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DMK Biodiesel, LLC v. McCoy

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Wednesday, March 6, 2013

S-12-0699, DMK Biodiesel LLC and Lanoha Biofuels LLC (Appellants) v. John McCoy, John Hanson, Phil High, and Renewable Fuels Technology LLC

Buffalo County, Honorable John P. Icenogle

Attorneys: David Domina and Brandon Hanson from DominaLaw Group (Appellants); Daniel Lindstrom and Justin Herrman from Jacobsen, Orr, Lindstrom, & Holbrook (Individual Appellees); Steve Grasz and Andrew Weeks from Husch Blackwell (Appellee – Renewable Fuels Technology)

Civil – Misrepresentation / Fraud; Nebraska Securities Act

Proceedings Below: The district court dismissed DMK Biodiesel and Lanoha Biofuels (plaintiffs) complaint by granting the defendants’ motion to dismiss. In doing so, the district court granted the defendants’ motion to take judicial notice of the private placement memorandum and a subscription agreement. The court determined that these documents “constituted the written agreements of the parties and are an intricate part of the pleadings whether they are set forth by the plaintiff or not.”

Issues: The district court erred in (1) considering matters extraneous to DMK’s complaint without hearing; (2) judicially noticing extraneous material and denying Appellants’ hearing request; (3) rendering summary judgment without a hearing; (4) taking judicial notice of adjudicative facts affecting a determination of controverted issues without hearing; (5) dismissing DMK’s claims and in interpreting Neb. Rev. Stat. § 8-1118(5).


This page was last modified on Thursday, March 7, 2013