United States District Court, D. South Carolina
Beattie B. Ashmore, In His Capacity as Court-Appointed Receiver for Ronnie Gene Wilson and Atlantic Bullion and Coin, Inc., Plaintiff,
Dewey Barber, Defendant.
ORDER AND OPINION
Beattie B. Ashmore (“Plaintiff”), in his capacity
as court-appointed Receiver for Ronnie Gene Wilson
(“Wilson”) and Atlantic Bullion and Coin, Inc.
(“AB&C”), filed the instant action against
Defendant Dewey Barber (“Defendant”) to recover
grossly excessive payments received by Defendant as a return
on his investment in the Wilson-AB&C Ponzi
scheme. (ECF No. 1.)
matter is before the court as a result of Defendant's
Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(3),
12(b)(5) and 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 7.) Plaintiff opposes Defendant's
Motion to Dismiss in its entirety. (ECF No. 9.) For the
reasons set forth below, the court DENIES WITHOUT PREJUDICE
Defendant's Motion to Dismiss.
RELEVANT BACKGROUND TO PENDING MOTION
is the court appointed Receiver in In Re: Receiver for
Ronnie Gene Wilson and Atlantic Bullion & Coin,
Inc., C/A No. 8:12-cv-02078-JMC, ECF No. 1 (D.S.C. July
25, 2012), a case related to the instant matter. Plaintiff
alleges that “[o]n October 21, 2008, Defendant made an
‘investment' [in the Wilson-AB&C Ponzi scheme]
of $31, 280.00.” (ECF No. 1 at 4 ¶ 24.)
Subsequently, “Defendant received $74, 260.00 in
returns [from the Wilson-AB&C Ponzi scheme] on March 1,
2010, resulting in a profit of $42, 980.00.”
(Id. at ¶ 25.)
on his appointment as Receiver tasked with “locating,
managing, recouping, and distributing the assets of the
Wilson-AB&C investment scheme, ” Plaintiff
commenced the instant action against Defendant on November 5,
2015, asserting claims for fraudulent transfer (in violation
of the Statute of Elizabeth, SC Code Ann. § 27-23-10
(2014) and/or the Georgia Uniform Fraudulent Transfer Act,
Ga. Code Ann. §§ 18-2-70-18-2-80 (2010)) and unjust
enrichment. (ECF No. 1 at 1 ¶ 1 & 6 ¶ 37-7
¶ 51.) On January 4, 2016, Defendant filed the instant
Motion to Dismiss. (ECF No. 7.) Thereafter, on January 22,
2016, Plaintiff filed a Memorandum in Opposition to
Defendant's Motion to Dismiss (ECF No. 9).
court has jurisdiction over this matter under 28 U.S.C.
§ 1331 pursuant to Plaintiff's allegation that the
Complaint “is so related to the In Re
Receiver, 8:12-CV-2078-JMC case and the underlying
criminal case, United States v. Wilson, et al,
8:12-cr-00320[, ]” cases in which the court has
jurisdiction, “that it forms part of the underlying
case or controversy.” (ECF No. 1 at 1 ¶ 3.) The
court may properly hear Plaintiff's state law claims for
fraudulent transfer and unjust enrichment based on
supplemental jurisdiction since these claims “are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy . . . .” 28 U.S.C. § 1367(a).
Motion to Dismiss for Lack of Personal Jurisdiction
defendant challenges the court's personal jurisdiction
under Rule 12(b)(2), plaintiff has the burden of proving that
jurisdiction exists “by a preponderance of the
evidence.” In re Celotex Corp., 124 F.3d 619,
628 (4th Cir. 1997). “[W]hen, as here, a district court
rules on a Rule 12(b)(2) motion without conducting an
evidentiary hearing or without deferring ruling pending
receipt at trial of evidence relevant to the jurisdictional
issue, but rather relies on the complaint and affidavits
alone, ‘the burden on the plaintiff is simply to make a
prima facie showing of sufficient jurisdictional basis in
order to survive the jurisdictional challenge.'”
Id.; see also New Wellington Fin. Corp. v.
Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir.
2005) (noting that a plaintiff need only make a prima facie
showing of jurisdiction when the court does not conduct an
evidentiary hearing). In deciding whether plaintiff has met
this burden, the court construes all disputed facts and draws
all reasonable inferences from the proof in favor of
jurisdiction. Carefirst of Md., Inc. v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.
2003); Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56,
60 (4th Cir. 1993). In ruling on a motion to dismiss for lack
of personal jurisdiction, the court may consider evidence
outside of the pleadings, such as affidavits and other
evidentiary materials, without converting the motion to
dismiss into a motion for summary judgment. Magic Toyota,
Inc. v. Se. Toyota Distribs., Inc., 784 F.Supp. 306, 310
Motion to Dismiss for Improper Venue
motion to dismiss for improper venue is brought pursuant to
Rule 12 of the Federal Rules of Civil Procedure.
“Unlike a Rule 12(b)(6) motion, evidence outside the
pleadings may be ‘freely consider[ed]' in ruling on
a Rule 12(b)(3) motion.” Am. Ins. Mktg. Corp. v. 5
Star Life Ins. Co., 958 F.Supp.2d 609, 612 (D. Md. July
26, 2013) (citing Sucampo Pharms., Inc. v. Astellas
Pharma, Inc., 471 F.3d 544, 550 (4th Cir.2006)).
“A plaintiff is obliged, however, to make only a prima
facie showing of proper venue in order to survive a motion to
dismiss.” Aggarao v. MOL Ship Mgmt. Co., Ltd.,
675 F.3d 355, 366 (4th Cir. 2012) (citation omitted). In
assessing whether the plaintiff has made this showing, courts
must “view the facts in the light most favorable to the
plaintiff.” Id. (citation omitted).
Motion to Dismiss for Insufficient Service of
court has the discretion to dismiss a case under Fed.R.Civ.P.
12(b)(5) for insufficient service of process. Reinhold v.
Tisdale, C/A No. 8:06-3311-MBS-BHH, 2007 WL 2156661, at
*3 (D.S.C. Apr. 30, 2007) (citing Dimensional
Commc'ns, Inc. v. OZ Optics, Ltd., 218 F.Supp.2d
653, 655 (D.N.J. 2002)). “When personal jurisdiction is
challenged as a result [of] alleged improper service,
‘[a] trial court may consider evidence by affidavit,
depositions or live testimony without converting the
proceeding to one for summary judgment.'” Lail
v. United States, C/A No. 3:11-cv-0977-TLW-TER, 2012 WL
3779386, at *6 (D.S.C. Aug. 10, 2012) (citing Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Sufficiency
of service of process is generally governed by Fed.R.Civ.P.
Motion to Dismiss for Failure to State a Claim
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.”). To be legally sufficient a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
12(b)(6) motion “should not be granted unless it
appears certain that the plaintiff can prove no set of facts
which would support its claim and would entitle it to
relief.” Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6)
motion, the court should accept as true all well-pleaded
allegations and should view the complaint in a light most
favorable to the plaintiff. Ostrzenski v. Seigel,
177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., 7
F.3d at 1134. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (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.”
Id. (citing Twombly, 550 U.S. at 556).
Dismissal for Lack of Personal Jurisdiction
The Parties' Arguments
first argues that the court lacks personal jurisdiction over
him because Plaintiff failed to timely file copies of the
Complaint and the Order of Appointment in the Southern
District of Georgia within 10 days of his appointment. (ECF
No. 7 at 5-7.) In support of this argument, Defendant asserts
that the Order of Appointment was executed on July 25, 2012
and the Complaint and Order of Appointment were filed in the
Southern District of Georgia on August 7, 2012, which is 13
days later. (Id. at 6.) Defendant further asserts
that pursuant to the jurisdictional prerequisites of 28
U.S.C. § 754, Plaintiff's late filing divests him of
“jurisdiction and control over any property in the
Southern District of Georgia.” (Id ...