United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE.
the Court are the Motion to Dismiss of Plaintiff Laura
Johnston Family Properties, Ltd. (“LJFP”) (ECF
No. 34); the Motion to Dismiss of Third-Party Defendants Tom
Bennett, Jr. and United States Invention Corporation
(“Bennett/USIC”) (ECF No. 46); and the Motion to
Dismiss of Defendant/Third-Party Plaintiff Allen Engineering
Contractor, Inc. (“Allen”) (ECF No. 50). For the
reasons stated below, LJFP's Motion to Dismiss is
GRANTED; Bennett/USIC's Motion to
Dismiss is DENIED; and Allen's Motion to
Dismiss is GRANTED.
Factual and Procedural Background
case involves a dispute over two property easements. LJFP
alleges it is the owner of real property located in Navarro
County, Texas. (LJFP First Am. Pet. ¶ 2.1, ECF No. 23).
Bennett/USIC also allegedly owns real property in
Navarro County. (Id. ¶ 1.3). Allen, a general
contractor, claims it was retained to repair a railroad
bridge at Chambers Creek in Navarro County. (Id.;
see also Allen Countercl. ¶ 4, ECF No. 24). To
access the railroad bridge, Allen alleges it entered into a
Temporary Construction Easement (“TCE”) with
LJFP. (Allen Countercl. ¶ 5). The TCE entitled
Allen to enter part of LJFP's land called the
“Construction Area.” (LJFP First Am. Pet. Ex. A).
The TCE does not include a written description or definition
of the “Construction Area, ” but instead refers
to an image captured by Google Earth Pro, a copy of which is
attached to the TCE. (Id.). LJFP's land and
Bennett/USIC's land are designated on that image as is a
red line which represents the “Proposed Access.”
(Id.). It is unclear from this image what area
constitutes the “Construction Area.” According to
LJFP, the TCE required Allen to construct an access road,
build a workspace on an adjacent landowner's property,
and complete all construction activities by October 1, 2016.
(Id. ¶ 2.2).
signing the TCE, Allen claims it discovered it could not
access the railroad bridge through the easement described in
the TCE. (Allen Countercl. ¶ 7). As a result, Allen
entered into a separate agreement with Bennett/USIC,
denominated the Temporary Easement Agreement
(“TEA”),  which granted Allen “the necessary
access to the worksite from another direction and over
different land.” (Id. ¶¶ 7-9). By
accessing the worksite via the TEA, Allen alleges it
completed the work on the railroad bridge. (Id.
filed this case in Texas state court on November 2, 2016.
Allen timely removed the case to this Court on December 6,
2016, based on diversity jurisdiction. In its First Amended
Petition, LJFP claimed Allen violated the TCE by building an
access road that was “materially different from the
access road allowed by the [TCE], ” constructing
workspace on LJFP's property (rather than on the adjacent
landowner's property), cutting timber from LJFP's
property, and continuing to use LJFP's property after
October 1, 2016. (LJFP First Am. Pet. ¶¶ 2.3-2.6).
LJFP asserts trespass and breach of contract claims against
Allen, and seeks exemplary damages. (Id.
asserts five counterclaims against LJFP: (1) breach of
contract, (2) breach of warranty, (3) negligent
misrepresentation, (4) statutory fraud, and (5) tortious
interference with a business contract. (Allen Countercl.
¶¶ 12-21). The crux of Allen's breach of
contract and breach of warranty claims is that LJFP breached
the TCE because LJFP did not own the land covered by the TCE.
In its tortious interference claim, Allen argues that LJFP
interfered with the TEA, Allen's agreement with
Bennett/USIC. As discussed in further detail below,
Allen's negligent misrepresentation and statutory fraud
claims are more difficult to articulate. Allen claims LJFP
misrepresented “it owned the land necessary to gain
access to [the] worksite, ” but it is not clear to
which land Allen is referring. (Id. ¶ 5).
also brings four causes of action against Bennett/USIC as a
third-party defendant: (1) breach of contract, (2) promissory
estoppel, (3) negligent misrepresentation, and (4) statutory
fraud. (Allen Third-Party Compl. ¶¶ 14-21). The
basis of Allen's breach of contract and promissory
estoppel claims is that Bennett/USIC breached the TEA because
Bennett/USIC did not own the land covered by the TEA. For its
negligent misrepresentation and statutory fraud claims, Allen
argues Bennett/USIC misrepresented that they owned the land
covered by the TEA. In response, Bennett/USIC filed a
declaratory judgment counterclaim under the Texas Uniform
Declaratory Judgments Act (TUDJA), requesting a declaration
of “the boundaries and applicability of [the TEA] as it
affects Allen's right to assert causes of action against
Bennett/USIC.” (Bennett/USIC Countercl. ¶ 9, ECF
are three motions to dismiss pending: (1) LJFP's Motion
to Dismiss Allen's counterclaims for negligent
misrepresentation and statutory fraud; (2) Bennett/USIC's
Motion to Dismiss Allen's claims for breach of contract,
promissory estoppel, negligent misrepresentation, and
statutory fraud; and (3) Allen's Motion to Dismiss
Bennett/USIC's counterclaim for declaratory judgment. The
Court will address each motion in turn.
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard
Rule 8 announces does not require “detailed factual
allegations, ” but it does demand more than an
unadorned accusation devoid of factual support. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain sufficient factual matter to state a claim for relief
that is plausible on its face. Twombly, 550 U.S. at
570. The court must accept all of the plaintiff's factual
allegations as true, but it is not bound to accept as true
“a legal conclusion couched as a factual
allegation.” Id. at 555 (quoting Papasan
v. Allain, 478 U.S. 265, 286 (1986)). Where the facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has stopped short of showing
that the pleader is plausibly entitled to relief.
Iqbal, 556 U.S. at 678.
alleging fraud must meet a heightened pleading standard. Rule
9(b) provides, in pertinent part, that, “[i]n alleging
fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”
Fed.R.Civ.P. 9(b). Articulating the elements of fraud with
particularity “requires a plaintiff to specify the
statements contended to be fraudulent, identify the speaker,
state when and where the statements were made, and explain
why the statements were fraudulent.” Williams v.
WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997)
(internal citation omitted); U.S. ex rel Thompson v.
Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th
Cir. 1997) (“At a minimum, Rule 9(b) requires that a
plaintiff set forth the ‘who, what, when, where, and
how' of the alleged fraud.”) (internal citation
“Rule 9(b) applies by its plain language to all
[allegations] of fraud, whether they are part of a claim of
fraud or not.” Lone Star Ladies Inv. Club v.
Schlotzsky's Inc., 238 F.3d 363, 368 (5th Cir.
2001); see also Benchmark Elecs., Inc. v. J.M. Huber
Corp., 343 F.3d 719, 723 (5th Cir. 2003)
(“Although Rule 9(b) by its terms does not apply to
negligent misrepresentation claims, this court has applied
the heightened pleading requirements when . . . fraud and
negligent misrepresentation claims are based on the same set
of alleged facts.”).