United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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.
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)).
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).
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