Opinion
Case No. 12-12665 K AP No. 14-01104 K
09-22-2016
In re TVGA Engineering, Surveying, P.C., d/b/a TVGA Consultants, d/b/a Accident Reconstruction Plus, d/b/a Lockwood Geospatial Services, Debtor Wendy J. Christophersen, as Chapter 7 Trustee of TVGA Engineering, Surveying, P.C. d/b/a TVGA Consultants, d/b/a Accident Reconstruction Plus, d/b/a Lockwood Geospatial Services, Plaintiff v. James E. Pahel Defendant
NOT FOR PUBLICATION
OPINION AND ORDER
The Trustee's counsel has called attention to Adam N. Steinman's, The Rise and Fall of Plausibility Pleading?, 69:2 Vand. L. Rev. 333 (2016). At pages 367 through 381, it examines High Court decisions since Iqbal and Twombly, which depended upon those cases for a result.
In light of that analysis and the other arguments submitted by the Trustee's counsel, the Court finds that the 3rd Amended Complaint satisfies the "plausibility" test. Consequently, the Motion to Dismiss is denied with regard to the Twombly/Iqbal theory.
The Defendant's Stern v. Marshall argument as to the preference cause of action is rejected in light of the District Court's Standing Order of Reference dated February 29, 2012. This Court will decide whether the Order applies if and when the Court is prepared to "decide" the merits of what remains of this Adversary Proceeding.
Unless the 11 U.S.C.§546(e) basis for the Rule 12(c) dismissal of the Third Amended Complaint is sustained, this A.P. would be appropriate for a final pre-trial order, and scheduling of a trial. As was previously ordered, the Trustee now shall have until October 24, 2016 to submit her response to the Defendant's §546(e) "safe-harbor" defense.
The only extent to which this writer has considered that defense is contained in In re Batavia Nursing Home , LLC , Case No. 11-13223K, decision dated July 29, 2013. (Copy attached.)
SO ORDERED. Dated: Buffalo, New York
September 22, 2016
s/ Michael J. Kaplan
U.S.B.J.