Tornado Bus Company v. Bus & Coach America Corporation et al
Filing
43
MEMORANDUM OPINION AND ORDER granting in part and denying in part 22 Motion to Dismiss/Lack of Jurisdiction filed by Lawrence P Brennan, Bus & Coach America Corporation. For the reasons stated below, the Court concludes it has personal jurisdiction over BCAC; therefore, BCAC's Motion to Dismiss for Lack of Personal Jurisdiction is DENIED. BCAC's alternative Motion to Dismiss under Rule 12(b)(6) is GRANTED. (Ordered by Judge Barbara M.G. Lynn on 9/2/2015) (aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TORNADO BUS COMPANY,
Plaintiff,
v.
BUS & COACH AMERICA
CORPORATION, et. al.,
Defendants.
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No. 3:14-cv-3231-M
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion to Dismiss for Lack of Personal Jurisdiction, and in the
alternative, Motion to Dismiss under Rule 12(b)(6), filed by Defendants Lawrence P. Brennan
and Bus & Coach America Corporation (“BCAC”). [Docket #22]. The Court held a hearing on
the Motion on July 2, 2015, during which it dismissed Defendant Brennan for lack of personal
jurisdiction, but took under advisement the issue of jurisdiction over BCAC. For the reasons
stated below, the Court concludes it has personal jurisdiction over BCAC; therefore, BCAC’s
Motion to Dismiss for Lack of Personal Jurisdiction is DENIED. BCAC’s alternative Motion to
Dismiss under Rule 12(b)(6) is GRANTED.
I.
BACKGROUND
This case involves a contract dispute between Plaintiff Tornado Bus Company
(“Tornado”), a Texas corporation with its principal office in Dallas, Texas, and BCAC, a
California corporation with its principal place of business in California. According to the
allegations in Plaintiff’s First Amended Complaint [Docket #21], Tornado’s representatives first
met with BCAC at a bus dealership in Florida, where Tornado negotiated with BCAC’s
President, Lawrence Brennan, and entered into a contract to purchase twenty buses from BCAC.
A later addendum amended the contract to call for the purchase by Tornado of only five buses.
On April 2, 2012, Tornado wired BCAC a down payment on the five buses of $187,500.
Tornado alleges BCAC failed to deliver any buses to Tornado, but that BCAC has refused to
return Tornado’s down payment of $187,500.
BCAC has no physical presence in Texas, and the contract and addendum were not
negotiated in Texas. Neither the contract nor the addendum included a choice of law provision
nor specified a venue for potential litigation under the contract. Nevertheless, Tornado argues
that BCAC should have reasonably anticipated being haled into court in Texas for litigation
under the contract, since some of the contractual terms call for BCAC’s performance in Texas.
Tornado filed its Original Petition against BCAC and Brennan in state district court,
alleging breach of contract, money had and received, conversion, fraud, and fraudulent
inducement. BCAC removed the case to federal court on the basis of diversity of citizenship.
Defendants BCAC and Brennan filed a Motion to Dismiss for lack of personal jurisdiction.
[Docket #5]. More than three months later, Tornado filed its First Amended Complaint, alleging
the same four claims in its Original Petition, but also seeking rescission. [Docket #21]. BCAC
and Brennan then filed a Motion to Dismiss for Lack of Jurisdiction, and alternatively, for failure
to state a claim under Rule 12(b)(6) [Docket #22]. In light of Tornado’s First Amended
Complaint, the Court denied Defendants’ first motion to dismiss as moot. [Docket #25].
The Court held a hearing on the remaining Motion on July 2, 2015. At the conclusion of
the hearing, the Court dismissed Defendant Brennan for lack of personal jurisdiction and took
under advisement the issue of jurisdiction over BCAC. The Court now turns to BCAC’s
arguments that the case should be dismissed for lack of personal jurisdiction, and alternatively,
for failure to state a claim under Rule 12(b)(6).
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II.
DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
A. LEGAL STANDARD FOR MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION
When a defendant challenges personal jurisdiction, the plaintiff bears the burden of
“mak[ing] a prima facie showing that personal jurisdiction is proper.” Monkton Ins. Servs., Ltd.
v. Ritter, 768 F.3d 429, 431 (5th Cir. 2014) (citing Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d
465, 469 (5th Cir. 2006)). The Court “must accept the plaintiff’s uncontroverted allegations, and
resolve in [its] favor all conflicts between the facts contained in the parties’ affidavits and other
documentation.” Monkton, 768 F.3d at 431 (quoting Revell v. Lidov, 317 F.3d 467, 469 (5th Cir.
2002)). In reviewing a motion to dismiss for lack of personal jurisdiction, the Court “may
consider ‘affidavits, interrogatories, depositions, oral testimony, or any combination of the
recognized methods of discovery.’” Revell, 317 F.3d at 469 (quoting Stuart v. Spademan, 772
F.2d 1185, 1192 (5th Cir. 1985)).
The Court has the power to exercise personal jurisdiction over a defendant only if the
following conditions are satisfied: “(1) the long-arm statute of the forum state confers personal
jurisdiction over that defendant; and (2) exercise of such jurisdiction by the forum state is
consistent with due process under the United States Constitution.” In re Chinese-Manufactured
Drywall Products Liab. Litig., 753 F.3d 521, 535 (5th Cir. 2014) (quoting Ainsworth v. Moffett
Eng’g, Ltd., 716 F.3d 174, 177 (5th Cir. 2013)). Because “[t]he Texas long-arm statute extends
to the limits of the Constitution,” only the second prong of the test is at issue. Stroman Realty,
Inc. v. Antt, 528 F.3d 382, 385 (5th Cir. 2008).1
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The Texas long-arm statute provides that “a nonresident does business in this state if the
nonresident . . . contracts by mail or otherwise with a Texas resident and either party is to
perform the contract in whole or in part in this state.” Tex. Civ. Prac. & Rem. Code § 17.042. If
the Court were to merely apply the Texas long-arm statute, the Court would have jurisdiction
over BCAC because the contract requires BCAC to perform, at least in part, in Texas. However,
the second step of the analysis requires the Court to analyze whether the exercise of jurisdiction
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There are two categories of personal jurisdiction, general and specific. Daimler AG v.
Bauman, 134 S. Ct. 746, 754 (2014). General jurisdiction exists when a foreign corporation’s
“affiliations with the State are so ‘continuous and systematic’ as to render them essentially at
home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2851 (2011) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)). For the Court to
exercise specific jurisdiction over a nonresident who has not consented to suit in the forum, the
nonresident must have contacts with the forum state that “arise from or are directly related to the
cause of action.” Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir. 1999) (citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).
B. ANALYSIS
Here, it is clear, and the parties do not appear to contest, that the Court lacks general
jurisdiction over BCAC, which has no office, bank account, presence in, or regular contact with
Texas. The remaining question is whether the Court has specific jurisdiction over BCAC. In so
deciding, the Court focuses on “the relationship among the defendant, the forum, and the
litigation.” Chinese-Manufactured Drywall, 753 F.3d at 529 (quoting Walden v. Fiore, 134 S.
Ct. 1115, 1121 (2014)). The Fifth Circuit mandates a three-step inquiry for an analysis of
specific jurisdiction:
(1) whether the defendant has minimum contacts with the forum state, i.e., whether it
purposely directed its activities toward the forum state or purposefully availed itself of
the privileges of conducting activities there; (2) whether the plaintiff’s cause of action
arises out of or results from the defendant’s forum-related contacts; and (3) whether the
exercise of personal jurisdiction is fair and reasonable.
Monkton, 768 F.3d at 433 (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271
(5th Cir. 2006). If the plaintiff establishes the first two prongs, then the burden shifts to the
comports with due process, so the two-step inquiry collapses into a single question: whether such
exercise of jurisdiction over BCAC in this case violates due process.
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defendant to show that the exercise of personal jurisdiction over it would not be fair or
reasonable. Monkton, 768 F.3d at 433.
The minimum contacts test is a fact-intensive inquiry, the touchstone of which is
“whether the defendant’s conduct shows that it ‘reasonably anticipates being haled into court’ [in
the forum].” McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009) (quoting Luv N’ Care, 438
F.3d at 470). Specific jurisdiction cannot be established through random, fortuitous, or
attenuated contacts, nor from the “unilateral activity of a third party or another person.”
McFadin, 587 F.3d at 759 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
In deciding whether a defendant purposefully availed itself of the privileges of conducting
business in the forum state, for purposes of a breach of contract claim, the Fifth Circuit has
considered the place where the contract was negotiated, the physical presence of the defendant’s
representatives in the forum, where contract performance is to take place, and any other contract
clauses that show that the defendant should have reasonably anticipated being haled into court in
the forum. See, e.g., Moncrief Oil Int’l Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007);
Cent. Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 376, 382 (5th Cir. 2003). Applying
those factors, the Court finds that BCAC is subject to personal jurisdiction in Texas.
Tornado argues that the terms of the parties’ contract and the addendum show required
activities by BCAC that would have resulted in its having an ongoing presence in Texas. The
contract provided that the buses would be delivered “FOB Dallas TX, USA” [Docket #5-1, p.23].
Knowing that Tornado’s facility was located in Texas, BCAC agreed to provide Tornado, at no
cost to it, a service technician for one year from the time of delivery, at Tornado’s facility.
[Docket #5-1, p.24, 33]. Additionally, BCAC agreed to stock parts valued at $2,000 per bus, for
the duration of the time that the factory technician would remain on site [Docket #5-1, p.24, 33].
Finally, BCAC and Tornado agreed to have “further discussions about [Tornado’s facility]
becoming a certified service facility [of BCAC].” [Docket #5-1, p.24, 33]. BCAC argues that
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these facts do not constitute a prima facie showing that BCAC had the requisite contacts with
Texas, particularly because BCAC representatives had never been to Texas in connection with
the contract, the contract was not negotiated in Texas, and the buses were manufactured in
China.
In the Court’s view, BCAC should have anticipated being sued in a Texas court because
BCAC created continuing obligations between itself and Tornado that required BCAC to have a
presence in Texas. See Travelers Health Ass’n v. Virginia ex rel. State Corp. Com’n, 339 U.S.
643, 647 (1950). Specifically, Tornado agreed to deliver the buses to Tornado in Texas, provide
a technician on site at Tornado’s facility in Texas, and deliver parts to Tornado’s facility in
Texas. These contacts are not random, fortuitous, or attenuated; rather, the contract terms
requiring BCAC to perform in Texas are clearly to the strategic advantage of Tornado. Compare
Moncrief, 481 F.3d at 313 (the mere foreseeability of performance in Texas was insufficient for
personal jurisdiction, where the contract was silent as to the location of performance, and given
the nature of the work, there was no indication that the location of the performance mattered),
with Central Freight, 322 F.3d at 385 (the defendant was subject to personal jurisdiction where
defendant’s planned performance in Texas was strategically advantageous and beneficial to the
plaintiff).
The fact that the contract does not contain a forum selection clause, a choice of law
clause, or some other clause explicitly subjecting BCAC to jurisdiction in Texas is not
dispositive. See Central Freight, 322 F.3d at 383 (finding personal jurisdiction, noting that
“[a]lthough the [contract] apparently does not contain a forum selection clause, a choice of law
clause, or some other [clause] . . . neither does the [contract] contain any provision that would
give [defendant] reason to think that it could not be haled into court in Texas”). What matters is
that BCAC’s obligations under the contract had the “aim of establishing a long-term association”
with Tornado, a known Texas resident, and had “the foreseeable and intended result of causing
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economic activity within the forum state.” Id. BCAC makes much of the fact that it has no
physical presence in Texas, but “the mere absence of physical contacts within the forum state
cannot defeat personal jurisdiction there.” Id. at 385. The first prong of the Court’s specific
jurisdiction analysis—minimum contacts—is met. Furthermore, Tornado’s causes of action have
an obvious nexus to BCAC’s anticipated contacts with Texas, satisfying the second prong of the
analysis: all of Tornado’s claims are based on BCAC’s failure to perform under the terms of the
contract, and it is the terms of the contract that are the basis for BCAC’s minimum contacts with
Texas.
Having established a prima facie case of personal jurisdiction, the burden shifts to BCAC
to show that the assertion of jurisdiction here is unfair and unreasonable. Central Freight, 322
F.3d at 384. “In determining whether the exercise of jurisdiction is fair and reasonable, the court
must balance: (1) the burden on the nonresident defendant of having to defend itself in the
forum; (2) the interests of the forum state in the case; (3) the plaintiff’s interest in obtaining
convenient and effective relief; (4) the interstate judicial system’s interest in the most efficient
resolution of controversies; and (5) the shared interests of the states in furthering fundamental
social policies.” Id. The Court finds that BCAC has not met its burden to show that jurisdiction
would be unfair and unreasonable here. BCAC has not presented evidence that it would suffer
any more than a nominal financial burden by having to defend this lawsuit in Texas.
III.
BCAC’S ALTERNATIVE 12(B)(6) MOTION TO DISMISS
A. PROCEDURAL BAR ON SUCCESSIVE MOTIONS TO DISMISS
Alternatively, BCAC asks the Court to dismiss Tornado’s claims for money had and
received, conversion, fraud, and fraudulent inducement under Rule 12(b)(6).2 Tornado responds
that, under Rule 12(g)(2), BCAC is prohibited from challenging the sufficiency of its pleadings
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BCAC does not move to dismiss Tornado’s breach of contract claim.
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because Defendants failed to raise the issue in their initial motion to dismiss. Rule 12(g)(2)
provides that a party that makes a motion under Rule 12 “must not make another motion under
[Rule 12] raising a defense or objection that was available to the party but omitted from its
earlier motion,” unless another motion is permitted under Rule 12(h)(2) or (3). Fed. R. Civ. P.
12(g)(2). Rules 12(h)(2) and (3), in turn, exempt certain defenses—including the defense of
failure to state a claim upon which relief can be granted—from this consolidation requirement.
Unlike other Rule 12(b) defenses, Rule 12(h)(2) provides that a party may raise the defense of
failure to state a claim upon which relief can be granted in other procedural contexts, including a
Rule 7(a) pleading, a Rule 12(c) motion for judgment on the pleadings, or at trial. Fed. R. Civ.
P. 12(h)(2). Therefore, a defendant does not waive its right to argue that the plaintiff’s complaint
fails to state a claim for relief merely by failing to raise the issue in its first Rule 12 motion.
MCW, Inc. v. Badbusinessbureau.com, L.L.C., 2004 WL 833593, at *5-6 (N.D. Tex. Apr. 19,
2004) (“Together, Rules 12(g) and (h)(2) operate to exempt a Rule 12(b)(6) defense from the
consolidation requirement and to preserve that defense from waiver.”).
Although the Court could demand strict compliance with Rule 12(g)(2) and require
BCAC to reurge its defense of failure to state a claim upon which relief can be granted in another
procedural context, the interests of efficiency and judicial economy are best served by
considering the merits of BCAC’s arguments at this stage in the litigation. See Nationwide BiWeekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 141 (5th Cir. 2007) (holding district court did
not abuse its discretion by considering defendant’s successive Rule 12(b)(6) motion). The Court
thus turns to BCAC’s alternative Motion to Dismiss.
B. LEGAL STANDARDS FOR MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
FOR RELIEF
For a pleading to withstand a Rule 12(b)(6) motion to dismiss, it must include “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8.
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In analyzing a motion to dismiss under Rule 12(b)(6), the Court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff. Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). A complaint must “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Howe v. Yellowbook, USA, 840 F. Supp. 2d 970, 975 (N.D. Tex.2011) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). It must provide “more than an unadorned accusation
devoid of factual support,” but need not include detailed factual recitations. Id. (citing Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). Although courts must presume that the plaintiff’s factual
allegations are true, “legal conclusion[s] couched as . . . factual allegation[s]” are not given such
deference. See Twombly, 550 U.S. at 555.
C. ANALYSIS
a. TORNADO’S CLAIM FOR CONVERSION
Tornado’s claim for conversion fails as a matter of law. Under Texas law, conversion is
“the wrongful exercise of dominion and control over another’s property in violation of the
property owner’s rights.” ITT Comm. Fin. Corp. v. Bank of the W., 166 F.3d 295, 305 (5th Cir.
1999). An action for conversion of money exists when the money is “(1) delivered for
safekeeping; (2) intended to be kept segregated; (3) substantially in the form in which it is
received or in an intact fund; and (4) not the subject of a title claim by the keeper.” Newsome v.
Charter Bank Colonial, 940 S.W.2d 157, 161 (Tex. App.—Houston [14 Dist.] 1996, writ
denied); see also Taylor Pipeline Constr., Inc. v. Directional Road Boring, Inc., 438 F. Supp. 2d
696, 707 (E.D. Tex. 2006) (quoting Mitchell Energy Corp. v. Samson Res. Co., 80 F.3d 976, 984
(5th Cir. 1996)). Because the title to money passes with delivery by its nature, a cause of action
for conversion fails “when the plaintiff cannot trace the exact funds claimed to be converted,
making it impossible to identify the specific monies in dispute.” Taylor Pipeline, 438 F. Supp.
2d at 707 (citing Ins. Co. of N. Am. v. Hickman, 2000 WL 1207138, at *4 (Tex. App.—Dallas
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Aug. 25, 2000, no pet.)). Money can be the subject of a conversion claim only if it can be
identified as a specific chattel, like an antique coin, and a claim will not lie “where an
indebtedness can be discharged by a payment of money generally.” Id. (internal quotation marks
omitted).
Here, Tornado has not alleged that the $187,500 it paid to BCAC as a deposit was
delivered for safekeeping or intended to be kept segregated. Further, where, as here, an
indebtedness can be discharged by payment of money, a conversion action fails as a matter of
law. See Levels v. Merlino, 969 F. Supp. 2d 704, 718 (N.D. Tex. 2013); Edlund v. Bounds, 842
S.W.2d 719, 727 (Tex. App.—Dallas 1992, writ denied); Gronberg v. York, 568 S.W.2d 139,
144–45 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.). Accordingly, Tornado’s conversion
claim is DISMISSED with prejudice.
b. TORNADO’S CLAIM FOR MONEY HAD AND RECEIVED
Tornado’s claim for money had and received is barred by the applicable statute of
limitations. Under Texas law, money had and received is an equitable doctrine designed to
prevent unjust enrichment. London v. London, 192 S.W.3d 6, 13 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied). The cause of action arises when a party obtains money that, in equity
and good conscience, belongs to another. Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). Unlike a claim for unjust enrichment, however, an action
for money had and received is not premised on wrongdoing. H.E.B., L.L.C. v. Ardinger, 369
S.W.3d 496, 507 (Tex. App —Fort Worth 2012, no pet.). It simply examines whether the
defendant has received money which rightfully belongs to another. Id. (quoting Staats v. Miller,
243 S.W.2d 686, 687 (1951)). A claim for money had and received is subject to a two-year
statute of limitations, Merry Homes, Inc. v. Dao, 359 S.W.3d 881, 882 (Tex. App.—Houston
[14th Dist.] 2012, no pet.), and that statute of limitations begins to run when the money is paid,
Tangelwood Terrace, Ltd. v. City of Texarkana, 996 S.W.2d 330, 337 (Tex. App.—Texarkana
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199, no pet.). A Rule 12(b)(6) motion to dismiss for failure to state a claim is an appropriate
method for raising a statute of limitations defense. Mann v. Adams Realty Co., Inc., 556 F.2d
288, 293 (5th Cir. 1977).
In this case, Tornado alleges that it paid the $187,500 down payment to BCAC on April
2, 2012, [Docket #21 at 5, ¶ 2.07], but it did not file its Original Petition in state court until July
18, 2014. Tornado’s claim for money had and received was thus filed after the applicable statute
of limitations had expired. Under Texas law, a limitations period may be tolled if the injury is of
such a nature that it is unlikely to be discovered within the prescribed limitations period despite
due diligence. See Fawaz v. Byers, 2014 WL 1671746, at * 7 (S.D. Tex. Apr. 28, 2014)
(indicating that statute of limitations applicable to claim for money had and received may be
subject to tolling under the discovery rule). Tornado has not alleged specific facts to show that
BCAC’s failure to return the down payment could not have been discovered within the
limitations period. Therefore, Tornado’s claim for money had and received is DISMISSED
without prejudice.
c. TORNADO’S FRAUD CLAIMS
Tornado has failed to allege sufficient facts to state a claim for fraud or fraudulent
inducement. Under Rule 9(b), when parties allege fraud, they must “state with particularity the
circumstances constituting fraud.” Fed. R. Civ. P. 9(b). “At a minimum, Rule 9(b) requires that
the plaintiff specify the particulars of ‘time, place, and contents of the false representations,’”
Williams v. WMX Technologies, Inc., 112 F.3d 175, 179 (5th Cir. 1997) (internal citations
omitted), by enumerating the “who, what, when, where, and how,” Melder v. Morris, 27 F.3d
1097, 1100 n. 5 (5th Cir. 1994). Rather than identifying the allegedly fraudulent circumstances
with particularity, Tornado simply asserts that its First Amended Complaint gives BCAC “fair
notice” of its claim. However, “fair notice” is not the standard under Rule 9(b). Tornado’ First
Amended Complaint fails to satisfy the specificity requirements of Rule 9(b) because it does not
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name the BCAC representative who allegedly made the false representations. Nor does it
identify when or where any allegedly false representations were made. Accordingly, Tornado’s
fraud claims are DISMISSED without prejudice.
IV.
TORNADO’S CLAIM FOR RESCISSION
Finally, BCAC moves under Rule 12(c) to dismiss Tornado’s equitable claim for
rescission. A Rule 12(c) motion for judgment on the pleadings is subject to the same standard
as a motion to dismiss under Rule 12(b)(6). Young v. City of Houston, 599 F. App’x 553, 554
(5th Cir. 2015). With respect to a claim for rescission, the plaintiff has the burden “to prove that
he is deserving of equitable relief, including showing that there is no adequate remedy at law.”
See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 596 (Tex. App.—Houston [14th Dist.] 2000).
Accordingly, a plaintiff’s rescission claim is subject to dismissal under Rule 12(b)(6) if the
plaintiff fails to plead that money damages are insufficient. See Eagle Const. & Envtl. Servs.,
LLC v. Eagle Supply & Mfg., L.P., 2011 WL 4962263, at *2 (S.D. Tex. Oct. 17, 2011) (“Because
[claimant’s] pleadings indicate that their claims can be satisfied through monetary damages, and
they have not plead [sic] any facts to indicate that relief at law is inadequate, their claim for
rescission will be dismissed [under Rule 12(b)(6)].”).
Here, Tornado’s First Amended Complaint merely states that “Plaintiff seeks a
determination by the Court of a question arising out of the Contract and requests a declaration by
the Court concerning the rights, status and/or legal relations of the parties thereunder. More
specifically, Plaintiff asks the Court to declare that Plaintiff had rescinded the Contract and that
Plaintiff is entitled to return of its deposit payment of $187,500.” [Docket #21, p.7]. Not only
do these assertions fail to plead that monetary damages are insufficient, they seem to suggest that
monetary damages are sufficient. Having failed to meet its requirement to plead the need for
equitable relief, as required under Texas law, Tornado’s rescission claim is DISMISSED
without prejudice.
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V.
CONCLUSION
BCAC’s Motion to Dismiss for lack of personal jurisdiction is DENIED. Its alternative
Motion to Dismiss under Rule 12(b)(6) is GRANTED. Tornado’s conversion claim is
DISMISSED with prejudice. Tornado’s claims for money had and received, fraud, fraudulent
inducement, and rescission are DISMISSED without prejudice. Tornado may file a second
amended complaint, realleging these claims consistent with requirements of the Federal Rules, if
it can reasonably do so, by September 14, 2015.
SO ORDERED.
September 2, 2015.
_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS
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