Dokter v. Old Ladder Co., 2:10-cv-02332

Plaintiff Doktor, a home contractor, sues Werner Co., Old Ladder Co., New Werner Co., Werner Company, Inc., and Home Depot for injuries from a ladder allegedly manufactured and sold by defendants.
Ladder identified as Werner Electromaster Model FS206S; alleged to have been designed, manufactured, tested, distributed, and sold by Werner Defendants.
Action removed to federal court on diversity grounds; Werner Defendants move to dismiss under Rule 12(b)(6).
Old Ladder Co., Inc. filed Chapter 11; assets later sold to Werner Co. under an asset purchase agreement (APA) approved by Bankruptcy Court Order, with a free-and-clear provision and no assumption of liabilities except as stated.
Plaintiff contends the ladder was manufactured by a bankrupt predecessor and seeks to pursue successor liability; Werner Defendants argue no liability due to free-and-clear sale and lack of successor relation.
Court denies dismissal on the merits at this stage but allows discovery on (a) whether the ladder was manufactured by Old Ladder and (b) the date of manufacture.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether successor liability attaches to Werner Defendants	Doktor asserts potential successor liability via de facto merger / mere continuation.	Werner Defendants rely on APA and Bankruptcy Court Order excluding successor liability; asset sale was sale of assets for cash, not a merger.	Summary: successor liability not shown; court denies dismissal pending discovery on manufacture facts.
Whether the free-and-clear asset sale precludes liability	Discovery may reveal facts supporting successor liability despite free-and-clear sale.	Free-and-clear sale provisions bar claims against the asset purchaser for liabilities of the seller.	Held that free-and-clear sale supports no liability against Werner Co. absent other bases; court still allows discovery on manufacture, so not dismissed.
Whether the complaint should be dismissed at this stage given manufacture-date evidence	Court should consider fact issues and permit discovery; affidavits on manufacture date are inappropriate for dismissal.	Affidavits show ladder manufactured by Old Ladder; date evidence supports dismissal if taken as true.	Denied; plaintiff to conduct discovery on date of manufacture and identity of the manufacturer; summary judgment may follow.

National Serv. Indus., Inc. v. City of New York, 460 F.3d 201 (2d Cir. 2006) (establishes standard for successor liability and exceptions)
In re Gucci, 126 F.3d 380 (2d Cir. 1997) (free-and-clear sale implications; preserves bankruptcy objective)