United States District Court, W.D. Texas, Austin Division
SUTHERLAND GLOBAL SERVICES, INC., SUTHERLAND HEALTHCARE SOLUTIONS, INC., Plaintiffs,
OLIVEDALE, INC., 1 MOSAIC HEALTH INC., Defendants.
SPARKS, SENIOR UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiffs Sutherland
Global Services, Inc. (SGS) and Sutherland Healthcare
Solutions, Inc. (SHS) (collectively, Sutherland)'s Motion
to Dismiss Defendants' Counterclaims [#30], Defendants
Olivedale, Inc. (Olivedale) and 1 Mosaic Health, Inc.
(Mosaic) (collectively, Defendants)' Response [#31] in
opposition, and Sutherland's Reply [#34] thereto. Having
reviewed the documents, the relevant law, and the file as a
whole, the Court now enters the following opinion and orders.
a contract dispute case related to a Master Service Agreement
(MSA) executed by SGS and Defendants on March 29, 2016. Compl.
[#1-2] Ex. 1 (MSA). Under the MSA, SGS agreed to provide
services pursuant to mutually agreed upon statements of work,
and Mosaic agreed to pay for these services within 30 days of
invoicing. See MSA at 2, 4-5. SHS, an affiliate of
SGS, provided services to Defendants pursuant to numerous
statements of work agreed upon by the parties. Compl. [#1] at
¶ 9. Sutherland contends it has fully complied with all
terms and conditions of the parties' agreement, and
Defendants have breached the MSA by failing to remit payment
on 53 invoices. Id. at ¶¶ 13-15, 24-31.
Sutherland provided Defendants written notice of their
alleged breach on Mach 3, 2017, and eventually terminated the
MSA on May 16, 2017, due to the unpaid invoices. Id.
at ¶¶ 19-22.
initiated this lawsuit on June 20, 2017, asserting a single
claim for breach of contract. Id. at ¶¶
24-31. Defendants Mosaic and Olivedale initially filed
separate answers on September 12, 2017. See Mosaic
Answer [#14]; Olivedale Answer [#15]. On January 31, 2018,
Defendants filed an amended answer to which they added
counterclaims for fraudulent inducement and negligent hiring,
training, supervision, and retention. See Am. Answer
moves to dismiss Defendants' counterclaims under Rule 12.
See Mot. Dismiss [#30]. Sutherland's motion has
been fully briefed and is ripe for consideration.
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). A motion under Federal Rule of Civil
Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the plaintiff must plead sufficient facts to state a
claim for relief that is facially plausible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 566 U.S. at 678. Although a plaintiffs
factual allegations need not establish the defendant is
probably liable, they must establish more than a "sheer
possibility" a defendant has acted unlawfully.
Id. Determining plausibility is a
"context-specific task, " and must be performed in
light of a court's "judicial experience and common
sense." Id. at 679.
deciding a motion to dismiss under Rule 12(b)(6), a court
generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993). However, a court is not bound to accept legal
conclusions couched as factual allegations. Papasan v.
Attain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of the
plaintiff, the plaintiff must plead "specific facts, not
mere conclusory allegations." Tuchman v. DSC
Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
In deciding a motion to dismiss, courts "must
consider" the complaint, as well as other sources such
as documents incorporated into the complaint by reference and
matters of which a court may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
argues Defendants' two counterclaims are untimely and
should be dismissed for failure to state a claim under Rule
12(b)(6). As an initial matter, the Court notes the
counterclaims are timely as the scheduling order permitted
amendments to pleadings as of right through January 31, 2018.
See Order of Nov. 15, 2017 [#22] at 2. The Court
addresses the remaining arguments by counterclaim below.
contends Defendants' fraudulent inducement claim fails to
meet the Rule 9(b) heightened pleading standard. See
Mot. Dismiss [#30] at 5-7. According to Sutherland,
Defendants do not allege when, where, and how the alleged
fraudulent statements were made, fail to explain how the
statements are false, fail to allege any scienter, and also
fail to allege harm caused by the statements. Id.
Additionally, Sutherland avers the terms ...