Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 1153

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Defendant Herbert Morisse's Motion to Dismiss Count 42 of Plaintiff's Third Amended Complaint [ECF No. 1143 ] is GRANTED. Count 42 of Plaintiffs' Third Amended Complaint is DISMISSED. Signed by District Judge E. Richard Webber on 01/08/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

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Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant Herbert Morisse’s (“Morisse”) Motion
to Dismiss Count 42 of Plaintiffs’ Third Amended Complaint (“TAC”) [ECF No. 1143]. In his
Motion to Dismiss, Morisse states that Count 42 of Plaintiffs’ TAC purports to bring claims
against him for “aiding and abetting” various breaches of duty committed by other defendants in
this action. Morisse further states that similar “aiding and abetting” claims asserted against
Missouri Trustee Defendants and Defendant Richard Markow were dismissed by the Court in a
September 11, 2012 Order, for failure to state a claim upon which relief may be granted [ECF
No. 1123]. In its September 11 Order, the Court found that, even if Missouri state law were to
recognize the “aiding and abetting” theories of secondary liability for the acts of a primary
tortfeasor as described in Section 876(b) or (c) of Restatement (Second) of Torts, the TAC failed
to plead sufficient facts to support the requisite elements of any cause of action under the section
[ECF No. 1123].
In their Response opposing Morisse’s Motion to Dismiss [ECF No. 1144], Plaintiffs
adopt and incorporate the arguments they made in response to the motions filed by Missouri
Trustee Defendants and Defendant Richard Markow. Nevertheless, Plaintiffs acknowledge that

the reasoning in the Court’s September 11, 2012 Order dismissing the “aiding and abetting”
claims against the Missouri Trustee Defendants and Defendant Markow also would entitle
Morisse to dismissal of Count 42. The Court will grant Morisse’s Motion to Dismiss Count 42
of Plaintiffs’ Third Amended Complaint, for the reasons discussed in its September 11, 2012
Memorandum and Order [ECF No. 1123], which is adopted and incorporated herein.
Accordingly,
IT IS HEREBY ORDERED that Defendant Herbert Morisse’s Motion to Dismiss
Count 42 of Plaintiff’s Third Amended Complaint [ECF No. 1143] is GRANTED. Count 42 of
Plaintiffs’ Third Amended Complaint is DISMISSED.
Dated this

8th

day of January, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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