Top Gun Ammo Sales, LLC v. COF Technologies, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TOP GUN AMMO SALES, LLC )

)

Plaintiff, )

)

v. ) Case No. 4:21-cv-00770-SEP

)

COF TECHNOLOGIES, LLC, et al., )

MEM ORAND U )M AND ORDER

Defendants. )

Before the Court are the Motion to Dismiss filed jointly by Defendants COF

Technologies, LLC (COF) and American Defense Technologies, LLC (ADT) (together, the LLC

Defendants) and the Motion to Dismiss filed by Defendants McKayl Ruesch, William Uicker,

Andrew McCorkle, and Brad McCorkle (collectively, the Individual Defendants). Docs. 19, 21.

Both motions are fully briefed. For the reasons set forth below, the LLC Defendants’ Motion

to Dismiss is granted in part and denied in part, and the Individual Defendants’ Motion to

Dismiss is granted.

FACTS AND BACKGROUND1

Plaintiff Top Gun Ammo Sales, LLC, is a Missouri company with its principal place of

Id.

business in Jefferson County, Missouri. Doc. 3 ¶ 1. The LLC Defendants are Utah companies

with their principal places of business in Utah. ¶¶ 2, 3; Doc. 20 at 3. Defendant McKayl

Reusch, a Utah citizen, is the sole member of COF. Doc. 3 ¶ 4; Doc. 20 at 3. Defendant William

.

Uicker, a California citizen, is the sole member of William Joseph Cara, LLC, a Delaware

company, which is in turn the sole member of ADT. Doc. 20 at 3; Doc. 3 ¶ 5 Defendant

Andrew McCorkle, a Utah citizen, is ADT’s Chief Operating Officer. Doc. 3 ¶ 6; Doc. 22 at 4.

Defendant Brad McCorkle, a Utah citizen, was an employee of ADT during the events that

gave rise to this lawsuit. Doc. 3 ¶ 7; Doc. 22-4 (Defs. Ex. D).

Top Gun entered into an agreement with COF for the purchase of six million rounds

of 9-millimeter ammunition at a price of $.40 per round. D oc. 3 ¶ 10. COF was to deliver

1 See Neitzke v. Williams,

Id.

Id.

500,000 rounds per week for eight weeks, beginning February 19, 2021. Top Gun paid

COF an initial deposit of $200,000. ¶ 11. When COF delivered only 25,000 rounds, Top

Gun claimed that COF had breached the agreement. Top Gun and COF agreed to a

forbearance agreement wherein Top Gun would temporarily forbear on its right to enforce

Id.

the original agreement in exchange for COF shipping an additional 50,000 rounds of

Id.

ammunition free of charge. ¶ 13. COF failed to deliver that shipment, and Top Gun

declared that the original agreement had been breached. ¶ 15.

As a result of COF’s alleged breach, Top Gun commenced this action, alleging eight

counts Cagoauinnts tI the various defendants:

Count II

Count II: I breach of contract against COF and the Individual Defendants;

Count IV: negligent misrepresentation against COF and the Individual Defendants;

Count V : fraudulent misrepresentation against COF and the Individual Defendants;

Count VI: unjust enrichment against COF and the Individual Defendants;

Count V:I I tortious interference against ADT and the Individual Defendants;

Count VI:I I civil conspiracy against all Defendants;

: successor liability against ADT;

: unjust enrichment against ADT.

Doc. 3.

The LLC Defendants filed a joint Motion to Dismiss on July 29, 2021. Doc. 19. They

argue that the Complaint fails to establish personal jurisdiction over them and that they do

not have sufficient contacts with Missouri to be subject to suit in this forum. Doc. 20 at 2-11.

Id.

In the alternative, the LLC Defendants argue that Counts II, III, V, and VI fail to state a claim

upon which relief may be granted. at 13-15.

The Individual Defendants also filed a joint Motion to Dismiss on July 29, 2021. Doc.

21. They also argue that the Complaint fails to establish personal jurisdiction over them

because they do not have sufficient contacts with Missouri. Doc. 22 at 5-8. In the alternative,

the Individual Defendants argue that Counts I, II, III, IV, V, and VI fail to state a claim against

them upon which relief may be granted. Doc. 22 at 11-15.

The Complaint—which refers to COF, Reusch, Uicker, A. McCorkle, and B. McCorkle

collectively as “COF Defendants”—states that “COF Defendants solicited business from and

conducted business with Top Gun, in Jefferson County, Missouri, COF Defendants made

numerous, false representations to Top Gun, in Jefferson County, Missouri, and Top Gun was

id.

that COF “delivered to Top Gun” at least one shipment of ammunition pursuant to the

agreement, ¶ 12, but Plaintiff does not specify where that shipment was delivered. The

Complaint lacks any further jurisdictional allegations. For example, the Complaint does not

state where the contract was negotiated, signed, or to be substantially performed; it does not

state where Defendants are alleged to have conspired to defraud Top Gun, it does not include

information about where or how the parties communicated, and it does not allege that COF,

ADT, or any of the Individual Defendants were ever physically present in Missouri.

See

The Complaint also fails to attach the contract sued upon. The only relevant

agreement before the Court is the “Purchase Agreement” provided by Defendants. Doc.

see

20-1 (Defs. Ex. A). Although Top Gun “does not concede” that the Purchase Agreement is the

contract they have sued upon, Doc. 27 at 5 n.1, it provides no alternative contract as the

K-V Pharm. Co. v. J. Uriach & CIA, S.A.

basis for its claims. A plaintiff’s pleadings may be tested by “exhibits supporting or opposing

the motion.” , 648 F.3d 588, 592 (8th Cir. 2011). The

Court will therefore consider the Purchase Agreement. The Purchase Agreement does not

indicate where the contract was negotiated, entered, or signed. Regarding deliveries, it

simply states: “Delivery terms shall be agreed by the parties in connection with each

purchase order.” Doc. 20-1 at 2.

The parties have also submitted affidavits and exhibits supporting their respective

positions. Defendants have provided affidavits from Reusch, Doc. 20-2; Uicker, Doc. 20-3; A.

McCorkle, Doc. 22-3; and B. McCorkle, Doc. 22-4. Plaintiff has submitted an affidavit from

Top Gun President, Stanley Dix, Doc. 27 at 14, and an exhibit containing screen shots of text

See

messages between Dix and “Brad”; an unknown individual and “Brad M”; Dix and “William”;

and Dix, “WU,” and “Andrew.” DocL. E2G7A aLt S 1T7A-N3D4A (RPDl . Ex. A).

A. Rule 12(b)(2)

Fastpath, Inc. v. Arbela Techs. Corp.

When a defendant challenges personal jurisdiction, the plaintiff must make a prima

K-V Pharm.

facie showing that jurisdiction exists. , 760 F.3d 816, 820

(8th Cir. 2014) (citing , 648 F.3d at 591-92). That showing is made “by pleading

K-V Pharm. Dever v. Hentzen

sufficient facts ‘to support a reasonable inference that the defendant can be subjected to

Coatings, Inc.

jurisdiction within the [forum].’” , 648 F.3d at 591-92 (quoting

K-V Pharm.

“not by the pleadings alone, but by affidavits and exhibits supporting or opposing the

motion.” , 648 F.3d at 592. While the party seeking to establish jurisdiction

Fastpath

carries the burden, the Court views the evidence in the light most favorable to the nonmoving

party aBnd. rReusolelv 1e2s (fbac)t(u6a)l conflicts in its favor. , 760 F.3d at 820.

The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is

Neitzke

to test the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, a court

Braden v. Wal-Mart Stores, Inc.

assumes the factual allegations of a complaint are true, ,490 U.S. at 326-27, and

draws all reasonable inferences in the non-movant’s favor. ,

588 F.3d 585, 595 (8th Cir. 2009) (citation omitted).

Bell

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a

Atlantic Corp. v. Twombly,

short and plain statement of the claim showing that the pleader is entitled to relief.” In

the Supreme Court clarified that Rule 8(a)(2) requires complaints

accordAshcroft v. Iqbal,

to contain ”more than labels and conclusions”; ”a formulaic recitation of the elements of a

cause of action will not do.” 550 U.S. 544, 555 (2007); 556 U.S. 662,

678-79 (2009). Specifically, to survive a motion to dismiss, a complaint must “contain

Iqbal Twombly,

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” , 556 U.S. at 678 (quoting 550 U.S. at 570). The issue in considering

such a motion is not whether the plaintiff will ultimatS ee le y T pw reo vm ab ill , y b, ut whether the pl aintiff is

entitled to present evidence in support oDf tIhSCeU cSlSaIiOmN. 550 U.S. at 556.

I. Personal Jurisdiction

A federal court may exercise personal jurisdiction over a nonresident defendant in a

Digi-Tel

diversity case if: (1) the facts presented satisfy the requirements of the state’s long-arm

Holdings, Inc. v. Proteq Telecomms. (PTE), Ltd.

statute; and (2) the exercise of personal jurisdiction does not violate due process.

A. LLC Defendants , 89 F.3d 519, 522 (8th Cir. 1996).

1. Missouri Long-Arm Statute

inter alia

The Missouri long-arm statute provides that a nonresident individual or entity is

subject to the jurisdiction of Missouri courts for, , causes of action that arise out of

or the commission of a tortious act within this state. MO. REV. STAT. § 506.500.1. Missouri

courts must “construe broadly the ‘transaction of business’ element in the long arm statute

Products Plus, Inc. v. Clean Green, Inc.

so that even a single transaction may confer jurisdiction, if that is the transaction that gives

rise to the suit.” , 112 S.W.3d 120, 124 (Mo. App. 2003)

(quotation marks and citations omitted). The Missouri Supreme Court has explained that

the “ultimate objective [of the long-arm statute] was to extend the jurisdiction of this state

State ex rel. Deer & Co. v. Pinnell

over non-resident defendants to the extent permissible under the Due Process Clause of the

Fourteenth Amendment.” , 454 S.W.2d 889, 892 (Mo. banc

1970).

Plaintiff has provided sufficient facts to create a reasonable inference that COF

transacted business in Missouri. According to Stanley Dix, President of Top Gun, he

discussed the purchase of bulk ammunition with COF via telephone and written

communications directed at him in Missouri. Doc. 27 at 14 (Dix Affidavit) ¶¶ 6, 7, 8. Dix also

stated that two deliveries were made to Top Gun in Missouri in March 2021, and a third

delivery was made to Top Gun in Missouri in April 2021. Dix Affidavit ¶¶ 10, 11, 12. Dix

Id.

further stated that, after the third shipment had entered Missouri, COF instructed YRC

Freight to place a hold on the shipment before it was ultimately released to Plaintiff. ¶ 12.

The facts thus show that COF reached into Missouri in order to conduct its business with Top

Gun.

See Massi v. Holden Mid-

ADT, as COF’s alleged successor, is subject to Missouri’s long-arm statute on that basis

Continent Eng’g, Inc. v. Toyoda Mach. USA, Corp.

as well. , 2011 WL 6181258, at *5 (D. Minn. Dec. 13, 2011) (quoting

, 2009 WL 1272142, at *2 (D. Minn. May 5,

2009) (“[P]ersonal jurisdiction over a corporate successor may be based on its predecessor’s

contacts with the forum, provided the successor would be liable for its predecessor’s acts

under the foru2m. ’sC loanws.”ti)t)u. tional Due Process

Due process requires that defendants have “minimum contacts” with the forum state

Int’l Shoe v. Wash.

such that the exercise of jurisdiction does not offend “traditional notions of fair play and

Burger King Corp. v. Rudzewicz

substantial justice.” , 326 U.S. 310, 319 (1945). The defendant’s contacts

must be more than “random,” “fortuitous,” or “attenuated.” ,

Pecoraro v. Sky Ranch for Boys, Inc.

availed itself of the privilege of conducting activities in the forum state and should, therefore,

Burger King World-Wide Volkswagen

reasonably anticipate being haled into court there.” , 340

Corp. v. Woodson

F.3d 558, 562 (8th Cir. 2003) (citing , 471 U.S. at 475;

state

, 444 U.S. 286, 297 (1980)). “Critically, it is [the defendant’s] ‘contacts with

resident See Mng 2005, Inc. v.

the forum which are of importance in determining the propriety of personal

Paymentech Rand & Son Constr. Co.

jurisdiction, not [their] contacts with a of the forum state.’”

v. Thaxton Elec. Co., Inc.

, 2020 WL 6582660, at *5 (E.D. Mo. Nov. 9, 2020) (quoting

, 2005 WL 1801714, at *2 (W.D. Mo. July 28, 2005)) (emphasis added).

“[T]he plaintiff cannot be the only link between the defendant and the forum. . . . it is the

Walden v. Fiore see also

defendant’s conduct that must form the necessary connection with the forum state that is

Burger King

the basis for its jurisdiction over him.” , 571 U.S. 277, 285 (2014);

alone

, 471 U.S. at 478 (“If the question is whether an individual’s contract with an out-

of-state party can automatically establish sufficient minimum contacts in the other

party’s home forum, we believe the answer clearly is that it cannot.”).

The Eighth Circuit has established five factors to consider when determining whether

personal jurisdiction exists: (1) the nature and quality of the contacts; (2) the quantity of

Land-O-

contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum

Nod Co. v. Bassett Furniture Indus., Inc.

state in providing a forum for its residents; and (5) the convenience of the parties.

Austad Co. v. Pennie & Edmonds

, 708 F.2d 1338, 1340 (8th Cir. 1983). The first three

factors are the most important. , 823 F.2d 223, 226 (8th Cir.

1987).

a. Factors (1) and (2): Nature, quality, and quantity of contacts

COF’s alleged contacts with Missouri have been brief, isolated, and minimal. The

Complaint alleges only that “COF Defendants solicited business from and conducted business

with Top Gun in Jefferson County, Missouri, COF Defendants made numerous, false

representations to Top Gun, in Jefferson County, Missouri, and Top Gun was first injured by

Twombly

Defendants in Jefferson County, Missouri.” Doc. 3 ¶ 8. That allegation is merely a “formulaic

K-V

recitation” of the requirements for personal jurisdiction, ,550 U.S. at 555, and fails

Pharm.

to provide “sufficient facts to support a reasonable inference” that jurisdiction exists.

, 648 F.3d at 592. The affidavits provide additional information, however.

.

COF is neither organized nor headquartered in Missouri. Doc. 3 ¶ 2; Doc. 20-2 ¶ 2.

COF has no offices, employees, or any other business operations in Missouri. Doc 20-2¶ 9.

Id.

COF does not specifically target Missouri for its sale of bulk ammunition; it sells its products

in all fifty states. ¶ 11. Plaintiff’s claim is primarily based on breach of contract, but there

is no evidence that the contract was negotiated, signed, or intended to be performed in

Id.

Missouri. COF’s business with Top Gun was limited to the allegedly breached contract, which

contemplated an eight-week relationship. ¶ 9; Doc. 3 ¶ 10.

COF’s contacts with Missouri consist of COF’s communications with Dix, a Missouri

id.

resident, Doc. 27 at 14 ¶¶ 7, 8; the delivery of three shipments of ammunition to Dix in

id.

Missouri, ¶¶ 10, 11, 12; Defendants’ directive that YRC Freight place a hold on the third

shipment, ¶ 12; and Defendants text message to Dix of a photo of the pallets of

id.

ammunition to be delivered, and the actual delivery, which “consisted of completely

See Walden

difference pallets . . . [and] significantly less ammunition,” ¶ 12.

Alone, COF’s communications with Dix are insufficient. , 571 U.S. at 285-

85 (“[T]he plaintiff cannot be the only link between the defendant and the forum.”). But the

K-V Pharmaceuticals

Court may consider COF’s communications with Dix and YRC Freight together with its

K-

deliveries to Missouri. Plaintiff relies on for the proposition that

V

deliveries into the forum state subject the defendant to personal jurisdiction; however, in

New Dawn Natural Foods, Inc. v. Natural

, the contract contained an express term that delivery be made to Missouri. 648 F.3d at 594.

Nectar Corp.

Here, there is no such term. Plaintiff also relies on

, 670 F. Supp. 869, 872-73 (E.D. Mo. 1987), for the proposition that the Eighth

New Dawn Electro-Craft Corp. v. Maxwell Electronics

Circuit has recognized that nonresident sellers may be more easily sued in the forum state

Corp.

than nonresident buyers. relied on

, 417 F.2d 365, 368 (8th Cir. 1969) (“[A] nonresident seller subjects itself to the

Electro-Craft

obligation of amenability to suit in return for the right to compete for sales.”). The validity

under Minnesota law See Aaron Ferer & Sons Co.

of , which applied a distinction between nonresident sellers and nonresident

v. Diversified Metal Corp. Scullin Steel Co. v. National Ry.

buyers , has since been called into question.

Utilization Corp. Jennie-O Turkey Store, Inc. v. Food Movers

, 564 F.2d 1211, 1214 (8th Cir. 1977);

Intern., Inc. Scullin Steel

, 676 F.2d 309, 313 (8th Cir. 1982);

, 2007 WL 2580599, at *4 n. 5 (D. Minn. Sept. 5, 2007). According to ,

performed some act by which it has purposefully availed itself of the privilege of conducting

activities within the forum state, thus invoking the benefits and protections of its laws.” 676

F.2d at 314 (cleaned up). By communicating with a Missouri buyer, organizing three

separate deliveries to Missouri for that buyer, and contacting a freight company in Missouri

to place a hold on a shipment already present in Missouri, COF purposefully availed itself of

the privilege of conducting business in Missouri, thus invoking Missouri’s protection and

laws.

b. Factor (3): Relation of the cause of action to the contacts

The third factor requires a distinction between general and specific jurisdiction.

General jurisdiction exists where a defendant’s contacts with the forum state are “so

Goodyear Dunlop Tires Ops., S.A. v. Brown Int’l Shoe

‘continuous and systematic’ as to render them essentially at home in the forum state.”

, 564 U.S. 915, 919 (2011) (quoting , 326

U.S. at 317). The Court cannot exercise general jurisdiction over COF. Absent “exceptional”

BNSF Ry. Co. v.

circumstances, “the paradigm forums in which a corporate defendant is at home . . . are the

Tyrrell

corporation’s place of incorporation and its principal place of business.”

, 137 S. Ct. 1549, 1558 (2017) (internal quotation marks and citations omitted). COF

is a Utah limited liability company, its sole member is a Utah citizen, and its principal place

of business is in Utah.

Plaintiff argues that the Court may nonetheless exercise specific jurisdiction over

See Walden

COF. Specific jurisdiction exists if the cause of action arises out of the defendant’s contacts

with the forum. , 571 U.S. at 284 (“Specific” or “case-linked” jurisdiction “depends

Daimler AG v. Bauman

on an affiliation between the forum and the underlying controversy”) (cleaned up) (citation

omitted); , 571 U.S. 117, 126-27 (2014) (“‘[T]he commission of some

single or occasional acts of the corporate agent in a state’ may sometimes by enough to

Int’l Shoe

subject the corporation to jurisdiction in the State’s tribunals with respect to suits relating

to that in-state activity.”) (quoting , 326 U.S. at 318). But “[f]or a State to exercise

substantial connection Walden .

jurisdiction consistent with due process, the defendant’s suit-related conduct must create a

himself

with the forum State.” , 571 U.S. at 284 (emphasis added).

Id. Burger King

“[T]he relationship must arise out of contacts that the ‘defendant ’ creates with the

forum state.” (quoting , 471 U.S. at 475) (emphasis in original). The “analysis

Id. Int. Shoe

id. Burger King

with persons who reside there.” (citing , 326 U.S. at 319). “[P]hysical presence

goods

in the forum is not a prerequisite to jurisdiction,” (citing , 471 U.S. at 478), but

Id.

“physical entry into the State—either by the defendant in person or through an agent, ,

mail, or some other means—is certainly relevant contact.” (citation omitted). Here, COF’s

contact with Missouri goes beyond its communications with Top Gun. COF organized three

shipments of goods to Missouri and contacted a freight company to place a hold on a

Walden

shipment that was already being held in Missouri. COF has thus “reached out beyond their

State and into another.” , 571 U.S. at 285 (cleaned up). Those actions create a

substantial connection to Missouri and are directly related to the cause of action. COF thus

has sufficient minimum contacts with Missouri for the Court to exercise specific personal

jurisdiction over it. Because the first three factors are the most important, neither of the final

See Massi Mid-Continent

two factors would alter that position. ADT, as COF’s alleged successor, is subject to

Eng’g

jurisdiction on that basis as well. , 2011 WL 6181258, at *5 (quoting

, 2B0. 09In WdiLv i1d2u7a2l1 D4e2f, eant d*2a)n. ts

Calder v. Jones

“Each defendant’s contacts with the forum state must be assessed individually.”

, 465 U.S. 783, 790 (1984). The Complaint contains no factual allegations

directed at any specific Individual Defendant. Instead, the Complaint pleads in group fashion

that “COF Defendants” solicited and conducted business in Missouri, and “COF Defendants”

made numerous false representations to Top Gun in Missouri. Doc. 3 ¶ 8 (emphasis added).

The Complaint thus lacks factual specificity from which the Court could infer which of the

Individual Defendants are alleged to have conducted business in Missouri, made false

representations in Missouri, or both.

The Complaint’s deficiencies are not remedied by Dix’s affidavit, either. Dix states

that he “communicated with a number of individuals, including but not limited to the

Individual Defendants.” Doc. 26 at 15 (Dix Affidavit) ¶ 7. But that too fails to apprise the

Court of which Individual Defendants Dix communicated with or what he communicated

with them about.

See

Plaintiff also provided the Court with an exhibit containing screen shots of four

Fastpath

different text message chains. Doc. 27 at 17-34. Drawing all reasonable inferences and

id.

id. id.

messages are between (a) Dix and B. McCorkle, at 17-22; (b) an unknown individual and

id.

B. McCorkle, at 23-27; (c) Dix and Uicker, at 28; and (d) Dix, A. McCorkle, and Uicker,

at 28-34. In the first chain, B. McCorkle communicates with Dix between March 11th and

12th about what appears to be one of the first two shipments. In the second chain, B.

McCorkle communicates with an unknown individual on an unknown date about what

appears to be the same shipment. In the third chain, Dix texts Uicker on March 16th to ask if

a shipment had been sent out yet; Uicker responds that it had been. And the fourth chain

consists of an April 8th discussion between Dix and A. McCorkle about the YRC Freight hold.

Dix explains to McCorkle that “Mikala” from YRC informed him that a hold was placed on the

order. McCorkle responds that no one from their end placed a hold on the order, he

(McCorkle) spoke to Mikala and was told there was no hold on the order, and their broker

handles communications with the freight company. Dix then sends what he claims is a

picture from COF of the pallet of ammunition that he was supposed to receive and a second

picture of wha1t .h eM aicstsuoaullryi rLeocnegiv-eAdr,m w Shtiachtu htee complains is significantly less.

Plaintiff has failed to provide any facts regarding Reusch’s contacts with Missouri, and

Reusch is therefore not subject to personal jurisdiction under the Missouri long-arm statute.

Plaintiff has provided minimal facts regarding the contacts of the remaining Individual

Products Plus

Defendants, but because courts are instructed to interpret the transaction of any business

clause broadly, , 112 S.W.3d at 124 (citations omitted), the Court finds that

Uicker, A. McCorkle, and B. McCorkle’s contacts with Missouri are sufficient to constitute the

transaction of 2b.u sCinoenssst iutnudtieorn tahle D louneg P-arromce sstsa tute.

Plaintiff has not provided sufficient facts to create a reasonable inference that any of

the Individual Defendants has sufficient contacts with Missouri for the exercise of personal

jurisdiction to comport with due process.

The Court cannot exercise general jurisdiction over the Individual Defendants. “For

Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cnty.

an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s

domicile.” , 137 S. Ct.

1773, 1780 (2017) (quotation marks and citation omitted). Uicker is a citizen of California.

whether the Individual Defendants had sufficient suit-related minimum contacts with

Missouri.

The Court cannot exercise specific jurisdiction over the Individual Defendants.

Though their contacts may be related to the cause of action, the Individual Defendants’

contacts are insufficient for two reasons: (1) the defendants were acting in their capacity as

employees, agents, or officers of COF; and (2) even considering their contacts, those contacts

are insufficient when each Individual Defendant is analyzed separately.

First, even if the Individual Defendants were shown to have sufficient contacts, those

contacts would not subject them to the Court’s jurisdiction in their individual capacities, as

their actions were taken pursuant to their duties as employees, agents, or officers of COF.

The mere fact that a corporation is subject to local jurisdiction does not

necessarily mean its nonresident officers, directors, agents, and employees are

suable locally as well. For jurisdictional purposes, the acts of corporate

officers and directors in their official capacities are the acts of the corporation

exclusively and are thus not material for purposes of establishing minimum

contacts as to the individuals. Implicit in this principle is the consideration

that corporations are separate legal entities that cannot act on their own but

must do so through their appointed representatives. Accordingly, acts

performed by these individuals, in their official capacities, cannot reasonably

Afforda bb ele a H tte ra iblt uh tc ea dr e to, L tL hC e mv. P ar so it nu ds i I vP id S uo alu l t ai co tn ss c, rIn ec a.

ting personal jurisdiction.

Colt Studio, Inc. v. Badpuppy Enter.

, 2009 WL 775582, at *2-3 (E.D. Mo. Mar.

Calder,

20, 2009) (quoting , 75 F. Supp. 2d 1104, 1111 (C.D. Cal.

1999) (citing 465 U.S. at 790)).

Top Gun also argues that, even if the defendants “operated only in a representative

capacity, their commission of extraterritorial tortious conduct having consequences in

Missouri is sufficient to satisfy due process.” Doc. 26 at 7 n.2. But “[t]o hold an officer of a

Protus

corporation liable, he must be shown to have had actual or constructive knowledge of the

Osterberger v. Hites Constr. Co.

actionable wrong and participated therein.” , 2009 WL 775582, at *2 (quotation

marks omitted) (quoting , 599 S.W.2d 221, 229 (Mo. App.

1980)). Top Gun has failed to allege facts or provide evidence showing that any specific

Individual Defendant had actual or constructive knowledge of and participated in tortious

conduct.

See

The closest potential instance of individually attributable tortious conduct is found in

Dix: “In advance of the delivery, Defendants sent me a text message with a photo of the

pallets of ammunition to be delivered. When the delivery arrived, it only consisted of

completely different pallets than in the original photo and was significantly less

ammunition.” Doc. 26 at 17 ¶ 12. The accompanying text messages show that Dix texted a

picture of three pallets of ammunition to Uicker and A. McCorkle with the accompanying

message: “This is the picture of what you sent to me that was shipping.” Doc. 27 at 34. Dix

Id.

then texted a second picture of a single pallet containing several boxes and several other

boxes strewn across the floor, with the accompanying message: “This is what I just got.”

But Top Gun fails to allege, nor is there evidence to suggest, that either A. McCorkle or Uicker

specifically sent the first picture to Dix. Dix states only that “Defendants” sent him a picture.

Thus, even accepting as true the fact that someone at COF sent Dix that picture with the intent

to mislead him into thinking that he was receiving a larger shipment than what COF was

actually sending, based on the facts presented, the Court cannot attribute that act to any

collectively

specific Individual Defendant.

COF

Second, although the Individual Defendants’ suit-related contacts may be

sufficient to find that has a sufficient suit-related connection to Missouri, they are not

sufficient to show the same for the Individual Defendants. The facts show that B. McCorkle

was involved in planning the logistics of one or two of the shipments; Uicker had some

apparent background involvement in the shipment B. McCorkle was handling and was

involved in a brief discussion with Dix regarding that shipment; and A. McCorkle was

Walden

involved only in the YRC Freight discussion. Those contacts, viewed separately, do not create

the necessary substantial connection to exercise personal jurisdiction over them. ,

571 U.S. at 284.

Because the Court cannot exercise jurisdiction over the Individual Defendants in

aIIc.c ord Fwaiitlhu dreu et op rSotacetess a, tChleayi mm ust be dismissed from this case.

A. COF

In the alternative, COF moves for dismissal of Counts II, III and VI against it for failure

to state a claim under Rule 12(b)(6). Doc. 19 at 2. For the reasons set forth below, COF’s

Motion is granted as to Counts II and III and denied as to Count VI.

1. Count II: Negligent Misrepresentation

To plead a claim for negligent misrepresentation under Missouri law, the plaintiff

must allege sufficient facts that, taken as true, demonstrate:

(1) the speaker supplied information in the course of his business;

(2)because of the speaker’s failure to exercise reasonable care, the

information was false;

(3)the information was intentionally provided by the speaker for the

guidance of limited persons in a particular business transaction;

(4) the hearer justifiably relied on the information; and

(5)due to the hearer’s reliance on the information, the hearer suffered a

Renaissance p eL ce ua nsi in ag ry, L lL oC ss v . . Vermeer Mfg. Co.

, 322 S.W.3d 112, 134 (Mo. banc 2010) (citation

Hill v. Bank of Am., N.A.

omitted). “The particularity requirements of Rule 9(b) do not apply to a claim of negligent

misrepresentation.” , 2016 WL 6441599, at *5 (E.D. Mo. Nov. 1, 2016)

(collecting cases). Accordingly, Count II need comply with only Rule 8’s pleading

requirements.

COF argues that Top Gun has failed to allege “that COF failed to exercise reasonable

care and competence in making any intentional representation(s) to Plaintiff in the course

of its business, which were false—whether within the four corners of the contract or

Id.

otherwise.” Doc. 20 at 15. COF also argues that “Plaintiff’s breach of contract cause of action

Williams v. Metro. Police Dep’t of

naturally subsumes its negligent misrepresentation” claims. Top Gun does not address

City of St. Louis

those arguments in its Opposition. Rather, Top Gun cites

, 2005 WL 2491459, at *2 (E.D. Mo. Oct. 7, 2005) for the proposition that,

“under a notice pleading system, it is not appropriate to require a plaintiff to plead facts

Conley v. Gibson

establishing a prima facie case[,]” and thus argues that it has met the “[f]ederal notice

abrogated by Twombly Williams Twombly

pleading requirements.” Doc. 27 at 10-11 (citing , 355 U.S. 41, 47 (1957),

, 550 U.S. at 562-63, 570). Contrary to ’s pre-

Twombly

statement of the law,Top Gun must indeed allege enough facts that, taken as true, establish

a prima facie case for negligent misrepresentation that is plausible on its face. , 550

Iqbal

U.S. at 570. Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-

The Complaint sufficiently alleges four of the five required elements for a claim of

negligent misrepresentation, but it fails to allege any facts supporting the second element.

The Complaint states: “The COF Defendants did not exercise reasonable care in rendering

the aforementioned representations and, as a result, the aforementioned representations

See Twombly Iqbal

were false.” Doc. 3 ¶ 18. As a mere recitation of the requisite element, that allegation is

insufficient. , 550 U.S. at 545; , 556 U.S. at 678.

Because Top Gun fails to allege sufficient facts to establish a claim for negligent

misrepresenta2ti. onC,o Cuonutn ItI II:I iFsr daiusmduislesendt .M isrepresentation

To plead a claim for fraudulent misrepresentation under Missouri law, the plaintiff

must show:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s

knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that

it should be acted on by the person in the manner reasonably contemplated;

(6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s

reliance on the representation being true; (8) the hearer’s right to rely

Renaiss ta hn ec re e oL nea ; asi nn dg (9) the hearer’s consequa ec nc to ar nd d G pa rs ot xv i. m E ab te er lt

y caused injury.

, 322 S.W.3d at 131-32; , 739 S.W.2d 545, 547 (Mo.

banc 1987).

See Freitas v. Wells Fargo Home Mortg., Inc.

A claim for fraudulent misrepresentation is subject to the heightened pleading

standard of Federal Rule of Civil Procedure 9(b). ,

703 F.3d 436, 439 (8th Cir. 2013). Rule 9(b) requires that a plaintiff “state with particularity

the circumstances constituting fraud or mistake.” “To satisfy the particularity requirement

of FRCP 9(b), the complaint must plead such facts as the time, place, and content of the

defendant’s false representations, as well as the details of the defendant’s fraudulent acts,

U.S. ex rel. Joshi v. St. Luke’s Hosp., Inc.

including when the acts occurred, who engaged in them, and what was obtained as a result.”

Id.

, 441 F.3d 552, 556 (8th Cir. 2006). In essence, “the

complaint must identify the who, what, where, when, and how of the alleged fraud.”

(quotation marks and citation omitted).

The Complaint fails to sufficiently plead the fourth, fifth, and eighth elements of

fraudulent misrepresentation. As to the fourth element, the Complaint alleges that “COF

Defendants knew their representations were false.” Doc. 3 ¶ 28. That allegation is a

See Twombly

conclusory, “formulaic recitation” of the elements that fails to satisfy even the lesser

St. Luke’s Hosp. see

standard of Rule 8. , 550 U.S. at 570. But it also fails, under Rule 9(b), to allege

“how” or “when” COF knew its representation was false. , 441 F.3d at 556;

Fed. R. Civ. Proc. 9(b). The only related allegation is that COF ultimately did not deliver the

ammunition it promised. Doc. 3 ¶ 28. But even if true, that allegation sheds no light on COF’s

state of mind at the time the representation was made. “A party fails to sufficiently allege

Moses.com Secs., Inc. v. Comprehensive Software Sys., Inc.

fraud ‘when the facts and circumstances are as consistent with honesty and good faith as

they are with fraud.’” , 406 F.3d 1052,

1064 (8th Cir. 2005).

As to the fifth element, the Complaint is devoid of any allegations concerning COF’s

Renaissance Leasing

“intent that [its representation] should be acted on by [Top Gun] in the manner reasonably

contemplated.” , 322 S.W.3d at 131-32. Finally, as to the eighth element,

Id.

the Complaint contains no facts establishing Top Gun’s “right to rely” on COF’s

in] justifiable reliance upon

representation. at 1322. Top Gun merely pleads that it provided COF with two hundred

thousand dollars “[i]n response to and [ COF Defendants’ false

Twombly

representations.” Doc. 3 ¶ 26 (emphasis added). But that allegation is a conclusory,

St. Luke’s Hosp. see

“formulaic recitation” of the element, , 550 U.S. at 570, and also fails, under Rule

9(b), to allege “how” Top Gun’s reliance was justified. , 441 F.3d at 556;

Fed. R. Civ. Proc. 9(b).

Because Top Gun fails to allege sufficient facts to establish a claim for fraudulent

misrepresenta3ti. onC,o Cuonutn Vt II:I I C iisv dili sCmonissspeidr.a cy

COF argues that Top Gun “groups all Defendants together in its civil conspiracy claim,

without identifying a single fact specific to COF’s purported involvement or collusion with

any other Defendant in the alleged conspiracy.” Doc. 20 at 14. Top Gun counters that such

group pleading “should be expected.” Doc. 27 at 12.

To establish a claim for civil conspiracy under Missouri law, the plaintiff must show:

(1) two or more persons;

(2) with an unlawful objective;

(3) after a meeting of the minds;

(4) committed at least one act in furtherance of the conspiracy; and

Western Blue Print Co. LLC v. Roberts

Mika v. Central Bank of Kansas City

, 367 S.W.3d 7, 22 (Mo. banc 2012). “There can be no

conspiracy between an agent and a principal.” , 112

Id.

S.W.3d 82, 94 (Mo. App. 2003) (citations omitted). Thus, “the general rule holds that a

corporation cannot conspire with its own employees.” (quotation marks and citation

omitted). Because the Individual Defendants were employees of COF, they could not have

conspired with COF. The only potential conspiracy could have been between COF and ADT.

id.

Top Gun alleges that “ADT purchased the assets of COF,” Doc. 3 ¶ 47, and “ADT is merely the

continuation of COF,” ¶ 53, but it is unclear whether ADT and COF were in a parent-

subsidiary relationship at the time of the alleged conspiracy.

The Complaint alleges that “Defendants entered into a meeting of the minds to induce

Top Gun to provide them a large cash deposit . . . without the intention of supplying Top Gun

Western Blue

with any corresponding benefit.” Doc. 3 ¶ 42. An agreement to induce a breach of contract

is sufficient for a conspiracy. , 367 S.W.3d at 22. In furtherance of that

agreement, COF and ADT “prepared false contracts and documents.” Doc. 3 ¶ 44. Those

allegations, taken as true, plausibly show that COF and ADT engaged in a civil conspiracy.

The MoBti.o nA iDs Tth erefore denied with respect to Count VI.

ADT also moves for partial dismissal under Rule 12(b)(6) for failure to state a claim

against it on Counts V and VI. Doc. 19 at 2. For the following reasons, ADT’s Motion is granted

as to Count V a1n. d Cdoeunnietd V a: sT toor Ctioouunst I VnIt.e r ference with a Business Expectancy

To plead a claim for tortious interference with a business expectancy under Missouri

law, the plaintiff must allege sufficient facts that, taken as true, show:

(1) a valid business expectancy;

(2) defendant’s knowledge of the relationship;

(3) a breach induced or caused by defendant’s intentional interference;

(4) absence of justification; and

Rail Sw (i 5tc )h din ag m S ae gr ev ss .. , Inc. v. Marquis-Missouri Terminal, LLC

, 533 S.W.3d 245, 259 (Mo. App.

2017) (quotation marks and citations omitted). Where, as here, the business expectancy is

created by a contract, the claim is actually one of tortious interference with a contract. The

See id.

only difference between the two is that the first element may be satisfied by establishing the

existence of a contract.

The Complaint alleges that “Top Gun established a clear, valid business expectancy

with and from COF by virtue of its agreement with COF wherein, in exchange for payment,

COF agreed to manufacture and deliver” ammunition. Doc. 3 ¶ 36. The Complaint fails to

sufficiently allege the second, third, or fourth element, however. As to the second element,

Id.

the Complaint alleges that ADT was “aware of Top Gun’s business expectancy by virtue of

their ownership of and/or involvement with COF.” ¶ 37. But if ADT owned COF, then it

could not have interfered with the contract; a party cannot interfere with its own contract.

The Complaint points to no other “involvement” ADT could have had with COF other than

ADT’s agreement to purchase COF and its subsequent ownership thereof.

As to the third element, Count V alleges that ADT “intentionally interfered with Top

Gun’s business expectancy with and from COF by inducing COF to breach its agreement with

Twombly see also Iqbal

Top Gun.” Doc. 3 ¶ 38. That is a conclusory, “formulaic recitation” of the third element and

“will not do.” , 550 U.S. at 570; , 556 U.S. at 678 (Rule 8 “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation”). It does not allege,

for example, that COF intended to perform on the contract until ADT’s alleged interference.

In fact, Top Gun elsewhere claims that COF never intended to perform the contract. Doc. 3

¶ 25. ADT could not have induced COF to breach a contract that COF had intended to breach

from the outset. Finally, as to the fourth element, Count V merely alleges that “[t]here was

Twombly

and is no justification for the actions of [ADT].” Doc. 3 ¶ 39. That too is a conclusory,

“formulaic recitation” of the element and fails to provide any supporting facts. , 550

U.S. at 570.

Because Top Gun fails to allege sufficient facts that, taken as true, demonstrate a

plausible claim2 .f orC otourntito VuIs: iCnitveirl fCeorennspceir aagcayi nst ADT, Count V is dismissed as to ADT.

For the reasons previously stated, Count VI sufficiently alleges a cause of action for

civil conspiracy between COF and ADT. ADT’s Motion is therefore denied with respect to

Count VI.

CONCLUSION

The Individual Defendants’ Motion to Dismiss for lack of personal jurisdiction is

granted. They are therefore dismissed from this case. The LLC Defendants’ Motion to

Dismiss for lack of personal jurisdiction is denied; their Motion to Dismiss for failure to state

a claim is granted with respect to Counts II, III, and V, but denied with respect to Count VI.

Counts I, VI, VII, and VIII against the LLC Defendants remain.

Accordingly,

IT IS HEREBY ORDERED that the LLC Defendants’ Motion to Dismiss, Doc. [19], is

GRANTED IN PART and DENIED IN PART. Counts II, III, and V are dismissed. In all other

respects, the LLC Defendants’ Motion is DENIED.

IT IS FURTHER ORDERED that the Individual Defendants’ Motion to Dismiss, Doc.

[21], for lack of personal jurisdiction is GRANTED. Defendants Ruesch, Uicker, A. McCorkle,

and B. McCorkle are dismissed from this case.

An accompanying Order of Dismissal shall be issued herewith.

Dated this 18th day of March, 2022.

SARAH E. PITLY

UNITED STATES DISTRICT JUDGE

18