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Fill It Up, LLC v. Ms LZ Delta, LLC

United States District Court, N.D. Mississippi, Oxford Division

September 21, 2018




         This contract dispute is before the Court on the defendant's motion to dismiss, Doc. #5; and the plaintiffs' motion to amend their complaint, Doc. #11.


         Procedural Background

         On September 29, 2017, Fill It Up, LLC, Fillin' Station Grill, LLC, and Steven P. Beene filed a complaint in the Circuit Court of DeSoto County, Mississippi, against MS LZ Delta, LLC d/b/a Southern Thunder Harley Davidson, alleging that MS LZ Delta breached a “Reciprocal Easement Agreement With Covenants, Conditions and Restrictions” (“Agreement”). Doc. #7 at 4, 5, 7. On October 4, 2017, the plaintiffs amended their state court complaint. Doc. #7 at 42. MS LZ Delta removed the case to this Court on November 13, 2017, invoking jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1334. Doc. #1.

         On November 17, 2017, MS LZ Delta filed a Rule 12(b)(6) motion to dismiss for failure to state a claim. Doc. #5. On November 30, 2017, the plaintiffs responded to the motion to dismiss, Doc. #13, and filed a motion to amend their complaint, Doc. #11. On December 7, 2017, MS LZ Delta replied in support of its motion to dismiss. Doc. #17. One week later, MS LZ Delta responded in opposition to the motion to amend, Doc. #18; and on December 20, 2017, the plaintiffs replied, Doc. #20.


         Relevant Standards

         A. Rule 12(b)(6)

         “To survive a Rule 12(b)(6) motion to dismiss, the complaint does not need detailed factual allegations, but it must provide the plaintiff's grounds for entitlement for relief-including factual allegations that, when assumed to be true, raise a right to relief above the speculative level.” Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017). Under this standard, a court must “accept all well-pleaded facts as true.” New Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 199-200 (5th Cir. 2016) (quotation marks omitted).

         B. Rule 15(a)(2)

         Federal Rule of Civil Procedure 15(a)(2) provides that a “court should freely give leave [to amend pleadings] when justice so requires.” “The language of this rule evinces a bias in favor of granting leave to amend.” SGIC Strategic Glob. Inv. Capital, Inc. v. Burger King Europe GmbH, 839 F.3d 422, 428 (5th Cir. 2016) (alterations and quotation marks omitted). However, a “court need not grant a futile motion to amend. Futility is determined under Rule 12(b)(6) standards, meaning an amendment is considered futile if it would fail to state a claim upon which relief could be granted.” Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016) (citation omitted).


         Factual Allegations

         Steven Beene is the principal officer and member of Fill It Up and Fillin' Station. Doc. #2 at 1. Fillin' Station operates a restaurant adjacent to a Harley Davidson retail location operated by MS LZ Delta. Id. at 2; Doc. #7 at 41.

         On June 7, 2010, Fill It Up and MS LZ Delta entered into the Agreement regarding three lots in DeSoto County, Mississippi: Lot 2, Lot 3, and Lot 4. Id. at 2. BL Property I, LLC, is the owner of Lot 2; BL Property II, LLC, is the owner of Lot 3; and Fill It Up is the owner of Lot 4. Id. at 2; see Doc. #7 at 49.[1] Among other things, the Agreement provides for restrictive covenants to ensure “compatible and complement[ary]” business operations. Doc. #2 at 3; see Doc. #7 at 58.

         The Agreement provides, in part, “The Lot 4 Property Owner intends to develop or cause Lot 4 Property to be developed as a restaurant which is compatible with the current use of the Lot 2 Property as Harley-Davidson motorcycle retail location.” Doc. #7 at 50. Subsection 3.5 of the Agreement states,

Further, so long as Lot 4 is utilized as a restaurant, no portion of Lot 2 or Lot 3 (or any lot created therefrom), shall, without the prior written consent of the Owner of Lot 4, be used as one of the following: a tavern, bar, nightclub, discotheque or any form of a restaurant without the prior written permission of the owner of Lot 4.

Id. at 58.

         At some point, MS LZ Delta, in breach of the Agreement, “began serving food, including bringing in vendors to provide food … and serving alcohol on the premises of Lot 2” without Fill It Up's written consent. Doc. #2 at 3. On June 10, 2016, Fill It Up sent a cease and desist letter to MS LZ Delta but MS LZ Delta continues to violate the Agreement. Id. As a result of MS LZ Delta's breach, the plaintiffs have incurred losses in excess of $100, 000 per year since MS LZ Delta began violating the Agreement. Id. at 4.



         In support of its motion to dismiss, MS LZ Delta argues that none of the plaintiffs have legal authority to bring the claims asserted against it in this action. Doc. #6 at 2. The Court will discuss the issue of the authority of each plaintiff in turn.

         A. Fillin' Station Grill, LLC

         MS LZ Delta argues that Fillin' Station's claims are barred by the doctrine of judicial estoppel because Fillin' Station previously took the position in its bankruptcy proceedings that it had no claims against MS LZ Delta. Fillin' Station responds that it sufficiently disclosed its claims against MS LZ Delta in its schedule of assets filed with the bankruptcy court; that its claims against MS LZ Delta were disclosed in a motion to employ counsel in Fill It Up's bankruptcy proceedings; and that the bankruptcy court's order granting Fill It Up's motion to employ counsel disclosed Fillin' Station's claims against MS LZ Delta such that MS LZ Delta cannot invoke judicial estoppel here. In reply, MS LZ Delta argues that Fillin' Station misconstrues the applicable standard and that Fillin' Station's purported disclosures are insufficient.

         “Judicial estoppel is a common law doctrine that prevents a party from assuming inconsistent positions in litigation.” In re Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir. 2004). “The purpose of the doctrine is to protect the integrity of the judicial process, by preventing parties from playing fast and loose with the courts to suit the exigencies of self interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999) (quotation marks and alterations omitted). “Against the backdrop of the bankruptcy system judicial estoppel must be applied in such a way as to deter dishonest debtors, whose failure to fully and honestly disclose all their assets undermines the integrity of the bankruptcy system.” United States ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 271 (5th Cir. 2015) (alterations omitted). Thus, “[j]udicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues a claim in a separate tribunal based on that undisclosed asset.” Jethroe v. Omnova Sols., Inc., 412 F.3d 598, 600 (5th Cir. 2005).

         “Judicial estoppel has three elements: (1) The party against whom it is sought has asserted a legal position that is plainly inconsistent with a prior position; (2) a court accepted the prior position; and (3) the party did not act inadvertently.” In re Flugence, 738 F.3d 126, 129 (5th Cir. 2013). “The burden to prove judicial estoppel is on the party invoking the doctrine.” RDS ...

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