In re Diaz

Decision Date26 June 1989
Docket NumberAdv. No. 86-6170.,Bankruptcy No. 86-61437
PartiesIn re Jeffery Corbett DIAZ, Debtor. Audrey DIAZ, Plaintiff, v. Jeffery Corbett DIAZ, Defendant.
CourtUnited States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana

COPYRIGHT MATERIAL OMITTED

Ted Mishler, Michigan City, Ind., for defendant.

V. Kupsis, Scherreville, Ind., for plaintiff.

MEMORANDUM OPINION AND ORDER

KENT LINDQUIST, Chief Judge.

I Statement of Proceedings

This adversary proceeding is presently before this Court on the Debtor/Defendant Jeffery Diaz' (hereinafter: "Debtor") First Amended Motion to Dismiss ("Second Amended Motion") filed on October 31, 1988 as to a portion of the Plaintiff's First Amended complaint filed on February 26, 1988. The Debtor, a chapter 7 petitioner, is moving to have the Plaintiffs First Amended Complaint dismissed under Federal Rule of Civil Procedure 12(b)(6).

The Plaintiff's First Amended Complaint alleges that a certain indebtedness by the Debtor to her is nondischargeable pursuant to § 523(a)(6). The operative facts alleged are that on or about December 18, 1984, February 5, 1985, and June 5, 1985, the Debtor assaulted the Plaintiff. The Plaintiff's prayer requests both "damages", apparently compensatory, and punitive damages.

The Debtor's Second Amended Motion asserts that the Plaintiff is not entitled to punitive damages, but only to non-reimbursable and unpaid out-of-pocket costs.

In addition, the Debtor's Second Amended Motion asserts that the Plaintiff in her answer to interrogatories filed on July 5, 1988 stated that she filed a state dissolution proceedings versus the Debtor, that a final hearing was held thereon on October 18, 1985, and that she failed to raise any of the claims that are the subject of this adversary proceeding in the state dissolution proceeding.

The Debtor concludes that the dissolution decree of October 18, 1985 was a final adjudication of all claims by the Plaintiff against the Debtor which had arisen during the marriage, and thus the Plaintiff is barred by the doctrine of res judicata with reference to the alleged assaults that occurred on December 14, 1984, February 5, 1985, and June 5, 1985.

II Conclusions of Law and Discussion

Prior to discussing each of these issues, the Court must first discuss the context under which these issues are being presented. Federal Rule of Civil Procedure 12(b)(6)

Fed.R.Civ.P. 12(b)(6) as made applicable to this adversary proceeding pursuant to Bankr.R. 7012 provides as follows:

b HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counter-claim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
* * * * * *
(6) Failure to state a claim upon which relief may be granted,....

Fed.R.Civ.P. 12(b)(6).

The Court will only consider the pleading itself (i.e. the complaint), which is being attacked by the Defendant's Fed.R. Civ.P. 12(b)(6) Motion in determining its sufficiency. Carroll v. Morrison Hotel Corp., 149 F.2d 404 (7th Cir.1945). The Court is not permitted to look at matters outside the record. Lakeland Constr. Co. v. Operative Plasterers, etc., 494 F.Supp. 37 (N.D.Ill.1980). The Fed.R.Civ.P. 12(b)(6) Motion is used to test the sufficiency of the complaint. Pointer v. American Oil Co., 295 F.Supp. 573 (S.D.Ind.1968). In this regard the standard to be applied by the Court in determining whether the debtor's complaint can withstand the defendant's motion is stated in Fed.R.Civ.P. 8(a)(2) and (3), which requires that a pleading contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for relief to which he deems himself entitled.

Under the Federal Rules, there is no requirement that a complaint state facts sufficient to constitute a cause of action, but only that there be a short and plain statement of the claim showing that the pleader is entitled to relief. Asher v. Ruppa, 173 F.2d 10 (7th Cir.1949). In addition, the pleader need not allege the legal theory on which he relies. Rohler v. TRW, Inc., 576 F.2d 1260 (7th Cir.1978). Failure to plead facts showing a theory of liability does not warrant dismissal, rather, defendant's response should be to begin discovery to determine or narrow plaintiff's theories of liability. Orthmann v. Apple River Campground, Inc., 757 F.2d 909 (7th Cir.1985). The United States Supreme Court has held that whether allegations in a complaint are called "allegations of fact" or "conclusions of the pleader", the allegations must be taken into account in deciding whether the plaintiff is entitled to have his case heard. United States v. Employing Plasterers Association, 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618 (1954).

Motions to dismiss are to be granted only with great care. Kingwood Oil Co. v. Bell, 204 F.2d 8 (7th Cir.1953). The primary objective of the law is to make a determination on the merits rather than on the pleadings. Carss v. Outboard Marine Corp., 252 F.2d 690 (5th Cir.1958) and Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208 (9th Cir.1957).

Well-pled allegations of fact contained in the complaint and every inference fairly deductible therefrom are accepted as true for the purposes of the motion including facts alleged on information and belief. Carroll v. Morrison Hotel Corp., 149 F.2d 404, supra.

The basic test on a motion to dismiss is whether the complaint, with all the well-pled material facts taken as true and construed in the light most favorable to the plaintiff, set forth facts sufficient to state a legal claim. United States v. Geisler, 174 F.2d 992 (7th Cir.1949), cert. den. 338 U.S. 861, 70 S.Ct. 103, 94 L.Ed. 528.

Conclusory allegations are not accepted as true. See Tamari v. Bache & Co. (Lebanon) S.A.L., 565 F.2d 1194 (7th Cir.1977), cert. den. 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978). Where the complaint contains only generally conclusory allegations not supported by any facts the complaint may be challenged by a motion to dismiss. Briscoe v. LaHue, 663 F.2d 713 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

The accepted rule in appraising the sufficiency of the complaint is that it should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Zapp v. United Transp. Union, 727 F.2d 617 (7th Cir.1984); Duncan v. Duckworth, 644 F.2d 653 (7th Cir. 1981); French v. Heyne, 547 F.2d 994 (7th Cir.1976). This is consistent with the simplified notice pleading under the Federal Rules in that the complaint should be liberally construed. Lewis v. Local Union No. 100, etc., 750 F.2d 1368 (7th Cir.1984).

Mere vagueness or lack of detail does not constitute sufficient grounds to grant a motion to dismiss for failure to state a claim. Strauss v. City of Chicago, 760 F.2d 765 (7th Cir.1985).

The task of this Court is thus to harmonize Fed.R.Civ.P. 8(a)(2) and Fed.R.Civ.P. 12(b)(6) and the foregoing cases interpreting the same in light of the plaintiff's statement of claim and applicable substantive law, and determine within the four corners of the complaint, whether all facts well-pled constitute a statement of claim upon which relief can be granted that can withstand the defendant's motion.

The relevant subsection under which the Plaintiff brings this adversary proceeding is 11 U.S.C. § 523(a)(6) which provides as follows:

(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt —
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(6) for willful and malicious injury by the debtor to another entity or to the property of another entity; ...

Section 523(c) provides as follows:

(c) Except as provided in subsection (a)(3)(B) of this section, the debtor shall be discharged from a debt of a kind specified in paragraph (2), (4), or (6) of subjection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), or (6) as the case may be, of subsection (a) of this section.

This Court, in its pre-trial order dated June 21, 1988 held that it had exclusive jurisdiction over this adversary proceeding under Bankruptcy Code §§ 523(a)(6) and 523(c). See 3 Collier on Bankruptcy, para. 523.139 (15th ed. 1988), which states:

Section 523(c) provides that a creditor, who contends that his debt falls within the exception of section 523(a)(2), (4) or (6), must request the bankruptcy court to determine the dischargeability of such debt. Therefore, as to debts which fall within the terms of section 523(a)(2), (4) or (6), the bankruptcy court has exclusive jurisdiction to determine the dischargeability of such debts. But debts that fall within section 523(a)(3) are of the type which the bankruptcy court has concurrent but not exclusive jurisdiction. Should a creditor bring suit in a court other than the bankruptcy court on a debt which he contends is excepted from discharge under section 523(a)(3), the local court would determine the question of dischargeability.

The alleged debt in question does not fall within the ambit of § 523(a)(3), and thus there is no question that this Court has exclusive jurisdiction over this adversary proceeding. If this adversary proceeding were based on some subsection of § 523(a) other than (2), (4) or (6), the state court would have concurrent jurisdiction. See e.g, In re Aurre, 60 B.R. 621 (Bankr.S. D.N.Y.1986) (§ 523(a)(5)).

Although this adversary is between exspouses and a dissolution decree was entered, the issues do not revolve around § 523(a)(5), i.e. whether a portion of the dissolution decree is in the nature of support and...

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