United States District Court, E.D. Louisiana
ARTHUR J. GALLAGHER & CO.
BRIAN D. O'NEILL
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is Arthur J. Gallagher & Co.’s Rule
12(b)(6) motion to dismiss Brian D. O’Neill’s
counterclaim. For the following reasons, the motion is
lawsuit arises out of an alleged breach of employment
agreements. On June 14, 2017, the Court issued an Order and
Reasons discussing the relevant facts leading to the lawsuit.
Brian O’Neill worked for Gallagher until May 27, 2016;
he then began employment with one of Gallagher’s
competitors, Marsh USA. During his employment with Gallagher,
O’Neill executed two employment agreements with
Gallagher. Relevantly, the agreements precluded O’Neill
from competing with Gallagher in specific geographic areas
for two years after the term of his employment with
Gallagher. Because O’Neill took a position with a
Gallagher competitor and allegedly began soliciting business
from Gallagher customers, Gallagher filed a lawsuit for
injunctive relief, breach of contract, misappropriation of
trade secrets, and breach of the duty of good faith.
O’Neill filed a motion to dismiss Gallagher’s
claims; the Court denied that motion.
in O’Neill’s answer to Gallagher’s
complaint, O’Neill filed a counterclaim against
Gallagher. O’Neill’s counterclaim alleges that
Gallagher interfered with O’Neill’s contractual
or business relations and that the employment agreements are
void. Gallagher now moves the Court to dismiss
O’Neill’s counterclaim under Federal Rules of
Civil Procedure Rule 12(b)(6) for failing to state a claim.
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Such a motion
is rarely granted because it is viewed with disfavor. See
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009) (citing Fed. R. Civ. P. 8). "[T]he
pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
in considering a Rule 12(b)(6) motion, the Court
"accepts 'all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.'"
See Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464 (5th Cir. 2004) (quoting Jones
v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). But,
in deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true.
Kaiser, 677 F.2d at 1050. Indeed, the Court must
first identify allegations that are conclusory and thus not
entitled to the assumption of truth. Iqbal, 556 U.S.
at 678-79. A corollary: legal conclusions "must be
supported by factual allegations." Id. at 678.
Assuming the veracity of the well-pleaded factual
allegations, the Court must then determine "whether they
plausibly give rise to an entitlement to relief."
Id. at 679.
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.'"
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678) (internal quotation
marks omitted). "Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact)." Twombly, 550 U.S.
at 555 (citations and footnote omitted). "A 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."
Iqbal, 556 U.S. at 678 ("The plausibility
standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a
defendant has acted unlawfully."). This is a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Id. at 679. "Where a complaint pleads facts
that are merely consistent with a defendant's liability,
it stops short of the line between possibility and
plausibility of entitlement to relief." Id. at
678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557). "[A] plaintiff's obligation to
provide the 'grounds' of his 'entitle[ment] to
relief'" thus "requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (alteration in original) (citation omitted).
deciding a motion to dismiss, the Court may consider
documents that are essentially "part of the
pleadings." That is, any documents attached to or
incorporated in the plaintiff's complaint that are
central to the plaintiff's claim for relief. Causey
v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288
(5th Cir. 2004) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). Also, the
Court is permitted to consider matters of public record and
other matters subject to judicial notice without converting a