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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

GOODMAN NETWORKS, INC.,

Debtor.

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Chapter 11

Case No. 22-31641-MVL-7

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SCOTT M. SEIDEL, TRUSTEE; 

and GNET ATC, LLC,

Plaintiffs,

v.

18920 NW 11th, LLC; JAMES 

GOODMAN; JAMES FRINZI; 

STEVEN ZAKHARYAYEV; 

EVELINA PINKHASOVA’ 

PEOPLE NQ INC.; JJC & 

PEOPLE LLC; GDMN FAMILY 

INVESTMENTS 2, LLC,

Defendants.

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Adv. Pro. No. 23-03072-MVL

ORDER GRANTING IN PART AND DENYING IN PART STEVEN ZAKHARYAYEV 

AND EVELINA PINKASHOVA’S MOTION TO DISMISS

United States Bankruptcy Judge

______________________________________________________________________

Signed February 12, 2024

The following constitutes the ruling of the court and has the force and effect therein described.

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Before the Court is Defendants Steven Zakharyayev and Evelina Pinkhasova’s (the 

“Individual Defendants”) Motion to Dismiss (the “Motion”), filed on September 22, 2023, at 

ECF No. 7. Through the Motion, the Individual Defendants seek dismissal of Counts 7-9 of the 

Original Complaint filed by the duly appointed Chapter 7 trustee, Scott Seidel (the “Trustee” and 

together with GNET ATC, LLC, the “Plaintiffs”) at ECF No. 1 (the “Complaint”). Specifically, 

the Individual Defendants seek dismissal of the Trustee’s conspiracy, fraud, and aiding and abetting 

causes of action. 

A hearing was held on the Motion on November 8, 2023. Counsel appeared for the Trustee 

and the Individual Defendants. After hearing argument on the underlying issues, the Court took 

the Motion under advisement. Accordingly, after considering the issues presented, the applicable 

authority, and the briefing and oral arguments of counsel, the Court concludes that the Motion 

should be GRANTED IN PART AND DENIED IN PART, as more particularly detailed hereinafter. 

The following constitutes the Court’s ruling. 

I. Jurisdiction

The Court has jurisdiction over these matters pursuant to 28 U.S.C. §§ 157 and 1334. The 

Court finds that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue is proper in this 

District pursuant to 28 U.S.C. §§ 1408 and 1409.

II. Factual Background 

The Plaintiffs allege the following facts, among others, in the Complaint:1

1 The Plaintiffs’ facts are taken as true for purposes of the Motion. 

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As of March 2022, the Debtor had few remaining assets including a secured promissory 

note of $44 million payable by American Metals Recovery and Recycling, Inc. n/k/a MBG 

Holdings, Inc. (“AMRR”), a license from the Tiger Athletic Foundation, and certain trademarks 

that it and its subsidiaries used to conduct business. ECF No. 1, at ¶ 34. By March 1, 2022, the 

Debtor had insufficient assets to satisfy obligations to its creditors. Id. at ¶ 35. 

The Debtor issued shares of Series A-1 preferred stock in connection with its prior chapter 

11 case in 2017. Id. at ¶ 36. While a previous mandatory redemption right existed in 2017 by virtue 

of the Debtor’s Third Amended and Restated Certificate of Formation filed with the Texas 

Secretary of State, no mandatory redemption right existed in 2022. Id. In fact, the Debtor filed its 

Sixth Amended and Restated Certificate of Formation with Texas Secretary of State in 2020, which 

removed the mandatory redemption provision for Series A-1 Preferred Stock. Id. at ¶ 37.

James Goodman (“Goodman”) sought to monetize his, and the Goodman Entities’, equity 

in the Debtor, and James Frinzi (“Frinzi”), the acting chief executive officer of GNET ATC, LLC

(“GNET”), proposed that Goodman seek to sell some or all of the Series A-1 Preferred Stock held 

by the Goodman Entities.2Id. at ¶ 39-40. Frinzi identified Steven Zakharyayev (“Zakharyayev”) 

to be the third party to purchase a negotiated amount of the Series A-1 preferred stock and 

introduced Zakharyayev to Goodman. Id. at ¶ 40. Zakharyayev and his wife Evelina Pinkhasova

(“Pinkhasova”) owned 18920 NW 11th, LLC (“18920”). On March 9, 2022, 18920 purchased 

3,407,076 Series A-1 preferred shares in Goodman Networks from three companies controlled by 

Goodman for approximately $12,000,000. Id. at ¶ 42-45, 48. In each of the purchase agreements, 

18920 agreed that it would have immediately available funds to pay the purchase price. Id. at ¶ 47. 

2 Capitalized terms not defined herein shall adhere to the meaning ascribed to such terms in the Complaint. 

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On March 9, 2022, Pinkhasova wrote to Goodman Networks on behalf of 18920 and 

demanded redemption of its shares. Id. at ¶ 49. At the time of the demand, payment for the shares 

had not been received, nor had the shares been transferred to 18920. Id. Further, no mandatory 

redemption obligation existed. Id. Nevertheless, Frinzi, on behalf of the Debtor, negotiated a 

promissory note with Zakharyayev, on behalf of 18920, wherein the Debtor promised to pay 

$50,000,000 to 18920 (the “Promissory Note”). Id. at ¶ 50. Soon after, 18920 agreed to release 

the Debtor from its obligations under the Promissory Note in exchange for $14,500,000 and 

transfer certain assets pursuant to a settlement agreement (the “Settlement Agreement”). Id. at ¶ 

53. In the Settlement Agreement, the Debtor also agreed to assign half of its intertest in a $44 

Million promissory note due and payable from AMRR to 18920 and transfer its interest in another

$4.5 million promissory note with a different third party to 18920. Id. To date, the Debtor and 

GNET have paid at least $13.2 million to 18920. Id. at ¶ 57. 

On September 6, 2022, various petitioning creditors filed an involuntary petition against 

the Debtor, thereby initiating a bankruptcy case under Chapter 7 of the Bankruptcy Code and 

creating the Debtor’s bankruptcy estate. The Court entered an order for relief against the Debtor 

on December 12, 2022. On August 5, 2023, the Plaintiffs filed their Complaint, commencing the 

above-captioned adversary proceeding. On September 22, 2023, the Individual Defendants filed 

their Motion to Dismiss. 

III. Legal Standard

The Individual Defendants seek dismissal of the Complaint pursuant to Rules 9(b) and 

12(b)(6) of the Federal Rules of Civil Procedure (the “Rules”). Rule 12(b)(6) is made applicable 

to adversary proceedings before this Court by Rule 7012(b) of the Federal Rules of Bankruptcy 

Procedure (the “Bankruptcy Rules”), which permits dismissal of a complaint if the plaintiff fails 

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to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6); FED. R. BANKR. P.

7012(b). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires a “short and 

plain statement of the claim showing that the pleader is entitled to relief.” See FED. R. CIV. P. 8; 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Thus, 

to withstand a 12(b)(6) motion, a complaint must contain sufficient facts to state a facially plausible 

claim to relief. Twombly, 550 U.S. at 570. This plausibility requirement sits somewhere between 

possible and probable and is satisfied where the plaintiff’s pleaded facts allow the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 

678. Conclusions, labels, and formulaic recitations of the elements of a claim are insufficient to 

withstand a 12(b)(6) motion. Id.

Where, as here, a complaint alleges fraud, Rule 9(b), made applicable to adversary 

proceedings by Bankruptcy Rule 7009, upgrades the pleading standard, requiring that the party 

asserting fraud state with particularity the circumstances constituting fraud or mistake, though 

malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. FED.

R. BANKR. P. 7009. Rule 9(b) typically requires the plaintiff to identify the “who, what, when, 

where, and how” of the alleged fraud. In re Dual D Health Care Operations, Inc., No. 17-41320-

ELM, 2021 WL 3083344, at *5 (Bankr. N.D. Tex. July 21, 2021).

In reviewing the Complaint and considering the Motion, the Court must accept all wellpleaded facts as true and view them in light most favorable to the Plaintiffs. Sonnier v. State Farm 

Mut. Auto Ins. Co., 509 F.3d 673, 675 (5th Cir. 1994). Generally, Rule 12(b)(6) motions are viewed 

with disfavor and dismissal based thereon is rarely granted. Thompson v. Goetzmann, 337 F.3d 

489, 495-94 (5th Cir. 2003). The Court’s review of the Motion is limited to the Complaint and 

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documents incorporated into it by reference and any matter of which the Court may take judicial 

notice. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019). 

IV. Civil Conspiracy – Count 7

The Individual Defendants argue that the Complaint does not allege that the Individual 

Defendants conspired with Frinzi to do anything, which they argue is essential with regard to a 

claim for civil conspiracy. The Trustee counters by arguing that he need only allege that the 

Individual Defendants conspired “with respect to Frinzi’s breaches of his fiduciary duties.” ECF 

No. 13, at ¶ 9 (emphasis added). Further, the Trustee argues that he satisfied his burden by alleging 

the Individual Defendants “conspired to cause Frinzi to breach his fiduciary duties.” Id. (emphasis 

added).

Civil conspiracy is a derivative tort, which means that liability for civil conspiracy depends 

on participation in an underlying tort. Homoki v. Conversion Services, Inc., 717 F.3d 388, 402 (5th 

Cir. 2013). Therefore, to adequately plead a claim for civil conspiracy, the plaintiff must allege 

both a claim for conspiracy and a claim for an underlying tort. Id. The elements of a civil 

conspiracy include: “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of 

the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages 

as a proximate result.” Tri v. J.T.T., 162 S.W.3d 552 (Tex. 2005). Here, the underlying tort the 

Plaintiffs claim is breach of fiduciary duty. “In Texas, ‘[t]he elements of a breach of fiduciary duty 

claim are: (1) a fiduciary duty existed between the plaintiff and the defendant; (2) the defendant 

breached its fiduciary duty to the plaintiff; and (3) the defendant’s breach resulted in injury to the 

plaintiff or benefit to the defendant.” Homoki, 717 F.3d at 402-04 (quoting Jones v. Blume, 196 

S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied)).

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The “meeting of the minds” element requires parties’ agreement “to accomplish an 

unlawful purpose or to accomplish a lawful purpose by unlawful means.” Transp. Ins. Co. v. 

Faircloth, 898 S.W.2d 269, 278 (Tex. 1995). Additionally, there must be a “a preconceived plan 

and unity of design and purpose.” In re Enron Corp. Sec., Derivative & ERISA Litig., 623 F. Supp. 

2d 798, 809 (S.D. Tex. 2009) (quoting Goldstein v. Mortenson, 113 S.W.3d 769, 779 (Tex. App.—

Austin 2003, no pet.)). Taking these elements together, “[a] conspiracy to defraud on the part of 

two or more persons means a common purpose, supported by concerted action to defraud, that 

each has the understanding that the other has that purpose.” Goldstein, 113 S.W.3d at 779. To 

satisfy the meeting of the minds requirement, “there must be a preconceived plan and unity of 

design and purpose.” Id. Likewise, the Supreme Court of Texas held that for a civil conspiracy to 

arise, the parties must be aware of the harm or wrongful conduct at the beginning of the agreement. 

See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 867 (Tex. 

1968). A co-conspirator must have knowledge of the object and purpose of the conspiracy. Id.

Here, the Trustee seeks to hold the Individual Defendants “jointly and severally liable with 

Frinzi for all damages awarded to Trustee and GNET for Frinzi’s breaches of fiduciary duty.” ECF 

No. 1 at ¶ 130. The problem that arises is that the Trustee never alleges that the Individual 

Defendants conspired with Frinzi to breach his fiduciary duties. Instead, the Trustee alleges that 

the Individual Defendants conspired amongst themselves with respect to Frinzi’s breach of 

fiduciary duty. Nowhere in the Complaint does the Trustee allege that Frinzi was ever part of the

actual conspiracy with the Individual Defendants. Therefore, the Trustee never alleges that there 

was a meeting of the minds between the Individual Defendants and Frinzi to breach his fiduciary 

duties. To have a conspiracy claim, the tortfeasor must be a part of the alleged conspiracy because 

a conspiracy requires “one or more unlawful, overt acts.” See Davis-Lynch, Inc. v. Moreno, 667 

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F.3d 539, 553 (5th Cir. 2012), as revised (Jan. 12, 2012). Here, the overt, unlawful acts were 

allegedly committed by a third-party who is not alleged to have been a co-conspirator, Frinzi. 

Accordingly, the Court hereby dismisses the Plaintiffs’ claim for civil conspiracy against the 

Individual Defendants with leave to replead.3

V. Fraud – Count 8

The Individual Defendants allege that the Trustee has not adequately pleaded a claim for 

fraud against Pinkhasova because the Trustee has not met his burden to plead that Pinkhasova 

“made a material misrepresentation” and that “Frinzi justifiably or reasonably relied on the 

representation.” ECF No. 7. The Individual Defendants claim that the Trustee’s allegations are 

contradictory because the Trustee claims that Pinkhasova made material misrepresentations but 

also claims that no reasonable executive in Frinizi’s position would have acted on the 

representations. ECF No. 14. The Individual Defendants also assert that the Trustee’s allegations 

are contradictory because he claims that Frinzi “reasonably relied” on the representations for the 

sake of the fraud cause of action but claims elsewhere in the petition that Frinzi “blindly” relied 

on Pinkhasova’s representations without doing any due diligence with regard to the breach of 

fiduciary duty cause of action. Id.

The Trustee counters that he has adequately pleaded a claim for fraud. The Trustee alleges 

two misrepresentations were made by Pinkhasova in her letter to Frinzi: that there was a mandatory 

redemption obligation and that 18920 owned the Transaction Shares. ECF No. 1 at ¶ 133. 

3 The Trustee argues for the first time in the Response that his claim for conspiracy could also be construed as a 

claim for “knowing participation”. The Trustee has not pleaded a claim for knowing participation in the Complaint. 

Therefore, the Court does not address any claim for knowing participation.

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Furthermore, the Trustee asserts that he plausibly states a claim for Frinzi’s justifiable reliance on 

the misrepresentations. ECF No. 13. 

In Texas, the elements of common law fraud are: (1) a material representation was made; 

(2) the representation was false; (3) when the representation was made, the speaker knew it was 

false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the 

speaker made the representation with the intent that the other party should act upon it; (5) the party 

acted in reliance on the representation; and (6) the party suffered damages thereby. Italian Cowboy 

Partners, Ltd. v. Prudential Ins. Co. of America, 341 S.W.3d 323, 337 (Tex. 2011). The specific 

elements at issue are whether the Trustee has sufficiently pleaded the material representation and 

the reliance elements for a viable claim for fraud. When determining whether a representation is 

material, the Court uses an objective test. See Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 

590 S.W.3d 471, 496 (Tex. 2019). A representation is material if the representation was important 

to the plaintiff in coming to a decision, such that a reasonable person would be induced to act upon 

and attach importance to the representation in making the decision. Id. The representation may be 

material even if it was not the only factor inducing the plaintiffs to make the decision or enter into

the transaction, but the plaintiff must have relied on the misrepresentations. Id.

The crux is whether a reasonable person would attach importance to and would be induced 

to act upon a claim that a mandatory redemption right existed and that 18920 owned the shares. 

The Individual Defendants argue that the Trustee “expressly acknowledges” in the Complaint that 

“no reasonable executive in Frinzi’s position would or should have been induced to send millions 

of dollars to 18920 based on the contents of Pinkhasova’s demand letter.” ECF No. 14 at 6; ECF 

No. 1 at ¶ 116. The Trustee counters that the test is whether a reasonable person would attach 

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importance to a representation and not whether it was reasonable for Frinzi subjectively to find it 

important. ECF No. 13 at ¶ 26. 

For purposes of the Motion, the Court finds that both the representation that 18920 owned 

the shares and the existence of a mandatory redemption right are objectively material 

representations. There is no question that the existence of a right of redemption and ownership of 

the shares to be redeemed are material facts to the underlying demand. It is important to note that 

the Supreme Court of Texas has held that the representations simply need to be important to the 

decision-making process to be material; they do not need to be the only pieces of information relied 

upon. See Barrow-Shaver, 590 S.W.3d at 496. 

A claim for fraud under Texas law also requires that the plaintiff show both actual and 

justifiable reliance. Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923

(Tex. 2010). Justifiable reliance usually presents a question of fact. JPMorgan Chase Bank, N.A.

v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 654 (Tex. 2018). As such, the reliance element is 

rarely fodder for a 12(b)(6) motion. But the element can be negated as a matter of law when 

circumstances exist under which reliance cannot be justified. Id. In this inquiry, courts “must 

consider the nature of the [parties’] relationship and the contract.” Id. In an arm’s-length 

transaction, parties must exercise ordinary care for the protection of their own interests; a failure 

to do so is not excused by “mere confidence in the honesty and integrity of the other party.” Id.

Accordingly, a party cannot “blindly rely” on another’s representation when the party’s knowledge, 

experience, and background alert it to investigate the other’s representations before acting in 

reliance on those representations. Id. 

The Court finds that the Trustee adequately pleaded that Frinzi justifiably relied on 

Pinkhasova’s letter. The Trustee stated in the Complaint that, “Goodman had told [Frinzi] that there 

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was a mandatory redemption right, and Zakharyayev, who Frinzi knew to be a lawyer, and who he 

knew to represent 18920, as well as Zakharyayev’s wife, would not be making a fraudulent 

demand.” See ECF No. 1 at ¶ 134. Although the Individual Defendants argue other allegations in 

the Complaint implicate that Frinzi honored the “non-existent mandatory redemption obligation, 

without any due diligence, review of documents, advice of counsel, or common sense,” the Court 

is unpersuaded by the argument in the context of a motion to dismiss. ECF No. 14 at 7; ECF No. 

1 at 116. 

First, the Supreme Court of Texas has specifically held that a victim of fraud is generally 

under no duty to discover the truth by exercising proper care. Koral Indus. v. Sec.-Conn. Life Ins. 

Co., 802 S.W.2d 650, 651 (Tex. 1990). Further, even if the Trustee’s claims for breach of fiduciary 

duty and conspiracy claims contradict his fraud claims, a plaintiff can plead alternative and 

inconsistent facts or remedies. The Fifth Circuit held in Guy James Const. Co. v. Trinity Indus., 

Inc, that a “party may plead alternative and inconsistent facts or remedies against several parties 

without being barred.” 644 F.2d 525, 530 (5th Cir. 1981) (citing FED. R. CIV. P. 8, 20); Bryan v. 

City of Dallas, 188 F.Supp.3d 611, 619 (N.D. Tex. 2016) (citing FED. R. CIV. P. 8(d)(2)) (“the 

Federal Rules permit plaintiffs to plead alternative, inconsistent claims.”). The Court finds that all 

of the allegedly contradictory facts appear in different claims, which are permitted to be pleaded

in the alternative.4

Finally, the Individual Defendants argue that the Trustee fails to allege that Pinkhasova had 

personal knowledge that any of the representations contained in the redemption letter were false. 

ECF No. 7 at 8; ECF No. 14 at 8. The Trustee alleges in the Complaint that Zakharyayev knew 

4 Whether the Trustee can successfully prevail upon two causes of action on alternative facts is a decision on the 

merits and not before the Court today. 

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that the letter was inaccurate, and that this knowledge was imputed to his wife Pinkhasova (ECF 

No. 13 at ¶ 30; ECF No. 1 at ¶ 134); that Pinkhasova knew “that 18920 had not paid for, and 

therefore, did not own, the Transaction Shares” (ECF No. 1 at ¶ 134); and that, upon information 

and belief, Zakharyayev and Pinkhasova own and control 18920 (ECF No. 1 at ¶ 30). Pinkashova

is an owner of and registered agent for 18920. In her letter, she makes two representations the 

Court finds material. Accepting all well-pleaded facts as true, the Court finds that the Trustee has 

sufficiently pleaded facts that show that Pinkhasova had either knowledge that the representations 

were false or made the representations recklessly and without knowledge of their truth. Therefore, 

the Court finds that the Trustee has sufficiently pleaded a claim for fraud and the Motion denied 

as to this count. 

VI. Aiding and Abetting – Count 9

The Trustee alleges a claim for aiding and abetting against Mr. Zakharyayev in the 

Complaint. The Trustee has since conceded in both his Response and at the Hearing that a cause 

of action for aiding and abetting does not currently exist in Texas. Further, both the Fifth Circuit 

and the District Court for the Northern District of Texas have held without reservation that Texas 

law does not recognize a cause of action for aiding and abetting. See In re DePuy Orthopaedics, 

Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 782 (5th Cir. 2018); Cruden Bay 

Holdings, LLC v. Jezierski, No. 3:21-CV-01170-E, 2022 WL 447080, at *5 (N.D. Tex. Feb. 14, 

2022). Therefore, the Court hereby dismisses Count 9 for aiding and abetting without prejudice. 

Based on the foregoing, it is hereby:

ORDERED that Count 7 of the Complaint for conspiracy is hereby dismissed with the 

right to replead; it is further 

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ORDERED that Count 9 of the Complaint for aiding and abetting is hereby dismissed

without prejudice; it is further 

ORDERED that the Motion is hereby DENIED with respect to Count 8 of the Complaint

for fraud. 

###END OF ORDER###

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