United States District Court, N.D. Texas, Fort Worth Division
S.J. LOUIS CONSTRUCTION OF TEXAS, LTD., Plaintiff,
MIGUEL A. HERNANDEZ, Defendant.
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the motion of plaintiff, S.J. Louis
Construction of Texas, Ltd., to dismiss the counterclaim(s)
asserted by defendant, Miguel A. Hernandez. The court, having
considered the motion, defendant's response, the reply,
the record, and applicable authorities, finds that the motion
should be granted.
Nature of the Case and Counterclaim
April 29, 2019, plaintiff filed its complaint in this action
seeking declaratory and affirmative relief regarding the
terms of the S.J. Louis Construction of Texas, Ltd., Deferred
Compensation Plan (the "Plan"). Doc. 1. Plaintiff
alleges that this is an action arising under the Employee
Retirement Income Security Act of 1974, 29 U.S.C.
§§ 1001-1061 ("ERISA").
alleges: Plaintiff employed defendant as a foreman/team
leader from September 26, 1999, until August 2, 2018, when he
resigned. Doc. 1, ¶¶ 9, 10. Defendant elected to
participate in the Plan. Id. ¶ 13. By virtue of
his position, defendant had access to and knowledge of
plaintiff's proprietary and confidential information.
Id. ¶ 19. The Plan required that defendant keep
such information confidential, id. ¶¶
17-18, and that his failure to do so would result in his
forfeiting benefits thereunder. Id. ¶ 20. The
Plan also prohibited defendant from soliciting customers,
suppliers, or employees of plaintiff, with loss of benefits
if he did so. Id. ¶¶ 22-24. The Plan also
provided for forfeiture of benefits if defendant was or could
have been terminated for cause. Id. ¶ 26.
Defendant convinced those who worked for him to go to work
for a competitor for whom defendant also went to work.
Id. ¶¶ 35-36. Plaintiff issued a notice of
forfeiture of Plan benefits to defendant. Id.
¶42. Defendant has threatened to sue plaintiff.
Id. ¶¶ 48-50.
seeks a declaration that the forfeiture provisions of the
Plan are enforceable and that it acted lawfully in forfeiting
defendant's benefits. It also seeks to recover
attorney's fees and court costs.
5, 2019, plaintiff filed his answer, affirmative defenses and
counterclaims. Doc. 14. The part of the document labeled
"Counterclaim" contains seven paragraphs that do
not appear to assert any claims against plaintiff although it
mentions in a conclusory way "false light,"
id. at 23, ¶ 5, "emotions [sic]
distress," id, ¶ 6, and "unjust
enrichment," id. ¶ 7. In his response to
the motion to dismiss, defendant says that he has brought
counterclaims for unlawful covenant not to compete,
fraudulent inducement, and unjust enrichment. Doc. 2 5 at 2.
In a footnote he says that he does not intend to pursue the
unidentified claims in paragraphs 4, 5, and 6 of the
counterclaim. Id. n.1.
Grounds of the Motion
alleges that defendant's state law counterclaims, to the
extent he purports to assert any, are preempted by ERISA. In
addition, it says that defendant has failed to plead any
plausible claims against it.
Applicable Legal Principles
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.
9(b) sets forth the heightened pleading standard imposed for
fraud claims: "In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake." The Fifth Circuit requires a party
asserting fraud to "specify the statements contended to
be fraudulent, identify the speaker, state when and where the
statements were made, and explain why the statements were
fraudulent." Hermann Holdings, Ltd. v. Lucent
Techs., Inc., 302 F.3d 552, 564-65 (5th Cir.
2002)(internal quotations and citations omitted). Succinctly
stated, Rule 9(b) requires a party to identify in its
pleading "the who, what, when, where, and how" of
the events constituting the purported fraud. Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir.
2008). Rule 9(b) applies to all cases where the gravamen of
the claim is fraud even though the theory supporting the
claim is not technically termed fraud. Frith v. Guardian
Life Ins. Co. of Am., 9 F.Supp.2d 734, 742 (S.D. Tex.
1998). Statutory claims based on allegations of fraud, such
as violations of the Texas Insurance Code, the TDCA, and the
Texas DTPA, as well as those for fraud, fraudulent