Harber et al v. First United Bank and Trust Company

Filing 38

MEMORANDUM OPINION AND ORDER denying 33 MOTION to Dismiss Counterclaim filed by Dorothy Harber, Lacy Harber, LJH, Ltd.. Signed by District Judge Amos L. Mazzant, III on 10/22/2020. (daj, )

Case 4:20-cv-00329-ALM Document 38 Filed 10/22/20 Page 1 of 3 PageID #: 406

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LACY HARBER, DOROTHY HARBER,
LJH, LTD.
v.
FIRST UNITED BANK AND TRUST CO.,
SPEND LIFE WISELY COMPANY, INC.,
GREG MASSEY

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Civil Action No. 4:20-cv-329
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Dismiss Counterclaim (Dkt. #33). Having
considered the motion and the relevant pleadings, the Court finds the Motion should be DENIED.
BACKGROUND
On April 17, 2020, Plaintiffs Lacy Harber, Dorothy Harber and LJH Ltd. (“Plaintiffs”)
sued First United Bank and Trust Co., Spend Life Wisely Company, Inc., and Greg Massey
(“Defendants”) (Dkt. #1). On August 20, Defendants filed an Answer and asserted a counterclaim
for attorneys’ fees (Dkt. #29).

On September 11, Plaintiffs filed the Motion to Dismiss

Counterclaim (Dkt. #33). On September 28, Defendants responded (Dkt. #35). On October 5,
Plaintiffs replied (Dkt. #36). On October 12, Defendants filed their Sur-Reply (Dkt. #37).
LEGAL STANDARD
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short
and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When

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considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded
facts in the plaintiff’s complaint and view those facts in the light most favorable to the plaintiff.
Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the
complaint, any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine
whether the complaint states a claim for relief that is plausible on its face. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the wellpleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims
or elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.

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Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Id. at 678 (quoting
Twombly, 550 U.S. at 570).
ANALYSIS
After reviewing the Motion, the relevant pleadings, and briefing, the Court finds that
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Defendants have stated plausible claims for purposes of defeating a Rule 12(b)(6) motion.
CONCLUSION
It is therefore ORDERED that Plaintiffs Lacy Harber, Dorothy Harber, LJH Ltd.’s Motion
to Dismiss Counterclaim (Dkt. #33) is hereby DENIED.
SIGNED this 22nd day of October, 2020.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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