Western Bankers Capital, Inc. v. Kirton McConkie, PC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WESTERN BANKERS CAPITAL, INC. CIVIL ACTION
VERSUS NO. 23-5124
KIRTON MCCONKIE, P.C. ET AL. SECTION “O”
ORDER AND REASONS
Before the Court is a motion1 to dismiss the Third-Party Demand filed by
Third-Party Defendants Joseph D. Jordan, Roger Leon Fidler, Simon Piers Thurlow,
and Richard Oravec. Third-Party Defendants Fidler, Thurlow, and Oravec seek to
dismiss Third-Party Plaintiffs Kirton McConkie, P.C.’s and Charles Lloyd’s claim
against them for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
Further, all Third-Party Defendants seek to dismiss Kirton and Lloyd’s Third-Party
Demand for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the
following reasons, the Court DENIES the motion.
I. BACKGROUND
This legal-malpractice action arises from the representation of Plaintiff
Western Bankers Capital (“WBC” or “Plaintiff”) by Utah law firm Kirton McConkie,
P.C. (“Kirton McConkie”), and one of its attorneys, Charles Parkinson Lloyd (“Lloyd”),
in connection with the sale of certain shares of stock.2 On September 7, 2023, Plaintiff
WBC filed a Complaint in this Court against Kirton McConkie and Lloyd, setting
1 ECF No. 45.
2 See generally ECF No. 1.
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forth three claims for relief: (1) breach of contract; (2) professional negligence (legal
malpractice); and (3) breach of fiduciary duty.3
At the core of this case is an April 2017 opinion letter (the “Opinion Letter”)
that Kirton McConkie and Lloyd drafted to advise a broker about the sale of shares
of common stock that WBC owned in Dolat Ventures, Inc. (“DOLV”).4 In its
Complaint, Plaintiff WBC alleges that, in the Opinion Letter, Kirton McConkie and
Lloyd represented that they had “conducted all required due diligence” and opined
that WBC could sell the DOLV stock without violating Securities and Exchange
Commission (“SEC”) Rule 144, a safe-harbor exemption from SEC registration
requirements.5 WBC alleges that it in turn sold the DOLV stock in reliance on the
Opinion Letter.6
After WBC sold the stock in reliance on the Opinion Letter, in 2018 the SEC
began investigating the transaction.7 WBC alleges that Kirton McConkie and Lloyd
eventually submitted an offer of settlement (the “Offer of Settlement”) to the SEC
“[i]n or about 2021.”8 According to the Complaint, the Offer of Settlement consented
to the SEC’s allegations and to certain relief and penalties—without notifying WBC
about the allegations.9 WBC adds that, in connection with the investigation, Kirton
3 Id.
4 Id. ¶¶ 11, 14.
5 Id. ¶ 14.
6 Id. ¶ 15.
7 Id. ¶ 17.
8 Id. ¶ 18.
9 Id. ¶¶ 18–19.
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McConkie and Lloyd gave the SEC attorney-client privileged materials without
notifying WBC or giving WBC a chance to object.10
According to the Complaint, the SEC accepted the Offer of Settlement in
September 2021 and issued a public cease and desist order (the “Cease and Desist
Order”). On the same day the Cease and Desist Order issued, the SEC brought an
enforcement action against WBC and others in the United States District Court for
the Southern District of New York.11 See Complaint, SEC v. Thurlow, No. 1:21-CV-
7700 (Sept. 25, 2021), ECF No. 1. According to the Complaint, the SEC’s enforcement
action against WBC and others alleges that the DOLV stock-share transaction
violated the Securities Act.12
In response to WBC’s Complaint, Kirton McConkie and Lloyd filed a Rule
12(b)(6) motion13 to dismiss, which this Court denied.14 On March 27, 2025, Kirton
McConkie and Lloyd filed an Answer and Third-Party Demand.15 The Third-Party
Demand named Joseph D. Jordan (the owner of WBC); Roger Leon Fidler (counsel for
WBC); Simon Piers Thurlow (law clerk to Fidler); and Richard Oravec (corporate
consultant involved in the DOLV transaction) as Third-Party Defendants.16
The Third-Party Demand alleges that Jordan, Fidler, Thurlow, and Oravec
together provided Kirton McConkie and Lloyd false information and documents,
10 Id. ¶ 20.
11 Id. ¶ 23.
12 Id.
13 ECF No. 11.
14 ECF No. 24.
15 ECF No. 30.
16 Id.
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which Kirton McConkie and Lloyd then relied upon when drafting the Opinion Letter
for WBC’s sale of shares in DOLV.17 Kirton McConkie and Lloyd also relied on these
documents when they prepared a Representation Letter for WBC, which set out the
pertinent facts and information necessary for Kirton McConkie and Lloyd to render
the Opinion Letter. Jordan (owner of WBC) signed and returned the Representation
Letter.18 In that Letter, Jordan/WBC “represent[ed] and warrant[ed]” to Kirton
McConkie the truthfulness of each material fact related to the transactions at issue
and asserted that Kirton McConkie could “rely on the information contained herein.”
According to the Third-Party Demand, Jordan/WBC19 made multiple material
misrepresentations throughout the Representation Letter, including that DOLV was
not a “shell issuer” and that the transaction was “not a part of a plan or scheme to
evade the 1993 Act registration requirements.”20
On April 4, 2017, Lloyd issued the Opinion Letter for WBC’s sale of shares in
DOLV. The Opinion Letter incorporated by reference the documents that were
provided to and reviewed by Kirton McConkie and Lloyd, including the April 3, 2017
Representation Letter. The Opinion Letter stated that Lloyd’s opinions were “based
solely on representations and warranties made to [Third-Party Plaintiffs] by
[WBC/Jordan] with no independent verification . . . .”21
17 ECF No. 30 at 13-15 ¶¶ 14-22.
18 Id. at 15 ¶¶ 24-25.
19 Id. The Third-Party Demand also alleges that WBC is the “nominee company” of Jordan
and an alter-ego. Id. at 16 ¶ 26 n.1.
20 Id. at 16 ¶¶ 26-28.
21 Id. at 17-18 ¶¶ 29-37.
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Over a year later, in May 2018, the SEC contacted Kirton McConkie and Lloyd
about a non-public, fact-finding inquiry it was undertaking regarding certain
transactions related to the sale of the DOLV shares. The SEC ultimately served three
investigative subpoenas on Third-Party Plaintiffs and a deposition subpoena on
Lloyd. Lloyd’s deposition was taken on March 5, 2019. He was represented by counsel
and, according to the Third-Party Demand, did not reveal any confidences of his
former client, WBC, or information protected by the attorney-client privilege during
the deposition.22
The Third-Party Demand alleges that during the course of the SEC’s
investigation, Third-Party Plaintiffs learned that they may have been unwittingly
duped into providing the Opinion Letters to Fidler’s clients, including WBC, based on
false, fraudulent, and/or forged information provided by or on behalf of the Third-
Party Defendants.23 Specifically, Kirton McConkie and Lloyd learned that the SEC
believed that Jordan, Thurlow, Fidler and/or Oravec, and other alleged co-
conspirators, were part of a scheme to illegally offer unregistered securities for sale
in violation of numerous provisions of the Securities Act and the Exchange Act.24
According to the Third-Party Demand, the SEC informed Third-Party
Plaintiffs in September 2020 that they too were accused of violating the Securities
Act and the Exchange Act, specifically §§ 5(a) and 5(c) of the Securities Act. On July
26, 2021, Lloyd executed an Offer of Settlement, which was accepted by the SEC and
22 Id. at 20 ¶¶ 38-42.
23 Id. at 18-19 ¶¶ 38-43.
24 Id. at 20 ¶ 44.
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which then issued a Cease-and-Desist Order. Lloyd agreed to disgorgement of $3,150
in fees, plus interest, and a $40,000 civil penalty. In entering the Offer of Settlement
and Cease-and-Desist Order, Third-Party Plaintiffs were not required to, and did not,
admit any of the factual allegations the SEC made against WBC or the Third-Party
Defendants.25
The Third-Party Demand brings one claim against Third-Party Defendants
Jordan, Fidler, Thurlow and Oravec for “legal, equitable, or implied indemnity.”
According to the Demand, “[u]nder the doctrines of legal, equitable, or implied
indemnity, a person who has been subjected to liability as a result of the wrongful or
tortious conduct of another is entitled to indemnity from the other for any
expenditures made in discharging the liability, including recovery of attorney’s
fees.”26 It accordingly alleges that “if Third-Party Plaintiffs are held liable for WBC’s
alleged damages arising out of the SEC investigation and SEC Complaint, Third-
Party Defendants are obligated to indemnify Third-Party Plaintiffs for all
expenditures incurred in connection with same, including attorney’s fees.”27
Third-Party Defendants now bring a motion28 to dismiss the Third-Party
Demand. Third-Party Defendants Fidler, Thurlow, and Oravec seek to dismiss Third-
Party Plaintiffs’ claims for lack of personal jurisdiction pursuant to Fed. R. Civ. P.
12(b)(2). Further, all Third-Party Defendants seek to dismiss Third-Party Plaintiffs’
25 Id. at 20 ¶¶ 47-51.
26 Id. at 26 ¶ 76.
27 Id. ¶ 77.
28 ECF No. 45.
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Third-Party Demand for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The
Court considers each argument in turn.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(2) permits Third-Party Defendants to
move to dismiss Third-Party Plaintiffs’ Demand for lack of personal jurisdiction. See
FED . R. CI V. P. 12(b)(2). Because the Court decides Third-Party Defendants’ Rule
12(b)(2) motion to dismiss without holding an evidentiary hearing, the Court “‘must
accept as true the uncontroverted allegations in the [Third-Party Demand] and
resolve in favor of [Third-Party Plaintiffs] any factual conflicts posed by the
affidavits.’” Shambaugh & Son, L.P. v. Steadfast Ins. Co., 91 F.4th 364, 369 (5th Cir.
2024) (citation omitted). Third-Party Plaintiffs have “‘the burden to make a prima
facie showing that personal jurisdiction is proper.’” Id. (citation omitted). But that
“prima-facie-case requirement does not require the [C]ourt to credit conclusory
allegations, even if uncontroverted.” Panda Brandywine Corp. v. Potomac Elec. Power
Co., 253 F.3d 865, 869 (5th Cir. 2001).
Further, Rule 8(a)(2) requires that any “pleading that states a claim for relief”
contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” FED. R. CI V. P. 8(a)(2); see also FE D. R. CIV . P. 7(a) (defining
“[p]leadings” to include “third-party complaint[s]”). A complaint that does not satisfy
Rule 8(a)(2)’s pleading standard fails to state a claim upon which relief can be
granted. See generally FED. R. CI V. P. 12(b)(6). “[T]he pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ but it demands more than
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an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
“To survive a motion to dismiss” under Rule 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility 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. (citing Twombly, 550 U.S. at 556). “Although ‘[courts] accept all well-pled
facts as true, construing all reasonable inferences in the complaint in the light most
favorable to the plaintiff, conclusory allegations, unwarranted factual inferences, or
legal conclusions are not accepted as true.’” Hodge v. Engleman, 90 F.4th 840, 843
(5th Cir. 2024) (quoting Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023)).
III. ANALYSIS
“As a general rule, when the court is confronted by a motion raising a
combination of Rule 12(b) defenses, it will address the jurisdictional issues before
considering whether a claim was stated by the complaint, although there is no
requirement that jurisdictional issues be considered in a particular order.” 5B
Charles Alan Wright, Arthur R. Miller & Benjamin Spencer, Federal Practice and §
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1351, at 244-46 (4th ed. 2024). Accordingly, the Court will first consider whether it
has personal jurisdiction over Third-Party Defendants Fidler, Thurlow, and Oravec.
Finding that there is personal jurisdiction over those defendants, the Court next
considers Third-Party Defendants’ motion to dismiss for failure to state a claim.
A. Rule 12(b)(2) – Personal Jurisdiction
Three of the Third-Party Defendants— Fidler, Thurlow, and Oravec—contend
the Court should dismiss the claim alleged against them in the Third-Party Demand
because this Court lacks personal jurisdiction over them. The three non-resident
Third-Party Defendants reason there is no specific personal jurisdiction over them
because they lack minimum contacts with Louisiana.29 They further assert it would
not be fair and reasonable to hale them into court in Louisiana to defend themselves
in this lawsuit.30
Federal Rule of Civil Procedure 12(b)(2) confers a right to dismissal of claims
against a defendant where personal jurisdiction is lacking. Personal jurisdiction is
“an essential element of the jurisdiction of a district court, without which the court is
powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 584 (1999) (citation and alteration omitted). When a nonresident defendant
moves the court to dismiss for lack of personal jurisdiction, the plaintiff (or, in this
instance, Third-Party Plaintiff) “bears the burden of establishing the district court's
jurisdiction over the nonresident.” Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir.
1985). All allegations in the complaint—except as controverted by opposing
29 ECF No. 45 at 1.
30 Id.
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affidavits—“must be taken as true, and all conflicts in the facts must be resolved in
favor of the [third-party] plaintiffs.” Thompson v. Chrysler Motors Corp., 755 F.2d
1162, 1165 (5th Cir. 1985).
A federal court may exercise personal jurisdiction over a nonresident
defendant if the “forum state’s long-arm statute extends to the nonresident defendant
and the exercise of jurisdiction comports with due process.” Carmona v. Leo Ship
Mgmt., Inc., 924 F.3d 190, 193 (5th Cir. 2019). Because Louisiana's long-arm statute,
La. Rev. Stat. § 13:3201, et seq., extends to the limits of the Due Process Clause of the
Fourteenth Amendment, the two inquiries collapse into the single inquiry whether
the exercise of personal jurisdiction comports with due process. Jackson v. Tanfoglio
Giuseppe, S.R.L., 615 F.3d 579, 584 (5th Cir. 2010).
Personal jurisdiction can be general or specific. Carmona, 924 F.3d at 193.
Third-Party Plaintiffs assert only specific jurisdiction.31 In evaluating whether due
process permits the exercise of specific jurisdiction, the Court considers:
(1) whether the defendant has minimum contacts with the forum state,
i.e., whether it purposely directed its activities toward the forum state
or purposefully availed itself of the privileges of conducting activities
there; (2) whether the plaintiff’s cause of action arises out of or results
from the defendant’s forum-related contacts; and (3) whether the
exercise of personal jurisdiction is fair and reasonable.
Id. “If the plaintiff establishes the first two prongs, the burden shifts to the
defendant to make a ‘compelling case’ that the assertion of jurisdiction is not fair or
reasonable.” Id. In determining reasonableness, a court considers “the burden on the
31 ECF No. 53 at 16 n.8.
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defendant, the interests of the forum State, and the plaintiff’s interest in obtaining
relief,” Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 113
(1987), as well as “the interstate judicial system’s interest in obtaining the most
efficient resolution of controversies; and the shared interest of the several States in
furthering fundamental substantive social policies.” World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 292 (1980).
Third-Party Defendants Fidler, Thurlow, and Oravec contend this Court lacks
specific personal jurisdiction over them because are not residents of Louisiana, they
did not “work or transact business in Louisiana,” and they have “[no] contacts with
Louisiana whatsoever.”32 In its Complaint, however, Plaintiff WBC relies on its own
status as a Louisiana citizen to argue there is personal jurisdiction over
Defendants/Third-Party Plaintiffs Kirton McConkie and Lloyd—who are Utah
citizens—in Louisiana. Indeed, WBC alleges that “a substantial part of the events or
omissions giving rise to the claim[s] occurred in the Eastern District of Louisiana”
and asserts claims for breach of contract, professional negligence, and breach of
fiduciary duty.33 Kirton McConkie and Lloyd have not contested this Court’s personal
jurisdiction over them in Louisiana for their role in the underlying transaction.
WBC is a Louisiana citizen, and its owner, Third-Party Defendant Joseph
Jordan, is also a citizen of Louisiana. According to the Third-Party Demand, Fidler
and Thurlow acted as counsel to WBC during the relevant transaction, and Oravec
also allegedly provided Kirton McConkie and Lloyd with documents underlying their
32 ECF No. 45-1 at 6; see also 45-2, 45-3, 45-4 (Declarations of Fidler, Thurlow, and Oravec).
33 ECF No. 1 ¶¶ 6-8.
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Opinion Letter on behalf of WBC to facilitate the transaction.34 In their Third-Party
Demand, Kirton McConkie and Lloyd allege that Fidler, Thurlow, and Oravec each
provided them with falsified documents on which they relied when drafting WBC’s
Opinion Letter in the transaction.35 The Third-Party Demand accordingly alleges
that “any damages WBC has or will sustain in connection with the SEC investigation
or the SEC Complaint were due to the fault or negligence of . . . Fidler, Thurlow, and
Oravec.”36 In other words, the Third-Party Demand alleges that Fidler, Thurlow, and
Oravec were each directly involved in the transaction that gave rise to WBC’s
Complaint against Kirton McConkie and Lloyd—a transaction WBC alleges “g[ave]
rise to [] claim[s] [that] occurred in the Eastern District of Louisiana.”37
On reply, Fidler, Thurlow, and Oravec admit a connection to Louisiana insofar
as they “may have emailed the owner of WBC [Jordan] who lives in this state” to
facilitate the transaction.38 But they argue that WBC’s Louisiana citizenship—and
WBC’s claim that the underlying events occurred in Louisiana—is insufficient to
convey personal jurisdiction over them in Louisiana. They assert it is “as if Third-
Party Plaintiffs are attempting to appropriate the plaintiff’s jurisdiction for
themselves.”39
The Court disagrees. Third-Party Plaintiffs bring a tort indemnity claim
against Fidler, Thurlow, and Oravec. Under Louisiana law, “an implied contract of
34 ECF No. 30 at 14-15 ¶¶ 22-24.
35 Id. at 13-18 ¶¶ 14-37;
36 ECF No. 30 at 25 ¶ 73.
37 ECF No. 1 at ¶¶ 6-8.
38 ECF No. 55 at 2.
39 Id. at 3.
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indemnity, or tort indemnity . . . arises only when the fault of the person seeking
indemnification is solely constructive or derivative, from failure or omission to
perform some legal duty, and may only be had against one who, because of his act,
has caused such constructive liability to be imposed.” Hamway v. Braud, 01-2364 (La.
App. 1 Cir. 11/8/02); 838 So. 2d 803, 806 (citing Nassif v. Sunrise Homes, Inc., 739
So.2d 183, 185 (La. 1999). In other words, Kirton McConkie and Lloyd claim they are
not liable to Louisiana Plaintiff WBC for their role in the transaction because the
underlying fault in that transaction instead lies with Fidler, Thurlow, and Oravec.
Indeed, Fidler, Thurlow, and Oravec are alleged to have actively participated in the
underlying transaction on behalf of WBC as tortfeasors.
Fidler, Thurlow, and Oravec thus are not being haled into Louisiana court
“based on [their] ‘random, fortuitous, or attenuated’ contacts” with the state. Walden
v. Fiore, 571 U.S. 277, 286 (2014) (citation omitted). Rather, Kirton McConkie and
Lloyd’s claim of derivative liability on an indemnity theory against Fidler, Thurlow,
and Oravec “arises out of or results from” Fidler, Thurlow, and Oravec’s allegedly
tortious conduct in this specific transaction on behalf of a Louisiana entity (WBC) and
its owner, Louisiana Third-Party Defendant Jordan. This is sufficient for personal
jurisdiction. See Carmona, 924 F.3d at 193; see also Moncrief Oil Int’l Inc. v. OAO
Gazprom, 481 F.3d 309, 314 (5th Cir. 2007) (“When a nonresident defendant commits
a tort within the state . . . that tortious conduct amounts to sufficient minimum
contacts with the state by the defendant to constitutionally permit courts within that
state . . . to exercise personal adjudicative jurisdiction . . . .”) (citation omitted); Mack
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Trucks, Inc. v. Arrow Aluminum Castings Co., 510 F.2d 1029, 1033 (5th Cir. 1975)
(finding that under Georgia long-arm statute the district court had personal
jurisdiction over third-party indemnity defendant even in separately-filed lawsuit
because the long-arm statute embraced “all legal theories of relief growing out of the
jurisdiction generating event.”).
Fidler, Thurlow, and Oravec also allege that any contacts they had with
WBC/Jordan in Louisiana during the transactions at issue are insufficient for
personal jurisdiction because their contacts were limited to “[e]mails and phone
calls.”40 Third-Party Defendants cite Sangha v. Navig8 Shipmanagement Private,
Ltd., 882 F.3d 96, 103 (5th Cir. 2018) to reason that merely sending emails to
Louisiana is “‘legally insufficient to support a finding of specific jurisdiction.’”41 But
Third-Party Defendants misconstrue Sangha’s holding. In that case, the court agreed
that emails sent from the defendant located “outside the country” to plaintiff’s then-
supervisor located “in Alabama” about the plaintiff’s work in Texas were insufficient
to confer personal jurisdiction over the defendants in Texas. Sangha, 882 F.3d at 103.
The Court found that the defendant’s emails merely “happened to affect” the plaintiff
while he was in Houston. Id. The defendant’s emails were not “purposeful[ly]”
targeted at Texas; any Texas connection was “‘merely fortuitous’” and therefore
insufficient for a finding of personal jurisdiction. Id. (quoting Walden, 571 U.S. at
286).
40 ECF No. 55 at 2.
41 Id.
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By contrast, in this case, Thurlow emailed Kirton McConkie and Lloyd, cc:ing
Fidler, “in relation to obtaining an [O]pinion [L]etter on behalf of our client Western
Bankers Capital,” a Louisiana citizen.42 Numerous emails were then exchanged
between Kirton McConkie/Lloyd and Thurlow, Fidler, and Oravec on behalf of WBC
and regarding the WBC transaction.43 Many of these emails included Jordan, WBC’s
owner, a Louisiana citizen.44 These email exchanges are sufficient to confer personal
jurisdiction in Louisiana over Third-Party Defendants. Unlike the defendant in
Sangha, Thurlow, Fidler, and Oravec’s contacts with Louisiana were not “merely
fortuitous”—again, they were purposefully operating on behalf of a Louisiana client
in a transaction that gave rise to claims against Kirton McConkie and Lloyd (Utah
citizens) in Louisiana. See also Monkton Ins. Servs. v. Ritter, 768 F.3d 429, 432–33
(5th Cir. 2014) (“Specific jurisdiction ‘focuses on the relationship among the
defendant, the forum, and the litigation.’”) (citation omitted); Trois v. Apple Tree
Auction Ctr., Inc., 882 F.3d 485, 492 (5th Cir. 2018) (finding “the defendants reached
out to the forum, which led to this litigation, so we have focused on the correct
relationship here, i.e. the defendants and the forum”). In this case, Third-Party
Defendants are adequately connected to the forum and the underlying litigation in
Louisiana. Third-Party Plaintiffs have thus established a prima facie case for
personal jurisdiction.
42 ECF No. 53-1 (Ex. 1).
43 Id.
44 Id.
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“If the plaintiff establishes the first two prongs, the burden shifts to the
defendant to make a ‘compelling case’ that the assertion of jurisdiction is not fair or
reasonable.” Carmona, 924 F.3d at 193. Fidler, Thurlow and Oravec contend the
burden on them is large because they would be required to hire counsel in and travel
to Louisiana—notwithstanding that Fidler is already enrolled as pro hac vice counsel
for WBC in Louisiana. They also assert that this dispute involves “non-Louisiana
parties, non-Louisiana witnesses and evidence, and non-Louisiana transactions.”
The Court disagrees. Although the three Third-Party Defendants are
nonresidents in Louisiana, this state’s interest in the litigation outweighs that
consideration. See Asahi Metal, 480 U.S. at 113 (holding the court must consider not
only “the burden on the defendant,” but also the “interests of the forum State, and
the plaintiff's interest in obtaining relief”). As already discussed, the dispute does not
involve only “non-Louisiana” parties, witnesses, and evidence—both Plaintiff WBC
and Third-Party Defendant Jordan are Louisiana citizens and significant aspects of
the transactions at issue took place in Louisiana. WBC chose to file the original
Complaint against Kirton McConkie and Lloyd in Louisiana about a transaction that
has a sufficient nexus to Louisiana to confer personal jurisdiction over them. Kirton
McConkie and Lloyd’s indemnity claim is a derivative cause of action that is based
on the same underlying transaction. The “‘interstate judicial system’s interest in
obtaining the most efficient resolution of controversies’” thus also weighs towards a
finding that the indemnity claim should be decided in Louisiana. Wilson v. Belin, 20
F.3d 644, 647 n.3 (5th Cir. 1994) (citation omitted). The Court finds that Fidler,
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Thurlow, and Oravec have failed to make a “compelling case” that the assertion of
personal jurisdiction would be unfair or unreasonable. See Carmona, 924 F.3d at 193.
Accordingly, the Court denies the three Third-Party Defendants’ motion to
dismiss the claim against them for lack of personal jurisdiction.
B. Rule 12(b)(6) – Failure to State a Claim
Third-Party Defendants also bring a motion to dismiss Third-Party Plaintiffs’
claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6). According to Third-
Party Defendants, Kirtin McConkie and Lloyd cannot allege a claim for tort
indemnity because it is impossible for a defendant that is liable to another—and
therefore at fault for some conduct—to shift liability to a third party.
“It has long been held in Louisiana that a party not actually at fault, whose
liability results from the faults of others, may recover by way of indemnity from such
others.” Bewley Furniture Co. v. Maryland Cas. Co., 285 So.2d 216, 219 (La. 1973).45
“The obligation to indemnify may be express, as in a contractual provision, or may be
implied in law, even in the absence of an indemnity agreement.” Nassif, 739 So.2d at
185 (citation omitted). The parties agree that Kirton McConkie/Lloyd have no
contract with Third-Party Defendants, and thus no basis for contractual indemnity.46
Third-Party Plaintiffs’ claim rests instead on a theory of tort indemnity.
Indemnity “is based on the principle that everyone is responsible for his own
wrongdoing, and if another person has been compelled to pay a judgment which ought
45 “A federal court sitting in diversity applies the substantive law of the forum state, in this
case Louisiana.” Wisznia Co. v. Gen. Star Indem. Co., 759 F.3d 446, 448 (5th Cir. 2014).
46 ECF No. 53 at 23 n.9.
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to have been paid by the wrongdoer, then the loss should be shifted to the party whose
negligence or tortious act caused the loss.” Id. (citing 42 C.J.S. Indemnity at § 32
(1991)). A claim for legal indemnity “arises only where the liability of the person
seeking indemnification is solely constructive or derivative and only against one who,
because of his act, has caused such constructive liability to be imposed.” Id. (citation
omitted); see also Bewley, 285 So.2d at 219 (“The cases have referred to this imposed
liability variously as technical, constructive, vicarious and derivative.”). “Indemnity,
unlike contribution, is not dependent upon subrogation to the right of the creditor,
but finds its basis in the concept of unjust enrichment, i.e., the party primarily at
fault is unjustly enriched when one held liable vicariously or by reason of technical
fault discharges the indebtedness.” Mayo v. Benson Chevrolet Co., 717 So.2d 1247,
1248 (La. App. 5th Cir.1998) (citation omitted). Accordingly, a party “who is actually
negligent or actually at fault cannot recover [legal] indemnity.” Hamway, 838 So. 2d
at 806 (citation omitted).
The Court should dismiss a third-party claim for tort indemnity if “‘[t]here is
no foreseeable combination of findings, viewing the allegations of the pleadings . . . in
the light most favorable to [the party seeking indemnity], that could result in [that
party] being cast in judgment for mere technical or passive fault.’” Threlkeld v.
Haskins Law Firm, 922 F.2d 265, 267-68 (5th Cir.1991) (citation omitted). “An action
for indemnity will lie so long as the party’s fault ‘can be characterized as merely
technical or constructive,’ and where the party ‘was exposed to liability and compelled
to pay damages . . . on account of the negligent act of’ the third-party defendant[.]”
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Martco Ltd. P’ship v. Bruks Inc., 430 F. App’x 332, 335 (5th Cir. 2011) (citations
omitted).
Third-Party Defendants argue that Kirtin McConkie and Lloyd’s indemnity
claim fails as a matter of law. According to Third-Party Defendants, if Kirton
McConkie/Lloyd are found liable to Plaintiff WBC for any of the claims against them,
they are accordingly at some fault for their conduct and are therefore barred as a
matter of law from seeking indemnity from a third-party.
The Court disagrees. True, a party “who is actually negligent or actually at
fault cannot recover [legal] indemnity.” Hamway, 838 So.2d at 806. But a defendant
may successfully prove a tort indemnity claim against a third-party where it faces
liability “by reason of technical fault” but not actual fault. Mayo, 717 So.2d at 1248
(emphasis added). Accordingly, in Martco, the Fifth Circuit rejected a near-identical
argument brought by the third-party plaintiffs in their motion to dismiss. See 430 F.
App’x at 338 (rejecting argument that “if [the defendant/third-party plaintiff] is found
liable to [plaintiff] in this case, it will be because of [third-party plaintiff’s] actual
fault, in which case [third-party plaintiff] will have no basis for asserting a claim for
indemnity against [third-party defendant]”). The court explained that it might
“ultimately prove to be the case” that the defendant/third-party plaintiff’s fault
barred its ability to recover on certain claims. Id. Nevertheless, the Fifth Circuit
reversed the district court’s dismissal of the complaint and held that “such a
determination turns on factual findings that cannot be made at the Rule 12(b)(6)
stage.” Id. That is because at the motion to dismiss stage, courts are “concerned only
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with whether [the third-party plaintiff] has stated in its third-party complaint a
plausible basis for an entitlement to legal indemnity.” Id.
The same reasoning applies here. At the dismissal stage, the Court is only
concerned with whether the third-party plaintiff has plausibly alleged a basis for an
entitlement to legal indemnity. Third-Party Plaintiffs in this case have satisfied that
low bar. In their Third-Party Demand, they deny any wrongdoing and allege that any
liability assigned to them for any of the claims would solely result from Third-Party
Defendants’ wrongdoing. Specifically, Third-Party Defendants purposefully provided
them with false information upon which they relied when drafting the Opinion Letter
for which they now face potential liability. Whether Kirton McConkie and Lloyd can
succeed on its indemnity claim under this theory remains to be seen and will be
considered by the Court at a later stage. For now, the Court declines to dismiss its
Third-Party Demand for failure to state a claim. See Thibodeaux v. Red Frog Events,
LLC, 2018 WL 4373753, at *3 (W.D. La. Sept. 13, 2018) (denying a motion to dismiss
because “whether [the third-party defendant] is actually liable to [the third-party
plaintiff] ‘requires factual findings that cannot be made at the Rule 12(b)(6) stage’ ”
(citation omitted)); Buratt v. Red Frog Events, LLC, 2017 WL 5147156, at *2-3 (W.D.
La. Nov. 6, 2017) (denying a third-party defendant’s motion to dismiss after finding
that the third-party plaintiff had “sufficiently ple[d] a third party demand” by
denying any wrongdoing and alleging that “any liability it may have is only technical
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and a result of” the third-party defendant’s negligent construction, oversight, and
maintenance).47
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Third-Party Defendants’ Rule 12(b)(2) and Rule
12(b)(6) motion48 to dismiss is DENIED.
IT IS FURTHER ORDERED that Third-Party Plaintiffs’ motion49 to
continue Third-Party Defendants’ motion to dismiss is DENIED AS MOOT.
IT IS FURTHER ORDERED that Third-Party Plaintiffs’ motion50 for
leave to file a supplemental brief in support of their opposition to Third-Party
Defendants’ motion to dismiss is DENIED AS MOOT.
New Orleans, Louisiana, this 23rd day of March, 2026.
BRANDON S. LONG
UNITED STATES DISTRICT JUDGE
47 On reply, Third-Party Defendants argue for the first time the Court must dismiss the
Complaint because there was no “legal duty” between them and the Third-Party Plaintiffs because,
inter alia, none of the parties had engagement agreements with Third-Party Plaintiffs. The Court
declines to consider this argument. See Gillaspy v. Dall. Indep. Sch. Dist., 278 F. App’x. 307, 315 (5th
Cir. 2008) (“It is the practice of [the Fifth Circuit] and the district courts to refuse to consider
arguments raised for the first time in reply briefs.”). The Court notes that even if it did consider this
argument, courts regularly find there is no need for an engagement agreement to find there is an
adequate legal duty in a tort indemnity claim between a third-party plaintiff and third-party
defendant. As the Fifth Circuit has explained in reversing the district court’s dismissal of a complaint:
“We do not agree with the district court that indemnity is limited solely to claims involving a
contractor-subcontractor or employer-employee-type relationship between the party seeking
indemnity and the party actually at fault . . . . [A]n indemnity claim rests ‘upon the general obligation
to repair the damages caused by one’s fault . . . and the moral maxim that no one ought to enrich
himself at the expense of another.’” Martco, 430 F. App’x at 337 (citation omitted).
48 ECF No. 45.
49 ECF No. 54.
50 ECF No. 60.
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