Consumer Data Partners, LP et al v. Agentra LLC et al

Filing 101

MEMORANDUM OPINION AND ORDER granting in part and denying in part 76 Partial Motion to Dismiss Plaintiffs' Amended Complaint. (Ordered by Judge Jane J Boyle on 8/28/2024) (kcr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CONSUMER DATA PARTNERS, LP,
successor by merger to Data Partnership
Group, LP, as Plan Sponsor, AND
DATA PARTNERSHIP GROUP, LP
HEALTH AND WELFARE BENEFITS
PLAN,
Plaintiffs,
v.
AGENTRA LLC, DAVID LINDSEY,
INSURETY CAPITAL LLC, and DOES
1 THROUGH 10,
Defendants.

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CIVIL ACTION NO. 3:23-CV-2110-B

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants Agentra LLC (“Agentra”) and David Lindsey (collectively,
“Agentra Defendants”)’s Partial Motion to Dismiss Plaintiffs’ Amended Complaint (Doc. 76). For
the following reasons, the Court GRANTS IN PART and DENIES IN PART the Motion.
I.
BACKGROUND
This case concerns the alleged mismanagement of employee benefit contributions. Plaintiff
Consumer Data Partners, LP (“CDP”)’s limited partners collect data, and CDP sells that data to
marketing firms. Doc. 73, Am. Compl., ¶ 13. In order to attract more people to its business, CDP
established a self-insured group employee health and welfare benefit plan, Plaintiff Data
Partnership Group, LP Health and Welfare Benefits Plan (“DPG Plan”). Id. ¶ 15. The DPG Plan

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is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). Id. CDP is the
DPG Plan sponsor and thus is a fiduciary under ERISA. Id.
In January 2019, “CDP hired Agentra, a benefits administration company, to provide
enrollment services for the [DPG Plan].” Id. ¶ 19. Under the CDP-Agentra agreement,1 Agentra
was required to create “an online enrollment platform through which independent licensed agents
[could] enroll eligible [DPG] Plan participants in the Plan.” See id. ¶ 20. As part of its enrollment
services, Agentra collected DPG Plan participant contributions. See id. ¶¶ 15, 20–21. “All [DPG]
Plan participant contributions received by Agentra” were to be “deposited in a separate account at
a nationally recognized financial institution,” before being “transmitted to the Client designated
Third Party Administrator within a 45-60 day[] cycle.” Id. ¶ 20. The CDP-Agentra agreement also
prohibited Agentra from “commingl[ing] [DPG] Plan contributions with any other funds or cash
accounts of Agentra or any of its other clients.” Id. In return for its services, Agentra “deduct[ed]
its fees from the monthly [DPG] Plan contributions before transmitting the balance to the [Third
Party Administrator].” Id. ¶ 25.
CDP and the DPG Plan (collectively, “Plaintiffs”) allege that, after this agreement was
executed, they directed Agentra to transmit all DPG Plan contributions it received, less Agentra’s
specified Fees, to CDP’s licensed third-party administrator (the “TPA”). Id. ¶ 21. The TPA was to
hold the transmitted DPG Plan contributions as trustee for the benefit of the DPG Plan. Id. In that
capacity, the TPA used the contributions to pay “medical claims, pharmaceutical claims, as well as
other [DPG] Plan vendor fees and costs, all of which are covered by the [DPG] Plan.” Id. ¶ 23.

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For the sake of clarity, the Court refers to the agreement between CDP and Agentra as the “CDPAgentra agreement.” However, as the Amended Complaint makes clear, CDP’s predecessor in interest,
Data Partnership Group, was the entity that actually contracted with Agentra; thus, the Amended
Complaint refers to the same agreement as the “DPG-Agentra Agreement.” Doc. 73, Am. Compl., ¶ 19.
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Plaintiffs claim that Agentra failed to transmit all the required DPG Plan contributions to
the TPA. According to Plaintiffs, Agentra “overcharged the [DPG] Plan and, by extension[,] its
participants, for its services.” Id. ¶ 27 (quotations omitted). Plaintiffs further allege that Agentra
violated the agreement by delegating its responsibility to collect DPG Plan contribution to the
American Workers Insurance Services, Inc. (“AWIS”), an entity owned by Agentra that regularly
transferred funds to Agentra and Agentra’s owner, Lindsey. See id. ¶¶ 31–32, 34, 38, 69–71.
Plaintiffs aver that Agentra’s relationship with AWIS enabled Agentra to divert further DPG Plan
contributions for its own benefit. See id. ¶¶ 34–35. Specifically, Plaintiffs claim that AWIS
commingled DPG Plan contributions “with other monies paid to AWIS” in a single account, such
that the funds transferred by AWIS to Agentra and Lindsey consisted of DPG Plan contributions.
Id. ¶ 34. Thus, Plaintiffs allege that “Agentra and Lindsey, both directly and through [their]
subcontractor AWIS, collected, commingled, mismanaged, and illegally diverted for their own use
[DPG] Plan contributions paid by . . . participants.” Id. ¶ 35.
As a result of their alleged misconduct, Plaintiffs filed suit against the Agentra Defendants,
among others, in the United States District Court for the Northern District of Georgia on
September 22, 2022. Doc. 1, Compl. The case was transferred to this Court in September 2023.
See Doc. 54, Order. The operative complaint asserts ten causes of action against the Agentra
Defendants, three of which are brought under ERISA, while the remainder are state-law claims.
See Doc. 73, Am. Compl., ¶¶ 72–148. The three ERISA claims are brought under 29 U.S.C.
§ 1132(a)(2); 29 U.S.C. § 1132(a)(3); and for “Violations of ERISA.” Id. ¶¶ 72–96. The seven
state-law claims are: (1) Breach of Fiduciary Duty; (2) Breach of Contract; (3) Civil Conspiracy;

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(4) Fraud and Deceit; (5) Unjust Enrichment; (6) Money Had and Received; and (7) Conversion.2
Id. ¶¶ 97–148.
The Agentra Defendant have moved for partial dismissal of the Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6). Doc. 76, Mot. The Motion is ripe for review. The Court
considers it below.
II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes
dismissal of a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.”
FED. R. CIV. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation omitted). But the court will “not
look beyond the face of the pleadings to determine whether relief should be granted based on the
alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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The Amended Complaint contains two additional Counts: Count XI and Count XII. See Doc. 73,
Am. Compl., ¶¶ 149–156. Count XI is for “Attorneys’ Fees,” Count XII is for “Exemplary Damages.” Id.
The Court understands these Counts to be dependent on Plaintiffs’ prevailing on one their ten underlying
claims identified above.
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defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a
‘probability requirement’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this
standard, “the complaint has alleged—but it has not shown—that the pleader is entitled to relief.”
Id. at 679 (internal quotations and alterations omitted).
III.
ANALYSIS
The Agentra Defendants have moved to dismiss to each state-law claim asserted against
them and two of Plaintiffs’ ERISA claims. The Court concludes that Plaintiffs’ state-law claims are
preempted by ERISA and thus should be dismissed. Plaintiffs’ remaining ERISA claims, however,
are sufficiently pled.
A.

State Law Claims
In their operative pleading, Plaintiffs assert seven state-law claims against the Agentra

Defendants. Those claims are for: (1) Breach of Fiduciary Duty; (2) Breach of Contract; (3) Civil
Conspiracy; (4) Fraud and Deceit; (5) Unjust Enrichment; (6) Money Had and Received; (7)
Conversion. Doc. 73, Am. Compl., ¶¶ 97–148. The Agentra Defendants argue that each of these
state-law claims is preempted by ERISA and thus should be dismissed. Doc. 76, Mot., 8–10.
Plaintiffs do not dispute that their state-law claims are preempted: “Plaintiffs are not opposing the
Agentra Defendants’ arguments regarding preemption of Plaintiffs’ state law claims (Courts IVX).” Doc. 82, Resp., 19 n.4. As both parties agree that Plaintiffs’ state-law claims cannot proceed,
dismissal is warranted. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ statelaw claims.
B.

ERISA § 1132(a)(3) Claim
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Plaintiffs next assert a claim against the Agentra Defendants under § 1132(a)(3) of ERISA.
Doc. 73, Am. Compl., ¶¶ 83–89. Section 1132(a)(3) provides: “[a] civil action may be brought . .
. (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of
the plan, or (B) to obtain other appropriate equitable relief . . . to redress such violations . . . .” 29
U.S.C. § 1132(a)(3). Plaintiffs’ § 1132(a)(3) claim is premised on the Agentra Defendants’ alleged
involvement in transactions which were violative of § 1106 of ERISA. 29 U.S.C. § 1106; Doc. 73,
Am. Compl., ¶¶ 87–88. As relevant here, § 1106(a)(1)(D) states that “[a] fiduciary . . . shall not
cause the plan to engage in a transaction, if he knows or should know that such transaction
constitutes a . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the
plan.” Here, Plaintiffs allege that the Agentra Defendants were parties “to prohibited transactions
under 29 U.S.C. § 1106, and [are] in wrongful possession of Plan Assets.” Doc. 73, Am. Compl.,
¶¶ 87–88. As redress, Plaintiffs seek “equitable relief, including restitution and disgorgement”
against the Agentra Defendants. Id. ¶ 89.
The Agentra Defendants have moved to dismiss Plaintiffs’ § 1132(a)(3) claim. Doc. 76,
Mot., 3–5. In their Motion to Dismiss,3 the Agentra Defendants argue that Plaintiffs’ § 1132(a)(3)
claim should be dismissed because § 1132(a)(3) only authorizes equitable remedies, and here, the
Agentra Defendants maintain, Plaintiffs are seeking legal relief. Id.
Section 1132(a)(3) is limited to claims that either seek to enjoin ERISA violations or for
“other appropriate equitable relief . . . to redress such violations.” 29 U.S.C. § 1132(a)(3). “The
Supreme Court has narrowly interpreted the term ‘other appropriate equitable relief’ to include

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The Agentra Defendants raised a number of arguments in their Reply brief that were not raised in
its initial motion brief. “Arguments raised for the first time in a reply brief are generally waived.” Jones v.
Cain, 600 F.3d 527, 541 (5th Cir. 2010). Accordingly, the Court does not consider these arguments here
and instead limits its analysis to the argument properly raised.
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only ‘those categories of relief that were typically available in equity.’” Cigna Healthcare of Texas,
Inc. v. VCare Health Servs., PLLC, No. 3:20-CV-0077-D, 2020 WL 3545160, at *2 (N.D. Tex. June
29, 2020) (Fitzwater, J.) (quoting Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 361 (2006)).
“[W]hether the remedy a plaintiff seeks ‘is legal or equitable depends on (1) the basis for the
plaintiff’s claim and (2) the nature of the underlying remedies sought.’” Montanile v. Bd. of Trustees
of Nat. Elevator Indus. Health Benefit Plan, 577 U.S. 136, 142 (2016) (alterations omitted) (quoting
Sereboff, 547 U.S. at 363). Here, there is no dispute that the basis of Plaintiffs’ claims—to redress
violations of § 1106(a)(1)(D)—is cognizable under § 1132(a)(3). See Harris Tr. & Sav. Bank v.
Salomon Smith Barney, Inc., 530 U.S. 238, 241 (2000). Thus, the only issue is whether the nature
of the relief sought is equitable. The Court concludes that it is.
Plaintiffs seek two remedies for the alleged § 1106 violations: restitution and disgorgement.
Doc. 73, Am. Compl., ¶ 89. Restitution can be either a legal or equitable remedy. Great-W. Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002) (“In the days of the divided bench,
restitution was available in certain cases at law, and in certain others in equity.”). Restitution at
law was available where a plaintiff “could not assert title or right to possession of particular property,
but in which nevertheless he might be able to show just grounds for recovering money to pay for
some benefit the defendant had received from him.” Id. (emphasis in original) (quotation omitted).
“In contrast, a plaintiff could seek restitution in equity, ordinarily in the form of a constructive
trust or an equitable lien, where money or property identified as belonging in good conscience to
the plaintiff could clearly be traced to particular funds or property in the defendant’s possession.”
Id. (emphasis omitted). Thus, “for restitution to lie in equity, the action generally must seek not to

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impose personal liability on the defendant, but to restore to the plaintiff particular funds or property
in the defendant's possession.” Id. at 214.4
Here, Plaintiffs seek equitable restitution and disgorgement because they allege that the
Agentra Defendants are in possession of specific funds that in good conscience belong to Plaintiffs.
Plaintiffs claim that the Agentra Defendants are in wrongful possession of specific property, namely
“Plan Assets.” Doc. 73, Am. Compl., ¶¶ 87–88. The “Plan Assets” which the Agentra Defendants
are allegedly in possession of are the DPG Plan contributions that Agentra was obligated to collect.
See id. ¶¶ 34–36. Specifically, Plaintiffs allege that that DPG Plan participants paid contributions
to Agentra (or one of its subcontractors). Id. ¶¶ 20, 65–66. The Agentra Defendants were supposed
to transfer these contributions to the TPA; the TPA was then supposed to deposit the transfer
“into a segregated trust account maintained by the TPA as trustee . . . for the benefit of [DPG
Plan].” Id. ¶ 21. However, rather than transfer the DPG Plan contributions to the TPA, the
Agentra Defendants allegedly misappropriated these funds for their own personal benefit and
“[are] in wrongful possession” of the same. See id. ¶¶ 27, 87–88. Taking these allegations as true,
Plaintiffs allege that Agentra Defendants are in wrongful possession of particular property—the
DPG Plan contributions—and they assert a claim to that particular property. As Plaintiffs seek
recovery of particular property, as opposed to recovery from the Agentra Defendants’ general

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Where a defendant transferred the particular property to another, disgorgement was an alternative
to equitable restitution in that it allowed a plaintiff to recover proceeds from that transfer. See Harris Tr. &
Sav. Bank, 530 U.S. at 250 (“[I]t has long been settled that when a trustee in breach of his fiduciary duty to
the beneficiaries transfers trust property to a third person, the third person takes the property subject to the
trust, unless he has purchased the property for value and without notice of the fiduciary’s breach of duty.
The trustee or beneficiaries may then maintain an action for restitution of the property (if not already
disposed of) or disgorgement of proceeds (if already disposed of), and disgorgement of the third person’s
profits derived therefrom.” (citations omitted)).
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assets, the Court concludes that they have stated a claim for equitable relief. See Knudson, 534 U.S.
at 214; see also Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 547 (7th Cir. 2003) (“[Equitable]
relief includes not just an injunction but also the imposition of a constructive trust on money
claimed to be wrongfully withheld from the plaintiff.”).
The Agentra Defendants, however, argue that the relief sought is legal because Plaintiffs
did not “‘allege that any of the funds it seeks are specifically identifiable . . . and/or separate and
distinct from [the Agentra Defendants] general assets.” Doc. 76, Mot., 4 (alterations in original)
(citing Cigna Healthcare, 2020 WL 3545160, at *3). While the Agentra Defendants offer an altered
quote from Cigna Healthcare in support of their position, the full quote from that case cuts against
them: “[The] complaint does not allege that any of the funds it seeks are specifically identifiable,
within Defendants’ possession or control, and/or separate and distinct from Defendants’ general
assets[.]” 2020 WL 3545160, at *3 (emphasis added). Here, Plaintiffs have specifically alleged that
the Agentra Defendants are in possession of Plan Assets; thus, Cinga Healthcare is distinguishable.
The Agentra Defendants also argue that the relief sought by Plaintiffs is legal because
“nowhere in the Amended Complaint do Plaintiffs assert an ownership interest in the ‘Plan
Assets.’” Doc. 76, Mot., 5. The Court disagrees. According to the Amended Complaint, had the
Agentra Defendants transferred the DPG Plan contributions to the TPA, the TPA would have
held those funds in trust for the benefit of Plaintiffs. See Doc. 73, Am. Compl., ¶ 21. And Plaintiffs,
as beneficiaries of the trust maintained by the TPA, would have held equitable title to the corpus
of that truest—i.e., the DPG contributions. See Welch v. Davidson, 102 F.2d 100, 102 (1st Cir.
1939) (“It must be conceded that in equity the beneficiary of a trust is the owner of the trust res.”);
Restatement (First) of Restitution § 160 (1937) (“[I]n the case . . . of a constructive trust one
person holds the title to property subject to an equitable duty to hold the property for or to convey
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it to another, and the latter has in each case some kind of an equitable interest in the property.”).
If Plaintiffs would have held equitable title absent the alleged malfeasance of the Agentra
Defendants, it follows that Plaintiffs are, “in the eyes of equity, the true owners” of the
contributions notwithstanding bad acts allegedly committed by the Agentra Defendants. See
Knudson, 534 U.S. at 213. Thus, Plaintiffs have alleged a sufficient interest in the property in the
Agentra Defendants’ possession.
In sum, the Court concludes that Plaintiffs seek equitable relief. Accordingly, the Court
DENIES the Agentra Defendants’ Motion to Dismiss as to Plaintiffs’ § 1132(a)(3) claim.
C.

Group Pleading
The Agentra Defendants lastly move to dismiss Plaintiffs’ claims under § 1132(a)(2) of

ERISA for improper group pleading.5 Doc. 76, Mot., 5–8. The Court disagrees that the Amended
Complaint contains impermissible group pleading.
While “[g]eneral allegations lumping all defendants together and failing to identify specific
actions of individual defendants will not suffice to raise an inference of plausible liability against
any individual defendant,” See Callier v. Nat’l United Grp., LLC, No. EP-21-CV-71-DB, 2021 WL
5393829, at *4 (W.D. Tex. Nov. 17, 2021), “assertions against all defendants are proper when

It was not entirely clear to the Court which claims the Agentra Defendants thought to be
improperly group pled. The Agentra Defendants argue that “most of [Plaintiffs’] cause [sic] of action” rely
on impermissible group pleading and thus “those claims3 should be dismissed for failing to state a
claim.” Doc. 76, Mot. 7–8 (footnote in original). Footnote three of the Agentra Defendants brief states,
“See supra note 3.” Id. at 8 n.3. It is possible that the Agentra Defendants intended to refer the Court to
footnote 2, which lists the following claims: “29 U.S.C. 1132(a)(2) and breach of fiduciary duty, breach of
contract, civil conspiracy, fraud and deceit, unjust enrichment, money had and received, and conversion
claims.” Id. at 6 n.2. However, in their Reply, the Agentra Defendants contend that the allegations
pertaining to “Counts II-XII,” which is every claim but the § 1132(a)(2), contain improper group pleading.
Doc. 86, Reply, 10.
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accompanied . . . by individualized factual allegations.” Centennial Bank v. Holmes, No. 5:23-CV044-H, 2024 WL 733649, at *16 (N.D. Tex. Feb. 20, 2024) (Hendrix, J.). Here, the Amended
Complaint contains sufficient individualized factual allegations to justify the limited use of
allegations against all Defendants.
While the Agentra Defendants argue otherwise, they fail to acknowledge the extensive
factual allegations that precede those allegations which they claim constitute improper group
pleading. For instance, Agentra Defendants challenge Plaintiffs’ allegation that the “terms of the
[CDP-Agentra] Agreement and ERISA prohibited the actions by Defendants.” Doc. 73, Am.
Compl., ¶¶ 73, 84; see Doc. 76, Mot., 7. They argue this allegation constitutes impermissible group
pleading because Plaintiffs do not specify “each Defendant’s specific prohibited actions or how
those actions by each Defendant violated unspecified ‘terms’ to give rise to liability under 29 U.S.C.
1132(a)(2).” Doc. 76, Mot., 7. But elsewhere in the Amended Complaint, Plaintiffs provide the
very specification for which the Agentra Defendants ask. With respect to how the Agentra
Defendants violated the CDP-Agentra Agreement, Plaintiffs first allege that “[t]he [CDP]Agentra Agreement forbade Agentra’s commingling of any [DPG] Plan contributions with any
other funds or cash accounts of Agentra or any of its other clients,” id. ¶ 29, and then allege that,
“in direct violation of the contractual obligations to CDP . . . , Agentra and Mr. Lindsey . . .
commingled, mismanaged, and illegally diverted for their own use [DPG] Plan contributions paid
by plan participants.” Id. ¶ 35. And with respect to how the Agentra Defendants’ violations gave
rise to liability for breach of their fiduciary duties under ERISA, Plaintiffs allege: “Defendants
Agentra and Mr. Lindsey breached their fiduciary duties pursuant to ERISA . . . by commingling,
misappropriating, mismanaging, diverting for their own use, self-dealing, and otherwise failing to

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remit funds owed to the TPA for use to fund covered claims under the group health plan.” Doc.
73, Am. Compl., ¶ 99.
While the Agentra Defendants object to two other allegations as containing improper
group pleading, see Doc. 76, Mot., 6–7, the Court finds these objections similarly deficient.
Accordingly, the Agentra Defendants’ Motion is DENIED to the extent it argues that any claim
should be dismissed for improper group pleading.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the
Agentra Defendants’ Motion to Dismiss (Doc. 76). The Court GRANTS the Motion as to
Plaintiffs’ state-law claims and thus DISMISSES WITH PREJUDICE Plaintiffs’ claims against
the Agentra Defendants for: (1) Breach of Fiduciary Duty; (2) Breach of Contract; (3) Civil
Conspiracy; (4) Fraud and Deceit; (5) Unjust Enrichment; (6) Money Had and Received; and (7)
Conversion. The Agentra Defendants’ Motion is DENIED in all other respects.
SO ORDERED.
SIGNED: August 28, 2024.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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