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)
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As a final note, Defendant’s counsel cites in part to an unpublished Arizona Court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 ‐
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?