United States District Court, N.D. Texas, Amarillo Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE
for consideration the motion of defendant Karen Repokis
("Repokis") 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 in part.
operative pleading is plaintiff's third amended complaint
filed November 9, 2017 (hereinafter the
"complaint"). Doc. 58. In it, plaintiff alleges:
October 2009, 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 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 Donald Locke
("Locke") signed an acknowledgment agreement, which
recognized the transfer of the note to plaintiff.
Id. at 5, ¶ 16 & Ex. 1. Repokis was aware
of and approved or otherwise consented to the terms of the
acknowledgment agreement. Id. at ¶ 18 .
asserts causes of action against Repokis for breach of
guaranty, promissory estoppel, and unjust enrichment.
Grounds of the Motion
urges that plaintiff has failed to state a plausible claim
against her. In addition, she says that limitations bars each
of the claims. Further, plaintiff's failure to make
demand before filing suit bars its claim for breach of the
guaranty agreement, III. Applicable Pleading
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 F.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 8(a).
See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999); see also Searcy v. Knight (In
re Am. Int'l Refinery), 402 B.R. 728, 738 (Bankr.
W.D. La. 2008) .
noted in the court's October 31, 2017 order granting
leave to file the complaint, matters such as limitations and
whether the guaranty was in fact signed by Repokis are ...