Duke et al v. Best Buy Company, Inc et al

Filing 10

MEMORANDUM AND ORDER GRANTED 8 MOTION to Dismiss and Answer Responding to Plaintiff's First Amended Complaint.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

Duke et al v. Best Buy Company, Inc et al

Doc. 10

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MIKE DUKE, et al., Plaintiffs, v. BEST BUY COMPANY, INC., et al., Defendants. § § § § § § § §

CIVIL ACTION NO. H-08-0955

MEMORANDUM AND ORDER This case is before the Court on the Motion to Dismiss ("Motion") [Doc. # 8] filed by Defendant BBC Property Co. ("BBC Property"). Plaintiffs Mike Duke and Pauline Duke have neither filed a response in opposition nor requested an extension of time to do so. Based on the Court's review of the record and the application of governing legal authorities, the Court grants BBC Property's Motion. In deciding whether Plaintiffs' claims should be dismissed, this Court must determine whether the complaint states a valid claim for relief when the pleading is construed in the light most favorable to Plaintiffs and with every doubt resolved in their favor. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Plaintiffs' complaint must contain factual allegations of every material point necessary to sustain recovery. See Campbell v. City of San Antonio, 43 F.3d 973, 975

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(5th Cir. 1995). If Plaintiffs fail to allege a necessary element to obtain relief, then dismissal is proper. See id. Plaintiff Mike Duke alleges that he was an employee of Defendant Best Buy. Plaintiff alleges that he engaged in a separate business with Rodney Hudnall, an individual with whom Plaintiff worked before joining Best Buy. Plaintiff alleges that his side business with Hudnall experienced financial difficulties beginning in June 2004. Hudnall later was employed by Best Buy, against Plaintiff's wishes, to work for Plaintiff. Plaintiff Mike Duke alleges that, in April 2006, he was attacked in the store parking lot by Hudnall's brother and another man. Plaintiffs allege that BBC Property, together with its partner BBC Investment, own Defendant Best Buy Stores. Plaintiffs make no other factual allegations against BBC Property, and they do not mention BBC Property in connection with any of the causes of action or in the "Damages" portion of their complaint. Indeed, after identifying BBC Property as a part owner of Best Buy Stores, Plaintiffs do not mention BBC Property again until they list them in the "Conclusion and Prayer" among the Defendants from whom Plaintiffs seek fifteen million dollars. Plaintiffs have failed to state a claim for relief against Defendant BBC Property. Additionally, Plaintiffs have not responded to the Motion to Dismiss and have not

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requested leave to plead additional facts to support their inclusion of BBC Property as a Defendant in this case. Accordingly, it is hereby ORDERED that BBC Property's Motion to Dismiss [Doc. # 8] is GRANTED. SIGNED at Houston, Texas, this 3rd day of June, 2008.

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