United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion to Dismiss/Motion to
Make More Definite Statement, ECF No. 14 (“Motion to
Dimiss”), filed by Defendants Stabl, Inc. (f/k/a
Nebraska By-Products), Lant, Inc., Leon Johnson, and Ann
Johnson (collectively “Defendants”). For the
reasons discussed below, the Motion to Dismiss will be
following facts are those pled in the Complaint, ECF No. 1,
and assumed true for purposes of the Motion to Dismiss.
Inc., (“Stabl”) is a Nebraska corporation,
originally incorporated as Nebraska By-Products, Inc., in
March 1979, and renamed Stabl, Inc., on June 3, 2010. ECF No.
1 ¶ 4, Page ID 2. Stabl is wholly owned by Lant, Inc.,
(“Lant”), which is wholly owned by Leon Johnson
(“Johnson”), who serves as president of both
corporations. Id. ¶ 8, Page ID 2. Lant filed
tax returns on behalf of Stabl, as Stabl's holding
1995 to 2010, Stabl owned and operated an animal rendering
plant in Lexington, Nebraska. Id. ¶ 12, Page ID
3. On August 18, 2006, the Nebraska Department of
Environmental Quality (“NDEQ”) issued a Notice of
Violation to Johnson as owner of Stabl, stating that Stabl
was not in compliance with the Clean Water Act, 33 U.S.C.
§§ 1251-1388 (“Clean Water Act”), and
that such noncompliance could result in injunctive relief and
penalties of up to $10, 000 per day per violation.
Id. ¶ 13, Page ID 3. In 2007, the NDEQ sent
Stabl a draft pretreatment plan, as well as a revised draft
pretreatment plan in 2008. Id. ¶¶ 14-15,
Page ID 3. Both plans stated that failure to comply could
result in the imposition of penalties. Id. In
February of 2008, the Environmental Protection Agency
(“EPA”) inspected the Stabl facility.
Id. ¶ 16, Page ID 4. The EPA later sent Johnson
a copy of the inspection, which stated that the EPA was
reserving its rights to take enforcement action. Id.
8, 2009, NDEQ issued a Notice of Violation to Johnson, as
owner of Stabl, stating that noncompliance could result in
issuance of a Compliance Order, or referral to the Attorney
General for penalties of up to $10, 000 per day per violation
and/or injunctive relief. Id. ¶ 18, Page ID 4.
On July 28, 2009, the EPA issued an Administrative Compliance
Order, requiring Stabl to come into compliance with the
requirements of the Clean Water Act, and to submit a plan to
the EPA describing how it intended to come into compliance.
Id. ¶ 19, Page ID 4. In September 2009, Stabl
provided a compliance plan to the EPA but never achieved
compliance with the Clean Water Act. Id. ¶ 20,
Page ID 4.
28, 2010, Stabl sold its facility for $15.2 million.
Id. ¶ 28, Page ID 5. The price paid was
decreased by $1 million due to Stabl's noncompliance with
the Clean Water Act and the expected costs of bringing the
plant into compliance. Id. ¶ 29, Page ID 5.
8, 2010, the U.S. Department of Justice (“DOJ”)
sent a letter to Stabl's counsel discussing, among other
things, a potential civil enforcement action pursuant to the
Clean Water Act. Id. ¶ 22, Page ID 4. The
letter made reference to monetary penalties owed by Stabl,
specifically $2, 883, 414. Id. Five days later, on
July 13, 2010, Stabl transferred approximately $8 million,
almost all of its assets, directly to Leon and Ann Johnson,
Id. ¶ 23, Page ID 5, via three wire transfers.
Id. ¶ 31, Page ID 6. Stabl was either already
insolvent or became insolvent at the time of the transfers.
Id. ¶ 34, Page ID 7.
August 10, 2011, the United States and the State of Nebraska
filed an action against Stabl in this Court alleging
violations of the Clean Water Act and Nebraska state law.
Id. ¶ 24, Page ID 5. During the litigation, the
United States specifically requested that Stabl produce
documents showing who received the proceeds of the facility
sale, but no documents were produced. Id. ¶ 30,
Page ID 6. On January 31, 2014, the Court entered a judgment
against Stabl in the amount of $2, 285, 874. Id.
¶ 25, Page ID 5. The amount was to be divided equally
between the State of Nebraska and the United States.
United States (“United States”) filed this action
on May 26, 2015, alleging fraudulent transfers under
§§ 3304(a)(1)(A) & 3304(b)(1)(A) of the Federal
Debt Collection Practices Act, 28 U.S.C. §§
3001-3308 (“FDCPA”). ECF No. 1 ¶¶
46-55, Page ID 8-9. The United States seeks to void the $8
million transfer in an amount sufficient to satisfy its
judgment against Stabl in the amount of $1, 142, 937, and
seeks entry of personal judgments against Johnson, Ann
Johnson, and Lant for that sum. As of the date of the filing
of this action, Stabl had not paid any money to the United
States toward satisfying the judgment. Id. ¶
45, Page ID 8.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Twombly, 550 U.S. at 555). Thus, “a
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir.
2015) (quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555-56
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial