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November 24, 2010


The opinion of the court was delivered by: (judge Caputo)


Presently before the Court are Plaintiff's Motions to Dismiss Defendants' Counterclaim and Cross-claim and to Strike Certain Affirmative Defenses (Docs. 16, 21, and 25). For the reasons stated below, the Motions to Dismiss and the Motion to Strike will be granted.


Plaintiff filed its Complaint in the instant suit on February 26, 2010. (Doc. 1.) In its Complaint, Plaintiff alleges the following. Plaintiff is a Pennsylvania state chartered banking organization with its principal place of business in Pennsylvania. (Doc. 1 ¶ 1.) Defendant Wellsburg ("Defendant Wellsburg") Truck and Auto Sales, Inc. is a New York corporation with its principal place of business in New York. (Id. ¶ 2.) Defendant Ciccotti is a citizen of New York and is a control person of Defendant Wellsburg. (Id. ¶ 3.) Plaintiff made a series of loans, structured in a variety of ways, to Defendant Wellsburg between January 3, 2007 and November 20, 2008. (Id. ¶ ¶ 6 - 70.) To secure the loans, Defendant Ciccotti had Defendant Wellsburg grant Plaintiff a security interest in all of Defendant Wellsburg's business assets for each loan, (Id.) and Defendant Ciccotti executed a personal guaranty in favor of Plaintiff guaranteeing repayment for each loan (Id.). None of the loans have been repaid in full. Defendants filed a Complaint against Plaintiff in New York state court on grounds similar to those they raise in their cross-claim and counter-claim. Defendants' suit was dismissed for failure to state a claim in February 2010. (Pl. Ex. B.) Plaintiff filed its Complaint seeking actual damages in the amount of $1,101,863.30 (one-million one-hundred-and-one-thousand eight-hundred and sixty-three dollars and thirty cents) and attorneys fees. In its Complaint, Plaintiff alleges breach of contract (Count I) and fraud (Count II). In their Answer filed on July 19, 2010, Defendants brought counter-claims and cross-claims, as well as a list of affirmative defenses. (Doc. 6.) Plaintiff then moved to have the counter-claims and cross-claims dismissed, and to have the affirmative defenses struck. (Docs. 16, 21, 25.)


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


First, as a preliminary matter, this Court denies Defendants' Motion for an Extension of Time to Answer, contained in a paragraph in the back of Defendants' original Answer. (Doc. 6.) Ruling on such a motion is within the discretion of the Court, and here the Court finds that Defendants have offered no "good cause" as to why an extension should be granted. Fed. R. Civ. P. 6(b)(1)(A).

I. The Cross-Claims and Counter-Claims

A. Cross-Claim against Robert Champion

The Cross-Claim against Robert Champion will be dismissed for failing to adhere to the Federal Rules of Civil Procedure.

Federal Rule of Civil Procedure 14(a) states:

A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the ...

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