USGen New England, Inc. v. Ocean State Power, a general partnership et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
IN RE: :
:
USGEN NEW ENGLAND, INC. : Case No. 03-30463PM
: Chapter 11
Reorganized Debtor :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
USGEN NEW ENGLAND, INC. :
:
Plaintiff :
vs. : Adversary No. 05-1958PM
:
OCEAN STATE POWER, :
a general partnership :
OCEAN STATE POWER II, :
a general partnership :
:
Defendants
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
MEMORANDUM OF DECISION
This adversary proceeding came before the court on December 15, 2005, for a pre-trial
conference. The court also considered the Defendant’s Motion to Dismiss Counts II and III of
the Complaint. For the reasons set out herein, the court will dismiss Counts II and III of the
Complaint.
This cause of action is based upon an agreement entitled, Equalization Agreement,
entered into between the Defendants and USGen New England, Inc., on June 28, 2002. The
Complaint asserts that 60 monthly payments of $31,234.76 were payable, that the conditions
precedent to payment were fulfilled, but that the Defendants failed to pay the monthly
Date signed December 21, 2005
Entered: December 21, 2005 Case 05-01958 Doc 11 Filed 12/21/05 Page 1 of 2

installments accruing on or after September, 2004. Count I is for breach of contract. Count II is
for specific performance of the contract, and Count III is stated in terms of a turnover complaint
pursuant to § 542 of the Bankruptcy Code. Defendants concede that Count I of the Complaint
states a cause of action. Counts II and III are both equitable remedies. See Mardirossian v. The
Paul Revere Insurance Company, 286 F.3d 733, 735-36 (CA4 2002), and In re Mushroom
Transportation Company, Inc., 382 F.3d 325, 336 (CA3 2004). There is no relief sought in
Counts II and III that would not be encompassed by a judgment in Plaintiff’s favor on Count I.
It is a cardinal principle of American law and a “basic doctrine of equity jurisprudence
that courts of equity should not act . . . when the moving party has an adequate remedy at law and
will not suffer irreputable injury if denied equitable relief.” O’Shea v. Littleton, 414 U.S. 488,
499 (1974). Put another way,
From what has been said already it must be apparent that the only excuse
for coming into equity was the fact that the legal remedy was entirely lacking or
was in some way imperfect. In short, the complainant could come into equity
only if he had nowhere else to go. He must make this perfectly plain when he
invoked the jurisdiction of the chancellor, for the first and most fundamental
principle of equity is that it cannot act if the remedy at law is plan, adequate and
complete.
W. P. Stafford, A Hand Book of Equity, pg 26 (1934). See also, Kasten Construction Co. v.
Maple Ridge Construction Co., 226 A.2d 341 (Md. 1967). There is no question that the legal
relief sought here is plain and adequate and sufficient to obtain the ends of justice as the
equitable remedy. Brummel v. Clifton Realty Co., Inc., 125 A. 905, 907 (Md. 1924).
An appropriate order will be entered.
cc:
Leslie J. Polt, Esq., 600 New Hampshire Avenue, N.W., Washington, DC 20037
Bonnie Glantz Fatell, Esq., One Logan Square, Philadelphia, PA 19103
Marc E. Richards, Esq., Chrysler Bldg, 405 Lexington Avenue, New York, NY 10174
Adam M. Spence, Esq., 105 West Chesapeake Avenue, #400, Towson, MD 21204
David W. Elrod, Esq., 500 N. Akard Street, #3000, Dallas, Texas 75201
United States Trustee, 6305 Ivy Lane, #600, Greenbelt MD 20770
End of Memorandum
Case 05-01958 Doc 11 Filed 12/21/05 Page 2 of 2