IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY
SOLOMON KABORE, et al.,
Plaintiffs,
v.
GLOBAL INVESTMENT TRADING S.A.
D/B/A LIYEPLIMAL, SIMTREX
COMMERCIAL BROKERS LLC, et al.,
Defendants.
Case No. 2:2022cv04211
MOTION TO DISMISS
COMES NOW, Defendants [ENTER NAMES OF DEFENDANTS], and file this Motion
to Dismiss the Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b). The Complaint fails to
state a claim for which relief can be granted, this court lacks jurisdiction to hear Plaintiff’s claims
in any event, the venue is improper, there is insufficient process, and there is insufficient service
of process. In support of the response, Defendants alleges as follows:
BACKGROUND
Defendants invested in Global Investment Trading, which is a crypto company based in
Cameroon, Central Africa (hereinafter “the Company”). The company had a referral program,
where the referring investor was paid a commission for referring new investors. The company
later went to the crypto exchange and the coin price fell sharply.
After the crypto coin price fell sharply, the Plaintiffs sued Defendants by filing a
Complaint on or about June 23, 2022 at this Court. The Plaintiffs claimed that the Company and
the Defendants owe them damage amounting to millions of dollars. The lawsuit has 125
defendants and about 20 plaintiffs. It is worth noting that all the Plaintiffs and the Defendants
were investors in the Company, and all lost money they invested in the Company.
Defendants therefore challenge the Complaint because they were never owners of the
company, its employees, or directors. Instead, they were just investors like the plaintiffs.
Defendants hereby file this Motion to Dismiss the Complaint.
STANDARD OF REVIEW
For a complaint to survive a Motion to Dismiss, it must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In
Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege
facts that are “enough to raise a right to relief above the speculative level.” 550 U.S. 544, 555
(2007). Although “detailed factual allegations” are not required, mere “labels,” “conclusions,” or
“formulaic recitation[s] of the elements of a cause of action” are insufficient. Id.; see also
Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) (“it is not enough to give a
threadbare recitation of the elements of a claim without factual support”). The allegations must
“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555.
Stated differently, the complaint must include “enough facts to state a claim to relief that
is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and
quotation marks omitted). To be facially plausible, the complaint must allow “the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
ARGUMENTS
i. There is lack of personal jurisdiction.
Personal jurisdiction ‘is an essential element of the jurisdiction of a district court, without
which it is powerless to proceed to an adjudication.’ Anderson v. GlobalSantaFe Offshore
Services, Inc., 924 F.Supp.2d 738, 742 (E.D. La. 2013) (quoting Rhurgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999)).
To exercise personal jurisdiction over a non-resident defendant, two requirements must
be satisfied. “First, the forum state’s long-arm statute must confer personal jurisdiction. Second,
the exercise of jurisdiction must not exceed the boundaries of the Due Process Clause of the
Fourteenth Amendment.” Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir.
2006).
Defendants challenge the personal jurisdiction of this court. First, the Defendants live in
the US, Canada, Africa and other countries across the world, while Plaintiffs live in different
states across the United States. Next, Defendants aver that the state of New Jersey’s long-arm
statute does not confer personal jurisdiction in this case. It is notable that a long-arm statute
allows for a court to obtain personal jurisdiction over an out-of-state defendant on the basis of
certain acts committed by an out-of-state defendant, provided that the defendant has a
sufficient connection with the state.
In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the Supreme Court held
that for a defendant to have minimum contacts, the defendant needs some combination of the two
following factors: systematic and continuous activity within the forum jurisdiction; a cause of
action arising from that activity. In this case, Defendants never had minimum contacts in the
State of New Jersey. Besides, the Plaintiffs cannot claim causes of action related to any activity
involving the Defendants since the Defendants were never owners of the company, its
employees, or directors. Instead, they were just investors like the plaintiffs.
Next, Defendants aver that this Court’s exercise of personal jurisdiction would fly in the
face of the due process protections under the Fourteenth Amendment. It is trite law that even if a
nonresident defendant has minimum contacts with the forum (Defendants maintain that there
were no minimum contacts), the Supreme Court has, at times, considered whether a court’s
exercise of personal jurisdiction over him would comport with due process by examining the
reasonableness of the exercise of jurisdiction. See Asahi Metal Indus. Co., Ltd. v. Superior
Court, 480 U.S. 102, 113 (1987) ("We have previously explained that the determination of the
reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of
several factors.").
In International Shoe and its subsequent opinions, the Court established a multi-factor
test that seeks to ensure that the maintenance of the suit does not offend "traditional notions of
fair play and substantial justice." See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
The Court has subsequently clarified that in applying this test to evaluate the reasonableness of
the exercise of jurisdiction in light of the defendant’s contacts with the forum and litigation, it
will examine several factors, including: (1) "the burden on the defendant"; (2) "the forum State’s
interest in adjudicating the dispute"; (3) "the plaintiff’s interest in obtaining convenient and
effective relief"; (4) "the interstate judicial system’s interest in obtaining the most efficient
resolution of controversies"; (5) and "the shared interest of the several States in furthering
fundamental substantive social policies." See Burger King v. Rudzewicz, 471 U.S. 462, 477
(1985).
Defendants maintain that first, there were no minimum contacts in this state. They were
never employees, officers, or owners of Global Investment Trading. They were investors, just
like all the Plaintiffs. In fact, Defendants have lost their investments in the Company, just like
the Plaintiffs. It is also the Defendants contention that this Court’s exercise of personal
jurisdiction over the Defendants would cause undue burden on Defendants. As previously stated,
Defendants live in the US, Canada, Africa and other countries across the world. Having the
Defendants subject to this Court’s jurisdiction would occasion undue expense and/or cost on
Defendants.
For the said reasons, this Court lacks personal jurisdiction over the Defendants, and the
case should be dismissed with prejudice.
ii. The venue is improper.
A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(3), seeks dismissal
based on improper venue. The moving party bears the burden of demonstrating that venue is
improper. Myers v. American Dental Ass’n, 695 F.2d 716, 732 (3d Cir. 1982).
Pursuant to 28 U.S.C. § 1406(a), if a case is filed "laying venue in the wrong division or
district," then the district court shall either dismiss the case, "or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought." 28 U.S.C. §
1406(a).
Defendants assert that the venue for this action is improper. Defendants live in the US,
Canada, Africa and other countries across the world. Besides, no Defendant has ever had any
minimum contacts in the state of New Jersey. Plaintiffs allege that Defendants were owners,
directors, or employees of the Company. On the contrary, the Defendants were only investors in
the Company, just like the Plaintiffs. Therefore, the actions of the Company cannot be attributed
to the Defendants.
Accordingly, Defendants maintain that this Court should exercise its authority under 28
U.S.C. § 1406(a) and dismiss the case.
iii. There is insufficient service of process
Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a motion to dismiss for
"insufficiency of service of process." The Rule states in pertinent part that, “A party may assert
the following defenses by motion: (5) insufficient service of process.” Thus this Court has the
authority to grant the motion filed by Defendant.
Rule 4 of the Federal Rules of Civil Procedure further states in pertinent part that,
“(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual—other than a minor, an
incompetent person, or a person whose waiver has been filed—may be served
in a judicial district of the United States by: (1) following state law for serving
a summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made; or (2) doing any of
the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law
to receive service of process.”
Defendants maintain that they were not personally served, and they had no knowledge of
the summons and complaint, nor that anyone was attempting to serve them. Some Defendants
only knew they were served when they opened their front door and noticed the summons and
complaint was posted on their doors.
Nowhere in Rule 4, or in any law of the State of New Jersey is there any statutory
authorization for serving a summons and complaint by posting them on the door. Thus the
purported service did not comply with Rule 4.
iv. There is insufficient process
Rule 12(b)(4) of the Federal Rules of Civil Procedure permits a motion to dismiss for
"insufficiency of process." An objection under Rule 12(b)(4) "concerns the form of the process
rather than the manner or method of its service," and "is proper only to challenge noncompliance
with the provisions of Rule 4(b) . . . that deal[ ] specifically with the content of the summons."
See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure Civil 3d § 1353
(3d ed.). Wright & Miller go on to explain that if an alleged defect "is that the defendant. . . is
misnamed in the summons or has ceased to exist," a challenge could be brought either under
Rule 12(b)(4) or Rule 12(b)(5), and several courts "have treated a combination of the two
motions as a proper procedure" in such circumstances. Id.
According to Rule 4(b) a summons must be properly completed. The summons delivered
to Defendants (through improper means as argued in ( iii ) above) was not filled properly.
Notably, the server never filled in the Certificate of Service, and declaration thereof. The
summons contained empty and/or unfilled spaces and does not identify where the Defendants
were served. Defendants assert that this amounts to insufficient process that justifies the
dismissal of this case.
v. The Complaint fails to state a claim upon which relief can be granted
To survive a Rule 12(b) motion to dismiss, the complaint must assert a plausible claim,
and set forth sufficient factual allegations to support the claim. Ascroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949-1950, 173 L.Ed.2d 868 (2009)(citing Bell Atlantic Corp. v. Twombly, 550
U.S. 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pleadings are no longer satisfied by “an
unadorned the-defendant-unlawfully-harmed me accusation.” Iqbal, 129 S.Ct. at 1949 (citing
Twombly, 550 U.S. at 555). Now, neither a “formulaic recitation of the elements of a cause of
action” nor “naked assertions [of fact] devoid of further factual enhancement” is sufficient to
withstand dismissal. Id.
To satisfy the standard under Twombly and Iqbal, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing
Twombly, 550 U.S. at 570). The complaint must provide a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). A claim has facial plausibility
when the plaintiff pleads enough factual content that allows the court to draw the reasonable
inference that the defendant is liable under the alleged claim. Id. (citing Twombly, 550 U.S. at
556). “A court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id.
at 1950. Therefore, if allegations are merely “conclusory,” they are “not entitled to be assumed
true.” Id. Even if a court decides that the factual allegations are entitled to an assumption of
truth, however, the facts must also “plausibly suggest an entitlement to relief.” Id. at 1951.
In the instant action, the substance of Plaintiffs’ Complaint is that Defendants were
owners, directors, or employees of the Company, and that they engaged in a scheme to fraud the
Plaintiffs. On the contrary, the Defendants were only investors in the Company, just like the
Plaintiffs. Defendants also lost their investments just like the Plaintiffs.
It is trite law that a corporate and a limited liability company is a legal person or entity
that exists separately from its shareholders. Lyon v. Barrett, 89 N.J. 294, 300 (1982). To pierce
the corporate veil in the shareholder or officer context, the plaintiff must show that (1) the
corporation is organized and operated as a mere instrumentality, or alter ego, of a shareholder,
(2) the shareholder uses the corporation to commit fraud, injustice or circumvent the law, and (3)
the shareholder fails to maintain the corporate identity. See North American Steel Con. v. Watson
Metal Prod. Corp., Civ. No. 08-4247 (DRD), 18-19 (D.N.J. Sep. 14, 2010).
There is nothing to show that Defendants were owners, directors, employees, or
shareholders of the Company. As already argued hereinabove, Defendants were only investors in
the Company and never participated in any decision making capacity of the Company. They, just
like Plaintiffs, expected to get profit from investing in the company. Besides, the Defendants
were never shareholders in the Company, since no Defendant contributed any form of capital,
cash or otherwise, to the Company. All moneys made to the Company were in the form of
investments in the crypto business. Therefore, the actions of the Company cannot be attributed to
the Defendants.
For the said reason(s), the Plaintiffs have failed to state a claim upon which relief can be
granted, which reason justifies a dismissal of the case, with prejudice.
WHEREFORE, Defendants humbly pray to the Honorable Court to grant this Motion to
Dismiss, and dismiss Plaintiffs’ Complaint, with prejudice. Moreover, any other relief deemed fit
and reasonable by the Honorable Court may be graciously granted as well.
Dated: _________, 2022 Respectfully submitted,
Signature
______________________________
[ENTER DEFENDANTS’ NAMES]
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the [ENTER
DATE] by regular U.S. mail postage prepaid, to the following parties or attorneys of record:
[ENTER PLAINTIFFS’ ADDRESS(ES)]
Dated this ____ day of _______, 2022.
Respectfully submitted,
Signature
______________________________
[ENTER DEFENDANTS’ NAMES]
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