KUSHNIR et al v. AVIVA LIFE & ANNUITY COMPANY

Filing 51

MEMORANDUM AND ORDER THAT DEFENDANT AVIVA LIFE AND ANNUITY COMPANYS PARTIAL MOTION TO DISMISS (DOC. 46) IS GRANTED WITHOUT PREJUDICE FOR FAILURE TO COMPLY WITH THE PARTICULARITY REQUIREMENT OF FRCP 9(b) AS OUTLINED HEREIN. DEFENDANTS MOTION IS GRNATE D AS COUNT III OF THE AMENDED COMPLAINT AND COUNT III OF THE AMENDED COMPLAINT IS DISMISSED WITH PREJUDICE. THIS DISMISSAL DOES NO AFFECT PLAINTIFFS REQUEST FOR RELIEF IN THE FORM OF EQUITABLE RESCISSION IN COUNTS I AND II. DEFENDANTS MOTION IS DENIED IN ALL OTHER RESPECTS. FURHTER ORDERED THAT A SCHEDULE CONFERENCE WILL BE CONDUCTED IN DUE COURSE.. SIGNED BY HONORABLE JAN E. DUBOIS ON 8/21/13. 8/22/13 ENTERED AND COPIES MAILED TO UNREPS, EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VLADIMIR KUSHNIR, Individually and as
Trustee of the V-4 Management LLC Defined
Defined Benefit Pension Plan & Trust, and
V-4 MANAGEMENT, LLC,
Plaintiffs,

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v.
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AVIVA LIFE & ANNUITY COMPANY,
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Defendant/Third Party Plaintiff, :
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v.
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JEFFREY CUNNING; ROGER FULLER;
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SCOTT RIDGE; and T.J AGRESTI,
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Third Party Defendants.
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CIVIL ACTION
NO. 11-7701

ORDER
AND NOW, this 21st day of August, 2013, upon consideration of Defendant Aviva Life
and Annuity Company’s Partial Motion to Dismiss (Document No. 46, filed June 14, 2013),
Plaintiffs’ Brief in Opposition to Defendant’s Motion to Dismiss (Document No. 47, filed August
1, 2013), and Defendant Aviva Life and Annuity Company’s Reply in Support of its Partial
Motion to Dismiss (Document No. 49, filed August 8, 2013), for the reasons set forth in the
Memorandum dated August 21, 2013, IT IS ORDERED as follows:
1.

Defendant’s motion is GRANTED WITHOUT PREJUDICE for failure to

comply with the particularity requirement of Fed. R. Civ. P. 9(b) as to those parts of Counts I and II
of the Amended Complaint which address the legality and effectiveness of the use of the Policy
identified as Indianapolis Life Policy No. 000100098974 to fund the 26 U.S.C. § 412(i) plan.
Plaintiffs are granted leave to file a second amended complaint consistent with the Memorandum
dated August 21, 2013, on or before September 4, 2013 if warranted by the facts.

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2.

Defendant’s motion is GRANTED as Count III of the Amended Complaint, and

Count III of the Amended Complaint is DISMISSED WITH PREJUDICE. This dismissal does
not affect plaintiffs’ request for relief in the form of equitable rescission in Counts I and II.
3.

Defendant’s motion is DENIED in all other respects.

IT IS FURTHER ORDERED that a scheduling conference will be conducted in due
course.

BY THE COURT:
/s/ Hon. Jan E. DuBois
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DuBOIS, JAN E., J.

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