United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge.
the Court is Plaintiff/Counter-defendant John Wahrmund d/b/a
Wahrmund Farms' (“Wahrmund”) motion to
dismiss the Texas Deceptive Trade Practices Act
(“TDTPA”) counterclaim of
Defendant/Counter-claimants Terry Buschman and Ryan Buschman
(collectively the “Buschmans”) (Dkt. No. 28). The
Buschmans filed a response to the motion to dismiss (Dkt. No.
32). For the following reasons, Wahrmund's motion to
dismiss the Buschmans' TDTPA counterclaim is granted
(Dkt. No. 28).
Factual And Procedural Background
Wahrmund operates Wahrmund Farms, a cattle farm in Conway
County, Arkansas (Dkt. No. 2, ¶ 7). In order to expand
his business, Wahrmund entered into discussions with Cattle
Connections, LLC (“Cattle Connections”), a
Missouri limited liability company that connects cattle
owners with businesses capable of raising cattle
(Id., ¶¶ 4, 9). On November 19, 2014,
Wahrmund entered into a contract with Cattle Connections for
the care of cattle owned by Ryan Buschman, a resident of
Perryton, Texas (Id., ¶¶ 3, 11).
December 10, 2014, Wahrmund entered into another contract
with Cattle Connections, this time for the care of cattle
owned by Terry Buschman (doing business as Buschman Ranch)
(Id., at 23). Terry Buschman is a resident of
Spearman, Texas (Id., ¶ 2). These two contracts
(collectively referred to as the “Producer
Contracts”) provide that Wahrmund would be paid $1.10
per cow/bull per day by the Buschmans, via Cattle Connections
(Id., ¶ 12). In return, Wahrmund was to provide
food, water, and other necessities for the cattle
(Id.). Additionally, Wahrmund was to be reimbursed
for necessary expenses incurred during the care of the cattle
(Id., ¶ 13).
agreed-upon number of cattle were delivered to Wahrmund's
cattle farm from Texas (Dkt. No. 2, ¶ 17). At the time
of delivery, Wahrmund allegedly informed Ryan Buschman that
the pregnant heifers were unusually small and young and
warned Ryan Buschman that it was unwise to brand the heifers
at that time (Id., ¶¶ 18-19). Wahrmund
insists that Buschman was unconcerned about this risk, so the
heifers were branded, notwithstanding the alleged risk
(Id., ¶ 19).
to Wahrmund, several mishaps occurred that led to a higher
than expected death rate among the cattle. First, the
premature birth of many calves in December 2014 resulted in
unforeseen cattle deaths (Id., ¶ 21). Second,
central Arkansas allegedly experienced flooding that may have
harmed the cattle (Id., ¶¶ 24-25).
Finally, on or about January 24, 2015, an unknown number of
the calves were stolen and never recovered (Id.,
¶ 26; Dkt. No. 22, ¶ 5).
response to the cattle theft, Ryan Buschman travelled to
Wahrmund's property to inspect the cattle (See
Dkt. No. 22, ¶ 5). According to the Buschmans,
“[u]pon arrival, Ryan learned of the poor health of
their cattle.” (Id., ¶ 5). The Buschmans
blame the poor health of the cattle on Wahrmund's
“failure to provide adequate treatment, food,
nourishment, and veterinary services” to the cattle, as
well as his failure to “use ordinary care” while
unloading the cattle (Id., ¶ 6). The Buschmans
also argue that Wahrmund hid the cause of the cattle deaths
(Id., ¶ 7).
5, 2015, Cattle Connections informed Wahrmund that Ryan and
Terry Buschman had decided to remove their cattle from his
farm (Dkt. No. 2, ¶ 27). On June 25, 2015, the Buschmans
removed some of their cattle from Wahrmund's farm, though
approximately 360 of their cattle remained on Wahrmund's
farm (Id., ¶ 28).
January 14, 2016, Cattle Connections and the Buschmans
threatened legal action against Wahrmund (Id.,
¶ 32). The next day, Ryan Buschman collected the
approximately 360 cattle remaining at Wahrmund's farm
(Id., ¶¶ 29-30). Wahrmund presented an
invoice to Ryan Buschman that same day, but Buschman was
allegedly unable to satisfy the invoice (Id., ¶
30). Instead, Buschman drafted a handwritten note that
states, “Buschman Rauches [sic] will wire money for
feed bill on 1-15-16 for $40, 903.20.” (Id.,
at 27). Wahrmund alleges that this amount was never paid.
February 10, 2016, Wahrmund filed a complaint against Cattle
Connections, LLC, and the Buschmans in the Circuit Court of
Conway County, Arkansas. Wahrmund's complaint asserts
claims of breach of contract, unjust enrichment, violations
of the Arkansas Deceptive Trade Practices Act, intentional
interference with a contract, and fraud and deceit (Dkt. No.
2). On March 11, 2016, the Buschmans removed the lawsuit to
this Court (Dkt. No. 1). On April 25, 2017, the Buschmans
filed multiple counterclaims against Wahrmund (Dkt. No. 22).
Among their counterclaims, the Buschmans assert that Wahrmund
violated the TDTPA (Id., ¶¶ 33-39).
Specifically, in their TDTPA counterclaim, the Buschmans
allege that Wahrmund failed to disclose the quality of his
services, falsely represented that he provided care for the
cattle, and falsely represented the quality of his services
(Id., ¶ 35).
5, 2017, Wahrmund filed his answer to the Buschmans'
counterclaims (Dkt. No. 27). Wahrmund's present motion to
dismiss the Buschmans' TDTPA counterclaim was filed on
May 10, 2017 (Dkt. No. 28). The Buschmans filed their
response to Wahrmund's motion to dismiss on May 24, 2017
(Dkt. No. 32).
Standard Of Review
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a “complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Braden v. Wal-Mart Stores, Inc.,588 F.3d 585, 594
(8th Cir. 2009) (quoting Ashcroft v. Iqbal, 566 U.S.
662, 678 (2009)). A claim is plausible on its face
“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,
588 F.3d at 678. In making this determination, the court must
draw all reasonable inferences in favor of the nonmoving
party. Crooks v. Lynch,557 F.3d 846, 848 (8th Cir.
2009). “When ruling on a motion to dismiss, the
district court must accept the ...