Cobb v. Dye et al

Motion to Dismiss for Failure to State a Claim

N.D. Tex.May 15, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DOROTHY COBB AS EXECUTOR OF § THE ESTATE OF JAMES H. COBB, JR. § DECEASED § § V. § CIVIL ACTION NO. 3:17-CV-01109-N § THOMAS H. DYE, CIMCO KERRVILLE § PROPERTIES, LLC, KEITH THERRIEN, § SCOTT MCNULTY, KERRVILLE § AMBULATORY SURGERY CENTER, § LLC, and KERRVILLE ASC § INVESTORS, LP KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM COMES NOW, Defendant KERRVILLE AMBULATORY SURGERY CENTER, LLC, (“KASC”) and files this Motion to Dismiss for Failure to State a Claim upon which relief can be granted, as authorized by FED. R. CIV. P. 12(b)(6), as follows: I. CASE DESCRIPTION 1. This case was filed in County Court at Law No. 2, Johnson County, Texas, on March 24, 2017. It is styled Cause No. P201522020-A, Dorothy Cobb, as Executor of the Estate of James H. Cobb, Jr., Deceased v. Thomas H. Dye, Cimco Kerrville Properties, LLC, Keith Therrien, Scott McNulty, Kerrville Ambulatory Surgery Center, LLC, and Kerrville ASC Investors, LP. No jury demand was or has been made. A Notice of Removal was filed by Defendant THOMAS H. DYE on April 26, 2017. KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - Page 1 Case 3:17-cv-01109-N Document 8 Filed 05/15/17 Page 1 of 6 PageID 150 2. The suit claims that Plaintiff’s decedent was wrongfully induced to transfer real estate interests in a building in Kerrville, Texas that housed an outpatient surgery center. The parties in this case are some of the individuals and entities involved in the ownership of the property and the operation of the surgery center. 3. This case attempts to revisit settlement negotiations that concluded nearly six years ago following a dispute between a group of investors and a group of doctors regarding the management and operations of an outpatient surgery center in Kerrville, Texas. II. KASC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM A. Standard for Dismissal for Failure to State a Claim 4. A plaintiff must give fair notice of a claim by providing a short and plain statement of the claim showing that the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, U.S. 555 (2007). Although plaintiff is not required to provide detailed factual allegations, the statement of claim must include plausible factual allegations concerning all material elements of the claim. See Ashcroft v. Iqbal, 556 U.S.662, 678 (2009); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). Further, the pleading standard “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Id. at 229. Thus, to avoid a dismissal under FED. R. CIV. P. 12(b)(6) for failure to state a claim, the plaintiff must (1) give the defendant fair notice of the nature of the claim and (2) provide plausible factual allegations to the support the claim. Adams v. City of Indianapolis, 742 F.3d 720, 728-29 (7th Cir. 2014); Starr v. Baca, 652 F.3d 1202, 1216 (9th KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - Page 2 Case 3:17-cv-01109-N Document 8 Filed 05/15/17 Page 2 of 6 PageID 151 Cir. 2011). Further, a court considering a Motion to Dismiss can begin by identifying those pleadings that are nothing more than conclusions because they are not “entitled to the assumption of truth.” Twombly, 550 US at 557. There is no allegation by Plaintiff of any actionable conduct by KASC. Therefore, there is no possibility of recovery by Plaintiff against it. 5. A Complaint- such as the one in this case - that provides only vague statements with no discernible cause of action, no discussion of the elements of a claim and no supporting facts as to KASC is insufficient to shows grounds for plaintiff to be entitled to relief. Iqbal, 556 U.S. at 678. Furthermore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “A claim has factual 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, 556 U.S. at 678. With these principals in mind - and as further demonstrated below - the court should dismiss Plaintiff’s claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. B. Plaintiff Fails to State a Claim for Breach of Contract as to KASC 6. Plaintiff’s petition states only that a contract existed “between Plaintiff and Defendants for ownership interest in Kerrville”. Petition at 11. Plaintiff fails to allege any contract between Plaintiff and KASC. Further, Plaintiff has no allegation of specific facts as to any alleged breach by KASC regarding the non-mentioned contract. C. Plaintiff Fails to State a Claim for Fraud as Against KASC 7. To prevail on a fraud claim, a plaintiff must prove that: (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - Page 3 Case 3:17-cv-01109-N Document 8 Filed 05/15/17 Page 3 of 6 PageID 152 to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). Plaintiff pleads no facts in this case supporting a claim for fraud against KASC. Plaintiff fails to specify the statements or omissions that he considers to be fraudulent, the speaker who made the statements, when and why statements were made, and an explanation of why they were fraudulent. Consequently, any potential claim by Plaintiff for fraud must be dismissed for failure to state a claim. See Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) (a dismissal for failure to plead with particularity in accordance with Rule 9(b) is treated as a Rule 12(b)(6) dismissal for failure to state a claim). D. Plaintiff Fails to State a Cause of Action for Declaratory Judgment as Against KASC 8. Plaintiff asserts a claim for declaratory judgment. See Petition at 12. Plaintif seeks a declaration that the Settlement Agreement was entered into due to fraud, coercion, and undue influence and therefore should be set aside as null and void. A declaration that an agreement “be set aside” is a not a proper request for declaratory relief; it is rather a request for recision, an equitable remedy for fraud. As discussed above, KASC is not the subject of Plaintiff’s fraud allegations. E. Plaintiff Fails to State a Cause of Action as Against KASC for Piercing the Corporate Veil 9. Plaintiff asserts a claim for “Piercing the Corporate Veil”. Petition at 12. This is not a cause of action, as a matter of law, and therefore cannot form the basis of any potential recovery from KASC. KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - Page 4 Case 3:17-cv-01109-N Document 8 Filed 05/15/17 Page 4 of 6 PageID 153 III. PRAYER FOR RELIEF For these reasons, Defendant KASC requests that this Court dismiss Plaintiff’s claims against KASC for failure to state a claim upon which relief can be granted. KASC further requests that this Court grant it any other relief, both in law and in equity, to which it may be justly entitled. Respectfully submitted, A. WILLIAM ARNOLD III & ASSOCIATES A Professional Corporation By: /s/ A. William Arnold A. WILLIAM ARNOLD III State Bar No. 01339900 Email: arnold@awalaw.com CHRISTOPHER D. FREEMAN State Bar No. 00784080 Email: cfreeman@awalaw.com 9400 North Central Expressway, Ste. 605 Dallas, Texas 75231 (214) 393-3840 (office) (214) 692-6474 (telecopier) ATTORNEYS FOR DEFENDANT KERRVILLE AMBULATORY SURGERY CENTER, LLC KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - Page 5 Case 3:17-cv-01109-N Document 8 Filed 05/15/17 Page 5 of 6 PageID 154 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing attached has been duly served on counsel of record via certified mail, return receipt requested, facsimile, electronic mail, hand delivery and/or regular mail on this the 15th day of May, 2017. Robert John Mastellar III Mastellar Law Firm, PLLC 378 Coral Vine Lane Burleson, Texas 76028 Counsel for Plaintiff Dorothy Cobb D. Scott Cain Brent Kiel Cain & Associates, PC 508 North Ridgeway Dr. Cleburne, Texas 76033 Counsel for Plaintiff Dorothy Cobb Lee L. Cameron, Jr. E. Stratton Horres, Jr. Wilson Elser Moskowitz Edelman & Dicker, LLP 901 Main Street, Ste. 4800 Dallas, Texas 75202-3758 Counsel for Defendant Keith Therrien Kristopher Dennis Hill Mark A. Shoffner Bell Nunnally & Martin LLP 3232 McKinney Avenue, Ste. 1400 Dallas, Texas 75204 Counsel for Defendant Keith Therrien James Gregory Coontz Coontz Cohran 217 Market Street Burleson, Texas 76028 Counsel for Defendant Scott McNulty Greg Waller Andrews Kurth LLP 600 Travis, Ste. 4200 Houston, Texas 77002 Counsel for Defendant Thomas H. Dye, CIMCO Kerrville Properties, LLC and Kerrville ASC Investors, LP Lane E. Rugeley 16 North Caddo Street Cleburne, Texas 76031-5540 Counsel for Defendant Thomas H. Dye, CIMCO Kerrville Properties, LLC and Kerrville ASC Investors, LP /s/ A. William Arnold A. WILLIAM ARNOLD III CHRISTOPHER D. FREEMAN KERRVILLE AMBULATORY SURGERY CENTER, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - Page 6 Case 3:17-cv-01109-N Document 8 Filed 05/15/17 Page 6 of 6 PageID 155