All Commercial Floors, Inc. et al v. Commercial Floor Products, LLC et al
Filing
104
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 1/25/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALL COMMERICAL FLOORS, INC.,
et al.,
Plaintiffs,
v.
COMMERCIAL FLOOR PRODUCTS,
LLC, et al.,
Defendants.
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NO. 3:17-cv-01252
CHIEF JUDGE CRENSHAW
MEMORANDUM OPINION
Before the Court is Defendants’ Rule 12(c) Motion For Judgment On The Pleadings
Relating to Plaintiffs’ Second Amended Complaint. (Doc. No. 90.) Plaintiffs have filed a response
in opposition (Doc. No. 100), to which Defendants have replied (Doc. No. 102). For the following
reasons, Defendants’ motion will be granted in part and denied in part.
I.
Background
Kevin Jones (“Jones”) created All Commercial Floors, Inc. (“ACF”) (collectively
“Plaintiffs”) to serve as a business focused on installing various flooring surfaces in commercial
industries. (Doc. No. 73 at 3.) Two years after forming ACF, Jones hired Emmett Lewis Moorer,
II (“Lewis”), a Certified Public Accountant, as ACF’s Vice President of National Accounts. (Id.)
After being hired, Lewis opened an ACF-affiliate office in Nashville, Tennessee. (Id.) ACF and
Lewis also executed an employment agreement (“Employment Agreement”), which provided: (1)
Lewis’s compensation; (2) ACF’s right to terminate Lewis for cause; and (3) certain financial
spending limitations imposed on Lewis’s operation of the ACF-satellite office. (Id.)
One year later, in 2003, Lewis approached Jones with the idea of forming a “sister” entity
to hold and manage ACF’s real estate holdings and other assets. (Id.) Lewis explained that (1) the
“sister” entity would be useful for tax and liability purposes; and (2) the entity should be owned
by Lewis and his wife, Jane Moorer (“Jane”), to avoid complications with the then-recently enacted
Sarbanes-Oxley Act. (Id. at 4.) Although Lewis and Jane would own the “sister” entity, named
Commercial Floor Products (“CFP”), Plaintiffs would retain rights in CFP’s assets, including by
having the option to purchase CFP for $100,000 upon Lewis’s death (the “Buyback Option”). (Id.
at 4, 6). In reliance on Lewis and Jane’s representations and financial expertise, Jones agreed to
form CFP as a Tennessee limited liability company, with Lewis and Jane as the co-owners. (Id. at
4.)
Plaintiffs allege that, following CFP’s formation, ACF would purchase certain building
materials from CFP at a markup, and CFP would use those excess funds to purchase real estate
and other assets. (Id.) Specifically, Lewis, through CFP, used these excess funds to purchase three
properties: (1) 2025 Meridian Street, Arlington, Texas (“Meridian Property”); (2) 3070 Sidco
Drive, Nashville, Tennessee (the “Sidco Property”); and (3) 2927 Armory Drive, Nashville,
Tennessee (the “Armory Property”). (Id. at 5.) ACF then entered leases with CFP at each of these
properties, with ACF as the lessee and CFP as the lessor (“Meridian Lease,” “Sidco Lease,” and
“Armory Lease,” respectively). (Id.)
Plaintiffs allege that, in 2011, Lewis, through CFP, forced ACF to relocate from the space
it leased in the Armory Property to the Sidco Property, so CFP could lease the Armory Property
to a third-party technology company. (Id. at 7.) Further, Lewis, through CFP, forced ACF to pay
to finish out the space in the Sidco Property, despite ACF being relieved of making any capital
improvements to the property under the terms of the Sidco Lease. (Id.) Plaintiffs allege that Lewis
2
induced them to perform these actions by reminding them of their ability to reap the ultimate
benefits of these one-sided deals through exercise of the Buyback Option. (Id.) Further, in April
2013, Lewis instructed the Secretary and Treasurer of ACF, Joyce Payne, to extend the Armory
Lease for an additional 60 months (September 2015 to September 2020), without consulting Jones.
(Id. at 8.) Finally, in 2016, Lewis again forced ACF to relocate from the Sidco Property back to
the Armory Property, as it had received a third-party offer to lease the Sidco Property. (Id.)
In 2015, Lewis began a separate business venture, unaffiliated with ACF and CFP, and
allegedly started neglecting his responsibilities and duties to ACF. (Id.) Plaintiffs allege that this
neglect continued into 2016 and 2017, and, in 2017, Jones insisted that Lewis focus on his
obligations to ACF. (Id. at 9.) Rather than refocus his efforts on ACF, Lewis allegedly retaliated
by making derogatory remarks about Jones and his wife to ACF employees, vendors, and
customers. (Id.) Finally, in July 2017, ACF terminated Lewis’s employment due to his refusal to
(1) adhere to new corporate policies and procedures, including a self-imposed audit of the ACFsatelliate office; and (2) reimburse ACF $111,364 for certain expenses. (Id. at 9-10.) Upon his
termination, Plaintiffs discovered that Lewis had made a host of unapproved expenses on behalf
of CFP, totaling a “seven-figure sum.” (Id. at 10.) Moreover, after being terminated, Lewis
maintained that neither Jones nor ACF possessed any rights or claim to CFP’s assets (real estate
or otherwise). (Id. at 15.)
Further, after terminating Lewis, Plaintiffs discovered that Lewis had misrepresented the
terms of the Armory Lease. (Id. at 15.) The Armory Lease was the last in time of the three leases,
and, at the time of execution, Lewis represented that the terms were the same as those in the Sidco
and Meridian Leases. (Id.) Plaintiffs allege that, based on that representation, Lewis sent only the
signature page of the Armory Lease, which Jones signed. (Id.) However, Plaintiffs allege that, in
3
actuality, the Armory Lease contained certain unconscionable terms, namely the requirement that
ACF continue performance, without any offset or deduction in rent, even if CFP breached the
agreement. (Id.) Moreover, Plaintiffs allege that Lewis, in violation of the Armory Lease, excluded
ACF’s access to 7,500 square feet of commercial space. (Id.)
As a result of these actions, Plaintiffs raise a multitude of claims against Defendants,
including claims for breach of contract, fraud, breach of fiduciary duty, promissory estoppel, unjust
enrichment/quantum meruit, dissolution of partnership or joint venture, theft of trade secrets,
conspiracy, conversion, trespass to chattels, and constructive trust. (Id. at 17-37.) Plaintiffs also
assert claims under the Computer Fraud and Abuse Act, Texas Property Code, as well as claims
for declaratory relief and exemplary damages. (Id.) As noted above, Plaintiffs twice amended their
complaint. (See Doc. Nos. 31, 73.) After filing their Second Amended Complaint, Defendants filed
the instant Rule 12(c) motion, seeking to dismiss Plaintiffs’ claims for: (1) declaratory judgment
regarding the Buyback Option; (2) fraud; (3) breach of fiduciary duty; (4) promissory estoppel; (5)
unjust enrichment/quantum meruit; (6) civil conspiracy; and (7) breach of contract (the Armory
Lease). (Doc. No. 91 at 2-3.)
II.
Defendants’ Rule 12(c) Motion
In their partial motion to dismiss, Defendants first argue that Plaintiffs’ claim for
declaratory relief regarding the Buyback Option must be dismissed for lack of subject matter
jurisdiction because it presents a hypothetical controversy, as opposed to an actual controversy.
(Doc. No. 91 at 5.) Further, Defendants maintain that Plaintiff’s breach of contract and declaratory
judgment claims regarding the Armory Lease should be dismissed because the unambiguous terms
of the lease provide that ACF is not excused from its obligations, even if CFP is in breach. (Id. at
8.) In regards to Plaintiffs’ fraud claim, Defendants contend that the claim is insufficiently
4
particularized and not based on past or existing facts, as required under Tennessee law. (Id. at 1012.) As to Plaintiffs’ breach of fiduciary duty claim, Defendants assert that their actions were on
behalf of CFP, and, as such, their fiduciary duty to ACF was not implicated. (Id. at 12-15.)
Moreover, as with Plaintiffs’ fraud claim, Defendants argue that Plaintiffs’ civil conspiracy claim
is insufficiently particularized, and, in any event, there is no underlying tort supporting the claim.
(Id. at 16-18.) Finally, Defendants assert that Plaintiffs’ unjust enrichment/quantum meruit and
promissory estoppel claims are insufficiently pleaded. (Id. at 18-20.)
III.
Analysis
A. Federal Rule of Civil Procedure 12(c)
“After the pleadings are closed – but early enough not to delay trial – a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard for evaluating a motion for
judgment on the pleadings is the same as that applicable to a motion to dismiss under Rule 12(b)(6)
for failure to state a claim. Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608 (6th Cir. 2014).
“In reviewing a motion for judgment on the pleadings, [the Court will] construe the complaint in
the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true,
and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims
that would entitle [him to] relief.” Id. (internal quotation marks and citations omitted). However,
a legal conclusion couched as a factual allegation need not be accepted as true on a motion to
dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010). “The factual allegations in the complaint need to be
sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead
‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 677, (2009)).
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In ruling on a motion under Rule 12(c), the court may look only at the “pleadings.” The
term “pleadings” includes both the complaint and the answer, Fed. R. Civ. P. 7(a), and “[a] copy
of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Fed.
R. Civ. P. 10(c). It therefore follows that an attachment to an answer that is a “written instrument”
is part of the pleadings and can be considered on a Rule 12(c) motion for judgment on the pleadings
without the motion being converted to one for summary judgment. Beasley v. Wells Fargo Bank,
N.A., Case No. 3:17-cv-00726, 2017 WL 3387046, at *3 (M.D. Tenn. Aug. 7, 2017); Horsley v.
Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). Thus, a court deciding a Rule 12(c) motion may
consider documents attached to the complaint or answer, as long as they are central to the
plaintiff’s claim and of undisputed authenticity. Beasley, 2017 WL 3387046, at *3 (citing Horsley,
304 F.3d at 1135 (holding that “the Rule 12(b)(6) incorporation by reference doctrine should apply
in Rule 12(c) cases as well”); accord Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508
F.3d 327, 335 (6th Cir. 2007) (court may consider documents referenced in the pleadings that are
“integral to the claims” in deciding motion to dismiss).
B. Declaratory Judgment Claim 1
Defendants argue that Plaintiffs’ Declaratory Judgement Act claim regarding the Buyback
Option must be dismissed for lack of subject matter jurisdiction because it fails to present an actual
controversy. 2 (Doc. No. 91 at 7.) Specifically, Defendants contend that, to the extent Plaintiffs
1
Defendants also sought to dismiss Plaintiffs’ declaratory judgment claim regarding
certain non-competition and non-disclosure provisions of the Employment Agreement. (Doc. No.
91 at 7.) However, the parties filed a joint stipulation of dismissal as to this claim. (Doc. No. 98.)
Accordingly, the Court does not discuss the parties’ arguments related to this now-dismissed claim.
2
Although Defendants’ make their subject-matter jurisdiction argument in the context of
a Rule 12(c) motion, the Court nonetheless considers the argument. Thornton v. Southwest Detroit
Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990) (holding that the issue of “subject matter jurisdiction
6
seek a declaratory judgment regarding their rights under the Buyback Option, that issue “does not
even come into play unless and until [Lewis] predeceases Mr. Jones.” (Id.) Further, according to
the Buyback Option’s terms, Plaintiffs would have to satisfy other, additional criteria including
payment of $100,000 within 250 days of Lewis’s death and assumption of all of CFP’s liabilities.
(Id. at 6-7.) Therefore, because Plaintiffs’ claim is premised on speculative events, any of which
may not occur, Defendants request that this Court dismiss Plaintiffs’ declaratory judgment claim
for lack of subject matter jurisdiction.
Plaintiffs respond that their declaratory judgment claim regarding the Buyback Option
presents an actual, ripe controversy. (Doc. No. 100 at 10.) Plaintiffs assert that Defendants’
position ignores the practical realities at stake because if Lewis and Jane continue to exert full
ownership of CFP’s assets, they could dispose of, or otherwise convert, those assets before the
Buyback Option is triggered. (Id. at 11.) Plaintiffs contend that there is a reasonable likelihood that
they will suffer financial harm absent a declaratory judgment that clarifies the existence and
enforceability of the Buyback Option. (Id. at 11-12.) Plaintiffs further assert that (1) such a
declaration would settle the parties dispute over the validity and nature of the Buyback Option; (2)
they are not seeking such a declaration for procedural fencing; (3) the issue involves no comity
concerns; (4) the judgment would serve a useful purpose by clarifying whether or not Plaintiffs
have an interest in CFP’s assets; and (5) there is no “alternative remedy” that would be superior or
more effective. (Id. at 12.)
The Declaratory Judgment Act states that in a case of actual controversy within its
jurisdiction, the Court may declare the rights and other legal relations of any interested party
may be raised . . . at any juncture because a federal court lacks authority to hear a [claim] without
subject matter jurisdiction.”)
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seeking such declaration. 28 U.S.C. § 2201. The central purpose of the Declaratory Judgment Act
is to provide the opportunity to clarify rights and legal relationships without waiting for an
adversary to file suit. Severe Records, LLC v. Rich, 658 F.3d 571, 580 (6th Cir. 2011).
“The existence of an ‘actual controversy’ in a constitutional sense is necessary to sustain
jurisdiction under the Declaratory Judgment Act.” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F. 3d
272, 279 (6th Cir. 1997). A justiciable controversy is “distinguished from a difference or dispute
of a hypothetical or abstract character . . . [i]t must be a real and substantial controversy admitting
of specific relief through a decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts.” Id. (quoting Aetna Life Ins.
Co. of Hartford v. Haworth, 300 U.S. 227, 240-41 (1937)). The Supreme Court has elaborated
that:
The difference between an abstract question and a “controversy” contemplated by
the Declaratory Judgment Act is necessarily one of degree, and it would be difficult,
if it would be possible, to fashion a precise test for determining in every case
whether there is such a controversy. Basically, the question in each case is whether
the facts alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 272 (1941). “Accordingly, a touchstone to
guide the probe for sufficient immediacy and reality is whether the declaratory relief sought relates
to a dispute where the alleged liability has already accrued, or the threatened risk occurred, or
rather whether the feared legal consequence remains a mere possibility, or even probability of
some contingency that may or may not come to pass.” Dow Jones & Co., Inc. v. Harrods, Ltd.,
237 F. Supp. 2d 394, 406-07 (S.D.N.Y. 2002) (citing Thomas v. Union Carbide Agric. Prod. Co.,
473 U.S. 568, 580-81 (1985)).
8
Here, the Court concludes that Plaintiffs have not made a sufficient threshold
demonstration that they have Article III standing to pursue their Declaratory Judgment Act claim
regarding the Buyback Option. Put simply, Plaintiffs fail to show that their adverse legal interests
are of sufficient immediacy to warrant the issuance of a declaratory judgment. Md. Cas. Co., 312
U.S. at 272. Plaintiffs urge the Court that resolving this claim in their favor will prevent harm by
clarifying the existence and enforceability of the Buyback Option and their rights in CFP’s assets.
(Doc. No. 100 at 11.) However, Plaintiffs’ rights under the Buyback Option’s express terms are
only triggered if Lewis predeceases Jones. (See Doc. No. 73-2 at 3-4.) Thus, Plaintiffs’ feared
outcome—that Defendants will refuse to honor the Buyback Option’s terms—is based on a
speculative chain of events, any of which may not occur. See Harrods, Ltd., 237 F. Supp. 2d at
406-07. Specifically, Plaintiffs’ argue that if Lewis predeceases Jones, Defendants may refuse to
fulfill their obligations under the Buyback Option, and, therefore, a declaratory judgment is
necessary to preserve their rights in CFP’s assets. The Court concludes that resolving Plaintiffs’
Declaratory Judgment Act claim would necessarily require it to decide a dispute based on the
“probability of some contingency that may or may not come to pass.” Id. Consequentially, no case
or controversy is present, as required by § 2201, and, therefore, the Court will dismiss Plaintiffs’
declaratory judgment claim for lack of subject matter jurisdiction pursuant to Federal Rule Civil
Procedure 12(b)(1). Magaw, 132 F. 3d at 279.
C. Armory Lease Claims (Declaratory Judgment Act and Breach of Contract)
Defendants next contend that Plaintiffs’ “Armory Lease claims” (breach of contract and
declaratory judgment that Plaintiffs are excused from further performance) must be dismissed
because the Armory Lease’s unambiguous terms provide that Plaintiffs are not excused from their
obligations even if CFP is in breach. (Doc. No. 91 at 8.) Defendants argue that, even if CFP has
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breached the Armory Lease (which they do not concede), the Armory Lease’s express terms
require ACF to continue performing until it obtains a final, non-appealable judgment against CFP.
(Id. at 9-10.) Consequently, Defendants argue that Plaintiffs are “clearly not entitled to be excused
from further performance under the contract.” (Id. at 10.)
Plaintiffs respond that their assent to the Armory Lease was fraudulently induced and the
agreement’s terms are unconscionable. (Doc. No. 100 at 7.) First, Plaintiffs argue that, as
evidenced from their factual allegations, Lewis falsely represented that the Armory Lease’s terms
were substantially similar to those of the Meridian and Sidco Leases, when, in actuality, the
Armory Lease contained unconscionable provisions in CFP’s favor. (Id. at 8.) Therefore, because
Plaintiffs’ assent to the Armory Lease was fraudulently induced, ACF is excused from further
performance. (Id.) Plaintiffs also contend that disputed factual issues surround the Armory Lease’s
formation, precluding the Court from dismissing any claims related to the Armory Lease at this
early juncture. (Id.) Finally, Plaintiffs assert that, even if the Armory Lease is valid and
enforceable, the agreement specifically provides for a contractual right to sue for breach, which
Plaintiffs are currently pursuing through this lawsuit. (Id. at 9.) Therefore, Plaintiffs maintain that
their claims should be allowed to proceed. (Id.)
To establish a claim for breach of contract, a plaintiff must show “(1) the existence of a
contract; (2) breach of the contract; and (3) damages [that] flow from the breach.” Life Care Ctrs.
of Am., Inc. v. Charles Town Assocs. Ltd. P’ship, 79 F.3d 496, 514 (6th Cir. 1996). In interpreting
a contract, the role of the Court is to ascertain and give effect to the intent of the parties. Pineda
Transp., LLC v. FleetOne Factoring, LLC, No. 3:18-cv-0089, 2018 WL 2137760, at *3 (M.D.
Tenn. May 9, 2018). The task is to ascertain the intention of the parties based upon the usual,
natural, and ordinary meaning of the contract language. Id.
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Moreover, as to the issue of unconscionability:
A court will generally refuse to enforce a contract on the ground of
unconscionability only when the inequality of the bargain is so manifest as to shock
the judgment of a person of common sense, and where the terms are so oppressive
that no reasonable person would make them on the one hand, and no honest and
fair person would accept them on the other. In determining whether a contract is
unconscionable, a court must consider all the facts and circumstances of a particular
case. If the provisions are then viewed as so one-sided that the contracting party is
denied any opportunity for a meaningful choice, the contract should be found
unconscionable.
Haun v. King, 690 S.W. 2d 869, 872 (Tenn. Ct. App. 1984) (internal citations omitted).
Specifically, as to unconscionable lease provisions, Tennessee Code Annotated § 47-2A-109
provides that:
If the court as a matter of law finds a lease contract or any clause of a lease contract
to have been unconscionable at the time it was made the court may refuse to enforce
the lease contract, or it may enforce the remainder of the lease contract without the
unconscionable clause, or it may so limit the application of any unconscionable
clause as to avoid any unconscionable result.
Further, a plaintiff alleging fraudulent misrepresentation, as Plaintiffs claim with respect
to Lewis’s misrepresentations regarding the Armory Lease’s terms, must show that: (1) the
defendant made a representation of an existing or past fact; (2) the representation was false when
made; (3) the representation was in regard to a material fact; (4) the false representation was made
either knowingly or without belief in its truth or recklessly; (5) plaintiff reasonably relied on the
misrepresented material fact; and (6) plaintiff suffered damage as a result of the misrepresentation.
Metro. Gov’t of Nashville and Davidson Cnty. v. McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App.
1992).
Here, the Court finds that resolving Plaintiffs’ Armory Lease claims requires fact-intensive
findings and analysis ill-suited for determination in a Rule 12(c) motion. See Sallis v. Portfolio
Ambassador East, LLC, Case No. 07-cv-2911, 2008 WL 4425876, at *7 n.7 (N.D. Ill. Sept. 25,
11
2008) (stating that factual disputes should not be decided on Rule 12(c) motions). Definitively
determining whether the Lewis fraudulently induced Jones to execute the Armory Lease on behalf
of ACF would require the Court to resolve several disputed factual issues, such as: (1) the precise
conduct of the Lewis, including his specific representations about the Armory Lease’s terms; (2)
Jones’s knowledge regarding the Armory Lease’s actual terms at the time he agreed to its terms;
and (3) whether the alleged communication from Lewis to Jones actually contained only the
Armory Lease’s signature page. Additionally, deciding whether the Armory Lease contains
unconscionable terms would require the Court to consider “all the facts and circumstances” of this
early-stage case. See Haun, 690 S.W. 2d at 872. These kinds of factual determinations are
inappropriate for a Rule 12(c) motion, and the Court believes the better course of action is to allow
development of the factual issues through discovery to aid in the ultimate disposition of the issues,
whether through additional dispositive motions or more likely at trial. Sallis, 2008 WL 4425876,
at *7 n.7.
D. Fraud Claim
Next, Defendants argue that Plaintiffs have not pleaded their fraud claim with sufficient
particularity as required by Federal Rule Civil Procedure 9(b). (Doc. No. 91 at 10.) Defendants
maintain that Plaintiffs’ allegations lack specific factual details, including any alleged fraudulent
statements, the time or place of any alleged fraud, any actions by Plaintiffs in reliance on the
alleged fraudulent statements, or any specific injury suffered by Plaintiffs because of the alleged
fraud. (Id. at 11.) Further, Defendants argue that Plaintiffs’ fraud claim “reflect[s] statements of
future intent, not past or present existing facts as required by Tennessee’s elements of fraud.” (Id.
at 12.) Accordingly, Defendants assert that Plaintiffs’ fraud claim should be dismissed. (Id.)
12
Plaintiffs respond that, taking their Second Amended Complaint in its entirety, they have
sufficiently pleaded their fraud claim. (Doc. No. 100 at 13.) Plaintiffs acknowledge that, under
Federal Rule Civil Procedure 9(b), fraud claims must be pleaded with particularity. (Id.) Plaintiffs
note that they have alleged specific factual detail concerning Lewis’s fraudulent scheme, the false
representations Lewis made, the approximate time he made those statements, his fraudulent intent,
their reliance on these false statements, and the consequential injuries they suffered from that fraud.
(Id. at 14.) Plaintiffs contend that: (1) Lewis made material misrepresentations concerning the
necessity and purpose of forming CFP, how the relationship between the two companies would
operate, and the rights/interests Plaintiffs would retain in CFP; (2) in reliance on these fraudulent
statements, Plaintiffs agreed to the formation of ACF and the proposed structural relationship
between the companies, including Lewis and Jane’s co-ownership of CFP and the Sidco, Meridian,
and Armory Leases; and (3) Plaintiffs suffered significant monetary damages as a result. (Id. at
14-15.) Plaintiffs also argue that, despite Defendants’ argument that the fraud claim has not been
pleaded with sufficient particularity, Defendants have already filed an Answer that responds to the
fraud claim and the supporting allegations. (Id.) Therefore, Plaintiffs contend that their fraud claim
should proceed. (Id.)
The Federal Rules of Civil Procedure provide that a party alleging fraud must state, with
particularity, the circumstances constituting the fraud. See Fed. R. Civ. P. 9(b). Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally. Id. To plead fraud
with particularity, a plaintiff must allege: (1) the time, place and content of the alleged
misrepresentation; (2) the fraudulent scheme; (3) the defendant’s fraudulent intent; and (4) the
resulting injury. Power & Telephone Supply Co., Inc. v. Suntrust Banks, Inc., 447 F.3d 923, 931
13
(6th Cir. 2006); Pineda Transp., 2018 WL 2137760, at *4; see also United States ex rel. Kreipke
v. Wayne State Univ., Case No. 12-14836, 2014 WL 6085704, at *3 (E.D. Mich. Nov. 13, 2014).
Although Rule 9(b) adds additional pleading requirements for allegations of fraud or
mistake, it should not be read to defeat the general policy of simplicity and flexibility in pleadings
contemplated by the Federal Rules. U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496,
503-04 (6th Cir. 2008) (citing Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 678 (6th
Cir. 1988)). “Rather, Rule 9(b) exists predominantly for the same purpose as Rule 8: ‘to provide a
defendant fair notice of the substance of a plaintiff’s claim in order that the defendant may prepare
a responsive pleading.’” Id. (citing Michaels Bldg. Co., 848 F.3d at 678). Moreover, the
requirement that a plaintiff specifically allege the time, place, and content of the alleged
misrepresentation “should be understood in terms of Rule 9(b)’s broad purpose of ensuring that a
defendant is provided with at least the minimum degree of detail necessary to bring a competent
defense.” Id. “Essentially, [a complaint] should provide fair notice to Defendants and enable them
to ‘prepare an informed pleading responsive to the specific allegations of fraud.’” Id.
Fraud occurs when a person intentionally misrepresents a material fact or intentionally
produces a false impression in order to mislead another or to obtain an unfair advantage. Orlowski
v. Bates, 146 F. Supp. 3d 908, 924 (W.D. Tenn. 2015); Brown v. Birman Managed Care, Inc., 42
S.W. 3d 62, 66 (Tenn. 2001). The representation must have been made with knowledge of its
falsity and with a fraudulent intent. Id. The representation must have been to an existing or past
fact that is material, and the plaintiff must have reasonably relied upon that misrepresentation to
his injury. Id. (quoting Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d
315, 322 (6th Cir. 1999)).
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Taking Plaintiffs’ Second Amended Complaint as a whole, Plaintiffs have stated their fraud
claim with sufficient particularity. See Wilkins ex rel. U.S. v. State of Ohio, 885 F. Supp. 1055,
1065-66 (S.D. Ohio 1995) (noting that, in examining fraud claims, the complaint must be
considered as a whole). To be sure, if the specific allegations contained in the Second Amended
Complaint’s “Count IV-Fraud” section are viewed in isolation, Plaintiffs fraud claim would clearly
fail to comply with Rule 9(b). (See Doc. No. 73 at 20-21.) However, Plaintiffs incorporate their
previous allegations into this section by reference. (Id. at 20.)
Throughout their Second Amended Complaint, Plaintiffs allege an overarching fraudulent
scheme whereby: (1) Lewis and Jane falsely represented that Plaintiffs needed to form CFP for
certain tax advantages, falsely claimed that CFP should be owned by them to avoid complications
with the Sarbanes-Oxley Act, and falsely represented that Plaintiffs would retain interests in CFP’s
assets; (2) Plaintiffs relied on these representations and formed CFP and designed the structural
relationship between the companies based on these representations; and (3) Plaintiffs suffered
monetary damages as a result. (Id. at 3-12.) Further, Plaintiffs allegations are replete with specific
temporal references to when and how Lewis made certain alleged misrepresentations. (Id. at 3-5.)
For example, the Second Amended Complaint alleged that Lewis’s representations concerning the
need to form CFP occurred in early 2003, with the actual formation of CFP commencing in
September 2003. (Id. at 3-4.) Although these temporal allegations are not alleged with pinpoint
precision, given Rule 9(b)’s broad purpose and that Defendants have already answered Plaintiffs’
fraud allegations, the allegations clearly provide at least the minimum degree of detail necessary
to allow Defendants to mount a competent defense. U.S. ex rel. SNAPP, Inc., 532 F.3d at 503-04.
Further, Plaintiffs allege that Lewis, as an employee of ACF and owner of CFP, operated
out of ACF’s satellite office in Nashville, Tennessee, and, therefore, this is the place from which
15
he made his misrepresentations. (Id.) Plaintiffs’ fraud claims relating to the Armory Lease and
other ancillary agreements likewise state in sufficient detail the relevant facts giving rise to those
claims. (See Doc. No. 73 at 12-17.) Moreover, contrary to Defendants’ argument, Plaintiffs
allegations clearly refer to Lewis’s past misrepresentations regarding the circumstances
surrounding the formation and structural relationship of CFP and the other lease agreements. (Id.
at 2-6.) Additionally, although Plaintiffs, at this juncture, cannot definitively prove that the
misrepresentations were false at the time they were made, such a showing is not required. See Fed.
R. Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.”)
Therefore, the Court concludes that Plaintiffs have met their burden under Rule 9(b) and
their fraud claim will be allowed to proceed.
E. Breach of Fiduciary Duty Claims
Defendants argue that Lewis did not breach his fiduciary duties to ACF in orchestrating
certain agreements between ACF and CFP because Lewis, as owner of CFP, owed a fiduciary duty
only to CFP. (Id. at 12-13.) Defendants maintain that Lewis was hired as ACF’s Vice President of
National Accounts to provide sales and management expertise in the commercial floor covering
industry, and, therefore, any suggestion by Lewis to Plaintiffs about creating and operating CFP
and structuring the relationship between the companies was not within the scope of his fiduciary
duty to ACF. (Id. at 13.) Likewise, when Lewis negotiated with Plaintiffs about the lease
agreements, he was acting simultaneously as an employee of ACF and representative of CFP. (Id.
at 14.) Defendants further argue that, even if Lewis owed a fiduciary duty to ACF when he
proposed the creation and operation of CFP, he fully disclosed the parameters of his proposal to
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Plaintiffs, and, after considering this information, Plaintiffs voluntarily consented to the proposal.
(Id. at 14-15.)
Plaintiffs respond that (1) Lewis had a fiduciary duty to ACF; (2) they placed special trust
and confidence in Lewis to act in the best interests of ACF; (3) Lewis assured Plaintiffs that any
transactions with CFP and by CFP would be in the best interests of ACF; (4) Lewis breached this
fiduciary duty to ACF by shifting profits from ACF to CFP, placing ACF into real estate leases at
above-market rates, and forcing ACF to make capital improvements to the lease properties that
were rightfully CFP’s obligation; and (5) Lewis alone personally profited from these transactions,
which caused financial injury to Plaintiffs. (Doc. No. 100 at 18.) Further, Plaintiffs contend that
Defendants’ arguments concerning the formation and operation of CFP raises factual disputes not
appropriate for resolution in a Rule 12(c) motion. (Id. at 19.)
Fiduciary duty applies to any person who occupies a position of peculiar confidence
towards another and refers to integrity and fidelity in that relationship and contemplates fair
dealing and good faith, rather than legal obligation, as the basis for any transaction between parties.
See Johnson & Brewer v. Pritchard, 73 S.W. 3d 193, 200 (Tex. 2002). 3 Texas courts have long
recognized that fiduciary duties can arise in several different contexts, such as an attorney-client
relationships, partnerships, or employment. Id. Under Texas law, the elements of breach-offiduciary duty are: (1) a fiduciary relationship existed between the plaintiff and defendant; (2) the
defendant breached his fiduciary duty to the plaintiff; and (3) the defendant’s breach resulted in
injury to the plaintiff or benefit to the defendant. Anderton v. Crowley, 378 S.W. 3d 38, 51 (Tex.
Ct. App. 2012) (citing Jones v. Blume, 196 S.W.3d 440, 447 (Tex. Ct. App. 2006)).
3
The Employment Agreement, from which Lewis’s alleged fiduciary duty to ACF arose,
is governed by, and construed in accordance with, Texas law. (See Doc. No. 73-1 at 4.)
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A fiduciary breaches his duty to his beneficiary if (1) he engages in a transaction with his
beneficiary that is not fair and equitable; (2) he does not make reasonable use of the confidence
the beneficiary has placed in it; or (3) he does not make full and complete disclosure of all
important information. Id. “Other factors relevant to fairness include whether the beneficiary had
the benefit of independent advice, whether the fiduciary benefited at the beneficiary’s expense,
and whether the fiduciary significantly benefited from the transaction as viewed in light of
circumstances existing at the time of the transaction.” Id. In determining the scope of a fiduciary’s
duty, the court must consider the nature and purpose of the fiduciary relationship, in addition to
the agreements between the parties. Nat’l Plan Admr’s., Inc. v. Nat’l Health Ins. Co., 235 S.W.3d
695, 700 (Tex. 2007).
Here, Defendants appear, somewhat confusingly, to offer a two-pronged argument first,
that Lewis’s advice, representations, and dealings regarding the creation, formation, operation, and
business relationships between ACF and CFP were outside the scope of the fiduciary duty created
by the Employment Agreement, and, therefore, no fiduciary duty was owed regarding these
actions; and second, that even if such a fiduciary duty was owed, the dealings were above-board
and made with the full consent of ACF and its representatives, and, therefore, no fiduciary duty
was breached. (Doc. No. 91 at 12-15.) Plaintiffs essentially respond that: (1) Lewis owed an
overarching fiduciary duty to ACF beyond the duty outlined in the Employment Agreement; and
(2) Lewis’s fraudulent dealings violated that fiduciary duty. (Doc. No. 100 at 17-22.) Considering
these arguments, along with the factual allegations contained in the Second Amended Complaint,
there are significant factual issues in dispute that prevent the Court from resolving or dismissing
the claims on Defendants’ Rule 12(c) motion. See Contour Indus., Inc. v. U.S. Bancorp, Case No.
2:07-cv-234, 2008 WL 2704431, at *3 (E.D. Tenn. July 3, 2008) (“Any ultimate decision
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concerning whether [defendant] was a fiduciary or employee . . . must await the factual
development of the record.”)
Specifically, Defendants and Plaintiffs present counter-factual arguments regarding: (1)
what fiduciary duty, if any, was owed; (2) whether this alleged fiduciary duty extended to the
business relationship between ACF and CFP; and (3) most importantly, the precise, alleged
representations of Lewis that violated his fiduciary duty. (See Doc. Nos. 91 at 12-15, 100 at 1722.) Further, although Defendants contend that Lewis was above-board in his dealings with
Plaintiffs and fully disclosed all relevant facts prior to any agreements (creation/formation of CFP,
Sidco Lease, Armory Lease, Meridian Lease, etc.), Plaintiffs, as shown above, vigorously contest
that the relevant terms of these agreements were provided, and, indeed, allege that such terms were
misrepresented. (Id.) Because definitively resolving Plaintiffs’ breach of fiduciary duty claims
would require the Court to resolve these linchpin factual disputes, the better course of action is to
allow the claims to be more fully-developed through discovery, so that they may be disposed of at
a later proceeding. Accordingly, the Court will deny Defendants’ Rule 12(c) motion to the extent
it seeks dismissal of Plaintiffs’ breach of fiduciary duty claims.
F. Civil Conspiracy Claim
Additionally, Defendants argue that Plaintiff’s civil conspiracy claims must be dismissed
for failure to comply with the relevant pleading standard. (Doc. No. 91 at 16.) Defendants argue
that Plaintiffs fail to identify (1) the specific actions that comprised the alleged conspiracy; and (2)
how Jane Moorer (Lewis’s wife) was involved in the conspiracy. (Id.) Defendants contend that
Plaintiffs’ conspiracy claim consists only of a “bland recitation of the elements of civil conspiracy”
and, therefore, it must be dismissed as a matter of law. (Id.) At minimum, Defendants argue that
the civil conspiracy claims against Jane Moorer must be dismissed. (Id.) Moreover, Defendants
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assert that Plaintiffs’ pleading deficiencies require their conspiracy claims to be dismissed under
Rule 9(b) because civil conspiracy claims sound in fraud. (Id. at 17.) Finally, Defendants argue
that Plaintiffs’ civil conspiracy claim must be dismissed because there is no actionable underlying
tort. (Id. at 17-18.)
Plaintiffs respond that they have sufficiently stated their conspiracy claim because they set
forth in specific detail that (1) Lewis and Jane Moorer conspired to defraud ACF; (2) both
fraudulently induced Plaintiffs to set up CFP within their sole control and falsely stated Plaintiffs
would retain an interest in CFP and its assets; (3) Lewis and Jane Moorer, through CFP, acquired
real estate and other assets; and (4) both now disclaim Plaintiffs’ interests in CFP or any of its
assets. (Doc. No. 100 at 24.) Specifically, as to Jane Moorer, Plaintiffs argue that she is a 95%
owner of CFP, and, therefore, it is reasonable to infer that she: (1) ratified the underlying
transactions for CFP; (2) knew that CFP was merely a vehicle to convert Plaintiffs’ assets; and (3)
agreed with Lewis on this course of action. (Id. at 25.) Plaintiffs also argue that their conspiracy
claims are well-pleaded and in compliance with Rule 9(b). (Id.) Finally, Plaintiffs contend that at
least two torts underlie their conspiracy claims: (1) breach of fiduciary duty; and (2) fraud. (Id.)
The elements of a cause of action for civil conspiracy in Tennessee are: (1) a common
design between two or more persons; (2) to accomplish by concerted action an unlawful purpose,
or a lawful purpose by unlawful means; (3) an overt act in furtherance of the conspiracy; and (4)
injury to person or property resulting in attendant damage. Freeman Mgmt. Corp. v. Shurgard
Storage Ctrs., 461 S. Supp. 2d 629, 642 (M.D. Tenn. 2006) (citing Braswell v. Carothers, 863 S.W.
2d 722, 727 (Tenn. Ct. App. 1993) and Menuskin v. Williams, 145 F.3d 755, 770 (6th Cir. 1998)).
In addition, civil conspiracy requires an underlying predicate tort allegedly committed pursuant to
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the conspiracy. Id. (citing Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 721 (E.D. Tenn.
2001)).
Injury to person or property, resulting in attendant damage, must also exist, and each
conspirator is liable for all damages naturally flowing from any wrongful act of a co-conspirator
carrying the common design. Brown v. Birman Managed Care, Inc., Case No. M1999-02551COA-R3-CV, 2000 WL 122208, at *2-3 (Tenn. Ct. App. Feb. 1, 2000). Moreover, the agreement
required to establish a conspiracy “‘need not be formal, the understanding may be a tacit one, and
it is not essential that each conspirator have knowledge of the details of the conspiracy.’” Chenault
v. Walker, Case No. W1998-00769-SC-R11, 2001 WL 28687, at *6 (Tenn. Jan. 12, 2001) (quoting
Dale v. Thomas H. Temple Co., 208 S.W. 2d 344, 353 (Tenn. 1948)). Because conspiracies are
“by their very nature secretive operations,” they “can seldom be proved by direct evidence.”
Brown, 2000 WL 122208, at *3. Therefore, the existence of the conspiracy “may be inferred from
the relationship of the parties or other circumstances.” Id. In other words, a conspiracy “may be
proved by circumstantial evidence.” Id.
The Court finds that, contrary to Defendants’ arguments, Plaintiffs have alleged sufficient
facts for the Court to infer the existence of a civil conspiracy on the part of both Lewis and Jane
Moorer. First, the Court acknowledges that Plaintiff’s boilerplate allegation that “Lewis and Jane
combined to conspire against ACF to commit fraud or to have Lewis breach his fiduciary duties
to ACF” is insufficient, by itself, to demonstrate the existence of a conspiracy. However,
Defendants’ argument that Plaintiffs’ civil conspiracy claim is insufficiently pleaded is belied by
viewing the Second Amended Complaint as a whole. Plaintiff’s previous factual allegations are
incorporated into Plaintiffs’ conspiracy claim, and therefore, must be taken into account when
considering the claim. (See Doc. No. 73 at 30).
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According to the Second Amended Complaint, Lewis and Jane Moorer are husband and
wife, both were involved in the proposal to create and operate CFP as a “sister” entity, and both
serve as co-owners of CFP, with Lewis retaining a 5% ownership interest and Jane retaining a 95%
ownership interest. (Id. at 3-4.) It is clear to the Court that Plaintiffs’ overarching allegations are:
(1) Lewis and Jane combined to unlawfully convert Plaintiffs’ assets through the creation and
operation of CFP; (2) both Lewis and Jane were instrumental in convincing Plaintiffs to create and
operate CFP to achieve this goal; (3) Lewis and Jane proceeded to convert Plaintiffs’ assets through
various agreements (Armory Lease, Sidco Lease, Meridian Lease, Master Buy-Sell Agreement);
and (4) this civil conspiracy caused Plaintiffs monetary damage. (Id. at 3-17.) These allegations
are sufficient to state a claim for civil conspiracy. See Freeman Mgmt. Corp., 461 S. Supp. 2d at
642. Further, the Court concludes that, to the extent Fed. R. Civ. P. 9(b) applies to Plaintiffs’ civil
conspiracy claim, they have pleaded their claim with the requisite particularity.
Further, as to Defendants’ particular argument that Jane Moorer should be dismissed as a
defendant, the Court finds that the allegations regarding the close, personal relationship of Jane
and Lewis prevent her dismissal. (Id. at 4-12.) As noted, Lewis and Jane are husband and wife,
both were involved in the proposal to create and operate CFP, and both serve as CFP co-owners.
(Id. at 3-4.) These close, interconnected relationships, while limited, are enough to infer the
existence of a conspiratorial agreement. Brown, 2000 WL 122208, at *3. Therefore, Plaintiffs may
pursue their civil conspiracy claim against all Defendants, including Jane. Finally, as noted above,
Plaintiffs’ claims for fraud and breach of fiduciary will proceed, and, therefore, either may serve
as the underlying tort for Plaintiffs’ civil conspiracy claim. See Greene v. Brown & Williamson
Tobacco Corp., 72 F. Supp. 2d 882, 893 (W.D. Tenn. 1999) (holding that fraud claim was
appropriate underlying tort for plaintiff’s civil conspiracy claim); Lane v. Becker, 334 S.W. 3d
22
756, 763-64 (Tenn. Ct. App. 2010) (holding that a claim for civil conspiracy requires an
underlying, actionable predicate tort).
Accordingly, Defendants’ motion will be denied to the extent it seeks dismissal of
Plaintiffs’ civil conspiracy claim.
G. Unjust Enrichment/Quantum Meruit Claims
Defendants argue that Plaintiffs, for the first time in their Second Amended Complaint,
include claims for unjust enrichment/quantum meruit. (Doc. No. 91 at 18.) Defendants argue that
unjust enrichment/quantum meruit claims may only be raised if there is no contract between the
parties, and, therefore, to the extent Plaintiffs’ unjust enrichment/quantum meruit claims concern
the Meridian and Sidco properties, the claims must be dismissed as a matter of law. (Id. at 18-19.)
Further, Defendants argue that any unjust enrichment/quantum meruit claims related to the lease
of a 2015 Mercedes (a CFP asset) should be dismissed because the lease serves as the operative
agreement for that asset. (Id. at 19.)
Plaintiffs respond that CFP received funds (in the form of capital improvements to the
Sidco and Meridian properties and pre-paid maintenance services to the Mercedes) not provided
for in the respective leases, and these payments form the basis for their unjust enrichment/quantum
meruit claims. (Doc. No. 100 at 23-24.) Further, Plaintiffs contend that the Meridian, Sidco, and
Mercedes leases are not part of the record before the Court on Defendants’ Rule 12(c) motion, so
it is premature (and functionally impossible) for the Court to rule on whether these claimed
expenses were covered by the respective agreements. (Id.)
Plaintiffs are correct that the agreements at issue are not part of the “pleadings” the Court
reviewed in deciding Defendants’ Rule 12(c) motion. (See Doc. No. 73, 84.) Therefore, the Court
is unable to determine whether Plaintiffs’ alleged capital improvements and maintenance expenses
23
were subject to the respective lease agreements. Because the Court is prevented from looking
outside the pleadings, the Court declines to dismiss Plaintiffs’ unjust enrichment/quantum meruit
claims at this juncture and will instead await further development of the factual record.
H. Promissory Estoppel
Finally, Defendants argue that Plaintiffs’ promissory estoppel claim should be dismissed
because Plaintiffs’ allegations fail to demonstrate the existence of a promise. (Doc. No. 91 at 1920.) Defendants characterize Plaintiffs alleged “promises” as “vague statements or opinions, some
of which are directed toward future events.” (Id.) Plaintiffs respond that they have sufficiently
alleged their promissory estoppel claim in specific factual detail such that it may not be dismissed
on Defendants’ Rule 12(c) motion. (Doc. 100 at 22-23.)
Promissory estoppel is based upon a promise which the promisor should reasonably expect
to induce action or forbearance on the part of the promisee or a third person and which does induce
such action or forbearance. Barnes & Robinson Co., Inc. v. Onesource Facility Serv., Inc., 195
S.W.3d 637, 645 (Tenn. Ct. App. 2006). Such a promise is binding if injustice can be avoided only
by enforcement of the promise. Id. Under Tennessee law, a plaintiff bringing a promissory estoppel
claim must show three elements: (1) that a promise was made; (2) that the promise was
unambiguous and not unenforceably vague; and (3) that he reasonably relied upon the promise to
his detriment. Vaughter v. BAC Home Loans Serv., LP, Case No. 3:11-cv-00776, 2012 WL
162398 at * 4 (M.D. Tenn. Jan.19, 2012).
However, there are limits to the application of promissory estoppel: (1) the detriment
suffered in reliance must be substantial in an economic sense; (2) the substantial loss to the
promisee in acting in reliance must have been foreseeable by the promisor; and (3) the promisee
must have acted reasonably in justified reliance on the promise as made. Barnes & Robinson, 195
24
S.W.3d at 645. No injustice arises in the refusal to enforce a promise where either the loss induced
is negligible or the promisee’s reliance is not reasonable. Id.
Tennessee does not liberally apply the doctrine of promissory estoppel. To the contrary, it
limits application of the doctrine to exceptional cases. Id.; see also Doe v. University of the South,
687 F. Supp. 2d 744, 763 (E.D. Tenn. 2009). Such exceptional cases are found only where a
defendant’s conduct is akin to fraud. See Doe, 687 F. Supp. 2d at 763. Promissory estoppel claims
are generally disfavored in Tennessee, and they are only available where there is no valid contract
between the parties. Vaughter, 2012 WL 162398 at *9; see also Holt v. Macy’s Retail Holdings,
Inc., 719 F. Supp. 2d 903, 913-14 (W.D. Tenn. 2010). Promissory estoppel is an equitable remedy
based on a quasi-contractual theory only available where there is an absence of consideration
between the parties so that there is no valid contract. Id.
As with Plaintiffs’ unjust enrichment/quantum meruit claims, the Court declines to dismiss
Plaintiffs’ promissory estoppel claims at this juncture. The Court notes that, to the extent Plaintiffs’
promissory estoppel claim concerns the Sidco and Meridian Leases, those agreements are not
before the Court. Further, the Court notes that dismissing Plaintiffs’ promissory estoppel claims
would require it to make definitive determinations regarding factual disputes, including
Defendants’ precise representations regarding the creation of CFP and other ancillary agreements.
The Court will allow for further development of the factual record before resolving this claim at
summary judgment or at trial.
IV.
Conclusion
For these reasons, Defendants’ Rule 12(c) Motion For Judgment On The Pleadings
Relating to Plaintiffs’ Second Amended Complaint (Doc. No. 90) is granted in part and denied in
part. Plaintiffs’ Declaratory Judgment Act claim regarding the Buyback Option will be dismissed.
25
Plaintiffs’ remaining claims will be allowed to proceed. This case will be returned to the Magistrate
Judge for further case management.
An appropriate Order will enter.
____________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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