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Filing # 109852539 E-Filed 07/07/2020 09:16:22 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
HARRY BIEBERSTEIN,
Plaintiff,
vs. CASE NO.: 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC, a
Florida limited liability company and
MOONSTONE HOLDINGS, LLC, a
Nevada limited liability company,
Defendants.
/
DEFENDANT MOONSTONE HOLDINGS LLC, NICLAS KIRCHBERGER, and
CHRISTINE F ZER'S_ AMENDED MOTION TO DISMISS THI MENDED
COMPLAINT AND TO STRIKE EXHIBITS ATTACHED THERETO
NICLAS
COMES NOW MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and
who move this Honorab le
KIRCHBERGER, Defendants, by and through their undersigned counsel
Certain
Court for entry of an Order dismissing Plaintiff's Third Amended Complaint and to Strike
Exhibits attached to same and states as follows:
1 June 25, 2020 Plaintiff's Third Amended Complaint was deemed admitted.
COUNT I
2 Count I of the Third Amended Complaint attempts to combine Plaintiff's allegations as
to an alleged cause of action and as such is unclear.
3 Count I of the Third Amended Complaint implies that Plaintiff seeks relief from Gabriel
Kirchberger as to almost 30 year old German Debt Acknowledgments.
4, In support of an alleged claim for relief pursuant to German Debt Acknowledgments
Plaint:ff attaches a Canadian Declaratory Judgment entered September 23, 2016.
not
5 July 24, 2018 this Court ruled that the September 23, 2016 Canadian Judgment was
Foreign Money
a money judgment and as such could not be enforced under the Out of Country
Judgment Act.
6 Each German Debt Acknowledgment is required to be pleaded in separate Counts and
not a single cause of action, Florida Rule of Civil Procedure 1.110(b).
COUNT IV
7. Count IV of the Third Amended Complaint claims a cause of action by alleging a
violation of the Uniform Fraudulent Conveyance Act and that Gabriel Kirchberger intentionally
trans“erred his interest in Moonstone Holdings, LLC in order to avoid an alleged judgment.
8 Count IV fails to allege how defendant NICLAS KIRCHBERGER, a bona fide
purchaser for value, was aware of the German Debt Acknowledgments at the time of purchase.
9. The Count fails to allege that the assets transferred would have in fact been available to
pay the alleged obligations.
10. Count IV is also barred by the legal doctrine of merger as the German Debt
Acknowledgments have previously been merged into the Canadian Judgment that has been deemed
unenforceable by this Court.
COUNT V
i. Count V of the Third Amended Complaint claims a cause of action by alleging a
violation of the Uniform Fraudulent Conveyance and that Gabriel Kirchberger constructively
transferred his interest in Moonstone Holdings, LLC in order to avoid an alleged judgment.
12, The Plaintiff has failed to factually identify any alleged actions by Defendants that
properly plead a claim of action as necessary to support a claim of action pursuant to Sections 726 of
the Florida Statutes.
13. Plaintiff can not set forth conclusions as to acts but must detail the allegations. Ashcraft
v, Iqbal, 129 S.Ct. 1937 (2009)
14, Count V is also barred by the legal doctrine of merger as the German Debt
Acknowledgments have previously been merged into the Canadian Judgment that has been deemed
unenforceable by this Court.
Acknow'edgments have previously been merged into the Canadian Judgment that has been deemed
unenforceable by this Court.
COUNT VII
15. This alleged cause of action seeks a declaratory judgment that Moonstone Holdings,
LLC is the alter ego of Defendant, Gabriel Kirchberger.
16. The Count as drafted fails to allege the necessary sufficient ultimate facts to support a
reques:: for a Declaratory Judgment.
17. A party seeking declaratory relief is required to plead adequate ultimate facts showing
that th: moving party has an actual doubt as to some right or status and is in fact entitled to have that
doubt :emoved.
18. Plaintiff has failed to adequately display the following:
(a) there is a bona fide, actual, present, practical need for the declaration;
(b) that the declaration deals with a present, ascertained, state of facts or present
controversy;
(©) some right of the Plaintiff depends on the facts or the law or the law applicable to
the facts;
@) there is a party, with an actual, present, adverse interest;
(e) all interests are before the court; and
the relief sought is not merely the giving of legal advice by the courts.
19. Plaintiff concedes at paragraph 17 of the Third Amended Complaint that Gabriel
Kirchberger has never been listed as a member or manager of Moonstone Holdings,
LLC. With documents s recorded with the Nevada Secretary of State
20. Plaintiff fails to allege of any improper conduct in the formation or the use of the
corporst:e form by Moonstone Holdings, LLC.
identity
21. Plaintiff has failed to allege specific facts showing that Moonstone's separate
was not lawfully maintained. Stonepeak Partners, LP v. Tall Tower Capital, LLC, 231 So 3d_548 (Fla
2d DCA 2017). _In order to pierce the corporate veil is only present when the corporation was a mere
device or sham to accomplish some ulterior purpose or improper goal, such as misleading or defrauding
creditors, hiding assets, evading the requirements of a statute or some analogous betrayal of trust,
22. As such Plaintiff seeks to avoid the reality that Moonstone Holdings, LLC is a valid
legal eatity.
COUNT IX
23. Count IX of the Third Amended Complaint claims a cause of action by alleging a
violation of the Uniform Fraudulent Conveyance Act and that Gabriel Kirchberger intentionally
transferred his interest in 15213 Leipzig Terrace Port Charlotte, Fl 3398 lin order to avoid an alleged
judgment.
24. Count IX fails to allege how defendant NICLAS KIRCHBERGER, a bona fide
purchaser for value, was aware of the German Debt Acknowledgments at the time of purchase.
25. The Count fails to allege that the assets transferred would have in fact been available to
pay the alleged obligations.
26. Count IX is also barred by the legal doctrine of merger as the German Debt
Acknowledgments have previously been merged into the Canadian Judgment that has been deemed
unenforceable by this Court.
COUNT X
27. Count X of the Third Amended Complaint claims a cause of action by alleging a
violation of the Uniform Fraudulent Conveyance and that Gabriel Kirchberger constructively
transferred his interest in M15213 Leipzig terrace Port Charlotte, FL 33981 in order to avoid an alleged
judgment.
28. The Plaintiff has failed to factually identify any alleged actions by Defendants that
proper y plead a claim of action as necessary to support a claim of action pursuant to Sections 726 of
the Florida Statutes.
29. Plaintiff can not set forth conclusions as to acts but must detail the allegations. Ashcraft
vy. Igqbel, 129 S.Ct, 1937 (2009)
30. Count X is also barred by the legal doctrine of merger as the German Debt
Acknowledgments have previously been merged into the Canadian Judgment that has been deemed
unenfi:rceable by this Court.
PLAINTIFF'S FAILURE TO COMPLY WITH FL DA RU ES OF CIVI
PROCEDURE. 1.110 (b)
31. Throughout the Complaint Plaintiff repeatedly realleges previous facts as to all 9
defenclarts.
32. Plaintiff has attached 46 exhibits of which only 5 are relevant to Moonstone Holdings,
LLC or Niclas Kirchberger.
33. Florida Rule of Civil Procedure 1.110 (b) requires a pleading to be a short and plain
statement of the ultimate facts that show the pleader is entitled to relief.
34, As drafted the Complaint fails to meet the requirements of F.R.C.P. 1.110 (b) and renders
it near.y impossible for Defendant to render an appropriate response to each allegation.
PLAINTIFF'S FAT E PLY WIT LORIDA RULES OF CIV!
PROCEDURE.
1.110 (f)
German
35. Plaintiff seeks to combine a single cause of action as to 7 unique and distinct
Debt Aknowledgments.
from a separate
36. Florida Rule of Civil Procedure 1.110 (£) requires every claim
transaction be stated in a separate counts.
parties they can
37, As each German Debt Acknowledgments contains separate terms and
not be combined into a single cause of action.
MOTION TO STRIKE
38. Plaintiff has improperly attached a Canadian judgment obtained against Gabriel
Kirchberger on
September 23, 2016 as Exhibit 8 to the Third Amended Complaint.
39. This Court has previously ruled that the Canadian Judgment is not a money
judgment subject to
enforcement in Florida.
40. This Court's ruling that the Canadian judgment is not enforceable has determi
ned the law of this
case. Florida Dept. of Transportation v. Juliano 801 So 2d 101 (Fla. 2001)
41. Plaintiff repeatedly refers to Exhibit 8 in various paragraphs of the Complaint.
42. Allowing the Exhibit to remain would result in obfuscation and confusion in this matter.
WHEREFORE, Moonstone Holdings, LLC, Christine Frazer and Niclas Kirchberger
respectfully pray that this Court dismiss the Third Amended Complaint and Grant the Motion to Strike
Exhikit 8 and request such other relief as the Court deems just and appropriate.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by via
the E-Portal to Ryan W. Owen, Esquire, as Attorney for Plaintiff, Adams & Reese, LLP 1515 Ringling
Blvd. Suite 700, Sarasota, Fl, ryan.owen@arlaw.com:; David K. Oaks, Esquire, David K. Oaks, P.A.
-497 13. Marion Ave. Punta Gorda, FL 33950 doaksesg@comeast.net; Glenn Siegel 17825 Murdock
Circle, Suite A Port Charlotte, Florida 33948, kim@glenn siegellaw.com Christopher Klein
cklein @worldwidelaw.com this 7th of July, 2020.
A) Kay
ROBERT W. SEGUR, ESQUIRE
ROBERT W. SEGUR, P.A.
2828 S. McCall Road, PMB 56
Englewood, FL 34224
941-473-8878
Fla. Bar No.: 0700932
legal@segurlaw.net
Attorney for Moonstone Holdings
and Niclas Kirchberger
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Filing # 109852539 E-Filed 07/07/2020 09:16:22 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA HARRY BIEBERSTEIN, Plaintiff, vs. CASE NO.: 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. / DEFENDANT MOONSTONE HOLDINGS LLC, NICLAS KIRCHBERGER, and CHRISTINE F ZER'S_ AMENDED MOTION TO DISMISS THI MENDED COMPLAINT AND TO STRIKE EXHIBITS ATTACHED THERETO NICLAS COMES NOW MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and who move this Honorab le KIRCHBERGER, Defendants, by and through their undersigned counsel Certain Court for entry of an Order dismissing Plaintiff's Third Amended Complaint and to Strike Exhibits attached to same and states as follows: 1 June 25, 2020 Plaintiff's Third Amended Complaint was deemed admitted. COUNT I 2 Count I of the Third Amended Complaint attempts to combine Plaintiff's allegations as to an alleged cause of action and as such is unclear. 3 Count I of the Third Amended Complaint implies that Plaintiff seeks relief from Gabriel Kirchberger as to almost 30 year old German Debt Acknowledgments. 4, In support of an alleged claim for relief pursuant to German Debt Acknowledgments Plaint:ff attaches a Canadian Declaratory Judgment entered September 23, 2016. not 5 July 24, 2018 this Court ruled that the September 23, 2016 Canadian Judgment was Foreign Money a money judgment and as such could not be enforced under the Out of Country Judgment Act. 6 Each German Debt Acknowledgment is required to be pleaded in separate Counts and not a single cause of action, Florida Rule of Civil Procedure 1.110(b). COUNT IV 7. Count IV of the Third Amended Complaint claims a cause of action by alleging a violation of the Uniform Fraudulent Conveyance Act and that Gabriel Kirchberger intentionally trans“erred his interest in Moonstone Holdings, LLC in order to avoid an alleged judgment. 8 Count IV fails to allege how defendant NICLAS KIRCHBERGER, a bona fide purchaser for value, was aware of the German Debt Acknowledgments at the time of purchase. 9. The Count fails to allege that the assets transferred would have in fact been available to pay the alleged obligations. 10. Count IV is also barred by the legal doctrine of merger as the German Debt Acknowledgments have previously been merged into the Canadian Judgment that has been deemed unenforceable by this Court. COUNT V i. Count V of the Third Amended Complaint claims a cause of action by alleging a violation of the Uniform Fraudulent Conveyance and that Gabriel Kirchberger constructively transferred his interest in Moonstone Holdings, LLC in order to avoid an alleged judgment. 12, The Plaintiff has failed to factually identify any alleged actions by Defendants that properly plead a claim of action as necessary to support a claim of action pursuant to Sections 726 of the Florida Statutes. 13. Plaintiff can not set forth conclusions as to acts but must detail the allegations. Ashcraft v, Iqbal, 129 S.Ct. 1937 (2009) 14, Count V is also barred by the legal doctrine of merger as the German Debt Acknowledgments have previously been merged into the Canadian Judgment that has been deemed unenforceable by this Court. Acknow'edgments have previously been merged into the Canadian Judgment that has been deemed unenforceable by this Court. COUNT VII 15. This alleged cause of action seeks a declaratory judgment that Moonstone Holdings, LLC is the alter ego of Defendant, Gabriel Kirchberger. 16. The Count as drafted fails to allege the necessary sufficient ultimate facts to support a reques:: for a Declaratory Judgment. 17. A party seeking declaratory relief is required to plead adequate ultimate facts showing that th: moving party has an actual doubt as to some right or status and is in fact entitled to have that doubt :emoved. 18. Plaintiff has failed to adequately display the following: (a) there is a bona fide, actual, present, practical need for the declaration; (b) that the declaration deals with a present, ascertained, state of facts or present controversy; (©) some right of the Plaintiff depends on the facts or the law or the law applicable to the facts; @) there is a party, with an actual, present, adverse interest; (e) all interests are before the court; and the relief sought is not merely the giving of legal advice by the courts. 19. Plaintiff concedes at paragraph 17 of the Third Amended Complaint that Gabriel Kirchberger has never been listed as a member or manager of Moonstone Holdings, LLC. With documents s recorded with the Nevada Secretary of State 20. Plaintiff fails to allege of any improper conduct in the formation or the use of the corporst:e form by Moonstone Holdings, LLC. identity 21. Plaintiff has failed to allege specific facts showing that Moonstone's separate was not lawfully maintained. Stonepeak Partners, LP v. Tall Tower Capital, LLC, 231 So 3d_548 (Fla 2d DCA 2017). _In order to pierce the corporate veil is only present when the corporation was a mere device or sham to accomplish some ulterior purpose or improper goal, such as misleading or defrauding creditors, hiding assets, evading the requirements of a statute or some analogous betrayal of trust, 22. As such Plaintiff seeks to avoid the reality that Moonstone Holdings, LLC is a valid legal eatity. COUNT IX 23. Count IX of the Third Amended Complaint claims a cause of action by alleging a violation of the Uniform Fraudulent Conveyance Act and that Gabriel Kirchberger intentionally transferred his interest in 15213 Leipzig Terrace Port Charlotte, Fl 3398 lin order to avoid an alleged judgment. 24. Count IX fails to allege how defendant NICLAS KIRCHBERGER, a bona fide purchaser for value, was aware of the German Debt Acknowledgments at the time of purchase. 25. The Count fails to allege that the assets transferred would have in fact been available to pay the alleged obligations. 26. Count IX is also barred by the legal doctrine of merger as the German Debt Acknowledgments have previously been merged into the Canadian Judgment that has been deemed unenforceable by this Court. COUNT X 27. Count X of the Third Amended Complaint claims a cause of action by alleging a violation of the Uniform Fraudulent Conveyance and that Gabriel Kirchberger constructively transferred his interest in M15213 Leipzig terrace Port Charlotte, FL 33981 in order to avoid an alleged judgment. 28. The Plaintiff has failed to factually identify any alleged actions by Defendants that proper y plead a claim of action as necessary to support a claim of action pursuant to Sections 726 of the Florida Statutes. 29. Plaintiff can not set forth conclusions as to acts but must detail the allegations. Ashcraft vy. Igqbel, 129 S.Ct, 1937 (2009) 30. Count X is also barred by the legal doctrine of merger as the German Debt Acknowledgments have previously been merged into the Canadian Judgment that has been deemed unenfi:rceable by this Court. PLAINTIFF'S FAILURE TO COMPLY WITH FL DA RU ES OF CIVI PROCEDURE. 1.110 (b) 31. Throughout the Complaint Plaintiff repeatedly realleges previous facts as to all 9 defenclarts. 32. Plaintiff has attached 46 exhibits of which only 5 are relevant to Moonstone Holdings, LLC or Niclas Kirchberger. 33. Florida Rule of Civil Procedure 1.110 (b) requires a pleading to be a short and plain statement of the ultimate facts that show the pleader is entitled to relief. 34, As drafted the Complaint fails to meet the requirements of F.R.C.P. 1.110 (b) and renders it near.y impossible for Defendant to render an appropriate response to each allegation. PLAINTIFF'S FAT E PLY WIT LORIDA RULES OF CIV! PROCEDURE. 1.110 (f) German 35. Plaintiff seeks to combine a single cause of action as to 7 unique and distinct Debt Aknowledgments. from a separate 36. Florida Rule of Civil Procedure 1.110 (£) requires every claim transaction be stated in a separate counts. parties they can 37, As each German Debt Acknowledgments contains separate terms and not be combined into a single cause of action. MOTION TO STRIKE 38. Plaintiff has improperly attached a Canadian judgment obtained against Gabriel Kirchberger on September 23, 2016 as Exhibit 8 to the Third Amended Complaint. 39. This Court has previously ruled that the Canadian Judgment is not a money judgment subject to enforcement in Florida. 40. This Court's ruling that the Canadian judgment is not enforceable has determi ned the law of this case. Florida Dept. of Transportation v. Juliano 801 So 2d 101 (Fla. 2001) 41. Plaintiff repeatedly refers to Exhibit 8 in various paragraphs of the Complaint. 42. Allowing the Exhibit to remain would result in obfuscation and confusion in this matter. WHEREFORE, Moonstone Holdings, LLC, Christine Frazer and Niclas Kirchberger respectfully pray that this Court dismiss the Third Amended Complaint and Grant the Motion to Strike Exhikit 8 and request such other relief as the Court deems just and appropriate. CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by via the E-Portal to Ryan W. Owen, Esquire, as Attorney for Plaintiff, Adams & Reese, LLP 1515 Ringling Blvd. Suite 700, Sarasota, Fl, ryan.owen@arlaw.com:; David K. Oaks, Esquire, David K. Oaks, P.A. -497 13. Marion Ave. Punta Gorda, FL 33950 doaksesg@comeast.net; Glenn Siegel 17825 Murdock Circle, Suite A Port Charlotte, Florida 33948, kim@glenn siegellaw.com Christopher Klein cklein @worldwidelaw.com this 7th of July, 2020. A) Kay ROBERT W. SEGUR, ESQUIRE ROBERT W. SEGUR, P.A. 2828 S. McCall Road, PMB 56 Englewood, FL 34224 941-473-8878 Fla. Bar No.: 0700932 legal@segurlaw.net Attorney for Moonstone Holdings and Niclas Kirchberger