GREGORY J. NISBET Plaintiff
HARP INVESTMENTS, LLC, et al. Defendants
ORDER ON DEFENDANT VANDELAY ENTERPRISES, LLC'S
MOTION TO DISMISS AND REQUEST TO TAKE JUDICIAL
the court is defendant Vandelay Enterprises, LLC's
request to take judicial notice and motion to dismiss
pursuant to MR. Civ. P. 12(b)(6) For the following reasons,
the request to take judicial notice is granted and the motion
to dismiss is denied in part and granted in part.
TO TAKE JUDICIAL NOTICE
Vandelay requests that the court take judicial notice of
documents attached to the motion to dismiss as exhibits A and
B. The documents are certified copies of all filings made by
Three Amigos, LLC and Vandelay Enterprises, LLC with the
Bureau of Corporations Elections and Commissions of the
Secretary of State for Maine. Specifically, Vandelay requests
that the court take judicial notice from these documents of
the fact that Three Amigos, LLC was administratively
dissolved by the Maine Secretary of State on August 18, 2014
and has not been reinstated and of the fact that Dan McCarron
has been the sole member of Vandelay since the filing of its
Certificate of Formation with the Bureau of Corporations
Elections and Commissions of the Secretary of State for Maine
on June 25, 2012 under the name Free Range Lobster, LLC.
Although plaintiff objects, the basis for the objection is
unclear. (Pl.'s Mem. 5.) Defendant
Vandelay's request is granted. See M.R. Evid. 201(b)(2);
(c)(2); Rodriguez-Teyes v. Molina-Rodriguez, 711
F.3d 49, 53 (1st Cir. 2013).
plaintiff does not challenge the authenticity of these
documents. Accordingly, the court may consider
defendant's exhibits without converting the motion to
dismiss into a motion for summary judgment. Moody v.
State Liquor & Lottery Comm'n, 2004 ME 20,
¶ 11, 843 A.2d 43.
February 3, 2012, plaintiff, Gregory Nisbet, acting as a
manager and member of Three Amigos, LLC,  executed and
delivered a $250, 000 note (the CRC note) to defendant
Coastal Realty Capital, LLC, a/k/a Maine Capital Group (CRC).
(Pl.'s Compl. ¶ 9.) Defendant Shawn Lyden is a
member and a manager of CRC. (Pl.'s Compl. ¶ 10.)
Plaintiff used the proceeds of the CRC note to buy out the
other membership interests in Three Amigos. (Pl.'s Compl.
¶ 13.) The CRC note was secured by property owned by
Three Amigos located at 125 Ocean Street, South Portland (the
property). (Pl.'s Compl. ¶¶ 12, 14.)
March 2014, plaintiff assigned a 99% membership interest in
Three Amigos to defendant Harp Investments, LCC (Harp) in
exchange for Harp's guarantee of new financing from
Camden National Bank (the Harp transaction). (Pl.'s
Compl. ¶¶ 17-19.) Plaintiff retained a 1% interest
in Three Amigos and defendant Christina Lyden, Harp's
sole member, manager of Harp, and wife of defendant Shawn
Lyden, began serving as Three Amigos' managing member.
(Pl.'s Compl. ¶¶ 2, 6, 20.)
of the Harp transaction, plaintiff, Three Amigos, and Harp
entered into a repurchase agreement. (Pl.'s Compl. ¶
24.) This agreement gave plaintiff the right to repurchase
the 99% interest from Harp upon plaintiff's satisfaction
of outstanding amounts due under the Camden note. (Pl.'s
Compl. ¶¶ 25-26.) Plaintiff performed all his
obligations under the repurchase agreement, including payment
of all amounts due to Harp and Camden. (Pl.'s Compl.
¶¶ 28, 29.)
through Ms. Lyden, Harp secured financing from Camden
National and executed a $250, 000 note. (Pl.'s Compl.
¶ 21.) The note was additionally secured by a guarantee
from Three Amigos and a mortgage on the property. (Pl.'s
Compl. ¶ 22.) The proceeds of the Camden note were used
to pay the balance of the CRC note. (Pl.'s Compl. ¶
summer of 2015, plaintiff informed defendants Harp, Ms. Lyden
and Mr. Lyden of his intention to redeem Harp's 99%
interest in Three Amigos. (Pl.'s Compl. ¶ 30.) These
defendants ignored, avoided, refused, and obstructed
plaintiff's repeated efforts to arrange for a closing on
the 99% interest from Harp. (Pl.'s Compl. ¶ 31.)
These defendants also refused to provide plaintiff with an
accounting of the amounts owed under the repurchase
agreement. (Pl.'s Compl.¶ 31.)
March 2017, plaintiff again attempted to exercise his rights
under the repurchase agreement by scheduling a closing.
(Pl.'s Compl. ¶ 32.) Defendants Lydens did not
attend the closing and refused to communicate with plaintiff.
(Pl.'s Compl. ¶ 33.)
2017, defendant Vandelay purchased the Camden note and the
mortgage on the 125 Ocean Street property from Camden
National Bank (Vandelay transaction). (Pl.'s Compl.
¶ 38.) Defendant Shawn Lyden was the sole member of
Vandelay at the time of this transaction. (Pl.'s Compl. J
38.) Immediately following the Vandelay transaction, Harp
stopped making payments on the note to Vandelay in order to
enable Vandelay to foreclose on the mortgage on the property.
(Pl.'s Compl. ¶¶ 39-40.) On September 29, 2017,
defendant Vandelay sent a notice of default and acceleration
to plaintiff as well as to defendants Harp, Three Amigos, and
Christine Lyden. (Pl.'s Compl. ¶ 41.) A power of
sale auction for the Ocean Street property was held on
October 27, 2017. (Pl.'s Compl. ¶ 43-45.) Due to
defects in the power of sale notice, a new auction date was
scheduled for December 19, 2017. (Pl.'s Compl. ¶
December 15, 2017, plaintiff filed a complaint against
defendants Harp; Maine National Mortgage, a/k/a Maine
National Mortgage, f/k/a Maine Capital Mortgage, LLC; CRC;
Vandelay; Shawn Lyden, and Christine Lyden. In the complaint,
plaintiff alleges twelve causes of action: count I, breach of
contract (Harp); count II, breach of fiduciary duty (Harp and
Ms. Lyden); count III, breach of duty of loyalty (Harp and
Ms. Lyden); count IV, fraud or deceit (defendants); count V,
participation in fraud, deceit, and breach of contract (the
Lydens, CRC, Vandelay); count VI, conversion (CRC); count VII
fraudulent transfer (the Lydens); count VIII, tortious
interference (defendants); count IX, participation in breach
of fiduciary duty (the Lydens, CRC, Vandelay); count X,
aiding and abetting breach of fiduciary duty (Mr. Lyden, CRC,
Vandelay); count XI, aiding and abetting breach of duty of
loyalty (Mr. Lyden, CRC, Vandelay); and count XII, conspiracy
(defendants). Defendant Vandelay is, therefore, named as a
defendant on seven counts only: IV, V, VIII, IX, X, XI, and
Vandelay filed a motion to dismiss on January 31, 2018.
Plaintiff filed an objection to the motion to dismiss on
March 6, 2018. Defendant Vandelay filed a ...