NewStarcom Holdings Inc v. ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3096
_____________
In re: NEWSTARCOM HOLDINGS INC., et al.,
Debtors
GEORGE L. MILLER, as Chapter 7 Trustee of the Estate of NewStarcom
Holdings, Inc.,
Appellant
v.
MATCO ELECTRIC CORP, f/k/a Matco Associates, Inc.;
AMERICAN CAPITAL, LTD;
STEVEN PRICE; GORDON O'BRIEN;
MARK FIKSE; CRAIG MOORE;
MARK FREIJE; KENNETH ELLIOTT;
ANN M. BARBER
On Appeal from the United States District Court
for the District of Delaware
District Court No. 1-17-cv-00309
District Judge: The Honorable Maryellen Noreika
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 18, 2020
Before: SMITH, Chief Judge, CHAGARES, and PORTER, Circuit Judges
(Filed: July 16, 2020)
_____________________
OPINION*
_____________________
SMITH, Chief Judge.
Bankruptcy trustee George L. Miller challenges the dismissal of his
fraudulent transfer claims and the denial of reconsideration. Seeing no error, we
will affirm.
I1
Shortly after a complex transaction, NSC Holdings, Inc. (“NSC”) and three
associated entities filed for bankruptcy under Chapter 7.2 Their Trustee brought
this adversary proceeding against another entity implicated in the transaction,
Matco Electric Corp. (“New Matco”), and its owners (collectively, “New Matco
Defendants”),3 among others.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
Because we write solely for the parties, we summarize only the facts and
proceedings necessary to this disposition.
2
The other three entities were NSC’s sole shareholder, NewStarcom Holdings,
Inc., and NSC’s two defunct subsidiaries, Constar International, Inc. and Port City
Electric, Inc. Collectively, these four entities are referred to as the “Debtors” or
“NewStarcom.”
3
New Matco’s owners were Ronald Barber, Mark Freije, and Kenneth Elliott.
During these proceedings, Ronald Barber died and Ann M. Barber was substituted.
2
The Amended Complaint challenged “the prepetition transfer of
NewStarcom’s operating subsidiary Matco Electric Corporation [“Old Matco”] to
insiders for substantially less than its fair market value.” J.A. 159. The Trustee
labeled the transaction a fraudulent transfer voidable under federal bankruptcy law
and Delaware state law. See 11 U.S.C. §§ 544, 548; Del. Code Ann. tit. 6,
§§ 1304, 1305. He sought recovery of the transfer. See 11 U.S.C. § 550.
The Bankruptcy Court dismissed the four fraudulent transfer–related counts
for failure to state a claim. See Fed. R. Bankr. P. 7012(b); Fed. R. Civ. P. 12(b)(6).
Years later, the Trustee sought reconsideration, but the Bankruptcy Court denied
his motion. In re NewStarcom Holdings, Inc., 547 B.R. 106, 132–35 (Bankr. D.
Del. 2016). On appeal, the District Court affirmed both orders.4 608 B.R. 614 (D.
Del. 2019).
4
“Congress authorized bankruptcy courts to exercise jurisdiction based on referral
from the district court.” In re Healthcare Real Estate Partners, LLC, 941 F.3d 64,
71 (3d Cir. 2019) (citing 28 U.S.C. § 157(a)); see also § 1334(b) (district court
jurisdiction not exclusive). Due to the District Court’s standing referral in
bankruptcy matters, the Bankruptcy Court had jurisdiction in this case over “core
proceedings,” including the Trustee’s “proceedings to determine, avoid, or recover
fraudulent conveyances.” § 157(b)(1), (b)(2)(H); see also In re Healthcare Real
Estate Partners, LLC, 941 F.3d at 70; U.S. Dist. Ct. for Dist. of Delaware, Am.
Standing Order of Reference (Feb. 29, 2012). The District Court had appellate
jurisdiction pursuant to § 158(a)(1).
3
II5
“The purpose of fraudulent conveyance law is to make available to creditors
those assets of the debtor that are rightfully a part of the bankruptcy estate, even if
they have been transferred away.” Buncher Co. v. Official Comm. of Unsecured
Creditors of GenFarm Ltd. P’ship IV, 229 F.3d 245, 250 (3d Cir. 2000).
We consider whether the Trustee pled “enough facts” to make his fraudulent
transfer claims “plausible on [their] face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Our traditional three steps entail (1) “not[ing] the elements of a
claim,” (2) “identify[ing] allegations that are conclusory and therefore not assumed
to be true,” and (3) “accepting the factual allegations as true, we will view them
and reasonable inferences drawn from them in the light most favorable to [the
Trustee] to decide whether ‘they plausibly give rise to an entitlement to relief.’”
Sweda v. Univ. of Pa., 923 F.3d 320, 326 (3d Cir. 2019) (quoting Connelly v. Lane
Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)), cert. denied, No. 19-784 (Mar.
30, 2020).
We home in on one element underpinning all of the Trustee’s fraudulent
5
We exercise jurisdiction under 28 U.S.C. §§ 158(d)(1) and 1291. Our review of
the District Court’s appellate ruling is de novo. In re Mintze, 434 F.3d 222, 227
(3d Cir. 2006). We take the same approach to the Bankruptcy Court’s dismissal of
claims. See In re Majestic Star Casino, LLC, 716 F.3d 736, 747 (3d Cir. 2013).
4
transfer claims: the role of a debtor. Under federal bankruptcy law, a trustee “may
avoid any transfer of property of the debtor” or “an interest of the debtor in
property” in certain circumstances.6 11 U.S.C. §§ 544(a), 548(a)(1). The
analogous provisions of the Delaware Uniform Fraudulent Transfer Act
(“DUFTA”) are similarly confined to “[a] transfer made . . . by a debtor.” Del.
Code Ann. tit. 6, §§ 1304(a), 1305(a); see also § 1305(b).
Fraudulent transfer liability under DUFTA does not attach to a transfer by a
non-debtor. Crystallex Int’l Corp. v. Petróleos de Venez., S.A., 879 F.3d 79, 81,
84–86 (3d Cir. 2018) (predicting Delaware Supreme Court’s view in diversity
case). By extension, federal bankruptcy law does not impose liability for transfers
of non-debtor property. See id. at 86 (deeming federal § 548 to be “nearly
identical” with Delaware provisions including §§ 1304–05, and indicating
“Delaware courts have interpreted and applied them uniformly”).
The Trustee ostensibly alleged a transfer of property of debtors, by debtors.
For example, the Amended Complaint states that “[t]he Transfer was a transfer of
property, or of an interest in property, of the Debtors,” and that “[t]he Debtors
made the Transfer to and/or for the benefit of the New Matco Defendants.” J.A.
6
Only if a trustee avoids a fraudulent transfer under federal bankruptcy provisions
such as §§ 544 and 548 may he pursue recovery under § 550. Accordingly, the
plausibility of the Trustee’s § 550 claim depends on the “debtor” element of his
§§ 544 and 548 claims.
5
181. These allegations virtually parrot the debtor element of federal bankruptcy
and DUFTA provisions. “[M]ere conclusory statements” like these are not entitled
to the presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Peeling away the conclusions, we look for well-pleaded factual allegations.
The Amended Complaint defines the “Transfer” at issue as the “transfer of Old
Matco to the New Matco Defendants.” J.A. 180. The Trustee asserted that “New
Matco, owned by Defendants Barber, Elliott, and Freije, purchased Old Matco”
through an Asset Purchase Agreement and Membership Interest Purchase
Agreement. J.A. 172. These agreements are both attached to the Amended
Complaint. They show that Old Matco was the transferor in those portions of the
transaction.7 And Old Matco is a non-debtor.
Evidently another part of the transaction involved a transfer of the property
of a debtor, by a debtor. The record shows that debtor NSC owned 100% of the
shares of Old Matco and conveyed them to a third party using a Stock Purchase
Agreement. But the Trustee failed to plead that part of the transaction.
The Trustee’s non-conclusory allegations fail to plausibly establish his
7
See generally Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all purposes.”); ALA, Inc. v.
CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1994) (“Where there is a disparity
between a written instrument annexed to a pleading and an allegation in the
pleading based thereon, the written instrument will control.”).
6
entitlement to relief under the fraudulent transfer provisions of federal bankruptcy
law or DUFTA. So the Bankruptcy Court rightly dismissed the fraudulent transfer
claims.8
III
The District Court correctly affirmed the Bankruptcy Court’s dismissal of
the fraudulent transfer claims. Accordingly, we also will affirm.
8
Although we need not reach the motion for reconsideration, we are unpersuaded
that the Bankruptcy Court abused its discretion by denying that motion. See In re
Energy Future Holdings Corp., 904 F.3d 298, 310–12 (3d Cir. 2018), cert. denied
sub nom., NextEra Energy, Inc. v. Elliott Assocs., L.P., 139 S. Ct. 1620 (2019)
(Mem.).
7