With respect to plaintiff's claim for fraud and claims "sounding in fraud," plaintiff moved to dismiss under Rule 9(b) "due to the complete failure to state with particularity the alleged circumstances constituting fraud and the other claims related to or sounding in fraud in Plaintiff s Original Complaint as well as the request for injunctive relief."
Pacquiao also, "independently" moved to dismiss plaintiff's claims for "breach of contract, the tortuous [sic]interference with existing contract and prospective contract relationships, the fraud claims and any claim for injunctive relief" under Rule 12(b)(6) for failure to state a claim for which relief can be granted. The crux of this argument was that "on the face of the Complaint, Plaintiff admits to failing to timely make the second $100,000 payment as required by the contract upon which this suit is based."
As you may recall from my earlier post, plaintiff also sought a temporary restraining order that the Court granted on November 12, 2010.
The TRO provided in relevant part as follows:
That Defendant EMMANUEL PACQUIAO, and Defendant’s officers, agents, servants, employees, and attorneys, and all persons acting in concert with them, are hereby enjoined from transferring, disbursing, distributing, or otherwise secreting funds received by Defendant, or subject to his control, from TOP RANK, INC. ("TOP RANK") and/or any other person or entity, as a result of his contract to fight ANTONIO MARGARITO ("MARGARITO") on November 13, 2010 in Arlington, Texas, in an amount up to $1.5 million, by which accounts for the $1,180,210 sought by Plaintiff as damages by reason of Defendant’s breach of contract, plus attorney fees, costs of suit, and interest, to be held pending further order of this Court;Thus, the TRO entered by the Court tied up part of Pacquiao's purse from the Margarito fight.
The Court set a scheduling conference on November 22, 2010 at 2 p.m and required that plaintiff post a bond of $10,000.
It is not exactly clear from the record what happened at the hearing on November 22, but it is clear that for some reason the Court saw no need to keep in effect the TRO and the Court also decided to transfer the case to another judicial district in Texas. Specifically, the Court's Hearing Minutes and Order provided as follows:
The Temporary Restraining Order will expire at the end of the day for the reasons stated on the record. This action is transferred to the McAllen Division of the Southern District of Texas pursuant to 28 U.S.C. § 1406(a). Plaintiff's bond is to be released at 5:00 p.m. today 11/22/2010.
For those interested, 28 U.S.C. § 1406(a) provides as follows:
(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
An interesting note from the Hearing Minutes and Order is that counsel appearing on behalf of the Dallas Cowboys was present at the hearing.
Fight Lawyer
