Free Order on Motion to Dismiss - District Court of Delaware - Delaware


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Case 1 :04-cv—OO407-GIVIS Document 28 Filed O4/O3/2006 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
In re: )
)
Broadband Office, Inc. ) Bankruptcy Case No. 0l -1720
)
Debtor. )

)
Broadband Office, Inc., )
)
Plaintiff )
)
v. )
)
Technology Credit Corp. )
d/b/a Extreme Networks Credit Corp., ) C.A. No. 04-407 (GMS)
)
Extreme Networks, Inc., and )
)
Key Equipment Finance, Inc. )
f/k/a Key Corporate Capital, Inc. )
f/k/a Leastec Corp., )
)
Defendants. )

ORDER
WHEREAS on December 23, 2003 PlaintiffBroadband Office, Inc. ("Broadband") filed the
above-captioned action for avoidance and recovery, pursuant to l l U.S.C. §§ 544, 547, 548,and 550;
WHEREAS the only named defendant at that time was Technology Credit Corp. ("TCC");
WHEREAS although the statute of limitations appears to have expired before the action was
filed, Broadband and TCC allegedly entered into an agreement to toll and extend the statute of
limitations until December 3l, 2003 (D.I. 9 ‘ll 19);
WHEREAS on December I, 2005, the court granted Broadband leave to amend its complaint
to add Extreme Networks, Inc. ("Extreme Networks") and Key Equipment Finance, Inc. ("Key
Equipment") as defendants;
WHEREAS Key Equipment, a non-party to the tolling agreement, filed a motion to dismiss

Case 1:04-cv—OO407-Gl\/IS Document 28 Filed O4/O3/2006 Page 2 of 2
based on the expiration ofthe statute of limitations;
WHEREAS the amended complaint alleges that Key Equipment’s predecessor, Leasetec
Corp., was allowed to act in the name of TCC in its dealings with Broadband (D.I. 91] 7);
WHEREAS the couit holds that this is sufficient under the liberal pleading requirements of
the Federal Rules of Civil Procedure to constitute an allegation that Key Equipment is bound by the
tolling agreement; r
WHEREAS the court further holds that, given the complex relationship among the
defendants and their predecessors/aliases, it is plausible that Broadband will be able to prove the
requirements ofrelation back in Rule l5(c) (eg., Broadband’s failure to name Key Equipment was
a mistake);
WHEREAS Key Equipment also argues that the recovery count is not ripe because there has
not been an adjudication ofthe avoidance counts, which is a necessary condition to the viability of
Broadband’s recovery count;
WHEREAS the court holds that the recovery count is ripe because, to hold otherwise, would
be akin to disallowing damages allegations in any complaint until the underlying liability has been
adjudicated.
IT IS HEREBY ORDERED THAT:
Key Equipment’s motion to dismiss (D.l. 15) be DENIED.
Dated: April 3 , 2006 E » Z __; l
UNIT S STAT S DISTRICT JUDGE
F l L is. DME
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Case 1:04-cv-00407-GMS

Document 28

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Case 1:04-cv-00407-GMS

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