Vireo Systems, Inc. v. HTG Ventures, LLC et al

Filing 113

MEMORANDUM AND ORDER: Defendants Motion to Dismiss the Amended Complaint (Docket No. 73 ) is hereby DENIED. Signed by Chief Judge Kevin H. Sharp on 10/13/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
VIREO SYSTEMS, INC.,
Plaintiff,
v.
HTG VENTURES, LLC, JOHN T.
LEWIS, JR., and TIMOTHY
KENSINGER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil No. 3:14-cv-2359
Judge Sharp/Bryant

MEMORANDUM & ORDER
Pending before the Court is Defendants’ Motion to Dismiss the Amended Complaint,
which is Defendants’ second attempt to dismiss the claims at issue. (Docket No. 73). This Court
previously denied Defendants’ Motion to Dismiss in its entirety.

(Docket Nos. 71–2). The

instant Motion fares no better: for the reasons set forth below, Defendants’ motion will be
denied.
Defendants present two arguments for dismissal.1 Defendants first assert that Plaintiff’s
claim for breach of fiduciary duty, Count III, must be dismissed because the claim now includes
a request for punitive damages. (Docket No. 65 at ¶ 103). This argument does not even
implicate the familiar 12(b)(6) standard, which “properly targets claims, not remedies.”
Goodman v. J.P. Morgan Invest. Mgmt., Inc., No. 2:14-CV-414, 2015 WL 965665, at *6 (S.D.
Ohio Mar. 4, 2015). Indeed, “the selection of an improper remedy in the Rule 8(a)(3) demand
for relief will not be fatal to a party’s pleading if the statement of the claim indicates the pleader
may be entitled to relief of some other type.”

5 Wright & Miller, Federal Practice and

1

A summary of the facts can be found in the Court’s Memorandum denying Defendants’ previous motion to
dismiss. (Docket No. 71 at 1–6).

Procedure: Civil § 1255 at 508–09 (3d ed. 2004). See also Dingxi Longhai Dairy, Ltd. v.
Becwood Tech. Grp. L.L.C., 635 F.3d 1106, 1108 (8th Cir. 2011) (citing Wright & Miller);
Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002) (noting that while a Complaint must
seek a demand for relief, “the demand is not itself a part of the plaintiff’s claim”). This Court
has already found that Plaintiff may be entitled to relief of some type on all claims, including
Count III. (Docket No. 71). Regardless of whether punitive damages are properly sought, which
the Court declines to address at this time, the mere fact that Plaintiff requested this relief does not
entitle Defendant to dismissal of the claim itself. Accordingly, this argument fails.
Defendants also again ask the Court to dismiss Plaintiff’s claim for violations of the
Massachusetts Limited Liability Company Act, Count V, because it “is based on ProMera’s –
and not Defendants’ – alleged statutory obligations.” (Docket No. 74 at 5). But as Defendants
themselves acknowledge, the Court has already rejected this argument:
In asserting its Rule 12(b)(6) argument, Defendants offer a familiar refrain:
Counts II through VI of the Amended Complaint allege wrongdoing that was
undertaken by ProMera, not Defendants. Based on the same rationale set forth
with regards to personal jurisdiction, the Court is disinclined to allow Defendants
to deflect Plaintiff’s claims in this way. Defendants do not abandon their HTG
identities by simply by donning their ProMera hats. The task of disentangling one
business identity from the other, particularly in a small company, is far more
complicated than Defendants allow.
(Docket No. 71 at 15–6). Defendants have not presented any new arguments in support
of dismissing this claim and the Court remains just as wary of this attempt to insulate
Defendants against claims of wrongdoing as it was the last time Defendants
(unsuccessfully) asserted this version of mistaken identity. Defendants’ second argument
in favor dismissal is therefore also unavailing.
For the reasons set forth above, Defendants Motion to Dismiss the Amended Complaint
(Docket No. 73) is hereby DENIED.

It is SO ORDERED.
_______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE