United States District Court, D. Nebraska
COR CLEARING, LLC, a Delaware limited liability company, Plaintiff,
CALISSIO RESOURCES GROUP, INC., a Nevada corporation, ADAM CARTER, an individual, SIGNATURE STOCK TRANSFER, INC, A Texas corporation; and DOES 1-50, TD AMERITRADE CLEARING, INC., a Nebraska corporation, NATIONAL FINANCIAL SERVICES LLC, a Delaware limited liability company, SCOTTRADE, INC., an Arizona corporation, and E-TRADE CLEARING, LLC, a Delaware limited liability company, Defendants.
MEMORANDUM AND ORDER
E. STROM, Senior Judge.
matter is before the Court on a joint motion to dismiss filed
by National Financial Services, LLC, TD Ameritrade Clearing,
Inc. (“TDAC”), Scottrade, Inc., and E-Trade
Clearing, LLC, (hereinafter collectively the “Clearing
Firm Defendants”) (Filing No. 137). The
Clearing Firm Defendants have submitted a brief (Filing No.
138), an index of evidence (Filing No. 139)
and a reply brief (Filing No. 151) in support of the
motion. The plaintiff, COR Clearing, LLC,
(“plaintiff” or “COR”), has filed a
brief in opposition to the joint motion to dismiss (Filing
No. 149) as well as an index of evidence in support
of its brief in opposition to the motion (Filing No.
150). After review of the motion, the parties'
briefs, and the applicable law, the Court finds as follows.
August 26, 2015, COR Clearing filed its first complaint
against Calissio Resources Group, Inc.
(“Calissio”), Adam Carter (“Carter”),
Signature Stock Transfer, Inc. (“Signature”), and
Does 1-50 (Filing No. 1). Plaintiff's complaint
alleged three causes of action including: (1) a request for
declaratory judgment; (2) unjust enrichment; and (3) fraud.
See Id. at 9-13. The complaint alleged that
defendants “calculated [a] scheme to defraud the
marketplace and the clearing system in order to obtain
millions of dollars from unsuspecting market participants by
exploiting a weakness in the dividend payment system of the
third-party Depositary Trust Clearing Corporation
(“DTCC”).” (Id. at 1).
November 10, 2015, following a hearing, the Court denied
COR's expedited motion (Filing No. 20) for the
appointment of a limited purpose receiver (Filing No.
80). On December 8, 2015, the Court denied
Signature's motion (Filing No. 29) to
dismiss(Filing No. 85). On April 21, 2016, the Court
granted plaintiff's application (Filing No. 108)
for default judgment against Calissio Resources Group, Inc.
(Filing No. 109). On May 23, 2016, the Court granted
plaintiff's motion (Filing No. 94) to compel
TDAC “to produce documents and things responsive to
[plaintiff's] subpoena served on or about December 4,
2015.” (Filing No. 116).
August 2, 2016, the Court granted plaintiff leave to file an
amended complaint (Filing No. 122). The amended
complaint (Filing No. 123) filed on August 2, 2016,
adds the Clearing Firm Defendants as named defendants and
alleges the lawsuit was filed “to recover proceeds of a
fraudulent dividend scheme . . . that caused harm to COR
Clearing and its customers in the amount of approximately $4
million.” (Id. at 1). Plaintiff accuses the
Clearing Firm Defendants and Signature of “[i]mproper
[r]eceipt and [r]etention of the [f]raudulent
[d]ividends.” (Id. at 13). Plaintiff asserts a
claim of unjust enrichment against the Clearing Firm
Defendants and Signature and asks the Court to “impose
a constructive trust . . . over the funds traceable to
Calissio's fraud.” (Id. at 19).
whether a complaint states a plausible claim for relief is
“a context-specific task” that requires a court
“to draw on its judicial experience and common
sense.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009)). Federal Rule of Civil Procedure 8 requires a
complaint to present “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “[A] complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Braden, 588 F.3d at 594 (quoting Iqbal, 556
U.S. at 678) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Iqbal, 556 U.S. at 678
(internal cite omitted).
considering a motion to dismiss under Rule 12(b)(6),
well-pled allegations are considered to be true and are
viewed in the light most favorable to the plaintiff.
Braden, 588 F.3d at 591, 595. In viewing the facts
in the light most favorable to the plaintiff, a court must
determine whether the complaint states any valid claim for
relief. Jackson Sawmill Co., Inc. v. United States,
580 F.2d 302, 306 (8th Cir. 1978). Recitations of elements of
a cause of action with mere conclusory statements fail to
meet Rule 8's pleading requirements. Iqbal, 556
U.S. at 678. However, plaintiffs may use legal conclusions to
provide the framework of a complaint, so long as factual
allegations support those legal conclusions. Id. at
678-79. Thus, a dismissal is likely “only in the
unusual case in which a plaintiff includes allegations that
show on the face of the complaint that there is some
insuperable bar to relief.” Jackson Sawmill,
580 F.2d at 306.
Materials to be Considered
initial matter, the parties disagree about what the Court
can, and ought to consider in deciding this joint motion to
dismiss. Compare Filing No. 138 at 3, n.2
(“C[OR] was more explicit in its letters to the
Clearing Firm Defendants, which were specifically referenced
in the Amended Complaint . . . . Since the [p]laintiff
specifically references the three letters discussed in the
text in its [a]mended [c]omplaint . . . the Court can and
should consider those in connection with this
[m]otion.”) with Filing No. 149 at 10
(“the Brokerage Defendants' reliance on COR
Clearing's demand letter . . . is not appropriately
considered on a motion to dismiss . . . .”).
Rule of Civil Procedure 12(d) provides:
If on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court,
the motion ...