Martin v. DirectBuy Inc et al

Filing 31

OPINION AND ORDER: Court STRIKES 30 Second Amended Complaint, and Plaintiff Mary Martin, Trustee, is granted 14 days from the date of this order in which to file a third amended complaint in which Count II is re-pled as a short and plain statement of a breach of contract claim showing that the pleader is entitled to relief. Signed by Chief Judge Philip P Simon on 12/5/2011. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARY MARTIN, CHAPTER 7 TRUSTEE for
TRINITY INNOVATIVE ENTERPRISES, LLC,
Plaintiff,
v.
DIRECTBUY, INC., BETA FINANCE
COMPANY, INC., UCC TOTALHOME, INC.
and JOHN DOES 1 THROUGH 10,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:11CV135-PPS/APR

OPINION AND ORDER
My October 26, 2011 order granted plaintiff Trustee Mary Martin 21 days to file a
second amended complaint in which Count II was re-pled as a breach of contract claim. What
Martin has filed contains a Count II labeled as a breach of contract claim, but which is an out-ofcontrol amalgamation of allegations and claims that Martin attempts to cobble together with
incorporation by reference from four other lawsuits. Two of the other actions were filed on
behalf of Debtor Trinity Enterprises in the bankruptcy court in the Eastern District of
Pennsylvania, but two are class action complaints filed by other plaintiffs against defendants
DirectBuy, Beta and UCC in district courts in Connecticut and New York. Attaching the
pleadings from those cases along with an amicus brief filed in the Connecticut class action,
Martin has supplemented the second amended complaint with a whopping 275 pages of
pleadings and exhibits from these other lawsuits, from which applicable “incorporated”
information would have to be culled.

The result is intolerable. The defendants cannot reasonably be expected to respond to
such a pleading, nor can I reasonably be expected to be able to construe it. Excising certain
referenced factual allegations here and portions of specified claims there is unworkable. Within
the single count, Martin attempts to incorporate multiple counts from other actions (e.g., from the
first Pennsylvania complaint, Counts I, VI, VIII and IV, but with certain exclusion and additions
from each). As to the cited class action complaints, the attempt to incorporate those actions’
allegations of “systematic fraud by receiving undisclosed kickbacks from manufacturers whose
products were offered to DBI members” [DE 30 ¶26] is far afield from the anticipated
formulation of a Count II clarifying – not expanding and unreasonably complicating -- a claim
for breach of contract involving the Franchise Agreement and Finance Agreement with Trinity.
In addition to fraud, the new Count II’s broad brush would also sweep in legal theories of good
faith and fair dealing, and unjust enrichment. [DE 30 ¶28].
Count II of the second amended complaint clearly is not a “short and plain statement” of
a claim for breach of contract “showing that the pleader is entitled to relief,” as required by
Fed.R.Civ.P. 8(a)(2). I will offer Martin one more opportunity to plead such a claim. Rather
than the piecemeal pleading that results from incorporation by reference, the third amended
complaint should contain in its text all the factual allegations and legal assertions upon which it
relies.
ACCORDINGLY:
Plaintiff’s Second Amended Complaint [DE 30] is STRICKEN, and Plaintiff Mary
Martin, Trustee, is granted 14 days from the date of this order in which to file a third amended

2

complaint in which Count II is re-pled as a short and plain statement of a breach of contract
claim showing that the pleader is entitled to relief.
ENTERED: December 5, 2011

/s/ Philip P. Simon
Chief Judge
United States District Court

3