Robert M. Dow, Jr., United States District Judge.
For the reasons set forth below, the motion to dismiss filed by Defendant James Paul [30] is granted; the motion to dismiss filed by Defendant George Strat [46] is denied; the motion to dismiss or, in the alternative, the motion for a more definite statement filed by Defendant Paul Jones [61] is granted in part and denied in part; the motion to dismiss filed by Defendant Natel Matschulat [68] is denied; and the motion to dismiss filed by Defendant Dorothea Touris [79] is granted in part and denied in part. Plaintiff is given until April 19, 2019 to file a second amended complaint. This case is set for further status hearing set for April 24, 2019 at 9:00 a.m.
Plaintiff D.A.N. Joint Venture III, L.P. ("DJV" or "Plaintiff") contends that Nicholas S. Gouletas ("Gouletas" or the "Debtor") engaged in a complicated scheme to hide, transfer, and otherwise shield his assets from the claims of certain of his judgment creditors by transferring more than $ 2,000,000 in cash and other assets to his friends, relatives, and a select group of creditors. [11, at ¶ 1.] Plaintiff brings state-law claims of (i) avoidance of fraudulent transfers pursuant to 740 ILCS 160/5(a)(1); (ii) avoidance of fraudulent
Gouletas is the owner and control person of a large group of companies generally referred to as "American Invsco" that were involved in condominium conversions and various other real estate developments in more than 40 cities throughout the United States. [11, at ¶ 7.] On December 19, 2013, citations to discover assets were issued against Gouletas in connection with two lawsuits against him. [Id. at ¶ 16.] As of late December 2013, Gouletas was prohibited from transferring his assets by virtue of the citations issued against him. [Id.] In another citation to discover assets dated June 5, 2014, Gouletas was instructed:
[Id. at ¶ 18.] Plaintiff challenges numerous actions Gouletas allegedly took to improperly transfer assets after these citations were issued against him.
In January 2015, Gouletas requested that his close friend of over 40 years Defendant Dorothea Touris deposit funds belonging to Gouletas into her checking accounts for the payment of Gouletas's expenses. [Id. at ¶¶ 6.1, 20-22.] Pursuant to Gouletas's plan, Touris would take the funds that he had provided to her, put the money into her checking accounts, and then pay Gouletas's bills out of her checking accounts. [Id. at ¶ 22.] The funds that Gouletas deposited into Touris's checking accounts belonged to Gouletas. [Id.] In late January of 2015, Touris met with Gouletas at his office in Chicago with Gouletas's attorney Howard Teplinsky, an attorney at Beermann Pritikin Mirabelli Swerdlove LLP ("BPMS"). [Id. at ¶ 23.] At that meeting, Gouletas presented Touris with a check in the amount of $ 396,218.84. [Id.] Gouletas told Touris to deposit the check into her account and to pay $ 195,000 to Steven Gouletas (Gouletas's son) and $ 50,000 to George Spanos (Gouletas's friend), with the balance of $ 150,000 to be kept by Touris as compensation in the form of a purported reimbursement on a Gouletas investment.
On February 17, 2015, Gouletas wire-transferred $ 15,730 into Touris's checking account at Chase Bank. [Id. at ¶ 25.] The $ 15,730 was money that belonged to Gouletas. [Id.] However, Gouletas claimed to have "no idea" from where the $ 15,730 came. [Id.] In March of 2015, Gouletas told Touris that a check for $ 415,000 was coming to her, which she was to deposit into her account for the payment of Gouletas's expenses. [Id. at ¶ 26.] Touris deposited the $ 415,000 check into her checking account
Gouletas was involved in a real estate development project referred to as "Garvey Court" (the "Garvey Court Project") that involved the construction of a high-rise retail/office/condominium building on properties that Gouletas owned (through entities that he owned and controlled). [Id. at ¶ 30.] Gouletas "gifted" his 25% interest in the Garvey Court Project to family members through two newly formed LLCs, SEG Garvey LLC and NKM Garvey LLC.
On June 9, 2014, Gouletas discovered that he had acquired a number of shares of stock in CIB Marine BankShares (the "CIB Stock"), which he held through a stock brokerage account at TD Ameritrade (the "TDA Account"). [Id. at ¶ 34.] Gouletas sold his CIB Stock through his TDA Account for just over $ 51,000 and wire-transferred $ 51,323.29 from that stock sale into a checking account held in the name of his wife, Defendant Natel Matschulat. [Id. at ¶ 35.] Gouletas then proceeded to have his wife sign checks from that account for the payment of Gouletas's expenses. [Id. at ¶ 36.]
Defendant 800 South Wells Phase II, LLC ("800 SWP") owned a 1.77 acre, 126-space parking lot at 800 South Wells Street in Chicago (the "Parking Lot"). [Id. at ¶ 37.] Gouletas was the manager, sole member, and control person of 800 SWP. [Id.] As of November 1, 2009, there was only one mortgage against the Parking Lot, which was in favor of River City Investors, LLC ("RCI") in the original principal amount of $ 2,000,000.00 (the "RCI Mortgage"). [Id. at ¶ 38.] In November 2009, Gouletas had another entity he controlled—Defendant Home By Invsco, Inc. ("HBI")—place a false mortgage against the Parking Lot in the amount of $ 2,177,700 (the "HBI Second Mortgage"). [Id.] HBI was owned and controlled by Gouletas. [Id.] While Gouletas signed the HBI Second Mortgage on November 1, 2009, the internal financial documents of Gouletas's enterprise—American Invsco, which included 800 SWP and HBI—did not reflect any indebtedness supposedly owed to HBI on the HBI Second Mortgage. [Id. at ¶¶ 39-40.]
In late 2014, a third party offered to purchase the Parking Lot for $ 7,750,000.
In January 2015, Mr. Teplinsky (for and on behalf of BPMS) directed how the $ 1,271,218.84 from the BPMS escrow account was to be distributed, which included $ 396,218.84 paid to Touris and $ 690,000 distributed to Defendant Jones. [Id. at ¶ 45.] As discussed above, of the $ 396,218.84 paid to Touris, Gouletas had Touris distribute $ 195,000 to his son Steven Gouletas and $ 50,000 to his friend Mr. Spanos. [Id.] Of the $ 690,000 distributed to Jones, $ 415,000 was deposited into Touris's checking account so Gouletas could continue to pay his expenses without those funds being subject to execution by Gouletas's judgment creditors. [Id.] On January 13, 2015, Mr. Teplinsky also directed that $ 30,020 of the profits from the sale of the Parking Lot be distributed to BPMS, purportedly for the payment of HBI's legal bills. [Id. at ¶ 46.] On January 22, 2015, an additional $ 25,000 of the profits from the sale of the Parking Lot were distributed to BPMS as a "finalize entity flat fee charge," again for work purportedly done for and on behalf of HBI. [Id.] Plaintiff alleges—on information and belief —that the fees paid to BPMS reflected legal work that was done primarily on behalf of Gouletas or that otherwise constituted excessive legal fees charged to HBI. [Id.]
On January 17, 2016, Gouletas filed for Chapter 7 bankruptcy in the Northern District of Illinois. [Id. at ¶ 50.] The relevant citations remained in effect until the date that Gouletas filed for bankruptcy. [Id.] The Bankruptcy Trustee attempted to obtain counsel to prosecute avoidance and fraudulent transfer claims for and on behalf of the bankruptcy estate on a contingent fee basis, but, despite his diligent efforts, was unable to do so. [Id. at ¶ 51.] On July 23, 2017, the Bankruptcy Trustee received an offer from Plaintiff to purchase the litigation claims and alter-ego claims for $ 15,000. [Id.] On July 24, 2017, the Bankruptcy Trustee filed in the bankruptcy court the Trustee's Motion for Approval of Sale of Interests in Personal Property and for Related Relief [11-1, at 78-87], which specifically included fraudulent transfer, alter-ego, and common law tort claims of the nature set forth in the amended complaint. No party offered a
After notice to all interested parties and after hearing before the bankruptcy court, the bankruptcy court entered its Order Authorizing Sale of Personal Property on August 18, 2017. [11, at ¶ 52; 11-1, at 88-90.] Again, neither the Debtor nor any creditor objected to the order of sale or appealed the order of sale. [11, at ¶ 52.] On September 13, 2017, the Bankruptcy Trustee and a representative of Plaintiff executed the Assignment of Claims and Causes of Action, thereby purporting to transfer the Bankruptcy Trustee's litigation claims and alter-ego claims to Plaintiff. [11-1, at 91-94.] All conditions precedent to recovery by Plaintiff have been performed or have occurred. [11, at ¶ 53.]
To survive a Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level." E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "A pleading that offers `labels and conclusions' or a `formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Dismissal for failure to state a claim under Rule 12(b)(6) is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558, 127 S.Ct. 1955. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). However, "[t]o survive a motion to dismiss, the well-pleaded facts of the complaint must allow the court to infer more than the mere possibility of misconduct." Langworthy v. Honeywell Life & Acc. Ins. Plan, 2009 WL 3464131, at *2 (N.D. Ill. Oct. 22, 2009) (citing McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)). Evaluating whether a "claim is sufficiently plausible to survive a motion to dismiss is `a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting McCauley, 671 F.3d at 616).
Furthermore, claims sounding in fraud are subject to Rule 9(b)'s heightened pleading standard. B.E.L.T., Inc. v. Wachovia Corp., 403 F.3d 474, 477 (7th Cir. 2005). Under Rule 9(b), a plaintiff alleging fraud "`must state with particularity the circumstances constituting fraud or mistake.'" United States ex rel. Presser v. Acacia Mental Health Clinic, LLC, 836 F.3d 770, 776 (7th Cir. 2016) (quoting Fed. R. Civ. P. 9(b)). Ordinarily, the plaintiff "must describe the `who, what, when, where, and how' of the fraud—the first paragraph of any newspaper story.'" Id. (quoting United States ex rel. Lusby v.
Defendants
The Seventh Circuit has not addressed the issue, on which courts are split. Some courts have held that fraudulent transfer claims are property of the estate and therefore can be sold pursuant to Section 363 of the Bankruptcy Code. See, e.g., In re Moore, 608 F.3d 253, 262 (5th Cir. 2010). Other courts—persuaded by the plain language argument advanced by Defendants here—have held that a bankruptcy trustee cannot assign avoidance actions brought under the Bankruptcy Code. See, e.g., In re Boyer, 372 B.R. 102, 105 (D. Conn. 2007), aff'd, 328 F. App'x 711 (2d Cir. 2009); In re Carragher, 249 B.R. 817, 820 (Bankr. N.D. Ga. 2000). Defendants rely on the latter category of cases to argue that Plaintiff lacks standing to pursue the state-law actions that it seeks to bring in this case. These courts reason that because the Bankruptcy Code confers authority to avoid transfers on the bankruptcy trustee alone, there is no statutory authority for allowing assignees to bring avoidance actions.
The Court takes no position on this split of authority at this time, as Defendants have not established that the Court has jurisdiction collaterally to review the bankruptcy court's order approving the assignment of Plaintiff's claims as
Defendants James Paul and Dr. Paul Jones argue that Plaintiff fails to state a claim under Section 5(a)(1) of Illinois's Uniform Fraudulent Transfer Act ("IUFTA") because Plaintiff fails to allege that they were knowing participants in Gouletas's alleged fraud. [32, at 2; 62, at 3-5.] Plaintiff challenges the transfers to Defendants Paul and Jones under Section 5(a)(1) of the IUFTA, which is the "fraud in fact" provision. "`Fraud in fact' occurs when a debtor makes a transfer `with the intent to hinder, delay, or defraud creditors.'" In re Spatz, 222 B.R. 157, 160 (N.D. Ill. 1998) (quoting 740 ILCS 160/5(a)(1)). Although Defendants may be able to assert an affirmative defense under Section 9 of the IUFTA if they can establish that they acted in good faith and provided a reasonably equivalent value, In re Zeigler, 320 B.R. 362, 374 (Bankr. N.D. Ill. 2005) ("Courts have recognized that a defense under § 9 of the UFTA consists of two elements: good faith and reasonably equivalent value."), Plaintiff "need not anticipate and overcome affirmative defenses.'"
Defendants Paul, Jones, and Touris move to dismiss Plaintiff's fraud in fact claims under Section 5(a)(1) of the IUFTA for failure to allege that Gouletas acted with the requisite fraudulent intent. As discussed above, "fraud in fact" under Section 5(a)(1) occurs when a debtor makes a transfer "with the intent to hinder, delay, or defraud creditors." In re Spatz, 222 B.R. at 160 (quoting 740 ILCS 160/5(a)(1)) (internal quotation marks
"In determining whether a transfer is made with actual intent to defraud, the [IUFTA] sets forth several factors— also known as the `badges of fraud'—from which an inference of fraudulent intent may be drawn." In re Zeigler, 320 B.R. at 373. These factors include whether "(1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was disclosed or concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor." 740 Ill. Comp. Stat. Ann. 160/5(b).
"The badges are not additive and do not have equal weight, nor is there a set number which must be present to demonstrate fraud." In re Ruvalcaba, 2018 WL 2317682, at *7 (Bankr. N.D. Ill. May 17, 2018) (citing Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 419 F.3d 594, 600 (7th Cir. 2005)). "The intent to defraud `will be found if the circumstances indicate that the main or only purpose of the transfer was to prevent a lawful creditor from collecting a debt.'" Radio One, Inc. v. Direct Media Power, Inc., 2018 WL 4685470, at *6 (N.D. Ill. Sept. 28, 2018) (quoting King v. Ionization Int'l, Inc., 825 F.2d 1180, 1186 (7th Cir. 1987)). Defendants Paul, Jones, and Touris have moved to dismiss Plaintiff's Section 5(a) claims for failure sufficiently to allege enough badges of fraud to plausibly raise an inference of fraud.
In his Reply, Paul argues that Plaintiff fails sufficiently to allege that Gouletas acted with fraudulent intent in relation to his transfer to Paul. Although Paul raised this argument for the first time in his reply, Plaintiff preemptively addressed the argument in his response brief. The Court therefore will address the argument now. The Court agrees that Plaintiff has not sufficiently alleged that Gouletas acted with fraudulent intent in relation to the transfer to Paul. As noted by Defendants, allegations of fraud must be plead with particularity. The only allegations in the amended complaint relating
Plaintiff argues that he has alleged each badge of fraud. However, he does not do so with respect to Paul and the challenged transfer to Paul. For example, although Plaintiff alleges that there were a number of transfers to insiders, Plaintiff does not allege that Paul was an insider. By way of another example, although Plaintiff alleges that Gouletas maintained possession and control over the money in Touris's checking accounts, Plaintiff does not allege that Gouletas maintained possession and control over the money transferred to Paul. Although Plaintiff alleges that Gouletas had been sued before the subject transfers to Paul and that Gouletas was insolvent or became insolvent shortly after the transfer was made, the specific factual allegations relating to Defendant Paul do not indicate that the main or only purpose of the transfer was to prevent a lawful creditor from collecting a debt. Accordingly, the Court grants Defendant Paul's motion to dismiss Plaintiff's fraudulent transfer claim (Count I) against him without prejudice.
Plaintiff sufficiently has alleged that Gouletas acted with fraudulent intent in relation to the challenged transfers to Jones.
Plaintiff also sufficiently alleges that Gouletas acted with fraudulent intent in relation to the challenged transfers to Touris. The parties dispute whether Touris was an insider.
Defendants Touris and Jones also move to dismiss Plaintiff's Section 6(a) claim for failure to state a claim. "The elements of a cause of action under § 6(a) of the [IUFTA] are: (1) a transfer was made by the debtor; (2) the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transferred property; and (3) the debtor either was insolvent at the time of the transfer or became insolvent as a result of the transfer." In re Zeigler, 320 B.R. at 375 (citations omitted). The IUFTA provides that "[a] debtor is insolvent if the sum of the debtor's debts is greater than all of the debtor's assets at a fair valuation." 740 ILCS 160/3(a). The IUFTA further provides that "[a] debtor who is generally not paying his debts as they become due is presumed to be insolvent." 740 ILCS 160/3(b). Jones concedes that Plaintiff sufficiently has alleged the third element, but argues that Plaintiff fails sufficiently to allege the first and second elements of its Section 6(a) claim. Although Jones concedes that Plaintiff sufficiently has alleged the third element, Touris argues that Plaintiff fails sufficiently to allege that Gouletas was insolvent at the time of the transfers to her or that Gouletas became insolvent as a result of those transfers.
With respect to the first element, Jones argues that Plaintiff cannot establish that Gouletas made the transfer to him because Plaintiff has not sufficiently alleged that 800 SWP—which received the funds from the sale of the Parking Lot— was the alter ego of Gouletas. However, Jones fails to cite to any cases indicating what allegations are necessary to establish alter ego liability at the motion to dismiss stage (or what is necessary to establish alter ego liability at any stage).
Still, Plaintiff fails sufficiently to allege that the debtor (i.e., Gouletas) made the transfer to Jones without receiving a reasonably equivalent value in exchange for the transferred property. Although Plaintiff alleges that "Gouletas made the Cash Transfers without receiving a reasonably equivalent value in exchange for the transfers[,]" [11 at ¶ 79], such conclusory allegations are insufficient to survive a motion to dismiss. "The Seventh Circuit has held that, in order to evaluate whether a transfer is fraudulent under the IUFTA, a court should `determine the value of what was transferred and * * * compare it to what was received.'" Id. (quoting Creditor's Comm. of Jumer's Castle Lodge, Inc. v. Jumer, 472 F.3d 943, 947 (7th Cir. 2007)). Without more factual allegations from Plaintiff, the Court is unable to engage in such an analysis. To the extent that Plaintiff contends that the challenged transfers were provided in exchange for nothing, Plaintiff should so allege. Because Plaintiff has not done so, however, the Court grants Defendant Jones's motion to dismiss Plaintiff's Section 6(a) claim against him without prejudice.
That leaves Defendant Touris's argument that Plaintiff fails sufficiently to allege that Gouletas was insolvent at the time of the transfers to her or that he became insolvent as a result of the transfers to her. Under the IUFTA, "[a] debtor is insolvent if the sum of the debtor's debts is greater than all of the debtor's assets at a fair valuation." 740 Ill. Comp. Stat. Ann. 160/3(a). Furthermore, under the IUFTA, "[a] debtor who is generally not paying his debts as they become due is presumed to be insolvent." 740 Ill. Comp. Stat. Ann. 160/3(b). Generally, insolvency is a fact-intensive intensive not properly resolved on a motion to dismiss.
Plaintiff alleges that—before the challenged transfers were made—"Gouletas had been sued and threatened with further suits, numerous judgments had been entered against him, and [he] was insolvent."
Touris also challenges the import of the February 28, 2014 balance sheet. Specifically, Touris argues that the fact that Gouletas was insolvent on February 28, 2014 does not mean that Gouletas was insolvent when he made the challenged transfers to Touris in 2015. Although the Court recognizes that possibility, drawing all reasonable inferences in Plaintiff's favor, Plaintiff sufficiently has alleged that Gouletas was insolvent at the time he made the challenged transfers to Touris. Plaintiff alleges that Gouletas became insolvent before the challenged transfers. [11, at ¶ 23.] The February 28, 2014 balance sheet indicating that Gouletas had a negative net worth of $ (12,132,646) supports that assertion. [11-1, at 54-55.] Although it is possible that Gouletas was able to again become solvent by 2015, the Court finds that unlikely given his January 16, 2017 bankruptcy filing. In light of these facts—and Plaintiff's allegations that Gouletas was hiding assets through the alleged schemes through the time he filed for bankruptcy—it is reasonable to infer that Gouletas remained insolvent from February 28, 2014 until he filed for bankruptcy. And because insolvency is a fact-intensive issue not properly resolved on a motion to dismiss, the Court concludes that Plaintiff sufficiently has alleged that Gouletas was insolvent at the time of the challenged transfers. The Court therefore denies Touris's motion to dismiss Plaintiff's Section 6(a) claim for failure sufficiently to allege insolvency.
Defendant Touris moves for dismissal of Plaintiff's aiding and abetting
Defendant Touris also moves for dismissal of Plaintiff's civil conspiracy claim against her. "Under Illinois law the elements of a civil conspiracy are (1) a combination of two or more persons (2) for the purpose of accomplishing, by some concerted action, either an unlawful purpose or a lawful purpose by unlawful means, (3) in furtherance of which one of the conspirators committed an overt tortious or unlawful act." Martinez v. Freedom Mortg. Team, Inc., 527 F.Supp.2d 827, 839 (N.D. Ill. 2007) (citing Fritz v. Johnston, 209 Ill.2d 302, 282 Ill.Dec. 837, 807 N.E.2d 461, 470 (2004)). "Civil conspiracy is an intentional tort and requires proof that a defendant `knowingly and voluntarily participates in a common scheme to commit an unlawful act or a lawful act in an unlawful manner.'" McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 241 Ill.Dec. 787, 720 N.E.2d 242, 258 (1999) (citing Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 206 Ill.Dec. 636, 645 N.E.2d 888 (1994)). "Accidental, inadvertent, or negligent participation in a common scheme does not amount to conspiracy." Id. (citation omitted).
Touris argues that Plaintiff fails sufficiently to allege the first two elements of its civil conspiracy claim. With respect to the first element—the existence of an agreement or combination of two or more persons—Plaintiff alleges that Touris agreed to pay Gouletas's expenses at his direction with money he had deposited into her checking accounts. These allegations are sufficient to establish the combination between Gouletas and Touris.
With respect to the second element —the intent to accomplish an unlawful purpose or a lawful purpose by unlawful means—Plaintiff alleges that Touris "knew, must have known, or should have known that numerous judgments had been entered against Gouletas[.]" [11, at ¶ 59.] This allegation leaves open the possibility that Touris did not know about the numerous judgments entered against Gouletas, and Plaintiff does not allege facts from which the Court could infer that Touris should have known about the numerous judgments that had been entered against Gouletas. Still, Plaintiff alleges facts from
Defendant Touris also moves for dismissal of Plaintiff's tortious interference with a prospective economic advantage claim against her.
Defendants make a number of miscellaneous arguments that can be addressed briefly. First, Defendant Jones moves for dismissal of Plaintiff's amended complaint under Rule 12(e), which allows the Court to order a more definitive statement when a complaint is "so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P.
Second, in his reply, Defendant Paul argues that payment of an antecedent debt is not a fraudulent transfer. [73, at 1-2.] Because Paul raised the argument for the first time in his reply brief, the argument is waived. West v. MeadWestvaco Corp., 81 F. App'x 74, 75 (7th Cir. 2003) ("[A]rguments presented for the first time in a reply brief are waived." (citation omitted)). Furthermore, the amended complaint indicates that the transfer to Paul falsely was characterized as a loan and was not for a payment of an antecedent debt. Thus, the argument also fails as a factual matter.
Third, Defendant Touris asks that the Court strike Plaintiff's request for attorney's fees from its general prayer for relief, noting that attorneys' fees are not recoverable under the IUFTA. Because Plaintiff stipulates that it is not seeking attorneys' fees under the IUFTA, no further action is necessary.
Fourth, numerous Defendants argue generally that Plaintiff fails to satisfy Rule 9(b)'s heightened pleading standards. The Court has addressed those arguments when raised in connection with Defendants' arguments for dismissal of specific claims. To the extent that Defendants argue that the amended complaint fails to satisfy Rule 9 without reference to any specific element of a claim, however, Defendants' argument does not warrant any further discussion. Rule 9 sets forth the pleading standard that applies to certain elements of certain claims. It is not a stand-alone pleading requirement.
Finally, Defendant George Strat filed a motion to dismiss [46] indicating that he could not afford to hire an attorney. However, Strat did not identify any substantive basis for dismissing Plaintiff's claims against him. Accordingly, his motion to dismiss [46] is denied.
For the reasons explained above, the motion to dismiss filed by Defendant James Paul [30] is granted; the motion to dismiss filed by Defendant George Strat [46] is denied; the motion to dismiss or, in the alternative, the motion for a more definite statement filed by Defendant Paul Jones [61] is granted in part and denied in part; the motion to dismiss filed by Defendant Natel Matschulat [68] is denied; and the motion to dismiss filed by Defendant Dorothea Touris [79] is granted in part and denied in part. Plaintiff is given until April 19, 2019 to file a second amended complaint. This case is set for further status hearing set for April 24, 2019 at 9:00 a.m.