Walker et al v. Williamson et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 25 Motion to Dismiss; granting in part and denying in part 27 Motion to Dismiss; denying 29 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Keith Starrett on 9/18/2015 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SCOTT WALKER, et al.
CIVIL ACTION NO. 1:14cv381-KS-JCG
JIMMY WILLIAMSON, et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on various motions filed by Defendants,
specifically, Defendant Michael A. Pohl’s, Individually and d/b/a the Law Office of
Michael A. Pohl, Motion to Dismiss Plaintiff’s First Amended Complaint Pursuant to
Rules 12(b)(6) and 9(b) (“Pohl’s Motion to Dismiss”) , Jimmy Williamson and Jimmy
Williamson P.C.’s Motion to Dismiss for Failure to State a Claim , and Jimmy
Williamson and Jimmy Williamson P.C.’s Motion to Dismiss for Lack of Personal
Jurisdiction . Having considering the submissions by the parties, the record, and the
applicable law, the Court finds the following:
Pohl’s Motion to Dismiss  should be granted in part and denied in part;
Williamson’s Motion to Dismiss for Failure to State a Claim  should be
granted in part and denied in part; and
Williamson’s Motion to Dismiss for Lack of Personal Jurisdiction 
should be denied.
The current action was commenced on October 18, 2014, by Plaintiffs Scott
Walker, individually and d/b/a Maxwell & Walker Consulting Group, LLC, and/or d/b/a
Precision Marketing Group, LLC (“Walker”); Steve Seymour, individually and d/b/a
Diamond Consulting and/or d/b/a Precision Marketing Group, LLC (“Seymour”); Kirk D.
Ladner, individually and d/b/a The Ladner Group and/or d/b/a Precision Marketing
Group, LLC (“Ladner”); and Precision Marketing Group, LLC, (“Precision”) (collectively
“Plaintiffs”) against Defendants Jimmy Williamson, individually and/or as Director and
President of Jimmy Williamson, P.C. (collectively “Williamson”), Michael A. Pohl,
individually and d/b/a The Law Office of Michael A. Pohl (“Pohl”), and unnamed
Defendants John and Jane Does A, B, C, D, E, F, and G. Defendants Williamson and
Pohl are attorneys licensed to practice in the State of Texas.
In their Amended Complaint , filed on November 24, 2014, Plaintiffs allege
that Pohl and Williamson joined together in a joint venture or partnership in order to
represent Mississippi clients in their claims against British Petroleum (“BP”) in
connection with the 2010 Deepwater Horizon oil spill. (See Amended Complaint  at
pp. 7-8 ¶ 27.) Plaintiffs contend that Pohl, on behalf of the joint venture/partnership he
had with Williamson, contracted with them “to provide public relations and marketing
services to aid in this endeavor.” (See id.)
Plaintiffs allege that in April 2012, Pohl contacted Walker and told him of his
partnership with Williamson and their goals. (See Amended Complaint  at pp. 7-8 ¶
27.) Walker then agreed to provide public relations and marketing services for the
partnership/joint venture. (See id.) Williamson met with Pohl and Walker later that
month on April 23, 2012. (See id. at p. 8 ¶ 28.) In May, Walker introduced Pohl to
Seymour, who also agreed to provide public relations and marketing services for the
enterprise. On May 25, 2012, in Biloxi, Mississippi, Pohl signed a contract with Walker,
Seymour, and Terry Robinson (not a party to this suit) for the provision of public
relations and marketing services in “the State of Mississippi and elsewhere.” (See
Amended Complaint  at pp. 8-9 ¶ 30; May Operating Agreement [19-2].) Under this
contract, Plaintiffs provided services such as facilitating meetings between Defendants
and potential Mississippi clients, introducing Defendants to Mississippi law firms and
lawyers, and assisting in the hiring of investigatory contractors. (See Amended
Complaint  at pp. 10-12 ¶¶ 33-37.) In exchange, Pohl agreed to pay Plaintiffs
$1,500 an hour, based upon ten hour days, seven days a week. (See id. at pp. 12-13
¶ 38.) Though the contract called for Plaintiffs to “keep accurate daily time records,”
Plaintiffs contend that Pohl assured them that detailed daily or hourly time records were
not necessary under the contract and accepted and paid hourly invoices without such
records. (See id. at p. 14 ¶¶ 41-42.) Through Plaintiffs’ efforts, Pohl and Williamson
gained the representation of over 1,000 Mississippi clients. (See id. at ¶ 44.)
Pohl requested a deferment of paying fees owed under the May Operation
Agreement [19-2], to which Plaintiffs agreed, instead accepting periodic payments.
(See id. at p. 15 ¶ 45.) Plaintiffs argue that these payments were bonuses or additional
compensation outside the original contract, which they say Pohl ratified by accepting
invoices that did not reflect credit for these payments. (See id.) Between February
2013 and August 2013, Pohl requested periodic invoices for a specific number of hours,
with which Plaintiffs complied. (See id. at p. 16 ¶ 46.) Each of these invoices were paid
by Pohl at the agreed rate of $1,500 per hour, and a total of $59,750 was paid under
these invoices. (See id.) Plaintiffs contend that an additional $780,000 is owed under
the May Operating Agreement [19-2]. (See id. at p. 17 ¶ 49.) Because Robinson has
settled his claim under the May contract, Plaintiffs claim $576,200, plus reimbursement
of expenses, is still owed to Walker and Seymour. (See id.)
In June 2012, Walker introduced Williamson to Ladner, who was then retained by
Defendants to provide public relations and marketing services, initially on a limited per
service basis. (See id. at p. 18 ¶ 50.) In July 2012, after informing Walker that
Defendants wanted to end their relationship with Robinson, Pohl, on behalf of the
Defendants, entered into a new contract with Walker, Seymour, and Ladner. (See id. at
¶¶ 50-51.) There was no time record keeping provision in the July 15, 2012 Contract.
(See id. at p. 19 ¶ 52; July Operating Agreement [19-4].) The services Plaintiffs were to
provide under this contract were substantially similar to the ones executed in May 2012.
(See Amended Complaint  at p. 19 ¶ 53.) An additional service provided under the
July contract, though, was the distribution of leather-bound wire-ring folders to potential
BP claimants, which included a cover with “Michael A. Pohl Attorney at Law” written at
the top, a letter on Williamson’s letterhead, a contingency fee contract, and additional
information. (See id. at pp. 19-20 ¶ 56; see also Pohl Notebook [19-5].)
Pohl agreed to pay Plaintiffs $1,500 per hour under the July contract, based upon
ten hour days, seven days a week. (See Amended Complaint  at p. 22 ¶ 62.)
Plaintiffs contend that, due to their efforts under the July contract, Williamson and Pohl
gained the representation of about 9,500 clients, most of whom were from Mississippi.
(See id. at p. 26 ¶ 69.) Plaintiffs claim that Pohl and Williamson owe them $7,875,000
under the July Operation Agreement [19-4], which they have refused to pay. (See id. at
p. 28 ¶ 77.)
Plaintiffs are now bringing suit for breach of contract, conscious or negligent bad
faith/breach of good faith and fair dealing, quantum meruit/unjust enrichment, and
fraud/fraudulent inducement/fraudulent misrepresentation. On December 22, 2014,
Defendant filed the current motions to dismiss under Federal Rule of Civil Procedure
12(b)(4) and (b)(6).
II. CHOICE OF LAW
A federal court sitting in diversity is bound to follow the substantive law of the
forum state, including that state’s conflict of law rules. Klaxon Co. v. Stentor Elec. Mfg.
Co, 313 U.S. 487, 496, 313 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941); see also Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 114 A.L.R. 1487 (1938). In
Mississippi, a choice of law analysis is only appropriate where there is a true conflict
between the laws of two or more states having an interest in the litigation. Zurich Am.
Ins. Co. v. Goodwin, 920 So.2d 427, 487 (Miss. 2006) (citing Boardman v. United Servs.
Auto. Ass’n, 470 So.2d 1024, 1038 (Miss. 1985)). Once a true conflict is found to exist,
Mississippi then employs a three-step choice of law analysis: (1) determine whether the
conflicting laws are substantive or procedural; (2) classify the area of substantive law,
whether tort, property, or contract; and (3) look at the relevant section of the
Restatement (Second) of Conflict of Laws. Id. at 488.
Pohl and Williamson identify only two potential conflicts between Mississippi and
Texas laws: the application of the economic loss rule and the existence of a joint
venture between Pohl and Williamson. For these two issues, Pohl and Wiliamson
contend that laws of Texas should apply. Because “the law of a single state does not
necessarily control every issue in a given case,” the Court examines each potential
conflict to determine which state’s law should apply. Boardman, 470 So.2d at 1031.
Application of the Economic Loss Rule
Under Texas law, the economic loss rule refers to the common law doctrine
restricting recovery of purely economic damages in actions for unintentional torts.
LAN/STV v. Martin K. Eby Const. Co., Inc., 435 S.W.3d 234, 235 (Tex. 2014). “This
rule generally precludes recovery in tort for economic losses resulting from the failure of
a party to perform under a contract.” Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242
S.W.3d 1, 12 (Tex. 2007) (citing Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 94-95
(Tex. 1991). Mississippi applies the economic loss rule only in the area of products
liability. Lyndon Prop. Ins. Co. v. Duke Levy & Assocs., LLC, 475 F.3d 268, 274 (5th
Cir. 2007). The Court must first determine if an actual conflict exists between the two
states as applied to Plaintiffs’ claims. See Zurich, 920 So.2d at 487 (citing Boardman,
470 So.2d at 1038).
Pohl and Williamson both argue that, under Texas law, this rule would bar all of
the Plaintiffs’ extra-contractual/tort claims, namely Plaintiffs’ claims of bad faith/breach
of good faith and fair dealing, quantum meruit/unjust enrichment, and fraud/fraudulent
inducement/fraudulent misrepresentation. It is clear that the economic loss rule would
not bar Plaintiffs’ quantum meruit/unjust enrichment claim, as the claim is an alternative
claim in case no valid contract is found to have existed and, if this claim were to
succeed, no damages would be the result of a failure to perform contractual duties. See
Hurd v. BAC Home Loans Servicing, LP, 880 F.Supp.2d 747, 762 (N.D. Tex. 2012)
(allowing quantum meruit claim to go forward despite Texas economic loss rule). Texas
law also does apply the economic loss rule to bar fraud and fraudulent inducement
claims. Id. at 464. However, because a Texas court could potentially apply the
economic loss rule to claim of bad faith/breach of good faith and fair dealing, if it found
that duty of good faith arose only from the contract, there is a clear conflict of law on this
issue. See Highland Crusader Offshore Partners, L.P. v. LifeCare Holdings, Inc., No.
CIV.A.3:08CV0102B, 2008 WL 3925272, at *14 (N.D. Tex. Aug. 27, 2008) (“If the
defendant’s duty to the plaintiff arises only from the contract between the parties,
plaintiff’s claim is usually a contractual claim only.”)
Moving on to Mississippi’s three-step conflict of law analysis, the first step is to
identify whether the law is substantive or procedural. As the application of the
economic loss rule to Plaintiffs’ claim does not fall into the limited number of laws the
Mississippi Supreme Court has found to be procedural, it is deemed to be substantive
under a Mississippi conflict of law analysis. See Zurich, 920 So.2d at 433 (“[F]ew laws
are classified as procedural . . . we have only found the definition of ‘procedural’ to
include statute of limitations, awards of attorney’s fees, and awards of prejudgment
The second step of Mississippi’s conflict of law analysis calls for a determination
of the area of substantive law the issue falls under. Pohl argues that Plaintiffs’ claim of
bad faith/breach of good faith and fair dealing sounds in contract. Plaintiffs contend that
it sounds in tort. The Court need not decide between the two, as under either analysis,
the laws of Mississippi should be applied. Because the only arguments made by either
Pohl or Williamson are based on the premise that this claim sounds in contract, the
Court addresses only an analysis under contract.
In step three of a conflict of law analysis, Mississippi looks to the Restatement
(Second) of Conflict of Laws. Zurich, 920 So.2d at 433-34. The Restatement supplies
both general and specific provisions, and the Mississippi Supreme Court has held that
the specific provisions of the Restatement should be guiding, with the more general
provisions having only secondary importance. Id. at 433 (citing Boardman, 470 So.2d
The contracts between Pohl and Plaintiffs are for the rendition of services;
therefore, § 196 of the Restatement (Second) of Conflict of Laws applies. This section
The validity of a contract for the rendition of services and the rights
created thereby are determined . . . by the local law of the state where the
contract requires that the services, or a major portion of the services, be
rendered, unless, with respect to the particular issue, some other state
has a more significant relationship under the principles stated in § 6 to the
transaction and the parties, in which the event the local law of the other
state will be applied.
Restatement (Second) of Conflict of Laws § 196 (1971). Because the contract specifies
Plaintiffs are “to provide public relations services in the State of Mississippi and
elsewhere,” it is clear that a major portion, if not all, of the services for which Plaintiffs
were to be rendered in Mississippi. (See May Operating Agreement [19-2]; July
Operating Agreement [19-4].) The Court does not find persuasive the argument that the
“or elsewhere” language of the contracts means that a major portion of the services
were not to be rendered in Mississippi. The contracts were negotiated and signed in
Mississippi, the represented purpose of the contracts, according to Plaintiffs’ Amended
Complaint , was to gain Mississippi clients, and the pleaded facts show that the
services were in fact, by and large, rendered in Mississippi. Therefore, under § 196,
Mississippi law should be applied.
Pohl argues that Texas has the most significant relationship with this claim under
the more general § 6 of the Restatement. Even if the Mississippi Supreme Court had
not held that the more specific sections of the Restatement were to be guiding, see
Zurich, 920 So.2d at 433 (citing Boardman, 470 So.2d at 1032), the Court would not find
Pohl’s argument to have merit. Pohl bases his argument that Texas has the most
significant relationship with Plaintiffs’ claim of bad faith/breach of good faith and fair
dealing on that fact that he, Pohl, is licensed to practice law in Texas and that Texas
has a substantial interest in regulating the professional conduct of its licensed attorneys.
While true that under Texas law, Pohl’s alleged actions might be considered
professional misconduct, that is not the issue in this case and has no bearing on the law
which should be applied to Plaintiffs’ claim.
Therefore, the Court finds that Mississippi is the appropriate choice of law with
regards to the Plaintiffs’ bad faith/breach of good faith and fair dealing claim.
Existence of a Joint Venture
Williamson argues that Mississippi and Texas laws conflict on whether a joint
venture exists. In Ingram v. Deere, the Texas Supreme Court stated that it saw “no
legal or logical reason for distinguishing a joint venture from a partnership on the
question of formation of the entity. 288 S.W.3d 886, 894 n.2 (2001). Similarly,
Mississippi does not distinguish a partnership and a joint venture for formation
purposes. Hults v. Tillman, 480 So.2d 1134, 1142 (Miss. 1985).
Both states employ similar factor tests in determining whether a partnership has
been formed. Texas uses a five-factor test, asking whether each participant (1) shares
in the profits of the business, (2) has expressed intent to be a partner, (3) has the right
of control, (4) shares in the losses or liabilities, and (5) has contributed money or
property to the business. Ingram, 288 S.W.3d at 895. Texas courts do not require
proof of all five factors, taking instead a “less formalistic and more practical approach to
recognizing the formation of a partnership.” Id. Mississippi uses a comparable threefactor test that looks at (1) intent, (2) control, and (3) sharing of profits and losses.
Smith v. Redd, 593 So.2d 989, 994 (Miss. 1991). Though the tests are formulated
differently, the Court does not find a conflict between the partnership formation laws of
Texas and Mississippi. Because there is no conflict, there is no need to do a choice of
law analysis. Zurich, 920 So.2d at 432. The Court therefore applies Mississippi law.
III. WILLIAMSON’S MOTION TO DISMISS FOR LACK OF JURISDICTION 
Standard of Review
“The plaintiff bears the burden of establishing a district court’s jurisdiction over a
non-resident, but it need only make a prima facie case if the district court rules without
an evidentiary hearing.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th
Cir. 2008) (citing Wilson v. Belin, 20 F.3d 644, 68 (5th Cir. 1994). For the purposes of a
motion to dismiss for lack of personal jurisdiction, all conflicts between facts “must be
resolved in the plaintiff’s favor for purposes of determining whether a prima facie case
for personal jurisdiction exists. Id. (quoting Bullion v. Gillespie, 895 F.2d 213, 217 (5th
Cir. 1990)). “In a federal diversity action such as this, the reach of federal jurisdiction
over non-resident defendants is measured by a two-step inquiry.” Smith v. DeWalt
Prods. Corp., 743 F.2d 277, 278 (5th Cir. 1984). First, the Court must determine
whether the laws of the Mississippi authorizes the assertion of personal jurisdiction
against Williamson. Id. If personal jurisdiction is authorized under Mississippi law, the
Court then must ensure that assertion of personal jurisdiction does not offend the Due
Process Clause of the Fourteenth Amendment. Id.
Mississippi Long-Arm Statute
Mississippi’s long-arm statute provides:
Any nonresident person, firm, general or limited partnership, or any foreign
or other corporation not qualified under the Constitution and laws of this
state as to doing business herein, who shall make a contract with a
resident of this state to be performed in whole or in part by any party in
this state, or who shall commit a tort in whole or in part in this state against
a resident or nonresident of this state, or who shall do business or perform
any character of work or service in this state, shall by such act or acts be
deemed to be doing business in Mississippi and shall thereby be
subjected to the jurisdiction of the courts of this state.
Miss. Code Ann. § 13-5-57. Plaintiffs contend that the Court can exercise personal
jurisdiction over Williamson under the contract and tort prongs of this long-arm statute
through his participation in a joint venture1 with Pohl. In Scott Co. of California v. Enco
Construction Co., the Mississippi Supreme Court held “that every member of a joint
venture is transacting business in this State when one of the joint venturers is
transacting in this State the business for which the joint venture was created.” 264
So.2d 409, 410 (Miss. 1972). Therefore, since, for purposes of this motion, there is
The Supreme Court of Mississippi has held that the only real difference between a
partnership and a joint venture is that the latter “is limited to a single transaction or a
series of similar transactions,” while the former refers “to a general and continuing
business.” Scott Co. of Cal. v. Enco Constr. Co., 264 So.2d 409, 411 (Miss. 1972). As
such, this Court chooses to use the term “joint venture” for purposes of this motion.
neither a dispute that contracts existed between Plaintiffs and Pohl for services to be
performed at least in part in Mississippi nor a dispute that the alleged tortious conduct
occurred in part in Mississippi, if Plaintiffs have alleged enough facts in their Amended
Complaint  to support their theory that a joint venture existed between Williamson
and Pohl, they have established a prima facie case for personal jurisdiction under
Under Mississippi law, a joint venture “exists when two or more persons combine
in a joint business enterprise for their mutual benefit with an understanding that they are
to share in profits or losses and each to have a voice in its management.” Hults v.
Tillman, 480, So.2d 1134, 1142 (Miss. 1985). “The three main questions that are
considered in [joint venture] determination are (1) the intent of the parties, (2) the control
question, and (3) profit sharing.” Smith v. Redd, 593 So.2d 989, 994 (Miss. 1991).
While actual intent is necessary to find that a joint venture existed, this intent can
be implied by the parties’ actions. Hults v. Tillman, 80 So.2d 1134, 1143 (Miss. 1985).
Williamson asserts that there was never any intent to form a joint venture. This
contention is in conflict with Plaintiffs’ allegations that Williamson and Pohl referred to
each other as “partners” and that it was represented to them that the contracts they held
were for the purpose of gaining clients for both Williamson and Pohl. (See Amended
Complaint  at p. 4 ¶ 18, pp. 32-35 ¶¶ 95-101.) Furthermore, the informational folder
distributed by Plaintiffs contained references to “The Law Office of Michael A. Pohl” and
a letter from Williamson on his own letterhead, signaling that they intended to be seen
as partners in the representation. (See id. at pp. 19-20 ¶ 56; see also Pohl Notebook
[19-5].) Conflicts of fact under a motion to dismiss for lack of personal jurisdiction are
resolved in favor of the plaintiff, and the alleged facts, taken as true, show that an
intention to form a joint venture could be said to have been implied by these actions.
See Johnston, 523 F.3d at 609 (citing Bullion, 895 F.2d at 217). The Court, then, finds
that Plaintiffs have alleged enough facts in their Amended Complaint  to satisfy the
intent prong of a joint venture analysis.
Profit sharing is the most important factor in determining whether a joint venture
exists. Century 21 Deep South Props., Ltd. v. Keys, 652 So.2d 707, 715 (Miss. 1995).
Plaintiffs have alleged that Williamson and Pohl, through their joint venture, agreed to
share legal fees earned through representation of BP oil spill claimants. (See Amended
Complaint  at pp. 5-6 ¶ 21, pp. 10-11 ¶¶ 34-35.) Williamson appears to concede as
much in his Motion to Dismiss for Failure to State a Claim, referenced specifically in his
arguments against the Court’s assertion of personal jurisdiction. (See Memo. in
Support for Motion to Dismiss for Failure to State a Claim  at pp. 16-18; Memo. in
Support Motion to Dismiss for Lack of Personal Jurisdiction  at p. 3.) In Braddock
Law Firm, PLLC v. Becnel, the Mississippi Court of Appeals held a similar fee splitting
arrangement among attorneys to qualify as “sharing profits” for the purposes of
determining whether a joint venture existed. 949 So.2d 38, 51 (Miss. Ct. App. 2006).
The state court in that case held that this type of profit-sharing arrangement alone could
provide sufficient evidence to support a finding of a joint venture. See id. Plaintiffs,
then, have provided enough factual allegations to pass this prong of the analysis.
“Lack of control is not enough by itself enough to disprove [a joint venture].”
Century 21, 652 So.2d at 715. “Partner-like control” may not be exerted by every party
of a joint venture because circumstances will vary with the relationship between the
parties. Smith, 593 So.2d at 994. Plaintiffs allege that Pohl acted in certain
circumstances at Williamson’s directions in his dealings with them. (See Amended
Complaint  at p. 5 ¶ 20, p. 7 ¶ 24-26, p. 34 ¶ 105.) Even if these allegations are
somewhat weak and conclusory statements going towards Williamson’s control over
Pohl’s actions, because the other two factors are supported by adequate factual
assertions, the Court finds that Plaintiffs have sufficiently pleaded enough facts in their
Amended Complaint  to support that a joint venture existed.
As such, since all members of a joint venture are said to be parties of a
transaction in Mississippi when that transaction is in furtherance of the joint venture,
Plaintiffs have sufficiently met their burden to show a prima facie case for the Court’s
assertion of personal jurisdiction over Williamson under Mississippi law.
Fourteenth Amendment Due Process Clause
In order for a federal court to exercise personal jurisdiction over a nonresident in
compliance with the Due Process Clause of the Fourteenth Amendment, it must find
that 1) “the defendant purposefully established ‘minimum contacts’ with the forum state”
and 2) “entertainment of the suit against the nonresident would not offend ‘traditional
notions of fair play and substantial justice.’” Bullion v. Gillespie, 895 F.2d 213, 216 (5th
Cir. 1990) (citing Asahi Metal Indus. Co. v. Superior Court, 280 U.S. 102, 105, 107 S.
Ct. 1026, 1029, 94 L. Ed. 2d 92(1987)). Plaintiffs’ theory of personal jurisdiction is
Williamson’s participation in the alleged joint venture with Pohl. Williamson argues that
Pohl’s contacts with Mississippi, which the Court assumes are sufficient under the
“minimum contacts” test absent argument to the contrary, cannot be imputed to
Williamson by virtue of the alleged joint venture because a joint venture did not exist
between Williamson and Pohl. Williamson further contends that assertion of personal
jurisdiction over him would offend “traditional notions of fair play and substantial justice.”
Multiple district courts have found that the contacts of one co-venturer can be
imputed to another in the exercise of personal jurisdiction over a non-resident when that
co-venturer is acting in furtherance of the joint venture. See Hanback v. GGNSC
Southaven, LLC, No. 3:13-CV-00288-MPM-SAA, 2014 WL 3530613, at *3 (N.D. Miss.
2014); Nolan v. Boeing Co., 736 F.Supp. 120, 127 (E.D. La. 1990); Itel Containers Int’l
Corp. v. Atlanttrafik Express Serv., Ltd., 116 F.R.D. 477, 479-80 (S.D.N.Y. 1987);
Aigner v. Bell Helicopters, Inc., 86 F.R.D. 532, 540-41 (N.D. Ill. 1980). As detailed
above, Plaintiffs have pleaded sufficient facts in their Amended Complaint  to
support a finding of a joint venture. See supra III.B. Williamson has put forth no
argument that the contacts of Pohl, his alleged co-venturer, are not sufficient to satisfy
the “minimum contacts” necessary for personal jurisdiction under a due process
analysis. Furthermore, such an argument would surely fail, as Plaintiffs have shown
that Pohl negotiated and signed contracts with them in Mississippi, for services to be
performed in large part in Mississippi, and that such contracts form the basis for the
action before the Court. (See May Operating Agreement [19-2]; July Operating
Agreement [19-4].) If these contracts were in furtherance of the joint venture, as
Plaintiffs sufficiently plead and as Williamson does not contest other than to protest the
existence of such an enterprise, the contacts Pohl had with Mississippi pursuant to
these contracts can be imputed to Williamson. As such, Williamson has had the
minimum contacts with Mississippi necessary under the Due Process Clause of the
Fourteenth Amendment for this Court to exercise personal jurisdiction over him.
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.” Wien Air Alaska, Inc. v.
Brandt, 195 F.3d 208, 215 (5th Cir. 1999). To show that an exercise of jurisdiction
would be unfair under due process, “the defendant must make a ‘compelling case’
against it.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S. Ct.
2174, 85 L. Ed. 2d 528 (1985). Williamson has put forth no argument that exercising
personal jurisdiction would be unfair or unreasonable so as to offend “traditional notions
of fair play and substantial justice,” other than the mere conclusion that it would do so,
and instead chooses to argue only that he has not had sufficient minimum contacts with
Mississippi. Since the Court finds that Pohl’s contacts can be imputed to Williamson
through the alleged joint venture, Williamson’s Motion to Dismiss for Lack of Personal
Jurisdiction  must be denied.
III. MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM  
Standard of Review
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). “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.” Id.; see also In re Great Lakes Dredge & Dock Co.,
624 F.3d 201, 210 (5th Cir. 2010) (“To be plausible, the complaint’s ‘[f]actual allegations
must be enough to raise a right to relief above the speculative level.’”) (quoting
Twombly, 550 U.S. at 555). A complaint containing mere “labels and conclusions, or a
formulaic recitation of the elements” is insufficient. Bowlby v. City of Aberdeen, Miss.,
681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted).
However, “detailed factual allegations” are not required. Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). Although courts are
to accept all well-pleaded facts as true and view those facts in the light most favorable
to the nonmoving party, courts are not required “to accept as true a legal conclusion
couched as factual allegation.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011) (citations omitted). “[W]hen a successful affirmative defense
appears on the face of the pleadings, dismissal under Rule 12(b)(6) may be
appropriate.” Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 726 (5th Cir.
2013) (quoting Kansa Reins. Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th
Pohl’s Motion to Dismiss for Failure to State a Claim 
Contractual Liability Claim
Pohl argues that, because Plaintiffs admit to not fulfilling their contractual duty to
keep accurate daily time records, they cannot recover for any alleged breach of contract
of Pohl. This would be an affirmative defense to Plaintiffs’ breach of contract claim,
which could make dismissal appropriate. See Miller, 726 F.3d at 726 (5th Cir. 2013)
(citing Kansa Reins., 20 F.3d at 1366 (5th Cir. 1994)). Plaintiffs’ purported admission
. . . Although the May 25, 2012 “Public Relations Consulting Agreement”
states “All consultants shall keep accurate daily time records of all efforts
expended on behalf of [Defendants]”, Pohl, on behalf of all Defendants,
acknowledged and ratified that Plaintiffs were not required by Defendants
and/or the subject Contracts to keep detailed daily and/or hourly time
records. At all times, Plaintiffs kept and provided all time records Pohl, on
behalf of all Defendants, required and/or deemed necessary under the
terms of the May 25, 2012 Contracts.
42. Alternatively, Pohl’s actions, on behalf of all Defendants, in
accepting and paying hourly invoices without detailed daily and/or hourly
time records constitutes a waiver of the “accurate daily time records” of
the May 25, 2012 Contracts and any implied duty to maintain same, if any.
(See Amended Complaint  at p. 14 ¶¶ 41-42) (alternation in original). Plaintiffs have
clearly alleged the fact that Pohl represented to them that they did not need to keep
detailed daily time records to fulfill their contractual obligation. The alleged fact that
Pohl accepted and paid hourly invoices without detailed records only serves to make
this claim more “plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955) Though Pohl argues correctly that
Plaintiffs have not stated when or how this representation took place, such details are
unnecessary. See Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955) (“[T]he
pleading standard Rule 8 announces does not require ‘detailed factual
allegations’ . . . ”). Under a Rule 12(b)(6) analysis, the Court “accept[s] all well-pleaded
facts as true and view[s] those facts in the light most favorable to the plaintiffs.” Dorsey
v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (quoting Stokes v. Gann,
498 F.3d 483, 484 (5th Cir. 2007) (per curiam).
Because Plaintiffs have pleaded enough facts, which the Court accepts as true,
to show that they were not in breach of the contracts, the Court finds that Pohl’s Motion
to Dismiss  with respect to the Plaintiffs’ breach of contract claim should be denied.
Pohl argues that the economic loss rule should be applied to these claims even
under Mississippi law. Because Mississippi courts do not apply this rule in anything but
products liability cases and the Mississippi Supreme Court has given no clear indication
of adopting it in other cases, this Court must decline to apply the rule as well. See
Lyndon Prop. Ins. Co. v. Duke Levy & Assocs., LLC, 475 F.3d 268, 274 (5th Cir. 2007).
Pohl contends that each of the tort/extra-contractual claims in Counts II through
Count IV of Plaintiffs’ Amended Complaint  should be dismissed because they are
not “independent torts,” arguing that Plaintiffs, as a result, are limited only to contractual
remedy. Pohl goes on to make further arguments against each extra-contractual claim
against him. The Court addresses each of these claims in turn.
Bad Faith/Breach of Duty of Good Faith and Fair Dealing
Under Mississippi law, there can be no breach of good faith and fair dealing
unless there is also a breach of contract. Frye v. S. Farm Bureau Cas. Ins. Co., 915
So.2d 486 (Miss. Ct. App. 2005). Logically, then, a claim of breach of good faith and
fair dealing could never be an “independent tort” as Pohl argues is necessary. “A
breach of the duty of good faith provides the injured party with a cause of action in
addition to his claim for breach of contract.” In re Evans, No. 09-03763-NPO, 2012 WL
2374237, at *17 (Bankr. S.D. Miss. June 22, 2012). The law does not, then, limit
recovery to contractual remedy as Pohl contends.
Pohl additionally argues Plaintiffs have not pleaded sufficient facts to support an
allegation of bad faith or breach of duty of good faith and fair dealing. The Mississippi
Supreme Court has held that a “breach of good faith is bad faith characterized by some
conduct which violates standards of decency, fairness or reasonableness.” Cenac v.
Murry, 609 So.2d 1257, 1272 (Miss. 1992) (citing Restatement (Second) of Contracts
§ 205, 100 (1979)). Bad faith is more than “bad judgment or negligence,” but instead
“implies some conscious wrongdoing because of dishonest purpose or moral obliquity.”
Univ. of S. Miss. v. Williams, 891 So.2d 160, 170-71 (2004) (quoting Bailey v. Bailey,
724 So.2d 335, 338 (Miss. 1998)) (internal quotations omitted). Bad faith “contemplates
a state of mind affirmatively operating with furtive design or ill will.” Southland Enters.,
Inc. v. Newton Cnty., 940 So.2d 937, 943 (Miss. Ct. App. 2006) (citing Bailey, 724 So.2d
Pohl’s contention throughout his motion appears to be that any breach on his
part was a result of or is excused by Plaintiffs’ initial breach in not providing detailed
time records. Pohl offers no alternative theory to excuse the non-payment of the
monies Plaintiffs allege are owed under the contracts. Because the Court accepts the
nonmovant’s allegations as true for an analysis under 12(b)(6) as stated above, the
Court accepts as true Plaintiffs’ allegation that Pohl excused them from any requirement
of detailed time records. For Pohl to then deny payment based on inadequate time
records could imply a consciously dishonest purpose that is characteristic of bad faith.
Therefore, Pohl’s Motion to Dismiss  with regards to Plaintiffs’ claims of
conscious bad faith/breach of good faith and fair dealing is denied.
However, because bad faith is more than negligence or recklessness and
requires consciousness of action, Pohl’s Motion to Dismiss  Plaintiffs’ claims of
gross negligence or reckless disregard in breaching the implied covenant of good faith
and fair dealing is granted.
Quantum Meruit/Unjust Enrichment
Pohl argues that because both sides agree that there was an enforceable
contract, Plaintiffs can bring no claim for quantum meruit. Quantum meruit is a
contractual remedy “premised either on express or implied contract.” Tupelo
Redevelopment Agency v. Gray Corp., 972 So.2d 495, 514 (Miss. 2007). The doctrine
is applicable where services performed were “not anticipated by the contract, and also
that there were no provisions of the contract by which payment could be made for
unanticipated labor.” Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp.,
743 So.2d 954 (Miss. 1999) (quoting Citizens Nat. Bank v. L. L. Glascock, Inc., 243
So.2d 67, 70 (1971)).
While Pohl seems willing to admit that there were enforceable contracts between
him and the Plaintiffs, his motion expresses no such willingness to admit all the services
Plaintiffs contend were performed under the contract were indeed done so. In fact, Pohl
argues that certain actions taken by Plaintiffs were done outside the contracts. (See
Pohl’s Memo. in Support of Reply to Response  at pp. 8-9.)
The only distinction between quantum meruit and unjust enrichment is the
measure of recovery. Estate of Johnson v. Adkins, 513 So.2d 922, 926 (1987).
Recovery under a quantum meruit theory “is measured by the reasonable value of
materials or services rendered.” Id. Under unjust enrichment, the plaintiff receives “that
to which [he] is equitably entitled.” Id.
As Federal Rule of Civil Procedure 8(d)(2) allows Plaintiffs to set forth multiple
theories of a claim, Plaintiffs are allowed to plead both breach of contract and quantum
meruit and unjust enrichment. Pohl’s Motion to Dismiss  will be denied in regards to
Plaintiffs’ quantum meruit/unjust enrichment claim.
Plaintiffs contend that Pohl and Williamson both made statements about how
profitable the contracts would be for the Plaintiffs, with intention of inducing them into
contracting to perform services for them and with no intention of ever paying the fees
owed under the contracts. Under Mississippi law, “[i]t is settled rule that a contractual
promise, made with the undisclosed intention of not performing it, is fraud.” First
Money, Inc. v. Frisby, 369 So.2d 746, 750 (Miss. 1979) (quoting Miss. Power Co. v.
Bennett, 173 Miss. 109, 128-29, 161 So. 301, 306 (Miss. 1935)). However, “the mere
fact that a promise was broken is not in itself sufficient proof that the promisor so
intended at the time made . . . .” Salitan v. Horn, 212 Miss. 794, 801, 55 So.2d 444, 446
(Miss. 1951). Though Federal Rule of Civil Procedure 9(b) allows for intent to be
pleaded “generally,” it still must be pleaded with enough specificity to meet the
requirements of Rule 8. Iqbal, 556 U.S. at 686-87, 129 S. Ct. at 1954 (2009). Plaintiffs
have pleaded no facts to support their allegations that Pohl intended to not perform
under the contracts, other than the fact that Pohl did, in fact, not perform. This fact is
insufficient under Mississippi law to support Plaintiffs’ claim.
Therefore, Pohl’s Motion to Dismiss  is granted with respect to Plaintiffs’
claim of fraud/fraudulent inducement/fraudulent misrepresentation.
Illegality of Conduct
Pohl argues that actions taken by Plaintiffs, such as distribution of informational
folders containing contingency fee contracts for prospective BP claimants, amounted to
improper solicitation of clients done outside of the contractual terms and that Plaintiffs
cannot recover due to the illegality of their conduct. Plaintiffs, however, contend that the
folders were distributed under the terms of the contracts at Williamson’s direction,
contained information confirming the joint venture/partnership between Pohl and
Williamson, and contained a letter, referencing the contingency fee contract, signed by
Williamson, Pohl’s alleged partner in the joint venture.
In analyzing a motion to dismiss under Rule 12(b)(6), the Court is instructed to
“construe the complaint liberally in favor of the plaintiff, and take all facts pleaded in
the complaint as true.” Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147
(5th Cir. 2009) (citing Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.
1986)). In doing so, the Court accepts as true, for the sake of this motion, that Pohl,
through his joint venture with Williamson, authorized the actions he calls illegal as being
within the terms of the contract.
At best, Pohl’s argument is an affirmative defense to the breach of contract claim
against him. However, Pohl does not demonstrate what about Plaintiffs actions made
them illegal other than summarily calling them improper solicitation. Because the
illegality of Plaintiffs’ contractual obligations are not apparent “on the face of the
pleadings,” it would be improper to dismiss Plaintiffs’ complaint on these grounds. See
Miller, 726 F.3d at 726 (5th Cir. 2013) (quoting Kansa Reins. Co., 20 F.3d at 1366 (5th
Williamson’s Motion to Dismiss for Failure to State a Claim 
Williamson’s Motion to Dismiss for Failure to State a Claim  is premised on
the argument that Plaintiffs have not pleaded enough factual allegations for a finding of
a joint venture/partnership. Williamson first points out that partnership is not a claim on
which relief can be granted. However, it is clear from the Amended Complaint  that,
although labeled “Count I,” Plaintiffs intended their allegations of a partnership or joint
venture between Williamson and Pohl to be their theory of Williamson’s liability.
Williamson himself acknowledges that the incorrect heading does not obscure Plaintiffs’
purpose. This technical mistake is not enough to base a dismissal of any allegation of a
joint venture between Williamson and Pohl when there is no confusion on the meaning.
See Home Ins. Co. v. Matthews, 998 F.2d 305, 309 (5th Cir. 1993) (holding that the
technical mistake under Federal Rule of Civil Procedure 8(c) of mislabeling the
affirmative defense of waiver as “estoppel” did not prejudice the plaintiff when there was
no “unfair surprise”).
Because the Court has already determined that Plaintiffs have pleaded the
necessary factual allegations to allow a finding of a joint venture on the pleadings,
Williamson’s arguments that they have not fail. See supra, Part III.B. Therefore, all that
is left is to evaluate the liability of Williamson has Pohl’s co-venturer.
“A joint venture is a single purpose partnership.” Barrett v. Jones, Funderburg,
Sessums, Peterson & Lee, LLC, 27 So.3d 363, 372 (Miss. 2009) (citing Duggins v.
Guardianship of Wash., 632 So.2d 420, 427 (Miss. 1993). As such, Mississippi
partnership law applies. Id. Under Mississippi partnership law, “all partners are liable
jointly and severally for all obligations of the partnership . . . .” Miss. Code. Ann. § 7913-306. If an act is committed while a partner “is engaged in the partnership business,
and is in furtherance of the interest of the partnership, then the partnership and all
partners are liable.” Barrett, 27 So.3d at 374 (quoting Idom v. Weeks & Russell, 135
Miss. 65, 76-77, 99 So. 761, 763 (Miss. 1924)). Williamson makes no argument that the
contracts, and breach thereof, were not made in furtherance of the alleged joint venture.
His only argument is that the joint venture did not exist. As the Court has found
sufficient pleading to the contrary to survive a 12(b)(6) motion, Williamson’s motion
must be denied as to this point.
However, since Plaintiffs cannot bring action for negligent or reckless breach of
good faith and fair dealing against Pohl or the joint venture, see supra Part IV.B.2.a,
Williamson’s Motion to Dismiss for Failure to State a Claim  is granted with respect
to that claim against him.
Similarly, because Plaintiffs have failed to adequately plead a fraud claim against
Pohl or the joint venture, see supra Part IV.B.2.c, Williamson’s Motion to Dismiss for
Failure to State a Claim  is granted with respect to the fraud claim against him.
IT IS THEREFORE ORDERED AND ADJUDGED that Williamson’s Motion to
Dismiss for Lack of Personal Jurisdiction  is denied.
IT IS FURTHER ORDERED AND ADJUDGED that Pohl’s Motion to Dismiss
Plaintiffs’ First Amended Complaint Pursuant to Rules 12(b)(6) and Rule 9(b)  is
granted in part and denied in part. It is granted with respect to Plaintiffs’ claim of
negligent or reckless bad faith/breach of good faith and fair dealing and their claim of
fraud/fraudulent inducement/fraudulent misrepresentation. It is denied with respect to
the following claims, which are still pending: breach of contract, conscious bad
faith/breach of good faith and fair dealing, and quantum meruit/unjust enrichment.
IT IS FURTHER ORDERED AND ADJUDGED that Williamson’s Motion to
Dismiss for Failure to State a Claim  is granted in part and denied in part. It is
granted with respect to Plaintiffs’ claim of negligent or reckless bad faith/breach of good
faith and fair dealing and their claim of fraud/fraudulent inducement/fraudulent
misrepresentation. It is denied with respect to the following claims, which are still
pending: breach of contract, conscious bad faith/breach of good faith and fair dealing,
and quantum meruit/unjust enrichment.
SO ORDERED AND ADJUDGED this the 18th day of September, 2015.
U N I T E sD / SK e it hT ES tS a rD r Ie tt T R I C T J U D G E
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