Coley v. Its Thundertime LLC, 071516 NCSUP, 16 CVS 3019

Docket Nº:16 CVS 3019
Opinion Judge:Gregory P. McGuire Special Superior Court Judge for Complex Business Cases
Party Name:KIMBERLI M. COLEY, Plaintiff v. ITS THUNDERTIME LLC, RANDY P. COLEY, and DIRECTV LLC, Defendants.
Attorney:Bryant Law Group, PC by Matthew P. Ceradini for Plaintiff Kimberli M. Coley. Bryant & Ivie, PLLC by John Walter Bryant and Amber Ivie for Defendant Its Thundertime, LLC. Gordon & Rees, LP by Robert W. Shaw for Defendant Randy P. Coley. Kilpatrick Townsend & Stockton, LLP by John M. Moye and Jeffr...
Case Date:July 15, 2016
Court:Superior Courts of Law and Equity of North Carolina
 
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2016 NCBC 53

KIMBERLI M. COLEY, Plaintiff

v.

ITS THUNDERTIME LLC, RANDY P. COLEY, and DIRECTV LLC, Defendants.

No. 16 CVS 3019

Superior Court of North Carolina, Wake

July 15, 2016

THIS CAUSE, designated a mandatory complex business case by Order of the Chief Justice of the North Carolina Supreme Court, pursuant to N.C. Gen. Stat. § 7A-45.4(b) (hereinafter, references to the North Carolina General Statutes will be to "G.S."), and assigned to the undersigned Special Superior Court Judge for Complex Business Cases, comes before the Court upon Defendant DIRECTV, LLC's ("DIRECTV") Motion to Dismiss or Stay Plaintiff's Action and for an Award of Attorneys' Fees under G.S. § 6-21.5 ("Motion to Dismiss"). On July 6, 2016, the Court held a hearing on the Motion to Dismiss.

THE COURT, after considering the Motion to Dismiss, the briefs in support of and in opposition to the Motion to Dismiss, and other appropriate matters of record, concludes that the Motion to Dismiss should be GRANTED, in part, for the reasons below.

Bryant Law Group, PC by Matthew P. Ceradini for Plaintiff Kimberli M. Coley.

Bryant & Ivie, PLLC by John Walter Bryant and Amber Ivie for Defendant Its Thundertime, LLC.

Gordon & Rees, LP by Robert W. Shaw for Defendant Randy P. Coley.

Kilpatrick Townsend & Stockton, LLP by John M. Moye and Jeffrey H. Fisher for Defendant DIRECTV, LLC.

OPINION AND ORDER

Gregory P. McGuire Special Superior Court Judge for Complex Business Cases

INTRODUCTION

1. In this lawsuit, Plaintiff Kimberli Coley ("Kimberli" or "Plaintiff") seeks a declaration that she is a member in and 50% owner of Defendant Its Thundertime, LLC ("Thundertime"). Kimberli alleges that her husband, Defendant Randy M. Coley ("Randy"), is a member and the owner of the other 50% of Thundertime. Plaintiff brings this action because Defendant DIRECTV, Inc. ("DIRECTV") is pursuing a $2.39 million judgment awarded against Randy in the federal lawsuit, Sky Cable, LLC, et al., v. Randy Coley, et al., Case No. 5:11-CV-00048 (W.D. Va.) ("Virginia Action"). Kimberli was a defendant in the Virginia Action, but was dismissed from that case after she and Randy repeatedly stated under oath that Kimberli had no ownership or involvement in Thundertime, and that Randy was the sole owner of Thundertime. DIRECTV has filed a Motion for Supplemental Proceeding in the Virginia Action seeking to reach assets held by Thundertime in satisfaction of the judgment against Randy. In response to the motion, Randy is contending that DIRECTV should not be allowed to reach Thundertime's assets, in part, because they are jointly owned with Kimberli. That motion was argued in November, 2015, and a decision from the federal court is pending. In this lawsuit, DIRECTV has filed the Motion to Dismiss, contending that the Court should decline to issue a declaratory judgment and dismiss this action because the issue of the ownership of Thundertime is already pending before the federal court in the Motion for Supplemental Proceeding. Alternatively, DIRECTV requests that the Court stay this lawsuit until the federal court has ruled on the Motion for Supplemental Proceeding.

FACTUAL AND PROCEDURAL BACKGROUND

2. Kimberli and Randy have been married since 1994.1 During their marriage they acquired a number of pieces of real property in North Carolina, including rental property. The Complaint alleges Kimberli and Randy formed Thundertime in April 2008, as a Delaware limited liability company, and that each owned a 50% membership interest in Thundertime. Attached to the Complaint is an operating agreement for Thundertime allegedly executed on April 11, 2008, which provides that Kimberli and Randy each held a 50% membership interest in Thundertime.[2]

3. Shortly after the formation of Thundertime, Kimberli and Randy transferred the ownership in the real property owned by them to Thundertime. Despite the allegation that Kimberli already was a 50% member and owner3, the Complaint alleges Kimberli "exchanged her property interest for a 50% Membership Interest in Thundertime."[4] The rental properties contributed to Thundertime were managed by management companies, but the Complaint alleges that Kimberli "was active in the acquisition, maintenance and record keeping for the properties."5

4. In October 2010, the Coley's "experienced marital discord" and their relationship "became very strained."6 Subsequently, Randy "attempted to exert control over Thundertime by fabricating a substitute operating agreement which named [Randy] as the sole member" of Thundertime.7 The Complaint alleges that Randy created the new operating agreement without Kimberli's consent.

5. In June of 2011, Sky Cable, LLC ("Sky Cable") sued Kimberli, Randy, East Coast Cable Vision, LLC ("East Coast Cable"), a business entity controlled by Randy, and DIRECTV in the aforementioned Virginia Action. The Virginia Action was assigned to United States District Court Judge Michael F. Urbanski. In the Virginia Action, Sky Cable alleged that the defendants in that action were involved in the unauthorized publication of DIRECTV satellite television programming. In the Virginia Action, DIRECTV also raised cross-claims against Kimberli, Randy, and East Coast Cable.

6. Kimberli alleges that in the Virginia Action "discovery evidence in the form of documents, depositions and testimony were given which called into question [Kimberli's] Membership Interest in Thundertime."[8] The evidence to which she refers are Kimberli's and Randy's statements under oath that Kimberli had no ownership interest in Thundertime and that Randy was the sole owner of Thundertime.9 For example, Kimberli was asked by interrogatory to identify "any and all joint ventures, partnerships, or other business enterprises which [she has] been engaged in or [has] had any interest in either solely or jointly with others since June 1, 1999, " and responded, "None."10 In November 2012, Kimberli provided sworn responses to interrogatories that were served upon her by DIRECTV in the Virginia Action. DIRECTV specifically...

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