Brothers Petroleum, LLC v. Wagners Chef, LLC et al

MOTION to Dismiss Revocatory Action

E.D. La.February 27, 2018

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BROTHERS PETROLEUM, LLC, * CIVIL ACTION * Plaintiff, * NO. 17-6713 * VERSUS * SECTION: “J” (1) * WAGNERS CHEF, LLC, ET AL., * JUDGE: CARL J. BARBIER * Defendants. * MAG. JUDGE * JANICE VAN MEERVELD **************************************** LNV CORPORATION’S MOTION TO DISMISS REVOCATORY ACTION (SEEKING A JUDGMENT ANNULLING, MULTIPLE INDEBTEDNESS MORTGAGE AND ASSIGNMENT OF LEASES AND RENTS) PURSUANT TO FED. R. CIV. P. 12(b)(1) AND FED. R. CIV. P. 12(b)(6) NOW INTO COURT, through undersigned counsel, comes Defendant, LNV Corporation (“LNV”), which files this Motion to Dismiss Revocatory Action (seeking a judgment annulling, among other things, the multiple indebtedness mortgage and assignment of leases and rents, the “FNBC Loans”), pursuant to Fed. R. Civ. P. 12(b)(1). As set forth in the accompanying Memorandum in Support, this Court lacks subject matter jurisdiction under the Federal Institutions Reform, Recovery, and Enforcement Act (“FIRREA”), 12 U.S.C. § 1821(j), to grant the rescissory relief requested by Brothers Petroleum as to the FNBC Loans. Even if this Court did have subject matter jurisdiction, Brothers Petroleum’s Amended Petition fails to state a cause of action for which relief can be granted with respect to the FNBC Loans (the only claims that concern the interests of LNV). Case 2:17-cv-06713-CJB-JVM Document 20 Filed 02/27/18 Page 1 of 3 WHEREFORE, Defendant, LNV Corporation, respectfully prays that this Court grant its Motion to Dismiss, and dismiss Brothers Petroleum, LLC’s claims against LNV Corporation for rescissory relief as to the FNBC Loans with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and in the alternative, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a cause of action upon which relief can be granted, and granting such other relief and further relief as is just and proper. Respectfully submitted, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. By: /s/ Benjamin W. Janke EDWARD H. ARNOLD III (#18767) BENJAMIN W. JANKE (#31796) LACEY E. ROCHESTER (#34733) 201 St. Charles Avenue, Suite 3600 New Orleans, Louisiana 70170 Telephone: (504) 566-5200 Facsimile: (504) 636-4000 bjanke@bakersonelson.com harnold@bakerdonelson.com lrochester@bakerdonelson.com COUNSEL FOR LNV CORPORATION Case 2:17-cv-06713-CJB-JVM Document 20 Filed 02/27/18 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on the 27 th day of February, 2018, this motion was served via the court’s electronic filing system on all counsel of record. /s/ Benjamin W. Janke Case 2:17-cv-06713-CJB-JVM Document 20 Filed 02/27/18 Page 3 of 3