United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the court on Defendant's
Motion to Dismiss Plaintiff's Second Amended and
Supplemental Complaint for Breach of Contract and Damages,
Doc. 36, filed March 14, 2016. For the reasons stated herein,
Defendant's Motion to Dismiss is DENIED.
allegations in the Second Amended Complaint
(“SAC”) supporting Plaintiff's claims are
consistent with those set forth in the First Amended
Complaint (“FAC”), and are fully set forth in the
Court's Memorandum Opinion and Order dated January 27,
2016. Doc. 34. The Court incorporates those facts by
reference herein. By way of summary, Plaintiff Ellen C.
Badeaux, LLC, a law firm in Louisiana, contracted with
Defendant AttorneyLocate.com, later SonicSEO.com
(“SonicSEO”), for “website development,
maintenance and search engine optimization.” Doc. 35
¶ 4. Defendant SonicSEO agreed to create a
“Diamond Package website” for Plaintiff, which
entailed “50 pages of Client website Content, and a
links page, ” and the creation of a website for the
Plaintiff, “http://edbadeaux.com.” Doc.
35 ¶ 5.
Plaintiff's AOL email account was hacked and rendered no
longer accessible, Plaintiff contacted SonicSEO and informed
it that “her email had been hacked and contact
information on her website needed to be changed.” Doc.
35 ¶ 6. SonicSEO assured Plaintiff that corrections had
been made to her website. Id. After these
assurances, Plaintiff “expressed concern” to
SonicSEO that her website traffic had decreased by a third
during the fourth quarter of 2013 and a half during the first
quarter of 2014. Doc. 35 ¶ 7. To determine whether
emails were being sent to the correct email address Plaintiff
“went to both her mobile…and desktop website[s]
and sent test emails and contacts.” Doc. 35 ¶ 10.
Of the six emails that Plaintiff sent, only one email, sent
from her mobile website, was received by Plaintiff in the
correct email inbox. Id.
then contacted both SonicSEO and her information technology
(IT) and email provider, Microland Computers, Inc.
(“Microland”). Id. Microland determined
that, while Plaintiff's email address on her desktop,
which was created, maintained and designed by SonicSEO, was
visibly changed, the link for her desktop website email and
all client-contact forms for both her mobile and desktop
emails were sending all contacts to her former AOL email
address, which had been previously rendered inaccessible.
initial Complaint in this matter was filed on January 14,
2015 as a “Petition for Breach of Contract and
Damages” in the 22nd Judicial District Parish of St.
Tammany, Louisiana. Doc. 1-1. The Complaint alleged only
breach of contract claims. After Defendants filed a Notice of
Removal, the First Amended and Supplemental Petition for
Breach of Contract and Damages (“FAC”) was filed
in the United States District Court for the Eastern District
of Louisiana on May 19, 2015. Doc. 9. The FAC expanded on the
initial Complaint by including several additional allegations
referring to negligence, including negligent hiring, failing
to properly supervise personnel and have proper procedures,
etc. Doc. 9 ¶ 9.b.
prior Memorandum Opinion and Order granting in part
Defendants' Motion to Dismiss Plaintiffs' First
Amended Complaint, Doc. 34, this Court dismissed the
individually named plaintiff and defendant, finding that the
individually named plaintiff was neither a party to, nor a
third-party beneficiary of the agreement at issue,
id. at 6, and that the allegations failed to pierce
the corporate veil in order to make the individually named
defendant liable, id. at 7. The remaining Plaintiff,
Ellen C. Badeaux, LLC (“Plaintiff”), filed its
Second Amended Complaint (“SAC”) on February 24,
2016, Doc. 35. Although the SAC amends the parties to the
suit, the allegations remain unchanged from the FAC. The SAC
lists six breaches of contract, including failure “to
correct coded website links . . . to maintain the website . .
. to monitor website activity . . . to test the six points of
website contact . . . to review the code behind the website
it created and designed; and . . . to act as a reasonable and
prudent person would under the same or similar circumstances
. . .” Id. ¶ 12. The SAC does not cite
where these obligations originate in the contract, but states
that Defendant was in “breach of its covenant of good
faith and fair dealing in failing to perform rudimentary
obligations under the Agreement and its actions caused
economic and personal injury to plaintiff.”
Id. ¶ 15.
also claims in the SAC that Defendant is liable for negligent
hiring, failures to train and supervise personnel, and
failures to have proper procedures in place that would have
avoided Plaintiff's damages, id. ¶ 13,
stating that “[b]ecause defendant's misconduct was
wanton, reckless, and fell far short of industry standards
and resulted in harmful consequences to a substantial
certainty, plaintiffs' losses and damages were caused by
defendant's gross fault, and the limitation of liability
clause in the Agreement between [Plaintiff] and [Defendant]
is null and void under New Mexico law.” Id.
Motion to Dismiss
to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure seek dismissal of a complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). To withstand a motion to dismiss, the
complaint must contain enough factual allegations that the
claim is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing to Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). Facial
plausibility exists “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). However, mere “threadbare recitals
of the elements of a cause of action, supported
by…conclusory statements, do not suffice [to establish
Court must accept all of the well-pleaded allegations of the
complaint as true and must construe them in the light most
favorable to the [non-moving party].” David v. City
and County of Denver, 101 F.3d 1344, 1352 (10th Cir.
1996) (citing to Gagan v. Norton, 35 F.3d 1473, 1474
n. 1 (10th Cir. 1994)). “A complaint may be dismissed
pursuant to [Rule] 12(b)(6) only “if the
plaintiff can prove no set of facts to support a claim for
relief.” David, 101 F.3d at 1352 (citing to
Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995))
8(a)(2) of the Federal Rules of Civil Procedure states that,
“A pleading that states a claim for relief must contain
a short and plain statement of the claim showing that the
pleader is entitled to relief.” A recitation of
“facts upon which relief can be granted” does not
necessitate pleading the prima facie elements of a claim.
See Swierkiewicz v. Sorema, N.A., 534 U.S. 506,
510-512 (2002). “Specific facts are not necessary; the
statement need only ‘give the defendant fair notice of
what the…claim is and the ...