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Pierre v. T&K Express, Inc.

United States District Court, E.D. Louisiana

December 18, 2018


         SECTION: "S" (1)



         IT IS HEREBY ORDERED that the Motion to Dismiss Pursuant to 12(b)(6) filed by defendants-in-counterclaim, Robert Evans, III and Evans Law, APLC ("Evans") (Rec. Doc, 154), in which defendants-in-counterclaim Joshua D, Allison and Joshua D. Allison Law, APLC ("Allison") join (Rec. Doc. 155), is GRANTED IN PART, and plaintiffs'/counterclaimants' claims for fraud and conspiracy are dismissed; plaintiffs' claims for legal malpractice are not dismissed.


         This matter arises out of an automobile accident in which the three counterclaimants, Felicia Pierre, Gwendolyn Pierre, and Percy Ross, sustained personal injuries. While there have been numerous proceedings in this case not directly relevant to the present motion, a recitation of the following brief facts is sufficient for the motion now before the court. Defendants-in-counterclaim, Evans and Allison, represented the counterclaimants in the personal injury suit, and ultimately obtained a settlement for them. Following the settlement, counterclaimants sought to rescind the settlement contending that they had not authorized it. They were not successful in opposing the original defendants' motion to enforce the settlement, and in a detailed Report and Recommendation entered on July 9, 2018, Magistrate Judge Janis Van Meerveld found the settlement enforceable. Rec. Doc. 80. The district court adopted the Report and Recommendation as its opinion, and granted the Motion to Enforce the Settlement on March 20, 2018. Rec. Doc. 91.

         Counterclaimants filed a counterclaim on June 6, 2018, alleging that their prior attorneys, Evans and Allison (hereinafter, sometimes "the attorneys"), committed malpractice by representing them despite known conflicts of interest, settling their claims without their consent, and falsely representing to defense counsel that they had settlement authority. Answer and Counterclaim, ¶¶ 6 & 7. They further alleged that "[t] acts and omissions of Interveners [Evans and Allison] in falsely representing their authority to settle Intervenors [sic] claims also constituted fraud," and that "[a]t all times material, Intervenors [Evans and Allison] conspired to undertake and complete the acts and omissions complained of." Id. at ¶ 15.

         The First Supplemental and Amending Counterclaim added one new fraud allegation: "The alleged settlements obtained by Intervenors [Evans and Allison] with the primary Defendants were obtained fraudulently, illegally, and unethically." First Supplemental and Amending Counterclaim, ¶ 7.

         Evans and Alison filed the instant motion, seeking to dismiss the Counterclaim, relying on Federal Rules of Civil Procedure 12(b)(6), 8, and 9(b).


         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, facts sufficient to state a claim for relief that is plausible on its face must be pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when the plaintiff pleads facts from which the court can "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal., 129 S.Ct. 1937, 1949 (2009). "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, 127 S.Ct, at 1965. The court "must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party." In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008). However, the court need not accept legal conclusions couched as factual allegations as true. Iqbal, 129 S.Ct, at 1949-50.

         Rule 8(a)(2) of the Federal Rules of Civil Procedure states that pleadings must contain a short and plain statement of the claim showing that the pleader is entitled to relief. To comply with Rule 8(a)(2) a plaintiff does not need to plead specific facts, but only '"give the defendant fair notice of what the. . . claim is and the grounds upon which it rests, '" Bell Atl. Corp. v. Twombly., 127 S.Ct. 1955 (2007) (quoting Conley v. Gibson, 78 S.Ct. 99, 103 (1957)).

         Rule 9(b) requires that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." FED. R. Civ. P. 9(b). "A dismissal for failure to state fraud with particularity as required by Rule 9(b) is a dismissal on the pleadings for failure to state a claim." Flaherty & Crumrine Preferred Income Fund. Inc.. 565 F.3d 200, 206 (5th Cir. 2009). "Rule 9(b) does not 'reflect a subscription to fact pleading' and requires only 'simple, concise, and direct' allegations of the 'circumstances constituting fraud,' which after Twombly must make relief plausible, not merely conceivable, when taken as true." U.S. ex rel Grubbs v. Kanneganti., 565 F.3d 180, 186 (5th Cir. 2009). "The frequently stated, judicially-created standard for a sufficient fraud complaint. ., instructs a plaintiff to plead the time, place and contents of the false representation, as well as the identity of the person making the misrepresentation and what that person obtained thereby." Id. (internal quotation and citation omitted).


         At the outset, the court notes that the Counterclaim and Supplemental and Amending Counterclaim are not limited to claims for fraud and conspiracy, but also include a claim for legal malpractice which is not addressed in the instant ...

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