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Higher Perpetual Energy, LLC v. Higher Power Energy, LLC

United States District Court, E.D. Texas, Sherman Division

June 18, 2018

HIGHER PERPETUAL ENERGY, LLC,
v.
HIGHER POWER ENERGY, LLC, MARK PATKUNAS, MICHAEL MILLER, LANCE WILKERSON,

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendants Higher Power Energy, LLC (“Higher Power”), Mark Patkunas (“Patkunas”), Michael Miller (“Miller”), and Lance Wilkerson's (“Wilkerson”) (collectively, “Defendants”) Motion to Dismiss (Dkt. #27). After reviewing the relevant pleadings and motion, the Court finds that the motion should be denied.

         BACKGROUND

         On 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[1] (“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[2] (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).

         LEGAL STANDARD

         I. 12(b)(6)

         The 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).

         A Rule 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 Fed.R.Civ.P. 8(a)(2)).

         In 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.

         Thus, “[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).

         II.12(c)

         Federal 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)).

         “Pleadings 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 ...


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