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Cooper v. Primary Care Solutions, Inc.

United States District Court, M.D. Louisiana

October 11, 2017

TAMMY COOPER, CROSS OVER THERAPY, LLC AND KENDALL “KEN” BROWN
v.
PRIMARY CARE SOLUTIONS, INC., WILLIAM BULLOCK, MONICA LEWIS, AND KIM ROUNDTREE

          RULING AND ORDER ON MOTION TO DISMISS UNDER FRCP 12(B)(2) AND 12(B)(6)

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Dismiss Under FRCP Rule 12(b)(2) and 12(b)(6) (the “Motion to Dismiss”), filed by defendants, Primary Care Solutions, Inc. (“PCS”), William Bullock (“Bullock”), Monica Lewis (“Lewis”), and Kim Roundtree (“Roundtree”) (collectively PCS, Bullock, Lewis and Roundtree are “Defendants” and Bullock, Lewis, and Roundtree are the “Individual Defendants”).[1] The Motion is opposed.[2] For the reasons that follow, IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED IN PART AND DENIED IN PART.

         I. Factual and Procedural Background

         Tammy Cooper (“Cooper”), Cross Over Therapy, LLC (“COT”), and Kendall Brown (“Brown”) (collectively Cooper, COT and Brown are “Plaintiffs”), filed their original Complaint on April 22, 2016. The case arises from contractual relationships between Cooper and PCS and Brown and PCS. Specifically, in April 2014, Cooper executed a Site Director Consultant Agreement with PCS whereby Cooper was to serve as a Site Director in Donaldsonville, Louisiana.[3] Brown executed a Site Director Consultant Agreement with PCS in July 2014, whereby he was to serve as a Site Director in St. Francisville, Louisiana.[4] Plaintiffs allege that PCS, “through its alter egos and corporate officers, William Bullock, Monica Lewis and Kim Roundtree, devised an unethical, oppressive, unscrupulous scheme that offends established public policy that amounts to fraud, deceit, and misrepresentation” by soliciting Cooper and Brown to invest in “a purported franchise investment scheme without following federal or Louisiana franchising or security laws”[5] and that PCS ultimately sold the offices established by Cooper and Brown to Seaside HCBS, LLC (“Seaside”) without paying Plaintiffs a percentage of the profits derived from the sale.[6]

         On March 21, 2017, Defendants' motion to dismiss the original Complaint was granted in part and denied in part.[7] In that ruling, Plaintiffs' claims against the Individual Defendants were dismissed for lack of personal jurisdiction.[8] Additionally, Plaintiffs' claims against the Defendants under the Louisiana Unfair Trade Practices Act (“LUTPA”), the Federal Trade Commission Act, Louisiana Securities Law, and the Fair Labor Standards Act (“FLSA”) were dismissed, and Plaintiffs' claims for breach of contract, interference with contract, and conversion against the Individual Defendants were dismissed.[9] Plaintiffs were granted leave to file an amended complaint, and on April 11, 2017, Plaintiffs timely filed a First Supplemental and Amending Complaint (the “Amending Complaint”) to address, inter alia, the substantive deficiencies noted in the court's March 21, 2107 ruling.[10]

         On May 10, 2017, Defendants filed the instant Motion to Dismiss.[11] The Motion to Dismiss seeks dismissal of Plaintiffs' claims against the Individual Defendants for lack of personal jurisdiction, and also seeks dismissal of Plaintiffs' claims against all Defendants under LUTPA, FLSA, for conversion, and for unjust enrichment. Additionally, the Motion to Dismiss seeks dismissal of Plaintiffs' claims for breach of contract and interference with contract against the Individual Defendants.

         II. Law and Analysis

         A. Personal Jurisdiction Over the Individual Defendants

         Fed. R. Civ. P. 12(b)(2) authorizes dismissal of an action where the court lacks personal jurisdiction over a defendant. “Where a defendant challenges personal jurisdiction, the party seeking to invoke the power of the court bears the burden of proving that jurisdiction exists.” Luv N' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing Wyatt v. Laplan, 686 F.2d 276, 280 (5th Cir. 1982)). When, as in this case, a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Johnston v. Multidata Systems Intern. Corp., 523 F.3d 602, 609 (5th Cir. 2008) (quoting Buillion v. Gillepsie, 895 F.2d 213, 217 (5th Cir. 1990) (citations omitted)). “Moreover, on a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the plaintiff's complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining whether a prima facie case for personal jurisdiction exists.” Id. (“Proof by preponderance of the evidence is not required.”). However, in assessing whether the plaintiff has presented a prima facie case of personal jurisdiction, the court “will not ‘credit conclusory allegations, even if uncontroverted.'” Sealed Appellant 1 v. Sealed Appellee 1, 625 Fed.Appx. 628, 631 (5th Cir. 2015) (quoting Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001)). The court may consider “affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.” Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (quoting Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)). “[A]ll uncontroverted allegations are taken as true and fact conflicts are resolved in the plaintiff's favor.” General Retail Services, Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.Appx. 775, 792 (5th Cir. 2007).

         “A nonresident defendant's contacts may support either specific or general jurisdiction.” Service Steel Warehouse, Co. L.P. v. Eakin, Civil Action No. 10-151, 2011 WL 3439132, at * 2 (M.D. La. Aug. 5, 2011). “Specific jurisdiction over a nonresident defendant is present where the ‘suit arises out of or [is] related to the defendant's contacts with the forum....'” Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Clemens v. McNamee, 615 F.3d 374, 378-379 (5th Cir. 2010) (stating that “[s]pecific jurisdiction ... requires a sufficient nexus between the nonresident's contacts with the forum and the cause of action”)). “Alternatively, general jurisdiction exists ‘when a nonresident defendant's contacts with the forum are substantial, continuous, and systematic.'” Id. (citing Johnston v. Multidata Systems Intern. Corp., 523 F.3d 602, 609 (5th Cir. 2008)).[12]

         The Fifth Circuit has set forth a three-step analysis for specific personal jurisdiction, whereby the court considers:

(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.

Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 378 (5th Cir. 2002) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). “A defendant has minimum contacts with a forum state if ‘the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” Burger King, 471 U.S. at 474. “Even where a defendant has no physical presence in the forum state, a single purposeful contact is sufficient to confer personal jurisdiction if the cause of action arises from the contact.” Nuovo Pignone, 310 F.3d at 379. “Once a plaintiff establishes minimum contacts between the defendant and the forum state, the burden of proof shifts to the defendant to show that the assertion of jurisdiction is unfair and unreasonable.” Id. (citing Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.1999)).

         In their Amending Complaint, [13] Plaintiffs allege that William Bullock is the president of PCS, Monica Lewis is a “director, consultant and managing partner of PCS, ” and Kim Roundtree is a director of PCS.[14] Plaintiffs allege the Individual Defendants and PCS recruited them by “offering them an opportunity to invest in Primary Care Solutions, Inc. and start their own satellite agency offices that promised to pay 40% of the profits monthly after a $25, 000 sweat equity investment.”[15] Plaintiffs assert that “[i]n approximately March or April 2014, during a presentation meeting at the Baton Rouge office of PCS, Kendall ‘Ken' Brown and others were told by William Bullock, Kim Roundtree, and Monica Lewis that the company had decided to franchise Primary Care Solutions”[16] and that “PCS through its alter ego, President, William Bullock and alter egos directors, Monica Lewis and Kim Roundtree came to Baton Rouge Louisiana in March and April 2014 and convinced Tammy Cooper an employee of PCS in the Baton Rouge [sic]

         through fraudulent misrepresentations discussed above to sign a sham contract that contained an invalid non-compete clauses [sic]….”[17] With respect to Mr. Brown, Plaintiffs allege that

In April 2014 after the presentation meeting where the PCS franchise plan was introduce [sic], Ken Brown was introduce [sic] by Kim Roundtree and Monica Lewis to a man known as Keil who would be moving to Louisiana to open a franchise in St. Francisville and asked Ken Brown to assist him to find a site; then later told him that Keil had changed his mind and on July 25, 2014 Kim Roundtree and Monica Lewis returned to the Baton Rouge office and told Ken Brown, a PCS employee, that because the deal with Keil had fallen through that they wanted to offer him the opportunity to start the St. Francisville office as his own and that he could either purchase the office with upfront cash or that he could obtain the franchise for the St. Francisville office through the plan to put up $25, 000.00 in sweat equity.[18]

         Plaintiffs allege that the Individual Defendants solicited them to invest in “a purported franchise scheme” by, inter alia, “[c]reating and presenting false spread sheets/mock plan…showing the amount of monthly income that could be generated….”[19] Plaintiffs further allege that “[a]bout once a month, Kim Roundtree and Monica Lewis came to Louisiana for about a week and worked out of the Baton Rouge office”[20] and that Roundtree and Lewis would “hold meetings and trainings for PCS employees at the Hilton Garden Inn on Harding Boulevard in Baton Rouge, LA.”[21]Plaintiffs allege that “on or about May 5, 2015, without notice to Cooper or Brown, Primary Care Solutions, LLC sold certain named offices including the satellite offices established by Cooper and Brown to Seaside…without paying Cooper/Cross Over Therapy, LLC or Brown any percentage of the profits from the sale of their agency offices to Seaside”[22] and that in a group text between Lewis, Roundtree, and Cooper, Roundtree “intentionally fraudulently misrepresented” that Seaside had been provided with the “Site Director's agreement” and had “committed to honoring the agreements.”[23]

         In addition to the allegations set forth in the Amending Complaint, in opposition to the original Motion to Dismiss for lack of personal jurisdiction, Plaintiffs provided affidavits from Cooper and Brown.[24] In her affidavit, Cooper asserts that the Individual Defendants made periodic visits to the Louisiana and also communicated with her via phone, text messages, and emails.[25]Cooper further alleges that her initial contract with PCS was signed while she was in Louisiana, [26]and that the Individual Defendants communicated with her through telephone conversations and text messages regarding the Donaldsonville office while she was in Louisiana.[27] Similarly, Brown asserts that he met with Bullock in Louisiana three to four times between 2014 and 2015, and that he spoke with him “at the PCS Christmas party that was held in Louisiana.”[28] Brown also asserts that Roundtree and Lewis “would come to meet with us in Louisiana during the third (3rd) week of each month and stay the entire week to check on operations in the Louisiana offices”[29] and that the “presentation meeting” referenced in the Complaint “occurred in 2014 in Louisiana in the Baton Rouge office. William Bullock, Kim Roundtree, and Monica Lewis were present at the meeting when I, and others were told that the company had decided to franchise Primary Care Solutions.”[30] Brown asserts that the Individual Defendants “negotiated the contract with me in both Louisiana and North Carolina, ”[31] “stalled and interfered with my development of the St. Francisville, LA office”[32] and “came into Louisiana and sold all of the Louisiana office [sic] including the office that I development [sic] in St. Francisville….”[33]

         1. The Fiduciary Shield Doctrine

         “[T]he general rule is that jurisdiction over an individual cannot be predicated upon jurisdiction over a corporation….” Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985). As explained by the Spademan court, “the fiduciary-shield doctrine…holds that an individual's transaction of business within the state solely as a corporate officer does not create personal jurisdiction over that individual though the state has in personam jurisdiction over the corporation.” Id. See also, FloQuip, Inc. v Chem Rock Technologies, Civil No. 16-35, 2016 WL 4574436, at * 12 (W.D. La. June 20, 2016) (“The fiduciary shield doctrine holds that an individual's transaction of business within a state solely as a corporate officer does not create personal jurisdiction over that individual, though the state may have personal jurisdiction over the corporation.”); Service Steel Warehouse, Co., L.P. v. Eakin, Civil Action No 10-151, 2011 WL 3439132, at * 2 (M.D. La. Aug. 5, 2011) (“The Court notes that the cause of action is based on alleged representations made by the defendant in his role as the corporate representative of a Louisiana corporation. The Fiduciary Shield Doctrine, however, provides that ‘an individual's transaction of business within a state solely as a corporate officer does not create personal jurisdiction over that individual though the state has in personam jurisdiction over the corporation.'”) (citing Spademan).

         “Although the general rule is that jurisdiction over a corporate officer cannot be predicated upon jurisdiction over a corporation, two exceptions to the fiduciary shield doctrine have been recognized. First, courts may disregard the corporate form and exercise jurisdiction over an individual officer if the corporation is the ‘alter ego' of the officer.” FloQuip, Inc. v Chem Rock Technologies, Civil No. 16-35, 2016 WL 4574436, at * 12 (W.D. La. June 20, 2016) (citing Spademan, 772 F.2d at 1197) (“courts have recognized an exception to this rule when the corporation is the alter ego of the individual.”). “Second, the court may exercise personal jurisdiction over an officer who allegedly committed an intentional tort directed at the forum state.” Id. See also, Calder v. Jones, 104 S.Ct. 1482, 1487 (1984) (explaining that the individual defendants' “status as employees does not somehow insulate them from jurisdiction” and the exercise of finding personal jurisdiction proper because the individual defendants were “primary participants in an alleged wrongdoing intentionally directed at a California resident….”).

         Here, Plaintiffs assert that when “the action of the defendants involve torts, intentional misrepresentations, and fraud as are alleged in this lawsuit…the court can exercise specific personal jurisdiction.”[34] Additionally, Plaintiffs argue that this case “is about the alter egos of the corporation using the corporation as a shield for fraud and unfair and deceptive trade practices. Thus, the fiduciary shield doctrine does not apply in this case.”[35] Accordingly, Plaintiffs seek to rely on both exceptions to the fiduciary shield doctrine to find this court has personal jurisdiction over the Individual Defendants.

         a. Individual Defendants as Alter Egos of PCS

         In the March's 21, 2017 Ruling, this court found that Plaintiffs failed to provide a basis for finding that the Individual Defendants were the “alter egos” of PCS.[36] In so finding, the court noted that Plaintiffs failed to controvert the Declaration of William Bullock, wherein he asserted that “[a]t all applicable times, Primary Care Solutions maintained a separate legal existence. For example Primary Care Solutions filed Articles of Incorporation with the North Carolina Secretary of State, filed annual reports, appointed an agent, maintained its own separate bank accounts, and observed other corporate formalities.”[37]

         Plaintiffs assert throughout their Amending Complaint that the Individual Defendants are the “alter egos” of PCS. In contrast to their original complaint, the Amending Complaint sets forth a list of reasons purporting to support the assertion that the Individual Defendants should be considered the alter egos of PCS:

a. PCS was undercapitalized, and in approximately April or May 2015, Kim Roundtree advised Tammy Cooper that PCS was selling to Seaside because PCS didn't have three months of payroll to cover the sites and all of the employees.
b. PCS was insolvent as supported by such acts as the following:
1. On June 11, 2014, Kim Roundtree sent Tammy Cooper a text message directing Tammy Cooper to write a personal check to PCS to cover the rent, phone bill and utilities for the Donaldsonville office. The text from Kim Roundtree to Tammy Cooper specifically stated as follows:
Just so that we are on the same page… as fae [sic] as rent, phone and utilities, Tammy will provide the funds to PCS and PCS will pay those expenses. For example, Tammy you write a check to pcs(sic) for the rent for 800 and pcs(sic) will write the check to the landlord.
2. Coercing Tammy Cooper through text messaging on August 29, 2014 to pay the rent on the Donaldsonville office for September and October by working two extra days as an employee of PC [sic] instead of being paid for her work.
3. PCS did not write checks to Tammy Cooper and Cross Over therapy in a timely manner.
4. PCS entered into sham contracts with Tammy Cooper, Cross Over Therapy and Ken Brown to establish additional sites of PCS as a method to facilitate additional profits to PCS.
5. In mid to late 2014, PCS started increasing their profit margin by increasing the billing for group sessions and camps.
6. PCS charged Tammy Cooper, Cross Over Therapy, and Ken Brown a 15% administrative fee to cover services that were not being performed by PCS and did not pay Cooper, Brown or a third party to perform services such as the following:
i. To pay for a Licensed Mental Health Professional (LMHP), but Tammy Cooper and Ken Brown were the LMHPs that were not paid for their services as a LMPH [sic] to the Donaldsonville and St. Francisville sites.
ii. Fees were also deducted for an administrative receptionist, but Cooper and Brown scheduled their own appointments.
iii. Fees were charged for a utilization review manager, but Cooper and Brown kept up with authorizations, and when, they needed to be reauthorized.
7. More money was charged to Cooper and Cross Over Therapy for such things as the office phone bill, utilities, and health clinics deductions than were owed.
8. PCS still owed Tammy Cooper approximately $6, 000.00 at the time that the business was sold and to date has never been paid to her, and Kim Roundtree verified that money was owed to Tammy Cooper/Cross Over Therapy in a text dated May 16, 2015; wherein, Roundtree advised that the profit check due would be paid by PCS.
9. Sold PCS to Seaside without consulting Cooper, Cross Over Therapy or Brown about the sale.
10. Conversion of office equipment owned by Cooper/Cross Over Therapy.
11. Conversion of profits owed to Cooper/Cross Over Therapy and Brown.
12. The corporation was the alter ego of its dominant shareholder, William Bullock, is supported by: Per the incorporation documents filed with the North Carolina Secretary of State, William Bullock was the President of PCS and the sole owner of the total 1000 shares that Primary Care Solutions is authorized to issue at a $5.00 par value.
i. In telephone conversation on February 4, 2015 Kim Roundtree and Monica Lewis told Tammy Cooper and Ken Brown that William Bullock was the only shareholder, owned everything, and that Kim Roundtree and Monica Lewis were actually just consultants/managing partners.
ii. On information and belief, there was siphoning of funds by the dominant shareholder.[38]

         Factors that have been considered in determining whether a corporation is the alter ego of its dominant shareholder include whether the corporation is undercapitalized, does not keep separate books or finances, is used to promote fraud or illegality, does not follow corporate formalities, and is merely a sham. See, Spademan, 772 F.2d at 1197. Similar factors are considered by courts applying either Louisiana or North Carolina law. See, Dykes v. Maverick Motion Picture Group, LLC, Civil Action No. 08-536, 2011 WL 900276, at * 5 (M.D. La. March 14, 2011) (“In determining whether to ‘pierce the corporate veil' under an alter-ego theory, courts consider factors such as whether a corporation was adequately capitalized for the undertaking, whether the corporation was solvent, whether the entity paid dividends to the shareholders, whether officers and directors acted properly, and whether the corporation acted as a façade for the dominant shareholder.”); Green v. Freeman, 367 N.C. 136, 270 ( N.C. 2013) (“Evidence upon which we have relied to justify piercing the corporate veil includes inadequate capitalization, noncompliance with corporate formalities, lack of a separate corporate identity, excessive fragmentation, siphoning of funds by the dominant shareholder, nonfunctioning officers and directors, and absence of corporate records.”).[39] Here, although Plaintiffs have included the words “undercapitalized” and “insolvent” in their Amending Complaint, the alleged facts supporting such assertions are lacking. Further, while Plaintiffs allege “there was a siphoning of funds by the dominant shareholder” (presumably meaning Mr. Bullock), they have provided no support for such assertion, and the thrust of the allegations set forth in Plaintiffs' “alter ego” paragraph appears to be simply a rehashing of Plaintiffs' claims regarding alleged breaches of the agreements at issue and conversion.

         Here, Plaintiffs have not provided sufficient factual information to make a prima facie showing that the Individual Defendants named should be considered the alter egos of PCS. Compare, Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, 519 F.2d 634, 638 (8th Cir. 1975) (outlining evidence showing that particular individual defendant “dominated and controlled the business and treated it as his own.”); Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 653 (5th Cir. 2002) (“federal courts have consistently acknowledged that it is compatible with due process for a court to exercise personal jurisdiction over an individual or a corporation that would not ordinarily be subject to personal jurisdiction in that court when the individual or corporation is an alter ego or successor of a corporation that would be subject to personal jurisdiction in that court. The theory underlying these cases is that, because the two corporations (or the corporation and its individual alter ego) are the same entity, the jurisdictional contacts of one are the jurisdictional contacts of the other for the purposes of the International Shoe due process analysis.”) (citing Lakota, 519 F.2d at 637)). Without the necessary linkage between the alleged insolvency or undercapitalization of PCS and these particular Individual Defendants, the court cannot superimpose the forum contacts of PCS upon the Individual Defendants and therefore personal jurisdiction over the Individual Defendants cannot be exercised based on their alleged status as the “alter egos” of PCS.

         b. The Individual Defendants' Alleged Torts and Intentional Misrepresentations

         This court has explained that “for a court to exercise jurisdiction over a corporate representative, the individual must have personally engaged in activities within the forum state which would bring him within the state's long-arm statute, for instance, by committing a tort, such as fraud, in the forum state.” Dykes v. Maverick Motion Picture Group, LLC, Civil Action No. 08-536, 2011 WL 900276, at * 5 (M.D. La. March 14, 2011) (internal citations omitted). See also, Sheriff's Office of St. Tammany Parish v. Nathan, Civil Action No. 14-442, 2015 WL 3651343, at * 5 (E.D. La. June 11, 2015) (“The exception provides that the fiduciary shield doctrine will not defeat personal jurisdiction where a non-resident corporate agent commits a tort within the forum state which would subject him to personal liability under the laws of that state.”); Canada Crown Inv. Corp. v. Colt Production Corp., Inc., Civ. A. No. 94-2766, 1995 WL 65119, at * 1 (E.D. La. Feb. 15, 1995) (“if a corporate officer engages in tortious conduct in his corporate capacity in that forum, a court may consider that conduct as contact with the forum sufficient to support personal jurisdiction over that officer in his individual capacity.”); Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 954 So.2d 120, 128 (La. 2007) (“The court in [Escoto v. U.S. Lending Corp., 675 So.2d 741 (La.App. 4 Cir. 1996)] went on to recognize an exception to the fiduciary shield doctrine, which provides that the fiduciary shield doctrine will not defeat personal jurisdiction where a non-resident corporate agent commits a tort within a forum state which would subject him to personal liability under the laws of that state.”). See also, Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006) (personal jurisdiction over individual defendant proper despite assertion that all of defendant's forum contacts were in the context of his employment because individual had direct contact with Mississippi and under Mississippi law, a corporate officer could be held directly liable when he participated in or authorized the commission of a tort even on behalf of the corporation); Bellino v. Simon, Civ. A. 99-2208, 1999 WL 1059753, at * 3 (E.D. La. Nov. 22, 1999) (“the Fifth Circuit has recognized a fraud exception to the fiduciary shield doctrine, and district courts have extended it to other intentional torts. Because plaintiffs allege that defendants committed fraud and defamation in Louisiana, the fiduciary shield doctrine does not preclude jurisdiction.”) (internal citations omitted).

         In Lewis v. Fresne, 252 F.3d 352 (5th Cir. 2001), the Fifth Circuit found there was “sufficient evidence of minimum contacts to justify personal jurisdiction” by a Texas court over an individual director of Mad Martha's Ice Cream, Inc. (“Mad Martha's”), Rosenfeld, and the individual president of Mad Martha's, Farkas. There, Rosenfeld “failed to correct allegedly false statements” made by another Mad Martha's director while participating in a telephone conversation with plaintiff designed to convince plaintiff to make a $650, 000.00 loan to Mad Martha's and also “prepared and sent loan documents and stock certificates” to plaintiff” that “contained fraudulent misstatements.” Id. at 358. Similarly, Farkas allegedly “signed and sent security agreements to [plaintiff] in Texas that fraudulently represented that [plaintiff[ would receive a first lien” on a specific Mad Martha's store in Nantucket. Id. In finding the exercise of specific personal jurisdiction proper, the court noted that plaintiff contended that “all of the defendants intentionally defrauded him by lying about the ownership of the Nantucket Mad Martha's store.” Id. at 359. The court explained that “‘[w]hen the actual content of communications with a forum gives rise to intentional tort causes of action, this alone constitutes purposeful availment'” and that “[t]he ‘actual content' of Rosenfeld's and Farkas' communications to Lewis shows purposeful availment of the benefits and protections of Texas law.” Id. (citing Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 213 (5th Cir. 1999)). In response to Farkas' argument that he was immune from suit under the fiduciary shield doctrine, the Fifth Circuit explained that “[t]his is not a case where plaintiff's claim rests on nothing more than Farkas' status as a corporate officer. Instead, [plaintiff] contends that Farkas deliberately misled him so that Mad Martha's and Farkas would get the money needed to keep Mad Martha's afloat until the private placement. Therefore, the fiduciary shield doctrine should not apply.” Id. at 359, n. 6 (citing Darovec Marketing Group, Inc. v. Bio-Genics, Inc., 42 F.Supp.2d 810, 819 (N.D. Ill. 1999) (“the shield is removed if the individual's personal interests motivate his actions….”)).

         Similarly, in General Retail Services, Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.Appx. 775, 777 (5th Cir. 2007), plaintiff alleged that defendants, including the individual officers of two corporations, induced them to purchase a franchise by intentionally, recklessly, or negligently making false misrepresentations. The Fifth Circuit found there was sufficient evidence submitted to justify the exercise of personal jurisdiction by a Texas court over one of the individual defendants, Richard Simtob. Id. at 792. The court noted that “Simtob allegedly sent the marketing materials and Offering Circular that contained the alleged misrepresentations to [plaintiff] in Texas” and that Simtob “drafted the portion of the Offering Circular that made representations concerning the Wireless Toyz model store's profitability; he presented [plaintiff] with the Franchise Agreement in Texas; and he accepted the executed Franchise Agreement and franchise fee in Texas. Thus, [plaintiff] established that Simtob purposefully directed his activities to Texas because he created and intentionally sent the Offering Circular to Texas.” Id. at 794. In rejecting Simtob's argument that personal jurisdiction over him could not be exercised based on the fiduciary shield doctrine, the court explained that “while the fiduciary-shield doctrine could prohibit this court from ascribing acts of the Wireless Toyz to Simtob, it does not prohibit Simtob from being held personally liable for his own tortious conduct simply because he is an officer of a corporation.” Id. at 795.

         Here, Plaintiffs do not argue that the forum contacts of PCS should be attributed to the Individual Defendants and this court focuses on each Individual Defendant's alleged individual contacts with Louisiana. Recinos-Recinos v. Express Forestry, Inc., No. Civ. A 05-1355, 2005 WL 3543722, at * 3 (E.D. La. Oct. 6, 2005) (“Although the doctrine has been recognized in this circuit, the fiduciary shield doctrine is irrelevant if the plaintiffs are not seeking to attribute the corporation's contacts to the individual defendant.”). See also, United States v. Insurance Company of the State of Pennsylvania, No. 5:15-CV-81 (Lead) c/w No. 5:15-cv-1744, 2016 WL 1718268, at *3-4 (W.D. La. April 25, 2016) (explaining that the fiduciary shield doctrine requires consideration of each defendant's individual and personal contacts, and that while the fiduciary shield precluded the exercise of personal jurisdiction over the individual defendant based on the corporation's contacts with the forum state, personal jurisdiction over the individual defendant based on the individual's own personal contacts with the forum was proper based on the defendant's “alleged commission of torts in the course of his project management” and explaining “this court has consistently recognized that the fiduciary shield doctrine does not apply where, as here, the nonresident corporate employee is alleged to have acted fraudulently or tortiously in the forum state.”).

         Per the Amending Complaint, Plaintiffs allege that Bullock, Lewis, and Roundtree “during a presentation meeting at the Baton Rouge office of PCS” told Brown “that the company had decided to franchise Primary Care Solutions”[40] and that the Individual Defendants “came to Baton Rouge Louisiana in March and April 2014 and convinced Tammy Cooper…through fraudulent misrepresentations…to sign a sham contract….”[41] Despite these alleged representations, Plaintiffs allege that they were later told that their offices could not be franchises.[42] Plaintiffs further allege that both Roundtree and Lewis were involved in a group text wherein negotiations with Seaside were allegedly fraudulently misrepresented[43] and that after Seaside was sold, Lewis “continued to fraudulently represent to” Cooper the status of her contract through a May 16, 2015 text message.[44]Plaintiffs allege that following the sale to Seaside, Roundtree “verified that money was owed to” to Cooper and “advised that the profit check would be paid by PCS.”[45] Plaintiffs allege that Brown “discussed the open ended nature of his contract with” Roundtree and Lewis “and was assured the time frame for collecting the 40% profit was an indefinite period.”[46]

         Based on these allegations, the court finds that Plaintiffs have made a “prima facie showing of personal jurisdiction, ” Johnston, 523 F.3d at 609, over the Individual Defendants based on the alleged contacts of the Individual Defendants with the forum state and Plaintiffs' causes of action allegedly arising out of those contacts.[47] See, Hoover v. Florida Hydro, Inc., Civil Action No. 07- 1100, 2009 WL 1380619, at * 4 (E.D. La. May 14, 2009) (“The phone call at issue in the case at the bar was alleged to fraudulently induce plaintiff into creating an oral agreement modifying the contract. ‘When the actual content [of] communications with a forum gives rise to intentional tort causes of action, this alone constitutes purposeful availment.' Albeit weak, Williams' initiation of a telephone call to Hoover, during which he allegedly made fraudulent misrepresentations that induced Hoover to enter the contract is sufficient to support the exercise of personal jurisdiction over Williams.”) (internal citations omitted).

         “Once a plaintiff establishes minimum contacts between the defendant and the forum state, the burden of proof shifts to the defendant to show that the assertion of jurisdiction is unfair and unreasonable.” Nuovo Pignone, 310 F.3d at 379. Here, the Individual Defendants have failed to set forth any basis for a finding that the assertion of personal jurisdiction over them would be unfair and unreasonable. See, United States v. Insurance Company of the State of Pennsylvania, No. 5:15-CV-81 (Lead) c/w No. 5:15-cv-1744, 2016 WL 1718268, at *3-4 (W.D. La. April 25, 2016) (“The court also finds that Kuphal fails to make a ‘compelling case' that asserting jurisdiction over him would be unfair or unreasonable.”); Casares v. Agri-Placements Intern., Inc., Civil No. B-11-107, 12 F.Supp.3d 956, 970 (S.D. Tex. March 31, 2014) (Flaming does not separately argue that exercising personal jurisdiction in this action will offend traditional notions of fair play and substantial justice. ‘Once a plaintiff has established minimum contacts, the burden shifts to the defendant to show the assertion of jurisdiction would be unfair.' Since Flaming has not carried this burden, the Court does not consider further whether she has made a ‘compelling case against it.'”) (internal citations omitted).

         Based on the allegations relating to each Individual Defendants' forum contacts and Plaintiffs' causes of action arising therefrom, as well as the Individual Defendants' failure to meet their burden of showing that the assertion of personal jurisdiction would be unfair or unreasonable, the court finds that personal jurisdiction over the Individual Defendants is proper. Accordingly, the Individual Defendants' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) is DENIED.

         B. Rule 12(b)(6) Failure to State a Claim

         In addition to asserting that Plaintiffs' claims against the Individual Defendants should be dismissed for lack of personal jurisdiction, Defendants also assert that certain of Plaintiffs' claims should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim.[48] A motion filed pursuant to Rule 12(b)(6) challenges the sufficiency of a plaintiff's allegations. “When ruling on a 12(b)(6) motion, the court accepts the plaintiff's factual allegations as true, and construes all reasonable inferences in a light most favorable to the plaintiff or the nonmoving party.” Freeman v. Rubin, No. 11 CV 1254, 2012 WL 820472, at * 1 (W.D. La. March 8, 2012) (citing Gogreve v. Downtown Development District, Civ. A 05-2112, 426 F.Supp.2d 383, 388 (E.D. La. 2006)). See also, Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To avoid dismissal pursuant to Rule 12(b)(6), Plaintiffs must plead enough facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “Rule 8 does not require ‘detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'” Brand Coupon Network, LLC v. Catalina Marketing Corp., 748 F.3d 631, 634 (5th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (internal quotation marks omitted)). As this court has previously explained “[s]tated differently, a complaint must state ‘more than labels and conclusions'; ‘a formalistic recitation of the elements of a cause of action will not do.'” Rodrigue v. Seafood Source of Louisiana, Inc., Civil Action No. 13-817, 2014 WL 4986840, at * 2 (M.D. La. Sept. 15, 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In addition to claims against PCS, Plaintiffs assert claims against the Individual Defendants under the Louisiana Unfair Trade Practices Act and Fair Labor Standards Act, as well as for breach of contract, interference with contract, conversion and unjust enrichment. As discussed herein, the undersigned finds that Plaintiffs have failed to state a claim against the Individual Defendants. Critically, for many of Plaintiffs' claims against the Individual Defendants, Plaintiffs have failed to set forth any basis upon which this court could infer that the Individual Defendants (rather than PCS) benefitted.[49] This court previously explained this deficiency in its March 21, 2017 Ruling in the context of Plaintiffs' unfair trade practices act claim.[50]

         1. Louisiana Unfair Trade Practices Act (“LUTPA”)

         LUTPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce….” La. R.S. § 51:1405(A). “Louisiana has left the determination of what is an ‘unfair trade practice' largely to the courts to decide on a case-by-case basis.” Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993). See also, Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 35 So.3d 1053, 1059 (La. 2010) (“It has been left to the courts to decide, on a case-by-case basis, what conduct falls within the statute's prohibition.”) (citing Dufau v. Creole Engineering, Inc., 465 So.2d 752, 758 (La.App. 5 Cir. 1985) (In order to recover under LUTPA a plaintiff must prove “some element of fraud, misrepresentation, deception, or other unethical conduct” on the part of the defendant.)).

         “The courts have repeatedly held that, under this statute, the plaintiff must show the alleged conduct ‘offends established public policy and ... is immoral, unethical, oppressive, unscrupulous, or substantially injurious.'” Cheramie, 35 So.3d at 1059 (citations omitted). The Louisiana Supreme Court has explained that “the range of prohibited practices under LUTPA is extremely narrow.” Cheramie, 35 So.3d at 1060. Further, the Fifth Circuit has held that “the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes.” Turner, 989 F.2d at 1422. See also, Innovative Sales, LLC v. Northwood Mfg., Inc., No. 07-30598, 2008 WL 3244114, at * 6 (5th Cir. 2008) (“Innovative argues that the same actions taken by Northwood that support a breach of contract claim also support a LUTPA claim. This argument, however, is foreclosed by Turner v. Purina Mills, Inc., wherein this court expressly acknowledged that LUTPA ‘does not provide an alternate remedy for simple breaches of contract, ' noting that ‘[t]here is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes.'”).

         In the March 21, 2017 Ruling, this court rejected Plaintiffs' argument that the sale of the St. Francisville and Donaldsonville offices without making the allegedly proper payments to Plaintiffs could, without more, support a claim under LUTPA. In so holding, the court explained that “Plaintiffs' allegations are more akin to a breach of contract claim than the sort of ‘egregious' behavior contemplated by LUTPA.”[51] The court applied a heightened pleading standard under Fed.R.Civ.P. 9(b), and explained that “although Plaintiffs allege that Defendants engaged in fraudulent conduct in general terms throughout their Complaint, Plaintiffs fail to provide any specifics with regard to what was said to them, by whom it was said or where, and what (especially with respect to the Individual Defendants) was obtained thereby.”[52] In dismissing Plaintiffs' LUTPA claim, the court noted that “Plaintiffs have not outlined in their Complaint how they contend they were ‘coerced' into signing the contracts with PCS, and…have not alleged any specific fraud, misrepresentation, deception, or unethical conduct in the negotiation of their contracts with PCS.”[53]

         Here, per their Amending Complaint, Plaintiffs assert that the following amount “to fraud, deceit, and misrepresentation by soliciting employees of PCS, Tammy Cooper and Kendall ‘Ken Brown' to invest in a purported franchise investment scheme without following federal or Louisiana franchising or security laws…:”[54]

a. Creating and presenting false spread sheets/mock plan to Cooper/Cross Over Therapy in approximately April 2014 and Brown in approximately July 2014 showing the amount of monthly income that could be generated; if, they provided a sweat equity investment to purchase a vested interest in ...

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