Millner v. Plutus Enterprises LLCMillner v. Plutus Enterprises LLC
Case Information
*1 UNITED STATES DISTRIUT COURT FOR THE SOUTHERN DISTRICT OP FLURIDA M iam i D ivision , Case Num ber: 21-23436-CIV-M ORENO JA/OB M ILLNER,
Pléintiff,
V S.
PLUTUS MNTERPRJSE % LL ,C FLUYD
SCOTT AGE ,E J ,R. STEFAN DZSSALINE ,S
1th LEVEL COM M UNICATION S, LLC, and
DON GILLETTE,, Defendants.
' /
ORDER DENYING M OTION TO bISM ISS . . ! . . . .
Plaintiff, Jacob Millner, alleges he is a victim of a pytamid scheme pepetrated by the j
Defendants. Plaintiff filed ari Améncted Complaint asserting claims pnder thù Racketeer lnflùenced qnd Corrupt O rganizatiôns A ct and the Florida D eceptive and Uhfair Trade Practices A ct. D efendant 7th Levèl Com m unications LLC m oves to dism iss arguing'a lack of personal jurisdiction and faillzre to state a claim under IUCO and the FDUTPA. The Coutt denies the mo tion fipding that RICO ppvidls ?or nàiionwide seryice and therefore, there is personal ' ' jurisdiction over the Defendant. Thé Amènded Complaint alst? pleads the RICO and frauduleht
indticement claims witlt suffiqiçnt particularity. lt lays out thç role of each defendM t énd what each defendant did and said to futther the 11.111:w .% 1 pyram id schem e. Finally, the A l ended Com plaint states a claim undei the Florida Deceptive arfd Unfair Trade Practices Act. Accordingly, the motiofl to dig'miss' ts' denidd.
J Tl-lls cAusE uam e before 'the court upon Defendafat'j' M otioh to bismiss (D.E. 26), tiled on Februarv 3. 2022.
THE COURT has considered the m otion, the response, the pertinent portipns of the record, and being otherw isewfully gdvised in the prem ises; it'is
ADJUDGED that the m otioh is DENIED. Defendant 7th Level Cùm mupications, LLC shall answer the com plaint by June.30. 2022.
1. B ackeround Plaintiff th j Jacob M illner, filed this case against variouâ Defendants, iflcluding 7, Leve Com municgtiqns, LLC, for its role in an unlawful pyrnm id schem e. 7th Level filed a motion to
y ' ' dism iss the Amended Complaint. The Amended Com plaint alleges that the schem e, lcnown as OPM W ealth, preyed on' individuals seeking to gaih . financial independeqce by m aking false, fraudulent, qnd deceptive prom ises of exponentiàl incom e gen'eration to unsuspecting victim s
interested iil cryptocurrency.
Defendants Floyd Scott Agèe, Jr. . and Stefan D essalines established OPM W eélth, w hich q was a mu lti-level marketfng business where revenue was derived from investment of
cryptocurrency by subsequent palicipants. OPM W i alth operated a pyram id scheme selling various m embership levèls of its Pluttis Plan. Defendant 7th Level Com munications, LLC was the principal fnatketing a41(1 sales tenm of dhestrating the ongoing fraud carried out by OPM W ealth. Defendant Don Gillette, a resident of M iami, Florida, wab artaffiliate and prom oter of OPM W ea1th afld targeted upsgàpecting individuald with false text m eqiages alld phtllle calls to lure them into the schem i. ,
Thè Am ended Complaini éxplains that OPM W ea:1th tlffered to consumers a digital franchise with digital products, inctuding know-how on generating cryptöcprrency wealth. Patrons would pay ari initial buy-in valued at tens of tllusands of dollars, but the only way to m ake monçy through the OPM W ea1th progtam was by lurihg others into .thç program and earning com missionj when they purçhased plans. Plaintiff alleges he and al1 other investors lost *3 th r t . ' ' ' ' ' ' '' ' - . their investm ent. 7 Level' Cöm munications allegedly prbvided the dired sâle: representatives,
. ' . . W ho wete referred tô as coaches. Oncs a pötential victim becnme entrappedj 7th Level would pair . ). . . . . , ' . . . . the indivtdual with a coack whose job was to cloàe ihe sale. Piaintiff also alleges tlkat 7t!' Level . . . . ' ' . ' k . ' , . . . . . . . . ..
Communications legitipizèd.opv W ea1th based on iis owney Jereiy Miner's putported sales . '
. . acumeh and relationsùij with existihg companles, like Google. Miner and ltis team also posted . ' J . kideos enticing victims to btïy the jjous pjau. . ' ' . . . . y. . . . J ' . . , . . .
. . . ., . On or abciut Aptil 6, 20 . 2û, Gillette, as an agent of OiiM Wea1th, directly contacted . ' . . . ' Plaintiff to promote the scheme, claiming he eàrned $146,40) within 1 weeks. Over the next few Wee , ks Plaihtiff was presstlred and inundated witlt fraudulentpromises froin Agee, Dessalinçs, ' . . and the 7tl''Level coach . H e relied . ph the coach's represehtations tb finalize his decision to . . . . .
' pahicipate . Plaintiftpurchased OPV Wealth's mpst . qxpènsivè' plan, the Zeus Package tit a . .;: . y, ,). . . total öf k.1. '985 Bi'tcoin which haj a value of over $1t0 000.' Plaihtiff neve'r r'eceived any digital , . , ' ' . . ' - . , . ' .. . ' . . or jhysical ptoduds prbnîised tmder the plap. èlaintiff hever closed any deals fot the schenle and . . .
did hot p ake atly motzey.
A. Causes ofàction jrl tht Amended Complaint . , . .
Cotmt 1 of Plairitiffs Amtrided Complaiht is a RICO claim undet 18 U.S.C. j 1962/) . . . against a1l D efendants. In thls slaim, Plaiptiff éxplaifls how the befendants conducted thé affairs of a racketeering ente' rjrise. Spec' i fically, 7th L.evel Com mpnicatiins provided sales ptaff to.
promote t e h fraudulent scheme. The ùompany tcàuted 7th Level'à SEDone .Fot You Closirtj Team'' .
as a key c'omponent to the ih' vestofs' success from the 'program. *7th Level paryicijated in media .
interviewpEand rryrkqtlng vikeos to promote the plan and. .it! Giôachès'drwei,e thé dired liaisonk to
thè victims'. The ùoachej m ade fqlàe and deceptive représelltAtions to the victims, includipg the plaintiff .lqaintiff alleg'es thatthe Drfendants conducted the a/f' a' irs of à ràéketeerinj'enteiprise @ N b violatihg 18 U.S.C. j 1343 by usihg the wife, râdio, Nd.t/evision colpmunication to dtvise a y
:
dcheme to defraud vittims. The complaint also alleges thèy 'dolated 18 C.S.C. j 1956 by laundering the proceeds of their illegal activi'ty by knoWilkly concealing the namre, the location, and the source of the proceeds of .thelr illegal activity. Finally, the Am'' çhded Cgmplaint alleges
in Count 1 that Defendants violated 18 U.S.C. j 1957 y ow tn .kY ingly'engaging in monetary transactions in crilninally derived propetïy of a value greater. than $ 10,000 stem mizig from theit illegal activi'ty.
Count 2 is alsö a RICO claim under 18 U.S.C. j. 1962(d) fot conspiracy to conduct the affairs of a racketeering enterprise. The claim asserts that a11 Defendants intentionally conspired to engage in a rackeseering activity in connection with OPM W ea1th. It alleges that the Defendants ltnew their predicate acts fonned a pattern of racke'teering activity ànd agreed to perform those acts to pep etuate the schem e.
C. ount 3 is a Flotida RICU claiin against al1 Defendahts under 5:772.103., Fla. Stat. The cléim asserts the illegal przdicate acts that took place itl Florida, including orgarfized fraud in , violation bf j 817.034(4)(a), Fla. 'Stat., communidations frattd in violatiorf of j 817.034(4)(b), Fla. Stat. and theft,'in violation of j 812.014(1).
Count 4 is a zlaim under the. Florida Deceptive and Unfair Trade Practices Act, j 50.1 201r501.213 Fla.' Stat. The Am' ended Conlplaint alleges that $he deceptive trade practices * 5 .
caused Plaintiff to ttans er ? 'his Bitcgih to OPV W ea1th for inves' tment returns arfd property that w as not delivered. -
Count 5 is a gaudulent indu emen é t'claim tmder Florida law against 21 the Defendants. lt assel'ts that Defendatlts intended Plaintiff to be induced to invest by refying on their statements of fact to him , w hich w ere false and'deceptive. Plaintiff alleges thàt he suffered dnm ages because
he relied on their frau ulent statementà. j
Defendant 7th Level Corpm tmications filed a m otiop to dismiss arguing that the Court lacks personal jurisdiction. 7th Level Communications is' a M issouri limited liability company with its principal place qf btlsiness i'n M issouri and its only lherizber, Jeremy M i ner, is a citizen ? otphoenixj Arizona. In its motion to disfniss, 7th Level also argues tiat Plaintiff fails to ppperly state claim s under the federal and Florida RICO statutes and the Florida Deceotive and Unfair A. Trade Practices A ct.
II. L egal A nalysis M otion to Strike
Before addressi'ng the merits of the m otiön to disiniss the Court finds 7* Level's m otion # to strike the Am ended Com plaint should be denied. In this case, the Uout't granted a prior motion to dism iss filed by D efendant 7t11 Level Comm unicétions, wheri Plaintiff failed to file an opposition memorandum within the time allotted intocal Rule 7. 1(c)(1). After the Coul's order graniing that motion, the Plaintiff filçd a timely Am ended Complaint as allowed by Federal Rule of Ciyil Prbceduze 15(a)(1)(B). tn.this case, Plaintiff never intçnded to (soppose'' the mption to * e x < ' - k . *. * ' . m dismiss and thul, was not required to file a response under the Local Rule. M oreover, Fedem l Rule of civil Procedute 83 lequ $: - irej a district court's local rules to be consistent w ith.the Federal Rules of Civil Procedure.'' Rèese v. Herbert, 527 F.1d , 1253, 1266 n. 20 (1.1th Cir. 2008). vh- c--.wiIl--t----t---,.1(-)(l) i----- --th-ti- i-----i-t--t-itàr-d---lR-l--rci-il Procedute 15(a)(1)(B), which allows the filing of an amended cömplaint 21' days .after service bf a motion under Rule 12Y). Accordingly, the motion to strike is denied and the Cotirt vacates its prior dism issal order as to D efendant 7th Level C bm m unications; LLC.
B. . Pe sona f l àurisdiction
In its m otion to d ism iss, D efyndant 7 eve
tl1 L I 'Com lhunications àrgues that there is no
personal jgrisdiction bçcause thete is no specisc jurisdiction under Florida's Long Azm Statute
*6
or
à fqderal statute. Ptaintiff askexts that.because it brihgs claims under the federal RICO statute,
. the analysij under Floridb's Long-Arm Statute is tnisplacèd. Tllid Court agrees with Plaintit
. q
' .
Rlco provtdes for nationwide G'tenue and process'' under 18 U.S.C; 51965 ofthe RICO statpte.
. .
The Eleventh Circuit held that Ctlwlhen a federal statme provides for nationwide service of
process, it bzcotnes the statmory basià for personal jurisdiction.'' See Republic ofpanama v.
Bccllioldings, (L ux.), v%.A, , 1
personal jurisdiction is established'tpder the federal RICO statute, courts may eyercise pendent
. . . personal ju.risdiction o'ver the related.state law claimsl; Banldtldntic k Coast to Coqst
( .
Contractors,
nationwide service of prpcess, it'is' the statutory basis for personal jurisdiction in a RICO action, i' not Florida's long-arm statutele ln it: reply brief, Defeljdant 7tn Level Ubmmtmications concedes
this point, às it m ust.
kather, ith Lzvel Comrhtmications argues in reply that due process'considerations are not met It argues t hat there is no paiiozïpidé class, and Plaintif/is rmt from Flvida. Only Defendant G illette is in Florida 'tm d none of the alleged co'nduct as to Plaintiff clccuryed inaFlorida.l' 7th Level adds that Plaintiff has nevet even been Fithin the ten'itorial boundaries 'of Florida, and t herefore, çxerctsing personal jurisdiction here is uttreasynable. Unber R.1 CO's nationwide service of process provision, a defendant is ollly required to have m ininw m contacts with the
The Xmended Complaini allegés téat Defendant Don Gillette targetéd Plaintiff from Flöfidà.
6 *7 United States as a whole to satisfy due process and enable a court to exetcise perlonal jurisdiction over suoh defendant. Pr6u, 62 F. Supy. 3d at 1372-73. There ià ho requirement that a ' . . , defendant establish minimum contacts with the forlzm dijtrict itself, but rather, a defendant's
P resence within the United States satis/es any due proceks concerns where nationwide service of
. P rocess is authorized. Yhe only caveat to this general rule is thàt if a defendant satisfies its Gdburden of demonstptihg that assertion of jurisdiction in this forum will make litigation (so gravely difficult and inconvenient' that he will be at a Esevere disadvantage in compayison Eto l .
Plaintiftl,'' which 7tI' Level has not attempted to do here. Republic ofpanama,
Here, Plaintiffhas established a prima faciè case of personal jurisdiction against 7th Leyel. The Am ehded Complaint identifes 7th Levçl as a M issouri lim itrd liabili'ty com pany and Jeremy M iher, its owner and sole rpem ber, was served in Arizena. The Amended Complaint ' ' , '' . . . ' . seeks relief lom t' 7tl' Level's e ongful conduct tmder RICO and idevifies j 1965 âs the basis of
. ' '
jurisdiction of its claims. Pttrsuant to RICO'S nationwide :ervice qf process provision, 7th Level, tts a company reslding in the Criited Statbs, has suffciellt m iniljw fn contacts Fith the United States to satiéfy cohstitutional due process requirem enss apd thus, is gubject to the personàl
jurisdictioù of this Court. See 18 U.S.C. j 1965(d); see alsqBanW tlantic, 947 F. Supp.vt 488 ' : ' ' (&$gA) defend% t's mere presettc:'wfthin the'united States ebtablishes çminimum contacts' and satisties any due process ùoncerns thàt m ày exist where qatiohwide selwici of process is
authôrized.''). 7
C . RICO and Fratldulent Inducem qnt Claims
Defendant tnoves' to dismiss'the IUCO and frauxlent iitdtzcement èlaims under Feèeral Rule of Civil Procedure 9(b) for failure to plead fraud with specificity. The Eleventh Circuit has ; . . . :( repeatedly stated that kule 9(b) is satisfied where a plaihtiff àlleges precisely what statements . .
were made in what documeùts or oral reprèsentations or wàat omissions were made, and (2) the tim e and place of each such statem eht and'the person responsible . for making (or, in the çase of
ppissions, not making) same, and the (3) content of such jtatements and the marmer in which
2
. . .
.
. .. .
. ..
. .
.
.
.
.
.
t ey m
h isled the plajntiff ahd (4) wlpt the defendant obtained as a conjequence of the fwud.''
,
. 3d 1230,' 1237 (1 lth Cir. i008) w tciting Tellè v. Dean Witter
M izzaro v. Home D epot, Inc., 544 F .
' . .
.
.
.
Reynolds, Inc.,
F.3d 1 194, 1202 (1 1th Cit. 2001)); Ambrosia Coal dn Contvt. Co. v. Pages M orales, 482 F.3d
1309, 1316 (1 1th Cir. 2007). Under ftlkule 9(b), it is sufficient to plead the who, what, when,
where, and how of the allegedly false statemeliti and then allege generaily that those statement;
were m ade with the requisite intent.'' M izparo,
The Amendçd Complaint meets Rule 9(b)'s heightened'fleading standard. Plaintiffhas ' identified 7th Level botà individually and colledivèly with other Defeùdants, to have tkgeted Plaihtiff through deceptive marketing materials and thzough aaents àctilm on its behalf io ftaudulently m isrepresent tp Plaintiff, the purpèse, performanéç history, prodpcts. of the OPM W ealth'schùme and; more importantly, Plaintiff's ability to lpate 'substantial, immediate passiv'e income from his pttrchasd 'of a Plutug Plan franchise level.' The Amended Complaint also idpntifies Jeremy M iner as a key deyelöper and promoter of the false, flùudulent, and deceptive . . . ... a. j d dvertisem ent materials and the orgénizer and orchèstrator of the 'tcöachus'' supplied by 7..1 Level, whö were, in reality, the çlèsing agents that spoke directly with victim s, includihg
Plaintiff. 7th Level coàches made false and deczptive statbm' ents and representations gbtmt the schem e to attract victims, including Plaintifll into buying into the program . The Am ended
complaint also states that a 7 tb't-evel coach was applinted to assist the èlaintiff and
mischafacterized the irpe natum ö f ihe scheme. As to the timeframe, the A ltxndeé Complaint *9 assert that '/th Level inundated the Plaintiff with m arketing m aterials and verbal prom ises begimling on April 6, 2020 to M ay 6, 2020. Finally, the Am ended Com plaint provides screenshots of charts and graphics that 7th Level in conjunctiön with other defendants, posted 0n line to target victims. Thç Coutt iinds this is sufficiently pled.
Plaintiff argues that the A m ended Com plaint im properly lum ps the D efendants together.
-
''''
*- This Amended complatnt is not a shotgun pleàding, which assel'ts lçmultiple claims against
multiple defendants Without specifying which of tie defendanfs are resyonsible for which acts or
omissions, or which of the defendants the claim is brought against.'' Weiland v. Palm Beach
C/pa@ Shert 's O.f#t?d,
Dzfendant algo argtfes tiat Plgintifffails to plead the' RICO conspiracy claim with
particularity. District courtg in this circuit have specifically held that çûltule 9(b)'s particularity - requirèmeùt does not épply to RICU' collspiracy claims.'' fn /': Sahlen & Assoc&, Sec. L itig., 773
ç. supp. 742, 370 (s.o. p-la. 1991) (citing o-ualiey v. o'geill, 8tt f-.2d 1557, 1560 (1lt cir. 1989)). .Where the allegations, réad in their totality, clyarly suggest that' such an agreemint to conspire was made, the particutarity requirementj db not apply. fJ.
Here, Plaihtiff. alleges tha,t 7th Level conspired with the other Def:nd. ants to further a r âcketeering enterprise. specincélly, the Amendect Complaillt alleges OPM Wealtà h'ired 7th
Level to promcjte the plan t oug V h its team of coaches, whtj were' focttsed on closing deals with
9
unsuspecting victims i)f the pyramid scheme. Accordingly, tv Cout't denies tile motion to ' dismiss and finds the Amended Complaint sufticiently states a qlaim for RICO conspiracy.
Florida 's Deceptive and Unfair Trade Practices Act
t Level moves to dismiss the Florida Deceptive and Unfair Tradè Praçtices ict claim th ' ' - ' . u arguing thete is not a sufficient connection to Florida. In so arguing, 7tn Level acknowledges that Florida courts have found that the Florida Deceptivè and Ullfàir Trade Practices Act is not limited to providing relief io Florida consumers, nor is it limited to conduct occurring entirely within the state. See M illenium Comm 'ns & Fu@llment, Inc. v. Ofpce ofAttorney Gen. ofFla., 761 So. 2d , 1256 1262 (F1a. 3d DCA 2000) (finding that tile FDUTPX applies to non-resident consumers); Barnext Om hore, Ltd v. Ferretti Grp., USA, lnc., No. 10-23869, 2012 WL 1570057, (S.D. Fla. M ay 2, 2012) (recognizing that there.are no geographical or rçsidential restrictions contained in the expiess language of the statute and detl' ying summary judgment on a FDUTPA'c1aim because sope of the activity bccurred outside of Florida).
The Florida Dbceptive ahct unfair Trade practices Aci is intended 'tx o protect the ' cohsuming public and legitim ate enterprises from those who engage in unfair p eth ods öf competitiolt, or unconscionéble,' deçèptive, cif unfair acts or practices irf the conduct of ahy trade or commefcd,'' Barnext, 2012 W L 1570057, at *5 (quoting'Fla. Stat. j 501.202). Florida.statute y , j 50 1.203 defines tradè or commerce as the a ve $ , ût 'd (ç d rti ing soliciting prdvidinj offering, or , diàtributing,' w hether by sa'le . . . ' ' pr otherwise, of any goöd' , ; .wherever usijftmfctf'' Id 'tquoting
Fla. Stat. j 501.203 (emphasis a
èdedl). The Act is Cidesigrted to protect not only the rights of
litigants, but also jhé rights' of th8 consuming public at large.'' Holt v. O 'Brieh Impotts ofFort
Myers, Inc.,
argues t he clalm shoulb be dismtsFçd because there is an insufficient cohnection to Flortda. Even
Case 1:21-cv-23436-FAM Document 38 Entered on FLSD Docket 06/22/2022 Page 11 of 11 *11 '. if the Court gave FDUTPA the more limited re'ading that 7tl1 Level suggesss, the Ametlded Com plaint allegej that 7t11 'Level qpgaged Fith Florida-' bashed Defepdant Dofl Gillet'te arld the other Drferj (tapts in dqceptive qnd tmfair .trade practices. Don Gillet'te taiaeted Plaiptiff from Florida. Theje allegations are suffcient to state a claim under the A ct tm d therefore, the Court denies the m otion to dism iss.
( yw q R ida, this zJ,' ' of- Ju' n' e 2 D ON E AN D ORD ERED in Cham bers at M iam i, Flor 022. . . A '
''- < --.- > ee FEIjXRJCO-AC-NfI3REN: UN1t- STATES DISTRICT JUDGE Copies furnished to:
counsel of kecord