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Nisbet v. Harp Investments, LLC

Superior Court of Maine, Cumberland

April 26, 2018

GREGORY J. NISBET Plaintiff
v.
HARP INVESTMENTS, LLC, et al. Defendants

          ORDER ON DEFENDANT VANDELAY ENTERPRISES, LLC'S MOTION TO DISMISS AND REQUEST TO TAKE JUDICIAL NOTICE

          NANCY MILLS JUSTICE.

          Before 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.

         REQUEST TO TAKE JUDICIAL NOTICE

         Defendant 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.[1] (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).

         Further, 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.[2] Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 11, 843 A.2d 43.

         MOTION TO DISMISS

         1. Allegations

         On February 3, 2012, plaintiff, Gregory Nisbet, acting as a manager and member of Three Amigos, LLC, [3] 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.)

         In 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.)

         As part 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.)

         Acting 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. ¶ 23.)

         In the 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.)

         In 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.)

         In June 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. ¶ 47.)

         On 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 XII.

         Defendant 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 ...


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