Kravitz v. Binda

Background

Peter Kravitz, acting as the creditor trustee of the Creditor Trust of Advance Watch Company, Ltd., sued Marcello Binda and Simone Binda. The amended complaint asserted two counts: breach of fiduciary duty and commercial waste. The defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12. Kravitz separately moved to strike two declarations submitted with the defendants’ reply brief.

Report and Recommendation

The motions were referred to Magistrate Judge Sarah Netburn. She recommended granting Kravitz’s motion to strike. She recommended granting the defendants’ motion to dismiss under Rule 12(b)(6), which addresses whether a complaint states a legally sufficient claim, as to:

- breach-of-fiduciary-duty allegations based on acts occurring before September 29, 2009; - breach-of-fiduciary-duty allegations based on a purported duty owed to parties other than Advance Watch Company, Ltd., or GWG Liquidating Co.; and - Kravitz’s commercial-waste claim.

She recommended denying the motion to dismiss under Rule 12(b)(2), which concerns personal jurisdiction; on forum non conveniens grounds, which concern whether another forum is substantially more appropriate; and under Rule 12(b)(6) for claims based on acts occurring on or after September 29, 2009 and involving a fiduciary duty owed to Advance Watch or GWG.

The parties were notified that they could object within 14 days, but no objections were filed. Because there were no objections, the district court reviewed the recommendation for clear error.

Ruling

Judge Andrew L. Carter, Jr. found no clear error and adopted Judge Netburn’s Report and Recommendation in its entirety. The court granted the plaintiff’s motion to strike and granted in part and denied in part the defendants’ motion to dismiss. The opinion does not separately state a final dismissal of particular claims beyond describing the portions of the motion to dismiss that were granted and denied.