Opinion
CIVIL ACTION NO. 1:06-cv-2868-GET.
February 15, 2006
ORDER
The above-styled matter is presently before the court on defendant Adam Pearlman's motion to dismiss [docket no. 3].
Plaintiff Regions Bank filed the present action in the State Court of Fulton County, Georgia in October, 2006. Defendant removed the action to this court on November 27, 2006 on the basis of diversity jurisdiction, pursuant to 28 U.S.C. §§ 1332, 1441. Plaintiff's complaint alleges that defendant entered into an agreement under which he guaranteed any loan or other financial accommodation made or granted to Stylin' Kids of Sandy Springs, Inc. ("Stylin' Kids") by plaintiff. The complaint contends that Stylin' Kids defaulted under the terms and conditions of two promissory notes with plaintiff in the original principal sum of $65,000.00 and $100,000.00. The complaint states that defendant breached the terms and conditions of the guarantee agreement entered into between plaintiff and defendant. Plaintiff seeks the principal sum due, attorney's fees and interest due.
Defendant filed his "Answer and Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue" on November 27, 2006. As of the date of this order, plaintiff has not filed a response to defendant's motion to dismiss.
Standard
A motion to dismiss under Rule 12(b)(6) attacks the legal sufficiency of the complaint. It is viewed with disfavor and rarely granted. See e.g., Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984);Pataula Elec. Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir. 1992). The court is to presume true all of the complaint's allegations and make all reasonable inferences in favor of the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The rules require nothing more than "a short and plain statement" that will give the defendant fair notice of the claims and the grounds upon which they are based. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Discussion
In his answer to plaintiff's complaint, defendant asserts as his first affirmative defense that the court lacks personal jurisdiction over him because he is a citizen of North Carolina with no ties to Georgia and because the guarantees sued on were executed in North Carolina. Defendant's second affirmative defense states that venue is improper in this court because defendant resides in North Carolina, the guarantees sued on were executed in North Carolina, and all of defendant's evidence is in North Carolina. Defendant asks the court to dismiss plaintiff's complaint for lack of personal jurisdiction and improper venue or, in the alternative, for an order transferring the case to the appropriate court in North Carolina where defendant resides.LR 7.1A(1) states: "Every motion presented to the clerk for filing shall be accompanied by a memorandum of law which cites supporting authority. If allegations of fact are relied upon, supporting affidavits must be attached to the memorandum of law." Defendant's motion to dismiss is not filed in the proper form and there is no brief in support of his motion to dismiss, as required by LR 7.1A(1). Accordingly, the court DENIES defendant's motion to dismiss [docket no. 3].