Savov v. Immunotech Laboratories, Inc. ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DIMITAR SAVOV, ) 4 ) Plaintiff, ) Case No.: 2:22-cv-00401-GMN-DJA 5 vs. ) ) ORDER GRANTING SECOND MOTION 6 IMMUNOTECH LABORATORIES, INC., ) TO DISMISS 7 ) Defendant. ) 8 ) ) 9 10 Pending before the Court is the Second Motion to Dismiss, (ECF No. 45), filed by 11 Defendant Immunotech Laboratories, Inc. Plaintiff Dimitar Savov filed a Response, (ECF No. 12 46), to which Defendant filed a Reply, (ECF No. 47). For the foregoing reasons, the Court 13 GRANTS Defendant’s Second Motion to Dismiss. 14 I. BACKGROUND 15 This case arises out of Plaintiff’s application to be appointed custodian of Defendant 16 Immunotech Laboratories under NRS 78.347(1)(b). (See generally Am. Pet., ECF No. 44). 17 Plaintiff is an Immunotech stockholder. (Id. ¶ 7). He alleges that Immunotech has abandoned 18 its business because its stock has a Caveat Emptor sign, its last OTC Market disclosure was 19 made in 2017, former CEO Harry Zhabilov transferred assets out of Immunotech for his own 20 benefit, and because Immunotech was listed as inactive with the Nevada Secretary of State until 21 2021.1 (Id. ¶¶ 20–25). 22 23 24 1 Plaintiff also claims that $190,000 of his funds were wired to Immunotech but that the CEO of Immunotech at the time, 25 Harry Zhabilov, misappropriated those funds. The Court advises Plaintiff that while he may bring a separate lawsuit based on these claims, his misappropriation argument does not affect the narrow analysis for a Petition for Custodianship under NRS 78.347. 1 This Court granted Immunotech’s First Motion to Dismiss with leave for Plaintiff to 2 amend. (Order Granting Mot. Dismiss, ECF No. 53). The First Motion to Dismiss was granted 3 for two reasons. First, this Court explained that according to the plain language of the statute, 4 Plaintiff must provide evidence of his effort to contact the officers and directors of 5 Immunotech. (Id. 5:15–20). Second, the Court determined that Plaintiff’s demand to inspect 6 financial records did not satisfy the compliance demand requirement of NRS 78.347(2)(f), 7 because it “would not provide notice to Immunotech that Plaintiff was planning to file a 8 petition for custodianship and allow Immunotech’s officers time to comply.” (Id. 6:17–19). In 9 its Second Motion to Dismiss, Defendant argues that the Amended Petition should be dismissed 10 because Plaintiff is again insisting that his demand to inspect Immunotech records should 11 satisfy the NRS 78.347(2)(f) requirement. (See generally Second Mot. Dismiss, ECF No. 45). 12 II. LEGAL STANDARD 13 Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 14 which relief can be granted. Fed. R. Civ. P. 12(b)(6). A pleading must give fair notice of a 15 legally cognizable claim and the grounds on which it rests, and although a court must take all 16 factual allegations as true, legal conclusions couched as factual allegations are insufficient. Bell 17 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, Rule 12(b)(6) requires “more 18 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will 19 not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual 20 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial 22 plausibility when the plaintiff pleads factual content that allows the court to draw the 23 reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard 24 “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 25 1 If the court grants a motion to dismiss for failure to state a claim, leave to amend should 2 be granted unless it is clear that the deficiencies of the complaint cannot be cured by 3 amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 4 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 5 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 6 movant, repeated failure to cure deficiencies by amendments previously allowed, undue 7 prejudice to the opposing party by virtue of allowance of the amendment, futility of the 8 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 9 III. DISCUSSION 10 A stockholder may “apply to the district court to appoint one or more persons to be 11 custodians of the corporation . . . when . . . [t]he corporation has abandoned its business and has 12 failed within a reasonable time to take steps to dissolve, liquidate or distribute its assets . . . .” 13 NRS 78.347(1)(b). The statute requires “[e]vidence of a demand by the applicant to the 14 officers and directors of the corporation for which the custodianship is sought that the 15 corporation comply with the provisions of this chapter and that the applicant did not receive a 16 response.” NRS 78.357(2)(f). 17 Defendant argues that Plaintiff’s Amended Petition makes the same argument as in his 18 first Petition, which is that Plaintiff’s demand to inspect records should fulfil the demand 19 requirement of NRS 78.357(2)(f), despite the fact that this Court already denied that argument. 20 (Second Mot. Dismiss 15:7–14). Further, Defendant maintains that even if the Court finds 21 Plaintiff made the required demand, Plaintiff cannot demonstrate that he “did not receive a 22 response,” because Zhabilov’s lawyer responded to Plaintiff’s demand for inspection of 23 records. (Id. 6:3–7:10). 24 Plaintiff responds that he is not alleging that his demand to inspect records was, on its 25 own, sufficient, but that “he has alleged substantial history and facts regarding all of his efforts 1 to prod the company to activity, including his demand for inspection of books and records.” 2 (Resp. 4:9–11, ECF No. 46). Plaintiff alleges that he made verbal and written demands to 3 Zhabilov in 2020 requesting that he reinstate Immunotech and use the funds for the purpose 4 they were provided, as well as a more recent demand to inspect and audit Immunotech’s 5 financial records. (Id. 5:5–23) (citing Am. Pet. ¶¶ 27, 32).2 As to Defendant’s argument that he 6 received a response from Zhabilov’s lawyer, Plaintiff claims that “the only response back was 7 from someone who purported to be an ‘authorized representative’ but was not an officer or 8 director of the company. (Id. 8:10–13). He argues that a “superficial” response from someone 9 who is neither an officer, director, nor shareholder, is not sufficient. (Id. 8:14–23). 10 As an initial matter, NRS 78.347(2)(f) requires Plaintiff’s petition to contain evidence of 11 the demand to officers or directors of the corporation, and the only such evidence attached to 12 Plaintiff’s Amended Petition is the demand to inspect records email sent in 2021 and attached 13 as Exhibit 7. Even though Plaintiff’s Amended Petition claims that he “made several verbal 14 and written demands to Zhabilov,” Plaintiff did not attach an exhibit with evidence of these 15 communications as he did for the other communications. (See Am. Pet. ¶ 27). Therefore, for 16 purposes of evaluating the demand requiring in NRS 78.347(2)(f), the only evidence of a 17 demand made to Immunotech officers or directions, in any form, is Plaintiff’s demand to 18 inspect records. 19 As Defendant points out, this Court has already determined that a demand to inspect 20 records, on its own, does not meet the NRS 78.347(2)(f) requirement. (Order Granting Mot. 21 Dismiss, 6:17–19). However, even if it did, Plaintiff’s demand further fails to meet the 22 requirement because Plaintiff received a response to his demand to inspect records. (See NRS 23 78.357(2)(f)) (requiring evidence of a demand to which the “applicant did not receive a 24 25 2 Plaintiff’s Response includes efforts to contact Immunotech’s shareholders, the company’s stock transfer agent, and the Nevada Secretary of State, but these communications were not made to “the officers and directors of the corporation” as required by the statute. (See Resp. 5:5–24). 1 ||response”). Exhibit 8 of Plaintiff's Amended Petition is an email from Zhabilov’s attorney, 2 || Ivan Elandijev, denying Plaintiffs request to inspect Immunotech’s records. (Elandijev Email, 3 || Ex. 8 to Am. Pet, ECF No. 44-8). Plaintiff's argument that this email response was insufficient 4 || because it did not come from an officer or director of the company, is unpersuasive. The 5 || language of the statute does not require that the response be directly from an officer or director. 6 || Therefore, the Court GRANTS Defendant’s Second Motion to Dismiss. Because amendment 7 || would be futile, Plaintiff is not granted leave to amend for a second time. g || V. CONCLUSION 9 IT IS HEREBY ORDERED that Defendant’s Second Motion to Dismiss, (ECF No. 10 is GRANTED. 11 The Clerk of Court is kindly instructed to close the case. 12 DATED this 9 _ day of April, 2024. jj 14 iy bh Gloria Navarro, District Judge UNITED $TATES DISTRICT COURT 16 17 18 19 20 21 22 23 24 25 Page 5 of 5