Stewart v. Argos Ready Mix, Llc et Al(Mag2)MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or Alternatively for Judgment on the PleadingsM.D. Ala.December 28, 20161 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION CHARLES W. STEWART ) ) Plaintiff, ) ) v. ) Civil Action No.: 3:16-CV-356 ) ARGOS READY MIX, LLC, ) ARGOS USA CORP, and ) Oral Argument Requested RONNEE J. PEDERSEN ) ) Defendants. ) DEFENDANT RONNEE J. PEDERSEN’S MOTION TO DISMISS OR ALTERNATIVELY FOR JUDGMENT ON THE PLEADINGS Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively Rule 12(c),1 Defendant Ronnee J. Pedersen (“Pedersen”) requests this Court to dismiss the allegations of Count IV (Fraudulent Misrepresentation) for failure to state a claim upon which relief can be granted. In the Magistrate’s Report and Recommendation (the “Recommendation”), which this Court adopted, the Magistrate already determined that the Plaintiff failed to state a claim in Count IV with respect to the allegations made to Dr. Stauffer; with respect to the alleged fraudulent allegations made directly to Plaintiff, Pedersen asserts that Plaintiff has 1 A motion under Rule 12(c) is appropriate since the pleadings by the Plaintiff are closed. The Court’s Scheduling Order required the plaintiff to amend all pleadings by November 28, 2106. (Doc. 33). Furthermore, the Court provided Plaintiff an opportunity to amend the Complaint on September 30, 2016. (Doc. 36). Plaintiff has not filed any amendment to the original Complaint, and the time has now passed for that to occur. Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 1 of 10 2 failed to allege or identify any benefit to Pedersen and thus failed to state a claim for relief.2 In support of this motion, Pedersen states as follows: A. Course of Proceedings 1. The Complaint contained two counts that were asserted only against Ronnee Pedersen in her individual capacity: Count IV (Fraudulent Misrepresentation) and Count V (Deceit).3 2. Both claims were based on allegations Pedersen made to Plaintiff and one of his physicians Dr. Stauffer. 3. In the original Motion to Dismiss Pedersen argued that both the fraud claim in Count IV and the deceit claim in Count V should be dismissed. (Doc. 16). 4. The Recommendation dismissed Count V (Doc. 38) and stated that the portions of Count IV related to any allegations made to Dr. Stauffer also failed to state a claim. (Id. at 33). 5. The Recommendation further denied Pedersen’s Motion to Dismiss, finding that Plaintiff stated a claim for fraudulent misrepresentation. Specifically, the Recommendation found in discussing the elements of a fraud claim that “while Plaintiff’s complaint is lacking in what Defendant Pedersen “obtained as a 2 In this motion, Pedersen is not attempting to reargue any of the issues raised in her earlier Motion to Dismiss. (Doc. 16),other than the argument the Court found that Pedersen did not raise in her original Motion to Dismiss that Plaintiff failed to allege the required element that Pedersen obtained a benefit from the alleged fraud. (Doc. 41). 3 The Recommendation dismissed Pedersen from Counts One, Two, and Three of the Complaint finding that Pedersen was not an employer under the Americans with Disabilities Act Amendments Act and the Family and Medical Leave. (Doc. 38). This Court affirmed those determinations. (Doc. 41). Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 2 of 10 3 consequence of the fraud,’ Plaintiff does allege that he was replaced by a younger individual at the Auburn plant.” (Doc. 38 at 32) (citing Doc. 1 at 9, ¶51). 6. Pedersen filed an objection to the portion of the Recommendation denying the motion to dismiss with respect to Count IV. One of Pedersen’s objections was that Plaintiff had failed to allege any benefit she received from the alleged misrepresentations. (Doc. 39 at 4-7). 7. On December 14, 2016, this Court adopted the Recommendation and dismissed Count V against Pedersen. (Doc. 41). The Court overruled Pedersen’s objection to the Recommendation, finding that Pedersen had not raised in the Motion to Dismiss the issue that Plaintiff failed to allege any benefit Pedersen obtained from her misrepresentations. (Doc. 41). B. Factual Allegations The factual allegations relevant to this motion were set out in the Recommendation as follows: Plaintiff pled that Defendant Pedersen misrepresented to Plaintiff that Defendant Argos could not meet his accommodations to return to work at the Auburn plant and that his only option was to transfer to the Columbus plant. [Doc. 1] at 7, ¶¶ 39, 40. Plaintiff alleged that Defendant Pedersen made the misrepresentations with the knowledge that those statements were false since Plaintiff had actually been released by two physicians—one with accommodation— to return to work at the Auburn plant. Id. at 6-7, 13, ¶¶ 38, 74. Plaintiff pled reliance Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 3 of 10 4 by stating that he had “no other meaningful choice” but to transfer to the Columbus plant, and that he reported for work there. Id. at 7, ¶¶ 39, 40. Further, Plaintiff alleged that he was damaged as a result of those misrepresentations, as he was forced to transfer and was ultimately “replaced at the Auburn plant by someone in his thirties.” Doc. 1 at 9, ¶ 51. (Doc. 38 at 29-30). C. Standard of Review A motion for judgment on the pleadings is subject to the same standard as a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Sampson v. Washington Mut. Bank, 453 Fed. App’x 863, 865 n. 2(11th Cir. 2011) (“Whether the court examined [the complaint] under Rule 12(b)(6) or Rule 12(c), the question was the same: whether the [complaint] stated a claim for relief.”) A complaint should be dismissed under Rule 12(b)(6) where it appears that the facts alleged fail to state a “plausible” claim for relief. As the Recommendation stated, the Court should ask “whether the factual allegations ‘plausibly give rise to an entitlement to relief.’” (Doc. 38 at 7)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). That requirement includes alleging substantive facts to support the elements of a claim. Sibille v. Davis, No. 3:13-CV-566-WKW, 2014 WL 1328140 *3 (March 31, 2014) (“Because Defendants’ [counterclaim] fails to allege any substantive facts to support the elements necessary to state a claim for intentional interference with business relations, Defendants cannot plead a claim for relief.”) Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 4 of 10 5 D. Argument Count IV of the Complaint should be dismissed because the Recommendation already found that no viable claim for relief was stated in the portions of Count IV relating to statements made to Dr. Stauffer, and Plaintiff has failed to allege the necessary element that Pedersen obtained some benefit with respect to the claims related to representations made directly to the Plaintiff. 1. The Magistrate Judge Already Determined That Plaintiff Failed to State a Claim in Count IV for Any Statements Made to Dr. Stauffer The Recommendation plainly pointed out that “it appears that Plaintiff is pursuing two factual scenarios as the basis of his fraud claims. The first route involves misrepresentations made by Defendant Pedersen to Dr. Stauffer.” (Id. at 27). The Recommendation further states, based on various reasons, that “Plaintiff has not alleged facts requisite to establish a fraudulent misrepresentation claim based upon Defendant Pedersen’s misrepresentations to Dr. Stauffer.” Yet, the Recommendation’s Conclusion does not address the dismissal of this portion of Count IV. (Id. at 33). The Magistrate Judge determined that any claims based on statements made by Pedersen to Dr. Stauffer failed to state a claim. Accordingly, this Court should proceed to dismiss that portion of Count IV. The Court may have not explicitly dismissed that claim because it did not dismiss Count IV in its entirety, but as set forth below, Pedersen also has adequate grounds for dismissal of the claims Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 5 of 10 6 based on representations made to Plaintiff. 2. The Fraudulent Misrepresentation Claim Related to Statements Made to Plaintiff Fails Due to Plaintiff’s Failure to Plead All Elements of That Claim To prove a claim for fraudulent misrepresentation, a plaintiff must show the following: (1) that the defendant made a false representation to the plaintiff; (2) that the representation concerned a material fact; (3) that the plaintiff relied on the representation; and (4) that the plaintiff incurred damage as a proximate result of the reliance. Reeves Cedarhurst Development Corp. v. First American Federal Sav. and Loan Ass’n, 607 So. 2d 180, 182 (Ala. 1992). Federal Rule of Civil Procedure 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Id. As noted by the Recommendation, a complaint for fraud should therefore also set forth: (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making ... same, and (3) the content of such statements and the manner in which they mislead the plaintiff, and (4) what the defendants obtained as a consequence of the fraud. (Doc. 38, p. 31) (emphasis added); see also United States ex rel. Clausen v. Laboratory Corp., 290 F.3d 1301, 1310 (11th Cir. 2002); Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 6 of 10 7 (a) The Complaint Failed to Plead Any Facts or Allegations to Support the Required Element of Any Benefit Pedersen Obtained as a Consequence of Her Alleged Misrepresentation “What the defendants obtained as a consequence of the fraud” is an essential element, and Plaintiff’s failure to plead facts to support it causes the claim to fail. The Southern District of Alabama recently dismissed a fraud claim upon a similar motion pursuant to Rules 12(b)(6) and 9(b) for lack of specificity in pleading and failure to plead plausible facts, specifically holding that the complaint at issue failed to plead any gain that the defendant obtained as a consequence of the alleged fraud, which it held was “an essential element of the cause of action.” Breech Broussard v. CitiMortgage, Inc., No. CV 16-149-CG-M, 2016 WL 6133865, at *3 (S.D. Ala. Sept. 22, 2016), report and recommendation adopted sub nom. Broussard v. Citimortgage Inc, No. CV 16-0149-CG-M, 2016 WL 6126940 (S.D. Ala. Oct. 19, 2016)(referring to United States ex rel. Clausen, 290 F.3d at 1310)(emphasis added). Another recent case from the Northern District of Alabama denied a motion to dismiss a fraud claim pursuant to Rules 12(b)(6) and 9(b) where the complaint alleged all elements necessary to state a fraudulent misrepresentation, specifically noting that “[t]he Amended Complaint alleges Defendant purposefully underreported the amount of 911 charges due in order to decrease their operating cost and, thereby, to gain a competitive advantage.” Autauga Cty. Emergency Mgmt. Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 7 of 10 8 Commc’n Dist. v. Bellsouth Telecommunications, LLC, No. 2:15-CV-00765-SGC, 2016 WL 5848854, at *9 (N.D. Ala. Oct. 6, 2016) (emphasis added). In contrast to these cases, Plaintiff’s Complaint alleges no facts that could satisfy this essential element of a misrepresentation claim against Pedersen, individually. Indeed, the Complaint does not plead that Pedersen made any false statement to Plaintiff for her own personal gain or that she somehow individually benefitted from Plaintiff’s alleged reliance on her representation to him. This failure is fatal to the viability of this claim against her individually. Indeed, the Recommendation noted that the Complaint “is lacking in what Pedersen ‘obtained as a consequence of the fraud.’” (Doc. 38 at 32). The Recommendation also found that Pedersen was not Plaintiff’s employer for purpose of the claims asserted under the Americans with Disabilities Act Amendments Act or the Family and Medical Leave Act, further establishing that Pedersen obtained no benefit from the alleged misrepresentations. Plaintiff did not bring a fraud claim against the corporate defendants, his employer, who paid his compensation and presumably stood to gain or lose from disposition of his employment (although Plaintiff did not allege as much). Plaintiff chose to assert this claim only against Pedersen, who was not his employer for any purpose and could not logically have stood to gain any benefit from the alleged misrepresentations. The Complaint does not allege any facts suggesting that Pedersen individually had anything to gain or lose from Plaintiff Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 8 of 10 9 being replaced by a younger person or that she benefitted in any way from Plaintiff’s acceptance of the offer to transfer to Columbus. Courts have held the “benefit to the defendant” element is essential to stating a fraud claim, and this pleading defect should result in dismissal of the fraudulent misrepresentations claims against Pedersen. Respectfully submitted, s/Wesley C. Redmond WESLEY C. REDMOND FORDHARRISON LLP 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Tel.: (205) 244-5905 Fax: (205) 244-5901 E-mail: wredmond@fordharrison.com SUSAN W. BULLOCK FORDHARRISON LLP 2100 Southbridge Parkway, Suite 650 Birmingham, AL 35209 Tel.: (205) 244-5904 Fax: (404) 888-3863 E-mail: sbullock@fordharrison.com Attorneys for Defendants Argos USA Corp., Argos Ready Mix, LLC, and Ronnee J. Pedersen. Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 9 of 10 10 CERTIFICATE OF SERVICE I hereby certify that on December 28, 2016, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notification of such filing to the following: Heather Newsome Leonard Robert G. Poole Heather Leonard, P.C. Jonathan K. Corley Post Office Box 43768 Whittelsey, Whittelsey, Birmingham, AL 35243 Poole & Corley, P.C. Post Office Box 106 Opelika, AL 36803 s/ Wesley C. Redmond WSACTIVELLP:8909808.1 Case 3:16-cv-00356-MHT-WC Document 42 Filed 12/28/16 Page 10 of 10
