United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT are the [140, 144] Motions for Summary Judgment
filed by Defendants George E. Spellmeyer, Norma Spellmeyer,
and Michael Spellmeyer (collectively, “the Spellmeyer
defendants”) and Defendant Tusitala, Inc.
(“Tusitala”) regarding the allegations against
them in the  Amended Complaint filed by Plaintiff RDS
Real Estate, LLC. The Court has extensively outlined the
background of this action in its previous [174, 175, 177]
Orders, and incorporates those discussions by reference
herein. For the reasons discussed below, the Court finds that
the Motions should be denied.
have raised arguments for dismissal under both Federal Rule
of Civil Procedure 12(b)(6) and for summary judgment under
Rule 56. Because the Court has already found that any
12(b)(6) argument is untimely, (see Order 3-4, ECF
No. 174), it will treat Defendants' dismissal arguments
as being made pursuant to Rule 12(c). See Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
Rule 12(c) Arguments for Dismissal
Rule 12(c), “[a]fter the pleadings are closed - but
early enough not to delay trial - a party may move for
judgment on the pleadings.” “‘The standard
for dismissal under Rule 12(c) is the same as that for
dismissal for failure to state a claim under Rule
12(b)(6).'” Bosarge v. Miss. Bureau of
Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (citation
and brackets omitted). The Court “‘accept[s] all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.'” Id.
(citation omitted). “[A] complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation and
quotation marks omitted). “When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id. at 679.
make multiple arguments for dismissal of the Amended
Complaint related to both RDS's fraudulent transfers
claims and its allegations of piercing the corporate veil.
The Court will discuss the arguments related to the
fraudulent transfer claims, and will next consider the
allegations of piercing the corporate veil against each
RDS's Fraudulent Transfer Claims
extent Defendants argue that that RDS had to specifically
cite the applicable provisions of the Uniform Fraudulent
Transfer Act (UFTA) to state a claim thereunder, the Court is
not persuaded by such an argument. 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
8(a)(2) . . . does not treat legal descriptions of a claim
the same as factual averments.” Johnson v.
Honda, No. 3:15cv223-DPJ-FKB, 2015 WL 5794449, at *3
(S.D.Miss. Oct. 1, 2015). “A complaint need not . . .
articulate a perfect ‘statement of the legal theory
supporting the claim asserted.'” Smith v. Bank
of Am., N.A., 615 F. App'x 830, 833 (5th Cir. 2015)
(citing Johnson v. City of Shelby, 135 S.Ct. 346,
347 (2014)) (emphasis in original). All that is required of a
plaintiff is to inform the defendant “of the factual
basis for their complaint . . . .” See Johnson v.
City of Shelby, 135 S.Ct. at 347. Here, the Court finds
that, while RDS's Amended Complaint could be clearer, the
Amended Complaint satisfies this low threshold.
also contend that the Amended Complaint does not comply with
Federal Rule of Civil Procedure 9(b), which states in
pertinent part that “[i]n alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.” The Fifth Circuit has
not yet had occasion to address whether Rule 9(b) applies to
UFTA claims. See Janvey v. Alguire, 647 F.3d 585,
599 (5th Cir. 2011). This Court need not decide this issue,
either, as it is of the opinion that RDS has pled its
fraudulent transfer claims with sufficient particularity even
to satisfy Rule 9(b)'s more stringent standard. See,
e.g., Biliouris v. Sundance Res., Inc., 559
F.Supp.2d 733, 736 (N.D. Tex. 2008); In re Tex. Rangers
Baseball Partners, 498 B.R. 679, 712 (Bankr. N.D. Tex.
RDS's Allegations of Piercing the Corporate Veil Related
to the Spellmeyer Defendants
Spellmeyer defendants also challenge the legal sufficiency of
RDS's attempts to pierce the corporate veil of S&S
Construction, LLC, and hold them individually liable for the
judgment RDS obtained against S&S. In doing so, they rely
on Mississippi law, but the Court has already determined that
Alabama law applies to this issue. (See Order 5-6,
ECF No. 177). Accordingly, dismissal is not warranted on the
ground that RDS has failed to state a claim under Mississippi
law. In any event, the Court is of the opinion that the
allegations of the  Amended Complaint are sufficient
under Alabama law. See, e.g., Claybar v.
Huffman, 54 F.Supp.3d 1284, 1290 (S.D. Ala. 2014).
RDS's Allegations of Piercing the Corporate Veil Related
discussed in the Court's  Order, the Mississippi
Limited Liability Company Act has been interpreted to mean
that the veil-piercing standard of the law of the state under
which an LLC exists applies when a party attempts to pierce
the LLC's veil. (See Id. at 5-6). “On the
other hand, when considering whether the corporate veil [of
Tusitala, Inc.] should be pierced, the choice of laws is not
as clear because the Mississippi Business Corporation Act
contains no provision that specifically addresses this
question.” See In re Thorne, No. 09-11763-DWH,
2011 WL 2496217, at *2 (Bankr. N.D. Miss. June 22, 2011).
Nonetheless, “[w]hen confronted with an uncertainty
such as this, several courts have decided that the law of the
state of incorporation . . . should be applied.”
See Id. This Court agrees. Since Tusitala is an
Alabama corporation, Alabama law applies to RDS's veil
piercing allegations related to Tusitala. Because Tusitala
has not made any argument for dismissal based on the
applicable law, the Court finds that its Motion should be
Summary Judgment Arguments
summary judgment motion shall be granted “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). If the movant carries its
burden of demonstrating the absence of a genuine issue of
material fact, the burden shifts to the non-movant to show