Zazzali ex rel. DBSI Estate Litigation Trust v. Wavetronix LLC (In re DBSI, Inc.)

445 B.R. 351, 2011 Bankr. LEXIS 790, 54 Bankr. Ct. Dec. (CRR) 117
CourtUnited States Bankruptcy Court, D. Delaware
DecidedMarch 4, 2011
DocketBankruptcy No. 08-12687(PJW); Adversary No. 10-55963 (PJW)
StatusPublished
Cited by1 cases

This text of 445 B.R. 351 (Zazzali ex rel. DBSI Estate Litigation Trust v. Wavetronix LLC (In re DBSI, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zazzali ex rel. DBSI Estate Litigation Trust v. Wavetronix LLC (In re DBSI, Inc.), 445 B.R. 351, 2011 Bankr. LEXIS 790, 54 Bankr. Ct. Dec. (CRR) 117 (Del. 2011).

Opinion

MEMORANDUM OPINION

PETER J. WALSH, Bankruptcy Judge.

This opinion is with respect to the motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 12.) The movants are defendants David Arnold, Linda Arnold, and Michael Jensen (the “Individual Defendants”). The Complaint was filed by James R. Zaz-zali and Conrad Myers, as Trustees of the DBSI Estate Litigation Trust and DBSI Liquidating Trust, respectively, (together, “Trustees”), against Wavetronix LLC and the Individual Defendants, as well as unknown individuals and entities denominated John Does 1-50 and ABC Entities 1-50. The 115-page, 747-paragraph Complaint contains 10 counts asserting causes of action against one or more of the Individual Defendants: Counts 1-6 of the Complaint seek to recover allegedly fraudulent conveyances from the Individual Defendants; Count 14 alleges David Arnold breached his personal guaranty to Stellar Technologies LLC; Count 15 alleges breach of fiduciary duties; Count 16 alleges unjust enrichment; and Count 17 alleges breach of the Wavetronix Operating Agreement. For the reasons discussed below, I will grant the motion.

Background

DBSI, Inc. and certain of its affiliates filed bankruptcy petitions under Chapter 11 of the Bankruptcy Code, 11 U.S.C. [353]*353§§ 101 et seq., on November 6, 2008. A plan of liquidation was confirmed on October 26, 2010, resulting in the appointment of Trustees to administer the DBSI Litigation Trust and DBSI Estate Liquidation Trust. As that Confirmation Order sets forth in greater detail, DBSI, Inc. and its affiliates were operated as a single enterprise under the control of a small group of insiders (the “Insiders”). (Case No. 08-12687, Doc. #5924, ¶ 27.) The DBSI enterprise was involved in three main spheres of business activity: (i) the syndication and sale to investors of tenant-in-common (“TIC”) interests in real estate, (ii) the purchase of real estate, and (iii) investment in technology companies. (Id. ¶ 25.)

This adversary proceeding concerns this third sphere of activity, which the Complaint describes as involving “a very large and completely unproductive investment of money into emerging technology-oriented companies.” (Doc. # 1, ¶ 56.) The Complaint alleges that these investments were structured as loans from Stellar Technologies LLC (“Stellar”), a holding company majority-owned by DBSI Inc. (“DBSI”), and that these unproductive investments benefitted only the DBSI Insiders, who were able to obtain tax advantages therefrom:

Although the Technology Company investment was neither productive for the DBSI Companies as a whole nor for the Investors whose cash was diverted to pay for them, it was structured in such a way that it facilitated the siphoning off of substantial distributions to the Insiders and the appropriation of significant tax advantages for them that otherwise would have belonged to the DBSI Companies.

(Id., ¶ 57.)

During the four years preceding the petition date, DBSI transferred no less than $10,742,253.58 to Wavetronix LLC (“Wave-tronix”) through its affiliate DBSI Redemption Reserve (“DRR”), an Idaho general partnership. Wavetronix, an Idaho limited liability corporation, is one of the Technology Companies identified in the Complaint and is a defendant named in the Complaint. (Id., ¶ gg.) Stellar owns approximately 60 percent of Wavetronix and defendants David Arnold (“Arnold”) and Michael Jensen (“Jensen”) own the remaining 40 percent. Stellar provided the financing for Wavetronix, and Arnold and Jensen supplied the intellectual property and the “technology knowhow.” (Doc. # 1, ¶ 414.) Arnold serves as the chairman of the Wavetronix Management Board, manager, president, and CEO. Jensen is a manager and board member. Arnold’s wife, Linda, has also served on the board, with the remaining board seats held by various individuals alleged to be DBSI Insiders. (Doc. # 1, ¶¶ 153,156.)

A central dispute in this adversary proceeding is whether the funds transferred through DRR were capital contributions or loans to Wavetronix. Wavetronix, in a separate proceeding, has filed a complaint seeking a declaratory judgment that the transfers were capital contributions. (Adv.Proc. No. 10-55592.) Trustees allege that these transfers were loans, as memorialized by yearly promissory notes Wave-tronix signed for the amounts it received the prior year. Thus, Wavetronix signed a promissory note in 2002 for the amounts it received from DBSI in 2001, a promissory note in 2003 for the amounts received in 2002, and so on. Trustees allege that, even though the transfers came from DRR, these promissory notes were made payable to Stellar. Arnold, as president and CEO, signed these promissory notes every year between 2002-2007. Arnold also personally guaranteed the 2002 and [354]*3542003 notes up to his pro rata percentage ownership in Wavetronix.

Trustees seek to recover from the Individual Defendants on five separate bases: (i) that the transfers were fraudulent conveyances under both the Bankruptcy Code, 11 U.S.C. § 548, and under Idaho Law, Idaho Code Ann. §§ 55-906, 913(l)(a) & (b), and 55-914(1); (ii) that Arnold breached his personal guaranty of the 2002 and 2003 promissory notes; (iii) that the Individual Defendants breached their fiduciary duties; (iv) that the transfers unjustly enriched Arnold and Jensen; and (v) that Arnold and Jensen breached the Wavetro-nix Operating Agreement.

The Individual Defendants move to dismiss the Complaint as failing to adequately plead any of these causes of action. They contend that the fraudulent transfers actions merit dismissal because those counts do not identify any transfers made to the Individual Defendants. They contend there can be no claim for breach of the personal guaranty because it had expired. The Individual Defendants assert that there are insufficient facts in the Complaint to support the breach of fiduciary duties and unjust enrichment counts. Finally, they contend that the Wavetronix Operating Agreement specifically precludes the Trustees’ breach of contract actions against Arnold and Jensen.

Standard of Review

In considering the Individual Defendants’ motion to dismiss, I must accept the Complaint’s factual allegations as true, construe the Complaint in the light most favorable to Trustees, and determine whether, under any reasonable reading of the Complaint, Trustees may be entitled to relief. Rea v. Federated Investors, 627 F.3d 937, 940 (3d Cir.2010).

Fed.R.Civ.P. 8(a)(2), made applicable by Fed. R. Bankr.P. 7008, requires that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting

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Related

In Re Dbsi, Inc.
445 B.R. 351 (D. Delaware, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
445 B.R. 351, 2011 Bankr. LEXIS 790, 54 Bankr. Ct. Dec. (CRR) 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zazzali-ex-rel-dbsi-estate-litigation-trust-v-wavetronix-llc-in-re-dbsi-deb-2011.