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Schils America Acquisition Corp. v. Schils BV

October 3, 2006

SCHILS AMERICA ACQUISITION CORPORATION, PLAINTIFF,
v.
SCHILS BV; SCHILS OVERSEAS BV; AABEL DAIRY PRODUCTS BD; USA LIVESTOCK ENTERPRISES, INC.; ARMAND MENNEN; AND HUBERT J.M.F. GILLESSEN; YOUNG AND PANICCIA; ALFRED PANICCIA, JR.; JOHN W. YOUNG; STEPHANIE P. BECK; MARK H. YOUNG; PANICCIA & BECK, LLP; AND PIAKER & LYONS, P.C. DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are Young and Paniccia, Alfred Paniccia, Jr., John W. Young, Stephanie P. Beck, Mark H. Young, and Paniccia & Beck, LLP's ("Attorney Defendants") Motion to Dismiss (Doc. 92), as well as Piaker & Lyons, P.C.'s ("Accounting Defendant") Motion to Dismiss the Complaint filed in intervention by Arthur Henderlong ("Intervening Plaintiff"). (Doc. 98) For the reasons set forth below, both Motions to Dismiss will be denied. The Court has jurisdiction over this matter pursuant to

28 U.S.C. §§ 1334(a) and 157(a).

BACKGROUND

On May 25, 2004, Schils America Acquisition Corporation ("Plaintiff") filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. That matter was filed in the United States Bankruptcy Court for the Middle District of Pennsylvania. On August 19, 2004, Plaintiff filed an adversary action in the U.S. Bankruptcy Court against Defendants Schils BV, Schils Overseas BV, USA Livestock Enterprises, Inc., Armand Mennen, and Hubert J.M.F. Gillessen. That adversary action was filed as a result of a land transaction and the financial and contractual disputes surrounding it. On February 10, 2005, that cause of action was amended to include Attorney Defendants and Accounting Defendant, both of which were, according to Plaintiff, guilty of professional misconduct and negligence. (Doc. 1-37.)

On June 3, 2005, Intervening Plaintiff filed a Motion to Intervene. (Doc. 18.) On February 14, 2006, this Court granted Intervening Plaintiff's motion. (Doc. 62.) On March 8, 2006, Intervening Plaintiff filed his Complaint (Doc. 65) against the same Defendants and with the same underlying facts as Plaintiff.

On May 11, 2005, Plaintiff filed Certificates of Merit with respect to Attorney Defendants and Accounting Defendant. (Docs. 6-12.) To date, Intervening Plaintiff has not personally filed a Certificate of Merit.

Attorney Defendants filed a Motion to Dismiss (Doc. 92) on June 6, 2006. Accounting Defendant filed a Motion to Dismiss (Doc. 98) on June 26, 2006. Both sets of Defendants moved for dismissal based on PA. R. CIV. P. 1042.3, which requires filing of a Certificate of Merit in a professional malpractice case. Both sets of Defendants submitted briefs in support of their motions. (Docs. 93, 99, and 102.) On June 26, 2006, Intervening Plaintiff filed a brief in opposition to the motion to dismiss. (Doc. 97.)

This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

In deciding a motion to dismiss under FED. R. CIV. P. 12(b)(6), all factual allegations and all reasonable inferences therefrom must be accepted as true and viewed in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663, 665-666 (3d Cir.1988). In ruling on a motion to dismiss, the court must decide whether there are sufficient facts pled to determine that the complaint is not frivolous, and to provide the defendants with adequate notice to frame an answer. Id. at 666. A motion to dismiss will be granted only if it appears that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957).

Additionally, FED. R. CIV. P. 41(b) provides that a defendant may move for dismissal of an action or claim for failure of the plaintiff to prosecute, or comply with the procedural rules or any Order.

DISCUSSION

Attorney Defendants and Accounting Defendant have each filed Motions to Dismiss based on Intervening Plaintiff's failure to file Certificates of Merit. Both these motions put forth the exact same argument and rely on the same ...


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