Oil Com Uganda v. Wessel Van Tonder

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

OIL COM UGANDA and ISLAM

EDHA ABDALLAH NAHDI,

Plaintiffs,

v. Case No: 2:21-cv-916-JES-NPM

ESTATE OF BRUWER WESSEL VAN

TONDER,

Defendant.

OPINION AND ORDER

This matter comes before the Court on plaintiffs’ Motion for

Preliminary Injunction (Doc. #9), to which defendant responded

(Doc. #14). For the reasons set forth, the motion is DENIED.

I.

The following facts, taken from plaintiffs’ motion, serve as

1

the basis for the request for preliminary relief: On January 18,

2013, plaintiff Oil Com Uganda (OCU), plaintiff Islam Edha Abdallah

Nahdi (Nahdi) (collectively, plaintiffs), and decedent Bruwer

Wessel Van Tonder (Mr. Van Tonder) executed a Shareholders

Agreement related to the ownership of Algae-X International

1

The facts alleged in, and exhibits attached to, the Amended

Complaint and the Verified Motion for Preliminary Injunction

(Motion) are, for the most part, the same. (Compare Doc. #5, ¶¶

6-48 with Doc. #9, ¶¶ 4-41.) The Estate disputes most of the

facts.

2

Corporation (AXI). (Doc. #9, ¶ 9; Doc. #9-2.) Nahdi signed the

agreement on behalf of himself and OCU. (Doc. #9-2, p. 3.) Nahdi

was named President and a director of AXI; Mr. Van Tonder was named

CEO and a director of AXI. (Doc. #9, ¶ 12.) It is undisputed

that, on August 1, 2013, the ownership structure of AXI was the

following: 51% to OCU, 9% to Nahdi, and 40% to Mr. Van Tonder.

(Id. ¶¶ 14-15; Doc. #13, ¶¶ 14-15.)

A. Actions taken by Mr. Van Tonder

Plaintiffs allege that “between 2016 and 2017, Mr. Van Tonder

represented to OCU and NAHDI that Chase Bank was requiring NAHDI’s

name to be removed from the AXI corporate bank accounts because he

is a foreign national and because he is Muslim,” and that OCU and

Nahdi needed to be removed “from public corporate records and as

a signatory to the bank account so Chase Bank would continue doing

business with AXI.” (Doc. #9, ¶¶ 18-19.) Plaintiffs agreed to be

removed from the bank account and public records, but understood

that they would maintain their same ownership interest in AXI.

(Id. ¶¶ 22, 24.)

On October 1, 2017, Mr. Van Tonder executed a Unanimous

Written Consent of the Board of Directors of AXI International

(“Written Consent”), allegedly without Nahdi’s knowledge, which

2

On March 8, 2013, “Algae-X International Corporation”

changed its name to “AXI International Corporation.” (Doc. #9, ¶

13.)

removed Nahdi from the board of directors and terminated Nadhi’s

power in the company. (Id. ¶ 25; Doc. #9-12.) The Written Consent

authorized Mr. Van Tonder and Michael Campbell (Campbell),

3

Secretary of AXI, to “take any and all necessary actions to

effectuate this resolution.” (Doc. #9-12). Although there is a

signature from Nahdi on the Written Consent, plaintiffs state that

the signature is a forgery. (Doc. #9, ¶ 26.) Plaintiffs allege

that after the Written Consent was executed, Mr. Van Tonder “caused

a new corporate book to be created,” “removed the original share

certificates,” and “had a brand new share certificate issued

showing newly issued 200,000 shares (full ownership) of AXI to him

alone.” (Id. ¶ 30.)

From 2013 when the parties purchased AXI until 2018,

plaintiffs transferred approximately $5.95 million USD to Mr. Van

Tonder’s personal bank account for investment into AXI. (Id. ¶¶

33-34.) According to plaintiffs, Mr. Van Tonder did not invest

the money into AXI and, as they later learned, instead used the

money for personal expenses. (Id. ¶ 38.)

B. Mr. Van Tonder’s Death

On September 26, 2021, Mr. Van Tonder committed suicide. (Id.

¶ 42.) Relevant to this case, Mr. Van Tonder’s will provided:

3

It is unclear from the Written Consent whether Campbell

served as CFO in 2017, however, later documents show that Campbell

also is/was CFO of AXI. (E.g., Doc. #14-1, p. 2.)

In the case of my death, I wish the following:

That Islam Edha Abdallah Nahdi inherit AXI

International Corporation on the following

conditions.

-That my spouse, Michelle Marie Van Tonder,

must be paid 2 million dollars.

-AXI International must pay her a salary of

$120,000.00 every year for a total of five

years including healthcare.

-My home on, 3371 Brantley Oaks Drive, Fort

Myers Florida, 33905, must be paid off in full

between Islam Edha Abdallah and my loan

account in AXI International Corporation.

-The Mercedes G 63AMG will go to my spouse,

Michelle Marie Van Tonder.

-Whenever AXI International gets sold, 10% of

purchase price is to be paid to my spouse,

Michelle Marie Van Tonder.

(Doc. #9-16, p. 7.) The will was signed on March 11, 2020 and

witnessed by Campbell and Camille Henry, another person associated

with AXI. (Id. pp. 5-7.) On December 10, 2021, the will was

admitted to the Lee County Circuit Court Probate Division, and

Michelle Marie Van Tonder (Mrs. Van Tonder) was appointed as

4

personal representative of the Estate. (Doc. #9-16.)

On January 3, 2022, Mrs. Van Tonder executed a shareholder’s

resolution, as personal representative of the Estate, which

4

Plaintiffs state that, prior to admitting the will, Mrs.

Van Tonder sent a waiver to Nahdi, requesting that Nahdi

acknowledge that Mr. Van Tonder was the sole owner of AXI. (Doc.

#9-17.) Plaintiffs do not, however, provide an actual date when

the waiver was sent.

appointed Mrs. Van Tonder as president of AXI. (Doc. #9-19.) On

January 20, 2022, plaintiffs executed a similar resolution, naming

Nahdi president and asserting OCU and Nahdi’s 60% ownership

interest in AXI. (Doc. #14-1, pp. 4-5.) Plaintiffs’ counsel sent

the resolution to Ronald Nisonson (Nisonson), corporate counsel

for AXI, and instructed Nisonson that Mrs. Van Tonder’s resolution

“should have no effect whatsoever.” (Id. p. 3.) On January 21,

2022, Nisonson sent Nadhi’s resolution to Mrs. Van Tonder’s

counsel. (Id. p. 2.) Nisonson informed Mrs. Van Tonder’s counsel

that he instructed Campbell to revoke Mrs. Van Tonder’s resolution

and enforce Nahdi’s resolution. (Id.)

On February 4, 2022, Mrs. Van Tonder’s counsel sent Nisonson

an email, which purported to terminate Nisonson’s representation

of AXI and instructed him to preserve ESI. (Doc. #16-1.) On

February 11, 2022, Mrs. Van Tonder’s counsel sent Campbell a notice

of termination of his employment with AXI based on Campbell’s: (1)

refusal to recognize Mrs. Van Tonder’s authority; (2) ignoring his

past sworn statements and prior acknowledgements; and (3)

unilaterally recognizing and taking direction for a third party.

(Doc. #16-2.)

C. Current Litigation

Plaintiffs initiated this action on December 7, 2021 (Doc.

#1) and filed the operative Amended Complaint on December 11, 2021

(Doc. #5). Plaintiffs assert eight counts against the Estate of

Bruwer Wessel Van Tonder (the Estate): (1) fraud; (2) breach of

fiduciary duty; (3) conversion; (4) constructive trust; (5) unjust

enrichment; (6) accounting; (7) permanent injunction; and (8)

declaratory judgment. (Doc. #5.)

The Estate filed a waiver of service on January 24, 2022.

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(Doc. #8.) The next day, plaintiffs filed the pending Motion.

6

(Doc. #9.) On February 4, 2022, the Estate answered the Amended

Complaint and responded to the Motion. (Docs. ## 13, 14.)

Given the parties’ filings, the Court ordered plaintiffs: (i)

to provide briefing on whether the probate exception applied to

this Court’s jurisdiction; and (ii) to provide a proposed order

for the preliminary injunction. (Doc. #15.) The Court also

afforded the Estate the opportunity to respond to plaintiffs’

filing. (Id.) Plaintiffs filed the requested documents. (Doc.

#16.) The Estate filed no response, and the time for filing a

response has passed.

II.

Federal courts “have a ‘virtually unflagging obligation ...

to exercise the jurisdiction given them.’” Ambrosia Coal & Constr.

Co. v. Pages Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (quoting

5

See fn. 1.

6

Plaintiffs supplemented the Motion with a verification,

signed by Nahdi, which declares that the facts as stated in the

motion are true based on personal knowledge. (Doc. #10-1.)

Colorado River Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976)). One exception to this rule “is that a federal

court may not exercise diversity jurisdiction over state probate

matters.” Fisher v. PNC Bank, N.A., 2 F.4th 1352, 1356 (11th Cir.

2021). This so-called “probate exception” is narrow and applies

to cases that require a federal court to: (1) probate or annul a

will; (2) administer a decedent’s estate; or (3) dispose of

property that is in the custody of the state probate court. Id.

(citing Marshall v. Marshall, 547 U.S. 293, 311 (2006); Markham v.

Allen, 326 U.S. 490, 494 (1946)). “The exception does not ‘bar

federal courts from adjudicating matters outside those confines

and otherwise within federal jurisdiction.’” Stuart v. Hatcher,

757 F. App’x 807, 809 (11th Cir. 2018) (quoting Marshall, 547 U.S.

at 311).

“The general rule in determining whether a claim falls under

the probate exception is whether a particular claim and the relief

it seeks [] interfere with the property that is in the possession

of a state probate court.” Catano v. Capuano, No. 18-20223-CIV,

2020 WL 639406, at *3 (S.D. Fla. Feb. 11, 2020) (citing Markham,

326 U.S. at 494) (emphasis in original). “District courts in the

Eleventh Circuit have no jurisdiction over actions seeking a

valuation of estate assets, a transfer of property that is under

probate, or a premature accounting of an estate still in probate.”

Id. (citations omitted). On the other hand, “federal courts can

adjudicate claims relating to state-court probate or estate cases

so long as adjudicating the claim does not require the federal

court to interfere with the property under the control of the state

court.” Id. (citing Markham, 326 U.S. at 494). For example, “‘a

creditor may obtain a federal judgment that he has a valid claim

against the estate for one thousand dollars ... What the federal

court may not do, however, is to order payment of the creditor's

thousand dollars, because that would be an assumption of control

over property under probate.’” Id. (quoting Turton v. Turton, 644

F.2d 344, 348 (5th Cir. 1981) (“the federal court is limited to

declaring the validity of the asserted claims, leaving the

claimants to assert their federal judgments as res judicata in the

probate court”)). The ultimate “question under this most

mysterious and esoteric branch of the law of federal jurisdiction

is what a lawsuit would require a district court to do.” Fisher,

2 F.4th at 1356 (quotation omitted).

7

Based on the information available so far, the Court is

satisfied that the probate exception at least does not apply to

plaintiffs’ claims for fraud (Count I) and breach of fiduciary

duty (Count II). These claims seek money damages for Mr. Van

Tonder’s allegedly wrongful actions and are a focus of plaintiffs’

7

Subject-matter jurisdiction is always a live issue, Fed. R.

Civ. P. 12(h)(3), and additional facts may later show that the

Court lacks jurisdiction over some or all of plaintiffs’ claims.

motion for preliminary injunction. A federal judgment in

plaintiffs’ favor on these claims would not interfere with the

state probate court proceedings. In other words, if plaintiffs

are successful on these claims, plaintiffs will obtain a federal

court judgment “declaring the validity of the asserted claims,”

and would be left to “assert their federal judgment as res judicata

in the probate court.” Turton, 644 F.2d at 347.

III.

A.

“A preliminary injunction is appropriate if the movant

demonstrates all of these elements: (1) a substantial likelihood

of success on the merits; (2) that the preliminary injunction is

necessary to prevent irreparable injury; (3) that the threatened

injury outweighs the harm the preliminary injunction would cause

the other litigant; and (4) that the preliminary injunction would

not be averse to the public interest. Chavez v. Fla. SP Warden,

742 F.3d 1267, 1271 (11th Cir. 2014) (citing Parker v. State Bd.

of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001)).

“The first two factors are ‘the most critical.’” State of Fla. v.

Dep’t of Health & Hum. Servs., 19 F.4th 1271, 1279 (11th Cir. 2021)

(quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). Because the

movant “must meet all four prerequisites to obtain a preliminary

injunction, failure to meet even one dooms” the motion. Wreal,

LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016).

A preliminary injunction is “an extraordinary and drastic

remedy not to be granted unless the movant clearly established the

‘burden of persuasion’” as to each of the four prerequisites.

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citation

omitted). “A preliminary injunction is typically prohibitive in

nature and seeks simply to maintain the status quo pending a

resolution of the merits of the case.” Pritchard v. Fla. High

Sch. Athletic Ass’n, Inc., 371 F. Supp. 3d 1081, 1085 (M.D. Fla.

2019). “When a preliminary injunction is sought to force another

party to act, rather than simply to maintain the status quo, it

becomes a ‘mandatory or affirmative injunction’ and the burden on

the moving party increases.” Haddad v. Arnold, 784 F. Supp. 2d

1284, 1295 (M.D. Fla. 2010) (quoting Exhibitors Poster Exch. v.

8

Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971)).

“Indeed, a mandatory injunction should not be granted except in

rare instances in which the facts and law are clearly in favor of

the moving party.” Id. (collecting cases).

Plaintiffs seek to enjoin the Estate and Mrs. Van Tonder from

“exercising any control over [AXI], its finances[,] or its

personnel.” (Doc. #16-3, p. 12.) The Estate argues this is a

8

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), the Eleventh Circuit adopted as binding

precedent all the decisions of the former Fifth Circuit handed

down prior to the close of business on September 30, 1981.

mandatory injunction, so plaintiffs must be held to a heightened

burden. (Doc. #14, pp. 3-4.) Plaintiffs argue this would simply

maintain the “status quo” because it puts the parties in the “‘last

uncontested status which proceeded the pending controversy.’”

(Doc. #9, p. 10 (quoting Boire v. Pilot Freight Carriers, Inc.,

9

515 F.2d 1185, 1194 (5th Cir. 1975).)

The Court concludes that plaintiffs seek a mandatory

injunction. “There is no ‘particular magic in the phrase “status

quo,”’ and the purpose of a preliminary injunction is ‘to preserve

the court’s ability to render a meaningful decision on the

merits.’” United States v. Stinson, 661 F. App’x 945, 952 (11th

Cir. 2016) (quoting Canal Auth. of State of Fla. v. Callaway, 489

F.2d 567, 576 (5th Cir. 1974)). Plaintiffs are, in essence, asking

the Court to give them complete control of AXI. But the “status

quo” from October 2017 until the present has been AXI under Mr.

Van Tonder’s control. Nevertheless, it is unnecessary to apply a

heightened burden because, as explained below, plaintiffs fail to

establish that they are entitled to the extraordinary and drastic

remedy plaintiffs seek.

9

Boire involved an injunction under the Taft–Hartley Act,

which is not at issue in this case.

B.

(1) Irreparable Harm

“Irreparable harm is the ‘sine qua non of injunctive relief.’”

Oscar Ins. Co. of Fla. v. Blue Cross & Blue Shield of Fla., Inc.,

360 F. Supp. 3d 1278, 1284 (M.D. Fla. 2019) (quoting Siegel, 234

F.3d at 1176). “Importantly, the possibility of an irreparable

injury is not enough.” State of Fla., 19 F.4th at 1279 (citing

Winter v. NRDC, 555 U.S. 7 (2008) (explaining that issuing a

preliminary injunction “based only on a possibility of irreparable

harm” would be “inconsistent” with treating a preliminary

injunction as a an “extraordinary remedy”)). “[T]he asserted

irreparable injury must be neither remote nor speculative, but

actual and imminent.” Siegel, 234 F.3d at 1176 (citations

omitted).

Plaintiffs’ irreparable injuries are purely speculative.

Plaintiffs, in a conclusory fashion, argue that they will be

irreparably harmed if “[the Estate] and MRS. VAN TONDER are

permitted to interfere with the day-to-day operations of AXI.”

(Doc. #9, p. 15.) Plaintiffs also state, when responding to the

Court’s Order requesting briefing on jurisdiction, that their harm

is imminent because “Defendant has attempted to terminate AXI’s

corporate counsel, Ronald S. Nisonson, and AXI’s CFO, Michael

Campbell.” (Doc. #16, ¶ 7.) Plaintiffs, however, provide no

evidence of the actual or imminent harm they will face. Even if

Mrs. Van Tonder became involved in AXI, there is nothing in the

record demonstrating that Mrs. Van Tonder would mismanage

corporate funds or threaten the livelihood of the company.

Even if Mrs. Van Tonder became an officer or director of AXI,

she would owe a fiduciary duty to the corporation and its

shareholders. Chur v. Eighth Jud. Dist. Ct. in & for Cty. of

Clark, 458 P.3d 336, 340 (Nev. 2020); In re Aqua Clear Techs.,

Inc., 361 B.R. 567, 575 (Bankr. S.D. Fla. 2007) (citing Cohen v.

10

Hattaway, 595 So.2d 105 (Fla. 5th DCA 1992)). If Mrs. Van Tonder

mismanaged the company – and plaintiffs prove that they have an

ownership interest in AXI – plaintiffs would be able to seek

compensatory damages against Mrs. Van Tonder for that

mismanagement. Oscar Ins. Co., 360 F. Supp. 3d at 1284 (quoting

Sampson v. Murray, 415 U.S. 61, 90 (1974)) (“‘The possibility that

adequate compensatory ... relief will be available at a later date,

in the ordinary course of litigation, weighs heavily against a

claim of irreparable harm.’”).

10

Neither party discusses choice of law, but both parties

apply Florida law in their briefing. “The Florida Business

Corporation Act provides that the internal affairs of a corporation

are governed by the laws of the state of incorporation.” Mukamal

v. Bakes, 378 Fed. App’x. 890, 896 (11th Cir. 2010) (citing Fla.

Stat. § 607.15015(3)). Based on the pleadings, AXI is a Nevada

corporation. However, because plaintiffs fail to carry their

burden of persuasion for equitable relief, the Court makes no

determination at this time what state law applies to each of

plaintiffs’ claims.

Additionally, construing the factual statements in the Motion

as true, Mr. Van Tonder fraudulently took 100% ownership interest

in AXI on October 1, 2017. Even with the fraudulent takeover of

the shares, plaintiffs acknowledge that they agreed to be taken

off the corporate record books and corporate public records.

Plaintiffs fail to demonstrate how they will be irreparably harmed

now if an injunction is not granted, compared to their status in

AXI over the past four years. For example, there is nothing in

the record that demonstrates that plaintiffs were controlling day-

to-day decisions in AXI since 2017, and that would now stop if

Mrs. Van Tonder took over control. There is nothing in the record

that demonstrates that plaintiffs were receiving shareholder

distributions since 2017, and that would now stop if Mrs. Van

Tonder took over control. Plaintiffs simply fail to demonstrate

any immediate and actual irreparable harm.

(2) Substantial Likelihood of Success on the Merits

Because plaintiffs fail to demonstrate irreparable harm,

their request for injunctive relief fails. The Court will,

however, briefly discuss the other most critical factor:

likelihood of success on the merits. State of Fla., 19 F.4th at

1279 (quoting Nken, 556 U.S. at 434) (“It is not enough that the

chance of success on the merits be better than negligible.”)

Plaintiffs’ motion focuses on their likelihood of success on

the merits of their fraud, breach of fiduciary duty, conversion,

and constructive trust claims. Much like irreparable harm,

plaintiffs fail to make any showing that they are substantially

likely to succeed on any of these claims.

For their fraud claim, plaintiffs argue that they are

substantially likely to succeed on the merits because plaintiffs

“allege[d] facts with sufficient particularity as to the false

11

statements and misrepresentation made by TONDER.” (Doc. #9, p.

11). But, specific allegations of fraud are the minimum

requirements, Fed. R. Civ. P. 9(b), and plaintiffs’ allegations

are not enough to support injunctive relief. Church of Scientology

Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 608

(11th Cir. 1985) (“The record is devoid of any evidence indicating

that this plaintiff established a right to an injunction.

…[Plaintiff] would have us hold that it was entitled to preliminary

injunctive relief as a matter of law solely on the basis of its

naked allegations.”)

Plaintiffs fail to provide or cite to anything in the record

to support their naked allegations of fraud. Plaintiffs provide

no declaration or documents tending to establish the “who, what,

when, where, and how,” of their underlying fraud claim. Garfield

11

The Court notes that “TONDER” is defined as the Estate

(Doc. #8, ¶ 48), and there is no claim that the Estate, or Mrs.

Van Tonder as personal representation, made any misrepresentations

to plaintiffs.

v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006); Fed. R.

Civ. P. 9(b). The only evidence currently in the record is a

verification page attached to the end of plaintiffs’ Motion. (Doc.

12

#10-1). In this one-page verification, Nadhi declares that,

based on his personal knowledge and under penalty or prejudice: “I

have read the foregoing Motion for Preliminary Injunction attached

thereto, and the facts stated in it are true.” (Id.) This one-

page document does little to show that plaintiffs are entitled to

the extraordinary relief sought. See e.g., CS Bus. Sys., Inc. v.

Schar, No. 5:17-CV-86-OC-PGBPRL, 2017 WL 1449683, at *2 (M.D. Fla.

Mar. 31, 2017), report and recommendation adopted, No. 5:17-CV-

86-OC-40PRL, 2017 WL 1426627 (M.D. Fla. Apr. 21, 2017) (recognizing

a verification page fails to comply with procedural rules for

moving for a preliminary injunction).

Plaintiffs’ breach of fiduciary duty claim is based on the

same alleged facts as the fraud claim. (Doc. #12, pp. 12-13.)

12

Plaintiffs do attach the allegedly forged Written Consent

as evidence of fraud. (Doc. #9-12). Plaintiffs state that “[u]pon

information and belief, Mr. Van Tonder forged NAHDI’s signature

without NAHDI’s consent.” (Doc. #9, ¶ 28.) This is not enough to

carry plaintiffs’ burden of persuasion. See Touchston v.

McDermott, 120 F. Supp. 2d 1055, 1059 (M.D. Fla. 2000), aff’d, 234

F.3d 1133 (11th Cir. 2000) (quoting 11A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2949 (2d ed.

1995)) (““[W]hen the primary evidence introduced is an affidavit

made on information and belief rather than on personal knowledge,

it generally is considered insufficient to support a motion for

preliminary injunction.’”).

Plaintiffs again fail to cite anything in the record, or otherwise

provide any evidence outside their naked allegations and one-page

verification which could demonstrate a substantial likelihood of

success on this claim.

Plaintiffs lastly rely on their conversion and constructive

trust claims as a basis for equitable relief, which are based on

the “approximate $5.95 million USD” transferred from plaintiffs to

Mr. Van Tonder’s personal bank account between 2013 and 2018.

(Doc. #9, ¶ 33.) An essential element of both of these claims is

that the property at issue plaintiffs $5.95 million USD

—

transferred over a five-year period is specific and

13 —

identifiable. Other than plaintiffs’ naked assertions,

13

For conversion claims, see, e.g., IberiaBank v. Coconut 41,

LLC, 984 F. Supp. 2d 1283, 1306 (M.D. Fla. 2013), aff’d, 589 F.

App’x 479 (11th Cir. 2014) (citations omitted) (Florida conversion

claim for money requires “specific and identifiable money”);

Hester v. Vision Airlines, Inc., No. 2:09-CV-0117-RLH-RJJ, 2011 WL

856871, at *3 (D. Nev. Mar. 9, 2011) (applying Nevada law) (money

may be basis of conversion claim “[w]here the money, or the

specific amount of money, if identifiable”).

For constructive trust claims, see, e.g., Finkelstein v. Se.

Bank, N.A., 490 So. 2d 976, 983 (Fla. 3d DCA 1986) (““[I]t is well

settled that Florida courts will impress property with a

constructive trust only if the trust res is specific, identifiable

property or if it can be clearly traced in assets of the defendant

which are claimed by the party seeking such relief.”); Danning v.

Lum’s, Inc., 86 Nev. 868, 871, 478 P.2d 166, 167 (1970) (affirming

dismissal of complaint that failed to state a specific res upon

which a constructive trust could be imposed). See also Great-W.

Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002)

(describing in dicta that property or money must “clearly be traced

plaintiffs provide zero evidence, such a bank transfer statements,

demonstrating identifiable property. Plaintiffs fail to carry

their burden of showing a substantial likelihood of success on

these claims.

(3) Conclusion

Plaintiffs have not demonstrated the two most critical

elements - a substantial likelihood of success and irreparable

harm. Given plaintiffs’ failure to meet their burden, the Motion

is denied.

Accordingly, it is now

ORDERED :

Plaintiffs’ Motion for Preliminary Injunction (Doc. #9) is

DENIED.

DONE and ORDERED at Fort Myers, Florida, this 28th day

of February, 2022.

) = PL

ff eho ee Ah Look

JQGHN E. STEELE

si IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record

to particular funds or property in the defendant’s possession” to

form the basis of a constructive trust or equitable lien).