MEMO ON ADVERSARY CASE DISMISSAL by Boxer47

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Entered on Docket October 21, 2008
__________________________________ Hon. Mike K. Nakagawa United States Bankruptcy Judge

5 ___________________________________________________________ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 and Fertitta Enterprises, Inc., as well as Xyience Incorporated as nominal defendant, to dismiss 23 the above-captioned adversary proceeding were heard on May 28, 2008. The appearances of 24 counsel and the parties were noted on the record. The matters were taken under submission after 25 presentation of oral arguments. 26 27 28 1 MEMORANDUM DECISION ON MOTIONS TO DISMISS ADVERSARY PROCEEDING The motions of Defendants ARC Investment Partners, LLC, Adam Roseman, Zyen, LLC, In re: UNITED STATES BANKRUPTCY COURT DISTRICT OF NEVADA ****** ) ) ) XYIENCE INCORPORATED, a Nevada ) corporation, ) Debtor. ____________________________________ ) ) ) KLINGENBERG CHILDREN’S ) EDUCATION TRUST; et al., ) ) Plaintiffs, ) v. ) ) KEY MANAGEMENT, LLC; et al., ) ) Defendants. ____________________________________ ) BK-S-08-10474-MKN Chapter 11

Adversary No. 08-1107 Date: May 28, 2008 Time: 9:30 a.m.

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BACKGROUND1 On January 3, 2008, an involuntary Chapter 11 proceeding was commenced against Xyience Incorporated, a Nevada corporation (“Xyience”). Thereafter, Xyience commenced a voluntary Chapter 11 proceeding on January 18, 2008. On January 31, 2008, the involuntary proceeding, denominated Case No. BK-S-08-10049, was dismissed by stipulation, and the voluntary Chapter 11 proceeding went forward with Xyience as the debtor-in-possession. On February 19, 2008, an Official Committee of Unsecured Creditors (“Committee”) was appointed in the Chapter 11 proceeding pursuant to Section 1102. Prior to the commencement of bankruptcy proceedings, an action had been filed in the Eighth Judicial District Court for Clark County, Nevada, denominated Case No. A553116, by the Klingenberg Children’s Education Trust, as well as various other entities and individuals (collectively “Plaintiffs”). All of the named Plaintiffs are alleged to be shareholders of Xyience.2 The complaint names as defendants various entities and individuals, including ARC Investment Partners, LLC (“ARC”), Fertitta Enterprises, Inc. (“Fertitta”), Zyen, LLC (“Zyen”), Adam Roseman (“Roseman”), Kirk Sanford (“Sanford”), Adam Frank (“Frank”), and Kathryne Lever (“Lever”). Xyience is named as a nominal defendant. After the commencement of the Xyience bankruptcy proceedings, Plaintiffs filed an Amended Complaint on March 13, 2008. The Amended Complaint includes the same parties and is framed as eleven separate counts. The Amended Complaint generally asserts that the alleged misconduct of the named defendants has resulted in “enrichment of certain Defendants through acquisition of Xyience stock for little or no consideration, dilution of the economic value of the disinterested shareholders holdings, along with their voting rights, and the placing

In the text and footnotes of this Memorandum Decision, all references to “Section” shall be to the provisions of the Bankruptcy Code appearing in Title 11 of the United States Code, unless otherwise indicated. All references to “FRCP” shall be to the Federal Rules of Civil Procedure. All references to “Rule” shall be to the Federal Rules of Bankruptcy Procedure, unless otherwise indicated. Plaintiff Ronald Solomon is alleged to have been given proxies constituting in excess of 35% of the issued and outstanding shares of Xyience. 2
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(sic) the Company in dire financial straights (sic) through conduct deliberately designed to cripple the Company’s operations while at the same time rejecting financing transactions on terms beneficial to the Company.” Amended Complaint at ¶ 2. Four of the counts allege that Xyience was damaged under theories of breach of fiduciary duty (Count I), civil conspiracy (Count III), fraudulent inducement (Count V), and unjust enrichment (Count VII). The remaining counts in the Amended Complaint allege that the shareholders of Xyience were damaged under theories of breach of fiduciary duty (Count II), civil conspiracy (Count IV), fraudulent inducement (Count VI), aiding and abetting breach of fiduciary duty by Fertitta (Count IX), aiding and abetting breach of fiduciary duty by Zyen (Count X), and conspiracy by Zyen (Count XI). A demand for inspection of Xyience’s books and records is included as well (Count VIII). On April 4, 2008, a notice of removal was filed by Defendants Zyen and Fertitta and the action was assigned Adversary Proceeding No. 08-1107. On April 7, 2008, a motion to dismiss was filed by Defendants ARC and Roseman (“ARC Dismissal Motion”). The same day, a motion to dismiss was filed by Defendants Zyen and Fertitta (“Zyen Dismissal Motion”). Defendants Frank, Sanford and Lever filed a “joinder” in the motion to dismiss filed by ARC and Roseman. Also on the same day, nominal defendant Xyience filed a limited “joinder” (“Xyience Joinder”) in the motions to dismiss that had been filed by ARC, Roseman, Zyen and Fertitta. On April 7, 2008, an order was entered in the Chapter 11 proceeding granting Xyience’s motion to sell its business operations free and clear of liens (“Asset Sale”) pursuant to Sections 363, 105 and 549. Included in the order was the assumption and assignment of certain agreements pursuant to Section 365. The Asset Sale did not include any claims and choses of action belonging to the Xyience bankruptcy estate. Plaintiffs filed a combined opposition to the Dismissal Motions (“Plaintiffs’ Opposition”) in addition to filing a motion to remand (“Remand Motion”) the action back to the Eighth

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Judicial District Court3. Replies were filed by ARC and Roseman (“ARC Reply”) and by Zyen and Fertitta (“Zyen Reply”).4 APPLICABLE LEGAL STANDARDS Under FRCP 12(b)(1), a proceeding may be dismissed for lack of subject matter jurisdiction if the plaintiff lacks standing to sue. The court lacks subject matter jurisdiction if the plaintiff is not a person aggrieved to have constitutional standing under Article III to seek relief. If the plaintiff is a person aggrieved to meet the threshold of constitutional standing, then dismissal for lack of standing under a particular statute is properly addressed under FRCP 12(b)(6). See Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 975 n.7 (9th Cir. 2008). Under FRCP 12(b)(6), incorporated by reference under Rule 7012, an action may be dismissed if it “fails to state a claim for which relief may be granted.” The allegations of the

complaint must be construed in the light most favorable to the plaintiff and all well-pleaded factual allegations are accepted as true. See Cahill v. Liberty Mutual Insurance Co., 80 F.3d 336. 337-38 (9th Cir. 1996). General or vague allegations are not enough to withstand a motion to dismiss. See Funderburk v. McDaniel, 2007 WL 4191963 at *2 (D. Nev. November 21, 2007). In Bell Atlantic Corporation v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007), the Court recently observed as follows: “While a complaint...does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds for his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of elements of a cause of action will not do...Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” 127 S.Ct. at 1965. To avoid being dismissed for failure to state a claim, the complaint must set

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The Remand Motion is the subject of a separate memorandum decision and separate

order. In this Memorandum Decision, the legal memoranda submitted by the parties will be cited by page and line numbers, separated by a colon. For example, “Document at 4:9-12", would mean page 4, lines 9 through 12 of the memorandum identified. 4
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forth “...enough facts to state a claim for relief that is plausible on its face...” 127 S.Ct. at 1974. See, e.g., In re Friedman’s Inc., 385 B.R. 381, 410 (S.D.Ga. 2008). Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by an amendment. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008), citing Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). DISCUSSION Under Section 541(a)(1), a cause of action in which the debtor has a legal interest on the petition date constitutes property of the debtor’s bankruptcy estate. See Sierra Switchboard Co. v. Westinghouse Electric Corp., 789 F.2d 705, 707 (9th Cir. 1986). See, e.g., Smith v. Arthur Andersen LLP, 421 F.3d 989 (9th Cir. 2005). A claim involving a generalized harm to all creditors constitutes property of the bankruptcy estate, while a claim that involves an individualized harm to a specific creditor is not property of the bankruptcy estate. See Schnelling v. Thomas (In re Agribiotech, Inc.), 319 B.R. 216, 220-21 (Bkrtcy.D.Nev. 2004). A Chapter 11 debtor-in-possession has the rights of a trustee in bankruptcy. See 11 U.S.C. § 1107(a). A bankruptcy trustee has capacity to sue on behalf of the bankruptcy estate, see 11 U.S.C. section 323(a), and has the exclusive right to sue on claims belonging to the estate. See Estate of Spirtos v. San Bernardino County Superior Court (In re Spirtos), 443 F.3d 1172, 1175 (9th Cir. 2006). Other parties may be authorized by the bankruptcy court to sue on claims belonging to the bankruptcy estate, but only after obtaining express permission to do so on cause shown. See In re Permatex, Inc., 199 F.3d 1029, 1031 (9th Cir. 1999), citing In re Curry and Sorensen, Inc., 57 B.R. 824, 828 (B.A.P. 9th Cir. 1986).5 ARC and Roseman, as well as Zyen and Fertitta, argue that all of the monetary claims for relief set forth in the Amended Complaint are derivative claims belonging to Xyience and not to individual shareholders. See ARC Dismissal Motion at 10:1 to 17:15; Zyen Dismissal Motion at

In concluding that various creditors lacked standing to bring a fraudulent transfer action in a Chapter 11 proceeding, the appellate panel in Curry and Sorensen observed “that even creditors’ committees organized under 11 U.S.C. § 1102 must also secure prior court approval before instituting such suits.” 57 B.R. at 828 n.3. 5

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9:1-19. As a result, all of these Defendants, as well as the joining Defendants6, argue that Plaintiffs lack standing to assert the claims. See ARC Dismissal Motion at 17:15 to 18:14; Zyen Dismissal Motion at 9:20 to 10:217. Zyen and Fertitta further argue that Counts IX and X (both aiding and abetting breach of fiduciary duty), as well as Count XI (conspiracy), must be dismissed for failure to state a claim for which relief may be granted. Id. at 11:19 to 14:10. In addition, Zyen and Fertitta argue that the claims alleged in the Amended Complaint are barred under the doctrine of in pari delicto. Id. at 14:11 to 16:8.8 In their written opposition, Plaintiffs argue that the Amended Complaint asserts both derivative and direct claims. Plaintiffs concede that Count I (breach of fiduciary duty), Count III (civil conspiracy) and Count V (fraudulent inducement) are derivative claims. See Plaintiffs’ Opposition at 12:2-4. As such, there is no real dispute that the Dismissal Motions must be granted as to Counts I, III and V. Plaintiffs further argue, however, that Count II (breach of fiduciary duty), Count IV (civil conspiracy) and Count VI (fraudulent inducement) are direct claims belonging to the shareholder Plaintiffs. Id. at 12:4-6. Based on the characterization of Counts II, IV and VI as being direct claims, Plaintiffs argue that they have standing to assert them against the Defendants. Id. at 14:19 to 15:12.

Xyience seeks to dismiss the Amended Complaint to the extent that Plaintiffs lack standing to prosecute derivative claims belonging to the bankruptcy estate, but not as to the merits of such claims. See Xyience Joinder at 3:11-19. In a similar vein, the Committee filed a belated response on May 23, 2008, requesting that no derivative claims be dismissed on their merits. In their written reply, Zyen and Fertitta emphasize that derivative claims are property of the Xyience bankruptcy estate, see Zyen Reply at 4:3 to 6:2, over which the Court has subject matter jurisdiction. See id. at 2:13 to 4:1 and 11:13 to 12:20. Proceedings affecting the liquidation of assets of the estate are core matters arising under title 11. See 28 U.S.C. § 157(b)(2)(O). Zyen and Fertitta also argue that the Amended Complaint was filed on March 13, 2008, in violation of the automatic stay triggered by the filing of the involuntary petition against Xyience on January 3, 2008. See Zyen Dismissal Motion at 4 n.2. In response, Plaintiffs argue that the parties stipulated to the filing of the Amended Complaint with the specific intention that Plaintiffs would not be proceeding as to any derivative claims. See Plaintiffs’ Opposition at 12:19-21 n.6. See also Amended Complaint at 4 n.1. While Plaintiffs’ position is irrelevant at best, Zyen and Fertitta do not assert that the Amended Complaint is void and must be stricken. 6
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Plaintiffs also argue that the Amended Complaint adequately pleads direct claims for relief under Count II (breach of fiduciary duty), Count IX (aiding and abetting breach of fiduciary duty by Fertitta), Count X (aiding and abetting breach of fiduciary duty by Zyen), and Count XI (conspiracy by Zyen). See Plaintiffs’ Opposition at 15:13-18; 17:9 to 19:23. Nevada law determines whether the Amended Complaint asserts derivative or direct claims. See Vogel v. Jobs, 2007 WL 3461163 at *2 (N.D.Cal. Nov. 14, 2007)(characterization governed by law of state of incorporation). In Cohen v. Mirage Resorts, Inc., 119 Nev.1, 21, 62 P.3d 720, 734 (Nev. 2003), the Nevada Supreme Court emphasized that a claim is derivative where the alleged harm is to the corporation, is shared by all stockholders, and not related or unique to an individual stockholder. The court also noted, however, that if the stockholder does have “injuries that are independent of any injury suffered by the corporation,” the claim is direct and may be brought by the stockholder. 119 Nev. at 19, 62 P.3d at 732. The parties apparently agree that Cohen summarizes the appropriate legal principle, see ARC Dismissal Motion at 10:2-8 and Plaintiffs’ Opposition at 14:2-59, but disagree on whether Plaintiffs have asserted an independent injury giving rise to a direct claim.10 Plaintiffs apparently argue that individual officers and directors of a corporation may be personally liable in a direct action for breach of fiduciary duty based on Section 78.138 of the Nevada Revised Statutes. See Plaintiffs’ Opposition at 12:18 to 13:12. Section 78.128(7) In their written reply, Zyen and Fertitta also argue that a direct injury independent of that suffered by the corporation must be shown, see Zyen Reply at 6:23 to 7:1, but cite Mann v. GTCR Golder Rauner, L.L.C., 483 F.Supp.2d 884, 895-99 (D.Ariz. 2007) for that proposition. In Mann, the court re-framed the inquiry as turning on two questions: “(1) who suffered the alleged harm (the corporation or the suing shareholders individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?” 483 F.Supp.2d at 896, quoting Tooley v. Donaldson, Lufkin, & Jenrette, Inc., 845 A.2d 1031, 1033 (Del. 2004). Cohen involved a former stockholder that asserted directors and officers misconduct in connection with a merger with another corporation. Because the merger resulted in the stockholder’s loss of his interest in the acquired corporation, the court characterized his claim as a loss of unique personal property - an interest in a specific corporation - separate from any injury suffered by the corporation. 119 Nev. at 19, 62 P.3d at 732. Plaintiffs in the instant action have not asserted the loss of unique personal property or similar damage comparable to the merger situation. 7
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provides in pertinent part that “...a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his capacity as a director or officer unless it is proven that: (a) his act or failure to act constituted a breach of his fiduciary duties as a director or officer; and (b) his breach of those duties involved intentional misconduct, fraud or knowing violation of law.” While the language of Section 78.128(7) refers to director or officer liability to the corporation or its stockholders, it does not specify that stockholders generally have a direct claim to recover for the misconduct of the corporation’s officers and directors. Plaintiffs argue that defendants’ improper actions diluted their economic interests so as to constitute direct claims. See Plaintiffs’ Opposition at 14:6-19, citing Gatz v. Ponsoldt, 925 A.2d 1265, 1277-1281 (Del. 2007); Gentile v. Rossette, 906 A.2d 91, 100 (Del. 2006), and Oliver v. Boston University, 2000 WL 1091480 at *6 (Del. Ch. July 25, 2000).11 Each of the cases cited, however, involved oppressive activities by controlling shareholders that diluted the economic value of the minority stockholder’s shares. See Gatz, 925 A.2d at 1272; Gentile, 906 A.2d at 9495; Oliver, 2000 WL 1091480 at *7.12 In Feldman v. Cutaia, __ A.2d __, 2007 WL 5211892 at *8 (Del.Ch. Aug.1, 2007), the chancery court recognized this type of situation as being a narrow exception to the general rule that equity dilution injuries are derivative claims on behalf of the corporation rather than individual shareholders.13 Other jurisdictions recognize that general equity dilution injuries give rise to derivative claims rather than direct claims. See, e.g., Pareto v. Federal Deposit Insurance Corp., 139 F.3d 696, 699-700 (9th Cir. 1998)(applying California law); Schuster v. Gardner, 127 Cal.App.4th 305, 312, 25 Cal.Rptr.3d 468, 473 (4th Dist. 2005)

In their written argument, ARC and Roseman suggest that Plaintiffs’ “reliance on Delaware law is misplaced,” see ARC Reply at 6:25, but reference to Delaware law is not at odds with the approach taken by the Nevada Supreme Court in interpreting its corporation laws. See, e.g., Shoen v. Sac Holding Corp., 122 Nev.621, 137 P.3d 1171, 1179-84 (Nev. 2006). In Gentile, the Delaware Supreme Court characterized Oliver as involving plaintiffs who were minority stockholders both before and after a merger. 906 A.2d at 101 n.25. Two days after the hearing in the instant matter, the Delaware Supreme Court affirmed the Chancery Court’s decision. See Feldman v. Cutaia, 951 A.2d 727 (Del. 2008). 8
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(applying California law); May v. Coffey, 2007 WL 1121748 at *6 (Conn. Super. Ct. Mar. 30, 2007), citing Yanow v. Teal Industries, Inc., 178 Conn. 262, 281, 422 A.2d 311, 321 (Conn. 1979) (applying Connecticut law). In the instant case, the Amended Complaint alleges a chain of events beginning with the formation of Xyience in May 2004, see Amended Complaint at ¶¶ 81-82, the various efforts and transactions to capitalize its operations in 2006, id. at ¶¶ 83-96, the related activities of certain of its officers and directors in 2007, id. at ¶¶ 89-127, the status and financing of operations of Xyience in 2007, id. at ¶¶ 98 -126, the impact of financing transactions on the viability of Xyience, id. at ¶¶ 108-126), and the refusal of certain officers and directors to allow inspection of books and records. Id. at ¶¶ 138-141. The eleven separate counts set forth in the Amended Complaint allegedly stem from this sequence of events. Plaintiffs allege that the value of their shares and their voting interests were diluted through the alleged conduct of the Defendants. Plaintiffs do not allege, however, that the Defendants ever held a majority interest in Xyience or that Defendants acted as controlling shareholders to dilute the value of Plaintiffs’ shares as minority stockholders. Nor is there any allegation that the Defendants’ activities led to a merger of Xyience with another entity such that Plaintiffs’ suffered a loss of a unique personal property interest in Xyience. In short, the asserted damage occasioned by Defendants’ alleged conduct was shared by all stockholders of Xyience and was not unique to the Plaintiffs or any particular shareholder. Any recovery on the asserted claims would inure to the benefit of all shareholders of Xyience, not just the Plaintiffs. Injuries common to all shareholders are the province of a derivative claim and merely alleging that the shareholders rather than the corporation has been injured does not alter the nature of the action. See Doleman v. Meiji Mutual Life Insurance Co., 727 F.2d 1480, 1485 (9th Cir. 1984). Under these circumstances, Plaintiffs lack standing to pursue the claims alleged in the Amended Complaint. The Asset Sale did not include claims and choses of action belonging to the bankruptcy estate. The derivative claims remain with Xyience and are to be administered as assets of the estate. CONCLUSION 9

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For the reasons set forth above, the motions of Defendants ARC Investment Partners, LLC, Adam Roseman, Zyen, LLC, and Fertitta Enterprises, Inc. to dismiss the above-captioned adversary proceeding will be granted for lack of standing pursuant to FRCP 12(b)(6). A separate order has been entered concurrently herewith.

Copies noticed through ECF to: LAUREL E. DAVIS ldavis@fclaw.com, mhurtado@fclaw.com;lgolonka@fclaw.com JAMES D. GREENE bknotice@bhfs.com PAMELA R. LAWSON plawson@huntertonlaw.com MATTHEW E. MCCLINTOCK mmcclintock@bellboyd.com, sthoma@bellboyd.com ROBERT SPEAR rspear@spearlegal.com MATTHEW C. ZIRZOW bankruptcynotices@gordonsilver.com, bknotices@gordonsilver.com GREGORY E GARMAN bankruptcynotices@gordonsilver.com, bknotices@gordonsilver.com and sent to BNC to: DANIEL S. NEWMAN ONE BISCAYNE TOWER, 21ST FLR 2 SO. BISCAYNE BLVD MIAMI, FL 33131 L. KRISTOPHER RATH 10080 WEST ALTA DR., SUITE 200 LAS VEGAS, NV 89145 LAWRENCE J SEMENZA 100 CITY PKWY, SUITE 1600 LAS VEGAS, NV 89106 TODD L. BICE 300 S FOURTH ST #1200 LAS VEGAS, NV 89101 KEY MANAGEMENT, LLC UNKNOWN LAS VEGAS, NV 89101

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CROWN CAPITAL PARTNERS, LLC UNKNOWN LAS VEGAS, NV 89101

JEFF DASH UNKNOWN LAS VEGAS, NV 89101 PATRICK BRAUCKMANN UNKNOWN LAS VEGAS, NV 89101

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