In re: DUKE AND KING ACQUISITION CORP., Debtors. (includes: Duke and King Missouri, LLC; Duke and King Missouri Holdings, Inc.; Duke and King Real Estate, LLC; DK Florida Holdings, Inc.);WILLIAM KAYE, not individually but solely in his capacity as Liquidating Trustee of the DUKE & KING ACQUISITION CORP. LIQUIDATING TRUST, Plaintiff, v. NATH COMPANIES, INC., NATH MINNESOTA FRANCHISE GROUP, INC., NATH ILLINOIS FRANCHISE GROUP, INC., NATH FLORIDA FRANCHISE GROUP, INC., NATH MIAMI FRANCHISE GROUP, INC., NATH MINNESOTA OPERATING GROUP, LLC, NATH ILLINOIS OPERATING GROUP, LLC, KINDERHOOK INDUSTRIES, LLC, KINDERHOOK CAPITAL SBIC FUND I, LP, KINDERHOOK CAPITAL FUND I, LP, ROBERT MICHALIK, LOUIS AURELIO, CHRISTIAN MICHALIK, PAUL G. CIFELLI, and RODGER HEAD, Defendants., 508 B.R. 107

Summary

HOLDINGS: [1]-In this 11 U.S.C.S. § 544 action, all claims the Liquidating Trustee (LT) put into suit against the holding company defendants, and the bulk of those against the equity firm defendants, failed at the pleading stage--some for want of a valid legal theory of recovery, the balance for an inexcusable failure to muster supporting facts to plead out a plausible basis to satisfy essential elements under law; [2]-There was no reason to give the LT an opportunity to replead on the failed counts and claims; [3]-As to the surviving counts against the equity firm defendants, the LT's claims for breach of duty under Delaware law remained, their substantive merits unaddressed and the claims still subject to a potential statute of limitations defense. The LT had to replead to factually support his late-coming invocation of Minnesota's statute of limitations via the borrowing statute.