United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Higher Power Energy, LLC
(“Higher Power”), Mark Patkunas
(“Patkunas”), Michael Miller
(“Miller”), and Lance Wilkerson's
“Defendants”) Motion to Dismiss (Dkt. #27). After
reviewing the relevant pleadings and motion, the Court finds
that the motion should be denied.
approximately July 27, 2007, Plaintiff Higher Perpetual
Energy, LLC (“Higher Perpetual”) and Higher Power
entered into a Lease Purchase Agreement, which enabled a
series of wind farm development projects (the “2007
Agreement”). On June 30, 2010, Baker Wind Farm, LLC
(“Baker Wind” or the “Baker Project”)
was formed. The certificate of formation identified Patkunas,
Miller, David Tatton (“Tatton”), and Wilkerson as
the four managers and governing persons. Due to the
bankruptcy of Higher Perpetual's parent company, Higher
Perpetual and Higher Power revised and replaced the 2007
Agreement with a January 18, 2011 Settlement and Release
Agreement (the “Supplemental Agreement”).
Disputes arose regarding the Supplemental Agreement, which
resulted in Plaintiff filing suit on June 12, 2017 (Dkt. #1).
On October 19, 2017, Plaintiff filed its First Amended
Original Complaint (Dkt. #9). Subsequently, on April 4, 2018,
Defendants filed their Motion to Dismiss (Dkt. #27)
pursuant to Federal Rule of Civil Procedure 12(b)(6). On
April 18, 2018, Plaintiff filed its response (Dkt. #29). On
April 23, 2018, Defendants filed their reply (Dkt. #30).
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P.
v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face.
‘“A claim has facial plausibility when the
plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“But where the well-pleaded facts do not permit the
[C]ourt to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation
omitted). This evaluation will “be a context-specific
task that requires the reviewing [C]ourt to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.”' Id. at 678 (quoting
Twombly, 550 U.S. at 570).
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed-but early enough not the delay
trial-a party may move for judgment on the pleadings.”
“A motion brought pursuant to Fed. R. Civ. P 12(c) is
designed to dispose of cases where the material facts are not
in dispute and a judgment on the merits can be rendered by
looking to the substance of the pleadings and any judicially
noticed facts.” Hebert Abstract Co. v. Touchstone
Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (citation
omitted); Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 312-13 (5th Cir. 2002).
“The central issue is whether, in the light most
favorable to the plaintiff, the complaint states a valid
claim for relief.” Hughes v. Tobacco Inst.,
Inc., 278 F.3d 417, 420 (5th Cir. 2001) (citing
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d
425, 440 n.8 (5th Cir. 2000)).
should be construed liberally, and judgment on the pleadings
is appropriate only if there are no disputed issues of fact
and only questions of law remain.” Great Plains
Tr., 313 F.3d at 312 (quoting Hughes, 278 F.3d
at 420). The standard applied under Rule 12(c) is the same as
that applied under Rule 12(b)(6). Ackerson v. Bean
Dredging, LLC, 589 ...