McAnney Brothers File Motion to Dismiss BG Petroleum Trustee’s Complaint, Alleges Complaint Has “No Factual Allegations” & is “Speculative”
June 16, 2021, Western District of Pennsylvania – McAnney Brothers, Inc. ( “Defendants” or “McAnney Brothers”) recently filed a motion to dismiss Trustee Lisa M. Swope and Timco Ltd’s complaint in the bankruptcy case of BG Petroleum, LLC.
The Trustee’s complaint brings alleged charges against McAneny Brothers, Inc. in the four causes of action:
(i) Count V – violation of 18 U.S.C. 1962(a) having received income derived from a “pattern of racketeering” and investing income derived from such activity to “acquire any interest in, or to establish or operate, any enterprise that is engaged in or affects interstate commerce”;
(ii) Count VII – violation of 18 U.S.C. 1962 (c) having conducted a “pattern of racketeering” and participating in the conduct of the affairs of an enterprise that is “engaged in or affects interstate commerce”;
(iii) Count VIII – violation of 18 U.S.C. 1962(d) “conspiring to violate 1962(a) and 1962(c)”;
(iv) Count X – “Civil Conspiracy” through acting together and separately with other adversary defendants, with the “knowledge and encouragement” of one another, engaged in the overt acts constituting the ‘scheme’.
McAnney Brothers assert that the Trustee’s complaint fails to allege predicate acts and a sustained pattern of those acts relating to McAneny Brothers. Defendants further assert that even assuming “predicate acts” exist, there is no allegation of a pattern of such acts which relate to each other and those constitute or threaten long-term criminal activity.
Defendants argue that the Trustee’s complaint makes only seven (7) references to McAneny Brothers in total – one identifying statement, four statements of alleged fact (which provide information regarding alleged payments to McAneny Brothers resulting from real estate closings in which McAneny Brothers allegedly held a valid judgment lien against a non-debtor real estate owner), and two conclusory statements regarding alleged speculation on behalf of the Trustee. Defendants argue that the complaint provides “no factual allegations” against McAneny Brothers above the speculative level concerning grounds for the relief requested. Thus, according to the Defendants, the Trustee “failed to state a claim” against the Defendants and the Trustee’s complaint must be dismissed as a “matter of law”.
The case is Swope et al v. BG Petroleum et al, A.P. No 7:19-ap-07014 in the United States Bankruptcy Court for Western District of Pennsylvania.