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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SUSAN KORSOWER : v. : : COMMUNITY RADIOLOGY ASSOCIATES, INC. et al. : Civil Action No. DKC 98-550 :

MEMORANDUM OPINION Plaintiff's initial complaint in this matter named Community Radiology Radiology, Associates, P.A. (KPR) Inc. and ("CRA"), Aspen Drs. Korsower & Pion

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Limited

Partnership

("Aspen") as defendants and asserted claims for, inter alia, breach of contract and loss of benefits under an employee

benefit plan.

Defendants moved to dismiss the complaint, and on

January 29, 1999, the court, pursuant to Fed. R. Civ. P. 12(f), ordered that all counts of Plaintiff's complaint be stricken1 and granted Plaintiff leave to file an amended complaint. In

Plaintiff's amended complaint was filed March 19, 1999.

addition to CRA, KPR and Aspen, the amended complaint names the nine shareholders of CRA2 and the chief operating officer of CRA as Defendants. All Defendants have moved to dismiss Plaintiff's The issues have been exhaustively briefed,

amended complaint.

The complaint was stricken because it was disorganized, redundant and violated Fed. R. Civ. P. 10(b).
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Four of the CRA shareholders are also limited partners of

Aspen.

and the court now rules pursuant to Local Rule 105.6.

For the

reasons that follow, the motion by CRA, KPR and Aspen will be GRANTED in part and DENIED in part, and the motion by the individual defendants will be GRANTED. I. Background The facts underlying Plaintiff's claims are fully set forth in the court's January 29, 1999 memorandum opinion and will only be briefly summarized here. CRA and KPR are radiology practices

in which Plaintiff's late husband, Dr. Jack Korsower, was a shareholder. It appears that the principal business purpose of

Aspen is to own and operate a commercial building in Rockville, Maryland (the "Aspen Hill Building"). CRA is the general

partner of Aspen.

Plaintiff owns an 18% limited partnership

interest in Aspen, which she and Dr. Korsower previously held as tenants by the entirety. Dr. Korsower retired from CRA and KPR in January 1995 and entered into a separation agreement under which he was to

receive quarterly payments from KPR for his interest in the businesses. CRA was a guarantor of those payments. The

agreement provided that Plaintiff would receive the payments upon Dr. Korsower's death. Another provision of the agreement

stated that Plaintiff and Dr. Korsower would continue to be covered under CRA's and KPR's employee benefit plans. Plaintiff

alleges that KPR and CRA have breached the separation agreement 2

by failing to make timely payments, and seeks damages in the form of lost interest. Plaintiff has also asserted claims

against CRA and KPR under ERISA for alleged misrepresentations relating to her husband's life insurance policy, for overpaid medical benefit premiums and for unreimbursed medical bills. Plaintiff asserts several claims with respect to Aspen. First, Plaintiff claims she has been denied access to the books and records of Aspen, has not been allowed to participate in the management of Aspen, and has not been kept informed of matters relating to Aspen's business. the general partner of Second, she claims that CRA, as harmed the value of her

Aspen,

partnership interest by obtaining an artificially low appraisal of the Aspen Hill Building. Third, Plaintiff alleges that she

was retained by Aspen as a leasing agent for the Aspen Hill Building and that CRA and Aspen have breached the leasing agent agreement by 1) failing to pay leasing commissions due

Plaintiff, and 2) removing Plaintiff's business advertisement from the Aspen Hill Building in violation of the leasing agent agreement. In addition, Plaintiff alleges that certain assets She

of CRA, KPR and Aspen were sold without her knowledge.

claims that the breach of the separation and leasing agent agreements were motivated by Defendants' attempts to increase cash flow and the doctors' incomes, and to "dress up" the businesses for sale. 3

II.

Standard for 12(b)(6) Motion to Dismiss A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

will not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 41, 45-46 (1957). Conley v. Gibson, 355 U.S.

All that the Federal Rules of Civil Procedure

require of a complaint is that it contain "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47; Comet Enters. Ltd. v. Air-AIn reviewing the

Plane Corp., 128 F.3d 855, 860 (4th Cir. 1997).

complaint, the court accepts all well-pled allegations of the complaint as true and construes the facts and reasonable

inferences derived therefrom in the light most favorable to the plaintiff. 1997). Ibarra v. United States, 120 F.3d 472, 473 (4th Cir.

The court must disregard the contrary allegations of the A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th

opposing party. Cir. 1969).

The court need not, however, accept unsupported

legal conclusions, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual

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events, United Black Firefighters v. Hirst , 604 F.2d 844, 847 (4th Cir. 1979). A complaint is deemed to include documents attached to it as an exhibit. Fed. R. Civ. P. 10(c). The court, therefore,

may consider the relevant portions of the limited partnership agreement, and other documents, attached to the original

complaint in deciding the motion to dismiss. Page, 987 F.2d 1, 3-4 (1 st Cir. 1993)

See Watterson v. may consider

(court

documents attached to complaint in deciding motion to dismiss under Rule 12(b)(6) and in doing so does not convert the motion to one for summary judgment); 5A Wright & Miller, Federal

Practice & Procedure

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