ‘even if it appears that a recovery is very remote and unlikely.’ ” Id. at 556, 127 S.Ct. 1955.

Federal Rule of Civil Procedure

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872 F. Supp. 2d 1353, 2012 U.S. Dist. LEXIS 66868, 2012 WL 1676762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/euro-rscg-direct-response-llc-v-green-bullion-financial-services-flsd-2012.