United States District Court, N.D. Texas, Amarillo Division
MEMORANDUM OPINION AND ORDER
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.
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.
third amended complaint (hereinafter "complaint"),
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. 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.
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.
of the Motion Locke maintains that plaintiff has failed
to state any-plausible claims against him.
Applicable Pleading Standards
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
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
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 ...