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Case 04-02390-elf Doc 52 Filed 09/23/05 Entered 09/23/05 12:19:33 Desc Main Document Page 1 of 21 UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA In re: ALLENTOWN AMBASSADORS, INC., : Case No. 04-23368T Debtor(s) : -------------------------------------------------------- ALLENTOWN AMBASSADORS, INC., : Plaintiff(s) : v. Adv. No. 04-2390 : NORTH AMERICAN BASEBALL, LLC, d/b/a THE NORTHEAST LEAGUE, : f/k/a NORTHERN LEAGUE, f/k/a NORTHEAST LEAGUE, et al.,: Defendant(s) : ORDER AND NOW, this 23rd day of September, 2005, upon consideration of the motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (“Motion to Dismiss”)1 filed by Defendants, North American Baseball, Miles Wolff, Daniel Moushon, Chip Hutchins, Van Schley, Jonathon Fleisig, Greg Lockard, Nicholas Lopardo, The Aces, Lumberjacks Baseball, LLC, Brockton Professional Baseball, LLC, Flying Bats & Balls, LLC, Floyd Hall Enterprises, LLC, Spirit of New England Baseball Club, LLC, and Club du Baseball de Quebec, Inc. (“collectively referred to as the “Defendants”),2 to the second amended complaint (“Second Amended Complaint”) of Plaintiff, Allentown Ambassadors, 1. Fed. R. Civ. P. 12(b)(6) is made applicable to adversary proceedings in bankruptcy cases by Fed. R. Bankr. P. 7012(b). 2. Plaintiff named another Defendant, namely Clyde Smoll (“Smoll”), in its original complaint (“Complaint”) and amended complaint (“Amended Complaint”). After Plaintiff filed its Second Amended Complaint, it moved to dismiss Smoll as a Defendant in the action. The motion was granted. Case 04-02390-elf Doc 52 Filed 09/23/05 Entered 09/23/05 12:19:33 Desc Main Document Page 2 of 21 Inc. (“Plaintiff”); I. Standard of Review AND a court, in deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), is required to accept as true all well pleaded allegations of the complaint and all reasonable inferences therefrom and to view them in the light most favorable to the non-moving party, Angelastro v. Prudential Bache Security, Inc., 764 F.2d 939, 944 (3rd Cir. 1985); AND a dismissal under Rule 12(b)(6) is “warranted only if the non-moving party can prove no set of facts in support of his claim that would entitle him to relief.” John L. Motley Associates, Inc. v. Rumbaugh, 104 B.R. 683, 685 (Bankr. E.D. Pa. 1989); AND the liberal requirements of notice pleading under Fed.R.Civ.P. 8(a)3 mandate only that a “complaint put the defendant on notice of the claims against them.” Ginley v. E.B. Mahoney Builders, Inc., 2005 WL 27534 at *1 (E.D. Pa. Jan. 5, 2005) (citing Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 790 (3rd Cir. 1984); see also Millar v. Windsor Township, 2005 WL 1513120, at *2 (M.D. Pa. June 24, 2005) (“[f]ederal notice pleading rules do not require plaintiffs to allege affirmatively every aspect of their claims, but only to present sufficient facts to allow the opposing party to conduct discovery and prepare a defense.”); II. Dismissal of Claims With Prejudice AND Defendants having previously moved to dismiss Plaintiff’s Complaint and its Amended Complaint; AND Plaintiff’s Amended Complaint having contained the following seven counts: (1) injunctive relief; (2) an accounting; (3) damages regarding the sale of franchises, et al.; (4) Sherman 3. Fed. R. Civ. P. 8 is made applicable to this proceeding by Fed. R. Bankr. P. 7008(a). 2 Case 04-02390-elf Doc 52 Filed 09/23/05 Entered 09/23/05 12:19:33 Desc Main Document Page 3 of 21 Act violations; (5) RICO violations; (6) collusion and conversion; and (7) damages under 11 U.S.C. § 362(h); AND the Court having entered an Order on March 29, 2005 denying Defendants’ motion to dismiss Plaintiff’s Amended Complaint and granting Plaintiff’s request for an opportunity to further amend its complaint “on the specific condition” that Plaintiff file a second amended complaint pleading its seven claims and any others “with specificity”; AND Plaintiff’s Second Amended Complaint alleges only three counts for: (i) violation of the automatic stay; (ii) breach of fiduciary duty; and (iii) breach of contract; AND Defendants contending that the claims that were pled in the Amended Complaint but not re-pled in the Second Amended Complaint, namely the claims for injunctive relief, an accounting, the Sherman Act violations, the RICO violations and collusion and conversion, should be dismissed with prejudice; AND this Court having “authority to condition the withdrawal of a claim via a Rule 15 motion to amend on ‘the same standard of review as a withdrawal under Rule 41(a),’ Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 114 n.4 (2nd Cir. 1985), that is ‘upon such terms and conditions as the court deems proper.’ Fed.R.Civ.P. 41(a)(2).”4 Astor Holdings, Inc. v. Roski, 2002 WL 1058057 at * (S.D. N.Y. May 23, 2002); see also see Skinner v. First American Bank of Virginia, 64 F.3d 369, 1995 WL 507264 at *2 (4th Cir. August 28, 1995) (table) (concluding that, since Fed. R. Civ. P. 41 provides for the dismissal of actions rather than claims, Fed. R. Civ. P. 15 is technically the proper vehicle to accomplish a partial dismissal by amendment of a complaint); AND Defendants having filed two motions to dismiss before Plaintiff voluntarily deleted its 4. Fed. R. Civ. P. 15 is made applicable to this proceeding by Fed. R. Bankr. P. 7015. 3 Case 04-02390-elf Doc 52 Filed 09/23/05 Entered 09/23/05 12:19:33 Desc Main Document Page 4 of 21 claims for injunctive relief, Sherman Act violations, RICO violations and collusion and conversion from its complaint; AND Defendants having now filed a motion to dismiss the Second Amended Complaint; AND this court concluding that Defendants, who have expended significant time and expense seeking to obtain a dismissal of the claims against them, would be prejudiced if Plaintiff was allowed to voluntarily delete claims against them and retain the opportunity to re-file the same claims against them in the future; AND Plaintiff having not provided any reason in its response to Defendants’ Motion to Dismiss the Second Amended Complaint for deleting the aforementioned claims from its Second Amended Complaint;5 AND Plaintiff having not provided any reason why it should be permitted to pursue these claims against Defendants at another time; AND, therefore, this Court grants Defendants’ request to have Plaintiff’s claims for injunctive relief, an accounting, Sherman Act violations, RICO violations and collusion and 5. In its Memorandum filed in response to Defendants’ motion to dismiss the Amended Complaint, Plaintiff stated its reason for not pursuing its claim for Sherman Act violations in Count III of the Amended Complaint. See Plaintiff’s Memorandum in Response to Defendants’ Motions to Dismiss [the Amended Complaint] Under Rule 12(b)(6) at 7. Plaintiff asserted that while it “had sufficient grounds to raise” its anti- trust claim against Defendants under the Sherman Act, 15 U.S.C. §1, it “believe[d] that the actions of Defendants more properly len[t] themselves to the other causes of actions listed [in the amended complaint].” Following this discussion, Plaintiff advised the Court that it was voluntarily dismissing its anti-trust claim in Count III of the Amended Complaint, without prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. Id. at 7. Notably, Plaintiff had no authority pursuant to Rule 41(a) to voluntarily dismiss its claim. As this court observed in its discussion, infra, Rule 41(a) allows a plaintiff to voluntary dismiss an action but not a claim. See Fed.R.Civ.P. 41(a). The dismissal of a claim falls within the scope of Rule 15(a) which permits the amendment of a complaint which has already been once amended “only by leave of court or by written consent of the adverse party.” Fed.R.Civ.P. 15(a). Consequently, Plaintiff’s statement that it was voluntarily dismissing its claim without prejudice was of no effect. 4 Case 04-02390-elf Doc 52 Filed 09/23/05 Entered 09/23/05 12:19:33 Desc Main Document Page 5 of 21 conversion dismissed with prejudice, see Wakefield., 769 F.2d at 114 (“[T]he trial court has considerable discretion in deciding whether to allow a withdrawal of a claim without prejudice.”); III. Standing to Seek Damages for Violation of the Stay AND Defendants arguing that Plaintiff lacks standing to assert a claim for monetary damages under 11 U.S.C. §362(h) because it is a corporation rather than an individual; AND section 362(h) provides: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. §362(h) (italics added); AND the Third Circuit Court of Appeals in Cuffee v. Atlantic Business and Community Development Corporation (In re Atlantic Business Community Corporation), 901 F.2d 325, 329 (3rd Cir. 1990), in the course of ruling in favor of the trial court’s conclusion that Cuffee had willfully violated the automatic stay so as to warrant the imposition of punitive damages, attorney’s fees and costs under §362(h) against the corporate debtor, having stated that “[a]lthough Section 362(h) refers to an individual, the section has uniformly been held to be applicable to a corporate debtor.” See Budget Service Co. v. Better Homes of Va., 804 F.2d 289, 292 (4th Cir.