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Big Cat Rescue Corp. v. G.W. Exotic Animal Memorial Foundation

United States District Court, W.D. Oklahoma

September 7, 2017

BIG CAT RESCUE CORP., Plaintiff,
v.
G.W. EXOTIC ANIMAL MEMORIAL FOUNDATION and THE GAROLD WAYNE INTERACTIVE ZOOLOGICAL FOUNDATION, Defendants, GREATER WYNNEWOOD EXOTIC ANIMAL PARK, LLC, Intervenor.

          ORDER

          VICKI MILES-LAGRANGE UNITED STATES DISTRICT JUDGE.

         Before the Court is Intervenor's Motion to Vacate Order Appointing Receiver and Request for Immediate Stay of Receivership Pending the Court's Ruling on Intervenor's Motion, filed January 6, 2017. On January 27, 2017, plaintiff, Big Cat Rescue Corp. (“Big Cat Rescue”), responded, and on February 6, 2017, intervenor replied. Based on the parties' submissions, the Court makes its determination.

         I. Background

         Defendant G.W. Exotic Animal Memorial Foundation (“G.W. Zoo”) was founded in 1999 and owned and operated an exotic animal park and zoo located in Wynnewood, Oklahoma. In February of 2013, Big Cat Rescue obtained civil consent judgments and permanent injunctions against G.W. Zoo in three civil proceedings then pending in the United States District Court for the Middle District of Florida, Tampa Division, which were domesticated as Oklahoma judgments in this Court. The judgments were based on trademark infringement, false designation of origin, unfair competition, misrepresentation, and copyright infringement.

         On or about February 18, 2013, within days of the entry of the judgments, former defendant John Finlay, who served on the G.W. Zoo's board of directors, filed a reservation with the Oklahoma Secretary of State to reserve the name The Garold Wayne Interactive Zoological Foundation (“Garold Wayne Zoo”). The Garold Wayne Zoo was incorporated on or about February 19, 2013, by former defendant John Reinke, who was also on the board of directors of the G.W. Zoo. On February 19, 2013, the G.W. Zoo transferred substantially all of its assets and its ongoing business operations to the Garold Wayne Zoo, for no consideration. On February 25, 2013, the G.W. Zoo was dissolved by a unanimous vote of its board of directors, and a Certificate of Dissolution was filed with the Oklahoma Secretary of State on February 27, 2013. Thereafter, the Garold Wayne Zoo continued the operations of the G.W. Zoo. On March 29, 2013, the G.W. Zoo filed for Chapter 7 bankruptcy in this Court.

         On April 15, 2014, Big Cat Rescue filed this action alleging that: (1) the Garold Wayne Zoo received fraudulent conveyances and transfers from the G.W. Zoo, in that substantially all of the G.W. Zoo's assets, and its entire business operations, were transferred without consideration by the G.W. Zoo, through insiders and its board of directors, to the Garold Wayne Zoo; and (2) the Garold Wayne Zoo is the successor to the G.W. Zoo and that the Garold Wayne Zoo is a mere continuation of the G.W. Zoo and are alter egos one to the other.

         On February 1, 2016, the Court entered an Agreed Judgment and Permanent Injunction in this matter, in which the Court granted judgment in favor of Big Cat Rescue and against the Garold Wayne Zoo on Big Cat Rescue's claims of fraudulent transfer and alter ego. Further, the Court entered a Permanent Injunction against the Garold Wayne Zoo and the G.W. Zoo which stated:

[The G.W. Zoo] and [the Garold Wayne Zoo], and their servants, agents, employees, interns, attorneys, parents, subsidiaries, predecessors, successors, affiliates, officers, directors, shareholders, members, mangers, principles and assigns, past, present and future, and any and all persons acting by and under their authority or in concert with them, are enjoined from transferring, encumbering, liquidating or disposing of any assets or business operations of [the G.W. Zoo] and/or [the Garold Wayne Zoo] other than in the ordinary course of business. This Permanent Injunction does not prohibit a cessation of operations so long as the assets of [the G.W. Zoo] and [the Garold Wayne Zoo] are preserved and not transferred, and the other terms of this Permanent Injunction are complied with. [The G.W. Zoo] and [the Garold Wayne Zoo] are specifically prohibited from transferring, encumbering, liquidating or otherwise disposing of any and all tangible and/or intangible assets or business operations of [the G.W. Zoo] and/or [the Garold Wayne Zoo], of any kind, including but not limited to: 1) bank accounts; 2) real and personal property; 3) vehicles; 4) stocks, bonds, mutual funds or other investment accounts; 5) intellectual property; 6) all trade names; and 7) good will. This Permanent Injunction shall remain in full force and effect after the close of the case, or until further order of this Court.

         Agreed Judgment and Permanent Injunction [docket no. 182]. Further, on February 2, 2016, the Court granted Big Cat Rescue's partial summary judgment and ordered the Garold Wayne Zoo to pay Big Cat Rescue $1, 028, 000.00 plus interest. Judgment was issued, and this matter was terminated.

         On March 4, 2016, Big Cat Rescue filed its Motion for Immediate Appointment of a Receiver to Take Charge of the Revenue and Receipts of the Garold Wayne Interactive Zoological Foundation, and Brief in Support. Further, on March 10, 2017, Big Cat Rescue filed a supplemental motion to its motion to appoint a receiver, in which it advised the Court that the Garold Wayne Zoo was now being operated by the Greater Wynnewood Exotic Animal Park, LLC (“Greater Wynnewood”). Big Cat Rescue served its supplemental motion on counsel for the G.W. Zoo through the Court's electronic filing system and mailed a copy of its supplemental motion to the Garold Wayne Zoo agents - G.W. Exotic Animal Foundation c/o Joe Schreibvogel k/n/a Joe Maldonado and Bobbi Lynn Corona; however, Big Cat Rescue did not serve Greater Wynnewood with its supplemental motion. On March 14, 2016, the Court, without hearing from the G.W. Zoo, the Garold Wayne Zoo, or Greater Wynnewood, granted Big Cat Rescue's motions and appointed Receiver Ken Klingenberg (“Receiver”) as receiver with all powers necessary to collect and administer the revenues and receipts of the Garold Wayne Zoo, including but not limited to, those necessary to:

1. Inventory all personal property owned by the Zoo or its successor;
2. Open savings and checking accounts(s) (the “Accounts”);
3. Take possession of the Zoo's or its successor's financial accout(s), including any online payment and/or donations accounts, including but not limited to PayPal and gofundme accounts, with the authority to link each account to the Accounts;
4. Take possession of, collect, and manage the proceeds, revenues, profits, donations accounts receivable, including but not limited to daily donations, tour revenue, and all other daily income generated by the Zoo or its successors, from any sources whatsoever (the “Proceeds”);
5. Collect, endorse, and deposit all Proceeds into the Accounts;
6. Identify, access, and review all records, statements, books of accounting, ledgers, financial accounts, and all other documents related or pertaining to the generation of income, from any ...

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