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Mvp Asset Management (Usa) LLC, A Delaware Limited Liability Company v. Steven Vestbirk

January 6, 2012

MVP ASSET MANAGEMENT (USA) LLC, A DELAWARE LIMITED LIABILITY COMPANY,
PLAINTIFF,
v.
STEVEN VESTBIRK, JEFF BALLIET, ALLISON HANSLIK, JIM GRANT, ARK ) ROYAL ASSET MANAGEMENT, LTD., A BERMUDA LIMITED COMPANY, VESTBIRK CAPITAL MANAGEMENT, LTD., A BERMUDA LIMITED COMPANY, ARK ROYAL ASSET MANAGEMENT, LLC, A NEVADA LIMITED-LIABILITY COMPANY, ARK DISCOVERY, LLC, A BUSINESS ENTITY OF UNKNOWN FORM, ARK ROYAL HOLDINGS, LLC, A NEVADA LIMITED-LIABILITY COMPANY, ARK ROYAL SERVICES, LLC, A NEVADA LIMITED-LIABILITY COMPANY, ARK ROYAL CAPITAL, LLC, A NEVADA LIMITED-LIABILITY COMPANY, ARK ROYAL CAPITAL FUNDING, LLC, A NEVADA LIMITED LIABILITY COMPANY, ARK ROYAL CAPITAL, INC., A NEVADA CORPORATION, ARK ROYAL RESOURCES, LLC, A NEVADA LIMITED-LIABILITY COMPANY, ARK ROYAL ASSURANCE LLC, A NEVADA LIMITED-LIABILITY COMPANY, AND ARK ROYAL INVESTMENTS, LLC, A NEVADA LIMITED-LIABILITY COMPANY,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Defendants move for dismissal of Plaintiff's Second Amended Complaint ("SAC") under Federal Rule of Civil Procedure ("Rule") 12(b)(1), arguing Plaintiff "did not have Article III standing at the time this action was filed." (Defs.' Mot. to Dismiss Under Rule 12(b)(1) ("Defs.' Mot.") 1:5-6; ECF No. 82.) Defendants also seek dismissal of Plaintiff's SAC under Rules 12(b)(2) and 12(b)(6). (ECF No. 83.) Plaintiff opposes the motions.

I. LEGAL STANDARD

"A suit brought by a plaintiff without Article III standing is not a 'case or controversy,' and an Article III federal court therefore lacks subject matter jurisdiction over the suit. In that event, the suit should be dismissed under Rule 12(b)(1)." Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (citation omitted).

[T]o satisfy Article III's standing requirements, a plaintiff must show that (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Plaintiff has the burden of establishing jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Defendants argue their 12(b)(1) motion is a facial attack on subject matter jurisdiction. (Defs.' Mot. 7:11.) "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. Therefore, the factual allegations in Plaintiff's SAC are assumed to be true, and all reasonable inferences capable of being drawn therefrom are drawn in Plaintiff's favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

II. ALLEGATIONS IN SAC

Plaintiff MVP Asset Management (USA) LLC ("MVPAM") alleges it is "the investment manager to the MVP Fund of Funds Ltd. ('MVP'), an Investment Company organized and existing under the laws of the British Virgin Islands," and it "brings this action as assignee pursuant to an assignment by MVP for collection[.]" (SAC ¶ 3.) Plaintiff further alleges:

On or about March 23, 2004, MVP and MVPAM entered into an Investment Management Agreement ("IMA"). Under the IMA, MVP, pursuant to MVP's Memorandum and Articles of Association ("M&A") . . . , delegated to MVPAM a general power of attorney including all powers and discretions to manage the business and affairs of MVP. Under the IMA MVPAM, as attorney in fact for MVP, was and is entitled generally to exercise such powers and discretions as may be necessary in order to perform the duties delegated to it by MVP's directors including, among other things:

(a) [to] manage the investment and reinvestment of the assets of [MVP] with power on behalf of and in the name of [MVP] to purchase, subscribe or otherwise acquire investments and to sell, redeem, exchange, vary or transpose the same;

(b) to . . . purchase (or otherwise acquire), sell (or otherwise dispose of) and invest money and other assets for the account of the Company and effect foreign exchange transactions in connection with any such purchase, acquisition, sale or other disposal;

(c) [to] enter into, make and perform such contracts, agreements and other undertakings as may in the opinion of [MVPAM] be necessary or advisable or incidental to the carrying out of the functions, duties, powers and discretions conferred on it pursuant to [the IMA] and its role as Investment Manager of [MVP.]

In making each of the investments, investment decisions and decisions relating to the investments alleged herein, MVPAM was acting pursuant to its authority ...


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