BACKGROUND

23 Odyssey Reinsurance Company is a property and casualty insurer and 24 reinsurer based and incorporated in Connecticut. (ECF No. 1 (“Compl.”), 1 (¶ 1).) 25 26

27 28 1 Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page 1 Cal-Regent Insurance Company was a California insurance corporation based in 2 El Cajon. (Id. at 3 (¶ 8).) It was co-owned by Richard Nagby and his ex-wife 3 Dianne Dostalik. (Id. (¶ 7).) 4 After a series of reinsurance deals fell through and Cal-Regent refused to 5 pay its debt under the contracts, Odyssey sued Cal-Regent in the District of 6 Connecticut. (Id. (¶ 9).) The court entered judgments against Cal-Regent and for 7 Odyssey in the amount of $3,200,000. (Id.) Around the same time, Nagby and 8 Dostalik transferred Cal-Regent’s business to a new corporation, Pacific Brokers 9 Insurance Services . (Id. (¶ 10).) They thereafter sold Pacific Brokers to AmTrust 10 North America, Inc., an unrelated third party, in a deal that included a $2,500,000 11 down payment to Dostalik. (Id.) 12 Odyssey then filed suit in this Court to enforce the District of Connecticut’s 13 judgment. (Id. at 3–4 (¶ 11) (citing Odyssey Reinsurance Company v. Nagby et. 14 al., Case No. 3:16-cv-03038-BTM-WVG).) It named, among others, Dostalik and 15 Pacific Brokers and claimed that the AmTrust deal was void as a fraudulent 16 transfer. (Id.) 17 During the course of those proceedings, Odyssey discovered Dostalik was 18 in the process of selling her home in El Cajon and sought a temporary restraining 19 order preventing her from selling the property. (Id. (¶ 14).) On November 7, 2018, 20 the Court granted the TRO and ordered that, if the El Cajon property is sold, all 21 sale proceeds must be deposited in the court registry after deducting the first 22 mortgage and certain taxes and fees. (Id. at 4–5 (¶ 15); Case No. 3:16-cv-03038, 23 ECF No. 194.) 24 In April 2019, while the TRO was in effect, unbeknownst to Odyssey, Dostalik 25 received a $144,375 loan secured in the El Cajon property from Unison. (Compl., 26 6 (¶ 19).) In exchange, Dostalik would repay that amount, plus half of any 27 appreciation in the value of the El Cajon property when sold. (Id.) Unison recorded 28 its agreement with Dostalik, a deed of trust and security agreement, and an 1 assignment with the San Diego County Recorder. (Id. at 6–7 (¶¶ 20–21).) 2 A few months later, after finding Dostalik in contempt for failing to pay certain 3 funds into the court registry, the Court converted the TRO into a preliminary 4 injunction. (Compl., 5 (¶ 16); Case No. 3:16-cv-03038, ECF Nos. 287, 288.) 5 On August 30, 2019, the Court entered its judgment awarding Odyssey 6 $3,208,150.68 in damages against Dostalik and set forth the following conditions 7 on the sale of the El Cajon property: 8 3.2 Upon sale of the real property at 2201 Weld Boulevard, City of El Cajon, County of San Diego, State of California, having APN 386-652- 9 33-00, the sales proceeds shall be paid to the registry of the United 10 States District Court, Southern District of California, after deducting:

11 3.2.1 Any unpaid real property taxes and assessments then due 12 and owing; 3.2.2 All sums secured by the existing first mortgage; 13 3.2.3 Brokerage commission; 14 3.2.4 Prorations, escrow fees, and closing costs

15 the proceeds of which shall be held pending a determination by the 16 Court as to what extent, if any, they should be applied to satisfaction of this Judgment. 17 (Compl., 5 (¶ 17); Case No. 3:16-cv-03038, ECF No. 325.) Odyssey filed an 18 abstract of judgment with the San Diego County Clerk on September 9, 2019. 19 (Compl., 5 (¶ 17).) 20 In December 2019, after Dostalik absconded and the Court issued a warrant 21 for her arrest, she entered into a contract for the sale of the El Cajon property. (Id. 22 at 7–8 (¶ 22–27).) It appears that Dostalik did not disclose the TRO or injunctions 23 to the buyers. (Id. at 8 (¶ 25).) Odyssey permitted the sale to proceed, and on 24 March 17, 2020, sent a letter to escrow demanding that the net sale proceeds be 25 deposited to the Court’s registry and reserving its right to take action against 26 Unison if it received any sale proceeds. (Id. (¶ 26), 87–88 (Ex. 9).) 27 On April 7, 2020, escrow on the El Cajon property closed. (Id. (¶ 27).) 28 1 Odyssey alleges that Unison and/or one of its related entities, Odin LP or Odin GP, 2 received $144,675 from escrow. (Id.) The remaining proceeds were disbursed to 3 the Court’s registry. (Id. ¶ 28.) 4 On January 5, 2021, initiated the present suit. Unison, Odin LP, and Odin 5 GP now move to dismiss the complaint for failure to state a claim. (Mot.) The 6 Court held oral argument on June 23, 2021. 7

STANDARD OF REVIEW

8 Under Federal Rule of Civil Procedure 8, each pleading must include “a short 9 and plain statement of the claim showing that the pleader is entitled to relief” and 10 “give the defendant fair notice of what the . . . claim is and the grounds upon which 11 it rests.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 12 Fed. R. Civ. P. 8(a)(2)). “Each allegation must be simple, concise, and direct.” Id. 13 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state 14 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal 15 under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal 16 theory or sufficient facts to support a cognizable legal theory. See Balistreri v. 17 Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). 18 A complaint may survive a motion to dismiss only if it contains enough facts 19 to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility 21 when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 23 “Threadbare recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a 25 motion to dismiss, the non-conclusory factual content, and reasonable inferences 26 from that content, must be plausibly suggestive of a claim entitling the plaintiff to 27 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations 28 1 omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts 2 alleged in the complaint and draws all reasonable inferences in favor of the plaintiff. 3 al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 4 Where a motion to dismiss is granted, “[l]eave to amend should be granted 5 unless the pleading ‘could not possibly be cured by the allegation of other facts.’” 6 Velez v. Cloghan Concepts LLC, 387 F. Supp. 3d 1072, 1078 (S.D. Cal. 2019) 7 (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)). 8

DISCUSSION

9 Unison contends that dismissal is warranted because (1) Odyssey did not 10 allege that either Odin party engaged in wrongdoing, (2) neither the TRO or 11 preliminary injunction prohibited Dostalik from entering into a contractual 12 relationship with Dostalik, and (3) Unision’s deed of trust had lien priority over 13 Odyssey’s abstract of judgment under California law because it was recorded first. 14 (Mot.) Odyssey opposes on the grounds that its claims are based on the Court’s 15 judgment and injunctions, which specifically enjoined “all those acting in concert” 16 with Dostalik and that California law gives its claim priority over Unison’s. (ECF 17 No. 12.) 18 The Court grants the motion to dismiss. Though the factual allegations 19 underpinning Odyssey’s complaint are clear, the Court cannot decipher the 20 specific claims it is asserting. (Compl., 9–10 (¶¶ 29–36.) The Court is unsure what 21 claims Odyssey is asserting and oral argument did not resolve the ambiguity. At 22 oral argument, Odyssey argued that it is suing to enforce the judgment but then it 23 said it was suing for conversion. It also argued the second cause of action may 24 be moot because it is not moving for contempt. Accordingly, Odyssey has not 25 provided fair notice of its claims and dismissal without prejudice is warranted. See 26 Twombly, 550 U.S. at 555. 27 28 1 CONCLUSION 2 For the reasons discussed above, the Court GRANTS the motion to 3 dismiss WITHOUT PREJUDICE. The Court GRANTS Odyssey leave to amend 4 complaint within 30 days of the entry of this order. Unison, Odin LP, and Odin 5 || GP shall file a response to the amended complaint within 21 days of the service 6 || of any amended complaint. 7 || IT IS SO ORDERED. 8 Dated: June 23, 2021 9 mo 40 Honowble Barry Ted he United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28