In Re: Jack Weichman
Decision Date | 30 September 2010 |
Docket Number | ADVERSARY NO. 09-2095,CASE NO. 08-23482 JPK |
Parties | IN RE:JACK WEICHMAN, Debtor. DOMENICO LAZZARO, MD, JOSEPH PABON M.D. and ASSOCIATED PATHOLOGISTS OF MUNSTER INDIANA, P.C., Plaintiffs, v. JACK WEICHMAN, Defendant. |
Court | U.S. Bankruptcy Court — Northern District of Indiana |
11 U.S.C. § 523 ("MOTION")
By order entered on January 21, 2010, the court granted the defendant's motion to dismiss the plaintiffs' original complaint. The granting of that motion was without prejudice to the plaintiffs' filing of an amended complaint, which by the terms of the January 21, 2010 order was due to be filed by February 18, 2010. The amended complaint was filed on February 19, 2010, 1 and the Motion and a memorandum in support thereof was filed on March 10, 2010.2The plaintiffs filed a response to the Motion, in the form of a legal memorandum, on April 9, 2010. Pursuant to the court's order entered on April 13, 2010, the defendant filed a legal memorandum in reply to the plaintiffs' response on May 10, 2010.
There has been no objection to the court's exercise of jurisdiction. The court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. § 1334(b), 28 U.S.C. § 157(a) and (b), and N.D.Ind.L.R. 200.1. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(I).
The issue before the court arising from the Motion is whether the plaintiffs' amended complaint should be dismissed pursuant to Fed.R.Bankr.P. 7012(b)/Fed.R.Bankr.P. 12(b)(6). No materials outside of the record established by the pleadings have been filed, and the Motion is therefore to be determined strictly pursuant to the provisions of Rule 12(b)(6).
As was true with the original complaint, the amended complaint seeks to assert actions against the defendant pursuant to 11 U.S.C. § 523(a)(2), 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6). The defendant asserts that the amended complaint fails to assert claims for relief cognizable under applicable law and rules against him. The plaintiffs assert that the amended complaint sufficiently asserts claims against the defendant.
The format of the amended complaint is in a pattern all too familiar to the court, and one which the court does not endorse. The complaint begins with a required statement of the court's jurisdiction, which is fine. The complaint then proceeds to identify the parties, which is fine. The complaint then states a lengthy recitation of "Facts" which do not form a part of any asserted count, but rather apparently are deemed to state underlying facts necessary for all of the designated counts in the complaint. The complaint then has three designated counts-one under each of the above-designated exceptions to discharge provided by the Bankruptcy Code-which consecutively incorporate by reference all of that which preceded them in the complaint, including rhetorical paragraphs 1-53. Most woefully, each succeeding count incorporates each preceding count's averments. Some of these incorporated allegations arepertinent to certain of the causes of action alleged subsequently, but some of them are only pertinent to a specific count. This form of pleading is obnoxious, in that it causes the court to review facts which are not pertinent to a particular Count and sort those facts out, as one would grain from chaff, to determine whether a particular Count actually asserts a claim cognizable under applicable law. Fed.R.Bankr.P. 7008(a) incorporates the provisions of Fed.R.Civ.P. 8 into adversary proceedings. Fed.R.Civ.P. 8(a)(2) requires that a pleading "must contain... a short and plain statement of the claim showing that the pleader is entitled to relief". Fed.R.Civ.P. 8(d)(1) requires that "(e)ach allegation must be simple, concise and direct". Incorporating an omnibus statement of facts and averments of preceding counts into various counts violates both of these rules, and is simply not an appropriate manner in which to plead a federal complaint. That being said, the court will review the complaint in the manner in which it has been submitted, with a caution to the plaintiffs' attorney to do better in the future.
The Amended Complaint is essentially a "fleshed out" version of the original complaint in which certain specific allegations have been added in an attempt to comply with Fed.R.Civ.P. 8(a) and Fed.R.Civ.P. 9(b), both of which are applicable to adversary proceedings by provisions of the Federal Rules of Bankruptcy Procedure. The January 21, 2010 order noted the deficiencies in the original complaint, and many of the rhetorical paragraphs of the original complaint reappear in the amended complaint. For the purposes of differentiating the material manner in which the amended complaint differs from the original complaint, the court notes the following with respect to additions made by the amended complaint:
A. With respect to the generic statement of facts [rhetorical paragraphs 6-53 in the amended complaint]-the following material provisions have been inserted into the amended complaint:
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