United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III UNITED STATES DISTRICT JUDGE
ERISA case is before the Court on Defendant Herbert C.
Bruister's Motion to Dismiss Count Nine of the Amended
Complaint and Certain of the Relief Requested against him in
the Amended Complaint . For the reasons that follow, the
motion is granted.
Facts and Procedural History
factual underpinning of this case began in 2002, when
Bruister & Associates, Inc. (“BAI”),
following the legal advice of attorney David R. Johanson,
established an Employee Stock Ownership Plan
(“ESOP”). Between 2002 and 2005, BAI's owner,
Defendant Bruister, sold 100% of BAI's shares to its
employees through a series of transactions with the ESOP.
Those transactions ultimately led to the Secretary of Labor
and two plan participants filing separate lawsuits alleging
that the transactions violated various ERISA provisions (the
“ERISA Actions”). Following a 19-day bench trial
on the consolidated cases, the Court entered judgment in
favor of Plaintiffs and against Bruister and other Defendants
for in excess of $6 million; the Court later awarded the
prevailing private Plaintiff, Vincent Sealey, an additional
$3.1 million in attorneys' fees and expenses.
time the ERISA Actions were filed, Bruister, the other plan
fiduciaries, and some related entities were insured under a
fiduciary-liability policy issued by Beazley Insurance
Company. Beazley disputed coverage, and Bruister and others
ultimately filed a civil action against Beazley in this Court
in August 2010 (the “Coverage Action”). The
parties to the Coverage Action settled that matter effective
December 1, 2011, pursuant to a Confidential Settlement
Agreement and Release (the “Agreement”). Under
the Agreement, which Bruister signed both in his individual
capacity and as a Trustee to the ESOP, Beazley withdrew its
reservation or rights and agreed to pay defense costs and any
settlement or judgment in the ERISA Actions subject to
reduced limits of liability under its policy. By the time the
Court entered its judgment in the ERISA Actions, the reduced
insurance coverage had been fully exhausted by defense costs.
February 27, 2015, Sealey filed this suit against Bruister,
Johanson, Beazley, and others, complaining of Defendants'
actions with respect to the Coverage Action and the
Agreement. Sealey filed an Amended Complaint  on February
24, 2016; Bruister both answered  the Amended Complaint
and filed the instant motion  on June 10, 2016.
Plaintiff responded  to Bruister's motion, and
Bruister failed to file a reply within the time provided by
local rules. The Court has personal and subject-matter
jurisdiction and is prepared to rule.
suggests that his motion is governed by Federal Rule of Civil
Procedure 12(b)(6). Def.'s Mot.  at 6-7. But the
motion was filed after Bruister had answered, so it is
properly considered as a motion for judgment on the pleadings
under Rule 12(c). See Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999). Regardless, “the standards
for deciding motions under both rules are the same.”
Great Plains Tr. Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002).
considering a motion under Rule 12(c), 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. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting
Jones, 188 F.3d at 324). But “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. 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) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(c) motion, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). It follows that
“where the well-pleaded facts do not permit the court
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.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). “This standard ‘simply calls for enough
fact to raise a reasonable expectation that discovery will
reveal evidence of' the necessary claims or
elements.” In re S. Scrap Material Co., LLC,
541 F.3d 584, 587 (5th Cir. 2008) (citing Twombly,
550 U.S. at 556).
seeks dismissal of the fraud claim asserted against him; he
argues that “[t]here is no allegation that
Bruister made any representation to the Plans or to
Plaintiff Sealey.” Def.'s Mot.  at 9-10. It is
well-settled that a plaintiff asserting a fraud claim under
Mississippi law must prove that the defendant made a material
false representation upon which the plaintiff justifiably
relied. See Howard v. CitiFinancial, Inc., 195
F.Supp.2d 811, 824 (S.D.Miss. 2002). And the circumstances of
the alleged fraud-including “the time, place and
contents of any false ...