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While the defendants have asked for oral argument on the motion to

dismiss, the Court finds that oral argument would not significantly aid the resolution

of the motion.

The Court notes that it has intentionally not discussed every argument

raised by the parties and that those arguments not discussed were considered by

the Court to be unnecessary to its resolution of the motion to dismiss.

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

David v. Cavan,

 Plaintiff,

vs.

Robert Maron, et al.,

 Defendants.

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No. CV-15-02586-PHX-PGR 

 ORDER

 

 

Among the motions pending before the Court is Defendants’ Motion to Dismiss

Counts I Through VI of Plaintiff’s Amended Complaint for Failure to State a Claim

Pursuant to Rule 12(b)(6) and 9(b) (Doc. 32). Having considered the parties’

memoranda, the Court finds that the motion should be granted in part and denied in

part.1

 

Background

According to the Amended Civil Complaint (“Amended Complaint”) (Doc. 31),

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the plaintiff, David Cavan, and the defendants, Robert Maron and Robert Maron,

Inc., entered into an agreement in July 2007 (the “initial agreement”) under which the

plaintiff agreed to purchase two rare watches from the defendants: a Patek Philippe

Ref 3449 (“Patek 3449”) for $1,800,000; and a Patek Philippe Ref 2523 (“Patek

2523”) for $2,100,000; and the defendants agreed to accept eighteen watches

owned by the plaintiff, valued at $2,295,000, to be credited towards the purchase

price of the two rare watches. The defendants subsequently provided an additional

discount of $150,000 towards the purchase price of the two watches and the plaintiff

made an additional payment of $150,000. This left the remaining balance due from

the plaintiff towards the purchase of the two rare watches at $1,304,000 as of

September 2010. 

The defendants did not deliver either the Patek 3449 or the Patek 2523 to the

plaintiff and he alleges that the defendants sold one or both of these watches to

another purchaser. In October 2011, the plaintiff requested that the defendants

return to him the eighteen watches and his $150,000 payment. 

In December 2011, as a result of negotiations through watch broker John

Young who was representing the plaintiff, the parties entered into a written

agreement to modify the initial 2007 agreement (“the modification agreement”); the

modification agreement states that it superseded the original agreement. In the

negotiations leading up to the modification agreement, Robert Maron told the plaintiff

and John Young that the defendants had a different rare watch, a Patek Philippe Ref

2499J (“Patek 2499J”) worth more than $2,000,000. Pursuant to the modification

agreement, the plaintiff was to receive a “Patek Philippe Ref 2499J 18K 1st Series

watch No. 868244/665011,” rather than the Patek 3449 and the Patek 2523, in

consideration for the eighteen watches and the $150,000 that the plaintiff had

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previously delivered to the defendants; the Patek 2499J was to be delivered to the

plaintiff on or before January 20, 2012. 

Several days after the modification agreement was signed, the defendants

delivered to the plaintiff a Patek 2499J. In April 2015, the plaintiff first became aware

that the Patek 2499J may have been sold to him without its original dial; this

awareness occurred when he considered selling the watch and had it examined by

experts at an auction house who questioned the authenticity of the watch’s dial but

could not determine definitively that the original dial had been replaced. The plaintiff

then had the watch examined by Eric Tortella, a world renowned watch expert, who

confirmed in a report that the original dial on the Patek 2499J had been replaced

with an inferior dial; Tortella further informed the plaintiff that the Patek 2499J with

the replaced dial was worth significantly less that the watch with its original dial.

In September 2015, the plaintiff had watch broker John Young contact the

defendants on his behalf. The broker informed the defendants that the Patek 2499J

did not have the original Patek 2499J dial. Robert Maron told the broker that he

(Maron) was not sure what had happened but that he (Maron) would “take care of

it” and replace the dial on the delivered watch with the original Patek 2499J watch

dial. In November 2015, Maron admitted he had switched the dial and, again,

acknowledged he and Robert Maron, Inc. were responsible for delivering the original

Patek 2499J dial to the plaintiff and promised to do so. The defendants did not

deliver the original Patek 2499J dial to the plaintiff and have not returned the

plaintiff’s eighteen watches or returned any money to the plaintiff. 

The plaintiff commenced this action against the defendants on December 21,

2015, four years after he had received the Patek 2499J. In response to the

defendants’ motion to dismiss the original complaint, the Court entered an order on

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April 26, 2016 (Doc. 28) that granted the motion in part and denied it in part with

leave to amend. The plaintiff filed his Amended Complaint on May 11, 2016,

wherein he alleges claims for Breach of Contract (Count I), Breach of the Covenant

of Good Faith and Fair Dealing (Count II), Breach of Fiduciary Duty (Count III),

Negligent Misrepresentation (Count IV), Fraud (Count V), and Unjust Enrichment

(Count VI). The defendants filed their pending motion to dismiss the entirety of the

Amended Complaint on May 25, 2016.

Discussion

Although Arizona’s substantive law governs all of the claims in the plaintiff’s

Amended Complaint, the Federal Rules of Civil Procedure govern the sufficiency of

the Amended Complaint for purposes of the motion to dismiss. Vess v. Ciba-Geigy

Corp. USA, 317 F.3d 1097, 1102 (9th Cir.2003) (“The Federal Rules of Civil

Procedure apply irrespective of the source of subject matter jurisdiction, and

irrespective of whether the substantive law at issue is state or federal.”); Dunbar v.

Wells Fargo Bank, NA, 709 F.3d 1254, 1257 (8th Cir.2013) (“In a diversity suit ... we

apply federal pleading standards - Rules 8 and 12(b)(6) - to the state substantive law

to determine if a complaint makes out a claim under state law.”) (internal brackets

and quotation marks omitted).

A. All Claims

The defendants, in an argument that was not raised in their original motion to

dismiss, initially argue that all of the claims in the Amended Complaint must be

dismissed because the allegations of damages are purely speculative. When ruling

on a motion to dismiss, the Court must “accept all factual allegations in the complaint

as true and construe the pleadings in the light most favorable to the nonmoving

party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Applying that standard

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here, the Court concludes that the plaintiff has adequately alleged that he was

damaged because the original dial on the Patek 2499J he received pursuant to the

modification agreement had been replaced by an inferior dial and that his expert,

Eric Tortella, had informed him that the watch with the replaced dial is worth

significantly less than it would be if it had the original dial. Whether the substituted

dial actually adversely affects the value of the watch is not a matter to be determined

on a motion to dismiss.

B. Breach of Contract Claim

The gist of the plaintiff’s breach of contract claim is that the defendants

materially breached the modification agreement by not providing the Patek 2499J

with its original dial but rather with an inferior substituted dial. The defendants, in

another argument that was not raised in their original motion to dismiss, argue in part

that Count I must be dismissed for failure to state a claim because the Amended

Complaint fails to allege that any express terms of the modification agreement were

breached. The defendants contend that all the modification agreement required was

the delivery of a Patek 2499J with movement 868244 and case 665011 and that was

what was delivered to the plaintiff and that the agreement did not state that the Patek

watch could not be modified. 

The Court concludes that Count I states a claim for breach of contract. The

fact that the modification agreement did not expressly state that the Patek 2499J

could not be in a modified condition is not dispositive of this issue. Under Arizona

law, a contract must be read in light of what the parties intended, and “[t]he intention

or meaning in a contract may be manifested either expressly or impliedly, and it is

fundamental that terms which are plainly or necessarily implied in the language of

a contract are as much a part of it as those which are expressed.” Demand v. Foley,

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This is in accordance with the Court’s statement in its order resolving

the defendants’ motion to dismiss the original complaint that a fair reading of that

complaint demonstrated that defendant Robert Maron, Inc. was obligated under the

agreement to deliver the Patek 2499J with the original dial.

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463 P.2d 851, 856 (Ariz.App.1970); accord, Zancanaro v. Cross, 339 P.2d 746, 749

(Ariz.1959) (“An implied promise arising out of the expressed provisions of the

contract is as much a part of the contract as a written one, and is subject to the

same penalties for breach.”) The Court, drawing on its judicial experience and

common sense, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), as well as drawing the

reasonable inferences from the Amended Complaint in the plaintiff’s favor,

concludes that the plaintiff has plausibly pleaded that the parties intended that the

rare watch that the plaintiff purchased, which was valued at more than $2,000,000,

would have all of its original parts absent a disclosure to the contrary.2

C. Alter Ego Allegations

The defendants also argue that the breach of contract claim in Count I and the

breach of the covenant of good faith and fair dealing claim in Count II must be

dismissed as to Robert Maron for failure to state a claim because the Amended

Complaint fails to adequately allege that defendant Robert Maron, Inc. is the alter

ego of Robert Maron. In its previous order resolving the original motion to dismiss,

the Court dismissed Robert Maron from Counts I and II because the parties’

contracts, on their faces, were solely between the plaintiff and Robert Maron, Inc.

and the plaintiff had not sufficiently alleged alter ego liability. The defendants argue,

and the Court agrees, that the alter ego-related allegations added to the Amended

Complaint are still insufficient to make Robert Maron liable in his individual capacity

for any breach of the modification agreement by Robert Maron, Inc.

In order to survive the motion to dismiss as to this issue, the plaintiff must do

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more than give the defendants fair notice of his claim of alter ego liability; he must

also allege sufficient facts, accepted as true, that show a right to relief against

Robert Maron on alter ego grounds that rises above a speculative level, i.e., one that

is plausible on its face. Iqbal, 556 U.S. at 678. In order to meet this standard, the

allegations in the Amended Complaint related to Robert Maron’s liability must

contain sufficient factual content that allows the Court to draw the reasonable

inference that Maron is liable under Arizona law for the breach of contract-related

claims. If the alleged facts are only consistent with Maron’s liability, then the

allegations against him are not plausible. Id.

It is a basic axiom of Arizona corporate law that since a corporation is a

separate entity, the personal assets of a corporate officer may not normally be

reached to satisfy corporate liabilities. Loiselle v. Cosas Management Group, LLC,

228 P.3d 943, 950 (Ariz.App.2010). “A corporate entity will be disregarded, and the

corporate veil pierced, only of there is sufficient evidence that 1) the corporation is

the alter ego or business conduit of a person, and 2) disregarding the corporation’s

separate legal status is necessary to prevent injustice or fraud.” Id. (internal citations

and quotation marks omitted). Under the first factor, in order for an alter ego status

to exist there must be such unity of interest and ownership that the separate

personalities of the corporation and its owners cease to exist, but the corporate form

is not to be disregarded and the owners should not be personally liable if there is no

unification of interests and intermingling of funds such that the corporation has lost

its separate identity. Dietel v. Day, 492 P.2d 455, 457 (Ariz.App.1972). 

Paragraphs 6 and 7 of the Amended Complaint contains the following alter

ego allegations:

6. On information and belief, Defendant Maron and

Defendant RMI [Robert Maron, Inc.] are the alter ego of

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each other, by reason of the following: 

A. At all times herein mentioned, Defendant

Maron is and was the sole owner of Defendant RMI and

dominated, influenced and controlled the business,

property and affairs of Defendant RMI; 

B. At all times herein mentioned, there existed

a unity of interest between Defendant Maron and

Defendant RMI such that their separateness and

individuality have ceased; 

C. At all times herein mentioned, Defendant

RMI is and was a mere shell and naked framework which

Defendant Maron used as a conduit for the conduct of his

personal business, property and affairs; 

D. Defendant RMI was created and continued

by Defendant Maron pursuant to a fraudulent plan,

scheme and device conceived and operated by Defendant

Maron whereby the income, revenue and profits of

Defendant RMI were diverted to Defendant Maron,

himself; 

E. At all times herein mentioned, Defendant

RMI was organized by Defendant Maron as a device to

avoid individual liability and for the purpose of substituting

a financially irresponsible corporation in place and stead

of Defendant Maron and, accordingly, Defendant RMI was

formed with capitalization totally inadequate for the

business in which Defendant RMI was engaged; and, 

F. At all times herein mentioned, Defendant

RMI is and was insolvent. 

7. On information and belief, by virtue of the

foregoing allegations and further allegations contained

herein, adherence to the fiction of a separate existence

between Defendant Maron and Defendant RMI would,

under the circumstances, sanction fraud and promote

injustice in that Plaintiff Cavan would be unable to realize

any judgment against Defendant RMI and in favor of

Plaintiff Cavan. 

The Court agrees with the defendants that the allegations in ¶ 6 and ¶ 7,

which are all made on “information and belief,” are in effect factually unsupported

conclusions that merely recite factors that courts use in evaluating alter ego claims.

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As is now clear, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss

does not need detailed factual allegations, a plaintiff’s obligation to provide the

grounds for his entitlement to relief requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do[.]” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation, quotation marks and

brackets omitted). What is missing are any factual allegations showing that the

defendants intermingled their corporate and personal assets, affairs or funds, that

the corporate structure was in any used for other than legitimate corporate purposes,

or that observance of corporate form would sanction a fraud. See Dietel v. Day, 492

P.2d at 458. Furthermore, the fact that Maron is the sole owner of the corporate

defendant is an insufficient basis on which to invoke alter ego liability. Ize Nantan

Bagowa, Ltd. v. Scalia, 577 P.2d 725, 728 (Ariz.App.1978) (“[T]he mere fact that it

is a one-man corporation does not mean the corporation is the alter ego of that one

man.”) Also insufficient to show that alter ego liability should be imposed is the

allegation, even if factually supported which it is not, that Robert Maron, Inc. was

undercapitalized and is now insolvent. Id. at 729 (Court stated that

undercapitalization cannot be proved merely by showing that a corporation is now

insolvent, and in any case, undercapitalization is not an absolute ground for

disregarding a corporate entity in the absence of fraud or injustice.) Moreover, even

if the plaintiff did not receive the benefit of his bargain under the modification

agreement, “that alone does not constitute any evidence of fraudulent conduct and

it is not sufficient to justify disregarding the corporate entity.” Dietel, at 458.

Because the Court has already permitted the plaintiff to amend his alter ego

allegations after pointing out their deficiencies and the plaintiff has been unable to

properly do so, the Court concludes that Robert Maron should be dismissed from

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Counts I and II of the Amended Complaint without leave to amend. See Wagh v.

Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir.2003) (“The district court’s discretion

to deny leave to amend is particularly broad where the plaintiff has previously filed

an amended complaint.”)(overruled on other grounds); Chodos v. West Publishing

Co., 292 F.3d 992, 1003 (9th Cir.2002) (same).

D. Breach of Fiduciary Duty Allegations

The defendants also argue that the plaintiff’s breach of fiduciary duty claim

must be dismissed because the allegations in the Amended Complaint are

insufficient to plausibly plead that the defendants owed a fiduciary duty to the

plaintiff. In its previous order, the Court dismissed the breach of fiduciary duty claim

in the original complaint for that very reason. In doing so, the Court noted, for

example, that there were no factual allegations of great intimacy, disclosure of

secrets, or the entrusting of power, that the defendants’ knowledge was superior to

that of the plaintiff’s, that the defendants substituted their will for that of the plaintiff,

or that the defendants had superior knowledge of a kind beyond the fair and

reasonable reach of the plaintiff and inaccessible to the plaintiff through the exercise

of reasonable diligence. The Court agrees with the defendants that the allegations

added in the Amended Complaint do not overcome the deficiencies previously found

by the Court.

Arizona law “distinguishes a fiduciary relationship from an arm’s length

relationship.” Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 335

(Ariz.App.1996). A fiduciary relationship is a “confidential relationship whose

attributes include great intimacy, disclosure of secrets, or intrusting of power” and

is one in which the fiduciary “holds superiority of position over the beneficiary” which

is “demonstrated in material aspects of the transaction at issue by a substitution of

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the fiduciary’s will” over that of the other party. Id. (internal brackets and quotation

marks omitted). The “mere trust in another’s competence or integrity does not

suffice” since what is required is the “peculiar reliance in the trustworthiness of

another.” Id. For these reasons, commercial transactions generally “do not create

a fiduciary relationship unless one party agrees to serve in a fiduciary capacity.”

Cook v. Orkin Exterminating Co., 258 P.3d 149, 152 (Ariz.App.2011).

The plaintiff alleges in ¶ 36 in his Amended Complaint that the defendants

owed him a fiduciary duty for the following reasons:

A. Defendants were watch dealers with many years

of experience buying and selling rare watches with

significant watch expertise and knowledge. Such expertise

and superior knowledge possessed by Defendants was of

a kind and nature beyond the fair and reasonable reach of

Plaintiff Cavan, who, as a non-professional watch

collector, did not and could not obtain such expertise and

knowledge through the exercise of reasonable diligence.

... Plaintiff Cavan lacked the expertise and superior

knowledge to determine whether the Patek Ref 2499J that

was delivered had the original dial and, based on their

ongoing business relationship and Defendants’

representations regarding rare watch expertise,

reasonably relied on Defendants expertise and superior

knowledge to assure that the watch delivered had its

original parts, including the original dial; and; 

B. Plaintiff had a particular reliance in the

trustworthiness of Defendants, based on their ongoing

business relationship and the representations of

Defendant Maron, on behalf of himself and Defendant

RMI, that Plaintiff Cavan should place his trust in

Defendants because they were watch dealers with

significant rare watch expertise and knowledge, dealing

only with authentic superior quality rare watches. This

ongoing business relationship and representations created

a relationship of great intimacy and trust. 

The Court is unpersuaded that these essentially conclusory allegations

contain sufficient factual enhancement necessary to make a fiduciary relationship

plausible here, as opposed to a mere possibility. Iqbal, 556 U.S. at 678. The fact that

the defendants had more specialized knowledge about rare watches than the plaintiff

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is not dispositive since “[t]he law does not create a fiduciary relation in every

business transaction involving one party with greater knowledge, skill or training, but

requires peculiar intimacy or an express agreement to serve as a fiduciary.” Cook,

258 P.3d at 152. The plaintiff has not sufficiently alleged that the defendants

expressly consented to be his fiduciary, and the particular circumstances that he has

alleged, including his trust in their expertise, is not sufficient to change this armslength commercial transaction into a fiduciary relationship. Id. See Silaev v. SwissAmerica Trading Corp., 2015 WL 1469739, at *3 (D.Ariz. March 31, 2015) (Court

dismissed a breach of fiduciary duty claim for failure to state a claim because the

plaintiff’s allegations were insufficient to turn an arm’s length commercial contract to

buy and sell gold and silver coins into a fiduciary relationship notwithstanding the

plaintiff’s alleged placement of significant trust and confidence in the defendant due

to its expertise in the coin industry.)

Because the Court has already permitted the plaintiff to amend his fiduciary

relationship allegations after pointing out their deficiencies and the plaintiff has been

unable to properly do so, the Court concludes Count III of the Amended Complaint

should be dismissed without leave to amend.

D. Statute of Limitations

The defendants further argue that all of the claims in the Amended Complaint,

with the exception of the breach of contract claim, should be dismissed as timebarred. It is undisputed that these claims are governed by statutes of limitations of

either two or three years, and that the plaintiff did not commence this action until four

years after he received the Patek 2499J. The gist of the plaintiff’s argument as to

the statute of limitations issue is that the discovery rule operates to shield him from

any limitations defense, that he has set forth sufficient information in the Amended

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Complaint to invoke the discovery rule, and that the issue is in any case a factual

one that cannot be decided on a motion to dismiss. In its previous order, the Court

concluded that the plaintiff had failed to plead sufficient facts in his original complaint

to demonstrate the applicability of the discovery rule.

Under the discovery rule, which is an exception to the general rule that a claim

accrues, and the limitations period commences, when one party is able to sue

another, “a cause of action does not accrue until the plaintiff knows or with

reasonable diligence should know the facts underlying the cause.” Doe v. Roe, 955

P.2d 951, 960 (Ariz.1998). Arizona applies the discovery rule to both contract and

tort claims. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of America, 898

P.2d 964, 968-69 (Ariz.1995). 

The issue as to the plaintiff’s invocation of the discovery rule is whether the

non-conclusory factual content alleged in his Amended Complaint, together with the

reasonable inferences from that content, plausibly suggests that the plaintiff was

reasonably diligent in determining that the Patek 2499J the defendants sold him

through the modification agreement had an inferior substituted dial. The plaintiff

contends that he has sufficiently alleged in the Amended Complaint that he did not

reasonably learn of the facts underlying the defendants’ wrongful conduct until

September 2015, which was approximately three months before this action was

commenced. His contention is based on ¶ 19 and ¶ 21 of the Amended Complaint,

which state:

19. Plaintiff Cavan examined the Inferior Substituted

Watch upon receipt but did not, and could not, detect that

the original dial had been replaced with an inferior dial.

Only a watch expert with extensive experience is able to

make that determination. Plaintiff Cavan had no reason to

believe that the original dial had been replaced and no

reason to have the watch inspected by an expert. While

Plaintiff Cavan was not a watch expert capable of

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determining that the original dial had been replaced, he

had purchased many rare watches, including the Eighteen

Watches over a period of several years. Plaintiff Cavan

had never previously been involved in a situation, or even

heard of a situation, where any original components of a

rare watch had been replaced without full disclosure.

Based on his years of experience purchasing rare

watches, Plaintiff Cavan understood at all times mentioned

herein, and understands now, that removing original parts

would significantly reduce the value of the rare watch, and

would be outrageous and fraudulent conduct that was

extremely unlikely when dealing with reputable watch

dealers. Plaintiff Cavan had no reason to believe that

Defendants would partake in such fraudulent conduct. In

addition, Defendant Maron told Plaintiff Cavan that he had

extensive experience in buying and selling rare watches

and could be trusted and relied upon, and Plaintiff Cavan

reasonably relied on those representations. Such reliance

was increased by the fact that Defendant Maron was

introduced to Plaintiff Cavan by John Young, with whom

Plaintiff Cavan had done business with for many years. 

* * *

21. In April 2015, Plaintiff first became aware that the

Inferior Substituted Watch may not have the original dial,

when he considered selling the watch and showed the

watch to Saori Omura, a watch dealer with the Antiquorum

Auction House (“Antiquorum”). John Young and Saori

Omura were both at the meeting where Plaintiff Cavan

assigned the watch to Antiquorum and, despite many

years of rare watch sales between them, neither was able

to determine that the dial had been switched. However,

shortly thereafter, Antiquorum watch experts questioned

the authenticity of the dial, but could not determine

definitively that the original dial had been replaced.

Therefore, Plaintiff Cavan, at substantial expense, had the

watch examined and evaluated by a world renowned

watch expert, Eric Tortella. In his written report, dated

June 26, 2015, Eric Tortella confirmed that the original dial

on the Patek Ref 2499J had been replaced with an inferior

dial. Eric Tortella further informed Plaintiff Cavan that the

Inferior Substituted Watch with the replaced dial is worth

significantly less than the promised Patek Ref 2499J with

the original dial.

The Court noted in its previous order that the original complaint, even as

supplemented with a declaration that the plaintiff’ attached to his response to the first

motion to dismiss that added information explaining why the plaintiff did not discover

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that the watch did not have its original dial when he first received the watch, failed

to explain how the plaintiff “exercised reasonable diligence when he did not obtain

independent expert evaluation of the watch until more than three years after he

received the watch, particularly in light of his assertion that he has ‘relatively limited

experience.’” The Court agrees with the defendants that the allegations added to the

Amended Complaint, which are in effect the statements in the plaintiff’s previous

declaration which the Court has already concluded were insufficient, fail to plausibly

establish the applicability of the discovery rule. 

The plaintiff’s attempt to argue around the discovery rule’s reasonable

diligence requirement by emphasizing that he did not have the expertise at the time

he received the Patek 2499J to determine that its original dial had been switched is

unpersuasive. Because the discovery rule favors the plaintiff who remains unaware

of a cause of action despite his best efforts, a component of that rule charges the

plaintiff “with a duty to investigate with due diligence to discover the necessary

facts.” Doe, 955 P.2d at 962; accord, Elm Retirement Center, LP v. Callaway, 246

P.3d 938, 941 (Ariz.App.2010) (“The discovery rule, however, does not permit a

party to hide behind its ignorance when reasonable investigation would have alerted

it to the claims.”) While the discovery rule does not require the plaintiff himself to

have the expertise to understand that the watch did not have its original dial, it does

require him to be reasonably diligent in finding someone with that expertise who

could help him evaluate the watch, as he eventually did. Use of the discovery rule

is not appropriate here to extend the applicable limitations periods because the facts

alleged in the Amended Complaint do not plausibly show that the plaintiff’s claims

could not reasonably have been discovered within the limitations periods. As the

defendants note, the difference in the Patek 2499J dials found by the plaintiff’s

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To the extent that the plaintiff is attempting to raise an equitable tolling

or equitable estoppel argument to stay the running of the limitations periods, the

Court rejects such an argument because the plaintiff has not alleged any facts

plausibly showing any affirmative acts on the part of the defendants related to the

substitution of the watch dial that prevented the plaintiff from timely discovering the

substitution or affirmatively inducing him not to file suit. The fact that the defendants

never told the plaintiff that the Patek 2499J would not be delivered with its original

dial, see ¶ 20 of the Amended Complaint, constitutes at best only a passive

concealment which, absent a fiduciary duty to disclose that fact to the plaintiff which

did not exist here, is insufficient under Arizona law to toll the running of the

limitations periods.

4

The Court notes that the exhibits attached to Robert Maron’s declaration

had no effect on the Court’s resolution of the motion to dismiss.

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expert in April 2015 could just as easily have been found at anytime prior to the

expiration of the limitations periods given that the plaintiff has not alleged that the

defendants obscured the dial or actively prevented him from learning of the

substituted dial.3

 

Because the Court has already permitted the plaintiff to amend his discovery

rule-related allegations after pointing out their deficiencies and the plaintiff has been

unable to properly do so, the Court concludes that Counts II through VI of the

Amended Complaint should be dismissed as time-barred without leave to amend.

Therefore,

IT IS ORDERED that Defendants’ Request for Judicial Notice in Support of

Motion to Dismiss Amended Complaint (Doc. 33) is granted.4

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Counts I

Through VI of Plaintiff’s Amended Complaint for Failure to State a Claim Pursuant

to Rule 12(b)(6) and Rule 9(b) (Doc. 32) is granted in part and denied in part. The

motion to dismiss is granted to the extent that Count II (Breach of Covenant of Good

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Faith and Fair Dealing), Count III (Breach of Fiduciary Duty), Count IV (Negligent

Misrepresentation), Count V (Fraud), and Count VI (Unjust Enrichment) of the

Amended Civil Complaint (Doc. 31) are all dismissed in their entirety without leave

to amend, and to the extent that the Breach of Contract claim in Count I of the

Amended Civil Complaint against defendant Robert Maron is also dismissed without

leave to amend. The motion to dismiss is denied as to the Breach of Contract claim

in Count I of the Amended Civil Complaint against Robert Maron, Inc.

IT IS FURTHER ORDERED that the caption of all future documents filed by

the plaintiff shall comply with the party name capitalization rule of LRCiv 7.1(a)(3).

DATED this 22nd day of August, 2016.

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