STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss DOCKET NO. EMILE LAVET, Plaintiff, BLUE WATER MARINA, LLC AND COVERED MARINA, MOTION TO DISMISS and V. KEVIN DEAN and CECILE DEAN, MEMORANDUM OF LAW IN SUPPORT Defendants And BLUE WATER MARINA, LLC, and COVERED MARINA, LLC, Pant Int es cm .19? 22 ?18de203 Parties in Interest, Blue Water Marina, LLC, a Maine Limited Liability Company, and Covered Marina, LLC, a Texas Limited Liability Company (hereinafter collectively ?the Marina Companies"), through its? undersigned counsel, move this Court to dismiss the Marina Companies from this action pursuant to Rule 12(b)(6) of the Maine Rules of Civil Procedure, on the grounds that Plaintiff has failed to state a claim against them upon which relief can be granted. The Marina Companies submit and incorporate the following Memorandum of Law in support of its' Motion to Dismiss: I. FACTUAL AND PROCEDURAL BACKGROUND This dispute arises as a result of the ongoing business separation of Plaintiff and Defendant, Kevin Dean. For over thirty years, Plaintiff and Defendant Kevin Dean have owned and managed numerous entities, which have included hotels, power companies, and real estate acquisition and development investments. Plaintiff and Defendant Kevin Dean are both highly sophisticated and educated investors. Until January 1, 2016, Plaintiff and Defendant Kevin Dean were the joint owners and managers of the Marina Companies. Effective January 1, 2016?, and as part of a larger strategic business separation plan, Plaintiff sold his entire ?fty percent interest in and to the Marina Companies to Defendant Kevin Dean. Contemporaneous to the execution of the purchase and sale agreement, Plaintiff also executed his resignation as a Manager of the Marina Companies. In October of 2016, Defendant Kevin Dean, as the sole Member/Manager of the Marina Companies, entered into a purchase and sale agreement with a third-party to sell the assets held by the Marina Companies. Plaintiff, who was no longer a Member or Manager of the Marina Companies at the time of the asset sale, now seeks to recover a ?fty percent share in the revenue of the sale of those assets. II. LEGAL STANDARD A motion to dismiss tests the legal suf?ciency of the complaint. See McA?ze v. Cole, 637 A.2d 463, 465 (Me.l994) (citing Richards v. Saucy, 610 A.2d 268, 270 (Me.l992)). For purposes of a 12(b)(6) motion, the material allegations of the complaint must be taken as admitted. Id. (citing Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 98 (Me.l984)). In determining a motion to dismiss, the Court "examine[s] the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." M. dismissal should only occur when it appears 'beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim."' Id. (quoting Hall v. Bd. of Envtl. Protection, 498 A.2d 260, 266 (Me.l985)). PLAINTIFF HAS FAILED TO STATE ANY CLAIMS AGAINST THE MARINA COMPANIES FOR WHICH RELIEF MAY BE GRANTED. Although the closing for the purchase and sale of the Marina Companies between Plaintiff and Kevin Dean occurred on September 26, 20l6, upon agreement of the parties, the documents were effective January 1, 2016. 2 The Plaintiff has failed to state a claim upon which relief may be granted against the Marina Companies. All of the allegations contained in the Complaint are asserted directly at the alleged actions and/or omissions of Kevin Dean, and there are no allegations or claims against the entities themselves. Essentially, Plaintiff has named the Marina Companies in this lawsuit as ?Parties in Interest,? due solely to the fact that certain assets of the Marina Companies may become subject to attachment and trustee process should the Court determine that Plaintiff is more likely than not to succeed on the merits of his claims, and more likely than not to recover the amount sought to be attached. See Complaint; see also 4A and 4B. The Marina Companies are not indispensible or necessary parties pursuant to Rule 19 of the Maine Rules of Civil Procedure, and as such, should be dismissed from this action. Therefore, this Court should dismiss the Marina Companies from this action as Plaintiff has failed to state a claim against them for which relief may be granted. WHEREFORE, the Marina Companies, pray this Court dismiss them from the lawsuit as Plaintiff has failed to state a claim against them for which relief may be granted. Dated at Bangor, Maine, this Zipday of January, 2018. Parties in Interest Blue Marina, LLC and Covered Marina, LLC 5405K ubetz, Esq.? ?Bar #788 unagan Gau, Esq.? ?Bar #6043 0 Exchange Street PO. Box 1210 Bangor, ME 04402-1210 bkubetz@eatonpeabody.com jgau@eatonpeabody.com