Southport Lane Equity II, LLC v. Downey

177 F. Supp. 3d 1286, 2016 U.S. Dist. LEXIS 44712, 2016 WL 1298121
CourtDistrict Court, D. Nevada
DecidedApril 1, 2016
Docket3:15-cv-0335-RCJ-VPC
StatusPublished
Cited by10 cases

This text of 177 F. Supp. 3d 1286 (Southport Lane Equity II, LLC v. Downey) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southport Lane Equity II, LLC v. Downey, 177 F. Supp. 3d 1286, 2016 U.S. Dist. LEXIS 44712, 2016 WL 1298121 (D. Nev. 2016).

Opinion

ORDER

ROBERT C. JONES, United States District Judge

This case is a derivative shareholder suit arising out of several transactions made by a company’s board of directors. Plaintiff Southport Lane Equity II, LLC makes five claims — direct and derivative — against directors and officers of Nominal Defendant Massive Interactive, Inc. Pending before the Court are five Motions to Dismiss, each filed by one or more of the eight Defendants (ECF Nos. 19, 28, 29, 30, 31).

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Southport Lane Equity II, LLC (“Southport”) is suing individually and derivatively on behalf of Massive Interactive, Inc. (“Massive”) the following individuals it alleges are officers and/or directors of Massive: Ron Downey (“Downey”), Derek Ellis (“D. Ellis”), Max Ramsay (“Ramsay”), Monique Ellis (“M. Ellis”), Dominic De Lorenzo (“De Lorenzo”), Alex Drosin (“Drosin”), and Antaine Furlong (“Furlong”). Massive is a nominal defendant. Southport is a Delaware limited liability company with offices in New York City, and Massive is a Nevada corporation with executive offices and place of business in London and additional offices in New York, Sydney, and Prague. (Am. Compl. ¶ 5, ECF No. 6, at 14). Defendant Drosin resides in New York City, whereas the other individual Defendants reside in the United Kingdom. (Id ¶¶7-13). Drosin is the president for Massive in North America, whereas Downey, Furlong, D. Ellis, and Ramsay are officers and directors of Massive. (Id). M. Ellis is a senior vice president of Massive, and De Lorenzo is a director of product strategy. (Id).

On November 7, 2013, Southport purchased 55,000,000 shares of common stock of Xtreme Oil & Gas, Inc. (“Xtreme”), a publicly traded Nevada corporation, which gave Southport ownership of ninety percent of Xtreme’s common stock. (Id ¶¶ 21-22). On November 15, 2013, Xtreme purchased the outstanding equity in Massive Media Pty. Limited (“Massive Media”) for $4,167,190. (Id ¶ 23). Simultaneously, Southport reverse merged Massive Media into Xtreme and directed Xtreme to change its name to Massive. (Id ¶¶ 24-25). As a result, Southport owned ninety percent of Massive’s outstanding shares. (Id ¶ 26).

Southport alleges that Defendants “engage[d] in a series of transactions that were designed to loot the corporate treasury ... in breach of them fiduciary duties ... while diluting the shares of ... South-port.” (Id ¶ 32).

A. Wunderkind Transaction

On May 1, 2014, Defendants caused Massive to purchase Wunderkind Group Pty. Ltd. (“Wunderkind”), an Australian company owned and controlled by Downey, M. Ellis, and De Lorenzo, in exchange for a convertible promissory note worth $5.5 million (“the Wunderkind Note”). (Id ¶¶ 35, 37). Southport alleges the transaction took place without a formal meeting of the Board of Directors of Massive (“Board”), even though a letter of intent required the Board’s approval and written consent. (Id ¶¶ 41-42). On April 24, 2015, [1289]*1289Defendants caused Massive to amend the Wunderkind Note to allow Defendants Downey, M. Ellis, and De Lorenzo to convert the Note’s outstanding principle to shares of Massive common stock (equal to forty-five percent of Massive’s outstanding common stock) if Massive did not repay the Note. (Id. ¶ 47). Southport alleges the amendment occurred without a meeting of the Board and a vote-of disinterested directors, and that the Wunderkind transaction was a “sham transaction” designed to increase Defendants’ interest in Massive while diluting Southport’s interest. (Id. ¶¶ 49-50).

B. October 2014 Financing

On October 24, 2014, Defendants caused Massive to enter an agreement with Gil Orbach by which Orbach would pay $1,000,000 for a promissory note and warrants to purchase 100,000 shares of Massive’s common stock. (Id. ¶ 53). The note is senior to obligations owed to other creditors and cannot be subordinated without Orbach’s written approval, (Id. ¶ 54). Southport alleges that Defendants entered the transaction without convening a meeting of the Board, even though the issuance of stock requires Board approval. (Id. ¶¶ 57-58).

C. Private Offerings to D. Ellis and Downey

On March 23, 2015, Massive offered convertible promissory notes in the amount of $636,310 to multiple investors, including Downey and D. Ellis. (Id. ¶¶ 60, 64). The notes bear an interest rate of twelve percent and are secured by a first priority lien on Massive’s assets. (Id. ¶ 61-62). The notes also contained provisions for a purchase premium in the event of liquidation, liquidated damages if the note remained unpaid after December 31, 2015, and an option to convert the principal and accrued interest into shares of securities sold during qualified financing, with a twenty percent discount.- (Id. ¶ 63). Southport alleges the notes were “self-dealing by corporate insiders” and were entered into without a meeting or approval of the Board. (Id. ¶ 65).

D.Stock Incentive Plan

On April 29, 2015, Massive issued restricted shares of common stock to Furlong, Ramsay, Drosin, and M. Ellis. (Id. ¶ 69). Southport alleges Defendants used their position as directors and officers to issue the stock to themselves without a meeting or vote of the Board, even though the company was experiencing financial difficulty. (Id. ¶¶ 66-67, 70).

Massive’s bylaws require the Board to hold an annual meeting of stockholders on or about November 20, 2014, which it failed to do as requested by Southport. (Id. ¶¶ 72-74). Andrew Scherr (“Scherr”), Southport’s designee to the Board, contacted Downey about holding a Board meeting and called for a special meeting of the Board by no later than March 10, 2015. (Id. ¶¶ 75-77). Massive’s counsel informed Scherr it did not consider him to be a sitting director and asked him to provide facts showing he was a director. (Id. ¶ 80). Southport argues the failure to recognize Scherr as a director violates Massive’s bylaws, as well as its failure to hold a board meeting or annual shareholder meeting in 2014 or 2015. (Id. ¶¶ 82-84). Southport argues that a demand that the Board sue Defendants for breach of fiduciary duty would have been futile because it “would not be able to exercise its independent and disinterested business judgment.” (Id. ¶¶ 87-88).

•'Southport brings five causes of action: (1) breach of fiduciary duty (derivative); (2) breach of fiduciary duty (direct); (3) request to declare Scherr as a member of [1290]*1290the Board since December 2013 and to declare void the Wunderkind transaction, the private offerings, and stock' incentive plan; (4) unjust enrichment; and (5) request for an appointment of a receivership for Massive. Six Defendants have filed a motion to dismiss: Alex Drosin (EOF No. 19); Massive (EOF No. 28); Monique Ellis (EOF No. 29); Max Ramsay and Antaine Furlong (EOF No. 30); and Ron Downey (EOF No. 31). The individual Defendants all raise as a defense lack of personal jurisdiction under Federal Rule of Procedure 12(b)(2). Drosin, Massive,' M. Ellis* and Ramsay and Furlong raise as a defense failure to state a claim upon which relief can be granted under Federal Rule of Procedure 12(b)(6).

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177 F. Supp. 3d 1286, 2016 U.S. Dist. LEXIS 44712, 2016 WL 1298121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southport-lane-equity-ii-llc-v-downey-nvd-2016.