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Kabushikigaisha v. AGU Ramen, LLC

United States District Court, D. Hawaii

July 15, 2019

HANNAN RIBIYOU KABUSHIKIGAISHA, Plaintiff,
v.
AGU RAMEN, LLC; HISASHI TEDDY UEHARA; AGU ISENBERG, LLC, Defendants.

          ORDER GRANTING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER; TEMPORARY RESTRAINING ORDER

          J. Michael Seabright, Chief United States District Judge.

         Before the court is Plaintiff HANNAN RIBIYOU KABUSHIKIGAISHA's (“Plaintiff”) Ex Parte Motion for Temporary Restraining Order (“Motion”). For the following reasons, the Motion is GRANTED.

         I. BACKGROUND

         A. Factual Background

         Plaintiff is 90% owner of AGUPlus, with the remaining 10% owned by Defendant AGU RAMEN, LLC (“Agu Ramen”). Defendant Hisashi Teddy Uehara is Agu Ramen's sole member and manager. AGUPlus operated six Agu Ramen restaurants in Hawaii, all located on Oahu.

         Effective July 28, 2016, Plaintiff and Uehara (on behalf of Agu Ramen) executed an “AGUPlus LLC Second Amended and Restated Operating Agreement” (“Operating Agreement”).[1] Pursuant to Article 4.1, the following matters, among others, required the unanimous vote of both Plaintiff and Agu Ramen: the dissolution of AGUPlus; the merger or consolidation of AGUPlus with any other organization; the participation in business entities with any individual or other business entity, or the creation of any subsidiary, affiliated organization, or other legal entity; the approval of AGUPlus's engagement in any new restaurant or branch; the filing of bankruptcy; and any financing extended to AGUPlus in excess of $50, 000.

         In late 2018, AGUPlus began to experience financial distress. As a result, Plaintiff invested an additional $1, 401, 820 into AGUPlus, with that investment increasing Plaintiff's ownership to 90%. This infusion of cash, however, was insufficient. For example, at some point in 2019 AGUPlus employees were not paid, and AGUPlus received notices of default for three of the Oahu restaurants in early to mid June, 2019.

         On June 22, 2019, AGU ISENBERG LLC (“Agu Isenberg”) was registered with the State of Hawaii Department of Commerce and Consumer Affairs Business Registration Division (“DCCA”), with its manager listed as Grant K. Kidani, Esq. In a June 26, 2019 email to various individuals, Uehara wrote that “AGU Isenberg is proceeding onward with a new commitment by new investors that support all of you; thank you for your continued patience and commitment as we move forward. Your support is appreciated!”

         The next day, Uehara sent an email to Chris Young of Automatic Data Processing stating that effective July 1, 2019, AGU Isenberg is under a “new owner, ” that payroll should be under a different company from AGUPlus, and that “[w]e need to change account.” Then, in a July 1, 2019 email, with the subject line “bank account, ” Uehara wrote “[n]ew bank account number at FHB, with the account number listed (but redacted in the copy submitted to the court).”

         On July 8, 2019, in response to Plaintiff's July 5, 2019 cease and desist letter, Uehara stated that his actions were “taken in the best interest of AGU” and that, “[j]ust to clarify, though Isenberg may be under a different entity, I consider it AGU property.”

         Plaintiff has not authorized the creation of AGU Isenberg or the transfer of ownership of the AGUPlus Isenberg restaurant to AGU Isenberg.

         B. Procedural History

         Plaintiff filed its complaint and Motion on July 12, 2019.[2] The complaint alleges the following: Breach of Fiduciary Duty (Count 1 as to Defendants Agu Ramen and Uehara); Expulsion of Member Pursuant to Hawaii Revised Statutes § 428 (Count 2 as to Defendant Agu Ramen); Breach of Contract: Operating Agreement (Count 3 as to Defendants Agu Ramen and Uehara); Tortious Interference with Contractual Relations (Count 4 as to Defendant Agu Isenberg); Intentional Misrepresentation/Nondisclosure (Count 5 as to Defendants Agu Ramen and Uehara); Fraud and Fraudulent Transfer (Count 6 as to Defendants Agu Ramen and Uehara); Constructive Fraud (Count 7 as to Defendants Agu Ramen and Uehara); Civil Conspiracy (Count 8 as to all Defendants); Unjust Enrichment (Count 9 as to all Defendants); Accounting (Count 10 as to all Defendants); and Injunctive Relief (Count 11 as to all Defendants).

         On July 14, 2019, the court required Plaintiff to file a supplemental statement clarifying whether Plaintiff has met the requirements of Federal Rule of Civil Procedure 65(b)(1) for the issuance of a TRO without notice to Defendants. Plaintiff responded that Defendants were notified, and the court ...


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