United States District Court, W.D. Tennessee, Eastern Division
SUPERIOR HOME MORTGAGE, LLC, f/k/a B&H FINANCE, LLC; and ROGER SWAIM, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF SUPERIOR HOME MORTGAGE, LLC, Plaintiffs,
TERRI FESMIRE SADLER MARBURY, an individual, DAVID MARBURY, an individual, JENNIFER AZBILL HALL, an individual, BILLY HALL, an individual, B&H INVESTMENTS, INC., a dissolved company; BENJAMIN L. VARGASON, SR., an individual, SHONDA VARGASON, an individual, GREAT AMERICAN SPORT, LLC, an administratively dissolved company, BANCORPSOUTH BANK, a corporation, and JOHN DOES A, B, & C, individuals, and JANE DOES A, B, & C, individuals, Defendants.
ORDER DENYING MOTION TO DISMISS OF DEFENDANT BILLY
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE
Billy Hall has filed a pro se motion to dismiss the
complaint filed against him (ECF No. 43.) Defendant alleges
that he is named in the lawsuit “merely” to
harass him. Plaintiffs have filed a response to the
motion. (ECF No. 47.) For the reasons set forth below, the
motion is DENIED.
cites Rule 11 of the Federal Rules of Civil Procedure in
support of his motion. As noted by Plaintiffs, the Court has
the authority to impose sanctions under Rule 11 and 28 USC
§1927 and through its inherent power to punish those
that abuse the judicial process. However, other than denying
the allegations in the complaint and stating that he believes
that he was named in the complaint as harassment, Defendant
Hall has offered no explanation as to why Plaintiffs should
be sanctioned and has offered no support for his statement
that the complaint was filed against him to harass him.
extent the motion is brought under Federal Rule of Civil
Procedure 12(b)(6), the motion is also denied. A motion to
dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency
of the complaint. RMI Titanium Co. v. Westinghouse Elec.
Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). A complaint
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action....” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
“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.'” Id. (quoting Twombly, 550
U.S. at 570). “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). The plausibility standard
“does not impose a probability requirement at the
pleading stage; it simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of
illegal [conduct].” Twombly, 550 U.S. at 556.
present case, the complaint alleges, inter alia,
fraud, tortious misrepresentation, conspiracy, breach of
contract, and unjust enrichment by the defendants. Plaintiffs
have clearly alleged facts which, if proved, would allow them
to recover against Defendant Billy Hall. See Husky
Int'l Elecs., Inc. v. Ritz, 136 S.Ct. 1581 (2016)
(discussing fraudulent conveyances which “typically
involve ‘a transfer to a close relative, a secret
transfer, a transfer of title without transfer of possession,
or grossly inadequate consideration'” and noting
that the recipient of a fraudulent conveyance, with the
requisite intent, also commits fraud (citations omitted)).
the complaint alleges that Defendant Jennifer Hall was an
officer and member of Defendant B&H Investments and a 10%
member of B&H Finance, LLC. (Cmplt. para 4, ECF No. 1.)
Defendant Billy Hall is her husband and “upon
information and belief, received some or all of the benefits
of the property at issue in this matter. Defendant Billy Hall
is included herein as a necessary party defendant and to
provide notice of fraudulent transfer.” (Id.
at para. 5.)
complaint alleges that various fraudulent actions were taken
by Jennifer Hall and resulted in her having access to certain
funds that were “diverted” and “used to
support Billy Hall. (Id. at para. 33.)
“Alternatively, upon information and belief, Jennifer
Hall and/or Terry Marbury and/or Benjamin Vargason have
fraudulently transferred monies to their spouses in an
attempt to divert the funds out of their names.
(Id.) Additionally, the complaint alleges that
Jennifer Hall “along with Billy Hall, received a
benefit from these fraudulent acts in the form of money and
compensation, to the detriment of Superior/Swaim/B&H
Finance. Upon information and belief, Jennifer Hall
transferred monies to Billy Hall's name fraudulently to
conceal the fraudulent activity.” (Id. at
para. 38.) Also, “Defendants Marbury, Hall, B&H
Investments, Vargason, and Great American Sport, converted,
to their own use, or to Billy Hall, David Marbury, and/or
Shonda Vargason, monies rightfully belonging to Plaintiffs,
intentionally, thus converting the money and/or metals to
Defendants' own use.” (Id. at para. 74.)
According to the complaint, “Defendants, Marbury, Hall,
B&H Investments, Vargason, Great American Sport, upon
information and belief, fraudulently transferred or conveyed
monies and other property that can be used to satisfy a
judgment to the possession of others, including Billy Hall,
Shonda Vargason, and/or David Marbury, while retaining
control and/or possession of the property after the transfer,
for the purpose of concealing such assets with the intent to
defraud creditors, including the Plaintiffs, from obtaining
the return of the monies belonging to them to satisfy a
judgment in this matter. (Id. at para. 77.)
Plaintiffs contend that they were injured by Defendants'
of the relief sought by Plaintiffs they ask that “the
Court declare that the Defendants, Terri Marbury, David
Marbury, Jennifer Hall, Billy Hall, B&H Investments,
Benjamin Vargason, Shonda Vargason, Great American Sport, LLC
and BancorpSouth Bank hold the assets of the Plaintiffs
obtained by them as a result of the fraudulent schemes, that
the fraudulent schemes depicted herein were not a just and
proper usage of the monies obtained from Plaintiffs, and, as
a result, such indebtedness owed by the Defendants to the
Plaintiffs be transferred to the Plaintiffs….”
(Id., Prayer for Relief para. F.) If these facts are
proved at trial, the fact-finder could find for Plaintiffs
against Defendant Billy Hall.
Defendant Billy Hall has failed to show that Plaintiffs
should be sanctioned for filing the complaint against him and
has failed to show the complaint does not state a claim upon
which relief can be granted against him, the motion to
dismiss is DENIED.
IS SO ORDERED.
 In support of his motion, Defendant
relies on a signed written statement of Jennifer Hall which
is not attached to the motion. Therefore, the ...