United States District Court, E.D. Arkansas, Western Division
DARREN G. MCFADDEN; and MCFADDEN ENTERPRISES, INC. PLAINTIFFS
JACQUELINE VICK; CHEO CLARK; and DOES 1-10 DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
McFadden is a professional football player. He entrusted
Michael Vick with the management of his finances. He
alleges that Michael mishandled his assets, and he has
instituted a separate action against Michael, alleging fraud,
conversion, and breach of fiduciary duty. The present action
concerns Michael's sister, Jacqueline Vick, and her
husband, Cheo Clark. McFadden alleges that Michael
fraudulently transferred real property located at 1508 and
1512 S. Battery St., Little Rock, Arkansas, to Jacqueline and
Clark. He seeks to enjoin the defendants from disposing of
the property as well as further relief to secure the value of
the property. The defendants move to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6). The motion is
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965.
seeks to avoid the transfer under Arkansas Code Annotated
§§ 4-59-204 and -205 (2016). These statutes allow a
creditor to avoid a transfer if the transfer was made
“with actual intent to hinder, delay, or defraud any
creditor of the debtor, ” Ark. Code Ann. §
4-59-204(a)(1); “without receiving a reasonably
equivalent value in exchange for the transfer or obligation,
” Ark. Code Ann. §§ 4-59-204(a)(2), -205(a);
or “to an insider for an antecedent debt, the debtor
was insolvent at that time, and the insider had reasonable
cause to believe that the debtor was insolvent.” Ark.
Code Ann. § 4-59-205(b).
defendants argue that the allegations against them in the
complaint are vague and conclusory and therefore should be
dismissed. As to Clark, the defendants argue that McFadden
has alleged only that Clark is Jacqueline's spouse but
has not stated a claim for fraud against him. The complaint
alleges that Michael “stole, misappropriated and
commandeered approximately $15, 000, 000.00 of
[McFadden's] funds.” Document #1 ¶29. On June
7, 2016, McFadden commenced an action against Michael.
Id. ¶31. McFadden alleges that on August 15,
2016, Michael fraudulently transferred the property at
Battery Street to Jacqueline. Id. ¶34. Clark
received an interest in the property that Michael transferred
to Jacqueline. Id. ¶38. The complaint further
alleges that Jacqueline and Clark knew that the transfer was
fraudulent. Id. ¶¶40-42. These allegations
state a claim under sections 4-59-204 and -205.
defendants next argue that the complaint does not allege
fraud with the specificity required under Federal Rule of
Civil Procedure 9(b). Rule 9(b) requires plaintiffs to
“plead such facts as the time, place, and content of
the defendant's false representations, as well as the
details of the defendant's fraudulent acts, including
when the acts occurred, who engaged in them, and what was
obtained as a result.” Olson v. Fairview Health
Servs. of Minn., 831 F.3d 1063, 1070 (8th Cir. 2016)
(quotation and citation omitted). In other words, “the
complaint must identify the who, what, where, when, and how
of the alleged fraud.” Id. (quotation and
complaint identifies Michael and Jacqueline as parties to the
transfer, and it identifies Jacqueline and Clark as
individuals with legal interests in the property. Document #1
¶¶34-35, 38. It identifies the property by address
and description. Id. ¶34, Ex. A. It describes
the transfer fully (dates, persons involved, objects).
Id. ¶¶33-37, Exs. B, C. It describes the
fraud, both in terms of the value received and the intent to
defraud McFadden from recovering debts owed. Id.
¶¶31-36. McFadden has pled fraud with sufficient
defendants next argue that McFadden has failed to state a
claim because the complaint does not adequately allege that
Michael is insolvent. The Arkansas statute defines an
insolvent debtor as one whose debts are greater than assets.
Ark. Code Ann. § 4-59-202(a) (2016). A debtor is
presumed insolvent if he is not paying debts as they become
due. Ark. Code Ann. § 4-59-202(b) (2016). The complaint
alleges that Michael stole approximately $15, 000, 000 from
McFadden, that McFadden has commenced an action against
Michael to recover these converted funds, and that
“Michael Vick was insolvent at the time the Transfer
was made.” Document #1 ¶¶31, 41-42. The
complaint satisfies the pleading requirements of the Federal
Rules of Civil Procedure. See Iqbal, 556 U.S. at
678, 129 S.Ct. at 1949.
the defendants say that injunctive relief is not appropriate
because McFadden may have an adequate remedy at law for money
damages against Michael. As explained above, the complaint
adequately alleges grounds for injunctive relief under the
statutes at issue.
motion to dismiss is DENIED. Document #12.
 Not the Michael Vick who played
quarterback in the National Football ...