I think it might go back to the suit in 2022 that was dismissed.Peter is refiling in another district.
Before me is Defendant's motion to dismiss pursuant to Rule 12(b)(6) (D.I. 7) and Plaintiffs cross-motion for the court to set bond and compel Defendant to reissue shares pursuant to Plaintiff posting bond. (D.I. 17). I have reviewed the parties' briefing. (D.I. 8, 17, 20). For the reasons set forth below, Defendant's motion is GRANTED and Plaintiffs cross-motion is DENIED.
I. BACKGROUND
Plaintiff Peter Mergenthaler filed suit against Defendant Enzolytics, Inc. (“ENZC”) on August 11, 2021, asserting, “[Defendant] should be ordered to reissue to [Plaintiff] 10,000,000 of its shares” pursuant to 6 Del. C. § 8-405. (D.I. 1 at ¶¶35-51, 51).
Plaintiff states that he owns 10,000,000 shares of ENZC, but that James W. Zimbler engaged in a scheme to fraudulently convert Plaintiffs shares to his and others' ownership. (Id. at ¶¶9-26). Specifically, Plaintiff states that, beginning in 2015, Zimbler orchestrated the fraudulent transfer of Plaintiff s shares in ECOP, which is a predecessor corporation of ENCZ, to Sage Market Advisors (2,500,000 shares), OMS Consulting, Inc. (1,500,000 shares), M. Lamar Outz (1,000,000 shares), and American Asset Management Services Corporation (5,000,000 shares). (Id. at ¶¶3,22-26,40). Zimbler owns American Asset Management Services Corporation, to which 5,000,000 of Plaintiffs shares were transferred. (Id. at ¶¶26, 41). At the time of this transfer, Zimbler was the vice president of ECOP. (Id. at¶37). Zimbler resigned from his position at ECOP on July 6, 2015, after the conversion of Plaintiff s shares. (Id. at 38.)
Defendant requests that this court dismiss Plaintiffs suit pursuant to Rule 12(b)(6) for Plaintiffs failure to comply with 6 Del C. § 8-405. (D.I. 8). In a cross-motion, Plaintiff requests that this court set a sufficient indemnity bond compliant with 6 Del. C. § 8-405(a)(2) and order Defendant to reissue 10,000,000 ENCZ shares to Plaintiff. (D.I. 17 at 1, 7-8).
