OLDCASTLE PRECAST, INC. v. RIDGEWOOD, INC. et al

Filing 24

MEMORANDUM AND ORDER THAT DEFENDANTS' MOTION FOR RECONSIDERATION (19) IS DENIED AS MOOT. IT IS FURTHER ORDERED THAT OLDCASTLE'S ALTER EGO AND PARTICIPATION CLAIMS (COUNT VIII OF THE AMENDED COMPLAINT) AGAINST BOTH THE VPMC PRINCIPALS AND MI CHAEL GAMBONE ARE DISMISSED WITH PREJDUICE; OLDCASTLE'S CROSS-MOTION FOR RECONSIDERATION (20) IS DENIED AS UNTIMELY; OLDCASTLE'S REQUEST TO AMEND ITS AMENDED COMPLAINT TO INCLUDE A BREACH OF CONTRACT CLAIM AGAINST VPMC IS DENIED; AND DEFEND ANTS SHALL HAVE FOURTEEN (14) DAYS FROM THE DATE OF THIS ORDER TO RENEW THEIR MOTION TO DISMISS PURSUANT TO FRCP 12(b)(7) SOLELY ON THE ISSUE OF "INDISPENSABLE PARTIES", IF THEY SO CHOOSE. IF DEFENDANTS FILE SUCH A MOTION, OLDCASTLE SHALL HAVE TEN (10) DAYS TO FILE A RESPONSE AND INCLUDE ANY ARGUMENT CONCERNING THIS ISSUE THAT WAS NOT INCLUDED IN ITS SUPPLEMENTAL BRIEF THAT WAS FILED ON 6/26/13. SIGNED BY HONORABLE ROBERT F. KELLY ON 7/26/13. 7/26/13 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
:
OLDCASTLE PRECAST, INC.,
:
:
Plaintiff,
:
CIVIL ACTION
:
v.
:
:
No. 12-6270
VPMC, LTD.,
:
JOSEPH R. GAMBONE, JR.,
:
MICHAEL A. GAMBONE,
:
AUDREY GAMBONE, co-executor of the :
ESTATE OF ANTHONY R. GAMBONE, :
SR, MICHAEL A. GAMBONE,
:
co-executor of the ESTATE OF
:
ANTHONY R. GAMBONE, SR.,
:
GEORGE J. FALCONERO, co-executor
:
of the ESTATE OF ANTHONY
:
GAMBONE, SR., SANDRA LEE
:
GAMBONE, co-executor of the ESTATE :
OF ANTHONY GAMBONE, SR., and
:
SHARON ANAPOSIKY, co-executor of
:
the ESTATE OF ANTHONY
:
GAMBONE, SR.,
:
:
Defendants. :
____________________________________:
ORDER

AND NOW, this 26th day of July, 2013, upon consideration of Defendants, VPMC, Ltd.,
Joseph R. Gambone, Jr., Michael A. Gambone, Audrey Gambone, George J. Falconero, Sandra
Lee Gambone, and Sharon Anaposiky’s (collectively, “Defendants”), Motion for Reconsideration
and Clarification of this Court’s May13, 2013 Memorandum and Order (Doc. No. 19), and
Plaintiff, Oldcastle Precast, Inc.’s (“Oldcastle”), Response, it is hereby ORDERED that said
Motion is DENIED as moot.
It is FURTHER ORDERED that:
1. Oldcastle’s alter ego and participation claims (Count VIII of the Amended Complaint)

against both the VPMC Principals and Michael Gambone are DISMISSED with
prejudice;
2. Oldcastle’s Cross-Motion for Reconsideration (Doc. No. 20) is DENIED as untimely;
3. Oldcastle’s request to amend its Amended Complaint to include a breach of
contract claim against VPMC is DENIED; and
4. Defendants shall have fourteen (14) days from the date of this Order to renew their
Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(7) solely on the
issue of “indispensable parties,” if they so choose.1 If Defendants file such a Motion,
Oldcastle shall have ten (10) days to file a Response and include any argument
concerning this issue that was not included in its Supplemental Brief that was filed on
June 26, 2013.

BY THE COURT:

/s/ Robert F. Kelly
ROBERT F. KELLY
SENIOR JUDGE

1

In our May 13, 2013 Order, we ordered Defendants to “supply Oldcastle with requested
discovery regarding the ‘ownership structure and financial organization’ of Ridgewood, GDC, GAC, and
VPMC, Ltd. that has not already been disclosed in Defendants’ answers to this Court’s questions
concerning the issue of indispensable parties.” (Doc. No. 18.) We also stated that after supplying such
discovery, Defendants could renew their Motion to Dismiss if they so chose. (Id.) Oldcastle has
informed this Court that it is satisfied with the discovery supplied by Defendants concerning the issue of
indispensable parties in accordance with this Order. Accordingly, we now give Defendants the option of
renewing their Motion on this issue.

2