Gans v. Gant

Filing 20

ORDER denying without prejudice 4 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Steven J. McAuliffe.(vln)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael Gans
v.

Civil No. 12-cv-279-SM

Amy Gant

ORDER
Re: Document No. 4, Motion to Dismiss
Among other difficulties, the pleadings combine to raise
sufficient doubt about defendant's entitlement to dismissal on
failure to state a claim grounds as to warrant denying the motion.
First, it is not clear what law the parties consider applicable
in this case, or why, although plaintiff seems to be conceding, in
his objection, that New Hampshire law applies.

The alleged loans

were not made here, the notes, to the extent they exist, were not
made here, and it does not appear that any breach occurred here.
Next, it is not clear whether either or both of the two alleged
earlier loans were reduced to writing or were evidenced by a
promissory note.

It is also unclear whether any of the earlier loans

might be subject to the statute of frauds (RSA 506: 1 and 2), whether
negotiable instruments are at issue, and whether any interest or
principal was paid during the first 10 years of the various alleged
obligations' commencement dates.

See Uniform Commercial Code,

Section 3-118.

The loan document(s) and note(s) upon which the suit

apparently rests have not been proffered, so it is difficult to assess
defendant's claims.

Accordingly, the motion is denied without

prejudice to refiling.

Date:

January 28, 2013

________________________
Steven J. McAuliffe
United States District Judge