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Silver v. Digges

July 16, 2006

JAMES D. SILVER, AS RECEIVER FOR: NEXSTAR COMMUNICATIONS, LLC; TMT EQUIPMENT COMPANY, LLC; TMT MANAGEMENT GROUP, LLC; POSA, LLC; POPSA TMT, LLC; TELEVEST COMMUNICATIONS, LLC; TELEVEST GROUP, LLC; SPIN DRIFT, LLC, PLAINTIFF,
v.
EDWARD S. DIGGES, JR., KATHERINE KERR, KBK PARTNERSHIP, LLP, A/K/A KBK, LOUIS CHRISTIAN HAUG, K. BRIGID PETERSON F/K/A K. BRIGID MCGONNIGAL, J. BRUCE MCGONNIGAL, K. BRETT MCGONNIGAL, RICHARD F. MCGONNIGAL, CHILHAM, LLC. DEFENDANTS.



ORDER

This case comes before the Court on the following:

1. Motion To Dismiss For Failure To State A Claim On Which Relief May Be Granted of Defendant Richard F. McGonnigal (Doc. No. 27, filed June 14, 2006); and

2. Response To Defendant's Motion To Dismiss of Plaintiff James D. Silver (Doc. No. 51, filed June 28, 2006).

Background

Plaintiff James Silver, acting as receiver for Nexstar Communications, LLC, TMT Equipment Company, LLC, TMT Management Group, LLC, POSA, LLC, POSA TMT, LLC, Televest Communications, LLC, Televest Group, LLC, and Spin Drift, LLC (collectively, "the Receiver Estate"), brought this action against Defendants Edward S. Digges, Katherine Kerr, KBK Partnership, LLP, Louis Christian Haug, K. Brigid Peterson, J. Bruce McGonnigal, K. Brett McGonnigal, Richard F. McGonnigal, and Chilham, LLC. (Doc. No. 13, filed April 28, 2006, hereinafter "Amended Complaint"). Plaintiff alleges in the Amended Complaint that Defendants either participated in or had knowledge of a scheme to misappropriate funds from investors in "point-of-sale" credit card terminals. (See id. at ¶¶ 3-6, 11-19, 27-30). The Amended Complaint contends that Defendants Edward S. Digges, Katherine Kerr, KBK Partnership, LLP, Louis Christian Haug, K. Brigid Peterson, J. Bruce McGonnigal, K. Brett McGonnigal, Richard F. McGonnigal, and Chilham, LLC each fraudulently received specified amounts of investor funds from the Receiver Estate. (Id. at ¶ 31).

In the Amended Complaint, Plaintiff seeks a monetary judgment against Defendants in Count I for fraudulent transfer, for conversion in Count II, and for unjust enrichment in Count III. (Id. at ¶¶ 34-52). Plaintiff also asks the Court to impose a constructive trust upon all investor-related funds held by Defendants in Count IV and to impose an equitable lien on all of Defendant's real and personal property which was purchased with investor funds. (Id. at ¶¶ 53-65). In addition, Plaintiff contends that Defendant Chilham, LLC aided and abetted the alleged fraud by serving as the conduit for the transfer of investor funds. (Id. at 66-70).

Applicable Standard

The Court may grant a motion to dismiss "only when the defendant demonstrates beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1080 (11th Cir. 2004) (internal quotation omitted). In considering a motion to dismiss, the court is generally confined to examining the four corners of the pleadings. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276 n.8 (11th Cir. 1999) (discussing when a motion to dismiss can be construed as a motion for summary judgment). Because the Federal Rules of Civil Procedure establish a liberal system of notice pleading, a complaint need only present "a short and plain statement of the claim showing that the pleader is entitled to relief." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (quoting FED. R. CIV. P. 8(a)(2)). "[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47 (1957). Accordingly, the threshold for a complaint to survive a motion to dismiss for failure to state a claim is "exceedingly low." United States v. Baxter Int'l, Inc., 345 F.3d 866, 881 (11th Cir. 2003).

Analysis

Defendant Richard McGonnigal seeks to dismiss Count II through Count V of the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).

Count II: Conversion

Defendant Richard McGonnigal contends that allegations of the Amended Complaint fail satisfy the requirements of a claim of conversion. (Doc. No. 4, p. 4). In Florida, a conversion is an unauthorized act which deprives another of his property permanently or for an indefinite time. Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1291 (11th Cir. 2001). Thus, Plaintiff must merely allege that Defendant Richard McGonnigal "deprived" the Receiver Estate of its property by means of an "unauthorized act."

The Amended Complaint avers that Defendant Richard McGonnigal received over $1666,000.00 in diverted and misappropriated ...


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