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MARKLIN v. DREW PROPERTIES CORP.

August 10, 1967

George A. MARKLIN, Plaintiff,
v.
DREW PROPERTIES CORP. and Dinkler Management Corporation, Defendants



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION AND ORDER ON MOTIONS TO DISMISS COMPLAINT VACATE ATTACHMENT AND FOR SUMMARY JUDGMENT

 MOTLEY, District Judge.

 Defendant Drew Properties Corporation has moved to dismiss the complaint on the ground that it fails to state a claim against said defendant upon which relief can be granted. Rule 12(b)(6) Fed.R.Civ.P.

 The complaint alleges, in essence: 1) that plaintiff is the assignee for value and the owner and holder of claims against Drew Properties Corp. and the other defendant, Dinkler Management Corporation; 2) that the claims are for goods sold and delivered and services rendered to defendants; 3) that the goods and services were rendered to defendants at the special instance and request of defendants; 4) that the goods and services were accepted by defendants and paid for in part by defendants; 5) that the resulting total balance due from defendants amounts to the agreed price and reasonable value of $15,392.44; 6) that all the goods and services were sold to or rendered to defendants at the Diplomat Motel in St. Louis, Missouri; and 7) that plaintiff has demanded payment from defendants who have failed and refused to make payment.

 Jurisdiction is predicated upon diversity of citizenship, the complaint alleging that plaintiff is a citizen of Missouri while Drew Properties is a Delaware corporation and the other defendant is a New York corporation.

 There is no allegation in the complaint concerning ownership or management of the Diplomat Motel in St. Louis. The complaint simply alleges that, "* * * all of the above transactions represented sales of goods, wares and merchandise and the rendering of services to the defendants at the Diplomat Motel in St. Louis, Missouri."

 The motion to dismiss is supported by an affidavit of the vice-president of Drew Properties Corp. The affidavit alleges that Drew Properties Corp. does not "own, lease or manage the Diplomat Motel, and there is no allegation that it had anything to do with the alleged transactions". [Affidavit of Murray Gaines, 11/11/66 p. 2]. The affidavit goes on to allege as follows: "The Diplomat Hotel, during the period of time in suit, was leased by American Phoenix Corp., a Missouri Corporation, from Diplomat Associates, a New York partnership, and was operated and managed by Dinkler Management Corporation, a New York corporation. Defendant Drew Properties Corporation had and has no relationship with either Diplomat Associates or Dinkler Management Corporation as regards to the Diplomat Motel. Its only relationship with American Phoenix Corporation is that the latter is a wholly owned subsidiary of Drew Properties Corporation." (Id. p. 2)

 In ten opposing affidavits and a voluminous volume of exhibits, plaintiff disputes the foregoing allegations with respect to the ownership, operation and management of the Diplomat Motel. In three additional supporting affidavits, Drew Properties Corp. realleges non-ownership or other relationship which would make it liable for the goods sold or services rendered.

 Defendant has asked that its motion to dismiss be considered as a motion for summary judgment, Rule 12(b)(6), and Rule 56, Fed.R.Civ.P., and plaintiff has replied that he is entitled to summary judgment.

 However since the complaint sufficiently apprises defendants of the claim against them, it cannot be dismissed for failure to state a claim. This is especially true since the complaint alleges the goods were sold and services were rendered "at the special instance and request of defendants " and that all goods and services were "accepted by defendants" and paid for in part by defendants. See, Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Fed.R.Civ.P., Rules 8(a), 8(e) and 8(f).

 Since the foregoing allegations in the complaint are disputed by Drew Properties Corp., no summary judgment may be granted in favor of either party. Rule 56, Fed.R.Civ.P.

 Defendant Drew Properties has also moved to vacate the order of attachment on its property obtained by plaintiff on October 19, 1966, the day after the complaint was filed.

 Plaintiff had met the New York State statutory requirements for securing an attachment at the time of issuance of the order of attachment. New York CPLR § 6201; Rule 64 Fed.R.Civ.P. It appears from the complaint and affidavit that plaintiff had demanded and would be entitled to a money judgment, in whole or in part, against Drew Properties Corp. and that Drew Properties Corp. is a foreign corporation.

 Since the issuance of the order of attachment, by agreement of counsel, the attachment has been discharged and defendant has furnished a bond at a cost of $300. in ...


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