Strong v. Cochran et al

Filing 147

ORDER AND MEMORANDUM DECISION granting 118 Motion for Leave to File Amended Complaint. Signed by Judge Tena Campbell on 5/4/17 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

D. RAY STRONG, as Liquidating Trustee of
the Consolidated Legacy Debtors Liquidating
Trust, the Castle Arch Opportunity Partners I,
LLC Liquidating Trust and the Castle Arch
Opportunity Partners II, LLC Liquidating
Trust,

ORDER
AND
MEMORANDUM DECISION

Plaintiff,
vs.

Case No. 2:14-cv-788-TC

KIRBY D. COCHRAN, et al.,
Defendants.

After three sets of Defendants filed motions to dismiss the original complaint, Plaintiff D.
Ray Strong (Trustee) filed a Motion for Leave to Amend Complaint (ECF No. 118). For the
reasons set forth below, the Trustee’s Motion is GRANTED, but the amendment does not
completely moot the pending motions to dismiss.
BACKGROUND
This case, although two-and-a-half years old, is in its procedural infancy. It arises out of
the Chapter 11 bankruptcy of Castle Arch Real Estate Investment Company, LLC (CAREIC) and
related entities.
In October 2011, a state-appointed receiver filed voluntary Chapter 11 bankruptcy
petitions for CAREIC and related entities in the District of Utah. The bankruptcy court
appointed Mr. Strong as the Chapter 11 Trustee for CAREIC.

After the bankruptcy court issued its 2013 Confirmation Order and confirmed the
Trustee’s Plan of Liquidation, the Trustee pursued this litigation in his capacity as the postconfirmation estate representative and liquidating trustee of trusts formed during the bankruptcy
proceedings. He entered a series of tolling agreements with the Defendants. Then, on October
30, 2014, he filed a complaint (the one he now proposes to amend) asserting claims against
former managers and members of the CAREIC Board of Directors as well as entities associated
with those individuals.1
Since October 2014, the parties have been grappling with issues arising out of an
arbitration clause in the 2007 Amended Operating Agreement governing management of
CAREIC. As the Trustee notes, “[a]fter a long unproductive detour to arbitration, the cases [i.e.,
this case and the one consolidated into it2] returned to this Court.”3 The Trustee was referring to
the court’s January 30, 2017 order (ECF No. 92) lifting the stay that had been in place since the
court’s August 20, 2015 order (ECF No. 55).
With the stay lifted, the case is now moving forward on the merits. During the last three
months the parties held an attorneys’ planning meeting, filed a planning meeting report, and
either answered the complaint or filed motions to dismiss. In addition, on April 24, 2017, the

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The Defendants can be divided into five groups: (1) the “Austin Defendants” (Jeff
Austin and Austin Capital Solutions); (2) the “Child Defendants” (Douglas Child and Child, Van
Wagoner & Associates, PLLC); (3) the “Clawson Defendants” (Robert Clawson and Hybrid
Adviser Group); (4) Defendant William H. Davidson; and (5) Defendant Kirby Cochran (who
has been dismissed from the case).
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A couple of months ago, the court consolidated the case of Strong v. Geringer, Case No.
2:15-cv-837-TC, into this case. (See Feb. 28, 2017 Order, ECF No. 68 in 2:15-cv-837.)
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(Trustee’s Mot. Leave File Am. Compl. at 2, ECF No. 118.)
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court entered a scheduling order (ECF No. 136) following the parties’ April 12, 2017 initial
pretrial conference.4
After some of the Defendants filed motions to dismiss challenging the adequacy of the
Trustee’s pleading under Federal Rules of Civil Procedure 8 and 9(b) and raising statute of
limitations issues,5 the Trustee filed his motion to amend. His proposed amended complaint
would substantially narrow the case. The original complaint asserts nineteen causes of action
consisting of a breach of fiduciary duty claim, seven fraud-based claims based on state and
federal law (including civil conspiracy and a state RICO claim), eight claims seeking avoidance
of fraudulent transfers, one claim for disallowance of bankruptcy claims, and two claims in
equity (constructive trust and unjust enrichment). The proposed amended complaint asserts nine
causes of action, including the original claims for breach of fiduciary duty, violation of state (but
not federal) securities laws, violation of state RICO laws, civil conspiracy, disallowance of
claims, and equitable relief, and a new claim against Jeff Austin based on his alleged sale of
securities without a license.
The Trustee’s proposed amended complaint winnows down the 440 paragraphs in the
original complaint to 332 paragraphs. And the Trustee merges into the proposed amended
complaint the parallel allegations from the complaint consolidated into this case from Strong v.
Geringer, Case No. 2:15-cv-837.

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Trial is scheduled to begin on January 16, 2018. Mr. Clawson expresses significant
concern about the reasonableness of the discovery and trial schedule, especially in light of the
motion to amend. The court will not address scheduling issues in this order. If Mr. Clawson
views the schedule as unworkable, he may take that up with the court in a separate motion.
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Mr. Davidson also filed a motion to compel arbitration (ECF No. 111).
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The Trustee also says that he has bolstered the original allegations with more details so
that he satisfies the pleading standards of Rules 8 and 9(b) of the Federal Rules of Civil
Procedure. Three sets of Defendants oppose the motion on the ground that amending the
complaint would be futile because it does not correct the pleading and statute of limitations
problems raised in the motions to dismiss. Defendants Robert Clawson and Hybrid Advisory
Group (the “Clawson Defendants”) also oppose the motion on the bases that the Trustee unduly
delayed filing the motion, the Trustee acted in bad faith, and the Trustee’s proposed amendment
would unfairly prejudice them.
ANALYSIS
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that leave to amend shall
be “freely give[n] . . . when justice so requires.” This is a liberal standard, as “[t]he purpose
of [Rule 15] is to provide litigants the maximum opportunity for each claim to be decided on its
merits rather than on procedural niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (internal quotation marks omitted).
In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party . . . ,
futility of an amendment, etc.—the leave sought should, as the rules require, be
“freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed. R. Civ. P. 15(a)).
Contrary to the Clawson Defendants’ contention, there has been no undue delay. Soon
after the complaint was filed, summons were issued, parties made appearances, and on January
16, 2015, Defendants Jeff Austin and Austin Capital Solutions (the “Austin Defendants”) filed a
motion to compel arbitration and stay the case, or, in the alternative, dismiss the case. The
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parties briefed the motion. In May 2015, after the court’s hearing, the court granted the motion
to compel arbitration of Claims 1 and 8. The court also ordered limited discovery on related
arbitration issues. (See May 5, 2015 Order at 2, ECF No. 44.) A request for further arbitration
was filed in July 2015, and in August 2015, the parties agreed to arbitrate all claims in the
complaint. In the meantime, the parties litigated the issue of whether to consolidate related
cases. In January 2017, the court lifted the stay after the Austin Defendants and the Child
Defendants failed to pay arbitration costs. Since then, the parties have been pursuing the usual
pre-trial litigation procedures.
There is no evidence of bad faith or dilatory motive on the part of the Trustee. The
Clawson Defendants assert that the Trustee raised the federal securities claims (which the Trustee
now proposes to withdraw) in a draft complaint “to unduly influence [Mr.] Clawson to enter into
a tolling agreement without advice of counsel in October 16, 2013[.]” (Clawson Defs.’ Opp’n at
1, ECF No. 140.) He also asserts that the Trustee’s decision to drop the federal securities claims
rather than address arguments in the Clawson Defendants’ motion to dismiss “is a de facto
admission that such claims should have never been brought” and warrants a review for possible
sanctions for abusive litigation. (Id. at 3.) The Clawson Defendants do not offer evidence to
support their allegations of bad faith. It appears that the Trustee is reducing his claims and
buffing up his factual allegations in response to the Defendants’ motions to dismiss and in an
effort to move the case along, not to delay it or to gain a tactical advantage.
This is the first time the Trustee has requested leave to amend. Accordingly, the court is
not faced with repeated attempts to amend or previous failures to cure deficiencies.

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The Defendants are not unduly prejudiced.6 All of the Defendants benefit from the
proposed amendment because the claims against them have been cut in half. In essence, they
have already prevailed on portions of their motions to dismiss. The one exception is Mr. Austin,
against whom the Trustee is raising a new claim. But Mr. Austin will have an opportunity to file
a motion to dismiss that claim if he so chooses.7 Moreover, Mr. Austin is not prejudiced because
the new claim arises out of the same subject matter set forth in the original complaint. Minter,
451 F.3d at 1208.
As for the Defendants’ futility argument, their oppositions to the motion to amend raise
the same pleading and statute of limitations issues already before the court in the currently
pending motions to dismiss. Accordingly, the court’s grant of the motion to amend does not
foreclose the Defendants’ challenge to the claims set forth in the proposed amended complaint.
Their futility arguments will be addressed when the court reviews the motions to dismiss.
ORDER
For the foregoing reasons, the Trustee’s Motion for Leave to Amend Complaint (ECF No.
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The Clawson Defendants contend that they have been prejudiced financially, and they
complain that with an order granting the amendment, they must unnecessarily spend more time
and money on new pre-trial motions challenging the new complaint. (Clawson Defs.’ Opp’n at 1
(asserting that the amended complaint will “force Clawson to restart the entire process of
research and drafting at significant expense”).) Even assuming their assessment of the situation
is accurate, that is not the kind of prejudice that Rule 15 contemplates. See Minter v. Prime
Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (“Courts typically find prejudice only when the
amendment unfairly affects the defendants ‘in terms of preparing their defense to the
amendment.’” (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)).
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Rule 12(g)(2) of the Federal Rules of Civil Procedure prohibits a party from filing
another motion to dismiss if the “defense or objection [being raised] was available to the party
but omitted from its earlier motion.” Because the additional claim against Mr. Austin was not
pleaded in the original complaint, Mr. Austin is not barred from subsequently challenging that
claim under Rule 12.
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118) is GRANTED. The Trustee is directed to file the amended complaint as soon as
practicable.
SO ORDERED this 4th day of May, 2017.
BY THE COURT:

TENA CAMPBELL
U.S. District Court Judge

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