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Sender v. Dillow

United States District Court, Tenth Circuit

August 30, 2013

HARVEY SENDER, in his capacity as Receiver, Plaintiff,


RICHARD D. ROGERS, District Judge.

This is an action brought by a receiver to recover funds for the benefit of the receivership estate. The court has diversity jurisdiction in this matter pursuant to 28 U.S.C. ยง 1332. This case is before the court upon defendants' motion to dismiss upon statute of limitations grounds. Doc. No. 7. Defendant's argumentation focuses upon plaintiff's statutory fraudulent transfer claims and plaintiff's unjust enrichment claim. For the reasons which follow, the court finds that there is an issue of equitable tolling which prevents dismissal of plaintiff's statutory fraudulent transfer claims and that plaintiff's unjust enrichment action should not be dismissed pursuant to the Kansas saving statute. Also pending before the court is plaintiff's motion for leave to file a surreply brief. Doc. No. 13. That motion shall be granted.


Plaintiff is the receiver for the Yost Partnership, LP, which operated as an investment partnership. Plaintiff was appointed by a state court in Colorado. The Yost Partnership was an Illinois limited partnership with its principal place of business in Chicago, Illinois.

The Yost Partnership started in 1991 and operated legitimately for many years. It is alleged and undenied for the purposes of this order that sometime in 2005 and thereafter the Yost Partnership began operating as a Ponzi scheme in response to major trading losses. The partnership was enjoined after September 8, 2010 when the Securities Commissioner for the State of Colorado filed a complaint.

Plaintiff has brought this action alleging that certain funds were wrongly distributed from the Yost Partnership to defendants, although there are no allegations that defendants were part of the Ponzi scheme. Defendants' father, Byron Dillow, invested money in the Yost Partnership in 1997. He died in 2002 and his interest in the Yost Partnership was inherited by defendants' mother, Sara Dillow. When she died in 2008, defendants inherited their interest in the Yost Partnership from her. Defendants are two children of Byron and Sara Dillow and are Kansas residents. A third child is an Illinois resident and is a party to similar litigation filed in Illinois, but not a party to this action.

The complaint alleges that between March 31, 2005 and the receivership commencement date, the Yost Partnership distributed funds in excess of $270, 000 of the true capital account value of the interest held by defendants' mother and that these funds were inherited by her children. It is undisputed that money was transferred from the Yost Partnership to defendants on February 20, 2009, February 24, 2009 and April 8, 2009. Plaintiff was appointed as receiver on September 14, 2010.

This lawsuit was filed on April 10, 2013, more than four years after the last money transfer. Prior to filing this lawsuit, plaintiff filed suits upon the same facts against defendants in Colorado and Illinois state courts. The Colorado case was filed on August 17, 2011 and dismissed without prejudice on February 6, 2012. The Illinois case was filed on January 30, 2012. It was dismissed for lack of personal jurisdiction as to the defendants in this case on October 25, 2012.


Plaintiff seeks a declaratory judgment in Count I of the complaint. In Count II, plaintiff alleges unjust enrichment and requests that the court impose a constructive trust on the alleged excess distributions. Plaintiff asks for similar relief under the terms of the receivership order in Count III. In Counts IV and V plaintiff alleges fraudulent transfer (fraud in fact and constructive fraud) in violation of Kansas and Illinois fraudulent transfer statutes. These statutes, which are more or less the same, are based upon the Uniform Fraudulent Transfer Act or "UFTA." Defendants contend that the longest limitations period for any of plaintiff's claims is four years and, since plaintiff filed this action more than four years after the last money transfer on April 8, 2009, that plaintiff's claims are untimely filed. As stated before, defendants' argumentation focuses upon plaintiff's fraudulent transfer and unjust enrichment claims.


Defendants do not identify what rule they believe governs their motion to dismiss. The court will apply the standards of FED.R.CIV.P. 12(b)(6), with some leeway for facts which seem undisputed although they are not contained in the complaint. We accept as true all well-pleaded factual allegations in the complaint and view them in a light most favorable to plaintiff. Smith v. United States , 561 F.3d 1090, 1098 (10th Cir. 2009) cert. denied, 558 U.S. 1148 (2010). The statute of limitations is an affirmative defense. Aldrich v. McCulloch Props., Inc. , 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). Defendant can raise a limitations defense in a Rule 12(b) motion when the dates alleged in the complaint make clear that the right sued upon has been extinguished. The court should not focus upon whether the allegations in the complaint show compliance with the statute of limitations, but whether the allegations in the complaint show noncompliance. See Jones v. Bock , 549 U.S. 199, 215 (2007)(complaint need not include facts defeating affirmative defense of administrative exhaustion); Cancer Foundation, Inc. v. Cerberus Capital , 559 F.3d 671, 674-75 (7th Cir. 2009)(a limitations defense should not be considered upon a motion to dismiss unless plaintiff pleads himself out of court by alleging facts establishing the defense).

As equitable tolling is argued in this case, it is appropriate to note that "generally, the applicability of equitable tolling depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss (where review is limited to the complaint) if equitable tolling is at issue." Huynh v. Chase Manhattan Bank , 465 F.3d 992, 1003-04 (9th Cir. 2006).

Although some of the facts relevant to the arguments in this case do not appear in the complaint, plaintiff has not objected to the motion to dismiss on this ground. As these facts appear undisputed, for the purposes of expediency, the court will proceed, where we can, to decide the motion to ...

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