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Brian Rubin, An Individual; Hydro Therm Technologies Group, LLC, A Tennessee Limited Liability Company v. Michael Briscoe

April 18, 2013

BRIAN RUBIN, AN INDIVIDUAL; HYDRO THERM TECHNOLOGIES GROUP, LLC, A TENNESSEE LIMITED LIABILITY COMPANY, PLAINTIFFS,
v.
MICHAEL BRISCOE, AN INDIVIDUAL; WESTBRIDGE MUTUAL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; DAYO BEVERLY, AN INDIVIDUAL; DANNY GOTVALD, AN INDIVIDUAL; JESSE HATHORN, AN INDIVIDUAL; JON DIVENS, AN INDIVIDUAL; CHIP CANTRELL, AN INDIVIDUAL; LAW OFFICE OF JOHN DIVENS, LLC, A BUSINES ENTITY OF UNKNOWN FORM; ET AL. DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Dkt. No. 9]

On November 28, 2012, Plaintiffs Brian Rubin and Hydro Therm Technologies Group, LLC, filed this action against numerous defendants alleging ten causes of action for civil RICO violations, fraud, breach of contract, and negligence. On December 18, 2012, the Court issued an Order to Show Cause requiring Plaintiffs to file a Federal Claims Case Statement with respect to the RICO claim, to which Plaintiffs responded on January 4, 2013. On March 21, 2013, the Court dismissed Hydro Therm from the case as an improperly joined plaintiff, leaving Rubin as the sole Plaintiff.

Presently before the Court is the Motion to Dismiss Plaintiff's Complaint as to Defendants Jon Divens and Law Offices of Jon Divens & Associates, LLC (collectively "Divens Defendants"). (Dkt. No. 9.) Having considered the parties' pleadings and the arguments therein, the Court GRANTS Defendants' Motion to Dismiss.

I. BACKGROUND

Plaintiff's Complaint alleges a host of facts against eighteen defendants (plus twenty Doe Defendants), many of which are entirely unrelated to the Divens Defendants. Only the facts relevant to Plaintiff Rubin's claims against the Divens Defendants are recited here.

In September 2010, Plaintiff sought to obtain a Standby Letter of Credit ("SBLC"), a financial instrument used in business transactions as proof of a buyer's credit quality and repayment abilities. (Compl. ¶¶ 33, 60.) At that time, to assist him with obtaining the SBLC, Plaintiff was referred to Defendant Linda Jamison, who in turn referred Plaintiff to Defendant Michael Briscoe, a member of Defendant Unity Bankcard Services, LLC ("UBS"), and Defendants Hilary Whitfield and Tom Okeyo, controlling members of Defendant BDP Worldwide, LLC ("BDP"). (Id. ¶¶ 13, 20, 61.)

On September 23, 2010, Plaintiff entered into a Funding Agreement with BDP whereby BDP would procure the SBLC and Plaintiff would contribute $200,000 toward the $500,000 fee to participate in an SBLC funding program. (Id. ¶ 62 & Ex. C.) Plaintiff and Whitfield, on behalf of BDP, signed the agreement. (Id. Ex. C.) Divens, an attorney, drafted the BDP Funding Agreement. (Id. ¶ 62.) Plaintiff wired the $200,000 directly into Divens's escrow account. (Id.)

On October 1, 2010, BDP, represented by Whitfield, and UBS, represented by Briscoe, entered into a second Funding Agreement whereby UBS would assist BDP in obtaining the SBLC. (Id. ¶ 63 & Ex. D.) The agreement provided that BDP and UBS would each advance $500,000 toward the cost of the SBLC, to be deposited into a designated escrow account. (Id.) Plaintiff alleges that his $200,000 was included in the $500,000 that BDP was to contribute pursuant to this agreement, but he was not expressly a party to the agreement or named in its provisions. (Id. ¶ 63.) Also on October 1, 2010, Briscoe (in his own name, and not as a representative of UBS), BDP (represented by Whitfield), and Divens entered into an Escrow Agreement whereby Divens would serve as the escrow agent for the funds contributed by the other two parties, which would be maintained in Divens's escrow account. (Id. ¶¶ 64-65 & Ex. E.) Again, Plaintiff was not a party to or mentioned in the Escrow Agreement. (Id. Ex. E.)

Plaintiff alleges that the SBLC was not obtained and that at some point Divens released the subject funds to an unknown third party without Plaintiff's knowledge or consent. (Id. ¶ 66.) When Plaintiff learned this information, he contacted Divens, Briscoe, Whitfield, Okeyo, and Jamison. (Id. ¶ 67.) In each of these conversations, Plaintiff was given an excuse for why the SBLC had not been obtained. (Id.) On one occasion, Divens allegedly told Plaintiff that the transaction was delayed because bank personnel were on vacation, and on another occasion, Whitfield told Plaintiff not to worry because "Briscoe always closed the deal with the banks." (Id.) Eventually, only Divens continued to communicate with Plaintiff, reassuring him in frequent conversations that Plaintiff would obtain the SBLC. (Id. ¶ 68.) By May 2011, Plaintiff's funds had still not been returned. (Id.)

At this time, Divens offered to provide his services to Plaintiff, representing that he would help Plaintiff obtain the SBLC and recoup Plaintiff's $200,000. (Id. ¶ 69.) Divens also allegedly told Plaintiff that Plaintiff's money was being held by Defendant Pelico International Funding and Development. (Id. ¶ 70.)

On May 26, 2011, Plaintiff and Divens entered into a Contract Agreement whereby Divens would procure and share in the funds from the SBLC. (Id. ¶ 71 & Ex. F.) According to the contract, Plaintiff would contribute $210,000 toward the cost of the SBLC. (Id. Ex. F.) Divens allegedly told Plaintiff that he was in possession of Plaintiff's $200,000, which had been returned from Pelico, and therefore that this amount would be credited toward Plaintiff's contribution under the Contract Agreement. (Id. ¶ 72.) Plaintiff then paid Divens the $10,000 balance. (Id.)

In May 2012, Plaintiff demanded from Divens the return of the $210,000. (Id. ¶ 73.) Divens told Plaintiff that the money was being held in the client trust account of a "major, reputable law firm," but that he could not disclose the identify of the firm. (Id.) Divens told Plaintiff that he was therefore unable to return Plaintiff's money. (Id.) As of November 2012, the SBLC had not been funded and Plaintiff's money had not been returned. (Id. ¶ 75.)

II. LEGAL ...


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