Virata v. Zemke et al
ORDER denying 22 Motion to Dismiss Party. Signed by Judge David G Campbell on 8/10/2011.(NVO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Luis Virata, an individual,
No. CV11-0988-PHX DGC
Eric Zemke, an individual, et al.,
Plaintiff’s complaint alleges consumer fraud against all Defendants. Doc. 1 at 17.
After filing an answer (Doc. 15), Defendant Steve Wallace moved to dismiss on the sole
ground that as a member of an Arizona LLC he is not liable for acts performed in
furtherance of the LLC. Doc. 22. Plaintiff opposes (Doc. 32), and Defendant filed a
reply (Doc. 33). No party has requested oral argument.
Although a member of an LLC is not personally liable for debts and obligations of
the LLC “solely by reason of being a member,” A.R.S. § 29-651, Defendant fails to show
that personal liability cannot attach for fraud in which Defendant is alleged to have
participated. See, e.g., Jabczenski v. S. Pac. Mem’l Hosps., Inc., 579 P.2d 53, 58 (Ariz.
App. 1978) (“A director who actually votes for the commission of a tort is personally
liable, even though the wrongful act is performed in the name of the corporation.”); cf.
A.R.S. § 29-651 (liability for members precluded only if liability is alleged “solely by
reason of being a member”). The motion to dismiss will be denied.
The motion to dismiss is also untimely. The Rule 12(b)(6) motion was filed after
the answer was filed, which renders it untimely. Fed. R. Civ. P. 12(b); Augustine v.
United States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983). The Court may construe it as a
motion for judgment on pleadings under Rule 12(c), but only if the pleadings have
closed. Fed. R. Civ. P. 12(c); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980).
“[T]he pleadings are closed for the purposes of Rule 12(c) once a complaint and answer
have been filed, assuming . . . that no counterclaim or cross-claim is made.” Doe v.
United States, 419 F.3d 1058, 1061. Cross-claims have been asserted against Defendant
Wallace by other defendants in this case on July 28, 2011 (Doc. 35), and therefore a Rule
12(c) motion is untimely.
As a final note, Defendant’s counsel cites in part to an unpublished Arizona Court
of Appeals opinion, In re Real Prop. Located at 4720 N. Nesting Lane, 2010 WL 716106
*2 (Ariz. App. 2010), in violation of Arizona rules of procedure and without disclosing it
as an unpublished opinion. Counsel is advised that future citations to unpublished cases
without disclosure are inappropriate.
IT IS ORDERED that Defendant Wallace’s motion to dismiss (Doc. 22) is
Dated this 10th day of August, 2011.
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