There’s an old Jackson Browne album called "Lawyers in Love." Lately, there have been a lot of cases involving lawyers out of love, and dissolving their firms. One was decided by the Business Court on June 2nd, Walters & Zimmerman, PLLC v. Zimmerman.
Plaintiff, a lawyer in the dissolved law firm who was a manager of the Professional Limited Liability Company, brought claims on behalf of the PLLC and in her own name for breach of fiduciary duty and conversion. She also asserted trade secrets claims and a claim for unfair and deceptive practices. Defendant, another lawyer in the dissolved firm, moved to dismiss on a variety of grounds.
The only claim on which Defendant was successful was a claim for unfair and deceptive practices. Judge Tennille held that the claims between the lawyers involved an "internal dispute," and that such disputes did not "affect commerce" as required by the statute.
The roadblock to the other grounds asserted for dismissal was one of standing, and whether the proper parties were before the Court. The members of the PLLC were not the individual lawyers themselves, but professional corporations that each of the individual lawyers had formed. The Court found issues about whether the proper parties were before it, and directed the parties to consider the Court of Appeals’ recent decision in Crouse v. Mineo, 2008 N.C. App. LEXIS 546, 658 S.E.2d 33 (N.C. Ct. App. 2008). That case dealt with another law firm dissolution.
That Court of Appeals held in Crouse that a manager of an LLC does not have the authority to bring suit on behalf of the LLC because such an action is not within the powers of a manager, which are limited to things necessary to "carry on in the usual way the business of the limited liability company." Bringing a lawsuit against the LLC, the Court of Appeals held, was not within the course of usual business. The Crouse court concluded, however, that the Plaintiff there had the right to make a derivative claim on behalf of the LLC under the circumstances presented. You can click here for a more complete summary of the Crouse case.
Turning back to the Walters & Zimmerman case, the Business Court also summarized when the moving party on a Motion to Dismiss can rely on documents outside of the pleadings. It is good to know where the Business Court stands on that issue. It held:
Furthermore, the Court may not consider “extraneous matter” outside the complaint, or else the Rule 12(b)(6) motion will be converted into a Rule 56 motion for summary judgment. See, e.g., Fowler v. Williamson, 39 N.C. App. 715, 717, 251 S.E.2d 889, 891 (1979). However, the Court may consider documents the moving party attaches to a 12(b)(6) motion which are the subject of the challenged pleading and specifically referred to in that pleading, even though they are presented to the Court by the moving party. See Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 60, 554 S.E.2d 840, 847 (2001) (considering a contract on a 12(b)(6) motion even though the contract was presented by the movant). The Court is not required to accept as true “any conclusions of law or unwarranted deductions of fact.” Id. at 56, 554 S.E.2d at 844. Thus the Court can reject allegations that are contradicted by the supplementary documents presented to it. See E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000) (stating that the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments”).