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Wahrmund v. Buschman

United States District Court, E.D. Arkansas, Western Division

March 12, 2018

JOHN WAHRMUND d/b/a WAHRMUND FARMS PLAINTIFF
v.
TERRY BUSCHMAN, RYAN BUSCHMAN, and CATTLE CONNECTIONS, LLC DEFENDANTS AND TERRY BUSCHMAN; and RYAN BUSCHMAN COUNTER-CLAIMANTS
v.
JOHN WAHRMUND d/b/a WAHRMUND FARMS COUNTER-DEFENDANT CATTLE CONNECTIONS, LLC CROSS-DEFENDANT

          ORDER

          Kristine G. Baker United States District Judge.

         Before 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).

         I. Factual And Procedural Background

         John 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).

         On 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).

         The 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).

         According 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).

         In 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).

         On June 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).

         On 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.

         On 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).

         On May 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).

         II. Standard Of Review

         To 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 ...


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