United States District Court, D. Colorado
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR
Richard P. Matsch, Senior Judge
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.
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,
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.
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
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.
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.
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.
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.
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.
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
shareholders of K3B Partners are, and were at all relevant
times, Ben Comis, Barry Comis, RKB, and Falcon Creek.
directors of K3B are, and were at all relevant times, Ben
Comis, Barry Comis, Brugger, and Hicks.
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.
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.
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.
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.
bench trial the Court makes the findings of fact and
conclusions of law required by Fed.R.Civ.P. 52 in narrative
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.
second lease agreement for delivery of another 180 tank cars
was Dated: March 19, 2013, with a required deposit of $936,
deposits were paid timely by wire transfers from UETRR's
bank in Bismarck, North Dakota, to a JP Morgan Chase bank