United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
Mark Randolph moves pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 9(b) to dismiss the complaint against
him by plaintiff Landmark Infrastructure Holding Company, LLC
for failure to state a claim and for failure to plead with
sufficient particularity. For the reasons discussed below,
the motion to dismiss is denied.
April 2, 2015, Landmark filed suit against R.E.D.
Investments, LLC and Bobby Van Stavern for misrepresentations
made in connection with the sale of a billboard lease and
easement. Landmark Infrastructure Holding Company, LLC v.
R.E.D. Investments, LLC and Bobby Van Stavern
(“R.E.D. I”), No. 2:15-cv-04064-NKL. On
January 19, 2018, following a jury trial, the Court entered
judgment in Landmark's favor in the amount of $537,
234.11 R.E.D. I, Doc. 194. The Court subsequently
awarded Landmark attorneys' fees and costs in the amount
of $207, 704.74. R.E.D. I, Doc. 210. The Eighth
Circuit recently affirmed the judgment. R.E.D. I,
$744, 938.85 judgment against R.E.D. and Van Stavern remains
unsatisfied. Doc. 1 (Complaint), ¶¶ 15-16.
about August 10, 2016, while the R.E.D. I suit was
pending, the three members of R.E.D. formed Davis Hills
Farms, LLC. Doc. 1, ¶ 17. The three members of R.E.D.
are the sole members of Davis Hills. Id. On or about
May 12, 2017, R.E.D. transferred two pieces of real property,
including one referred to as the “Waterman Building,
” to Davis Hills. Id., ¶ 18. The 2014 tax
return for R.E.D.-purportedly the most recent tax return
available-shows the Waterman Property as having a cost basis
of $250, 000. Id., ¶ 21. Yet, the Warranty Deed
states only that Davis Hills paid “TEN DOLLARS AND
OTHER VALUABLE CONSIDERATIONS” in exchange for the
property. Id., ¶ 19.
about January 7, 2018, nine days before trial in the
R.E.D. I suit, Davis Hills granted Randolph, a
cousin of the three members of R.E.D. and Davis Hills
(id., ¶ 23), a Deed of Trust on the Waterman
Property, allegedly to secure a debt of $400, 000.
Id., ¶ 22. Landmark alleges that Randolph paid
no consideration in return for the Deed of Trust.
Id., ¶ 24. On January 14, 2019, at
Plaintiff's request post-judgment, the Court issued to
Davis Hills Farms a Writ of Execution, including a set of
Interrogatories to Garnishee asking Davis Hills Farms to
identify any property belonging to R.E.D. Id.,
¶ 25. Just three days later, the three members of R.E.D.
and Davis Hills signed a “Warranty Deed by Limited
Liability Company” transferring a portion of the
Waterman Property from Davis Hills to defendants Derrick and
Carrie Sien, who allegedly are either relatives or business
associates of the R.E.D. and Davis Hills members.
Id., ¶ 26. The Warranty Deed given to the Siens
states that the transfer was made “in consideration of
other good and valuable consideration and Ten Dollars.”
Id., ¶ 27. In conjunction with Davis
Hills's purported transfer of a portion of the Waterman
Property to the Siens, Randolph executed a “Partial
Deed of Release” dated January 16, 2019, which
purported to release his lien on the portion of the Waterman
Property that was transferred, but did not purport to release
his lien on the portion of the Waterman Property that Davis
Hills did not transfer. Id., ¶ 29. Landmark
alleges that Randolph received no consideration in exchange
for agreeing to release the portion of his Deed of Trust
covering the portion of the Waterman Property that Davis
Hills transferred to the Siens. Id., ¶ 30.
has asserted three claims against Randolph: fraudulent
transfer, constructive fraudulent transfer, and conspiracy.
Standard on Motion to Dismiss
Rule of Civil Procedure 12(b)(6) requires the dismissal of a
complaint that fails to plead facts sufficient to state a
plausible claim upon which relief may be granted. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
determining whether a complaint alleges sufficient facts to
state a plausible claim to relief, the Court accepts all
factual allegations as true. See Great Plains Trust Co.
v. Union Pac. R.R. Co., 492 F.3d 986, 995 (8th Cir.
2007). If the facts alleged in the complaint are sufficient
for the court to draw a reasonable inference that the
defendant is liable for the alleged misconduct, the claim has
facial plausibility and will not be dismissed. See
Iqbal, 556 U.S. at 678.
addition, “[i]n alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud
or mistake, ” although “[m]alice, intent,
knowledge, and other conditions of a person's mind may be
alleged generally.” Fed.R.Civ.P. 9(b).
moves to dismiss all claims against him-for actual and
constructive fraudulent transfers of the Waterman Property
and for civil conspiracy-for failure to state a claim ...