Miller v. Wulf

Filing 20

MEMORANDUM DECISION AND ORDER denying 8 Motion to Dismiss. Signed by Judge David Nuffer on 11/15/12 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
GIL A. MILLER, as Receiver for Impact
Payment Systems, LLC and Impact Cash,
LLC,
Plaintiff,

MEMORANDUM DECISION AND ORDER
DENYING MOTION TO DISMISS
Case No. 1:12-cv-119 DN

v.
District Judge David Nuffer
ARTHUR WULF,
Defendant.

Plaintiff Gil Miller, as Receiver for Impact Payment Systems, LLC and Impact Cash,
LLC (collectively "Impact"), filed the Complaint in this case to recover purported fraudulent
transfers made by Impact to Defendant Arthur Wulf. 1 Mr. Wulf responded with a motion to
dismiss, arguing that he is not subject to the personal jurisdiction of this court; the Receiver's
claim is barred by the statute of limitations; and the allegations in the Complaint are factually
incorrect. 2 Mr. Wulf has not designated any specific rule of procedure under which his motion is
filed. The court presumes that his arguments concerning personal jurisdiction are made under
Fed. R. Civ. P. 12(b)(2), and that his arguments concerning the statute of limitations and
incorrect factual allegations fall under Fed. R. Civ. P. 12(b)(6).
Under Fed. R. Civ. P. 4(k)(1)(C) and 28 U.S.C. §§ 754 and 1692, a receivership court
typically has nationwide service of process in suits involving receivership property. This
expansive jurisdiction depends on the receiver's compliance with the requirement under § 754 to

1
2

Complaint, docket no. 2, filed on May 31, 2012.

Defendant's Motion to Dismiss, docket no. 8, filed Jul. 11, 2012; Memorandum in Support of Defendant's Motion
to Dismiss, docket no. 9, filed Jul. 11, 2012.

file copies of the receivership complaint and the order of appointment in the district court for
each district in which receivership property is located within ten days of the receiver's
appointment. 3 "The failure to file such copies in any district shall divest the receiver of
jurisdiction and control over all such property in that district." 4 However, this technical
deficiency may be remedied by reappointing the receiver, which restarts the ten-day period for
the receiver's compliance with § 754. 5
In this case, the Receiver admittedly did not file a § 754 notice in Illinois (where the
property that is the subject of this case is located) within ten days after his appointment because
he was not yet aware of any receivership property located there. As a result, § 754 and § 1692
do not yet provide a basis for exercising personal jurisdiction over Mr. Wulf. To cure this
deficiency, the court will reappoint the Receiver, which will allow the Receiver to timely file a §
754 notice in the appropriate district court(s) and then to properly serve Mr. Wulf with the
Complaint in this case.
Mr. Wulf's other grounds for dismissal have no merit. Wulf argues that this case is
barred by an uncited one-year statute of limitations. However, the Receiver's fraudulent transfer
claim is subject to a four-year limitations period under the Utah Uniform Fraudulent Transfer
Act. 6 Mr. Wulf has not provided any argument that the Receiver's fraudulent transfer claim
arose before May 31, 2008 — which is four years before the Complaint in this case was filed.
Accordingly, the court will not dismiss the Complaint on limitations grounds.

3

28 U.S.C. § 754; SEC v. Vision Commc'ns, Inc., 74 F.3d 287, 290 (D.C. Cir. 1996).

4

28 U.S.C. § 754.

5

Vision Commc'ns, 74 F.3d at 291.

6

Utah Code Ann. § 25-6-10(1)-(2).

2

Likewise, the court will not dismiss the Complaint because Mr. Wulf disagrees with its
allegations. The court may not weigh evidence or resolve factual disputes on a Rule 12(b)(6)
motion. 7 This is precisely what Mr. Wulf asks the court to do. Among other things, Mr. Wulf
argues that Impact was not a Ponzi scheme and that it was not insolvent. The court cannot make
those factual determinations at the dismissal stage.
IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss (docket no. 8) is
DENIED.
IT IS FURTHER ORDERED that the Receiver will submit a proposed order of
reappointment within 14 days of the date of this Order.
Dated November 15, 2012.
BY THE COURT:

____________________________
David Nuffer
United States District Judge

7

Sunrise Valley, LLC v. Kempthorne, 528 F.3d 1251, 1254 (10th Cir. 2008).

3