United States District Court, S.D. Mississippi, Northern Division
SUN STATE OIL, INC. PLAINTIFF
SUMAN PAHWA D/B/A K&K OIL DEFENDANT
P. JORDAN CHIEF UNITED STATES DISTRICT JUDGE.
Suman Pahwa d/b/a K&K Oil (“Pahwa”) asks the
Court to dismiss the Complaint against him under Federal Rule
of Civil Procedure 12(b)(6). Mot. . For the reasons that
follow, Pahwa's Motion to Dismiss is denied.
Facts and Procedural History
Sun State Oil, Inc. (“Sun State”) is a supplier
of Citgo-branded gasoline. In July 2012, it entered into a
contract with non-party Harvest Enterprise, Inc., d/b/a
Harvest Station (“Harvest”) under which Harvest
agreed to purchase fuel from Sun State to sell at
Harvest's service station on Clinton Boulevard in
Jackson, Mississippi. The contract, which had a 10-year term,
specified that Sun State would be the sole supplier of fuel
State says Pahwa knew that Harvest was required to purchase
all its fuel from Sun State but Pahwa nevertheless
“provided fuel to Harvest . . . on multiple occasions
during the time period from 2013 to 2016.” Compl. 
¶ 10. And it asserts that Pahwa “provided fuel to
other locations in Jackson under contract with Sun
State.” Id. ¶ 12. It says a Sun State
representative confronted Pahwa about the issue in the summer
of 2016, and Pahwa “responded by threatening to kill or
do harm to” the Sun State representative. Id.
State first sued Pahwa in this Court on October 20, 2017.
See Sun State Oil, Inc. v. Pahwa, No.
3:17-CV-836-LG-LRA (“Sun State I”). That
lawsuit was dismissed on May 9, 2018, for failure to serve
process. Sun State then filed this lawsuit on September 6,
2018. It asserts two claims for tortious interference with a
contract/business relations: one based on selling fuel to
Harvest and the other based on selling fuel to Sun
State's other purchasers in Mississippi. Pahwa moved to
dismiss, asserting that Sun State's claims are
time-barred and otherwise fail to state a claim; his motion
has been fully briefed.
considering a motion under Rule 12(b)(6), 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 v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999) (per curiam)). 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
overcome a Rule 12(b)(6) 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). The “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).
bases his motion, in part, on an affirmative defense-the
statute of limitations. “[W]hen a successful
affirmative defense appears on the face of the pleadings,
dismissal under Rule 12(b)(6) may be appropriate.”
Kansa Reinsurance Co., Ltd. v. Congressional Mortg. Corp.
of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994); see
also Hall v. Hodgkins, 305 Fed.Appx. 224, 227- 28 (5th
Cir. 2008) (“If, based on the facts pleaded and
judicially noticed, a successful affirmative defense appears,
then dismissal under Rule 12(b)(6) is proper.”).
in considering a motion under Rule 12(b)(6), the Court
“must [generally] limit itself to the contents of the
pleadings, including attachments thereto.” Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000). An exception to this rule exists for
“matters of public record” of which “the
court may take judicial notice.” Joseph v. Bach
& Wasserman, L.L.C., 487 Fed.Appx. 173, 178 n.2 (5th
Cir. 2012). In this case, Pahwa has directed the Court to Sun
State's filings in Sun State I. Documents filed
in another lawsuit qualify and may be considered without
converting Pahwa's motion into one for summary judgment.
See Fed. R. Civ. P. 12(d) (“If, on a motion
under Rule 12(b)(6) . . ., matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56. All
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”).
Statute of Limitations
initially argued that Sun State's tortious-interference
claims are subject to the one-year statute of limitations
applicable to intentional torts. See Miss. Code Ann.
§ 15-1-35. But in reply, he acknowledged that
Mississippi caselaw does not support such an argument.
Def.'s Reply  at 1; see Nichols v. Tri-State
Brick & Tile Co., Inc., 608 So.2d 324, 333 (Miss.