United States District Court, N.D. Alabama, Southern Division
DEMETRIUS D. CALDWELL, et al., Plaintiffs,
EDWARD L. MCRIGHT, JR., Defendant
DENNIS CARLIN, III, et al. Third-Party Defendants.
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
a diversity action alleging various Alabama state law claims
against Defendant/Third-Party Plaintiff Edward L. McRight,
Jr., (“McRight”), all stemming from a divorce
proceeding in which McRight represented Plaintiff Rosemarie
Awtrey as counsel. (Doc. 1). On July 13, 2017, McRight
answered the complaint and filed a counterclaim against
Rosemarie Awtrey and a third-party complaint against the
Third-Party Defendants Dennis Carlin, III
(“Carlin”) and All Star Land, LLC (“All
Star Land”). (Doc. 9). The Third-Party Defendants have
moved to dismiss the third-party complaint. (Doc. 16).
McRight responded in opposition, (doc. 23), and the
Third-Party Defendants replied, (doc. 24). The motion is
fully briefed and ripe for review. For the reasons stated
more fully below, the motion to dismiss is
Standard of Review 
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). Mere
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” are
insufficient. Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949 (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertions]' devoid of ‘further
factual enhancement.'” Id. (citing
Bell Atl. Corp., 550 U.S. at 557, 127 S.Ct. 1955).
Additionally, “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake.” Fed.R.Civ.P. 9(b).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citations
and internal quotation marks omitted). A complaint states a
facially plausible claim for relief “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
The complaint must establish “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.; see also Twombly, 550 U.S. at 555, 127 S.Ct. at
1965 (“Factual allegations must be enough to raise a
right to relief above the speculative level.”).
Ultimately, this inquiry is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679, 129 S.Ct. at 1950.
court accepts all factual allegations as true on a motion to
dismiss under Rule 12(b)(6). See, e.g., Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
However, legal conclusions unsupported by factual allegations
are not entitled to that assumption of truth. Iqbal,
556 U.S. at 678, 129 S.Ct. at 1950.
an attorney, represented Rosemarie Awtrey from June 2013 to
March 4, 2014 in her divorce from her husband, Al Awtrey.
(Doc. 9 at ¶ 76). After the divorce was finalized, Al
Awtrey filed post-trial motions, and Rosemarie Awtrey asked
McRight to represent her in connection with those motions.
(Id. at ¶ 78-79). McRight refused, believing he
had conflicts of interest, and Rosemarie Awtrey retained
other counsel. (Id. at ¶ 79). In August 2014,
Al Awtrey died, and one of his daughters continued to
prosecute the post-trial motions on behalf of his estate.
(Id. at ¶ 80).
December 2015, Rosemarie Awtrey invited McRight to dinner at
the Bright Star Restaurant in Bessemer, where she revealed to
him that she had been untruthful with him during the divorce
proceedings concerning her assets and property interests.
(Id. at ¶¶ 81-83). Rosemarie Awtrey had
provided false statements in response to Al Awtrey's
interrogatories and requests for production, which had been
submitted by McRight. (Id. at ¶ 84).
Specifically, Rosemarie Awtrey had lied about the amount of
debt owed by All Star Land, a land investment. (Id.
at ¶ 85). She also admitted All Star Land's
financial statement, submitted in response to the requests
for production, was fraudulent and that the fraudulent
statement had been approved by All Star Land's members,
including Carlin (who is Rosemarie Awtrey's son), in
order to suppress from McRight, Al Awtrey, and Al
Awtrey's lawyer the fact that its debt would be
substantially reduced by the time the divorce was complete.
(Id. at ¶ 86-87, 93).
on the misrepresentations, McRight's third-party
complaint alleges separate counts of fraud against Carlin and
All Star Land, as well as a count of civil conspiracy against
both Third-Party Defendants. (Id. at ¶¶
Third-Party Defendants offer-with no citation to any
authority-seven bases for dismissal (styled “First
Defense, ” “Second Defense, ” and so
The title of their motion states it seeks dismissal
“pursuant to Rule 12 and Rule 9(e) of the Federal Rules
of Civil Procedure.” (Doc. 16 at 1). Although they
never specify which subparts of Rule 12 they rely on to
support dismissal of McRight's third-party complaint, it
appears the first, third, and seventh “defenses”
seek dismissal for failure to state a claim pursuant to Rule
12(b)(6); the second, fourth, and fifth
“defenses” seek dismissal for lack of
subject-matter jurisdiction pursuant to Rule 12(b)(1); and
the sixth “defense” seeks dismissal pursuant to
Rule 9(e). However, the arguments they make do not
necessarily line up with these provisions, so the undersigned
will address the “defenses” individually (apart
from the second and fifth, which are addressed
Third-Party Defendants first argue McRight's third-party
complaint should be dismissed under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted, offering
the pronouncement that “[t]here can be no legal basis
for the cause of action asserted because no relationships or
rights exist to support them [sic].” (Doc. 16 at 3-4).
They base this assertion on the fact that All Star Land and
Carlin were not parties to the Awtreys' divorce and on an