MOTION FOR A MORE DEFINITIVE STATEMENT:
IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS
HOUSTON
DIVISION JAMES P. KERR; RICHARD HOOVER;
STEPHEN P. ADAMS; MARY
HOOVER;
DALE E.
GALE; BRUCE W. GALE;
JACOB
P. CUKJATI, IV; NATALIE F.
CUKJATI;
LORI CUKJATI; JIMMY A.
SCHUMACHER;
CARLA
SCHUMACHER; ERIC RANDOLPH;
WILLIAM
MCILVRIDE; CARL L.
ULEPICH;
CHARLES L. WEST;
DON SCHUMACHER; MICHAEL PAUL
LEBLEU,
INDIVIDUALLY AND AS
REPRESENTATIVES
OF A CLASS
SIMILARLY - SITUATED INDIVIDUALS
VS.
§ CIVIL ACTIO NO. 4:10-cv-04221
EXOBOX TECHNOLOGIES CORPORATION;
ROBERT
B. DILLON; §SCOTT
COPELAND;
REGINALD GOODMAN; MICHAEL
WITTENBURG; MARC
PERNIA; MICHAEL
WIRTZ; RICHARD EVANS, M.D.; ROBERT
l. SONFIELD, JR.; JASON LANDESS;
SYDNEY
BARRETT; JEFFREY
BRADLEY;
DONALD BRADLEY;
MARC LANE;
ROGER BREWER;
ALEXANDERIA K. BLANKENSHIP;
WILLIAM
SKLAR; JAMES
L. JIMMERSON; AND LESLIE DANYEL
OWENS-SWINT
DEFENDANT EXOBOX TECHNOLOGIES CORP.’S
MOTION FOR A MORE DEFINITE STATEMENT
Defendant,
EXOBOX TECHNOLOGIES CORP., sued herein as EXOBOX TECHNOLOGIES CORPORATION, moves for a more definite statement of plaintiffs’
claims against Exobox pursuant to Fed.
R. Civ. P. 12(e), and in support of this motion would show the following:
1. Exobox was served with process in this cause
on May 31, 2011. The plaintiffs’ live pleading in this lawsuit was not attached to the citation.
Instead, plaintiffs served their Class Action Petition filed in Texas state court and removed to this court on October
29, 2010. Defendant downloaded a copy of Plaintiffs’ First Amended Class Action Complaint (the “Complaint”)
filed in this court on December 14, 2010.
2. Part IV of the Complaint makes detailed
allegations in support of claims against various individual defendants. See Complaint, Factual
Background, Part IV, pp. 8-21. Allegations against Exobox, in contrast, are general in nature and neither
constitute nor support a cause of action against Exobox. Id. As such, the Complaint
is so vague and ambiguous that Exobox cannot reasonably prepare a response.
3. Parts V and VI of the Complaint provide a proposed class definition
and class allegations tracking Rule 23 of the Federal Rules of Civil Procedure. Parts VII asserts three
causes of action against “Defendants” generally: Count 1: Fraud and Misrepresentation; Count
2: Violations of Federal Securities Laws; and Count 3: Conspiracy and Aiding and Abetting Fraud and Violations of Security
Laws.
4. Part
VII of the Complaint refers to “Defendants” throughout and does not identify a single defendant by name.
That leaves Exobox with the “Factual Background” in Part IV as the sole guide to its alleged wrongful acts.
The allegations in Part IV as to Exobox are either innocuous, mention Exobox only in passing, or make vague allegations
without any supporting basis. See Complaint, Part IV, ¶¶ 25-61.
5. The following paragraphs of Part
IV mention Exobox by name but contain allegations as to wrongful actions of individual defendants only: ¶ 25.
Creation
of Exobox by Defendants as a sham corporation; control of float of Exobox stock in the marketplace by Defendants; all actions
“designed to provide financial benefit to the Defendants to the detriment of Exobox and Class Members.” (emphasis
added)¶ 36. Defendant
Sonfield “began representing Exobox and orchestrated certain transactions whereby Exobox would enter into a reverse
merge with JinPin.” Note: Sonfield is a Houston lawyer. See
Complaint ¶ 11.¶ 37. “Exobox
ultimately agreed to enter into a reverse merger with JinPin based on Sonfield’s advice.” Various
allegations as to Sonfield’s failure to make certain disclosures. ¶ 38. “On or about September 15, 2005, the
reverse merger was finalized and Exobox emerged as the surviving entity.” Sonfield controlled over
88% of Exobox’s “public float.” ¶ 39. Sonfield engaged an expert to value Exobox. ¶ 40. “Sonfield along with Landess undertook
steps to facilitate the public trading of Exobox stock.Ӧ
41. “Exobox stock began trading in the Over-the-Counter bulletin board on or about October 14, 2005.”
6. Paragraphs
42-46 of the Complaint concern “Sonfield’s Issuance of Stock to his then Legal Assistant” and contain no
alleged facts as to Exobox.
7. Paragraphs
47-50 of the Complaint concern “Sonfield’s transactions with Lane and Brewer” and contain no alleged facts
as to Exobox.
8. Paragraphs
51-52 of the Complaint concern “Unregistered, Nonexempt Distributions by the Bradleys and Landess” and contain
no alleged facts as to Exobox.
9. Paragraphs
53-61 appear under the heading “Sonfield Drafts and Files Public Filings that Fraudulently Conceal His, Lane and Brewer’s
Control of Exobox’s Public Float.” The only allegations against Exobox appear in paragraphs
60 and 61. Those allegations are vague and conclusory at best. Neither provides sufficient
detail to enable Exobox to make a response.
10.
Paragraph 60 of the Complaint alleges: “Defendants, Dillon, Copeland, Goodman, Wittenburg,
Pernia, Wirtz, Evans and Exobox engaged in a series of insider transactions which provided benefits to themselves
to the detriment of Exobox and the Class Members.” (emphasis added) The Complaint contains
no explanation of Exobox’s alleged role or actions in the “insider transactions” – it simply lumps
Exobox with other defendants whose conduct has been specifically detailed in previous paragraphs. There
is no such specificity as to Exobox, leaving Exobox unable to reasonably prepare a response. Moreover,
the allegations of Paragraph 60 contradict previous allegations that individual defendants controlled the “public
float” of Exobox stock, thus compounding the ambiguity. See ¶¶ 25, 38 and title to Part
IV, Subpart D, p. 16.
11. Paragraph
61 of the Complaint alleges: “Defendants, Dillon, Copeland, Goodman, Wittenburg, Pernia, Wirtz, Evans
and Exobox did in the past and continue in the present day to cover up information relating to the Exobox corporate operations
that is material to Class Members.” The Complaint contains no explanation of Exobox’s alleged
role or actions in the “cover up” – it simply lumps Exobox with other defendants whose conduct has been
specifically detailed in previous paragraphs. There is no such specificity as to Exobox, leaving Exobox
unable to reasonably prepare a response.
12. As
suggested previously, Part VII is on its face vague and ambiguous in alleging three causes of actions against “Defendants.”
Part VII does not identify a single defendant by name. Deprived of specific facts in Part IV, Exobox
has no basis for discerning when it may be included in “Defendants” and when it may not be included in Part VII.
Indeed, plaintiffs’ allegations of conspiracy, aiding and abetting allege the elements of a conspiracy against
“the Defendants or certain of them,” compounding the ambiguity and vagueness of this portion of the Complaint.
For the above reasons, Plaintiffs’ First Amended Class Action Complaint
is so vague and ambiguous that Exobox cannot reasonably prepare a response to the allegations against it. Exobox
prays that the Court order Plaintiffs to replead their claims against Exobox and that the Court strike all claims against
Exobox if Plaintiffs fail to comply within fourteen days after notice of the Order. Respectfully submitted,
THE TOLIN LAW FIRM
/s/ David L. Tolin
DAVID L. TOLIN
Texas Bar No. 20106300
4320 Calder Avenue
Beaumont, Texas 77706
(409) 896-2792(409) 896-2965
(fax)
ATTORNEY FOR DEFENDANT,
EXOBOX TECHNOLOGIES CORP. CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to Plaintiff’s
counsel of record via electronic service on this 21st day of June, 2011.
/s/ David L. Tolin
DAVID L. TOLIN