MacLean v. Arentz Law Group, Attorneys at Law, PLLC et al

Filing 33

Memorandum Opinion and Order... The court ORDERS that plaintiff's motion to dismiss be, and is hereby, granted, and the counterclaims asserted by defendants be, and are hereby, dismissed. The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of defendant's counterclaims. (Ordered by Judge John McBryde on 11/30/2016) (wxc)

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IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF
FORT WORTH DIVISION

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JOHN R. MACLEAN, INDIVIDUALLY
ON BEHALF OF HIMSELF AND ALL
OTHERS SIMILARLY SITUATED,

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vs.

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NO. 4:16-CV-797-A

ARENTZ LAW GROUP, ATTORNEYS AT
LAW, P.L.L.C., ET AL.,

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Plaintiffs,

Defendants.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiff, John R.
MacLean, to dismiss the counterclaims of defendants, Arentz Law
Group, Attorneys at Law, P.L.L.C., Arentz Law Group, P.C., and
The Johnston Law Group. The court, having considered the motion,
the response of defendants', the record, and applicable
authorities, finds that the motion should be granted.
I.

Grounds of the Motion
Plaintiff alleges that defendants have not pleaded facts
sufficient to show that they have plausible claims against him
for interference with prospective economic advantage,
interference with prospective mass tort clients, and fraud. The
court agrees.

'Defendants assert that the Law Office of Christopher K. Johnston, LLC d/b/a Johnston Law
Group is incorrectly identified as The Johnston Law Group in plaintiffs complaint.

II.

Applicable Legal Principles
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8 (a) (2),

"in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 U.S. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679

(2009)

See Ashcroft v. Igbal,

("While legal conclusions can provide

the framework of a complaint, they must be supported by factual
allegations. n) •
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is

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plausible.

Iqbal,

556 U.S. at 678.

To allege a plausible right

to relief, the facts pleaded must suggest liability; allegations
that are merely consistent with unlawful conduct are
insufficient. Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining whether a complaint
states a plausible claim for relief .

.

.

[is) a context-specific

task that requires the reviewing court to draw on its judicial
experience and common sense."

Id.

The elements of a claim for tortious interference with
prospective business relations are:

(1) a reasonable probability

that the plaintiff would have entered into a contractual
relationship with a third party;

(2) defendants committed an

independently tortious or unlawful act that prevented the
contract from being formed;

(3) the defendant's tort was

committed with a conscious desire to prevent the formation of the
contract; and (4) the plaintiff suffered actual harm as a result.
Staton Holdings, Inc. v. Russell Athletic, Inc., No. 3:09-CV-419D, 2009 WL 4016117, at *2

(N.D. Tex. Nov. 20, 2009) (citing

Johnson v. Baylor Univ., 188 S.W.3d 296, 304
2006, pet. denied)).

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(Tex. App.-Waco

The elements of a claim for fraud are: (1) the defendant made
a representation to the plaintiff;
material;

(2) the representation was

(3) the representation was false;

(4) when the

defendant made the representation, he knew it was false or made
the representation recklessly and without knowledge of its truth;
(5) the defendant made the representation with the intent that
the plaintiff act on it;

(6) the plaintiff relied on the

representation; and (7) the plaintiff was harmed as a result.
Shandong Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter,
607 F.3d 1029, 1032-33

(5th Cir. 2010); Ernst

&

Young, L.L.P. v.

Pacific Mut. Life Ins. Co., 515 S.W.3d 573, 577 (Tex. 2001). A
cause of action for fraudulent inducement contains the same
elements as a fraud claim, but with the added requirement that an
underlying contract was fraudulently induced. Kevin M. Ehringer
Enters., Inc. v. McData Servs. Corp, 646 F.3d 321, 325
2011); Haase v. Glazner, 62 S.W.3d 795, 798

(5~

Cir.

(Tex. 2001).

Fraud claims are subject to the heightened pleading
requirements of Rule 9(b) of the Federal Rules of Civil Procedure
and must be pleaded with particularity. Sullivan v. Leor Energy,
L.L.C., 600 F.3d 542, 550-51 (5th Cir. 2010). Thus, the plaintiff
must "specify the statements contended to be fraudulent,

identify

the speaker, state when and where the statements were made, and

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explain why the statements were fraudulent." Id., at 551. See
Benchmark Elecs., Inc. v. J.M Huber Corp., 343 F.3d 719, 724

(5th

Cir. 2003).
III.
Analysis
Defendants assert identical counterclaims against plaintiff.
Docs. 2 12 & 13. The first is titled "Interference with
Prospective Economic Advantage." Doc. 12 at 12-13; Doc. 13 at 1213. The second is titled "Interference with Prospective Mass Tort
Clients." Doc. 12 at 13-14; Doc. 13 at 13-14. Defendants appear
to contend that plaintiff intentionally interfered with certain
unidentified economic relationships. The "claims" sections of the
counterclaims contain nothing more than conclusory allegations,
which are not sufficient to state a plausible right to relief.
The only facts potentially relevant to these claims are set forth
in paragraph 11 of the counterclaims, Doc. 12 at 12; Doc. 13 at
12, which alleges that plaintiff sent a copy of his unfiled
complaint to a reporter who published an article reiterating
accusations from the complaint. In particular, they allege that
the article "received significant attention from vendors and
attorneys." Id. There are no facts pleaded with regard to any

2

The "Doc.

" reference is to the number of the item on the docket in this action.
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alleged interference with prospective contracts. Nor are any
facts pleaded with regard to any independently tortious act of
plaintiff. Nor have defendants alleged any ascertainable loss.
Likewise, the fraud claims asserted by defendants merely
contain conclusory allegations. Doc. 12 at 14; Doc. 13 at 14. The
alleged false representation of plaintiff is that he was a
potential client seeking an attorney to represent him. In other
words, defendants say that they did not solicit plaintiff;
rather, he solicited them. However, the facts pleaded are not
sufficient to state a fraud claim. In fact, defendants do not
allege that they were harmed by the fraud, but rather by the
alleged interference. Doc. 12 at 14, , 25; Doc. 13 at 14, , 25.

IV.
Order
For the reasons discussed herein,
The court ORDERS that plaintiff's motion to dismiss be, and
is hereby, granted, and the counterclaims asserted by defendants
be, and are hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the

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dismissal of defendants' counterclaims.
SIGNED November 30,

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