Bank of New York Mellon, The et al v. Brooke Holdings, Inc.

Filing 34

MEMORANDUM AND ORDER denying 18 Motion to Dismiss. See Order for details. Signed by District Judge Eric F. Melgren on 5/18/2011. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

THE BANK OF NEW YORK MELLON, as
Trustee and UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG),
Plaintiffs,

vs.

Case No. 10-2293-EFM

BROOKE HOLDINGS, INC.,

Defendant.
_____________________________________
BROOKE HOLDINGS, INC.,
Counter Complaint Plaintiff,
vs.
THE BANK OF NEW YORK MELLON, as
Trustee and UNICREDIT BANK AG
(formerly known as Bayerische Hypo- und
Vereinsbank AG),
Counter Complaint Defendants.

MEMORANDUM AND ORDER
Before the Court is Plaintiffs Bank of New York Mellon and Unicredit Bank, AG’s Joint
Motion to Dismiss Defendant Brooke Holdings, Inc. Counter Complaint. (Doc. 18). Plaintiffs filed
suit on May 21, 2010, and Defendant filed its Counter Complaint on July 26, 2010. On May 21,
2010, Plaintiff Bank of New York Mellon also filed a separate suit in this court with two other

plaintiffs, Fifth Third Bank and Textron Business Services, Inc., against the same defendant, Brooke
Holdings, Inc.1 Defendant Brooke Holdings, Inc. filed a counterclaim in that case as well, with
substantially the same allegations as those alleged in this case.
All plaintiffs in both cases filed motions to dismiss the counterclaim, and several of the
parties make substantially the same arguments.

On April 7, 2011, Judge Vratil issued a

Memorandum and Order denying Plaintiffs’ motion to dismiss the counterclaim, finding that
Defendant Brooke Holdings, Inc. has standing to sue, and Defendant adequately stated plausible
claims for tortious interference with contract and tortious interference with prospective business
advantage.2 Judge Vratil’s analysis is persuasive and equally applicable in this case; therefore, her
Memorandum and Order is adopted in full.
IT IS ACCORDINGLY ORDERED that Plaintiffs Bank of New York Mellon and
Unicredit Bank, AG’s Joint Motion to Dismiss the Counter Complaint (Doc. 18) is hereby DENIED.
IT IS SO ORDERED.
Dated this 18th day of May, 2011.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

1

Case No. 10-2294-KHV-GLR.

2

Doc. 43 in Case No. 10-2294.

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