UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
DEBTOR CASE NO. 97-70692
JOHNNY WALKER PLAINTIFF
VS. ADV. NO. 97-7026
COMMONWEALTH OF KENTUCKY
NATURAL RESOURCES AND
ENVIRONMENTAL PROTECTION CABINET DEFENDANT
MEMORANDUM OPINION AND ORDER
The defendant herein filed Motions for Sanctions and to Dismiss. This Court entered a Memorandum Opinion and an Order on December 18, 1997, sustaining the defendant=s Motion for Sanctions. The defendant=s Motion to Dismiss alleged that the plaintiff=s Complaint should be dismissed for failure to state a claim upon which relief can be granted pursuant to FRBP 7012 and FRCP 12(b)(6). The Motion to Dismiss was based on the same reasons as those set forth in the defendant=s Motion for Sanctions.
This Court has recently ruled on a Rule 12(b)(6) Motion to Dismiss inAIn re Helen Gay Miller, Case No. 96-71011; Helen Gay Miller v. HLT Check Exchange and Larry York, Adv. No. 97-7005,@ (Slip Op., E.D.Ky., December 18, 1997). Therein the Court stated:
A motion to dismiss made pursuant to FRCP 12(b)(6), made applicable in bankruptcy by FRBP 7012(b), is for failure to state a claim upon which relief can be granted. As set out in In re Natale, 136 B.R. 344 (Bkrtcy.E.D.N.Y. 1992), the court, in determining such a motion
>must presume that the factual allegations of the complaint are true and all reasonable inferences are to be made in favor of the nonmoving party. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). The purpose of a motion to dismiss is to assess the legal sufficiency of a complaint, not to judge the weight of evidence which might be offered in its support. Geisler v. Petrocelli, 616 F.2d 636, 639 (2nd Cir. 1980).
However, on a motion to dismiss, it is clear that the court does not have to accept every allegation in the complaint as true in assessing its sufficiency. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure
At page 348. The Court's task under Rule 12(b)(6) is then to determine the sufficiency, and not the merits, of the Complaint. See also In re Harvard Knitwear, Inc., 153 B.R. 617 (Bkrtcy.E.D.N.Y. 1993), and In re DeLorean Motor Co., 991 F.2d 1236 (6th Cir. 1993).
At 3-4. Based on these criteria, and on its findings in the Memorandum Opinion in regard to the defendant=s Motion for Sanctions, this Court finds that the allegations of the Complaint are uniformly baseless and without support in either fact or law. It is therefore apparent that the plaintiff=s Complaint must be dismissed.
In consideration of the foregoing, the Court finding no just cause for delay, and being otherwise fully advised,
IT IS HEREBY ORDERED that the plaintiff=s Complaint is dismissed with prejudice.
This is a final order entered this ____ day of December, 1997.
By the Court -
Michael P. Wood, Esq.
John Hansen, Esq.