Burget et al v. Senak et al

Filing 56

OPINION AND ORDER denying 47 Motion to Dismiss. The Court ORDERS Plaintiff to file an Amended Complaint, solely for the purpose of adding Harry Anthony Floros as a party, on or before December 2, 2015. Signed by Magistrate Judge Paul R Cherry on 11/16/2015. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RON BURGET,
Plaintiff,
v.
R.A.M. ENTERTAINMENT, LLC and
MARK SENAK,
Defendants.

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CAUSE NO. 2:14-CV-373-PRC

OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss [DE 47], filed by Defendant Mark
Senak on August 18, 2015, seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(7).
On October 13, 2014, Plaintiffs Ron Burget and Dos Amigos, LLC (“Dos Amigos”) filed
a Complaint against Defendants R.A.M. Entertainment Group, LLC (“RAM”) and Mark Senak.
Counts I through IV were brought by Burget against Defendants for breach of contract/promissory
note (Count I), unjust enrichment (Count II), conversion (Count III), and fraud and
misrepresentation (Count IV). Count V was brought by Burget and Dos Amigos, LLC for trademark
infringement. On April 2, 2015, the Court granted Plaintiffs’ voluntary dismissal of Count V, which
terminated this matter as to Plaintiff Dos Amigos, LLC. On July 23, 2015, the Court issued an
Opinion and Order, granting in part and denying in part Defendant Mark Senak’s Motion to Dismiss,
dismissing without prejudice Counts II, III, and IV against both Defendants Mark Senak and RAM
Entertainment Group, LLC for failure to state a claim. Therefore, only Count I remains pending
against both defendants.
On August 18, 2015, Defendant Mark Senak filed the instant Motion to Dismiss, seeking
dismissal of the remaining count of the Complaint under Federal Rule of Civil Procedure 12(b)(7)
on the basis that Plaintiff Burget failed to join a necessary party, namely Harry Anthony Flores, the

third unitholder of RAM Entertainment, LLC. On September 15, 2015, Burget filed a response to
the Motion to Dismiss, but also filed a Motion to Amend Complaint. The motion was titled
“Plaintiff’s Motion for Leave to File Second Amended Complaint;” however, as no amended
complaint has been filed, this matter is currently proceeding on the original Complaint. In the
motion, Burget sought leave to amend the Complaint to add Harry Anthony Flores as a defendant
in relation to the allegations regarding piercing the corporate veil. The Court denied without
prejudice the Motion to Amend Complaint because Burget did not include the original signed
proposed amendment as an attachment as required by Northern District of Indiana Local Rule 151(a). Burget has not renewed the motion. On September 23, 2015, Senak filed a reply in support of
the Motion to Dismiss.
In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(7) for
failure to join a party under Rule 19, the Court must accept the allegations in the complaint as true
but may also consider extrinsic evidence beyond the pleadings. Davis Cos. v. Emerald Casino, Inc.,
268 F.3d 477, 480 n.4 (7th Cir. 2001). The movant bears the burden of demonstrating that the absent
party is a necessary and indispensable party that must be joined. Ochs v. Hindman, 984 F. Supp. 2d
903, 906 (N.D. Ill. 2013).
However, the 12(b)(7) motion is premature in this case. “It is only after an unavailable party
has been deemed ‘indispensable’ and cannot be joined is a motion brought pursuant to Rule 12(b)(7)
appropriate.” Attorneys’ Title Ins. Fund v. RSUI Indem. Co., No. 114-CV-1267, 2015 WL 1505642,
at * 2 (S.D. Ind. Mar. 31, 2015) (citing Thomas v. United States, 189 F.3d 662, 667 (7th Cir. 1999);
No Bologna Mktg., LLC v. Ryan, No. 1:09-CV-200, 2010 WL 1286720, at *16 (S.D. Ind. Mar. 26,
2010)). In his memorandum, Senak in fact argues that Floros can be joined, asserting that he is

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subject to service of process and that his joinder will not deprive the court of subject matter
jurisdiction, as Floros is a citizen of Nevada. Therefore, the Court considers the relief sought by
Senak to be joinder of a necessary party under Rule 19(a) rather than dismissal of the lawsuit. See
id. In fact, in his response brief, Plaintiff Burget requests leave to amend the Complaint to add
Floros as a party. Notwithstanding Burget’s failure to attach a copy of the proposed amended
complaint to his motion for leave to file amended complaint, the filing of an amended Complaint
to add Floros will resolve the instant motion.
Accordingly, the Court hereby DENIES the Motion to Dismiss [DE 47]. The Court
ORDERS Plaintiff to file an Amended Complaint, solely for the purpose of adding Harry Anthony
Floros as a party, on or before December 2, 2015.
SO ORDERED this 16th day of November, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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