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PAB Muffler Corp. v. London Taxis North America Inc.

September 6, 2007

PAB MUFFLER CORP., PLAINTIFF,
v.
LONDON TAXIS NORTH AMERICA INC., LTNA MERGER CORP. AND LONDON TAXIS NORTH AMERICA HOLDING INC., DEFENDANTS.



The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.

MEMORANDUM and ORDER*fn1

INTRODUCTION

Plaintiff PAB Muffler Corp. ("PAB") filed this action alleging that it had purchased shares of stock from defendants London Taxis North America, Inc., LTNA Merger Corp., and London Taxis North America Holding, Inc., (together "London Taxis") by issuing a Subscriber Agreement and paying the $100,000 purchase price for the stock. PAB further alleges that, despite its obligation to do so, London Taxis failed to issue stock to it and instead issued stock certificates in the name of Jeffrey Gellman, PAB's President. PAB asserts that when London Taxis failed to issue stock to it, PAB unilaterally rescinded the Subscription Agreement and now seeks the return of the $100,000 purchase price.

Pending before the Court is London Taxis' Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"). PAB opposes the Motion and, by its opposition only, purports to seek judgment on the pleadings pursuant to the Federal Rules of Civil Procedure("FRCvP") 12(c) or summary judgment pursuant to FRCvP 56. As PAB has not filed motions*fn2 seeking such relief, the Court will not consider its positions in support of such purported motions but only in opposition to London Taxis' Motion to Dismiss. This dispute is controlled by Massachusetts law, which governs the Subscription Agreement.

DISCUSSION

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the FRCvP, the Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). The motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "While a complaint attacked by a [FRCvP] 12(b)(6 ) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, -- U.S. -- , 127 S.Ct. 1955, 1964-65 (2007) (internal citation and quotation omitted). Accordingly, the Court is not concerned with whether plaintiff may ultimately succeed on his claims but must "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998).

With certain limited exceptions, the record on a motion to dismiss is limited to the complaint itself. See Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). One such exception is that the Court may consider, on a motion to dismiss, items attached to the complaint, incorporated therein by reference, or which were relied upon in the drafting of the complaint. See e.g., Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991).

PAB alleges that it entered into a Subscription Agreement with London

Taxis on July 6, 2004. The Subscription Agreement, while not attached to the Complaint, is incorporated into the Complaint by reference and the Court may consider its contents on this Motion. By that Agreement, PAB agreed to purchase 2,356 shares of Series A Preferred Stock of London Taxis North America, Inc., in exchange for a purchase price of $100,000. PAB tendered the purchase price to London Taxis on or about July 14, 2004. London Taxis North America, Inc., issued stock certificates representing the sold shares on November 15, 2004. The certificates were issued in the name of Jeffrey Gellman, PAB's President.

Thereafter, due to a merger, the 2,356 shares of London Taxis North America, Inc. were cancelled and were reissued as 2,356 shares of Series A Preferred Stock of London Taxis North America Holding Company, Inc. on February 18, 2005. London Taxis reissued certificates representing the new shares and, again, such were issued in the name of PAB's President, Jeffrey Gellman.

London Taxis seeks to dismiss the Complaint on a number of grounds. London Taxis contends that the Complaint fails to adequately allege a cause of action for breach of contract because it fails to identify the specific provision of the Subscription Agreement allegedly breached and fails to specify the manner in which such provision was breached.

The Complaint alleges that PAB entered into an agreement to purchase stock, that it tendered the purchase price as required and that London Taxis failed to issue stock to PAB. Such allegations sufficiently comprise a "short and plain statement of the claim" as required by FRCvP 8. See Greater New York Auto Dealers Ass'n v. Environmental Systems Testing, Inc., 211 F.R.D. 71, 77 (E.D.N.Y. 2002); see also Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996) ("[w]hile a prudent plaintiff complaining of a breach of contract should allege what representations or warranties were breached, it is not clear that notice pleading requires such specificity).

As a threshold matter, this Court will address PAB's contention that this dispute is governed by the Uniform Commercial Code ("U.C.C.") as incorporated by Massachusetts General Law Chapter 106. PAB argues that the London Taxis stock is considered "goods" within the U.C.C. and that London Taxis' failure to deliver the stock certificates in the name of PAB entitles PAB to rescind the agreement pursuant to U.C.C. §2-711.

The U.C.C., however, makes clear that the stocks at issue in the present case fall outside of its coverage. Article 8 of the U.C.C. applies only to a security which is publicly traded or expressly provides that it is governed by the U.C.C. U.C.C. §8-102(a)(15)(iii); M.G.L. 106 §8-102(a)(15)(iii). The stocks at issue here are not publicly traded and do not expressly provide for U.C.C. control. In addition, contrary to PAB's repeated contentions, the stocks do not fall within Article 2 of the U.C.C., which defines "goods" as "all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than . . . investment securities." U.C.C. §2-105(1) (emphasis added); ...


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