Aqualine Associates Limited Partnership v. GENESIS HEALTH VENTURES, INCORPORATED, a Pennsylvania Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 AQUALINE ASSOCIATES LIMITED
PARTNERSHIP,
Plaintiff-Appellant,
v.
GENESIS HEALTH VENTURES,
INCORPORATED, a Pennsylvania
Corporation; KEVIN BRESLIN, No. 03-1859  individually and in his corporate
capacity; ROBERT SCHWEIZER,
individually and in his corporate
capacity; IRA C. GUBERNICK,
individually and in his corporate
capacity; and other NAMED AND
UNNAMED CO-CONSPIRATORS,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge;
Marvin J. Garbis, Senior District Judge.
(CA-02-2625-RDB)
Argued: February 27, 2004
Decided: May 3, 2004
Before NIEMEYER and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.

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COUNSEL
ARGUED: Robert Arlington Yingst, Washington, D.C., for Appel-
lant. Kevin Anthony Dunne, OBER, KALER, GRIMES &
SHRIVER, P.C., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Aqualine Associates Limited Partnership appeals the Rule 12(b)(6)
dismissal of its amended complaint. We affirm.
In August 2002, Aqualine filed this lawsuit against Genesis Health
Ventures, Inc. asserting a claim for tortious interference with eco-
nomic relations. Aqualine based its complaint on Genesis’ alleged
interference with Aqualine’s attempt to sell a nursing home in 1996,
and Aqualine alleged that this interference continued from 1996 to the
date the complaint was filed. Genesis moved for dismissal of the com-
plaint arguing that it had filed for bankruptcy protection in June 2000
and that its plan of reorganization (which was confirmed by the Bank-
ruptcy Court for the District of Delaware in September 2001) dis-
charged all pre-bankruptcy claims against it.
At a November 2002 hearing, the district court denied Genesis’
motion to dismiss. Genesis, again relying on the bankruptcy dis-
charge, then orally moved for dismissal of all of Aqualine’s claims for
alleged torts that were committed prior to the bankruptcy discharge.
The district court stayed the case with respect to Aqualine’s claims
based on torts committed prior to the bankruptcy discharge, and it
permitted the parties to conduct discovery on Aqualine’s claims based
on torts committed after the bankruptcy discharge.1 In December
1The scheduled discovery period ran through the end of March 2003,
and it appears that Aqualine initiated only limited discovery during this
period.
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2002, Aqualine moved for leave to file an amended complaint, and it
submitted a proposed amended complaint that alleged claims for tor-
tious interference with economic relations, conspiracy, and fraud and
misrepresentation.
In an order dated April 8, 2003, the district court ruled on the oral
motion to dismiss and the motion for leave to file the proposed
amended complaint. Addressing first the motion to dismiss, the dis-
trict court stated that although Aqualine had presented several theo-
ries as to the purported ineffectiveness of the bankruptcy discharge
(e.g., inadequate bankruptcy notice), the plan of reorganization
approved by the bankruptcy court is entitled to "res judicata effect"
and "effectively precluded the pursuit . . . of any Pre-discharge
claims." (J.A. 170). The district court noted that to the extent that the
validity of the bankruptcy court action could be challenged, Aqualine
should proceed in the bankruptcy court. The district court further
stated that it would abstain from deciding any issue concerning the
effectiveness of the bankruptcy discharge in order to allow the bank-
ruptcy court to resolve such issue. Based on this reasoning, the district
court dismissed Aqualine’s pre-discharge claims "without prejudice to
[Aqualine’s] proceeding, as may be appropriate," in the bankruptcy
court in Delaware. (J.A. 171). Finding that the complaint did not con-
tain any "clearly discernible Post-discharge claims," the district court
dismissed the complaint. (J.A. 171).
The district court also denied Aqualine’s motion for leave to file
the proposed amended complaint, but it did so without prejudice in
order to give Aqualine the opportunity "to file an Amended Com-
plaint that clearly and adequately presents any Post discharge claims."
(J.A. 172). The district court instructed Aqualine that an amended
complaint must comply with the requirement of Fed. R. Civ. P. 9(b)
that fraud claims must "be stated with particularity" and must "specify
the time (which must post date June 22, 2000), place, contents and
maker of any statement upon which a fraud/misrepresentation claim
is based." (J.A. 172).2 The district court also stated that with respect
2The district court interpreted the bankruptcy discharge to relate to
causes of action that accrued prior to June 22, 2000, when Genesis filed
the petition.
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to other claims Aqualine "must provide specific allegations establish-
ing a post June 22, 2000, accrual of any cause of action." (J.A. 172).
Aqualine thereafter filed an amended complaint asserting claims
for tortious interference with economic relations, conspiracy, and
fraud and misrepresentation.3 Aqualine alleged in support of its
causes of action that Genesis had begun a "course of conduct" in 1996
that continued to the date the amended complaint was filed. (J.A. 176,
182). Genesis moved for dismissal of the amended complaint on the
ground that Aqualine had failed to state sufficient facts upon which
to base a post-discharge claim.
In an order dated June 16, 2003, the district court granted the
motion and dismissed the amended complaint with prejudice. The dis-
trict court stated that "Aqualine can only survive [the] motion if it has
alleged any cognizable cause of action that accrued after September
21, 2001" (the date of the bankruptcy discharge), and it found "be-
yond doubt that Aqualine can prove no set of facts that occurred post-
bankruptcy discharge to support its claims." (J.A. 329). The district
court noted with respect to the tortious interference claim that the
amended complaint is "completely devoid of any reference to a date
for any of the acts that allegedly constitute tortious interference," and
it found Aqualine’s "overbroad and sweeping allegations" about Gen-
esis’ continuing "course of conduct" to be insufficient to satisfy the
specificity required by the April 8 order. (J.A. 330). The district court
also rejected as irrelevant Aqualine’s contention that Genesis’ alleged
conduct did not cause any injury until January 31, 2002 (when the
nursing home was sold). As to the fraud and misrepresentation claim,
the district court concluded that the amended complaint "lacks the
required particularity to survive [the] motion to dismiss" because it is
"devoid of any reference to any false statements made, or dates upon
which any of the alleged fraudulent acts occurred," and it therefore
fails to comply with the "specific warning" about compliance with
Rule 9(b) and the need to allege post-discharge acts. (J.A. 334). The
district court also concluded that the failure of the tortious interfer-
ence and fraud/misrepresentation claims necessitated the failure of the
3For the first time, Aqualine named (in addition to Genesis) several
individuals as defendants. However, Aqualine never effected service on
those individuals.
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conspiracy claim because the conspiracy claim was (under Maryland
law) dependent on those claims. The district court entered a second
order on June 20, 2003, clarifying that the amended complaint was
dismissed with prejudice as to all defendants.
On appeal, Aqualine primarily challenges the district court’s reli-
ance on the bankruptcy court proceeding as the basis underlying much
of its rulings. Aqualine argues that its claims are not foreclosed by the
bankruptcy proceeding and that it has properly stated causes of action
in its amended complaint. Aqualine also argues that it was denied a
meaningful opportunity to conduct discovery. Having carefully
reviewed the record and considered the arguments of counsel, we find
Aqualine’s claims of error to be without merit. We therefore affirm
on the reasoning of the district court as set forth in the orders dis-
cussed herein. We note that neither this opinion nor the district court’s
orders foreclose Aqualine from attempting to seek relief in the bank-
ruptcy court for the pursuit of any pre-discharge claims because the
district court dismissed those claims without prejudice in the April 8,
2003, order.4 We also note that, in the event the bankruptcy court
determines that Aqualine’s pre-discharge claims are not dischargeable
under Genesis’ reorganization plan, neither this opinion nor the dis-
trict court orders foreclose Aqualine from refiling such claims in the
district court, to the extent such claims were not dismissed on the
ground of failure to comply with Rule 9(b)’s particularity require-
ment.
AFFIRMED
4In the June 16 order, the district court noted: "While [Aqualine] can
seek recourse in the United States Bankruptcy Court for the District of
Delaware, it cannot seek to have this Court invade the jurisdiction of that
court." (J.A. 332).
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