October 1, 2021, Western District of Texas – Eric B. Terry, Chapter 7 Trustee (“Trustee”) in Bankruptcy Case No. 20-5057 for Debtor Salubrio, LLC (“Salubrio”) moves to dismiss Plaintiff-Debtor Douglas Kevin Smith’s complaint with prejudice for failure to state a claim upon which relief can be granted according to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Trustee moves the Court to treat the motion as one for summary judgment under Rule 561 of the Federal Rules of Civil Procedure, in the event the Court is not inclined to dismiss the complaint and grant judgment in Trustee’s favor.
In his Original Complaint, Plaintiff sets forth seven (7) counts against Salubrio including breach of contract; gross negligence; malicious prosecution; promissory estoppel. The Trustee Eric alleges that Plaintiff’s lengthy – yet factually bare-bones allegations do not satisfy the pleading requirements of Twombly and Iqbal and therefore fail to state a claim upon which relief can be granted. In addition, the Trustee also alleges that Salubrio is not a proper party to the proceeding and even if Plaintiff attempts to “cure” his defective pleading, there is no set of facts that would cause Salubrio or its Trustee to be liable to the Plaintiff.
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