marion court case reply no 2

I have followed up on the fraud case and have received this reply from MAE lawyers.




SHANE D. HILLMAN (8194)
NICOLE G. FARRELL (10130)
Parsons Behle & Latimer
One Utah Center
201 South Main Street, Suite 1800
Salt Lake City, UT 84111
Telephone: (801) 532-1234
Facsimile: (801) 536-6111
[email protected]
[email protected]
[email protected]
Attorneys for Marion Energy Inc. and OEL Operating
(USA), Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
IOWA TANKLINES, INC., a Nevada
corporation,
Plaintiff,
vs.
OEL OPERATING (USA), INC., a Texas
corporation, and MARION ENERGY INC, a
Texas corporation,
Defendants.
MEMORANDUM IN OPPOSITION TO
MOTION FOR LEAVE TO FILE
SECOND AMEND COMPLAINT AND
TO AMEND SCHEDULING ORDER
Case No. 2:12-cv-00006-DS
Judge David Sam
Defendants Marion Energy Inc. (“Marion”) and OEL Operating (USA), Inc. (“OEL”)
hereby respectfully submit this Memorandum in Opposition to Motion for Leave to File Second
Amended Complaint and to Amend Scheduling Order.
Case 2:12-cv-00006-DS Document 60 Filed 11/29/12 Page 1 of 3
2
4810-8582-6578.1
RESPONSE
On November 15, 2012, plaintiff Iowa Tanklines, Inc. (“ITL”) filed a motion requesting
leave to file a second amended complaint in this matter [docket no. 58]. ITL’s motion is
premised upon the purported discovery of “new evidence” of fraudulent transfers of funds by
Marion and/or OEL to certain “insiders”. (Mot. at 1-2.) Marion and OEL are confident that the
allegations will be unequivocally determined by the Court to be without basis and lacking in
merit. Indeed, every single payment that ITL challenges as somehow “fraudulent” was in fact
paid out to Marion’s creditors and obligees, including ITL itself, for the exclusive benefit of
Marion. Indeed, the very allegation that Marion did not receive reasonably equivalent value in
exchange for such payments is preposterous. ITL’s gratuitously asserts that the payments and
transfers left Marion unable to pay its debts, yet ignores the fact that all such payments were
ultimately actually made in satisfaction, or partial satisfaction of Marion’s debts, again, including
its debt to ITL. OEL itself received no benefit from the payments in question as its joint interest
is limited to 30% of certain limited leaseholds jointly owned with Marion, operations on which
had been suspended prior to the payments in question. Further, OEL never entered into any
guarantees obligating it to pay for any debt incurred by Marion; and OEL and had absolutely no
obligation to pay for any debts that Marion incurred. Simply put, OEL operated, at most, as a
conduit of payment to Marion’s creditors and obligees.
Marion and OEL recognize the liberal pleading requirements put in place by the Federal
Rules of Civil Procedure. A plaintiff is entitled to make spurious allegations that ultimately are
determined by the Court to be untrue. ITL’s allegations in this matter will be proven to be
Case 2:12-cv-00006-DS Document 60 Filed 11/29/12 Page 2 of 3
4810-8582-6578.1
untrue, yet, ITL may be entitled under the relevant rules of civil procedure to assert such
allegations even though they are lacking in merit.
In the event that ITL is permitted to amend its Complaint, Marion and OEL submit that
amending the existing scheduling order by a minimum of three months is insufficient. Despite
the assertions of ITL, Marion Energy, Ltd. is not the alter-ego of either Marion or OEL. Adding,
or attempting to add, a company based in Australia, with no minimum contacts in the United
States, will certainly cause significant delays in the proceedings. In the event that the Court
grants plaintiff’s motion, Marion and OEL submit that a minimum of an additional six months
should be added to the existing scheduling order.
DATED this 29th day of November 2012.
/Shane D. Hillman
SHANE D. HILLMAN
NICOLE G. FARRELL
PARSONS BEHLE & LATIMER
Attorneys for Defendants