United States District Court, N.D. Texas, Dallas Division
MAXUM ENTERPRISES LLC d/b/a PILOT THOMAS LOGISTICS, a Delaware Limited Liability Company, Plaintiff,
AUTOMOTIVE FLEET ENTERPRISES, INC.; ASSOCIATED FLEET CORP; LOUIS W. SPIRO; JOSEPH R. WIHBEY; and WESTERN SURETY COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
the Court is Defendant Western Surety Company's (Western)
Rule 12(b)(6) Motion to Dismiss. Doc. 67. For the reasons
stated, the Court GRANTS Western's
Motion to Dismiss.
dispute arises from Plaintiff Maxum Enterprises, LLC's
(doing business as Pilot Thomas Logistics (PTL))claim that
Defendants Automotive Fleet Enterprises, Inc. (AFE),
Associated Fleet Corp (AFC), Louis W. Spiro, and Joseph R.
Wihbey (hereinafter the “non-surety Defendants”)
took possession of PTL's trucks without paying for them.
In 2016, PTL discovered that the non-surety Defendants
misappropriated 39 trucks valued at roughly $4.34 million.
Doc. 46, Am. Compl., ¶¶ 34-35, 128. PTL discovered
the theft and subsequently entered into an agreement with
Spiro's company, AFE, whereby AFE would pay PTL
approximately $2.03 million for the trucks. Id.
¶ 107. AFE failed to make any payments. Id.
the non-surety Defendants allegedly sold the trucks to third
parties using fraudulent “bonded titles” by
virtue of surety bonds obtained from Defendants Merchants
Bonding Company and Western Surety Company through a title
laundering scheme. Id. ¶¶ 36-43. In
essence, according to Plaintiffs, Wihbey and Spiro falsely
claimed to the Florida Department of Motor Vehicles that the
titles had been lost. Id. ¶¶ 38, 40. They
then fraudulently obtained duplicate titles claiming that the
trucks were worth only $1, 000 to $2, 000 each based on
fraudulent bills of sale reflecting that AFE sold each of the
39 trucks to Wihbey's company, AFC. E.g., Id.
¶¶ 37, 48; id. at 25-27 (chart summarizing
bill of sale and bond amounts for 31 of the trucks). The
trucks however were generally appraised at between $50, 000
to $130, 000 each. Id. at 25-27; see also,
e.g., Id. ¶ 127.
alleges that Western and its agents furthered the scheme by
failing to consult a current national appraisal guide
(e.g., Kelly Blue Book or National Automobile
Dealers Association (NADA)) to determine the fair market
value of the vehicles and the amount of the required bond, as
required on the face of each bond and as its agents
represented they had done. Id. ¶ 37, 120.
Instead, Western doubled the $1, 000 to $2, 000 valuation
provided by the non-surety Defendants and issued surety bonds
in that amount despite the fact that Florida law required
that surety bonds be set at twice the fair market value.
Id. ¶¶ 119-122.
originally brought suit on March 22, 2018, against just Spiro
and his company AFE. Doc. 1, Compl. Then, after PTL took
depositions, received written discovery, and conducted its
own independent investigation, PTL uncovered the allegedly
fraudulent title scheme involving Western and Merchants
Bonding. See Doc. 44, Pl.'s Mot. for Leave to
Am. Compl., 1. Thus, on October 12, 2018, PTL filed its First
Amended Complaint adding the two surety companies and
bringing claims against them for negligence and unfair trade
practices in violation of the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA). Doc. 46, Am. Compl.,
since settled its claims with Merchants Bonding, and thus,
Merchants Bonding is no longer a party to this case. Doc.
122, Joint Stipulation of Dismissal. However, Western remains
in this case and of the 39 trucks at issue in this case,
Western issued surety bonds for 9 of them for a penal sum of
$30, 000. Doc. 69, Def.'s Mot. to Dismiss, 3. In its Rule
12(b)(6) Motion to Dismiss, Western seeks dismissal of
PTL's FDUTPA claim arguing that the FDUTPA does not apply
to sureties and dismissal of PTL's negligence claim
arguing that Western had no duty to determine the value of
the vehicles. Doc. 69, Def.'s Mot. to Dismiss, 4-5. PTL
filed its Response arguing that Western's Motion should
be denied or alternatively that PTL should be allowed to
amend and seek indemnity from Western. Doc. 80,
Pl.'s Resp., 1. Western filed its Reply. Doc. 90,
Def.'s Reply. Western's Motion is therefore ripe for
the Court's review.
Federal Rule of Civil Procedure Rule 8(a)(2), a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the Court to
dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Id. 12(b)(6). To
survive a 12(b)(6) motion, “enough facts to state a
claim to relief that is plausible on its face” must be
pled. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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.” Id. At this stage, a court
“must accept all well-pleaded facts alleged in the
complaint as true and must construe the allegations in the
light that is most favorable to the plaintiff.”
J&J Sports Prods., Inc. v. Live Oak Cnty. Post No.
6119 Veterans of Foreign Wars, 2009 WL 483157, at *3
(S.D. Tex. Feb. 24, 2009) (quoting Cent. Laborers'
Pension Fund v. Integrated Elec. Servs., 497 F.3d 546,
550 (5th Cir. 2007)).
Fifth Circuit has held that dismissal is appropriate
“if the complaint lacks an allegation regarding a
required element necessary to obtain relief.”
Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th
Cir. 1995) (internal citation omitted). Essentially,
“the complaint must contain either direct allegations
on every material point necessary to sustain a recovery . . .
or contain allegations from which an inference fairly may be
drawn that ...