United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
Debora Johnson moves pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 9(b) to dismiss Count V of the
complaint 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., Johnson, Robbie Marley,
and Elizabeth Ruble, formed Davis Hills Farms, LLC. Doc. 1,
¶ 17. Landmark alleges that they did so “for the
purpose of transferring assets from R.E.D ..... ”
Id., ¶ 76. Johnson, Marley, and Ruble are the
sole members of both R.E.D. and Davis Hills. Id.
about May 12, 2017, R.E.D. transferred two pieces of real
property, referred to respectively as the “Van Stavern
Building” and 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 Van Stavern Building as having a cost basis of $680, 808
and 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 both pieces of
property. Id., ¶ 19. Further, at a deposition
in aid of execution on November 9, 2018, Marley, the
corporate representative of R.E.D., testified that Davis
Hills did not pay R.E.D. any consideration in exchange for
the Van Stavern Building. Id., ¶ 20.
about January 7, 2018, nine days before trial in the
R.E.D. I suit, Davis Hills granted Mark 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.
January 14, 2019, at Plaintiff's request post-judgment,
the Court issued to Davis Hills a Writ of Execution,
including a set of Interrogatories to Garnishee asking Davis
Hills 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., ¶
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 just one claim against Johnson: conspiracy to
“fraudulently transfer and encumber the assets of
R.E.D. with the unlawful objective of impeding
Plaintiff's efforts to satisfy its judgment against
R.E.D.” Doc. 1, ¶ 73.
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 ...