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UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No. 1:20-cv-22234- MARTINEZ-BECERRA

LINCO ENTERPRISES, INC.

Plaintiff,

v.

OLEG FIRER, EZ CAPITAL FUND, LLC, 

STAR CAPITAL MANAGEMENT, LLC,

And STAR EQUITIES, LLC,

Defendants.

________________________________________________/

OLEG FIRER, EZ CAPITAL FUND, LLC, 

STAR CAPITAL MANAGEMENT, LLC,

And STAR EQUITIES, LLC,

Counter-Plaintiffs,

v.

LINCO ENTERPRISES, INC,

Counter-Defendant,

________________________________________________/

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR 

ORDER THAT STRIKES CERTAIN AFFIRMATIVE DEFENSES OR DEEMS THEM 

TO BE DENIALS AND INCORPORATED MEMORANDUM OF LAW

Defendants / Counter-Plaintiffs OLEG FIRER (“Firer”), EZ CAPITAL FUND, LLC (“EZ 

Capital”), STAR CAPITAL MANAGEMENT, LLC (“Star Capital”), and STAR EQUITIES, LLC 

(“Star Equities”) (collectively “Defendants”), by and through their undersigned counsel, respond 

Case 1:20-cv-22234-JEM Document 71 Entered on FLSD Docket 05/10/2021 Page 1 of 12
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in opposition to Plaintiff / Counter-Defendant LINCO ENTERPRISES, INC’s(“Plaintiff”) Motion 

for Order that Strikes Certain Affirmative Defenses or Deems Them to be Denials (ECF No. 62) 

(“Motion”) and state as follows:

INTRODUCTION

Plaintiff’s Motion takes issue with nine of the Affirmative Defenses asserted by 

Defendants. With respect to Defendants’ Second, Third, Seventh, Eleventh, Twelfth, Eighteenth, 

Twentieth, and Twenty-First Affirmative Defenses, Plaintiff’s argument that these affirmative 

defenses are legally insufficient, or should be deemed denials, is an improper attempt to contest 

the merits of the facts pled in these affirmative defenses, which Plaintiff is not allowed to do at the 

pleading stage. Plaintiff’s Motion ignores that these defenses incorporate new facts that challenge 

Defendants’ alleged liability. Therefore, they are properly alleged affirmative defenses and not 

simply denials. However, even if any one of these defenses was a denial, then case law holds that 

the proper procedure is not to strike it but rather treat it is a specific denial.

The remaining affirmative defense challenged by Plaintiff is the First Affirmative Defense. 

Defendants do not oppose striking this affirmative defense.

LEGAL STANDARD

“The striking of affirmative defenses is a ‘drastic remedy’ generally disfavored by courts.”

Pujals ex rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1327 (S.D. Fla. 2011).

“Under Rule 8(c), an affirmative defense is sufficient when it places the plaintiff and the 

court on notice of issues Defendant intends to assert against Plaintiff's claims.” McLendon v. 

Carnival Corp., No. 20-CV-24939, 2021 WL 848945, at *2 (S.D. Fla. Mar. 5, 2021). “Motions 

to strike should not be used to obtain a summary adjudication on the merits.” Achievement & 

Rehab. Centers, Inc. v. City of Lauderhill, No. 12-61628-CIV, 2012 WL 6061762, at *1 (S.D. Fla. 

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Dec. 6, 2012).

MEMORANDUM OF LAW

A. Second Affirmative Defense.

Defendants’ Second Affirmative Defense asserts that Plaintiff’s claims are derivative in 

nature. Plaintiff argues this affirmative defense should be stricken because Plaintiff alleges its 

claims are direct claims. Plaintiff’s Motion alleges that its claims are direct claims because

Plaintiff alleges that “it invested $1,480,000 as result of misrepresentations made to it by the other 

members who misrepresented contributions in excess of six million dollars to the Closely Held 

Companies” and that “[t]he other members, Star Equities and Mr. Gelman, did not sustain any 

losses as they invested nothing in the Closely Held Companies.” (ECF No. 62 at 12-13). Plaintiff 

cites no support for its allegation that the other members did not sustain any losses. Id. Plaintiff 

further alleges the claims are not direct claims because Plaintiff alleges that Defendants allegedly 

violated state and federal securities laws. (ECF No. 62 at 13).

When “analyzing whether a claim is derivative or direct, [the court] looks to the nature of 

the alleged wrong rather than the designation used by the plaintiff in the complaint.” Trondheim 

Cap. Partners, LP v. Life Ins. Co. of Alabama, No. 4:19-CV-1413-KOB, 2020 WL 7223375, at *6 

(N.D. Ala. Dec. 8, 2020). “If the gravamen of the complaint is injury primarily to the corporation 

or to the shareholders generally, then the claim belongs to the corporation and the shareholder's 

right to bring the action derives from the corporation.” Kammona v. Onteco Corp., 962 F. Supp. 

2d 1299, 1303 (S.D. Fla. 2013), aff’d, 587 F. App'x 575 (11th Cir. 2014).

Florida law states that “[a]n action may be brought directly only if (1) there is a direct harm 

to the shareholder or member such that the alleged injury does not flow subsequently from an 

initial harm to the company and (2) there is a special injury to the shareholder or member that is 

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separate and distinct from those sustained by the other shareholders or members.” Triton II, LLC 

v. Randazzo, No. 18-CV-61469, 2018 WL 4932342, at *5 (S.D. Fla. Oct. 10, 2018) (citing Dinuro 

Invs., LLC v. Camacho, 141 So. 3d 731, 739-40 (Fla. 3d DCA 2014))

Dinuro Invs., LLC v. Camacho identified an exception to the above two-part test “if some 

separate duty is owed from a defendant to the plaintiff shareholder or member, usually granted by 

contract or statute.” 141 So. 3d 731, 740 (Fla. 3d DCA 2014). “However, the express terms of 

the statute seem to do away with the separate statutory duty exception articulated in Dinuro.” 

Silver Crown Invs., LLC v. Team Real Est. Mgmt., LLC, 349 F. Supp. 3d 1316, 1326 (S.D. Fla. 

2018). “Accordingly, only if there is a contract—like an LLC's operating agreement—allowing 

plaintiff members to bring direct claims against other members or managers, can a plaintiff bring 

a direct action without needing to satisfy the two-prong test.” Id.

In some circumstances, even securities fraud claims and claims based on fraud in the 

inducement may be required to be brought as derivative claims. See Kammona v. Onteco Corp., 

962 F. Supp. 2d 1299,1302 (S.D. Fla. 2013), aff'd, 587 F. App'x 575 (11th Cir. 2014) (stating that 

securities fraud claim was derivative); c.f. Silver Crown Invs., LLC v. Team Real Est. Mgmt., LLC, 

349 F. Supp. 3d 1316,1328-1329 (S.D. Fla. 2018) (stating that a fraudulent inducement claim was

direct because no allegations made that statements were made to non-plaintiff members were also 

fraudulently induced to invest).

In Medkser v. Feingold, 307 F. App'x 262, 263 (11th Cir. 2008), the plaintiff alleged that 

the defendants engaged in fraud and civil conspiracy to induce them to invest in a hedge fund. The 

Eleventh Circuit found that the securities fraud claims were direct because the complaint alleged 

that other investors “may” have heard the misrepresentations in addition to the plaintiff. However, 

with respect to a civil conspiracy claim, the court found such claim is a derivative claim because 

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the plaintiffs alleged the defendants converted their funds by transferring the funds to their 

personal accounts, and such claim is indistinguishable from self-dealing and mismanagement types 

of claims, which traditionally are derivative. Id.

In this case, Plaintiff makes allegations that are, at their core, similar to the self-dealing

and mismanagement claims that result in an injury not only to Plaintiff but to other members.

Plaintiff’s Second Amended Complaint (ECF No. 59) (“SAC”) alleges that Plaintiff, Star Equities, 

and non-party Gelman were not the only members of EZ Capital because the SAC alleges that 

non-party Roman Khomenko was also a member of EZ Capital. (ECF No. 59 ¶ 32(a), 33, 36). 

The SAC alleges mismanagement of EZ Capital by Gelman and Firer, and the SAC alleges that 

Firer and Gelman “drained” EZ Capital and ultimately wanted to keep for themselves the funds of 

Plaintiff. (ECF No. 59 ¶¶ 32(c), 32(d), 71, 108). Plaintiff’s SAC admits there was no required 

special injury to Plaintiff that is separate and distinct from those sustained by the other members 

because Plaintiff alleges that it suffered injury because the “defendants added no capital 

contributions of their own” and the “defendants misused Linco’s contributions in business 

enterprises operated for the benefit of Firer, Gelman, and affiliated persons.” (ECF No. 59 ¶¶ 108). 

Even if true (Defendants contest Plaintiff’s allegations), the cause of the injury, and the injury, 

alleged by Plaintiff would be felt by all the members equally because contributions are owed to 

the entities and Plaintiff expressly pleads that there were members to EZ Capital that are not 

defendants to this case such that all members of EZ Capital would have been injured by the alleged 

misuse of Plaintiff’s contributions. Triton II, LLC v. Randazzo, No. 18-CV-61469, 2019 WL 

1777726, at *7 (S.D. Fla. Apr. 23, 2019) (“Here, Triton transferred funds to CVH Florida, and 

upon transfer, they became property of the LLC”). Accordingly, the Motion should be denied 

because the Second Affirmative Defense is legally sufficient and/or the Second Affirmative 

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Defense raises substantial questions of law and fact better decided after factual development. See 

Achievement & Rehab. Centers, Inc., 2012 WL 6061762, at 1 (denying motion to strike) (“These 

defenses are not patently frivolous or clearly invalid as a matter of law. They each at least raise 

substantial questions of law better decided after factual development. . . [t]he extent to which these 

defenses are viable or not is best decided in another setting”).

B. Third, Eleventh, and Twelfth Affirmative Defense.

Plaintiff’s argument that Defendants’ Third, Eleventh, and Twelfth Affirmative Defenses 

are merely denials should be denied.

Defendants’ Third Affirmative Defense introduces new facts outside of the SAC, and that

form a basis for Defendants’ defense to Plaintiff’s claims. Confianca Mudancas E Transportes 

LTDA v. Confianca Moving, Inc., No. 09-21763-CIV, 2009 WL 10667442, at *2 (S.D. Fla. Dec. 

23, 2009) (internal citations and quotations omitted) ( “An affirmative defense is defined as ‘[a] 

defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or 

prosecution's claim, even if all allegations in the complaint are true’”). Specifically, Defendants’ 

Third Affirmative Defense alleges various facts that go to the due diligence conducted by Plaintiff 

prior to making its alleged contributions, and that go to Plaintiff’s alleged reliance, which is a 

defense to Plaintiff’s claims. (ECF No. 60 at Third Affirmative Defense); Gochnauer v. A.G. 

Edwards & Sons, Inc., 810 F.2d 1042, 1047 (11th Cir. 1987)(“This Circuit requires 

‘reasonable reliance’ upon the material misrepresentations, a test of subjective reliance tempered 

by the requirement of ‘due diligence’ on the part of the plaintiff.”) 

With respect to the Eleventh Affirmative Defense and Twelfth Affirmative Defenses, the 

Eleventh Affirmative Defense alleges that the SAC fails to state a cause of action because no 

misrepresentations were committed during the sale of securities, and even if there were, such 

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misrepresentations were not the proximate cause of Plaintiff’s loss. Thus, Defendants’ Eleventh 

Affirmative Defense is an affirmative defense because it raises new facts and arguments in 

response to Plaintiff’s allegations in the SAC. Similarly, Defendants’ Twelfth Affirmative Defense 

makes factual allegations that form the basis for why Plaintiff should not be awarded punitive 

damages. 

In sum, the Third, Eleventh, and Twelfth Affirmative Defenses are affirmative defenses

because they raise new facts and arguments.

C. Seventh Affirmative Defense.

Defendants’ Seventh Affirmative Defense properly raises facts and arguments to show

exactly why Plaintiff is not a dissociated member entitled to inspect the books and records of Star

Capital.

Plaintiffs’ argument that this defense is legally insufficient appears to rest on the allegation 

that any transfer of an interest in a limited liability company causes a member to be a dissociated 

member. (ECF No. 62 at 13). Specifically, Plaintiff alleges the Seventh Affirmative Defense is 

legally insufficient because Plaintiff alleges that “a member’s transfer of its interest in a limited 

liability company causes dissociation from the company” under Fla. Stat. § 605.0602(5)(b) and

Plaintiff alleges that Defendants therefore admit Plaintiff is a dissociated member by alleging in 

the defense that Plaintiff sought to and did, sell Plaintiff’s interest in Star Capital. Plaintiff is 

misstating the law.

A transfer, in whole or in part, of a transferable interest “does not by itself cause a 

member’s dissociation . . .” Fla. Stat. § 605.0502(1)(b). Furthermore, on its face, Fla. Stat. § 

605.0602(5)(b), does not apply to every instance where there is a transfer of interest because Fla. 

Stat. § 605.0602(5)(b) is premised on the condition that “[t]he person is expelled as a member by 

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the unanimous consent of the other members if any of the following occur . . . .” Id. If every 

transfer of a member’s interest caused dissociation under Section 605.0602(5)(b), then Fla. Stat. §

605.0502(1)(b) would be meaningless.

There is no allegation in the pleadings that Plaintiff was expelled from Star Capital such 

that Fla. Stat. § 605.0502(1)(b) would apply. In fact, Plaintiff alleged, in the SAC, that Plaintiff 

withdrew from Star Capital. (ECF No. 59 ¶ 120). Defendants’ Seventh Affirmative Defense 

properly introduces new facts in response to Plaintiff’s claims of withdrawal, namely that Plaintiff

sought to, and did, sell Linco’s interest in Star Capital through the Class B Common Share 

Purchase Agreement. (ECF No. 60 at Seventh Affirmative Defense). Plaintiff’s argument against 

the Seventh Affirmative Defense is based on the incorrect statement of law that every transfer of 

membership interest results in a member being a dissociated member. Plaintiff’s Motion with 

respect to the Seventh Affirmative Defense should thus be denied because it is legally incorrect

and because it makes “legal conclusions that depend upon the determination of contested factual 

issues” which are not appropriate at the pleading stage. Pujals ex rel. El Rey De Los Habanos, 

Inc. v. Garcia, 777 F. Supp. 2d 1322, 1331 (S.D. Fla. 2011).

D. Eighteenth, Twentieth, and Twenty-First Affirmative Defenses.

The Eighteenth Affirmative Defense states that Defendant’s alleged actions were not the 

proximate cause for Plaintiff’s loss. Additionally, the Twentieth and Twenty-First Affirmative 

Defense assert that Plaintiff’s claims are barred by the doctrine of impossibility and commercial 

impracticability, respectively. With respect to Star Capital, the defenses each assert, due to the 

COVID-19 pandemic, that Star Capital’s assets suffered which caused a loss to all members of

Star Capital, which caused any loss for which Plaintiff complains of in this case. With respect to 

EZ Capital, the defenses each assert that non-party VG Financing isthe primary asset of EZ Capital 

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and that due to the COVID-19 pandemic, the business of VG Financing suffered, and therefore EZ 

Capital suffered as well, and caused a loss to all members of EZ Capital, and any loss for which 

Plaintiff complains of in this case.

First, Plaintiff argues that these defenses are merely denials and should be stricken (ECF 

No. 62 at 8-9), but as set forth above they are affirmative defenses because they raise new facts 

and arguments, and even if they were found to be denials, they should be treated as specific denials 

and not be stricken. Second, Plaintiff argues that these defenses are legally insufficient in that they 

only exist as an excuse for nonperformance in breach of contract cases and cannot be used a 

defense to Plaintiff’s tort or fraud claims. (ECF No. 62 at 14). Through each of the defenses, 

Defendants are alleging that the alleged loss suffered by Plaintiff was not a but-for consequence 

of the alleged misrepresentations, acts, or omissions, but was rather substantially caused by the 

appearance of a supervening or external event. Defendants’ assertion of this type of defense, in 

response to Plaintiff’s claims, is nothing new and has been analyzed by courts throughout the

country when ruling on securities fraud cases, and other fraud-related cases as well. For example,

in Patel v. Patel, 761 F. Supp. 2d 1375, 1381 (N.D. Ga. 2011), a court found that the plaintiff had 

not adequately alleged loss causation because the plaintiff had not offered facts distinguishing 

losses caused by the defendants from intervening events that wreaked havoc on the markets as a

whole. In a similar way, in Bastian v. Petren Res. Corp., 892 F.2d 680, 684 (7th Cir. 1990), the 

Seventh Circuit analyzed whether the plaintiff’s investment was wiped out by the collapse in oil 

prices and not because of defendants’ alleged misrepresentations. In First Nationwide Bank v. 

Gelt Funding Corp., 27 F.3d 763, 772 (2d Cir. 1994), the Second Circuit ruled that the timing of 

the losses suggested that the real estate market crash was a substantial cause for plaintiff’s loss, 

and therefore plaintiff could not satisfy the elements for its RICO claim.

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In a similar way to the cases cited above, here, the COVID-19 pandemic was a supervening 

event that interrupted the causal chain between the Defendants’ alleged misrepresentations, acts, 

and/or omissions and any alleged loss suffered by Plaintiff. The financial havoc brought by the 

COVID-19 pandemic was the cause of any loss suffered by Plaintiff. Plaintiff attempts to respond 

to this defense by alleging that these defenses cannot stand because Plaintiff invested in 2017 while 

the COVID-19 pandemic began on 2020. (ECF No. 62 at 14-15). Yet, Plaintiff filed this case in 

May 2020, and Plaintiff’s argument that it suffered any damages prior to the COVID-19, and 

Plaintiff’s argument that its damages were not the result of COVID-19 or the degradation of EZ 

Capital’s primary asset, is essentially an improper argument as to legal conclusions that depend on 

a determination of contested factual issues, and should be therefore denied. Thus, this Court should

deny Plaintiff’s arguments with respect to the Eighteenth, Twentieth and Twenty-First Affirmative 

Defenses.

WHEREFORE, Defendants respectfully request that this Court enter an order denying 

Plaintiff’s Motion to Strike Affirmative Defenses, and any such other and further relief as this 

Court deems just and proper.

Dated: May 10, 2021 Respectfully submitted,

STARK WEBER PLLC

Attorneys for Florida Supplement, 

L.L.C.

1221 Brickell Avenue

Suite 900

Miami, FL 33131

Tel: 305-377-8788

steve@starkweber.com

By: s/Steven D. Weber

Steven D. Weber

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 10th day of May, 2021 a copy of the foregoing has been 

served via the Court’s CM/ECF portal to:

Sergiu Gherman

FBN: 037031

GHERMAN LEGAL PLLC

25 SE 2nd Avenue, Suite 808

Miami, Florida 33131-1603

Tel / Fax (305) 459-1551

sgherman@ghermanlaw.com

Attorney for Plaintiff

Paul Aiello

Florida Bar No. 0909033

BENNETT & AIELLO

3471 Main Highway, Suite 206

Coconut Grove, Florida 33133-5929

Phone: (305) 358-9011

Facsimile: (305) 358-9012

paiello@bennettaiello.com

Attorney for Plaintiff

By: s/Steven D. Weber

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