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Lynch v. Fountainbleau Management Services, LLC

United States District Court, E.D. Louisiana

April 29, 2019

ANTONE JAMES LYNCH
v.
FOUNTAINBLEAU MANAGEMENT SERVICES, LLC, ET AL.

         SECTION "L" (2)

          ORDER & REASONS

          ELDON E. FALLON U.S. DISTRICT COURT JUDGE

         Before the Court are two competing motions. A motion for partial summary judgment filed by Plaintiff Antone James Lynch, R. Doc. 23, and a motion to dismiss filed by Defendants Fountainbleau Management Services, LLC; Roland T.A. von Kurnatowski, Jr.; BF-1, LLC; and Roland von Kurnatowski, R. Doc. 24. Both motions are opposed. R. Docs. 25, 26. Defendants have filed a reply to Plaintiff's opposition to their motion to dismiss. R. Doc. 30. Having reviewed the motions and considered the applicable law, the Court rules as follows.

         I. BACKGROUND

         Plaintiff Antone J. Lynch brings this action against Defendants alleging they “conspired with each other and with others” to execute a fraud upon Plaintiff “in connection with the sale of securities, ” causing Plaintiff to lose “all of the amounts invested” in “investment contracts sold to Plaintiff by Defendants.” R. Doc. 1 at ¶¶ 16-17.

         According to the compliant, “[o]n May 28, 1991, the parties executed an ‘Investment Agreement' . . . . to establish an investment fund to trade U.S. Treasury Bonds, entitled ‘Bond Fund One.'” Id. at ¶ 7. Plaintiff contends that “[a]s of February 2017, Defendants reported to Plaintiff that his share of the Bond One Fund account had a value of $363, 145.74, ” but that when Plaintiff made a demand for a return of his investment “in writing and in compliance with the terms of contract, ” “Defendants issued a check in the amount of $3, 000, ” which the bank dishonored. Id. at ¶¶ 13-15. Plaintiff alleges “Defendants misappropriated Plaintiff's funds for their own personal use.” Id. at ¶ 19.

         Based on this factual background, Plaintiff brings the following claims:

(1) Violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and Rule 10b-5 promulgated thereunder, id. at ¶ 21;
(2) Recession, pursuant to Section 29(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b) based on Defendants' alleged violations of Section 10(b), id. at ¶ 27;
(3) Title 51, Section 712 A (2) of the Louisiana Securities laws, id. at ¶ 30;
(4) Louisiana Civil Code articles 2315 and 2316, id. at ¶ 34;
(5) Louisiana Civil Code article 2315, id. at ¶ 39;
(6) Louisiana Civil Code article 1758, id. at ¶ 42;
(7) Louisiana Civil Code article 1953, id. at ΒΆ ...

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