Opinion
C.A. No. 18822
Submitted: November 28, 2001
Decided: February 15, 2002 Revised: February 19, 2002
Leo John Ramunno, Esquire, Wilmington, DE.
Adam Balick, Esquire, Balick Balick, Wilmington, DE.
Samuel J. Frabizzio, Esquire, Wilmington, DE.
Dear Counsel:
Pending are several motions of the defendants to dismiss this action for failure to state a claim upon which relief may be granted. Because I am convinced that this complaint has been filed prematurely, it will be dismissed without prejudice.
The plaintiff, Michelle L. Gillen, is a judgment creditor of defendant 397 Properties, L.L.C., in the amount of $250,000, arising out of her purchase of a new house in the development known as "Lea Eara Farms," located in Middletown, Delaware. She obtained that judgment on November 13, 2000, but has not collected anything on it. According to the complaint, the judgment debtor "claim[s] to have no asset[s] or any ability to pay the judg[ment] or any part thereof."
Rather than pursue post-judgment remedies available to her in the Superior Court, plaintiff brought suit here against a host of individuals and entities that, she claims, should be held liable to her for the judgment debt. The individuals and entities named in this suit, in addition to the judgment debtor, are (with one exception) all alleged to have been involved in some aspect of the development, design and construction of Lea Eara Farms. The complaint alleges, in general terms, that the individuals all owned or managed the defendant entities and "commingled the funds of the individual corporation[s] through the complete domination and control of all the corporate entities which were merely a shell and without assets."
The one exception is defendant Wilmington Hospitality, Inc., a corporation alleged to be owned by defendants Joseph Capano and Albert Vietri that was formed for the purpose of building a hotel on Interstate 95 in New Castle County, Delaware. The complaint alleges that Capano and Vietri "diverted funds earmark[ed] as profit for (sic) the sale of real estate at Lea Eara Farms into the Wilmington Hospitality, Inc. to defray the cost of construction." The record on the motion reflects that Wilmington Hospitality, Inc. filed for protection from its creditors under the federal bankruptcy code on June 29, 2001.
The complaint seeks an order requiring that defendant 397 Properties, L.L.C. "give a full and complete accounting of its financial records and allow Plaintiff access to those financial records including but not limited to any ledgers, bank accounts and statements, annual tax returns, accounts receivable." The complaint seeks a similar accounting from the other defendants to reveal all of their transactions with 397 Properties, L.L.C. It then seeks to pierce the corporate veil of 397 Properties, L.L.C. in order to hold all of the individuals and entities named as defendants liable on the judgment. Finally, the complaint seeks an order preliminarily restraining the defendants from disposing of any assets received by them from 397 Properties, L.L.C.
It is apparent from a review of the complaint that it does not allege facts sufficient to support a claim of fraud with the degree of specificity required by Rule 9(b) of the rules of this court. Rather, the complaint merely makes conclusory allegations that the "corporate network" created by the defendants "is a sham" and "exist[s] for no other purpose than as a vehicle for fraud." Similarly bald allegations are made that the defendants created the "corporate network to shield assets and defraud creditors," or that the individual defendants conveyed property from the corporations to themselves or from one corporation to another without adequate consideration. The complaint also contains general allegations that defendants Capano and Vietri completely dominate and control the alleged network of entities.
The lack of specificity stems from the simple fact that plaintiff has not made any effort to use Superior Court Civil Rule 69 to conduct supplementary proceedings in aid of execution on her judgment. That rule permits the judgment creditor to "take discovery by deposition, interrogatories and requests for production, in the manner provided in these Rules." This authority is plainly adequate to the purpose of discovering from the judgment debtor and others, including the additional defendants in this case, information relating to the existence and location of assets that may rightfully be seized in satisfaction of plaintiff's judgment. Those assets may include assets in the hands of persons other than the judgment debtor to which plaintiff's judgment lien may legally attach, such as assets that were fraudulently transferred out of the judgment debtor. Finally, by pursuing discovery in connection with such supplementary proceedings, plaintiff may be able to learn information upon which to predicate a viable claim for piercing the corporate veil. As it stands, however, plaintiff does not have such information and may not proceed on the inadequate complaint now on file.
For all of the foregoing reasons, the complaint shall be dismissed. Notwithstanding the provisions of Rule 15 (aaa) of the rules of this court, the dismissal shall be "without prejudice" because (i) the motions to dismiss were filed before the effective date of the recent amendment to Rule 15, and because I am persuaded that, in light of all the circumstances, interrogatories and requests for production, in the manner provided in these Rules." This authority is plainly adequate to the purpose of discovering from the judgment debtor and others, including the additional defendants in this case, information relating to the existence and location of assets that may rightfully be seized in satisfaction of plaintiff's judgment. Those assets may include assets in the hands of persons other than the judgment debtor to which plaintiff's judgment lien may legally attach, such as assets that were fraudulently transferred out of the judgment debtor. Finally, by pursuing discovery in connection with such supplementary proceedings, plaintiff may be able to learn information upon which to predicate a viable claim for piercing the corporate veil. As it stands, however, plaintiff does not have such information and may not proceed on the inadequate complaint now on file.
For all of the foregoing reasons, the complaint shall be dismissed. Notwithstanding the provisions of Rule 15 (aaa) of the rules of this court, the dismissal shall be "without prejudice" because (i) the motions to dismiss were filed before the effective date of the recent amendment to Rule 15, and (ii) because I am persuaded that, in light of all the circumstances, the interests of justice so require. The order of dismissal, a copy of which is enclosed, excludes the claims asserted against Wilmington Hospitality, Inc.
As noted earlier, defendant Wilmington Hospitality, Inc. is engaged in reorganization proceedings in the United States Bankruptcy Court for the Eastern District of Pennsylvania. As a consequence, the claim against would appear to be subject to the automatic stay provisions of federal law. After consideration, I have concluded that the stay as to that corporation does not require that I stay my consideration of the pending motions to dismiss. I also note that the grounds for dismissal upon which I rely apply equally to the claims asserted against the bankrupt corporation.