Opinion
Case No. 18-10140 Adv. Proc. No. 20-1008
06-22-2020
In re: Breda, a Limited Liability Company, Debtor Breda, a Limited Liability Company, Plaintiff v. Jovita Carranza, in her capacity as Administrator for the United States Small Business Administration, Defendant
Chapter 11 PROPOSED FINDINGS AND CONCLUSIONS
The Plaintiff has filed a four-count complaint, seeking various forms of relief predicated on two substantive legal claims: a claim that the Defendant violated 11 U.S.C. § 525 and a claim that the Defendant ran afoul of the Administrative Procedure Act (the "APA"). Because the Plaintiff's APA claim is not a core proceeding and the SBA has not consented to this Court's adjudication of that claim, the Court is constrained to submit proposed findings and conclusions to the district court on that claim. See 28 U.S.C. § 157(c). In order to minimize unnecessary procedural complexity, the Court submits proposed findings and conclusions with respect to the complaint in its entirety. See generally Fed. R. Civ. P. 41(b) (providing, subject to certain exceptions not relevant here, that an involuntary dismissal "operates as an adjudication on the merits").
The Defendant's Motion to Dismiss [Dkt. No. 39] should be granted because the Plaintiff's complaint does not contain factual allegations that, if credited, articulate claims upon which relief can be granted. See Penobscot Valley Hosp. v. Carranza (In re Penobscot Valley Hosp.), 2020 WL 3032939 (Bankr. D. Me. June 3, 2020) (proposing that the district court conclude that the defendant did not violate section 525 or the APA by engaging in the same conduct as that alleged here). Dismissal is warranted here not because the Plaintiff has failed to allege facts necessary to support an essential element of its claims, but because the facts alleged, even when viewed in the light most favorable to the Plaintiff, do not permit an inference that the Defendant is liable for the misconduct alleged. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). The Plaintiff's complaint should be dismissed with prejudice—even though amendment might ordinarily be permitted under Fed. R. Civ. P. 15(a)(2)—because the Plaintiff has not requested the opportunity to amend, and because additional factual allegations would not repair the holes in the Plaintiff's substantive case. See Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 388 (1st Cir. 1994) ("[A] plaintiff's time to amend his or her complaint as a matter of right within the First Circuit terminates upon a district court's dismissal of the complaint."); see also U.S. ex. rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 242 (1st Cir. 2004) ("Absent exceptional circumstances, a district court has no obligation to invite a plaintiff to amend his or her complaint when the plaintiff has not sought such amendment."), abrogated on other grounds by Allison Engine Co. v. U.S. ex. rel. Sanders, 553 U.S. 662 (2008).
The Clerk is directed to serve a copy of these proposed findings and conclusions on the parties by mail and note the date of the mailing on the docket. See Fed. R. Bankr. P. 9033(a). Date: June 22, 2020
/s/_________
Michael A. Fagone
United States Bankruptcy Judge
District of Maine