Opinion 1
Presently before this Court are Old Forge Bank’s Motions to Dismiss under Fed.R.Civ.P. 12(b)(6), Motion for Abstention under 28 U.S.C. § 1334(C)(1) or (2), and in the Alternative, Motion to Strike Under Fed.R.Civ.P. 12(f) & Motion for a More Definite Statement under Fed. R.Civ.P. 12(e). For the reasons stated herein, the Motion to Dismiss is granted, and the Amended Complaint is dismissed.
I.Jurisdiction
The claims raised by the Complaint are non-core. Therefore, this Court only has “related to” jurisdiction as defined in 28 U.S.C. § 157(c).
II. Dismissal Standard
“... [0]n a Rule 12(b)(6) motion, the facts alleged must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.”
Phillips v. County of Allegheny,
“[The standard] ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.”
Phillips,
III. Facts and Procedural Posture
Plaintiffs, Louis J. Domiano and Debra Domiano, (hereinafter collectively “the Do-mianos”) filed for Chapter 11 relief on June 2, 2008. The Domianos filed a Complaint (“Original Complaint”) commencing this adversary proceeding against one of their creditors, Old Forge Bank (hereinafter “Old Forge”), on February 17, 2009. Following Old Forge’s first Motion to Dis *501 miss, filed on March 30, 2009, I rendered an Opinion finding that the Domianos had failed to state a claim upon which relief could be granted, dismissing all counts of the Original Complaint, and granting leave to file an amended complaint. The Domia-nos filed a new Complaint (“Amended Complaint”) on July 20, 2009. In response, Old Forge filed the present Motions to Dismiss, Abstain, Strike, and for a More Definite Statement (“Motion”).
IV. Discussion
The Motion by Old Forge for dismissal is pursuant to Federal Rule of Civil Procedure 12(b)(6), which is made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7012(b). In my previous Opinion, I observed that the Original Complaint had significant conclusory language and few facts to support a cause of action. That Opinion noted:
In reviewing the Complaint, this Court has had significant difficulty in locating factual allegations, as opposed to legal conclusions. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, — U.S. -, -,129 S.Ct. 1937 , 1949,173 L.Ed.2d 868 (U.S.2009) (citing Bell Atlantic Corp. v. Twombly,550 U.S. 544 , 555,127 S.Ct. 1955 , 1965,167 L.Ed.2d 929 (2007)). “... the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation.” Ashcroft v. Iqbal,129 S.Ct. at 1949 (referring to Bell Atlantic Corp. v. Twombly,550 U.S. 544 , 555,127 S.Ct. 1955 , 1965,167 L.Ed.2d 929 (2007)).
In the recent case Ashcroft v. Iqbal, the Supreme Court elaborated on the standards of pleading and the plausibility requirement set forth in the Twombly decision:
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.
Ashcroft v. Iqbal,129 S.Ct. at 1949-1950 (internal citations omitted). In further defining plausibility, the Court stated that, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Ashcroft v. Iqbal,129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly,550 U.S. 544 , 557,127 S.Ct. 1955 , 1966,167 L.Ed.2d 929 (2007)).
Domiano v. Old Forge Bank (In re Domiano),
Ch. 11 Case No. 5-08-bk-51563RNO, Adv. No. 5-09-ap-00049RNO,
In the present case, the Domianos’ Amended Complaint contains many of the same paragraphs as the Original Complaint. 2 In the Domianos’ Memorandum of Law in Opposition to Motion to Dismiss of Old Forge Bank, the Domianos argue that this Court can supplement the Complaint with judicial notice. Pis.’ Mem. of Law p. 18. Specifically, the Domianos make reference to testimony presented by both *502 parties at a relief from stay hearing which was part of the Domianos’ underlying bankruptcy proceeding, not this adversary case. Pis.’ Mem. of Law p. 18.
As a legal basis for this argument, the Domianos reference two cases,
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
In the present case, the scenario is slightly different. Rather than arguing any preclusive effect, the Domianos seek that I take judicial notice of the “facts” of the relief from stay hearing to supplement the Amended Complaint. Fed.R.Evid. 201(d) requires a court to take judicial notice if “requested by a party and supplied with the necessary information.” Fed.R.Evid. 201(b) describes the kinds of facts that may be judicially noticed:
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Additionally, the Third Circuit has previously noted that “... a bankruptcy judge deciding an adversary proceeding, which is an independent litigation, and an appellate court reviewing that decision, cannot properly use documents filed only in the underlying bankruptcy case unless that use can be justified under the judicial notice doctrine.”
In re Indian Palms Associates, Ltd.,
While
Indian Palms
is helpful, the case is also distinguishable in that judicial notice was taken in the context of an appeal from the disposition of a relief from stay motion.
Id.
at 201-202. As the present case involves an adversary proceeding, it is more helpful to refer to the case which
Indian Palms
relied upon and discussed in footnote 12,
In re Aughenbaugh,
... would have been admissible as court records without other proof and would if offered in evidence have constituted some evidence of the facts to which they related. But the facts to which they *503 related, being disputed in the very controversy under consideration, were not the sort of facts of which the referee was entitled to take judicial notice.
In re Aughenbaugh,
In the present case, it is not apparent that the Domianos are even aware of which facts they seek that I take judicial notice. The only request for judicial notice is found in the Memorandum submitted in opposition to the Motion. See Pis.’ Mem. of Law p. 18. In that Memorandum, the Domianos argue that I can take judicial notice of the testimony from a previous relief from stay hearing to further substantiate the causes of action against Old Forge. I am left to speculate as to what facts the Domianos are seeking to have me take judicial notice of. In light of Aughen-baugh and the plain language of Fed. R.Evid. 201(b) and the summary nature of the relief from stay proceedings, I do not find a basis to take judicial notice of any adjudicative facts here. I must now evaluate the sufficiency of the causes of action plead in the Domianos’ Amended Complaint.
A. Breach of Contract
I review the Amended Complaint in the light most favorable to the Domianos. The preliminary averments consist of four paragraphs, two of which identify the parties and two of which refer to the jurisdiction of this Court. One of the paragraphs, in describing Old Forge, refers to Old Forge as “a creditor that claims a security interest in property assets of the Debtors.” Pis.’ Am. Compl. ¶ 2.
The Amended Complaint contains four counts. They are numerated as Counts II, III, IV and V.
Count II is titled “Breach of Contract”. Paragraphs six and seven of the Amended Complaint state that on April 28, 2008 and May 7, 2008, Old Forge diverted rents to itself from a multi-tenant commercial property owned by the Domianos. Paragraph fifteen clarifies that the alleged diversion of rents was pursuant to a mortgage instrument. Paragraph eight alleges that at the time that the “diversion began” the commercial property’s fair market value was in excess of $1,100,000.00. Paragraphs nine and ten allege that Old Forge has diverted the rents through a contract agent and has not applied the rental funds to any underlying obligation in a timely manner. Paragraphs eleven and twelve allege that rents have gone uncollected, vacancies have not been filled and that “necessary items” on the property neglected. The Amended Complaint states that Old Forge has refused to notify the Domi-anos about the same and that the uncollected rents and defaults exceed $20,000.00.
Paragraphs thirteen and fourteen allege that these actions have caused a reduction of value upon which Old Forged relied in its Motion for Relief from the Automatic Stay. Paragraph sixteen consists of a list of conclusory language detailing the various “breaches” of the contract, which presumably is a mortgage agreement. Paragraphs seventeen through twenty state that these actions have reduced rental income by approximately seventy percent, have reduced the value of the property, and have impaired the Domianos’ ability “to develop and implement their plan of reorganization.” The final paragraph under this Count characterizes the actions as intentional or reckless and intended to impede the Domianos’ financial progress and benefit Old Forge.
Old Forge argues that the Domi-anos have failed to plead the necessary elements of a breach of contract action under Pennsylvania law. Under Pennsyl
*504
vania law, a claim for breach of contract requires that a plaintiff allege “1) the existence of a contract, including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant damage.”
Pittsburgh Const. Co. v. Griffith,
B. Breach of Implied Term of Good Faith
Count III is titled “Breach of Implied Term of Good Faith.” This Count incorporates all the preceding paragraphs. Additionally, paragraph twenty-two is a conclusion of law which states that Pennsylvania law includes an obligation to act in good faith. Paragraph twenty-three states that Old Forge is “in breach of that agreement.” The remaining three paragraphs of this Count allege that losses are likely to continue and that Old Forge continues to hamper the Domianos’ reorganization efforts.
As with much of the Original Complaint, the new paragraphs in this Count in the Amended Complaint are merely legal conclusions. The Original Complaint referenced some alleged breaches of contract, the taking of possession of some property, and the notification of tenants to send rents to Old Forge. Count III of the Amended Complaint includes some conclu-sory allegations that the actions of Old Forge are “intentional or reckless and are designed and intended to adversely impact the Debtors to impede their financial progress to the benefit of the Defendant.” Pis.’ Am. Compl. ¶ 26.
In considering a motion to dismiss, allegations that are legal conclusions are not assumed to be true.
Ashcroft v. Iqbal,
— U.S. -, -,
While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Ashcroft v. Iqbal,
As noted above, the Amended Complaint has not even identified the purported contract between the Domianos and Old Forge. Count III of the Amended Complaint contains a paucity of well-plead facts to give context and color to the legal con- *505 elusions which are plead. This is not enough in my view.
Traditionally, Pennsylvania courts have only imposed an inherent duty of good faith in limited circumstances. For example, a franchisor dealing with its franchisees has an obligation to act in good faith and with commercial reasonableness.
Loos & Dilworth v. Quaker State Oil Refining Corp.,
At most, the Amended Complaint shows a debtor/creditor relationship between the Domianos and Old Forge. As noted by the Pennsylvania Superior Court, “... the Supreme Court of Pennsylvania has refused to impose a duty of good faith which would modify or defeat the legal rights of a creditor.”
Creeger Brick and Bldg. Supply, Inc. v. Mid-State Bank and Trust Co.,
Under Pennsylvania law, “[s]uch an inherent duty of good faith does
not
extend to the lender-borrower relationship.”
Cable & Associates Ins. Agency, Inc. v. Commercial Nat. Bank of Pennsylvania,
A contract between the Domianos and Old Forge could impose an obligation of good faith concerning the contractual terms. However, a contract was neither attached to the Amended Complaint nor described therein. A cause of action for breach of an implied duty of good faith has not been stated. No plausible claim for relief having been plead in Count III, this Count will be dismissed.
C. Negligence
Count IV of the Amended Complaint incorporates all of the previous paragraphs. Paragraph twenty-eight states “[t]hat the Defendant has negligently, ... discharged its duties and obligations to the Plaintiffs when it took possession of the property and/or seized its rents.” Paragraph twenty-nine states “[t]hat the actions of the Defendant were wrongful as to the Plaintiffs and have caused and will continue to cause substantial loss to the Plaintiffs.”
The section in the Domianos’ Memorandum referring to the negligence claim cites no Pennsylvania case law giving rise to such a cause of action. Rather, the entire section of the Memorandum refers to cases that describe the standard of review under a Rule 12(b)(6) motion to dismiss. Pennsylvania law recognizes the “gist of the action doctrine” which provides that a breach of contract action only gives rise to a tort claim when the “... wrong ascribed to the defendant [is] the gist of the action, the contract being collateral.”
eToll, Inc. v. Elias/Savion Advertising, Inc.,
D. Breach of Fiduciary Duty
Count V of the Amended Complaint alleges breach of fiduciary duty. This Count, like the ones before it, incorporates all previous portions of the Amended Complaint. Paragraph thirty-three states “[t]hat the Defendant has and continues to breach its fiduciary duty to the Plaintiffs and to cause substantial losses to the Plaintiffs ...” Paragraphs . thirty-four through thirty-six restate the same language as paragraphs eighteen through twenty and twenty-four through twenty-six, including general statements about adverse affects to value of property, alleged impairment of the Domianos’ ability to implement a plan of reorganization, and the intentions of Old Forge. Again, the paragraphs contained within this Count are conclusory in nature. There is a lack of foundational facts supporting the legal conclusions and demand for relief. The Domi-anos’ Memorandum does not actually cite any specific cases to support their cause of action, instead pages fourteen through eighteen of the Memorandum merely recount the dismissal standard.
Old Forge argues that, as Count V appears to arise out of the breach of contract claim, it should be barred by the gist of the action doctrine. Def.’s Br. p. 14. In
Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc.,
Under Pennsylvania law, a fiduciary duty is created by a confidential relationship which “... may attach ‘wherever one occupies toward another such a position of advisor or counsellor as reasonably to inspire confidence that he will act in good faith for the other’s interest.’ ”
Basile v. H & R Block, Inc., 777
A.2d 95, 102 (Pa.Super.2001). The main focus in determining the existence of such a relationship is based on the disparity of the position between the parties.
Id.
at 102. “... [A] confidential relationship may be established by evidence of either ‘overmastering influence’
or
of ‘weakness, dependence or trust.’ ”
Basile v. H & R Block, Inc., 777
A.2d at 103 (referencing
Frowen v. Blank,
In the present case, the Domianos allege that the breach of fiduciary duty arises out of actions taken by Old Forge pursuant to Old Forge’s contractual rights. The only relationship plead is a credit agreement. However, no factual allegations have been made that suggest sufficient reliance or control that would create a fiduciary duty here. No facts were pled to suggest a confidential relationship between the Domianos and Old Forge. Considering all of the paragraphs of the Amended Complaint, which at this point are either contained within the Count or incorporated by reference, this Court is left to wonder and speculate regarding the existence of a fiduciary relationship. The allegations, therefore, do not state a cause of action upon which relief can be granted with respect to a breach of a fiduciary duty. Count V of the Amended Complaint will be dismissed.
V. Conclusion
For the reasons set forth above, I find that the Amended Complaint fails to state a claim upon which relief can be granted under any of the four counts. Therefore, Old Forge’s Motion under Federal Rule of Civil Procedure 12(b)(6) is granted with respect to all Counts, and the Amended Complaint is dismissed. As I have determined that the Amended Complaint is to be dismissed, the Motions to Abstain, Strike, and for a More Definite Statement are moot and no additional findings regarding those Motions need to be made.
An Order will be entered consistent with this Opinion.