UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE DIVISION

 

 

IN RE:

JOHNNY WALKER

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 in AIn 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 '1357, at 311-18 (2d ed. 1990). The allegations of a complaint must be "well-pleaded" and thus the court need not accept "sweeping and unwarranted averments of fact." Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir. 1987). Legal conclusions, deductions or opinions couched as factual allegations in a complaint are not given a presumption of truthfulness. 2A James Wm. Moore et al., Moore's Federal Practice &12.07[2.-5], at 12-63 to 12-64 (2d ed. 1991). A complaint is subject to dismissal if it fails to allege a required element which is necessary to obtain relief sought. Moore, supra, at 12-68; (cite omitted). A motion under Fed.R.Civ.P. 12(b)(6) should also be granted if a bar to relief is apparent from the face of the complaint. Moore, supra, at 12-68 to 12-69.=

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 -

 

 

________________________________

Chief Judge

 

 

Copies to:

Debtor

Michael P. Wood, Esq.

John Hansen, Esq.