Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter

• Decision Date: 27 May 2010
• Docket Number: No. 09-20268.,09-20268.
• Citation: 607 F.3d 1029
• Parties: SHANDONG YINGUANG CHEMICAL INDUSTRIES JOINT STOCK COMPANY, LTD., Plaintiff-Appellant,v.Michael POTTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

607 F.3d 1029

SHANDONG YINGUANG CHEMICAL INDUSTRIES JOINT STOCK COMPANY, LTD., Plaintiff-Appellant,v.Michael POTTER, Defendant-Appellee.

No. 09-20268.

United States Court of Appeals, Fifth Circuit.

May 27, 2010.

COPYRIGHT MATERIAL OMITTED

Katherine D. Mackillop, Thomas Charles Godbold, Jason Edward Williams (argued), Fulbright & Jaworski, L.L.P., Houston, TX, for Plaintiff-Appellant.

Michael Duncan (argued), Magdalaine S. Ebeade (argued), Cage, Hill & NIehaus, L.L.P., Houston, TX, for Potter.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.

PER CURIAM:

Appellant Shandong Yinguang Chemical Industries Joint Stock Co., Ltd., (“Yinguang”) sold explosive chemicals to Beston Chemical Corporation (“Beston”), a company wholly-owned by Appellee Michael Potter. Beston failed to make payments on two contracts and subsequently declared bankruptcy. In an effort to recover its losses, Yinguang sued Potter personally for common law fraud and fraudulent inducement, and sought to impose personal liability by piercing Beston's corporate veil. The district court dismissed the case, finding that Yinguang failed to meet the pleading requirements of Fed.R.Civ.P. 9(b) on the fraud claims. The district court also held that Yinguang did not have standing to pursue the veil-piercing claim. For the reasons that follow, we conclude that Yinguang did not adequately plead fraud and affirm the district court's dismissal pursuant to Rule 12(b)(6).

I. Background

Beston and Yinguang entered into eight contracts for delivery of chemicals. According to the well-pled allegations, Beston paid for the first six contracts, but in an untimely manner. This appeal stems from the last two contracts, Contracts No. 7 and No. 8. The parties entered into Contract No. 7 on February 25, 2004 for $1,369,216.80 and Contract No. 8 on June 1, 2004 for $1,328,644.80. During Beston's and Yinguang's business relationship, Potter often spoke with Yinguang's president, Sun Bowen.

Yinguang asserts that Potter made two types of misrepresentations during negotiations for these two contracts. First, on July 20, 2003, Potter represented that Beston was in “sound financial condition” and that Beston would pay for current and future shipments. Second, Potter represented repeatedly that Beston would make regular payments on its purchases. On February 2, 2004, when Bowen asked for a letter of credit to secure future payments, Potter replied that a letter of credit was unnecessary because Beston would make regular, timely payments. On April 26, 2004, Potter emailed Bowen describing Beston's financial difficulties, but he assured Bowen that Beston had remedied the problems and that “Yinguang will see continual, constant payments from BCC [Beston].” On April 30, 2004, Potter emailed Bowen again, promising that Beston would make payments on a frequent basis. After Beston failed to make payments on Contract No. 7, Yinguang refused to deliver any chemicals under Contract No. 8. On August 21, 2004, Potter again promised that Beston would pay Yinguang, and Yinguang proceeded to deliver the chemicals.¹

Despite Potter's assurances, he omitted to tell Yinguang that Beston had been unprofitable in 2003. In the end, Beston made no regular payments on either contract. Yinguang sued Beston in Texas in state court in August, 2005. Beston and Yinguang entered into a settlement agreement and Beston made one payment of $499,216.80 on March 1, 2006. Six weeks later, Beston filed for Chapter 11 bankruptcy. Yinguang was left with a $2,198,644.80 unsecured claim.

Yinguang next sued Potter personally in federal district court. Yinguang alleges that Potter committed fraud and fraudulent inducement by lying to Sun Bowen to entice Yinguang to enter into Contracts No. 7 and No. 8. Alleging that Potter used Beston to perpetrate a fraud by funneling money out of Beston into other Potter-owned corporate entities, it also seeks to impose Beston's contract liability on Potter by piercing the corporate veil. Potter moved to dismiss under Fed.R.Civ.P. 12(b)(6). The district court granted the motion because Yinguang did not meet the heightened pleading requirements of Fed.R.Civ.P. 9(b) on the fraud claims. The district court also held that Yinguang lacked standing to pursue the veil-piercing claim that was property of the Beston bankruptcy estate. Yinguang now appeals.

II. Standard of Review

We review de novo a district court's dismissal for failure to state a claim under Rule 12(b)(6). Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when all well-pleaded facts are assumed true and are viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success. Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Further, with respect to the fraud and fraudulent inducement claims, Fed.R.Civ.P. 9(b) requires that Appellant “state with particularity the circumstances constituting the fraud.” Fed.R.Civ.P. 9(b). “Put simply, Rule 9(b) requires ‘the who, what, when, where, and how’ to be laid out.” Benchmark Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir.2003).

III. Discussion

A. Fraud

Yinguang alleges that Potter committed fraud both by affirmative misrepresentation and by omission. Specifically, Yinguang asserts that Potter's statement that Beston was in “sound financial condition” was a misrepresentation because Beston was unprofitable in 2003 and failed to obtain a line of credit. The elements of fraud in Texas are (1) the defendant made a representation to the plaintiff; (2) the representation was material; (3) the representation was false; (4) when the defendant made the representation the defendant knew it was false or made the representation recklessly and without knowledge of its truth; (5) the defendant made the representation with the intent that the plaintiff act on it; (6) the plaintiff relied on the representation; and (7) the representation caused the plaintiff injury. Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001).

Yinguang's allegations fail to meet the pleading requirements of Rule 9(b) as to several of the fraud elements. First, Yinguang fails sufficiently to allege that the “sound financial condition” statement was material. A false representation is material if a reasonable person would attach importance to and be induced to act on the information. Citizens Nat'l Bank v. Allen Rae Invs., 142 S.W.3d 459, 478-79 (Tex.App.-Fort Worth 2004, no pet.). This statement is inherently vague and ambiguous. Yinguang did not plead that Potter presented any detailed, corroborating information, facts or figures to support the statement that might entice a reasonable person to attach importance to the statement. See id. Further, the statement is significantly attenuated from the execution of Contract Nos. 7 and 8, which occurred, respectively, seven and ten months later. Potter also explains, without contradiction, that the statement was made during a meeting to assure Yinguang that a late payment on Contract No. 6 would be forthcoming. Further undermining an inference of materiality in the “sound financial condition statement” is the reality that in the parties' course of dealing on prior contracts, Beston's payments had repeatedly been late although it “generally” met its obligations to Yinguang. Under all of these circumstances, Yinguang's bare assertion of materiality rings hollow.

Second, Yinguang fails sufficiently to allege that the statement was false when made. That Beston was unprofitable for the year 2003 and unable to obtain a line of credit sometime in 2004 do not support a conclusion Beston was not in “sound financial condition” in July 2003. Many companies have unprofitable years but remain fiscally sound. As Yinguang's pleadings admit, Beston was able to make all of its payments due on prior contracts in 2003. Similarly, Beston's failure to obtain a line of credit does not necessarily imply that Beston was financially unsound.

Insofar as Yinguang relies on the series of promises to pay during early 2004, all but one of these post-date Contract No. 7 and cannot have influenced the decision to enter into that contract. The statements concerning Beston's present and future willingness to pay are alleged to be fraudulent under two theories. Yinguang says they were false when made because Beston had no ability to pay for the chemicals. Alternatively, they were false because Betson never had an intent to perform the contract. The “false when made” theory suffers from a lack of supporting details from which an inference of falsity could derive. As previously noted, Yinguang offers no contemporary financial data undercutting Potter's assertion about the company's willingness to pay. In fact, those assertions are consistent with Beston's history of paying Yinguang fully but untimely. The April 26 statement, moreover, was accompanied by a frank admission of some financial difficulties, an admission at odds with falsity.

Yinguang's alternative theory is that Potter fraudulently induced Yinguang to enter into Contracts No. 7 and No. 8 by repeatedly promising to make payments with no intention of performing. “A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986). “While a party's intent is determined at the time the party made the representation, it may be inferred from the party's subsequent acts after the representation is made.” Id. However...