Walker et al v. Williamson et al

Filing 252

Memorandum Opinion and Order denying Defendant Michael Pohl's 173 192 Motions to Dismiss; and denying Defendant Jimmy Williamson's 177 198 Motions to Dismiss. Signed by District Judge Keith Starrett on May 9, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SCOTT WALKER, et al.
V.

PLAINTIFFS
CIVIL ACTION NO. 1:14cv381-KS-JCG

JIMMY WILLIAMSON, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss Plaintiffs’ Second Amended
Complaint Pursuant to Rule 12(b)(6) [173] and Motion to Dismiss Precision Marketing Group,
LLC’s Amended Complaint Pursuant to Rule 12(b)(6) [192] (“Motions to Dismiss [173][192]”) filed
by Defendant Michael A. Pohl, individually and d/b/a The Law Office of Michael A. Pohl; and the
Motion to Dismiss [177] and Motion to Dismiss Amended Complaint Filed by Precision Marketing
Group, LLC [198] (“Motions to Dismiss [177][198]”) filed by Defendant Jimmy Williamson,
individually and/or as Director and President of Jimmy Williamson, P.C. After reviewing the
submissions of the parties, the record, and the applicable law, the Court finds that these motions are
not well taken and should be denied.
I. BACKGROUND
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”) against Defendants Jimmy Williamson, individually and/or as Director and
President of Jimmy Williamson, P.C. (“Williamson”), and Michael A. Pohl, individually and d/b/a

The Law Office of Michael A. Pohl (“Pohl”).1 On March 2, 2016, Walker, Seymour, and Ladner
filed their Second Amended Complaint [166] in this action. Precision filed its Amended Complaint
[179] on March 17, 2016. In both complaints, Plaintiffs bring 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.
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. Plaintiffs contend that Pohl, on behalf of the
joint venture/partnership he had with Williamson, contracted with them to provide public relations
and marketing for this venture. In return for these services, Defendants allegedly agreed to pay
Plaintiffs a percentage of the attorney fees for the claims obtained from their efforts, along with
expenses and a flat fee. Plaintiffs claim that Defendants owe them money for services performed
under these contracts.
II. DISCUSSION
A.

Standard of Review

Defendants have filed their motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Under a Rule 12(b)(6) analysis, although courts are to accept all well-pleaded facts as true
and view those facts in the light most favorable to the nonmoving party, they 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

1

Additional defendants have since been added to this action. However, as only Williamson
and Pohl are parties to the subject motions, the Court will use the term “Defendants” to refer
only to them.
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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 Cir. 1994)).
B.

Pohl’s Motions to Dismiss [173][192]2

Pohl makes two arguments in his Motions to Dismiss [173][192]. First, he argues that
Plaintiffs are judicially estopped from bringing their claims because the positions they take in their
Second Amended Complaint are inconsistent with their previously taken positions. Second, he
argues that Plaintiffs’ claims fail because the alleged contract is illegal. The Court addresses each
of these arguments in turn.
1.

Judicial Estoppel

Pohl argues that, because Plaintiffs alleged they were to be paid on an hourly fee in their
First Amended Complaint and then alleged they were to be paid a percentage of the attorney fees
in their Second Amended Complaint, they are judicially estopped from pursuing their claims
because these two positions are inconsistent with each other. This argument appears to be based on
a misreading of the Magistrate’s Order [161] allowing Plaintiffs to amend their complaint.
The purpose of the judicial estoppel doctrine is to “prevent[] a party from asserting a position
in a legal proceeding that is contrary to a position previously taken in the same or some earlier
proceeding.” Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th 2003) (quoting Ergo
Science, Inc. v. Martin, 73 F.3d 595, 600 (5th Cir. 1996)). There are two requirements that must be

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Because Precision has filed a separate complaint from the other Plaintiffs, both Pohl and
Williamson have filed separate motions to dismiss Precision’s Amended Complaint [179].
Because they bring the same arguments in their motions against Precision as they do in their
motions against Walker, Seymour, and Ladner, the Court will analyze the motions
simultaneously.
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satisfied for judicial estoppel to apply. “First, it must be shown that ‘the position of the party to be
estopped is clearly inconsistent with its previous one; and [second,] that party must have convinced
the court to accept that previous position.” Id. (quoting Ahrens v. Perot Sys. Corp., 205 F.3d 831,
833 (5th Cir. 2000)) (alteration in original). For a position to be accepted by the Court can be
“either as a preliminary matter or as part of a final disposition.” Id. at 398 (quoting In re Coastal
Plains, Inc., 179 F.3d 197, 206 (5th Cir. 1999)).
The Court does not find that the positions taken by Plaintiffs in their pleadings are clearly
inconsistent. In allowing the amendments, the Magistrate found that the additional factual
allegations did not “dramatically alter the factual basis of the case” and that the claims against
Defendants remained fundamentally unchanged. (See Magistrate Order [161] at pp. 11-12.) The
Court agrees with this assessment. Plaintiffs’ position has always been that Defendants contracted
with them to provide public relations and marketing services for which they were not paid. The
specific details of those contracts have yet to be fleshed out through discovery, but whatever those
details are, they do not alter the legal position of the Plaintiffs that such a contract exists.
Even if the positions taken by Plaintiffs were clearly inconsistent, the Court has never
accepted any previous position advanced by them as it pertains to the relevant factual allegations.
The method or amount of payments owed to Plaintiffs has never factored into any of the Court’s
previous decisions, nor has the specific details of the alleged contracts been relevant to the
disposition of any previous motions. The Court therefore finds that Plaintiffs are not judicially
estopped from pursuing their claims.
2.

Illegal Contract

Pohl argues that the alleged contracts are non-enforceable because the conduct required
under them is illegal under MISS. CODE ANN. §§ 97-9-11 and 73-3-59. Section 97-9-11 makes it
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illegal for any person “(a) to promise, give, or offer . . . , (b) to receive or accept . . . , [or] (c) to
solicit, request, or donate, any money . . . or any other thing of value . . . to any person to commence
or to prosecute further, or for the purpose of assisting such person to commence or prosecute further
any proceeding in any court.” Section 73-3-59 is aimed specifically at attorneys and makes similar
actions illegal.
At no point in their complaints do Plaintiffs allege that they were contracted to give money
or some other thing of value to Defendants’ potential clients in order to induce them to commence
or continue the prosecution of any judicial action. Plaintiffs claim that they were contracted for
public relations and marketing services. Pohl argues that Plaintiffs’ claims are “that they accepted,
or agreed to accept, money to improperly solicit clients.” (Pohl’s Memo. in Support [175] at p. 12.)
Sections 97-9-11 and 73-3-59, though, do not make this illegal. Rather, those sections make it
illegal to accept or agree to accept money to commence or further prosecute a judicial action. Pohl’s
argument that the purported contract is illegal under these sections is a misreading of the law, and
the Court will consequently deny his Motions to Dismiss [173][192].
C.

Williamson’s Motions to Dismiss [177][198]

In his Motions to Dismiss [177][198], Williamson argues that the alleged contracts are
unenforceable because the fee-splitting arrangement violates the Mississippi Rules of Professional
Conduct, specifically Rules 5.4(a), 7.2(i), 7.3(a), and 8.4(a). Williamson contends that to enforce
the contract would be against public policy, which holds that “no court will lend its aid to a party
who grounds his action upon an immoral or illegal act.” Price v. Purdue Pharma Co., 920 So.2d
479, 484 (Miss. 2006) (quoting W. Union Tel. Co. v. McLaurin, 66 So. 739, 740 (Miss. 1914)).3

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Williamson makes further arguments under Texas law. The Court has repeated held,
though, that Mississippi law applies in this case, and will not entertain these arguments.
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The Court would note at the onset of its evaluation of this argument, that these rules
explicitly regulate only lawyers and/or law firms. Williamson essentially argues that if these
contracts exist and if he is a party to them, then they are unenforceable because he would have been
committing professional misconduct in entering into them. Plaintiffs, however, would not be
committing professional misconduct under the Rules as they are neither lawyers nor a law firm. The
only “immoral or illegal act,” then, would have been committed by Defendants. See Price, 920
So.2d at 484. Just as public policy would not allow Plaintiffs’ claims to be grounded in such an act,
the Court is not convinced that it would allow Williamson’s defense to be grounded in an “immoral
or illegal act.” See id. The Court will therefore deny Williamson’s Motions to Dismiss [177][198].
V. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Pohl’s Motions to Dismiss
[173][192] are denied.
IT IS FURTHER ORDERED AND ADJUDGED that Williamson’s Motions to Dismiss
[177][198] are denied.
SO ORDERED AND ADJUDGED this the 9th day of May, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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