05/24/2011 – Defendant’s Motion to Dismiss filed in the AbitibiBowater Inc. Adversary Proceedings by Intellitrans, LLC before Judge Carey in the District of Delaware. This is the third motion to dismiss filed in Abitibibowater, Inc. bankruptcy preference adversary proceedings on based on Fed R. Civ. P. 12(b)(6) . While not plowing any new ground as to Iqbal/Twombly, this defendant also moves the Court to dismiss the complaint with prejudice pursuant to Fed R. Civ. P. 41(b) on the grounds that the plaintiff has failed to prosecute the preference action. Chances of getting a dismissal on these grounds are slim, but the plaintiff effectively uses the argument to frame the 12(b)(6) basis for the motion to dismiss. Defendant’s point – it tried to get the information required to be included in the complaint, and the plaintiff refused to provide it.

The basis for the failure to prosecute argument is summarized by the defendant as follows:

Intellitrans has demonstrated a willingness to work with the Plaintiff in order to resolve any actionable grievances the Plaintiff may have against Intellitrans, but the Plaintiff has refused to provide any documentation that would assist the Defendant in identifying the specifics necessary to evaluate Plaintiffs claims — specifics that should have been included in the Complaint. Based upon the Plaintiffs refusal to cooperate with Intellitrans to provide the information necessary to evaluate the Plaintiffs claims, Intellitrans is simply unable to properly answer the Complaint. Therefore, Intellitrans also moves this Court to dismiss the Plaintiffs Complaint with prejudice pursuant to Federal Rule 41(b).

Defendant’s argument for dismissal under Fed R. Civ. P. 41(b) cites no case authority for application of the rule to these circumstances.  However, the defendant does allege that the plaintiff intentionally refused to comply the Initial Disclosure requirements of Fed R. Civ. P. 26(a) :

32. Intellitrans has contacted the Plaintiff, sought documentation to prove their prima facie case, and was instructed directly that Plaintiff would not provide those documents. According to Federal Rule 26(a)(1)(A)(ii), a party must, without awaiting a discovery request, provide to the other parties “a copy – or a description by category and location – or all documents . . . that the disclosing party has in its possession, custody, or control and may use to support its claims” Not only are these documents required to be turned over, Intellitrans has requested the documents and its requests were refused.

33. The only logical conclusion for Plaintiff’s failure to provide this documentation is that Plaintiff can not adequately make a case against Intellitrans, and therefore, is failing to prosecute its case against Intellitrans, thereby warranting this Court to dismiss this Complaint with prejudice.