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Rosenberg v. DVI Receivables, XIV, LLC

United States District Court, E.D. Pennsylvania

June 4, 2015

SARA ROSENBERG, et al., Plaintiffs,
DVI RECEIVABLES, XIV, LLC, et al., Defendants.



Plaintiffs (collectively “Rosenberg affiliates”) allege that Defendants (collectively “U.S. Bank affiliates”) engaged in tortious interference by filing involuntary bankruptcy petitions in bad faith against Maury Rosenberg and his businesses, National Medical Imaging, LLC (“NMI”) and National Medical Imaging Holding Company, LLC (“NMI Holding”). Presently before the Court is the motion of U.S. Bank affiliates to dismiss the Complaint.


Plaintiffs’ tortious interference claim is closely related to more than a decade of litigation between Maury Rosenberg, NMI, and NMI Holding and U.S. Bank and its affiliates. The history of this litigation has been described in exhaustive detail in two prior opinions by this Court and will only be repeated here to the extent necessary to provide context for this opinion.[1]

The Rosenberg affiliates allege that they suffered monetary losses as a result of the filing of the involuntary bankruptcy petitions against Maury Rosenberg and NMI. When the involuntary bankruptcy petitions were filed on November 7, 2008, the Rosenberg affiliates had close business and personal relationships with Rosenberg and NMI. Plaintiffs 209 Chestnut St. Associates, LP, 1501 Edgemont Associates, LP, 1538 DeKalb Associates, LP, 1561 Medical Drive Associates, LP, Imaging Properties of Illinois, LP, Imaging Properties of Philadelphia, LP, Imaging Properties of Roxborough, LP, Lane Limited Partnership IV, LP, and 1561 Medical Drive Associates, LP owned real property subject to mortgages guaranteed by Maury Rosenberg and leased that property to NMI. Sara Rosenberg was the majority owner of 209 Chestnut St. Associates, as well as the Trustee of Plaintiff Douglas Rosenberg 2004 Trust, which is a Rosenberg family trust. Sara Rosenberg is also married to Maury Rosenberg.

The Rosenberg affiliates allege that the U.S. Bank affiliates filed the involuntary bankruptcy petitions “with the intent of improperly trying to force Maury Rosenberg and NMI into a settlement [of the U.S. Bank affiliates’ claims pursuant to a guaranty agreement] by destabilizing NMI, thus impairing its ability to repay the intra-family loans from the Plaintiff Trust, and triggering defaults on the Plaintiff Rosenberg Real Estate Partnerships’ mortgages with their lenders.”[2] According to the Complaint, this remarkably complex scheme was successful and caused substantial injury to each Rosenberg affiliate. Specifically, the filing of the involuntary bankruptcy petitions allegedly caused the real estate partnerships to default on their mortgages and lose their property, Sara Rosenberg to lose her entire interest in 209 Chestnut St Associates, and the Douglas Rosenberg 2004 Trust to suffer $5, 000, 000 in losses on its investments in the real estate partnerships.

On August 20, 2013, the Rosenberg affiliates filed this action in the United States District Court for the Southern District of Florida.[3] Upon motion by the U.S. Bank affiliates, the Southern District of Florida determined that the proper venue for this case was the Eastern District of Pennsylvania because the principal conduct giving rise to the litigation and the primary injuries that allegedly resulted occurred in the Eastern District.[4]


In order to survive a motion to dismiss, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[5] Additionally, it “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”[6] A plaintiff who survives a motion to dismiss for failure to state a claim on which relief may be granted states facts sufficient to “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”[7]


Defendants contend that Plaintiffs have failed to state a claim on several grounds, including that Plaintiffs’ state-law tortious interference claim is preempted by 11 U.S.C. § 303(i). Section 303(i) provides the following statutory remedy for the bad faith filing of an involuntary bankruptcy petition:

If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment …
(2) against any petitioner that filed the petition in ...

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