8:15-cv-00317-LES-FG3 Doc # 30 Filed: 10/20/15 Page 1 of 6 - Page ID # 203

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA
COR CLEARING, LLC, a Delaware
limited liability company,

Case No. 8:15-cv-317

Plaintiff,
Vs.
CALISSIO RESOURCES GROUP,
INC., a Nevada Corporation; ADAM
CARTER, and individual; SIGNATURE
STOCK TRANSFER, INC., a Texas
corporation; and DOES 1-50,

MEMORANDUM IN SUPPORT
OF MOTION TO DISMISS

Defendants.

Signature Stock Transfer, Inc. respectfully submits this Memorandum in Support of its
Motion to Dismiss under Federal Rule of Civil Procedure 12 (b)(2), 12(b)(6) and Rule 9.
A.

INTRODUCTION
Plaintiff files a complaint against Signature Stock Transfer, Inc., a Texas corporation and

others including DOES 1-50. Essentially plaintiff states dividends were paid to shareholders
not entitled due to confusion with the issuance of shares which were issued after June 30, 2015.
A dividend was to be paid to shareholders of issued and outstanding common stock at the close
of business on June 30, 2015. (Complaint paragraph 19.)
In its complaint, paragraph 1, Nature of this Action plaintiff admits the error was
caused by a weakness in the dividend payment system of the third- party Depository Trust
Clearing Corporation. (DTCC).

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Plaintiff acknowledges defendant Calissio Resources Group, Inc. and its president (now
believed living in Mexico) asserted a huge glitch/error on how the divided was supposed to be
paid out. (See complaint paragraphs 42-43.)
Plaintiffs complaint fires a shotgun into a crowd of defendants, including SST (DOES 150) in hopes of hitting something. Further, not named in this action is the firm with the
Weakness- translation, made the error causing the alleged losses.
B.

Rules 12(b)(2), 12(b)(6) and Rule 9

The Federal Rules of Civil Procedure allow a generous pleading standard- Rule 8.

However, the test of the sufficiency of the pleadings comes under security when tested under
Rule 12 and 9.
(1)

Personal jurisdiction- 12(b)(2). The Eight Circuit set forth the fundamental rules
of personal jurisdiction in Denver v. Hentzen Coatings, Inc., 380 F.3d 1070 (8th Cir.
2004).
In Denver the court noted To survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must state sufficient facts in the complaint to support a reasonable
inference, the [the defendants] can be subjected to jurisdiction within the state. Once
jurisdiction ha(s) been controverted or denied, [the plaintiff] ha(s) the burden of proving
such facts. (Citation omitted.)
The court noted the traditional minimum, contacts between a non-resident and
the forum state.

(2)

Failure to state claim- 12(b)(6). The Eight Circuit has fashioned a very narrow
interpretation of Rule 8. Indeed, it now requires a pleader to plead specific elements of a
cause of action. Horras v. American Capital, Ltd., 729 F.3d 798 (8th Cir. 2013).
2

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The Legal Standard. Under Federal Rule of Civil Procedure 12(b)(6), a

complaint should be dismissed for failure to state a claim where a plaintiff fails to
assert facts that affirmatively and plausibly suggest that the plaintiff is entitled to
relief. Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893, 895 (8th Cir. 2010)
(quoting Gregory v. Dillards, Inc., 565 F.3d 464, 473 (8th Cir. 2009)); Iqbal, 129 S. Ct.
at 1960 (quoting Twombly, 550 U.S. at 570) (complaint must plead enough facts to state
a claim to relief that is plausible on its face).
The requirement to plead adequate facts in support of a complaint is only met
when the plaintiff pleads factual content that allows the court to draw the reasonable
inferences that the defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at
1949; Zoltek, 529 F.3d at 895. Simply put, a formulaic recitation of the elements of a
cause of action will not do if it is not accompanied by sufficiently detailed factual
allegations. Iqbal, 129 S. Ct. at 1949 (internal quotations omitted). In fact, the Eighth
Circuit recently emphasized that a pleading that offers merely labels and conclusions or
naked assertions devoid of further factual enhancement does not plausibly establish
entitlement to relief under any theory. C.N. v. Willmar Public Schools, 591 F.3d 624,
634-35 (8th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949) (internal quotations and
brackets omitted); see also Iqbal, 129 S. Ct. at 1949 (Federal Rule of Civil Procedure
8(a)(2) demands more than an unadorned, the defendant-unlawfully-harmed-me
accusation).
Rule 9(b) requires a heightened pleading standard for fraud. Mayer v.
Countrywide, 647 F.3d 789, 792-3 (8th Cir. 2001).

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The Eight Circuit examined an extensive complaint in BJC Health System v.

Columbia, 478 F.3d 908, 917 (8th Cir. 2007). Under Rule 9(b), a plaintiff must plead
such matters as the time, place and contents of false representations, as well as the
identity of the person making the misrepresentation and what was obtained or given up
thereby. Abels v. Farmers Commodities Corp., 259 F.3d 910, 920 (8th Cir. 2001).
C.

COMPLAINT DEFECTS
Paragraph 1 begins by throwing all defendants in the same jar. Calissio and Adam

Carter were active, according to the allegations, in the error/misconduct occurring in this case.
However, no facts throughout the 75 paragraph complaint allege actions by SST that actually
contributed to the error/glitch (as referred to by Mr. Carter) or misconduct as alleged in the
Third claim for Relief.
Actually, Paragraph one admits DTCC had weaknesses that resulted in the inaccurate
dividend payments. Interestingly, DTCC is not a named defendant.
Paragraph 6 claims Defendants perpetuated this scheme There are no allegations of
SST handling any money let alone $700,000.
Paragraph 15 (Jurisdiction) states defendants purposefully directed their actions to
Nebraska. SST has no connection to Nebraska nor any of its business related to any commercial
activity in Nebraska.
Paragraph 20 again throws SST (Transfer Agent) in with active participants Calissio and
Carter (DTCC) with no facts alleging any actual wrongdoing by SST.
Paragraph 31 asserts knowledge and intended to defraud the sellers without any
allegation of actions or who, what, where, when or how as required under pleading standards
(specifically Rule 9(b)).
4

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Plaintiffs First Claim for Relief simply lumps SST with the other defendants and makes
no specific allegations of wrong doing by SST (See paragraphs 47-52.)
Plaintiffs Second Claim for Relief is worse in that it asserts unjust enrichment when
SST received no funds and none alleged in the complaint.
Finally, plaintiffs Third Claim for Relief has absolutely no compliance with Rule 9(b).
The single paragraph (70) asserts SST acted as the instrumentality used by the other
Defendants as a basis for fraud.
D.

CONCLUSION
Plaintiffs complaint should be dismissed for: failure to assert jurisdiction; failure to state

a claim- 12(b)(6) ;and, failure to plead the third claim for relief with the requisite specifically
required by Rule 9(b).
Defendant Signature Stock Transfer, Ins. Requests the court to dismiss said complaint at
plaintiffs cost and for such further relief as the court deems just and equitable.
Dated this 20th day of October, 2015.

Signature Stock Transfer, Inc.

Defendant,

By:

/s/ Gail E. Boliver

Gail E. Boliver, Esq. (#20593)
Boliver Law Firm
8712 West Dodge Road, Suite 400
Omaha, NE 68114
Telephone: 402-392-0107
Facsimile: 402-392-1011
Email: boliver@boliverlaw.com

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CERTIFICATE OF SERVICE
I certify that on October 20, 2015, a true and correct copy of the forgoing was sent via
electronic mail through the CM/ECF system to all attorneys of record.

Michael T. Hilgers (#24483)

mhilgers@goberhilgers.com
Carrie S. Dolton (#24221)
cdolton@goberhilgers.com
GOBER HILGERS PLLC
14301 FNB Parkway, Suite 100
Omaha, NE 68154
Telephone: (402) 218-2106
Facsimile: (877) 437-5755
and
David L. Aronoft*
daronoff@winston.com
Saul R. Rostamian*
srostamian@winston.com
Andrew G. Smith*
agsmith@winston.com
WINSTON & STRAWN LLP
333 S. Grand Avenue, 38th Floor
Los Angeles, CA 90071-1543
Telephone: (213) 615-1700
Facsimile: (213) 615-1750
* admitted pro hac vice
Attorneys/or Plaintiff COR Clearing, LLC

/s/ Gail E. Boliver

Gail E. Boliver