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In re Emerald Casino, Inc.

United States District Court, Seventh Circuit

May 1, 2013

In re EMERALD CASINO, INC., Debtor.
v.
DONALD F. FLYNN, et al., Defendants. FRANCES GECKER, not individually but solely as chapter 7 trustee for the bankruptcy estate of Emerald Casino, Inc., Plaintiff,

CERTAIN DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW ON COUNTS I & II

REBECCA R. PALLMEYER, District Judge.

Defendants Kevin F. Flynn, John P. McMahon, Joseph F. McQuaid, Kevin D. Larson, and Walter P. Hanley ("Certain Defendants"), by their attorneys, hereby move the Court to enter Judgment as a Matter of Law in their favor on Count I (Breach of Fiduciary Duty) and Count II (Breach of Contract) of the Third Amended Complaint. As explained in Section II.A of Certain Defendants' Post-Trial Memorandum, the fiduciary duty claim is barred by the statute of limitations. As explained in Section II.B of Certain Defendants' Post-Trial Memorandum, the breach of contract claim is barred by res judicata. As explained in Section II.C of Certain Defendants' Post-Trial Memorandum, these Defendants are not parties to the contract they allegedly breached and therefore cannot be liable for its breach.

Furthermore, should the Court find that some relief is warranted, for the reasons set forth in Section II.D of Certain Defendants' Post-Trial Memorandum, Certain Defendants move that the Court find that joint and several liability is not appropriate.

WHEREFORE, for the reasons set forth in Certain Defendants' Post-Trial Memorandum, Certain Defendants respectfully request that this Court enter Judgment as a Matter of Law in favor of Certain Defendants on Counts I & II of the Trustee's Third Amended Complaint.


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