Jardin Hill V New City Advisors, S.D. Ohio 18-187, Complaint

Case: 1:18-cv-00187-MRB Doc #: 1 Filed: 03/15/18 Page: 1 of 40 PAGEID #: 1
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
CINCINNATI DIVISION
Jardin Hill, LLC, Statutory Agent Gary K. Chan CASE NO.: ___________________
899 N Orange Avenue, Unit 301
Orlando, FL 32801 USA JUDGE: _________________________
and
Mr. Terry Chan

735 Edgewater Drive
Orlando, FL 32804 USA
and
Mrs. Jacquelyn Chan

735 Edgewater Drive
Orlando, FL 32804 USA
Plaintiff,
-vs- CIVIL COMPLAINT -

WITH REQUESTS FOR JURY TRIAL,
New City Advisors, LLC (Defendant 1) DECLARATIVE JUDGMENT, AND
1999 S. Bascom Avenue, Suite 700 INJUNCTIVE RELIEF
Campbell, CA 95008
and
Lili Wang (Defendant 2)

1999 S. Bascom Avenue, Suite 700
Campbell, CA 95008
and
Yannan Wang (Defendant 3)

1999 S. Bascom Avenue, Suite 700
Campbell, CA 95008
and
Karen Zhou (Defendant 4)

506-1, Guanghua Chang'an Building, No.7
Jiangguomen Inner Street, Dongcheng District,
Beijing, China 100001
1
and
Yuqi “Richard” LIN (Defendant 5)

303-1-403, No. 28, Guangqu Road
Chaoyang District, Beijing, China 100025
and
ZHENG Xiaoling (Defendant 6)

9-19-28 Jinshuidong Road
Zhenzhou, Henan, China 450000
and
SONG Chao (Defendant 7)

No. 2 Mingzhu Road, Longhua District
Haikou, Hainan Province, China 570100
and
CHEN Yuhong (Defendant 8)

8-2-17 Phase 2 Ludilaojie
Zhengdong New District
Zhengzhou, Henan, China 450002
and
WEI Chen (Defendant 9)

Rm403, Gate 3, Building 2
No. 24 Yuetan West Street
Xicheng District
and
ZHAO Bingtao (Defendant 10)

Room 101, Unit F, Building 6, Cuizhuyuan
Sijihuacheng, Long’gang District
Shenzhen City, Guangdong Province, China
058000
and
SHA Li (Defendant 11)

Rm 501, #7, Ave 38, XianHuaXiao Road
Changning District, Shanghai, China 200052
2
and
DU Xinmiao (Defendant 12)

Room 1506, Bldg. #10, SanQu Zhao Feng Yuan
Fengtai District, Beijing, China 100040
and
YOU Chanyuan (Defendant 13)

Room 303, Unit 3, Building 19
No. 33 Yard, Yingbin Road, Fengtai District
and
YUE Lili (Defendant 14)

No. 701, Unit 5, Building 4
No. 2 Yard, Xiangluying Lane, Xuanwu District
and
LIU Guangsheng (Defendant 15)

2-8-73 North Fuhua Street
Zhengzhou, Henan, China 450000
and
LI Bianfeng (Defendant 16)

18B Unit 2 Building 4, Shiji Xinjing Residential
Community
Yard No. 9 of Beiwa Road, Haidian District
and
CHENG Xiaoyi (Defendant 17)

M303, LanBao, West Dawang Road
and
QIN Ling (Defendant 18)

80 Vinton Street
Providence, RI 02906 USA
3
and
ZHANG Yunsheng (Defendant 19)

1510 South Short Drive, Apt. B2
East Lansing, MI 48823, USA
and
John Cannizzaro c/o Padre Grill, LLC

(Defendant 20)
450 Beach Street
San Francisco, CA, 94133
and
Ryan Wilmer c/o Padre Grill, LLC

(Defendant 21)
450 Beach Street
San Francisco, CA, 94133
and
Green Bank, N.A. (Defendant 22)

4000 Greenbriar Drive
Houston Texas 77098
and
Rodizio Corporate dba Phoenix Franchise

Group, LLC, President and Statutory Agent Ivan
Utrera (Defendant 23)
9829 S 1300 E, Suite 302
Sandy, Utah 84094,
and
Phoenix Restaurant Group, LLC, President and

Statutory Agent Ivan Utera (Defendant 24)
9829 S 1300 E, Suite 302
Sandy, Utah 84094,
and
Ivan Utera (Defendant 25)

9829 S 1300 E, Suite 302
Sandy, Utah 84094,
4
and
All other John or Jane DOES (cumulatively

known herein as Defendant 26) as yet to be named
who either as corporations, business
associations, sole proprietorships,
individuals, agents or employees thereof,
whose names are unknown but shall be
ascertained through discovery, are
necessary and proper parties to this action,
Defendants.
TABLE OF CONTENTS
Section Description Paragraph/s Page
I. Jurisdictional and Venue Analysis, plus Green Bank’s

Interpleader Complaint 1-10 6
a. Jurisdiction 1-3 6
b. Venue 4 6
c. Green Bank’s Interpleader Complaint 5-13 7
II. Parties 14-28 8
a. Plaintiffs 14-17 8
b. Defendants 17-29 9
III. Facts Pertinent to All Named Defendants and all Causes of Action 30-115 11
a. The EB-5 Program 31-38 11
b. The History Between the Plaintiffs and Defendants 39-115 14
IV. Recitation of Causes of Actions 116-182 27
a. First Cause of Action: Violations Of 8 U.S.C. §1330(B)(2) 116-118 27
b. Second Cause of Action: Breach of Contract 119-135 27
c. Third Cause of Action: Tortious Interference with Contract 136-145 30
d. Fourth Cause of Action: Negligent 146-153 32
e. Fifth Cause of Action: Fraud/Fraud in the Inducement 154-164 33
f. Sixth Cause of Action: Civil Assault 165-170 35
g. Seventh Cause of Action: Temporary Injunction 171-178 36
h. Eighth Cause of Action: Declarative Judgment 179-181 38
V. Request for Relief or Remedy 182-195 38
a. Temporary Injunctive Relief 182-185 38
b. Statutory and Common Law Damages 186-192 39
c. Declarative Judgment/Release of Escrowed Funds 193-194 40
d. General Remedy 195 40
VI. Request for Jury Trial 196 40
5
NOW COME the Plaintiffs, by and through the undersigned legal counsel, and for its Civil
Complaint state the following;
I. JURISDICTIONAL AND VENUE ANALYSIS, PLUS GREEN BANK’S

INTERPLEADER COMPLAINT
a. Jurisdiction
1. This Court has the duty to consider subject matter jurisdiction sua sponte in every case, whether
the issue is raised by the parties or not. every federal appellate court has a special obligation to
'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under
review,' even though the parties are prepared to concede it." Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986) [quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)]; see
also Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that
the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). Spencer
Enterprises, Inc. v. U.S., 345 F.3d 683, 687 (Cir. 2003).
2. In the case at bar, jurisdiction over claims brought under EB-5 Immigrant Investor Program and
supervised by the United States Citizenship and Immigration Services (hereafter “USCIS”) are
under federal jurisdiction, pursuant to 17 U.S.C. §240 et. seq. and all other related Securities and
Exchange Commission (hereafter “SEC”) regulations.
3. There are also common law violations under breach of contract and breach of fiduciary duty as
well which may be heard by this court as long as the one federal claim is found actionable.
Jurisdiction over the state law claims is conferred by 28 U.S.C. §1367.
b. Venue
4. Venue is proper in this division since part of the events comprising this matter took place in
the southern district of Ohio.
6
c Green Bank’s Interpleader Case (4:18-cv-00465)
5. On February 15, 2018, prior to the filing of this Complaint, Defendant 22 Green Bank filed a
diversity of citizenship Interpleader Action under 28 U.S.C. §1332 in the U.S. District Court,
Southern District of Texas, Houston Division (Case No.: No. 4:18-cv-00465).
6. An interpleader actions is an equitable proceeding brought by a third person to have a court
determine the ownership rights of rival claimants to the same money or property that is held by
that third person.1
7. In the case at bar, the Plaintiffs proffer that the filing of 4:18-cv-00465 was improper as it was not
ripe for consideration. In their complaint, Green Bank, N.A specifically stated that
“Section 6(a) of the Escrow Agreement provides that in the event of any disagreement
resulting in adverse claims or demands being made in connection with any funds
covered by the Escrow Agreement, Green Bank has the right to tender the funds into
the registry of any court of competent jurisdiction and may take such legal action as
may be appropriate or necessary, in the opinion of Green Bank or its legal counsel.”
(Interpleader Complaint, ¶43; emphasis added).
8. Here, there is no formal disagreement resulting in adverse claims or demands being made in
connection with any funds covered by [this] Escrow Agreement. To-date, no formal legal action
has been filed between any adverse parties and, except for the foregoing Complaint, no other action
has been docketed with any court of competent jurisdiction.
9. The Interpleader Complaint also states that a request for disbursement of the escrowed funds was
made on or about December 18, 2017, by “…an individual by the name of Yuqi “Richard” Lin
1
Fed. R. Civ. Pro. 22(a) Grounds (for filing an interpleader action).
(1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as
defendants and required to interplead. Joinder for interpleader is proper even though:
(A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse
and independent rather than identical; or
(B) the plaintiff denies liability in whole or in part to any or all of the claimants.
(2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or
counterclaim.
7
(who is also one of the Investors) [and] was not one of the persons authorized to sign on behalf of
RG Opportunities according to the certificate of incumbency previously provided to [the Escrow
Administrator] and Green Bank.” Interpleader Complaint, ¶11.2
10. By definition, an unauthorized signer cannot make a legitimate claim on the subject escrowed
funds.
11. Interpleader is employed when two or more parties seek ownership of money or property that
is held by a third party. Black’s Legal Dictionary, 7th Ed. The inference in that definition is that
the “two or more parties” are actually legitimate and lawful parties.
12. Therefore, though Green Bank might be reasonable in copiously protecting its right at lawful
disbursement and also in minimizing its own legal exposure in this matter, their formal claim is at
this time mute since there is no controversy between authorized parties.
13. Due to the subject interpleader complaint being premature, it is not ripe for consideration and
should be declared either subsidiary to the foregoing Complaint; if not null and void on its face.
II. PARTIES
a. Plaintiffs
14. Named Plaintiff, Jardin Hill, LLC is a foreign Limited Liability Corporation, incorporated in the
State of Ohio USA (Entity #2265414, filed on February 3, 2014). The statutory agent for Jardin
Hill, LLC is Mr. Gary Chan, a citizen of the United States currently living in Orlando, Florida.
Jardin Hill, LLC is a member of Lumen Point Capital Fund I, LLC, which is a member of RG
MGMT, LLC, the General Partner for RG Opportunities I, LP.
15. Named Plaintiff Mr. Terry Chan, is a citizen of the United States, currently residing in Orlando,
Florida.
2
The named Richard Lin is Defendant 2 in this Complaint
8
16. Named Plaintiff Ms. Jacquelyn Chan, is a citizen of the United States, current residing in Orlando
Florida, USA.
b Defendants
17. Named Defendant, New City Advisors LLC (as Defendant 1 and hereafter termed “NCA”) is a
United States-filed corporation, incorporated in Delaware USA (File #5386610) and
headquartered near San Jose, California (Entity #20141310249).
18. Named Defendant, Lili Wang (as Defendant 2 and hereafter termed “Lili Wang”), is a Managing
Partner of New City Advisors, and is a citizen of the United States, currently living near San Jose,
California.
19. Named Defendant, Yannan Wang (as Defendant 3 and hereafter termed “Yannan Wang”), is a
Managing Partner of New City Advisors, and is a citizen of the United States, currently living near
San Jose, California.
20. Named Defendant, Karen Zhou (as Defendant 4 and hereafter termed “Karen Zhou”), is a
Managing Partner of New City Advisors, and is a citizen of the People’s Republic of China,
currently living in Beijing, China.
21. Named Defendant, “Richard” Lin Yuqi (Defendant 5 and hereafter termed “Richard Lin”) is an
established investor and agent who is experienced in the American EB-5 Immigrant Investor
Program, who has stated that he personally represents the business interests of Defendants 6
through 19 and Defendant 22, and currently lives in Beijing, China.
22. Named Defendants 5 through 17 are individual investors, all of whom are put personal funds into
the investments pertinent to the American EB-5 Program for the case at bar, and all of whom
currently live in China.
9
23. Named Defendants 18 and 19 are individual investors, both of whom are put personal funds into
the investments pertinent to the American EB-5 Program for the case at bar, and both of whom
dba Phoenix Restaurant Group,
24. Named Defendants 20 and 21, individually or in partnership own Padre Grill, LLC, had financial
dealings with the named Plaintiffs that are in controversy in the case at bar and are based in San
Francisco, California, United States.
25. Named Defendant Green Bank, N.A. of Houston, Texas (hereafter “Defendant 22), is the bank in
which the subject escrowed investment funds are housed. Defendant 22 has recently filed an
interpleader complaint (4:18-cv-00456) which the Plaintiff’s proffer is unripe for consideration.
26. Named Defendant Rodizio Corporate LLC dba Phoenix Franchise Group, LLC, Statutory Agent
Ivan Utrera (hereafter “Defendant 23”) is the franchishor of the three (3) subject Rodizio Grill
restaurants that are the subject of the mentioned investments for the EB-5 Program; based in Utah,
United States.
27. Named Defendant Phoenix Restaurant Group, Statutory Agent Ivan Utrera (hereafter “Defendant
24”) is a corporate entity based in Utah, United States.
28. Named Defendant Ivan Utero (hereafter ”Defendant 25”) is the President of Defendants 23 and
24, but also has acted separately in his own right within the context of this Complaint. Mr. Utero
is based in Utah, United States.
29. Named Defendant Jane and/or John Does (hereafter collectively “Defendant 26”) had yet-
unknown involvement with the subject matter. Their names are unknown but shall be ascertained
through discovery and are either responsible for the damages suffered by the Plaintiff and/or
were/are agents, employees and/or servants of any of the other Defendants that were identified or
referred to, directly or indirectly, in this lawsuit.
10
III. FACTS PERTINENT TO ALL NAMED DEFENDANTS AND ALL CAUSES OF ACTION
30. The Plaintiff hereby incorporates by reference the allegations set forth in Paragraphs 1 through 29.
a. The EB-5 Program
31. The program allows foreign investors to obtain permanent lawful United States resident status
under the Immigration and Naturalization Services' (INS) EB-5 classification. Immigration Law
Group, LLP v. McKitrick, 484 F.3d 998, 1000 (Cir. 2007). Created in 1990, the EB-5 program
offers special American visas to wealthy foreigners who invested between $500,000 and $1
million in business ventures employing at least 10 American workers. See 8 U.S.C.
§1153(b)(5)(A).3 After meeting certain conditions, the foreign investor eventually could receive
permanent resident alien status. See 8 U.S.C. § 1186b. Cited in Perlman v. U.S. Dept. of Justice,
312 F.3d 100, 103 (Cir. 2002).
32. The Immigrant Investor (or “EB-5”) Program, established by the Immigration and Nationality
Act ("INA"), allows aliens to receive permanent resident status upon the investment of a specified
amount of capital and the creation of at least ten full-time jobs in the United States. 8 U.S.C.
§1153(b)(5). Ordinarily, the alien must invest $1,000,000; however, if the investment is made in
a "targeted employment area" with an unemployment rate of 1.5 times the national average, only
$500,000 need be invested. Id.; see also 8 C.F.R. §204.6(f)(2).
3
8 U.S.C. §1153(b)(5) Employment creation states…(A)In general visas shall be made available, in a number not to
exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose
of engaging in a new commercial enterprise (including a limited partnership)—(i) in which such alien has invested
(after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount
specified in subparagraph (C), and (ii) which will benefit the United States economy and create full-time employment
for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants
lawfully authorized to be employed in the United States (other than the immigrant and the immigrant’s spouse, sons,
or daughters).
11
33. In applying for an EB-5 visa, an alien entrepreneur must submit an I-526 petition and supporting
documentation demonstrating that the required capital has been committed; that the investment is
made from the alien's own lawfully acquired funds; and, if applicable, that the investment is being
made in a targeted employment area with a high unemployment rate.4 If the ten full-time jobs
4
8 C.F.R.§204.6 Petitions for employment creation aliens states in pertinent part…
(a) General. A petition to classify an alien under section 203(b)(5) of the Act must be filed on Form I-526,
Immigrant Petition by Alien Entrepreneur.
(f) Required amounts of capital - (1) General. Unless otherwise specified, the amount of capital necessary to make a
qualifying investment in the United States is one million United States dollars ($1,000,000). (2) Targeted employment
area. The amount of capital necessary to make a qualifying investment in a targeted employment area within
the United States is five hundred thousand United States dollars ($500,000). (3) High employment area. The amount
of capital necessary to make a qualifying investment in a high employment area within the United States, as defined
in section 203(b)(5)(C)(iii) of the Act, is one million United States dollars ($1,000,000).
(g) Multiple investors - (1) General. The establishment of a new commercial enterprise may be used as the basis of
a petition for classification as an alien entrepreneur by more than one investor, provided each petitioning investor
has invested or is actively in the process of investing the required amount for the area in which the new commercial
enterprise is principally doing business, and provided each individual investment results in the creation of at least ten
full-time positions for qualifying employees. The establishment of a new commercial enterprise may be used as the
basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise,
including persons who are not seeking classification under section 203(b)(5) of the Act and non-natural persons, both
foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been
derived by lawful means.(2) Employment creation allocation. The total number of full-time positions created for
qualifying employees shall be allocated solely to those alien entrepreneurs who have used the establishment of
the new commercial enterprise as the basis of a petition on Form I-526. No allocation need be made among persons
not seeking classification under section 203(b)(5) of the Act or among non-natural persons, either foreign or domestic.
The Service shall recognize any reasonable agreement made among the alien entrepreneurs in regard to the
identification and allocation of such qualifying positions.
(h) Establishment of a new commercial enterprise. The establishment of a new commercial enterprise may consist of:
(1) The creation of an original business; (2) The purchase of an existing business and simultaneous or subsequent
restructuring or reorganization such that a new commercial enterprise results; or (3) The expansion of an existing
business through the investment of the required amount, so that a substantial change in the net worth or number
of employees results from the investment of capital. Substantial change means a 40 percent increase either in the net
worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140
percent of the pre-expansion net worth or number of employees. Establishment of a new commercial enterprise in
this manner does not exempt the petitioner from the requirements of 8 CFR 204.6(j)(2) and (3) relating to the required
amount of capital investment and the creation of full-time employment for ten qualifying employees. In the case of
a capital investment in a troubled business, employment creation may meet the criteria set forth in 8 CFR
§204.6(j)(4)(ii).
(i) State designation of a high unemployment area. The state government of any state of the United States may
designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city
or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150 percent
of the national average rate). Evidence of such designation, including a description of the boundaries of the geographic
or political subdivision and the method or methods by which the unemployment statistics were obtained, may be
provided to a prospective alien entrepreneur for submission with Form I-526. Before any such designation is made,
an official of the state must notify the Associate Commissioner for Examinations of the agency, board, or other
appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or
political subdivision is a high unemployment area.
12
have not been created at the time of the petition, a comprehensive business plan demonstrating
the need for such jobs within two years must also be submitted. 8 C.F.R. §204.6(j). Spencer
Enterprises, Inc. v. U.S., 345 F.3d 683, 686 (Cir. 2003). See also In re Ramirez, 605 Fed.Appx.
361, 362 (Cir. 2015).
34. Under the Immigration and Nationality Act (INA), the EB-5 immigrant investor program allows
foreign nationals and their families to become conditional permanent residents, and then lawful
permanent residents, upon investment of $500,000 each in a " new commercial enterprise" in a
designated " regional center" for the purpose of creating at least ten jobs for U.S. workers. 8
U.S.C. §1153(b)(5); 8 C.F.R. §204.6(e-f). Cited in Arnott v. United States Citizenship, 290 F.R.D.
579, 582 (2012).
35. The regulations for the EB-5 program require that, if the alien entrepreneur has not actually
created ten full-time jobs at the time of application, the I-526 petition must be accompanied by "a
comprehensive business plan showing that . . . the need for not fewer than ten (10) qualifying
employees will result within…two years." 8 C.F.R. §204.6(j)(4)(B).
36. EB-5 [applications] requires a "fresh demonstration of compliance with statutory standards at the
I-829 stage." However, if I-526 approval is decoupled from I-829 approval, then petitioners
whose I-526 petitions had been approved would have no reasonable reliance that the rules set out
in 8 C.F.R. §216.6 would not change in midstream. If, on the other hand, approval of the I-526
petition was an official provisional approval of the petitioner's plan, contingent on its effectuation,
then a retroactivity analysis is required. Chang v. U.S., 327 F.3d 911, 927 (Cir. 2003).
37. The EB-5 statute requires that each I-829 petition "shall contain facts and information
demonstrating that: (A) a commercial enterprise was established by the alien; (B) the alien
invested or was actively in the process of investing the requisite capital; and (C) the alien
13
sustained [these actions] throughout the period of the alien's residence in the United States." 8
U.S.C. §1186b(d)(1)(emphasis added).5 In 8 C.F.R. §216.6(d), examples of the appropriate
documentation include tax returns, to show that the enterprise was in fact established; an audited
financial statement, to show that the alien had actually invested; and bank statements, invoices,
receipts, contracts, business licenses, and payroll records to show that the petitioner had sustained
the actions throughout the two-year conditional residence period. This is in marked contrast to
the documentation requirements of 8 C.F.R. §204.6(j), governing approval of the I-526
petition. Chang 327 F.3d 927 (Cir. 2003).
38. The EB-5 Immigrant Investor Program is regulated by the SEC and the United States Citizenship
and Immigration Services under 16 U.S.C. §240 et. seq. and related codified regulations.
b The History Between the Plaintiffs and Defendants
39. On or around July 21, 2014, Jardin Hill and NCA signed an agreement to form a partnership
under the EB-5 Program and 8 C.F.R. §204.6(j)(2) to allow Chinese investors to provide the seed
money to construct and operate eight (8) Brazilian Rodizio Grill restaurants6 in Ohio, Indiana,
Florida, Michigan, Arkansas and Alabama, USA under 8 C.F.R. §206.4(h).7
40. A second agreement to construct and operate an additional eight (8) Rodizio Grill restaurants was
also executed pending the completion of funding for the first phase of the project. The basis for
5
8 §216.6(a) Petition by entrepreneur to remove conditional basis of lawful permanent resident status. (1) General
procedures. A petition to remove the conditional basis of the permanent resident status of an alien accorded
conditional permanent residence pursuant to section 203(b)(5) of the Act must be filed by the alien entrepreneur
on Form I-829, Petition by Entrepreneur to Remove Conditions. The alien entrepreneur must file Form I-829 within
the 90-day period preceding the second anniversary of his or her admission to the United States as a conditional
permanent resident.
6
Rodizio Grill, was established in 1995 by Ivan Utrera of São Paulo, Brazil. The Phoenix Restaurant Group, LLC
owns the Rodizio Grill franchise, along with the following other trademarks in the food and hospitality industry:
Rodizio Grill®, The Brazilian Steakhouse™, America’s First Brazilian Steakhouse™. It’s the Brazilian Way! ™,
Rodizio Grill Racing™, Veggievore™, Meatatarian™, and More Than Just Great Steak! –Empresa Certificada™.
7
Under this partnership, Rodizio Grills in Liberty Township (near West Chester, Ohio), near Cleveland, Ohio, and
in Carmel, Indiana were constructed and ultimately opened for business.
14
the development was a term sheet signed between Jardin Hill and Defendant 23 on or around May
of 2014.
41. NCA represented Richard Lin and Defendants 6-19 under 8 C.F.R §205.6(g) as the broker for
services and intermediary for the latter’s EB-5 program application.8
42. Jardin Hill was incorporated by Mr. Gary Chan as statutory Agent on February 3, 2014, in
Cincinnati, Ohio.
43. Under the terms of the Agreement signed between Jardin Hill and NCA, the former would manage
the general partner for the work completed and would commit to investing 40% pro rata of needed
capital for the investment into the construction and operation of up to eight (8) subject restaurants
while the latter would represent the limited partner investors from China; who in turn would
account for the remaining 60% of needed capital [pursuant to 8 C.F.R. §§206.4(j)(2) and (e); see
for discussion In Re: Soffici, A76-472-614, Interim Decision #3359, p. 159].
44. It was also represented by NCA to Jardin Hill that there was a necessity for the funds invested by
the investors to be placed in escrow, with the release contingent on USCIS’s adjudication of the
8
On their website, NCA states under their Services that, among other things, they provide expert, in-depth, and
objective project evaluation, giving our clients abundant information and resources to enable their success. We
analyze project viability through compliance, competitive, and market analyses. We also provide expert guidance on
the transaction process, so our clients have a full understanding of project timeline, milestones, and risks.
NCA understands that EB-5 financing is a powerful tool among many capital options. We fully analyze a project’s
capital needs and resources to provide the best positioning for EB-5 capital. Additionally, along with our network for
capital partners, NCA structures the most optimal rate and usage for EB-5 financing.
Throughout the EB-5 process, NCA actively liaises with and monitors both investors and projects to ensure the most
efficient and transparent information exchange. We work with our investors on pre-investment inquiries, case
processing, and post-investment project updates. Additionally, we provide our project clients up-to-date information
on investor progress, so they can optimally manage their project cycle.
NCA understand that the timing and certainty of EB-5 financing is often a challenge for our clients. For qualifying
projects, we arrange bridge and contingency financing to ensure that our clients enjoy clear visibility on the timing
and amount of funding. Our relationships with our lender partners allow NCA to offer the most competitive rates in
bridge and contingency financing, providing a one-stop solution to our clients.
15
I-526 petitions submitted by investors. It was represented that fundraising would be nearly
impossible to do without this stipulation.
45. The agreement between NCA and Jardin Hill further stipulated that 25% of invested funds were
to be released at the time the investors submitted their petitions to USCIS. An additional 65% of
invested funds would be released upon the first two (2) investors’ petitions were approved by
USCIS. The final 10% of each investors’ funds would be released upon the approval of those
investors’ petition.
46. NCA also represented to Jardin Hill that the other important stipulation to get investors was that
all funds from investors had to be used for real estate acquisition, “hard costs” of development
and equipment purchase only. This was represented by NCA as a way to provide “comfort” to the
investors with investing in the project/s.
47. The capital coming from NCA discussed in Paragraph 45 was generated by at least 15 Chinese
investors (namely Defendants 3-19 herein). Pursuant to the representations made by NCA in the
forming of the Offering and Agreement, the investor-contributed funds were ultimately deposited
into an escrow account at the Green Bank, N.A., 4000 Greenbriar Drive, Houston Texas 77098
(Defendant 22; Account 5501149990; see attached Exhibit 2; Subscription Escrow Agreement of
March 11, 2015; see attached Exhibit 3 recent escrow account bank statement).
48. Based on NCA’s representations of timing of the funding to be made available, a development
agreement was entered into on September 9, 2014, between Jardin Hill and Defendant 23. That
Agreement included specific milestones for funding and development.
49. In February of 2015, due to lack of progress on funding from NCA, Defendant 23 communicated
their lack of confidence in the project’s ability to move forward and moved to terminate the
16
development agreement. At that point, subscription agreements had been signed, the earliest being
in December of 2014, but no funds from investors had yet been invested.
50. Due to the Defendant 23’s insistence that a subscription agreement did not equate to actual
investment funds, Defendant 23’s threat to terminate the agreement compelled Jardin Hill to
renegotiate a new development agreement, ultimately making significant management and
economic concessions, thus causing Jardin Hill economic and reputational damage.
51. Throughout the process of renegotiation with Jardin Hill, Defendant 23, in coordination with
Defendant 25, and NCA, presented unrealistic timelines and increased pressure of contract
termination after the mentioned EB-5 and alternate fundraising failures.
52. On April 1, 2015, the new Development Agreement for the Rodizio Grill project was signed
between Jardin Hill and Defendant 23, which included personal guarantees from each of the
Plaintiffs due to lack of confidence from Defendant 23 in the fundraising process.
53. The first investment from NCA investors occurred on or around April 21, 2015.
54. Notwithstanding the financial challenges mentioned in Paragraphs 49-52, Jardin Hill signed a
lease and started restaurant development in West Chester, Ohio with initial investor funds.
55. Jardin Hill started operation of the West Chester restaurant in October of 2015.
56. As of October 2015, there were a total of 11 investors who had invested in the RG Opportunities
(Jardin Hill) project.
57. As of the opening of the West Chester location in October 2015, a total of $1,375,000.00 had
been released from escrow to the project out of the $5,500,000.00 total invested.
58. The budget for the costs outlined in Paragraph 57 exceeded $2,000,000.00 as presented in the
business plan, however due to lack of availability of EB-5 funding, Jardin Hill had to negotiate
17
and make arrangements with contractors and vendors to allow for the restaurant to be completed
on time and open without additional penalties from the landlord of the West Chester location.
59. Three additional three (3) investors funded the escrow account in January of 2016, with no
additional activity until the final investor funded escrow in December of 2016.
60. With no additional funds raised, discussions with NCA resulted in Jardin Hill inevitably had to
wait for USCIS’s adjudication on the I-526 petitions already submitted in order to continue
development and also comply with the Development Agreement schedule for opening.
61. During the interim waiting period for USCIS to adjudicate the I-526 petitions of the investors,
Jardin Hill provided multiple updates to NCA as to potential locations for future sites, as well as
the challenges of meeting development timelines without additional funding from investors.
62. With only 14 of the anticipated 38 investors from NCA having funded the escrow account at
Green Bank as of July of 2016, Jardin Hill inquired multiple times about bridge financing or other
arrangements with getting funds from the escrow account. Jardin Hill further inquired about
expedited fundraising in order to sustain the project. Each time Jardin Hill inquired, NCA either
said that the fundraising timing was out of their control or that they had no control over the “China
macro environment”.
63. During the period described in Paragraphs 59-62, Jardin Hill continued to negotiate leases and
attempted to find viable sites in order to try to comply with the Development Agreement and to
keep the project progressing and in order to create the jobs necessary to fulfill the requirements
of the EB-5 Program.
64. In August and September of 2016, in anticipation of the upcoming decisions from USCIS for
petitions submitted in early 2015, Jardin Hill entered into leases with landlords for two more
Rodizio Grills (namely in Carmel, Indiana and Valley View, Ohio).
18
65. In November of 2016, USCIS sent a Request for Evidence (hereafter termed “RFE”), with which
Jardin Hill complied. The latter provided detailed information to investors’ counsel and NCA in
order to obtain approvals for the I-526 petitions. Based on investors’ counsel’s advice and NCA’s
past experience, the response from USCIS was anticipated to be approved within 60 days of the
response to the RFE being filed (or around January 15, 2017).
66. According to Jardin Hill’s communications with investors’ counsel, due to lack of any proactive
updates from NCA, the first RFE response was not filed until February 10, 2017 on behalf of
Richard Lin’s I-526 petition. Richard Lin was the de factor representative of the other Chinese
investors, so his petition was critical to the projects moving forward.
67. Investors’ counsel communicated that the next two (2) RFE responses were filed on February 22,
2017 and five (5) additional responses were filed by the end of that week, on or around February
24, 2017.
68. On March 7, 2017, investors’ counsel forwarded Richard Lin’s I-526 approval notice from
USCIS. This approval allowed for Richard Lin’s remaining $375,000.00 to be released from
escrow.
69. According to the Escrow Agreement, one (1) additional I-526 approval notice from an approved
investor would be required to allow release of the remaining funds, along with an additional 65%
of the investors’ total invested funds for development of the project, totaling $4,600,000.00.
70. Based on the progress of the RFE responses and investor counsel’s previous experience with
response times of USCIS, plus also taking into consideration that one (1) petition for the project
had already been approved, Jardin Hill, who was already pressed for time on unreasonable
deadlines set by Defendant 23, accelerated development process for the Carmel and Valley View
restaurants.
19
71. The final communication Jardin Hill received from investors’ counsel regarding RFE response
filings was on March 13, 2017. That communication indicated that Defendant 10 (ZHAO,
Bingtao)’s RFE response had just been sent.
72. Jardin Hill dutifully opened the Carmel, Indiana restaurant on or around March 21, 2017.
73. Based on the funding discussed in Paragraphs 68-69, Jardin Hill also dutifully opened the Valley
View, Ohio restaurant on or around April 28, 2017.
74. Defendants 23 and 25 were present with training teams for both openings listed in Paragraphs 72-
73, but Defendant 25 was only present for the opening of the Carmel location.
75. Defendant 25 put Jardin Hill in a tenuous legal and ethical situation to complete the side of the
development agreement, since he declared that “…no female “gauchos” would ever be allowed”
on his projects; impugning Plaintiff Jacquelyn Chan.
76. As work was commissioned and completed for the Carmel and Valley View restaurants, the
timeframe for responses from USCIS for the subsequent RFE responses had already exceeded
the time needed for USCIS to respond to Richard Lin’s petition.
77. Due to the time and financial concerns expressed in Paragraph 76, in April of 2017, Jardin Hill
began making inquiries to NCA and investors’ counsel as to the possible reasons for the delay.
They also reached out to USCIS to find out what the anticipated response time would be.
78. As anticipated timelines for approvals went unmet, with Jardin Hill’s capital contributions to the
project already far exceeded the 40% required for the $2,250,000.00 already released to the
project, Jardin Hill again requested investors’ counsel to inquire about response timing with
USCIS. No meaningful response was forthcoming.
79. In May and June of 2017, Jardin Hill sent communications to NCA advising them that the delays
in funds being released from escrow were causing serious issues with contractors and various
20
vendors who had provided or were currently providing goods or services to all three (3) of the
Rodizio Grill locations in the project.
80. Specifically, Jardin Hill requested that NCA communicate the circumstances described in
Paragraph 79 to the investors in the hope that a solution could be reached either involving an
agreed-to amendment of the escrow release terms, bridge financing via NCA, or other sources
before the problem reached a “point of no return”.
81. NCA’s response to the communication described in Paragraphs 79-80 was that none of the
proposed solutions were an option and specifically that NCA did not want to participate in bridge
financing for the project.
82. In the interim period between opening and the ultimate closure of all three (3) Rodizio locations,
financial shortfalls were supplemented to a large degree by Jardin Hill themselves and the West
Chester store’s revenues.
83. In July of 2017, contractors who had not been paid for months began filing liens against the
properties and Jardin Hill where they had performed work.
84. Also, in July of 2017, past due payments to vendors began piling up to the point where new food
vendors had to be engaged just to have food in the restaurants. US Foods, the required food
provider in the Rodizio franchise, would not deliver due to past due balances.
85. The financial damage and peril mentioned in Paragraphs 83-84 was the direct effect of deficient
funds that otherwise could have been used to pay down past due balances and keep the Partnership
out of litigation.
86. In late July of 2017, Defendant 23 issued default letters for all three (3) restaurant locations, with
primary defaults being “…using non-approved vendors and suppliers for food and other
21
products…” and Rodizio’s receipt of the restaurant’s notices of default in paying various vendors
and suppliers, including US Foods and a furniture supplier.
87. On or around September 26, 2017, and despite the explanation of the situation and the potential
financial remedies going forward, Defendant 23 issued terminations for all three (3) of the
Rodizio franchise agreements and the Development Agreement.
88. Following the event listed in Paragraph 87 and in the best interest of the investors, Jardin Hill
engaged in negotiations with Defendant 23 to try to reinstate the franchise agreements and
development agreements in order to keep the project going and moving forward.
89. On or around September 26, 2017, investors’ counsel also received a Notice of Intent to Deny
(hereafter the “NOID”) from USCIS for an investor’s I-526 petition.9 This notice requested
additional information from the investors and the Partnership relating to the progress of the
project. Given the circumstances of the terminations, this was additional incentive to make every
effort to reinstate the franchise and Development Agreements.10
90. In late September 2017 Richard Lin contacted Jardin Hill [following the closure of the three (3)
restaurants in or by early September 2017] and, after multiple failed attempts to communicate the
financial issues to the investors through NCA, stated that the communications with NCA
described in Paragraphs 88-89 were never relayed to him or the other investors.
91. Investors’ counsel recommended that the best course of action as it pertained to the immigration
petitions was to reopen the three (3) restaurants under the “Rodizio Grill” name.
9
David Knighton, Rodizio COO said that Jardin Hill had to “…do the developments right”, with the most expensive
options that weren’t standard to other stores in the Rodizio system. Knighton also demanded that Jardin Hill set new
and higher “standards” with their developments. These obstacles, among others, led to a four-month delay and
therefore the I-526 petition denials, which further damages Jardin Hill’s ability to make back the money they invested
in good faith.
22
92. A second reopening option was to reopen as another brand, if reopening as Rodizio Grill was not
possible. However, the opinion of counsel was that this involved a degree of risk for USCIS to
challenge the validity of the jobs created for investors’ petitions. In other words, it was better than
the alternative of having no jobs created at all.
93. On or around October 16, 2017, Defendant 23 moved for and was granted a temporary restraining
order (hereafter the “TRO”) in the Third Judicial District Court in Salt Lake City, Utah (Phoenix
Franchise Group v. RG Carmel, LLC et al.; Case No. 1:17-cv-00460) enjoining Jardin Hill from
even trying to reopen any of the three (3) restaurants to earn money to pay off general contractor
Equiteam, LLC, and their subcontractors or otherwise get out of debt
94. On or around October 17, 2017, Jardin Hill terminated direct negotiations with Defendant 23;
thus complying with the TRO. It was apparent that Defendant 23 wanted nothing to do with
reinstating the agreements with Jardin Hill.
95. With financial remedies and a proposal involving $1,000,000.00 from the impending escrow
funds to be released put on the table and declined by Defendant 23, Jardin Hill realized this went
far beyond the financial defaults and remedies contemplated in the terminations issued.
96. Also, on October 17, 2017, the second approval from USCIS, was issued as the final remaining
piece for the release of funds from the Escrow Account.
97. With the approval mentioned in Paragraph 96, Jardin Hill immediately sent a request to NCA for
release of the escrowed funds to try to reinstate the agreements and settle outstanding debts.
98. On or around October 17, 2017, NCA made it clear to Jardin Hill that no escrow funding was to
be paid for the operation and accounts receivable of the three (3) restaurants.
23
99. On or around October 17, 2017, Jardin Hill assured NCA that the former could reopen all three
(3) restaurants quickly and efficiently under a different name in order to avoid the bad press
coverage of Rodizio stores having closed.
100. On or around October 18, 2017, NCA, as representative of the individual investors, reiterated
once again to Jardin Hill that the former wanted the stores opened as Rodizio Restaurants and
under no other name.
101. On November 18, 2017, general partner Terry Chan was asked on short notice to fly to Hong
Kong, Special Administrative Region of the People's Republic of China (hereafter “Hong
Kong”) to meet with the latter under the pretenses of finalizing an agreement “face to face”.
102. In the meeting mentioned in Paragraph 101, Richard Lin represented that this meeting was to
sign the authorization to release funds to pay creditors in order to reopen the restaurant. Richard
Lin proffered that he and other investors would be present as that it was the way “business is
done in China and with Chinese”.
103. Plaintiff 2 was only given one day advanced notice was given to be at the meeting mentioned in
Paragraphs 101-102. Plaintiff 2 was able to get a flight that day and meet with the latter the next.
104. At the meeting discussed in Paragraphs 101-103, Defendant Richard Lin was the only one
present, and that meeting physically threatened Terry Chan and his family if he did not sign pre-
prepared paperwork turning over general partnership of the project to Mr. Lin.
105. At one point in that terse conversation mentioned in Paragraph 101-103, Mr. Lin threatened to
throw Mr. Chan out of the 28th floor window of the Crowne Plaza Hotel in Causeway Bay, Hong
Kong, where the parties were meeting.
106. In December of 2017, the Plaintiffs found that one (or all) of the investors had paid $100,000.00
to Steiner & Associates, the landlord of the West Chester Rodizio Grill, with the mandate to
24
open that store apart from the Plaintiff general partners; a clear violation of the partnering
agreement.
107. The money mentioned in Paragraph 106 was paid to Defendants 20-21, who thereby knowingly
breached the signed agreements for investment properties which are the subject of this
Complaint. Defendants 20-21 thereby effectively colluded with NCA to reopen the Rodizio Grill
locations without informing the named Plaintiffs.
108. On or around November 21, 2017 and then again on December 5, 2017, Jardin Hill’s counsel
communicated to Richard Lin’s counsel, Phillip M. Hudson, about the threats and subsequently
coerced paperwork signed in Hong Kong on November 18, 2017, discussed herein in Paragraph
105.
109. In the discussions mentioned in Paragraph 108, Jardin Hill told Mr. Hudson that the coerced
paperwork was null and void and that were still committed to re-opening the three (3)
restaurants to salvage the project, the immigration petitions for the investors, and the assets and
income stream for the partnership.
110. In the conversation cited in Paragraphs 108-109, Jardin Hill stated that they needed $1.8M to
reopen the mentioned stores and clear the balances owed to the general contractor Equiteam,
Equiteam’s subcontractors, and other critical creditors. They further said that if each individual
investor (Defendants 3-16) could release their respective portion of the escrowed funds being
kept at Defendant 22 Green Bank, the former could pay critical vendors and start operating at
least one of the restaurants again.
111. On or around December 21, 2017, NCA, as representative for the individual investors,
responded to the request discussed herein in Paragraph 110 with an email requesting
documents not previously required by NCA or the escrow agreement as “evidence”. For some
25
reason NCA stated that “documents of attestation are not sufficient”, even though for all
previous disbursements, Jardin Hill had provided the same affidavit of attestation as was
required by the Escrow Agreement and signed off by NCA.
112. To the day of this filing, the named Defendants continue to fail to make any escrowed funds
available to allow the Plaintiffs to pay off their contractors, recoup any of their investment, or
in any way make good on their promises to complete the projects.
113. As a direct and proximal result of the purposeful lack of contract completion on the part of
NCA, Richard Lin, or Defendants 3-16, the Plaintiffs have lost money, operating capital, and
reputation in the hospitality industry.
114. For the named Defendants’ actions; either individually or as a group, they are liable for
statutory and/or common law and/or punitive damages to the Plaintiffs for: (1) statutory
violations of 8 U.S.C. §1330 and 17 U.S.C.§240. et. seq.; (2) breach of contract; (3) tortious
interference with contract; (4) negligence; (5) fraud or fraud in the inducement to contract; (6)
and civil assault.
115. Furthermore, the Plaintiffs respectfully request a Declaratory Judgment (Cause of Action 8)
that the interpleader action filed in the U.S. District, Southern District of Texas, Houston
Division (styled as 4:18-cv-0046) is unripe for consideration or for some other reason improper
and also temporary injunctive relief against all named Defendants (Cause of Action 9).
26
IV. RECITATION OF CAUSES OF ACTIONS:
A. FIRST CAUSE OF ACTION: VIOLATIONS OF 8 U.S.C. §1330(b)(2)

(as to Defendants NCA and Richard Lin and Defendants 5-19)
116. The Plaintiff hereby incorporates by reference the allegations set forth in Paragraphs 1 through
115 as if re-alleged herein.
117. The named Defendants have violated immigration laws under the USCIS and SEC and therefore
liable to the United States government for criminal sanctions, including but not limited to
imprisonment and/or deportation with an exclusion of refiling for alien status for a period not to
exceed ten (10) years.
118. The named Defendants have violated immigration laws under the USCIS and SEC and therefore
are liable to the Plaintiffs for civil penalties as defined in 8 U.S.C. §1330(b)(2)(B), 28 U.S.C.
§1367 and related statutes in the sum of $25,000/named Defendant for a total of $400,000.
B. SECOND CAUSE OF ACTION: BREACH OF CONTRACT (as to all named Defendants)
120. A breach of contract is defined as the failure, without legal excuse, to perform any promise that
forms a whole or part of the contract. J & J Schlaegel, Inc. v. Union Twp. Bd. of Trustees, 2d
Dist. Champaign Nos. 2005-CA-31, 2005-CA-34, 2006-Ohio-2913, ¶ 44, citing National City
Bank of Cleveland v. Erskine & Sons, 158 Ohio St. 450, 110 N.E.2d 598 (1953), paragraph one
of syllabus.
121. In other words, "a breach of contract occurs when a party demonstrates the existence of a
binding contract or agreement; the non-breaching party performed its contractual obligations;
the other party failed to fulfill its contractual obligations without legal excuse; and the non-
breaching party suffered damages as a result of the breach." Otstot v. Owens, 2016-Ohio-233,
27
¶]10, quoting Auto Sale, LLC. v. Am. Auto Credit, LLC, 2015-Ohio-4763, ¶15. Cited in
Mitchell v. Brownie's Independent Transmission, 2018-Ohio-32, 27563, ¶19. See also
Discover Bank v. Pierce, 2014-Ohio-625, ¶14, citing Sullivan v. Curry, 2010-Ohio-5041, ¶43.
122. The essence of the law's remedy for breach of contract is that he who has suffered from a
breach should be duly compensated for the loss incurred by nonperformance. But one man's
default should not lead to another man's unjust enrichment. Priebe & Sons., Inc. v. United
States, 332 U.S. 407, 418 (1947).
123. Damages [to make the injured party whole] are always the default remedy for breach of
contract. United States v. Winstar Corp., 518 U.S. 839, 885 (1996) N. 30. See also Restatement
(Second) of Contracts §346, Comment a (1981) ("Every breach of contract gives the injured
party a right to damages against the party in breach" unless "[t]he parties. . . by agreement vary
the rules"); 3 E. Farnsworth, Contracts §12.8, p. 185 (1990) ("The award of damages is the
common form of relief for breach of contract. Virtually any breach gives the injured party a
claim for damages"). Winstar, 518 U.S. 937.
124. Market efficiency requires effective means to enforce private agreements. See Farber, Contract
Law and Modern Economic Theory, 78 NW. U.L. Rev. 303, 315 (1983) (remedy for breach of
contract "is necessary in order to ensure economic efficiency"); R. Posner, Economic Analysis
of Law 90-91 (4th ed.1992) (legal enforcement of contracts is more efficient than a purely
voluntary system).
125. The stability and efficiency of the market depend fundamentally on the enforcement of
agreements freely made, based on needs perceived by the contracting parties at the time. Brief
for United States as Amicus Curiae 23. Cited in American Airlines, Inc. v. Wolens, 513 U.S.
219, 230 (1995).
28
126. The aggrieved party may bring either an action for breach of contract or a tort action for the
injuries suffered as a result of the contractual breach. See, e.g., Banfield v. Addington, 104 Fla.
661, 669-670, 140 So. 893, 897 (1932); Parrish v. Clark, 107 Fla. 598, 603, 145 So. 848, 850
(1933).
127. An action may arise for the breach of the contract, or for the positive tort committed by the
violation of a duty arising out of the assumption of the contractual relation"); Safeco Title Ins.
Co. v. Reynolds, 452 So.2d 45, 48 (Fla.App.1984) (it is a "long-established general principle
that injuries caused by the allegedly negligent performance of a contractual duty may be
redressed through a tort action"). Cited in International Brotherhood of Electrical Workers,
AFL-CIO v. Hechler, 481 U.S. 851, 861 (1987).
128. The threshold inquiry for determining if a cause of action exists is an examination of the
contract to ascertain what duties were accepted by each of the parties and the scope of those
duties. See 38 Fla.Jur.2d Negligence § 17, p. 29 (1982); Vorndran v. Wright, 367 So.2d
1070 (Fla.App.1979) (architect's contract did not include a duty to ensure compliance with
safety regulations, and thus employee injured on the job had no cause of action against the
architect); Schauer v. Blair Construction Co., 374 So.2d 1160, 1161 (Fla.App.1979; 107 S.Ct.
2168). Hechler, 481 U.S. 861 (1987).
129. In the case at bar, the contractual obligations were clear. The Plaintiffs and all named
Defendants signed on the EB-5 Immigration Investment Program and contracted to invest
funds toward construction and operating three (3) restaurants (see enclosed Subscription
Agreements).
130. The Plaintiffs have demonstratively fulfilled their legal obligation to provide 40% of the
funding capital toward the contractual goals.
29
131. The named Defendants have failed to fulfill their legal obligation to provide 60% of the funding
capital toward the contractual goals.
132. Due the failure stipulated in Paragraph 63, the Plaintiffs have been financial damaged and are
due final compensation to make them whole again from the contractual breach of the named
Defendants in the amount in excess of $1.8M (or $112,500/named Defendant).
133. Furthermore, Defendants 20-21 did fail to uphold the tenants of the signed contractual
agreements between the Plaintiffs and Defendants NCA, Richard Lin, and Defendants 5-19 and
colluded to re-open the restaurant outside said contract, thus damaging the relationship the
Plaintiffs and Defendants NCA and Richard Lin.
134. Defendant NCA misrepresented themselves as “broker/dealers” while Plaintiff funding was
being paid to them as such.
135. Due the failure stipulated in Paragraph 65, the Plaintiffs have been financial damaged and are
due final compensation to make them whole again from the contractual breach of Defendants
20-21 in the amount in excess of $100,000 (or $50,000/named Defendant).
C. THIRD CAUSE OF ACTION: TORTIOUS INTERFERENCE WITH CONTRACT

(as to Defendants NCA and Richard Lin)
137. The elements of the tort of tortious interference with contract are (1) the existence of a contract,
(2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of
the contract's breach, (4) lack of justification, and (5) resulting damages. Fred Siegel Co., L.P.A.
v. Arter & Hadden, 85 Ohio St.3d 171, 1999-Ohio-260, 707 N.E.2d 853, paragraph one of the
syllabus; Kademian v. Marger, 2d Dist. Montgomery No. 24256, 2012-Ohio-962, ¶ 93; Cited in
Berridge v. McNamee, 2016-Ohio-4716, 66 N.E.3d 1266, ¶39 (App. 2 Dist. 2016). See also
30
Sacksteder v. Senney, 2012-Ohio-4452, C.A. 24993, ¶78 and DiPasquale v. Costas, 186 Ohio
App.3d 121, 926 N.E.2d 682, 2010-Ohio-832 (App. 2 Dist. 2010), ¶105.
138. Tortious interference with contract requires an actor to improperly interfere with the
performance of a contract between two other persons. Dorricott v. Fairhill Ctr. for Aging,
2 F.Supp.2d 982, 989-990 (N.D.Ohio 1998), citing Miller v. Wikel Mfg. Co., Inc., 46 Ohio St.3d
76, 79, 545 N.E.2d 76 (1989).
139. The interference must be "by someone who is not a party or agent of the party to the contract or
relationship at issue." Id; see also Condon v. Body, Vickers & Daniels, 99 Ohio App.3d 12,
22, 649 N.E.2d 1259 (8th Dist.1994) ("Tortious interference with a business contract occurs
when one party to a contract is induced to breach the contract by the malicious acts of a third
person who is not a party to the contract." (Emphasis sic.)). Boyd v. Archdiocese of Cincinnati,
2015-Ohio-1394, ¶31.11
140. For an agent to have tortiously interfered with a principal's contract, the agent must have
"benefited solely in a personal capacity." Miller at 79.
141. Accordingly, "to maintain a tortious interference claim against an employee of a party to the
relationship at issue, a plaintiff must demonstrate that the employee acted solely in his or her
individual capacity and benefitted from the alleged interference." Fitzgerald v. Roadway
Express, Inc., 262 F.Supp.2d 849, 860 (N.D.Ohio 2003). See Condon at 22 (concluding that an
office manager of a firm was not a third-party subject to liability for tortiously interfering with
an employment contract to which the firm was a party). Boyd, 2015-Ohio-1394, ¶31.
142. In the case at bar, Defendants NCA and Richard Lin acted in a way which interfered with the
Plaintiffs’ ability to complete their contractual obligations with Defendants 3-16.
11
Plaintiff’s counsel successfully argued this case himself before the Ohio Second District Court of Appeals on April
10, 2015
31
143. Here, by misleading both the Plaintiffs and Defendants 5-19 as to the terms of the signed contract
and the promises to pay the monies agreed to be paid, Defendants NCA and Richard Lin did
damage the other parties’ ability to complete the obligations under the signed contractual
agreement/s.
144. Here, due to the direct and proximal interference by Defendants NCA and Richard Lin, the
Plaintiffs are due financial damages of in excess of $500,000 from both Defendants Richard Lin
and NCA, totaling $1,000,000.
145. Here, by colluding to reopen the restaurant outside the contractual agreement made between the
Plaintiffs and Defendants NCA, Richard Lin, and Defendants 5-19, Defendants 20-21 are liable
to the Plaintiffs for damages in excess of $25,000/Defendant for a total of $50,000.
D. FOURTH CAUSE OF ACTION: NEGLIGENCE (as to all Defendants)
146. The Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 through
147. A plaintiff must "prove the traditional common law elements of negligence: duty, breach,
foreseeability, and causation." Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990)
[quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987)]. Aparicio v. Norfolk
& Western Ry. Co., 84 F.3d 803 (Sixth Cir. 1996). See also See Menifee v. Ohio Welding
Products, Inc., 15 Ohio St.3d 75, 77 (1984).
148. The concept of foreseeability is an important part of all negligence claims, because " the
existence of a duty depends on the foreseeability of the injury." Menifee at 77. As a society, we
expect people to exercise reasonable precautions against the risks that a reasonably prudent
person would anticipate. Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96 (1989). See
32
also Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 29 N.E.3d 921, 2015-
Ohio-229 (2015), ¶¶23-24.
149. A plaintiff must present more than a scintilla of evidence to prove that (1) an injury occurred
while the plaintiff was working within the scope of his or her employment with the railroad, (2)
the employment was in the furtherance of the railroad's interstate transportation business, (3)
the employer railroad was negligent, and (4) the employer's negligence played some part in
causing the injury for which compensation is sought under the Act. Id.
150. In the case at bar, all pertinent Defendants owed the Plaintiffs the benefit of fulfilling their side
of the partnering and escrow agreements, thus protecting then latter from harm.
151. The named Defendants clearly failed to complete their contractual agreements
152. In failing to complete their contractual agreements, the named Defendants caused direct and
proximal financial and emotional harm to the Plaintiffs; which in turn can be quantified.
153. Therefore, the Plaintiffs are due financial damages of in excess of $25,000 from both
Defendants NCA and Richard Lin, totaling $50,000.
E. FIFTH CAUSE OF ACTION: FRAUD/FRAUD IN THE INDUCEMENT

(as to only Defendants NCA and Richard Lin)
155. The elements of a fraud claim are a representation or, where there is a duty to disclose,
concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with
knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or
false that knowledge may be inferred, (d) with the intent of misleading another into relying upon
it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance. Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-
33
1189, 843 N.E.2d 1170, ¶47, quoting Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54,
55, 514 N.E.2d 709 (1987). Cited in Lucarell v. Nationwide Mutual Insurance Co., 2018-Ohio-
15, ¶61. See also ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 502 (1998), ¶26.
156. [Fraud in the inducement to contract] occurs "when a party is induced to enter into a contract or
agreement through fraud or misrepresentation, and the fraud relates not to the nature or purport
of the agreement, but to the facts inducing its execution." Cefaratti v. Cefaratti, 2005-Ohio-
6895, ¶28, citing Haller at 14.
157. Specifically, "in order to prove fraud in the inducement, a plaintiff must prove that the defendant
made a knowing, material misrepresentation with the intent of inducing the plaintiffs’ reliance,
and that the plaintiff relied upon that misrepresentation to her detriment." ABM Farms, Inc. v.
Woods, 81 Ohio St.3d 498, 502 (1998), citing Beer v. Griffith, 61 Ohio St.2d 119 (1980). Cited
in Reid v. Daniel, 2015-Ohio-2423, ¶37.
158. The question of justifiable reliance is one of fact and the court must inquire into the relationship
between the parties. Crown Property Dev., Inc. v. Omega Oil Co., 113 Ohio App.3d 647,
657, 681 N.E.2d 1343 (12th Dist.1996). The court must consider the nature of the transaction,
the form and materiality of the representation, the relationship of parties and their respective
means and knowledge, as well as other circumstances. Hubbard Family Trust v. TNT Land
Holdings, LLC, 2014-Ohio-772, ¶ 30 (4th Dist.). Cited in Mishler v. Hale, 2014-Ohio-5805, ¶33.
159. In the case at bar. Plaintiff Jardin Hill did sign agreements with Defendant NCA committing the
former to provide significant personal funding toward the discussed business transactions.
160. Here, Defendant NCA did represent their competence in dealing with EB-5 Program projects
and assured Plaintiff Jardin Hill that the investors that NCA represented (namely Defendants
Richard Lin and Defendants 5-19) were ready to invest their personal funds into the subject
34
escrow account and allow frequent and efficient use of those escrowed funds to complete the
construction, opening, and on-going management of three (3) Rodizio restaurants.
161. Here, Defendant NCA did recklessly demand justifiable reliance and resultant payment from
Plaintiff Jardin Hill for the stated projects while withholding potential problems with release of
escrowed funds of their clients.
162. Here, Defendant NCA induced through false representations the promise and resultant payment
by Plaintiff Jardin Hill or roughly $2,000,000 into the stated escrow account that was, in turn,
not matched by their client investors.
163. Here, Defendant Richard Lin did induce the Plaintiffs to believe the statements made by co-
Defendant NCA and further induce the Plaintiffs by himself to continue to invest in the escrowed
account on the promise of investment matching.
164. Here, Defendants NCA and Richard Lin has met the Groob nexus test for fraud or fraud in the
inducement as an offense against Plaintiff Jardin Hill and therefore are liable to the latter for this
stated offense in the amount in excess of $25,000 for a total of $50,000.
F. SIXTH CAUSE OF ACTION: CIVIL ASSAULT (as to Defendant Richard Lin)
166. The tort of assault is defined as the willful threat or attempt to harm or touch another offensively,
which threat or attempt reasonably places the other in fear of such contact. The threat or attempt
must be coupled with a definitive act by one who has the apparent ability to do the harm or to
commit the offensive touching.
35
167. An essential element of the tort of assault is that the actor knew with substantial certainty that
his act would bring about harmful or offensive contact. Cited in Schweller v. Schweller, 97-LW-
4853. See also. Smith v. John Deere Co. (1993), 83 Ohio App.3d 398, 406.
168. In the case at bar, on November 18, 2017, Plaintiff Terry Chan did meet directly with Defendant
Richard Lin in Hong Kong as mentioned in Paragraphs 101-105.
169. At the meeting mentioned in Paragraph 105, Defendant Lin did approach Plaintiff Chan in a
menacing and threaten the latter’s family with future bodily harm and the latter himself with
bodily injured and potential death by throwing the latter out of a hotel window should the latter
not sign legal documents giving the former legal rights to financial assets.
170. For his direct and proximal actions, Defendant Richard Lin is financial liable to Plaintiff Terry
Chan for damages and other statutory remedies in excess of $25,000.
G. SEVENTH CAUSE OF ACTION: TEMPORARY INJUNCTION (as to all Defendants)
172. A temporary order may be granted restraining an act when it appears by the petition that the
plaintiff is entitled to the relief demanded, and such relief, or any part of it, consists in restraining
the commission or continuance of such act, the commission or continuance of which, during the
litigation, would produce great or irreparable injury to the plaintiff, or when, during the litigation,
it appears that the defendant is doing, threatens or is about to do, or is procuring or permitting to
be done, such act in violation of the plaintiff's rights respecting the subject of the action, and
tending to render the judgment ineffectual. Ohio Revised Code §2727.02
173. In determining whether to grant injunctive relief, the court considers the following factors: (1) the
likelihood or probability of a plaintiff's success on the merits; (2) whether the issuance of the
36
injunction will prevent irreparable harm to the plaintiff; (3) what injury to others will be caused
by the granting of the injunction; and (4) whether the public interest will be served by the granting
of the injunction.' " Premier Health Care Servs., Inc. v. Schneiderman (Dec. 28, 2001) 2001 WL
1658167 quoting Corbett v. Ohio Bldg. Auth. (1993), 86 Ohio App.3d 44, 49, 619 N.E.2d 1145.
An appellate court will not reverse a trial court's decision to deny or grant a temporary restraining
order or preliminary injunction absent an abuse of discretion. Engineering Excellence, Inc. v.
Meola, Franklin App. No. 01AP-1342, 2002-Ohio-5412. Cited in TGR Ents., Inc. v. Kozhev, 167
Ohio App.3d 29, 853 N.E.2d 739, 2006-Ohio-2915, ¶11 (App. 2 Dist. 2006).
174. In the case at bar, the Plaintiffs can clearly demonstrate that they have fulfilled their contractual
obligations under the signed Agreements, as well as to the EB-5 Program as a whole. Therefore,
it is very likely they will ultimately prevail on the merits of the foregoing claims.
175. Here, the Plaintiffs are requesting an immediate, temporary injunction on any of the named
Defendants taking any action to either re-open the subject restaurants without involvement of the
Plaintiffs or gaining access to the subject escrowed funds prior to adjudication od this case or
mutual written agreement between the Plaintiffs and Defendant NCA.
176. Here, it is clear that the Defendants’ action to open the three (3) subject restaurants without
Plaintiff involvement would cause immediate and irreparable harm to the Plaintiffs, that the
Plaintiffs are likely to win on full litigation of the matter, and that Plaintiffs must have this
temporary remedy to preserve their financial assets and legal rights.
177. Further, the Plaintiffs are being damaged financial and as to their reputation in the hospitality
industry every day that the current situation continues. Also, if the subject three (3) Rodizio
restaurants open in controversy to the agreements that the Plaintiffs signed, they will be
37
permanently damaged financially and will find it next to impossible to recoup their investment;
let along pay off their contractors.
178. Also, it is clear that the Defendants’ action to gain access to subject escrowed funds without
Plaintiff involvement would cause immediate and irreparable harm to the Plaintiffs, that the
Plaintiffs are likely to win on full litigation of the matter, and that Plaintiffs must have this
temporary remedy to preserve their financial assets and legal rights.
H. EIGHTH CAUSE OF ACTION: DECLARATIVE JUDGMENT (as to Defendant 22 only)
179. The Plaintiffs hereby incorporate by reference the allegations set forth in Paragraphs 1 through
180. As previously mentioned herein, Defendant 22 has filed an interpleader complaint in the U.S.
District Court, Southern District of Texas, Houston Division (4:18-cv-00465).
181. Since no formal claims have been filed as to the escrowed funds by lawfully authorized parties,
sans the foregoing Complaint, the Plaintiffs respectfully request a Declarative Judgment that the
interpleader complaint is not ripe for consideration and is therefore subsidiary and derivative of
the foregoing Complaint.
V. REQUEST FOR RELIEF OR REMEDY

WHEREFORE, as detailed herein as Paragraphs 1-180, the Plaintiffs respectfully request that this
court order the following:
a. Temporary Injunctive Relief
182. A temporary and binding injunction upon all named Defendants or Defendant representatives
prohibiting those parties from contacting and in any way harassing or intimidating the named
Plaintiffs with regard to the matters discussed in this case;
183. A temporary injunction prohibiting all named Defendants from opening any of the three (3)
subject restaurants without mutual, written agreement with Plaintiff Jardin Hill, LLC;
38
184. A temporary injunction prohibiting all named Defendants from removing funds from the
Escrow Account discussed herein, other than to directly pay Plaintiff Jardin Hill, LLC;
185. A temporary injunction prohibiting all named Defendants from opening a Rodizio or other
named franchise in any form until the matters of this lawsuit are adjudicated.
b. Statutory and Common Law Damages
186. Payment by the named Defendants to Mr. Gary K. Chan, as statutory agent for the other named
Plaintiffs, the sum of Four Hundred Thousand Dollars ($400,000) for statutory violations of the
E-5 Program, above and beyond the monies currently escrowed in this matter;
Plaintiffs, the sum of One Million Nine Hundred Thousand Dollars ($1,900,000) for breach of
contract;
Plaintiffs, the sum of One Million Fifty Thousand Dollars ($1,050,000) for tortious interference
with contract;
Plaintiffs, the sum of Fifty Thousand Dollars ($50,000) for negligence;
Plaintiffs, the sum of Fifty Thousand Dollars ($50.000) for the violation of fraud or fraud in the
inducement of a contract;
191. Payment by the named Defendants to Mr. Terry Chan, the sum of Twenty-Five Thousand
Dollars ($25,000) for civil assault against that Plaintiff Terry Chan’s person;
Plaintiffs, the sum of Fifty Thousand Dollars ($50,000) for legal fees and expenses.
39
c. Declarative Judgment/Release of Escrowed Funds to Plaintiff Jardin Hill, LLC
193. A Declarative Judgment that the named Plaintiffs have satisfied the duties and financial
obligations under the federal E-5 Program and are therefore legally entitled to the payments to
them from the name Defendants as stipulated in this Complaint;
194. Release to Plaintiff Gary K. Chan, as statutory agent for the other named Plaintiffs, the entirety
of the escrowed account currently held at Defendant 22 Green Bank, Houston, Texas (Account
#5501149990) of all funds currently held in that account for the Plaintiff’s use in accordance
with their agreement/s under the E-5 Program (listed at Five Million Two Hundred Fifty
Thousand Thirty-Six Dollars ($5,250,036) at the time of this filing.
d. General Remedy
195. Any further remedy that this court finds just and appropriate.
VI. REQUEST FOR JURY TRIAL
196. NOW COME the Plaintiffs, by and through the undersigned legal counsel, to respectfully
request a jury trial on the merits of the case presented herein, pursuant to Fed. R. Civ Pro.
38(c).
Respectfully Submitted,
THE MARK BAMBERGER CO., LLC
_/s/ Mark J. Bamberger _________

Mark J. Bamberger, Esq. (OH#0082053)
PO Box 189
Spring Valley, Ohio 45370
(O): 937.644.8181
(F): 937.644.0548
(E): mark@bambewrgerlaw.com
Attorney for all named Plaintiffs
40

Jardin Hill V New City Advisors, S.D. Ohio 18-187, Complaint

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Jardin Hill V New City Advisors, S.D. Ohio 18-187, Complaint

Încărcat de

Drepturi de autor:

Formate disponibile

Case: 1:18-cv-00187-MRB Doc #: 1 Filed: 03/15/18 Page: 1 of 40 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT

Mr. Terry Chan

Mrs. Jacquelyn Chan

-vs- CIVIL COMPLAINT -

Lili Wang (Defendant 2)

Yannan Wang (Defendant 3)

Karen Zhou (Defendant 4)

Yuqi “Richard” LIN (Defendant 5)

ZHENG Xiaoling (Defendant 6)

SONG Chao (Defendant 7)

CHEN Yuhong (Defendant 8)

WEI Chen (Defendant 9)

ZHAO Bingtao (Defendant 10)

SHA Li (Defendant 11)

DU Xinmiao (Defendant 12)

YOU Chanyuan (Defendant 13)

YUE Lili (Defendant 14)

LIU Guangsheng (Defendant 15)

LI Bianfeng (Defendant 16)

CHENG Xiaoyi (Defendant 17)

QIN Ling (Defendant 18)

ZHANG Yunsheng (Defendant 19)

John Cannizzaro c/o Padre Grill, LLC

Ryan Wilmer c/o Padre Grill, LLC

Green Bank, N.A. (Defendant 22)

Rodizio Corporate dba Phoenix Franchise

Phoenix Restaurant Group, LLC, President and

Ivan Utera (Defendant 25)

All other John or Jane DOES (cumulatively

Section Description Paragraph/s Page

I. Jurisdictional and Venue Analysis, plus Green Bank’s

Complaint state the following;

I. JURISDICTIONAL AND VENUE ANALYSIS, PLUS GREEN BANK’S

Enterprises, Inc. v. U.S., 345 F.3d 683, 687 (Cir. 2003).

Exchange Commission (hereafter “SEC”) regulations.

Jurisdiction over the state law claims is conferred by 28 U.S.C. §1367.

the southern district of Ohio.

c Green Bank’s Interpleader Case (4:18-cv-00465)

Southern District of Texas, Houston Division (Case No.: No. 4:18-cv-00465).

6. An interpleader actions is an equitable proceeding brought by a third person to have a court

that third person.1

has been docketed with any court of competent jurisdiction.

RG Opportunities according to the certificate of incumbency previously provided to [the Escrow

Administrator] and Green Bank.” Interpleader Complaint, ¶11.2

this time mute since there is no controversy between authorized parties.

MGMT, LLC, the General Partner for RG Opportunities I, LP.

United States-filed corporation, incorporated in Delaware USA (File #5386610) and

headquartered near San Jose, California (Entity #20141310249).

San Jose, California.

currently living in Beijing, China.

through 19 and Defendant 22, and currently lives in Beijing, China.

currently live in China.

dba Phoenix Restaurant Group,

Francisco, California, United States.

24”) is a corporate entity based in Utah, United States.

is based in Utah, United States.

referred to, directly or indirectly, in this lawsuit.

a. The EB-5 Program

million in business ventures employing at least 10 American workers. See 8 U.S.C.

312 F.3d 100, 103 (Cir. 2002).

$500,000 need be invested. Id.; see also 8 C.F.R. §204.6(f)(2).

361, 362 (Cir. 2015).