Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gans v. Gant

United States District Court, First Circuit

July 8, 2013

Michael Gans, Plaintiff
Amy Gant, Defendant Opinion No. 2013 DNH 093


Steven J. McAuliffe, United States District Judge

Michael Gans brings this action to collect three loans his father (Harold) allegedly made in the 1980’s and 1990’s to Michael’s uncle (Harold’s brother, Ralph), both of whom are now deceased. Michael claims he is owed nearly $2 million, including more than $1.7 million in interest. The defendant, Amy Gant, is Michael’s aunt (Ralph’s widow). Amy moves to dismiss the complaint on several grounds. Michael objects.

For the reasons discussed, Michael’s complaint is dismissed for lack of subject matter jurisdiction. And, because each of the three claims Michael seeks to pursue is plainly time-barred, affording him leave to amend the complaint to allege factual predicates sufficient to establish federal jurisdiction (here, diversity of citizenship) would be futile. Because the futility issue is, for all practical purposes, dispositive of the claims, the court’s limitations analysis is set out in more detail than would otherwise be required. The limitations discussion is not to support a limitations ruling (over which the court presently has no jurisdiction), but to describe the bases upon which the court concludes that an amendment would be futile.

Standard of Review

When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

The court may dismiss a complaint “when the pleader’s allegations ‘leave no doubt that an asserted claim is time-barred.’” Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010) (quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998)). See also Santana-Castro v. Toledo-Davila, 579 F.3d 109, 113-14 (1st Cir. 2009) (“Affirmative defenses, such as the statute of limitations, may be raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that the facts establishing the defense are clear on the face of the plaintiff’s pleadings. Where the dates included in the complaint show that the limitations period has been exceeded and the complaint fails to sketch a factual predicate that would warrant the application of either a different statute of limitations period or equitable estoppel, dismissal is appropriate.”) (citations and internal punctuation omitted).


According to the complaint, between 1981 and 1995, Harold Gans extended three loans to his brother, Ralph Gant. They are fairly described as follows:

1. The 1981 Loan. Evidenced by a letter, dated November 20, 1981, from Ralph to Harold (document no. 21-2), promising to repay principal of $100, 000, plus interest from Ralph’s “current credit account with [Harold] of about $26, 000”; repayment to be made in two installments: $50, 000 on December 1, 1982, and the balance on December 31, 1983.

That letter bears a notation, allegedly signed by Ralph on August 28, 1984, stating that the “Loan has been extended and is subject to call on 30 days written notice.”

2. The 1993 Loan. Oral loan agreement; principal amount of $10, 000; no specific terms of repayment specified; the complaint alleges that “an agreement to repay the funds with interest was implied by the parties’ relationship.” Complaint at para. 14.

3. The 1995 Loan. Evidenced by a written agreement, signed by Harold, Ralph, and Ralph’s wife (Amy) in June of 1995 (document no. 21-3); principal loan amount of $50, 900; interest rate specified as “the interest rate applicable to the mortgage of the Property” owned by Ralph and Amy in Shelter Island, New York; payable upon the sale of the Shelter Island property.

As security for the 1995 Loan, Ralph and Amy purportedly transferred their ownership interest in the Shelter Island property to Harold, subject to an existing first mortgage.[1]

In addition, Ralph pledged to “make strenuous efforts to achieve a sale of the Property at the earliest possible date.” The 1995 Loan at 1. The agreement provided that the proceeds from the sale of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.