MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
FILED ELECTRONICALLY
JAMES TUREK,
PLAINTIFF
v.
MOLD-RITE TOOL, INC., PLAST-O-FOAM,
LLC, GENERAL PLASTICS CORP., AND
RICK MICHAEL,
DEFENDANTS.
CIVIL ACTION NO. 5:06-CV-53-JMH
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Defendants, Mold Rite-Tool, Inc. (“Mold-Rite”) and Plast-O-Foam, LLC, (“Plast-OFoam”),
by counsel, for their Memorandum in Support of their Motion to Dismiss state as follows:
I.
INTRODUCTION
Plaintiff, a Kentucky resident, has filed suit in Kentucky, in his individual capacity, against four Michigan Defendants for harm caused to a Delaware corporation. Plaintiff’s suit must be dismissed for two reasons. First, this Court lacks personal jurisdiction over Mold-Rite and Plast-O-Foam (“the Defendants”) as the Defendants do not have sufficient contacts with Kentucky to give this Court personal jurisdiction. Second, Plaintiff’s Complaint fails to state a claim against the Defendants because Plaintiff lacks standing to assert claims against the Defendants since his claims stem from purported harm done to a corporation and not from a separate injury caused directly to the Plaintiff. For these reasons, the Defendants respectfully
request that this Court grant their Motion to Dismiss.
...
III.
STATEMENT OF THE CASE
On January 30, 2006, James Turek (“Turek”), in his individual capacity, filed this suit against Mold-Rite, Plast-O-Foam, General Plastics Corp (“GPC”) 1, and Rick Michael (“Michael”) 2 in Fayette County Circuit Court. Complaint. The claims asserted by Turek all involve harm allegedly caused by the Defendants to a Delaware corporation, Plasticon International, Inc. “Plasticon”). 3
Specifically, Turek alleges that the Defendants
(1) breached their contracts with Plasticon,
(2) conspired to force Plasticon to pay money and deprive Plasticon of property (civil conspiracy),
(3) converted Plasticon’s property,
(4) interfered with Plasticon’s contractual relations with customers, vendors or business entities, and
(5) made false statements which Plasticon relied upon when entering into a contract with the Defendants.
Complaint ¶¶ 44-90.
Turek’s Complaint alleges that he, as the guarantor of Plasticon, was damaged and forced into personal bankruptcy4 because of the purported harm the Defendants caused Plasticon.5 Complaint ¶¶41-43.
Turek did not allege that the Defendants owed or breached any duty to him personally, or that he suffered any harm which was separate from the harm caused to Plasticon.
...
Notes:
1 Upon information and belief, GPC is an automatically dissolved corporation which was a Michigan corporation with its principal place of business in Fraser, Michigan.
Complaint ¶ 4.
GPC is not a citizen of the Commonwealth of Kentucky, nor is its principal place of business in the Commonwealth of Kentucky. The Fayette Circuit Court’s records indicate that GPC has not yet received service of process of the Complaint filed in the Fayette Circuit Court.
2 Upon information and belief, Michael is a citizen and resident of the State of Michigan, with an address of 1538 Heatherwood, Troy Michigan.
Complaint ¶5.
Defendant Michael is not a citizen of the Commonwealth of
Kentucky, nor does Michael have a residence within the Commonwealth of Kentucky. The Court records indicate that Michael has not yet received service of process of the Complaint filed in Fayette Circuit Court.
3 Plasticon International, Inc., is an assumed name of International Plastics Corporation which is a division of Wicklund Holding Company. Complaint ¶1.
4 Turek’s bankruptcy action is currently pending in the United States Bankrupty Court for the Northern District of Florida, Case No. 02-20411-PCY5. According to Turek’s Third Amended Plan of Reorganization filed on February 23, 2005, Turek will be released from any debts incurred as a result of Turek’s guaranty of Wicklund’s (or Plasticon’s) obligations.
5 The Court will note that the purported harm suffered by Plasticon is currently being litigated in Michigan State Court. International Plastics Corp., et al. v. Mold-Rite Tool, Inc., No. 03-5854-PD (Macomb Cir. Ct., filed December 30, 2003). |
