Bickerstaff v. Bickerstaff

226 F. Supp. 3d 652, 2016 WL 7450469, 2016 U.S. Dist. LEXIS 179150
CourtDistrict Court, E.D. Louisiana
DecidedDecember 28, 2016
DocketCIVIL ACTION NO. 15-3639
StatusPublished
Cited by1 cases

This text of 226 F. Supp. 3d 652 (Bickerstaff v. Bickerstaff) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bickerstaff v. Bickerstaff, 226 F. Supp. 3d 652, 2016 WL 7450469, 2016 U.S. Dist. LEXIS 179150 (E.D. La. 2016).

Opinion

ORDER AND REASONS

SECTION “R” (3)

SARAH S. VANCE, UNITED STATES DISTRICT JUDGE

Defendants Charles “Benny” Hausk-necht, Jr. and Pailet, Meunier and Le-Blanc, L.L.P. move to dismiss plaintiff Loretta Bickerstaff s claims against them.1 Because plaintiff cannot proceed with her claims against defendants until she complies with the Louisiana Accountancy Act, the Court GRANTS defendants’ motion.

I. BACKGROUND

This diversity action arises out of a property ownership dispute. Plaintiff Loretta Bickerstaff alleges that she is the valid legal owner of a beach house in Gulf Shores, Alabama. According to plaintiffs complaint, Loretta Bickerstaff purchased the Alabama beach house in July 1993.2 In February 2010, plaintiff granted her brother, Richard Bickerstaff, power of attorney, giving him management and control of her affairs.3 Plaintiff alleges that Richard Biek-erstaff then concocted a scheme to take ownership of the house himself.4 She also [654]*654alleges that defendants Charles “Benny” Hausknecht, Jr., a certified public accountant, and Hausknecht’s accounting firm, Pailet, Meunier, and LeBlanc, L.L.P. participated in the scheme.5 This participation occurred despite the Pailet defendants’ representation of plaintiff in tax matters and the “various fiduciary, legal, and ethical duties” that they allegedly owed to plaintiff.6

Plaintiff also alleges that Richard Bick-erstaff7 and the Pailet defendants filed unauthorized claims on plaintiffs behalf against British Petroleum after the 2010 Deepwater Horizon rig explosion, in an attempt to collect settlement proceeds for the loss of rental revenue and diminished value of the beach house.8 Further, plaintiff contends that the Pailet defendants were involved in confecting a second mortgage on the beach house to secure a sham loan to her brother, Richard, from his wife, defendant Carolyn Bickerstaff.9 Additionally, plaintiff alleges that the Pailet defendants prepared and filed unauthorized federal and state tax returns on her behalf relating to the transfer of the beach house.10

On August 19, 2015, plaintiff, through her current legally appointed agent-in-fact and mandatary Gerald Gregory Bicker-staff, filed this lawsuit against Carolyn Bickerstaff and her attorneys.11 The Court dismissed plaintiffs claims against the attorneys for lack of personal jurisdiction on April 7, 2016.12 On April 29, 2016, plaintiff filed her First Supplemental and Amending Complaint, which added the Pailet defendants as parties.13 Plaintiff asks the Court to rescind the Second Mortgage and award plaintiff damages, including pain and suffering.14

At the same time as plaintiff filed her amended complaint, plaintiff moved the Court to stay the case pending the resolution of a review of plaintiffs complaints against Hausknecht by the State Board of Certified Public Accountants of Louisiana in accordance with Louisiana Revised Statutes §§ 37:101-124.15 As summarized by plaintiff, Section 37:105 sets forth that “any action against a certified public accountant, the firm, or the insurer, may not be filed in any court prior to presenting the claims to an accountant review panel.” 16 The Court stayed the case,17 reopening it after the State Board concluded its proceedings.18

The Pailet defendants now move the Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss plaintiffs claims against them because the claims are premature.19 Defendants argue that Section 37:105 requires claims against accountants be reviewed by the Society of Louisiana Certified Public Accountants, not the State Board of Certified Public Accountants of Louisiana, before a plaintiff [655]*655may proceed in court. The Pallet defendants further argue that because plaintiff has not obtained a review of her claims against them from the proper entity, Section 37:105 bars plaintiffs suit.20 Plaintiff argues that Section 37:105 does not apply because she was not a client of Hausk-necht or his firm at the time of the actions complained of, and because she asserts claims of fraud, negligence, and breach of fiduciary duty, not accountant malpractice.21

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiffs claim is true. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiffs claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

In considering a motion to dismiss for failure to state a claim, a court must typically limit itself to the contents of the pleadings, including their attachments. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “If, on a motion under 12(b)(6) ,.. matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Nevertheless, uncontested documents referred to in the pleadings may be considered by the Court without converting the motion to one for summary judgment even when the documents are not physically attached to the complaint.

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Cite This Page — Counsel Stack

Bluebook (online)
226 F. Supp. 3d 652, 2016 WL 7450469, 2016 U.S. Dist. LEXIS 179150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bickerstaff-v-bickerstaff-laed-2016.