Date: 01-29-2010

Case Style: Coto Settlement v. Ian Eisenberg

Case Number: 08-35966

Judge: Richard D. Cudahy

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington, King County

Plaintiff's Attorney: Ernst Leonard, Friedman & Feiger, L.L.P., Dallas, Texas, and
Jeremy Robert Larson, Foster Pepper & Shefelman, Seattle,
Washington, for the appellant.

Defendant's Attorney: Derek A. Newman and Derek Linke, Newman & Newman,
Attorneys at Law, Seattle, Washington, for the appellees.

Description: The question presented here is whether the district court
erred in dismissing the claims of Coto Settlement (Coto) as
barred by the statute of limitations. Coto claims that it is entitled
to part of $1.4 million refunded by the Federal Trade
Commission (FTC) following a judgment against Coto, Ian
Eisenberg and other entities. Eisenberg and Olympic Telecommunications,
Inc. (Olympic), owned by Eisenberg, contend
that, if Coto had a claim for conversion of those funds,
it accrued in 2000, and is therefore time-barred. Coto maintains
instead that its claims did not accrue until 2007, when
the FTC announced that it would refund the sum to Eisenberg
and Olympic. Coto characterizes the dispute in 2000 as one
regarding the proper management of the funds rather than
their ownership but, for the following reasons, we disagree.

We note at the outset that the basis for this conclusion
requires reliance on documents and arguments not adequately
discussed by the parties in briefing or at oral argument. In the
interests of justice, however, we will raise and discuss these
arguments on our own. However, it is not the task of courts
to make cases for the parties, and we find the presentation of
this case unsatisfactory in the extreme.

I

A

Our appellate jurisdiction rests on 28 U.S.C. § 1291 and the
action below arose in diversity, 28 U.S.C. § 1332. The case
was filed in King County Superior Court, where the court
granted a temporary restraining order in favor of Coto, requiring
the defendants to deposit certain contested funds into the
registry of the Superior Court. Before the hearing on a preliminary
injunction, the matter was removed, improperly under
the forum defendant rule. Coto, however, failed to timely
object to removal, and we retain jurisdiction. See Lively v.
Wild Oats Markets, Inc., 456 F.3d 933, 942 (9th Cir. 2006)
(holding that improper removal is a waivable defect). Later,
upon motion, the district court dismissed Coto’s claims.

B

We review de novo a district court’s disposition of a motion
to dismiss pursuant to Rule 12(b)(6). A complaint may survive
a motion to dismiss if, taking all well-pleaded factual
allegations as true, it contains “enough facts to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “[W]e do not necessarily assume
the truth of legal conclusions merely because they are cast in
the form of factual allegations.” Paulsen v. CNF, Inc., 559
F.3d 1061, 1071 (9th Cir. 2009) (citing Cedars-Sinai Med.
Ctr. v. Nat’l League of Postmasters of the U.S., 497 F.3d 972,
975 (9th Cir. 2007)).

C

Christopher L. Hebard, Coto’s beneficiary, and Eisenberg,
who has some interest in French Dreams Investments, N.V.
(French Dreams), created Electronic Publishing Ventures,
LLC (EPV) in 1998. EPV, a Delaware holding company,
owned several entities that offered internet services, and
Hebard and Eisenberg shared general supervisory and oversight
responsibilities for the EPV entities. The EPV entities
charged their clients through telephone billings and used
Olympic to process the billing data and to collect payments
from the telephone companies. In the summer of 2000,
Hebard and Eisenberg shut down the programs because of a
dispute. Also that summer, Eisenberg announced that Olympic,
which is owned or controlled by him, would increase its
reserve level to 100% of the funds billed by the EPV entities.
As of December 2000, according to allegations in the Complaint,
Olympic held approximately $5 million in reserves,
purportedly for the EPV entities. In contrast, however, a Billing
Services Agreement between Olympic and the EPV entities
specifies that, before Olympic remits funds received from
the EPV entities’ customers to the EPV entities, Olympic subtracts
funds for a “bad debt reserve” and for “chargeback
reserves”, used to cover certain charges for customers who do
not pay their bills and for customers whose charges Olympic
has chosen to forgive. Olympic remits the “net funds,” or the
payments received from the telephone companies less these
reserves and other fees and taxes. The Billing Agreement clarifies
that, for the bad debt reserves, if the telephone company
discovers that it has any overage allocated to the bad debt
reserves, Olympic will remit that amount to the customer.
Olympic, however, is responsible for the chargeback reserves
and may adjust them in its sole discretion. The Billing Agreement
notes that the chargeback reserves are merely an estimate
that does not “in any way limit Olympic’s rights to
recourse, reimbursement and set-off against [the EPV entities]
. . . for all sums due by [the EPV entities] to Olympic under
this Agreement, including without limitation the actual chargeback,
unbillable and returns activity for [the EPV entities]
aggregate call records.” In 2000, Hebard strongly objected to
Olympic’s decision to increase the reserves to 100%, but
Olympic declined to refund any of this amount.

In October 2000, the FTC filed an action against the EPV
entities, Eisenberg, French Dreams, Hebard and Coto (the
FTC defendants), who were found to have mailed deceptive
offers to provide internet services.1 During the FTC action,
the EPV entities were all dissolved and their charters revoked
by November 2005.2 In March 2004, the FTC found the
defendants liable in the amount of $17 million subject to a
refund of any money not needed for consumer redress.
Hebard tendered $80,000, Olympic $2,152,694, and Eisenberg,
$629,513.85, all deposited into the registry of the court
in the FTC action in June 2006. The FTC determined that the
actual liability was less than the sums tendered by the parties.

In 2007, therefore, responding to a motion by Eisenberg and
Olympic, the FTC announced that it would refund $1.4 million
to them. Coto sent a demand letter in October 2007 to
Eisenberg and Olympic asking whether any of the funds tendered
by Olympic were property of the former EPV entities
and requesting an accounting of the use and disposition of all
reserve funds. Eisenberg and Olympic did not respond. The
judge in the FTC action held that determining the ownership
of the refunded amounts was outside the scope of his jurisdiction
and, therefore, as far as the FTC court was concerned, the
funds belonged to Eisenberg and Olympic, and, in any event,
the funds were no longer within that court’s possession or
control.

Coto responded by filing this action. It asserted three
claims for relief: breach of fiduciary duty, money had and
received (an action incidental to unjust enrichment, Davenport
v. Washington Educ. Ass’n, 197 P.3d 686, 698-99 (Wash.
Ct. App. 2008)) and conversion. In addition, Coto sought the
imposition of a constructive trust (a form of equitable relief,
Venwest Yachts, Inc. v. Schweickert, 176 P.3d 577, 582 n.5
(Wash. App. 2008)), an accounting (another equitable remedy,
Saletic v. Stamnes, 51 Wn.2d 696, 698 (Wash. 1958)), as
well as declaratory and injunctive relief.

The district court dismissed Coto’s Amended Complaint
and denied its motion for a preliminary injunction on the
pleadings as time-barred because the court held that Coto’s
claims for relief arose in the summer of 2000 when Hebard
objected to Eisenberg and Olympic’s decision to raise the
reserve requirement to 100%. The district court rejected
Coto’s efforts to cast Olympic’s decision to require reserves
of 100% as a well-intentioned management decision to accumulate
reserves to pay an eventual FTC judgment that would
be released back to the EPV entities if the reserve level was
set too high. The district court noted that the FTC did not file
its suit until the fall of 2000, months after the reserve requirement
was increased. Because we find that Olympic’s actions
in raising the reserve requirement gave rise to Coto’s claims
in 2000, and therefore that the statute of limitations began to
run at that time, we affirm.

II

Coto argues that it has standing to assert its claims against
Appellees because it is a shareholder asserting the claims of
the now-dissolved EPV entities. Coto contends that it is a
basic tenet of corporate jurisprudence that the property rights
of a corporation pass to the shareholders after dissolution.

Although Appellees do not reject this standing argument and
the district court did not address it in its order, it is jurisdictional,
Coto raised it in its opening brief and we consider it
here. See, e.g., Jacobs v. Clark County Sch. Dist., 526 F.3d
419, 437-38 (9th Cir. 2008). The test for standing appears in
the familiar language of Lujan v. Defenders of Wildlife,
requiring a party to show three things:

First, [it] must have suffered an injury in fact-an
invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical. Second, there
must be a causal connection between the injury and
the conduct complained of . . . . Third, it must be
likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.

504 U.S. 555, 560-61 (1992) (internal citations omitted); see
also D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d
1031, 1036 (9th Cir. 2008).

[1] Coto argues that it has the right to claim property formerly
belonging to the EPV entities because a shareholder of
a dissolved corporation has standing to assert claims for the
property of the corporation after the property passes to the
shareholders. While a corporation remains in existence, on the
other hand, as specified by corporation continuance statutes,
shareholders do not have standing to assert the claims of the
corporation, unless they do so through derivative actions. See,
e.g., RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1057
(9th Cir. 2002) (holding that injury to the corporation is not
injury to the shareholders for purposes of standing, although
a shareholder who is injured separately from the corporation’s
injury has standing apart from the corporation); United States
v. Stonehill, 83 F.3d 1156, 1160 (9th Cir. 1996) (explaining
that “[w]ell-established principles of corporate law prevent a
shareholder from bringing an individual direct cause of action
for an injury done to the corporation or its property by a third
party”).

[2] After a specified period post-dissolution, however, the
corporation ceases to exist. In each of the states in which the
EPV entities were incorporated, after dissolution, the LLC
continues to exist for a limited period as an entity that may
sue (through members and managers or others in derivative
actions) and be sued. See Nev. Rev. Stat. § 86.505 (LLC may
sue and be sued until 2 years after dissolution); Del. Code
Ann. tit. 6, § 18-803 (until the certificate of cancellation is
filed); Mont. Code Ann. § 35-8-909 (until five years after the
publication of a notice of the company’s dissolution).

[3] The disposition of assets after an LLC is wound up typically
depends on the operating agreement entered into by the
owners. The EPV entities were registered in Nevada, Delaware
and Montana. Those states provide by statute specific
procedures for distributing assets and assigning the liabilities
of the LLCs after dissolution that rely, in part, upon the procedures
spelled out in the operating agreements of the LLCs.
See, e.g., Del. Code Ann. tit. 6, § 18-804(a); Mont. Code Ann.
§ 35-8-905; Nev. Rev. Stat. § 86.521.3 This court is not in
possession of the operating agreements of the EPV entities
effective at the time these entities were dissolved. But we may
reasonably conclude that, absent the FTC action, some of the
remaining assets of the EPV entities (if there were any assets)
would have flowed to their 50 percent owner, Coto, upon the
entities’ dissolution. Perhaps this absence of key information
explains Appellees’ failure to object to standing on appeal and
to advance their standing arguments in their response brief.4
For purposes of the present appeal, we make the reasonable
assumption that Coto has standing based on assets it allegedly
expected to receive after the release of the Olympic funds and
the dissolution of the EPV entities by the time Coto filed its
lawsuit.

III

Coto includes the Billing Services Agreement in the record
on appeal. This Agreement governs the billing and collection
services that Olympic provided the EPV entities. This contract
was discussed in Coto’s response to defendants’ motion
to dismiss, but the Billing Agreement was first presented to
the district court attached to Coto’s Motion for New Trial that
the district court summarily denied because it found that it
lacked jurisdiction while the case was on appeal. Consequently,
in the order now on appeal, the district court did not
rely on the Billing Agreement, and the parties on appeal have
for the most part ignored this document.

On a motion to dismiss, we may consider materials incorporated
into the complaint or matters of public record. See
Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d
1048, 1052 (9th Cir. 2007); cf. Fed. R. Civ. P. 12(d) (explaining
that, should the district court decide to consider other
materials, the motion is converted into a motion for summary
judgment and the opposing party given reasonable time to
respond); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th
Cir. 2001) (noting that a district court may not take judicial
notice of a disputed fact in a public record). We have
extended the doctrine of incorporation by reference to consider
documents in situations where the complaint necessarily
relies upon a document or the contents of the document are
alleged in a complaint, the document’s authenticity is not in
question and there are no disputed issues as to the document’s
relevance. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th
Cir. 2005); Parrino v. FHP, Inc., 146 F.3d 699, 705, 706 n.4
(9th Cir. 1998), rev’d by statute on other grounds; Faulker v.
Beer, 463 F.3d 130, 134 (2d Cir. 2006); International Audiotext
Network v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.
1995) (considering an agreement that was not specifically
incorporated into the complaint because the complaint “relies
heavily upon its terms and effect” such that the agreement is
“integral” to the complaint). But the mere mention of the existence of a document is insufficient to incorporate the contents
of a document. See United States v. Ritchie, 342 F.3d 903,
908-09 (9th Cir. 2003).

Here, the Amended Complaint does not explicitly refer to
the Billing Agreement, but it contains allegations that the
EPV entities used Olympic to handle their billings and that
Olympic “held reserves from the EPV entities in an amount
necessary to cover contingent liabilities associated with the
marketing programs.” Appellees do not contend that the Billing
Agreement provided in the record is not authentic.

Whether or not Olympic converted the reserves it received
from the EPV entities’ customers (for purposes of triggering
the statute of limitations) depends in large part on its authorization
to do so and whether it asserted ownership over the
funds at that time—suggesting that the Billing Agreement is
integral to the Amended Complaint.5

IV

Because we must determine the limitations issue in accordance
with Washington law, the applicable statute of limitations
for all of Coto’s claims for relief is three years. RCW
4.16.0806; Louisiana-Pacific Corp. v. ASARCO, Inc., 24 F.3d
1565, 1580 (9th Cir. 1994); Hudson v. Condon, 6 P.3d 615,
619 (Wash. Ct. App. 2000).7 The statute of limitations begins
to run when the plaintiff knew or should have known all of
the essential elements of its applicable cause of action.
Louisiana-Pacific Corp., 24 F.3d at 1580 (citing Rose v. A.C.
& S., Inc., 796 F.2d 294, 296 (9th Cir. 1986)).

A

[4] Conversion consists of an unjustified, willful interference
without lawful justification, whereby a person entitled to
it is deprived of the possession of his or her property. See,
e.g., Potter v. Washington State Patrol, 196 P.3d 691, 696
(Wash. 2008); Western Farm Service, Inc. v. Olsen, 90 P.3d
1053, 1054 n.1 (Wash. 2004). The plaintiff must establish (or
here, plead) that it has “some property interest in the goods
allegedly converted.” Meyers Way Dev. Ltd. Partnership v.
Univ. Savings Bank, 910 P.2d 1308, 1320 (Wash. Ct. App.
1996) (quoting Michel v. Melgren, 853 P.2d 940, 943 (Wash.
Ct. App. 1993)). Money may be the subject of conversion if
the party charged with conversion wrongfully received the
money or had an obligation, which it failed to honor, to return
the specific money to the party claiming it. See, e.g., Public
Utility Dist. 1 of Lewis County v. Wash. Public Power Supply
System, 705 P.2d 1195, 1211 (Wash. 1995); Davenport v.
Wash. Educ. Ass’n, 197 P.3d 686, 695 (Wash. Ct. App. 2008).

[5] Coto contends that the reserves held by Olympic were
impressed with a resulting trust for the benefit of the nowdissolved
EPV entities and that Olympic in 2000 asserted no
claim of ownership to the funds, and therefore did not convert
them, until 2007. A resulting trust arises when the person with
legal title is not the person advancing consideration for the
property—the person with legal title is presumed to hold it
subject to the equitable ownership of the purchaser, absent
contrary intent. See In re Spadoni’s Estate, 430 P.2d 965, 967
(Wash. 1967). A resulting trust is formed only on the basis of
circumstances that create an inference that the parties
intended to create a trust. See Thor v. McDearmid, 817 P.2d
1380, 1388 (Wash. Ct. App. 1991). The trust must eventually
be proven by clear, cogent and convincing evidence. See In re
Spadoni’s Estate, 430 P.2d at 967. For example, the Supreme
Court of Washington affirmed a trial court’s finding of a
resulting trust in favor of a utility company’s shareholders
when the company declared dividends for its shareholders and
established a separate bank account for the funds. See Dep’t
of Revenue v. Puget Sound Power & Light Co., 694 P.2d 7,
12 (Wash. 1985). Given the facts alleged here, however, it is
not plausible that Olympic held a resulting trust for the benefit
of the EPV entities. Instead, it is clear from the Billing Agreement
that Olympic intended to retain reserves to compensate
for amounts that are uncollectible from the EPV entities’
customers—not to hold them for the EPV entities’ later benefit.

[6] Even if Olympic did hold the reserves as a resulting
trust, it repudiated that trust in 2000. The statute of limitations
begins to run when the possessor of the property repudiates,
or the plaintiff should have discovered a repudiation of, the
claimant’s right to the property. See Goodman v. Goodman,
907 P.2d 290, 294 (Wash. 1995); Brougham v. Swarva, 661
P.2d 138, 142 (Wash. Ct. App. 1983). A repudiation occurs
when the trustee, by words or other conduct, denies there is
a trust and claims the trust property as its own. Goodman, 907
P.2d at 294 (internal citations omitted). “The repudiation must
be plain, strong, and unequivocal.” Id.; Puget Sound Power &
Light Co., 694 P.2d at 12-13 (holding that repudiation
occurred at the earliest at the date of the statutory presumption
of abandonment); Skok v. Snyder, 733 P.2d 547, 550 (Wash.
Ct. App. 1987) (noting that a trustee’s continued acknowledgment
of the trust is regarded as strongly indicating that he has
not repudiated it); O’Steen v. Wineberg’s Estate, 640 P.2d 28,
34 (Wash. Ct. App.1982) (trust not repudiated based on the
trustee’s inventory of the trust’s property, although that may
be a sign that the trustee considered the property his own, it
was not clear and unequivocal).

[7] In the present case, in 2000, Coto objected to Olympic’s
decision to raise the reserves. While Coto does not plead that
Olympic clearly stated to Coto that the reserves were its property,
it inferred as much when Olympic declined to return the
funds. Moreover, the Billing Agreement indicates that Olympic
subtracts its reserves from the net funds to be disbursed
to the EPV entities and, therefore, when it declares a reserve
requirement, it is also declaring that it intends to withhold the
funds from the EPV entities indefinitely. The EPV entities’
marketing programs were shut down in 2000 and, consequently,
Olympic’s decision to raise the reserve requirement
that summer was its final decision as to the reserves.

It is not surprising, therefore, that Coto’s beneficiary
objected to Olympic’s actions by filing a conversion claim on
behalf of EPV in 2000. Included in the record on appeal are
several filings related to a bankruptcy in the Northern District
of Texas Bankruptcy Court, purportedly filed by EPV. In an
adversarial proceeding brought in the bankruptcy court in
November 2000, EPV filed a complaint alleging a conversion
claim against Olympic based on “[t]he method and manner in
which Olympic has retained the approximately $9 million in
funds in violation of the Billing Services Agreement.” See
Electronic Publishing Ventures, L.L.C. v. Olympic Telecommunications,
Inc., Adversary Proc. No. 00-03574-hca, Doc.
No. 1 (Bankr. N. D. Tex. Nov. 21, 2000).8 EPV pleaded that
it “has made demand upon Olympic for the return of such
funds, and such demand was refused. Accordingly, EPV
requests judgment against Olympic for the value of the money
and property which it has wrongfully assumed and exercised
control over.” Id.

[8] Eisenberg and Olympic did not raise the abovedescribed
complaint in the bankruptcy proceeding in the proceedings
below, in briefing here, or at oral argument.9 While
not relying on this bankruptcy complaint for the truth of the
allegations in it, we note that it provides additional support for
our conclusion that, in 2000, Coto (then on behalf of EPV)
knew or should have known of all the existence of the elements
of a conversion claim, that is, at that time, Olympic
intended to retain the reserves and would not be disbursing
them to the EPV entities. Coto’s conversion claim thus arose
in 2000 and is, therefore, time barred.

B

[9] A claim of money had and received is another name for
a common law action for restitution. Davenport v. Washington
Educ. Ass’n, 197 P.3d 686, 696 (Wash. Ct. App. 2008).

It may apply when conversion does not, in cases when “the
defendant has received money which in equity and good conscience
should have been paid to the plaintiff, and under such
circumstances that he ought, by the ties of natural justice, to
pay it over.” Id. at 697 (internal quotations omitted). The law
of restitution requires only that the transferee have received
the property of another under circumstances that result in the
transferee’s unjust enrichment. Id. at 698-99. Then, restitution
applies to recover the gain acquired by the defendant through
the wrongful act as opposed to seeking damages to recover for
the harm done to the plaintiff. See GEORGE E. PALMER, LAW OF
RESTITUTION § 2.1, at 53 (1978 & Supp. 2010). Unjust enrichment
is essentially another way of stating a tort claim and,
consequently, once the underlying tort claim is dismissed, so
is the unjust enrichment claim. See id. Here, Coto’s “money
had and received” claim appears to be an echo of its conversion
claim, and for the reasons discussed above, is also barred
by the statute of limitations.

C

[10] Coto’s third claim for relief is one for breach of fiduciary
duty based on Appellees’ role as “trustee” of the resulting
trust discussed above. A fiduciary relationship does not
exist on the basis of an arm’s length business transaction,
unless provided for by contract. See, e.g., Maginnis v. Simmons,
286 P.2d 102, 104 (Wash. 1955). A claim for a breach
of fiduciary duty exists when there is a duty and the breach
was the proximate cause of losses sustained. See, e.g., Senn
v. Northwest Underwriters, Inc., 875 P.2d 637, 639 (Wash.
Ct. App.1994). As Coto averred, in 2000, it objected to the
reserve level as improper and all the elements of a breach of
fiduciary duty were present at that time—if at all. Unlike the
conversion claim, the breach of fiduciary duty claim does not
depend on whether Olympic asserted ownership over the
funds— only whether it acted as a fiduciary should have in
the best interest of those to whom it owed a duty. As Coto
notes, it could have also brought a claim based on mismanagement
of the reserves in 2000. The district court’s order
will therefore be affirmed as to this claim for relief.

* * *

See: http://www.ca9.uscourts.gov/datastore/opinions/2010/01/29/08-35966.pdf

Outcome: Coto’s remaining “claims” are in fact equitable remedies that were properly disposed of by the district court given that Coto’s claims for relief were dismissed. Accordingly, the judgment of the district court is AFFIRMED[11] Coto’s remaining “claims” are in fact equitable remedies
that were properly disposed of by the district court given
that Coto’s claims for relief were dismissed. Accordingly, the
judgment of the district court is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: Digested by Jesse Antell