Neilson v. Agnew (In re Harris Agency, LLC), 477 B.R. 590

Debtor Harris Agency filed a voluntary Chapter 11 petition on January 20, 2009.
Original Complaint in the adversary proceeding was filed June 16, 2011 and, after a motion to dismiss, several counts were dismissed without prejudice (Dismissal Order of Oct 21, 2011).
Trustee filed an eleven-count Amended Complaint on March 9, 2012.
On May 16, 2012, Entity Defendants answered while Moving Defendants moved to dismiss the Amended Complaint.
The court applies Twombly/Iqbal plausibility pleading standards and adopts the Third Circuit three-part test for Rule 12(b)(6) dismissals as described in In re Schering Plough Corp. Intron/Temodar Consumer Class Action.
The court granted in part and denied in part the Motion to Dismiss, allowing a Second Amended Complaint by Sept 14, 2012 and leaving some counts intact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Plausibility of preferential transfer claim against Moving Defendants	Trustee argues transfers benefited Moving Defendants.	Moving Defendants contend they are not creditors and thus not proper defendants on Count I.	Count I dismissed against Moving Defendants.
Palsibility of fraudulent transfer claims (Counts II–IV) against Moving Defendants	Trustee alleges ultimate benefit to Moving Defendants via control of entities.	Moves deny any transfers for their benefit.	Counts II, III, IV dismissed as to Moving Defendants.
Survival of Count V (enforcement of Archway Order) against Moving Defendants	Archway Order implicated in alleged payments controlled by individuals.	Archway Order not tied to Moving Defendants.	Count V DENIED; Count V survives against Moving Defendants.
Survival of Counts VI–VII (post-petition transfers and turnover) against Moving Defendants	Trustee seeks §549 and §542 relief against Moving Defendants.	Amended Complaint fails to show transfers or possession benefitting Moving Defendants.	Count VI and VII dismissed as to Moving Defendants.
Deborah Agnew: Counts VIII and IX analysis	Agnew implicated through ownership of entities; potential liability.	Defense seeks dismissal of IX and preservation of VIII.	Count VIII remains against Deborah Agnew; Count IX dismissed against Deborah Agnew.

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012) (adopts three-part plausibility test for Rule 12(b)(6) dismissals)
In re Direct Response Media, Inc., 466 B.R. 626 (Bankr. D. Del. 2012) (dismissal of fraudulent transfer counts as to certain defendants when not pled as initial transferees or for their benefit)
Rosen v. Dahan (In re Minh Vu Hoang), 452 B.R. 902 (Bankr. D. Md. 2011) (542(a) turnover requires possession of estate property by defendant)