VeraSun Energy Corporation Bankruptcy: Verasun Energy Corporation, et al v. Reinauer Transportation – Plaintiff’s Response in Opposition to Motion to Dismiss

Date: June 3, 2011 Author: burbageweddell

The heightened preference complaint pleading standards based on Iqbal/Twombly as interepreted in Delaware certainly have increased the numbers of motions to dismiss preference claims. However, a steamline procedures motion can render motions to dismiss based on 12(b)(6) a frustrating, costly and ineffective “catch me if you can” exercise.

In this proceeding, the Defendant had moved to dismiss an amended complaint on grounds that the Plaintiff still had not alleged facts meeting the Iqbal/Twombly pleading standards. The Plaintiff responds in a mere 5 paragraphs:

Plaintiffs Verasun Energy Corporation, et al. for their response to Defendant Reinauer Transportation’s partial motion to dismiss the First Amended Complaint (the “Motion”), hereby respectfully state as follows:

1.   Defendant Reinauer Transportation seeks to partially dismiss Plaintiffs’ First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the First Amended Complaint does not contain sufficient factual allegations to support some of the claims.

2.   Although Plaintiffs believe the First Amended Complaint satisfies all applicable pleading standards, in an effort to conserve the resources of the parties and the Court, Plaintiffs have served and filed a Second Amended Complaint (the “Second Amended Complaint”), which clarifies the Plaintiffs’ claims.

3.   The Second Amended Complaint is being timely served and filed pursuant to Rule 15 of the Federal Rules of Civil Procedure and in accordance with the Court’s Order dated May 24, 2011 (Adv. Dkt. No. 23).

4.   Further, pursuant to the Order Establishing Procedures Governing Associated Adversary Proceedings Brought Pursuant to 11 U.S.C. Sections 547-550 [Adv. Dkt. No. 6; entered 12/22/10] (the “Procedures Order”), “any Defendant that files a motion to dismiss based upon the alleged technical insufficiency of the complaint in an Avoidance Action shall be deemed to automatically consent to allowing the Reorganized Debtors to amend the complaint without prejudice to said Defendant’s later assertion of any defenses to the amended complaint…” Procedures Order at 4. (G).

4.   A true and correct copy of the Second Amended Complaint is annexed hereto as Exhibit A.

5.   At a minimum and to the extent the Court believes the Second Amended Complaint is still deficient, the Plaintiffs request that dismissal be without prejudice to further re-plead.