United States District Court, D. New Hampshire
JOSEPH A. DICLERICO, Jr., District Judge.
The claims in this case arise from the failure of The Meat House, a specialty butcher business that had locations in New Hampshire and elsewhere. Thomas Moulton brought suit against David Bane and his company, Prime Choice Enterprises, LLC ("PCE"), which acquired assets of The Meat House after its financial collapse. Moulton alleges that Bane made fraudulent misrepresentations to induce him to assist PCE in acquiring assets of The Meat House and breached their agreement.
Bane and PCE brought a counterclaim against Moulton and a third-party complaint against Eric Emery and King's Highway Realty Trust, LTD Partnership. King's Highway moves to dismiss Count III of the third-party complaint. Bane and PCE object to the motion to dismiss.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss on the ground that the plaintiff's complaint fails to state a claim on which relief can be granted. In assessing a complaint for purposes of a motion to dismiss, the court "separate[s] the factual allegations from the conclusory statements in order to analyze whether the former, if taken as true, set forth a plausible, not merely conceivable, case for relief." Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir. 2013) (internal quotation marks omitted). "If the facts alleged in [the complaint] allow the court to draw the reasonable inference that the defendants are liable for the misconduct alleged, the claim has facial plausibility." Id . (internal quotation marks omitted).
The background facts are taken from the amended third-party complaint (document no. 14), and the factual allegations are summarized under the Rule 12(b)(6) standard for purposes of the pending motion only.
PCE purchased "substantially all" of the assets of The Meat House butcher shops, "including all of the assets owned by Stratham/Exeter Meat House, LLC, " from Centrix Bank & Trust in a private sale on April 15, 2014. Some of the Meat House assets purchased by PCE were subject to a lien held by Moulton. After the purchase, PCE hired Emery to open new retail stores at The Meat House locations, where that was possible, and to sell the assets at other locations. King's Highway was the landlord for the premises where The Meat House store had been operated in Stratham. Emery negotiated with King's Highway to lease The Meat House location in Stratham where PCE planned to open a retail store.
A representative from Team Funding Solutions, a finance company in Austin, Texas, contacted PCE and claimed that Team Funding had leased assets to The Meat House and had a lien on those assets. Although PCE disputed Team Funding's lien on The Meat House assets, it negotiated a deal with Team Funding in which PCE would pay $30, 000 to Team Funding to satisfy the lien. That transaction was scheduled to close on May 19, 2014.
At the same time, Bane and Moulton were discussing Moulton's investment in PCE and were working to reach an agreement. When Bane refused to meet Moulton's terms, they parted ways. Bane and PCE allege that Moulton then began "a campaign of attack against PCE."
Moulton arranged for Team Funding to sell its assets in The Meat House to Moulton. Moulton entered into a lease with King's Highway for the Stratham property and took possession of The Meat House assets at that location. Moulton gave PCE a trailer full of assets from The Meat House in Stratham, but Bane and PCE contend that the trailer contained largely worthless junk. Neither King's Highway nor Moulton will turn over The Meat House assets at the Stratham location to Bane and PCE.
King's Highway moves to dismiss the conversion claim against it on the grounds that the complaint lacks specificity as to what property King's Highway converted, that Bane and PCE failed to allege facts showing their right to immediate possession of the property at the Stratham location, and that they failed to allege sufficient facts to show that they made a demand to King's Highway for the property. In response, Bane and PCE assert that the complaint includes sufficient facts to show what property they claim has been converted and their right to the property. They ...