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Mezz III, LLC v. Keenan

United States District Court, N.D. Texas, Amarillo Division

December 28, 2017

MEZZ III, LLC, Plaintiff,
v.
STEPHEN KEENAN, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

         Came on for consideration the motion of defendant Donald Locke ("Locke") to dismiss. The court, having considered the motion, the response of plaintiff, Mezz III, LLC, the reply, the record, and applicable authorities, finds that the motion should be granted.

         I.

         Plaintiff's Claims

         On May 25, 2017, plaintiff filed its original petition for breach of promissory note in the District Court of Tarrant County, Texas, 141st Judicial District. On July 24, 2017, Locke filed his notice of removal, bringing the action before this court. Since that time, plaintiff has thrice amended its complaint. The third amended complaint was filed November 9, 2017. Doc.[1] 58.

         In its third amended complaint (hereinafter "complaint"), plaintiff alleges:

         In October 2 0 09, EmVation, a company owned and operated by-defendants, signed a promissory note secured by mortgage, a copy of which is attached as Exhibit 2 to the complaint.[2] Doc. 58 at 3, ¶ 10. Stephen Keenan ("Keenan") and Karen Repokis ("Repokis") personally guaranteed the note. Id. at 3-4, ¶¶ 11-12. On April 20, 2016, the lender, Private Placement Capital Notes II, LLC ("PPCN"), assigned the note, guarantees, and related agreements to plaintiff. Id. at 5, ¶14 & Ex. 1. In May 2016, Keenan, EmVation and Locke signed an acknowledgment agreement, which recognized the transfer of the note to plaintiff. Id. at 5, ¶ 16 & Ex. 1. Locke signed as chief administrative officer of EmVation and individually. In email exchanges with "Anderson" who is otherwise unidentified in the complaint, Locke "used the pronoun 'we' when referring to debtors' [sic] payment obligations." Id. at ¶ 17 & Ex. 1.

         Plaintiff purports to assert seven causes of action against defendants. They are: breach of promissory note; breach of guaranty; breach of contract; promissory estoppel; unjust enrichment; fraud; and, civil conspiracy. All but breach of guaranty are asserted against Locke.

         II.

         Grounds of the Motion Locke maintains that plaintiff has failed to state any-plausible claims against him.

         III.

          Applicable Pleading Standards

         Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the "showing" contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

         Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Iqbal, 556 U.S. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Id. In other words, where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Id. at 679. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

         As the Fifth Circuit has explained: "Where the complaint is devoid of facts that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy the requirement of notice pleading." Anderson v. U.S. Dep't of Housing & Urban Dev., 554 P.3d 525, 528 (5th Cir. 2008). In sum, "a complaint must do more than name laws that may have been violated by the defendant; it must also allege facts regarding what conduct violated those laws. In other words, a complaint must put the defendant on notice as to what conduct is being called for defense in a court of law." Id. at 528-29. Further, the complaint must specify the acts of the defendants individually, not collectively, to meet the pleading standards of Rule ...


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