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Namer v. Bank of America, N.A.

United States District Court, S.D. California

July 10, 2017

ROBERT NAMER; IAR COMPANY; BUSINESS MANAGEMENT INFORMATION SYSTEM, INC.; and AMERICA ACADEMY OF POOL DESIGNERS, INC., Plaintiffs,
v.
BANK OF AMERICA, N.A., Defendant.

          ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

          JEFFREY T. MILLER, UNITED STATES DISTRICT JUDGE

         Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant Bank of America, N.A. (“BANA”) moves to dismiss the Second Amended Complaint (“SAC”) for failure to state a claim. Plaintiffs Robert Namer, IAR Company, Business Management Information System, Inc., and America Academy of Pool Designers, Inc. oppose the motion to dismiss the breach of contract claims and the aiding and abetting breach of fiduciary duty claim but not the breach of fiduciary duty claim. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for resolution without oral argument. For the reasons set forth below, the court grants the motion to dismiss the claims for breach of contract, aiding and abetting breach of fiduciary duty, and breach of fiduciary without leave to amend.

         BACKGROUND

         The SAC, filed on April 13, 2017, alleges three claims for relief: (1) breach of contract; (2) aiding and abetting breach of fiduciary duty; and (3) beach of fiduciary duty. Up until December 31, 2014, Robert Namer (“Namer”) was the Chairman of the Board, CEO and president of IAR Company (“IAR”), Business Management Information System, Inc. (“BMIS”), and American Academy of Pool Designers, Inc. (“AAPD”), as well as nine other companies referred to as the “Blue Haven Companies” (Blue Haven National Holdings, Inc., Blue Haven National Development, Inc., Blue Haven National Management, Inc., Blue Haven Supplies Direct, Inc., P & A Holding, Inc., Golden State Industries, Inc., BH DVW, Inc., BH Pools of Houston, Inc., and Blue Haven Pools of Louisiana, Inc.). Namer was an alleged officer and director of all the companies. Up until December 31, 2014, Namer owned 51% of IAR and Blue Haven National Holdings, Inc. and R'Nelle Lahlou (“Lahlou”) 49%. Subsequent to December 31, 2014, Namer owned 100% of IAR; and Lahlou was an officer and director of the Blue Haven Companies. At all relevant times, Plaintiff Namer alleges that he was an authorized signer or signatory to the BANA business accounts held by IAR, BMIS, AAPD, and the Blue Haven Companies (collectively the “Company Entities”).

         The Alleged Illegal Corporate Takeover

         Plaintiffs allege that Namer's business partner, Lahlou, and her father, Alvin Eisman, on September 4, 2013, “set into motion an illegal corporate takeover” of IAR, BMIS, AAPD, and the Blue Haven Companies. (SAC ¶48). On September 6, 2013, Lahlou “put the rest of her takeover plan into full effect.” (SAC ¶50). Among other things, Namer was removed as an authorized signer on the business accounts. On September 9, 2013, Namer wrote to Jeff Schwartz, a vice president at one of BANA's San Diego branches, to inform him that there “had been a hostile and fraudulent takeover” of the companies and requesting that the accounts be frozen until a court order could be obtained. (SAC ¶51). In response to Namer's letter, “Schwartz [verbally] assured Namer that his name would not be removed from the subject accounts, and that the dispute with Lahlou was a matter for the courts to decide.” (SAC ¶52).

         Despite the September 9th alleged “assurances” by Schwartz that his signature authority would not be removed from the accounts, Plaintiffs allege that Namer had been removed from the Corporate Entities account on September 6, 2013, thus “lulling Namer into a false sense of security and to make Namer think that Namer did not need to take further immediate action to prevent [the accounts] from being pilfered by Eisman and Lahlou.” (SAC ¶58).

         On September 12, 2013, Namer sent BANA a “demand notice requesting immediate restoration of his signing power, access to, and ability to borrow funds against the subject accounts.” (SAC ¶55). On September 16, 2013, BANA responded by email:

It appears that you have a legal dispute with the shareholders of the entities which maintain the deposit accounts with the Bank. This kind of dispute is properly resolved by a court; it is neither fair nor proper to demand that the bank investigate the facts, research the law, and issue the equivalent of a judgment.
Therefore, we believe that the best course is to give effect to the written instructions, given to the bank by the owners of the accounts, as to who the signatories should be on the accounts, until such time as the bank might receive a proper court order instructing otherwise.

(SAC ¶55). Namer alleges that millions had been depleted from the accounts. (SAC ¶77). In light of Lahlou's alleged improper corporate takeover, monies in the IAR, BMIS, and AAPD business accounts were improperly withdrawn.

         On September 24, 2013, Namer commenced an action against Lahlou and others, but not BANA, in San Diego Superior Court. On November 22, 2013, Namer commenced another action in the Eastern District of Louisiana against Lahlou, alleging that Lahlou engaged in a plan to strip him of his ownership in a number of companies. (Request for Judicial Notice (“RJN”), Exhs. 1, 2).[1] Namer settled the claims for an undisclosed amount. (FAC ¶115). Namer alleges that he accepted a settlement amount less then he would have because Lahlou had an alleged “financial advantage.” Id.

         Procedural History

         On July 31, 2015, Plaintiff commenced an action against BANA in the United States District Court for the Eastern District of Louisiana. On March 21, 2016, the district court ...


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