![]() Hodges and Musolino filed a motion to dismiss all three counterclaims for the reasons set forth below. § 1332.Īlong with his answer to the complaint, Buzzeo filed three counterclaims: one against Hodges, as trustee, for breach of contract under a Stock Purchase Agreement a second counterclaim against Frank Musolino for tortious interference with contract and/or prospective economic advantage and a third against Hodges, as trustee, and Musolino for shareholder oppression or breach of fiduciary duty. ![]() Buzzeo sought removal of the case to this Court pursuant to 28 U.S.C. Plaintiff Geoffrey Todd Hodges, as trustee, originally filed a three-count complaint for fraud in the inducement, violation of Federal Securities Act, and breach of contractual representations and warranties against Eugene Buzzeo in the Circuit Court for Hillsborough County, Florida. stating, "A copy of any written instrument which is an exhibit to a pleading is part thereof for all purposes." Miller, Federal Practice and Procedure § 1357, at 299 (1990). In determining whether to grant a Rule 12(b) (6) motion, the Court may also consider the allegations in the complaint, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint. 1989) (stating that a court, when ruling on a 12(b) (6) motion to dismiss, should view the plaintiff's allegations as true and not inquire into the truth or sincerity of those allegations, a matter better handled on a motion for summary judgment). Board of Education of Escambia County, Alabama, 880 F.2d 305, 314-15 (11th Cir. The Court must also accept the plaintiff's well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff. Rule 12(b) (6) of the Federal Rules of Civil Procedure provides that this Court must dismiss a plaintiff's complaint for failure *1281 to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. ![]() Thereafter, Defendant/Counter-Plaintiff Eugene Buzzeo filed a responsive memorandum. This cause comes before the Court on Plaintiff/Counter-Defendants' Motion to Dismiss three counterclaims, pursuant to Rule 12(b) (6) of the Fed.R.Civ.P., for failure to state a claim upon which relief can be granted. ORDER GRANTING PLAINTIFF/COUNTER-DEFENDANTS' MOTION TO DISMISS Greer, Klett, Rooney, Lieber & Schorling, Pittsburgh, PA, for counter-claimant. DeLeo, Buchanan Ingersoll, P.C., for Defendant.Īmy J. Varner, III, Holland & Knight, LLP, Tampa, FL, for Plaintiff. Irrevocable Trust u/t/d 10/6/97, and as Trustee of the Ashley Marie Musolino Irrevocable Trust u/t/d 10/6/97, and Frank Musolino, Counter-Defendants. Geoffrey Todd Hodges, as Trustee of the Frank Musolino, Jr. Irrevocable Trust u/t/d 10/6/97, and as Trustee of the Ashley Marie Musolino Irrevocable Trust u/t/d 10/6/97, Plaintiff, Geoffrey Todd HODGES, as Trustee of the Frank Musolino, Jr.
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