United States District Court, D. Arizona
James A. Teilborg Senior United States District Judge.
Pending before the Court are three separate motions to dismiss the Second Amended Complaint (“SAC”). (Doc. 117; Doc. 119; Doc. 127). Defendants Nivisys, LLC (“Nivisys”) and WWWT Enterprises, LLC (“WWWT”) seek to dismiss Counts III and IV of the Complaint. (Doc. 117, 119). Defendant First Texas Holdings Corporation (“First Texas”) seeks to dismiss the SAC in in its entirety. (Doc. 127). Having reviewed the parties’ filings and considered oral argument, the Court now rules on the motions.
Plaintiff Airbus DS Optronics GmbH is a foreign company organized under the laws of the country of Germany, and is an international leader in the manufacturing of optical and optoelectronic products for defense and security purposes. (Doc. 112 at 2). Nivisys Industries was a limited liability company organized under the laws of the State of Arizona, formed on or about January 26, 2003. (Id. at 3). In or about March 2008, Nivisys Industries’ members sold their full interest in Nivisys Industries either to Relativity Holding, LLC (“Relativity Holding”), a Delaware limited liability company, or to one of Relativity Holding’s subsidiaries, Nivisys Holdings, LLC (“Nivisys Holdings”).
In or about October 2011, Nivisys Industries breached a contract between itself and Plaintiff that had been executed approximately in or about September 2008. (Doc. 112 at 3). Plaintiff obtained a judgment against Nivisys Industries in Stuttgart Regional Court, Germany, and later obtained a judgment against Nivisys Industries in Maricopa County Superior Court. (Id.)
On or about March 19, 2012, First Texas formed WWWT, a wholly owned subsidiary. (Doc. 112 at 3). On or about May 14, 2012, Nivisys Industries’ full ownership was transferred to WWWT. (Id.). First Texas, through WWWT, proceeded to run Nivisys Industries until August 1, 2012, when First Texas transferred Nivisys Industries’ assets to WWWT. (Id.). First Texas thereafter transferred Nivisys Industries’ assets again from WWWT to Nivisys as part of an internal reorganization. (Id.). Following the internal reorganization, First Texas continued to conduct Nivisys Industries’ business through Nivisys. (Id. at 5). Plaintiff alleges that all of Nivisys Industries’ assets have been transferred to Nivisys, rendering Nivisys Industries insolvent and unable to satisfy Plaintiff’s judgment.
On October 28, 2014, Plaintiff filed suit against Nivisys in Maricopa County Superior Court, which was thereafter removed pursuant to 28 U.S.C. § 1441(b) (2012). (Doc. 1). Plaintiff added WWWT, First Texas, and Nivisys Industries by amendment. Plaintiff’s principal contention is that Defendants be held “liable for their debt owed” to Plaintiff, as Defendants are “responsible and liable for satisfaction of the [Maricopa County] Judgment or the Stuttgart Court Judgment obtained by [Plaintiff] against Nivisys Industries, LLC.” (Doc. 112 at 2). On November 6 and November 23, 2015, respectively, Defendants each filed a motion to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). First Texas seeks to have the SAC dismissed against it in its entirety. WWWT and Nivisys seek to have Counts III and IV-piercing the corporate veil and lender liability-dismissed against them. Having set forth the pertinent factual and procedural background, the Court turns to Defendants’ motions.
To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief, ” so that the defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain sufficient factual matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Facial plausibility exists if the pleader sets forth factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal “probability, ” but requires more than a sheer possibility that a defendant acted unlawfully. Id. “Where a complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557).
Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader’s obligation to provide the grounds for relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Rule 8(a)(2) “requires a ‘showing, ’ rather than a blanket assertion, of entitlement to relief, ” as “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1202, pp. 94, 95 (3d ed. 2004)). Thus, Rule 8’s pleading standard demands more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
The Court must construe the facts alleged in the complaint in the light most favorable to the drafter and must accept all well-pleaded factual allegations as true, Shwarz, 234 F.3d at 435, Cafasso, 637 F.3d at 1053 (“[w]hen considering a Rule 12(c) dismissal, we must accept the facts as pled by the nonmovant”), but need not accept as true legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Court will begin its analysis with Defendants’ argument that Count III (piercing the corporate veil) and Count IV (lender liability) must be dismissed from the SAC. The Court will then turn to First Texas’ argument that Count II (fraudulent transfer) must be dismissed. Finally, the Court will address ...