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Beskrone v. OpenGate Capital Grp. (In re Pennysaver USA Publ'g, LLC)

United States Bankruptcy Court for the District of Delaware

July 11, 2018, Decided

Chapter 7, Case No.: 15-11198 (CSS) Jointly Administered, Adv. Proc. No.: 17-50530 (CSS)

Opinion

 [*449]  Opinion1

Dated: July 11, 2018

/s/ Sontchi

Sontchi, J.

INTRODUCTION

Before the Court is the defendants' (the "Defendants") motion to dismiss (the "Motion to Dismiss") Counts X-XII, XIV-XVIII in the above captioned adversary action for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court grants, in part, the Defendants Motion to Dismiss. Specifically the Court holds the following:

1. The Court grants the Motion to Dismiss the preferential transfer claims in Count XIV because the Trustee has failed to identify sufficiently the specific Debtor who is making the transfer in violation of the Twombly and Iqbal pleading standards as interpreted by the Court.

2. The Court grants the Motion to Dismiss the fiduciary breach claims in Count XV because the Trustee has failed to allege sufficiently Defendants owed fiduciary duties to the Debtors [**2]  or breached said duties if they did owe them.

3. The Court dismisses with prejudice the breach of fiduciary duty claim in Count XVI because it is a futile claim.

4. The Court grants the Motion to Dismiss the accounting claims in Count XVII because before the Court grants a request for an accounting, the Trustee must establish that there was a breach of fiduciary duty, which he has not.

 [*450]  5. The Court grants the Motion to Dismiss the claim for a disallowance of claims in Count XVIII because the Trustee has failed to attain a judicial determination on the Complaint which is a prerequisite to a claim for disallowance.

Conversely, the Court denies, in part, the Defendants' Motion to Dismiss the constructive fraudulent transfer claims and actual fraudulent transfer claims in Counts X-XII because the Trustee has met the Twombly and Iqbal pleading standards.

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587 B.R. 445 *; 2018 Bankr. LEXIS 2073 **

In re: PENNYSAVER USA PUBLISHING, LLC, et al., Debtors.DON A. BESKRONE, CHAPTER 7 TRUSTEE PENNYSAVER USA PUBLISHING, LLC, et al., Plaintiff, v. OPENGATE CAPITAL GROUP, OPENGATE CAPITAL MANAGEMENT GROUP, LLC, ANDREW NIKOU, JAY YOOK, DANIEL ABRAMS, ALANA S. CHAFFIN, VIJAY K. MONY, AND VIRGINIA ANNE THORNTON, Defendants.

Subsequent History: Dismissed without prejudice by, in part, Dismissed by, in part Beskrone v. Opengate Capital Grp., LLC (In re Pennysaver USA Publ'g, LLC), 2019 Bankr. LEXIS 1540 (Bankr. D. Del., May 21, 2019)

CORE TERMS

fraudulent transfer, alleges, fiduciary duty, transfers, insolvent, motion to dismiss, badge, constructive fraud, equivalent value, salary payment, entities, breach of fiduciary duty, fails, employees, grant a motion, fiduciary, breached, judicial determination, adversary proceedings, preferential transfer, cases, limited liability company, disallowance, Liquidating, assignees, pleading requirements, fail to identify, internal affairs, actual intent, Defendants'

Bankruptcy Law, Procedural Matters, Jurisdiction, Constitutional Law, The Judiciary, Congressional Limits, Adversary Proceedings, Defenses & Objections, Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Commencement of Adversary Proceedings, Avoidance, Fraudulent Transfers, Constructively Fraudulent Transfers, Business & Corporate Compliance, Contracts Law, Standards of Performance, Creditors & Debtors, Real Property Law, Purchase & Sale, Fraudulent Transfers, Value, Elements, Heightened Pleading Requirements, Fraud Claims, Estate Property, Intent, Prepetition Transfers, Preferential Transfers, Evidence & Procedural Matters, Limited Liability Companies, Business & Corporate Law, Limited Liability Companies, Governments, Fiduciaries, Business & Corporate Law, Management Duties & Liabilities, Limited Partnerships, Management Duties & Liabilities, Fiduciary Duties, Duty to Third Parties, Preliminary Considerations, Justiciability, Standing, Remedies, Equitable Accountings, Bankruptcy, Claims, Allowance of Claims, Amendment of Pleadings, Leave of Court