Free Reply Memorandum - District Court of California - California

Case 3:07-cv-06169-BZ

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GORDON J. ZUIDERWEG, ESQ. (SBN 83101) LAW OFFICES OF BARRY K. ROTHMAN 190 1 Avenue of the Stars Suite 370 Los Angeles, California 90067 Telephone: (310) 557-0062 Facsimile: (310) 557-9080 Attorneys For Defendants Gregory S. Soter and Alan L. Rossi

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10 11 12 13 14 v. E&M TRUST, Plaintiff,

UNITED STATES DISTRICT COURT NORTHERJ\I DISTRICT OF CALIFORNIA

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INTERNATIONAL HOLDING CORPORATION OF NEVADA, et aI., Defendants.

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CASE NO.:

C07-06169 BZ

REPLY MEMORANDUM OF POINTS AND AUTHORITIES SUBMITTED BY DEFENDANTS SOTER AND ROSSI IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION [FRCPRULE 12(b)(1)] AND FOR FAILURE TO STATE A CLAIM [FRCPRULE12(b)(6)] OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT [FRCP RULE12(e)]
Hearing: Date: Time: Place: March 19,2008 10:00 a.m. Courtroom G, 15th Floor

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INTRODUCTION.

This Reply Memorandum is respectfully submitted by Defendants Gregory S. Soter and Alan L. Rossi in reply to PlaintiffE&M Trust's Opposition To Defendants' Motion To Dismiss For Lack of Subject Matter Jurisdiction And For Failure To State A Claim Or In The Alternative Motion For More Definite Statement (hereinafter sometimes referred to as "Plaintiff s Opposition"] and in support of Defendants' Motion to Dismiss Complaint For Lack of Subject Matter Jurisdiction [FRCP Rule 12(b)(l)] And For Failure To State A Claim [FRCP Rule 12(b)(6)] Or, In The Alternative, Motion for

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More Definite Statement [FRCP RuleI2(e)] (hereinafter sometimes referred to as "Defendants' Motion"). Defendants' Motion asserts the following. 1 First, the Complaint on file herein should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for lack ofsubj ect matter jurisdiction. The Complaint does not allege the existence of a federal question or of diversity of citizenship. Second, the Complaint on file herein should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which reliefcan be granted. The Complaint fails to make any specific allegations in regard to Defendants Soter and Rossi. Defendants Soter and Rossi are not even mentioned in the body of the Complaint. Further, the Complaint does not allege any cognizable claim for relief against any of the defendants. It is impossible to ascertain if Plaintiff is alleging a breach of contract or fraud or any other legal basis for relief. Third, pursuant to Fed.R.Civ.P. 12(e), Defendants Soter and Rossi are requesting a more definite statement because the allegations of the Complaint are so vague, ambiguous, unintelligible, and indefinite that Defendants Soter and Rossi cannot reasonably be required to frame a responsive pleading. Plaintiffs Opposition, which is an opposition in name only, fails to directly address any of the above-mentioned issues. Instead, Plaintiffs Opposition ignores the issues, admits that Plaintiff is unable to "prepare a direct, plenary and appropriate opposition to the motion to dismiss" (Plaintiffs Opposition, Page 2, Lines 14-15), and, through the attached Declarations of David Hicks and E. Altieri makes wild, unsubstantiated, and contradictory allegations against Defendants Soter and Rossi. Defendants' request for a more definite statement is not opposed. The Court should note that, along with this Reply Memorandum, Defendants Soter and Rossi have filed a Request For Judicial Notice, in which, pursuant to Rule 201 of the Federal Rules of Evidence, Defendants Soter and Rossi request that the Court take judicial notice of the following: 1. In 2006, the address of Defendant International Holding Corporation of Nevada was 1704 N. Jones, Las Vegas, Nevada 89108;
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Defendants, Motion raised the issue ofPlaintiffE&M Trust, an entity, representing itself. That

issue has been rendered moot by the Notice of Appearance (Docket No. 20) by Attorney David Hicks.

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2.

In 2006, the address of Defendant Joseph Mathew Kelaidis was 1704 N. Jones, Las Vegas, Nevada 89108;

3.

In 2006, the address of Defendant James Mathew Kelaidis was 1704 N. Jones, Las Vegas, Nevada 89108;

4.

In 2006, Defendant Joseph Mathew Kelaidis was the resident agent and President of Defendant International Holding Corporation of Nevada;

5.

In 2006, Defendant James Mathew Kelaidis was the Secretary and Treasurer of Defendant International Holding Corporation of Nevada; and

6.

The Entity Details ofthe Nevada Secretary ofState for International Holding Corporation of Nevada are attached to the Request For Judicial Notice as Exhibit 1.

In the Request For Judicial Notice, Defendants Soter and Rossi also request that the Court take judicial notice of the Entity Details of the Nevada Secretary of State for International Holding Corporation of Nevada, which are attached to the Request For Judicial Notice as Exhibit 1, and the facts set forth therein. The Entity Details contain the information supporting the above-mentioned facts of which judicial notice is requested.

2.

PLAINTIFF'S OPPOSITION DOES NOT OPPOSE DEFENDANTS'
MOTION FORA MORE DEFINITE STATEMENT, AND, THEREFORE,

AT

THE

VERY

LEAST,

THIS

COURT

SHOULD

GRANT

DEFENDANTS' REOUEST FOR A MORE DEFINITE STATEMENT.
Plaintiffs Opposition contains no opposition to Defendants' request for a more definite statement. Indeed, Plaintiffs counsel does not deny that the Complaint on file herein is so vague, ambiguous, unintelligible, and indefinite that Defendants Soter and Rossi cannot reasonably be required to frame a responsive pleading. Indeed, Plaintiff s Opposition seems to be confused as to what the allegations ofthe Complaint are. Clearly, the Complaint on file herein fails to meet the requirements of Fed.R.Civ.P. 8 by failing to set forth allegations that are simple, concise and direct. Given the apparent and manifest unintelligibility ofthe Complaint, Defendants' request for a more definite statement should be granted if Defendants' Motion To Dismiss is not granted. 3 REPLY MEMORANDUM BY DEFENDANTS SOTER AND ROSSI - Case No. C07-06169 BZ

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3.

PLAINTIFF'S OPPOSITION DOES NOT DISPUTE DEFENDANTS' ASSERTION THAT THE COMPLAINT ON FILE HEREIN DOES NOT ALLEGE A BASIS FOR SUBJECT MATTER JURISDICTION, AND, THEREFORE, THIS ACTION SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(1) FOR LACK OF JURISDICTION.

As set forth above, Defendants Soter and Rossi have requested that the Complaint herein be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for lack ofsubject matterjurisdiction. Plaintiffs Opposition does not even address the issue except for a gratuitous unsubstantiated remark that "the moving parties may have been engaged in wire transfer fraud." The Complaint itselffails to allege any basis for federal question jurisdiction. "The court must ascertain from the complaint whether federal law is a pivotal issue in the case, one that is basic in the determination of the conflict between the parties." North

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America Phillips Corp. v. EmeryAir Freight Corp., 579 F.2d 229,233 (2nd Cir. 1978). The Complaint
clearly does not allege any facts from which this Court can ascertain that federal law is a pivotal issue in this case. Plaintiff s Opposition similarly fails to address the issue ofthe lack of diversity jurisdiction. In should also be noted that Plaintiffs Opposition mentions just one possible claim involving a $72,500.00 wire transfer. Ofcourse, under 28 U.S.c. §1332(a), the amount in controversy, exclusive ofinterest and costs, in a diversity case must exceed $75,000.00. Thus, the amount allegedly in controversy herein clearly does not satisfy the requirements of28 U.S.C. §1332(a), in that it does not exceed $75,000.00. Thus, it appears that, whatever the citizenship of the parties, diversity jurisdiction cannot exist in this case. The Court should note that, as set forth in Defendants' Motion To Dismiss: "It is to be presumed that a cause lies outside this limited jurisdiction [citation deleted], and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. ofA merica, 511 U.S. 375,377, 114 S.Ct. 1673 (1994). Plaintiffs Opposition does nothing to overcome the above presumption, and, thus, this case should be dismissed for lack of subject matter jurisdiction.
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IT IS UNDISPUTED THAT THE COMPLAINT ON FILE HEREIN IS DEFECTIVE ON ITS FACT, AND, THUS, THIS ACTION SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(6) FOR FAILURE TO STATE
A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

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It is undisputed that the Complaint on file herein fails to state a claim against Defendants Soter

and Rossi. Plaintiff s Opposition does not even attempt to make a case that the Complaint states a claim. In fact, in the previously filed Affidavit of Plaintiff s Counsel In Support ofPlaintiffE&M Trust's Ex Parte Application To Enlarge Time To Respond To Defendants' Motion To Dismiss For Lack of Subject Matter Jurisdiction And For failure To State A Claim Or In The Alternative Motion For More Definite Statement (Docket No. 26, Attachment #1), in Paragraph 3 (Page 3, Lines 1-3), Plaintiffs counsel admitted that the "complaint is admittedly defective on its face." Plaintiffs counsel is correct. The Complaint on file herein is defective on its face. It is clear that the Complaint does not allege any cognizable claim against Defendants Soter and Rossi, and that, outside of the case caption, the Complaint does not even mention Defendants Soter and Rossi. Thus, the Complaint on file herein should be dismissed.

5.

PLAINTIFF'S COUNSEL'S ALLEGATIONS ARE UNSUBSTANTIATED AND CONTRADICTORY.

Instead of arguing that the Complaint before the Court states a claim against Defendants Soter and Rossi, Plaintiffs counsel makes wild, unsubstantiated allegations in the Opposition itself and in the attached declarations. Plaintiffs counsel contends that the "additional information" may show that the moving defendants "may have been engaged" in wire transfer fraud. The Court should note the following about these alleged facts. There is nothing in Plaintiffs Opposition to link any of the allegations to Defendants Soter and Rossi. There is no allegation that Defendants Soter and Rossi received the alleged wire transfer. There is nothing to show that the bank account at Nevada State Bank to which the wire transfer went is an account belonging to or linked to Defendants Soter or Rossi. There is nothing in the "additional information" set forth in Plaintiffs Opposition that connects or links Defendants Soter and Rossi to the alleged wire transfer. Indeed, the

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"additional information" demonstrates that neither Defendant Soter nor Defendant Rossi were connected to the alleged wire transfer. The wire transfer is to another named Defendant Joseph Mathew Kelaidis [Plaintiffs Opposition, Declaration of Altieri, Attachment #2, Paragraph 6, Page4 3, Line 22 to Page 7, Line 4; Plaintiffs Opposition, Exhibit C] not to either Defendant Soter or Defendant Rossi. The caption of the Complaint connects Defendant Joseph Mathew Kelaidis to International Holding Corporation of Nevada, another named Defendant, which has no connection whatsoever with

Defendants Soter and Rossi. The address for Vista Development of which Defendants Soter and Rossi are members is listed in Exhibits A and C to Plaintiffs Opposition as 1704 N. Jones, Las Vegas, Nevada, which is clearly not the address for Vista Development as set forth in Exhibit D, a copy of a printout from the Nevada Secretary ofState web site. Further, the instructions (Exhibit A) initially listed Defendant International Holding Corporation of Nevada as the beneficiary of the wire transfer. If one consults the web site for the Nevada Secretary of State, one finds the following details in the Entity Details for Defendant International Holding Corporation of Nevada, a true and correct copy of which is attached as Exhibit 1 to Defendants' Request For Judicial Notice: 1. In 2006, the address of Defendant International Holding Corporation of Nevada was 1704 N. Jones, Las Vegas, Nevada 89108; 2. In 2006, the address of Defendant Joseph Mathew Kelaidis was 1704 N. Jones, Las Vegas, Nevada 89108; 3. In 2006, the address of Defendant James Mathew Kelaidis was 1704 N. Jones, Las Vegas, Nevada 89108; 4. In 2006, Defendant Joseph Mathew Kelaidis was the resident agent and President of Defendant International Holding Corporation of Nevada; and 5. In 2006, Defendant James Mathew Kelaidis was the Secretary and Treasurer of Defendant International Holding Corporation of Nevada.
It is clear, therefore, that the alleged wire transfer went to another Defendant, Joseph Mathew

Kelaidis, and not to Defendant Soter or Defendant Rossi. The alleged transfer went to the address of 1704 N. Jones, Las Vegas, Nevada 89108, which was an address for Defendants International Holding Corporation of Nevada, Joseph Mathew Kelaidis, and James Mathew Kelaidis and which is not an 6
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address connected with either Defendant Soter or Defendant Rossi. In summary, if one examines the "additional information" in Plaintiffs Opposition, one finds that it is merely smoke and mirrors cobbled together by Plaintiff s counsel. The "additional information" is frail, attenuated, and contradictory. The so-called evidence does not support or enhance the Complaint or support any cognizable claim against Defendants Soter and Rossi. The "additional information" does not even provide a basis for this Court to grant Plaintiff leave to amend.

6.

CONCLUSION.

Plaintiffs Opposition to Defendants' Motion is in actuality not an opposition. Defendants' request for a more definite statement is not even opposed. Plaintiff s counsel does not argue that the Complaint is sufficient. Indeed, Plaintiffs counsel has previously admitted that the Complaint is defective on its face. Plaintiffs counsel does not even attempt to argue that the Complaint states a cause of action against Defendants Soter and Rossi. Plaintiffs counsel's attempt to construct some sort of evidence that indicates that there may be some sort of claim against Defendants Soter and Rossi is to no avail. The alleged "additional information" is speculative, not probative, unsubstantiated, and

contradictory. The instant case should be dismissed for lack ofsubject matter jurisdiction and for failure to state a claim against Defendants Soter and Rossi. Ifthe Court decides to deny the motion to dismiss, it should grant Defendants' request for a more definite statement.

Dated: February 19,2008

LAW OFFICES OF BARRY K. ROTHMAN

Attorneys For Defendants Gregory S. Soter and Alan L. Rossi

BY~j~Z1M.~dM~---

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PROOF OF SERVICE

Gordon J. Zuiderweg certifies and declares as follows: I am an attorney at law duly licensed to practice before all the courts of the State of California, and I am a member of the Law Offices of Barry K. Rothman, attorneys for Defendants Soter and Rossi herein. I am over the age of 18 and not a party to this action. My business address is 1901 Avenue of the Stars, Suite 370, Los Angeles, California 90067, which is located in the county where the mailing described below took place. On February 19, 2008, I deposited in the mail at Los Angeles, California, true and correct copies of the foregoing REPLY MEMORANDUM OF POINTS AND AUTHORITIES SUBMITTED BY DEFENDANTS SOTER AND ROSSI IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION [FRCP RULE 12(b)(1)] AND FOR FAILURE TO STATE A CLAIM [FRCP RULE 12(b)(6)] OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT [FRCP RULE12(e)], in sealed envelopes, with postage prepaid, addressed to: David Hicks, Esq. David Hicks, APLC 2200 Powell Street Suite 990 Emeryville, California 94608 Brendan P. Cullen, Esq. Amie Rooney, Esq. Sullivan & Cromwell LLP 1870 Embarcadero Road Palo Alto, California 94303 I declare under penalty of perjury under the laws of the State of California and those of the United States of America that the foregoing is true and correct. Executed in Los Angeles, California on February 19,2008.

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