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UET RR, LLC v. Comis

United States District Court, D. Colorado

May 9, 2017

UET RR, LLC, Plaintiff,
v.
BENJAMIN D. COMIS, TALANDA SYKES, K3B PARTNERS, ULC, BARRY W. COMIS, FALCON CREEK ASSET MANAGEMENT, INC., RKB INVESTMENTS, LTD, RICHARD K. BRUGGER, K. TODD HICKS, VIERO GROUP, INC., Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

          Richard P. Matsch, Senior Judge

         The court has subject matter jurisdiction for this civil action under 28 U.S.C. § 1332 because of complete diversity of citizenship between the plaintiff and all defendants. Personal jurisdiction over some defendants is contested but the court finds personal jurisdiction over defendants, as will be discussed.

         THE PARTIES

         At all relevant times, UET RR, LLC (“UETRR”) was and is a limited liability company formed under the laws of North Dakota with its principal place of business in Lakewood, Colorado.

         K3B Partners, ULC (“K3B”) was, at all relevant times, an unlimited liability corporation formed under the laws of Alberta, Canada with its principal place of business in Calgary, Alberta, Canada.

         Defendant Benjamin D. Comis (“Comis”) is a natural person and a citizen of Canada. At relevant times Comis acted on behalf of Viero Energy (identified hereinafter). At relevant times, Comis was also a shareholder and director of defendant K3B Partners.

         Defendant Talanda Sykes (“Sykes”) is a natural person and a citizen of Michigan. Sykes failed to respond to the original complaint, first amended complaint, and second amended complaint in this case and is in default.

         Defendant Barry W. Comis (“Barry Comis”) is a natural person and a citizen of Canada. Barry Comis is the father of Ben Comis. At relevant times, Barry Comis was a shareholder and director of K3B Partners.

         Defendant RKB Investments, Ltd. (“RKB”) is a corporation organized under the laws of Manitoba Canada, with its principal place of business in Brandon, Manitoba, Canada. At relevant times, RKB was a shareholder of K3B Partners.

         Defendant Richard K. Brugger (“Brugger”) is a natural person and a citizen of Canada and founder, owner and president of RKB. Brugger was RKB's appointee to the board of directors of K3B Partners.

         Defendant Falcon Creek Asset Management, Inc. (“Falcon Creek”) was a corporation formed under the laws of Alberta, Canada, with its principal place of business in Calgary, Alberta, Canada. At relevant times, Falcon Creek was a shareholder of K3B Partners.

         Defendant K. Todd Hicks (“Hicks”) is a natural person and a citizen of Canada and founder, owner, president, and managing director of Falcon Creek. At relevant times Hicks was Falcon Creek's appointee to the board of directors of K3B Partners.

         The shareholders of K3B Partners are, and were at all relevant times, Ben Comis, Barry Comis, RKB, and Falcon Creek.

         The directors of K3B are, and were at all relevant times, Ben Comis, Barry Comis, Brugger, and Hicks.

         Viero Group, Inc. (“Viero Group”) was, at relevant times, a corporation organized under the laws of Canada with its principal place of business in Calgary, Alberta, Canada.

         RELEVANT NON-PARTIES

         United Energy Trading, LLC (“UET”) is engaged in energy trading and maintains its headquarters in Lakewood, Colorado. UET organized plaintiff UETRR as a separate legal entity, also located in Lakewood, to buy and transport crude oil by rail from remote production locations such as in North Dakota (Bakken production) and Colorado and Wyoming (Niobrara production) for sale to refiners and other customers at Gulf Coast, East Coast, and California locations, for example. Plaintiff maintained a substantial fleet of leased rail tank cars to support this business.

         Viero Energy, LLC (“Viero Energy”) was, at relevant times, a limited liability company organized under the laws of the State of Nevada. It was originally formed in 2010 as Viero Infinite Wellness Fund, LLC. The name was changed to Viero Energy in August 2012.

         SBG Transport LLC (“SBG”) is a company in Arkansas engaged in oil field services, organized by David Selleck and managed by Fred Straub, whose whereabouts are not known.

         FINDINGS AND CONCLUSIONS

         After a bench trial the Court makes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52 in narrative form.

         On February 19, 2013, UETRR entered into a Draft Railcar Lease Agreement with Viero Energy for the lease of “General Purpose 30, 000 gallon cars (GR31) Tank Railcars” at $2, 600 per month for 12 months Evergreen.” Px 1. The lease was for 120 tank cars to be delivered on or before June 1, 2014, in two 60-car blocks. The “Payment Terms” included “First and last month deposit due upon signing totalling $624, 000.” Px 1.

         A second lease agreement for delivery of another 180 tank cars was Dated: March 19, 2013, with a required deposit of $936, 000.

         The deposits were paid timely by wire transfers from UETRR's bank in Bismarck, North Dakota, to a JP Morgan Chase bank ...


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