Avant-Garde LLC v. Mountain Spa Properties, LLC et al

Filing 46

ORDER that Defendant Nolen Mendenhall's Motion to Dismiss #31 is GRANTED with respect to Plaintiff's first, second, third, fourth, fifth, and sixth claims, and DENIED in all other respects. That Plaintiff's Motion for Leave to File Amended Complaint If Necessary #33 is DENIED without prejudice to a subsequent motion. Signed by Judge John W Sedwick on 11/2/10.(DMT)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A v a n t-G a rd e , LLC, an Arizona limited ) lia b ility company, ) ) P la in tif f , ) ) vs. ) ) ) M o u n t a in Spa Properties, LLC, a Utah ) lim ite d liability company; Richard H.) B lo o m f ie ld and Jane Doe Bloomfield,) h u s b a n d and wife; Bloomfield CFO,) P L L C , an Arizona professional limited ) liab ility company; Rebecca R. Mendenhall) a n d Nolen Mendenhall, wife and husband;) D a n ie l Byer and Jane Doe Byer, husband ) a n d wife; Aaron T. Rennert and Jane Doe ) R e n n e rt, husband and wife; Timothy R.) F o r s tro m and Jane Doe Forstrom, husband ) a n d wife, Beck Locey and Jane Doe ) L o c e y, husband and wife, ) ) Defendants. ) ) ) N o . CV10-1499-PHX-NVW O R D E R AND OPINION IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF ARIZONA R E : Motions at dockets 31 and 33 B e f o re the Court is Defendant Nolen Mendenhall's Motion to Dismiss (Doc. 31) and P lain tiff 's Motion for Leave to File Amended Complaint If Necessary (Doc. 33). The Court w ill deny Mendenhall's motion with respect to personal jurisdiction, but will grant the m o tio n with respect to Plaintiff's fraud-based, unjust enrichment, and breach of contract c la im s . The Court will deny Plaintiff's motion for leave to amend, without prejudice to a s u b s e q u e n t motion. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. B a c k gro u n d A. F a cts T h e Court derives the following facts from the complaint (Doc. 1), and assumes them to be true for purposes of the motion to dismiss. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). T h is case revolves around Mountain Spa Properties, a Utah limited liability company th a t planned to develop certain property near Midway, Utah. Sometime in early 2008, a g ro u p of persons associated with Mountain Spa pitched their Midway project to Plaintiff A v a n t-G a rd e , an Arizona limited liability company. Avant-Garde had previously invested $ 7 0 0 ,0 0 0 in Mountain Spa, and agreed to loan an additional $1 million for the Midway p ro je c t. In agreeing to make the loan, Avant-Garde relied upon statements from unspecified D e f e n d a n ts that (among other things) the investment would be short-term and quickly repaid th ro u g h refinancing coming from Hong Kong, and that certain Defendants (again u n sp e c if ied ) owned a 440 acre parcel in Park City, Utah, valued at $100 million, which could re p a y Avant-Garde's investment if the Mountain Spa project did not succeed. T h e parties memorialized the $1 million loan in a Promissory Note dated February 14, 2 0 0 8 , between Avant-Garde and Mountain Spa. (See Doc. 1-1.) The Promissory Note re q u ire d Mountain Spa to repay the loan on the earlier of July 31, 2008, or receipt of re f in a n c in g funds. Defendants Richard Bloomfield, Daniel Byer, Timothy Forstrom, Beck L o c e y, Rebecca Mendenhall, and Aaron Rennert -- all allegedly Mountain Spa managers or m e m b e r s -- each agreed to personally guarantee the Note. M o u n ta in Spa apparently did not receive the promised refinancing, nor did it repay th e Note by July 31, 2008. Avant-Garde began making repeated demands from both M o u n ta in Spa and the guarantors, with no success. Then, in October 2009, Defendant R ich a rd Bloomfield filed articles of dissolution for Mountain Spa, without notice to AvantG a rd e . -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. P r o c ed u r a l History A v a n t-G a rd e filed this suit in July 2010 against Mountain Spa and various other d e f en d a n ts, including all of the Promissory Note guarantors and their spouses. Defendant N o le n Mendenhall is the husband of Note guarantor (and Mountain Spa manager) Rebecca M e n d e n h a ll. A v a n t-G a rd e 's complaint alleges seven causes of action: (1) federal securities fraud; (2 ) Arizona securities fraud (material misstatements or omissions); (3) Arizona securities f r a u d (deceitful transaction or course of business); (4) common-law fraud; (5) unjust e n ric h m e n t/d is g o rg e m e n t; (6) breach of contract; and (7) breach of guaranty. Avant-Garde d ire c ts all of its causes of action at all Defendants, save for the breach of guaranty action, w h i c h applies only to the "Guarantor Defendants." Avant-Garde defines "Guarantor D e f e n d a n ts " to include the Promissory Note guarantors and Nolen Mendenhall. (Doc. 1 16.) N o le n Mendenhall moved to dismiss Avant-Garde's complaint, arguing that he cannot b e subject to personal jurisdiction in Arizona, and also attacking various perceived defects in Avant-Garde's complaint. Avant-Garde responded to Mendenhall's motion and a lte rn a tiv e ly moved for leave to amend its complaint. Both motions have been fully briefed, a n d are now ready for decision. II. M e n d e n h a l l's Challenge to Personal Jurisdiction A. L e g a l Standard W h e n a defendant challenges personal jurisdiction and the Court does not hold an e v id e n tiary hearing (as in this case), the plaintiff must make a prima facie showing of facts th a t, if true, would support personal jurisdiction over the defendant. Harris Rutsky & Co. In s . Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 112829 (9th Cir. 2003). Those f a cts must show: (a) the defendant purposefully directed his activities toward or c o n su m m a te d some transaction within the forum, or otherwise performed some act by which h e purposefully availed himself of the privilege of conducting activities in the forum; (b) the -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p la in tif f 's legal claims arise out of or relate to the defendant's forum-related activities; and (c ) the exercise of jurisdiction is reasonable. CE Distrib., LLC v. New Sensor Corp., 380 F .3 d 1107, 1111 (9th Cir. 2004). B. A n a ly sis A v a n t-G a rd e 's complaint makes the prima facie showing required at this stage. A v a n t-G a rd e alleges that all Defendants "solicited" or "promoted" the investment to AvantG a rd e (Doc. 1 19, 21, 22), an Arizona company with its principal place of business in A riz o n a (id. 1), thus satisfying the requirement that Mendenhall directed his alleged a c tiv i tie s toward this forum. Avant-Garde's legal claims also arise out of Defendants' a lle g e d ly fraudulent solicitation of the investment. Finally, lacking evidence or argument f ro m Mendenhall to the contrary, the Court finds that exercise of jurisdiction over him in A riz o n a would be reasonable. Cf. CE Distrib., 380 F.3d at 1112 (detailing seven factors to c o n sid e r when assessing reasonability). Thus, Avant-Garde satisfies the standard for e sta b lis h in g personal jurisdiction without an evidentiary hearing. III. M e n d e n h a l l's PSLRA and Rule 9(b) Challenges A v a n t-G a rd e 's first four causes of action each allege fraud of some sort. AvantG a rd e 's complaint must therefore satisfy Fed. R. Civ. P. 9(b)'s heightened pleading re q u i re m e n ts . Further, the Private Securities Litigation Reform Act (PSLRA) imposes h e ig h te n e d pleading requirements for Avant-Garde's federal securities fraud cause of action. T h e Ninth Circuit has stated that "the PSLRA [pleading standard] is nearly identical to that u n d e r Federal Rule of Civil Procedure 9(b)." Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156, 1 1 6 5 (9th Cir. 2009). Accordingly, this Court will analyze the viability of Avant-Garde's f ra u d -re la te d causes of action collectively. A. L e g a l Standard A v an t-G ard e's first cause of action alleges federal securities fraud -- more sp e c if ica lly, that (a) the Promissory Note is a "security," and (b) Defendants materially m isre p re se n ted various facts relating to the investment which the Promissory Note -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 m e m o ria lize s, thus violating section 10(b) of the Securities Exchange Act of 1934 and its m o s t important regulatory clarification, Rule 10b-5. See 15 U.S.C. 78j(b); 17 C.F.R. 240.10b-5. Mendenhall has not disputed whether the Promissory Note is a "security" for p u rp o s e s of federal securities law, and Avant-Garde appears to be justified in this allegation. S e e 15 U.S.C. 78c(a)(10); Reves v. Ernst & Young, 494 U.S. 56, 66 (1990). Accordingly, th e PSLRA applies. T h e PSLRA sets up "[e]xacting pleading requirements." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 313 (2007) (internal quotation marks omitted). To begin, it re q u ire s that "the complaint shall specify each statement alleged to have been misleading, th e reason or reasons why the statement is misleading, and, if an allegation regarding the s t a te m e n t or omission is made on information and belief, the complaint shall state with p a rtic u la rity all facts on which that belief is formed." 15 U.S.C. 78u-4(b)(1). The PSLRA f u rth e r requires the complaint to "state with particularity facts giving rise to a strong in f e re n c e that the defendant acted with the required state of mind," id. 78u-4(b)(2), m e a n i n g "the defendant's intention to deceive, manipulate, or defraud," Tellabs, 551 U.S. a t 313 (internal quotation marks omitted). That "inference of scienter [must be] cogent and a t least as compelling as any opposing inference one could draw from the facts alleged." Id. a t 324. A v a n t-G a rd e 's second and third causes of action allege securities fraud under Arizona la w , rather than federal law. Here again, the Promissory Note appears to qualify as a " s e c u rity" under Arizona law. See MacCollum v. Perkinson, 185 Ariz. 179, 18688, 913 P .2 d 1097, 110406 (Ct. App. 1996). But the PSLRA does not control state-law securities f ra u d actions. See Leder v. Shinfeld, 609 F. Supp. 2d 386, 397 n.10 (E.D. Pa. 2009). Nor d o e s it control Avant-Garde's fourth cause of action, for common-law fraud. Nonetheless, F e d . R. Civ. P. 9(b) sets up similarly exacting pleading requirements to which all four causes -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o f action must conform, because all sound in fraud.1 Kearns v. Ford Motor Co., 567 F.3d 1 1 2 0 , 1125 (9th Cir. 2009). U n d e r Rule 9(b), "a plaintiff must set forth more than the neutral facts necessary to id e n tif y the transaction. The plaintiff must set forth what is false or misleading about a s ta te m e n t, and why it is false." In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1 9 9 4 ) (en banc). The plaintiff can usually satisfy this requirement by alleging the identity o f the person who made the misrepresentation; the time, place, content, and manner of the m is re p re se n ta tio n ; the persons who heard, read, or otherwise received the misrepresentation; a n d the injury caused by reliance on the misrepresentation. 2 James Wm. Moore, Moore's F e d e ra l Practice 9.03[1][b] (3d ed. 2010). S p e c if ic a lly with regard to allegations of identity, "there is no absolute requirement th a t where several defendants are sued in connection with an alleged fraudulent scheme, the c o m p l a in t must identify false statements made by each and every defendant." Swartz v. K P M G LLP, 476 F.3d 756, 764 (9th Cir. 2007). However, R u le 9(b) does not allow a complaint to merely lump multiple d e f e n d a n ts together but requires plaintiffs to differentiate their alleg atio n s when suing more than one defendant and inform e a c h defendant separately of the allegations surrounding his a lleg e d participation in the fraud. . . . [A] plaintiff must, at a m in im u m , identify the role of each defendant in the alleged f ra u d u le n t scheme. Id . at 76465 (alterations incorporated; citations and internal quotation marks omitted). B. A n a ly sis T h e vagueness -- and in some places, incoherence -- of Avant-Garde's complaint r e q u ire s dismissal (as to Mendenhall) of its fraud-based causes of action under both the F o r present purposes, the only material difference between the PSLRA standard and R u le 9(b) is that the latter does not require the plaintiff to plead scienter with particularlity. R u b k e , 551 F.3d at 1164. -6- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P S L R A and Rule 9(b).2 The most apparent defect is that Avant-Garde has lumped all D e f e n d a n ts together for purposes of most allegations. (See, e.g., Doc. 1 19, 21, 22, 26.) E v e n when Avant-Garde accuses only a subset of Defendants -- i.e., the "Guarantor D e f en d a n ts " -- the accusations do not make sense with respect to Mendenhall. Avant-Garde d e f in e s "Guarantor Defendants" to include Mendenhall (id. 16), and Avant-Garde later alleg es, "Attached as Exhibit A to this Complaint is a true and correct copy of the Promissory N o te containing the signatures of the Guarantor Defendants" (id. 23).3 Yet, while Exhibit A contains blanks for the signatures of Defendants Richard Bloomfield, Daniel Byer, T im o thy Forstrom, Beck Locey, Aaron Rennert, and Rebecca Mendenhall, it does not contain a blank for Nolen Mendenhall, much less his signature. (See Doc. 1-1 at 45.) Accordingly, th e complaint lacks both specificity and coherence as to Mendenhall's role in the alleged f ra u d . F u r th e r, the complaint does not state with particularity Mendenhall's role in the a lle g e d fraud. And specifically with respect to PSLRA requirements, the complaint also c o n tain s no facts supporting a cogent inference of scienter on the part of Mendenhall. G iv e n the foregoing, Avant-Garde's first four causes of action must be dismissed as to Mendenhall. IV . M e n d e n h a l l's Remaining Challenges A. L e g a l Standard M e n d e n h a ll's remaining challenges fall under the basic Rule 8 pleading standard. To s ta te a claim for relief under Rule 8, a plaintiff must make "`a short and plain statement of th e claim showing that the pleader is entitled to relief,' in order to `give the defendant fair n o tic e of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at A v a n t-G a rd e 's response to the motion to dismiss (Doc. 33) does not address Rule 9 (b ) or the PSLRA, but rests on the "no set of facts" notice-pleading standard that the S u p r e m e Court abrogated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). W ritten instruments attached to the complaint are considered a part of the complaint. F ed . R. Civ. P. 10(c). -73 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 5 5 (citations omitted). This "short and plain statement" must also be "plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A claim is plausible if it contains sufficient f a ctu a l matter to permit a reasonable inference that the defendant is liable for the conduct a lle g e d . Id. A proper complaint needs no "formulaic recitation of the elements of a cause o f action," see Twombly, 550 U.S. at 555, but the plaintiff must at least "allege sufficient f a cts to state the elements of [the relevant] claim," Johnson v. Riverside Healthcare System, L P , 534 F.3d 1116, 1122 (9th Cir. 2008). All of the plaintiff's plausible factual allegations a re accepted as true and the pleadings are construed in a light most favorable to the plaintiff. K n ie v el, 393 F.3d at 1072. B. U n ju s t Enrichment A v a n t-G a rd e 's fifth cause of action accuses all Defendants of unjust enrichment. M e n d e n h all argues that, to support an unjust enrichment claim against him, Avant-Garde m u st plead and prove that the alleged wrongful action enriched the marital community c o m p risin g Mendenhall and his wife. But, the argument goes, because Arizona courts apply th e community property laws of the state in which the married couple resides, and because th e Mendenhalls reside in Utah (which is not a community property state), Avant-Garde c a n n o t establish an unjust enrichment claim against Mendenhall. A v a n t- G a r d e counters that "the facts of the Complaint are not alleged only against D e f e n d a n t Mendenhall's spouse, they are also alleged against Defendant Mendenhall." ( D o c . 33 at 6.) This is true, to the extent that Avant-Garde's complaint attributes most a lleg e d wrongful acts to all Defendants. However, the complaint does not include any facts o th e r than Mendenhall's marriage to the former manager of Mountain Spa, that would s u p p o rt an unjust enrichment claim against Mendenhall. While Avant-Garde may suspect th a t Mendenhall was enriched by virtue of his marriage to a principal of Mountain Spa, a c o m p l a in t's "[f]actual allegations must be enough to raise a right to relief above the s p e c u la tiv e level." Twombly, 550 U.S. 544, 555. Particularly where community property p rin c ip les do not govern, the simple fact of marriage to an individual against whom a claim -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is sufficiently pled does no more than raise a speculative right to relief against the in d iv id u a l's spouse. Avant-Garde's allegations against Mendenhall do not provide the m in im a l fair notice and plausibility required by Rule 8 and Avant-Garde has not adequately p led an unjust enrichment claim against Mendenhall. C. B r e a ch of Contract A v a n t -G a r d e 's sixth cause of action, for breach of contract, must be dismissed for f a il u r e to give proper notice of the nature of the claim to Mendenhall. Avant-Garde iden tifies the Promissory Note as the breached contract. (Doc. 1 67.) But the Promissory N o te is a contract between Avant-Garde and Mountain Spa. Further, as discussed above, the P ro m is s o r y Note contains no reference to Mendenhall. If Avant-Garde wants to hold M e n d e n h all liable for breaching the Promissory Note, it must give Mendenhall fair notice o f how the Promissory Note bound him. A v a n t- G a r d e alleges that all natural person Defendants are "personally responsible f o r [Mountain Spa's] acts and omissions" -- presumably including breach of contract -- b e c a u s e Mountain Spa dissolved itself without notice to Avant-Garde. (Doc. 1 2830.) T h is appears to state the law correctly with respect to LLC members,4 but Avant-Garde does n o t allege that Mendenhall was a Mountain Spa member. Avant-Garde does allege that D e f en d a n ts Richard Bloomfield, Daniel Byer, Timothy Forstrom, Beck Locey, Aaron R e n n e rt, and Rebecca Mendenhall were either Mountain Spa members or managers. But A v a n t-G a rd e does not make any such allegations as to Defendants Jane Doe Bloomfield, J a n e Doe Byer, Jane Doe Forstrom, Jane Doe Locey, Jane Doe Rennert, or Nolen M e n d e n h a ll. The Court therefore assumes that Avant-Garde's pleadings were deliberate in th is respect. Mountain Spa is (or was) allegedly organized under Utah law. Although the parties h a v e not briefed the issue, the Court's preliminary research suggests that, under Utah law, a party with a claim against a dissolved LLC can enforce that claim "against one or more m e m b e r s of the dissolved company to the extent the assets have been distributed to the m em b ers. " Utah Code Ann. 48-2c-1307(1)(b) (West 2010). -9- 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If Nolen Mendenhall was not a member, as the complaint indicates, then the complaint sta tes no legal basis to enforce the Promissory Note against him. Accordingly, the Court will d ism iss Avant-Garde's breach of contract cause of action as to Mendenhall. D. B re a ch of Guaranty A v a n t-G a rd e addressed its seventh cause of action, for breach of guaranty, to the " G u a ra n to r Defendants." (Doc. 1 at 11.) Avant-Garde, somewhat confusingly, defined G u a ra n to r Defendants to include Mendenhall. (See supra p. 7.) However, Mendenhall does n o t challenge this cause of action. Therefore, Avant-Garde's seventh cause of action r e m a in s . V. A v a n t-G a r d e 's Motion to Amend T o the extent this Court dismisses Avant-Garde's complaint, Avant-Garde seeks leave to amend. Under Rule 15, the Court should grant such leave "freely . . . when justice so re q u ire s." Fed. R. Civ. P. 15(a)(2). But "[l]eave to amend need not be given if a complaint, a s amended, is subject to dismissal." Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 5 3 8 (9th Cir. 1989). H e re , Avant-Garde's proposed amended complaint does not cure any of the defects d is c u ss e d above, and would therefore be subject to dismissal. Regarding the Rule 9(b) and P S L R A requirements, the proposed amendments add only slightly more detail about M e n d e n h a ll, and even then, the added detail specifies only that Mendenhall, "together [with h is wife,] present[ed] the [Mountain Spa] project to the Midway City Planning Commission," a n d spoke "on behalf of [Mountain Spa]" to some unspecified person or entity "regarding iss u e s including architectural planning and marketing of the project." (Doc. 43-1 10.) This d o e s not meet either the Rule 9(b) or PSLRA pleading standards. If anything, these a lleg a tio n s suggest that the Midway project was legitimate, not fraudulent. A v a n t-G a rd e 's added paragraphs about Mendenhall's conviction for securities fraud in the late 1990s (id. 9, 29) also add nothing of substance. Presumably, Avant-Garde h o p e d that the prior conviction would go towards the PSLRA's scienter requirement. The - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C o u rt has located no authority discussing whether a plaintiff may allege a prior securities f ra u d conviction to help satisfy the PSLRA's scienter pleading requirement. In any event, w ith o u t more, the mention of Mendenhall's previous conviction does not raise an "inference o f scienter [that is] cogent and at least as compelling as any opposing inference one could d ra w from the facts alleged." Tellabs, 551 U.S. at 324. In addition, pleading scienter is v irtu a lly meaningless without detailed allegations about the nature of the fraud allegedly p e rp e tra te d by Mendenhall in this case. As stated above, those details are lacking both in the c u rre n t complaint and the proposed amended complaint. T h e proposed amended complaint also does not cure the defects in Avant-Garde's b re a ch of contract or unjust enrichment claims. The proposed amended complaint does not a lle g e that Mendenhall was a Mountain Spa member or manager or that Mendenhall was e n ric h e d outside the speculative context of his marriage to Rebecca Mendenhall. B e c a u s e Avant-Garde's proposed amended complaint does not resolve the problems p re se n te d by its current complaint, the Court will deny Avant-Garde's motion to amend. T h is denial is without prejudice to a subsequent motion to amend, but the Court emphasizes th a t, if Avant-Garde chooses to amend, its factual allegations must either (i) "have e v id e n tia ry support," or (ii) be "specifically . . . identified" as facts that "will likely have e v id e n tia ry support after a reasonable opportunity for further investigation or discovery." F ed . R. Civ. P. 11(b)(3). - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V I. C o n c lu s io n I T IS THEREFORE ORDERED that Defendant Nolen Mendenhall's Motion to D is m is s (Doc. 31) is GRANTED with respect to Plaintiff's first, second, third, fourth, fifth, a n d sixth claims, and DENIED in all other respects. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File Amended C o m p la in t If Necessary (Doc. 33) is DENIED without prejudice to a subsequent motion. D A T E D this 2nd day of November 2010. /S/ JOHN W. SEDWICK U N IT E D STATES DISTRICT JUDGE - 12 -

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