Virata v. Zemke et al

Filing 37

ORDER denying 22 Motion to Dismiss Party. Signed by Judge David G Campbell on 8/10/2011.(NVO)

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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Luis Virata, an individual, 10 No. CV11-0988-PHX DGC Plaintiff, ORDER 11 vs. 12 Eric Zemke, an individual, et al., 13 Defendants. 14 15 Plaintiff’s complaint alleges consumer fraud against all Defendants. Doc. 1 at 17. 16 After filing an answer (Doc. 15), Defendant Steve Wallace moved to dismiss on the sole 17 ground that as a member of an Arizona LLC he is not liable for acts performed in 18 furtherance of the LLC. Doc. 22. Plaintiff opposes (Doc. 32), and Defendant filed a 19 reply (Doc. 33). No party has requested oral argument. 20 Although a member of an LLC is not personally liable for debts and obligations of 21 the LLC “solely by reason of being a member,” A.R.S. § 29-651, Defendant fails to show 22 that personal liability cannot attach for fraud in which Defendant is alleged to have 23 participated. See, e.g., Jabczenski v. S. Pac. Mem’l Hosps., Inc., 579 P.2d 53, 58 (Ariz. 24 App. 1978) (“A director who actually votes for the commission of a tort is personally 25 liable, even though the wrongful act is performed in the name of the corporation.”); cf. 26 A.R.S. § 29-651 (liability for members precluded only if liability is alleged “solely by 27 reason of being a member”). The motion to dismiss will be denied. 28   1 The motion to dismiss is also untimely. The Rule 12(b)(6) motion was filed after 2 the answer was filed, which renders it untimely. Fed. R. Civ. P. 12(b); Augustine v. 3 United States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983). The Court may construe it as a 4 motion for judgment on pleadings under Rule 12(c), but only if the pleadings have 5 closed. Fed. R. Civ. P. 12(c); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). 6 “[T]he pleadings are closed for the purposes of Rule 12(c) once a complaint and answer 7 have been filed, assuming . . . that no counterclaim or cross-claim is made.” Doe v. 8 United States, 419 F.3d 1058, 1061. Cross-claims have been asserted against Defendant 9 Wallace by other defendants in this case on July 28, 2011 (Doc. 35), and therefore a Rule 10 12(c) motion is untimely. 11 As a final note, Defendant’s counsel cites in part to an unpublished Arizona Court 12 of Appeals opinion, In re Real Prop. Located at 4720 N. Nesting Lane, 2010 WL 716106 13 *2 (Ariz. App. 2010), in violation of Arizona rules of procedure and without disclosing it 14 as an unpublished opinion. Counsel is advised that future citations to unpublished cases 15 without disclosure are inappropriate. 16 17 18 IT IS ORDERED that Defendant Wallace’s motion to dismiss (Doc. 22) is denied. Dated this 10th day of August, 2011. 19 20 21 22 23 24 25 26 27 28 ‐ 2 ‐ 

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