National Elite Transportation LLC v. Angel Food Ministries Inc et al

Filing 24

ORDER granting in part and denying in part 7 Motion to Dismiss; granting in part and denying in part 16 Motion to Dismiss Complaint. Ordered by Judge C. Ashley Royal on 7/12/11 (lap)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
NATIONAL ELITE
TRANSPORTATION, LLC,
a Delaware limited liability company,

:
:
:
:
Plaintiff,
:
:
v.
:
:
ANGEL FOOD MINISTRIES, INC.,
:
a Georgia Corporation, and WESLEY
:
JOSEPH WINGO,
:
:
Defendants.
:
____________________________________:

Civil Action
No. 3:11-CV-41(CAR)

ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS
Before the Court is the Motion to Dismiss [Doc. 7 & 16 ] filed by Defendants Angel Food
Ministries, Inc. (“Angel Food”), and Wesley Wingo (“Wingo”). Through this Motion, Defendants
move, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Counts II, III, IV, and V of Plaintiff’s
Amended Complaint for failure to state a claim upon which relief may be granted.1 Having
considered the pleading and the briefs filed, the Court finds that Defendants’ Partial Motion to
Dismiss is due to be GRANTED in part and DENIED in part. Count IV of the Amended Complaint
and all claims against Defendant Wingo are dismissed. Counts II, III, and V of the Amended
Complaint, however, may proceed as alleged against Defendant Angel Food.2

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Following the filing of Defendants’ original Motion to Dismiss [Doc. 7], Plaintiff filed an
Amended Complaint [Doc. 12]. To avoid procedural confusion, Defendants renewed their Motion
[Doc. 16] with respect to the Amended Complaint and filed a reply brief which takes into account
the Amended Complaint.
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Defendants did not move to dismiss Count I, which states a breach of contract claim against
Defendant Angel Food. Thus that claim also remains.
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STANDARD OF REVIEW
In considering dismissal of claims under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a district court must accept the allegations set forth in the complaint as true and construe
facts in the light most favorable to the plaintiff. See Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th
Cir. 1999) (per curiam). A “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations;” however, “a plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 545 (2007) (internal quotation marks and citation omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id.
Moreover, on a motion to dismiss, the court’s function is not to assess the veracity or weight
of the evidence; the court must merely determine whether the complaint is legally sufficient. See
Sherman v. Helms, 80 F. Supp. 2d 1365, 1368 (M.D. Ga. 2000). Accordingly, the issue is whether
the plaintiff is entitled to present evidence in support of his claims, not whether those claims will
ultimately succeed. See Little v. City of N. Miami, 805 F.2d 962, 965 (11th Cir. 1986). Because
this standard imposes such a heavy burden on the defendant, Rule 12(b)(6) motions are rarely
granted. See Washington v. Dep’t of Children & Families, 256 F. App’x 326, 327 (11th Cir. 2007);
Beck v. Deloitte & Touche, 144 F.3d 732, 735-36 (11th Cir. 1998).
FACTUAL ALLEGATIONS
The present case arises out of an alleged breach of contract. In its Amended Complaint,
Plaintiff National Elite Transportation (“NET”) alleges that it entered into a “Shipper/Broker
Transportation Agreement” with Defendant Angel Food on October 24, 2008. In this document,
NET agreed to arrange freight transportation for Angel Food, and Angel Food agreed to utilize the
services of NET to arrange for transportation of its freight. Pursuant to the terms and conditions of
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the contract, Angel Food was required to pay NET the cost of each shipment brokered by NET plus
a 20% administrative fee ( referred to as a “cost plus 20%” agreement). The contract also contained
a “rate savings incentive provision,” which required that Angel Food compensate NET 30% of all
rate savings secured. The parties included the rate savings provision so that NET would have an
incentive to broker shipments of Angel Food’s freight at the best possible rate. Defendant Wingo
negotiated and signed the contract on behalf of Angel Food.
In reliance on this provision and Defendant Wingo’s representations that the rate savings
incentive compensation would be paid, NET brokered freight shipments on behalf of Defendants
and aggressively negotiated lower rates with carriers to save Angel Food substantial shipping costs.
During the twelve-month term of the contract, NET earned not less than $ 1,000,000.00 under the
rate saving incentive provision. However, Defendants never paid NET under the rate saving
incentive provision, and to date Defendants have refused to compensate NET under the provision
despite NET’s repeated requests for payment. Defendants now contend that there was no meeting
of the minds among the parties – regarding the rate saving incentive provision – when the contract
was formed and that the provision is thus unenforceable.
DISCUSSION
NET’s Complaint is pled in five Counts: I (breach of contract); II (promissory estoppel); III
(unjust enrichment); IV (negligent misrepresentation); and V (attorney fees). The first Count is pled
against Defendant Angel Food alone; the remaining Counts are pled against both Defendants.
Defendants have moved to dismiss Counts II, III, IV, and V of the Amended Complaint for failure
to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). For the
reasons discussed below, the Court finds that Count IV and all claims against Defendant Wingo are

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due to be dismissed. Counts II, III, and V of the Amended Complaint, however, may proceed as pled
against Defendant Angel Food. The Court will discuss each of the challenged Counts in turn below.
A. Count II - Promissory Estoppel
In Count II of the Amended Complaint, NET attempts to state a claim against both
Defendants for promissory estoppel. To state a promissory estoppel claim under Georgia law, a
plaintiff must allege that (1) the defendants made certain promises, (2) the defendants should have
expected that the plaintiff would rely on such promises, (3) the plaintiff did in fact rely on such
promises to his detriment, and (4) injustice can be avoided only by enforcement of the promise.
Houston v. Houston, 267 Ga. App. 450, 451 600 S.E.2d 395 (2004); Kamat v. Allatoona Federal
Sav. Bank, 231 Ga. App. 259, 263, 498 S.E.2d 152 (1998); see also, OCGA § 13-3-44(a).
In the Motion to Dismiss, Defendants to do not challenge whether NET has alleged facts
supporting each of these elements with respect to Defendant Angel Food. Indeed, the Amended
Complaint alleges that “Angel Food and Wingo promised to pay NET a rate savings incentive of
30% on each shipment that was brokered by NET on behalf of Angel Food at a rate below the
published shipping rate for that particular route,” and that Defendants “knew or should have
reasonably expected” that the promise to pay rate savings incentives would “induce NET to broker
and arrange for the shipments of Angel Food’s freight at negotiated rates lower than the published
rates.” The Complaint further alleges that this alleged promise in fact induced NET to negotiate
lower rates with carriers and that “[b]ut for this . . . provision, NET would have earned greater
compensation rates by brokering and arranging for the shipments of Angel Food’s freight at higher
rates in light of the ‘cost plus 20%’ compensation provision.” NET thus sufficiently alleges that it
brokered and arranged for the shipment of Angel Food’s freight at lower rates and reasonably relied,
to its detriment, on Angel Food’s written promise to pay rate savings incentive compensation.
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In their Motion, however, Defendants argue that this Count must be dismissed as to
Defendant Wingo because the Complaint alleges only that Wingo acted as an agent of Angel Food
and pleads no facts supporting a claim against Wingo personally. The Court agrees.
Under Georgia contract law, an agent assumes no personal liability when he acts for a
disclosed principal within the scope of his authority; his actions are deemed to be those of the
principal, who is alone liable in contract. Candler v. Clover Realty Co., 125 Ga. App. 278, 280, 187
S.E.2d 318 (1972). Thus, if during contract negotiations, a principal is disclosed and the agent
professes to act for the principal when negotiating a contract, the form in which the agent acts is
immaterial and the act will be held to be the act of the principal. Eayrs v. Absolute Roofing, Inc.,
300 Ga. App. 825, 826, 686 S.E.2d 432 (2009); O.C.G.A. § 10-6-23. The agent cannot be held
personally liable for any subsequent breach of the contract even if a plaintiff later contends that he
thought he was dealing with the agent as an individual. Eayrs, 300 Ga. App. at 826.
Though here the Amended Complaint technically pleads all elements of a promissory
estoppel claim against both Defendants and alleges that “Wingo represented . . . that the rate savings
incentive compensation would be paid,” NET does not allege that Defendant Wingo is personally
liable for Angel Food’s debt or that Wingo otherwise personally guaranteed that Angel Food would
make the rate savings incentive payments. Rather, when read as a whole, the Amended Complaint
alleges that NET and Angel Food, not Wingo, entered into the Shipper/Broker Transportation
Agreement and that Wingo negotiated and signed the agreement “on behalf of” Angel Food. There
is no allegation in the Amended Complaint that Defendant Wingo promised to pay the rate incentive
compensation himself. Nor is there an allegation of any “agreement” between NET and Wingo
other than the one Wingo negotiated “on behalf of” Angel Food.

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Because the Amended Complaint fails to allege that Defendant Wingo made any promise
other than what he negotiated as an agent of Angel Food, Defendants’ Motion to Dismiss the
promissory estoppel claim again Defendant Wingo is due to be granted. See Fitzgerald Forest
Prods., L.P. v. Durand Raute Corp. of Oregon, , 932 F. Supp. 293, 295 (M.D. Ga. 1996) (finding that
plaintiffs may not seek to impose liability upon defendant where he only acted as an agent for a
disclosed principal). The Complaint does not include sufficient allegations demonstrating that
Defendant Wingo made any promises to NET for which he can be held personally liable.
Defendants also contend that NET’s promissory estoppel claim against Angel Food must be
dismissed because promissory estoppel cannot exist where there is a contract on the subject. Adkins
v. Cagle Foods JV, LLC, 411 F.3d 1320 (11th Cir. 2005) (“[W]here a plaintiff seeks to enforce an
underlying contract which is reduced to writing, promissory estoppel is not available as a remedy”).
Mitsubishi Int'l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507, 1518-19 (11th Cir. 1994) (“It
is axiomatic that equitable relief is only available where there is no adequate remedy at law.”);
O.C.G.A. § 23-1-4. Defendants are correct about the law, and the Amended Complaint in this case
indeed alleges that a valid written agreement existed and states a claim for breach of contract.
“Other district courts have held, however, that dismissing an equitable count at this early
stage is not appropriate ‘merely because [a claimant] is prohibited under Georgia law from
recovering under a breach of contract theory and [an equitable theory].” Manhattan Const. Co. v.
McArthur Elec., Inc., 2007 WL 295535 * 9 (N.D. Ga. Jan. 30, 2007) (quoting McBride v. Life Ins.
Co. of Va., 190 F. Supp.2d 1366, 1378 (M.D. Ga.2002); Original Appalachian Artworks, Inc. v.
Schlaifer Nance & Co., 679 F. Supp. 1564, 1579 (N.D. Ga.1987)). Though a plaintiff “cannot
recover under both legal and equitable claims” at trial, he can certainly state claims under both

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theories in his complaint and later “be required at trial to elect under which of these remedies it
wishes to proceed.’” Id.
In this case, the Amended Complaint clearly alleges that Defendants contest whether the
written rate saving incentive compensation agreement is valid, and NET pled its promissory estoppel
claim “in the alternative” to its claim for breach of contract. The Court finds, therefore, that it would
be inappropriate to dismiss NET’s promissory estoppel claim at this time. If the contract provision
at issue is ultimately deemed to be unenforceable, Plaintiff has the right to pursue a claim of
promissory estoppel. See Goldstein v. Home Depot U.S.A., Inc., 609 F. Supp.2d 1340, 1347 (N.D.
Ga. 2009) (explaining that a party may plead equitable claims in the alternative when one or more
of the parties contests the existence of an express contract governing the subject of the dispute).
B. Count III – Unjust Enrichment
In the next Count of the Amended Complaint, NET attempts to state claims against both
Defendants for unjust enrichment. Defendants argue that these claims are also due to be dismissed
because the Complaint does not contain sufficient allegations against Defendant Wingo and because
the claim cannot exist where there is an express written contract.
“The theory of unjust enrichment applies when there is no legal contract and when there has
been a benefit conferred which would result in an unjust enrichment unless compensated.” Smith
Service Oil Co., Inc. v. Parker, 250 Ga. App. 270, 281, 549 S.E.2d 485 (2001) (quoting Cochran v.
Ogletree, 244 Ga. App. 537, 538-539, 536 S.E.2d 194 (2000)). In this case, the Amended Complaint
alleges that “NET brokered freight on behalf of Angel Food and Wingo pursuant to the rate savings
incentive program contained in the contract;” that NET’s efforts “saved Angel Food and Wingo
substantial shipment costs;” and that “Angel Food and Wingo” were unjustly enriched by the benefit
of such savings when they failed to compensate NET for the rate savings it procured. The
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Complaint thus sufficiently describes how Defendant Angel Food was allegedly enriched: Angel
Food enjoyed the benefit of lower cost without fulfilling its alleged obligation to compensate NET
for procuring the lower shipping rates.
However, the Complaint does not describe how Defendant Wingo received a financial
windfall through the cost savings enjoyed by Angel Food. NET’s conclusory allegation that “Angel
Food and Wingo readily accepted the benefit of such savings” does not identify any benefit Wingo
received or describe how he independently benefitted from Angel Food’s cost savings. Again, while
the Amended Complaint technically pleads all elements of the claim against both Defendants, NET’s
obligation to provide the grounds upon which it is entitled to relief against Wingo requires more than
mere labels and conclusions. Bell Atl. Corp., 550 U.S. at 545. NEC can not simply attach Defendant
Wingo’s name to all of the allegations against Angel Food and state a cognizable claim for unjust
enrichment against Defendant Wingo. “[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
To state an unjust enrichment claim against Defendant Wingo individually, NEC must have
pled enough facts to raise a reasonable expectation that discovery will reveal evidence of an actual
benefit conferred on Defendant Wingo. It has failed to do so here. The Amended Complaint does
not allege that NET conferred an actual benefit on Defendant Wingo apart from the cost savings
benefit enjoyed only by Angel Food.

There are no allegations that NET brokered freight

transportation on behalf of Defendant Wingo personally or that Defendant Wingo personally
benefitted when Angel Food allegedly breached the terms of its agreement. Rather, the factual
allegations in Amended Complaint suggest that Wingo acted only as an agent of Angel Food in this
case and was thus not conferred any individual benefit for which NET was not compensated.
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Accordingly, the Court finds that NET failed to state a claim for unjust enrichment against
Defendant Wingo. Defendants’ Motion to Dismiss this claim against Defendant Wingo is due to
be granted. See Smith Service Oil Co., Inc. v. Parker, 250 Ga. App. 270, 271, 549 S.E.2d 485
(2001) (finding that plaintiff failed to state a claim for unjust enrichment absent an allegation that
plaintiff conferred a benefit on defendant for which it has not been compensated).
The present Motion must be denied, however, with respect to the unjust enrichment claim
against Defendant Angel Food. In their Motion, Defendants argue that NET’s unjust enrichment
claims must be dismissed because a contract exists. As discussed with respect to NET’s promissory
estoppel claim, this argument has no merit. Like promissory estoppel, “[u]njust enrichment is an
equitable concept.” St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137, 508 S.E.2d 646 (1998)),
and “an alternative theory of recovery if a contract claim fails.” Tidikis v. Network for Med.
Comms. & Research, LLC, 274 Ga. App. 807, 811, 619 S.E.2d 481 (2005). It would, therefore, be
inappropriate to dismiss NET’s unjust enrichment claim at this early stage “merely because [NET]
is prohibited under Georgia law from recovering under a breach of contract theory and an unjust
enrichment theory.” McBride, 190 F. Supp.2d at 1378 (denying summary judgment on unjust
enrichment claim, because “[a]t trial the jury will be instructed that [p]laintiff may recover on his
. . . unjust enrichment claim only if the jury finds that there was no breach of contract”). NET is
entitled to proceed with the both theories at this stage.
C. Count IV – Negligent Misrepresentation
In Count IV, NET attempts to state a claim for a “negligent misrepresentation.” To state a
valid claim for negligent misrepresentation, a plaintiff must allege that (1) the defendant negligently
supplied of false information; (2) the plaintiff reasonably relied upon that false information; and (3)
the plaintiff suffered an economic injury proximately resulting from such reliance. Smiley v. S &
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J Investments, 260 Ga. App. 493, 498, 580 S.E.2d 283 (2003) (citation omitted). In other words,
a complaint sufficiently states a claim for negligent misrepresentation if it alleges that the defendant
supplied false information to the plaintiff upon which it reasonably relied, and as a result, the
plaintiff suffered damages. Sarif v. Novare Group, Inc., 306 Ga. App. 741, 745, 703 S.E.2d 348
(2010); Byung Ho Cheoun v. Infinite Energy, Inc., 363 Fed. Appx. 691, 695 (11th Cir. 2010).
Contrary to Defendants’ assertions, there is no “heightened pleading requirement” to state a claim
for negligent misrepresentation. See Fed. R. Civ. P. 9 (requiring only that “the circumstances
constituting fraud or mistake” be stated with particularity); Kingdom Ins. Group, LLC v. Cutler and
Associates, Inc., 2011 WL 2144791 * 5 n.1 (M.D.Ga., May 31, 2011) (“At this time, the Eleventh
Circuit does not require heightened pleading for a claim of negligent misrepresentation.”).
Here, the Amended Complaint alleges: that Defendants “Angel Food and Wingo represented
to NET that they would compensate NET through the rate savings incentive provision;” that “NET
relied on the representation of Defendants and aggressively negotiated lower freight shipment rates;”
that this reliance was “justified and reasonable;” and that “NET has been damaged by the
misrepresentations” of Defendants in an amount not less than $1,000,000.00.
In the Motion to Dismiss, Defendants again contend that the Amended Complaint fails to
make sufficient allegations against Defendant Wingo personally. Unlike the prior claims discussed,
however, negligent misrepresentation is tort; and an “employer and employee are jointly and
severally liable for the employee’s torts committed within the scope of his employment.” Dumas
v. ACCC Ins. Co., 2009 WL 5209498 * 4 (N.D.Ga. April 6, 2009) (citing Gateway Atlanta
Apartments, Inc. v. Harris, 290 Ga. App. 772, 660 S.E.2d 750, 755 (2008)). Thus, both Angel Food
and Wingo can be held liable for any negligent misrepresentation made by Wingo during the

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contract negotiation. NET's compound allegations are sufficient to state a tort claim against both
Defendants.
Defendants additionally contend, however, that the Amended Complaint also fails to state
a claim for negligent misrepresentation because such a claim must be based upon misrepresentations
related to a pre-existing or present fact and not a promise of future conduct. See Snapping Shoals
Elec. Membership Corp. v. RLI Ins. Corp., 2005 WL 3434803 *6 (N.D. Ga. Dec. 14, 2005). The
Court agrees. As one court has explained,
The typical action for negligent misrepresentation . . . involves a representation of
an existing fact, not a representation of future intent. While it is possible to be
negligent in failing to ascertain the truth or falsity of an existing fact, it is impossible
to be negligent in failing to ascertain the truth or falsity of one’s own future
intentions. One cannot negligently represent his or her own state of mind. See
Restatement (Second) of Torts § 530 cmt. b (1977). Even if one states an intent to
act in a certain manner and is merely uncertain if one intends to act in that manner,
the statement is not negligent but deceitful because one knows about the uncertainty
of one's future intent.
Jacobs Mfg. Co. v. Sam Brown Co., 792 F. Supp. 1520, 1528, (W.D. Mo. 1992), rev’d on other
grounds, 19 F.3d 1259 (8th Cir. 1994). This in fact appears to be the common law rule in most
jurisdictions. See e.g., Nissan Motor Acceptance Corp. v. Dealmaker Nissan, LLC, 2011 WL 94169
*3 (N.D.N.Y. Jan. 11, 2011) (“[S]tatements that are promissory in nature, and relate solely to future
conduct and events, are not actionable on a negligent misrepresentation or fraud theory.”); Allstate
Life Ins. Co. v. Robert W. Baird & Co., Inc., 756 F. Supp.2d 1113, 1168 (D. Ariz. 2010) (“future
promises and projections are not actionable under a negligent misrepresentation theory”); GEM
Indus., Inc. v. Sun Trust Bank, 700 F. Supp.2d 915, 925 (N.D. Ohio 2010) (“GEM's negligent
misrepresentation claim fails because it has only claimed negligence relating to a future promise,
rather than a present or existing fact.”).

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NET’s negligent misrepresentation claim is plainly based, not on a pre-existing fact, but on
a promise of future payment under the rate incentive compensation provision. Of course, “the
general rule cited by Defendants provides for an exception if, at the time it was made, the promisor
had no intention of following through with the promise. Id. (quoting Wilson v. S & L Acquisition
Co., LP, 940 F.2d 1429, 1439 (11th Cir.1991)). The Amended Complaint, however, does not allege
that Defendants had no intention of following through with the promise at the time it was made or
that Defendant Wingo should have known that Angel Food would not fulfill the promise.3 The
exception thus does not apply in this case. See id.
As a result, NET has failed to state a claim upon which relief may be granted. If Defendants
made a representation, which was promissory in nature – applying only to an intent to act in the
future – NET’s redress for injuries stemming from the alleged broken promise is found in contract
law, not tort. See Snapping Shoals, 2005 WL 3434803 at *6; Tom Hughes Marine, Inc. v. American
Honda Motor Co., Inc., 219 F.3d 321, 325 (4th Cir. 2000) (applying similar South Carolina law).
Defendants’ motion as to this claim is accordingly due to be granted.
D. Count V – Attorneys Fees
In the final Count of the Amended Complaint, NET attempts to state a claim for attorneys
fees. Defendants argue that this Count must be dismissed because NET does not allege any facts
that support the conclusion Defendants have acted in bad faith, been stubbornly litigious, or caused

3

“The theory of liability for negligent misrepresentation generally applies to the professional
defendants only, who provide information that is false through failure to exercise reasonable care
or competence in obtaining information that is relied upon by a third party and such reliance is
foreseeable.” Marquis Towers, Inc. v. Highland Group, 265 Ga. App. 343, 347, 593 S.E.2d 903
(2004) (citing Smiley v. S & J Investments, 260 Ga. App. 493, 496(2), 580 S.E.2d 283 (2003)).
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NET unnecessary trouble and expense as to be entitled to attorneys fees under O.C.G.A. § 13-6-11.
McClelland v. First Ga. Comty. Bank, 2010 WL 3199349 * 4 (M.D. Ga., Aug. 12, 2010).
Obviously, a “general prayer for ‘such other just and equitable relief as this Court may deem
proper and necessary” is not sufficient to state a claim for attorney fees.” In re Estate of Adriance,
269 Ga. App. 157, 157, 603 S.E.2d 521 (2004). Count V of the Amended Complaint, however,
plainly alleges that “Defendants have acted in bad faith, have been stubbornly litigious, and have
caused NET unnecessary trouble and expense,” as is required to state a claim for attorneys fees
under O.C.G.A. § 13-6-11. The factual allegations in the Amended Complaint, which were
specifically incorporated into Count V by reference, further allege that Defendants negotiated an
agreement stating that Angel Food would pay NET rate incentive compensation, represented that
the compensation would in fact be paid, and accepted the benefit of such savings, but later refused
(and continues to refuse) to compensate NET as promised – forcing NET to file suit.
As discussed above, to withstand a motion to dismiss, a complaint need only state sufficient
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. The Court finds that factual allegations in
the Amended Complaint regarding the claim for attorneys fees satisfy this standard. If true, the facts
alleged may support a finding that Defendant Angel Food has, in fact, acted in bad faith, been
stubbornly litigious, and caused NET unnecessary trouble and expense by wrongfully refusing to
comply with the terms of the written agreement. To this extent, Defendants’ Motion must be denied.
For the reasons discussed above, however, NET has failed to allege any personal misconduct
by Defendant Wingo. According to the allegations in the Amended Complaint, Defendant Wingo
acted only as an agent of Angel Food in this transaction and cannot be said to have acted in bad faith
or litigiously in his personal capacity, apart from his role of employee of Angel Food. NET,
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therefore, cannot state a claim for attorneys fees against Wingo. The present Motion is thus due to
be granted as to NET’s claim for attorney’s fees against Defendant Wingo.
CONCLUSION
Accordingly, Defendants’ Partial Motion to Dismiss is hereby GRANTED in part and
DENIED in part. Count IV and all claims against Defendant Wingo are dismissed. Counts I, II,
III, and V of the Amended Complaint, on the other hand, may proceed as pled against Defendant
Angel Food.

It is SO ORDERED this 12th day of July, 2011.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

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