ERIC FRANK, Bankruptcy Judge
AND NOW, Plaintiff Bonnie Finkel, Chapter 7 Trustee ("the Trustee") having filed a complaint ("the Complaint") on January 29, 2010 against various defendants, including Len Polichuk ("the Debtor") and certain other individuals and business entities, (Doc. #1);
AND, the Complaint consisting of 292 paragraphs, asserting fourteen (14) separate claims against eighteen (18) parties (nine natural persons and nine artificial entities) and describing more than fifty (50) transactions;
Five of the nine natural persons named as Defendants (Marina Ayzenberg, Joseph Ayzenberg, Lena Polnet, Larissa Labed and Andrew Nechiporenko, a/k/a Andrew Polnet) are relatives of the Debtor and are referred to collectively in the Complaint as "the Polichuk Family Group." I will follow the same convention.
Also, I note that the Complaint refers to one of the defendants as "Larissa Labed," while her counsel refers to her as "Larissa Lebed," (see Doc #17). Because I consider it more likely that her counsel employed the correct spelling of her name, I refer to her as "Larissa Lebed" in this Order.
AND, the table below summarizing the claims the Trustee has asserted against the various Defendants:
Nature of Claim Defendants I Accounting, Repayment of Funds Imposition of (1) Len Polichuk Constructive Trust (2)-(6) Polichuk Family Group (7) Fox Lake Management, LLC (8) Metro Developments, LLC (9) Motostrada, LLC (10) New Century Rehabilitation, LLC (11) Grey Hound Properties, LLC (12) Letterly Realty (13) Steven Kravits (14) Steven Rutaky (15) Dynamic Funding (16) LAML Management, Inc. (17) Fox Lake Realty Limit Partnership (18) Marina Reinsurance II Preference — § 547(b) (1) Marina Ayzenberg (2) Joseph Ayzenberg (3) Lena Polnet (4) Dynamic Funding (5) Grey Hound Prop. LLC (6) New Century Rehab., LLC (7) Motostrada, LLC III Fraudulent Transfer — §§ 548(a)(1)(A), 550 551 (1)-(5) Polichuk Family Group (6) Fox Lake Mgmt LLC (7) Metro Development LLC (8) Motostrada LLC (9) New Century Rehab. LLC (10) Grey Hound Prop. LLC (11) Letterly Realty (12) Steven Kravits (13) Steven Rutaky (14) Dynamic Funding IV Fraudulent Transfer — §§ 548(a)(1)(B), 550 551 same as Count III V Fraudulent Transfer — §§ 544, 550(a), 551, 1107 and same as Count III 12 Pa. C.S. § 5104 VI Fraudulent Transfer — §§ 544, 550(a), 551, 1107 and same as Count III 12 Pa. C.S. § 5105 VII Civil Conspiracy To Conceal Debtor's Assets (1)-(5) Polichuk Family Group VIII Conversion All Defendants (except Debtor) IX Unjust Enrichment All Defendants (except Debtor) X Turnover of Property of the Estate — § 542 All Defendants XI Recovery of Property — § 550 All Defendants XII Violation of the Automatic Stay (1) Debtor (2) Marina Azyenberg XIII Imposition of Constructive Trust All Defendants XIV For Relief Asserted in Other Counts As May Be All Defendants Determined By The Results of An Accounting AND, the Debtor having filed a Motion to Dismiss Counts I, X, XI and XIII of the Adversary Complaint ("the Debtor's Motion") pursuant to Fed.R.Civ.P. 12(b)(6) (incorporated in this adversary proceeding by Fed.R.Bankr.P. 7012) on March 24, 2010, (Doc. #16);
AND, on March 24, 2010, certain other Defendants ("the Responding Non-Debtor Defendants") having filed a separate Motion to Dismiss the Adversary Complaint ("the Responding Non-Debtor Defendants' Motion") (Doc. # 17), seeking:
The Responding Non-Debtor Defendants are Marina Ayzenberg, Joseph Ayzenberg, Metro Development, LLC, Motostrada, LLC, Grey Hound Properties, LLC, Letterly Realty, LLC, Lena Polnet, Larissa Lebed, Andrew Polnet, LAML Management, Inc., Fox Lake Realty Limited Partnership, Dynamic Funding, and Steven Rutaky.
(1) a more definite statement pursuant to Fed.R.Civ.P. 12(e) (incorporated in this adversary proceeding by Fed.R.Bankr.P. 7012); or, alternatively,
(2) the dismissal of Counts I through VII, IX, XII and XIV for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6);
(3) dismissal of the claims against defendant Lena Polnet ("Polnet") to the extent they are based on acts that occurred more than four (4) years prior to the petition date and/or that stem from Polnet's involvement with LAML Management, Inc., Dynamic Funding or New Century Rehabilitation;
(4) dismissal of the claims against Defendant Larissa Lebed, to the extent they are based on acts that occurred more than four (4) years prior to the petition date and/or stems from Lebed's involvement with New Century Rehabilitation;
(5) dismissal of the claims against Defendant Steven Rutaky for failure to plead facts that might give rise to liability;
(6) dismissal of the claims against Defendant Andrew Polnet for failure to plead facts that might give rise to liability; and
(7) dismissal of the claims against Defendants Metro Development, Motostrada and Dynamic Funding pursuant to Fed.R.Civ.P. 9(b) and 12(b)(6).
AND, Rule 12(e) providing that a court may order that an amended complaint be filed with a more definite statement if the complaint "is so vague or ambiguous that [the defendant] cannot reasonably prepare a response," Fed.R.Civ.P. 12(e);
AND, it being appropriate to grant a Rule 12(e) motion only if the pleading is so unintelligible that the court and/or defendant is unable to make out the legal theories, see, e.g., Carpenters Combined Funds v. Klingman, 2010 WL 1007830, at *2 (W.D. Pa. Mar. 15, 2010) (citing Sun Co. v. Badger Design Constructors, Inc., 939 F. Supp. 365, 368 (E.D. Pa. 1996)); In re Friedman Exp. Inc., 184 B.R. 229 (Bankr. E.D. Pa 1993);
AND, consequently, "the class of pleadings that are appropriate subjects for a motion under Rule 12(e) [being] quite small," Charles Alan Wright and Arthur R. Miller, 5C Federal Practice and Procedure § 1376, at 311 (3d ed. 2004); AND, in considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court accepting all factual allegations as true, construing the complaint in the light most favorable to the plaintiff, and determining whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief, e.g.,Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008);
AND, dismissal under Rule 12(b)(6) being appropriate only if, accepting as true all facts alleged in the complaint, the plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
AND, while it is not necessary for a plaintiff to provide detailed factual allegations to satisfy the "plausibility" standard, it being necessary that a complaint contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation,"Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), and factual allegations that are more than speculative, see Phillips, 515 F.3d at 234;
AND, in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), the Court of Appeals having articulated a two-part analysis that should be conducted in evaluating whether a claim may survive a Rule 12(b)(6) motion, in which:
1. the court separates the factual and legal elements of the claim and accepts only the well-pleaded facts as true, while disregarding any legal conclusions,
id. at 210-11; and
2. the court determines whether the alleged facts demonstrate that the plaintiff has a "plausible" claim for relief,
id. at 211 (citing
Iqbal,
129 S. Ct. at 1950);
AND, in evaluating the sufficiency of a complaint against these standards, the court conducting a "context-specific" evaluation, drawing from its "judicial experience and common sense,"
Iqbal,
129 S. Ct. at 1950;
AND, the briefing on the Debtor's Motion and the Responding Non-Debtor Defendants' Motion (collectively, "the Motions") being complete; AND, the court having considered the Debtor's Motion and the Responding Non-Debtor Defendants' Motion, the Trustee's Response thereto and the parties' accompanying memoranda of law;
The Trustee filed Responses to the Debtor's Motion and to the Responding Non-Debtor Defendants' Motion on April 28, 2010 (Doc. #'s 29, 30). The Debtor and the Responding Non-Debtor Defendants filed Reply Briefs in support of their respective motions on May 24, 2010 (Doc. #'s 41, 42). Finally, the Trustee filed a combined Sur-Reply to the Debtor's Motion and the Responding Non-Debtor Defendants' Motion on June 6, 2010 (Doc. # 46).
It is hereby ORDERED that: 1. The Motions are GRANTED IN PART AND DENIED IN PART. 2. The Responding Non-Debtor Defendants' Motion for a More Definite Statement pursuant to Fed.R.Civ.P. 12(e) is DENIED. 3. The Motions are DENIED as to Count I. 4. The Responding Non-Debtor Defendants' Motion is GRANTED as to Count II, and Count II is DISMISSED. 5. Subject to Paragraph 7 below, the Responding Non-Debtor Defendants' Motion is GRANTED IN PART AND DENIED IN PART as to Counts III and IV. Counts III and IV are DISMISSED, but ONLY TO THE EXTENT that the claims therein relate to transfers that were not made or incurred within two years before the filing of the Debtor's bankruptcy petition, i.e., on or before January 31, 2006. 6. As to Counts V and VI, the Responding Non-Debtor Defendants' Motion is DENIED. 7. The Responding Non-Debtor Defendants' Motion is GRANTED insofar as it requests dismissal of the Counts III, IV, V and VI as to Defendant Dynamic Funding. 8. As to Count VII, the Responding Non-Debtor Defendants' Motion is GRANTED and Count VII is DISMISSED. 9. As to Count IX the Responding Non-Debtor Defendants' Motion is GRANTED and Count IX is DISMISSED. 10. As to Count X, the Debtor's Motion is GRANTED and Count X is DISMISSED. 11. As to Count XI, the Debtor's Motion is DENIED. 12. As to Count XII, the Responding Non-Debtor Defendants' Motion is DENIED. 13. As to Count XIII, the Debtor's Motion is DENIED. 14. As to Count XIV, the Responding Non-Debtor Defendants' Motion is GRANTED. 15. The Trustee is GRANTED LEAVE to file an Amended Complaint on or before December 14, 2010. Date: November 23, 2010